GUN CRIMES Category Archives — Page 16 of 17 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

NEW YORK GUN CRIMES – CRIMINAL POSSESSION OF A WEAPON IN THIRD DEGREE

April 15, 2009 | Tilem & Associates

New York criminal defense lawyers, especially those that handle New York gun possession cases, know that New York has some of the most onerous laws restricting the possession, ownership and use of weapons of all types. This blog presents a brief overview of Criminal Possession of a Weapon in the Third Degree (CPW 3rd) (See NY Penal Law 265.02).

There are several ways one may commit CPW 3rd. First, a person is guilty of CPW 3rd in New York if they commit the crime of Criminal Possession of a Weapon in the Fourth Degree (CPW 4th) and have been previously convicted of any crime. [See Penal Law 265.02(1) for exact wording] .

Second, one is guilty of CPW 3rd if they possess any incendiary or explosive bomb, bombshell, silencer, machine gun or any other firearm or weapon simulating a machine-gun and which is adaptable as a machine gun. [See Penal Law 265.02(2) for exact wording] .

NEW YORK GUN LAWS – WHEN YOUR UNLOADED GUN IS REALLY LOADED

March 23, 2009 | Tilem & Associates

Tilem & Campbell is fortunate to have former Firearms Trafficking prosecutor Peter H. Tilem as its Senior Partner able to advise clients on all aspects of New York gun possession. Under New York law, the severity of a Criminal Possession of a Weapon charge dealing with a firearm can hinge on whether the firearm was loaded or not. For example, one may be charged with Criminal Possession of a Weapon (CPW) in the Fourth Degree for simply possessing a firearm [See PL 265.01(1)]. Criminal Possession of a Weapon in the Fourth Degree does not require that the firearm be loaded. Therefore, one is guilty of CPW 4th if they simply possess an unloaded firearm without proper licensing. Criminal Possession of a Weapon in the 4th degree is an “A” misdemeanor that carries up to one year in jail.

However, if one possess a loaded firearm outside their home or business, the charge is CPW 2nd, a “C” felony which carries a mandatory minimum 3 ½ year to a maximum 15 years in state prison. [See PL 265.03(3); PL 70.02(3)(b)]. Therefore, if you possess an operable firearm outside your home or place of business, the difference between facing an “A” misdemeanor (CPW 4th) which carries up to one year in jail with no mandatory minimum (which means probation is possible) and the “C” felony (CPW 2nd) which carries a mandatory minimum of 3 ½ years in state prison has everything to do with whether the firearm was loaded.

Here’s the problem. Your unloaded gun might be considered loaded under New York law. Under the Penal Law, a “Loaded firearm” is defined as any firearm actually loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses ammunition for that firearm. [See PL 265.00(15) for the exact definition of “loaded firearm”]. Therefore, the term loaded firearm means not only a truly loaded firearm but also the contemporaneous possession of an unloaded firearm and ammunition for that firearm. Accordingly, under the law of New York State, an unloaded firearm may actually be considered a loaded firearm.

NEW YORK’s VEHICLE PRESUMPTION – NEW YORK DRUG AND NARCOTICS CASES – Marijuana Not Included Part II

December 20, 2008 | Jasmine Hernandez

As discussed in the previous blog, under certain circumstances, all occupants of a vehicle can be presumed to possess drugs, guns or other weapons found within the vehicle. We also discussed the effect of the presumption on the New York criminal case and went into some detail about the presumption as it applies to New york gun cases and New York Weapon cases.

Now we discuss the vehicle presumption as it applies to New York controlled substance cases. With certain drug possession offenses carrying a mandatory minimum of eight years, the stakes are very high when traveling in a vehicle with someone who may possess illegal drugs. Similar to the gun presumption, New York’s drug presumption applies to all vehicles except public buses (it applies in stolen vehicles unlike the gun presumption). According to a strict reading of the statute, the drug presumption applies to all persons in the vehicle at the time the drugs are found. Since generally the police take all of the occupants out of the vehicle, I would argue that in such a case the presumption does not apply.

