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In yet another victory in a New York firearms case, a Tilem & Associates client arrested in New York’s LaGuardia airport in September with an alleged “high capacity” magazine had all felony charges dismissed and only pled guilty to a non-criminal disorderly conduct, a violation but not a crime under the New York State Penal Law and paid a $250 fine. The record will be sealed.

New York State bans the possession of what it calls a “Large Capacity Ammunition Feeding Device.” NY Penal 265.00 (23). A Large Capacity Magazine Feeding Device is defined as “a magazine, belt, drum, feed strip, or similar device, that (a) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition, or (b) contains more than seven rounds of ammunition, or (c) is obtained after the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision and has a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition . . .” Boiled down, and there are some exceptions, New York defines both a capacity limit and a load limit. Under New York Law, as written, one could either not possess a magazine with a CAPACITY of more than 10 rounds but if one had an old magazine with a ten round capacity one could only LOAD up to seven rounds into that magazine. An empty magazine with a capacity of more than 10 rounds is a class “D” violent felony under New York Law punishable by up to seven years in prison.

In the Federal case of NEW YORK STATE RIFLE AND PISTOL ASSOCIATION INC LLC v. Gerald J. Gill, the United States Court of Appeals struck down the seven round load limit finding it violated the Second Amendment but left the 10 round magazine capacity limit in place.

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For those driving their kids to school at Binghamton or Syracuse Universities or taking summer vacations in upstate New York, Tilem & Associates is pleased to offer a limited time offer to help  out with those inevitable but costly traffic tickets.  With the cost of traffic violations  through the roof and the summer driving season  in full swing drivers need experienced legal representation that they can afford.  For a limited time and in limited locations we are offering legal representation on traffic infractions for only $285 in Broome, Delaware, Lewis, Onondaga, Oswego and Seneca Counties.  Those Counties contain the below Cities,  Towns and Villages that will be handling a lot of traffic tickets that are issued over the summer.

CONTACT US NOW TO TAKE ADVANTAGE OF THIS SPECIAL BEFORE TIME RUNS OUT!

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Broome County: Barker, Binghamton, Chenango, Colesville, Conklin, Dickinson, Fenton, Kirkwood, Lisle, Maine, Nanticoke, Sanford, Triangle, Union,

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New York has banned the possession of stun guns by listing them as “per se” weapons in the Penal Law. Possession by a civilian even in a person’s home constitutes Criminal Possession of a Weapon in the Fourth Degree, a class “A” misdemeanor, punishable by up to one year in jail. There is no license available for civilians to be able to possess stun guns. Rather New York, like Massachusetts and New Jersey have a total ban on civilian possession of stun guns. However, last month, in the first Second Amendment case decided by the Supreme Court in years and in a stunning rebuke of the Supreme Judicial Court of Massachusetts, the United States Supreme Court struck down Massachusetts’ total ban on stun guns and found that stun guns, like any “bearable arms” are subject to the protections of the Second Amendment.

In Heller, in 2008 the United States Supreme Court ruled that the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Bearable arms, is a very broad term that encompasses much more than firearms which are the usual focus of Second Amendment jurisprudence thanks in large part to the National Rifle Association and other similar groups. As a result of the focus on firearms very little has been written about other “bearable arms.” Two years later in McDonald, the Supreme Court ruled that the Second Amendment is fully applicable to the States.

In the case of CAETANO v. MASSACHUSETTS, decided last month by the US Supreme Court, the Court criticized the Supreme Judicial Court of Massachusetts’ analysis of the Massachusetts stun gun ban. The Massachusetts high court offered three explanations for why stun guns were not protected by the Second Amendment and the US high court rebuked them for each one explaining that each reason given was inconsistent with the Heller decision. First, the Massachusetts Court tried to explain that Stun Guns were not in general use at the time of ratification of the Second Amendment despite the fact that Heller specifically rejected that argument in 2008. Next the Massachusetts Court argued that Stun Guns were not adaptable for military use another argument specifically rejected in Heller. Lastly, the Massachusetts Court suggested that Stun Guns were an unusual weapon an argument that the Supreme Court equated with the first argument that they were not around during the time of ratification of the Second Amendment.

