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Articles Posted in Legal Terms Defined

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When it comes to New York assault cases, or homicides there are a number of  defenses that someone charged with the offense can assert. An affirmative defense is a defense which the person accused of a crime has the burden of proving by a preponderance of the evidence.  A defense, on the other hand must be disproved by the prosecution, beyond a reasonable doubt.  One of the most common defenses in New York aggravated assault cases is that of self-defense or as its called in New York Justification.  Justification is a defense that must be disproved by the prosecution.

Fist in the FaceIn New York, NY Penal Law 35.15 governs self-defense claims. The statute also includes a defense for those acting in the defense of others. Specifically, that statute requires that the actor possess an honest and reasonable belief that they are facing unlawful physical force, or an imminent threat of unlawful physical force.

The statute thus creates two essential elements of a New York self-defense claim. First, the actor was subject to unlawful force, or the actor honestly had a fear that they were about to face unlawful force. However, even if the actor believes this to be the case, the statute also requires that their belief be a “reasonable” one. This introduces an objective element into the claim, essentially asking the judge or jury to determine whether the defendant’s fears were reasonable under the circumstances.

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New York criminal lawyers understand that a conspiracy to commit a crime requires that the defendant agree with one or more other person to commit the crime.  Earlier this month, New York’s highest court issued a written opinion in a New York criminal case involving allegations that the defendant was guilty of committing conspiracy in the second degree. The case required the court to review the defendant’s actions leading up to the crime and determine if they constituted a conspiracy and tested the minimum limits of acceptable proof to establish a New York conspiracy. Finding that the defendant’s mere presence at the scene of gang meet-ups was insufficient to establish a conspiracy to commit a crime, the court reversed the defendant’s conviction.

ArsonConspiracy in New York Courts

In New York, when more than one person work together to commit a crime, they can each be held individually liable for the ultimate result. Thus, even if someone has only a minor role in the planning or execution of a crime, that defendant can be punished as though he committed the crime on his own.

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New York’s new sealing law which authorizes the sealing of up to one felony conviction and two total convictions went into effect in New York last week and is already creating new possibilities for those with old criminal convictions.  Up until recently a New York expungement law would be considered to be almost impossible.  After all as experienced criminal defense lawyers there is rarely a week that goes by without a call from someone asking about “expunging” criminal convictions and we as attorneys were frustrated with what used to be the answer; that there was no way of sealing old criminal convictions in New York.old_dl_for_sample_docs-300x150

Like all the uncertainty surrounding all new laws no one really knows how impactful CPL 160.59  will be.  One factor will be whether prosecutors routinely oppose applications to seal under CPL 160.59 or not.  The other will be what types of hearings are used by the Court and lastly how generous will the Courts be in sealing old convictions.

Another question pertains to the use of prior alcohol related driving convictions to deny people driver’s licenses.  The New York Department of Motor Vehicles (DMV) is currently applying a twenty-five year look back and denying those with three or more alcohol related driving convictions reinstatement of their driver’s licenses.  These revocations are essentially turning into lifetime revocations.  As we reported last month, our firm has already filed a lawsuit against DMV because we believe that prior DWI convictions cannot be used to deny people licenses if the Court (or the Department of Corrections)  has issued a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct.

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As New York Criminal Defense lawyers we are constantly called about expunging old New York Criminal records and over the many years I have been in practice it has been frustrating to inform people whose lives have been forever altered by an old New York criminal conviction that there was no mechanism to seal or expunge a criminal conviction in New York.  In the past we have offered half measures such as certificates of relief from civil disabilities or certificates of good conduct.  However, great news has arrived.  Beginning in October 2017 the New New York Criminal Procedure Law 160.59 will go into effect permitting a motion to be made to seal up to two criminal convictions including one felony.  This is welcome news for anyone whose professional life is being held back by a past mistake.Records_MAIN-300x200-300x200

New York Criminal Procedure Law provides for sealing of up to two criminal convictions and up to one felony.  Convictions for violent felony offenses, homicides, sex offenses and any conviction that requires SORA (Sex Offender Registration) are ineligible for sealing as well as conspiracy of attempts to commit ineligible crimes.  In order to qualify for sealing the applicant must not have been convicted of a crime in the preceding 10 years and any time spent in prison or jail in that 10 year period is added back into the 10 years.  For example if a person served 5 years in prison after a conviction they would need to wait 15 years before they could apply for sealing under CPL 160.59.

