PL 265.03 · Article 265
Criminal Possession of a Weapon in the Second Degree
This statute separates possession with intent to use certain weapons unlawfully against another from possession of five or more firearms and the loaded-firearm alternative. The loaded-firearm alternative has a home-or-business exception subject to specified cross-references, and the prosecutor must prove the applicable charge against the person accused beyond a reasonable doubt.
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PL 265.03 · Original statutory wording; excerpts must be read together with the full section.
§ 265.03 Criminal possession of a weapon in the second degree.A person is guilty of criminal possession of a weapon in the seconddegree when:(1) with intent to use the same unlawfully against another, suchperson:(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 shallnot, except as provided in subdivision one or seven of section 265.02 ofthis article, constitute a violation of this subdivision if suchpossession takes place in such person's home or place of business.Criminal possession of a weapon in the second degree is a class Cfelony.Read the full section at the New York State SenateIn everyday language
This statute separates possession with intent to use certain weapons unlawfully against another from possession of five or more firearms and the loaded-firearm alternative. The loaded-firearm alternative has a home-or-business exception subject to specified cross-references, and the prosecutor must prove the applicable charge against the person accused beyond a reasonable doubt.
At a criminal trial, the prosecutor must prove every element of the charged subsection and that you committed the offense beyond a reasonable doubt. An accusation is not proof of guilt. Where the statute provides alternatives, the prosecutor need not prove every alternative; the charged theory matters. Affirmative defenses may have different proof rules.
CPL § 70.20What the prosecutor must prove
- These are alternatives, not cumulative requirements, and the prosecutor must prove the applicable alternative beyond a reasonable doubt.
- Subdivision (1): possession of a machine-gun, loaded firearm, or disguised gun, with intent to use that weapon unlawfully against another.
- Subdivision (2): possession of five or more firearms; this alternative does not expressly require unlawful-use intent.
- Subdivision (3): possession of a loaded firearm, subject to the exception for possession in the person's home or place of business, except as provided in section 265.02(1) or (7). That location exception is stated for subdivision (3), not for the other alternatives.
Defenses that commonly apply
- What evidence establishes possession, the weapon's classification, loaded status, or the required count of five firearms?
- If subdivision (1) is charged, what evidence establishes intent to use the weapon unlawfully against another?
- If subdivision (3) is charged, did possession occur in the person's home or business, and do the referenced section 265.02 provisions apply?
Penalties and collateral consequences
A Class C Felony carries a maximum sentence of up to 15 years and a fine of up to $5,000.
Common questions about your defense
Does possession at home defeat a second-degree weapon-possession charge?
Subdivision (3) contains a home-or-business exception, subject to section 265.02(1) or (7). If the person accused possessed the loaded firearm at home and the referenced provisions do not apply, that exception may support a defense to subdivision (3). It does not by its terms defeat the unlawful-intent or five-firearm alternatives, which the prosecutor must prove beyond a reasonable doubt if charged.
Why is starting a defense early imperative?
An early defense is imperative to protect your rights and preserve evidence that may disappear. Keep court papers, messages, footage, and witness information without deleting or altering anything. Counsel can review court dates and applicable deadlines, request evidence, and begin preparing your defense immediately.
How does an experienced lawyer help build the best possible defense?
Your lawyer checks the exact subsection, compares its requirements with the evidence, and listens to your account. Depending on the charge, counsel may investigate identification, intent, witness reliability, and possible problems with searches, statements, or testing. Working together on an early strategy is imperative to pursue the best possible outcome in your circumstances; no outcome is guaranteed.
Does an arrest or police report prove the charge?
No. A police report is part of the case, not a finding of guilt. Your lawyer can compare its claims with video, records, and witnesses and assess whether admissible evidence meets each applicable requirement.
Can the charge be dismissed or reduced?
That depends on the evidence, the charged subsection, and procedural rules. Challenging evidence, filing motions, negotiating a legally available resolution, or preparing for trial may be appropriate. No lawyer can promise dismissal, reduction, or acquittal.
Every case turns on its own facts. The information on this page is general, not legal advice.
Related charges
PL 265.02 · Class D Felony
PL 265.04 · Class B Felony
PL 265.08 · Class C Felony
PL 265.09 · Class B Felony
PL 265.01 · Class A Misdemeanor
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