GUN CRIMES Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Defendant Successfully Argues for Guilty Plea to be Vacated in Weapons Case, Highlighting Importance of Reasonable Suspicion in Police Stops

November 12, 2023 | Tilem & Associates

In a recent case before a New York court, the defendant appealed the lower court’s denial of his motion to suppress tangible evidence. The defendant originally pled guilty to criminal possession of a weapon in the second degree, but he argued on appeal that the officers arresting him did not actually have the legal right to stop him before arresting him. On appeal, the higher court agreed, reversing the lower court’s decision on the motion to suppress and vacating his guilty plea.

Facts of the Case

According to the opinion, police officers patrolling one evening received an anonymous 911 call that a Black male with an orange sweatshirt was in the area and had a gun. Officers began to look for the individual, and they eventually came across a Black male with an orange sweatshirt. The officers exited their car and ordered the individual to show his hands. The individual ran, taking his jacket off and throwing it on the ground as he sped away.
Officers eventually caught the suspect, and they found a handgun in the jacket he discarded. He was then arrested and charged with criminal possession of a weapon.

The Decision

The defendant filed a motion to suppress evidence of the gun, which the lower court denied. The defendant appealed, arguing that the officers did not have legal grounds to stop and arrest him. Officers must, argued the defendant, have “reasonable suspicion” that a suspect is participating in criminal activity in order to chase and legally stop that individual. Here, the officers did not know anything about the defendant and therefore had no reasonable suspicion that he had a gun.

New York Defendant in Weapons Case Unsuccessfully Appeals Denial of Motion to Suppress

November 6, 2023 | Tilem & Associates

In an October 2023 case before a New York court, the defendant appealed the lower of the lower court’s denial of his motion to suppress incriminating evidence. The defendant was originally charged with criminal possession of a weapon based on a 2015 run-in with police officers. After being criminally charged with a felony, the defendant asked the court to suppress the incriminating evidence, a gun, that officers found in his personal vehicle during a routine inventory search. The court denied the defendant’s motion, who then appealed the denial of his motion to suppress. The higher court, considering the defendant’s appeal, ultimately ruled that the officers’ search was constitutional. The court therefore affirmed the original conviction.

Facts of the Case

According to the opinion, officers were on patrol one evening when they noticed the defendant driving by in his truck. The officers saw the defendant commit multiple traffic violations, and they therefore conducted a routine traffic stop. The officers subsequently discovered a “gravity knife” in the defendant’s pocket, which was illegal for the defendant to possess at the time. The law has since changed. The officers brought the defendant in for processing. They then conducted an “inventory search” of the defendant’s truck, and they found a gun in the car’s trunk. At that point, facing criminal charges for possession of a weapon, the defendant filed a motion to suppress.

The Decision

The court denied the defendant’s motion to suppress, and he promptly filed an appeal. On appeal, the defendant argued that the police officers’ search protocol was unconstitutional. The officers found the firearm because, after they brought the defendant in for questioning, they conducted a standard inventory search of the vehicle. According to the defendant, the officers had too much leeway to conduct the inventory search without his consent – it was not fair that they were able to sift through his car’s contents while he was in custody.

New York Defendant Unsuccessfully Appeals Criminal Possession of a Weapon Conviction, Despite Argument Regarding Discriminatory Juror Striking

September 6, 2023 | Tilem & Associates

In a recent case between the State of New York and a defendant convicted of criminal possession of a weapon, an appellate court ruled that the defendant did not have grounds to appeal his guilty verdict. Originally, the defendant was charged with criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. His case went to trial, a jury found him guilty, and the defendant promptly appealed. After considering the defendant’s argument that the State unfairly struck a Black individual and a Hispanic individual from the jury, the court denied the defendant’s appeal.

Facts of the Case

According to the opinion, officers were on patrol one evening when they received word that they should be on the lookout for the defendant in this case, given that there was an active warrant for his arrest and he had possibly been involved in a recent homicide in the city. The officers eventually spotted the defendant and began following him in his car. They radioed to other troopers in the area that the defendant was on the loose in his silver Ford Taurus.

Another officer on patrol spotted the car. He turned on his emergency lights to stop the defendant, at which point he saw the defendant stop the car, get out of the car, pull out a pistol from his pockets, and drop the pistol on the ground. The defendant then began running on foot.

Appellate Court Sides with Defendant in New York Firearm Possession Case

May 20, 2023 | Tilem & Associates

Last month, an appellate court in New York ruled in favor of the defendant in a New York gun case involving the suppression of physical evidence. Originally, a police officer pulled the defendant over when he was driving, and the officer found a firearm on the defendant’s person. The lower court granted the defendant’s motion to suppress the incriminating evidence found during the traffic stop, and the State of New York appealed. Ultimately, the higher court denied the State’s appeal, siding with the defendant instead.

