New York Criminal Attorney Blog

NATIONAL CONCEALED CARRY RECIPROCITY vs. NEW YORK STATE GUN LAWS

December 8, 2016 | Tilem & Associates

As New York firearms lawyers we think it is important to keep the public updated on possible significant changes to New York gun laws. The idea of national concealed carry reciprocity is not a new idea but it is an idea that may be close to becoming law. The theory is very simple. If a driver’s license, which has been held by the Courts to be a privilege not a right, is valid in all 50 States than why isn’t a license to carry a gun, which has been held by the Courts to be right not a privilege, also valid in all 50 States. While different versions of the bill have been introduced in varying forms in Congress since at least 2008, President-Elect Trump has expressed an interest in signing such legislation.

Currently HR 923 entitled Constitutional Concealed Carry Reciprocity Act of 2015 has 121 cosponsors. The Companion bill in the Senate of the same name has 35 cosponsors.

The issue is how will New York law, which is notoriously hostile to gun owners, interact with a National Concealed Carry law. According to the Congressional Research Service HR 923 can be summarized as follows: “[HR 923 a]mends the federal criminal code to authorize a person who is not prohibited from possessing, transporting, shipping, or receiving a firearm under federal law, who is entitled and not prohibited from carrying a concealed firearm in his or her state of residence or who is carrying a valid state license or permit to carry a concealed weapon, and who is carrying a government-issued photographic identification document, to carry a concealed handgun (which has been shipped or transported in interstate or foreign commerce, other than a machine gun or destructive device) in any state in accordance with the restrictions of that state. [And,]

MAN ARRESTED WITH “HIGH CAPACITY MAGAZINE” AT LAGUARDIA AIRPORT HAS FELONIES DISMISSED AND PLEADS TO NON-CRIMINAL DISORDERLY CONDUCT

November 30, 2016 | Peter Howard Tilem

In yet another victory in a New York firearms case, a Tilem & Associates client arrested in New York’s LaGuardia airport in September with an alleged “high capacity” magazine had all felony charges dismissed and only pled guilty to a non-criminal disorderly conduct, a violation but not a crime under the New York State Penal Law and paid a $250 fine. The record will be sealed.

New York State bans the possession of what it calls a “Large Capacity Ammunition Feeding Device.” NY Penal 265.00 (23). A Large Capacity Magazine Feeding Device is defined as “a magazine, belt, drum, feed strip, or similar device, that (a) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition, or (b) contains more than seven rounds of ammunition, or (c) is obtained after the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision and has a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition . . .” Boiled down, and there are some exceptions, New York defines both a capacity limit and a load limit. Under New York Law, as written, one could either not possess a magazine with a CAPACITY of more than 10 rounds but if one had an old magazine with a ten round capacity one could only LOAD up to seven rounds into that magazine. An empty magazine with a capacity of more than 10 rounds is a class “D” violent felony under New York Law punishable by up to seven years in prison.

In the Federal case of NEW YORK STATE RIFLE AND PISTOL ASSOCIATION INC LLC v. Gerald J. Gill, the United States Court of Appeals struck down the seven round load limit finding it violated the Second Amendment but left the 10 round magazine capacity limit in place.

TRAFFIC TICKET SUMMER SPECIAL – Hire Experienced Attorneys for ONLY $285!* Until August 31, 2016 Delaware, Broome, Lewis, Onondaga, Oswego and Seneca Counties Only

August 1, 2016 | Peter Howard Tilem

For those driving their kids to school at Binghamton or Syracuse Universities or taking summer vacations in upstate New York, Tilem & Associates is pleased to offer a limited time offer to help out with those inevitable but costly traffic tickets. With the cost of traffic violations through the roof and the summer driving season in full swing drivers need experienced legal representation that they can afford. For a limited time and in limited locations we are offering legal representation on traffic infractions for only $285 in Broome, Delaware, Lewis, Onondaga, Oswego and Seneca Counties. Those Counties contain the below Cities, Towns and Villages that will be handling a lot of traffic tickets that are issued over the summer.

CONTACT US NOW TO TAKE ADVANTAGE OF THIS SPECIAL BEFORE TIME RUNS OUT!

