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New York Penal Code § 265.04: Criminal Possession of a Weapon in the First Degree
New York Penal Code § 265.04: Criminal Possession of a Weapon in the First Degree
At Spodek Law Group, we know you’re reading this article because you’re worried about the possibility of facing major legal trouble. If you’ve been arrested—or even just questioned—about Criminal Possession of a Weapon in the First Degree under New York Penal Code § 265.04, it can feel like your entire future is on the line. This law is serious. We take your situation seriously. Our role is simple: do everything legally possible to help you.
What This Charge Means in NY
New York Penal Code § 265.04 targets those who possess explosives or machine guns—items the government considers exceptionally dangerous. When the state believes you’ve crossed that threshold, prosecutors throw everything they have at you, because they consider these charges a threat to public safety. This is a Class B felony, meaning if you’re convicted, you could get up to 25 years in a state prison. No one wants that. Our job is to see if there’s a way to get the charges against you dismissed, or at least reduced to something more manageable.
| Offense | NY Penal Code Section | Classification | Possible Sentence |
|---|---|---|---|
| Criminal Possession of a Weapon in the 1st Degree | § 265.04 | Class B Felony | Up to 25 years in state prison |
Whether you’re facing an unexpected arrest in Manhattan, or you’re being investigated in Brooklyn, the fundamentals don’t change. If the authorities think you have something as lethal as a bomb or a machine gun, they’ll bring the full weight of the law against you.
The State vs. Federal Issue
You might wonder whether you’re looking at a state crime or a federal one. That confusion is common. Generally, § 265.04 is a New York State charge. But if you’re accused of transporting a weapon across state lines or if there’s a tie-in to broader federal investigations—for instance, suspicion of terrorism or organized crime—federal prosecutors might also step in. Here’s the catch: You could face two separate prosecutions, one in state court and one in federal court. That’s not always fair, but it is perfectly legal thanks to what’s known as the “dual sovereignty” doctrine. It’s not double jeopardy. It’s your worst nightmare if you don’t have a defense team capable of handling parallel fights on two fronts.
Federal Sentencing Guidelines
If your case goes federal, the stakes can get higher. Federal charges often carry mandatory minimums. For weapons-related crimes, 18 U.S.C. §§ 922 and 924 come into play. Prosecutors will meticulously gather evidence. If you get indicted, the U.S. Attorney’s Office is going to try to stick you with as many enhancements as possible. At Spodek Law Group, we’ve handled these types of high-stakes federal cases. We know how to push back against mandatory minimums. We know how to question the credibility of the government’s informants. And we understand the difference between legitimate evidence and speculation.
Potential Penalties (and Real-World Consequences)
Criminal Possession of a Weapon in the First Degree is one of the most severe state weapons charges. If convicted, you face a maximum of 25 years in state prison. Along with that, you could get hammered with five years of post-release supervision. You might also have to pay hefty fines. Even if you avoid a maximum sentence, having a B felony on your record can make finding employment, renting an apartment, or getting certain professional licenses extremely difficult.
We’re not trying to scare you. We’re trying to be honest. Most people don’t realize that possessing weapons like machine guns or explosives doesn’t require the prosecutor to prove you intended to use them. In many situations, mere possession is enough. That’s why you want a serious defense attorney as early as possible in the process.
Defense Strategies: Getting Into the Details
At Spodek Law Group, we create nuanced defense strategies rooted in how these charges arose in the first place. We talk to you—at length—and we dig into what the police and prosecutors are doing behind the scenes. Here are a few scenarios we’ve handled in the past:
Scenario 1: You Didn’t Know
We once represented a client who borrowed a relative’s car for an afternoon. Next thing you know, the NYPD claims there’s a suspicious duffel bag with bomb-making materials in the trunk. Our team focused on proving our client had no idea the bag was there, never owned the car, and didn’t pack the bag. This scenario puts heavy emphasis on “knowledge” and “control.” We go after the chain of custody for the bag. We look at store receipts, phone records—anything showing our client had zero reason to suspect anything was amiss.
Scenario 2: Bogus Search and Seizure
Often, charges follow a dramatic police raid—sometimes in the middle of the night—where an entire block is shut down. If there’s any sign the police rushed in without a valid warrant or exceeded the scope of the search, we file motions to suppress that evidence. If the weapon is tossed out as evidence, the entire case might crumble. It’s critical to scrutinize every step of how the police or FBI obtained probable cause. Were wiretaps involved? Was there an unreliable confidential informant?
Scenario 3: Federal Sting Operations
When federal agents show up, they might claim they have recordings of you discussing building or buying explosives. But was it entrapment? Did an undercover agent push you into activities you otherwise wouldn’t have considered? Entrapment defenses are tough, but we’ve had successes by showing how government officials steered the conversation and even provided key tools. We pick apart transcripts of phone calls, text messages, or email exchanges. We highlight how the government “cultivated” the crime.
Scenario 4: Constructive Possession
A weapon can be in your vicinity but not in your direct control. Maybe you share a basement with multiple people, and the item isn’t in your personal locker. The prosecutor’s going to claim you had the “power to control” the weapon. We’ll show you didn’t. We bring in witness statements, property records, or documented photos to show the actual arrangement. The key is to disprove you had dominion over that area or item.
Dealing with Federal Sentencing Guidelines
If your situation escalates into a federal prosecution, we take a different track. We analyze guidelines under the U.S. Sentencing Commission. We look at your offense level, your criminal history category, and any available adjustments. Sometimes, we fight for a “downward departure” because you had an otherwise clean record, or because the circumstances in your case don’t warrant the harsh sentencing range. Federal judges have limited discretion, but we do everything in our power to highlight mitigating factors.
We’re also mindful of how double jeopardy and parallel charges might collide. If you plead out in state court, does that bar the feds from prosecuting you too? Typically, no. But how we approach your negotiations can influence what happens on the federal side. We coordinate across both jurisdictions, so you have a unified defense strategy.
What You Should Do Right Now
- Gather Documents: Bring us every single piece of paper you have—complaints, warrants, bail documents—anything. We need to see the full picture.
- Don’t Talk to Investigators: Agents will act friendly to get you talking. Don’t make statements without legal counsel. You can’t talk your way out of these charges on your own.
- Document Your Side of the Story: Write down what happened from start to finish. Mention every possible witness who can verify your claims.
- Reach Out ASAP: Delaying might hurt your case. We’re available 24/7 to consult with you.
We Are Spodek Law Group
We’re a top-rated criminal defense law firm with over 50 years of combined experience. We handle tough cases nationwide, coast to coast. Our attorneys have been interviewed by major news outlets like FOX News, NYPost, and many others. We know how to protect your rights, challenge the prosecution’s evidence, and explore every angle that might help you. No matter how complicated your case feels, we’re not afraid to fight.