THE ANATOMY OF BEATING A FIREARMS CHARGE – Judges and Jurors May Not Always Support Draconian Gun Laws

April 18, 2016

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.

Plea Negotiations

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.


April 14, 2016

New York has banned the possession of stun guns by listing them as “per se” weapons in the Penal Law. Possession by a civilian even in a person’s home constitutes Criminal Possession of a Weapon in the Fourth Degree, a class “A” misdemeanor, punishable by up to one year in jail. There is no license available for civilians to be able to possess stun guns. Rather New York, like Massachusetts and New Jersey have a total ban on civilian possession of stun guns. However, last month, in the first Second Amendment case decided by the Supreme Court in years and in a stunning rebuke of the Supreme Judicial Court of Massachusetts, the United States Supreme Court struck down Massachusetts’ total ban on stun guns and found that stun guns, like any “bearable arms” are subject to the protections of the Second Amendment.

In Heller, in 2008 the United States Supreme Court ruled that the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Bearable arms, is a very broad term that encompasses much more than firearms which are the usual focus of Second Amendment jurisprudence thanks in large part to the National Rifle Association and other similar groups. As a result of the focus on firearms very little has been written about other “bearable arms.” Two years later in McDonald, the Supreme Court ruled that the Second Amendment is fully applicable to the States.

In the case of CAETANO v. MASSACHUSETTS, decided last month by the US Supreme Court, the Court criticized the Supreme Judicial Court of Massachusetts’ analysis of the Massachusetts stun gun ban. The Massachusetts high court offered three explanations for why stun guns were not protected by the Second Amendment and the US high court rebuked them for each one explaining that each reason given was inconsistent with the Heller decision. First, the Massachusetts Court tried to explain that Stun Guns were not in general use at the time of ratification of the Second Amendment despite the fact that Heller specifically rejected that argument in 2008. Next the Massachusetts Court argued that Stun Guns were not adaptable for military use another argument specifically rejected in Heller. Lastly, the Massachusetts Court suggested that Stun Guns were an unusual weapon an argument that the Supreme Court equated with the first argument that they were not around during the time of ratification of the Second Amendment.

In reversing the Massachusetts Court the US Supreme Court reiterated its willingness to protect the inherent right to self-defense. In a concurring opinion Justice Alito wrote: “The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense.”

For New York residents, this decision will have a far reaching effect well beyond stun guns. New York presently bans the per se possession of a whole list of items that Courts will likely find to be “bearable arms”, including: gravity knives, switchblades, blackjacks, billys, cane swords, plastic knuckles, metal knuckles, chucka sticks, kung fu stars, wrist brace style slingshots and others. No permits are available for these weapons. In addition, in New York City bans additional items such as handcuffs, pepper spray, knives over 4 inches and knives in plain view and “ammunition feeding devices.” While there have not been any reported decisions citing Caetano yet, It is very likely that these bans are unconstitutional and will be overturned in the near future.


March 17, 2016

As New York Criminal Defense Lawyers we have sounded the alarm on numerous occasions about the draconian enforcement of New York Knife laws by New York City Police Officers and the 5 New York City District Attorney’s Offices. Now an amendment to the New York State Penal Law may severely restrict those arrests if the bill passes the full Senate and the New York assembly. The scope of the problem is enormous. A report in the Village Voice found that more than 60,000 individuals have been arrested for possessing common pocket knives.

The problem stems from the definition of a “gravity knife” found in New York Penal Law 265.00(5). The definition essentially includes as a gravity knife, any lock back knife that can be opened by the application of centrifugal force. That is to say that if a 250 pound police officer can “flip” opened a knife, the knife can be a considered a gravity knife.
The proposed fix to the law would require prosecutors to prove “unlawful intent” before they can convict someone of Criminal Possession of a Weapon in the Fourth Degree to convict for possessing a Gravity Knife.

Be careful, as we have reported in the past, in a case entitled People v. Richards a judge ruled that the statement of a defendant that he had the knife for self-defense was enough to establish that he possessed a knife with intent to use it unlawfully against another. In that case, the criminal court judge reasoned that by stating that the knife was for self-defense it showed that the person considered the knife a weapon as opposed to a tool. Therefore, even if the law is amended, and the person admits to the police that the knife is for self-defense, that statement may be sufficient to convict a person of Criminal Possession of a Weapon in the Fourth Degree.

