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Articles Posted in WEAPONS OFFENSES

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.

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.”

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.

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.)

The Assault Weapon Ban which was passed as both a federal law and State law in many jurisdictions after a swell of media hysteria and which has since elapsed as a Federal ban is still alive and well in New York and New Jersey and a recent amendment to New York law has left a dangerous trap for innocent New Yorkers. Peter Tilem, the senior partner at Tilem & Campbell and former firearms trafficking prosecutor in the City of New York has dealt with a number of these cases as both a prosecutor and a defense attorney.

The Federal Assault Weapon Ban which was passed as a 10 year ban on “Assault Weapons” expired in 2004 after it was found to be absolutely useless. The original ban which is still in effect in New York banned rifles purely based upon cosmetic features. Since automatic weapons were already illegal, the so called assault weapon ban prohibited semi-automatic weapons that had two or more cosmetic features that were deemed to make them “Assault Weapons” the list of cosmetic features includes: a pistol grip, folding or collapsible stock, bayonet lug, flash suppressor and believe it or not if it was a pistol, the weight of the pistol. If the pistol weighed more than 50 ounces that was one of the two features that would make it an “Assault Weapon”. (Up until the hysteria surrounding the Assault Weapon Ban we were told that it was the small easily concealable pistols the should be banned.) In addition, certain guns were banned by name.

It should be noted that in New York but not New Jersey if you possessed one of these guns prior to September 14, 1994 you could continue to own the so called assault weapon. This provision made the law largely unenforceable since the prosecutor could not prove, if the gun was manufactured before September 14, 1994 when it was first possessed.

Eligibility requirements for the issuance of a pistol license in New York are set forth in Penal Law §400.00(1). Briefly, an applicant must (1) be twenty-one years of age; (2) of good moral character; (3) have not been convicted of a felony or serious offense; (4) state whether he has ever suffered from mental illness or been confined to an institution for mental illness; and (5) not had a pistol license revoked or who is not under a suspension or ineligibility order issued pursuant to CPL 530.14 or Fam. Ct. Act 894-a.

The issue is; does a failure to satisfy any of the above eligibility requirements act as a permanent bar to licensure? The question must be answered in the negative. Peter Tilem, a partner with Tilem & Campbell, is currently challenging a Westchester County Licensing Officer’s denial of an application because the applicant had a prior revocation based upon a lack of necessary character and judgment. The Licensing Officer denied the application solely because the applicant had a prior revocation without regard for the basis of that revocation.

The licensing officer that originally revoked the applicant’s license had found that he lacked the character and judgment to possess a pistol license. The revocation was not related to an order of protection and was not made pursuant to CPL §530.14 or Fam. Ct. Act §842-a but instead was made pursuant to Penal Law 400.00(11) for a lack of character. This is important because only revocations pursuant to CPL §530.14 or Fam. Ct. Act §842-a can act as a permanent bar. However, revocations based upon a lack of character and judgment are not permanent bars to re-licensure.

A recent Appellate Court decision overturning a Nassau County gun law could have far reaching implications for New York City gun charges and New York City weapons offenses. As previously discussed in a prior blog, New York City bans many items which are legal in other parts of New York state. In Chwick v. Mulvey, gun owners successfully challenged a Nassau County local law that prohibited possession of firearms that were “deceptively” colored such as pink, gold or brown.

In finding that the Nassau County Law was preempted by New York State law which already has a comprehensive statutory and licensing scheme, the Appellate Division of the Supreme Court, Second Department ruled that Nassau County could not regulate in this area in direct contradiction to new York State law which says that licenses for firearms shall be valid throughout the State (except New York City). The ruling of this Court has binding in effect in the New York City Counties of Kings and Queens.

What is left unanswered by the Court is whether New York City has the right to ban “weapons” such as handcuffs, imitation pistols, and rifles and shotguns (for which New York City has its own licensing scheme) in the face of comprehensive state legislation that for example lists all of the illegal weapons in New York State. Penal Law sec. 265.01 (1) lists more than fifteen specific weapons such as gravity knives, kung fu stars and switchblades and then in subsection 2 lists additional weapons which are illegal if one has intent to use them unlawfully against another.

New York criminal defense firm Tilem & Campbell won a dismissal earlier today in another Bronx gun case. The case, started with the arrest of the client in December 2009 after a dispute with her roommate. The roommate notified the landlord, an off duty NYPD detective that her roommate had a pistol in her dresser drawer. The landlord entered the apartment without a search warrant and recovered a loaded firearm. The landlord then called the police and had the client arrested. The client was charged with Criminal Possession of a Weapon in the Fourth Degree and Possession of ammunition under the administrative code of the City of New York.

Tilem & Campbell, senior associate Jean Melino filed a motion to suppress the gun and ammunition because of the warrant-less entry and search into the client’s bedroom by the off duty police officer/landlord. The Bronx County District Attorney’s Office initially attempted to oppose our motion on the grounds that the off-duty police officer/landlord was not acting in his capacity as a police officer but rather as a landlord and that therefore he did not need to obtain a warrant. The Bronx District Attorney’s Office cited both Federal cases and a case from the State of Nebraska to establish their position even though plenty of New York cases establish that an off-duty police officer is always acting in his official capacity. The Court granted a hearing on the issue.

After the Bronx District Attorney’s Office was not ready to proceed on several dates that the Court had set for the hearing, The District Attorney’s Office finally moved to dismiss the case rather than proceed with the hearing that they were sure to lose. The Court records in the matter were sealed.

Senior partner Peter H. Tilem will be on the radio this evening speaking about New York knife laws and some of the recent cases involving knife charges. Mr. Tilem will be appearing from 7-8pm on the Johnny Mandolin show and you can listen live or listen to a recording of the show at www.centannibroadcasting.com.

New York criminal defense firm Tilem & Campbell, scored another big victory in a Queens gun possession case when the Queens District Attorney’s Office agreed to reduce the class “C” violent felony gun charge to Disorderly Conduct a non-criminal violation. The client who was arrested with the handgun inside LaGuardia Airport as he was about to board a flight was originally facing a mandatory minimum sentence of 3 and 1/2 years in a New York State Prison. The client will pay a $250 fine and have his record sealed.

The client was originally arrested after he attempted to check the pistol in his checked baggage at the airport and was apparently not aware of New York’s very strict gun laws. In New York, possession of a loaded firearm outside a person’s home or place of business carries a mandatory minimum of three and a half years in prison even for a first arrest. In addition, the pistol does not actually have to be loaded to be legally “loaded” simply possessing the ammunition and the gun capable of firing that ammunition at the same time is enough to constitute a “loaded firearm” under New York law.

This is the second such victory this year for Tilem & Campbell. Earlier this year, in March, Tilem & Campbell scored a disorderly conduct violation on another gun case from LaGuardia airport. Senior Partner Peter H. Tilem a former prosecutor, worked in the Firearms Trafficking Unit of the Manhattan District Attorney’s Office and has a tremendous amount of experience in handling New York gun cases and other types of New York weapons cases.

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