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Articles Posted in GUN CRIMES

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Earlier this month, a state court issued a written opinion in a New York gun case discussing whether a police officer’s actions in approaching, questioning, and searching the defendant were justified under the circumstances. Ultimately, the court concluded that the officer’s actions were unsupported by the requisite level of suspicion, and granted the defendant’s motion to suppress. In so doing, the court discussed the four types of police/citizen interactions.

The Facts of the Case

According to the court’s opinion, the defendant was walking down the street at around 2 a.m. The police approached from behind in an unmarked car. The police were not responding to an emergency call and had not received any information that a crime had been committed. As police approached the defendant from behind, they noticed he had a bulge in his pocket. However, they could not see the shape of the bulge and did not know what it was.

Police pulled up next to the defendant, stating “police, can you stop for a second?” The defendant put his cell phone up to his ear and began to walk away at a hurried pace, although he was not running. At this point, a police officer exited the vehicle and approached the defendant, again telling the defendant to stop. As the officer got closer, he could see the defendant was holding a handgun in his right hand. The officer rushed the defendant, seized the gun, and the arrested the defendant.

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New York criminal law does not, generally speaking, attach criminal liability to actions that are not accompanied by the requisite level of “guilty knowledge,” or mens rea. Thus, most New York crimes are broken down into at least two elements, the “act” element, and the “knowledge” or “intent” element. Even when a New York criminal statute does not specify that a certain level of knowledge or intent is required, courts will read in such a requirement. Possessory offenses are an excellent example of how this principle is applied by the courts.

A possessory offense is one in which the “act” element of the crime is fulfilled merely by possessing a prohibited object. New York drug and gun crimes are common examples of possessory crimes. For example, under New York Consolidated Laws Article 265, “a person is guilty of criminal possession of a firearm when he or she … possesses any firearm.”

At first glance, the wording of the statute would seem to indicate that anyone who has a weapon in their possession, regardless of whether they know they possess it, is guilty of the offense. However, criminal law disfavors this type of strict liability. Thus, courts generally require that a defendant knowingly possess a firearm before imposing criminal liability. It is important to note that the term “knowingly” goes to the object itself, and not the prohibited nature of the object. For example, a defendant who knowingly possesses a weapon but does not know that it is illegal to possess the weapon will be found to have “possessed” the illegal weapon.

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Recently, a state appellate court issued an opinion in a New York criminal law case discussing whether a police officer’s search of the defendant’s backpack was lawful. The Court examined whether the defendant abandoned property as a result of lawful or unlawful police conduct.  Ultimately, the court concluded that the police officer was justified in his actions leading up to the point where the defendant discarded the bag. Thus, the court denied the defendant’s motion to suppress the gun.

The Facts of the Case

Police received an anonymous radio call that there was a man with a handgun riding the B9 bus towards Canarsie. Police waited at a bus stop, and when the defendant exited the bus, a police officer approached the defendant and asked him if he would mind talking to the officer for a moment.

At this point, the police officer claimed that the defendant became nervous and put his right hand into his pocket. When the police officer asked the defendant to remove his hand, the defendant refused. The police officer then drew his weapon and forcibly tried to remove the defendant’s hand from his pocket. The defendant fled and the police officer pursued him. Shortly thereafter, the defendant discarded the bag, the police officer searched the bag, and the police officer recovered the firearm.

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A state court recently issued an opinion in a New York gun possession case requiring the court to determine if a gun found in the defendant’s motor home was the product of an illegal search. Ultimately, the court concluded that the defendant’s motorhome was afforded the same protection as any other residence, and that the warrantless search was not justified.

The Facts of the Case

Police received a call that someone was stealing electricity by connecting their motorhome up to a telephone wire. Police responded to the scene to see the defendant’s motorhome connected to a nearby telephone pole by a wire coming out of the top of the motorhome.

