Covid-19 Update: At Tilem & Associates our lawyers are committed to protecting your rights, serving our clients and keeping you safe.

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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.

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.

With Corona Virus (Covid-19) restrictions increasing just a week before Thanksgiving and the Governor of New York dictating how many people may attend a Thanksgiving Dinner at your house it is worth reviewing what rights you have if police unexpectedly show up at your door.  This situation could arise for a variety of reasons including a crime committed nearby having nothing to do with you and the police just wanting to canvass the area for witnesses and/or cameras or a noise complaint or some other complaint called in by your neighbors.    Often police may accompany a Child Protective Services (CPS) worker responding to a child abuse or neglect report or the police may sometimes knock and ask questions about a missing child, or adult.  In any case, it is important to understand your rights.

Firstly, Courts recognize the right of the police officers to approach your door and knock or ring the door bell.  Secondly, it is important to recognize that police officers are people, just like anyone else.  There job is difficult and important and they should be treated with courtesy and respect at all times.   It is also essential that you not give a police officer or anyone else that comes to your door any reason to fear for their safety by making any sudden movements or answering the door with a visible weapon.

There is absolutely no requirement that you answer the door if the police knock.  Just as if a police officer were to approach you on the street you have no obligation to speak to the officer and no obligation to answer the door.  The police officer may not enter your home except with your consent, with a search warrant, arrest warrant or in some very narrow exceptions to the warrant requirement.  Rarely, will police officers have a warrant and then casually knock on the door.  If they have a warrant they will either break down the door without  knocking or announce that they are the police and that they have a warrant and that they will breakdown the door if you don’t open the door immediately.

The COVID-19 pandemic has had an extraordinary impact on the lives of all Americans. It seems as though almost every aspect of life has changed, seemingly overnight. As New York Criminal Defense Lawyers we are very concerned about the impact on the New York criminal justice system. In the wake of the pandemic, New York courts all but shut down, hearing only emergency matters. This took a serious toll on the effectiveness of the state’s criminal justice system. Indeed, jury trials have been delayed for months, and courts are getting overwhelmed as new cases continue to come in. Even since courts have started to reopen, concerns around the effective administration of justice remain—chief among these being the ability to get a fair jury trial during the COVID-19 pandemic.

While all New Yorkers are hopeful that the worst of the pandemic is in the rear-view mirror, New York is still struggling to return to a level of normalcy even as safety measures remain in place.  These safety measures can substantially interfere with a defendant’s due process rights and their ability to obtain a fair trial.

The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to a speedy and public trial by an impartial jury and “to be confronted with the witnesses against him,” and “to have compulsory process for obtaining witnesses in his favor.” However, each of these rights may be seriously hampered by the restrictions in place during the COVID-19 pandemic.

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.

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