New York Criminal Attorney Blog

Our July 15, 2009 blog on the Auxiliary Police Officer arrested for possession of Mace has sparked tremendous interest with many calling our firm or writing in about the issue and many wanting to find out how to obtain a New York City permit for mace. Some have contacted us about there failed efforts to obtain information about the permit from the New York City Police Department. The regulations are summarized in our May 24, 2009 blog. So I leave it to you; if any one knows how to obtain a New York City permit for mace, please comment to this blog, or contact Tilem & Campbell with the information. I will publish the results in a future blog.

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Posted In: CRIMINAL PROCEDURE , IN THE NEWS , WEAPONS OFFENSES

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As outlined in our May 24, 2009 blog New York City bans certain items that are legal other places in New York State and most other places in our Country. New York City Auxiliary Police Officer Alexander Gonzalez found that out the hard way when he was arrested, while on duty, in Manhattan for possession of mace. Mace is one of those items which is illegal in New York City but was made legal in New York State in 1996.

New York City Auxiliary Police Officers are neither police officers or peace officers under New York Law and therefore are not entitled to possess any weapons that civilians are not also entitled to possess. Senior partner, Peter H. Tilem was interviewed for an article written about the case today.

Tilem & Campbell handles a large number of gun and weapons charges in New York and has seen an increase in overly aggressive enforcement of minor weapons violations in New York City for items such as Mace and knives.

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New York City Administrative Code §10-131 prohibits the possession of common items which are lawful in most other parts of New York State and the Country. As a criminal defense attorney with experience in so many different weapons offenses I see many clients who innocently bring these items into New York City and find themselves facing extremely serious criminal charges.
A brief list of the items banned in New York City is as follows:

1. Air Pistols and Air Rifles. The Sale and possession are illegal in New York City pursuant to 10-131(b).

2. Sale of certain toy pistols pursuant to 10-131 (d) is illegal in New York City.

3. Sale or possession of mace, tear gas or pepper spray is illegal in New York City without a permit pursuant to 10-131(e). This is so even though in 1996 the New York State legislature repealed the law making self-defense sprays illegal state wide. These self-defense sprays are currently legal, without a permit outside New York City.

4. Sale or possession of certain toy or imitation pistols is illegal in New York City. 10-131 (g).

5. Carrying or possessing rifles and shotguns. These guns are available for sale outside of New York City without a license. Possessing them in New York City without a special license can be a misdemeanor or an offense. 10-131 (h).

6. It is illegal to sell or dispose of ammunition or ammunition feeding devices in the City of New York unless you are “authorized pursuant to law.” However a person who lawfully possesses such items may dispose of them to a dealer in firearms. 10-131 (i) 1.

7. It is unlawful for a gun dealer to sell ammunition to a licensed gun owner if he sells ammunition that cannot be fired from the firearms the gun owner is licensed to possess. 10-131 (i) 2.

8. It is illegal for a person not authorized to possess a pistol in New York City to possess any pistol ammunition. This is so even if you are authorized to possess a pistol some place outside of New York City and the ammunition is in your “shooting bag” in the trunk of your car. 10-131 (i) 3.

9. Even if you have a license to possess a pistol in New York City it is unlawful to possess ammunition of a different caliber. 10-131 (i) 4.

10. It is illegal to possess an ammunition feeding device (a magazine) unless you are authorized to possess a pistol that uses such device or except under other limited circumstances. 10-131 (i) 6.

11. It is unlawful for anyone to dispose of an ammunition feeding device except a gun dealer may sell one to a person authorized to possess the same caliber of pistol or a person authorized to possess it may sell it to a gun dealer. 10-131 (i) 7.

12. New York City has its own definition of assault weapons under Administrative Code Section 10-303.1. Possession of Assault Weapons in New York City are a crime and can subject a person to additional Civil Penalties of up to $10,000 per Assault Weapon.

The bottom line is be careful in New York City. Many people who lawfully possess these items in other States or Cities get caught in their cars or at the airports and find themselves facing serious charges. If you find yourself charged with any violation of these laws remember many of these offenses are crimes and can subject you to jail, fines, probation and leave you with a permanent criminal record.

