NY CLS Penal - 265.00 PDF

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NY CLS Penal 265.00

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Brandon Okano
NY CLS Penal 265.00

Current through 2015 released chapters 1-589
New York Consolidated Laws Service > Penal Law > Part THREE Specific Offenses > Title P Offenses
Against Public Safety > Article 265 Firearms and Other Dangerous Weapons
265.00. Definitions
As used in this article and in article four hundred, the following terms shall mean and include:
1.
Machine-gun means a weapon of any description, irrespective of size, by whatever name known, loaded or
unloaded, from which a number of shots or bullets may be rapidly or automatically discharged from a
magazine with one continuous pull of the trigger and includes a sub-machine gun.
2.
Firearm silencer means any instrument, attachment, weapon or appliance for causing the firing of any gun,
revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun,
revolver, pistol or other firearms.
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.
4.
Switchblade knife means any knife which has a blade which opens automatically by hand pressure applied
to a button, spring or other device in the handle of the knife.
5.
Gravity knife means any knife which has a blade which is released from the handle or sheath thereof by the
force of gravity or the application of centrifugal force which, when released, is locked in place by means of
a button, spring, lever or other device.
5-a. Pilum ballistic knife means any knife which has a blade which can be projected from the handle by hand
pressure applied to a button, lever, spring or other device in the handle of the knife.
5-b. Metal knuckle knife means a weapon that, when closed, cannot function as a set of plastic knuckles or
metal knuckles, nor as a knife and when open, can function as both a set of plastic knuckles or metal knuckles
as well as a knife.
5-c. Automatic knife includes a stiletto, a switchblade knife, a gravity knife, a cane sword, a pilum ballistic
knife, and a metal knuckle knife.
6.
Dispose of means to dispose of, give, give away, lease-loan, keep for sale, offer, offer for sale, sell, transfer
and otherwise dispose of.
7.
Deface means to remove, deface, cover, alter or destroy the manufacturers serial number or any other
distinguishing number or identification mark.
8.
Gunsmith means any person, firm, partnership, corporation or company who engages in the business of
repairing, altering, assembling, manufacturing, cleaning, polishing, engraving or trueing, or who performs any
mechanical operation on, any firearm, large capacity ammunition feeding device or machine-gun.
9.
Dealer in firearms means any person, firm, partnership, corporation or company who engages in the business
of purchasing, selling, keeping for sale, loaning, leasing, or in any manner disposing of, any assault weapon,
large capacity ammunition feeding device, pistol or revolver.
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10. Licensing officer means in the city of New York the police commissioner of that city; in the county of
Nassau the commissioner of police of that county; in the county of Suffolk the sheriff of that county except
in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown, the commissioner of police of that
county; for the purposes of section 400.01 of this chapter the superintendent of state police; and elsewhere in
the state a judge or justice of a court of record having his office in the county of issuance.
11. Rifle means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder
and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge
to fire only a single projectile through a rifled bore for each single pull of the trigger.
12.
Shotgun means a weapon designed or redesigned, made or remade, and intended to be fired from the
shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun
shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of
the trigger.
13. Cane Sword means a cane or swagger stick having concealed within it a blade that may be used as a sword
or stilletto.
Chuka stick means any device designed primarily as a weapon, consisting of two or more lengths of a rigid
material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion
of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury
upon a person by striking or choking. These devices are also known as nunchakus and centrifugal force sticks.
Antique firearm means:
Any unloaded muzzle loading pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of
ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary
channels of commercial trade.
15. Loaded firearm means any firearm loaded with ammunition or any firearm which is possessed by one who,
at the same time, possesses a quantity of ammunition which may be used to discharge such firearm.
15-a. Electronic dart gun means any device designed primarily as a weapon, the purpose of which is to
momentarily stun, knock out or paralyze a person by passing an electrical shock to such person by means of
a dart or projectile.
15-b. Kung Fu star means a disc-like object with sharpened points on the circumference thereof and is designed
for use primarily as a weapon to be thrown.
15-c. Electronic stun gun means any device designed primarily as a weapon, the purpose of which is to stun,
cause mental disorientation, knock out or paralyze a person by passing a high voltage electrical shock to such
person.
16. Certified not suitable to possess a self-defense spray device, a rifle or shotgun means that the director or
physician in charge of any hospital or institution for mental illness, public or private, has certified to the
superintendent of state police or to any organized police department of a county, city, town or village of this
state, that a person who has been judicially adjudicated incompetent, or who has been confined to such
institution for mental illness pursuant to judicial authority, is not suitable to possess a self-defense spray
device, as defined in section 265.20 of this article, or a rifle or shotgun.
17. Serious offense means
(a) any of the following offenses defined in the former penal law as in force and effect immediately prior
to September first, nineteen hundred sixty-seven: illegally using, carrying or possessing a pistol or other
dangerous weapon; making or possessing burglars instruments; buying or receiving stolen property;
unlawful entry of a building; aiding escape from prison; that kind of disorderly conduct defined in
subdivisions six and eight of section seven hundred twenty-two of such former penal law; violations of
sections four hundred eighty-three, four hundred eighty-three-b, four hundred eighty-four-h and article
one hundred six of such former penal law; that kind of 1 criminal sexual act or rape which was designated
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as a misdemeanor; violation of section seventeen hundred forty-seven-d and seventeen hundred
forty-seven-e of such former penal law; any violation of any provision of article thirty-three of the public
health law relating to narcotic drugs which was defined as a misdemeanor by section seventeen hundred
fifty-one-a of such former penal law, and any violation of any provision of article thirty-three-A of the
public health law relating to depressant and stimulant drugs which was defined as a misdemeanor by
section seventeen hundred forty-seven-b of such former penal law.
(b) [As amended, L 2010, ch 232, 2] any of the following offenses defined in the penal law: illegally using,
carrying or possessing a pistol or other dangerous weapon; possession of burglars tools; criminal
possession of stolen property in the third degree; escape in the third degree; jostling; fraudulent accosting;
1
endangering the welfare of a child; the offenses defined in article two hundred thirty-five; issuing
abortional articles; permitting prostitution; promoting prostitution in the third degree; stalking in the
fourth degree; stalking in the third degree; the offenses defined in article one hundred thirty; the offenses
defined in article two hundred twenty.
(b) [As amended, L 2010, ch 232, 3] any of the following offenses defined in the penal law: illegally using,
carrying or possessing a pistol or other dangerous weapon; possession of burglars tools; criminal
possession of stolen property in the third degree; escape in the third degree; jostling; fraudulent accosting;
1
endangering the welfare of a child; the offenses defined in article two hundred thirty-five; issuing
abortional articles; permitting prostitution; promoting prostitution in the third degree; stalking in the third
degree; stalking in the fourth degree; the offenses defined in article one hundred thirty; the offenses
defined in article two hundred twenty.
18. Armor piercing ammunition means any ammunition capable of being used in pistols or revolvers containing
a projectile or projectile core, or a projectile or projectile core for use in such ammunition, that is constructed
entirely (excluding the presence of traces of other substances) from one or a combination of any of the
following: tungsten alloys, steel, iron, brass, bronze, beryllium copper, or uranium.
19. Duly authorized instructor means (a) a duly commissioned officer of the United States army, navy, marine
corps or coast guard, or of the national guard of the state of New York; or (b) a duly qualified adult citizen
of the United States who has been granted a certificate as an instructor in small arms practice issued by the
United States army, navy or marine corps, or by the adjutant general of this state, or by the national rifle
association of America, a not-for-profit corporation duly organized under the laws of this state; or (c) by a
person duly qualified and designated by the department of environmental conservation under paragraph d of
subdivision six of section 11-0713 of the environmental conservation law as its agent in the giving of
instruction and the making of certifications of qualification in responsible hunting practices.
20. Disguised gun means any weapon or device capable of being concealed on the person from which a shot
can be discharged through the energy of an explosive and is designed and intended to appear to be something
other than a gun.
21. Semiautomatic means any repeating rifle, shotgun or pistol, regardless of barrel or overall length, which
utilizes a portion of the energy of a firing cartridge or shell to extract the fired cartridge case or spent shell
and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge or shell.
22. Assault weapon means
(a) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least one of the
following characteristics:
(i)
a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a thumbhole stock;
(iv) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(v) a bayonet mount;
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(vi) a flash suppressor, muzzle break, muzzle compensator, or threaded barrel designed to accommodate
a flash suppressor, muzzle break, or muzzle compensator;
(vii) a grenade launcher; or
(b) a semiautomatic shotgun that has at least one of the following characteristics:
(i)
(ii) a thumbhole stock;

(iii) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(iv) a fixed magazine capacity in excess of seven rounds;
(v) an ability to accept a detachable magazine; or
(c) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the
following characteristics:
(i)
(ii) a thumbhole stock;

