Criminal Possession of a Weapon in New York City – Third Degree
Criminal Possession of a Weapon in the Third Degree is a serious felony offense in New York. There are numerous provisions in New York Penal Law section 265.02 under which a person can be charged with this crime, and several of those provisions are complicated or are contingent on a person’s criminal history. The following are some of the most common offenses charged in New York:
The “Bump-Up” Rule
Of the many different factual allegations which can lead to a person being charged with Criminal Possession of a Weapon in the Third Degree, one of the most common in New York is the “bump-up” rule. Under New York Penal Law § 265.02(1), if a person commits the crime of Criminal Possession of a Weapon in the Fourth Degree, and has any criminal conviction on their record, then instead of being charged with solely with Criminal Possession in the Fourth Degree, a class A misdemeanor – punishable by up to one year, the prosecution can bump-up the charge to Criminal Possession of a Weapon in the Third Degree, which is a class D felony, with a maximum prison sentence of seven years.
The requirement that a person have a conviction on their record does not need to be related to a weapons charge. Any misdemeanor or felony conviction can be used as a justification for a bump-up.
A fourth-degree weapon possession charge can arise under a variety of circumstances and involve the handling of many different types of weapons. The New York Penal Law § 265.01 prohibits a person from possessing any of the following:
- A firearm
- An electronic dart gun or stun gun
- A switchblade, pilum ballistic knife, or metal knuckle knife
- A cane sword
- A billy, bludgeon, or chuka stick
- A blackjack
- Plastic or metal knuckles
- A sand bag or sandclub
- A wrist-brace slingshot or slungshot
- A shuriken or throwing star
It is also illegal to possess dangerous or deadly instruments and weapons with the intent to use them unlawfully against another person. Examples of these items include daggers, dirks, machetes, razors, stilettos, imitation pistols, and undetectable knives.
Other circumstances where a person handling a weapon could face criminal charges for fourth-degree weapon possession in New York City are when a person has a prior felony conviction, is not a U.S. citizen, or has been certified as not suitable to possess a rifle.
Defaced or Filed Serial Number Guns
Under New York law, if a person unlawfully possesses a firearm, they can be charged with Criminal Possession of a Firearm, New York Penal Law § 265.01-b, a class E felony. However, if that gun has been defaced, filed, or scratched in an attempt to conceal the serial number, or any other identifying part of the gun, then the prosecutor can charge the more serious Criminal Possession of a Weapon in the Third Degree – again, punishable by up to seven years in prison.
Possession of Multiple Guns or Qualifying Conviction with Gun Outside Home or Place of Business
A person can be charged with Criminal Possession of a Weapon in the Third Degree if they possess three or more firearms. Alternatively, if a person is found in possession of a gun outside of their home or place of business, and has been convicted of a felony or a Class A misdemeanor offense within five years of the current offense date, that person can be charged with Criminal Possession of a Weapon in the Third Degree.
Handling Certain Types of Weapons in New York City
New York also prohibits the possession of certain types of weapons and criminalizes this conduct as a third-degree charge. For example, a person cannot knowingly possess a disguised gun nor can they possess any of the following items:
- An assault weapon
- A large capacity ammunition feeding device
- A machine gun
- A weapon that simulates or can adapt to a machine gun
- An explosive or incendiary bomb
- A bombshell
- A firearm silencer
Owning and possessing these types of weapons implies a certain intent for their purpose, which is why New York classifies them as a felony offense.
Possessing an Unloaded Firearm While Committing Another Crime
Carrying an unloaded firearm is also a separate third-degree weapon possession charge when committing other crimes. This rule can apply when a person commits a drug trafficking felony or a violent felony offense. Examples of violent felony offenses include arson, manslaughter, rape, kidnapping, burglary, and robbery among others.
Know Your Rights During a Police Stop or Arrest Involving Criminal Possession of a Weapon
You have the right to the presence of an attorney when New York City police stop, detain, question, or arrest you. A criminal defense lawyer can help a person avoid making incriminating statements and protect against law enforcement’s attempts to misconstrue a person’s communications. Many weapon possession charges under the New York Penal Law require a defendant to have a certain knowledge or intent in their handling of a gun or another type of weapon. Prosecutors often rely on a person’s statements or other circumstances to establish these elements and obtain a conviction. You can demand an opportunity to contact your lawyer and refrain from further communication until they are present.
Other Issues to Think About in Defending Against Charges for Criminal Third-Degree Possession of a Weapon in New York City
There are multiple other charges under this section of the New York Penal Law, and prosecutors in New York are especially attuned to cases involving weapons, especially firearms, or any case that comes in when a person already has a criminal history. The gun laws in New York are very nuanced and the penalties are harsh.
Recently, evidence collection teams have begun collecting DNA from every single gun arrest defendant in New York City. DNA evidence, or even the lack thereof, can often be a damaging – or helpful – tool both in negotiating a plea bargain or even at trial.
If you are charged with a weapons possession crime it is important that you have an attorney who has a deep understanding of all these laws and who can maneuver through the exceptions and applicable defenses for you. The New York weapons and firearms attorneys the Law Offices of Jeffrey Lichtman are well versed and knowledgeable in how DNA can be taken from a gun and how easily the process can be tainted. Call today to speak to us about your case today.