It is also important to note that this amendment will not fix the two statutes found in the New York City Administrative Code which also result in many criminal summonses and arrests. The first New York City knife law to be aware of is possession of a knife that is in plain view. Many in New York City get arrested or summoned for having a pocket knife clipped to their pocket as many people do. The other statute bans all knives over 4” in length in public. As we have previously reported, even a steak knife at a restaurant can be illegal under this statute.

As a result, for the time being, it is important to vigilant and not bring a knife into New York unless you are well versed in New York knife laws. For more information please read our knife law blogs part 1, part 2 and part 3 and contact us if you need additional information.

New York Gun Laws vs. the Federal Law Enforcement Officers Safety Act

March 4, 2016


As experienced New York Second Amendment Lawyers we often think that we have seen it all but recently we handled a gun case using the Law Enforcement Officers Safety Act (LEOSA) also commonly called HR218 as a defense to New York State gun charges under some unusual circumstances. Just as a primer, the Law Enforcement Officers Safety Act (LEOSA) is a federal law that provides a defense to State weapons charges for both active law enforcement officers and “qualified retired law enforcement officers.” Essentially it gives Law Enforcement Officers and Retired Law Enforcement Officers the right to carry a firearm in all 50 states. Despite this well established Federal Law a gentleman who was both a Special Police Officer for the Sheriff’s Department and a retired Police Officer was arrested and charged with Criminal Possession of a Weapon in New York for having three unregistered handguns in his home.

Two questions that I immediately raised when I became the client’s third attorney were firstly, how can a law enforcement officer, a peace officer, a special police officer under New York law who according to the New York State Penal Law (PL §265.20) is exempt from prosecution be prosecuted in a New York State Court and secondly, how could the police, the prosecutor and the two prior criminal defense attorneys have missed these obvious defenses. Sadly, despite the successful conclusion of the case and the successful conclusion of the County’s futile attempt to revoke his pistol license, I still do not know the answers to my question.

The Client

Besides the fact that the client was one of the finest individuals I have represented, he had a truly incredible military and law enforcement background starting with 33 years in the United States Air Force and Air National Guard including involvement while in the National Guard with a Counter Drug Detachment and numerous awards and decorations for his service, he also had a distinguished and lengthy career in law enforcement. The client’s law enforcement career started with seasonal work as a New York State Park Police Officer which led to 20 years in a Town police Department in New York State after retiring from the Town Police Department with the rank of Sergeant the client spent 7 years as a Sheriff’s deputy in a New York State Sheriff’s Office and the 1 year as a part-time Town police officer and then went on to work 8 years as a Special Police officer for the same Sheriff’s office. Clearly, the client’s law enforcement background was impressive and included supervisory and training responsibilities within his departments.

Probable Cause to Obtain A Search Warrant

The case against the client arose after he was contacted by a buddy of his who he served with in Vietnam and who had confessed that he illegally smuggled back several machine guns from Vietnam. He told the client that he was dying of cancer and that he didn’t want his family to have to deal with them so he asked the client to turn them in at the Sheriff’s Office where he worked. The client complied. After receiving these illegal machineguns someone from the Sheriff’s office decided to notify the Federal Bureau of Alcohol Tobacco and Firearms and Explosives who interviewed the sister of the dying friend. The sister believed that more machine guns were taken by the client than were turned in. This led the BATFE to obtain a Federal Search Warrant for the home of the client and execute it and the client’s home.

The Arrest

Firstly, during the search NO MACHINE GUNS WERE FOUND. However, during the search it was discovered that about 1 year earlier the client obtained three handguns from his father after he died. None of these handguns were added to the client’s license to possess handguns so he was arrested and charged with three counts of Criminal Possession of a Weapon in the Fourth Degree. Each Count was for a class “A” misdemeanor punishable by up to 1 year in jail.

Two Prior Lawyers

When this firm was retained to represent the client, the case was quite old and two prior lawyers had totally botched the case. No motion to dismiss was made. In fact, almost nothing had happened on the case other than two lawyers begging and pleading, orally and in writing for a plea deal. Sadly, the begging and pleading fell on deaf ears and a plea offer to a deal which would leave the client with a permanent criminal record. In fact, the pleading only seem to embolden the prosecutors and by the time our firm was retained there were threats to indict the client for possessing three or more illegal firearms, a felony under New York Law. Certainly, neither of these lawyers raised the Law Enforcement Officers Safety Act with either the Court or the prosecutors. Nor did they raise the exemptions pursuant to Penal Law §265.20 which under subsection 1(c) grants peace officers an exemption from weapons charges and under subsection (3) which grants individuals who possess firearms licenses an exemption.

