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Articles Posted in GUN CRIMES

In a recent case coming out of a New York court, the defendant appealed his guilty conviction for criminal possession of a weapon in the second degree. Officers searched for this weapon only because they had previously smelled marijuana in the defendant’s car, making them suspicious of additional drug or criminal activity. In his appeal, the defendant relied on a recently enacted law that legalizes possession of marijuana in certain amounts for individuals who are 21 or older in New York. The court acknowledged this new law but ultimately ruled that the law does not apply to convictions that occurred before the passage of the law in 2021. The Court found that the police officer had reasonable cause to believe that there was contraband located in the car, to wit marijuana.  At the time of the search, possession of marijuana was still illegal in New York.  Therefore, because the defendant was charged in 2018, he could not use the law to argue for his conviction to be overturned.

Facts of the Case

According to the opinion, two police officers were patrolling one evening in his car when they noticed the defendant pull away from the curb without signaling. The officers signaled the defendant to pull over and then conducted a traffic stop. Once the defendant rolled down his car window, the officers immediately smelled a strong odor of marijuana.

After the officers asked the defendant whether there was, in fact, marijuana in the car, the defendant answered in the affirmative and opened his center console. The officers found two bags of marijuana and $1,000 cash. Continuing to smell the marijuana, the officers searched other areas of the car and subsequently found a loaded firearm in the trunk.

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As New York firearms attorneys we reported in our December 28, 2021 blog about the new law regulating 80 percent lower receivers in New York, the law allows for a six month grace period.  However as has been reported in the news lately, the term “Ghost Gun” is the new boogie man for gun control supporting politicians and raids have been taking place before the new law even takes effect.  Please read this article and this one.

The problem for many gun owners begins when they unlawfully finish what started out as an 80 percent lower in one of two ways.  First, it is a serious felony under New York law to possess any handgun, even in one’s own home without a handgun license.  Once you complete the 80 percent lower into a handgun a person who doesn’t have a pistol license possesses an unregistered and unlicensed firearm, referred to by many politicians as a “ghost gun”.   The fact is that getting a handgun license in many New York counties, especially during the pandemic could take a year or more.  In addition, fully manufactured guns were hard to come by.  Some people took matters into their own hands and completed 80% lowers into functioning handguns.

Possession of a handgun without a license in your home or place of business is a class “E” felony punishable by up to 4 years in prison.  Possession of a loaded unlicensed and unregistered handgun outside your home or place of business is a class “C: violent felony and carries a mandatory minimum sentence of 3.5 years in State prison with a maximum sentence of 15 years.  Possession of 3 or more firearms makes it a “D” felony and possession of 5 or more firearms makes it a “C” felony.

In a recent New York gun case, the court in its decision denied the defendant’s appeal. Originally, the defendant was convicted of criminal possession of a weapon after he had an altercation with a woman on the side of the road. On appeal, he argued that there was not enough evidence to support the guilty verdict. The court sustained the verdict, disagreeing with the defendant’s main argument.

Facts of the Case

The incident leading to this case unfolded one evening in 2017 when the defendant was charged after he got into a fight with a woman on the street. According to the victim, she and a friend were walking one evening when they were almost hit by a red car that appeared to be recklessly driving. The defendant in this case emerged from the passenger seat, beginning the altercation between the defendant and the victim. The defendant punched the victim in the face, grabbed her purse, and ran to the car. At the same time, the victim saw the defendant grabbing what appeared to be a gun.

The defendant then yelled at the victim, “I’m a shooter” and ran away. Several hours later, police officers found the defendant and searched his home. During this search, officers found a loaded handgun hidden in a boot. Later, the defendant was indicted and charged with criminal possession of a weapon in the second degree, menacing in the second degree, and assault in the third degree.

