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As gun rights lawyers we try to keep the public updated on significant changes to New York gun laws.  Several new laws are going into effect in New York and gun owners need to be aware.

First, a new gun storage law was passed which makes it a misdemeanor for a gun owner that lives with children under 16 to leave the gun unlocked.  The measure amends penal law section 265.45 and leaving a gun unlocked when children live in the home is a class “A” misdemeanor punishable by up to 1 year in jail.  In addition, a new penal law section was added 265.50 which makes it a violation, punishable by 15 days in jail to leave a gun unlocked even if there are no children in the home.

Both of these safe storage laws are likely to be challenged and struck down because the United States Supreme Court has made it clear that the Second Amendment protects the right of a person to have a gun for self-defense.   By requiring that guns in your home be locked, the government is specifically preventing you from having an accessible gun for self defense.

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Guns, ammunition and magazines that were suppressed by the Judge

New York, Second Amendment attorney and NRA  Firearms instructor Peter Tilem scored a major victory in Rockland County Court earlier today, when the Judge holding a suppression hearing ruled that there was no probable cause for the arrest of his client and ordered 13 guns, hundreds of rounds of ammunition, and high capacity magazines, called “high capacity ammunition feeding devices” suppressed, meaning that they could not be used as evidence at trial because of the fact that they were illegally seized.  The decision came after an intense suppression hearing in Rockland County Court where two senior police officers testified about the circumstances surrounding the arrest and interrogation of both individuals charged in a 12 count indictment.

Following reports of shots fired on July 8, 2018, in the area of the New York – New Jersey border in Rockland County, police from both New Jersey and New York police departments located three individuals firing weapons which were lawfully purchased and possessed in New Jersey.  The handguns were unlicensed in New York and the individuals were found less than a 1/4 mile over the border in New York.  In addition, some of the weapons which were lawful in New Jersey violated New York’s “Safe Act” and magazines that were legal in New Jersey violated New York’s ban on magazines capable of accepting more than 10 rounds of ammunition.

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Whether you are a resident of New York state, or are just visiting, you are expected to know and follow all state and federal laws. This is particularly important for criminal laws and gun laws.  But even the courts can sometimes have a hard time deciding which acts are unlawful and what a criminal statute requires. The Supreme Court recently heard oral argument in a case involving the immigration status of a criminal defendant and what the government is required to prove.

According to the court’s opinion, the defendant was present in the United States on an F-1 student visa. He was dismissed from the university he was attending in December 2014, and his student visa status was terminated in February 2015. After his status was terminated, he stayed in the United States. Later that year, he went to a shooting range, bought ammunition, and rented a firearm for an hour. He was staying at a hotel, and several days later, an employee told police that he had been acting strangely. The FBI spoke with him, and he admitted to firing a firearm at the shooting range. The police searched his hotel room and also found the rest of the ammunition he had bought. The defendant was charged with two counts under 18 U.S.C. § 922(g)(5)(A).

Under that statute, it is unlawful for a person “who, being an alien . . . is illegally or unlawfully in the United States … to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(5)(A). If found guilty, a person can be sentenced to a fine, and up to ten years imprisonment.

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The concept of jury nullification is an important concept for experienced criminal defense lawyers to understand.  As a by product of our system of justice, a jury has the power to acquit even those who have had the charges poven against them.  This is a fact, largely kept secret from the public and not sanctioned by the Courts. In People v. Goetz, the Court of Appeals stated:  “While there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called mercy-dispensing power,’ . . . is not a legally sanctioned function of the jury and should not be encouraged by the court.”

Jury nullification is when the jury ignores the law because it believes that its application in a specific case is unjust. Essentially, a jury who nullifies believes that the defendant was guilty of the crimes he was charged with, but that convicting him under the specific circumstances would not be in the interest of justice. Jury nullification is not an official part of the criminal law, and in some jurisdictions attorneys who advance a nullification theory to the jury can be sanctioned by the court for violating the profession’s ethical code. Indeed, a defense attorney cannot explicitly request the jury nullify, and if she chooses a nullification strategy, she must go about it subtly.

In June, a state appellate court issued an interesting opinion in a New York burglary case discussing whether an attorney’s strategy to argue for jury nullification constituted effective representation. The court concluded that, given the facts of the case, the chosen jury-nullification strategy was appropriate and a potentially effective defense to the crimes charged. Thus, the court upheld the defendant’s conviction.

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In May 2019, a state appellate court issued an opinion in a New York homicide case discussing whether the defendant was entitled to a justification, or self-defense, jury instruction. Ultimately, the court concluded that the evidence presented did not support a justification charge, and it rejected the defendant’s claim to the contrary.

A justification charge informs the jury that it can find the defendant was justified in committing what would otherwise be considered a crime. Justification is a defense to a crime under New York Law.  Specifically, the charge explains that “a person may use physical force [if] he/she reasonably believes it to be necessary to defend himself/herself [or someone else] from what he/she reasonably believes to be the use or imminent use of [unlawful] physical force by such individual.” A justification charge can be especially important in cases involving violent crimes.

According to the court’s opinion, the defendant shot and killed his daughter’s boyfriend after the two were involved in a heated argument. Three witnesses testified at trial. Two of the witnesses testified to only viewing a brief portion of the argument. However, the third witness, a postal employee in the process of delivering mail, caught most of the argument.