The Resolution of the Case

Ultimately, the legal issues matter. After the firm was retained I happened to run into the prosecutor in the hallway of the County Courthouse. We of course knew each other well. When I told the prosecutor that I was retained he told me about how fair he had been with the client and that if the client didn’t take the plea offer he was going to indict him for a felony. I think my reaction woke the prosecutor up. What I told him in the Courthouse was that if he indicted my client I would beat him in the County Court and if he decided not to indict him then I would beat him in the local Court. I explained that all an indictment meant was a bigger and more high profile win for me. He could tell I was excited and he asked me to calm down and outline my defenses in a letter.
A short time after I outlined my defenses which essentially boiled down to four :
1. That as the holder of a New York State Pistol Permit issued under Article 400 of the Penal Law the client was exempt from prosecution for weapons possession under New York Law;
2. That as a current law enforcement officer the client was protected under LEOSA;
3. That as a qualified retired law enforcement officer the client was protected under LEOSA
4. Penal Law §265.20 provided an exemption for peace officers to Weapons Charges.
Ultimately, as a result of his legal defenses being laid out for the prosecutor, the client was allowed to pay a fine for a non-criminal violation and have the record of arrest sealed.

The Aftermath of the Case

Not surprisingly after the criminal case ended the County brought an action to revoke the client’s pistol license despite the fact that the arrest was sealed. This required the County to undertake a two step process. First they sought and obtained an unsealing order so that they could obtain the records of arrest from the police and the Court records. The County then used those records to seek revocation of the pistol license that the client has had without incident for decades. Ultimately, a County Court Judge was persuaded that the original arrest was improper and agreed with our arguments concerning LEOSA and New York State Law. The Judge not only reinstated the client’s license but also required that the police return all of his many guns.

Justice was served in this case. But the zeal of prosecutors in certain states to go after law abiding citizens who may have made a minor error in paperwork or some other miniscule error is scary. If you are an honest citizen that has firearms and you find that you are a target of law enforcement, remember that you have rights and options. Find a lawyer who knows gun laws. The life you save me be your own.


February 29, 2016

New York Traffic Lawyers Tilem & Associates successfully won a motion which resulted in a speeding ticket being dismissed completely on novel grounds. Our client was charged with a violation of VTL §1180 (c) for traveling 40 miles per hour in a 25 mile an hour zone. Approximately 15 days after receiving the ticket, the Defendant mailed the ticket to court indicating that he was pleading not guilty and further indicating that he was requesting supporting depositions.

New York Criminal Procedure Law § 100.25(2) provides that a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of a complainant police officer and that upon such a request, a court must order the officer to serve a copy of the same within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier.

Approximately six days after receiving the Defendant’s request, the Court mailed an order for the supporting deposition to the local sheriff’s department and acknowledged the Defendant’s request. Approximately six days after that the Defendant received a copy of the supporting deposition. However, the affidavit of service accompanying the supporting deposition says that it was mailed to the Defendant but it not specify the address of the Defendant to which the supporting deposition was allegedly mailed.

An affidavit of service that failed to set forth the address to which the supporting deposition was mailed fails to establish that a proper mailing occurred as required by law. N.Y. C.P.L.R. §§2103 (c) and (f)(1). See also People v. Hollinger, 15 Misc. 2d 130(A), 839 N.Y.S.2d 435, 2007 N.Y. Misc LEXIS 1227; 2007 NY Slip Op 50622(U)(App. Div. 2nd Dep’t 2007).
In our case, while the supporting deposition was mailed timely, the affidavit of service affixed to it failed to provide the mailing address of the Defendant as required by law. Further, the supporting deposition was sent timely to the Defendant but the People never corrected this defective service issue. By failing to correct the service issue, the People divested the Court of jurisdiction and the Court could not proceed on the simplified traffic informations, because this was a divestiture that cannot be "cured. See People v. Aucello, 146 Misc. 2d 417, 558 N.Y.S.2d 436 (App Div. 2nd Dep’t 1990); People v. Rossi, 154 Misc. 2d 616, 587 N.Y.S.2d 511 (1992 Just Ct, Vil of Muttontown 1992, Kaminsky, J.); People v. Green, 192 Misc. 2d 296, 745 N.Y.S.2d 656 (2002 N.Y. Dist. Ct. Nassau Cnty).

