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Articles Posted in GUN CRIMES

In a recent case involving a New York gun crime, the defendant unsuccessfully appealed his conviction of attempted criminal possession of a weapon in the second degree. In the appeal, the defendant argued that the officer who found the weapon in question had no right to search his private vehicle, and the trial court should have suppressed the incriminating evidence. Disagreeing with the defendant and discussing the plain view doctrine, the court denied the appeal.

Facts of the Case

According to the opinion, a police officer was patrolling one evening when he came across a parked car on the highway. The officer immediately saw an open bottle of tequila in the car and smelled alcohol coming from the general vicinity of the car. Because New York law prohibits possession of open containers on public highways, the officer opened the car to investigate the situation.  The Court decided that the officer had the legal right to do this since it is illegal to have an open container of alcohol in the car.

Not only did the officer confirm what he suspected – that the bottle indeed was full of tequila – but he also found an open backpack in the car on the passenger’s side floorboard. Inside the backpack the police officer found a pistol magazine. The officer arrested and charged the defendant with attempted criminal possession of a weapon in the second degree.

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In a recent opinion decided in a New York appellate court, the defendant unsuccessfully appealed his New York firearm case. The defendant was originally found guilty of criminal possession of a weapon in the second degree and unlawful possession of pistol ammunition. When evaluating the defendant’s appeal, the court used a four-level test that is common in New York criminal law to assess the legitimacy of interactions between police officers and pedestrians. Determining that the interaction between the officer and the defendant in this case was legitimate, the court denied the defendant’s appeal.

Facts of the Case

The defendant was charged after an interaction with a police officer in 2019. According to the opinion, the officer had received a tip that the defendant had a firearm on his person, so the officer approached the defendant to investigate the situation. When the officer asked the defendant to take his hands out of his pockets, the defendant refused, instead pushing past the officer in an attempt to evade the interaction.

The officer then grabbed the defendant’s pocket. At this point, it became clear to the officer that the defendant had a gun in his pocket, and he used force to stop the defendant so that he could fully investigate the situation. The officer found the gun, and the defendant was arrested and charged accordingly.

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ANY OTHER WEAPONS

We have written in the past extensively about the Mossberg Shockwave, Remington Tac-14 and AR-15 others.  The basic principle involves a weapon that is not designed to be fired from the shoulder so that it cannot be legallyupdate considered to be a rifle or shotgun and is defined to be fired with two hands so does not meet the legal definition of a pistol.  Therefore, the restrictions on barrel length of shotguns and rifles did not apply as long as the overall length of the weapon was greater than 26 inches.  In addition, since these guns were neither pistols, shotguns nor rifles they could have collapsible stocks, flash suppressors and/or bayonet lugs and not fall into the definition of “assault weapons”.  Despite the fact that these “others” don’t seem to be the source of any significant crime this upset the gun grabbers.  Now under the new law they are regulated and probably need to be added to a pistol license to be kept.

The new law signed by Governor Kathy Hochul on June 6, 2022, redefines the term firearm in New York.  Under New York Law, a firearm requires a license to be issued in order to legally possess the firearm just like any handgun.  The new law amends Penal law sec. 265.00 (3) to include in the definition of firearm: any other weapon which is not otherwise defined in Penal law 265.00 and which is designed or can be converted to fire a projectile by the force of an explosive.

EXPANSION OF RED FLAG LAWS

On June 6, 2022 Governor Kathy Hochul signed an expansion of New York’s already problematic red flag laws giving the right to file Extreme Risk Protection Petitions to a wide range of health care workers.  The list of healthcare workers includes doctors, nurses, social workers, psychiatrists, marriage and family therapists, and licensed mental health counselors who have treated the person who they wish to red flag within the 6 months preceding the red flag petition.  The new law went on the require that police officers and district attorneys file red flag petitions under certain circumstances.  Previously, it was discretionary with the police officer or district attorney whether or not to file a red flag case.  The new law makes it mandatory under certain circumstances.

One issue that has not been reported is that this amendment to the extreme risk protection law creates a major new exception to the doctor-patient privilege.  The doctor-patient privilege is codified in New York under CPLR 4504 and prohibits the disclosure of information obtained while attending the patient.  The new law specifically authorizes a medical professional to disclose protected health information.  In addition, it gives the Judges hearing the petition for an extreme risk protection order the authority to order the disclosure of protected medical records from other medical providers.  This is perhaps one of the largest exceptions ever created to doctor-patient privilege and is likely to discourage many from getting treatment because of the potential for disclosure of their personal medical records.

New York’s New Type of License – Semi Automatic Rifles

Among the new package of laws that were signed into law by Governor Kathy Hochul was the requirement to obtain a license before purchasing or acquiring a new semiautomatic rifle (other than an “assault rifle“).  The intention seems to have been to prevent the purchase of rifles by 18, 19 and 20 year old individuals but the law does much more. Notwithstanding, that the Ninth Circuit Court of Appeals in California has already ruled a similar California ban on 18, 19 and 20 year old young adults is unconstitutional.   Under S.9458/A.10503 Article 400 of the Penal law was amended to create a new type of gun license called a license for a semiautomatic rifle.  Similar to licenses to carry pistols the new law says that a license to purchase a semiautomatic rifle obtained outside of New York City will not be valid inside of New York City unless a special permit giving validity is obtained from the New York City Police.

