Criminal Possession Of A Firearm In The Second Degree: NY Penal Law § 265.03

by ECL Writer
Washington State New Gun Law

Criminal Possession of a Firearm in the Second Degree is a serious criminal offense in New York State. It is a felony offense that carries harsh penalties, including significant fines and potential prison time. In this article, Eastcoastlaws.com will explore the various elements that constitute the Criminal Possession of a Firearm in the Second Degree in New York, the potential penalties for a conviction, and the legal defenses that a person may use to fight these charges. We will also examine some of the factors that can influence the severity of the charges and penalties, including the type of firearm involved, the offender’s prior criminal history, and the specific circumstances of the alleged offense. If you or someone you know is facing charges of Criminal Possession of a Firearm in the Second Degree in New York, it is critical to understand the charges and penalties fully and to seek the advice of an experienced criminal defense attorney.

Criminal Possession of a Weapon in the Second Degree, as defined by New York Penal Code 265.03, is one of the least lenient and most strictly enforced criminal offenses. An arrest in New York City or anywhere in the Hudson Valley, often known as “CPW 2,” might have disastrous effects. Don’t be misled. In their pursuit of this felony and all other New York weapon crimes, the police and district attorneys can be, and frequently are, brutal.

Understanding And Element Criminal Possession Of A Firearm In The Second Degree

When you have a loaded firearm—a pistol, revolver, handgun, etc.—outside your residence or place of business without a permit or license, you are in violation of Penal Code 265.03(3). It’s not necessary to fire the gun or wave it around. No distinction is made under the law for this specific offense based on how the revolver is allegedly being used or the specifics of the facts, including whether it is physically loaded or whether the ammunition is close.

Pay special attention to the following before discussing the components of illegally possessing a loaded firearm. Barring a very unusual exception, you are liable to PL 265.03 and the severe punishment provisions if you hold a permit from another state but possess that revolver or pistol in New York City or State without the required permit in this jurisdiction. You may have been ignorant of the SAFE Act or the law when you came to see family here, but it doesn’t make you any less responsible in the eyes of the law.

Practically speaking, it makes little difference if you bought your gun off the street or were detained by the Port Authority Police Department when you attempted to declare your out-of-state revolver before boarding your flight home at JFK or LaGuardia Airport. Simply said, gun arrests in NYC airports are no different from those in public.

Penalties For Criminal Possession Of A Firearm In The Second Degree In New York

The law is very obvious, and you should comprehend it. If you are found guilty of this serious class “C” felony, the sentencing judge in the New York City Supreme Court or an upstate County Court may sentence you to fifteen years in prison. A non-discretionary three-and-a-half-year sentence is a minimum allowed by law. The most terrifying repercussion of a PL 265.03 conviction is that it thinks you had no prior criminal history at all prior to your arrest for Second Degree Criminal Possession of a Weapon. If you have a prior felony conviction, your minimum sentence will be five or seven years in prison, depending on the circumstances.

Related Offenses And Collateral Issues

Criminal Possession of a Weapon in the First, Third, or Fourth Degrees, as well as other weapons offenses with their own distinct features and requirements, are closely related to CPW 2, which is a weapon offense. Keep in mind that if you are a legal resident or have a visa, a conviction for this offense will put you in jeopardy. For immigration purposes, the US government may classify it as a crime of moral turpitude and, clearly, a firearm offense. Of course, if you work in the legal, financial, medical, or any other industry, this does not take into account what can happen to your professional license and certifications.

Defenses For Criminal Possession Of A Firearm In The Second Degree In New York

Do not hesitate. A CPW 2 charge may be terrifying, but that in no way implies that everything is gone. Does your New York gun attorney have justification to stop the search of your person or car? Perhaps the NYPD illegally recorded your statement? Is the weapon in fact functional? Can you, at the very least, moderate your behavior and exposure? In the end, it is crucial to investigate every available defense because your career, livelihood, and freedom are all on the line.

In New York State, Criminal Possession of a Firearm in the Second Degree is a serious crime. This offense occurs when someone possesses a loaded firearm with the intent to use it unlawfully against another person, or they have a previous criminal conviction that prohibits them from owning a gun. However, there are some defenses that can be used in such cases.

One of the most common defenses is mistaken identity. This means that the defendant argues that they were not the person who possessed the firearm in question. They may claim that they were misidentified by a witness or that the police officer who arrested them made a mistake.

Another defense is a lack of knowledge or intent. The defendant may argue that they did not know that they were in possession of a firearm or that they did not intend to use it unlawfully against another person. For example, they may have been carrying the firearm for self-defense purposes or found it in a public place and picked it up.

A third defense is an entrapment. This means that the defendant was induced or coerced by law enforcement to commit the crime, and they would not have done so otherwise.

