ATTORNEY ADVERTISING

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As very experienced New York DWI Attorneys we are often asked to assist other attorneys on complex DWI cases.  Recently, that request paid off for the attorney and his client after all charges related to a Rockland County DWI were dismissed.   In November Tilem & Associates was hired to take the lead in a suppression hearing for a client who was facing DWI charges and who was not being offered any plea bargain.  We had sought the suppression of statements and breath that we asserted were taken illegally from our client after he was illegally taken out of his car.

At the suppression hearing, one police officer testified.  The officer claimed that in response to a 911 call the officer responded to a location and saw our client in a vehicle that matched the description given to the 911 operator.  On cross-examination, by me, the officer admitted that at the time the officer approached the vehicle and removed the driver from the vehicle that there was no reason to believe that the motorist had committed any offense other than a parking violation for parking on the line in a parking lot.  The officer claimed that the motorist was asleep in the vehicle and tried to justify further action as a “welfare check” to ensure that the motorist was ok.  However after responding that he was ok, I attacked the officers continued investigation, including: removing the motorist from the vehicle, bringing the motorist to the back of the vehicle, questioned the motorist, conducted standardized field sobriety tests and detained the motorists while other witnesses were questioned.  The Judge ruled that all of those actions exceeded the authority that the officer had at the the time of incident.

As we have discussed extensively in the past, in a case called People v. Debour, New York’s highest Court recognized four different levels of intrusion that police officers may have based on the police officers level of suspicion.  The lowest level, level one, the right to inquire, gives the police officer very limited authority to make inquiries about a person.  Such inquiries may not be pointed or accusatory in nature.  In the case in Rockland County, the Judge correctly ruled that the police officers authority capped at Debour level one there by only giving the officer the very limited right to inquire. Therefore, all of the statements and other evidence derived after that illegal conduct were suppressed, leaving no evidence and therefore no provable case.

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New York Traffic Court Attorneys, Tilem & Associates has been able to verify rumors that have made the rounds of social media that for the first time New York State Troopers have been patrolling New York City Highways including the Belt Parkway in Brooklyn, The FDR Drive in Manhattan and the New England Thruway in the Bronx.  The Troopers have been seen pulling over cars and handing out summonses for unknown traffic violations most likely speeding and failing to signal lane changes.

In reality the New York State Police do have a small Troop in New York City that is headquartered at Wards Island by the TriBoro (Robert F Kennedy) Bridge.  Although the State Police have chosen not to engage in many law enforcement functions inside of New York City, New York State troopers are Police Officers as defined in the Criminal Procedure Law (CPL 1.20 (34a)) and have the power to issue simplified traffic informations also known as summonses or traffic tickets.  In addition, subdivision 34-a of Criminal Procedure Law 1.20 defines the “geographical area of employment” of a police officer employed by a state agency as “New York State”.  Meaning that State Police Officers maintain their jurisdiction throughout all of New York State including the five boroughs of New York City.

As New York Traffic Ticket attorneys we are concerned about how to best fight the tickets issued by New York State troopers inside of New York City. Firstly, a motorist must understand that most traffic tickets issued within New York City are returnable in the Traffic Violations Bureaus (TVB’s) in each borough.  These tickets take a different path than tickets issued outside of New York City. Tickets adjudicated inside of New York City are handled through an administrative process which precludes the request for supporting depositions, motions for speedy trial and has a lower burden of proof than exists for tickets issued outside New York City.  As a result there is no plea bargaining within New York City.  The calendars are very congested inside of New York City TVB’s and police officers generally go to the TVB to handle multiple tickets at a time.

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As New York firearms lawyers we think it is important to keep the public updated on possible significant changes to New York gun laws. The idea of national concealed carry reciprocity is not a new idea but it is an idea that may be close to becoming law. The theory is very simple. If a driver’s license, which has been held by the Courts to be a privilege not a right, is valid in all 50 States than why isn’t a license to carry a gun, which has been held by the Courts to be right not a privilege, also valid in all 50 States. While different versions of the bill have been introduced in varying forms in Congress since at least 2008, President-Elect Trump has expressed an interest in signing such legislation.

Currently HR 923 entitled Constitutional Concealed Carry Reciprocity Act of 2015 has 121 cosponsors. The Companion bill in the Senate of the same name has 35 cosponsors.

The issue is how will New York law, which is notoriously hostile to gun owners, interact with a National Concealed Carry law. According to the Congressional Research Service HR 923 can be summarized as follows: “[HR 923 a]mends the federal criminal code to authorize a person who is not prohibited from possessing, transporting, shipping, or receiving a firearm under federal law, who is entitled and not prohibited from carrying a concealed firearm in his or her state of residence or who is carrying a valid state license or permit to carry a concealed weapon, and who is carrying a government-issued photographic identification document, to carry a concealed handgun (which has been shipped or transported in interstate or foreign commerce, other than a machine gun or destructive device) in any state in accordance with the restrictions of that state. [And,]

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In yet another victory in a New York firearms case, a Tilem & Associates client arrested in New York’s LaGuardia airport in September with an alleged “high capacity” magazine had all felony charges dismissed and only pled guilty to a non-criminal disorderly conduct, a violation but not a crime under the New York State Penal Law and paid a $250 fine. The record will be sealed.

New York State bans the possession of what it calls a “Large Capacity Ammunition Feeding Device.” NY Penal 265.00 (23). A Large Capacity Magazine Feeding Device is defined as “a magazine, belt, drum, feed strip, or similar device, that (a) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition, or (b) contains more than seven rounds of ammunition, or (c) is obtained after the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision and has a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition . . .” Boiled down, and there are some exceptions, New York defines both a capacity limit and a load limit. Under New York Law, as written, one could either not possess a magazine with a CAPACITY of more than 10 rounds but if one had an old magazine with a ten round capacity one could only LOAD up to seven rounds into that magazine. An empty magazine with a capacity of more than 10 rounds is a class “D” violent felony under New York Law punishable by up to seven years in prison.

In the Federal case of NEW YORK STATE RIFLE AND PISTOL ASSOCIATION INC LLC v. Gerald J. Gill, the United States Court of Appeals struck down the seven round load limit finding it violated the Second Amendment but left the 10 round magazine capacity limit in place.

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For those driving their kids to school at Binghamton or Syracuse Universities or taking summer vacations in upstate New York, Tilem & Associates is pleased to offer a limited time offer to help  out with those inevitable but costly traffic tickets.  With the cost of traffic violations  through the roof and the summer driving season  in full swing drivers need experienced legal representation that they can afford.  For a limited time and in limited locations we are offering legal representation on traffic infractions for only $285 in Broome, Delaware, Lewis, Onondaga, Oswego and Seneca Counties.  Those Counties contain the below Cities,  Towns and Villages that will be handling a lot of traffic tickets that are issued over the summer.

CONTACT US NOW TO TAKE ADVANTAGE OF THIS SPECIAL BEFORE TIME RUNS OUT!

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Broome County: Barker, Binghamton, Chenango, Colesville, Conklin, Dickinson, Fenton, Kirkwood, Lisle, Maine, Nanticoke, Sanford, Triangle, Union,

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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 ofNew 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

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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.

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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.

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Introduction

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.

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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.