Like the gun presumption, the drug presumption does not apply in three circumstances. The presumption does not apply to a cab driver or livery cab driver. It does not apply if a person in the vehicle is authorized to possess the controlled substance (has a prescription for the drug) and the drug is in the same packaging as when he received it. The presumption also does not apply when the drugs are found on the person of one of the occupants.

NEW YORK’s VEHICLE PRESUMPTION – KNOW WHO YOU’RE IN THE CAR WITH (AND WHAT THEY HAVE) Part I

December 17, 2008 | Jasmine Hernandez

New York Criminal Law establishes a presumption that all people in a vehicle are presumed to possess either drugs or guns that are found within the vehicle. What that means is that in New York each and every person inside a car will generally be charged with gun possession or drug possession for contraband that is found anywhere in that car, regardless of where the drugs or guns are found. (With certain exceptions, some of which are discussed below.)

NEW YORK GUN POSSESSION PRESUMPTION

In the case of gun, with possession of a loaded gun in New York carrying a mandatory minimum of three and one half years in prison, you are taking a tremendous chance driving with someone who may have an illegal gun. The New York gun presumption applies to all vehicles except stolen vehicles and public buses and applies not only to firearms but other weapons. The presumption has three major exceptions. The presumption does not apply if the weapon is recovered on the person of one of the occupants of the vehicle. It does not apply to the driver of a cab or livery cab and the presumption does not apply if one of the occupants has a license to carry the weapon concealed.

NEW YORK FIREARMS AND OTHER WEAPONS CHARGES – PART III – ADDITIONAL DEFINTIONS

December 5, 2008 | Tilem & Associates

If you are charged with a New York gun or New York firearm offense it is imperative that your criminal defense attorney be completely familiar with the legal definitions of relevant terms. These definitions are found in New York Penal Law § 265.00. In this blog I will summarize several legal definitions applicable to Articles 265 and 400 of the New York State Penal Law. For more information visit our website.

FIREARM SILENCER – PENAL LAW § 265.00(2)

Generally, a firearm silencer is anything that silences, lessens or muffles the sound of the firing of a revolver, gun, pistol or other firearm (for the exact definition of “firearm silencer” see NY Penal Law § 265.00(2).

NEW YORK FIREARMS AND OTHER WEAPONS CHARGES – PART II – MACHINE GUN

December 1, 2008 | Tilem & Associates

In the introduction of my series of blogs pertaining to firearms, gun possession and other weapons charges, I discussed the need for experienced and competent legal representation. I also explained that Tilem & Campbell’s Senior Partner Peter Tilem was formerly an Assistant District Attorney in Manhattan and worked extensively in the Gun Trafficking Unit.

In this blog I will discuss the legal definition of a “machine gun”. Offenses pertaining to firearms and other dangerous weapons are found in Article 265 of the New York State Penal Law. Section 265.00 of the Penal Law (which is the first section of Article 265) contains the definitions for terms used in Article 265 as well as Article 400 of the Penal Law.

MACHINE GUN – NY PL § 265.00(1)

NEW YORK FIREARMS, GUN POSSESSION AND OTHER WEAPONS OFFENSES – INTRODUCTION

November 27, 2008 | Tilem & Associates

If you have been charged in New York or in Federal Court with any type of gun possession, firearm offense or other offense involving weapons or dangerous instruments, you must have qualified and experienced legal representation. The stakes are high. In New York, simply possessing a loaded, operable, unlicensed firearm outside your home or business carries a mandatory minimum 3 ½ year sentence if convicted. That means if you are convicted, you will do a minimum of 3 ½ years “upstate” prison time.

Tilem & Campbell can provide you the skilled legal representation you need should you be charged with a firearms offense. Not many attorneys can match Senior Partner Peter Tilem’s experience, expertise and inside knowledge of firearm and gun offense prosecutions. Prior to entering private practice, Mr. Tilem spent ten years as an Assistant District Attorney in the Manhattan District Attorney’s office. For several of those years, Mr. Tilem was with the Firearms Trafficking Unit of the Manhattan District Attorney’s Office which was a multi-agency operation combining New York State, New York City and Federal law enforcement agencies such as the FBI and the ATF in multi-jurisdictional illegal gun trafficking investigations and prosecutions. As part of his prosecutorial duties with the firearms trafficking unit, Mr. Tilem traveled the east coast investigating and building cases against those involved with illegal firearms distribution.

