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Criminal Possession of a Weapon (First Degree)

Stockpiling 10 or more illegal weapons or possessing an explosive substance with the intent to use it unlawfully will result in the most serious gun charges that can be made by the State of New York, whether or not any of the weapons are used.

These crimes are charged as felony first-degree criminal possession of a weapon (also known as CPW 1) in New York under N.Y. Penal Law 265.04. A charge under this statute is a Class B felony, with penalties upon conviction of between five to 25 years in prison and a fine of up to $5,000.

Attorney for First Degree Felony Criminal Possession of a Weapon in Manhattan

If you were arrested for first-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 to your case.

At Greco Neyland, PC, we represent people arrested on felony criminal weapons charges. We take the time to investigate the charges and help you mount an aggressive defense.

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 to fight for the best possible result. 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 First Degree Felony Criminal Possession of a Weapon in New York City


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Types of First Degree Felony Criminal Possession of a Weapon

New York Penal Law, Part 3, Title P, Article 265.04 states that a person is guilty of Felony Criminal Possession of a Weapon in the First Degree when that person:

  • Possesses any explosive substance with an intent to use it against the person or property of another (N.Y. P.L. § 265.04(1)); or
  • Possesses 10 or more firearms (N.Y. P.L. § 265.04(2)).

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 or more firearms is a first-degree felony.


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Definitions of Terms Related to First 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 the legal definition of firearm.

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 or explosive substance, such as a firearm or explosive substance 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 § 265.04(1)).

Possession of an explosive substance is presumptive evidence of possessing such explosive substance with intent to use it unlawfully against the person or property of another if such person is not licensed or otherwise authorized to possess such substance. Therefore, a judge or jury may, but is not required to, infer that the defendant possessed the substance with the intent to use it unlawfully against the person or property of another. (See N.Y. P.L. § 265.15(4)).

A “firearm” 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 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.


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Elements of First Degree Felony Criminal Possession of a Weapon  

Both of the offenses under § 265.04 require a judge or jury to determine whether possession occurred and whether the possession occurred knowingly. But each offense has additional elements that must be proven beyond a reasonable doubt before a conviction can occur. 

Possession of Any Explosive Substance with Intent to Use It against the Person or Property of Another

In order for a defendant to be found guilty of a charge of First Degree Felony Possession of any explosive substance with intent to use it against the person or property of another under N.Y. P.L. 265.04(1), a judge or jury must find that a person, beyond a reasonable doubt, committed the following elements:

  • Possessed an explosive substance on or about a certain date in a specific county;
  • Knowingly possessed an explosive substance on or about a certain date in a specific county; and
  • Knowingly possessed an explosive substance on or about a certain date in a specific county with the intent to use it against the person or property of another.

N.Y. P.L. §§265.04(1) applies to offenses committed on or after Sept. 1, 1974. This section of the statute was amended effective Dec. 21, 2005, but the definition of the crime was not amended.

Possession of 10 or More Firearms

To be found guilty of a charge of Second Degree Felony Possession of a 10 or More Weapons under § 265.04(2), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed 10 or more firearms on or about a certain date in a specific county;
  • Knowingly possessed 10 or more firearms on or about a certain date in a specific county; and
  • Ten or more of the firearms were operable.

N.Y. P.L. §265.04(2) applies to offenses committed on or after Sept. 1, 1974. This section of the statute was amended effective Dec. 21, 2005 to refer to possession of a “weapon” rather than a “dangerous weapon,” but the definition of the crime was not amended.

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

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Penalties for First Degree Felony Criminal Possession of a Weapon

Criminal Possession of a Weapon under N.Y. P.L. 265.04 is a Class B felony in New York. A Class B felony is punishable upon conviction by a sentence of:

  • Five to 25 years in prison; and/or
  • A fine of up to $5,000.

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Resources Related to First Degree Felony Criminal Possession of a Weapon

New York Penal Law, Part 3, Title P, Article 265.04 — Read the New York State laws pertaining to felony criminal possession of a weapon in the first degree.

Jury Instructions for First Degree Felony Criminal Possession of Any Explosive Substance with the Intent to Use It against the Person or Property of Another — Visit the New York State Unified Court System to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of any explosive substance with the intent to use it against the person or property of another on or after Sept. 1, 1974.

Jury Instructions for First Degree Felony Criminal Possession of 10 or More Firearms — Visit the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of 10 or more firearms on or after Sept. 1, 1974.


Attorneys for First Degree Felony Criminal Possession of a Weapon in New York City

If you were arrested in New York City for First Degree Felony Criminal Possession of a Weapon under N.Y. P.L. § 265.04, then 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 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 case.

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