GUN CRIMES Category Archives — Page 5 of 17 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

New York Court Denies Motion to Suppress in Possession of Firearm Case

December 22, 2021 | Peter Howard Tilem

In a recent opinion involving a New York gun possession conviction, the defendant’s motion to suppress was denied. On appeal, the defendant attempted to establish that the police officers who found a firearm in his backpack did not have the right to search him in the first place. The court disagreed, denying the motion to suppress and affirming the defendant’s conviction.

Facts of the Case

According to the opinion, a police officer and his partner were patrolling the streets at approximately 11:00 pm one evening. While inside their vehicle, the pair received a radio call reporting that an individual had been shot nearby. The radio call specified that at the scene of the crime, there was a “Black male wearing a white t-shirt” with a backpack. According to the call, the male in question was carrying a gun.

Less than a minute later, the officers arrived at the location of the shooting. Upon a search of the area, it appeared to the officers as though no one had been shot. The officers did see, however, that a woman nearby was standing close to the defendant, a Black male wearing a white t-shirt. The woman was yelling at the defendant, accusing him of threatening her with a gun.

New York Court Partially Sides with Defendant in Drug and Firearms Case

December 10, 2021 | Peter Howard Tilem

Recently, a New York court denied a defendant’s motion to suppress incriminating statements but granted his request for a new hearing in a drug and firearms case. The defendant had been indicted and tried for possession of firearms and controlled substances, but he appealed the verdict by saying that his statements to police officers should have been suppressed. The court denied this motion to suppress but did grant the defendant another hearing based on a second argument he made – that the court did not properly consider whether the DNA evidence used against him was properly analyzed. The court thus reversed the verdict and sent the case back down to the lower court for a new trial.

Facts of the Case

According to the opinion, police officers in Brooklyn (executing a search warrant they had previously obtained) entered the defendant’s apartment to conduct an investigation. Pursuant to police department policy, the officers handcuffed the defendant upon entry. While inside the apartment, a detective asked the defendant his name, date of birth, address, height, and weight. No Miranda warnings were given prior to this line of questioning. At that point, the defendant stated that his children’s mother was letting him stay in the apartment. He also motioned toward a bed in the living room.

After the defendant left his apartment, the officers found weapons, drugs, and drug paraphernalia in one of the apartment’s back bedrooms. The defendant was later indicted and tried on several counts related to the possession of firearms and controlled substances.

RITTENHOUSE CASE SHOWS THE EXTENT TO WHICH PROSECUTORS WILL GO TO PROSECUTE LAWFUL GUN OWNERS

November 22, 2021 | Peter Howard Tilem

As New York Self Defense lawyers, and as the providers of the only pre-paid legal plan for gun owners available in New York, we actively monitored the Kyle Rittenhouse case with both shock and amazement. Shock at the fact that the case was brought but also amazement at the lengths the prosecutor would go to get a conviction. To be clear, the jury verdict was correct and Kyle Rittenhouse appeared justified to use deadly physical force to protect his own life. At the very least, it is clear, that there was a reasonable doubt about whether he reasonably believed that deadly physical force was necessary to protect his own life, thus justifying the jury verdict.

The prosecutions’ own witnesses largely helped the defense. The testimony of the only surviving “victim” Gage Grosskreutz was critical for the prosecution but turned out to help the defense case when he admitted that Kyle Rittenhouse didn’t shoot him until he pointed a weapon at Rittenhouse and advanced toward him pointing a gun. The testimony of another prosecution witness, Richard McGinniss, also severely damaged the prosecution’s case when he testified that Joseph Rosenbaum, who was shot and killed by Rittenhouse seemed very angry as he lunged for Rittenhouse’s gun. Presumably, the prosecutor knew what these witnesses were going to say. Presumably, the prosecutor had interviewed these witnesses and prepared them for their testimony and cross-examination. Yet the case was brought anyway.

Additionally, the prosecutor’s cross-examination of Kyle Rittenhouse himself, shows a certain level of desperation. The prosecutor asked Mr. Rittenhouse about his post-arrest silence, a clear no-no which provoked a severe rebuke from the judge. That line of questioning was really bewildering considering that even a first year law student who has taken basic Constitutional Law would know not to ask a defendant about his post arrest silence. Then the prosecutor, in violation of the trial judges pre-trial rulings went into an area of questioning that he was specifically ordered by the judge not to ask. However, one of the most surprising and truly desperate questions came when the prosecutor asked Rittenhouse if his user name on TikTok was “4doorsmorewhores” in an attempt to make him look dirty.

