GUN CRIMES Category Archives — Page 11 of 17 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

Court Discusses Constructive Possession and the “Automobile Presumption” in Recent New York Gun Possession Case

December 10, 2018 | Tilem & Associates

Recently, a New York state appellate court issued an opinion in a New York gun possession case discussing the concept of constructive possession as well as the state’s “automobile presumption.” Ultimately, the court concluded that the jury’s verdict finding that the defendant possessed the gun was supported by the evidence and that the lower court’s instruction to the jury was appropriate under the circumstances.

The Facts of the Case

According to the court’s opinion, during routine patrol police officers observed a van with a missing tail light and initiated a traffic stop. The van did not stop, and sped away. Police officers followed the van and watched as a black object was thrown out of the rear passenger door. The officers continued to follow the van until it stopped, at which point an unidentified man ran from the van. The defendant exited the van and was arrested by police. Police later went back to obtain the object that was discarded from the van, and discovered that it was a shotgun. A shotgun shell was found during a search of the vehicle.

The case proceeded to trial, and at the conclusion of the evidence the court instructed the jury on the automobile presumption, which states that the presence of a gun inside a vehicle is presumed to belong to each person inside the vehicle unless the vehicle was stolen or the weapon was found on one of the occupants. The automobile presumption is an application of a legal theory called “constructive possession” which allows a jury to infer a defendant possessed an object based on the surrounding facts.

New York Court Suppresses Gun Found in Defendant’s Vehicle Based on Invalid Citizen’s Arrest Conducted by U.S. Customs Agent

December 4, 2018 | Tilem & Associates

A New York state appellate court issued a written opinion in a New York gun case presenting an interesting issue. Specifically, the case requires the court to determine if the defendant’s arrest was illegal because a U.S. Customs agent initiated a traffic stop outside of his jurisdiction and without authority to conduct the stop.

The Facts of the Case

According to the court’s opinion, a U.S. Customs agent was traveling on the highway in an unmarked truck when he observed the defendant driving dangerously. After the agent unsuccessfully tried to reach police through the radio in his vehicle, he called 911. As the agent was on hold with 911, the defendant’s vehicle exited the highway.

The agent continued to follow the defendant and eventually engaged his vehicle’s emergency overhead lights to stop the defendant. The defendant stopped, and the agent waited for on-duty officers to arrive, at which point the agent was sent home. During a search of the defendant’s car, a gun was found. The defendant was charged with criminal possession of a firearm.

New York Court Denies Defendant’s Motion to Suppress a Gun Found in the Trunk of the Car He Was Driving

November 22, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun possession case discussing two important concepts that frequently come up in any case involving a possessory offense, including New York drug crimes. Ultimately, the court concluded that the police officers acted appropriately and it denied the defendant’s motion to suppress a gun that was found in the trunk of his car.

The Facts of the Case

The defendant was arrested and charged with criminal possession of a firearm after police officers discovered a handgun in the trunk of a car the defendant was driving. According to the court’s written opinion, the police officers claimed that they initially approached the vehicle to request information from another man whose entire upper body was inside the trunk. As the officers approached the car, they noticed a gun in the trunk in plain view. The officers seized the weapon and arrested the defendant.

The defendant filed a motion to suppress the gun, arguing that the police were not justified in their approach of the vehicle and anything stemming from that illegal approach should be suppressed. The trial court denied the defendant’s motion to suppress and the defendant appealed.

New York Court Finds Police Had No Probable Cause to Arrest Defendant after Finding Ammo Magazines in His Pocket

November 16, 2018 | Tilem & Associates

As we have discussed many times, experienced criminal defense lawyers know, that seeking suppression of evidence can often be the best defense to a crime charging possession (of drugs, guns or other illegal items). Recently, a state appellate court issued a written opinion in a New York gun possession case. The case required the court to determine if the trial court properly granted the defendant’s motion to suppress. Ultimately, the court concluded that the police officers lacked probable cause to arrest the defendant, and affirmed the lower court’s decision to grant the defendant’s motion to suppress. In this case, both the trial Court and the Appellate Court concluded that the police lacked probable cause to arrest someone who was found to be in possession of a handgun magazine. It is important to note however that had this case been decided in New York City, where the administrative code of the City of New York makes it a crime to possess handgun magazines, the results may have been different.

