(212) 951-1300

Available 24 hours / 7 days a week  

535 5th Ave #2500
New York, NY 10017

Criminal Possession of a Weapon (Second Degree)

Unlawful intent while in possession of a weapon often elevates a weapons possession charge from a lesser offense to a second-degree felony in New York, but there are other reasons why police or prosecutors may also file this charge, such as when a person possesses five or more guns or possesses a loaded weapon in certain situations.

Felony second-degree criminal possession of a weapon (also known as CPW 2) in New York under N.Y. Penal Law 265.03 includes six specific crimes. A charge under this statute is a Class C felony, with penalties upon conviction of between three-and-one-half to 15 years in prison and a fine of up to $5,000.

Attorney for Felony Criminal Possession of a Weapon in Manhattan

If you were arrested for second-degree felony criminal possession of a weapon in Manhattan or any of the five boroughs of New York City, you should contact an experienced criminal defense lawyer to assist you with the legal process. A qualified attorney will be able to explain the charge and help you find the best defenses in your case.

At Greco Neyland, PC, we represent people arrested on felony criminal weapons charges. We take the time to investigate the facts of the case to determine the best strategy to fight the charges aggressively.

With Greco Neyland, PC as your advocate, you will have former prosecutors fighting on your behalf, so we know how the process works. We use our knowledge of criminal legal procedure to help our clients mount a strong defense. We represent clients in Manhattan (New York County), Brooklyn (Kings County), The Bronx, and the other boroughs of New York City. Call us today at (212) 951-1300 to schedule a free consultation.


Information about Second Degree Felony Criminal Possession of a Weapon


Back to top

Types of Second Degree Felony Criminal Possession of a Weapon Charges

New York Penal Law, Part 3, Title P, Article 265.03 states that a person is guilty of Felony Criminal Possession of a Weapon in the Second Degree when that person, with intent to use (a weapon) unlawfully against another:

  • Possesses a loaded firearm;
  • Possesses a loaded machine gun;
  • Possesses a loaded disguised gun;
  • Possesses five or more firearms;
  • Possesses any loaded firearm outside his or her home or business; or
  • Possesses any loaded firearm in his or her home or business after an uncontested prior conviction or possesses an assault weapon in his or her home or business.

As with many New York gun laws, the statutes related to several of these offenses have been changed in recent years to be more stringent. For example, until late 2005, the number of firearms a person needed to possess in order to trigger a third-degree felony instead of a fourth-degree felony was 20; today possession of 10 guns or more is a first-degree felony.

Note: Under federal law, machine guns, silencers, sawed-off shotguns and rifles, and destructive devices such as bombs and grenades are considered Title II weapons and a federal conviction for possession of a Title II weapon may result in up to 10 years in federal prison and a fine of up to $10,000 (26 U.S.C. § 5871). 


Back to top

Definitions of Terms Related to Second Degree Felony Criminal Possession of a Weapon

Several key terms in the law are legally defined in the statutes, including possess, knowingly, and intent, as well as each of the weapons mentioned.

Under the law, “possess” means to have physical possession or otherwise to exercise dominion or control over tangible property. (N.Y. P.L. Part 1, Title A, Article 10.00(8)).

Possession may be “actual” or “constructive.” Actual possession occurs when the police discover a firearm on a person or his or her belongings and no one else has equal access to it. Constructive possession occurs when more than one person has access to a firearm, such as a firearm in a room or a vehicle when more than one person has access to it.

A person “knowingly” possesses a firearm when that person is “aware” that he or she is in possession of a firearm. (N.Y. P.L. Part 1, Title B, Article 15.05(2)).

“Intent” means “conscious objective or purpose. Thus, a person acts with intent to use a weapon unlawfully against another when his or her conscious objective or purpose is to do so.” (Criminal Jury Instructions 2d [NY] Penal Law § 265.03(1)(b). In cases where a defendant is alleged to have used a loaded firearm, “intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another.” (See People v. Muhammad, 17 N.Y.3d 532 (2011)).

A “firearm” (the most common type of weapon used) is defined in N.Y. P.L. 265.00(3) as:

  • Any pistol or revolver (weapons commonly known as handguns); or
  • A shotgun having one or more barrels less than 18 inches in length; or
  • A rifle having one or more barrels less than 16 inches in length; or
  • Any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than 26 inches; or
  • An assault weapon.

