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Articles Posted in GUN CRIMES

Recently, a state appellate court released an opinion in a New York gun case requiring the court to determine if the officers’ search of the defendant’s car, which was parked outside his home, was within the scope of the search warrant. Ultimately, the court determined that the defendant’s car was not covered by the search warrant and ordered the suppression of all evidence obtained from the vehicle.

The Facts of the Case

According to the court’s opinion, police officers were investigating the defendant for selling heroin from his home. Officers watched on several occasions as the defendant and another man would walk out of the defendant’s home, meet up with someone who pulled up in a car, and exchange items for money. The officers also arranged a controlled buy.

Taking the information they gathered during their investigation, the officers obtained a search warrant. Specifically, the warrant affidavit claimed that there was probable cause to search the defendant and his home. However, when officers arrived to execute the warrant, they also searched his car, finding a loaded gun and other drug-related evidence.

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New York’s premier second amendment law firm announced that a Massachusetts licensed gun owner who was

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Mass has very strict gun laws

arrested for bringing his licensed pistol into Manhattan won a five-year battle to clear his name yesterday after the Appellate Division ruled that the police violated the gun owners Fourth Amendment rights after they stopped a vehicle that he was a passenger in for allegedly running a red light.  Tilem & Associates, PC,  won the decision suppressing the gun and ordering the indictment dismissed after they appealed the denial of the suppression motion and ultimate plea on behalf of the licensed gun owner whose first name is Sandley.  You can read the appellate court decision here.

Earlier this month, a state appellate court issued an opinion in a New York firearms case, reversing the lower court’s decision to grant the defendant’s motion to suppress. The case required the court to determine whether the police officers’ actions leading to the defendant’s tossing of the gun were justified.

The Facts of the Case

According to the appellate court’s recitation of the fact, police officers received a call describing a group of men, two of whom had “guns out.” The 911 caller told the dispatcher one of the men had on a tan-and-black coat, and another a black coat.

Officers responded to the scene to find two groups of men walking in opposite directions. One officer stopped a man in a tan-and-black coat, searched him, and found nothing. Officers then located the defendant, who was wearing a black coat. One officer followed the defendant, relaying his location over police radio.

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After our recent win in an ill-conceived Mossberg Shockwave prosecution earlier this year we would have thought that the issue of the legality of “Other” weapons in New York  would be resolved.  However, rumors started spreading late last week that a New York Licensed gun store owner and licensed dealer was arrested and charged with multiple felonies for selling AR-15 based “Others”.  Our law firm, is closely monitoring this case.

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Dark Storm Industries Non-NFA “Other”Weapon

According to information that we received, Jerome Rallo, the owner of Jerry’s Firearms in Bohemia, New York has been charged with multiple felonies under New York State law for selling illegal weapons including the top counts of Criminal Sale of a Firearm in the First Degree, a class “B” violent felony which carries a mandatory minimum of 5 years in prison and a maximum of 25 years in prison.

An appellate court recently issued a decision reversing a New York criminal defendant’s conviction for Criminal Possession of a Weapon. The defendant unsuccessfully moved to suppress evidence, the sawed-off shotgun, found to charge him with the crime, and the jury found him guilty. Amongst other issues, the defendant challenged the denial of his motion to suppress. The charges arose after police officers stopped the vehicle in which the defendant was a passenger. Officers discovered a sawed-off shotgun and then found a shotgun shell on the defendant.

The officers claimed that they initiated a search of the car after discovering a shotgun shell during a protective pat-down of the defendant. The officers claimed that this discovery provided them with probable cause to search the car, which led to the discovery of the shotgun. The defendant argued that the People did not provide any evidence to support this. He contended that law enforcement searched the car before the pat-down. The court found that even though the People raised arguments that may justify the search, the law does not permit the appellate court from considering those factors because they were not ruled upon by the lower court. Ultimately, they held the appeal and remitted the matter to the lower court for review.

New York firearm possession charges carry serious penalties, and it is crucial that criminal defendants seek representation from an experienced attorney. Those that do not possess a handgun license may be found guilty of unlawful possession. There are four main charges that are typically associated with firearm possession. In some cases, the court may enhance penalties depending on the circumstances and related charges.

Recently, a state appellate court issued an opinion in a New York gun possession case, discussing the defendant’s claim that the lower court erred in failing to provide the jury with a requested instruction. Ultimately, the appellate court agreed with the defendant, awarding him a new trial.

The Facts of the Case

According to the court’s opinion, police received a call stating that a man was shot. Police arrived on the scene, and found the defendant, bleeding from the back of the neck. Police entered the apartment, and found two guns. One of the guns, a submachine gun, was in an open drawer.

Several officers testified, as did the defendant. The testimony of each of the witnesses varied; however, the prosecution claimed that the defendant gave different stories to the responding officers and hospital staff. The prosecution proceeded under the theory that the defendant constructively possessed the firearm.

