New York Criminal Attorney Blog — Published by White Plains, New York Criminal Defense Lawyers

NEW YORK MOSSBERG SHOCKWAVE CHARGES DISMISSED

January 13, 2021 | Peter Howard Tilem

As we wrote in our blog on September 11, 2017, we were of the legal opinion that the Mossberg Shockwave was legal to own and possess in New York. Our opinion in 2017 was based upon the statutory definitions of a firearm, a pistol and a shotgun in New York as well as the opinions of the New Jersey State Police, the Suffolk County Police, and the BATFE. However, up until last week no Court case had ever confirmed the opinion that Mossberg Shockwave is legal to own and possess in New York. The reason that no Court case confirmed that opinion is because it appears that no one had been arrested for possession of a Mossberg Shockwave. However, last week, as has been widely reported, a New York State Supreme Court Justice dismissed four counts in an indictment pertaining to the possession of two Mossberg Shockwaves in a person’s home that were discovered by the police who were executing a search warrant for computer equipment that was allegedly involved in an unrelated Harassment investigation.

Our client was originally indicted for possession of the two Shockwaves in New York City back in December 2018. When our law firm was retained in May 2020, we immediately pointed out that although our client was indicted for criminal possession of two firearms the Shockwaves were not in fact firearms and that the ballistics report from the NYPD ballistics section that was used in the grand jury to prove that the client possessed operable firearms very specifically did not list the Shockwaves as firearms. Rather, the NYPD’s own ballistic expert described the Shockwaves as an “other weapon”, which is not prohibited by New York Law. Despite the fact that the ballistics report described the Shockwaves as other weapons, the District Attorney’s Office submitted the ballistics report to the grand jury and used it to seek an indictment for possession of operable firearms. Even after the District Attorney’s Office was caught in this blatant inconsistency and after we asked them to speak to their own expert who tested the Shockwaves, the District Attorney’s Office continued to demand that we file a written motion to dismiss, which was filed back in June.

In August, The prosecutor finally filed a written answer in which they consented to the dismissal of the Shockwave charges after reading our motion. The client, had faced a mandatory minimum of three and one half years and had that possibility hanging over his head for more than 2 years until the charges were officially dismissed by the Supreme Court Justice, last week.

Court Addresses Defendant’s Waiver of His Right to Appeal in New York Drug and Gun Possession Case

January 7, 2021 | Tilem & Associates

New York drug and gun offenses and convictions can have long-term repercussions, including lengthy prison sentences. Defendants must understand their rights after being arrested, charged, or convicted of a criminal offense. Additionally, it is vital that defendants understand the typical steps of a New York criminal case. Including, arraignment, pre-trial discovery and pre-trial motions, trial, and sentencing. An attorney is a critical resource during this complex process because decisions made during these steps may drastically change the outcome of a criminal case.

An appellate court recently issued a decision in the defendant’s appeal of his criminal conviction of possession of a weapon in the third degree. The case addressed several issues, including the validity of a court’s denial of the defendant’s motion to controvert a search warrant and suppress evidence. In this case, police officers pulled the defendant over for a defective headlight. The officer asked the defendant for his license and registration, and when the defendant rolled down his window, the officer detected the smell of marijuana. The defendant explained that he smoked marijuana earlier in the day. The officer shined his flashlight and noticed an expandable baton. The officer’s computer search revealed that the defendant had an arrest warrant; thus, the officer placed the defendant under arrest.

At the precinct, the officer told the defendant that a K-9 unit was searching the vehicle, at which point the defendant responded that “you can do that all you want, whatever’s in the car, the cars not registered to me, my prints aren’t on it.” The police then obtained and executed a search warrant on the car, where they discovered drugs and a weapon. At a suppression hearing, the court denied the defendant’s motion to suppress evidence and statements to the officers. The defendant then challenged the search warrant; however, the court denied the defendant’s motion. The defendant pleaded guilty; however, on appeal, the defendant challenged his appeal waiver’s validity.

Court Rules in Favor of Defendant in New York Gun Case Based on Illegal Police Stop

January 1, 2021 | Peter Howard Tilem

A state appellate court recently issued a decision in a New York gun case, involving a defendant’s appeal of a jury verdict, finding him guilty of criminal possession of a weapon. The defendant appealed the jury verdict arguing that the New York Supreme Court erred in refusing to suppress evidence of a gun that the police seized during the stop. The defendant argued that the court should have suppressed the evidence because the police did not have reasonable suspicion to stop the car in which the defendant was a passenger.

According to testimony from the suppression hearing, an officer aiding another officer with a traffic stop heard several gunshots coming from north or northeast of the stop. The officer proceeded north, passing two intersections, but did not see any vehicles or pedestrians. When he passed through another intersection, he saw a vehicle with taillights moving slowly. The officer followed and stopped the car, stating that he was stopping the car to investigate whether anyone in the car committed a crime. The officer testified that there was less than a minute from when he heard the gunshot to when he saw the vehicle and less than two minutes from the gunshots to the stop.

