Criminal Possession of a Weapon in The Second Degree NYPL §265.03
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The term “domestic violence” broadly encompasses crimes involving those in a romantic relationship, family members, or individuals sharing a household. These crimes can include stalking, harassment, assault, rape, murder, and other offenses. Victims can be spouses, partners, children, other relatives, or housemates. Although addressing domestic violence is crucial, in their eagerness to hold alleged perpetrators accountable, prosecutors do not always make accurate judgments.
Criminal Possession of a weapon in The Second Degree in New York is charged as a Class C felony and encompasses several scenarios, involving the unlawful possession of specific firearms or weapons.
Elements of Criminal Possession of a Weapon in The Second Degree in New York
To secure a conviction for criminal possession of a weapon in the second degree under NYPL §265.03, the prosecution must prove beyond a reasonable doubt that the defendant committed one of the following acts:
- With intent to use the weapon unlawfully against another person:
– Possessed a machine-gun; or
– Possessed a loaded firearm; or
– Possessed a disguised gun
- Possessed five or more firearms, regardless of intent
- Possessed any loaded firearm. However, possession of a loaded firearm in the individual’s home or place of business is generally exempt from this charge unless other specific conditions apply.
Key Definitions:
Possession – Defined under Penal Law §100.00(8), possession can be actual (physical possession) or constructive (dominion or control over the area where the weapon is found).
Firearm – As per Penal Law §265.00(3), a firearm includes pistols, revolvers, shotguns with barrels less than 18 inches, rifles with barrels less than 16 inches, weapons made from shotguns or rifles with an overall length of less than 26 inches, and assault weapons.
Machine-Gun – A weapon capable of automatically discharging multiple rounds with a single trigger pull.
Loaded-Firearm – A firearm is considered loaded if it contains ammunition or if the person possesses ammunition that can be used to discharge the firearm.
Disguised Gun – A firearm designed or altered to appear as another object, concealing its true nature
Additional Considerations
- Location-Based Exception – Possession of a loaded firearm within one’s home or place of business is generally exempt from this charge unless other specific conditions apply. This exception acknowledges an individual’s right to possess a loaded firearm for self-defense in these locations.
- Operability – The firearm must be operable, meaning it is capable of discharging ammunition. However, the defendant’s knowledge of the firearm’s operability is not a requisite for possession charges.
Careful consideration of these elements is essential for evaluating potential defenses. Careful consideration is also essential in the application of the statute to specific circumstances. Each element must be proven beyond a reasonable doubt by the prosecution to secure a conviction under NYPL § 265.03
Possible Legal Defenses
Individuals charged with Criminal Possession of a Weapon in the Second Degree may consider several legal defenses, including:
- Unlawful Search and Seizure – Challenging the legality of the search that led to the discovery of the weapon, potentially resulting in suppression of the evidence if the search violated Fourth Amendment Rights.
- Temporary and Lawful Possession – Claiming that the possession was temporary and with the intent to surrender the weapon to authorities.
- Possession in Home or Place of Business – Asserting that the loaded firearm was possessed within the defendant’s home or place of business, which may exempt them from certain charges under this statute.
Legal Defense |
Description |
|
Unlawful Search & Seizure |
Challenge the search’s legibility; evidence may be suppressed if Fourth Amendment rights are violated |
|
Temporary & Lawful Possession |
Argue that possession was brief with the intent to surrender the weapon |
|
Possession in Home/Business |
Assert the weapon was kept in a private space, potentially exempting the defendant from some charges |
Penalties
Individuals charged with Criminal Possession of a Weapon in the Second Degree may consider several legal defenses, including:
- Unlawful Search and Seizure – Challenging the legality of the search that led to the discovery of the weapon, potentially resulting in suppression of the evidence if the search violated Fourth Amendment Rights.
- Temporary and Lawful Possession – Claiming that the possession was temporary and with the intent to surrender the weapon to authorities.
- Possession in Home or Place of Business – Asserting that the loaded firearm was possessed within the defendant’s home or place of business, which may exempt them from certain charges under this statute.
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