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As we wrote in our blog on September 11, 2017, we were of the legal opinion that the Mossberg Shockwave was legal to own and possess in New York.  Our opinion in 2017 was based upon the statutory definitions of a firearm, a pistol and a shotgun in New York as well as the opinions of the New Jersey State Police, the Suffolk County Police, and the BATFE.  However, up until last week no Court case had ever confirmed the opinion that Mossberg Shockwave is legal to own and possess in New York.  The reason that no Court case confirmed that opinion is because it appears that no one had been arrested for possession of a Mossberg Shockwave.  However, last week, as has been widely reported, a New York State Supreme Court Justice dismissed four counts in an indictment pertaining to the possession of two Mossberg Shockwaves in a person’s home that were discovered by the police who were executing a search warrant for computer equipment that was allegedly involved in an unrelated Harassment investigation.

Our client was originally indicted for possession of the two Shockwaves in New York City back in December 2018.  When our law firm was retained in May 2020, we immediately pointed out that although our client was indicted for criminal possession of two firearms the Shockwaves were not in fact firearms and that the ballistics report from the NYPD ballistics section that was used in the grand jury to prove that the client possessed operable firearms very specifically did not list the Shockwaves as firearms. Rather, the NYPD’s own ballistic expert described the Shockwaves as an “other weapon”, which is not prohibited by New York Law.  Despite the fact that the ballistics report described the Shockwaves as other weapons, the District Attorney’s Office submitted the ballistics report to the grand jury and used it to seek an indictment for possession of operable firearms.  Even after the District Attorney’s Office was caught in this blatant inconsistency and after we asked them to speak to their own expert who tested the Shockwaves, the District Attorney’s Office continued to demand that we file a written motion to dismiss, which was filed back in June.

In August, The prosecutor finally filed a written answer in which they consented to the dismissal of the Shockwave charges after reading our motion.  The client, had faced a mandatory minimum of three and one half years and had that possibility hanging over his head for more than 2 years until the charges were officially dismissed by the Supreme Court Justice, last week.

New York drug and gun offenses and convictions can have long-term repercussions, including lengthy prison sentences. Defendants must understand their rights after being arrested, charged, or convicted of a criminal offense. Additionally, it is vital that defendants understand the typical steps of a New York criminal case. Including, arraignment, pre-trial discovery and pre-trial motions, trial, and sentencing. An attorney is a critical resource during this complex process because decisions made during these steps may drastically change the outcome of a criminal case.

An appellate court recently issued a decision in the defendant’s appeal of his criminal conviction of possession of a weapon in the third degree. The case addressed several issues, including the validity of a court’s denial of the defendant’s motion to controvert a search warrant and suppress evidence. In this case, police officers pulled the defendant over for a defective headlight. The officer asked the defendant for his license and registration, and when the defendant rolled down his window, the officer detected the smell of marijuana. The defendant explained that he smoked marijuana earlier in the day. The officer shined his flashlight and noticed an expandable baton. The officer’s computer search revealed that the defendant had an arrest warrant; thus, the officer placed the defendant under arrest.

At the precinct, the officer told the defendant that a K-9 unit was searching the vehicle, at which point the defendant responded that “you can do that all you want, whatever’s in the car, the cars not registered to me, my prints aren’t on it.” The police then obtained and executed a search warrant on the car, where they discovered drugs and a weapon. At a suppression hearing, the court denied the defendant’s motion to suppress evidence and statements to the officers. The defendant then challenged the search warrant; however, the court denied the defendant’s motion. The defendant pleaded guilty; however, on appeal, the defendant challenged his appeal waiver’s validity.

A state appellate court recently issued a decision in a New York gun case, involving a defendant’s appeal of a jury verdict, finding him guilty of criminal possession of a weapon. The defendant appealed the jury verdict arguing that the New York Supreme Court erred in refusing to suppress evidence of a gun that the police seized during the stop. The defendant argued that the court should have suppressed the evidence because the police did not have reasonable suspicion to stop the car in which the defendant was a passenger.

According to testimony from the suppression hearing, an officer aiding another officer with a traffic stop heard several gunshots coming from north or northeast of the stop. The officer proceeded north, passing two intersections, but did not see any vehicles or pedestrians. When he passed through another intersection, he saw a vehicle with taillights moving slowly. The officer followed and stopped the car, stating that he was stopping the car to investigate whether anyone in the car committed a crime. The officer testified that there was less than a minute from when he heard the gunshot to when he saw the vehicle and less than two minutes from the gunshots to the stop.

Under the law, stops qualify as “seizures implicating the constitution” and require that the police officer has “reasonable suspicion” that the driver or any occupants in the vehicle committed a crime, are in the process of committing a crime, or about to commit a crime. Case law holds that vehicle stops are level three intrusions, which are forcible seizures. Level two intrusions are those that only require a “founded suspicion that criminal activity is afoot.” Courts must consider the “totality of the circumstances” to determine whether police conduct was illegal.

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.

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