NY Criminal Possession of a Weapon: All Degrees

New York Penal Law Article 265 defines a tiered system of criminal weapon possession offenses. The four degrees of criminal possession of a weapon represent escalating levels of severity, each carrying progressively harsher penalties.^[1] Understanding the distinctions between these degrees is critical for anyone who possesses, carries, or transports firearms or other regulated weapons in New York.

Fourth Degree: PL 265.01 (Class A Misdemeanor)

Criminal possession of a weapon in the fourth degree under PL 265.01 is the lowest-level weapon possession charge in New York. It is classified as a Class A misdemeanor, carrying a maximum sentence of up to one year in jail.^[2] A person is guilty of this offense when he or she possesses any firearm (without the aggravating factors needed for higher charges), electronic dart gun, electronic stun gun, switchblade knife, gravity knife, billy, blackjack, bludgeon, metal knuckles, chuka stick, or other enumerated weapons.^[3]

Fourth-degree charges also apply when a person possesses a dangerous knife, dagger, dirk, machete, razor, stiletto, or imitation pistol with the intent to use it unlawfully against another. Additionally, this degree covers possession of a rifle, shotgun, or antique firearm by a person previously convicted of a felony or serious offense. Ghost gun possession (unserialized firearms, frames, or receivers) is also charged as a fourth-degree offense under subdivision 9.^[4]

Because fourth-degree charges are misdemeanors, courts may impose alternatives to incarceration such as conditional discharge, probation, or community service, depending on the circumstances and the defendant's criminal history.

Third Degree: PL 265.02 (Class D Felony)

Criminal possession of a weapon in the third degree under PL 265.02 is a Class D felony. However, not all subdivisions carry the same sentencing exposure — the statute distinguishes between violent and non-violent felony subdivisions:^[5]

Subdivisions 1-3 (non-violent Class D felony): These subdivisions cover prior-conviction-plus-weapon combinations and are classified as non-violent felonies. They carry an indeterminate sentence with no mandatory minimum — courts may impose probation, a conditional discharge, or a prison term.
Subdivisions 5, 7, 8, 9, and 10 (Class D violent felony): These subdivisions — covering aggravated possession scenarios such as possessing a defaced firearm, three or more firearms, a firearm with a prior felony, an assault weapon, or a large-capacity feeding device — are classified as violent felonies under PL 70.02. They carry a determinate sentence of two to seven years with a mandatory minimum of two years; probation-only sentences are not available.

This charge represents a significant escalation from fourth-degree possession and applies in several distinct scenarios:

The person commits a fourth-degree weapon offense and has a prior conviction for any crime.
The person possesses an explosive or incendiary bomb, firearm silencer, or machine gun.
The person knowingly possesses a defaced firearm (serial number altered or removed).
The person possesses three or more firearms.
The person possesses a firearm and has a prior felony conviction or a Class A misdemeanor conviction within the past five years.
The person possesses an assault weapon as defined by PL 265.00(22).
The person possesses a large capacity ammunition feeding device (magazine exceeding 10 rounds).^[6]

Whether third-degree possession is classified as a violent felony depends on which subdivision applies. Subdivisions 5, 7, 8, and 9 are violent felonies with enhanced sentencing under PL 70.02. Subdivisions 1 through 3 are non-violent Class D felonies. Violent felony subdivisions carry mandatory prison sentences.^[7]

Second Degree: PL 265.03 (Class C Violent Felony)

Criminal possession of a weapon in the second degree under PL 265.03 is a Class C violent felony. It carries a mandatory minimum determinate sentence of 3.5 years and a maximum of 15 years in state prison.^[8] This is the charge most commonly associated with illegal loaded firearm possession in New York.

A person is guilty of second-degree possession when:

With intent to use unlawfully against another, the person possesses a machine gun, loaded firearm, or disguised gun.
The person possesses five or more firearms.
The person possesses any loaded firearm outside his or her home or place of business.^[9]

Critically, the "loaded firearm" provision under subdivision 3 does not require proof of intent to use the firearm unlawfully. Merely possessing a loaded firearm outside one's home or place of business without a valid license is sufficient for conviction. This provision makes PL 265.03 one of the most consequential firearm charges in New York, as it captures unlicensed concealed carry of loaded handguns.^[10]

As a violent felony, second-degree possession triggers determinate sentencing under PL 70.02, meaning the court must impose a fixed prison term rather than an indeterminate range.^[11]

First Degree: PL 265.04 (Class B Violent Felony)

Criminal possession of a weapon in the first degree under PL 265.04 is the most serious weapon possession charge in New York. It is a Class B violent felony, carrying a mandatory minimum of 5 years and a maximum of 25 years in state prison, plus a potential fine of up to $30,000.^[12]

A person is guilty of first-degree possession when:

The person possesses any explosive substance with intent to use it unlawfully against another person or property.
The person possesses ten or more firearms.^[13]

This charge is most commonly applied in firearms trafficking cases where defendants are found in possession of large quantities of weapons. The 10-firearm threshold reflects the legislature's determination that possessing such a stockpile indicates involvement in illegal weapons distribution rather than mere personal use.

Sentencing Enhancements for Repeat Offenders

New York law imposes enhanced penalties for repeat offenders convicted of violent weapon possession charges. A second violent felony offender convicted of a Class C violent felony (second-degree possession) faces a mandatory minimum of 7 years and a maximum of 15 years. A second violent felony offender convicted of a Class B violent felony (first-degree possession) faces a mandatory minimum of 10 years and a maximum of 25 years.^[14] Persistent violent felony offenders face even more severe mandatory minimum sentences, potentially including lifetime imprisonment.

Criminal Possession of a Weapon:
Degrees and Penalties