New York Criminal Attorney Blog

As we have discussed in previous blogs New York has a speedy trial statute than when used by a knowledgeable and experienced criminal defense lawyer can often help get a case dismissed or effect a better plea bargain. Often, when litigation begins over whether the "speedy trial clock" has run out on the prosecution, the prosecutor will try to claim that certain adjournments are excludeable from speedy trial calculations because the defendant had consented to the adjournment.

Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel's failure to object to the adjournment or failure to appear does not constitute consent. People v. Smith, 82 N.Y.2d 676, 678 (N.Y. 1993).

Defendant’s Failure to Object to Adjournment Not Consent: A mere failure by defense counsel to object to an adjournment does not constitute "consent" within the meaning of CPL 30.30 (4) (b). People v Liotta (79 NY2d 841, 843),

Defendant’s Agreeing to a New Date or Notice of a New Date Not Consent:

Defense counsel’s reply “That’s fine” is not deemed consent to an adjournment where court indicated it would notify the parties of the date by mail. “That’s fine” was simply an agreement to the method court would use to notify parties – it was not consent to adjournment. People v Brown, 69 A.D.3d 871 (2nd Dept. 2010) see also People v. Nunez, 47 A.D.3d 545 (1st Dept. 2008)(“Although defense counsel said "fine" in response to the trial court's suggestion of August 21 as an adjourned date, in context this amounted to a representation that such date was not inconvenient, but did not imply consent.”).

Defense Counsel Participating in Picking New Date Not Consent to Adjournment

In People v D.D., the court found that counsel’s response to the court’s questions about a convenient adjourn date did not qualify as defense counsel actively participating in setting that date such that consent to adjourn could be inferred and the time would be subject to exclusion. 2010 NY Slip Op 50837U, 4, 27 Misc. 3d 1221A (FN 2)(N.Y. City Crim. Ct. 2010).

In addition, a delay caused by plea negotiations is only excludable if the defense requested or consented to the delay. People v. Manning, 52 A.D.3d 1295 (4th Dept. 2008).

A defendant without counsel must not be deemed to have consented to a continuance unless he has been advised by the court of his rights under these rules and the effect of his consent. CPL 30.30(4)(b). Therefore, unless an unrepresented defendant is specifically advised of his right to a speedy trial and the consequences of his consent he may not be deemed to have consented even if he indicates that he is consenting to an adjournment.

In the end, It is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged. Where the People fail to satisfy this primary obligation, they must assume responsibility for the delay that follows the adjournment. People v. Cortes, 80 N.Y.2d 201, 215-216 (N.Y. 1992) see also People v. Reyes (Carlos), 24 Misc. 3d 51, 55 (N.Y. App. Term 2009)(“As the People failed to satisfy their burden of creating a record establishing that the period from August 10, 2005, to September 28, 2005, is excludeable on the basis of consent, and as they have established no other ground for its exclusion, it must be charged to them.” In other words if there is an ambiguity in the record, the People will be charged for the adjournment.

Continue reading " NEW YORK SPEEDY TRIAL - Part IV - The Defendant's Consent to an Adjournment Must be Clear. " »

In the first two parts in our series of blogs on New York's assault weapon ban we discussed the absolute silliness in banning firearms based upon certain cosmetic features. Now we discuss the most troubling part of the ban from the perspective of the citizen who finds himself charged under New York law with possessing an Assault Weapon or the experienced criminal defense lawyer who takes on the responsibility of defending the citizen.

Penalties

Generally, possession of a so called "assault weapon" in New York is a violation of Criminal Possession of a Weapon in the Third Degree under New York Penal Law sec 265.02 (7). Possession of a "Large Capacity Ammunition Feeding Device" is a violation of Penal Law sec 265.02 (8). Both are class "D" violent felonies in New York and are therefore punishable by a definite sentence of up to seven years in prison. A person charged under this section could get a sentence of Probation in lieu of a state prison sentence if the judge thought it was appropriate. In other words, prison is not mandatory.