(iii) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip;
(v)
a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or
silencer;
(vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the
shooter to hold the firearm with the non-trigger hand without being burned;
(vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or
(viii) a semiautomatic version of an automatic rifle, shotgun or firearm;
(d) a revolving cylinder shotgun;
(e)
a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or weapon defined in

subparagraph (v) of paragraph (e) of subdivision twenty-two of section 265.00 of this chapter as added
by chapter one hundred eighty-nine of the laws of two thousand and otherwise lawfully possessed
pursuant to such chapter of the laws of two thousand prior to September fourteenth, nineteen hundred
ninety-four;
(f) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or weapon defined in paragraph
(a), (b) or (c) of this subdivision, possessed prior to the date of enactment of the chapter of the laws of
two thousand thirteen which added this paragraph;
(g) provided, however, that such term does not include:
(i)
any rifle, shotgun or pistol that (A) is manually operated by bolt, pump, lever or slide action; (B)
has been rendered permanently inoperable; or (C) is an antique firearm as defined in 18 U.S.C.
921(a)(16);
(ii) a semiautomatic rifle that cannot accept a detachable magazine that holds more than five rounds of
ammunition;
(iii)
a semiautomatic shotgun that cannot hold more than five rounds of ammunition in a fixed or
detachable magazine; or
(iv) a rifle, shotgun or pistol, or a replica or a duplicate thereof, specified in Appendix A to 18 U.S.C.
922 as such weapon was manufactured on October first, nineteen hundred ninety-three. The mere
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fact that a weapon is not listed in Appendix A shall not be construed to mean that such weapon is
an assault weapon;
(v) any weapon validly registered pursuant to subdivision sixteen-a of section 400.00 of this chapter.
Such weapons shall be subject to the provisions of paragraph (h) of this subdivision;
(vi) any firearm, rifle, or shotgun that was manufactured at least fifty years prior to the current date, but
not including replicas thereof that is validly registered pursuant to subdivision sixteen-a of section
400.00 of this chapter;
(h)
Any weapon defined in paragraph (e) or (f) of this subdivision and any large capacity ammunition
feeding device that was legally possessed by an individual prior to the enactment of the chapter of the
laws of two thousand thirteen which added this paragraph, may only be sold to, exchanged with or
disposed of to a purchaser authorized to possess such weapons or to an individual or entity outside of the
state provided that any such transfer to an individual or entity outside of the state must be reported to the
entity wherein the weapon is registered within seventy-two hours of such transfer. An individual who
transfers any such weapon or large capacity ammunition device to an individual inside New York state
or without complying with the provisions of this paragraph shall be guilty of a class A misdemeanor
unless such large capacity ammunition feeding device, the possession of which is made illegal by the
chapter of the laws of two thousand thirteen which added this paragraph, is transferred within one year
of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph.
23. Large capacity ammunition feeding device means a magazine, belt, drum, feed strip, or similar device, 1 that
(a) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of
ammunition, or [pars (b) and (c) are suspended and not effective as stated in Laws 2013, ch 1, 58, sub b note
below] (b) contains more than seven rounds of ammunition, or (c) is obtained after the effective date of the
chapter of the laws of two thousand thirteen which amended this subdivision and has a capacity of, or that
can be readily restored or converted to accept, more than seven rounds of ammunition; provided, however, that
such term does not include an attached tubular device designed to accept, and capable of operating only with,
.22 caliber rimfire ammunition or a feeding device that is a curio or relic. A feeding device that is a curio or
relic is defined as a device that (i) was manufactured at least fifty years prior to the current date, (ii) is only
capable of being used exclusively in a firearm, rifle, or shotgun that was manufactured at least fifty years prior
to the current date, but not including replicas thereof, (iii) is possessed by an individual who is not prohibited
by state or federal law from possessing a firearm and (iv) is registered with the division of state police
pursuant to subdivision sixteen-a of section 400.00 of this chapter, except such feeding devices transferred into
the state may be registered at any time, provided they are registered within thirty days of their transfer into
the state. Notwithstanding paragraph (h) of subdivision twenty-two of this section, such feeding devices may
be transferred provided that such transfer shall be subject to the provisions of section 400.03 of this chapter
including the check required to be conducted pursuant to such section.
24. Seller of ammunition means any person, firm, partnership, corporation or company who engages in the
business of purchasing, selling or keeping ammunition.
25. Qualified retired New York or federal law enforcement officer means an individual who is a retired police
officer as police officer is defined in subdivision thirty-four of section 1.20 of the criminal procedure law, a
retired peace officer as peace officer is defined in section 2.10 of the criminal procedure law or a retired
federal law enforcement officer as federal law enforcement officer is defined in section 2.15 of the criminal
procedure law, who: (a) separated from service in good standing from a public agency located in New York
state in which such person served as either a police officer, peace officer or federal law enforcement officer;
and (b) before such separation, was authorized by law to engage in or supervise the prevention, detection,
investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory
powers of arrest, pursuant to their official duties, under the criminal procedure law; and (c) (i) before such
separation, served as either a police officer, peace officer or federal law enforcement officer for five years or
more and at the time of separation, is such an officer; or (ii) separated from service with such agency, after
completing any applicable probationary period of such service, due to a service-connected disability, as
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determined by such agency at or before the time of separation; and (d)(i) has not been found by a qualified
medical professional employed by such agency to be unqualified for reasons relating to mental health; or (ii)
has not entered into an agreement with such agency from which the individual is separating from service in
which that individual acknowledges he or she is not qualified for reasons relating to mental health; and (e) is
not otherwise prohibited by New York or federal law from possessing any firearm.
History
Add, L 1965, ch 1030, 1, eff Sept 1, 1967, with substance derived from 1896; amd, L 1967, ch 791, 46; L 1969,
ch 123, 1, eff Sept 1, 1969; L 1972, ch 588, 1; L 1972, ch 605, 1; L 1974, ch 179, 1, eff Sept 1, 1974; L
1974, ch 986, 1, 2; L 1974, ch 1041, 1, eff Sept 1, 1974; L 1976, ch 217, 1, eff Sept 1, 1976; L 1982, ch 492,
1; L 1985, ch 61, 1, eff Nov 1, 1985; L 1986, ch 328, 2, eff Nov 1, 1986; L 1986, ch 646, 1, eff Nov 1, 1986;
L 1988, ch 264, 1; L 1990, ch 264, 1, eff Nov 1, 1990; L 1995, ch 219, 2, eff Nov 1, 1995; L 1996, ch 354, 2,
eff Nov 1, 1996; L 1997, ch 446, 2, eff Aug 25, 1997 (see 1997 note below); L 1998, ch 378, 1, eff Nov 1, 1998;
L 1999, ch 210, 1, eff Nov 1, 1999; L 1999, ch 635, 11, 15, eff Dec 1, 1999 (see 1999 note below); L 2000, ch 189,
810, eff Nov 1, 2000 (see 2000 note below); L 2008, ch 257, 3, eff Nov 1, 2008; L 2010, ch 232, 2, 3, eff
July 30, 2010; L 2013, ch 1, 37, eff Jan 15, 2013,38, eff April 15, 2013, except sub 23, par (a) eff Jan 15, 2013,
except sub 23, pars (b) and (c), suspended and not effective as stated in 2013 note below,39, eff March 16, 2013 (see
2013 note below); L 2013, ch 98, 1, eff July 5, 2013.
Annotations
Notes
Editors Notes:
Laws 1997, ch 446, 1, 7, eff Aug 25, 1997, provide as follows:
Section 1. This act shall be known and may be cited as the Westchester county handgun record-keeping and accountability
act. (Amd, L 1997, ch 447, 1, eff Aug 25, 1997.).
7. This act shall take effect immediately and in Westchester county shall apply to licenses issued on or after such date.
(Amd, L 1997, ch 447, 4, eff Aug 25, 1997.).
Laws 1997, ch 447, 5, eff Aug 25, 1997, provides as follows:
5. This act shall take effect on the same date as a chapter of the laws of 1997, amending the penal law enacting the
Westchester county handgun record-keeping and accountability act, as proposed in legislative bills numbers S. 5498-A and
A. 8311-A, takes effect, and nothing contained in such chapter shall be construed as abridging the five year period
applicable within Suffolk county with respect to the expiration of licenses to carry or possess a revolver.
Laws 1999, ch 635, 1, 2 and 17, eff Dec 1, 1999, provide as follows:
Section 1. Short title. This act shall be known and may be cited as the clinic access and anti-stalking act of 1999.
2. Legislative intent. The legislature finds and declares that criminal stalking behavior, including threatening, violent or
other criminal conduct has become more prevalent in New York state in recent years. The unfortunate reality is that stalking
victims have been intolerably forced to live in fear of their stalkers. Stalkers who repeatedly follow, phone, write, confront,
threaten or otherwise unacceptably intrude upon their victims, often inflict immeasurable emotional and physical harm
upon them. Current law does not adequately recognize the damage to public order and individual safety caused by these
offenders. Therefore, our laws must be strengthened to provide clear recognition of the dangerousness of stalking.
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The high correlation between stalking behavior and the infliction of physical violence or sexual assault is demonstrated by
two federal studies. A recent FBI crime report shows that thirty percent of all murdered women are killed by their husbands
or boyfriends who stalked them. A November 1997 National Institute of Justice study of stalking found that eighty percent
of stalking victims who were stalked by their current or former intimate partner had, at some point in their relationship,
been physically assaulted by their partner and thirty-one percent had been sexually assaulted by their partner. In recognition
of the real and substantial risk of harm associated with stalking behavior, 49 states have enacted anti-stalking laws.
In 1992, the Legislature took an important step towards recognizing that stalking requires stronger enforcement measures