If you have any questions or have been charged with any criminal offense contact us to discuss your specific circumstances.

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New York criminal defense lawyers, especially those that handle New York gun possession cases, know that New York has some of the most onerous laws restricting the possession, ownership and use of weapons of all types. This blog presents a brief overview of Criminal Possession of a Weapon in the Third Degree (CPW 3rd) (See NY Penal Law 265.02).

There are several ways one may commit CPW 3rd. First, a person is guilty of CPW 3rd in New York if they commit the crime of Criminal Possession of a Weapon in the Fourth Degree (CPW 4th) and have been previously convicted of any crime. [See Penal Law 265.02(1) for exact wording] .

Second, one is guilty of CPW 3rd if they possess any incendiary or explosive bomb, bombshell, silencer, machine gun or any other firearm or weapon simulating a machine-gun and which is adaptable as a machine gun. [See Penal Law 265.02(2) for exact wording] .

Third, a person is guilty of CPW 3rd if they knowingly possess a firearm, machine-gun, rifle or shotgun which has been defaced to conceal or prevent the detection of a crime or to misrepresent the identity of such weapon. [See Penal Law 265.02(3) for exact wording].

Fourth, a person is guilty of CPW 3rd if they possess three or more firearms or possess at least one firearm while having been convicted on a Class “A” Penal Law Misdemeanor within the previous five years. [See Penal Law 265.02(5) for exact wording].

Finally, one is guilty of CPW 3rd if they knowingly possess a disguised gun, possess an assault weapon or a large capacity ammunition feeding device. [See Penal Law 265.02(6)-(8) for exact wording]. Note, possession of a disguised gun must be “knowingly”.

For more information about CPW 3rd or any other weapons offense, conatct Tilem & Campbell toll free at 1-877-377-8666 or visit us at www.HandGunAttorney.com.

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Criminal Possession of a Weapon in the Fourth Degree (CPW 4th) is a class “A” misdemeanor in New York punishable by up to one year in jail. There are several ways one can commit the crime of CPW 4th. (There are also exemptions to the statute which will be discussed in future blogs). If you have been charged with a weapons offense, you need experienced criminal defense attorneys to defend you.

One is guilty of CPW 4th if he or she possesses any: (1) firearm; (2) electronic dart gun; (3) electronic stun gun; (4) gravity knife; (5) switchblade knife; (6) pilum ballistic knife; (7) metal knuckle knife; (8) cane sword; (9) billy; (10) blackjack; (11) bludgeon; (12) plastic knuckles; (13) metal knuckles; (14) chuka stick; (15) sand bag; (16) sandclub; (17) wrist-brace type slingshot or slungshot; and (18) shirken or “Kung Fu star”. [See NY Penal Law 265.01(1)].
One is also guilty of CPW 4th if he or she possesses any of the following weapons with
the intent to use it against another unlawfully: (1) dangerous knife; (2) dagger; (3) dirk; (4) razor; (5); imitation pistol; or (6) any other dangerous or deadly instrument or weapon. [See NY Penal Law 265.01(2)].

One is also guilty of CPW 4th if they knowingly possess a firearm, rifle or shotgun in a school or on school grounds including colleges and universities or in a school bus. [See NY Penal Law 265.01(3)]. Further, one convicted of a felony or serious offense may not possess a rifle or shotgun. [See NY Penal Law 265.01(4)]. Nor may a non-citizen possess a dangerous or deadly weapon. [See NY Penal Law 265.01(5)]. One is also guilty of CPW 4th if they have been certified not suitable to possess a shotgun or rifle and refuse to surrender such upon the demand of a police officer. [See NY Penal Law 265.01(6)].

Finally, one is guilty of Criminal Possession of a Weapon in the Fourth Degree if they possess a bullet containing an explosive material designed to explode on impact [See NY Penal Law 265.01(7)] or if they possess armor piercing ammunition with the intent to use it against another unlawfully. [See NY Penal Law 265.01(8)].

