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A bill which would end the New York State Department of Motor Vehicles (DMV) practice of suspending driver’s licenses for unpaid fines and driver  responsibility assessments has past both the New York State Assembly and the New York State Senate and is currently awaiting the signature of Governor Cuomo. The new law, if signed could impact millions of New Yorker’s who are currently suspended for unpaid fines and fees such as Driver Responsibility Assessments.  In the 26 months from January 2016 until April 2018 New York issued nearly 1.7 million suspensions for traffic debt.  The suspensions create a cycle that is hard to get out of since, often, those with suspended licenses, cannot work to pay the debts.

Driving with a suspended license that is suspended based upon unpaid fines or driver responsibility assessments can constitute anywhere from a misdemeanor to a felony depending on a number of factors and can have serious consequences including mandatory probation and/or jail.

Similar laws that prohibit suspensions based upon traffic debt have already been passed in at least 9 states including large states such as Texas and California as part of a national trend to stop punishing poverty by eliminating cash bail and terminating suspensions based upon unpaid debts.

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.

There is no doubt that the Corona Virus Pandemic has disrupted every aspect of New York life.  This is especially true for New York lawyers practicing in New York Criminal Courts.  With New York Courts closed except for essential matters, New York criminal lawyers and their clients find themselves having to navigate a whole new landscape that is having a major impact on criminal clients.

Consider just a few facts:  New York Criminal Cases are often being adjourned into June or even July from March or April.  What about the constitutional and statutory rights to a speedy trial?  Under New York CPL 30.30 (1)(b), A prosecutor must be ready for trial within 90 days of the commencement of a criminal case where a client is charged with an “A” misdemeanor.  Which means that many clients should be getting their cases dismissed when the Courts reopen.  However, CPL 30.30 (4)(g), excludes from the 90 calculation periods of delay caused by “exceptional circumstances”.  While I know of no Court that has ruled on this issue yet, I do not think it will be too long before Courts rule that all of the time occasioned by the Covid-19 pandemic will be excluded under that section.  This may raise many issues for clients.

What about the DWI client that was arraigned on a DWI in February and had their license suspended pending prosecution under New York law.  We got her a hardship license so that she could drive to and from work but the client lost her job and so is not permitted to drive and her case has already been adjourned until June at the earliest.  Four months after the arraignment.

As Second Amendment lawyers in New York you would imagine that we are familiar with idiotic “gun control” laws.  Which is why an article in this month’s Ballistic Magazine about the twelve most idiotic gun laws caught my eye.  To be sure New York, along with neighboring New Jersey are well represented on this list.  So lets go through them

  1. New Jersey’s ban on hollow points.  Yes, believe it or not New Jersey wants everyone running around with full metal jackets.  Hollow points are illegal every place except at the place of purchase, your home, the range or hunting.  Although the law is so poorly written that expanding bullets like Federal Guard Dog and bullets with the tip filled with polymer like Critical Defense/Duty are legal.
  2. Back to New Jersey, New Jersey also treats BB guns and Antique Black Powder weapons as modern firearms.  You need the New Jersey State Firearms ID Card just to buy them.

As a New York Second Amendment lawyer I get asked all kinds of questions everyday about where and when people may carry their lawfully possessed firearm.  Most of these questions pertain to New York and Federal Law.  However, this week I was contacted with an interesting question.  Can a New Yorker who has a license to possess a firearm take his lawfully owned handgun on vacation with him in Puerto Rico.  After doing the research I learned that surprisingly, the answer was, yes.

Puerto Rico had some of the most restrictive gun laws in the United States prior to 2015.  In June 2015, a local Court ruled that Puerto Rico’s restrictive gun laws were unconstitutional.  For a brief time, Puerto Rico had no enforceable gun laws.  That decision was soon overturned and local and Federal Judges later found that the Puerto Rico’s gun laws were constitutional.  However, in recent years Puerto Rico had become increasingly dangerous especially after the hurricane wreaked havoc on the territory’s infrastructure.

In 2016, Puerto Rico had one of the lowest rates of gun ownership in the U.S. with only 225,000 firearms owned.  A rate of just 6.6 guns per 100 people.  At the same time, Puerto Rico had a murder rate of almost 4 times the national average and almost twice the murder rate in Louisiana which had the highest murder rate of any State.

In October 2019 we published a Blog which posed the question, “Is the NFA dead?  In the article we discussed several types of short barreled weapons which had been reviewed by the ATF and other law enforcement agencies and had been found to not be covered by the National Firearms Act.  In September 2017 we reported in an article about the Mossberg Shockwave and related firearms that such weapons were legal to purchase and own in New York despite the fourteen inch barrel.  However, in our article in October 2019, we discussed the Franklin Armory Reformation line of firearms which at that time were considered to be legal to own and purchase based upon an ATF determination that the firearms were not considered short barreled rifles or shotguns under the National Firearms Act.  However, today, the ATF issued new guidance.

In an “Open Letter” dated December 19, 2019, the Acting Assistant Director of the BATFE for Enforcement, Programs and Services, the ATF determined that Reformation firearms with barrels less than 18 inches are “Short-Barreled Shotguns” under the Gun Control Act, not the National Firearms Act.  It therefore appears that it is difficult to transport or transfer any Reformation firearm with a barrel length less than 18 inches.  According to the BATFE letter, this is the first firearm ever produced that the BATFE has classified as a Gun Control Act Short Barreled Shotgun.  This is notwithstanding the fact that the Reformation does not accept or shoot shotgun shells.

