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Articles Posted in GUN CRIMES

On December 18, 2020,  gun owners were rocked by proposed guidance from the ATF on the evaluation of the legality of pistol braces.   This guidance was of particular concern to New York gun owners who had pistol braces attached to AR style receivers and had thought that the guns they owned were neither rifles nor handguns and thus believed that these “others”  fell outside  the scope of the Safe Act.  I was  contacted by a client this week, who by way of example had a, AR style gun that had an 18 inch barrel and a 26 inch overall length.  As far as the ATF is concerned the new guidance would have no effect on this gun since there was no concern about this being a short barreled rifle regulated by the National Firearms Act (NFA).  However,  if the ATF classified a pistol brace as a stock, then there would be a concern that under New York law, the gun would be considered a rifle that was subject to the restrictions of the Safe Act.

ATF December 18th Guidance

The problem that prompted this is that while initially one company received a letter from the ATF approving a specific pistol brace.  The pistol brace market had gotten crowded with products many of which had not been approved by the ATF.

Last month, a state appellate court issued an opinion in a New York gun possession case, requiring the court determine if the trial court properly granted the defendant’s motion to suppress a firearm he discarded as police were following him. Ultimately, the court held that the defendant was not seized when he tossed the gun. Thus, the lower court’s granting of the defendant’s motion was reversed.

The Defendant’s Arrest

According to the court’s opinion, an officer responded to a call for gunshots. As the officer arrived on the scene, he saw an unidentified person a few blocks away. The officer lost sight of the potential witness, but gave a description of the person over police radio. Another officer then encountered the defendant nearby. Initially, the officer did not consider the defendant a suspect. However, as the defendant went through a pedestrian cut-through, the officer followed in her vehicle. As the defendant reached the end of the alley, he tossed a gun and ran.

The defendant filed a motion to suppress the weapon, as well as statements he made to law enforcement after his arrest. The defendant argued that he was seized without reasonable suspicion or probable cause when the officer followed him down the narrow pedestrian cut-through. The trial court granted the defendant’s motion, and the prosecution appealed.

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Recently, the New York Court of Appeals, New York State’s highest Court, issued an opinion, in a New York gun case, which reversed a lower court’s denial of a defendant’s motion to suppress evidence a gun. The case arose after a police officer stopped the vehicle the defendant was traveling in after his patrol car’s mobile data terminal (MDT) notified him of a “similarity hit.” In response to the similarity hit, the police officer stopped the vehicle and noticed a handgun on the floor in front of the seat the defendant was occupying. The police officer arrested the defendant, even though the car was not registered to him, and he did not have a warrant. At trial, the defendant moved to suppress the evidence that the police officer obtained from the stop.

The police officer testified that it was part of his “routine” conduct to enter license plates into his car’s MDT. In some cases, such as the one at hand, a similarity hit will occur, which notifies an officer that there is a similarity between a person with a warrant and a vehicle’s registered owner. The officer explained that the MDT generates these similarity hits based on the registered owner’s name, date of birth, and aliases. He further testified that he believes that the MDT generates hits based on parameters he was unaware of. In this case, the officer received a similarity hit, and without any other information, he pulled the car over. The officer admitted that after pulling the car over, he did not believe the driver was the subject of the warrant because the driver was female and the subject of the similarity hit, the registered owner, was a male. After discovering the gun and arresting the defendant, he realized that the individual with the warrant did not match anyone in the vehicle, or the car’s registered owner. The defendant’s motion to suppress the evidence obtained from the stop was based on the factual sufficiency of the basis of the stop.

Under New York law, if the state faces a sufficiency challenge, they must present evidence to establish that the stop was lawful. Generally, courts hold that vehicle stops are lawful if the officer has a reasonable suspicion that the vehicle’s driver or occupants have committed or are in the process of committing a crime. However, the state must point to specific facts, in conjunction with logical deductions, that point to the stop’s lawfulness. In most cases, reasonable suspicion inquiries are a question of law and fact. However, in cases such as this, the question is whether the state’s evidence meets the “minimum showing”, and is, therefore, a question of law.

A state appellate court issued an opinion in a New York gun possession case, last month,  requiring the court to determine if the police officers were justified in stopping the defendant’s vehicle for a traffic violation. Ultimately, the court concluded that the officer lacked any basis to believe that a crime had occurred and there was no probable cause to stop the vehicle. Thus, the court held the defendant’s motion to suppress should have been granted and suppressed the firearm.

The Facts of the Case

According to the court’s opinion, a state trooper ran the tags on the defendant’s vehicle. The response was: “CONFIRM RECORD WITH ORIGINATOR ** THE FOLLOWING HAS BEEN REPORTED AS AN IMPOUNDED VEHICLE —IT SHOULD NOT BE TREATED AS A STOLEN VEHICLE HIT — NO FURTHER ACTION SHOULD BE TAKEN BASED SOLELY UPON THIS IMPOUNDED RESPONSE **”

The trooper pulled the defendant over and, as he approached the vehicle, noticed a smell of marijuana and a burnt marijuana joint in the car. The defendant told the trooper that the car had previously been reported stolen, which may explain the message. The trooper searched both the defendant and the car, recovering marijuana and a loaded firearm under the driver’s seat.

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Recently, a state appellate court issued an opinion in a New York gun possession case discussing the defendant’s claim that officers searched him without possessing the necessary probable cause or reasonable suspicion. After reviewing the evidence and applying the relevant law, the appellate court agreed, finding that the defendant’s motion to suppress should have been granted. As a result, the indictment against the defendant was dismissed.