As I said above, there are many exceptions to the statute which I will discuss in a future blog. If you have been charged with any weapons offense contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

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“Switchblade Knife” is defined in New York as any knife that has a blade which opens automatically by hand pressure applied to a button, spring or other device within the knife’s handle. (For the exact definition of “Switchblade Knife” see NY Penal Law § 265.00(4)).

It is an “A” Misdemeanor to possess a switchblade knife (Penal Law § 265.01(1) – Criminal Possession of a Weapon in the Fourth Degree). However, it is not a crime to possess a switchblade knife if it is for use while fishing, hunting or trapping and you have a valid license to fish, hunt or trap issued pursuant to section 11-0713 of the New York Environmental Conservation Law (See Penal Law § 265.20(a)(6).

Although not stated in the statute, in order to be convicted in New York of illegally possessing a switchblade knife, you must “knowingly” possess the knife (See Model Jury Charge for Criminal Possession of a Weapon in the Fourth Degree (CJI 2d N.Y. Penal Law § 265.01(1); People v. Ford, 66 N.Y.2d 428, 440, 497 N.Y.S.2d 637).

For example, in People v. Wood, 869 N.Y.S.2d 401 (1st Dept. 2008), defendant’s conviction was overturned where the trial judge refused to instruct the jury that the prosecution had to prove that defendant knew the item he possessed was in fact a switchblade knife.

If you or a loved one have been charged with any New York weapons offense including illegal possession of switchblade knife, illegal possession of a pistol or possession of any other weapon, contact Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit us on the web at www.tilemandcampbell.com or www.888AnyCrime.com.

Posted by John Campbell | Permalink | Email This Post | Comments (1)

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As discussed in the previous blog, under certain circumstances, all occupants of a vehicle can be presumed to possess drugs, guns or other weapons found within the vehicle. We also discussed the effect of the presumption on the New York criminal case and went into some detail about the presumption as it applies to New york gun cases and New York Weapon cases.

Now we discuss the vehicle presumption as it applies to New York controlled substance cases. With certain drug possession offenses carrying a mandatory minimum of eight years, the stakes are very high when traveling in a vehicle with someone who may possess illegal drugs. Similar to the gun presumption, New York’s drug presumption applies to all vehicles except public buses (it applies in stolen vehicles unlike the gun presumption). According to a strict reading of the statute, the drug presumption applies to all persons in the vehicle at the time the drugs are found. Since generally the police take all of the occupants out of the vehicle, I would argue that in such a case the presumption does not apply.

Like the gun presumption, the drug presumption does not apply in three circumstances. The presumption does not apply to a cab driver or livery cab driver. It does not apply if a person in the vehicle is authorized to possess the controlled substance (has a prescription for the drug) and the drug is in the same packaging as when he received it. The presumption also does not apply when the drugs are found on the person of one of the occupants.

It is also important to remember that since the presumption only applies to controlled substances and marihuana (or marijuana) is not a controlled substance under New York Law, the presumption does not apply to marihuana.

If you are charged with any New York narcotics offenses contact one of the experienced criminal defense lawyers at Tilem & Campbell.

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New York Criminal Law establishes a presumption that all people in a vehicle are presumed to possess either drugs or guns that are found within the vehicle. What that means is that in New York each and every person inside a car will generally be charged with gun possession or drug possession for contraband that is found anywhere in that car, regardless of where the drugs or guns are found. (With certain exceptions, some of which are discussed below.)

NEW YORK GUN POSSESSION PRESUMPTION

In the case of gun, with possession of a loaded gun in New York carrying a mandatory minimum of three and one half years in prison, you are taking a tremendous chance driving with someone who may have an illegal gun. The New York gun presumption applies to all vehicles except stolen vehicles and public buses and applies not only to firearms but other weapons. The presumption has three major exceptions. The presumption does not apply if the weapon is recovered on the person of one of the occupants of the vehicle. It does not apply to the driver of a cab or livery cab and the presumption does not apply if one of the occupants has a license to carry the weapon concealed.

The presumption, however, does apply if one of the occupants has the firearm or other weapon on his person and discards it on the floor of the vehicle as the police are pulling over the vehicle. This situation can arise quickly and put everyone in the vehicle at risk under the presumption.