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We wrote a very popular blog about whether you can take your lawfully possessed pistol on vacation with you in Puerto Rico, subsequent to the easing of gun laws in Puerto Rico.  Now we explore the gun laws in the US Virgin Islands and in particular whether you can take your pistol to St. Thomas, St. John and St. Croix.

At first glance, the US Virgin Islands appears to have extremely liberal reciprocity laws however that appears to be far from reality.  A review of the USVI Police website clearly indicates that visitors are required to declare their firearms before arrival in the US Virgin Islands and to immediately report to the US Virgin Island Police Substation upon

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USVI Police Airport Substation

In a recent New York case involving a defendant who was convicted of possession of a controlled substance and criminal possession of a weapon, the court reversed the original lower court’s guilty verdict. On appeal, the defendant argued that incriminating evidence found by police officers should have been suppressed since the officers did not have reason to believe they could search through his private apartment. The court agreed with the defendant, reversing the judgment in the case.

Facts of the Case

According to the opinion, police officers originally responded to a 911 call made by a woman who reported that her roommate was unconscious on the floor of their apartment. A team of officers and medical personnel arrived at the apartment and discovered that the unconscious woman had died on the floor of the bathroom.

Soon after discovering the woman was dead, an officer decided to conduct a brief search of the residence. As he looked around, he found a digital scale, some powdery residue, and a bag with illegal drugs in the bedroom. Based on these findings, officers proceeded to obtain a warrant to search the entire apartment. They found not only illegal drugs but also a handgun, and the defendant was ultimately charged and convicted for criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree.

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As New York gun rights attorneys we are carefully monitoring an increasing regulatory environment of everything related to firearms and an increasing number of gun owners who are receiving letters from law enforcement.    Recently we were consulted by a person who received a letter from the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) concerning a solvent catcher that he had purchased years ago.

The problem arises due to the National Firearms Act (NFA) which put suppressors or silencers as they are commonly known in the same category of fully automatic machine guns and sawed off shotguns, making them highly regulated and requiring a background check, tax stamp, and long wait to legally own.  The do-it-yourself market which has become a lucrative market in general has also become popular among firearms enthusiasts many of whom enjoy building, modifying and customizing firearms and gun parts.  The same is true for the suppressor industry.

In an August 2019 article in the Verge, an article in which I was quoted, the writer details the wide availability of items such as “solvent traps”, “flashlight tubes”, barrel shrouds, fuel filters and solvent filters that can be used to make suppressors or silencers.  In addition, a search on Amazon for solvent trap at the time of writing this article produced a variety of items including a 1/2X28 tap and die set ideal for threading a 9mm barrel and a device for attaching to a 9mm barrel.

In October we wrote an extensive blog about the legality of 80% Lowers in NY and indicated at that time that the law in New York could be changing on eighty percent lowers because legislation was pending in Albany.  Well later the same day that we here at  Tilem & Associates posted that blog, Governor Kathy Hochul signed a package of new legislation which changed the legality of 80 percent lowers in New York.

Among the changes are the fact that that it will be illegal to possess an unfinished receiver or an unfinished frame often referred to as an eighty percent lower.   It becomes illegal to possess these unfinished frames or receivers from six months after the date the law becomes effective.  Unfinished frames and unfinished receivers are defined very broadly under the law and include any material that doesn’t constitute a receiver or frame but which has been formed and/or shaped to allow it to become a frame or receiver for a shotgun, rifle or pistol and which can be “readily” made into a receiver or frame that is functioning.   What readily made means is not defined so it is unknown if a receiver that is 70% finished, 60% finished or only 20% finished would be legal.

The new law makes it a crime to possess unfinished receivers or frames and makes it a separate crime to sell unfinished receivers or frames.  This would seemingly make it illegal for internet sellers of firearms parts to sell polymer 80 or other 80% lowers and ship them into New York State.

In a recent opinion involving a New York gun possession conviction, the defendant’s motion to suppress was denied. On appeal, the defendant attempted to establish that the police officers who found a firearm in his backpack did not have the right to search him in the first place. The court disagreed, denying the motion to suppress and affirming the defendant’s conviction.

