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A RECENT COURT DECISION COULD HAVE A MAJOR IMPACT ON GUN AND WEAPON CHARGES IN NEW YORK CITY

A recent Appellate Court decision overturning a Nassau County gun law could have far reaching implications for New York City gun charges and New York City weapons offenses. As previously discussed in a prior blog, New York City bans many items which are legal in other parts of New York state. In Chwick v. Mulvey, gun owners successfully challenged a Nassau County local law that prohibited possession of firearms that were “deceptively” colored such as pink, gold or brown.

In finding that the Nassau County Law was preempted by New York State law which already has a comprehensive statutory and licensing scheme, the Appellate Division of the Supreme Court, Second Department ruled that Nassau County could not regulate in this area in direct contradiction to new York State law which says that licenses for firearms shall be valid throughout the State (except New York City). The ruling of this Court has binding in effect in the New York City Counties of Kings and Queens.

What is left unanswered by the Court is whether New York City has the right to ban “weapons” such as handcuffs, imitation pistols, and rifles and shotguns (for which New York City has its own licensing scheme) in the face of comprehensive state legislation that for example lists all of the illegal weapons in New York State. Penal Law sec. 265.01 (1) lists more than fifteen specific weapons such as gravity knives, kung fu stars and switchblades and then in subsection 2 lists additional weapons which are illegal if one has intent to use them unlawfully against another.

In addition, New York City regulates mace despite comprehensive legislation in Penal Law Article 270 and regulates Rifles and Shotguns despite the fact that the New York State Penal law specifically does not include them in the definition of firearms (for which a license is required). In addition, Rifles and Shotguns are regulated in the Penal Law which, for examples, prohibits their possession: on school, college or university grounds (PL 265.01 (3)); prohibits their possession by convicted felons or others convicted of a serious offense (PL 265.01(4)); by a person certified not suitable to possess a rifle or shotgun (PL 265.01(6)).

Anyone charged with any weapons related offense specific to New York City or any other locality in New York State should contact this office to see whether or not a preemption argument should be made to have the charges dismissed. Tilem & Campbell is a criminal defense law firm that handles a considerable number of weapons and firearms related cases.