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NY Penal Law § 265.03: Criminal Possession of a Weapon in the Second Degree
Criminal possession of a weapon in the second degree, NY Penal Law § 265.03, is the charge most people mean by a “loaded gun” case. It covers possessing a loaded firearm outside your home or business, possessing a loaded firearm, machine gun or disguised gun with intent to use it unlawfully, and possessing five or more firearms. It is a class C violent felony that carries a minimum of 3½ years in prison if convicted as charged. Richard Hochhauser of Hochhauser Criminal & DWI Defense, PLLC is a former Long Island prosecutor who defends gun cases in Nassau County and Suffolk County courts.
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NY Penal Law § 265.03 at a glance
| Criminal possession of a weapon in the second degree | |
|---|---|
| Statute | NY Penal Law § 265.03 |
| Charge level | Class C violent felony |
| Prison range | 3½ to 15 years (determinate) |
| Most common on Long Island | Subdivision 3: a loaded firearm outside the home or business |
| Next lower charge | Criminal possession of a weapon in the third degree (PL 265.02) |
What NY Penal Law § 265.03 says
A person is guilty of criminal possession of a weapon in the second degree when:
(1) with intent to use the same unlawfully against another, such person: (a) possesses a machine-gun; or (b) possesses a loaded firearm; or (c) possesses a disguised gun; or
(2) such person possesses five or more firearms; or
(3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person’s home or place of business.
Criminal possession of a weapon in the second degree is a class C 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 a firearm (on your person, or within your control, such as in a car).
- You knew you possessed it.
- It was loaded (for subdivisions 1(b) and 3). Under New York law a firearm counts as “loaded” if ammunition for it is possessed at the same time, even if it is not in the gun.
- For subdivision 3, the possession was outside your home or place of business. For subdivision 1, you intended to use it unlawfully against another person.
Penalties for weapon possession in the second degree
| Outcome | What it means |
|---|---|
| Prison | A class C violent felony: a determinate term of 3½ to 15 years in state prison, plus post-release supervision. |
| Probation | Generally not available on a conviction for this charge as charged. Avoiding prison usually requires a negotiated reduction. |
| Pleas | Many cases resolve with a plea to a lesser charge. Some resolutions use special provisions for first-time offenders, which require specific findings by the court. |
| Other consequences | A violent felony record, permanent loss of firearm rights and serious immigration consequences. |
New York’s sentencing law for class B and C violent felonies is scheduled to change on September 1, 2027. Sentences for offenses before that date follow the current determinate-sentence rules.
Arrested on a gun charge?
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How weapon possession in the second degree charges show up on Long Island
Over about two years of Nassau County and Suffolk County arraignment records, about 66 people were arraigned on PL 265.03, split almost evenly between Nassau County and Suffolk County.
About half were subdivision 3, a loaded firearm outside the home or business. Most of the rest were subdivision 1(b), a loaded firearm with intent to use it unlawfully, which often accompanies another charge such as a robbery, assault or menacing.
People with out-of-state permits or recently expired New York permits make up a meaningful share of these arrests, and those facts can matter a great deal.
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
A Pennsylvania resident with a valid Pennsylvania carry permit drives through Nassau County with a loaded handgun in the glove box and is stopped for speeding. Because the permit does not apply in New York, the charge is PL 265.03(3). The defense looks at the legality of the stop and search, and at the person’s background, to negotiate a resolution that avoids a mandatory prison term.
Defenses to a PL 265.03 charge
- Suppression. Most gun cases are won or lost on whether the stop, frisk or search was legal.
- Possession and knowledge. In a car with several people, the law’s presumptions can be challenged.
- Operability. The firearm must be operable, and ammunition must fit it for it to count as loaded.
- Home or business exception. Subdivision 3 does not apply to possession in your home or place of business.
- Licensing. A valid license, or a recently lapsed one, can change the case.
Related offenses
- Criminal possession of a weapon in the third degree (PL 265.02), class D felony
- Criminal possession of a weapon in the fourth degree (PL 265.01), class A misdemeanor
- Robbery in the second degree (PL 160.10)
- Long Island courts and towns we serve
NY Penal Law § 265.03: frequently asked questions
What is the minimum sentence for criminal possession of a weapon in the second degree?
PL 265.03 is a class C violent felony. A conviction as charged carries a determinate prison term of 3½ to 15 years. Avoiding prison usually requires a reduction negotiated with the District Attorney.
Is a gun “loaded” if the bullets were in a separate bag?
Under New York’s definition, a firearm is considered loaded if ammunition that can be used in it is possessed at the same time, even if the gun itself is not loaded.
Does PL 265.03 apply if the gun was in my house?
Subdivision 3 does not apply to possession in your own home or place of business. Other subdivisions, such as intent to use the gun unlawfully or possessing five or more firearms, can still apply.
I have a permit from another state. Can I be charged?
Yes. New York does not recognize other states’ carry permits, and a loaded handgun in New York without a New York license can lead to a PL 265.03 charge.
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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