A “loaded firearm” means “any firearm loaded with ammunition which may be used to discharge such firearm (or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm).” (N.Y. P.L. § 265.00(15)). There is no requirement that the defendant knew the firearm was loaded at the time of possession. (See People v. Broomfield, 275 A.D.2d 885 (4 Dept. 2000); People v. Smith, 270 A.D.2d th 719 (3 Dept. 2000); People v. Toribio, 216 A.D.2d 189 (1 Dept. 1995)).

A gun does not need to be loaded for a person to be charged under some sub-sections this law, but in many cases, it must be “operable.” To be operable, a firearm must be “capable of discharging ammunition,” although previous court cases have established that the possessor of a gun does not need to know if the gun was operable in order to be charged.

“Machine gun” means “a weapon of any description, irrespective of size, by whatever name known, loaded or unloaded, from which a number of shots or bullets may be rapidly or automatically discharged from a magazine with one continuous pull of the trigger and includes a sub-machine gun.” (N.Y. P.L. § 265.00(1)).

A “disguised gun” means “any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive and is designed and intended to appear to be something other than a gun. (N.Y. P.L. § 265.00(20)).

Each of the other weapons listed above are defined in N.Y. P.L. § 265.00.


Back to top

Finding Guilt for Second Degree Felony Criminal Possession of a Weapon  

Depending on the specific type of weapon possessed in a second-degree felony criminal possession of a weapon case and the circumstances of the arrest, a judge or jury must adhere to a variety of rules in determining guilt.

All of the offenses under § 265.03 require a judge or jury to determine possession of a weapon as well as that the possession occurred knowingly, but some of them also require intent or something else that must be proved beyond a reasonable doubt.

Possession of a Loaded Firearm with Intent to Use Unlawfully

In order for a defendant to be found guilty of a charge of Second Degree Felony Possession of a Loaded Firearm with Intent to Use Unlawfully under N.Y. P.L. 265.03(1)(b), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed a firearm on or about a certain date in a specific county;
  • Knowingly possessed a firearm on or about a certain date in a specific county;
  • The firearm was loaded and operable; and
  • Possessed the loaded firearm with the intent to use it unlawfully against another.

N.Y. P.L. §§265.03(1)(b) applies to offenses committed on or after Nov. 1, 1998. This section of the statute was revised in 2006 and again in 2011 in accordance with emerging case law.

Possession of a Machine Gun or Disguised Gun with Intent to Use Unlawfully

To be found guilty of a charge of Second Degree Felony Possession of a Machine Gun or Second Degree Felony Possession of a Disguised Gun under §§ 265.03(1)(a) and 265.03(1)(c), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed a machine gun (or disguised gun) on or about a certain date in a specific county; and
  • Knowingly possessed a machine gun (or disguised gun) on or about a certain date in a specific county; and
  • Possessed the machine gun (or disguised gun) with the intent to use it unlawfully against another.

Operability of a machine gun or disguised gun is not necessary for a conviction under this law.

N.Y. P.L. §§ 265.03(1)(a) and 265.03(1)(c) apply to offenses committed on or after Nov. 1, 1998.

Possession of Five or More Firearms

To be found guilty of a charge of Second Degree Felony Possession of a Five or More Weapons under § 265.03(2), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed five or more firearms on or about a certain date in a specific county;
  • Knowingly possessed five or more firearms on or about a certain date in a specific county; and
  • Five or more of the firearms were operable.

N.Y. P.L. §265.03(2) applies to offenses committed on or after Dec. 21, 2005.

Note: A small difference in the number of guns possessed will make a big difference in the maximum prison sentence upon conviction:

  • One gun (misdemeanor) = One year
  • One gun (felony) = Four years
  • Three guns or four guns = Seven years
  • Five guns or more = 15 years
  • Ten guns or more = 25 years

Possession of a Loaded Firearm Not in Home or Place of Business

To be found guilty of a charge of Second Degree Felony Possession of a Loaded Firearm Not in Home or Place of Business under § 265.03(3), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed a firearm on or about a certain date in a specific county;
  • Knowingly possessed a firearm on or about a certain date in a specific county;
  • The firearm was loaded and operable; and
  • Possession occurred in a place other than the defendant’s home or place of business.