by amending New Yorks menacing and harassment sections to include stalking behavior within the definition of these
crimes. With this act, New York creates the separate crime of stalking. This act will protect victims by providing real and
effective sanctions for stalking conduct even at its earliest stages. It will also provide increased penalties for repeat
offenders, for those offenders who stalk children, for those offenders who possess weapons when stalking, and for those
offenders who commit stalking in violation of an order of protection.
The legislature also finds that criminal acts involving violence and intolerance at health care facilities and places of
religious worship have become more prevalent in recent years. Medical clinics, physicians offices and other facilities
throughout the state have become targets in a campaign of obstruction and terrorism aimed at closing the facilities and
intimidating those who seek to obtain or provide reproductive health services. In addition, places of religious worship have
regrettably been targets of vandals thereby threatening these havens of peaceful prayer and meditation. Despite the passage
of a 1994 federal law that makes it a federal crime for a person to deny access to or vandalize health care facilities and
places of religious worship, state legislation is necessary to supplement federal law by empowering state and local officials
to assist in combating violence and acts of vandalism at health care facilities and places of religious worship. It is therefore
the intent of the legislature to provide state criminal penalties against anyone who, by force or threat of force or by physical
obstruction, intentionally injures, intimidates or interferes with another person or attempts to injure, intimidate or interfere
with another person, because such other person was or is seeking to obtain or provide or assist in the provision of
reproductive health services or exercise the right of religious freedom.
17. Nothing contained in this act shall be construed to eliminate, limit or impair any sanction or remedy not provided
by the provisions of this act which is otherwise available to punish or prohibit the criminal interference with health care
services or religious worship.
Laws 2000, ch 189, 26 and 28, sub 1, eff Aug 8, 2000, provide as follows:
26. Nothing in this act shall be construed to prohibit a municipality or other unit of local government from adopting or
maintaining a stricter standard regulating the subject matters contained in sections three, ten or the amendments made to
paragraph (a) of subdivision 1 of section 400.00 of the penal law by section eighteen of this act by local law or ordinance.
28. This act shall take effect immediately; provided, however, that:
1. Sections one through three, six through nineteen and twenty-three and twenty-four of this act shall take effect on the first
day of November next succeeding the date on which it shall have become a law; provided, further, however, that effective
immediately the division of state police is authorized and directed to promulgate such rules and regulations as may be
necessary to effectuate the provisions of sections three and four of this act; provided, further, that the amendments to
subdivision 3 of section 265.00 of the penal law made by section eight of this act shall apply to offenses committed in
violation of article 265 or 400 of the penal law on or after the first day of November next succeeding the date on which
this act shall have become a law; and.
Laws 2007, ch 510, 1, 5, eff Feb 11, 2008, provides as follows:
Section 1. Legislative intent. It is the intent of the legislature to facilitate the establishment of certain museums that are
dedicated to cataloging, inventorying, exhibiting or displaying cutlery and knives made in New York state. This act will
particularly help municipalities and interested groups located in the Hudson valley, which has a long history of
manufacturing knives, to establish a cutlery and knife museum to offer for public display or exhibition of, among other
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exhibits, certain automatic knives. During the early twentieth century, the counties of Orange, Sullivan, and Ulster
manufactured approximately fifty percent of all knives manufactured in the United States. There are persons who are
interested in local history and are planning to establish a local museum to display all the various kinds of cutlery and knives
that were manufactured in the Hudson valley and throughout the United States. However, while certain military and police
personnel and those who hold a hunting or fishing license are able to legally possess certain automatic knives, museums
and other institutions, incorporated for the promotion of art, education, history, and science, are not legally permitted to
possess or own such artifacts. This act remedies this situation in a way that still places these knives in a secure environment
and out of general circulation.
5. This act shall take effect on the one hundred eightieth day after it shall have become a law; provided that any and all
rules and regulations and any other measures necessary to implement any provision of this act on its effective date may
be promulgated and taken, respectively, on or before the effective date of such provision.
Laws 2013, ch 1, 58, sub b, eff Jan 15, 2013, provides as follows:
58. This act shall take effect immediately; provided, however, that:
b. The amendments to subdivision 23 of section 265.00 of the penal law made by section thirty-eight of this act shall take
effect on the ninetieth day after this act shall have become a law, except that the amendments designating paragraph (a)
of subdivision 23 shall take effect immediately; and provided further that the effective date of the amendments adding
paragraphs (b) and (c) to such subdivision shall be suspended and not effective; (Amd, L 2013, ch 57, 4 (Part FF), eff
March 29, 2013, deemed in full force and eff March 16, 2013.).
Amendment Notes:
2013. Chapter 1, 37 amended:
By deleting former sub 22, pars (a)(e).
By adding sub 22, pars (a)(h).
Sub 23 by deleting at fig 1 manufactured after September thirteenth, nineteen hundred ninety-four, and adding the matter
in italics.
By adding sub 24.
By adding sub 25.
Sub 17, par (b) [first setout] by deleting at fig 1 that kind of loitering defined in subdivision three of section 240.35;.
Sub 17, par (b) [second setout] by deleting at fig 1 that kind of loitering defined in subdivision three of section 240.35;.
By adding sub 5-c.
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Notes to Decisions
1. In general
2. Firearms, generally
3. Pistols and revolvers
4. Shotguns
5. Rifles
6. Knives, generally
7. Deface
8. Antique firearm
9. Preemption of local laws
10. Possession of dangerous weapon
11. Licensing requirement
12. Under former 1896
1. In general
Possession of weapons vis-a-vis the arresting officers was independent of and not a lesser included offense of robbery
charge. People v Reynolds, 53 A.D.2d 877, 385 N.Y.S.2d 337, 1976 N.Y. App. Div. LEXIS 13707 (N.Y. App. Div. 2d
Dept 1976).
Application for firearm license is properly denied where applicant has prior conviction for serious offense, as defined
in CLS Penal 265.00, of unlawful entry into building and has also been convicted of driving while impaired and
of driving while intoxicated, with latter conviction stemming from arrest occurring only several weeks prior to
submission of license application. Schnell v Spano, 120 A.D.2d 669, 502 N.Y.S.2d 263, 1986 N.Y. App. Div. LEXIS
56774 (N.Y. App. Div. 2d Dept 1986).
Defendants conviction of fourth degree weapon possession would be reversed, in interest of justice, since trial courts
refusal to present weapon charge to jury at first trial warranted inference that charge was dismissed for insufficient
evidence, and therefore defendant should not have been retired on that charge. People v Kluck, 131 A.D.2d 590, 516
N.Y.S.2d 298, 1987 N.Y. App. Div. LEXIS 48053 (N.Y. App. Div. 2d Dept 1987).
Dealer in firearms cannot lawfully possess or dispose of firearm silencers and machine guns, and gunsmith cannot
lawfully dispose of machine guns and cannot lawfully possess or dispose of firearm silencers. Oefinger v New York
State Police, 146 A.D.2d 186, 540 N.Y.S.2d 360, 1989 N.Y. App. Div. LEXIS 4881 (N.Y. App. Div. 3d Dept 1989).
CLS Penal 265.00 is definitional in nature and thus could not be read to provide applicable standard of care such
that violation of it would constitute negligence. McDonald v Cook, 252 A.D.2d 302, 681 N.Y.S.2d 900, 1998 N.Y. App.
Div. LEXIS 13874 (N.Y. App. Div. 3d Dept 1998), app. denied, 93 N.Y.2d 812, 695 N.Y.S.2d 540, 717 N.E.2d 699, 1999
N.Y. LEXIS 1870 (N.Y. 1999).
The State has the power to dispense with the element of scienter in defining a crime if it is necessary to do so in the
public interest where the offenses prohibited and made punishable are capable of inflicting widespread injury, and
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where the requirement of proof of the offenders guilty knowledge and wrongful intent would render enforcement of
the prohibition difficult if not impossible, tending to nullify the statute; accordingly, the fact that a loaded firearm is
capable of inflicting widespread injury furnishes a justifiable basis for eliminating the need to prove intent or guilty
knowledge as elements of the crime of illegally possessing a loaded firearm and no different rule should be applied
where the possession of a loaded firearm merely raises the degree of the crime or mandates increased punishment.
People v A., 97 Misc. 2d 1053, 413 N.Y.S.2d 92, 1979 N.Y. Misc. LEXIS 2035 (N.Y. County Ct. 1979).
A police commissioner would be compelled to accept petitioners application for a target pistol license, notwithstanding
that the application had been refused on the basis that the applicant was under 21 years of age, since the controlling
provisions of Penal Law 265.00, 400.00, do not set forth a minimum age for handgun license applicants and a
judicial determination has been made prohibiting the denial of target pistol licenses solely on the grounds for age. De
Vito v McGuire, 124 Misc. 2d 65, 475 N.Y.S.2d 730, 1984 N.Y. Misc. LEXIS 3149 (N.Y. Sup. Ct. 1984).
State was required to prove that stud gun was operable instrument capable of inflicting harm so as to be classified as
weapon for purposes of revoking parole on basis of possession of dangerous weapon in violation of conditions of
parole. People ex rel. Spann v Rodriguez, 130 Misc. 2d 1077, 498 N.Y.S.2d 957, 1986 N.Y. Misc. LEXIS 2469 (N.Y.
Sup. Ct. 1986).
Weapon found in defendants possession was gravity knife within meaning of CLS Penal 265.00(5), justifying his
conviction of fourth degree weapon possession, since knife, in its folded position, had hinge on one end connecting
2 narrow handles and locking or safety device on other end, with blade concealed between handles, so that if locking
device were in place, knife became operational by merely pushing locking lever, whereby blade became exposed either