The Facts of the Case

According to the court’s opinion, police received a call reporting a dispute at a local bar that possibly involved a gun. Upon arrival, police spoke to the bartender who told them that the defendant was the one suspected of having a gun. Police patted the defendant down, discovering that he had two ammunition clips in his pockets.

Police then arrested the defendant. A post-arrest search revealed no weapons, but the defendant’s car – which was parked across the street – was towed and impounded. The defendant was read his Miranda rights and consented to a search of the vehicle. While searching the trunk of the car, police recovered a stolen .45 caliber handgun.

New York Search and Seizure: The Four Levels of Police Intrusion

October 6, 2018 | Tilem & Associates

Earlier this month, a state court issued a written opinion in a New York gun case discussing whether a police officer’s actions in approaching, questioning, and searching the defendant were justified under the circumstances. Ultimately, the court concluded that the officer’s actions were unsupported by the requisite level of suspicion, and granted the defendant’s motion to suppress. In so doing, the court discussed the four types of police/citizen interactions.

The Facts of the Case

According to the court’s opinion, the defendant was walking down the street at around 2 a.m. The police approached from behind in an unmarked car. The police were not responding to an emergency call and had not received any information that a crime had been committed. As police approached the defendant from behind, they noticed he had a bulge in his pocket. However, they could not see the shape of the bulge and did not know what it was.

Police pulled up next to the defendant, stating “police, can you stop for a second?” The defendant put his cell phone up to his ear and began to walk away at a hurried pace, although he was not running. At this point, a police officer exited the vehicle and approached the defendant, again telling the defendant to stop. As the officer got closer, he could see the defendant was holding a handgun in his right hand. The officer rushed the defendant, seized the gun, and the arrested the defendant.

Possessory Offenses Under New York Criminal Law

September 17, 2018 | Tilem & Associates

New York criminal law does not, generally speaking, attach criminal liability to actions that are not accompanied by the requisite level of “guilty knowledge,” or mens rea. Thus, most New York crimes are broken down into at least two elements, the “act” element, and the “knowledge” or “intent” element. Even when a New York criminal statute does not specify that a certain level of knowledge or intent is required, courts will read in such a requirement. Possessory offenses are an excellent example of how this principle is applied by the courts.

A possessory offense is one in which the “act” element of the crime is fulfilled merely by possessing a prohibited object. New York drug and gun crimes are common examples of possessory crimes. For example, under New York Consolidated Laws Article 265, “a person is guilty of criminal possession of a firearm when he or she … possesses any firearm.”

At first glance, the wording of the statute would seem to indicate that anyone who has a weapon in their possession, regardless of whether they know they possess it, is guilty of the offense. However, criminal law disfavors this type of strict liability. Thus, courts generally require that a defendant knowingly possess a firearm before imposing criminal liability. It is important to note that the term “knowingly” goes to the object itself, and not the prohibited nature of the object. For example, a defendant who knowingly possesses a weapon but does not know that it is illegal to possess the weapon will be found to have “possessed” the illegal weapon.

Court Upholds Police Officer’s Search of Discarded Backpack in Recent New York Gun Possession Case

September 10, 2018 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York criminal law case discussing whether a police officer’s search of the defendant’s backpack was lawful. The Court examined whether the defendant abandoned property as a result of lawful or unlawful police conduct. Ultimately, the court concluded that the police officer was justified in his actions leading up to the point where the defendant discarded the bag. Thus, the court denied the defendant’s motion to suppress the gun.

The Facts of the Case

Police received an anonymous radio call that there was a man with a handgun riding the B9 bus towards Canarsie. Police waited at a bus stop, and when the defendant exited the bus, a police officer approached the defendant and asked him if he would mind talking to the officer for a moment.