According to police, an officer knocked on the door of the motorhome. When the defendant answered, police asked him about the wire, and the defendant admitted it was not legal. Police then put the defendant in handcuffs and walked him toward the police car. On the way to the car, police claimed that the defendant said “there is a gun in there.” Another officer then went into the motorhome, located the gun, and confiscated it.

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New York Firearms Law and Second Amendment Firm, Tilem & Associates has filed three legal actions, two in New York State Supreme Court and one in Federal Court in Manhattan alleging that the New York City Police Department Licensing Division uses factors in licensing decisions that disproportionately deny African-Americans gun licenses.  In one outrageous case, the NYPD admitted to using false arrests, two arrests for which the NYPD was sued and ultimately settled, as part of the  basis for revoking pistol licenses from an African-American.

The NYPD Licensing division is the division within the NYPD that is responsible for issuing and renewing pistol licenses in the City of New York, and has the authority to limit, suspend or revoke a handgun license subject to review by the New York State Supreme Court.

In February 2017, during a hearing at the NYPD License Division offices before an NYPD hearing officer, a Detective assigned to the investigation section of the License Division testified under oath about using dismissed arrests as a basis to recommend revocation of an African-American license holder’s license.  In fact, and to the apparent surprise of the hearing officer, the Detective testified that anything reported to the NYPD License Division was considered an “incident” and that the Police Department did not necessarily consider the quality of the incidents but rather the sheer number and that included dismissed arrests.  The Detective also admitted to considering dismissed arrests for which New York City settled 2 false arrests claims in his decision to revoke.

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Ensuring that you have the right attorney handling your claim and representing your interests is critically important. At Tilem & Associates, our seasoned team of New York gun crime lawyers has handled countless matters involving criminal investigations and prosecutions. This means we not only feel confident in the courtroom but also understand the many different procedural and substantive aspects of your matter. As a recent New York appellate opinion demonstrates, it is essential to ensure that you have addressed all potential procedural issues as soon as possible.

The background of the case is as follows. The defendant brandished a firearm in front of a friend that was secured in his waistband and threatened to use it on another individual. He then went to a park, where he was seen near a specific individual. The police arrived, and the defendant and the individual fled in separate directions. Multiple witnesses testified to seeing defendant throw the gun, which was later located by the police. The police also found drugs, which the other individual admitted to owning. The defendant was charged with criminal possession of a weapon and resisting arrest. The other individual was charged with drug possession.

A public defender was assigned to the defendant’s claim. Roughly eight months later, the prosecution provided evidence showing that another public defender represented the other individual on his criminal charges stemming from this same set of facts. The attorney for the defendant stated that he intended to use the other individual as a potential witness for the defense before he learned about the potential conflict of interest. The defendant indicated that he wanted the public defender to continue representing him even though the attorney indicated that it may not be ethical for him to do so because another attorney in his office represented the other individual.

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 In many situations, it is best to  seek guidance from an experienced New York criminal lawyer as early in the process as possible.  The authorities do not always have your best interests in mind, whereas a criminal defense lawyer can advise you of your rights at each step of the process. As we have discussed in prior blogs about cases such as DWI or crimes involving possession of guns marijuana or drugs seeking suppression of the evidence, may be a defendant’s best defense.    A well-established constitutional rule states that evidence obtained from unlawful searches and seizures cannot be used against the accused. As a recent criminal case demonstrates, whether you can successfully assert this defense can have a huge impact on your involvement in a criminal investigation. Continue reading

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One of the most nerve-wracking and stressful phases of any trial is the sentencing phase. During this portion of the trial, a sentencing judge will consider a wide variety of factors in determining whether the defendant must face incarceration or other penalties. There are many rules that apply to sentencing that are designed to protect defendants from unfair sentences, or from facing penalties that exceed the scope of the alleged misconduct. As experienced New York City gun crime lawyers, the legal professionals at Tilem & Associates have the skills and knowledge it takes to navigate a sentencing hearing successfully and appropriately.