Thus, because the affidavit of service lacked the required information, in accord with case law, the People of the State of New York could not establish that a proper mailing occurred. Because that proper mailing never occurred and the supporting depositions were in essence never served, we were able to obtain a complete dismissal for our client.

If you receive a ticket for speeding or another moving violation, do not simply pay the ticket and plead guilty without knowing all of the consequences. Contact us for a free telephone consultation to discuss your ticket and all of the potential penalties that may be imposed.


February 23, 2016

New York Criminal Defense Attorneys Tilem & Associates in a high profile case in Westchester County successfully negotiated a plea deal for a client charged with criminally negligent homicide in the death of a 6 year old and helped the client avoid a jail sentence.

Homicide. Murder. Negligent homicide. Manslaughter. In the wake of the loss of a life, one may wonder, exactly what the difference in the terms mean? While the words can be confusing, there is an important difference between each charge. Homicide means conduct which causes the death of a person. The difference between murder, negligent homicide and manslaughter all depend on the culpable mental state alleged to be involved with the death of another. In another words did the person intentionally cause the death of someone or did they do so recklessly or with criminal negligence.

The statute, N.Y. Pen. Law § 125.10, spells out criminally negligent homicide in New York. Criminally negligent homicide represents the least serious of all homicide offenses in New York and in fact is the lowest level felony in the New York Penal law. The charge of criminal negligence means that person has failed to perceive a substantial and unjustifiable risk that a particular result will occur or that a particular circumstance exists. The risk is usually of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. This charge is used when the accused lacked the intention of killing the victim, but should have known better than to complete acts which resulted in the victim’s death.

In New York, Criminally negligent homicide is a Class E felony. If convicted of criminally negligent homicide, a Defendant could face up to 4 years in prison. Usually, the sentence in any particular case will be based upon the personal characteristics of the defendant and the circumstances of the crime. For instance, if the defendant’s criminal behavior is the result of circumstances that are unlikely to reoccur or if the character, habits, mentality, propensities and activities of the defendant indicate that he or she is unlikely to commit another crime, or if the defendant educational background, home life, sobriety, or the general emotional or physical state of a Defendant would suggest that leniency makes sense, effective presentation of these facts becomes essential. Depending on any number of mitigating factors that might exist, it is possible that a Defendant may be sentenced to probation and receive no prison term.

Tilem & Associates was successful in preparing a complete and compelling, mitigation package which told our client’s story in a manner that illustrated that justice would be best served with a promised sentence of probation. This case illustrates the absolute importance of retaining a criminal defense attorney who can effectively present mitigating evidence and arguments before the Court. Tilem & Associates firmly believes that our success in this case is directly linked to our theory that there is never a “one size fits all” approach to a good criminal defense.


February 17, 2016

New York Criminal Lawyers Tilem & Associates have been seeing an increase in the enforcement of economic crimes generally and insurance fraud cases more specifically, especially as those cases pertain to Disability Fraud and Workers Compensation Fraud (collectively known as health care fraud). Currently, the firm is involved in a jury trial, defending a person accused of Workers Compensation Fraud. As violent crime has fallen, prosecutors and law enforcement officers have definitely turned their attention to fraud cases but these types of cases can be difficult to prove and filled with pitfalls.

In addition, enforcement by the government can take many forms including the above mentioned criminal prosecution but enforcement can also take the form of civil or administrative proceedings to terminate benefits, seek repayment of benefits paid out (restitution) or impose civil statutory penalties. These types of proceedings each have nuances and complications and a person who finds themselves the target of any investigation or enforcement action should seek an attorney experienced with disability or workers compensation fraud cases and not just go back to their prior attorney who helped them obtain the benefits.

In the criminal trial currently pending in Bronx Supreme Court, our client is accused of fraud for obtaining workers compensation benefits based upon Post Traumatic Stress Disorder (PTSD). While the client was collecting benefits and stating that s/he was a prisoner in her own home and unable to leave her home, the government alleges that she went on cruises and was earning income doing odd jobs for others. Highlighting the complexity of these cases, attempts to cut off the client’s workers compensation benefits before her arrest were unsuccessful and the client still collects benefits to this date despite her arrest almost two years ago.