To learn about New York's vehicle presumption as it applies to New York drug cases click here.

EFFECT OF THE PRESUMPTION

It is important to remember that both the drug and gun (or weapon) presumptions under New York law are rebuttable presumptions. That means that although there is a presumption that all occupants of the vehicle are presumed to possess the contraband, evidence can be introduced to show that in fact one or more of the occupants did not possess the contraband. In other words, the presumption does not relieve the prosecutor of his or her burden to prove every element of the crime beyond a reasonable doubt. It also gives the person charged under the presumption automatic standing to challenge the constitutionality of the police conduct. That means that it gives a person charged under a presumption the right to seek suppression of evidence that they might not otherwise to be able to challenge.

So if you or a loved one are charged with a New York weapon offense or a New York gun offense under New York’s gun presumption or a New York Controlled Substance offense under New York’s controlled substance presumption, contact an experienced New York criminal defense lawyer who has experience in these types of cases. Contact Tilem & Campbell for any questions about New York criminal matters.

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If you are charged with a New York gun or New York firearm offense it is imperative that your criminal defense attorney be completely familiar with the legal definitions of relevant terms. These definitions are found in New York Penal Law § 265.00. In this blog I will summarize several legal definitions applicable to Articles 265 and 400 of the New York State Penal Law. For more information visit our website.

FIREARM SILENCER – PENAL LAW § 265.00(2)

Generally, a firearm silencer is anything that silences, lessens or muffles the sound of the firing of a revolver, gun, pistol or other firearm (for the exact definition of “firearm silencer” see NY Penal Law § 265.00(2).

FIREARM – PENAL LAW § 265.00(3)

Several guns fall under the New York State definition of “firearm”. A revolver or pistol, as well as a shotgun having one or more barrels less than 18 inches in length are all considered firearms for purposes of Articles 265 and 400 of the Penal Law. A rifle having one or more barrels less than 16 inches in length is also considered a firearm. Furthermore, any shotgun or rifle altered, modified or otherwise having a length less than 26 inches is considered a firearm as is an assault weapon. (For the exact definition of firearms see Penal Law § 265.00(3)). With regard to rifles and shotguns, the length of the barrel of a rifle or shotgun is the distance between the muzzle and the face of the bolt, breech, or breechlock when closed and when the rifle or shotgun is cocked. With regard to an altered or modified shotgun or rifle, the overall length of such a firearm is the distance between the extreme ends of the weapon. (See Penal Law § 265.00(3)). Finally, an antique firearm in not included in the definition of a firearm.

Several of the terms used in the definition of firearm are themselves individually defined in Penal Law § 265.00. For example, “Rifle”, “Shotgun”, “Antique firearm”, and “Assault weapon” are separately defined and therefore a review and understanding of these terms is imperative to a full understanding of the term “firearm”. In future blogs I will discuss these term in more detail.

If you or a loved one has been charged with any firearm or weapons offense, put the experience of a former firearms trafficking prosecutor to work for you. Feel free to call 1-888-ANY-CRIME for a free telephone consultation or visit www.HandGunAttorney.com or www.888AnyCrime.com

Posted by John Campbell | Permalink | Email This Post | Comments (1)

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In the introduction of my series of blogs pertaining to firearms, gun possession and other weapons charges, I discussed the need for experienced and competent legal representation. I also explained that Tilem & Campbell’s Senior Partner Peter Tilem was formerly an Assistant District Attorney in Manhattan and worked extensively in the Gun Trafficking Unit.

In this blog I will discuss the legal definition of a “machine gun”. Offenses pertaining to firearms and other dangerous weapons are found in Article 265 of the New York State Penal Law. Section 265.00 of the Penal Law (which is the first section of Article 265) contains the definitions for terms used in Article 265 as well as Article 400 of the Penal Law.

