THE ANATOMY OF BEATING A FIREARMS CHARGE – Judges and Jurors May Not Always Support Draconian Gun Laws
A recent victory by Firearms Attorneys Tilem & Associates in Queens County Supreme Court demonstrates exactly how to beat a firearms charge even in gun hating states like New York. While New York prosecutors seek to strictly enforce New York’s draconian gun laws, it turns out that jurors and judges may not be completely sold on incarcerating lawful gun owners who run afoul of New York gun laws.
The client, who lawfully purchased his firearm in Florida and who was in New York for about three weeks before being arrested, was arrested and charged after he was stopped for not wearing a seatbelt. During the car stop, the police alleged that he acted nervously prompting them to ask the client if he had any weapons in his car. The Client told the police that he had his firearm in the center console and was immediately taken out of his car and arrested. A loaded 9 mm firearm was discovered in the center console of the vehicle and the client was charged with Criminal Possession of a Weapon in the Second Degree, a charge which carries a mandatory minimum of 3 and ½ years in prison even for a first offender. The maximum he faced was 15 years in prison.
After being arraigned in Criminal Court, the client hired an attorney who was able to work out a plea deal of 2 years in prison. Yes, that’s right 2 years in prison, for a man with no criminal record who purchased his gun lawfully. However, in New York it is a felony to possess a pistol without a New York issued license. Soon after, Tilem & Associates was retained. Quickly, the offer from the prosecutor went down and it is possible that we may have been able to get no jail if the client was willing to plead to a felony, but he was not. The client, who possessed a degree in Criminal Justice was concerned about the impact of a felony conviction on his career aspirations. Hoping to someday become a corrections officer or work in law enforcement the client offered to serve one year in jail in return for a plea deal to a misdemeanor. That offer was rejected by the prosecutor. After negotiating with the prosecutor and supervisors for weeks, the only thing left was to fight the case.
The Grand Jury Proceedings
In New York, every person accused of a felony has a right to testify in any grand jury proceeding. In July 2015, the client exercised his right to testify before the grand jury. He testified truthfully before the grand jury about the circumstances surrounding the recovery of a loaded firearm from the center console of his vehicle. He was cross-examined by the Assistant District Attorney and asked questions by the grand jurors themselves. In the end he admitted to every element of the most serious crimes with which he was charged.
However, the grand jurors, for whatever reason, chose not to indict for the most serious charges. On the charge of Criminal Possession of a Weapon in the Second Degree which carried the mandatory minimum of 3 and ½ years , the grand jury voted “no true bill”, that charge was dismissed. On the charge of Criminal Possession of a Weapon in the Third Degree which carried a mandatory minimum of 1 year in jail, the grand jury also voted “no true bill”, that charge was also dismissed. The client was only indicted for a class “E” felony, the lowest level felony on the books. The charge was a new felony that only became effective in March 2013 and was passed as part of the SAFE Act, Governor Cuomo’s ground breaking anti-gun legislation. Had the client been charged 2 years earlier, the only remaining charge would have been a misdemeanor. However, this being 2015 the client was charged in a one count indictment with violating Criminal Possession of a Firearm under Penal Law sec 265.01-b, a class “E” non-violent felony with no mandatory minimum.
Fighting the Charge in Court and Beating the Felony Gun Charge
Unfortunately, while the grand jury handed us a major victory, the client was still charged with a felony, a potentially career ending charge. The District Attorney’s Office was still refusing to make a deal for a misdemeanor and now wanted jail time. So we had to continue to fight the case. I made a motion to suppress the gun and the Judge ordered a hearing on my motion. I thought we should have won the suppression motion but we lost. A decision I thought we could win on appeal. However, we still needed to attempt to win the trial.
Earlier this month we went to trial. After meeting the Judge and speaking to him it was agreed that the client should waive a jury and agree to be tried by the Judge. It was the Judge alone who would decide the client’s fate. Both whether the client is guilty or not guilty but also what sentence to impose. Waiving a jury should never be done lightly. The maneuver paid off. The client was found not guilty of the felony charge of Criminal Possession of a Firearm. He was found guilty of the lesser charge of Criminal Possession of a Weapon in the Fourth Degree, a misdemeanor. The result he should have gotten a year and a half earlier. When he is sentence next month, the Judge has agreed to give him a Conditional Discharge. No jail, no probation.
In the end, it was clear neither the grand jurors of Queens County nor the Supreme Court Justice who presided over the trial were on board with New York’s draconian gun laws or the Prosecutor’s draconian application of those laws. While it took a year and a half. Justice was finally served.