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NY Penal Law § 265.02: Criminal Possession of a Weapon in the Third Degree
Criminal possession of a weapon in the third degree, NY Penal Law § 265.02, is a class D felony. On Long Island it most often means possessing a weapon that would normally be a misdemeanor (such as metal knuckles) after a prior criminal conviction. It also covers assault weapons, large-capacity magazines, defaced firearms and possessing three or more firearms. Richard Hochhauser of Hochhauser Criminal & DWI Defense, PLLC is a former Long Island prosecutor who defends weapon charges in Nassau County and Suffolk County courts.
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NY Penal Law § 265.02 at a glance
| Criminal possession of a weapon in the third degree | |
|---|---|
| Statute | NY Penal Law § 265.02 |
| Charge level | Class D felony |
| Violent felony? | Only subdivisions 5, 6, 7, 8, 9 and 10. Subdivisions 1, 2 and 3 are non-violent. |
| Maximum prison term | Up to 7 years |
| Most common on Long Island | Subdivision 1: a misdemeanor weapon plus a prior conviction |
What NY Penal Law § 265.02 says
A person is guilty of criminal possession of a weapon in the third degree when:
(1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or
(2) Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or
(3) Such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or
(5) (i) Such person possesses three or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person’s home or place of business; or
(6) Such person knowingly possesses any disguised gun; or
(7) Such person possesses an assault weapon; or
(8) Such person possesses a large capacity ammunition feeding device; or
(9) Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section 10.00 of this chapter as part of the same criminal transaction; or
(10) Such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of section 70.02 of this chapter as part of the same criminal transaction.
Criminal possession of a weapon in the third degree is a class D felony.
Source: New York State Senate, official text. Read the full section, including any later amendments, before relying on it.
What the prosecutor has to prove
- You possessed the weapon, either on your person or within your control (for example in your car or home).
- You knew you possessed it.
- The weapon or situation matches one of the subdivisions, for example a misdemeanor-level weapon plus a prior conviction under subdivision 1.
- For subdivision 1, you have a prior conviction for a crime (a misdemeanor or felony, not a violation such as disorderly conduct).
Penalties for weapon possession in the third degree
| Outcome | What it means |
|---|---|
| Subdivisions 1, 2, 3 | Non-violent class D felony: up to 7 years in state prison. Probation or a jail sentence of a year or less is possible. |
| Subdivisions 6 and 10 | Violent class D felony: if state prison is imposed, a determinate term of 2 to 7 years. |
| Subdivisions 5, 7, 8, 9 | Violent class D felony with a mandatory-incarceration rule: a determinate prison term, or a jail sentence of at least one year, unless the judge makes specific findings on the record that a lesser sentence is warranted. |
| Subdivision 10 | If prison is imposed, the term is 3½ to 7 years. |
| Other consequences | Loss of firearm rights, immigration consequences, and a violent felony record for the violent subdivisions. |
Which subdivision you are charged under matters a great deal. Negotiating from a violent subdivision to a non-violent one, or to a misdemeanor, can change the sentence completely.
Charged with a weapon possession felony?
Call before your next court date. Consultations are free, in person at our Hempstead office or by video call or phone call. We answer 24/7.
How weapon possession in the third degree charges show up on Long Island
In about two years of Nassau County and Suffolk County arraignment records, about 113 people were arraigned on PL 265.02, roughly 7 in 10 of them in Nassau County.
About 7 in 10 of those cases were subdivision 1: a weapon that would otherwise be the misdemeanor criminal possession of a weapon in the fourth degree (PL 265.01), elevated to a felony because of a prior conviction. Large-capacity magazines (subdivision 8) and assault weapons (subdivision 7) were the next most common.
Many of these cases start with a car stop or a search incident to another arrest, so the legality of the stop and search is often the most important issue.
In Nassau County, arrests are arraigned at the Nassau County District Court, 99 Main Street, Hempstead, NY 11550, across the street from our office. Felony cases that are indicted move to Nassau County Court, 262 Old Country Road, Mineola, NY 11501. In Suffolk County, arraignments are held at the Suffolk County District Court, First District, 400 Carleton Avenue, Central Islip, NY 11722. Indicted felony cases go to Suffolk County Court, Arthur M. Cromarty Criminal Court Complex, 210 Center Drive, Riverhead, NY 11901.
An example
During a traffic stop, police find metal knuckles in the center console. On its own that is a misdemeanor under PL 265.01. Because the driver has an old misdemeanor conviction, the charge becomes PL 265.02(1), a felony. The defense looks first at whether the stop and the search were lawful, then at who had access to the car and whether the driver knew the item was there.
Defenses to a PL 265.02 charge
- Unlawful stop or search. If the stop or search violated your rights, the weapon can be suppressed and the case dismissed.
- Possession. Shared cars and homes raise real questions about who possessed the item.
- Knowledge. You must have known the weapon was there.
- Is it legally a “weapon”? Definitions of items like assault weapons, magazines and knives are technical, and the law has changed in recent years.
- The prior conviction. For subdivision 1, it must be a conviction for a crime; for subdivision 5(ii), a qualifying conviction within five years.
Related offenses
- Criminal possession of a weapon in the fourth degree (PL 265.01), class A misdemeanor
- Criminal possession of a weapon in the second degree (PL 265.03), class C violent felony
- Unlawful fleeing a police officer (PL 270.25)
- Long Island courts and towns we serve
NY Penal Law § 265.02: frequently asked questions
Is criminal possession of a weapon in the third degree a violent felony?
It depends on the subdivision. Subdivisions 5, 6, 7, 8, 9 and 10 of Penal Law 265.02 are violent felony offenses. Subdivisions 1, 2 and 3 are not.
What is the sentence for PL 265.02?
It is a class D felony with a maximum of 7 years. For the violent subdivisions, a prison sentence is a determinate term of 2 to 7 years, and subdivisions 5, 7, 8 and 9 require incarceration unless the judge makes specific findings that a lesser sentence is appropriate.
How does a misdemeanor knife or brass knuckles charge become a felony?
Under subdivision 1, possessing a weapon covered by PL 265.01 becomes third-degree weapon possession, a felony, if you have any prior criminal conviction.
Can a weapon charge be dismissed if the search was illegal?
Yes. If a judge suppresses the weapon because the stop or search was unlawful, the prosecutor usually cannot go forward.
How much does a lawyer cost for this charge?
Hochhauser Criminal & DWI Defense, PLLC charges a flat fee, quoted after your free consultation, so you know the cost up front.
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This is general information about New York law, not legal advice about your case. Laws change, and the right defense depends on the facts. Prior results do not guarantee a similar outcome.
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