GUN CRIMES Category Archives — Page 8 of 17 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

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

September 7, 2020 | Peter Howard Tilem

Earlier this year, a state appellate court issued an opinion in a New York gun possession case, requiring the court to review the lower court’s decision denying the defendant’s motion to suppress. After reviewing the facts and applicable legal principles, the court agreed with the court below, affirming the denial of the defendant’s motion to suppress a firearm that he discarded while being chased by police officers.

The Facts of the Case

According to the court’s opinion, a confidential informant told his parole officer that “two individuals would be in a specified area in a silver or gray Pontiac and would have a firearm in the vehicle.” Police officers traveled to the location, where they saw a vehicle matching the description provided by the informant.

While the police officers were following the car, they claim that the driver failed to signal at least 100 feet before making a turn. The officers pulled over the vehicle. The defendant was in the passenger seat. The officers asked the defendant several questions, claiming that he was slow to answer and seemed nervous. The officers asked the defendant out of the vehicle and immediately held his hands behind his back.

New York Court Denies Defendant’s Motion to Suppress Based on Lack of Standing

August 8, 2020 | Peter Howard Tilem

Last month, a state appellate court issued a written opinion in a New York gun case, raising the issue of whether the defendant had standing to bring a motion to suppress the physical evidence in the case. Specifically, the defendant intended on suppressing a firearm that was found in a backpack. The lower court denied the defendant’s motion without specifying a basis. On appeal, the court determined it was unable to decide the case without having the benefit of the lower court’s reasoning. The appellate court remanded the case so the lower court could provide its reasoning.

The Facts

According to the court’s opinion, police officers found and searched a backpack that was in the back yard of a vacant house in Queens. Inside the backpack was a gun. The defendant’s godmother lived next door to the vacant house. At the time when the police found the backpack the defendant and seven other people were present in that home. Police officers arrested all seven people. Later, at the police station, the defendant admitted that the backpack and gun belonged to him.

The defendant filed a motion to suppress the gun, as well as his statement, from evidence. The defendant argued that the officers lacked a warrant or probable cause to search the backpack. In response, the prosecution argued that the defendant lacked standing to bring the motion. The court denied the defendant’s motion without providing any reasoning. On appeal, the court sent the case back down to the trial court so that court could clarify its holding.

New York Court Condones Traffic Stop Conducted by Customs and Border Patrol Agent

August 2, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the defendant’s motion to suppress a weapon that police officers found in his car. The case presents a unique issue in that a federal marine interdiction officer – not a police officer – conducted the traffic stop. Ultimately, the court held that the stop was valid.

The Facts of the Case

According to the court’s opinion, a federal marine interdiction agent with the United States Customs and Border Protection was driving an unmarked car when he pulled onto the highway. As he did so, the agent noticed a pair of headlights approaching quickly in his rear-view mirror. As the lights got closer, the driver of that car slammed on his brakes to avoid hitting the agent’s vehicle. The agent noticed as the driver continued to drive erratically.

The agent called police on his personal cell phone to report the incident. At some point, the agent activated his blue-and-red emergency lights and stopped the car the defendant was driving. The agent waited with the defendant until the police arrived. Police searched the defendant’s car and found a gun.

New York Gun Rights Attorneys Announce New Pre-Paid Legal Service for New York Gun Owners

June 2, 2020 | Peter Howard Tilem

Tilem & Associates, New York’s premier law firm for gun owners is pleased to announce the creation of a new pre-paid legal program, NY Tac Defense, for New York gun owners which includes legal representation for self-defense cases and red flag (ERPO) cases for enrolled clients. Clients enrolled in the NY TAC DEFENSE can pay either a low monthly rate of $38.50 per month or can enroll in a discounted annual plan which is $385 for the year and is the equivalent of getting two months free.

Peter H. Tilem, the owner of Tilem & Associates, PC, spent 10 years in the New York County District Attorney’s Office where he was assigned to work on a variety of cases which included gun cases and homicides. Since entering private practice Mr. Tilem has represented a large number of gun owners and has been involved in many justification or self-defense cases.

As of May 2018, several insurance programs, including NRA Carry Guard and a USCCA (United States Concealed Carry Association) program were being offered in New York but were subsequently alleged to be violating New York insurance regulations. Both programs and others have since pulled out of the New York market. The NY TAC Defense Program is a pre-paid legal product that allows clients to retain the firms services and pre-pay the legal services so that if they need to hire a lawyer for a self-defense shooting the client will not need to come up with a large lump sum retainer of $50,000 or more to retain a law firm. It is not insurance and therefore does not indemnify against any losses. It is simply an opportunity to retain a lawyer in advance.

New York Court Suppresses Gun Found Following Traffic Stop

May 31, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued a written opinion in a New York gun case, reversing a lower court that found the defendant’s motion to suppress lacked merit. In holding that the defendant’s motion should have been granted, the appellate court explained that the defendant’s conduct failed to provide the officer with probable cause to search the vehicle without a warrant.

The Facts of the Case

According to the court’s opinion, a police officer saw the defendant make a left turn without using a signal. As the officer initiated the traffic stop, the defendant pulled into a driveway. The defendant initially got out of the vehicle, but the officer told him to get back inside. The defendant was unable to open the window, explaining to the officer that it was broken. Eventually, the defendant moved to the passenger side, opened the door, and fled.

Once the officer caught the defendant, the defendant explained he ran because he had a warrant for his arrest. The officer went back to the defendant’s car, noticing the smell of marijuana. The officer looked through the car, finding small baggies and a substance that he believed was crack cocaine. The officer then obtained a warrant to fully search the car. Upon searching the vehicle, the officer found a semi-automatic handgun.