Under the law, stops qualify as “seizures implicating the constitution” and require that the police officer has “reasonable suspicion” that the driver or any occupants in the vehicle committed a crime, are in the process of committing a crime, or about to commit a crime. Case law holds that vehicle stops are level three intrusions, which are forcible seizures. Level two intrusions are those that only require a “founded suspicion that criminal activity is afoot.” Courts must consider the “totality of the circumstances” to determine whether police conduct was illegal.

New York Gun Owners Whiplashed by ATF Action on Pistol Braces

December 25, 2020 | Peter Howard Tilem

On December 18, 2020, gun owners were rocked by proposed guidance from the ATF on the evaluation of the legality of pistol braces. This guidance was of particular concern to New York gun owners who had pistol braces attached to AR style receivers and had thought that the guns they owned were neither rifles nor handguns and thus believed that these “others” fell outside the scope of the Safe Act. I was contacted by a client this week, who by way of example had a, AR style gun that had an 18 inch barrel and a 26 inch overall length. As far as the ATF is concerned the new guidance would have no effect on this gun since there was no concern about this being a short barreled rifle regulated by the National Firearms Act (NFA). However, if the ATF classified a pistol brace as a stock, then there would be a concern that under New York law, the gun would be considered a rifle that was subject to the restrictions of the Safe Act.

ATF December 18th Guidance

The problem that prompted this is that while initially one company received a letter from the ATF approving a specific pistol brace. The pistol brace market had gotten crowded with products many of which had not been approved by the ATF.

New York Court Rejects Defendant’s Claim He Was Seized When He Discarded a Firearm

December 19, 2020 | Peter Howard Tilem

Last month, a state appellate court issued an opinion in a New York gun possession case, requiring the court determine if the trial court properly granted the defendant’s motion to suppress a firearm he discarded as police were following him. Ultimately, the court held that the defendant was not seized when he tossed the gun. Thus, the lower court’s granting of the defendant’s motion was reversed.

The Defendant’s Arrest

According to the court’s opinion, an officer responded to a call for gunshots. As the officer arrived on the scene, he saw an unidentified person a few blocks away. The officer lost sight of the potential witness, but gave a description of the person over police radio. Another officer then encountered the defendant nearby. Initially, the officer did not consider the defendant a suspect. However, as the defendant went through a pedestrian cut-through, the officer followed in her vehicle. As the defendant reached the end of the alley, he tossed a gun and ran.

The defendant filed a motion to suppress the weapon, as well as statements he made to law enforcement after his arrest. The defendant argued that he was seized without reasonable suspicion or probable cause when the officer followed him down the narrow pedestrian cut-through. The trial court granted the defendant’s motion, and the prosecution appealed.

Court Finds in Favor of New York Defendant and Reverses Gun Conviction After Suppression Hearing

December 12, 2020 | Tilem & Associates

Recently, the New York Court of Appeals, New York State’s highest Court, issued an opinion, in a New York gun case, which reversed a lower court’s denial of a defendant’s motion to suppress evidence a gun. The case arose after a police officer stopped the vehicle the defendant was traveling in after his patrol car’s mobile data terminal (MDT) notified him of a “similarity hit.” In response to the similarity hit, the police officer stopped the vehicle and noticed a handgun on the floor in front of the seat the defendant was occupying. The police officer arrested the defendant, even though the car was not registered to him, and he did not have a warrant. At trial, the defendant moved to suppress the evidence that the police officer obtained from the stop.

The police officer testified that it was part of his “routine” conduct to enter license plates into his car’s MDT. In some cases, such as the one at hand, a similarity hit will occur, which notifies an officer that there is a similarity between a person with a warrant and a vehicle’s registered owner. The officer explained that the MDT generates these similarity hits based on the registered owner’s name, date of birth, and aliases. He further testified that he believes that the MDT generates hits based on parameters he was unaware of. In this case, the officer received a similarity hit, and without any other information, he pulled the car over. The officer admitted that after pulling the car over, he did not believe the driver was the subject of the warrant because the driver was female and the subject of the similarity hit, the registered owner, was a male. After discovering the gun and arresting the defendant, he realized that the individual with the warrant did not match anyone in the vehicle, or the car’s registered owner. The defendant’s motion to suppress the evidence obtained from the stop was based on the factual sufficiency of the basis of the stop.

Under New York law, if the state faces a sufficiency challenge, they must present evidence to establish that the stop was lawful. Generally, courts hold that vehicle stops are lawful if the officer has a reasonable suspicion that the vehicle’s driver or occupants have committed or are in the process of committing a crime. However, the state must point to specific facts, in conjunction with logical deductions, that point to the stop’s lawfulness. In most cases, reasonable suspicion inquiries are a question of law and fact. However, in cases such as this, the question is whether the state’s evidence meets the “minimum showing”, and is, therefore, a question of law.

