New York Criminal Attorney Blog

New York Defendant Successfully Appeals Conviction in Sexual Assault Case

June 29, 2022 | Peter Howard Tilem

In a recent case involving a New York Sex Crime , the defendant successfully appealed his conviction of predatory sexual assault against a child. The defendant was originally found guilty in November 2016, after he went through a jury trial based on his charges and received an unfavorable verdict. He was sentenced to time in prison, but he successfully appealed the decision.

Facts of the Case

According to the opinion, the defendant sexually abused several children below the age of 13 at his residence in New York. The year before he was charged, the defendant watched the children various times in his home, given that the children’s parents were neighbors of his and used the defendant as a babysitter when they had to leave the building. On several different occasions, the children’s parents had dropped them off at the defendant’s home, and he had committed some kind of predatory sexual assault on the children during these visits.

The Opinion

The defendant was convicted of two counts of predatory sexual assault as well as endangering the welfare of a child. On appeal, the defendant argued that the predatory sexual assault conviction should be reversed, and the court ended up agreeing with his argument. According to the defendant, an individual is only guilty of predatory sexual assault against a child in the first degree when he commits the crime at least twice over a period of three months or more. Here, said the defendant, while there was evidence that he had assaulted the children in question, there was insufficient evidence to support the claim that this activity had happened over a period of at least three months. Thus, the defendant’s actions did not align with the definition of the crime, and his conviction should be reversed.

New York Court Denies Defendant’s Appeal in Gun Case, Despite Defendant’s Argument Regarding Plain View Doctrine

June 23, 2022 | Peter Howard Tilem

In a recent case involving a New York gun crime, the defendant unsuccessfully appealed his conviction of attempted criminal possession of a weapon in the second degree. In the appeal, the defendant argued that the officer who found the weapon in question had no right to search his private vehicle, and the trial court should have suppressed the incriminating evidence. Disagreeing with the defendant and discussing the plain view doctrine, the court denied the appeal.

Facts of the Case

According to the opinion, a police officer was patrolling one evening when he came across a parked car on the highway. The officer immediately saw an open bottle of tequila in the car and smelled alcohol coming from the general vicinity of the car. Because New York law prohibits possession of open containers on public highways, the officer opened the car to investigate the situation. The Court decided that the officer had the legal right to do this since it is illegal to have an open container of alcohol in the car.

Not only did the officer confirm what he suspected – that the bottle indeed was full of tequila – but he also found an open backpack in the car on the passenger’s side floorboard. Inside the backpack the police officer found a pistol magazine. The officer arrested and charged the defendant with attempted criminal possession of a weapon in the second degree.

New York Court Denies Defendant’s Appeal in New York Firearm Case, Rejecting Defendant’s Motion to Suppress Physical Evidence

June 16, 2022 | Peter Howard Tilem

In a recent opinion decided in a New York appellate court, the defendant unsuccessfully appealed his New York firearm case. The defendant was originally found guilty of criminal possession of a weapon in the second degree and unlawful possession of pistol ammunition. When evaluating the defendant’s appeal, the court used a four-level test that is common in New York criminal law to assess the legitimacy of interactions between police officers and pedestrians. Determining that the interaction between the officer and the defendant in this case was legitimate, the court denied the defendant’s appeal.

Facts of the Case

The defendant was charged after an interaction with a police officer in 2019. According to the opinion, the officer had received a tip that the defendant had a firearm on his person, so the officer approached the defendant to investigate the situation. When the officer asked the defendant to take his hands out of his pockets, the defendant refused, instead pushing past the officer in an attempt to evade the interaction.

The officer then grabbed the defendant’s pocket. At this point, it became clear to the officer that the defendant had a gun in his pocket, and he used force to stop the defendant so that he could fully investigate the situation. The officer found the gun, and the defendant was arrested and charged accordingly.