A recent appellate opinion highlights how important it is to understand the scope of your rights and available objections during a sentencing hearing. During the summer of 2011, a police officer was accused of raping, sodomizing, and sexually assaulting a schoolteacher in a courtyard area while off duty. The defendant used his police-issued firearm to threaten the victim, and evidence indicated that the weapon was loaded at the time the assault occurred. The defendant was charged with three counts of predatory sexual assault and three counts of a criminal sexual act in the first degree, and he was convicted of all of the charges. During sentencing, the defendant received a 25-year prison term with an additional 20 years of supervision after release for each of the counts of criminal sexual conduct and for each related count of predatory sexual assault. The sentence was to run consecutively, for a total of 75 years to life, with the sentence imposed for each criminal act running concurrently to the related conviction for predatory sexual assault.

The defendant appealed the consecutive sentencing, and the reviewing court upheld it, finding that the sentencing judge had a proper legal basis for imposing the consecutive sentences. It reasoned that while the convictions for predatory sexual assault involved similar criminal acts rendering concurrent sentences appropriate, the convictions for criminal sexual acts involved three distinct events, thereby justifying the consecutive sentencing.

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One of the most critical aspects of a criminal trial is providing instructions to the jury before they begin their deliberations. Before the jury is instructed, the prosecution and defense can consult with the judge about the instructions that they believe should be provided. Whether the jury is instructed about a particular defense or presumption can have serious implications for your trial. As seasoned New York City criminal defense lawyers, we routinely assist defendants with ensuring that the jury receives the appropriate and lawful set of instructions.

A recent case demonstrates the importance of jury instructions. The facts of the case as follows. The defendant was charged with second-degree murder and other charges including assault and possession of a weapon involving the fatal shooting of one victim and the shooting of a second victim. The surviving victim was the primary witness during the defendant’s trial. Evidence at trial indicated that the parties knew one another and that the two victims were friends of the defendant’s mother’s tenant. The defendant, along with his mother, had grown frustrated about the men lingering around the apartment and had repeatedly contacted police authorities to have them removed. On the night the shooting occurred, the police refused to arrest the two victims, stating that they were not engaging in criminal activity out front of the apartment. The defendant made a statement to the police indicating that he may engage in violence toward the victims using a gun.

The next day, the defendant left his home with a gun concealed in his jacket. The defendant confronted the two men, who were standing outside of a nearby bodega. The men eventually engaged in an argument and one of the victims picked up a mop from inside the bodega. The evidence presented at trial suggested that the victim with the mop raised it toward the defendant, at which point the defendant revealed his firearm and shot at both victims, wounding one and killing the other. According to the record and the victim’s testimony, however, it was somewhat unclear whether the mop was raised at the same moment the defendant brandished the gun, or whether the mop was raised prior to the gunshot.

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Many individuals contact us after they are already involved in a criminal proceeding. Some of the most common issues that we deal with regarding ongoing criminal cases involve revoking an earlier guilty plea, which may have been provided before the defendant retained a reliable new york criminal defense lawyer. A recent case illustrates how difficult it can be to get rid of an earlier plea agreement.

The defendant faced charges of hindering with the prosecution in the first degree and possession of a weapon in the third degree for providing and concealing a weapon that a codefendant used during a shooting that resulted in a fatality. The night before the defendant’s trial was set to take place, the defendant entered a guilty plea regarding the lesser included offense of hindering the prosecution in the second degree. The defendant later testified that he assisted the co-defendant and believed that the co-defendant engaged in activities that resulted in a second-degree murder. The defendant also waived his right to appeal as part of the plea agreement.

The trial for the co-defendant proceeded and the prosecution offered evidence from the sole witness, which was the victim’s brother. The brother testified that he was at the victim’s apartment along with a number of other individuals when a dispute erupted and the co-defendant shot the victim. Other evidence presented at trial suggested that the brother may not have seen the shooter and was unclear about the events that occurred after the fight broke out. The prosecution later admitted to finding handwritten notes from an earlier interview with the brother suggesting that the brother did not see the co-defendant shoot the victim. The defendant was allowed to cross-examine the brother regarding these notes and attempted to impeach his credibility.

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