The new law does not make it a crime to own or possess guns which were acquired before the effective date.  Rather, the new law makes it a crime to purchase or obtain a new semiautomatic rifle without having the new type of license.  The new licenses appear to be issued by the same licensing officers using the same criteria as license for handguns and is almost certain to back up and slow down the already overwhelmed system for obtaining handgun licenses.  The new licenses require recertification every five years.

On June 6, 2022, New York Governor Kathy Hochul signed 10 new gun control measures into law.  These laws were hurriedly written and passed and appear to be a knee jerk reaction to the tragedies in Uvalde and Buffalo but will have a heavy impact on the New York Second amendment community.  As New York Second Amendment lawyers we have been contacted by a large number of concerned citizens, firearms trainers and gun store owners about the impact of these laws.  Taken as a whole these may be the stupidest gun laws ever written.  Here is a brief summary of what passed and what it means with links to get more information about each one.  .

S.9458/A.10503 makes it a felony to either purchase a semiautomatic rifle without a license or sell a semiautomatic rifle to someone who does not have a license. The new law also raises the minimum age to buy a semiautomatic rifle to 21 years of age.  To read more about the law click here.

S.9407-B/A.10497 makes it a crime to purchase body armor except for individuals in “eligible professions”.  It makes it a felony to sell body armor to someone who is not in an “eligible profession”. To read more about this law click here.

In a recent New York gun crime case decided in a Appellate Court, the defendant unsuccessfully appealed his firearm conviction by arguing that his original arrest was based on unreliable information. His sentence was however reversed on other grounds.  According to the defendant, there was insufficient evidence that the informant who had tipped police officers off to his activity was reliable and trustworthy. Because it was not clear whether or not the officers could trust the informant, it was unreasonable for the officers to arrest the defendant based on the single tip. The court considered the defendant’s argument but ultimately denied his appeal, citing the officers’ long-term relationship with the informant as evidence of the informant’s trustworthiness.

Facts of the Case

According to the opinion, a confidential informant let police officers know that there was an individual in a specified location with a gun in his hand. Upon hearing this tip, officers went to the scene and found the person matching the informant’s description. The officers approached the person, who later became the defendant in this case, and placed him under arrest. Upon his arrest, the defendant immediately stated, “I have a firearm in my waistband.”

The officers recovered the firearm and the defendant was charged and convicted of attempted criminal possession of a weapon in the second degree. He appealed shortly thereafter.

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In a recent New York gun crime case decided by a New York City trial court, one of two defendants filed a motion to suppress incriminating evidence. The court, looking at the circumstances surrounding the case, granted the defendant’s motion after considering the fact that the police officer that found the gun was not in immediate danger at the time of her search.  As a result, the charges were dismissed.

Facts of the Case

According to the opinion, a New York police officer was on duty around 9:00 one morning when she was notified that a violent altercation had occurred nearby. The call reported that a woman’s ex-boyfriend had brought out a gun during a fight in the woman’s home. After the fight, the ex-boyfriend left the house and got into his car, driving away.

The officer began looking for the vehicle belonging to the ex-boyfriend, who later became one of the defendants in this case. About an hour later, the woman involved in the case called the officer to report that she had found the defendant’s car and that one of the defendant’s friends was sleeping inside the car. The officer immediately arrived at the car and knocked on the window, instructing the defendant’s friend to open the door.

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In a recent New York gun crime case a the defendant unsuccessfully argued, on appeal, that his conviction should be reversed based on questionable scientific methodologies used by the prosecutor. Originally, the defendant was charged with criminal possession of a gun after a violent altercation in a store. After a jury found him guilty, the defendant appealed, arguing that the court should have conducted research as to whether or not the State’s methodology for extracting DNA evidence was scientifically legitimate. Disagreeing with the defendant, the court affirmed the guilty verdict.

Facts of the Case

According to the opinion, the defendant in this case was convicted of criminal possession of a weapon after an incident inside a local store. The State’s major piece of evidence at trial was video footage taken from a security camera inside the store. The footage showed a group of men holding the defendant against a shelf, then showed the men scattering the scene before the defendant himself ran away. Approximately two minutes later, the footage showed a police officer looking at the shelf where the defendant had been held, finding a gun in the space where only the defendant had just been standing.

Relying on this evidence, a jury found the defendant guilty, agreeing that the video footage sufficiently proved that the defendant had the gun on his person before the men in the group ran away.

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In a recent decision coming out of a New York court, the defendant’s appeal of his New York firearm conviction was denied. Originally, the defendant was charged after police officers found a firearm inside of his backpack while the defendant and some of his acquaintances were gathered in another person’s yard. On appeal, the defendant argued that the officers invaded his right to privacy. Disagreeing with the defendant, the court denied the appeal.

Facts of the Case

According to the opinion, two officers were on patrol one day when they drove past an empty house that they had seen many times while driving on the same street. They noticed that the house was boarded up with a padlock, a chain, and a “No Trespassing” sign in the front. Officers saw that a group of men had gathered in the backyard, and they exited their vehicle to go speak with the men.

Officers noticed that the men were passing a cigarette back and forth, as well as that the area smelled of marijuana. They also observed the defendant walk towards the back of the house with an object in his hand. The officers watched him then return to the group empty-handed.

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