New York’s New Gun Laws Part IV – “Closing Loopholes” Others and Magazines

June 9, 2022 | Peter Howard Tilem

ANY OTHER WEAPONS

We have written in the past extensively about the Mossberg Shockwave, Remington Tac-14 and AR-15 others. The basic principle involves a weapon that is not designed to be fired from the shoulder so that it cannot be legally considered to be a rifle or shotgun and is defined to be fired with two hands so does not meet the legal definition of a pistol. Therefore, the restrictions on barrel length of shotguns and rifles did not apply as long as the overall length of the weapon was greater than 26 inches. In addition, since these guns were neither pistols, shotguns nor rifles they could have collapsible stocks, flash suppressors and/or bayonet lugs and not fall into the definition of “assault weapons”. Despite the fact that these “others” don’t seem to be the source of any significant crime this upset the gun grabbers. Now under the new law they are regulated and probably need to be added to a pistol license to be kept.

The new law signed by Governor Kathy Hochul on June 6, 2022, redefines the term firearm in New York. Under New York Law, a firearm requires a license to be issued in order to legally possess the firearm just like any handgun. The new law amends Penal law sec. 265.00 (3) to include in the definition of firearm: any other weapon which is not otherwise defined in Penal law 265.00 and which is designed or can be converted to fire a projectile by the force of an explosive.

New York’s New Gun Laws Part III – Expanded Red Flag Laws and Requirement of Microstamping

June 9, 2022 | Peter Howard Tilem

EXPANSION OF RED FLAG LAWS

On June 6, 2022 Governor Kathy Hochul signed an expansion of New York’s already problematic red flag laws giving the right to file Extreme Risk Protection Petitions to a wide range of health care workers. The list of healthcare workers includes doctors, nurses, social workers, psychiatrists, marriage and family therapists, and licensed mental health counselors who have treated the person who they wish to red flag within the 6 months preceding the red flag petition. The new law went on the require that police officers and district attorneys file red flag petitions under certain circumstances. Previously, it was discretionary with the police officer or district attorney whether or not to file a red flag case. The new law makes it mandatory under certain circumstances.

One issue that has not been reported is that this amendment to the extreme risk protection law creates a major new exception to the doctor-patient privilege. The doctor-patient privilege is codified in New York under CPLR 4504 and prohibits the disclosure of information obtained while attending the patient. The new law specifically authorizes a medical professional to disclose protected health information. In addition, it gives the Judges hearing the petition for an extreme risk protection order the authority to order the disclosure of protected medical records from other medical providers. This is perhaps one of the largest exceptions ever created to doctor-patient privilege and is likely to discourage many from getting treatment because of the potential for disclosure of their personal medical records.

New York’s New Gun Laws Part II – Licenses for semi automatic rifles and ban on sale and purchase body vests

June 9, 2022 | Peter Howard Tilem

New York’s New Type of License – Semi Automatic Rifles

Among the new package of laws that were signed into law by Governor Kathy Hochul was the requirement to obtain a license before purchasing or acquiring a new semiautomatic rifle (other than an “assault rifle“). The intention seems to have been to prevent the purchase of rifles by 18, 19 and 20 year old individuals but the law does much more. Notwithstanding, that the Ninth Circuit Court of Appeals in California has already ruled a similar California ban on 18, 19 and 20 year old young adults is unconstitutional. Under S.9458/A.10503 Article 400 of the Penal law was amended to create a new type of gun license called a license for a semiautomatic rifle. Similar to licenses to carry pistols the new law says that a license to purchase a semiautomatic rifle obtained outside of New York City will not be valid inside of New York City unless a special permit giving validity is obtained from the New York City Police.

The new law does not make it a crime to own or possess guns which were acquired before the effective date. Rather, the new law makes it a crime to purchase or obtain a new semiautomatic rifle without having the new type of license. The new licenses appear to be issued by the same licensing officers using the same criteria as license for handguns and is almost certain to back up and slow down the already overwhelmed system for obtaining handgun licenses. The new licenses require recertification every five years.

New York Governor Hochul Signs 10 New Gun Control Measures – Here Is What You Need To Know

June 9, 2022 | Peter Howard Tilem

On June 6, 2022, New York Governor Kathy Hochul signed 10 new gun control measures into law. These laws were hurriedly written and passed and appear to be a knee jerk reaction to the tragedies in Uvalde and Buffalo but will have a heavy impact on the New York Second amendment community. As New York Second Amendment lawyers we have been contacted by a large number of concerned citizens, firearms trainers and gun store owners about the impact of these laws. Taken as a whole these may be the stupidest gun laws ever written. Here is a brief summary of what passed and what it means with links to get more information about each one. .