The Facts of the Case

According to the opinion, an officer was on patrol one evening when he saw the defendant driving nearby. He supposedly perceived the defendant to be going too fast and cross a double yellow line, so he activated his lights and pulled the defendant over. As the officer got out of his car and approached the defendant in his vehicle, he saw an empty firearm holder, marijuana, and a plastic bag with a powdery substance inside the car. The officer told the defendant to step outside and immediately found a firearm on the defendant’s person.

The defendant was charged with criminal possession of a firearm. He filed a motion asking the trial court to suppress the evidence of the firearm, arguing the officer did not actually have a legal reason to pull him over. The lower court granted the defendant’s motion, and the State appealed.

New York Appeals Court Sides with Defendant in Firearm Case

April 12, 2023 | Tilem & Associates

In a recent case before a New York appellate court, the defendant asked the court to reconsider his conviction for criminal possession of a weapon in the second degree. In his appeal, the defendant argued that the lower court should have suppressed evidence obtained by the police officers that caught him driving with a firearm. Because the lower court failed to suppress the evidence, argued the defendant, it was the higher court’s responsibility to reverse the judgment and remand the case for further proceedings without the incriminating evidence as part of the record. Ultimately, looking at the evidence in the case, the court of appeals agreed with the defendant and reversed the judgment.

Facts of the Case

According to the opinion, the defendant was driving when two police officers pulled him over for speeding. Once they initiated the traffic stop, the officers questioned the defendant and ultimately found a firearm in his vehicle. The defendant was charged, and he filed a motion to suppress the firearm found in his vehicle. The lower court, however, denied this motion, and the defendant was convicted of criminal possession of a weapon in the second degree.

The Decision

On appeal, the defendant’s main argument was that the officers did not actually have a legal reason to pull him over in the first place, thus making their traffic stop illegal, and any evidence they found as a result of the stop should have been inadmissible. During the hearing on the defendant’s motion to suppress, both officers testified that they pulled the defendant over because they suspected he was speeding. However, neither of the officers had used radar to actually measure the defendant’s speed before they pulled him over. Instead, the officers testified that they estimated the defendant was traveling around 40 miles per hour in a 30-mile-per-hour zone.

New York Court of Appeals Sides with Defendants in Recent Firearms Case

March 8, 2023 | Peter Howard Tilem

In a recent New York gun case before an appellate court in the state of New York, the court had to decide whether a search warrant executed by several state troopers was valid. Originally, the trial court decided that evidence found by the troopers should be suppressed, and it granted the defendants’ motion to controvert the search warrant and suppress the incriminating evidence. On appeal, the State asked the higher court to reverse this decision, but the court could not find a reason to agree with the State’s arguments and ultimately denied the request.

Facts of the Case

According to the opinion, the defendants were charged with drug and weapons offenses after state troopers searched their two-story home in Queens. A confidential informant had told investigators that he knew several firearms were in the defendants’ home since he had visited recently and been shown two guns by one of the residents.

Both the search warrant and the affidavit in support of the search warrant described a two story, two family home with a right entrance and a left entrance.

The officers searched the home and found drugs, ammunition, and guns on the first floor. Interestingly, they found nothing on the second floor. They also arrested several people. The defendants filed a motion to suppress, arguing the warrant that gave the officers permission to search the premises was invalid and that the evidence shouldn’t come in at trial. The Constitutions of both New York State requires that search warrants particularly describe the place to be searched and the items to be taken. This warrant authorized the search of the entire house even though the police were aware that it was a two-family home. Accordingly, the trial court granted this motion, and the evidence was suppressed.

New York Appellate Court Sides with Defendant in the Face of Unfair Treatment from Police Officer

February 6, 2023 | Peter Howard Tilem

Last month, the Appellate Court decided the prosecution’s appeal of a lower court’s unfavorable decision in a firearm possession case. It is unusual for the prosecutors to appeal and they can only do so under very limited circumstances. The State had originally asked the lower court to admit evidence, including two handguns, that resulted from an officer’s pat down of the defendant, and the lower court had determined that the evidence could not come in at trial. When the State appealed, the higher court reviewed the evidence of the case, ultimately deciding that the lower court’s decision was correct and that the officer did not have a legal basis to conduct a pat down of the defendant.

