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As New York Criminal Defense Lawyers we have sounded the alarm on numerous occasions about the draconian enforcement of New York Knife laws by New York City Police Officers and the 5 New York City District Attorney’s Offices. Now an amendment to the New York State Penal Law may severely restrict those arrests if the bill passes the full Senate and the New York assembly. The scope of the problem is enormous. A report in the Village Voice found that more than 60,000 individuals have been arrested for possessing common pocket knives.

The problem stems from the definition of a “gravity knife” found in New York Penal Law 265.00(5). The definition essentially includes as a gravity knife, any lock back knife that can be opened by the application of centrifugal force. That is to say that if a 250 pound police officer can “flip” opened a knife, the knife can be a considered a gravity knife.

The proposed fix to the law would require prosecutors to prove “unlawful intent” before they can convict someone of Criminal Possession of a Weapon in the Fourth Degree to convict for possessing a Gravity Knife.

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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 Traffic Lawyers Tilem & Associates successfully won a motion which resulted in a speeding ticket being dismissed completely on novel grounds. Our client was charged with a violation of VTL §1180 (c) for traveling 40 miles per hour in a 25 mile an hour zone. Approximately 15 days after receiving the ticket, the Defendant mailed the ticket to court indicating that he was pleading not guilty and further indicating that he was requesting supporting depositions.

New York Criminal Procedure Law § 100.25(2) provides that a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of a complainant police officer and that upon such a request, a court must order the officer to serve a copy of the same within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier.

Approximately six days after receiving the Defendant’s request, the Court mailed an order for the supporting deposition to the local sheriff’s department and acknowledged the Defendant’s request. Approximately six days after that the Defendant received a copy of the supporting deposition. However, the affidavit of service accompanying the supporting deposition says that it was mailed to the Defendant but it not specify the address of the Defendant to which the supporting deposition was allegedly mailed.

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New York Criminal Defense Attorneys Tilem & Associates in a high profile case in Westchester County successfully negotiated a plea deal for a client charged with criminally negligent homicide in the death of a 6 year old and helped the client avoid a jail sentence.

Homicide. Murder. Negligent homicide. Manslaughter. In the wake of the loss of a life, one may wonder, exactly what the difference in the terms mean? While the words can be confusing, there is an important difference between each charge. Homicide means conduct which causes the death of a person. The difference between murder, negligent homicide and manslaughter all depend on the culpable mental state alleged to be involved with the death of another. In another words did the person intentionally cause the death of someone or did they do so recklessly or with criminal negligence.

The statute, N.Y. Pen. Law § 125.10, spells out criminally negligent homicide in New York. Criminally negligent homicide represents the least serious of all homicide offenses in New York and in fact is the lowest level felony in the New York Penal law. The charge of criminal negligence means that person has failed to perceive a substantial and unjustifiable risk that a particular result will occur or that a particular circumstance exists. The risk is usually of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. This charge is used when the accused lacked the intention of killing the victim, but should have known better than to complete acts which resulted in the victim’s death.

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New York Criminal Lawyers Tilem & Associates have been seeing an increase in the enforcement of economic crimes generally and insurance fraud cases more specifically, especially as those cases pertain to Disability Fraud and Workers Compensation Fraud (collectively known as health care fraud). Currently, the firm is involved in a jury trial, defending a person accused of Workers Compensation Fraud. As violent crime has fallen, prosecutors and law enforcement officers have definitely turned their attention to fraud cases but these types of cases can be difficult to prove and filled with pitfalls.

In addition, enforcement by the government can take many forms including the above mentioned criminal prosecution but enforcement can also take the form of civil or administrative proceedings to terminate benefits, seek repayment of benefits paid out (restitution) or impose civil statutory penalties. These types of proceedings each have nuances and complications and a person who finds themselves the target of any investigation or enforcement action should seek an attorney experienced with disability or workers compensation fraud cases and not just go back to their prior attorney who helped them obtain the benefits.