S.9458/A.10503 makes it a felony to either purchase a semiautomatic rifle without a license or sell a semiautomatic rifle to someone who does not have a license. The new law also raises the minimum age to buy a semiautomatic rifle to 21 years of age. To read more about the law click here.

S.9407-B/A.10497 makes it a crime to purchase body armor except for individuals in “eligible professions”. It makes it a felony to sell body armor to someone who is not in an “eligible profession”. To read more about this law click here.

New York Court Denies Defendant’s Argument in Weapons Case that Informant was Unreliable and Untrustworthy

June 5, 2022 | Peter Howard Tilem

In a recent New York gun crime case decided in a Appellate Court, the defendant unsuccessfully appealed his firearm conviction by arguing that his original arrest was based on unreliable information. His sentence was however reversed on other grounds. According to the defendant, there was insufficient evidence that the informant who had tipped police officers off to his activity was reliable and trustworthy. Because it was not clear whether or not the officers could trust the informant, it was unreasonable for the officers to arrest the defendant based on the single tip. The court considered the defendant’s argument but ultimately denied his appeal, citing the officers’ long-term relationship with the informant as evidence of the informant’s trustworthiness.

Facts of the Case

According to the opinion, a confidential informant let police officers know that there was an individual in a specified location with a gun in his hand. Upon hearing this tip, officers went to the scene and found the person matching the informant’s description. The officers approached the person, who later became the defendant in this case, and placed him under arrest. Upon his arrest, the defendant immediately stated, “I have a firearm in my waistband.”

The officers recovered the firearm and the defendant was charged and convicted of attempted criminal possession of a weapon in the second degree. He appealed shortly thereafter.

In Light of the Uvalde Shooting Get Ready for Some Crazy Gun Control Proposals

May 31, 2022 | Peter Howard Tilem

As New York Second Amendment Attorneys we are constantly monitoring upcoming gun legislation. Following up on our blog the Twelve Most Ridiculous Gun laws, we just may have to revamp the whole list with some of the crazy new ideas that we have been hearing lately. So lets look at a roundup of recent gun legislation and suggestions.

New York has recently passed some ridiculous gun laws recently criminalizing the possession of unfinished frames which can basically include an hunk of aluminum, plastic or polymer. In addition, New York has made it a crime for a convicted felon to possess innocuous gun parts such as barrels or triggers. Nothing that can fire; possession of just the parts is now a crime.

Today, I read that there is legislation pending in Albany to require licenses to possess or purchase a semi-automatic rifle. Now remember, so called “assault rifles” are already banned in New York so this is for semi-automatic hunting rifles. How many of these semi-automatic rifles are used in crimes in New York any year? Keep in mind, that New York City already requires licensing of long guns and we can watch the news and see how that is going.

New York Court Grants Defendant’s Motion to Suppress in Firearm Case

May 23, 2022 | Peter Howard Tilem

In a recent New York gun crime case decided by a New York City trial court, one of two defendants filed a motion to suppress incriminating evidence. The court, looking at the circumstances surrounding the case, granted the defendant’s motion after considering the fact that the police officer that found the gun was not in immediate danger at the time of her search. As a result, the charges were dismissed.

Facts of the Case

According to the opinion, a New York police officer was on duty around 9:00 one morning when she was notified that a violent altercation had occurred nearby. The call reported that a woman’s ex-boyfriend had brought out a gun during a fight in the woman’s home. After the fight, the ex-boyfriend left the house and got into his car, driving away.

The officer began looking for the vehicle belonging to the ex-boyfriend, who later became one of the defendants in this case. About an hour later, the woman involved in the case called the officer to report that she had found the defendant’s car and that one of the defendant’s friends was sleeping inside the car. The officer immediately arrived at the car and knocked on the window, instructing the defendant’s friend to open the door.