The Facts of the Case

According to the court’s opinion, police officers saw the defendant standing on the side of the road and mistook him for his brother, whom they knew had a warrant out for his arrest. As the officers approached the defendant, he fled on foot. Eventually, the officers caught up to the defendant and, upon searching him, found a loaded gun. Subsequently, the defendant made a statement admitting to possessing the gun.

In a pre-trial motion to suppress, the defendant argued that the officers lacked probable cause or reasonable suspicion to approach him. The defendant asked the officers about the existence of the warrants and whether the warrants were still valid. However, the defendant did not specifically ask to see the warrants and the prosecution did not produce them. The trial court denied the motion, and the defendant was later convicted.

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Earlier this year, a state appellate court issued an opinion in a New York gun possession case, requiring the court to review the lower court’s decision denying the defendant’s motion to suppress. After reviewing the facts and applicable legal principles, the court agreed with the court below, affirming the denial of the defendant’s motion to suppress a firearm that he discarded while being chased by police officers.

The Facts of the Case

According to the court’s opinion, a confidential informant told his parole officer that “two individuals would be in a specified area in a silver or gray Pontiac and would have a firearm in the vehicle.” Police officers traveled to the location, where they saw a vehicle matching the description provided by the informant.

While the police officers were following the car, they claim that the driver failed to signal at least 100 feet before making a turn. The officers pulled over the vehicle. The defendant was in the passenger seat. The officers asked the defendant several questions, claiming that he was slow to answer and seemed nervous. The officers asked the defendant out of the vehicle and immediately held his hands behind his back.

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Last month, a state appellate court issued a written opinion in a New York gun case, raising the issue of whether the defendant had standing to bring a motion to suppress the physical evidence in the case. Specifically, the defendant intended on suppressing a firearm that was found in a backpack. The lower court denied the defendant’s motion without specifying a basis. On appeal, the court determined it was unable to decide the case without having the benefit of the lower court’s reasoning. The appellate court remanded the case so the lower court could provide its reasoning.

The Facts

According to the court’s opinion, police officers found and searched a backpack that was in the back yard of a vacant house in Queens. Inside the backpack was a gun. The defendant’s godmother lived next door to the vacant house. At the time when the police found the backpack the defendant and seven other people were present in that home. Police officers arrested all seven people. Later, at the police station, the defendant admitted that the backpack and gun belonged to him.

The defendant filed a motion to suppress the gun, as well as his statement, from evidence. The defendant argued that the officers lacked a warrant or probable cause to search the backpack. In response, the prosecution argued that the defendant lacked standing to bring the motion. The court denied the defendant’s motion without providing any reasoning. On appeal, the court sent the case back down to the trial court so that court could clarify its holding.

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Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the defendant’s motion to suppress a weapon that police officers found in his car. The case presents a unique issue in that a federal marine interdiction officer – not a police officer – conducted the traffic stop. Ultimately, the court held that the stop was valid.

The Facts of the Case

According to the court’s opinion, a federal marine interdiction agent with the United States Customs and Border Protection was driving an unmarked car when he pulled onto the highway. As he did so, the agent noticed a pair of headlights approaching quickly in his rear-view mirror. As the lights got closer, the driver of that car slammed on his brakes to avoid hitting the agent’s vehicle. The agent noticed as the driver continued to drive erratically.

The agent called police on his personal cell phone to report the incident. At some point, the agent activated his blue-and-red emergency lights and stopped the car the defendant was driving. The agent waited with the defendant until the police arrived. Police searched the defendant’s car and found a gun.

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Tilem & Associates, New York’s premier law firm for gun owners is pleased to announce the creation of a new pre-paid legal program, NY Tac Defense,  for New York gun owners which includes legal representation for self-defense Pre-Paid Legal services for gun ownerscases and red flag (ERPO) cases for enrolled clients.  Clients enrolled in the NY TAC DEFENSE can pay either a low monthly rate of $38.50 per month or can enroll in a discounted annual plan which is $385 for the year and is the equivalent of getting two months free.

Peter H. Tilem, the owner of Tilem & Associates, PC, spent 10 years in the New York County District Attorney’s Office where he was assigned to work on a variety of cases which included gun cases and homicides.  Since entering private practice Mr. Tilem has represented a large number of gun owners and has been involved in many justification or self-defense cases.

As of May 2018, several insurance programs, including NRA Carry Guard and a USCCA (United States Concealed Carry Association) program were being offered in New York but were subsequently alleged to be violating New York insurance regulations.  Both programs and others have since pulled out of the New York market.  The NY TAC Defense Program is a pre-paid legal product that allows clients to retain the firms services and pre-pay the legal services so that if they need to hire a lawyer for a self-defense shooting the client will not need to come up with a large lump sum retainer of $50,000 or more to retain a law firm.  It is not insurance and therefore does not indemnify against any losses.  It is simply an opportunity to retain a lawyer in advance.

Earlier this month, a state appellate court issued a written opinion in a New York gun case, reversing a lower court that found the defendant’s motion to suppress lacked merit. In holding that the defendant’s motion should have been granted, the appellate court explained that the defendant’s conduct failed to provide the officer with probable cause to search the vehicle without a warrant.

The Facts of the Case

According to the court’s opinion, a police officer saw the defendant make a left turn without using a signal. As the officer initiated the traffic stop, the defendant pulled into a driveway. The defendant initially got out of the vehicle, but the officer told him to get back inside. The defendant was unable to open the window, explaining to the officer that it was broken. Eventually, the defendant moved to the passenger side, opened the door, and fled.

Once the officer caught the defendant, the defendant explained he ran because he had a warrant for his arrest. The officer went back to the defendant’s car, noticing the smell of marijuana. The officer looked through the car, finding small baggies and a substance that he believed was crack cocaine. The officer then obtained a warrant to fully search the car. Upon searching the vehicle, the officer found a semi-automatic handgun.

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