In the criminal trial currently pending in Bronx Supreme Court, our client is accused of fraud for obtaining workers compensation benefits based upon Post Traumatic Stress Disorder (PTSD). While the client was collecting benefits and stating that s/he was a prisoner in her own home and unable to leave her home, the government alleges that she went on cruises and was earning income doing odd jobs for others. Highlighting the complexity of these cases, attempts to cut off the client’s workers compensation benefits before her arrest were unsuccessful and the client still collects benefits to this date despite her arrest almost two years ago.

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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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Two New York DWI cases were dismissed in back to back victories, in the same Court on the same day, yesterday. The unusual drama played out in a New York County Criminal Court courtroom, last week as the Judge dismissed DWI charges against two separate defendants. Both dismissals were based upon violations of the defendants’ speedy trial rights, although under two different theories and under two different sections of the New York Criminal Procedure Law. In addition, the two DWI’s were very different. One DWI was a refusal, charged as a “common law” DWI under sec 1192(3) of the New York Vehicle & Traffic Law. The second DWI, was based upon a very high breath test, (.159) and was charged under VTL 1192 (2) and 1192 (3). Both were in very different procedural stages.

The first DWI charge to be dismissed, yesterday, was the DWI based upon a refusal to take a breath test. That dismissal was based upon a violation by the prosecutor of the defendant’s statutory speedy trial right codified under section 30.30 of the New York Criminal Procedure Law and which requires the prosecutors to be ready for trial within 90 days of the arraignment. (How that 90 days is calculated is the subject of other blogs on this site and is beyond the scope of this blog.) However, under the current state of the law (and there is a case up on appeal right now to clarify this issue) when a Driving While Intoxicated under VTL 1192 (2) or (3) is charged on the same docket as the traffic infraction of Driving While Ability Impaired by Alcohol under VTL 1192 (1) and the Driving While Intoxicated is dismissed for violation of statutory speedy trial rights, the Court cannot dismiss the lesser charge of Driving While Ability Impaired. Therefore, while the more serious DWI charge was dismissed, the defendant in that case is still charged with the lesser traffic infraction of DWAI.

The second DWI case to be dismissed yesterday was the case involving the very high breath reading of .159 (almost twice the legal limit of .08). The second case is about six months older than the first case. In this case, the DWI, the more serious charge, was dismissed approximately six months ago for violation of the defendant’s statutory speedy trial rights, leaving only the traffic infraction of Driving While Ability Impaired. After six months of the prosecutors not being ready for trial and making several motions to dismiss the remaining charge for violation of constitutional speedy trial rights (as opposed to statutory speedy trial rights), the Judge dismissed the sole remaining charge of Driving While Ability Impaired.

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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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New York Criminal Defense law firm, Tilem & Associates has seen an increase in the number of Reckless Driving tickets and other related moving violations, which is consistent with recent media reports that a crackdown on hazardous driving is underway by the NYPD. According to the media a 24 hour per day, 7 day per week crackdown will target drivers who speed, run red lights and use cell phones or other portable electronic devices. These violations which are among the most common also carry the most points and can have the greatest impact on a driver’s license and a driver’s insurance rates. A reckless driving ticket carries 5 points and is a criminal offense under New York Law, a cell phone ticket, which up until several years ago was a no-point violation now also carries 5 points. Speeding tickets can carry anywhere from between 3 and 11 points and Red light tickets carry 3 points. A motorist generally loses their license at 11 points.

The latest NYPD reckless driving crackdown is consistent with Mayor de Blasio’s “Vision Zero” plan which has the goal of eliminating traffic fatalities and comes after a serious accident left a pedestrian serious injured after crossing Linden Boulevard in Brooklyn earlier this week.

“The good news for motorists is that an experienced traffic lawyer can generally get substantial reductions in the points associated with tickets and very often eliminate the points altogether,” according to traffic lawyer Jasmine Hernandez. “An experienced traffic lawyer can especially have the greatest impact on reckless driving tickets which are among the most serious,” according to Ms. Hernandez.