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As we have discussed in the past often in New York criminal cases suppression of the evidence may be your best (or only defense.  As has been widely reported in the media, all charges were recently dismissed against one of our clients after the Court granted our motion to controvert a search warrant and suppressed all of the evidence recovered during a search of our client’s house.  While in can be difficult to have a motion to controvert a search warrant granted by the Court, recent case law makes it easier to file and win such a motion.  When a motion to controvert a search warrant is granted, the Court is deciding that the search warrant was not valid and therefore the evidence obtained during the execution of the search warrant may not be used in Court.

Article 710 of the New York Criminal Procedure Law sets out the procedure to file a motion to suppress tangible evidence that is obtained  as a result of an “unlawful search and seizure.” The United States Court of Appeals for the Second Circuit, which covers New York State has established that a warrant must at a minimum have three components.  One is that the warrant must identify the specific crime for which law enforcement has established probable cause.  Then the warrant must particularly describe the places that are allowed to be searched and the things that may be seized with their relationship to the crime.

New York’s highest Court, the New York Court of Appeals has further refined New York’s warrant requirement.  (See,  People v. Brown, 96 NY2d 80).  At a minimum the warrant must particularly describe the places to be searched and the things to be seized.  The idea is to ensure that the police have no discretion in either the places to be searched or the things that are permitted to be seized.  Exploratory warrants that give police the discretion to look around for evidence are unlawful.  If either of those elements are lacking the warrant may be invalid and any evidence suppressed.  This is true even though a Judge has signed and authorized the search warrant.

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.

New York’s New Type of License – Semi Automatic Rifles

Among the new package of laws that were signed into law by Governor Kathy Hochul was the requirement to obtain a license before purchasing or acquiring a new semiautomatic rifle (other than an “assault rifle“).  The intention seems to have been to prevent the purchase of rifles by 18, 19 and 20 year old individuals but the law does much more. Notwithstanding, that the Ninth Circuit Court of Appeals in California has already ruled a similar California ban on 18, 19 and 20 year old young adults is unconstitutional.   Under S.9458/A.10503 Article 400 of the Penal law was amended to create a new type of gun license called a license for a semiautomatic rifle.  Similar to licenses to carry pistols the new law says that a license to purchase a semiautomatic rifle obtained outside of New York City will not be valid inside of New York City unless a special permit giving validity is obtained from the New York City Police.

The new law does not make it a crime to own or possess guns which were acquired before the effective date.  Rather, the new law makes it a crime to purchase or obtain a new semiautomatic rifle without having the new type of license.  The new licenses appear to be issued by the same licensing officers using the same criteria as license for handguns and is almost certain to back up and slow down the already overwhelmed system for obtaining handgun licenses.  The new licenses require recertification every five years.

On June 6, 2022, New York Governor Kathy Hochul signed 10 new gun control measures into law.  These laws were hurriedly written and passed and appear to be a knee jerk reaction to the tragedies in Uvalde and Buffalo but will have a heavy impact on the New York Second amendment community.  As New York Second Amendment lawyers we have been contacted by a large number of concerned citizens, firearms trainers and gun store owners about the impact of these laws.  Taken as a whole these may be the stupidest gun laws ever written.  Here is a brief summary of what passed and what it means with links to get more information about each one.  .

S.9458/A.10503 makes it a felony to either purchase a semiautomatic rifle without a license or sell a semiautomatic rifle to someone who does not have a license. The new law also raises the minimum age to buy a semiautomatic rifle to 21 years of age.  To read more about the law click here.

S.9407-B/A.10497 makes it a crime to purchase body armor except for individuals in “eligible professions”.  It makes it a felony to sell body armor to someone who is not in an “eligible profession”. To read more about this law click here.

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.

New York criminal law has a large number of crimes related to illegal gambling on the books.  Beginning January 8, 2022,  the New York gaming commission gave their approval to four operators to start taking online bets from anywhere in the State including from a person’s own living room a bar or from the street.  New York appears to be at least the 18th State to approve some form of online sports betting which has become increasingly popular in the last few years.  New Jersey, Pennsylvania and Connecticut already allow  online sports betting.  sports-betting-300x200

Last April, then Governor Cuomo authorized the New York State Gaming commission to start approving online gaming licenses as part of the State budget in an attempt to get such much needed extra revenue after the COVID lockdowns.  New York is taxing gross revenues made by online betting operators at a whopping 51% which is significantly higher than other States and is likely to generate significant revenue for New York.

The way was paved for online sports betting in New York in 2018 when the United States Supreme Court struck down a Federal ban on sports betting.  In 2019, New York allowed its brick and mortar casinos to start taking sports bets.  The problem is that the New York State Constitution bans gambling.  This means that even the Governor could not pass a law that allows online sports betting.  However, the Constitutional ban has several exceptions including the State Lottery, Horse Racing and up to 7 private casinos.  No exception is made for online gambling.  However, the State found a work around.  They will be storing the servers for the online sports betting at one of the 7 private casinos that is already authorized to operate in New York.

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.

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.

As New York’s premier Second Amendment Lawyers we are monitoring pending legislation to criminalize the

update

Click Here For A Critical Update on 80% Lowers in New York

possession and sale of 80% (Eighty Percent ) lowers in NY.  These unfinished frames have been a recent target of the anti gun crowd who often refer to these unfinished frames or receivers as “Ghost Guns.”  Currently there are no laws on the books in New York State that ban the sale or possession of 80% lowers however legislation is currently pending in Albany and a relatively recent and very ambiguous law was recently passed in New York City which makes in a crime to possess or sell an “unfinished frame or receiver.”

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