N.Y. P.L. §265.03(3) applies to offenses committed on or after Nov. 1, 2006. (This offense was a lesser Class D felony until that date.)

Possession of a Loaded Firearm in Home or Place of Business with Prior Conviction

The exception for possession of a weapon in a home or place of business does not apply if a person has been previously convicted of any crime (see People v Hughes, 22 NY3d 44, 978 NYS  2d97, 1 NE3d 298 (2013)) or if the weapon possessed is an assault rifle.

To be found guilty of a charge of Second Degree Felony Possession of a Loaded Firearm in Home or Place of Business with a Prior Conviction under § 265.03(3), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed a firearm (anywhere) on or about a certain date in a specific county;
  • Knowingly possessed a firearm (anywhere) on or about a certain date in a specific county;
  • The firearm was loaded and operable; and
  • Was previously convicted of a crime.

It is a defense to this crime that the defendant has not been previously convicted of a crime, and if the defendant disputes a previous conviction, proof must be provided by the prosecution. (See People v Jones, 22 NY3d 53 (2013)).

N.Y. P.L. §265.03(3) applies to offenses committed on or after Nov. 1, 2006. (This offense was a lesser Class D felony until that date.)


Back to top

Penalties for Second Degree Felony Criminal Possession of a Weapon

Criminal Possession of a Weapon under N.Y. P.L. 265.03 is a Class C felony in New York. A Class C felony is punishable upon conviction by the following punishment or penalty:

  • Three-and-one-half to 15 years in prison, and/or
  • A fine of up to $5,000

Back to top

Resources Related to Second Degree Felony Criminal Possession of a Weapon

New York Penal Law, Part 3, Title P, Article 265.03 — Read the New York State laws pertaining to felony criminal possession of a weapon in the second degree.

Jury Instructions for Second Degree Felony Criminal Possession of a Loaded Firearm with Intent to Use Unlawfully — Visit the website of the New York State Unified Court System to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a loaded firearm with intent to use unlawfully on or after Nov. 1, 1998.

Jury Instructions for Second Degree Felony Criminal Possession of a Machine Gun or Disguised Gun with Intent to Use Unlawfully — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a machine gun or disguised gun with intent to use unlawfully on or after Nov. 1, 1998.

Jury Instructions for Second Degree Felony Criminal Possession of Five or More Firearms — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of five or more firearms on or after Dec. 21, 2005.

Jury Instructions for Second Degree Felony Criminal Possession of a Loaded Weapon Not in Home or Place of Business — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a loaded weapon not in home or place of business on or after Nov. 1, 2006.

Jury Instructions for Second Degree Felony Criminal Possession of a Loaded Weapon in Home or Place of Business with an Uncontested Previous Conviction — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a loaded weapon in home or place of business with an uncontested previous conviction on or after Nov. 1, 2006.


Attorney for Second Degree Felony Criminal Possession of a Weapon in New York City

If you were arrested in New York City for Second Degree Felony Criminal Possession of a Weapon under N.Y. P.L. § 265.03, contact an experienced criminal defense attorney.

The skilled criminal defense attorneys at Greco Neyland, PC are experienced in defending felony weapon possession charges. We work with you from the start to help you find the best defense.

We serve clients throughout the five boroughs of New York City, including Manhattan, Brooklyn, and The Bronx. Contact the dedicated lawyers at Greco Neyland, PC today by calling (212) 951-1300 to schedule a free consultation about your weapon charge in New York City.

Our Headquarters

building
Greco Neyland, P.C.
Midtown Office (Main): 535 5th Ave #2500
New York, NY 10017

Our Practice Areas

Meet Our Attorneys

Jeff Greco
Jeffery Greco
Experience as a former prosecutor gives Jeffery Greco an edge in building the strongest possible defense strategy for the accused in New York City.
Read more bullet
Dustan Neyland
Dustan Neyland
A thorough investigation is key to finding every reasonable doubt and getting charges reduced or dismissed for NYC defense attorney Dustan Neyland.
Read more bullet
The National Trial Lawyers

RECENTLY ON OUR BLOG