Certainly there are other highly qualified defense attorneys. However, if you are charged with a gun, firearm or other weapons offense, ask your attorney or potential attorney if they have ever worked as an Assistant District Attorney investigating and prosecuting multi-jurisdictional and multi-agency gun and firearm trafficking cases firsthand. Their answer will most likely be no. Ask Peter Tilem of Tilem & Campbell if he has first hand experience in investigating and prosecuting these cases and the answer will be absolutely yes.

NEW YORK CRIMINAL DEFENSE FIRM WINS ANOTHER DISMISSAL IN NEW YORK GUN CASE

September 25, 2008 | Peter Howard Tilem

New York Criminal Defense Law Firm, Tilem & Campbell, scored another major victory in a New York gun case when it won a complete dismissal of all charges in a Bronx County case yesterday using a federal defense under the Firearm Owners Protection Act (FOPA). The original charges included Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. The Defendant faced a minimum sentence of 3 and 1/2 years in prison on the Second Degree charge which is a class “C” violent felony.

The case was won using a little known Federal Defense that provides a defense to gun charges in all 50 states for those transporting firearms from one place where they may legally possess that gun to another such place if done so in accordance with federal law.

The victory comes on the heels of a string of major victories in the past three months for Tilem & Campbell which included another dismissal of felony gun charges in a Brooklyn Gun case in June and the sentencing earlier this month to house arrest for a person charged in Federal Court with trafficking in a large number of firearms from Texas to New York. Unfortunately, the firm suffered one loss back in June when a Tilem & Campbell client was convicted by a jury of gun possession.

Tilem & Campbell Scores Major Victory in Another New York Gun Case

September 8, 2008 | Jasmine Hernandez

This time in a Federal Gun Case involving the Interstate Transportation of Firearms, the New York criminal defense law firm of Tilem & Campbell scored another huge victory when Federal District Judge Stephen Robinson refused to sentence Tilem & Campbell’s client to prison. Instead, the defendant was sentenced to two years of Probation with a portion of that time being on home detention. The sentencing victory capped a long fought case in which both the Probation Office and the United States Attorney’s Office were asking for a term of imprisonment.

The case was handled by Tilem & Campbell’s senior partner, New York Attorney Peter Tilem, who himself was a prosecutor in the Firearms Trafficking Unit of the New York County District Attorney’s Office. Tilem & Campbell, a White Plains based law firm, handles a wide variety of gun cases in both New York State and Federal Court and maintains the website handgunattorney.com.

The case was handled in the United States District Court for the Southern District of New York and was before Judge Stephen Robinson sitting in the Federal Courthouse in White Plains.

US SUPREME COURT STRIKES DOWN DC GUN BAN

June 26, 2008 | Jasmine Hernandez

In a landmark decision that was closely watched by New York criminal lawyers and attorneys throughout the Country, The United States Supreme Court struck down Washington DC’s ban on handguns. As discussed in our earlier March 19, 2008 blog, the decision is monumental because it marks the first time the Court has recognized that the right to “keep and bear arms” applies to individual citizens and not only State Militias. The fact that the Supreme Court now recognizes an individual right raises many questions about the legality of the gun laws throughout New York and the North East.

To me, as an attorney who was a member of the firearms trafficking unit of the District Attorney’s office in Manhattan and has handled numerous gun cases throughout my career, this decision raises more questions than answers. For example, while the Court has prohibited a total ban on guns, to what extent will Courts allow “Reasonable Restrictions” on the ownership of handguns? Will the Courts permit onerous licensing and registration laws to continue? To what extent does this effect individuals facing the mandatory minimum three and one half year sentence for those charged with possession of a loaded firearm in New York?

At Tilem & Campbell we are continuing to analyze the decision with an eye toward helping our clients navigate the maze of New York gun laws. A further blog on this topic in the coming weeks will further discuss the ramifications of the decision.