Broome County: Barker, Binghamton, Chenango, Colesville, Conklin, Dickinson, Fenton, Kirkwood, Lisle, Maine, Nanticoke, Sanford, Triangle, Union,

THE ANATOMY OF BEATING A FIREARMS CHARGE – Judges and Jurors May Not Always Support Draconian Gun Laws

April 18, 2016 | Peter Howard Tilem

A recent victory by Firearms Attorneys Tilem & Associates in Queens County Supreme Court demonstrates exactly how to beat a firearms charge even in gun hating states like New York. While New York prosecutors seek to strictly enforce New York’s draconian gun laws, it turns out that jurors and judges may not be completely sold on incarcerating lawful gun owners who run afoul ofNew York gun laws.

The client, who lawfully purchased his firearm in Florida and who was in New York for about three weeks before being arrested, was arrested and charged after he was stopped for not wearing a seatbelt. During the car stop, the police alleged that he acted nervously prompting them to ask the client if he had any weapons in his car. The Client told the police that he had his firearm in the center console and was immediately taken out of his car and arrested. A loaded 9 mm firearm was discovered in the center console of the vehicle and the client was charged with Criminal Possession of a Weapon in the Second Degree, a charge which carries a mandatory minimum of 3 and ½ years in prison even for a first offender. The maximum he faced was 15 years in prison.

Plea Negotiations

NEW YORK AND NEW JERSEY STUN GUN BANS PROBABLY UNCONSTITUTIONAL AFTER US SUPREME STRIKES DOWN MASSACHUSETTS BAN – OTHER WEAPONS PROBABLY NEXT

April 14, 2016 | Peter Howard Tilem

New York has banned the possession of stun guns by listing them as “per se” weapons in the Penal Law. Possession by a civilian even in a person’s home constitutes Criminal Possession of a Weapon in the Fourth Degree, a class “A” misdemeanor, punishable by up to one year in jail. There is no license available for civilians to be able to possess stun guns. Rather New York, like Massachusetts and New Jersey have a total ban on civilian possession of stun guns. However, last month, in the first Second Amendment case decided by the Supreme Court in years and in a stunning rebuke of the Supreme Judicial Court of Massachusetts, the United States Supreme Court struck down Massachusetts’ total ban on stun guns and found that stun guns, like any “bearable arms” are subject to the protections of the Second Amendment.

In Heller, in 2008 the United States Supreme Court ruled that the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Bearable arms, is a very broad term that encompasses much more than firearms which are the usual focus of Second Amendment jurisprudence thanks in large part to the National Rifle Association and other similar groups. As a result of the focus on firearms very little has been written about other “bearable arms.” Two years later in McDonald, the Supreme Court ruled that the Second Amendment is fully applicable to the States.

In the case of CAETANO v. MASSACHUSETTS, decided last month by the US Supreme Court, the Court criticized the Supreme Judicial Court of Massachusetts’ analysis of the Massachusetts stun gun ban. The Massachusetts high court offered three explanations for why stun guns were not protected by the Second Amendment and the US high court rebuked them for each one explaining that each reason given was inconsistent with the Heller decision. First, the Massachusetts Court tried to explain that Stun Guns were not in general use at the time of ratification of the Second Amendment despite the fact that Heller specifically rejected that argument in 2008. Next the Massachusetts Court argued that Stun Guns were not adaptable for military use another argument specifically rejected in Heller. Lastly, the Massachusetts Court suggested that Stun Guns were an unusual weapon an argument that the Supreme Court equated with the first argument that they were not around during the time of ratification of the Second Amendment.

NEW YORK KNIFE BILL TO STOP OUTRAGEOUS “GRAVITY KNIFE” ARRESTS IN NEW YORK CITY CLEARS A KEY SENATE COMMITTEE

March 17, 2016 | Peter Howard Tilem

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.

New York Gun Laws vs. the Federal Law Enforcement Officers Safety Act

March 4, 2016 | Peter Howard Tilem

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.

NEW YORK SPEEDING TICKET DISMISSED ON NOVEL SUPPORTING DEPOSITION ISSUE

February 29, 2016 | Peter Howard Tilem

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.

WESTCHESTER WOMAN CHARGED IN 6 YEAR OLDS DEATH AVOIDS JAIL

February 23, 2016 | Peter Howard Tilem

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.

NEW YORK INSURANCE FRAUD

February 17, 2016 | Peter Howard Tilem

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.