New York State - State of the State address
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Brian Pfleuger
Moderator Emeritus
Nope, that's how it works.
Tons of people in NY (including me) are in possession of 3 or more firearms. Trust me, it's not a crime.
Tons of people in NY (including me) are in possession of 3 or more firearms. Trust me, it's not a crime.
Brian, I think musher has it right here. Basic grammar dictates that the semicolon is a much stronger separator than the comma. Essentially, the first condition for 3rd degree is [4th degree AND previous crime], then it breaks with a semicolon and gives the second condition, and so on. If you want even stronger evidence of this, go look at the conditions for 1st degree. There's no such "and" statement there, but there is a condition for possession of 10 firearms. I think the "and" statement in the first 3rd degree condition is pure coincidence. If it was intention, they would not have written the law that way. The 4th degree part would have been at the top and the criminal bit would have been the (1). Additionally, they would have included some bit about lower degrees at the top of the 2nd and 1st degree lists. More importantly the colon after "when" would have to be after "and".
Now, I empathize with your sentiment, because that was the sentiment I operated under when I lived in NY. I have family there that have more than three firearms on their pistol license (the definition of "firearm" doesn't include rifle if I remember correctly), and I know others with more than ten. But that doesn't justify forcing the text of the law to fit a mold it doesn't fit. Instead, I think there are two, more reasonable ways to analyze the situation:
(1) it is simply not well-known and understood by the administration and law enforcement; or
(2) the word "possess" was intended to mean more than 'own', or was intended to have some sort of exception for the home.
I believe there are other places in the NY firearm laws that exempt the home from possession clauses, but I don't think they actually apply to this one. Nevertheless, I expect that the latter might be the intention. You know, it is quite possible that the law was poorly written
but I don't think that changes what it literally means. The fact that we haven't seen prosecution for this might not mean anything.
Now, I empathize with your sentiment, because that was the sentiment I operated under when I lived in NY. I have family there that have more than three firearms on their pistol license (the definition of "firearm" doesn't include rifle if I remember correctly), and I know others with more than ten. But that doesn't justify forcing the text of the law to fit a mold it doesn't fit. Instead, I think there are two, more reasonable ways to analyze the situation:
(1) it is simply not well-known and understood by the administration and law enforcement; or
(2) the word "possess" was intended to mean more than 'own', or was intended to have some sort of exception for the home.
I believe there are other places in the NY firearm laws that exempt the home from possession clauses, but I don't think they actually apply to this one. Nevertheless, I expect that the latter might be the intention. You know, it is quite possible that the law was poorly written
but I don't think that changes what it literally means. The fact that we haven't seen prosecution for this might not mean anything.You may be right about the reality and the interpretation, but I would ask if a violation of 265.02 (2) requires as an element the violation of 265.01 (1) or (2) or (3) or (5)
Perhaps Dove is right in suggesting that possession in this statute means something like "possession of unregistered firearms".
Perhaps there is a definitions paragraph somewhere in this section that clarifies this.
Perhaps Dove is right in suggesting that possession in this statute means something like "possession of unregistered firearms".
Perhaps there is a definitions paragraph somewhere in this section that clarifies this.
Brian Pfleuger
Moderator Emeritus
Dove,
No offense but you're going through some pretty strange mental gymnastics to explain what you consider to be proper grammar when it in fact makes far more sense that the law is exactly as I explained.
265.02
A person is guilty of criminal possession of a weapon in the third degree when:
(1) Such person 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
(5) (i) Such person possesses three or more firearms; or
First, must commit Possession 4th OR have previously been convicted of "any crime" (elsewhere defined as felony or serious misdemeanor) AND possesses 3 or more firearms.
Notice it says "such person". It's not ANY person who possesses, it's "such person".
Such person as what? Such person as one who does what's in the first paragraph.
No offense but you're going through some pretty strange mental gymnastics to explain what you consider to be proper grammar when it in fact makes far more sense that the law is exactly as I explained.
265.02
A person is guilty of criminal possession of a weapon in the third degree when:
(1) Such person 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
(5) (i) Such person possesses three or more firearms; or
First, must commit Possession 4th OR have previously been convicted of "any crime" (elsewhere defined as felony or serious misdemeanor) AND possesses 3 or more firearms.
Notice it says "such person". It's not ANY person who possesses, it's "such person".
Such person as what? Such person as one who does what's in the first paragraph.
This may be an attempt to build political capital. If he requires confiscation, it won't pass in the legislature. If it fails, he still looks anti-gun if he ever attempts to run for president.
I believe this is true both in N.Y.S. and Washington D.C.