Facts of the Case

According to the opinion, a police officer and his partner were patrolling the streets at approximately 11:00 pm one evening. While inside their vehicle, the pair received a radio call reporting that an individual had been shot nearby. The radio call specified that at the scene of the crime, there was a “Black male wearing a white t-shirt” with a backpack. According to the call, the male in question was carrying a gun.

Less than a minute later, the officers arrived at the location of the shooting. Upon a search of the area, it appeared to the officers as though no one had been shot. The officers did see, however, that a woman nearby was standing close to the defendant, a Black male wearing a white t-shirt. The woman was yelling at the defendant, accusing him of threatening her with a gun.

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Recently, a New York court denied a defendant’s motion to suppress incriminating statements but granted his request for a new hearing in a drug and firearms case. The defendant had been indicted and tried for possession of firearms and controlled substances, but he appealed the verdict by saying that his statements to police officers should have been suppressed. The court denied this motion to suppress but did grant the defendant another hearing based on a second argument he made – that the court did not properly consider whether the DNA evidence used against him was properly analyzed. The court thus reversed the verdict and sent the case back down to the lower court for a new trial.

Facts of the Case

According to the opinion, police officers in Brooklyn (executing a search warrant they had previously obtained) entered the defendant’s apartment to conduct an investigation. Pursuant to police department policy, the officers handcuffed the defendant upon entry. While inside the apartment, a detective asked the defendant his name, date of birth, address, height, and weight. No Miranda warnings were given prior to this line of questioning. At that point, the defendant stated that his children’s mother was letting him stay in the apartment. He also motioned toward a bed in the living room.

After the defendant left his apartment, the officers found weapons, drugs, and drug paraphernalia in one of the apartment’s back bedrooms. The defendant was later indicted and tried on several counts related to the possession of firearms and controlled substances.

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As New York Self Defense lawyers, and as the providers of the only pre-paid legal plan for gun owners available in New York, we actively monitored the Kyle Rittenhouse case with both shock and amazement.  Shock at the fact that the case was brought but also amazement at the lengths the prosecutor would go to get a conviction.  To be clear, the jury verdict was correct and Kyle Rittenhouse appeared justified to use deadly physical force to protect his own life.  At the very least, it is clear, that there was a reasonable doubt about whether he reasonably believed that deadly physical force was necessary to protect his own life, thus justifying the jury verdict.

The prosecutions’ own witnesses largely helped the defense.  The testimony of the only surviving “victim” Gage Grosskreutz was critical for the prosecution but turned out to help the defense case when he admitted that Kyle Rittenhouse didn’t shoot him until he pointed a weapon at Rittenhouse and advanced toward him pointing a gun.  The testimony of another prosecution witness, Richard McGinniss, also severely damaged the prosecution’s case when he testified that Joseph Rosenbaum, who was shot and killed by Rittenhouse seemed very angry as he lunged for Rittenhouse’s gun.  Presumably, the prosecutor knew what these witnesses were going to say.  Presumably, the prosecutor had interviewed these witnesses and prepared them for their testimony and cross-examination.  Yet the case was brought anyway.

Additionally, the prosecutor’s cross-examination of Kyle Rittenhouse himself, shows a certain level of desperation.  The prosecutor asked Mr. Rittenhouse about his post-arrest silence, a clear no-no which provoked a severe rebuke from the judge.  That line of questioning was really bewildering considering that even a first year law student who has taken basic Constitutional Law would know not to ask a defendant about his post arrest silence.  Then the prosecutor, in violation of the trial judges pre-trial rulings went into an area of questioning that he was specifically ordered by the judge not to ask.  However, one of the most surprising and truly desperate questions came when the prosecutor asked Rittenhouse if his user name on TikTok was “4doorsmorewhores” in an attempt to make him look dirty.

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