by force of gravity or centrifugal force; further, if knife were carried without safety lever in position, blade could be
similarly exposed by force of gravity or centrifugal force. People v Dolson, 140 Misc. 2d 240, 530 N.Y.S.2d 427, 1987
N.Y. Misc. LEXIS 2827 (N.Y. City Ct. 1987).
Counts of indictment charging burglary and weapon possession were not barred on double jeopardy grounds based on
prior Family Court disposition imposed against defendant for violating order of protection based on allegation that he
forced his way into his wifes home and menaced her with knife, as violation of protective order did not include
elements of burglary or weapons statutes (namely, unlawful entry into building with intent to commit crime or
possession of weapon with intent to use unlawfully against another). People v Arnold, 174 Misc. 2d 585, 664 N.Y.S.2d
1008, 1997 N.Y. Misc. LEXIS 488 (N.Y. Sup. Ct. 1997).
Verdict finding defendant guilty of menacing in the second degree was not against the weight of the evidence because
the evidence was legally sufficient to establish that defendant displayed what appeared to be a pistol or firearm. People
v Colon, 116 A.D.3d 1234, 984 N.Y.S.2d 438, 2014 NY Slip Op 2626, 2014 N.Y. App. Div. LEXIS 2566 (N.Y. App. Div.
3d Dept), app. denied, 24 N.Y.3d 959, 996 N.Y.S.2d 219, 2014 NY Slip Op 98604(U), 20 N.E.3d 999, 2014 N.Y. LEXIS
2974 (N.Y. 2014).
Definition of firearm in Penal Law 265.00 is limited to the possession, use and purchase of firearms and the
licensing and destruction of weapons; and, because neither is related in any way to a prosecution for perjury, 265.00
by its express language precludes reliance upon its firearm definition in such a prosecution, except as a question or
answer may have been specifically addressed to that definition. People v Neumann, 51 N.Y.2d 658, 435 N.Y.S.2d 956,
417 N.E.2d 69, 1980 N.Y. LEXIS 2778 (N.Y. 1980), rehg denied, 52 N.Y.2d 1073, 1981 N.Y. LEXIS 5955 (N.Y. 1981),
cert. denied, 452 U.S. 918, 101 S. Ct. 3056, 69 L. Ed. 2d 423, 1981 U.S. LEXIS 2436 (U.S. 1981).
In prosecution for attempted second degree weapon possession and related offenses, allegation that respondent carried
weapon on public street, and that weapon was loaded, was sufficient to support inference that respondent believed and
intended firearm to be operable. In re Lavar D., 90 N.Y.2d 963, 665 N.Y.S.2d 612, 688 N.E.2d 486, 1997 N.Y. LEXIS
3215 (N.Y. 1997).
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Defendants plea of guilty to first degree robbery was inappropriate where gun which he displayed during robbery was
beebee gun; however, display of beebee gun would support conviction of second degree robbery. People v
Bowman, 133 A.D.2d 701, 519 N.Y.S.2d 951, 1987 N.Y. App. Div. LEXIS 51736 (N.Y. App. Div. 2d Dept 1987), app.
denied, 70 N.Y.2d 953, 525 N.Y.S.2d 836, 520 N.E.2d 554, 1988 N.Y. LEXIS 304 (N.Y. 1988).
Evidence at trial on charges of second degree weapon possession and second degree assault was legally sufficient to
establish that weapon possessed and employed by defendant in course of assault was firearm within meaning of CLS
Penal 265.00(3), even though victim was unable to describe weapon (which went unrecovered) with which
defendant shot him, where his detailed account of shooting, and reenactment in which he demonstrated defendants
stance and manner in which defendant held weapon, together with bullet recovered at hospital, supported reasonable
inference that defendant employed firearm in shooting victim. People v McGrew, 150 A.D.2d 729, 541 N.Y.S.2d 597,
1989 N.Y. App. Div. LEXIS 6994 (N.Y. App. Div. 2d Dept 1989).
Phrase as defined in section 265.00 under CLS Penal 140.17(2) requires operability of firearm, rifle, or shotgun.
People v Cruz, 272 A.D.2d 922, 709 N.Y.S.2d 717, 2000 N.Y. App. Div. LEXIS 5294 (N.Y. App. Div. 4th Dept 2000),
affd, 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112, 2001 N.Y. LEXIS 1870 (N.Y. 2001).
Court was not required to define firearm(CLS Penal 265.00(3)) with respect to length of barrel of sawed-off
shotgun in trial for attempted first degree robbery, since robbery statute requires only display of what appears to be
firearm, and testimony was clear that weapon displayed by defendant appeared to complainant to be pistol. People v
Jennings, 279 A.D.2d 284, 720 N.Y.S.2d 4, 2001 N.Y. App. Div. LEXIS 149 (N.Y. App. Div. 1st Dept), app. denied, 96
N.Y.2d 830, 729 N.Y.S.2d 451, 754 N.E.2d 211, 2001 N.Y. LEXIS 2201 (N.Y. 2001).
Legally sufficient evidence supported defendants conviction for criminal possession of a weapon in the second degree
under N.Y. Penal Law 265.03(3) because there was evidence at trial that the shotgun barrel had been sawed off to
less than 18 inches (a firearm under N.Y. Penal Law 265.00(3)), the gun was operable, the ammunition in defendants
pocket could be used in that weapon (a loaded firearm under N.Y. Penal Law 265.00(15)), and the police saw
defendant possessing the toy alligator in which the weapon had been placed. . New York v Tillery, 60 A.D.3d 1203,
875 N.Y.S.2d 343 (3d Dept 2009).
Trial court erred in dismissing an owners action pursuant to N.Y. C.P.L.R. art. 78 seeking to compel police to return
firearms seized from the owners home; although continued police custody of the firearms was proper, the trial court
erred by not holding a hearing as required by Trial court erred in dismissing an owners action seeking to compel
police to return firearms seized from the owners home; although continued police custody of the firearms was proper,
the trial court erred by not holding a hearing as required by N.Y. Penal Law 265.00(16). Caso v Nassau County
Police Dept, 306 A.D.2d 473, 761 N.Y.S.2d 303, 2003 N.Y. App. Div. LEXIS 7412 (N.Y. App. Div. 2d Dept 2003).
Second count of the indictment was properly dismissed because, by test-firing defendants weapon two days after his
arrest, with ammunition belonging to the State Police and not with that found with the weapon, the People failed to
present sufficient evidence to the grand jury to charge defendant with possession of a loaded firearm, under N.Y. Penal
Law 265.00(15). A necessary element of that crime was that the ammunition be live. People v Colon, 15 A.D.3d 777,
790 N.Y.S.2d 288, 2005 N.Y. App. Div. LEXIS 1919 (N.Y. App. Div. 3d Dept 2005), app. denied, 6 N.Y.3d 811, 812
N.Y.S.2d 450, 845 N.E.2d 1281, 2006 N.Y. LEXIS 746 (N.Y. 2006), app. denied, 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845
N.E.2d 1282, 2006 N.Y. LEXIS 747 (N.Y. 2006).
Verdict on second degree robbery was not against the weight of the evidence because, although the witnesss testimony
was somewhat inconsistent or unclear as to whether he believed that defendant had an actual firearm as opposed to
a BB gun, the evidence was legally sufficient to establish that defendant displayed what appeared to be a pistol or
firearm while in immediate flight from the commission of a robbery. People v Colon, 116 A.D.3d 1234, 984 N.Y.S.2d
438, 2014 NY Slip Op 2626, 2014 N.Y. App. Div. LEXIS 2566 (N.Y. App. Div. 3d Dept), app. denied, 24 N.Y.3d 959,
996 N.Y.S.2d 219, 2014 NY Slip Op 98604(U), 20 N.E.3d 999, 2014 N.Y. LEXIS 2974 (N.Y. 2014).
3. Pistols and revolvers
Reversal of defendants conviction of criminal possession of a weapon was mandated, where the prosecution presented
no evidence at trial that the .22 caliber gun found in defendants glove compartment was operable, and thereby failed
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to prove that defendant was in possession of firearm within the meaning of Pen Law 265.00(3). People v Actie,
99 A.D.2d 815, 472 N.Y.S.2d 147, 1984 N.Y. App. Div. LEXIS 17207 (N.Y. App. Div. 2d Dept 1984).
Conviction of third degree criminal possession of weapon (revolver) would not be reversed on defendants assertion
that jury had not been properly instructed on issue of whether revolver was operable where trial court initially gave
no instruction on operability, but after defendants exception, charged that gun which cannot be fired does not fit
within statute; trial court should have included charge on operability in its initial instructions, but jury was able to
gather correct rules on basis of entire charge. People v Ramsey, 124 A.D.2d 835, 508 N.Y.S.2d 553, 1986 N.Y. App.
Div. LEXIS 62169 (N.Y. App. Div. 2d Dept 1986).
Term handgun in indictment constituted sufficient factual support for subject element of first and second degree
robbery, and first and second degree criminal use of firearm, as well as sufficiently specific description of what
implement allegedly displayed by defendant appeared to be, even though term is not specifically included within
definition of firearm under CLS Penal 265.00 and is not among any of enumerated implements contained in
statutes defining crimes with which defendant was charged, since CLS CPL 200.50 requires simply that defendant
be notified of crime of which he stands indicted. People v Singleton, 130 A.D.2d 598, 515 N.Y.S.2d 307, 1987 N.Y.
App. Div. LEXIS 46612 (N.Y. App. Div. 2d Dept 1987), affd, 72 N.Y.2d 845, 531 N.Y.S.2d 798, 527 N.E.2d 281, 1988
N.Y. LEXIS 1643 (N.Y. 1988).
Penal Law contemplates imitation pistol in reality of its use, while Administrative Code contemplates same in reality
of its appearance; under either statute, imitation pistol is not actual firearm which can discharge projectile or which
acts by force of gunpowder, nor is it an inoperable pistol which can be readily made operable. People v Webb, 78 Misc.
2d 253, 356 N.Y.S.2d 494, 1974 N.Y. Misc. LEXIS 1376 (N.Y. City Crim. Ct. 1974).
4. Shotguns
Sawed-off shotgun which had overall size of 27 inches in length with padded stock or butt measuring 12 inches in
circumference was not a firearm as defined in Penal Law section defining firearm as any pistol, revolver, sawed-off
shotgun or other firearm of a size which may be concealed under the person; thus, its possession did not constitute
the crime of possession of a firearm. People v Eldridge, 53 A.D.2d 1037, 385 N.Y.S.2d 912, 1976 N.Y. App. Div. LEXIS
15848 (N.Y. App. Div. 4th Dept 1976).
Sawed off shotgun 23 inches in length was not firearm within the meaning of Penal Law 265.00, subdivision
3, as it was not of a size that could be concealed upon the person. People v Roberts, 73 Misc. 2d 500, 342 N.Y.S.2d
757, 1973 N.Y. Misc. LEXIS 2020 (N.Y. Dist. Ct. 1973), app. dismissed, 79 Misc. 2d 243, 360 N.Y.S.2d 151, 1974 N.Y.
Misc. LEXIS 1637 (N.Y. App. Term 1974).
With regard to offense of possession of a firearm, sawed-off shotgun, which was 22 inches long, was not a
concealed weapon within meaning of statute which provides that the term firearm means any pistol, revolver,
sawed-off shotgun or other firearm of a size which may be concealed upon the person. In re Peabody, 86 Misc. 2d
520, 382 N.Y.S.2d 934, 1976 N.Y. Misc. LEXIS 2478 (N.Y. Fam. Ct. 1976).
The issue of whether a sawed-off shotgun measuring 27 inches in length is a firearm within the meaning of
subdivision 3 of section 265.00 of the Penal Law, which defines firearm as a sawed-off shotgun or other firearm
