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Articles Posted in WEAPONS OFFENSES

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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 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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Again, at JFK airport in Queens, New York, Tilem & Associates beat another handgun ammunition charge after a client was found bringing handgun ammunition through the TSA screening area. As described in a previous blog, the New York City administrative code makes it illegal to possess handgun ammunition unless a person is licensed to possess a pistol or unless the person is a dealer in rifles or shotguns.

As described in the previous blog, section 10-131 of the New York City Code is somewhat convoluted and specifically 10-131(i)(3) contains two exceptions right in the statute. 1. that the law does not apply to a person “authorized” to possess a pistol or revolver. 2. that the law doesn’t apply to a dealer in rifles and shotguns. As explained previously, when a statute in New York contains an exception within the statute, the exception must be both pleaded and proved. In other words, the police are required to allege both that the defendant was not authorized to possess a pistol or revolver and that the defendant was not a dealer in rifles and shotguns. Absent those specific allegations in the accusatory instrument, the case should be dismissed.

This is unusual because, for example, in drafting a charge for possession of an illegal pistol, the police or prosecutor would not be required to establish that person was not authorized to possess the pistol. Rather, the possession of a license or some legal authority to possess the weapon is an exemption contained in a different statute. Since the exception is not found within the statute but rather outside the specific statute the police or prosecutor do not need to plead or prove the exemption.

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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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As we already reported in an earlier blog, earlier this week Westchester Journal News Reporter Dwight R. Worley thought it was news worthy to publish the names and addresses of all licensed gun owners in Westchester and Rockland Counties. Under the First Amendment that is his right. However Dwight R. Worley also has a home address and he apparently has a licensed Smith & Wesson .357 magnum revolver at that address. We thought that the old expression “what’s good for the goose is good for the gander” was perfect for just this situation, so here it is:

Dwight R Worley

23006 139 Ave

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Firearms defense firm Tilem & Campbell is very unhappy to report that a local newspaper has outed local law-abiding gun owners. In the modern day equivalent of the scarlet letter the Journal News has published an article in today’s paper with an interactive on-line map that discloses the names of addresses of all law abiding gun owners in Westchester and Rockland Counties. The information was obtained by a Freedom of Information law request to the County clerks of each county.

Exactly the point of the article is not clear but is an apparent attack on law abiding gun owners who may face consequences at their work or in social circles now that their ownership of firearms has been publicized. The map also appears to have the names and addresses of several sworn police officers who for obvious reasons generally keep their residence information a secret. The article, an apparent reaction to the tragic shooting in Newtown, Connecticut, ironically puts everyone in danger in that it tells would be murders, terrorists, psychos and other people who are inellegible to purchase guns lawfully, exactly where they can steal them.

The basis for such a publication unfortunately has its basis under New York law. No civilian may lawfully purchase or possess a firearm in New York without a permit issue under Penal Law § 400.00 which defines the types of gun license in New York and the rules for issuing them. Penal Law § 400.00(5) specifically requires the filing of all approved applications and goes on to state: “The name and address of any person to whom an application for any license has been granted shall be a public record.” Penal law § 400.00(5). Apparently, Paul Piperato, the Rockland County Clerk, expressed some reluctance in giving up these records even as he apparently released the records under New York Law. “You have judges, policemen, retired policemen, FBI agents — they have permits,” Piperato said. “Once you allow the public to see where they live, that puts them in harm’s way.”

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As a New York criminal defense lawyer that handles an inordinate number of gun related cases, I hear a large number of stories about the interaction between the police and law abiding gun owners. After more than 20 years, however, very few cases shock me. What happened after a Westchester County gun owner called a suicide hotline bears repeating as a cautionary tale to law abiding citizens everywhere.

A Westchester County gun owner owner got the surprise of his life when he called a suicide hot line to talk about tools to manage depression. After the gun owner’s wife from whom he had been separated introduced him to her new boyfriend, and after having suffered a medical condition the loss of his home and the break up of his marriage the gun owner decided to call a suicide help line for help and instead ended up with more trouble.

The gun owner clearly remembers calling 1800 SUICIDE to ask about tools for managing depression. He also recalls that he started out the conversation by telling the operator that he wasn’t going to hurt himself or anyone else but that he simply wanted information. The operator then steered the conversation to whether or not there was a child in the house (there was) and whether or not there were guns in the house (there were). Within a very short time of answering that there were guns in the house, and while still on the telephone, the Westchester County gun owner heard a knock at the door. It was the police.