MACHINE GUN – NY PL § 265.00(1)
For purposes of Article 265 and 400 of the Penal Law, a machine gun means any weapon irregardless of its description, size or name, whether loaded or unloaded from which bullets or shots may be continuously and rapidly fired with one continuous pull of the trigger. This definition includes a sub-machine gun. (For the exact definition of a machine gun see NY PL § 265.00(1))

Recently in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the United States Supreme Court found unconstitutional on Second Amendment grounds a District of Columbia’s ban on one’s possession of a firearm in one’s home. However, the Supreme Court indicated that the Second Amendment does not protect firearms not typically possessed by lawful individuals for lawful purposes. Accordingly, the Heller, decision noted that machine guns, M-16s and short-barrel shotguns were not protected by the Second Amendment.

However, unlike the definition of a “firearm” (discussed in a future blog) an interesting point about the definition of a machine gun is that it must be operable. Indeed, to paraphrase the definition, a machine gun must be a weapon from which a shot or number of bullets may be rapidly or automatically discharged. (NY PL § 265.00(1)).

In future blogs pertaining to machine guns, I will be discussing some of the charges one might face for possession of an operable machine gun (Penal Law § 265.01(2)) as well as possession of an operable machine gun with intent to use it unlawfully against another person. (Penal Law § 265.03(1)(a)).

As always, if you have been arrested or think you might be wanted for any type of firearm, gun, or other weapons charge, contact Tilem & Cambpell toll free at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com or www.HandGunAttorney.com.

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If you have been charged in New York or in Federal Court with any type of gun possession, firearm offense or other offense involving weapons or dangerous instruments, you must have qualified and experienced legal representation. The stakes are high. In New York, simply possessing a loaded, operable, unlicensed firearm outside your home or business carries a mandatory minimum 3 ½ year sentence if convicted. That means if you are convicted, you will do a minimum of 3 ½ years “upstate” prison time.
Tilem & Campbell can provide you the skilled legal representation you need should you be charged with a firearms offense. Not many attorneys can match Senior Partner Peter Tilem’s experience, expertise and inside knowledge of firearm and gun offense prosecutions. Prior to entering private practice, Mr. Tilem spent ten years as an Assistant District Attorney in the Manhattan District Attorney’s office. For several of those years, Mr. Tilem was with the Firearms Trafficking Unit of the Manhattan District Attorney’s Office which was a multi-agency operation combining New York State, New York City and Federal law enforcement agencies such as the FBI and the ATF in multi-jurisdictional illegal gun trafficking investigations and prosecutions. As part of his prosecutorial duties with the firearms trafficking unit, Mr. Tilem traveled the east coast investigating and building cases against those involved with illegal firearms distribution.
Certainly there are other highly qualified defense attorneys. However, if you are charged with a gun, firearm or other weapons offense, ask your attorney or potential attorney if they have ever worked as an Assistant District Attorney investigating and prosecuting multi-jurisdictional and multi-agency gun and firearm trafficking cases firsthand. Their answer will most likely be no. Ask Peter Tilem of Tilem & Campbell if he has first hand experience in investigating and prosecuting these cases and the answer will be absolutely yes.
The results speak for themselves. Few attorneys have enjoyed the level of success that Tilem & Campbell has enjoyed in winning difficult New York and federal gun cases.
If you have been charged with any type of firearm offense in New York visit www.HandGunAttorney.com or www.888AnyCrime.com for more information about our firm or call toll-free 1-888-ANY-CRIME.

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New York Criminal Defense Law Firm, Tilem & Campbell, scored another major victory in a New York gun case when it won a complete dismissal of all charges in a Bronx County case yesterday. The original charges included Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. The Defendant faced a minimum sentence of 3 and 1/2 years in prison on the Second Degree charge which is a class "C" violent felony.

The case was won using a little known Federal Defense that provides a defense to gun charges in all 50 states for those transporting firearms from one place where they may legally possess that gun to another such place if done so in accordance with federal law.

The victory comes on the heels of a string of major victories in the past three months for Tilem & Campbell which included another dismissal of felony gun charges in a Brooklyn Gun case in June and the sentencing earlier this month to house arrest for a person charged in Federal Court with trafficking in a large number of firearms from Texas to New York. Unfortunately, the firm suffered one loss back in June when a Tilem & Campbell client was convicted by a jury of gun possession.