of a size which may be concealed upon the person, is a factual question as to whether it is concealable upon the
person to be resolved by the jury and is not a legal matter to be resolved by the court. People v Ahern, 104 Misc. 2d
13, 427 N.Y.S.2d 549, 1980 N.Y. Misc. LEXIS 2383 (N.Y. Sup. Ct. 1980).
A 22 inch sawed-off shotgun was a firearm capable of concealment within the meaning of Penal 265(3) where the
defendant had actually concealed the weapon in his back pocket covered by his outer clothes. People v Davis, 107
Misc. 2d 1, 433 N.Y.S.2d 56, 1980 N.Y. Misc. LEXIS 2816 (N.Y. City Crim. Ct. 1980).
Where a sawed-off shotgun, possession of which by defendants resulted in their indictment for criminal possession
of a weapon in the third degree, was 26 and 3/8 inches long, approximately half the heighth of each of the defendants,
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and where there was no evidence presented to the grand jury indicating that the defendants on the summer night of
their arrest were garbed in a manner to aid, rather than hinder, concealment of the weapon, the grand jury minutes were
therefore legally insufficient to establish concealability of the guns, presumptions that any sawed-off shotgun up to 18
inches in length is concealable, any sawed-off shotgun between 18 and 24 inches in length creates a fact question for
judge or jury as to its concealability, and any sawed-off shotgun in excess of 24 inches would be considered not
concealable in the absence of special circumstances relating to dress, or other factor which would manifest
concealability; when given its common sense meaning the controlling statute was not subject to a constitutional attack
for vagueness. People v Cortez, 110 Misc. 2d 652, 442 N.Y.S.2d 873, 1981 N.Y. Misc. LEXIS 3137 (N.Y. Sup. Ct. 1981).
In a prosecution for possession of a weapon in the fourth degree, defendants motion to set aside his conviction based
upon the alleged error of the court in submitting to the jury the issue of whether the sawed-off shotgun in question
was a concealable weapon was denied, since it was proper for the jury in the instant prosecution to determine whether
a shotgun measuring 27 and one-quarter incles in length is concealable and therefore a proscribed firearm as
statutorily defined. People v Davis, 112 Misc. 2d 138, 446 N.Y.S.2d 159, 1981 N.Y. Misc. LEXIS 3413 (N.Y. City Crim.
Ct. 1981).
In the prosecution of defendant, who had been arrested while lying on a bed, apparently asleep, with a sawed-off
shotgun cradled in his arms, for criminal possession of a weapon in the fourth degree (Penal Law, 265.01, subd [1]),
the trial court properly refused to instruct the jury that subd 1 of 265.01 should be construed as defining a crime
requiring the elements of scienter or mental culpability, since scienter, guilty knowledge or intent, was not a necessary
element of the crime; moreover, although criminal liability required proof of a voluntary act, there was no necessity
that an instruction as to an involuntary act or an innocent act, which would have had an effect on defendants
possession of a weapon (Penal Law, 10.00, subd 8), be given in the absence of any evidence of intoxication or other
involuntary act. Further, the issue of whether the gun was concealable, and therefore a proscribed firearm as defined
in Penal Law 265.00, subd 3, was properly submitted to the jury where the gun, which measured 27 inches in
length, could have been concealed by the defendant, who was about 5 feet 10 inches tall, and where defendant was
carefully viewed by the jury during trial. People v Davis, 112 Misc. 2d 138, 446 N.Y.S.2d 159, 1981 N.Y. Misc. LEXIS
3413 (N.Y. City Crim. Ct. 1981).
CLS Penal 265.00(3)(b) outlaws any shotgun or weapon made from a shotgun if barrel measures less than 18
inches no matter what over-all length of gun; 265.00(3)(b) also contains separate, distinct and additional prohibition
against any weapon made from a shotgun if such weapon has over-all length of less than 26 inches, no matter what
its barrel length. People v Santiago, 133 Misc. 2d 161, 506 N.Y.S.2d 136, 1986 N.Y. Misc. LEXIS 2843 (N.Y. Sup. Ct.
1986).
District Attorney properly instructed grand jury that firearm was defined in pertinent part as a shotgun having one
or more barrels less than eighteen inches in length, without instructing grand jury to consider over-all length of gun
or to distinguish between shotgun and weapon made from a shotgun, since CLS Penal 265.00(3)(b) must be read
in disjunctive to outlaw any shotgun or weapon made from a shotgun if barrel measures less than 18 inches, no
matter what its over-all length. People v Santiago, 133 Misc. 2d 161, 506 N.Y.S.2d 136, 1986 N.Y. Misc. LEXIS 2843
(N.Y. Sup. Ct. 1986).
CLS Penal 265.00(3) is not unconstitutionally vague since it clearly establishes 2 types of separate standards for 2
separate weaponsi.e., shotguns and weapons made from shotguns. People v Crivillaro, 142 Misc. 2d 527, 538
N.Y.S.2d 152, 1989 N.Y. Misc. LEXIS 54 (N.Y. Sup. Ct. 1989).
CLS Penal 265.00(3) is properly read in disjunctive so that only element required to bring shotgun within definition
of firearm is that of barrel length of less than 18 inches, and shotgun is not also required to have overall length of less
than 26 inches. People v Crivillaro, 142 Misc. 2d 527, 538 N.Y.S.2d 152, 1989 N.Y. Misc. LEXIS 54 (N.Y. Sup. Ct.
1989).
Indictment charging defendant with third degree weapon possession would be dismissed where weapon in question
was 29 inches in length and, although shotgun originally, had been altered so as to be incapable of being fired from
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shoulder; in order for weapon made from shotgun to be considered firearm within statutory definitions found in CLS
Penal 265.00(3) and 265.00(12), it must be less than 26 inches in length and capable of being fired from shoulder.
People v C. C., 144 Misc. 2d 350, 544 N.Y.S.2d 950, 1989 N.Y. Misc. LEXIS 503 (N.Y. Sup. Ct. 1989).
Count of indictment charging defendant with fourth degree grand larceny under CLS Penal 155.30(7) for stealing
shotgun was reduced to petit larceny charge where no evidence was provided to grand jury that shotgun was
operable as defined in CLS Penal 265.00(12), nor was grand jury charged regarding this requirement. People v
Ewing, 172 Misc. 2d 120, 656 N.Y.S.2d 849, 1997 N.Y. Misc. LEXIS 121 (N.Y. County Ct. 1997).
5. Rifles
Gun with barrel length of 177/8 inches qualified as firearm under CLS Penal 265.00, even though its over-all
length of approximately 29 inches exceeded statutory limit, since statute should be read in disjunctive so that barrel
length limitation may be applied independently of over-all length limitation. People v Villani, 141 A.D.2d 883, 530
N.Y.S.2d 209, 1988 N.Y. App. Div. LEXIS 7125 (N.Y. App. Div. 2d Dept), app. denied, 72 N.Y.2d 926, 532 N.Y.S.2d
860, 529 N.E.2d 190, 1988 N.Y. LEXIS 3272 (N.Y. 1988).
Court should have charged on requirement that barrel of gun be shorter than 18 inches, in trial for second degree
weapon possession, where testimony of Peoples ballistics expert as to length of barrel was vague and there was no
other testimony on subject except for complaining witness inexact demonstration. People v Jennings, 279 A.D.2d 284,
720 N.Y.S.2d 4, 2001 N.Y. App. Div. LEXIS 149 (N.Y. App. Div. 1st Dept), app. denied, 96 N.Y.2d 830, 729 N.Y.S.2d
451, 754 N.E.2d 211, 2001 N.Y. LEXIS 2201 (N.Y. 2001).
A rifle which has been reduced, by sawing off the barrel, to a size that it may be concealed on the person loses its
statutory exemption from provision relating to concealment of a dangerous weapon. People v Caffrey, 73 Misc. 2d 504,
342 N.Y.S.2d 754, 1973 N.Y. Misc. LEXIS 2021 (N.Y. City Crim. Ct. 1973).
Grand jury evidence was not legally sufficient to charge third and fourth degree possession of assault weapons
where arresting officer described 4 rifles in question as semi-automatic rifles with detachable magazines and
additional characteristics satisfying statutory definition under CLS Penal 265.00(22), but ballistic reports, while
concluding that all 4 rifles were semi-automatic and operable, did not mention special characteristics testified to by
arresting officer, and all but one rifle was observed to have no magazine; preferable practice would be to include all
necessary characteristics needed for assault weapons charge in ballistics report. People v Digaetano, 188 Misc. 2d
771, 729 N.Y.S.2d 614, 2001 N.Y. Misc. LEXIS 283 (N.Y. Sup. Ct. 2001).
County court erred, after determining that operability was a necessary finding to convict defendant of the crime of
fourth-degree criminal possession of stolen property, in refusing to grant defendants additional instruction request to
include the words under this Count, the rifle need not be loaded, but it must be operable. To be operable, the rifle
must be capable of discharging ammunition, as such was contained in the pattern criminal jury instruction, despite
reading the definition of a rifle as detailed in N.Y. Penal Law 265.00(11); further, such error was not harmless, as
it denied defendant a fair trial and entitled him to a new trial be had. People v Rowland, 14 A.D.3d 886, 787 N.Y.S.2d
741, 2005 N.Y. App. Div. LEXIS 433 (N.Y. App. Div. 3d Dept 2005).
Because the destruction of an owners rifles, shotgun, and shooting accessories was not permissible under the version
of N.Y. Penal Law 265.00(3), 400.05(6) in effect at the time of the destruction, due process was not satisfied by
N.Y. Fam. Ct. Act 842-a(7); accordingly, the owner properly brought a 42 U.S.C.S. 1983 action against the sheriffs
department. Maio v Kralik, 70 A.D.3d 1, 888 N.Y.S.2d 582, 2009 NY Slip Op 8187, 2009 N.Y. App. Div. LEXIS 8062
(N.Y. App. Div. 2d Dept 2009).
Court correctly instructed jury that, in order to convict defendant of possessing gravity knife, prosecution had to prove
that defendant knew he had a knife in his possession, not that he knew it was specifically a gravity knife, and that knife
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fit legal description of gravity knife under CLS Penal 265.00(5); knowledge that thing possessed answers description
of prohibited instrument is not element of third degree criminal possession of weapon. People v Berrier, 223 A.D.2d
456, 637 N.Y.S.2d 69, 1996 N.Y. App. Div. LEXIS 489 (N.Y. App. Div. 1st Dept), app. denied, 88 N.Y.2d 876, 645
N.Y.S.2d 450, 668 N.E.2d 421, 1996 N.Y. LEXIS 5037 (N.Y. 1996).
Legally sufficient evidence supported defendants conviction for criminal possession of a weapon in the third degree
as the People proved the operability of the gravity knife at issue within the meaning of N.Y. Penal Law 265.00(5),
265.01(1), and 265.02(1) based on a police officers testimony regarding his testing of the knife after defendants
arrest; the officer described the manner in which the knife operated and demonstrated its operability in open court.
People v Birth, 49 A.D.3d 290, 853 N.Y.S.2d 317, 2008 NY Slip Op 1993, 2008 N.Y. App. Div. LEXIS 1874 (N.Y. App.
Div. 1st Dept), app. denied, 10 N.Y.3d 859, 860 N.Y.S.2d 486, 890 N.E.2d 249, 2008 N.Y. LEXIS 2123 (N.Y. 2008).