In another case involving disability fraud, the firm represents a woman accused of fraudulently obtaining federal disability benefits. While the government has decided not pursue criminal charges they are pursuing federal statutory penalties against the client for alleged false statement in the application and the failure to correct those false statements. These civil penalties can be substantial, $5000 per omission or false statement per month. However, it is possible to settle these claims without an admission of wrongdoing and (believe It or not) pay all or some of the civil penalty out of continuing disability benefits. Also, believe it or not, the fact that you agreed to pay a civil penalty cannot be used as evidence to attempt to cut off your benefits.

These types of cases can be very complicated and they can also have very serious consequences such as prison, fines, probation, restitution, loss of benefits and substantial financial penalties. If you believe that you may be under investigation for any type of insurance, workers compensation, disability, health care or welfare fraud, please contact us for a free consultation.


February 11, 2016

New York firearms attorneys Tilem & Associates have been following the increasing number of guns recovered at US airports and more specifically the guns being recovered at local airports such as LaGuardia, Kennedy and Newark with sometimes devastating consequences. As reported in the New York Times in June 2014, from 2011 until June 2014 the TSA had seen a steady rise in guns recovered by screeners in airport security lines. TSA is now reporting another 20% increase in 2015. While a majority of these guns are recovered in places with relatively lax gun laws such as:
Dallas/Fort Worth International Airport — 153 guns recovered
Hartsfield-Jackson Atlanta International Airport — 144 guns recovered
Houston George Bush Intercontinental Airport — 100 guns recovered
Denver International Airport — 90 guns recovered
Phoenix Sky Harbor International Airport — 73 guns recovered,
it is also true that many are being recovered in airports in places with very draconian gun laws.

Not included in the numbers reported by TSA which reports the guns recovered by TSA agents, are the individuals arrested in New York while attempting to check there guns. These individuals are often arrested by the Port Authority Police who are called by the airline agent when the person attempts to declare and check an unloaded gun in accordance with proper TSA procedures. The problem is that under the New York State Penal Law a person is not permitted to possess a pistol of any kind in New York unless they have a license. Since New York does not grant reciprocity to any other State’s pistol license, you must have a valid New York State Pistol License to possess a handgun in New York.

Two other factors also complicate matters. Firstly, a gun is considered loaded in New York if you possess both the gun and the ammunition that can be fired from that gun even if they are separate. The other factor is that it is a class “C” violent felony offense to possess a loaded firearm in New York. A Class “C” violent felony carries a minimum of 3 and ½ years in prison. For many, this can result in a very bad ending to a dream trip to New York.

The only silver lining is that our firm has had tremendous success in litigating gun cases throughout New York and in particular successfully handling and litigating New York airport gun cases. Just last month Tilem & Associates was able to successfully resolve a Felony Gun charge by having it reduced to a non-criminal Disorderly Conduct and paying a $250 fine. The poor woman from Georgia followed all of the lawful procedures for checking her gun in Georgia and when she reversed the process in New York was arrested. She spent nearly 24 hours waiting to see a Judge, missed her flight and spent a lot in legal fees but will have no criminal record. The gun, sadly, will not be returned.

When travelling with firearms it is important to know the local laws on both ends of your trip. In addition, you must be familiar with both TSA regulations and your airlines policies. I strongly recommend printing from the internet both the TSA regulations and airline policies and carrying them with you to the airport.

New York Law Firm Gets Two DWI’s Dismissed on the Same Day in the Same Courtroom

May 28, 2015

Two New York DWI cases were dismissed in back to back victories, in the same Court on the same day, yesterday. The unusual drama played out in a New York County Criminal Court courtroom, last week as the Judge dismissed DWI charges against two separate defendants. Both dismissals were based upon violations of the defendants’ speedy trial rights, although under two different theories and under two different sections of the New York Criminal Procedure Law. In addition, the two DWI’s were very different. One DWI was a refusal, charged as a “common law” DWI under sec 1192(3) of the New York Vehicle & Traffic Law. The second DWI, was based upon a very high breath test, (.159) and was charged under VTL 1192 (2) and 1192 (3). Both were in very different procedural stages.