New York Court Denies Defendant’s Motion to Suppress in Recent Gun Case

November 15, 2021 | Peter Howard Tilem

In a recent opinion from a New York court, a defendant’s motion to suppress was denied. The defendant was charged with criminal possession of a weapon after police arrived at his building to investigate a domestic disturbance. He argued on appeal that the officers who found the gun violated his privacy rights by entering into his private residential building. The court disagreed, denying his appeal and sustaining his verdict.

Facts of the Case

According to the opinion, police arrived at the defendant’s house after having received a call from the defendant’s father-in-law reporting that he was choking his wife. Officers arrived at the scene and, because they were unable to make contact with the defendant, positioned themselves outside of the apartment building in a nearby alley. Meanwhile, the defendant opened his second-floor window and threw a black backpack into the window of a neighboring building. He came out onto his porch to speak with the officers and stated several times that he had a gun.

Suddenly, the defendant raised what appeared to be a gray-colored object toward the officers, and officers shot him two times. While he was transported to the hospital, the officers searched inside the black backpack and recovered a rifle and ammunition.

ARE EIGHTY PERCENT LOWERS LEGAL IN NEW YORK (IT DEPENDS)

October 28, 2021 | Peter Howard Tilem

As New York’s premier Second Amendment Lawyers we are monitoring pending legislation to criminalize the

Click Here For A Critical Update on 80% Lowers in New York

possession and sale of 80% (Eighty Percent ) lowers in NY. These unfinished frames have been a recent target of the anti gun crowd who often refer to these unfinished frames or receivers as “Ghost Guns.” Currently there are no laws on the books in New York State that ban the sale or possession of 80% lowers however legislation is currently pending in Albany and a relatively recent and very ambiguous law was recently passed in New York City which makes in a crime to possess or sell an “unfinished frame or receiver.”

New York Court Affirms that Tips Called in to 911 Must Be Reliable to Justify a Warrantless Stop

October 8, 2021 | Tilem & Associates

In many cases, such as gun cases or drug cases, law enforcement agencies rely on the public to report criminal or suspicious activity to the police or emergency phone line. Tips received by police from the public can help an officer form reasonable suspicion that someone has committed, is committing, or is about to commit a crime. With reasonable suspicion, police officers may be able to stop, detain, question, and search a suspect without a warrant. Because of this, tips from the public are often used by police officers to justify warrantless searches.

Although a phone-in tip can help an officer have a valid reasonable suspicion that criminal activity is afoot, the existence of a tip, particularly an anonymous tip, is not in itself sufficient to justify performing a search without a warrant. The New York Court of Appeals, New York’s highest court, recently reversed a trial court ruling that permitted an officer to search a car without a warrant based on a phoned-in tip.

The defendant from the recently decided appeal was riding in a friend’s vehicle when they were stopped by police. According to the facts discussed in the appellate opinion, the arresting officer had received a radio call from dispatch that someone in a vehicle matching the description of the van the suspect was riding was reported to be visibly brandishing a firearm. Based on the tip and the vehicle description, the police stopped the vehicle and performed a search for weapons, without consent or a warrant. After a firearm was found in the defendant’s possession, he was arrested and charged with a gun offense.

New York Court Denies Defendant’s Motion to Suppress Gun

September 2, 2021 | Peter Howard Tilem

In a recent opinion from a New York court involving a New York gun case, the defendant’s motion to suppress was denied. The defendant was convicted of gun possession in the third degree and filed a motion to suppress the gun found in his coat pocket during the initial 40 seconds of a traffic stop. The state appellate court denied the motion because they found that the search was not a “level three” detention and that there was reasonable suspicion of criminality.

The Facts of the Case

According to the opinion, a parole officer tipped the police officers of the defendant possibly owning a gun. Police officers conducted a traffic stop, stopping the defendant due to the defendant violating traffic laws and having a suspended license. The officers directed the defendant to exit the vehicle and an officer grabbed the defendant’s arm as he exited the vehicle.

