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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.

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.”

Vaccine cards have become commonplace in New York, throughout the US and indeed the world.  Like everythingVaccine Card Sample else of value, there has been a black market in fake vaccine cards that has evolved and has taken hold as the vaccine becomes mandatory in so many places.  To make matters worse, as the vaccine initially rolled out, there was an emphasis in getting as many people shots in the arms as possible and not necessarily an emphasis placed on how people could prove that they were vaccinated.  The result, was flimsy, hand written vaccine cards written often sloppily by whoever gave the injection without any nationwide standards for the type of vaccine cards.  To make matters worse many people crossed state lines to try to get the vaccine faster.  Among all of the chaos and the black market in fake cards the question remains, is it illegal to use a fake vaccine card?

In late August a New Jersey woman was arrested and charged in New York City with selling fake vaccine cards for $250 each.  The woman, who  used the name AntiVaxMomma on social media was charged with multiple felonies including Criminal Possession of a Forged Instrument in the Second Degree.  For an extra $250 an accomplice who worked at a medical facility entered peoples names into the New York State Database.  While the pair has been arrested neither has been indicted and neither has been convicted of any crime.  Both are presumed innocent.

Criminal Possession of a Forged Instrument requires that the prosecution can prove that a person knew that the card was forged and possessed the card with the intent to deceive, defraud or injure someone.  New York, specifically rejects an approach that is used in many other states that the unexplained possession of a forged instrument creates a rebuttable presumption of knowledge that it is forged.  Therefore, the prosecution would need to be able to prove, beyond a reasonable doubt, that the person was aware that the instrument was forged.   In addition, to be charged in the Second Degree, which is a felony, it must be a certain type of forged instrument such as a prescription, a deed or will, a public record or a document required to be filed with the government, a government issued identification or government issued document, subway tokens or transfers, or currency.

As we wrote in our blog on March 12, 2021 Jerry from Jerry’s Firearms in Suffolk County was arrested.  At that time there was speculation about the charges and whether Jerry was arrested for selling “other” weapons that the Suffolk County Police decided violated New York’s Safe Act or whether Jerry was arrested for record keeping violations.  It now appears that the answer is both.

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Franklin Armory Other

In late May 2021 the Suffolk County Police began sending unsigned letters to purchasers who bought the Delta Level Defense CT4-2A, other firearm that demanded that the purchaser call the Suffolk County police to schedule an “inspection” of the gun.  Since May, at least one other round of letters has gone out.  The letter indicates that those who comply will not be arrested and rumors have been circulating that the Suffolk county Police have threatened those who took the guns out of state or modified them with arrest for tampering with evidence.  It has become clear that the Suffolk County police consider these firearms illegal and Jerry has been charged with a class “B” violent felony for selling 10 or more of these firearms.  He faces up to 25 years in prison.

As New York’s Premier Second Amendment lawyers we eagerly awaited President Joe Biden’s Executive Orders today so we can analyze its effect on our clients.  In reality, today’s announcement had no effect on our clients and really had no effect on any gun owners.  The only people affected seem to be the people who write regulations for the ATF.

To be sure, there were no surprises in the announcement today except the for lack of details after over 2 months in office.  For example, one of the centerpieces of today’s announcement was that the ATF will have 60 days to propose a rule about pistol braces and when such devices will turn a pistol into a short barreled rifle that would be regulated under the National Firearms Act.  However, as we wrote in our December blog, such a rule was already proposed as recently as December, less than 4 months ago and quickly withdrawn under pressure from Congress.  Surely, the ATF could have had something written by now having already written a regulation on the same topic just three and a half months ago.

The other centerpiece of today’s announcement was a direction that the ATF propose rules regarding “ghost guns” within 30 days.  The announcement cites, without any evidence, the proliferation of “ghost guns” that are supposedly being completed by criminals to use in crimes.  It is hard to imagine what such a regulation would look like or how the ATF would regulate an unfinished block of aluminum or polymer.  Will a block of aluminum be considered a firearm if it is 70% complete, 60% complete or 40%?  It is also hard to imagine why after more than 2 months in office no details about any regulation were given or why it would take 30 more days to write such a proposed regulation.

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.

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.

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