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Old January 29, 2009, 11:16 AM   #1
Tomcat017
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NY law question

Hi everyone,

I was reading through some of New York's convoluted penal code to brush up on firearm laws, and am not quite sure what to make of something. Hoping someone here who knows more than I do can help.

PL 265.02

A person is guilty of criminal possesion of a weapon in the third degree when:

(5)(i.) Such a person possessed three or more firearms.


For those not familiar with NY's odd terminology, "firearm" means essentially any pistol or short-barelled rifle/shotgun. So...I'm not sure what to make of this. I read the whole statue, and the rest of the section, and didn't see anything that qualifies this. But common sense tells me that even in PR of NY, it can't be a felony to possess more than three firearms. Can anyone shed some more light on this? Thanks
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Old January 29, 2009, 02:00 PM   #2
ThorntonMelon
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This seems a bit odd to me too. While I'm no expert, I live in NY, and I know MANY people who own more than 3 firearms. I found the following on another site...it mentions 20 or more firearms under section 265.02. It also references an amendment to section 5 in 1981 making the number 20. Perhaps it was 3 years ago? I don't know which one is correct, but I could name you at least half a dozen guys, just at my company who'd be guilty if the number is actually 3.

Here's the link: http://www.ocshooters.com/Reports/awb/NY-AWB-S8234.html


S 11. Subdivisions 4, 5 and 6 of section 265.02 of the penal law,
31 subdivision 4 as added by chapter 1041 of the laws of 1974, subdivision
32 5 as amended by chapter 175 of the laws of 1981 and subdivision 6 as
33 added by chapter 378 of the laws of 1998, are amended and two new subdi-
34 visions 7 and 8 are added to read as follows:
35 (4) {He} SUCH PERSON possesses any loaded firearm. Such possession
36 shall not, except as provided in subdivision one OR SEVEN, constitute a
37 violation of this section if such possession takes place in such
38 person`s home or place of business{.}; OR
39 (5) (i) {He} SUCH PERSON possesses twenty or more firearms; or (ii) 40 {he} SUCH PERSON possesses a firearm and has been previously convicted
41 of a felony or a class A misdemeanor defined in this chapter within the
42 five years immediately preceding the commission of the offense and such
43 possession did not take place in the person`s home or place of busi-
44 ness{.}; OR
45 (6) {He} SUCH PERSON knowingly possesses any disguised gun{.}; OR
46 (7) SUCH PERSON POSSESSES AN ASSAULT WEAPON; OR
47 (8) SUCH PERSON POSSESSES A LARGE CAPACITY AMMUNITION FEEDING DEVICE.
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Old January 29, 2009, 02:12 PM   #3
Musketeer
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Given I have way more than three handguns listed on my permit and on file with NY state I would wager there are far more sections to that law than the one quoted.

Hell, I had to bring all my handguns down not long ago for the police to check each serial number while renewing my permit (what a pain!). If having more than three was illegal they could have simply cuffed me there.
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Old January 29, 2009, 02:15 PM   #4
ThorntonMelon
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I found another site that also lists 20 as the max number of guns you can have.


http://ypdcrime.com/penal.law/article265.htm
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Old January 29, 2009, 02:33 PM   #5
Brian Pfleuger
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I believe the key lies in the definition of "such a person". Generally, when a law is all inclusive it reads "anyone" or "Any person"

Example:

§ 35.20 Justification; use of physical force in defense of premises and
in defense of a person in the course of burglary.
1. Any person may use physical force upon another person when...


Somewhere in the law you quoted must be a reference to a "type" of person for whom this restriction applies. I personally know people who have more than 20 HANDGUNS on their permits so this law obviously does not apply to law abiding citizens.
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Old January 29, 2009, 02:36 PM   #6
Tomcat017
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Hmm...the plot thickens. While the two sources that TM gave above both list "twenty" as the number of firearms that would put you in violation of 265.02, I have a current (at least, it claims to be current) hard copy of the penal code in front of me, and it lists "three." Also, the NY legislature site and SUNY Buffalo law site both have the statue as reading "three." In addition, if CPW3 (criminal possesion of a weapon in the third degree) occurred at twenty firearms, then CPW2 and CPW1 wouldn't make much sense, since those statutes list a limit of five and ten, respectively.