At this point, the police officer claimed that the defendant became nervous and put his right hand into his pocket. When the police officer asked the defendant to remove his hand, the defendant refused. The police officer then drew his weapon and forcibly tried to remove the defendant’s hand from his pocket. The defendant fled and the police officer pursued him. Shortly thereafter, the defendant discarded the bag, the police officer searched the bag, and the police officer recovered the firearm.

New York Court Determines Warrantless Search of Motorhome Was Illegal

September 3, 2018 | Tilem & Associates

A state court recently issued an opinion in a New York gun possession case requiring the court to determine if a gun found in the defendant’s motor home was the product of an illegal search. Ultimately, the court concluded that the defendant’s motorhome was afforded the same protection as any other residence, and that the warrantless search was not justified.

The Facts of the Case

Police received a call that someone was stealing electricity by connecting their motorhome up to a telephone wire. Police responded to the scene to see the defendant’s motorhome connected to a nearby telephone pole by a wire coming out of the top of the motorhome.

According to police, an officer knocked on the door of the motorhome. When the defendant answered, police asked him about the wire, and the defendant admitted it was not legal. Police then put the defendant in handcuffs and walked him toward the police car. On the way to the car, police claimed that the defendant said “there is a gun in there.” Another officer then went into the motorhome, located the gun, and confiscated it.

New York Firearms Law Firm Announces Legal Action Against the NYPD Alleging Racial Bias in Pistol License Decisions

April 2, 2018 | Peter Howard Tilem

New York Firearms Law and Second Amendment Firm, Tilem & Associates has filed three legal actions, two in New York State Supreme Court and one in Federal Court in Manhattan alleging that the New York City Police Department Licensing Division uses factors in licensing decisions that disproportionately deny African-Americans gun licenses. In one outrageous case, the NYPD admitted to using false arrests, two arrests for which the NYPD was sued and ultimately settled, as part of the basis for revoking pistol licenses from an African-American.

The NYPD Licensing division is the division within the NYPD that is responsible for issuing and renewing pistol licenses in the City of New York, and has the authority to limit, suspend or revoke a handgun license subject to review by the New York State Supreme Court.

In February 2017, during a hearing at the NYPD License Division offices before an NYPD hearing officer, a Detective assigned to the investigation section of the License Division testified under oath about using dismissed arrests as a basis to recommend revocation of an African-American license holder’s license. In fact, and to the apparent surprise of the hearing officer, the Detective testified that anything reported to the NYPD License Division was considered an “incident” and that the Police Department did not necessarily consider the quality of the incidents but rather the sheer number and that included dismissed arrests. The Detective also admitted to considering dismissed arrests for which New York City settled 2 false arrests claims in his decision to revoke.

New York Appellate Court Upholds Lower Court’s Decision to Relieve Defendant’s Attorney Based on Conflict of Interest Issues

December 9, 2017 | Tilem & Associates

Ensuring that you have the right attorney handling your claim and representing your interests is critically important. At Tilem & Associates, our seasoned team of New York gun crime lawyers has handled countless matters involving criminal investigations and prosecutions. This means we not only feel confident in the courtroom but also understand the many different procedural and substantive aspects of your matter. As a recent New York appellate opinion demonstrates, it is essential to ensure that you have addressed all potential procedural issues as soon as possible.

The background of the case is as follows. The defendant brandished a firearm in front of a friend that was secured in his waistband and threatened to use it on another individual. He then went to a park, where he was seen near a specific individual. The police arrived, and the defendant and the individual fled in separate directions. Multiple witnesses testified to seeing defendant throw the gun, which was later located by the police. The police also found drugs, which the other individual admitted to owning. The defendant was charged with criminal possession of a weapon and resisting arrest. The other individual was charged with drug possession.

A public defender was assigned to the defendant’s claim. Roughly eight months later, the prosecution provided evidence showing that another public defender represented the other individual on his criminal charges stemming from this same set of facts. The attorney for the defendant stated that he intended to use the other individual as a potential witness for the defense before he learned about the potential conflict of interest. The defendant indicated that he wanted the public defender to continue representing him even though the attorney indicated that it may not be ethical for him to do so because another attorney in his office represented the other individual.