Statutory Elements
Penal Law Section 265.03 defines criminal possession of a weapon in the second degree. A person is guilty under this statute in three scenarios:[1]
- Subdivision (3): A person possesses any loaded firearm (simple possession). Such possession is not a violation of this subdivision if it takes place in the person's home or place of business
- Subdivision (1)(a)-(c): A person, with intent to use it unlawfully against another, possesses a machine-gun (a), a loaded firearm (b), or a disguised gun (c)
- Subdivision (2): A person possesses five or more firearms
Subdivision (3) is the most commonly charged scenario: possessing any loaded handgun outside of one's home or place of business without a valid license. The prosecution is not required to prove intent to use the weapon unlawfully -- the mere possession of a loaded, unlicensed firearm outside the home or place of business is sufficient.[2]
Key Definitions
For purposes of PL 265.03, a "firearm" means a pistol or revolver, as well as short-barreled rifles (barrel under 16 inches), short-barreled shotguns (barrel under 18 inches), and assault weapons as defined by PL 265.00(22). A firearm is considered "loaded" when it contains unexpended ammunition in the chamber, cylinder, or in a magazine that is inserted or attached to the firearm.[3]
Classification and Sentencing
Criminal possession of a weapon in the second degree is classified as a Class C violent felony. As a violent felony, it carries mandatory minimum sentencing requirements:[4]
- First-time violent felony offender: Mandatory minimum of 3.5 years in state prison; maximum of 15 years
- Second felony offender (violent): Enhanced mandatory minimum of 7 years; maximum of 15 years
- Persistent violent felony offender: Enhanced mandatory minimums apply under PL 70.08
Probation is not available for Class C violent felonies. A conviction results in a permanent felony record, loss of the right to possess firearms under both state and federal law, and potential immigration consequences for non-citizens.[5]
Home and Business Exception
Subdivision (3) of PL 265.03 provides that simple possession of a loaded firearm in one's home or place of business does not constitute a violation of that subdivision. This exception recognizes the right of individuals to keep loaded firearms at their residence or business for self-defense. However, the home or business exception does not apply to the intent branch under subdivision (1)(a)-(c), where there is intent to use the weapon unlawfully against another person.[6]
Comparison to Other Possession Charges
PL 265.03 carries significantly harsher penalties than other weapons possession charges in New York. Criminal possession of a firearm under PL 265.01-b (possessing an unlicensed handgun, without proof that it was loaded) is a Class E felony with a maximum of four years and no mandatory minimum. Criminal possession of a weapon in the fourth degree under PL 265.01 is a Class A misdemeanor with a maximum of one year. The distinction between a loaded and unloaded firearm, and the location of possession, can mean the difference between a misdemeanor and a mandatory state prison sentence.[7]