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I was charged with a criminal possession of a weapon in the

4th degree for possession a...
I was charged with a criminal possession of a weapon in the 4th degree for possession a stun gun. Can they upgrade is to a felony (3rd degree)?
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5/9/2017
RobertJDFL
RobertJDFL, Lawyer
Category: Criminal Law
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Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I am reviewing your question and will reply back shortly.

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Customer reply replied 8 months ago
Ok. Ty
Customer reply replied 8 months ago
Btw. I'm in NewYork State

Good morning,

There are certain situations that can result in a prosecutor upgrading the charge to a felony possession of a weapon in the 3rd degree.

Of the many different factual allegations which can lead to a person being charged with Criminal Possession of a Weapon in the Third Degree is the "bump-up" rule. Under New York Penal Law § 265.02(1), if a person commits the crime of Criminal Possession of a Weapon in the Fourth Degree, and has any criminal conviction on their record, then instead of being charged with solely with Criminal Possession in the Fourth Degree, a class A misdemeanor - punishable by up to one year, the prosecution can bump-up the charge to Criminal Possession of a Weapon in the Third Degree, which is a class D felony, with a maximum prison sentence of seven years.

The requirement that a person have a conviction on their record does not need to be related to a weapons charge. Any misdemeanor or felony conviction can be used as a justification for a bump-up.

Another way the charge can be upgraded is if that gun has been defaced, filed, or scratched in an attempt to conceal the serial number, or any other identifying part of the gun, then the prosecutor can charge the more serious Criminal Possession of a Weapon in the Third Degree - again, punishable by up to seven years in prison.

A person canalso be charged with Criminal Possession of a Weapon in the Third Degree if they possess three or more firearms. Alternatively, if a person is found in possession of a gun outside of their home or place of business, and has been convicted of a felony or A misdemeanor offense within five years of the current offense date, that person can be charged with Criminal Possession of a Weapon in the Third Degree.

So, as you can see, there are many ways that a charge can be upgraded -it just depends on the circumstances.

RobertJDFL
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