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Criminal Possession of a Weapon (Third Degree)

Felony third degree criminal possession a weapon (also known as CPW 3) in New York under N.Y. Penal Law 265.02 include the following crimes:

  • Possession of a weapon by a person with a previous conviction for any crime;
  • Possession of three or more weapons; and
  • Possession of a defaced or disguised weapon.

A charge under this statute is a Class D felony, with penalties upon conviction of up to seven 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 third 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 possible defenses that might apply in your case. 

At Greco Neyland, PC, we represent people arrested on felony criminal weapons charges. We take the time to investigate each client’s circumstances and find the best ways to fight the case 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 fight for our clients. 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 Felony Criminal Possession of a Weapon in New York City


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Types of Third Degree Felony Criminal Possession of a Weapon Charges

New York Penal Law, Part 3, Title P, Article 265.02(1) states that a person is guilty of Felony Criminal Possession of a Weapon in the Third Degree when that person has previously been convicted of any crime, and:

  • Possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy (billy club), blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken, or “Kung Fu star”; or
  • Possesses any dagger, dangerous knife, dirk,  razor,  stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another; or
  • Possesses  a  rifle,  shotgun,  antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm, and has been convicted of a felony or serious offense; or
  • Possesses any dangerous or deadly weapon and is not a citizen of the United States.

A conviction under § 265.02(1) requires that the defendant was previously convicted of a crime. Without the prior conviction, the possession of a weapon would likely constitute fourth degree felony criminal possession of a weapon, a lesser charge. (See also N.Y. P.L. §§ 265.01(1), 265.01(2), 265.01(3), and 265.01(5), Felony Criminal Possession of a Weapon in the Fourth Degree.)

Another offense that may result in a charge under § 265.02 is Possession of a Firearm with a Previous Felony or a Class A Misdemeanor Conviction defined in Chapter 265 within the five years immediately preceding the commission of the offense and the possession did not take place in the person’s home or place of business (§ 265.02(5)(ii)).

Several first-time offenses may result in a charge of felony criminal possession of a weapon in the third degree under subsections of § 265.02, including:

  • Possession of any explosive or incendiary bomb, bombshell, firearm silencer, machine gun or any other firearm or weapon simulating a machine gun and which is adaptable for such use (§ 265.02(2)); or
  • Knowingly possessing a machine gun, firearm, rifle or shotgun which has been defaced  for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun (§ 265.02(3)); or
  • Possession of three or more  firearms (§ 265.02(5)(i)); or
  • Knowingly possessing any disguised gun (§ 265.02(6)); or
  • Possession of an assault weapon (§ 265.02(7)); or
  • Possession of (certain) large capacity ammunition feeding devices (§ 265.02(8)); or
  • Possession of an unloaded firearm during the commission of a  drug trafficking felony (§ 265.02(9)); or
  • Possession of an unloaded firearm during the commission of any violent felony offense (§ 265.02(10)).

New York’s 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 weapons a person needed to possess in order to trigger a third-degree felony instead of a fourth-degree felony was 20; today it is three.

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).  


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

Several key terms in the law are legally defined in the statutes, including possess and knowingly, 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)).

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 gun does not need to be loaded for a person to be charged under this law, but in most 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.

“Deface” means “to remove, deface, cover, alter or destroy the manufacturer’s serial number or any other distinguishing number or identification mark. (N.Y. P.L. § 265.00(7)).

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.


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Finding Guilt for Third Degree Felony Criminal Possession of a Weapon  

Depending on the specific type of weapon possessed in a third 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 § 265.02 require a determination of possession as well as that the possession occurred knowingly, but some of them require something else that must be proved beyond a reasonable doubt.

Previous Convictions

In order for a defendant to be found guilty of a charge of Third Degree Felony Possession of a Weapon with a Previous Conviction under § 265.02(1), 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 possessed was operable; and
  • Has previously been convicted of any crime.

N.Y. P.L. §265.02(1) applies to offenses committed on or after Sept. 1, 1974. A previous conviction is considered an “aggravating element” under this statute, and must be charged in a “special information” after a conviction in the initial trial.

In order for a defendant to be found guilty of a Charge of Third Degree Felony Possession of a Weapon with a Previous Felony or a Class A Misdemeanor Conviction under § 265.02(5)(ii), 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 possessed was operable; and
  • Has previously been convicted of a felony or a Class A misdemeanor, namely, within the five years immediately preceding the commission of the offense.

N.Y. P.L. §265.02(5)(ii) applies to offenses committed on or after July 2, 1981.

Bomb, Silencer, Machine Gun, etc.

