Last Updated on: 26th July 2023, 10:54 pm

An Overview of New York Penal Law § 265.02 – Criminal Possession of a Weapon in the Third Degree

New York has strict laws regulating the possession of weapons, including firearms, knives, brass knuckles, and other dangerous instruments. Under New York Penal Law § 265.02, criminal possession of a weapon in the third degree occurs when an individual knowingly possesses any loaded firearm outside of their home or place of business. This article will examine the key aspects of this criminal statute.

The Core Elements of the Crime

For a prosecutor to obtain a conviction under PL § 265.02, they must establish these key elements beyond a reasonable doubt:

– The defendant possessed a firearm.
– The defendant knew they were in possession of the firearm.
– The firearm was loaded with ammunition.
– The defendant possessed the loaded firearm outside their home or place of business.

The crime applies to pistols, revolvers, rifles, shotguns, and any other weapon from which a shot can be discharged. Actual use or intent to use the firearm unlawfully is not required. The main issue is unlawful possession.

Penalties Under PL § 265.02

Third degree criminal possession of a weapon is classified as a Class D felony under New York law. For first-time offenders, this can mean up to 7 years in prison. Fines up to $5,000 may also be imposed.

Those convicted will have a permanent felony record, which can negatively impact many aspects of life. Obtaining employment, housing, and professional licensing may become much more difficult. Immigration status can also be jeopardized.

Available Defenses

Skilled New York criminal defense attorneys can often build strong defenses by focusing on potential weaknesses in third degree weapon possession cases, such as:

– Lack of Knowledge – The prosecution must prove knowing possession. This may be challenged if the firearm was discovered in a location where others had access.

– Temporary Lawful Possession – There are exceptions for taking unavoidable, brief possession of a weapon under some circumstances.

– Invalid Search – If the weapon was discovered through an unconstitutional search, those charges may be dropped under the exclusionary rule.

– Insufficient Evidence – Poor handling or contamination of evidence can ruin the prosecution’s case.

– Incorrect Identification – Eyewitnesses do sometimes misidentify suspects, creating reasonable doubt.

High-Profile PL § 265.02 Cases

Looking at real-world examples can shed light on how Section 265.02 charges play out:

The Nightclub Defendant

A Manhattan promoter was involved in a nightclub shooting where a weapon was drawn but not fired. Despite no shots being fired, the promoter was charged with criminal possession of a weapon under Section 265.02 since the firearm was loaded. He took a plea deal including prison time.

The Traffic Stop Suspect

After being pulled over for a routine traffic violation, a driver was found to have a loaded pistol under his seat. Though he had a permit for the weapon, it was not valid outside his home. He was arrested and charged with third-degree criminal possession.

The Apartment Visitor

Police responding to a noise complaint at an apartment building encountered an intoxicated visitor in the hallway with a loaded handgun protruding from his pocket. He was arrested and ultimately indicted on Section 265.02 charges for possessing the loaded firearm outside his home.

Frequently Asked Questions

Those arrested under PL § 265.02 will naturally have many urgent questions. Here are some common FAQs:

What if I just briefly held someone else’s gun?

Even brief possession counts as unlawful possession under the statute. But some exceptions exist for unavoidable, temporary handling of a weapon in public.

Can I negotiate a plea deal to a lesser charge?

Yes, experienced attorneys can often negotiate plea bargains for misdemeanor charges or probation to avoid felony convictions.

What if I have a valid pistol permit?

A pistol permit only allows possession of a loaded firearm at your home or business. It must still be unloaded when transporting or in public.

Can charges be enhanced to a more serious degree?

If previously convicted of a weapon crime, possession can be charged as a Class C or B felony with harsher penalties.

If you have been arrested under PL § 265.02, don’t leave anything to chance. Call the Spodek Law Group at 212-300-5196 for dedicated legal representation. Our top attorneys have successfully defended numerous weapon possession charges in NYC and throughout New York State. We have the skills and experience to aggressively challenge the prosecution’s case against you. With our strategic defense, we can give you the best chance at a full dismissal or acquittal.