One of the more troubling provisions of this law is that possession even inside one's home is a "D" felony despite recent United States Supreme Court Decisions that indicate that there is a constitutional right to possess a firearm in your home for self defense. In addition, a very troubling provision makes it a "C" felony to possess a loaded assault weapon inside of your home. The problem is that the definition of "loaded" in New York is very broad. To understand the definition of loaded in New York please see our blog entitled "When Your Unloaded Gun Is Really Loaded" Under New York's definition of loaded it would seem that any firearm or assault weapon inside your home would be considered loaded. In addition, possession of any "loaded" firearm inside your home if you have ever in the past been convicted of a crime is a "C" felony. That means that if you possess a loaded firearm inside your home (again it would be hard to imagine a situation where a gun in your home was not considered loaded under New York Law) and have been previously been convicted of Reckless Driving, you are facing a "C" felony. The significance of a "C" felony is that you must receive a mandatory minimum of 3 and 1/2 years in state prison and you can receive up to 15 years in prison. In other words, probation is not an available sentence. Only prison is available.

These cases are highly technical and obviously very serious. The consequences of a conviction are tremendous. Tilem & Campbell senior partner Peter H. Tilem has spent twenty years involved in first prosecuting and then defending gun and weapons cases in New York and Federal Court with outstanding success. To discuss an assault weapon case or any criminal case contact Peter Tilem by telephone or visit us on the web at handgunattorney.com.

In Part I in our series of blogs covering New York's so called "assault weapon" ban we began to highlight some of the most troubling parts of a ban on certain weapons based purely on cosmetic features. At Tilem & Campbell we handle a large number of gun and weapons cases and so are in a unique position to see how some of these laws are applied. We continue with other troubling provisions of New York's assault weapon ban.

One of the most troubling features of the ban is the ban on flash suppressors. The fact is that there are many devices that attach to the barrel of a rifle and which look alike. There is no definition in the New York Penal sec 265.00 of a flash suppressor. Prior to 2004 when the Federal Assault Weapon ban expired the Federal Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) was responsible for characterizing the various devices that can be attached to the barrel of a gun. Since the federal law expired the BATFE no longer will do that. So manufacturers now attach devices to the barrel of rifles that look like flash suppressors but which manufacturers classify as "muzzle brakes". These devices look like flash suppressors but are seemingly legal under New York law since the law specifically bans flash suppressors. The problem is that New York does not provide any definition of flash suppressor (or muzzle brake) and the difference can mean the difference between not committing any criminal offense and doing 15 years.

In addition, to the ban on firearms containing certain random cosmetic features, the Federal Assault Weapon Ban also banned detachable magazines that held more than 10 rounds. The ban on detachable magazines similarly expired under Federal Law but still exists in some states. For example New York has a ban on magazines that can hold more than 10 rounds and New Jersey has a ban on magazines that can hold more than 15 rounds. (Since these numbers were selected at random there is no uniformity among the various states that imposed their own ban.)

The New York ban on high capacity magazines, or what are called "Large Capacity Ammunition Feeding Devices" in the New York Penal Law only bans such devices manufactured after September 14, 1994. Since firearms magazines do not have serial numbers or date of manufacture this provision of New York's assault weapon ban is largely unenforceable.

Peter H. Tilem, senior partner at Tilem & Campbell had been a practicing criminal lawyer for 20 years. He started his career as a prosecutor in the New York County district attorney's Office and was assigned to the Firearms Trafficking Unit in that office. As a defense lawyer he has handled numerous gun and weapons cases with great success. If you or a loved one has been arrested, questioned summoned or charged with any gun or weapons case contact our office to discuss the case. Or you can visit us on the web at www.handgunattorney.com for additional information.

The Assault Weapon Ban which was passed as both a federal law and State law in many jurisdictions after a swell of media hysteria and which has since elapsed as a Federal ban is still alive and well in New York and New Jersey and a recent amendment to New York law has left a dangerous trap for innocent New Yorkers. Peter Tilem, the senior partner at Tilem & Campbell and former firearms trafficking prosecutor in the City of New York has dealt with a number of these cases as both a prosecutor and a defense attorney.