Facts of the Case

According to the opinion, the defendant was driving one evening when an officer attempted to pull him over for several traffic violations, including parking illegally, failing to stop at a stop sign, and failing to signal while turning. At first, the defendant did not stop for the officer, so the officer called in backup to help him conduct the stop.

When the backup officer came to the scene, he saw the defendant get out of the car and start running away. The officer did not know the details of what was going on, but he knew that the original officer was trying to conduct a traffic stop of the individual. The second officer then started chasing the defendant. He tackled the defendant, handcuffed him, and pat him down, finding two handguns between his legs.

New York Defendant in Firearms Case Successfully Appeals Denial of Motion to Suppress

January 19, 2023 | Peter Howard Tilem

Last month, a New York defendant in a firearms possession case successfully appealed an unfavorable decision from the lower court. Originally, the trial court had denied the defendant’s motion to suppress the gun in this case, which was found by the two officers that arrested the defendant. The defendant argued that officers actually did not have legal grounds to search him, and the trial court disagreed. On appeal, however, the higher court reversed this decision, ruling that the officers unlawfully searched the defendant on the night in question. As we have discussed on many occasions, suppression motions are often the best way to challenge gun possession cases.

Facts of the Case

According to the opinion, the defendant was sitting in a grassy area outside of a vacant house one evening. Police officers patrolling the area noticed that the defendant had an open container of alcohol, and they approached him to issue a citation for the offense.

As the officers approached, the defendant jumped up and attempted to run away. One of the officers tackled the defendant, and he was placed in handcuffs. The officers then arrested the defendant for violation of the local open container ordinance and for obstructing governmental administration. While officers were patting the defendant down, they found a gun on him and charged him with criminal possession of a firearm as well.

Defendant in New York Weapons Case Unsuccessfully Asks Court to Reconsider Evidentiary Ruling

January 6, 2023 | Peter Howard Tilem

Recently, a defendant in New York appealed his guilty conviction for attempted murder and criminal possession of a weapon. On appeal, the defendant argued that during trial, the prosecution inappropriately introduced evidence of a 911 call from the victim’s mother. The call, argued the defendant, was hearsay, and it should not have been admitted. After considering this argument, the appellate court ultimately affirmed the original guilty verdict.

Facts of the Case

According to the opinion, the defendant was charged when police arrested him for shooting another person in Queens. During the altercation, the defendant shot the victim, and the victim walked out of the incident injured but still alive. The State charged the defendant with several crimes, including attempted murder in the second degree, criminal possession of a weapon in the second degree, assault in the second degree, and reckless endangerment in the first degree.

The case went to trial, and a jury found the defendant guilty as charged. Even after the verdict, the defendant maintained that he was unjustly found guilty, and he appealed the jury’s decision.

NEW YORK SUPREME COURT JUSTICE DEEMS NEW YORK’S RED FLAG LAWS ARE UNCONSTITUTIONAL

December 30, 2022 | Peter Howard Tilem

A New York State Supreme Court Justice ruled last week that New York’s Extreme Risk Protection Order laws, often called Red Flag laws are unconstitutional and declined to issue an Extreme Risk Protection Order (ERPO). As we have written in the past, extreme risk protections have become very popular in anti-gun states and are a way for government officials to take away the Second Amendment rights of individuals who have not committed any crime. Yet, New York’s Red Flag laws were expanded in July of 2022. Justice Thomas E. Moran, of the Rochester based Monroe County Supreme Court struck down these laws in a 10 page decision, in a case entitled G.W. v. C.N., 2022 NY Slip Op 22392 (Monroe County Sup. Ct. 2022).

This particular case highlights everything wrong with Red Flag laws. The Petitioner who filed for the Extreme Risk Protection Order was the estranged boy friend of the Respondent who was a licensed gun owner in New York State. He alleged that his ex-girlfriend was a danger to herself and others and obtained a Temporary Extreme Risk Protection Order. Justice Moran pointed out that the Petition cited a variety of statements that the Respondent allegedly made threatening to harm herself with a gun which the Petition falsely claimed were made within 6 months before the Petition was filed but in fact dated back to 2020 and 2021. The Court also pointed out that there was a Family Court case also going on in which The Petitioner had an Order of Protection against him which among other things barred him from the home that they had shared.

Turning to the Constitutionality of the Article 63-A, which lays out New York’s Red Flag laws and procedures, the Court cited the United States Supreme Court decisions in Heller, McDonald and most recently Bruen and applied the Bruen Standard that when the 2nd Amendment’s text covers a person’s conduct, a law which regulates that conduct is presumptively unconstitutional unless the State can demonstrate that the regulation is consistent with the country’s historical tradition of firearms regulations.