There are four distinct and separate charges for criminal possession of a weapon in New York. The most serious is Criminal Possession of a Weapon in the Second Degree (NY Penal Law § 265.03). This crime is unique because it does not involve possessing a weapon such as a razor or switchblade. To be charged with this offense, a person must have a gun or firearm.
Defining Criminal Possession of a Weapon: Second Degree
Under § 265.03, it is against the law to possess a loaded firearm, a machine gun, or five or more firearms. It is also illegal to have a disguised firearm with the intent to use it in an unlawful manner.
The Gun Does Not Have to be Loaded
It is essential to know that New York law states that a loaded firearm does not mean the clip has to be in the gun or the bullet in the chamber. If the firearm can be loaded, you can still be charged. For example, if an individual has an unloaded firearm with bullets in his or her pocket, the individual could still face criminal charges.
Defending Charges of Second Degree Criminal Possession of a Weapon
It is a defense to criminal possession of a weapon in the second degree if the loaded weapon or firearm was in the home or business of the individual accused.
Another possible defense arises from the illegal search and seizure of the weapon. For instance, if a police officer finds a loaded firearm in your possession during a traffic stop, then the police must show that there was probable cause to make the stop in order to justify the search. Any traffic stop that resulted in criminal possession of a weapon in the second-degree charge would be inadmissible if a defense attorney could prove that the stop was unlawful.
Penalties for a Criminal Possession of a Weapon in the Second Degree Conviction
Since Criminal Possession of a Weapon in the Second Degree is a class C felony, a conviction could result in a prison sentence of up to 15 years. As a violent felony offense, there is a three-year minimum prison sentence. It must be noted that probation is not an option, even when the individual has no prior criminal record.
Why You Need a Criminal Defense Attorney
It is important to contact an attorney as soon as possible and not make any statements if you are arrested or charged with criminal possession of a weapon in the second degree. This is especially true given that a conviction carries a mandatory prison sentence. An experienced criminal defense attorney can answer your questions and develop the best plan to defend your case.
Stephen J. Riebling, Jr. and Marcia Payton are criminal defense attorneys at Riebling & Payton, PLLC, located in Westchester County, NY. They have defended numerous clients charged with Criminal Possession of a Weapon and related crimes. To learn more about them, the firm, and their approach, please visit Riebling & Payton, PLLC at www.RieblingPaytonLaw.com.