New York Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree, is a Class C violent felony that criminalizes three separate acts: possessing a loaded firearm, machine gun, or disguised gun with intent to use it unlawfully against another person; possessing five or more firearms at one time; and possessing a loaded firearm anywhere that is not your own home or place of business. A conviction under any of the three carries a mandatory determinate prison sentence between three and one-half and fifteen years, followed by post-release supervision. Probation is not available.
The Three Ways to Violate Section 265.03
The statute is written as three independent subsections. Prosecutors can charge any one of them on its own, and each carries the same Class C violent felony classification.1New York State Senate. New York Penal Code 265.03 – Criminal Possession of a Weapon in the Second Degree
Possession With Intent to Use Unlawfully
Subsection 1 covers possession of a machine gun, loaded firearm, or disguised gun when the person intends to use it unlawfully against someone else. The weapon does not have to be fired, and no one has to be hurt. What the prosecution must prove is the mental state.
Because intent lives in someone’s head, these cases usually turn on circumstantial evidence: what the person said, how they behaved during the encounter, whether the weapon was concealed, and the context in which police found them. The weapon itself is rarely disputed; the fight is over what the person planned to do with it.
Possession of Five or More Firearms
Subsection 2 has no intent element. Possessing five or more firearms at the same time is enough, regardless of purpose. Each item has to meet New York’s statutory definition of a firearm, and the prosecution has to show the person controlled the weapons, but nothing about motive matters.
Loaded Firearm Outside Your Home or Business
Subsection 3 is the most commonly charged provision and comes close to strict liability. Once a loaded firearm is anywhere other than your residence or workplace, and no exemption applies, the felony is complete. No threat, no bad intent, no injury required.
This is the charge that shows up constantly in traffic and pedestrian stops. Because the elements are so thin, the arguments in these cases usually focus on whether the search was lawful, whether the weapon actually belonged to the defendant, or whether one of the statutory exemptions applies.
What Counts as a “Firearm” and What Counts as “Loaded”
Both terms are defined in Penal Law 265.00, and both are broader than most people expect. A “firearm” under 265.00(3) includes pistols, revolvers, short-barreled shotguns under eighteen inches, short-barreled rifles under sixteen inches, weapons modified to an overall length under twenty-six inches, and assault weapons.2New York State Senate. New York Penal Code 265.00 – Definitions Full-length rifles and shotguns are not “firearms” for purposes of 265.03. Subsection 3, in particular, only reaches weapons that fit the statutory definition.
The definition of “loaded” is the one that catches people. Under 265.00(15), a firearm is loaded if ammunition is inside it, or if the person carrying it also has ammunition on them that fits the weapon.2New York State Senate. New York Penal Code 265.00 – Definitions Someone walking with an empty handgun in a bag and a box of matching rounds in a jacket pocket is carrying a “loaded firearm” under New York law. The ammunition does not have to be in the gun, in the magazine, or even near it. Same person, compatible caliber, that is enough.
The Vehicle Presumption
People are sometimes charged under 265.03 without ever touching the weapon. Penal Law 265.15(3) presumes that when a firearm is found in a car, every occupant possesses it. The presumption does not apply if the weapon is found on one specific person, if the car is stolen, or if the vehicle is a licensed taxi or rideshare operating in the ordinary course of business.3New York State Senate. New York Penal Code 265.15 – Presumptions of Possession, Unlawful Intent and Defacement In practice, this means a loaded gun under a seat can produce a Class C violent felony charge against everyone in the car unless someone claims it.
One thing 265.15 does not do: it does not create a general presumption that anyone carrying a firearm intends to use it unlawfully. The unlawful-intent presumption in 265.15(4) applies to daggers, stilettos, and similar weapons, not to firearms. For a subsection 1 firearm charge, prosecutors have to prove intent the hard way.