Musketeer, I'm certain you're correct - you were at the PD with more firearms than that, and as TM said, I know many people with more than three. Plus, a limit of three seems, to me at least, ridiculous. So I'm sure that there is something else going on. I just posted b/c I looked everywhere in the penal law that I could think, and I can't find an exception. Hoping someone else knows that the jig is. Very curious.

ThorntonMelon and Musketeer: thanks for taking the time to help. Any other thoughts, please post 'em.
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Old January 29, 2009, 02:42 PM   #7
Tomcat017
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Quote:
Peetzakilla
I believe the key lies in the definition of "such a person". Generally, when a law is all inclusive it reads "anyone" or "Any person"

Example:

§ 35.20 Justification; use of physical force in defense of premises and
in defense of a person in the course of burglary.
1. Any person may use physical force upon another person when...

Somewhere in the law you quoted must be a reference to a "type" of person for whom this restriction applies. I personally know people who have more than 20 HANDGUNS on their permits so this law obviously does not apply to law abiding citizens.
I think the "such person" refers to the beginning of the statue, which reads:

A Person is guilty of criminal possesion of a weapon in the third degree when:

(1)Such person commits...or...
...
(5)Such person possesses three or more...
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Old January 29, 2009, 02:44 PM   #8
Brian Pfleuger
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Solved!

The section you are quoting is in reference to a person who is guilty of criminal possession in the fourth degree. If any of the conditions listed in the section you cited are also true then that person is guilty of possession in the third degree.

It does not apply to any person who legally possesses ANY number of weapons.


"A person is guilty of criminal possession of a weapon in the third
degree when:
(1) He commits the crime of criminal possession of a weapon in the
fourth degree as defined in subdivision
one, two, three or five of
section 265.01, and has been previously convicted of any crime; or...

(2) He possesses any explosive or incendiary bomb, bombshell, firearm
silencer, machine-gun or any other firearm or weapon simulating a
machine-gun and which is adaptable for such use; or
(3) He knowingly has in his possession a machine-gun, firearm, rifle
or shotgun which has been defaced for the purpose of concealment or
prevention of the detection of a crime or misrepresenting the identity
of such machine-gun, firearm, rifle or shotgun; or
(4) Such person possesses any loaded firearm. Such possession shall
not, except as provided in subdivision one or seven, constitute a
violation of this section if such possession takes place in such
person`s home or place of business; or
(5) (i) Such person possesses twenty or more firearms; or (ii) such
person possesses a firearm and has been previously convicted of a felony
or a class A misdemeanor defined in this chapter 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;
or
(6) Such person knowingly possesses any disguised gun; or
(7) Such person possesses an assault weapon; or
(8) Such person possesses a large capacity ammunition feeding device."


In other words, the "such person" to whom it is referring is a person who has committed "possession in the forth degree".
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Last edited by Brian Pfleuger; January 29, 2009 at 02:53 PM.
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Old January 29, 2009, 02:52 PM   #9
Smallgame2100
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If the case were to be illegal to own a certain amount of firearms, then thats beyond ridiculous.

Its your right to own firearms. Nowhere in the 2nd amendment does it say "right to own 3 or less firearms."
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Old January 29, 2009, 02:57 PM   #10
Tomcat017
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Quote:
Originally Posted by Peetzakilla
Solved!

The section you are quoting is in reference to a person who is guilty of criminal possession in the fourth degree. If any of the condition listed in the section you cited then that person is guilty of possession in the third degree.

It does not apply to any person who legally possesses ANY number of weapons.

"A person is guilty of criminal possession of a weapon in the third
degree when:
(1) He commits the crime of criminal possession of a weapon in the
fourth degree as defined in subdivision one, two, three or five of
section 265.01, and has been previously convicted of any crime; or...

(2) He possesses any explosive or incendiary bomb, bombshell, firearm
silencer, machine-gun or any other firearm or weapon simulating a
machine-gun and which is adaptable for such use; or

...