Not much will pass, but the gun grabbers can say, "We tried!!! But the evil Republicans stopped us!!! Vote for more of us in 2014!!!
Do not kid yourself--most office seekers understand that gun control has been political suicide sine 9/11
I believe this is true both in N.Y.S. and Washington D.C.
Not much will pass, but the gun grabbers can say, "We tried!!! But the evil Republicans stopped us!!! Vote for more of us in 2014!!!
Do not kid yourself--most office seekers understand that gun control has been political suicide sine 9/11
Brian, by all means I hope you're right. I'm just giving my personal analysis, and as someone who doesn't have any legal expertise, I can't say it means much of anything. I don't think anything I've posed is strange. I think there is plenty of reason to believe that the interpretation of the law in court will rely upon the exact nature of its text and the facts of grammar and punctuation that apply to it. In this case, that is the function of colons, semicolons, and commas.
As much as it truly pains me to say it (and I do mean that in all sincerity), it makes more sense to me to read the list as a list of separately qualifying conditions. But I won't bother to try to argue my point on the 3rd degree text, because it is just an opinion, and I don't have anything more to go by then what I've already stated. I'd be interested in hearing a professional legal opinion.
However, I am curious to see what your thoughts are on the 1st degree text. Up until just last night, I sided with your reading of the law. I had seen the question pop up on an NY forum awhile back (back when I lived in NY), someone gave your response, and I took it at face value without thinking anymore about it or reading deeper. What changed my mind last night was reading the text of the 1st degree law:
§ 265.04 Criminal possession of a weapon in the first degree.
A person is guilty of criminal possession of a weapon in the first
degree when such person:
(1) possesses any explosive substance with intent to use the same
unlawfully against the person or property of another; or
(2) possesses ten or more firearms.
Criminal possession of a weapon in the first degree is a class B
felony.
There's no "and" here and nothing about having to be guilty of a lesser degree of CPW.
EDIT: Re the "such person" bit, I would say that the "such person" refers to the "person" who "is guilty of" in the text before the numbers. Note that (1) opens with the same "such person", and clearly that paragraph doesn't precede itself. Also, I think the opening of the 1st degree text supports this reading, as it uses "such person" in the same way.
The other food for thought I'd offer is: if you wanted the law to mean what I'm arguing it means (that the first element is [CPW 4 & previous crime] and everything else is a separate option), how would you go about modifying it? I'll admit that I'm looking for something that doesn't involve just making that the last numbered point instead of the first.
EDIT 2: Okay, so I think I've cracked this nut in a way that is consistent with my interpretation and consistent with your belief that it's not a crime to have x number of firearms.
§ 265.00 Definitions.
...
3. "Firearm" means (a) any pistol or revolver; or (b) a shotgun having
one or more barrels less than eighteen inches in length; or (c) a rifle
having one or more barrels less than sixteen inches in length; or (d)
any weapon made from a shotgun or rifle whether by alteration,
modification, or otherwise if such weapon as altered, modified, or
otherwise has an overall length of less than twenty-six inches; or (e)
an assault weapon. For the purpose of this subdivision the length of the
barrel on a shotgun or rifle shall be determined by measuring the
distance between the muzzle and the face of the bolt, breech, or
breechlock when closed and when the shotgun or rifle is cocked; the
overall length of a weapon made from a shotgun or rifle is the distance
between the extreme ends of the weapon measured along a line parallel to
the center line of the bore. Firearm does not include an antique
firearm.
So basically, "firearm" means pistol, since SBRs and SBSs is a whole nother can of worms. With that in mind, consider this:
§ 265.20 Exemptions.
a. Sections 265.01, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11,
265.12, 265.13, 265.15 and 270.05 shall not apply to:
...
3. Possession of a pistol or revolver by a person to whom a license
therefor has been issued as provided under section 400.00 or 400.01 of
this chapter; provided, that such a license shall not preclude a
conviction for the offense defined in subdivision three of section
265.01 of this article.
So I'd take that as saying that having a pistol license for the "firearms" in question exempts you from all the CPW charges on said "firearms" EXCEPT for subdivision (3) of CPW 3:
§ 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:
...
(3) He or she knowingly has in his or her 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, or upon a school
bus as defined in section one hundred forty-two of the vehicle and
traffic law, without the written authorization of such educational
institution; or
which is irrelevant to our discussion.
Case closed?
As much as it truly pains me to say it (and I do mean that in all sincerity), it makes more sense to me to read the list as a list of separately qualifying conditions. But I won't bother to try to argue my point on the 3rd degree text, because it is just an opinion, and I don't have anything more to go by then what I've already stated. I'd be interested in hearing a professional legal opinion.
