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Articles Posted in WEAPONS OFFENSES

Recently, a state appellate court issued an opinion in a New York gun possession case, discussing the defendant’s claim that the lower court erred in failing to provide the jury with a requested instruction. Ultimately, the appellate court agreed with the defendant, awarding him a new trial.

The Facts of the Case

According to the court’s opinion, police received a call stating that a man was shot. Police arrived on the scene, and found the defendant, bleeding from the back of the neck. Police entered the apartment, and found two guns. One of the guns, a submachine gun, was in an open drawer.

Several officers testified, as did the defendant. The testimony of each of the witnesses varied; however, the prosecution claimed that the defendant gave different stories to the responding officers and hospital staff. The prosecution proceeded under the theory that the defendant constructively possessed the firearm.

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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.

Recently, the New York Court of Appeals, New York State’s highest Court, issued an opinion, in a New York gun case, which reversed a lower court’s denial of a defendant’s motion to suppress evidence a gun. The case arose after a police officer stopped the vehicle the defendant was traveling in after his patrol car’s mobile data terminal (MDT) notified him of a “similarity hit.” In response to the similarity hit, the police officer stopped the vehicle and noticed a handgun on the floor in front of the seat the defendant was occupying. The police officer arrested the defendant, even though the car was not registered to him, and he did not have a warrant. At trial, the defendant moved to suppress the evidence that the police officer obtained from the stop.

The police officer testified that it was part of his “routine” conduct to enter license plates into his car’s MDT. In some cases, such as the one at hand, a similarity hit will occur, which notifies an officer that there is a similarity between a person with a warrant and a vehicle’s registered owner. The officer explained that the MDT generates these similarity hits based on the registered owner’s name, date of birth, and aliases. He further testified that he believes that the MDT generates hits based on parameters he was unaware of. In this case, the officer received a similarity hit, and without any other information, he pulled the car over. The officer admitted that after pulling the car over, he did not believe the driver was the subject of the warrant because the driver was female and the subject of the similarity hit, the registered owner, was a male. After discovering the gun and arresting the defendant, he realized that the individual with the warrant did not match anyone in the vehicle, or the car’s registered owner. The defendant’s motion to suppress the evidence obtained from the stop was based on the factual sufficiency of the basis of the stop.

Under New York law, if the state faces a sufficiency challenge, they must present evidence to establish that the stop was lawful. Generally, courts hold that vehicle stops are lawful if the officer has a reasonable suspicion that the vehicle’s driver or occupants have committed or are in the process of committing a crime. However, the state must point to specific facts, in conjunction with logical deductions, that point to the stop’s lawfulness. In most cases, reasonable suspicion inquiries are a question of law and fact. However, in cases such as this, the question is whether the state’s evidence meets the “minimum showing”, and is, therefore, a question of law.

As New York’s premier second amendment lawyers we closely monitor cases that may affect the ability of our client’s to lawfully be in possession of firearms and cases that affect our ability to fight gun charges.  Late last year, a state appellate court issued a written opinion in a New York gun possession case discussing the concept of constructive possession. Constructive possession is a legal fiction by which a person can be found to have “possessed” an item without there being any direct evidence that the item was in the defendant’s immediate control. The concept of constructive possession often relies on circumstantial evidence suggesting that the defendant possessed an item. This opinion is a good example of how the concept of constructive possession works in practice.

According to the court’s opinion, law enforcement pulled over the defendant for a traffic stop. During the stop, the defendant fled the scene, speeding off around a corner that led down a dead-end street. The sheriff’s deputy knew that the defendant had gone down a dead-end road that had a fence on one side and a wooded area on the other. The deputy waited for the defendant to reemerge.

About a minute later, the defendant’s car reemerged but got stuck in a ditch. The defendant was arrested and the deputy searched the area around the one-way street, finding a gun in the wooded area and a hat alongside the road. The gun was about 12-16 feet from the road. DNA samples from both the gun and the hat matched the defendant’s DNA. A jury convicted the defendant, who appealed his conviction. Specifically, the defendant argued that the evidence was insufficient to prove that he possessed the weapon.

Under the Armed Career Criminals Act (ACCA), federal law provides for enhanced penalties for people convicted of a crime involving a firearm if they have previously been convicted of several “violent felonies.” New York has similar laws that enhance penalties for persistent violent felony offenders and discretionary persistent felony offenders.  Recently, the U.S. Supreme Court agreed to hear a case in which the court will be required to explain what constitutes a “violent felony” under the ACCA. The case is important to New York criminal defendants because it will define what counts as a predicate offense under the ACCA, which could have significant repercussions for a person’s sentence.

The case involves a defendant who was convicted for possession of ammunition. At sentencing, the prosecution presented evidence that the defendant had previously been convicted of five offenses:  a 1974 robbery, a 1982 robbery, a 1983 attempted burglary, a 1986 burglary, and a 1994 robbery. The prosecution argued that each of the previous offenses qualified as violent felonies under the ACCA, and it sought a mandatory sentence on the current case of at least 15 years. If the defendant did not have three qualifying offenses, the maximum sentence that he could receive would have been 10 years. However, the trial court agreed with the prosecution, sentencing the defendant to 15 years.

After the U.S. Supreme Court held that part of the ACCA was unconstitutional, the defendant filed a petition, claiming that several of his previous convictions no longer qualified as “violent felonies.” The prosecution agreed that the 1983 conviction for attempted burglary was no longer a qualifying offense, but it argued that the remaining convictions still qualified under the ACCA. The court disagreed, finding that only two of the defendant’s robbery convictions qualified, and it sentenced him to 88 months.

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.

The National Firearm Act of 1934 (commonly known as the “NFA”) was the first federal gun control act and for the first time created a national registry of purchasers of “Machine guns”, “sawed-off shotguns” and “silencers”.  In addition, a $200 tax is imposed on each transfer of any NFA item and waiting periods can be long.

However, with the recent introduction of innovative new guns and technology that seem to have effectively circumvented the NFA, is the NFA still a useful law?

More than two years ago, we wrote about a new and innovative “shotgun” that has since taken the forearms world by storm.  Originally introduced as the Mossberg Shockwave and then the Remington Tac-14, these shotguns came with a standard 14 inch barrel and an overall length of just over 26 inches.  The Bureau of Alcohol Tobacco and Firearms (BATF) had examined samples of these firearms and determined that these were legal under the NFA for reasons discussed at greater length in our article about these firearms.

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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