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Articles Posted in GUN CRIMES

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Earlier this month, a state appellate court issued an opinion in a New York gun case holding that police were not justified in searching the defendant’s backpack without a warrant. The case presents an informative and important discussion of the exigent-circumstances doctrine, which allows police to bypass the warrant requirement in certain limited situations.

According to the court’s opinion, police officers went to the defendant’s home based on a tip that a man was selling drugs out of the home. The tip also mentioned that the man selling drugs kept a gun in a distinctive backpack. Upon arriving at the scene, officers saw the defendant smoking a joint on the front porch. The defendant allegedly stood up, cursed, grabbed a distinctive looking backpack, and ran inside.

Officers followed the defendant into the home, and observed the defendant toss the backpack on the floor in the home. Police handcuffed the defendant on the second floor. After police secured the defendant, they opened the backpack. Inside the backpack was a gun and some marijuana. The defendant was charged with criminal possession of a weapon and possession of marijuana.

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As New York gun rights attorneys we are starting to see cases involving New York Extreme Risk Protections Orders 490x280-redflag-landing(ERPOS) sometimes referred to as Red Flag Laws.  New York’s Civil Practice Law and Rules was amended to add a new Article 63-A which gives a Supreme Court Justice, sitting in the County where a person resides, the authority to take away firearms, rifles and shotguns from an individual without that person having been convicted of, arrested for charged with or even having committed any crime.  As a result, these laws, which seem to be sweeping the Country, and are now law in approximately 17 states are extremely controversial since a person can lose their constitutional right without committing a crime.

New York’s Extreme Risk Protection law gives the authority to file Petitions to remove guns to three different classes of people.  A police Officer, a family or household member and a school administrator are all eligible to file Petitions seeking an Extreme Risk Protection Order.

The procedure that is laid out by New York Law, CPLR sec 6341 permits one of the lawful Petitioners to file a Petition. Once a Petition is filed, if the Court finds that there is “Probable Cause” to believe the person is a danger to others or themselves, the Court can grant a temporary extreme risk protection order, ex-parte.  Meaning that the Court can grant the order without the accused knowing about it or without the accused being able to defend themselves.  Probable Cause is a very low standard just meaning that something is more like than not as opposed to proof beyond a reasonable doubt or proof by clear and convincing evidence.

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Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the concept of forced abandonment. Generally, when a defendant discards an item – such as narcotics or a gun – they lose any ability to argue for the item’s suppression. However, when a defendant’s choice to discard an object is the product of forced abandonment, the object must be suppressed. Forced abandonment occurs when the defendant’s discarding of an item was “spontaneous and precipitated by the unlawful pursuit by the police.”

According to the court’s opinion, police received a report of gunshots near an apartment complex. The report indicated that the suspect was a black male in a group of about eight other men. As officers arrived, they saw two black men, one of whom was the defendant. The officers could not initially see anything in either man’s hand. When the men noticed the officers, the men turned around and ran.

The officers followed the men, giving a description over police radio. The officers lost sight of the men for a few moments, but then regained sight of the second male. As officers were arresting this man, one of the officers involved in the chase looked at a nearby apartment building and saw the defendant with a gun in his hand. The defendant threw the gun and ran. Police caught up to the defendant, arrested him, and charged him with possession of a firearm.

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The National Firearm Act of 1934 (commonly known as the “NFA”) was the first federal gun control act and for the first time created a national registry of purchasers of “Machine guns”, “sawed-off shotguns” and “silencers”.  In addition, a $200 tax is imposed on each transfer of any NFA item and waiting periods can be long.

However, with the recent introduction of innovative new guns and technology that seem to have effectively circumvented the NFA, is the NFA still a useful law?

More than two years ago, we wrote about a new and innovative “shotgun” that has since taken the forearms world by storm.  Originally introduced as the Mossberg Shockwave and then the Remington Tac-14, these shotguns came with a standard 14 inch barrel and an overall length of just over 26 inches.  The Bureau of Alcohol Tobacco and Firearms (BATF) had examined samples of these firearms and determined that these were legal under the NFA for reasons discussed at greater length in our article about these firearms.

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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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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.

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Often in a New York murder case the court may need to determine if the police officers’ recovery of the alleged murder weapon violated the defendant’s constitutional rights.  Earlier this month, a state appellate court issued an opinion in a New York murder case requiring the court to determine that issue. Ultimately, the court concluded that the officers did not have the level of suspicion necessary to stop the car in which the defendant was a passenger. Thus, the court determined that the stop violated the defendant’s rights and suppressed the gun recovered as a result of that stop.

According to the court’s opinion, on October 2, 2011, someone entered a residence, shooting and killing one of the occupants. Two days later, an anonymous person called into 911, reporting that there were several males “suspiciously” going in and out of a U-Haul trailer. The males were described as black and Hispanic. The caller stated that three of the males were wearing a black sweatshirt, a brown hoodie, and a red hoodie.

Police officers arrived at the scene, but did not find a U-Haul truck on location. However, while the officers were still in the area, they saw a U-Haul truck drive by. A black male in a brown hoodie was driving the truck. Police stopped and searched the truck, recovering a gun that was later tied to the murder. The defendant, who was a passenger in the truck, gave a statement indicating that he shot the victim after the victim reached for his gun. The defendant filed a motion to suppress the gun, which was denied by the trial court. The defendant was ultimately found guilty of second-degree murder, and appealed.

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Recently, a state court issued an opinion in a New York gun case discussing the importance that police follow protocol when conducting identification procedures after the commission of a crime. The case illustrates the concept that an improperly performed identification procedure can be unduly suggestive, making any identification that was made by the crime victim inadmissible.

After police receive a report of a crime and locate a suspect, there are a number of different ways in which detectives can administer an identification procedure. Below is a list of a few common identification procedures:

  • Line-Up: In a line-up, the suspect (also called the “prime”) is lined up among several fillers, and the witness, who is often behind two-way glass, is asked if they recognize the person who committed the offense.