Criminal Possession of a Weapon - Third Degree

NEW YORK PENAL LAW SECTION 265.02 - CRIMINAL POSSESSION OF A WEAPON IN THE 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.

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 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.

Other Issues to Think About

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 at (212) 581-1001 to speak to us about your case today.