The first DWI charge to be dismissed, yesterday, was the DWI based upon a refusal to take a breath test. That dismissal was based upon a violation by the prosecutor of the defendant’s statutory speedy trial right codified under section 30.30 of the New York Criminal Procedure Law and which requires the prosecutors to be ready for trial within 90 days of the arraignment. (How that 90 days is calculated is the subject of other blogs on this site and is beyond the scope of this blog.) However, under the current state of the law (and there is a case up on appeal right now to clarify this issue) when a Driving While Intoxicated under VTL 1192 (2) or (3) is charged on the same docket as the traffic infraction of Driving While Ability Impaired by Alcohol under VTL 1192 (1) and the Driving While Intoxicated is dismissed for violation of statutory speedy trial rights, the Court cannot dismiss the lesser charge of Driving While Ability Impaired. Therefore, while the more serious DWI charge was dismissed, the defendant in that case is still charged with the lesser traffic infraction of DWAI.

The second DWI case to be dismissed yesterday was the case involving the very high breath reading of .159 (almost twice the legal limit of .08). The second case is about six months older than the first case. In this case, the DWI, the more serious charge, was dismissed approximately six months ago for violation of the defendant’s statutory speedy trial rights, leaving only the traffic infraction of Driving While Ability Impaired. After six months of the prosecutors not being ready for trial and making several motions to dismiss the remaining charge for violation of constitutional speedy trial rights (as opposed to statutory speedy trial rights), the Judge dismissed the sole remaining charge of Driving While Ability Impaired.

The difference between statutory and constitutional speedy trial rights is again, well beyond the scope of this blog. However, experienced criminal defense lawyers should constantly be aware of the speedy trial clock and do their best to use speedy trial as a potential defense in DWI and other criminal cases.

Tilem & Associates Beats Another Handgun Ammunition Charge at Local Area Airport

April 29, 2015

Again, at JFK airport in Queens, New York, Tilem & Associates beat another handgun ammunition charge after a client was found bringing handgun ammunition through the TSA screening area. As described in a previous blog, the New York City administrative code makes it illegal to possess handgun ammunition unless a person is licensed to possess a pistol or unless the person is a dealer in rifles or shotguns.

As described in the previous blog, section 10-131 of the New York City Code is somewhat convoluted and specifically 10-131(i)(3) contains two exceptions right in the statute. 1. that the law does not apply to a person “authorized” to possess a pistol or revolver. 2. that the law doesn’t apply to a dealer in rifles and shotguns. As explained previously, when a statute in New York contains an exception within the statute, the exception must be both pleaded and proved. In other words, the police are required to allege both that the defendant was not authorized to possess a pistol or revolver and that the defendant was not a dealer in rifles and shotguns. Absent those specific allegations in the accusatory instrument, the case should be dismissed.

This is unusual because, for example, in drafting a charge for possession of an illegal pistol, the police or prosecutor would not be required to establish that person was not authorized to possess the pistol. Rather, the possession of a license or some legal authority to possess the weapon is an exemption contained in a different statute. Since the exception is not found within the statute but rather outside the specific statute the police or prosecutor do not need to plead or prove the exemption.

Given the complexities involved in deciding when it is appropriate to move to dismiss a charge based upon the facial insufficiency of the accusatory instrument, and based upon the nuances of drafting a legally sufficient instrument, it is essential to have an experienced criminal defense lawyer review the charges before an arraignment to be able to advise about the best defense. Many criminal defense lawyers are also former prosecutors who spent years drafting accusatory instruments. Many others have reviewed many accusatory instruments as criminal defense lawyers. It is important to find a lawyer that you can trust to offer you the very best advise on how to defend yourself.


January 6, 2015

New York gun crimes law firm Tilem & Associates is pleased to announce another victory in a firearms related case, winning a full dismissal of all charges after a person was charged with possessing handgun ammunition and a handgun magazine at JFK airport. As reported almost 6 years ago in our blog about New York City’s ban on commonly possessed items, possession of handgun ammunition and ammunition feeding devices are illegal in the five boroughs of New York City under New York City Administrative Code Section 10-131. That section makes it a misdemeanor, to possess these items punishable by up to one year in jail.

The difficulty with section §10-131 is that it is very long, containing a large number of subdivisions, poorly written and has a large number of exceptions written into the statute. §10-131 subdivision (i)(3) states in pertinent part: “It shall be unlawful for any person not authorized to possess a pistol or revolver within the city of New York to possess pistol or revolver ammunition, provided that a dealer in rifles and shotguns may possess such ammunition.”

