Weapon possession charges in New York are graded by degree. The degree depends on what was found, whether a firearm was loaded, where it was found, and the person’s record. The same arrest can be charged very differently depending on those details. This page explains, in plain language, how New York’s Penal Law defines the main possession charges, what “possession” means, and the kinds of issues a defense lawyer looks at.

Arrested, or have a family member in custody? Call (917) 997-8873. The office is available 24/7.

What does “possess” mean under New York law?

New York defines “possess” as “to have physical possession or otherwise to exercise dominion or control over tangible property” (Penal Law § 10.00(8)). So possession can be actual (on your person) or based on control over the place or thing where the item was found. Whether the evidence shows that control is often a central question in the case.

A firearm is “loaded” under the Penal Law if it is loaded with ammunition, or if the person possessing it at the same time possesses ammunition that can be used to fire it (Penal Law § 265.00(15)). The ammunition does not have to be in the gun.

What about a gun found in a car?

New York has a statutory presumption. A firearm or certain other weapons found in a car (other than a stolen car or a public bus) is “presumptive evidence” of possession by everyone in the car. There are exceptions: if the weapon is found on one person’s body; for a licensed for-hire driver working in the proper course of the job; and for a pistol or revolver when an occupant who is not under duress has a valid license to carry it concealed (Penal Law § 265.15(3)). A presumption is evidence the jury may consider. It is not an automatic conviction, and how it applies depends on the facts.

The main possession charges, from least to most serious

Criminal possession of a weapon in the fourth degree (Penal Law § 265.01), class A misdemeanor

This covers, among other things, possessing any firearm or certain listed weapons such as an electronic stun gun, switchblade knife or metal knuckles (§ 265.01(1)), and possessing a dagger, dangerous knife or other dangerous instrument with intent to use it unlawfully against another (§ 265.01(2)). Other subdivisions cover specific situations, such as a person with certain prior convictions possessing a rifle or shotgun (§ 265.01(4)).

Criminal possession of a firearm (Penal Law § 265.01-b), class E felony

A person commits this crime when they “possess any firearm” (§ 265.01-b(1)), or when they lawfully possessed certain firearms before 2013 and knowingly failed to register them as required (§ 265.01-b(2)).

Criminal possession of a weapon in the third degree (Penal Law § 265.02), class D felony

This charge has several different subdivisions. They include:

  • committing CPW 4th under § 265.01(1), (2), (3) or (5) after a previous conviction of any crime (§ 265.02(1));
  • possessing an explosive, a firearm silencer or a machine-gun (§ 265.02(2));
  • knowingly possessing a firearm, rifle or shotgun that has been defaced to conceal it or hide its identity (§ 265.02(3));
  • possessing three or more firearms (§ 265.02(5)(i));
  • possessing a firearm, outside one’s home or place of business, after a felony or class A misdemeanor conviction within the previous five years (§ 265.02(5)(ii));
  • knowingly possessing a disguised gun (§ 265.02(6)), an assault weapon (§ 265.02(7)) or a large-capacity ammunition feeding device (§ 265.02(8)); and
  • possessing an unloaded firearm while also committing a drug-trafficking felony or a violent felony as part of the same transaction (§ 265.02(9) through (10)).

Subdivisions 5, 6, 7, 8, 9 and 10 are classified as class D violent felony offenses (Penal Law § 70.02(1)(c)).

Criminal possession of a weapon in the second degree (Penal Law § 265.03), class C felony

CPW 2nd applies when a person:

  • possesses a machine-gun, loaded firearm or disguised gun with intent to use it unlawfully against another (§ 265.03(1));
  • possesses five or more firearms (§ 265.03(2)); or
  • possesses any loaded firearm (§ 265.03(3)). Under this subdivision, possession in the person’s own home or place of business is not a violation, unless § 265.02(1) or (7) applies.

CPW 2nd is a class C violent felony offense (Penal Law § 70.02(1)(b)). For a first felony offender, a conviction for CPW 2nd requires a determinate prison sentence of 3.5 to 15 years (Penal Law §§ 60.05(4), 70.02(2)(a), 70.02(3)(b)).

Does a license matter?

Yes. The possession statutes above do not apply to possessing a pistol or revolver by a person who holds a license for it issued under Penal Law § 400.00 or § 400.01 (Penal Law § 265.20(a)(3)). The details of the license, and whether it covers the weapon and the situation, matter.

Can bail be set on a gun charge?

It depends on the exact charge. Violent felonies listed in Penal Law § 70.02 are generally “qualifying offenses” for bail purposes, with certain exceptions. CPW 3rd under § 265.02(3) is also listed specifically (CPL § 510.10(4)(a), (u)). A charge of criminal possession of a firearm (§ 265.01-b) can become a qualifying offense if it was allegedly committed while the person was released on another pending case (CPL § 510.10(4)(t)).

A felony charge, including criminal possession of a firearm, can also qualify if it was allegedly committed while the person was on probation or post-release supervision (CPL § 510.10(4)(r)), or if the person qualifies for sentencing as a persistent felony offender (CPL § 510.10(4)(s)).

For how bail hearings and reductions work, see our page on bail hearings and bail reduction in Brooklyn.

Common defense issues in weapon cases

Every case is different, and no defense works in every case. Issues a defense lawyer commonly examines include:

  • How the item was found. A defendant may move to suppress tangible property obtained through an unlawful search and seizure, statements that were involuntarily made, and evidence derived from them (CPL § 710.20(1), (3), (4)).
  • Deadlines and hearings. Suppression motions generally must be made within the pre-trial motion period, 45 days after arraignment, subject to exceptions (CPL §§ 255.20(1), 710.40(1) through (2)). The motion must be in writing with sworn allegations of fact. If it isn’t decided on the papers, the court holds a hearing and makes findings of fact (CPL § 710.60(1), (4)).
  • Possession. Whether the evidence actually shows physical possession or dominion and control (Penal Law § 10.00(8)), and whether the car presumption applies or an exception fits (Penal Law § 265.15(3)).
  • The degree charged. Whether the facts support the specific subdivision, for example whether a firearm was “loaded” as defined (§ 265.00(15)) or whether the home or place-of-business provision in § 265.03(3) applies.
  • Licensing. Whether an exemption under Penal Law § 265.20 applies.

Related pages

Talk to a Brooklyn criminal defense lawyer

If you or someone close to you has been charged with a weapon offense in Brooklyn, speak with a lawyer before talking about the case with anyone else. Michael Chessa is a former Assistant District Attorney with the Kings County District Attorney’s Office. The Law Offices of Michael Chessa PLLC is at 44 Court Street, Suite 1217, Brooklyn, NY 11201. Call (917) 997-8873 for a free initial consultation, or use the contact form.

Attorney Advertising. Prior results do not guarantee a similar outcome. This page is general information about New York law, not legal advice. Reading it or contacting the office does not create an attorney-client relationship. Every case depends on its own facts.

Citations

Official text checked at nysenate.gov: