NY Criminal Defense – Criminal Possession of a Weapon: Elevating NY Penal Law 265.01 to 265.02

Criminal Possession of a Weapon in the Third Degree, a “D” Felony punishable by up to seven years, can be established by merely proving a defendant possessed an assault weapon, a disguised gun, or twenty or more firearms. However, experienced New York criminal defense attorneys know that prosecutors have another tool in the criminal law that enables them to “elevate” weapon charges from misdemeanors to felonies.

Pursuant to Criminal Possession of a Weapon in the Third Degree, Penal Law 265.02(1), a person is guilty of this crime when he commits the crime of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01(1),(2),(3) or (5) and has previously been convicted of any crime. That’s right…any crime regardless of how long ago it was. So, for example, if you were previously convicted of possessing a switchblade 15 years ago and you were arrested for possessing a switchblade again, the prosecution would have the ability to present your case to the Grand Jury as a felony.

Well, what if you recently pleaded guilty to a crime, but you have not been sentenced when you are arrested for possessing that switchblade? Does this plea without a sentence equate to a previous conviction for the purpose of this statute?

As a general rule, when someone is deemed a predicate felon (a prior felony offense that will elevate a current felony offense) they must have been sentenced on the prior case (within the past 10 years) before their arrest on the new case. See People v. Morse.

This past June, however, the Court of Appeals upheld a felony conviction for Criminal Possession in the Third Degree, Penal Law 265.02(1), where the defendant had pleaded to an assault and had yet to be sentenced. Prior to his sentence he was re-arrested and indicted for swinging a machete at another individual. Rejecting the defendant’s argument that one must be sentenced before they are deemed to be convicted, the Court of Appeals stated that “[s]ection 265.02 seems to embody the Legislature’s judgment that an illegal weapon is more dangerous in the hands of a convicted criminal than in possession of a novice…regardless of whether sentence has yet been imposed for the prior crime.” See People v. Montilla.

Make no mistake, while one must be sentenced on a prior crime before being found to be a “predicate felon” for the purpose of elevating the new felony crime, where the crime charged is a misdemeanor Criminal Possession of a Weapon, the defendant need not be sentence to raise the crime from a misdemeanor to a felony. Obviously, the level of exposure increases significantly with the felony charge. Therefore, retain an experienced and skilled criminal defense attorney to advocate for your rights and get you where you need to be.

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