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Criminal Possession of a Weapon in the Third Degree: NY PL 265.02

Criminal Possession of a Weapon in the Third Degree, aka, CPW 3, is a violent felony and one of many weapon crimes in New York. Although there are numerous subsections within Penal Law 265.02 that the police can charge you with upon your arrest, defense attorneys experienced in representing those accused of firearm, knife, and related violations often see the same general allegations over and over even if the particular facts may differ. Whether found on your person, in your waistband, or in the glove compartment of your car, both an arrest and conviction for possessing an illegal and defaced firearm, multiple guns, or other illegal blade or object that prosecutors elevate from a misdemeanor to a felony, can and will have extensive direct and collateral consequences to your career, liberty, and legal status. As such, before venturing into the justice system alone or unprepared, it is critical to understand the distinctions among the separate subsections as well as the similar crimes of Criminal Possession of a Weapon in the Fourth and Second Degrees, and Criminal Possession of a Firearm. Only then, with the right counsel, can you implement the most effective defense and avoid the disastrous ramifications for failing to do so.

Elements of the Crime and Subsections

Although there are numerous subsection, the following are some of the more commonly charged crimes in New York City, Westchester, Rockland, and the Hudson Valley by respective police agencies including the NYPD and both the County and New York State Police.

The CPW “Bump Up” – NY PL 265.02(1)

You are guilty of NY PL 265.02(1) when you violate specific subsections of Penal Law section 265.01, Criminal Possession of a Weapon in the Fourth Degree, a lesser misdemeanor, and have previously been convicted of any crime. Often referred to as the CPW "bump up," if you violate sections (1) or (2) of Criminal Possession of a Weapon in the Fourth Degree for possessing a switchblade, for example, and you have ever been convicted of any other crime (it does not matter if it was for shoplifting ten years earlier or a bar fight twenty years ago), that previous criminal conviction can be relied upon by prosecutors to elevate the new charge from what would normally be an "A" misdemeanor punishable by up to one year in jail to this felony punishable by up to seven years in state prison.

Defaced Weapons – NY PL 265.02(3)

NY PL 265.02(3) is violated where you knowingly possess certain weapons, including any firearm, that are defaced for the purpose of hiding a crime or misrepresenting the identification of the contraband. Defacing may include modifying, scratching of parts of or the removing of serial or other identifying numbers of a firearm.

This chare often, but by no means always, arises in guns that are recovered from individuals in arrests for other so-called “street crimes” such as Robbery and Burglary.

Multiple Firearms – NY PL 265.02(5)

If you possess three or more firearms (handgun, pistol, revolver, etc.) without a proper license or you possess the same and you have been previously convicted of a felony or a class "A" misdemeanor 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, you are guilty of this subsection.

Assault Weapon – NY PL 265.02(7)

If you possess an assault weapon, pursuant to Penal Law 265.00(22), you run afoul of this statute.

Penalties and Punishment

Third Degree Criminal Possession of a Weapon is one of the charges with perhaps the most varied results between individual cases in terms of the ultimate disposition and sentence. A CPW 3 charge can potentially result in no incarceration because the minimum two years in prison is presumptively mandatory, meaning your counsel can mitigate your conduct. At the other extreme, a judge can sentence you upon conviction to as long as seven years incarceration. This disparity in punishment and sentencing demands an experienced and knowledgeable attorney in order to limit your exposure.

Hypothetical/Example

Imagine you are a licensed gun owner in Virginia, and you’re traveling up to Westchester County, NY to see some family for the day. You’ll be at your family member’s house for a couple of hours to catch up. You bring your gun with you, as you basically always do. While you’re there, a serious argument breaks out between two of your family members. The police get called by a neighbor for the noise, and they come to the home to investigate. When the police arrive, they calm everyone down and nobody is going to get arrested for anything. Before leaving, as a precaution, the police ask if anyone in the home has a firearm. You, being a responsible citizen and gun owner, let them know that you have your gun on you and present your paperwork from Virginia. The police get your information, run a background check, and see that you were convicted 4 years ago of a misdemeanor for having drugs and jumping a turnstile back when you lived in New York. Not realizing you weren’t allowed to bring your gun to New York with you, you now would likely find yourself charged with this very serious felony and facing up to 7 years in state prison.

These kinds of misunderstandings or failure to understand and appreciate the law in NY happens all the time, even to responsible gun owners. That’s not to say that prison is inevitable in this situation. It completely possible, in this hypothetical scenario, to convince a prosecutor that you are not deserving of prison time, or any period of incarceration, and maybe not even a felony. The circumstances are everything

Your Case, Your Defense, Your Future

As with other offenses involving Criminal Possession of a Weapon, there are numerous other subsections that may be applicable and that are not addressed here. As criminal defense lawyers and former Manhattan prosecutors, the attorneys at Crotty Saland PC have seen an overwhelming amount of these crimes in a wide array of circumstances. Whatever subsection or degree you are being investigated for or you have already been charged with, Crotty Saland PC is ready to assess the facts of your case and implement a defense to the charges. Never forget that when your life and future is at stake, there is absolutely no substitute for experience, knowledge and advocacy.

Call our criminal lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.

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