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Articles Posted in GUN CRIMES

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gunIn a recent appellate opinion, a New York court was asked to decide whether the prosecution had provided an adequate foundation during trial to authenticate a photograph that purportedly depicted the defendant brandishing a gun and money, which was obtained from a social media profile on the internet that allegedly belonged to the defendant. The background of the case is as follows. The defendant was convicted of two counts of robbery during a jury trial. A witness testified at trial regarding events surrounding the robbery. The witness stated that the incident occurred while he was making milk deliveries and that at one point he observed an individual holding a gun roughly one foot away from the victim’s chest. The victim and the individual brandishing the gun exchanged words, the victim threw a handful of cash from his pocket onto the ground, and the individual and his accomplice fled after collecting the money.

After the witness concluded this testimony, the prosecution informed the court that it intended to introduce a photograph located “on the internet” that purportedly showed the defendant holding a handgun. The prosecution indicated that the victim could identify the firearm in the internet photo because the same weapon was used during the robbery and that a detective could identify the defendant as the person who committed the robbery.

The defendant objected, stating that the prosecution failed to create an adequate foundation to authenticate the photograph as an accurate and fair depiction of the defendant holding the gun, or to show that the photograph had not been modified. The prosecution rebutted this assertion by stating that the foundation would be provided through proof that the picture was obtained from a public web page that included an internet profile name with the defendant’s surname and additional photographs depicting the defendant. The lower court ruled that the prosecution had provided an appropriate foundation and that the photograph could be admitted. The matter proceeded, and the defendant was ultimately found guilty on two counts of robbery.

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gun with bulletsIn a recent opinion from New York’s highest state court, the defendant was convicted of possessing a weapon in the second and third degrees as well as the unlawful possession of marijuana. Before the jury trial, the defendant filed a motion to suppress evidence of a firearm located in his vehicle. During the hearing on the motion, a detective testified about the circumstances surrounding the arrest of the defendant and the subsequent search that revealed the firearm. The detective stated that he and his partner received a warrant for the defendant’s arrest based on a number of parole violations. The detectives made several attempts to locate the defendant’s whereabouts, including an occasion on which they made contact with the defendant’s ex-girlfriend.

Later that day, the ex-girlfriend called the detectives to inform them that the defendant could be found in a specific location in his vehicle. The detectives arrived at the stated location, however, and the defendant was not there. Shortly thereafter, the ex-girlfriend called again in a panic, stating that the defendant had her son in his vehicle and that the defendant told her he had a firearm in the vehicle. The detectives returned to the previous location and confirmed the defendant’s parked and vacant vehicle, using the DMV records database and information that the ex-girlfriend provided. The detectives entered the defendant’s nearby apartment, where he was located with the ex-girlfriend’s son. After the defendant was arrested, the detectives searched the vehicle and located the firearm that the ex-girlfriend mentioned in a bag on the backseat of the vehicle.

The lower court denied the motion to suppress, stating that the parolee status and the tip from the ex-girlfriend regarding the gun provided sufficient support for the search. The appellate division affirmed, and the defendant again appealed to the New York Court of Appeals, the highest court in the state. The defendant argued that the search was unlawful pursuant to a prior case because the search was conducted purely as a result of the defendant’s status as a parolee and that such a search can only be performed by the defendant’s parole agent, rather than detectives.

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New York Firearms Attorney Peter Tilem has been named to the Critical Response Team of the United States Concealed Carry Association. The USCCA Critical Response Team is an exclusive community of qualified attorneys that are committed to defending the rights of responsible gun owners in New York State and throughout the Country. USCCA is an organization that promotes firearms education, training and insurance to law abiding gun owners. The insurance covers members who are involved in a self-defense shooting and provides benefits for both legal defense and coverage in the event of a civil suit. The USCCA provides a list of pre-screened attorneys to its members. Mr. Tilem, who has been on the list of pre-screened attorneys for a number of years was recently named to the critical response team to provide 24 hour assistance to members in the event of a self defense incident. critical-response-team-logo

Mr. Tilem joins the USCCA Critical Response Team with extensive experience handling assault cases where the defense of “justification” or “self-defense” has been used. As a former senior prosecutor in the New York County District Attorney’s Office, Mr. Tilem was often called upon to investigate shootings and stabbings involving self-defense claims and has continued during his 25 year career defending those accused of assault but many of whom were acting in self-defense.