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In New York, Burglary is a serious felony.  The facts of the Burglary will determine whether there is a mandatory minimum state prison sentence associated with a conviction and how long that state prison sentence will be. In April of 2019, the United States Supreme Court heard oral arguments on an important case discussing the “intent” element of the crime of burglary. While the case arose in Michigan, the case raises an important issue that could come up in a New York burglary case.

Historically, burglary has been defined as an unlawful entry at night into a building owned by another, with the intent to commit a crime therein. Over the years, lawmakers have refined the definition of burglary. For example, nearly all states have eliminated the requirement that the alleged acts occur in the evening hours. Additionally, many states have added language into the burglary statute allowing the crime to be proven by showing that the defendant “unlawfully remained” on the property with the intent to commit a crime.

The exact nature in which the case arose is complex; however, the Court was asked to determine whether Michigan’s “home invasion” statute satisfied the elements of a “burglary” for the purposes of the Armed Career Criminals Act. Michigan defined a home invasion as “breaking and entering a dwelling and while entering or present in the dwelling, committing a misdemeanor.”

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New York has one of the most draconian and burdensome knife laws in the Country and as we have reported over almost a decade in this blog many innocent people have been caught up in New York’s knife law maze.  Last week, however, after several prior attempts at changing the law, Governor Cuomo finally signed a law that will change New York’s knife laws.1142076_knife_1

The Problem

As we wrote as early as 2010, the Manhattan District Attorney’s Office made a deal with several retailers in Manhattan, including Home Depot and other major retailers for them to pay a financial penalty and stop selling gravity knives in New York.  The problem was that these knives were being sold by companies who paid only a relatively small financial penalty while citizens, many african-american and latino youths were being arrested and given criminal records for buying these knives which were readily available.  In 2016, we wrote another blog about this problem after the Village Voice wrote an extensive article about it.  According to the Village Voice article, there had been as many as 60,000 arrests for gravity knives in the preceding 10 years which put gravity knives in the top 10 most prosecuted cases.  Village Voice analysis also seemed to indicate that a disproportionate number of African-Americans and Latinos were prosecuted for gravity knives.

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Under New York DWI law, merely by driving a car a motorist is presumed to have agreed to take a chemical test when requested by a police officer who suspects that the driver is under the influence of drugs or alcohol. This law, called an implied consent statute, is in effect in many states.

Recently, the United States Supreme Court heard the case Mitchell v. Wisconsin that raises a previously undecided issue regarding implied consent laws. Specifically, the case required the Court to determine whether “a statute that authorizes a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement?”

The case arose when the defendant was arrested on suspicion of driving while intoxicated. Evidently, on the way to the police station, the defendant became lethargic, and the arresting officers took the defendant to the hospital. One of the officers accompanying the defendant read him a form explaining the state’s implied consent law; however, the defendant was so incapacitated that he was unable to indicate to the officers that he understood the warnings. The defendant did not either specifically consent or refuse. However, at the hospital, police officers requested that hospital workers take the defendant’s blood. It was later determined that the defendant’s blood-alcohol content was .222, which was well over the legal limit of .08.

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In May 2019, in a New York robbery case, a state appellate court issued a written opinion discussing an important issue that may arise in any case in which there is more than one person named as a defendant. Specifically, the case required the court to determine if the defendant was deprived of a fair trial when the court allowed a codefendant to testify against the defendant after the codefendant negotiated a deal directly with the trial judge. Ultimately, the court found in favor of the defendant, ordering a new trial.

According to the court’s opinion, both the defendant and codefendant were arrested and charged with first-degree robbery. While some of the crime was captured on video, the faces of the robbers were not visible. Before trial, the codefendant entered an open guilty plea to each charge. The court informed the codefendant that the range of his sentence would be between nine and 15 years, and that the codefendant’s specific sentence would depend on the “level of cooperation in the prosecution” against the defendant. The court explained that “one of the primary touchstones” of its determination would be whether the codefendant’s testimony at trial was consistent with his statements to police in which he identified the defendant.

At trial, the codefendant testified that he was one of the people who committed the robbery and the defendant was also involved. The codefendant identified the defendant as the other person who committed the robbery on the surveillance footage. The prosecution questioned the codefendant, eliciting testimony that there was no deal between the prosecution and the codefendant. The court later informed the jury that the court had entered into an agreement with the codefendant. The jury convicted the defendant, and the defendant appealed.

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Recently, in a New York gun possession case, a state appellate court issued a written opinion discussing whether the police officers’ approach of the defendant, as well as their subsequent investigation, was supported by reasonable suspicion and probable cause. Ultimately, the court determined that the officers’ initial approach was justified under the “common-law right to inquire,” and that the officers’ observations of the defendant as they approached gave rise to probable cause. Thus, the court affirmed the denial of the defendant’s motion to suppress.

According to the court’s opinion, two police officers were on routine patrol. There had been numerous reports of shootings in the area. While on patrol, the officers received a tip that a black male with a bushy beard and dreadlocks had a gun and was inside a particular residence. The officers later observed the defendant, who matched the physical description given by the tipster, leaving the residence. As the officers approached the defendant, he placed his hand on his waist and fled. As the officers were chasing the defendant, they witnessed him discard a gun.

The defendant filed a motion to suppress the gun, arguing that the officers lacked reasonable suspicion to approach him. It was this illegal approach, the defendant argued, that led to him grabbing his waist and fleeing.