New York Criminal Lawyer Blog
Under the New York Penal Law, a person is guilty of criminal possession of a weapon in the third degree when: (1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or (2) Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or (3) Such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or (5) (i) Such person possesses three or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person’s home or place of business; or (6) Such person knowingly possesses any disguised gun; or (7) Such person possesses an assault weapon; or (8) Such person possesses a large capacity ammunition feeding device. For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufactured before September thirteenth, nineteen hundred ninety-four, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; or (9) Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section 10.00 of this chapter as part of the same criminal transaction; or (10) Such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of section 70.02 of this chapter as part of the same criminal transaction. Criminal possession of a weapon in the third degree is a class D felony.
Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can “bump up” or raise the level of your crime from a misdemeanor to a felony. The basis of this “bump up” to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.
Federal law regulates gun ownership to some degree, including placing restrictions on the ownership of certain types of firearms. The National Firearms Act (NFA), for instance, places restrictions on the sale or possession of short-barreled shotguns, machine guns, and silencers. In order to purchase one of these “NFA firearms or devices,” owners must go through an extensive background check, purchase a tax stamp for the manufacture of the firearm or device, and register the weapon with the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ NFA registry. However, it should be noted that some states, including New York and California, have prohibited the ownership of these types of firearms and devices.
States also have laws that either allow or prohibit you from openly carrying a gun in public. These are called “open carry” laws. Generally, states fall into one of four categories: Permissive Open Carry States – Allow you to carry a gun without a permit or license. Licensed Open Carry States – Allow gun owners to carry firearms openly only after they are issued a permit or license. Anomalous Open Carry States – Carrying a gun openly may be generally lawful under state law, but local governments may pass their own gun laws that are more restrictive than the state’s laws. Non-Permissive Open Carry States – Carrying a gun openly is against state law, or is legal only in limited circumstances (e.g., while hunting) or when legally used for self-defense.
If you have a prior criminal record and you have been arrested for the misdemeanor offense of Criminal Possession of a Weapon the Fourth Degree do not compound a bad situation. Not only may you be charged with a misdemeanor for possessing the alleged weapon even without the intent to use it unlawfully weapons such as metal knuckles, gravity knives and switchblades are “per se” weapons or automatically considered weapons under NY law regardless of how they are being used, but you may find yourself charged with a felony as well.
If you have been charged of criminal possession of a weapon, seek the assistance of a New York Criminal Attorney and New York Gun Crime Attorney at Stephen Bilkis and Associates.