Mr. Tilem is well aware of New York’s expansive defense of justification which goes way beyond using physical force including deadly physical force to defend ones self and others against violent attack. Article 35 of the New York State Penal law includes a variety of situations where an individual may use physical force and even deadly physical force to: defend premises and to terminate and prevent or prevent a burglary, (See Penal Law sec. 35.20); use physical force to prevent a larceny and/or criminal mischief, (See Penal Law 35.25); use physical force including deadly physical force by a civilian to effect the arrest of a person who has committed certain violent offenses, (Penal Law 35.30).

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As New York Gun Lawyers we are aware that New York has a ban on possessing firearms magazines that are capable of containing more than 10 rounds. However, not everyone is as aware of the gun laws as they should be and this week two different cases in two opposite ends of New York State demonstrated how serious these cases are and how the right representation can make all of this difference in the world.

As was widely reported in the paper last week (see another article here) a former Army veteran who spent more than 9 years in the army was convicted of three felonies in Niagra County in far western New York, after he was found to be in possession of three magazines for a Glock 9mm handgun. Each of the magazines was capable of holding more than 10 rounds of ammunition. The Army veteran did not possess any firearm, only the magazines. He is awaiting sentencing in two months according to the reports and faces up to 21 years in prison.

Meanwhile, in far Northern New York, on the same day that the veteran was convicted a man was being arrested and charged for bringing two handguns that were illegal in New York along with two high capacity ammunition feeding devices across the Canadian border in New York. This man possessed both the firearms and the high capacity magazines, also for a Glock pistol (albeit for a different model). Within a period of a week, the individual in Northern New York had the gun charges dismissed and had the high capacity magazine charges reduced to two counts of disorderly conduct. He paid fines totaling $500 a state mandated surcharge of $125 and the record of the arrest and conviction were sealed.

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As New York firearms lawyers we think it is important to keep the public updated on possible significant changes to New York gun laws. The idea of national concealed carry reciprocity is not a new idea but it is an idea that may be close to becoming law. The theory is very simple. If a driver’s license, which has been held by the Courts to be a privilege not a right, is valid in all 50 States than why isn’t a license to carry a gun, which has been held by the Courts to be right not a privilege, also valid in all 50 States. While different versions of the bill have been introduced in varying forms in Congress since at least 2008, President-Elect Trump has expressed an interest in signing such legislation.

Currently HR 923 entitled Constitutional Concealed Carry Reciprocity Act of 2015 has 121 cosponsors. The Companion bill in the Senate of the same name has 35 cosponsors.

The issue is how will New York law, which is notoriously hostile to gun owners, interact with a National Concealed Carry law. According to the Congressional Research Service HR 923 can be summarized as follows: “[HR 923 a]mends the federal criminal code to authorize a person who is not prohibited from possessing, transporting, shipping, or receiving a firearm under federal law, who is entitled and not prohibited from carrying a concealed firearm in his or her state of residence or who is carrying a valid state license or permit to carry a concealed weapon, and who is carrying a government-issued photographic identification document, to carry a concealed handgun (which has been shipped or transported in interstate or foreign commerce, other than a machine gun or destructive device) in any state in accordance with the restrictions of that state. [And,]

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In yet another victory in a New York firearms case, a Tilem & Associates client arrested in New York’s LaGuardia airport in September with an alleged “high capacity” magazine had all felony charges dismissed and only pled guilty to a non-criminal disorderly conduct, a violation but not a crime under the New York State Penal Law and paid a $250 fine. The record will be sealed.

New York State bans the possession of what it calls a “Large Capacity Ammunition Feeding Device.” NY Penal 265.00 (23). A Large Capacity Magazine Feeding Device is defined as “a magazine, belt, drum, feed strip, or similar device, that (a) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition, or (b) contains more than seven rounds of ammunition, or (c) is obtained after the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision and has a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition . . .” Boiled down, and there are some exceptions, New York defines both a capacity limit and a load limit. Under New York Law, as written, one could either not possess a magazine with a CAPACITY of more than 10 rounds but if one had an old magazine with a ten round capacity one could only LOAD up to seven rounds into that magazine. An empty magazine with a capacity of more than 10 rounds is a class “D” violent felony under New York Law punishable by up to seven years in prison.

