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Articles Posted in GUN CRIMES

Just about one week after the United States Supreme Court delivered its ground breaking decision in Bruen affirming the Constitutionally protected right to carry a gun in public and addressing the sanctity of the Second Amendment, Governor Hochul and the New York State Legislature convened an extraordinary legislative session and passed the “Concealed Carry Improvement Act.  The purpose of the CCIA was to make the lawful carry of a firearm so difficult, so constrained and so limited that no one would choose to carry their firearm for fear of being charged with a felony.  The thrust of the law was to create numerous sensitive and restricted locations where a licensed citizen could not carry firearms and to make the application process unduly burdensome.

The law was almost immediately after passage challenged in numerous Court proceedings.  New York State rather than defending the law on the merits chose to defend the law mostly with the procedural argument that because the Plaintiffs challenging the law had not been arrested or suffered any harm they did not have standing to challenge the law.  Now after several decisions, here is a partial list of what is still enforceable under the CCIA.

In the Western District of New York, on November 3, 2022, Judge Sinatra stayed the enforcement of the provisions of the CCIA which prohibited carrying a firearm in places of worship.

In the state of New York, it is necessary to have a permit in order to carry or possess a handgun. The process of applying for a gun permit can be daunting, but we’re here to help. Keep reading to learn more about the steps you need to take in order to obtain a gun permit in New York City.

1. Determine if you are eligible for a gun permit. In order to be eligible, you must be 21 years of age or older, have no or a minimal criminal record (you may not have a felony conviction), and be a resident of or be be employed within New York City. If you meet these criteria, you can move on to the next step.

2. Collect the necessary documentation. You will need to bring a completed application, two passport-style photos, and the appropriate fee to the NYC Licensing Division, along with other documentation to establish identity, residence and employment. You can find the application and fee schedule on the NYC Licensing Division website.

In a recent New York criminal defense case, a New York Appellate Court affirmed the trial court decision, finding that the court had properly denied the defendant’s motion to suppress evidence in a case involving illegal possession of guns and illegal possession of drugs.   In the appeal, the defendant challenged the denial of his motion to suppress his statements and certain physical evidence. The defendant was charged with criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree (four counts), criminally using drug paraphernalia in the second degree, criminal possession of a weapon in the fourth degree, criminal possession of stolen property in the fourth degree and three traffic violations.

Facts of the Case

According to the opinion, a state trooper observed the defendant’s vehicle change lanes without signaling and cross over a rumble strip on the highway. The state trooper proceeded to initiate a traffic stop, pulling the defendant over. Upon approaching the defendant’s car, the state trooper observed the defendant sitting in an “unnatural position” that appeared to shield something from view. In response to questioning, the defendant stated that he was returning from work. At that point, the state trooper asked the defendant to exit the vehicle, and the defendant complied. The state trooper continued to question the defendant, at which point, the defendant stated that he was returning from a friend’s house, which was inconsistent with his original answer. At this point, the state trooper decided to run a “file check” on the defendant and discovered he was on parole. The state trooper and his partner then asked for permission to search the car, and according to the trooper, the defendant answered in the affirmative.

In a recent opinion issued by an appellate court in New York, the defendant’s appeal of his sale of firearm conviction was denied. Originally, the defendant was charged with sale of a firearm in the first degree and criminal sale of a firearm in the second degree. A jury found him guilty of both crimes, and he promptly appealed, arguing that the officers’ search warrant was unauthorized and thus that the evidence they found should have been suppressed.

Facts of the Case

According to the opinion, the defendant was riding a bus from Florida to New York when police officers entered the bus without prior notice. The officers approached the defendant and immediately showed him a search warrant that authorized them to search the suitcase he had brought on board. Feeling as if he had no choice in the matter, the defendant handed over the suitcase.

The officers found multiple firearms in the suitcase, and the defendant was charged accordingly. He appeared for his trial, and in June 2017, and received a guilty verdict. The defendant appealed his verdict pro se, meaning he did not have an attorney to represent him but instead filed the appeal on his own.

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In a recent New York case involving the illegal possession of a firearm, the court denied the defendant’s motion to suppress physical evidence. In the appeal, the defendant argued that the initial police pursuit of the defendant that led to the recovery of the evidence in question was not legal, therefore barring the use of the gun at trial. The appeals court denied his motion, finding first that the police pursuit was lawful, and as a result, the motion to suppress was denied.

Facts of the Case

According to the opinion, the police officer was engaged in his normal duties when he was patrolling near the Woodside Houses, a New York City Housing Authority complex, in Woodside, Queens. The officer then observed a group of three or four individuals gathered together on a bench and recognized one of them, the defendant, as the subject of two bench warrants that he had received and reviewed prior to March 16. Both bench warrants were in connection with two pending criminal proceedings. Each contained a photograph of the defendant and identifying physical characteristics, including height, weight, age, and race. As the officer and the defendant made eye contact, the defendant began running towards a nearby building.

The officer then observed the defendant make a motion towards the elevator before disappearing into the stairwell. Despite sweeping the building, the police officers were unable to locate the defendant. The officers then referred to video surveillance footage of the building and discovered that the defendant had disposed of a handgun in the elevator before running into the stairwell. An inspection of the elevator revealed a handgun in the shaft. Several days later, the defendant turned himself in.

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Recently, the New York Appellate Division, Third Department issued an opinion in a case involving a defendant’s attempt to reverse his conviction for a gun crime. On appeal, the defendant asked the court to review the evidence from trial and come to the conclusion that there was insufficient evidence to support the jury’s guilty verdict. After going through both the evidence from trial as well as the defendant’s argument on appeal, the court disagreed with the defendant and ultimately concluding that the evidence was sufficient and that the defendant’s appeal should be denied.

Facts of the Case

According to the opinion, the defendant activated a security alarm while he was on his way out of a sporting goods store in May 2017. Security officers immediately came to the defendant and asked him to remove his backpack so that he could walk by the sensor. Again, the defendant set off alarms. Eventually, a security guard asked the defendant to empty his pockets, and the defendant revealed four boxes of ammunition that he had stolen.

The defendant was taken to the police station, and officers found a slungshot in his backpack when they searched the items he had on his person. A few hours later, the defendant’s granddaughter, with whom he was staying, turned over the defendant’s belongings to the police. In those belongings, the officers found a firearm. Upon searching a storage unit that belonged to the defendant, the officers also found four firearms, ammunition, and three additional slungshots.

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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.

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