WEAPONS OFFENSES Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Court Denies Defendant’s Appeal in Firearms Case

May 4, 2022 | Peter Howard Tilem

In a recent decision coming out of a New York court, the defendant’s appeal of his New York firearm conviction was denied. Originally, the defendant was charged after police officers found a firearm inside of his backpack while the defendant and some of his acquaintances were gathered in another person’s yard. On appeal, the defendant argued that the officers invaded his right to privacy. Disagreeing with the defendant, the court denied the appeal.

Facts of the Case

According to the opinion, two officers were on patrol one day when they drove past an empty house that they had seen many times while driving on the same street. They noticed that the house was boarded up with a padlock, a chain, and a “No Trespassing” sign in the front. Officers saw that a group of men had gathered in the backyard, and they exited their vehicle to go speak with the men.

Officers noticed that the men were passing a cigarette back and forth, as well as that the area smelled of marijuana. They also observed the defendant walk towards the back of the house with an object in his hand. The officers watched him then return to the group empty-handed.

Can You Take Your Lawfully Possessed Gun on Vacation to St. Thomas the US Virgin Island

January 21, 2022 | Peter Howard Tilem

We wrote a very popular blog about whether you can take your lawfully possessed pistol on vacation with you in Puerto Rico, subsequent to the easing of gun laws in Puerto Rico. Now we explore the gun laws in the US Virgin Islands and in particular whether you can take your pistol to St. Thomas, St. John and St. Croix.

At first glance, the US Virgin Islands appears to have extremely liberal reciprocity laws however that appears to be far from reality. A review of the USVI Police website clearly indicates that visitors are required to declare their firearms before arrival in the US Virgin Islands and to immediately report to the US Virgin Island Police Substation upon

USVI Police Airport Substation

SUPPRESSORS, SOLVENT TRAPS AND THE NFA

January 7, 2022 | Peter Howard Tilem

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.

New York Court Denies Defendant’s Motion to Suppress Gun

September 2, 2021 | Peter Howard Tilem

In a recent opinion from a New York court involving a New York gun case, the defendant’s motion to suppress was denied. The defendant was convicted of gun possession in the third degree and filed a motion to suppress the gun found in his coat pocket during the initial 40 seconds of a traffic stop. The state appellate court denied the motion because they found that the search was not a “level three” detention and that there was reasonable suspicion of criminality.

The Facts of the Case

According to the opinion, a parole officer tipped the police officers of the defendant possibly owning a gun. Police officers conducted a traffic stop, stopping the defendant due to the defendant violating traffic laws and having a suspended license. The officers directed the defendant to exit the vehicle and an officer grabbed the defendant’s arm as he exited the vehicle.

New York Court Hears Appeal Based on Defect in Search Warrant

April 14, 2021 | Peter Howard Tilem

In many New York criminal cases, law enforcement officers need to search for evidence. The United States Constitution protects individuals from “unreasonable searches and seizures.” As such, in most cases, law enforcement must obtain a search warrant based on probable cause before beginning their search. Despite these protections, the law provides police with significant discretionary power when investigating a criminal incident. Criminal defendants may successfully challenge a search if they can establish that police engaged in the search without a valid warrant or probable cause. However, exceptions to the search warrant rule apply in various situations, such as when the search or seizure is incident to a valid arrest.

For example, recently, the Court of Appeals affirmed a lower court’s ruling denying a New York defendant’s motion to suppress. The case arose when law enforcement obtained a search warrant to search the defendant’s home. During the search, police recovered several items, including a handgun and ammunition. The defendant filed a motion to suppress the evidence, claiming that the warrant was invalid.

In New York, if an officer wants to obtain a search warrant, they must present the basis for the probable cause of their search to a judge. In most cases, a judge will issue a warrant if the probable cause exhibits a reasonable basis for believing that evidence from a crime is in the location they want to search. Officers must submit a sworn statement and describe the location with particularity. Judges typically consider the totality of the circumstances before issuing a search warrant.

WAS A LICENSED GUN DEALER ARRESTED FOR SELLING “OTHERS” IN NEW YORK?

March 12, 2021 | Peter Howard Tilem

After our recent win in an ill-conceived Mossberg Shockwave prosecution earlier this year we would have thought that the issue of the legality of “Other” weapons in New York would be resolved. However, rumors started spreading late last week that a New York Licensed gun store owner and licensed dealer was arrested and charged with multiple felonies for selling AR-15 based “Others”. Our law firm, is closely monitoring this case.

Dark Storm Industries Non-NFA “Other”Weapon

According to information that we received, Jerome Rallo, the owner of Jerry’s Firearms in Bohemia, New York has been charged with multiple felonies under New York State law for selling illegal weapons including the top counts of Criminal Sale of a Firearm in the First Degree, a class “B” violent felony which carries a mandatory minimum of 5 years in prison and a maximum of 25 years in prison.

Court Reverses Denial of Defendant’s Suppression Motion in New York Weapons Case

February 28, 2021 | Peter Howard Tilem

An appellate court recently issued a decision reversing a New York criminal defendant’s conviction for Criminal Possession of a Weapon. The defendant unsuccessfully moved to suppress evidence, the sawed-off shotgun, found to charge him with the crime, and the jury found him guilty. Amongst other issues, the defendant challenged the denial of his motion to suppress. The charges arose after police officers stopped the vehicle in which the defendant was a passenger. Officers discovered a sawed-off shotgun and then found a shotgun shell on the defendant.

The officers claimed that they initiated a search of the car after discovering a shotgun shell during a protective pat-down of the defendant. The officers claimed that this discovery provided them with probable cause to search the car, which led to the discovery of the shotgun. The defendant argued that the People did not provide any evidence to support this. He contended that law enforcement searched the car before the pat-down. The court found that even though the People raised arguments that may justify the search, the law does not permit the appellate court from considering those factors because they were not ruled upon by the lower court. Ultimately, they held the appeal and remitted the matter to the lower court for review.

New York firearm possession charges carry serious penalties, and it is crucial that criminal defendants seek representation from an experienced attorney. Those that do not possess a handgun license may be found guilty of unlawful possession. There are four main charges that are typically associated with firearm possession. In some cases, the court may enhance penalties depending on the circumstances and related charges.

Court Awards New Trial to Defendant in New York Gun Case Based on Improperly Denied Jury Instruction

January 20, 2021 | Tilem & Associates

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.

NEW YORK MOSSBERG SHOCKWAVE CHARGES DISMISSED

January 13, 2021 | Peter Howard Tilem

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.

Court Finds in Favor of New York Defendant and Reverses Gun Conviction After Suppression Hearing

December 12, 2020 | Tilem & Associates

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.