In the Federal case of NEW YORK STATE RIFLE AND PISTOL ASSOCIATION INC LLC v. Gerald J. Gill, the United States Court of Appeals struck down the seven round load limit finding it violated the Second Amendment but left the 10 round magazine capacity limit in place.

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A recent victory by Firearms Attorneys Tilem & Associates in Queens County Supreme Court demonstrates exactly how to beat a firearms charge even in gun hating states like New York. While New York prosecutors seek to strictly enforce New York’s draconian gun laws, it turns out that jurors and judges may not be completely sold on incarcerating lawful gun owners who run afoul ofNew York gun laws.

The client, who lawfully purchased his firearm in Florida and who was in New York for about three weeks before being arrested, was arrested and charged after he was stopped for not wearing a seatbelt. During the car stop, the police alleged that he acted nervously prompting them to ask the client if he had any weapons in his car. The Client told the police that he had his firearm in the center console and was immediately taken out of his car and arrested. A loaded 9 mm firearm was discovered in the center console of the vehicle and the client was charged with Criminal Possession of a Weapon in the Second Degree, a charge which carries a mandatory minimum of 3 and ½ years in prison even for a first offender. The maximum he faced was 15 years in prison.

Plea Negotiations

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Introduction

As experienced New York Second Amendment Lawyers we often think that we have seen it all but recently we handled a gun case using the Law Enforcement Officers Safety Act (LEOSA) also commonly called HR218 as a defense to New York State gun charges under some unusual circumstances. Just as a primer, the Law Enforcement Officers Safety Act (LEOSA) is a federal law that provides a defense to State weapons charges for both active law enforcement officers and “qualified retired law enforcement officers.” Essentially it gives Law Enforcement Officers and Retired Law Enforcement Officers the right to carry a firearm in all 50 states. Despite this well established Federal Law a gentleman who was both a Special Police Officer for the Sheriff’s Department and a retired Police Officer was arrested and charged with Criminal Possession of a Weapon in New York for having three unregistered handguns in his home.

Two questions that I immediately raised when I became the client’s third attorney were firstly, how can a law enforcement officer, a peace officer, a special police officer under New York law who according to the New York State Penal Law (PL §265.20) is exempt from prosecution be prosecuted in a New York State Court and secondly, how could the police, the prosecutor and the two prior criminal defense attorneys have missed these obvious defenses. Sadly, despite the successful conclusion of the case and the successful conclusion of the County’s futile attempt to revoke his pistol license, I still do not know the answers to my question.

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New York firearms attorneys Tilem & Associates have been following the increasing number of guns recovered at US airports and more specifically the guns being recovered at local airports such as LaGuardia, Kennedy and Newark with sometimes devastating consequences. As reported in the New York Times in June 2014, from 2011 until June 2014 the TSA had seen a steady rise in guns recovered by screeners in airport security lines. TSA is now reporting another 20% increase in 2015. While a majority of these guns are recovered in places with relatively lax gun laws such as:

Dallas/Fort Worth International Airport — 153 guns recovered

Hartsfield-Jackson Atlanta International Airport — 144 guns recovered

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Again, at JFK airport in Queens, New York, Tilem & Associates beat another handgun ammunition charge after a client was found bringing handgun ammunition through the TSA screening area. As described in a previous blog, the New York City administrative code makes it illegal to possess handgun ammunition unless a person is licensed to possess a pistol or unless the person is a dealer in rifles or shotguns.

As described in the previous blog, section 10-131 of the New York City Code is somewhat convoluted and specifically 10-131(i)(3) contains two exceptions right in the statute. 1. that the law does not apply to a person “authorized” to possess a pistol or revolver. 2. that the law doesn’t apply to a dealer in rifles and shotguns. As explained previously, when a statute in New York contains an exception within the statute, the exception must be both pleaded and proved. In other words, the police are required to allege both that the defendant was not authorized to possess a pistol or revolver and that the defendant was not a dealer in rifles and shotguns. Absent those specific allegations in the accusatory instrument, the case should be dismissed.

This is unusual because, for example, in drafting a charge for possession of an illegal pistol, the police or prosecutor would not be required to establish that person was not authorized to possess the pistol. Rather, the possession of a license or some legal authority to possess the weapon is an exemption contained in a different statute. Since the exception is not found within the statute but rather outside the specific statute the police or prosecutor do not need to plead or prove the exemption.