Because a police officers description and demonstration for the jury of the manner in which a gravity knife recovered
from defendant operated conformed to definition of a gravity knife in N.Y. Penal Law 265.00(5),defendants
argument to the contrary was based on a misinterpretation of the officers testimony. People v Jouvert, 50 A.D.3d 504,
856 N.Y.S.2d 84, 2008 NY Slip Op 3688, 2008 N.Y. App. Div. LEXIS 3596 (N.Y. App. Div. 1st Dept), app. denied, 11
Weapon found in defendants possession was gravity knife within meaning of CLS Penal 265.00(5), justifying his
conviction of fourth degree weapon possession, since knife, in its folded position, had hinge on one end connecting
2 narrow handles and locking or safety device on other end, with blade concealed between handles, so that if locking
device were in place, knife became operational by merely pushing locking lever, whereby blade became exposed either
by force of gravity or centrifugal force; further, if knife were carried without safety lever in position, blade could be
similarly exposed by force of gravity or centrifugal force. People v Dolson, 140 Misc. 2d 240, 530 N.Y.S.2d 427, 1987
N.Y. Misc. LEXIS 2827 (N.Y. City Ct. 1987).
Knife whose blade does not lock into place when released from its cover is not gravity knife under CLS Penal
265.00, even if blade can be released from its sheath by flick of wrist. People v Dolson, 142 Misc. 2d 779, 538
N.Y.S.2d 393, 1989 N.Y. Misc. LEXIS 116 (N.Y. County Ct. 1989).
Defendant was not allowed to withdraw guilty pleas to weapons possession charges under N.Y. Penal Law 265.01
because the sole basis proffered was that the allocution failed to establish the operability of the gravity knives at issue,
but defendant admitted that the knives were gravity knives, and, in any event, all that was required was defendants
knowledge that he possessed a knife, not that he knew that it the statutory description of a gravity knife; the court
allocuted defendant as to all necessary elements of the crime and apprised him of the rights and privileges that he
would be waiving by pleading guilty. People v Daly, 932 N.Y.S.2d 845, 2011 NY Slip Op 21371, 2011 N.Y. Misc. LEXIS
4966 (N.Y. City Crim. Ct. 2011).
Defendants conviction of possession of a weapon in the fourth degree, N.Y. Penal Law 265.01(1) was not supported
by sufficient evidence; the knife possessed by defendant, known as a butterfly knife, did not satisfy the statutory
definition of a gravity knife under N.Y. Penal Law 265.00(5), as the knife required manual locking. People v Zuniga,
303 A.D.2d 773, 759 N.Y.S.2d 86, 2003 N.Y. App. Div. LEXIS 3353 (N.Y. App. Div. 2d Dept 2003).
Where a trial courts credibility determinations were supported by the record, the fact that a gravity knife
malfunctioned during trial demonstrations did not defeat the proof of operability; therefore, the evidence supported
defendants conviction for criminal possession of a weapon under N.Y. Penal Law 265.00(5), 265.01(1), 265.02(1)
and defendants suppression motion was properly denied. People v Smith, 309 A.D.2d 608, 765 N.Y.S.2d 777, 2003
N.Y. App. Div. LEXIS 10707 (N.Y. App. Div. 1st Dept), app. denied, 1 N.Y.3d 580, 775 N.Y.S.2d 796, 807 N.E.2d 909,
2003 N.Y. LEXIS 4734 (N.Y. 2003).
Information that stated that an officer tested a knife and that the blade released from the handle by force of gravity
or centrifugal force and locked in place by means of a button, spring, lever or other device in the handle was facially
sufficient, even though the officer did not mention his training and experience, as ultimately testing and personal
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NY CLS Penal 265.00
knowledge as to the operability of a gravity knife, and not training and experience, were the key components of a N.Y.
Penal Law 265.00 charge. People v Octavio, 932 N.Y.S.2d 803, 2011 NY Slip Op 21404, 2011 N.Y. Misc. LEXIS 5466
(N.Y. City Crim. Ct. 2011).
Officer did not have to state what test he used to determine that a knife was a gravity knife to support the sufficiency
of an information on a N.Y. Penal Law 265.00 charge. People v Octavio, 932 N.Y.S.2d 803, 2011 NY Slip Op 21404,
2011 N.Y. Misc. LEXIS 5466 (N.Y. City Crim. Ct. 2011).
Complaint that indicated that after a knife was tested certain results occurred was sufficient to charge a N.Y. PenaL
Law 265.00 offense where the results were the same as the statutory definition; that the allegations tracked the
statutory language was not a defect as it was the only way that a complaint could be pled to sufficiently distinguish
a gravity knife from all other knives that were not per se weapons. People v Octavio, 932 N.Y.S.2d 803, 2011 NY Slip
Op 21404, 2011 N.Y. Misc. LEXIS 5466 (N.Y. City Crim. Ct. 2011).
Defendant was properly convicted of fourth-degree criminal possession of a weapon because the accusatory
instrument was facially sufficient where it stated that the knife at issue, once opened, locked automatically in place,
which was synonymous to the statutory phrase by means of a . . . device, and the accusatory instrument sufficiently
pleaded that the arresting police officer exercised his expertise by testing the knife and determining that it opened and
locked in the manner proscribed by the gravity knife statute. 2015 NY Slip Op 07529, 2015 N.Y. LEXIS 3239.
In an action for declaratory and injunctive relief in which plaintiffs invoked 42 U.S.C.S. 1983 to charge defendants
with applying New York law criminalizing the possession of gravity knives, three plaintiffs (an artist, an art dealer,
and a retail store) had standing to challenge defendants application of N.Y. Penal Law 265.00(5) and 265.01(1)
because each had expressed present intent to possess such knives (but for defendants challenged enforcement actions)
and each had demonstrated a credible threat of prosecution; however, two organizational plaintiffs did not have
standing to sue on their own behalf or on behalf of their members. Knife Rights, Inc. v Vance, 802 F.3d 377, 2015 U.S.
App. LEXIS 16814 (2d Cir. N.Y. 2015).
Even if the officer had reasonable suspicion to initially stop defendant, which he did not, there was no probable cause
to arrest him; the tool which was recovered was not a gravity knife and the officer could not have reasonably believed
it to be oneit was designed, sold, and used as a folding knife. Although the officer was ultimately able to open the
tool with centrifugal force at the hearing, it was obviously not designed to be opened in this fashion and did not readily
open through such force; defendants expert, as well as a representative of the retailer, each testified that the tool was
not intended to be opened with centrifugal force and was not treated as a weapon by its designer, manufacturer, seller,
or users. United States v Irizarry, 509 F. Supp. 2d 198, 2007 U.S. Dist. LEXIS 64365 (E.D.N.Y. 2007).
7. Deface
Proof that weapon was sawed off, without more, does not fall within definition of deface in CLS Penal 265.00(7)
and is insufficient to support conviction of third degree weapon possession. People v Blair, 242 A.D.2d 883, 662
N.Y.S.2d 649, 1997 N.Y. App. Div. LEXIS 10434 (N.Y. App. Div. 4th Dept 1997).
It is apparent from the statutory definition that the legislature intended deface to mean something quite different than
the adaptation of a weapon to make it concealable and that such definition would not apply to sawing off a shotgun
to make it concealable in the absence of any evidence that the manufacturers serial number or other distinguishing
number was altered. People v Caffrey, 73 Misc. 2d 504, 342 N.Y.S.2d 754, 1973 N.Y. Misc. LEXIS 2021 (N.Y. City
Crim. Ct. 1973).
Merely sawing off a portion of a weapon is not an act sufficient within itself to establish that weapon has been
defaced for purposes of statute providing that it is criminal possession of weapon in third degree when person
knowingly has in his possession a machine-gun or firearm 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 or firearm. In re
Peabody, 86 Misc. 2d 520, 382 N.Y.S.2d 934, 1976 N.Y. Misc. LEXIS 2478 (N.Y. Fam. Ct. 1976).
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NY CLS Penal 265.00
8. Antique firearm
Term muzzle loading . . . revolver within statute exempting certain antique firearms from designation as prohibited
weapons is sufficiently ambiguous to require full factual inquiry into historical and commonly understood use of the
term; though there may be no such thing as a revolver which loads through the barrel, if it should be established that
a certain class of revolvers were historically and are now commonly known as muzzle loaders, the exemption would
extend to such class. Long Island Antique Gun Collectors Asso. v Frank, 53 A.D.2d 644, 384 N.Y.S.2d 500, 1976 N.Y.
App. Div. LEXIS 13364 (N.Y. App. Div. 2d Dept 1976).
A defendant who possessed a partially-loaded, muzzle-loading pistol would be guilty of criminal possession of a
weapon in the third degree as possessing a loaded firearm under Penal Law 265.02(4) since, although antique
weapons are excluded from the definition of firearms pursuant to Penal Law 265.00(3), the weapon possessed must
be loaded; in enacting the exemption for antique weapons, it was the intention to include only unloaded weapons, and
possession of a partially loaded pistol together with the ammunition necessary to fire the gun is not within this
exception. People v Mott, 112 Misc. 2d 833, 447 N.Y.S.2d 632, 1982 N.Y. Misc. LEXIS 3200 (N.Y. Sup. Ct. 1982).
9. Preemption of local laws
State law which evinced intent to cover most of possible categories of weapons for which it deemed some sanction
necessary when weapons were used with illegal intent did not preempt field of legislation with respect to criminality
in connection with toy guns and was not at odds with city ordinance making it unlawful to possess toy pistol
resembling real one in certain particulars. People v Judiz, 38 N.Y.2d 529, 381 N.Y.S.2d 467, 344 N.E.2d 399, 1976 N.Y.
LEXIS 2260 (N.Y. 1976).
Defendants conviction of unlawful possession of assault weapon under Rochester City Code 47-5(F) was not
preempted by CLS Penal Art 265, which regulates firearms and other dangerous weapons; mere fact that local
ordinance has some connection with subject on which state statute exists does not automatically vitiate it. People v
Stagnitto, 261 A.D.2d 890, 691 N.Y.S.2d 223, 1999 N.Y. App. Div. LEXIS 4939 (N.Y. App. Div. 4th Dept), app. denied,
93 N.Y.2d 1028, 697 N.Y.S.2d 587, 719 N.E.2d 948, 1999 N.Y. LEXIS 3372 (N.Y. 1999).
Article 265 of the Penal Law does not treat so extensively with the subject of the control of rifles and shotguns as to
evidence any design or intention by the state to preempt the entire field. Grimm v New York, 56 Misc. 2d 525, 289
N.Y.S.2d 358, 1968 N.Y. Misc. LEXIS 1721 (N.Y. Sup. Ct. 1968).
Statute providing that any person having in his possession any imitation pistol with intent to use same unlawfully
against another is guilty of class A misdemeanor does not so extensively treat subject of imitation pistols as to evidence
intent or desire by State Legislature that it be sole and exclusive legislation in this area. People v Webb, 78 Misc. 2d