Procedurally, CPL 160.59 sealing requires that an application be made to the Court.  For a person sealing more than one conviction the sealing application must be brought in the Court where the most serious conviction took place.  The application must include a copy of Certificate of Disposition for each conviction (or an explanation of why one could not be obtained) and a sworn statement of the person seeking sealing that sets forth the convictions for which sealing is sought, whether other applications have been brought for sealing, and the reasons why the person is seeking the sealing.  The application must also include any other sealing applications that have been filed.  The entire package must be served on the District Attorney’s Office in the County in which sealing is sought.

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As New York Firearms Lawyers we are often asked about the legality of certain specific guns in New York given the very complex laws about what firearms may be owned in New York.  A relatively new pair of firearms present some very interesting legal issues given the current state of New York Law and just may fit into a loophole under existing New York gun laws.

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Mossberg Shockwave

The Mossberg Shockwave is a gun that has a barrel length of just over 14 inches and is a smooth bore (no rifling).  Its overall length is just over 26 inches and it has a magazine capacity of 5.  The shockwave is pump action and is fitted with a grip that appears to be a pistol grip that Mossberg refers to as a bird’s head pistol grip.

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New York Firearms Attorney Peter Tilem has been named to the Critical Response Team of the United States Concealed Carry Association. The USCCA Critical Response Team is an exclusive community of qualified attorneys that are committed to defending the rights of responsible gun owners in New York State and throughout the Country. USCCA is an organization that promotes firearms education, training and insurance to law abiding gun owners. The insurance covers members who are involved in a self-defense shooting and provides benefits for both legal defense and coverage in the event of a civil suit. The USCCA provides a list of pre-screened attorneys to its members. Mr. Tilem, who has been on the list of pre-screened attorneys for a number of years was recently named to the critical response team to provide 24 hour assistance to members in the event of a self defense incident. critical-response-team-logo

Mr. Tilem joins the USCCA Critical Response Team with extensive experience handling assault cases where the defense of “justification” or “self-defense” has been used. As a former senior prosecutor in the New York County District Attorney’s Office, Mr. Tilem was often called upon to investigate shootings and stabbings involving self-defense claims and has continued during his 25 year career defending those accused of assault but many of whom were acting in self-defense.

Mr. Tilem is well aware of New York’s expansive defense of justification which goes way beyond using physical force including deadly physical force to defend ones self and others against violent attack. Article 35 of the New York State Penal law includes a variety of situations where an individual may use physical force and even deadly physical force to: defend premises and to terminate and prevent or prevent a burglary, (See Penal Law sec. 35.20); use physical force to prevent a larceny and/or criminal mischief, (See Penal Law 35.25); use physical force including deadly physical force by a civilian to effect the arrest of a person who has committed certain violent offenses, (Penal Law 35.30).

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As New York firearms lawyers we think it is important to keep the public updated on possible significant changes to New York gun laws. The idea of national concealed carry reciprocity is not a new idea but it is an idea that may be close to becoming law. The theory is very simple. If a driver’s license, which has been held by the Courts to be a privilege not a right, is valid in all 50 States than why isn’t a license to carry a gun, which has been held by the Courts to be right not a privilege, also valid in all 50 States. While different versions of the bill have been introduced in varying forms in Congress since at least 2008, President-Elect Trump has expressed an interest in signing such legislation.

Currently HR 923 entitled Constitutional Concealed Carry Reciprocity Act of 2015 has 121 cosponsors. The Companion bill in the Senate of the same name has 35 cosponsors.

The issue is how will New York law, which is notoriously hostile to gun owners, interact with a National Concealed Carry law. According to the Congressional Research Service HR 923 can be summarized as follows: “[HR 923 a]mends the federal criminal code to authorize a person who is not prohibited from possessing, transporting, shipping, or receiving a firearm under federal law, who is entitled and not prohibited from carrying a concealed firearm in his or her state of residence or who is carrying a valid state license or permit to carry a concealed weapon, and who is carrying a government-issued photographic identification document, to carry a concealed handgun (which has been shipped or transported in interstate or foreign commerce, other than a machine gun or destructive device) in any state in accordance with the restrictions of that state. [And,]

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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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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.