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Articles Posted in GUN CRIMES

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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.

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New York gun crimes law firm Tilem & Associates is pleased to announce another victory in a firearms related case, winning a full dismissal of all charges after a person was charged with possessing handgun ammunition and a handgun magazine at JFK airport. As reported almost 6 years ago in our blog about New York City’s ban on commonly possessed items, possession of handgun ammunition and ammunition feeding devices are illegal in the five boroughs of New York City under New York City Administrative Code Section 10-131. That section makes it a misdemeanor, to possess these items punishable by up to one year in jail.

The difficulty with section §10-131 is that it is very long, containing a large number of subdivisions, poorly written and has a large number of exceptions written into the statute. §10-131 subdivision (i)(3) states in pertinent part: “It shall be unlawful for any person not authorized to possess a pistol or revolver within the city of New York to possess pistol or revolver ammunition, provided that a dealer in rifles and shotguns may possess such ammunition.”

In the case at JFK airport, the police officer in the accusatory instrument alleged only, in pertinent part that “. . . at Terminal 5 – JFKIA main screening Lane 13, suspect was in possession of two magazines holding six rounds of 9mm ammunition in each.” Yet, it is a well settled principle of New York law that where an exception is contained within a statute the prosecutor or the police are required to disprove the exception. In this case for example the police would have been obligated as a matter of law to establish that the accused was not a dealer in rifles and shotguns. Since the police failed to make that accusation, the accusatory instrument was insufficient as a matter of law and needed to be dismissed.

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As we already reported in an earlier blog, earlier this week Westchester Journal News Reporter Dwight R. Worley thought it was news worthy to publish the names and addresses of all licensed gun owners in Westchester and Rockland Counties. Under the First Amendment that is his right. However Dwight R. Worley also has a home address and he apparently has a licensed Smith & Wesson .357 magnum revolver at that address. We thought that the old expression “what’s good for the goose is good for the gander” was perfect for just this situation, so here it is:

Dwight R Worley

23006 139 Ave

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Firearms defense firm Tilem & Campbell is very unhappy to report that a local newspaper has outed local law-abiding gun owners. In the modern day equivalent of the scarlet letter the Journal News has published an article in today’s paper with an interactive on-line map that discloses the names of addresses of all law abiding gun owners in Westchester and Rockland Counties. The information was obtained by a Freedom of Information law request to the County clerks of each county.

Exactly the point of the article is not clear but is an apparent attack on law abiding gun owners who may face consequences at their work or in social circles now that their ownership of firearms has been publicized. The map also appears to have the names and addresses of several sworn police officers who for obvious reasons generally keep their residence information a secret. The article, an apparent reaction to the tragic shooting in Newtown, Connecticut, ironically puts everyone in danger in that it tells would be murders, terrorists, psychos and other people who are inellegible to purchase guns lawfully, exactly where they can steal them.

The basis for such a publication unfortunately has its basis under New York law. No civilian may lawfully purchase or possess a firearm in New York without a permit issue under Penal Law § 400.00 which defines the types of gun license in New York and the rules for issuing them. Penal Law § 400.00(5) specifically requires the filing of all approved applications and goes on to state: “The name and address of any person to whom an application for any license has been granted shall be a public record.” Penal law § 400.00(5). Apparently, Paul Piperato, the Rockland County Clerk, expressed some reluctance in giving up these records even as he apparently released the records under New York Law. “You have judges, policemen, retired policemen, FBI agents — they have permits,” Piperato said. “Once you allow the public to see where they live, that puts them in harm’s way.”