Understanding the Difference Between Second Degree Criminal Possession of a Weapon and Criminal Possession of a Firearm

New York State has numerous laws and crimes regulating the use and possession of firearms and other weapons. Whether one is supportive of these statutes such as the Safe Act or not, these laws are some of the most rigid and strict in the nation. While they are all codified in New York Penal Law Article 265, the crimes vary from class “A” misdemeanors to class “B” felonies. There is little dispute that the most common of these offenses is Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(1). However, the types of per se objects that qualify as weapons, including gravity and switchblade knives, may be serious, but not as significant as their firearm related brethren. Of these crimes, those likely prosecuted the most in New York City and at both LaGuardia and JFK Airport in Queens are Second Degree Criminal Possession of a Weapon, New York Penal Law 265.03, and Criminal Possession of a Firearm, New York Penal Law 265.01-b. With that in mind, this blog entry addresses some of the most significant differences between two crimes that are somewhat similar and regularly prosecuted, but drastically different in their potential sentence and punishment upon a conviction.

As a preliminary matter, it is critical to recognize that both PL 265.03 and PL 265.01-b are felonies and as such, each will have the negative and adverse consequences of a felony conviction. Outside of the statutory elements of each offense, however, while they are both felonies the former crime of Criminal Possession of a Weapon in the Second Degree is a class “C” violent felony while the latter crime of Criminal Possession of a Firearm is a class “E” non-violent felony. In practical terms, upon conviction of PL 265.03, a first time offender would face a minimum of three and one half years in prison with a maximum of fifteen years of incarceration. A conviction for PL 265.01-b carries a much lesser punishment that has no mandatory minimum, but a maximum of one and one third to four years in prison.

Putting aside sentences and whether a crime is a statutorily defined “violent offense,” the offenses are distinct. In substance, if you possess an unlicensed firearm outside your home and place of business, and that gun or pistol is loaded, then you have committed Second Degree Criminal Possession of a Weapon. This is true even if you are checking your firearm at JFK or LaGuardia and the bullets are within the case, but not physically in that firearm. In the event that you possess an unlicensed firearm that is not loaded whether by law or physically, then the offense is Criminal Possession of a Firearm. Obviously, the major distinction between the offenses is whether the firearm is loaded.

There are numerous other crimes that involve firearms. For example, if a weapon is defaced or you had the intent to use it unlawfully against another person. While they are not as commonly charged or prosecuted as PL 265.03 and PL 265.01-b, they are worth review. Regardless, if you are visiting New York City or New York State, be smart and recognize ignorance of the law is no defense. If you posses a firearm in New York that is unlicensed in the in this state or whatever jurisdiction you are possessing it within New York, irrespective if you lawfully possess it elsewhere, you have run afoul of a life altering crime that can land you in prison with an indelible criminal record.

To learn more about New York weapon and firearm crimes, review Saland Law PC’s New York Weapon and Firearm information page. There, as well as throughout this blog, you will find materials on these offense, legal decisions, cases results and other relevant content.

Saland Law PC is a New York criminal defense firm established by two former Manhattan prosecutors. The New York criminal defense attorneys and weapon crime lawyers at Saland Law PC represent clients throughout the New York City region and suburban municipalities.


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