Yesterday's case received significant media attention with articles being published around the web about the use of the Federal Defense to defeat one of New York State's stringent gun laws. Articles appeared on Forbes.com , Reuters and the Earth Times to name just a few of many articles.

To speak to an attorney about the Federal Travelers Defense or any Weapon or gun related issue contact an attorney at Tilem & Campbell or visit handgunattorney.com

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New York Criminal Attorney’s Tilem & Campbell scored a major victory in Brooklyn Supreme Court yesterday when prosecutors agreed to dismiss all charges in a Kings County felony gun possession case. Peter Tilem, Senior Partner at Tilem & Campbell and former prosecutor in the Firearms Trafficking Unit at the Manhattan District Attorney’s Office handled the case for the client.

The case started back in August 2006 with a felony gun possession arrest in Brooklyn’s 75th Precinct. Police from the 75th Precinct’s elite Anti-Crime Unit claim to have stopped the vehicle the suspect was driving for not wearing a seatbelt directly in front of his apartment building. They further claim that his license was suspended and that he didn’t have identification on him. The police claim the suspect’s wife offered to go up to her apartment to get his identification and that when she didn’t come back down they went upstairs to find out what happened.

Police further claim that when they arrive on the suspect’s floor they smelled the odor of Marijuana (spelled marihuana in the New York State Penal Law) and that when the suspect’s wife opened the door they observed marihuana in plain view. The suspect’s wife then consented to a search of the entire apartment. Police claim to have found a pistol in the apartment.

Mr. Tilem relentlessly fought the case by attacking the credibility of the police and the warrantless search of the apartment. In the end after suppression hearings were completed Mr. Tilem discovered that the police officers were interviewed by the New York City Civilian Complaint Review Board and that the interviews were tape recorded. Those tapes had not been turned over to Mr. Tilem who obtained copies and convinced the Court to allow him to reopen the hearing and cross-examine the police officer with his prior taped interviews.

When the case was finally ready to go to trial yesterday, the King’s County District Attorney’s Office moved to dismiss the case because they felt they could no longer prove the case. According to Mr. Tilem’s review of the case, there were just too many inconsistencies revealed during the cross-examination of the Police Officer at the suppression hearing.

The client, who originally was offered a plea bargain of 1-3 years in State Prison when he was represented by a Court appointed lawyer was ecstatic walking out of Court yesterday. Yesterday the Judge dismissed all charges including the charge of Driving with a Suspended License and sealed the record of arrest. The client was needless to say ecstatic walking out of Court and ending his nearly two year nightmare with the New York Criminal Justice system.

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New York City Administrative Code 10-133(b) (Unlawful Possession of Knives or Instruments), makes it illegal to possess a knife with a blade over four inches in any public place in New York City. Criminal Lawyers and Judges have struggled with this section for years because the reach of the statute is so broad and because of how easy it is to violate this statute.

Firstly, there is no specific “mens rea” or mental culpability required for this offense. Most criminal statutes require a person to act intentionally, knowingly or recklessly. This statute does not even require that the person knowingly possess the knife. Most weapons offenses require that the possession be knowing possession. In addition, as all of us know, knives have many legitimate uses and even the average kitchen knife has a blade length over four inches. To demonstrate the reach of this statute, over twenty years ago a Queens Criminal Court Judge ruled that the statute could be applied to a Sikh priest who had the knife as part of a genuine religious observance.

Last month another Queens Criminal Court Judge ruled that possessing a knife over four inches in a car is not a violation of this New York City Administrative Code section since a person’s car, even though on a public street, is not a “public place.” In the recent Queens case, the knife was seen in the center console of a vehicle that was stopped by the police for a routine traffic infraction. The Court ruled that the center console of a person’s vehicle is not a public place and dismissed the New York City Administrative Code violation.

Unlawful Possession of a Knife is a violation, not a crime under the New York City Administrative Code. Although only a violation, a person accused of violating this section faces up to 15 days in jail and a fine of up to $300.
If you, a family member or friend receive a summons or are arrested for violating the New York City Administrative Code, take the matter seriously and contact an experienced New York Criminal Attorney.

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