Who Is Exempt
Penal Law 265.20 exempts specific categories from the possession charge: police officers, peace officers, active-duty military personnel on duty, and certain corrections staff. People holding a valid New York pistol license issued under Penal Law 400.00 or 400.01 are also exempt for firearms the license covers.4New York State Senate. New York Penal Code 265.20 – Exemptions
The exemptions are narrow. An expired license does not count. An out-of-state carry permit does not satisfy New York’s requirements, which regularly surprises visitors and new residents. Anyone relying on an exemption should expect the prosecution to examine every detail of the authorization.
The Sentence
Section 265.03 is a Class C violent felony, and New York’s sentencing rules for violent felonies are inflexible. A first-time offender with no prior felony record faces a determinate prison sentence between three and one-half years and fifteen years.5New York State Senate. New York Penal Code 70.02 – Sentence of Imprisonment for a Violent Felony Offense Probation is not on the table. “Determinate” means the judge sets a fixed number, and the person serves it, minus any earned good-time credit, without a parole board deciding release.
After prison comes mandatory post-release supervision. For a Class C violent felony, the period is between two and one-half and five years.6New York State Senate. New York Penal Code 70.45 – Determinate Sentence; Post-Release Supervision During supervision, a parole officer monitors compliance with court-imposed conditions on travel, check-ins, and associations. Violations can send the person back to prison for what remains of the supervision term.
What Else a Conviction Costs You
Prison and supervision are not the whole picture. A 265.03 conviction produces consequences that continue long after the sentence ends.
A Permanent Federal Firearm Ban
Federal law bars anyone convicted of a felony from possessing firearms or ammunition. Under 18 U.S.C. 922(g), a violation is a separate federal crime punishable by up to fifteen years.7Office of the Law Revision Counsel. 18 USC 924 – Penalties A 265.03 conviction is enough on its own to make any future firearm contact a federal case.
Immigration Consequences
For a non-citizen, a 265.03 conviction is severe. Federal immigration law makes any noncitizen convicted of a firearm offense deportable, with no carve-out for lawful permanent residents.8Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens Because the mandatory minimum exceeds one year, the offense can also qualify as an aggravated felony if it meets the federal definition of a crime of violence.9Office of the Law Revision Counsel. 8 USC 1101 – Definitions An aggravated felony classification cuts off nearly every form of immigration relief, including cancellation of removal, asylum, and temporary protected status. Non-citizens should get immigration-specific advice before considering any plea.
Employment, Housing, Civil Rights
A violent felony record permanently blocks many jobs that require background checks or professional licenses and shows up on housing applications. New York restores voting rights on release from incarceration, but the record itself continues to close doors.
The Open Constitutional Question After Bruen
The 2022 Supreme Court decision in New York State Rifle & Pistol Association v. Bruen put subsection 3 under a cloud. Bruen struck down New York’s previous concealed-carry licensing scheme and held that firearm regulations must be consistent with the historical tradition of firearm regulation. Because subsection 3 turns unlicensed public carry into a violent felony, defendants have argued it cannot stand.
The New York Court of Appeals has not yet resolved the issue. In People v. David, the court acknowledged “significant questions about whether, in light of Bruen, lack of licensure is an essential element of New York’s criminal possession of a weapon offense,” but declined to reach the merits because the argument had not been preserved at trial.10New York State Attorney General. People v David – Court of Appeals Decision The question remains open. Subsection 3 is being enforced, and people are still being convicted, but the constitutional footing is unsettled.
Federal Safe Passage for Drivers Passing Through
One narrow federal protection exists for interstate travel. Under 18 U.S.C. 926A, a person who may lawfully possess a firearm at both origin and destination may transport it through any state, New York included, regardless of local law. The requirements are strict: the firearm must be unloaded and stored where it is not readily accessible from the passenger compartment. In a vehicle without a separate trunk, the firearm must be in a locked container other than the glove compartment or console.11Office of the Law Revision Counsel. 18 USC 926A – Interstate Transportation of Firearms
The protection only covers genuine through-travel. Stops in New York beyond a brief fuel or rest break weaken it substantially, and any deviation from the transport requirements exposes the driver to a full 265.03 prosecution. New York officers do not always accept the federal defense without a court fight.