In the case at JFK airport, the police officer in the accusatory instrument alleged only, in pertinent part that “. . . at Terminal 5 – JFKIA main screening Lane 13, suspect was in possession of two magazines holding six rounds of 9mm ammunition in each.” Yet, it is a well settled principle of New York law that where an exception is contained within a statute the prosecutor or the police are required to disprove the exception. In this case for example the police would have been obligated as a matter of law to establish that the accused was not a dealer in rifles and shotguns. Since the police failed to make that accusation, the accusatory instrument was insufficient as a matter of law and needed to be dismissed.

This situation is different than, for example, than illegal possession of a firearm. Those statutes do not contain any exceptions for a person who possesses a license or for a police officer. Rather, those are exemptions found in a different section and therefore do not need to be pleaded and proved by the police or prosecutor.

A similar argument was made for the separate charge of possessing an ammunition feeding device. That section includes a large number of exceptions including the fact that the defendant was not a licensee or permittee authorized to possess a pistol that accepted the ammunition feeding devices.

The New York Criminal Procedure Law requires that all local court accusatory instruments be sufficient on the face of the instrument and requires dismissal of instruments that are not sufficient on their face under most circumstances. Here the police officer drafting the instrument failed to establish that the exceptions did not apply but also failed to establish other elements of the offense.

Quoting the deficiencies in the ammunition feeding device charge from the motion to dismiss: “1. That the defendant possessed a “ammunition feeding device”; 2. that it was “designed for use in a firearm”; 3. that the defendant was not a “pistol or revolver licensee or permittee”; 4. that the defendant was not licensed to possess a pistol that accepted that ammunition feeding device”; 5. that the device was capable of holding more than 17 rounds; and 6. that the device extended below the grip.”

Quoting the deficiencies in the ammunition charge from the motion to dismiss: “1. That defendant possessed pistol or revolver ammunition; 2. That Defendant was not authorized to possess a pistol or revolver; 3. That defendant was not a dealer in rifles and shotguns.”

The bottom line is read the accusations in the accusatory instruments carefully. Read the statutes carefully. As a result of good lawyering and bad drafting by the police, the accused was completely vindicated and justice was served.


June 18, 2014

New York Criminal Defense law firm, Tilem & Associates has seen an increase in the number of Reckless Driving tickets and other related moving violations, which is consistent with recent media reports that a crackdown on hazardous driving is underway by the NYPD. According to the media a 24 hour per day, 7 day per week crackdown will target drivers who speed, run red lights and use cell phones or other portable electronic devices. These violations which are among the most common also carry the most points and can have the greatest impact on a driver's license and a driver's insurance rates. A reckless driving ticket carries 5 points and is a criminal offense under New York Law, a cell phone ticket, which up until several years ago was a no-point violation now also carries 5 points. Speeding tickets can carry anywhere from between 3 and 11 points and Red light tickets carry 3 points. A motorist generally loses their license at 11 points.

The latest NYPD reckless driving crackdown is consistent with Mayor de Blasio's "Vision Zero" plan which has the goal of eliminating traffic fatalities and comes after a serious accident left a pedestrian serious injured after crossing Linden Boulevard in Brooklyn earlier this week.

"The good news for motorists is that an experienced traffic lawyer can generally get substantial reductions in the points associated with tickets and very often eliminate the points altogether," according to traffic lawyer Jasmine Hernandez. "An experienced traffic lawyer can especially have the greatest impact on reckless driving tickets which are among the most serious," according to Ms. Hernandez.

Reckless driving while an extremely serious charge can also be very difficult to prove, giving experienced lawyers the ammunition to obtain favorable dispositions for their clients which can often include pleas to no-point parking violations or other minor infractions. Courts have held in the past that mere evidence of a collision is insufficient to establish reckless driving. Similarly, the Courts have found that mere evidence of speeding is insufficient. Rather, Courts generally require evidence of multiple infractions at the same time to sustain a conviction for reckless driving. Since the stakes are so high in reckless driving cases (the potential for 5 points and the potential to have a permanent criminal record among other consequences), any motorist charged with reckless driving would be well advised to seek the advice of an experienced criminal attorney.

Tilem & Associates offers free consultations over the phone to anyone charged with Reckless Driving, speeding, cell phones, red lights or other traffic offenses. To schedule a free consultation you can visit us on the web at or call 877-DRSUMMONS (877-377-8666)