The Federal Assault Weapon Ban which was passed as a 10 year ban on "Assault Weapons" expired in 2004 after it was found to be absolutely useless. The original ban which is still in effect in New York banned rifles purely based upon cosmetic features. Since automatic weapons were already illegal, the so called assault weapon ban prohibited semi-automatic weapons that had two or more cosmetic features that were deemed to make them "Assault Weapons" the list of cosmetic features includes: a pistol grip, folding or collapsible stock, bayonet lug, flash suppressor and believe it or not if it was a pistol, the weight of the pistol. If the pistol weighed more than 50 ounces that was one of the two features that would make it an "Assault Weapon". (Up until the hysteria surrounding the Assault Weapon Ban we were told that it was the small easily concealable pistols the should be banned.) In addition, certain guns were banned by name.

It should be noted that in New York but not New Jersey if you possessed one of these guns prior to September 14, 1994 you could continue to own the so called assault weapon. This provision made the law largely unenforceable since the prosecutor could not prove, if the gun was manufactured before September 14, 1994 when it was first possessed.

The major problems with the continued assault weapon ban in New York is that these so called assault weapons are widely available all over the country and while the ban in New York seems largely regulatory in nature in that it bans purely cosmetic features on rifles, pistols and shotguns the law seeks to send people to prison for up to 15 years in prison for unwitting violation of the New York ban. Rifles in New York State (outside of New York City) are not considered firearms and no licenses are needed to purchase or possess them but its legality can turn on some very specific, ill defined features and can turn an otherwise lawful rifle into an assault weapon.

The assault weapon ban remains a reality in New York and remains very convoluted in the way the laws are written and applied. The law firm of Tilem & Campbell handles a lot of firearms, weapons and assault weapons cases throughout New York State with tremendous success. Peter H. Tilem has 20 years of experience in both prosecuting and defending gun cases. If you have been arrested or charged with any weapon or gun charge, please contact this office to schedule a free consultation or visit us on the web at handgunattorney.com.

Eligibility requirements for the issuance of a pistol license in New York are set forth in Penal Law §400.00(1). Briefly, an applicant must (1) be twenty-one years of age; (2) of good moral character; (3) have not been convicted of a felony or serious offense; (4) state whether he has ever suffered from mental illness or been confined to an institution for mental illness; and (5) not had a pistol license revoked or who is not under a suspension or ineligibility order issued pursuant to CPL 530.14 or Fam. Ct. Act 894-a.
The issue is; does a failure to satisfy any of the above eligibility requirements act as a permanent bar to licensure? The question must be answered in the negative. John Campbell, a partner with Tilem & Campbell, is currently challenging a Westchester County Licensing Officer’s denial of an application because the applicant had a prior revocation based upon a lack of necessary character and judgment. The Licensing Officer denied the application solely because the applicant had a prior revocation without regard for the basis of that revocation.
The licensing officer that originally revoked the applicant’s license had found that he lacked the character and judgment to possess a pistol license. The revocation was not related to an order of protection and was not made pursuant to CPL §530.14 or Fam. Ct. Act §842-a but instead was made pursuant to Penal Law 400.00(11) for a lack of character. This is important because only revocations pursuant to CPL §530.14 or Fam. Ct. Act §842-a can act as a permanent bar. However, revocations based upon a lack of character and judgment are not permanent bars to re-licensure.
The First Department addressed this issue in Matter of Romanoff v. Kelly, 23 A.D.3d 212 (1st Dept. 2005) where it held that only revocations pursuant to CPL §530.14 or Fam. Ct. Act
§842-a could act as a permanent bar to re-licensure.
For more information about this or any other firearms issue, feel free to contact us toll free at 1-877-377-8666 or visit us on the web at www.HandGunAttorney.com.