To refresh everyone’s recollection, the Franklin Armory Reformation line includes firearms with a full stock and short barrels but unlike traditional rifles have the lands and grooves cut straight, front to back.  A traditional rifle has the lands and grooves cut in a twisted pattern to impart a spin on the bullet as it travels through and leaves the barrel.  Since the Reformation does not have “rifling” it could not be considered a rifle and therefore was not subject to the provisions of the NFA that pertain to rifles.  In addition, because the barrel of the Reformation is not smooth and since it does not accept shotgun shells, it similarly cannot be considered a shotgun and therefore the provisions of the NFA pertaining to short-barreled shotguns also do not apply.

As New York gun rights attorneys we are starting to see cases involving New York Extreme Risk Protections Orders 490x280-redflag-landing(ERPOS) sometimes referred to as Red Flag Laws.  New York’s Civil Practice Law and Rules was amended to add a new Article 63-A which gives a Supreme Court Justice, sitting in the County where a person resides, the authority to take away firearms, rifles and shotguns from an individual without that person having been convicted of, arrested for charged with or even having committed any crime.  As a result, these laws, which seem to be sweeping the Country, and are now law in approximately 17 states are extremely controversial since a person can lose their constitutional right without committing a crime.

New York’s Extreme Risk Protection law gives the authority to file Petitions to remove guns to three different classes of people.  A police Officer, a family or household member and a school administrator are all eligible to file Petitions seeking an Extreme Risk Protection Order.

The procedure that is laid out by New York Law, CPLR sec 6341 permits one of the lawful Petitioners to file a Petition. Once a Petition is filed, if the Court finds that there is “Probable Cause” to believe the person is a danger to others or themselves, the Court can grant a temporary extreme risk protection order, ex-parte.  Meaning that the Court can grant the order without the accused knowing about it or without the accused being able to defend themselves.  Probable Cause is a very low standard just meaning that something is more like than not as opposed to proof beyond a reasonable doubt or proof by clear and convincing evidence.

As gun rights lawyers we try to keep the public updated on significant changes to New York gun laws.  Several new laws are going into effect in New York and gun owners need to be aware.

First, a new gun storage law was passed which makes it a misdemeanor for a gun owner that lives with children under 16 to leave the gun unlocked.  The measure amends penal law section 265.45 and leaving a gun unlocked when children live in the home is a class “A” misdemeanor punishable by up to 1 year in jail.  In addition, a new penal law section was added 265.50 which makes it a violation, punishable by 15 days in jail to leave a gun unlocked even if there are no children in the home.

Both of these safe storage laws are likely to be challenged and struck down because the United States Supreme Court has made it clear that the Second Amendment protects the right of a person to have a gun for self-defense.   By requiring that guns in your home be locked, the government is specifically preventing you from having an accessible gun for self defense.

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Guns, ammunition and magazines that were suppressed by the Judge

New York, Second Amendment attorney and NRA  Firearms instructor Peter Tilem scored a major victory in Rockland County Court earlier today, when the Judge holding a suppression hearing ruled that there was no probable cause for the arrest of his client and ordered 13 guns, hundreds of rounds of ammunition, and high capacity magazines, called “high capacity ammunition feeding devices” suppressed, meaning that they could not be used as evidence at trial because of the fact that they were illegally seized.  The decision came after an intense suppression hearing in Rockland County Court where two senior police officers testified about the circumstances surrounding the arrest and interrogation of both individuals charged in a 12 count indictment.

Following reports of shots fired on July 8, 2018, in the area of the New York – New Jersey border in Rockland County, police from both New Jersey and New York police departments located three individuals firing weapons which were lawfully purchased and possessed in New Jersey.  The handguns were unlicensed in New York and the individuals were found less than a 1/4 mile over the border in New York.  In addition, some of the weapons which were lawful in New Jersey violated New York’s “Safe Act” and magazines that were legal in New Jersey violated New York’s ban on magazines capable of accepting more than 10 rounds of ammunition.

New York has one of the most draconian and burdensome knife laws in the Country and as we have reported over almost a decade in this blog many innocent people have been caught up in New York’s knife law maze.  Last week, however, after several prior attempts at changing the law, Governor Cuomo finally signed a law that will change New York’s knife laws.1142076_knife_1

The Problem

As we wrote as early as 2010, the Manhattan District Attorney’s Office made a deal with several retailers in Manhattan, including Home Depot and other major retailers for them to pay a financial penalty and stop selling gravity knives in New York.  The problem was that these knives were being sold by companies who paid only a relatively small financial penalty while citizens, many african-american and latino youths were being arrested and given criminal records for buying these knives which were readily available.  In 2016, we wrote another blog about this problem after the Village Voice wrote an extensive article about it.  According to the Village Voice article, there had been as many as 60,000 arrests for gravity knives in the preceding 10 years which put gravity knives in the top 10 most prosecuted cases.  Village Voice analysis also seemed to indicate that a disproportionate number of African-Americans and Latinos were prosecuted for gravity knives.

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