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As New York Criminal Defense Lawyers we have sounded the alarm on numerous occasions about the draconian enforcement of New York Knife laws by New York City Police Officers and the 5 New York City District Attorney’s Offices. Now an amendment to the New York State Penal Law may severely restrict those arrests if the bill passes the full Senate and the New York assembly. The scope of the problem is enormous. A report in the Village Voice found that more than 60,000 individuals have been arrested for possessing common pocket knives.

The problem stems from the definition of a “gravity knife” found in New York Penal Law 265.00(5). The definition essentially includes as a gravity knife, any lock back knife that can be opened by the application of centrifugal force. That is to say that if a 250 pound police officer can “flip” opened a knife, the knife can be a considered a gravity knife.

The proposed fix to the law would require prosecutors to prove “unlawful intent” before they can convict someone of Criminal Possession of a Weapon in the Fourth Degree to convict for possessing a Gravity Knife.

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Introduction

As experienced New York Second Amendment Lawyers we often think that we have seen it all but recently we handled a gun case using the Law Enforcement Officers Safety Act (LEOSA) also commonly called HR218 as a defense to New York State gun charges under some unusual circumstances. Just as a primer, the Law Enforcement Officers Safety Act (LEOSA) is a federal law that provides a defense to State weapons charges for both active law enforcement officers and “qualified retired law enforcement officers.” Essentially it gives Law Enforcement Officers and Retired Law Enforcement Officers the right to carry a firearm in all 50 states. Despite this well established Federal Law a gentleman who was both a Special Police Officer for the Sheriff’s Department and a retired Police Officer was arrested and charged with Criminal Possession of a Weapon in New York for having three unregistered handguns in his home.

Two questions that I immediately raised when I became the client’s third attorney were firstly, how can a law enforcement officer, a peace officer, a special police officer under New York law who according to the New York State Penal Law (PL §265.20) is exempt from prosecution be prosecuted in a New York State Court and secondly, how could the police, the prosecutor and the two prior criminal defense attorneys have missed these obvious defenses. Sadly, despite the successful conclusion of the case and the successful conclusion of the County’s futile attempt to revoke his pistol license, I still do not know the answers to my question.

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New York Criminal Defense Attorneys Tilem & Associates in a high profile case in Westchester County successfully negotiated a plea deal for a client charged with criminally negligent homicide in the death of a 6 year old and helped the client avoid a jail sentence.

Homicide. Murder. Negligent homicide. Manslaughter. In the wake of the loss of a life, one may wonder, exactly what the difference in the terms mean? While the words can be confusing, there is an important difference between each charge. Homicide means conduct which causes the death of a person. The difference between murder, negligent homicide and manslaughter all depend on the culpable mental state alleged to be involved with the death of another. In another words did the person intentionally cause the death of someone or did they do so recklessly or with criminal negligence.

The statute, N.Y. Pen. Law § 125.10, spells out criminally negligent homicide in New York. Criminally negligent homicide represents the least serious of all homicide offenses in New York and in fact is the lowest level felony in the New York Penal law. The charge of criminal negligence means that person has failed to perceive a substantial and unjustifiable risk that a particular result will occur or that a particular circumstance exists. The risk is usually of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. This charge is used when the accused lacked the intention of killing the victim, but should have known better than to complete acts which resulted in the victim’s death.

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New York Criminal Lawyers Tilem & Associates have been seeing an increase in the enforcement of economic crimes generally and insurance fraud cases more specifically, especially as those cases pertain to Disability Fraud and Workers Compensation Fraud (collectively known as health care fraud). Currently, the firm is involved in a jury trial, defending a person accused of Workers Compensation Fraud. As violent crime has fallen, prosecutors and law enforcement officers have definitely turned their attention to fraud cases but these types of cases can be difficult to prove and filled with pitfalls.