To be found guilty of a charge of Third Degree Felony Possession of a Weapon (Bomb, Silencer, machine gun etc.) under § 265.02(2), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed any explosive or incendiary bomb, bombshell, firearm silencer, machine gun or any other firearm or weapon simulating a machine gun and which is adaptable for such use firearm on or about a certain date in a specific county; and
  • Knowingly possessed any explosive or incendiary bomb, bombshell, firearm silencer, machine gun or any other firearm or weapon simulating a machine gun and which is adaptable for such use firearm on or about a certain date in a specific county.

N.Y. P.L. §265.02(2) applies to offenses committed on or after Sept. 1, 1974.

Defaced Weapon

To be found guilty of a charge of Third Degree Felony Possession of a Defaced Weapon under § 265.02(3), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed a firearm, rifle, or shotgun which had been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such weapon on or about a certain date in a specific county;
  • Knowingly possessed a firearm, rifle, or shotgun which had been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such weapon on or about a certain date in a specific county; and
  • The firearm, rifle, or shotgun was operable.

N.Y. P.L. §265.02(3) applies to offenses committed on or after Dec. 21, 2005.

Three or More Firearms

To be found guilty of a charge of Third Degree Felony Possession of a Defaced Weapon under § 265.02(5)(i), a judge or jury must find that a person, beyond a reasonable doubt:

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

N.Y. P.L. §265.02(5)(i) applies to offenses committed on or after Dec. 21, 2005.

Disguised Gun

To be found guilty of a charge of Third Degree Felony Possession of a Defaced Weapon under § 265.02(6), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed a disguised gun on or about a certain date in a specific county; and
  • Knowingly possessed a disguised gun on or about a certain date in a specific county.

A disguised gun does not need to be operable for a conviction under this statute.

N.Y. P.L. §265.02(6) applies to offenses committed on or after Nov. 1, 2000.

Assault Weapon

To be found guilty of a charge of Third Degree Felony Possession of an Assault Weapon under § 265.02(7), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed an assault weapon on or about a certain date in a specific county;
  • Knowingly possessed an assault weapon on or about a certain date in a specific county; and
  • The assault weapon was operable.

(See N.Y. P.L. §265.00(22) for the definition of assault weapons.)

N.Y. P.L. §265.02(7) applies to offenses committed on or after Nov. 1, 2000.


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Penalties for Third Degree Felony Criminal Possession of a Weapon

Criminal Possession of a Weapon under N.Y. P.L. 265.02 is a Class D felony in New York. A Class D felony is worse than a Class E felony, which is the lowest-level felony in New York, but not as severe as a Class C felony. A Class D felony is punishable upon conviction by a sentence of:

  • Up to seven years in prison, and/or
  • A fine of up to $5,000

New York law does allow for an “alternative definite sentence” for Class D felonies committed by first-time offenders, with the court given the discretion to impose a fixed term of one year or less, but only after the court regards the “nature and circumstances of the crime and … the history and character of the defendant.” (N.Y. P.L. Part 2, Title E, Article 70.00(4)). Alternative definite sentences are rare in weapons cases, especially in New York City.


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Resources Related to Third Degree Felony Criminal Possession of a Weapon

New York Penal Law, Part 3, Title P, Article 265.02 — Read the New York State laws pertaining to felony criminal possession of a weapon in the third degree.

Jury Instructions for Third Degree Felony Criminal Possession of a Weapon with a Previous Conviction — 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 weapon with a previous conviction on or after Sept. 1, 1974.

Jury Instructions for Third Degree Felony Criminal Possession of a Weapon with a Previous Felony or Class A Misdemeanor Conviction within Five Years — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a weapon with a previous felony or Class A misdemeanor conviction within five years on or after July 2, 1981.

Jury Instructions for Third Degree Felony Criminal Possession of Bomb, Silencer, or Machine Gun, etc. — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a bomb, silencer, or machine gun, etc., on or after Sept. 1, 1974.

Jury Instructions for Third Degree Felony Criminal Possession of a Defaced Weapon — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a defaced weapon on or after Dec. 21, 2005.

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

Jury Instructions for Third Degree Felony Criminal Possession of a Disguised Gun — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a disguised gun on or after Nov. 1, 2000.

Jury Instructions for Third Degree Felony Criminal Possession of an Assault Weapon — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of an assault weapon on or after Nov. 1, 2000.


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

If you were arrested in New York City for Third Degree Felony Criminal Possession of a Weapon under N.Y. P.L. § 265.02, then contact an experienced criminal defense attorney to discuss your best defense.

The skilled criminal defense attorneys at Greco Neyland, PC are experienced in defending felony weapon possession charges. We work with you to aggressively fight the charges.

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.

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