253, 356 N.Y.S.2d 494, 1974 N.Y. Misc. LEXIS 1376 (N.Y. City Crim. Ct. 1974).
City ordinance that regulated semiautomatic rifles and shotguns with ammunition feeding devices permitting them to
be loaded with combination of more than 6 rounds was not preempted by state gun control laws (e.g., CLS Gen Mun
139-d, CLS Civ R 4, and CLS Penal Art 265 and Art 400); state has not, directly or indirectly, regulated all aspects
of gun possession and use as to time, place, and circumstance. Citizens for a Safer Community v City of Rochester,
164 Misc. 2d 822, 627 N.Y.S.2d 193, 1994 N.Y. Misc. LEXIS 671 (N.Y. Sup. Ct. 1994).
N.Y. Penal Law 400.00 preempted Nassau County, N.Y., Ordinance No. 5-2008, as amended by Nassau County,
N.Y., Ordinance 9-2008 (Ordinance), which banned the possession of deceptively colored firearms because
400.00(2) specifically precluded from licensing assault weapons and disguised guns and the comprehensive and
detailed regulatory language and scheme of 400.00 demonstrated the legislatures intent to preempt the field of
firearm regulation; the Ordinance interfered with the licensing provisions set forth in N.Y. Penal Law 265.00 et seq.
and N.Y. Penal Law 400.00 et seq. by making it illegal for an individual to possess a deceptively colored handgun
in Nassau County even though such individual held a valid firearms license under state law. Matter of Chwick v
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NY CLS Penal 265.00
Mulvey, 81 A.D.3d 161, 915 N.Y.S.2d 578, 2010 NY Slip Op 9911, 2010 N.Y. App. Div. LEXIS 9817 (N.Y. App. Div.
2d Dept 2010).
10. Possession of dangerous weapon
Since city ordinance making it unlawful to possess toy pistol resembling real gun in certain particulars is constitutional
and had not been preempted by state law, conviction of defendant, who was apprehended while in possession of toy
pistol resembling gun known as a Luger, was proper under such ordinance. People v Judiz, 38 N.Y.2d 529, 381
N.Y.S.2d 467, 344 N.E.2d 399, 1976 N.Y. LEXIS 2260 (N.Y. 1976).
Possession of weapon must be voluntary, in order to be culpable. People v Valentine, 54 A.D.2d 568, 387 N.Y.S.2d 25,
1976 N.Y. App. Div. LEXIS 13900 (N.Y. App. Div. 2d Dept 1976).
Sentence of probation for five years on conviction on plea of guilty to attempted possession of a weapon was not
excessive even in light of defendants unblemished prior record. People v Manners, 54 A.D.2d 938, 388 N.Y.S.2d 141,
1976 N.Y. App. Div. LEXIS 14811 (N.Y. App. Div. 2d Dept 1976), app. denied, 41 N.Y.2d 867, 1977 N.Y. LEXIS 3232
(N.Y. 1977).
Although police officers testimony to the effect that gun was removed from defendants person, if credited, would
certainly support verdict finding defendant guilty of possession of a weapon as a felony, if the jury believed
defendants claim that he found the gun and gave it to the police, his properly explained temporary possession would
not have been unlawful; accordingly, reversible error occurred when the court refused defendants sufficiently
articulated request for an appropriate charge as to innocent possession. People v Richardson, 55 A.D.2d 514, 389
N.Y.S.2d 14, 1976 N.Y. App. Div. LEXIS 15146 (N.Y. App. Div. 1st Dept 1976).
Defendants possession of glass with intent to use it unlawfully against another within meaning of CLS Penal
265.01(2) and 265.02(1) was established by evidence that, during altercation at bar, defendant struck victim twice in
face with glass, glass broke on first impact, and victim sustained injury when struck second time. People v Tellone,
155 A.D.2d 631, 548 N.Y.S.2d 46, 1989 N.Y. App. Div. LEXIS 14437 (N.Y. App. Div. 2d Dept 1989), app. denied, 76
Evidence supported convictions for first degree robbery and third degree weapon possession since jury was entitled
to conclude that defendant used force and threatened use of dangerous instrument (razor blade) to prevent store
security guard from regaining possession of stolen items. People v Gill, 191 A.D.2d 321, 595 N.Y.S.2d 46, 1993 N.Y.
App. Div. LEXIS 2587 (N.Y. App. Div. 1st Dept), app. denied, 81 N.Y.2d 1073, 601 N.Y.S.2d 592, 619 N.E.2d 670, 1993
N.Y. LEXIS 2769 (N.Y. 1993).
In trial for possession of drugs and weapons, defendants dominion and control over apartment was established by
evidence of his residence and presence in apartment, his possession of keys fitting front door locks, and his
involvement in prior drug transaction in apartment. People v Bernard, 237 A.D.2d 210, 655 N.Y.S.2d 931, 1997 N.Y.
App. Div. LEXIS 2768 (N.Y. App. Div. 1st Dept), app. denied, 90 N.Y.2d 855, 661 N.Y.S.2d 182, 683 N.E.2d 1056, 1997
N.Y. LEXIS 2386 (N.Y. 1997).
Since intent is not required for a violation of statute prohibiting possession of weapons and dangerous instruments and
appliances, defendants contention that he believed the weapon, a sawed off shotgun 23 inches long, to be inoperable
and the fact that there was no ammunition found for it were not defenses to the action. People v Roberts, 73 Misc.
2d 500, 342 N.Y.S.2d 757, 1973 N.Y. Misc. LEXIS 2020 (N.Y. Dist. Ct. 1973), app. dismissed, 79 Misc. 2d 243, 360
N.Y.S.2d 151, 1974 N.Y. Misc. LEXIS 1637 (N.Y. App. Term 1974).
Fact that defendant was seen as a passenger in a taxicab carrying on his lap, in open view, a loaded, sawed-off .22
caliber rifle was sufficient evidence to warrant holding him for action of grand jury on charge of possession of
dangerous weapon. People v Caffrey, 73 Misc. 2d 504, 342 N.Y.S.2d 754, 1973 N.Y. Misc. LEXIS 2021 (N.Y. City Crim.
Ct. 1973).
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NY CLS Penal 265.00
By prohibiting possession of any imitation pistol with intent to use same unlawfully against another, state statute does
not impliedly permit possession of imitation pistol in all other circumstances. People v Webb, 78 Misc. 2d 253, 356
N.Y.S.2d 494, 1974 N.Y. Misc. LEXIS 1376 (N.Y. City Crim. Ct. 1974).
Administrative Code provision making it unlawful for any person to possess or use any imitation pistol which
substantially duplicates actual pistol, with certain exceptions, is not invalid as attempt to regulate in field preempted
by state law nor is it an improper exercise of police power. People v Webb, 78 Misc. 2d 253, 356 N.Y.S.2d 494, 1974
N.Y. Misc. LEXIS 1376 (N.Y. City Crim. Ct. 1974).
For purposes of prosecution involving multiple counts of possession of dangerous weapon consisting of homemade
devices containing an explosive substance, term explosive (not defined in Penal Law but defined in CLS Labor
451) meant something that was capable of exploding and causing death or injury to person or property. People v
Getman, 188 Misc. 2d 809, 729 N.Y.S.2d 858, 2001 N.Y. Misc. LEXIS 273 (N.Y. County Ct. 2001).
Pistol licensing officer who is also county judge need not issue order in his judicial capacity when denying permit
application. Lehner v Humphreys, 156 A.D.2d 867, 550 N.Y.S.2d 88, 1989 N.Y. App. Div. LEXIS 15876 (N.Y. App. Div.
3d Dept 1989).
Appropriate procedure to seek review of determination of County Court Judge, acting in his administrative capacity
as firearms licensing officer for Westchester County under CLS Penal 400.00(11) and 265.00(10), was not by direct
appeal but by commencement of CLS CPLR Art 78 proceeding in Appellate Division. County of Westchester v
DAmbrosio, 244 A.D.2d 334, 663 N.Y.S.2d 886, 1997 N.Y. App. Div. LEXIS 10998 (N.Y. App. Div. 2d Dept 1997).
Although county attorney had sought revocation of appellants pistol licenses, county attorney was not proper party
to appellants Article 78 proceeding to review judges revocation of those licenses, in light of CLS Penal
260.00(10) and 400.00(1),(3), and (10). Romanoff v Lange, 281 A.D.2d 551, 721 N.Y.S.2d 821, 2001 N.Y. App. Div.
LEXIS 2643 (N.Y. App. Div. 2d Dept 2001).
Where agency investigations relied on by county judge as the basis for his denial of application for pistol license were
not available to applicant or supreme court, such denial could not be evaluated by such court in an Article 78
proceeding. Guida v Dier (1975) 84 Misc 2d 110, 375 NYS2d 826, mod (1976, 3d Dept) 54 App Div 2d 86, 387 NYS2d
720, holding that applicant was entitled to notice of objections that had been submitted to county judge in opposition
to his application and a reasonable opportunity to submit proof to respond thereto.
12. Under former 1896
A machine gun which was without two vital parts, so that it was impossible to fire more than one shot at a time and
the gun had to be separately loaded for each successive shot, is not a machine gun within the meaning of the statute.
The statute is constitutional. People v Woods, 114 N.Y.S.2d 611, 202 Misc. 562, 1952 N.Y. Misc. LEXIS 2946 (N.Y.
Magis. Ct. 1952).
Subdivision 11 of above statute obviously does not apply to persons who are under 16 years of age since it was passed
at same time as subd 6 of 1897 forbidding possession of a rifle by any person who had been convicted of crime and
a person under 16 years of age cannot be convicted of any crime except murder. In re Faber, 45 Misc. 2d 360, 255
N.Y.S.2d 415, 1965 N.Y. Misc. LEXIS 2386 (N.Y. Fam. Ct. 1965).
Opinion Notes
Agency Opinions
Flare launchers approved by the Coast Guard and not capable of firing conventional ammunition are not firearms as defined
in the Penal Law. 1981 NY Ops Atty Gen Dec 23.
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NY CLS Penal 265.00
Municipality may not lawfully display knives designated as illegal to possess under CLS Penal 265.01(1), unless they
are disabled in such manner as to bring them outside scope of applicable Penal Law definitions. 2004 NY Ops Atty Gen
I 04-2.
None of exemptions in CLS Penal 265.20 covers possession by local government, municipal agency, or museum for
display purposes of knives otherwise illegal to possess under Penal Law. 2004 NY Ops Atty Gen I 04-2.
Under the presently effective Village Law and under the new Village Law, the Mayor of the Village of Floral Park is not
a sworn officer of the village police department within the contemplation of Criminal Procedure Law, 1.20(34)(d),
whether or not he is the Police Commissioner of the village and consequently may not possess a pistol or revolver without
a license therefor. 1973 NY Ops Atty Gen July 16 (informal).
Museums are not exempt from the firearm licensing requirements of Penal Law, 400 and application for the requisite
firearm license should be made by an appropriate individual on behalf of the museum. 1975 NY Ops Atty Gen Feb 3.
The Legislature, in enacting chapter 986 of the Laws of 1974, impliedly repealed those provisions of section 400.00(2)(f)
of the Penal Law requiring the licensing of antique pistols; and antique firearms as defined in section 265.00 of the
Penal Law are not subject to the licensing requirements contained in section 400.00. 1975 NY Ops Atty Gen Nov 13.
Unloaded replica muzzle loading percussion pistols may be sold, purchased and possessed without a license. Simultaneous
possession of these pistols and the necessary ammunition to discharge them required a license. 1977 NY Ops Atty Gen Dec
19 (Informal).
Research References & Practice Aids