New York Court Finds Inexperienced Officer Lacked a “Founded Suspicion” to Stop, Question, and Search Defendant

May 19, 2020 | Peter Howard Tilem

Last month, a state appellate court issued a written opinion in a New York gun possession case discussing whether the arresting officer had a “founded suspicion” that there was criminal activity afoot. Ultimately, the court held that the defendant’s motion to suppress the firearm that was found on him should have been granted, because the arresting officer approached, stopped, questioned and subsequently searched the defendant without sufficient reason.

The Facts of the Case

According to the court’s opinion, the defendant was out walking his dog in an area known to be an “open air drug market” when he was approached by a police officer. That night, the temperature was about 40 degrees, and the defendant was wearing a mask that covered part of his face. The officer, who had only been on the force a few months and was working underneath a more experienced officer, pulled his vehicle in front of the defendant’s line of travel, got out of the car, and approached the defendant to ask him why he was wearing a mask. The defendant responded that he was walking his dog.

At this time, the more experienced training officer asked the defendant what was in a bag that he was carrying. The defendant responded that it was “weed.” The arresting officer then frisked the defendant and found a gun. The defendant filed a motion to suppress the gun, arguing that the arresting officer lacked reason to stop and question him, as well as to conduct the pat-frisk that led to the discovery of the gun.

Supreme Court Issues Opinion Impacting New York Defendants with Prior Drug Convictions

May 13, 2020 | Peter Howard Tilem

As we reported in February, the Supreme Court heard argument on a drug case that will likely have significant consequences for many facing New York gun charges. Now, the United States Supreme Court issued a written opinion in the case. Specifically, the case required the Court to interpret the provision of the Armed Career Criminals Act (ACCA) imposing mandatory sentences for those who are convicted of a gun offense after having previously been convicted of at least three drug offenses.

The ACCA seeks to impose escalating punishments for the possession of a firearm, based on a defendant’s prior record. For example, if a defendant is convicted of a gun offense, and has three prior “serious drug offenses,” the defendant is subject to a mandatory minimum sentence of at least 15 years. Of course, not every state’s laws are written the same way, and this requires federal courts to determine whether a drug conviction should be considered a “serious drug offense” under the ACCA.

The Facts of the Case

According to the Court’s opinion, the defendant pleaded guilty to a firearm offense and, based on the defendant’s six prior cocaine-related convictions, he received a sentence of 15 years’ incarceration. On appeal, the defendant challenged the lower court’s finding that the six offenses qualified as “serious drug offenses” under the ACCA.

Court Discusses New York Automobile Exception to the Search Warrant Requirement

May 7, 2020 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the automobile exception to the search warrant requirement. Generally, law enforcement must obtain a search warrant that is supported by probable cause before they can conduct a search. However, over the years, courts have crafted a variety of exceptions to the warrant requirement. One of the most often cited exceptions is the automobile exception.

The automobile exception came about based on the understanding that vehicles are mobile. Thus, if police officers were required to obtain a warrant to search a car, there would be a risk that the officers would not be able to locate the car again, or that any evidence inside the car could be hidden or destroyed. Thus, if an officer has probable cause to believe that there may be evidence or contraband inside a vehicle, the officer can search the vehicle without a warrant.

According to the court’s opinion, police officers witnessed the defendant give a carton of cigarettes to another man in exchange for money. The officers approached the defendant, who was standing near the open door of a van. As the officers got closer to the van, they could see that it was full of duffle bags and that one of the bags contained additional cartons of cigarettes. One of the officers then opened one of the packs in the carton that the defendant had just exchanged, noticing that there was no New York tax stamp. Officers arrested the defendant. Before driving the defendant’s car back to the station, one of the officers conducted a “quick check” of the vehicle, finding a firearm under the passenger seat.

The 12 Most Ridiculous Gun Laws

April 7, 2020 | Peter Howard Tilem

As Second Amendment lawyers in New York you would imagine that we are familiar with idiotic “gun control” laws. Which is why an article in this month’s Ballistic Magazine about the twelve most idiotic gun laws caught my eye. To be sure New York, along with neighboring New Jersey are well represented on this list. So lets go through them

New Jersey’s ban on hollow points. Yes, believe it or not New Jersey wants everyone running around with full metal jackets. Hollow points are illegal every place except at the place of purchase, your home, the range or hunting. Although the law is so poorly written that expanding bullets like Federal Guard Dog and bullets with the tip filled with polymer like Critical Defense/Duty are legal.
Back to New Jersey, New Jersey also treats BB guns and Antique Black Powder weapons as modern firearms. You need the New Jersey State Firearms ID Card just to buy them.

New York Court Affirms Denial of Motion to Suppress, Finding the Defendant Consented to the Search

March 7, 2020 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York gun possession case involving the denial of the defendant’s pre-trial motion to suppress. Motions to suppress are often the most critical stage of a trial in cases involving guns or drugs, especially where the contraband item is found on the defendant. In this case, the court ultimately upheld the denial of the defendant’s motion to suppress, finding that the defendant gave the officers consent to search his car.

Consent is one of the few major exceptions to the warrant requirement. Generally, law enforcement needs a warrant to conduct a search of a person or their belongings. To obtain a warrant, an officer must establish that there is probable cause to believe that a crime was committed, and the search would turn up evidence of that crime. However, if a suspect consents to a search, that eliminates the need for an officer to obtain a warrant. To be valid, consent must be voluntary, and cannot be forced or coerced. Courts look to the surrounding circumstances to determine the validity of a suspect’s consent.

According to the court’s opinion, police received a 911 call stating that a man was banging on a hotel door with a gun. Police arrived and began to speak with the defendant outside the hotel room. He was not handcuffed at the time.