However, I am curious to see what your thoughts are on the 1st degree text. Up until just last night, I sided with your reading of the law. I had seen the question pop up on an NY forum awhile back (back when I lived in NY), someone gave your response, and I took it at face value without thinking anymore about it or reading deeper. What changed my mind last night was reading the text of the 1st degree law:
§ 265.04 Criminal possession of a weapon in the first degree.
A person is guilty of criminal possession of a weapon in the first
degree when such person:
(1) possesses any explosive substance with intent to use the same
unlawfully against the person or property of another; or
(2) possesses ten or more firearms.
Criminal possession of a weapon in the first degree is a class B
felony.
There's no "and" here and nothing about having to be guilty of a lesser degree of CPW.
EDIT: Re the "such person" bit, I would say that the "such person" refers to the "person" who "is guilty of" in the text before the numbers. Note that (1) opens with the same "such person", and clearly that paragraph doesn't precede itself. Also, I think the opening of the 1st degree text supports this reading, as it uses "such person" in the same way.
The other food for thought I'd offer is: if you wanted the law to mean what I'm arguing it means (that the first element is [CPW 4 & previous crime] and everything else is a separate option), how would you go about modifying it? I'll admit that I'm looking for something that doesn't involve just making that the last numbered point instead of the first.
EDIT 2: Okay, so I think I've cracked this nut in a way that is consistent with my interpretation and consistent with your belief that it's not a crime to have x number of firearms.
§ 265.00 Definitions.
...
3. "Firearm" means (a) any pistol or revolver; or (b) a shotgun having
one or more barrels less than eighteen inches in length; or (c) a rifle
having one or more barrels less than sixteen inches in length; or (d)
any weapon made from a shotgun or rifle whether by alteration,
modification, or otherwise if such weapon as altered, modified, or
otherwise has an overall length of less than twenty-six inches; or (e)
an assault weapon. For the purpose of this subdivision the length of the
barrel on a shotgun or rifle shall be determined by measuring the
distance between the muzzle and the face of the bolt, breech, or
breechlock when closed and when the shotgun or rifle is cocked; the
overall length of a weapon made from a shotgun or rifle is the distance
between the extreme ends of the weapon measured along a line parallel to
the center line of the bore. Firearm does not include an antique
firearm.
So basically, "firearm" means pistol, since SBRs and SBSs is a whole nother can of worms. With that in mind, consider this:
§ 265.20 Exemptions.
a. Sections 265.01, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11,
265.12, 265.13, 265.15 and 270.05 shall not apply to:
...
3. Possession of a pistol or revolver by a person to whom a license
therefor has been issued as provided under section 400.00 or 400.01 of
this chapter; provided, that such a license shall not preclude a
conviction for the offense defined in subdivision three of section
265.01 of this article.
So I'd take that as saying that having a pistol license for the "firearms" in question exempts you from all the CPW charges on said "firearms" EXCEPT for subdivision (3) of CPW 3:
§ 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:
...
(3) He or she knowingly has in his or her 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, or upon a school
bus as defined in section one hundred forty-two of the vehicle and
traffic law, without the written authorization of such educational
institution; or
which is irrelevant to our discussion.
Case closed?
Last edited:
vranasaurus
New member
http://www.nycourts.gov/cji/2-PenalLaw/265/art265hp.htm
Here is a link to New York jury instructions.
You can read the instructions for the various offenses.
Here is the instruction for criminal possession of a weapon in the third degree.
http://www.nycourts.gov/cji/2-PenalLaw/265/265-02%285%29%28i%29.pdf
Not a well written law and those are some scary jury instructions.
Here is a link to New York jury instructions.
You can read the instructions for the various offenses.
Here is the instruction for criminal possession of a weapon in the third degree.
http://www.nycourts.gov/cji/2-PenalLaw/265/265-02%285%29%28i%29.pdf
Not a well written law and those are some scary jury instructions.
@musher: No problem! I was curious and unconvinced myself.
@vranasaurus: Wow...very scary...At this point I'm not sure whether I'd say the law itself is well-written or not. However, it is ABSURD that the instruction doesn't point to the existence of the exemptions, considering how plentiful they are. I think the length of the exemption text exceeds the text of all the degrees combined. At the very least tack on: 'unless the accused is exempted as per § 265.20.'.
@vranasaurus: Wow...very scary...At this point I'm not sure whether I'd say the law itself is well-written or not. However, it is ABSURD that the instruction doesn't point to the existence of the exemptions, considering how plentiful they are. I think the length of the exemption text exceeds the text of all the degrees combined. At the very least tack on: 'unless the accused is exempted as per § 265.20.'.