In some cases, the defense may argue that the search and seizure of the firearm violated the defendant’s Fourth Amendment rights. If the firearm was obtained illegally, the evidence may be suppressed and the charges dismissed.

If you are facing charges for Criminal Possession of a Firearm in the Second Degree in New York, it is important to speak with an experienced criminal defense attorney who can review your case and determine the best defense strategy for your situation.

Difference Between Criminal Possession Of A Firearm In The Second Degree And Other Firearm Offenses In New York

In New York, there are several firearm offenses, and Criminal Possession of a Firearm in the Second Degree is one of them. Here are some differences between this offense and other firearm offenses in New York:

  • Criminal Possession of a Firearm in the Third Degree: This offense occurs when someone possesses a firearm and has been convicted of a felony, serious offense, or juvenile delinquency act that would have been a felony if committed by an adult. The key difference between this offense and Criminal Possession of a Firearm in the Second Degree is that the latter requires that the firearm be loaded and the person possesses it with the intent to use it unlawfully against another person.
  • Criminal Use of a Firearm in the Second Degree: This offense occurs when someone possesses a firearm and uses it unlawfully against another person. The key difference between this offense and Criminal Possession of a Firearm in the Second Degree is that the latter only requires possession with the intent to use the firearm unlawfully, whereas Criminal Use of a Firearm in the Second Degree requires the actual use of the firearm.
  • Criminal Possession of a Weapon in the Fourth Degree: This offense is a catch-all provision that covers possession of any weapon, not just firearms. It includes possession of a firearm with an expired license, possession of a firearm on school grounds, and other similar offenses. The key difference between this offense and Criminal Possession of a Firearm in the Second Degree is that the latter is a more serious offense, carrying a higher penalty, and requires the possession of a loaded firearm with the intent to use it unlawfully against another person.

Criminal Possession of a Firearm in the Second Degree is a specific type of firearm offense that involves possession of a loaded firearm with the intent to use it unlawfully against another person, while other firearm offenses cover a wider range of situations involving firearms and other weapons.

Challenges In Defending Against Criminal Possession Of A Firearm In The Second Degree In New York

Defending against Criminal Possession of a Firearm in the Second Degree in New York can be challenging due to the seriousness of the offense and the strict gun laws in the state. Here are some challenges that defense attorneys may face in such cases:

  • Strict Gun Laws: New York has some of the strictest gun laws in the country, which can make it difficult to defend against firearm offenses. The possession of a loaded firearm is illegal in most circumstances, and the penalties for this offense can be severe.
  • Evidence: In many cases, the prosecution may have strong evidence against the defendant, such as eyewitness testimony, physical evidence, or video evidence. This evidence can be difficult to refute, especially if it shows the defendant in possession of the firearm with the intent to use it unlawfully.
  • Prior Criminal Record: If the defendant has a prior criminal record, especially one that includes firearm offenses, this can be used against them in court and make it harder to defend against the current charge.
  • Jury Bias: Gun-related crimes can be highly emotive, and jurors may have preconceived notions about the defendant and the offense. This can make it challenging to present a strong defense and convince the jury to acquit the defendant.
  • Plea Bargaining: Due to the seriousness of the offense, prosecutors may be reluctant to offer a plea bargain, which can limit the options available to the defense.

Role Of A Criminal Defense Attorney In Criminal Possession Of A Firearm In The Second Degree Cases In New York

A criminal defense attorney plays a crucial role in criminal possession of a firearm in second-degree cases in New York. Here are some of the key roles and responsibilities of a criminal defense attorney in such cases:

  • Reviewing the Evidence: The defense attorney will review all of the evidence presented by the prosecution, including witness statements, physical evidence, and any video or audio recordings. They will analyze the evidence to determine if it was obtained legally and if there are any weaknesses or inconsistencies that can be used in the defense.
  • Identifying Potential Defenses: Based on their analysis of the evidence, the defense attorney will identify potential defenses that can be used in the case. This may include mistaken identity, lack of knowledge or intent, entrapment, or violation of the defendant’s Fourth Amendment rights.
  • Building a Defense Strategy: Once the potential defenses have been identified, the defense attorney will work with the defendant to build a defense strategy. This may include preparing witnesses, filing pre-trial motions, and negotiating with the prosecution for a plea bargain.
  • Representing the Defendant in Court: The defense attorney will represent the defendant in court, arguing on their behalf and cross-examining the prosecution’s witnesses. They will also object to any evidence or testimony that is inadmissible or prejudicial.
  • Advocating for the Defendant’s Rights: Throughout the case, the defense attorney will advocate for the defendant’s rights, including the right to a fair trial, the right to remain silent, and the right to be free from unreasonable searches and seizures.
  • Negotiating a Plea Deal: If the evidence against the defendant is strong, the defense attorney may negotiate a plea deal with the prosecution to reduce the charges or the sentence.

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