A POLICE OFFICER RESPONDS TO OUR LAST BLOG ABOUT HANDCUFFING A LICENSED GUN OWNER

August 13, 2021 | Peter Howard Tilem

A very close friend of mine who is a retired police officer wrote me a very interesting response to our last blog about whether it is lawful to handcuff a licensed gun owner while an officer verifies the validity and authenticity of a gun license. I know this retired officer to be extremely pro Second Amendment and so it was so interesting to hear from an actual police officer who has had to deal with these issues. The two main take-aways are, in my opinion, that there is a complete lack of training (or at least there was back then) on Second Amendment issues and so much of what happens on the street could be remedied if people (including officers) just act nicely and use their words. I know this particular officer and I know that he is not a bully and rather is very good at obtaining compliance with his words. As he points out, if he was a jack a$$, he probably would me in the law books also. I have reprinted his comments below, verbatim except to remove identifying information.

I just read your post about the Connecticut incident. In my rookie year, I was sent to a house on a report of the homeowner mowing his grass while possessing a firearm in an open carry manner. The complaint was the next-door neighbor who had multiple disputes with the subject over the complainant’s dog.

One month prior, the dog got out and almost bit the man who was mowing the grass while he was unloading groceries from his car.

MAY A POLICE OFFICER HANDCUFF A LICENSED GUN OWNER WHILE HE VERIFIES THE AUTHENTICITY OF THE GUN LICENSE?

August 12, 2021 | Peter Howard Tilem

As the providers of the only pre-paid legal service for gun owners in New York, NY TAC DEFENSE, we are constantly monitoring the law as it pertains to gun ownership in New York. A recent Connecticut case, decided earlier in the week, is worthy of reporting since Connecticut is in the Second Circuit with New York and this case will probably be reviewed by the Court of Appeals in the Second Circuit and any decision will likely become binding law in New York. In the case of Soukaneh v. Andrzejewski, Basel Soukaneh, sued a Waterbury Police Officer who stopped his vehicle one night. The law suit was filed in the Federal district Court for the District of Connecticut. Soukaneh alleged that when he was stopped he handed the police officer his driver’s license and gun license and indicated that he was armed. The Police Officer reacted by handcuffing Mr. Soukaneh while he verified the authenticity of the gun license and while the officer searched the passenger compartment and trunk of the vehicle.

The police officer filed a motion for summary judgment seeking to have the lawsuit dismissed. Among his arguments were that he had probable cause to believe that Basel Soukaneh was in possession of a firearm without a permit until he was able to verify the validity of the permit. Therefore, Police Officer Andzejewski thought he was justified in handcuffing and detaining Mr. Soukaneh. The Court found this conduct to constitute a de facto arrest. The Court strongly disagreed finding that since it was undisputed that the police officer found out that there was a gun in the car either at the same time or after the officer was given the license, that “no reasonable officer” could conclude that they possessed probable cause that Mr. Soukaneh was violating Connecticut law.

The Court likened the firearms license to a driver’s license and concluded that the same way it would be unconstitutional to presume that a driver’s license was invalid and to detain the driver until its validity was verified, it must be unconstitutional to presume that a firearms license was invalid and detain the gun owner until it was verified. The Court found that a contrary finding would “eviscerate Fourth Amendment protections for lawfully armed individuals.”

Court Grants Defendant’s Motion to Suppress Based on Officers’ Contradicting Testimony

July 22, 2021 | Peter Howard Tilem

Recently, a state appellate court released an opinion in a New York gun case requiring the court to determine whether it was legal for officers to obtain the defendant’s gun, ammunition, and DNA evidence after a police pursuit. Ultimately, the court determined that the officers gave contradicting testimony about the incident and ordered the suppression of evidence, the firearm, obtained from the police pursuit. The case illustrates the strict procedures that law enforcement must follow when investigating a crime or arresting an individual.

The Facts of the Case

According to the court’s opinion, police officers observed an object bulging out of the defendant’s right waistband. One officer stepped out of the vehicle, causing the defendant to flee. Both officers testified with different versions of events. The first officer stated that she began running after the defendant and attempted to grab him, which led to the defendant dropping a gun. The second officer testified that the first officer attempted to grab the defendant before he began running, causing the defendant to drop the gun before the officer chased him.

The defendant was arrested, and a gun, ammunition, and the defendant’s DNA profile was recovered from the scene. Despite the different testimonies by the officers, the court denied the defendant’s motion to suppress the evidence.