Criminal Possession of a Weapon in New York

What is criminal possession of a weapon in New York?

It is not one offense. Penal Law article 265 is a ladder running from a class A misdemeanor to a class B felony, and where you land depends less on what you did than on what the object was, whether it was loaded, and where you were standing.

The single most important fact about this article: possessing a loaded firearm outside your home or business is a class C violent felony carrying a mandatory prison sentence. There is no version of that charge that ends in probation as of right.

What are the degrees?

Charge	Core conduct	Class
CPW 4th, PL 265.01	Possessing a listed weapon; or a knife, razor or dangerous instrument with intent to use it unlawfully	Class A misdemeanor
Criminal possession of a firearm, PL 265.01-b	Possessing any firearm without a license	Class E felony
CPW 3rd, PL 265.02	CPW 4th with any prior conviction; defaced firearm; three or more firearms; assault weapon; large capacity magazine	Class D felony
CPW 2nd, PL 265.03	Any loaded firearm outside the home or place of business; five or more firearms; intent to use unlawfully	Class C violent felony

Under Penal Law 70.02, a class C violent felony carries a determinate sentence of three and a half to fifteen years. That is the number that drives every serious weapons case in New York.

Are gravity knives still illegal?

No, and this catches people out. Gravity knives were removed from Penal Law 265.01 in 2019. Read the current statute and subdivision (3) is simply blank, a gap where the provision used to be. For years gravity knife arrests were among the most common weapons charges in New York, largely for ordinary folding work knives.

What remains prohibited outright under 265.01(1) is a specific list: switchblades, pilum ballistic knives, metal knuckle knives, cane swords, billies, blackjacks, bludgeons, plastic and metal knuckles, chuka sticks, sandbags, sandclubs, wrist-brace slingshots, shuriken and throwing stars, along with electronic dart guns and stun guns.

Ordinary knives are governed by a different subdivision and a different rule. A dagger, dangerous knife, dirk, machete, razor, stiletto or any other dangerous instrument is only criminal under 265.01(2) if you possess it with intent to use it unlawfully against another. Intent is an element the People must prove, not an inference from the object.

Where you are standing can be the whole case

New York rewrote its firearms law in 2022 after New York State Rifle and Pistol Association v Bruen, 597 US 1 (2022), struck down the old proper cause licensing standard. The replacement created new location-based offenses, and they are easy to violate without any intent to break the law:

• Sensitive locations, PL 265.01-e. A class E felony to possess a firearm, rifle or shotgun in a sensitive location where you know or reasonably should know the location qualifies. The list is long and includes government buildings and courts, health and behavioral health facilities, places of worship, libraries, public playgrounds, public parks, zoos, childcare programs, nursery schools, preschools and summer camps.
• Restricted locations, PL 265.01-d. A class E felony to carry onto private property unless the owner has permitted it by clear and conspicuous signage or express consent. The default is now no. Walking into a shop that has posted nothing is the offense.
• School grounds, PL 265.01-a. A class E felony to knowingly possess a rifle, shotgun or firearm on school, college or university grounds or a school bus without written authorization.

All three carry felony exposure for conduct a licensed carrier can commit by walking through a door.

Can you be charged for a weapon that was not yours?

Yes, and this is where most contested cases are actually fought. Penal Law 265.15(3) makes the presence of a firearm or listed weapon in a car presumptive evidence of possession by every occupant.

The presumption has real exceptions. It does not apply where the weapon is found on one occupant’s person; it does not apply to a licensed driver operating a vehicle for hire in the lawful pursuit of the trade; and where the weapon is a pistol or revolver and an occupant not under duress holds a valid carry license, it does not apply.

A presumption is not proof, and it can be rebutted. The mechanics are the same ones covered in the presumption of possession guide, which is worth reading alongside this one.

Does the home exception really protect you?

Partly, and the limits matter. PL 265.03(3) makes possession of any loaded firearm a class C violent felony, then provides that it is not a violation of that subdivision if the possession takes place in your home or place of business.

Three cautions. The exception is to that subdivision only, so a defaced firearm, an assault weapon, a large capacity magazine or three or more firearms can still support a felony at home. It does not apply where subdivision 1 or 7 of PL 265.02 is in play. And it does not license the firearm: unlicensed possession of any firearm remains a class E felony under PL 265.01-b regardless of where you are.

A hallway, a stoop, a shared basement or a car in the driveway is not obviously the home, and that boundary is litigated constantly.

What are the defenses?

The realistic ones are usually procedural rather than factual:

• The stop and the search. If the police lacked a lawful basis to stop, frisk or search, the weapon is suppressed and the case ends. This is where most weapons cases are won. See suppression hearings.
• Knowing possession. The People must prove you knew the weapon was there. Presence is not knowledge.
• Intent, on the knife charges. Under 265.01(2) intent to use unlawfully is an element.
• Statutory exemptions. PL 265.20 carries a long list of exemptions, including licensing, transport and occupational categories.

Where are weapons cases heard in Nassau County?

A CPW 4th misdemeanor is heard at Nassau County District Court, 99 Main Street in Hempstead, or in Glen Cove or Long Beach City Court.

Every felony weapons charge is arraigned in the District Court, because it holds preliminary jurisdiction over felonies, then moves to Nassau County Court at 262 Old Country Road in Mineola, and in some matters to Supreme Court, Nassau County. Because CPW 2nd is a violent felony, bail is available and the case is likely to go to a grand jury. See bail and securing orders and the grand jury.

One Nassau-specific point worth stating plainly: the sensitive location law makes courthouses themselves sensitive locations. Arriving at 99 Main Street or 262 Old Country Road armed, even with a valid carry license, is a felony.

Related: presumption of possession in a vehicle, suppression hearings, bail and securing orders, and criminal defense in Nassau County.