In addition, enforcement by the government can take many forms including the above mentioned criminal prosecution but enforcement can also take the form of civil or administrative proceedings to terminate benefits, seek repayment of benefits paid out (restitution) or impose civil statutory penalties. These types of proceedings each have nuances and complications and a person who finds themselves the target of any investigation or enforcement action should seek an attorney experienced with disability or workers compensation fraud cases and not just go back to their prior attorney who helped them obtain the benefits.

In the criminal trial currently pending in Bronx Supreme Court, our client is accused of fraud for obtaining workers compensation benefits based upon Post Traumatic Stress Disorder (PTSD). While the client was collecting benefits and stating that s/he was a prisoner in her own home and unable to leave her home, the government alleges that she went on cruises and was earning income doing odd jobs for others. Highlighting the complexity of these cases, attempts to cut off the client’s workers compensation benefits before her arrest were unsuccessful and the client still collects benefits to this date despite her arrest almost two years ago.

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New York firearms attorneys Tilem & Associates have been following the increasing number of guns recovered at US airports and more specifically the guns being recovered at local airports such as LaGuardia, Kennedy and Newark with sometimes devastating consequences. As reported in the New York Times in June 2014, from 2011 until June 2014 the TSA had seen a steady rise in guns recovered by screeners in airport security lines. TSA is now reporting another 20% increase in 2015. While a majority of these guns are recovered in places with relatively lax gun laws such as:

Dallas/Fort Worth International Airport — 153 guns recovered

Hartsfield-Jackson Atlanta International Airport — 144 guns recovered

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New York gun crimes law firm Tilem & Associates is pleased to announce another victory in a firearms related case, winning a full dismissal of all charges after a person was charged with possessing handgun ammunition and a handgun magazine at JFK airport. As reported almost 6 years ago in our blog about New York City’s ban on commonly possessed items, possession of handgun ammunition and ammunition feeding devices are illegal in the five boroughs of New York City under New York City Administrative Code Section 10-131. That section makes it a misdemeanor, to possess these items punishable by up to one year in jail.

The difficulty with section §10-131 is that it is very long, containing a large number of subdivisions, poorly written and has a large number of exceptions written into the statute. §10-131 subdivision (i)(3) states in pertinent part: “It shall be unlawful for any person not authorized to possess a pistol or revolver within the city of New York to possess pistol or revolver ammunition, provided that a dealer in rifles and shotguns may possess such ammunition.”

In the case at JFK airport, the police officer in the accusatory instrument alleged only, in pertinent part that “. . . at Terminal 5 – JFKIA main screening Lane 13, suspect was in possession of two magazines holding six rounds of 9mm ammunition in each.” Yet, it is a well settled principle of New York law that where an exception is contained within a statute the prosecutor or the police are required to disprove the exception. In this case for example the police would have been obligated as a matter of law to establish that the accused was not a dealer in rifles and shotguns. Since the police failed to make that accusation, the accusatory instrument was insufficient as a matter of law and needed to be dismissed.

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New York Criminal Defense law firm, Tilem & Associates has seen an increase in the number of Reckless Driving tickets and other related moving violations, which is consistent with recent media reports that a crackdown on hazardous driving is underway by the NYPD. According to the media a 24 hour per day, 7 day per week crackdown will target drivers who speed, run red lights and use cell phones or other portable electronic devices. These violations which are among the most common also carry the most points and can have the greatest impact on a driver’s license and a driver’s insurance rates. A reckless driving ticket carries 5 points and is a criminal offense under New York Law, a cell phone ticket, which up until several years ago was a no-point violation now also carries 5 points. Speeding tickets can carry anywhere from between 3 and 11 points and Red light tickets carry 3 points. A motorist generally loses their license at 11 points.

The latest NYPD reckless driving crackdown is consistent with Mayor de Blasio’s “Vision Zero” plan which has the goal of eliminating traffic fatalities and comes after a serious accident left a pedestrian serious injured after crossing Linden Boulevard in Brooklyn earlier this week.

“The good news for motorists is that an experienced traffic lawyer can generally get substantial reductions in the points associated with tickets and very often eliminate the points altogether,” according to traffic lawyer Jasmine Hernandez. “An experienced traffic lawyer can especially have the greatest impact on reckless driving tickets which are among the most serious,” according to Ms. Hernandez.