Cross References:
This section referred to in 140.17, 155.30, 165.45, 265.01, 400.00.
Codes, Rules and Regulations:
Firearms, rifles and shotguns at state universities. 8 NYCRR 590.1 et seq.
Firearms at mental hygiene institutions. 14 NYCRR 45.1 et seq.
Federal Aspects:
Regulation of firearms, 18 USCS 921 et seq.
Licensing of firearms, 18 USCS 923 et seq.
Effect of federal firearm regulation on state law, 18 USCS 927.
Nonmailable firearms, 18 USCS 1715.
Disposition of firearms possessed by convicted felons, 18 USCS 3665.
Seizure and forfeiture of carriers transporting illegal firearms, 49 USCS 80303.
Brady Handgun Violence Prevention Act, P L 103159 101 et seq.
Brandon Okano
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NY CLS Penal 265.00
Jurisprudences:
25 NY Jur 2d Counties, Towns, and Municipal Corporations 172 .
35A NY Jur 2d Criminal Law Substantive Principles and Offenses 811, 933.
35B NY Jur 2d Criminal Law Substantive Principles and Offenses 1081.
35C NY Jur 2d Criminal Law Substantive Principles and Offenses 18491866, 1878, 1890, 1891, 1893, 1894, 1922,
1923, 1926, 1937, 1948.
79 Am Jur 2d Weapons and Firearms 14.
Causes of Action:
Cause of Action Against Manufacturer for Negligent Marketing of Firearm, 15 COA2d 1.
Law Reviews:
Dorf, Use and the irresistible impulse to legislate. 12 Touro L. Rev. 123.
Annotations:
Validity and construction of gun control laws. 28 ALR3d 845.
Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 7 ALR4th
607.
Sufficiency of evidence as to nature of firearm in prosecution under state statute prohibiting persons under indictment for,
or convicted of, crime from acquiring, having, carrying, or using firearms. 37 ALR4th 1179.
Validity, construction, and application of 18 USCS 922(a)(6), making it unlawful to knowingly make any false or
fictitious oral or written statement in connection with the acquisition or attempted acquisition of any firearm or ammunition.
43 ALR Fed 338.
Meaning of engage in business under 18 USCS 923(a), providing that no person shall engage in business as a firearms
or ammunition importer, manufacturer, or dealer without a federal license. 53 ALR Fed 932.
Propriety of imposing consecutive sentences upon convictions, under federal statutes, of unlawful receipt, transportation,
or making and possession of same firearm. 55 ALR Fed 633.
Criminal Jury Instructions:
Additional charges: definition of firearm as other than a pistol or revolver. CJI2d [NY] Penal Law 265.00(3).
Texts:
Bogacz, New York Juvenile Delinquency Practice (1998, LLP) p 772.
New York Criminal Practice Ch. 82.
Hierarchy Notes:
NY CLS Penal, Pt. THREE
NY CLS Penal, Pt. THREE, Title P
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NY CLS Penal 265.00
NY CLS Penal, Pt. THREE, Title P, Art. 265
New York Consolidated Laws Service
Copyright 2016 Matthew Bender, Inc.
a member of the LexisNexis (TM) Group
All rights reserved All rights reserved.
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NY CLS Penal 265.00

NY CLS Penal 265.00

a folding or telescoping stock;

a folding or telescoping stock;

(ii) a thumbhole stock;

a folding or telescoping stock;

(ii) a thumbhole stock;

a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or weapon defined in

Research References & Practice Aids

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