(5) (i) Such person possesses twenty or more firearms; or (ii) such
person possesses a firearm and has been previously convicted of a felony
or a class A misdemeanor defined in this chapter 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; or

...
OK--at first, I thought that was eureka. But the first clause of the statues says: "A person is guilty of criminal possesion of a weapon in the third degree when:". The following subsections, denoted by numbers in parenthesis, then enumerate a number of conditions which, if satisfied, make the person guilty of CPW3. Those subsections all end in "or," indicating that only one subsection must be fulfilled to be guilty (i.e. not all 7). Sub 1 says that any person guilty of CPW4 is guilty of CPW3 if that person has previously been convicted of any crime. Subsection 2, however, stands alone, independant of the requirement to have committed a previous crime. A person in possession of explosives or a bomb does not have to have committed a previous crime -- he is automatically guilty of CPW3, not CPW4. The same "OR" logic follows down to sub 5, about the three guns business.

That's my take, at least - I'm pretty sure. Feel free to correct me if/where I'm wrong. Thanks again PK for taking the time to help iron this out for me.

ETA: Smallgame: of course, I agree with you. I think it would be ridiculous. Just trying to figure out the NY law.
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Old January 29, 2009, 03:13 PM   #11
Musketeer
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Of course I live under the assumption that Governor Patterson can at any time simply declare me a criminal for owning both guns and non-diet soda. I figure the SWAT team will show up any day now.

I LOVE NY!
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Old January 29, 2009, 03:16 PM   #12
Smallgame2100
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Yup.

I laughed at the thought of him actually thinking he could get away with taxing any NON diet sodas.

Soda is part of obesity, but not as much as food. Lets ban fast food? Ya right!
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Old January 29, 2009, 03:24 PM   #13
Brian Pfleuger
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Quote:
That's my take, at least - I'm pretty sure. Feel free to correct me if/where I'm wrong. Thanks again PK for taking the time to help iron this out for me.

The statute is refering to someone guilty of one of the crimes listed in 265.01 subsections 1,2,3, or 5...

"S 265.01 Criminal possession of a weapon in the fourth degree.
A person is guilty of criminal possession of a weapon in the fourth
degree when:
(1) He possesses any firearm, electronic dart gun, electronic stun
gun, gravity knife, switchblade knife, pilum ballistic knife, metal
knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles,
chuka stick, sand bag, sandclub, wrist-brace type slingshot or
slungshot, shirken or "Kung Fu star"; or
(2) He possesses any dagger, dangerous knife, dirk, razor, stiletto,
imitation pistol, or any other dangerous or deadly instrument or weapon
with intent to use the same unlawfully against another; or
(3) He knowingly has in his possession a rifle, shotgun or firearm in
or upon a building or grounds, used for educational purposes, of any
school, college or university, except the forestry lands, wherever
located, owned and maintained by the State University of New York
college of environmental science and forestry, without the written
authorization of such educational institution; or...
(5) He possesses any dangerous or deadly weapon and is not a citizen
of the United States;..."

The person must first satisfy at least one of the conditions outlined in the above quote BEFORE section 265.02 applies to anything.

In other words, if 265.01 is false then 265.02 is also false because 265.02 is dependent on 265.01 being true.
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Old January 29, 2009, 03:34 PM   #14
Ed K
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The law talked about is any one not permitted to own weapons in posession of 20 or more guns is a felony, legal gun owners can have as many as they want. I have 20+ hand guns. I live in Suffolk County N.Y.
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Old January 29, 2009, 04:25 PM   #15
Tomcat017
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Peetzakilla: the fact that 265.01 must be true before 265.02 can be true: are you saying that based on the wording of .02, or is a standard legal principle - that a higher degree charge must have the lower degree charge satisfied as well? Sorry if that's an uneducated question, but I'm not too familiar with all this legal stuff. Thanks again PK.
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Old January 29, 2009, 04:46 PM   #16
Brian Pfleuger
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Quote:
Peetzakilla: the fact that 265.01 must be true before 265.02 can be true: are you saying that based on the wording of .02, or is a standard legal principle - that a higher degree charge must have the lower degree charge satisfied as well?
I don't know if that is always true but the wording indicates that it is in this case, IMO. I'm no lawyer, I could be wrong.
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