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Senior Partner Peter H. Tilem of the White Plains law firm, Tilem & Campbell recently passed the test to become an NRA Certified Pistol Instructor. Mr. Tilem, who is a senior criminal defense lawyer, NRA member and handles much of the firms firearms law practice together with law partner Peter Tilem, was an experienced and avid firearms enthusiast before passing the National Rifle Association’s instructors’ test.Besides being a lifelong shooter, Mr. Tilem has been handling gun and weapons cases for decades. Initially, as a prosecutor, in one of the most anti-gun counties, in one of the most anti-gun states in the United States, Mr. Tilem handled the prosecution of countless gun and knife cases as well as cases involving a variety of other weapons. After several years as a prosecutor, Mr. Tilem was asked to join the District Attorney’s Office’s Firearms Trafficking Unit where he handled large scale, gun trafficking conspiracy cases in addition to other gun cases and violent crimes and became an adviser to other prosecutors in the handling of gun cases.

After leaving the District Attorney’s Office and entering private practice, Mr. Tilem put his experience and knowledge of New York gun laws to work helping law-abiding citizens who got caught in the web of New York’s criminal justice system which treats law-abiding citizens with firearms (or knives) as criminals. In New York, a law abiding citizen who carries his (or her) pistol into New York with an out-of-state permit (ccw) faces a mandatory minimum sentence of 3 and 1/2 years in prison. In addition, New York still has on the books the functional equivalent of the since repealed Federal Assault Weapons ban which punishes as a felony possession of rifles or shotguns that have cosmetic features that are deemed to look offensive. The outdated and ill conceived assault weapon ban in New York is so poorly written and hard to understand that neither the police, prosecutors nor civilians can be sure of what is felonious conduct and what is perfectly legal.

In addition to New York’s bizarre gun laws, New York bans virtually any weapon imaginable including brass knuckles, billy clubs, “sand bag[s]” (whatever that means), wrist-brace type sling shots, nun-chucks and kung fu stars just to give some examples. As Mr. Tilem has written about extensively, New York’s ban on knives is so complete that it seems to ban steak knives in restaurants (at least in the five boroughs of New York City) and virtually any lock blade folding knife as a “gravity knife.”

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In the first two parts in our series of blogs on New York’s assault weapon ban we discussed the absolute silliness in banning firearms based upon certain cosmetic features. Now we discuss the most troubling part of the ban from the perspective of the citizen who finds himself charged under New York law with possessing an Assault Weapon or the experienced criminal defense lawyer who takes on the responsibility of defending the citizen.

Penalties

Generally, possession of a so called “assault weapon” in New York is a violation of Criminal Possession of a Weapon in the Third Degree under New York Penal Law sec 265.02 (7). Possession of a “Large Capacity Ammunition Feeding Device” is a violation of Penal Law sec 265.02 (8). Both are class “D” violent felonies in New York and are therefore punishable by a definite sentence of up to seven years in prison. A person charged under this section could get a sentence of Probation in lieu of a state prison sentence if the judge thought it was appropriate. In other words, prison is not mandatory.

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In Part I in our series of blogs covering New York’s so called “assault weapon” ban we began to highlight some of the most troubling parts of a ban on certain weapons based purely on cosmetic features. At Tilem & Campbell we handle a large number of gun and weapons cases and so are in a unique position to see how some of these laws are applied. We continue with other troubling provisions of New York’s assault weapon ban.

One of the most troubling features of the ban is the ban on flash suppressors. The fact is that there are many devices that attach to the barrel of a rifle and which look alike. There is no definition in the New York Penal sec 265.00 of a flash suppressor. Prior to 2004 when the Federal Assault Weapon ban expired the Federal Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) was responsible for characterizing the various devices that can be attached to the barrel of a gun. Since the federal law expired the BATFE no longer will do that. So manufacturers now attach devices to the barrel of rifles that look like flash suppressors but which manufacturers classify as “muzzle brakes”. These devices look like flash suppressors but are seemingly legal under New York law since the law specifically bans flash suppressors. The problem is that New York does not provide any definition of flash suppressor (or muzzle brake) and the difference can mean the difference between not committing any criminal offense and doing 15 years.

In addition, to the ban on firearms containing certain random cosmetic features, the Federal Assault Weapon Ban also banned detachable magazines that held more than 10 rounds. The ban on detachable magazines similarly expired under Federal Law but still exists in some states. For example New York has a ban on magazines that can hold more than 10 rounds and New Jersey has a ban on magazines that can hold more than 15 rounds. (Since these numbers were selected at random there is no uniformity among the various states that imposed their own ban.)