New York Court Discusses the Elements of “Attempt” in Recent Attempted Murder Case

December 6, 2020 | Tilem & Associates

Last month, a state appellate court issued an opinion in a New York attempted murder case, requiring the court to discuss the elements of an “attempt.” The court ultimately found that the defendant’s actions did not constitute an attempt, and vacated his conviction.

The Facts of the Case

According to the court’s opinion, the defendant was incarcerated for alleged acts of domestic violence. While in jail, the defendant approached a fellow inmate who was going to be released soon. The defendant asked the inmate to kill his wife and mother-in-law. In exchange for this, the defendant promised to give him a home.

The inmate had no intention of carrying out the defendant’s request, but played along. He told the defendant that he could do it, and gave the defendant a phone number to reach him after his release. The defendant provided detailed instructions on how he wanted the inmate to kill his wife and mother-in-law.

Court Finds Police Improperly Impounded Car After New York Arrest

November 30, 2020 | Peter Howard Tilem

In New York, law enforcement may impound a person’s car for several reasons, and not all of the reasons require the commission of a crime. However, the main reasons police officers may impound a car occur when the driver is driving under the influence of drugs or alcohol, if the car is abandoned or illegally parked, if the vehicle contains evidence of a crime, or if the car presents a safety hazard. In any event, many law enforcement officials improperly impound cars because they do not know or want to follow the state’s impounding rules. Moreover, the impound lot owners often relish in the hefty fees associated with impounded vehicles, and are reluctant to release the car. Car owners must understand the rules and procedures surrounding impounding to avoid illegal searches and retrieve their vehicle without significant penalties.

Although impounding poses significant financial burdens, the more pressing issue is what scope of authority law enforcement has after the car has been impounded. Usually, police will conduct an inventory search and catalog their findings after the car has been impounded. This typically occurs to document the contents of the vehicle and protect the police from hidden dangers or theft accusations. However, in some situations, police officers may improperly impound and search a vehicle. In these cases, any recovered evidence from an illegal search may be suppressed.

For example, recently, the Supreme Court of the State of New York, issued an opinion in a case involving evidence retrieved from a defendant’s impounded vehicle. In that case, the defendant was convicted of several serious criminal offenses. After conviction, the defendant argued that the court should vacate several of his convictions because the evidence used to convict him was illegally obtained. Under New York’s laws, the police may impound a car and conduct an inventory search after a driver’s arrest if they act according to “reasonable police regulations.” Additionally, the police may impound a vehicle without a warrant in the interests of public safety and “community caretaking.” In this case, the court found no evidence that the defendant’s vehicle was illegally parked or that the car was in a location where it may be ripe for theft or vandalism. Further, the State failed to present evidence of the New York Police Department’s procedure regarding impounding a car after an arrest, or that the police officer followed those alleged procedures.

New York Appellate Court Upholds Murder Conviction Over Defendant’s Challenge to Admission of His Statement

November 24, 2020 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York homicide case involving a defendant’s appeal of his conviction. The defendant appealed the lower court’s decision to admit his statement to police in the moments after the murder. However, the appellate court found that there was no error in admitting the statement. The court further explained that, if there was any error in admitting the statement, doing so was harmless.

The Facts of the Case

The defendant was alleged to have killed another man, whom he met out on the street around 2 a.m. According to the court’s opinion, the defendant was drinking beer with friends. Throughout the evening, the defendant expressed some violent thoughts, and discussed his gang membership.

What Should I Do If Police Come To My Door

November 18, 2020 | Peter Howard Tilem

With Corona Virus (Covid-19) restrictions increasing just a week before Thanksgiving and the Governor of New York dictating how many people may attend a Thanksgiving Dinner at your house it is worth reviewing what rights you have if police unexpectedly show up at your door. This situation could arise for a variety of reasons including a crime committed nearby having nothing to do with you and the police just wanting to canvass the area for witnesses and/or cameras or a noise complaint or some other complaint called in by your neighbors. Often police may accompany a Child Protective Services (CPS) worker responding to a child abuse or neglect report or the police may sometimes knock and ask questions about a missing child, or adult. In any case, it is important to understand your rights.

Firstly, Courts recognize the right of the police officers to approach your door and knock or ring the door bell. Secondly, it is important to recognize that police officers are people, just like anyone else. There job is difficult and important and they should be treated with courtesy and respect at all times. It is also essential that you not give a police officer or anyone else that comes to your door any reason to fear for their safety by making any sudden movements or answering the door with a visible weapon.

There is absolutely no requirement that you answer the door if the police knock. Just as if a police officer were to approach you on the street you have no obligation to speak to the officer and no obligation to answer the door. The police officer may not enter your home except with your consent, with a search warrant, arrest warrant or in some very narrow exceptions to the warrant requirement. Rarely, will police officers have a warrant and then casually knock on the door. If they have a warrant they will either break down the door without knocking or announce that they are the police and that they have a warrant and that they will breakdown the door if you don’t open the door immediately.