Legal Terms Defined Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

CRITICAL UPDATE ON 80% LOWERS IN NEW YORK

December 28, 2021 | Peter Howard Tilem

In October we wrote an extensive blog about the legality of 80% Lowers in NY and indicated at that time that the law in New York could be changing on eighty percent lowers because legislation was pending in Albany. Well later the same day that we here at Tilem & Associates posted that blog, Governor Kathy Hochul signed a package of new legislation which changed the legality of 80 percent lowers in New York.

Among the changes are the fact that that it will be illegal to possess an unfinished receiver or an unfinished frame often referred to as an eighty percent lower. It becomes illegal to possess these unfinished frames or receivers from six months after the date the law becomes effective. Unfinished frames and unfinished receivers are defined very broadly under the law and include any material that doesn’t constitute a receiver or frame but which has been formed and/or shaped to allow it to become a frame or receiver for a shotgun, rifle or pistol and which can be “readily” made into a receiver or frame that is functioning. What readily made means is not defined so it is unknown if a receiver that is 70% finished, 60% finished or only 20% finished would be legal.

The new law makes it a crime to possess unfinished receivers or frames and makes it a separate crime to sell unfinished receivers or frames. This would seemingly make it illegal for internet sellers of firearms parts to sell polymer 80 or other 80% lowers and ship them into New York State.

IS IT ILLEGAL TO USE A FAKE VACCINE CARD

September 26, 2021 | Peter Howard Tilem

Vaccine cards have become commonplace in New York, throughout the US and indeed the world. Like everything else of value, there has been a black market in fake vaccine cards that has evolved and has taken hold as the vaccine becomes mandatory in so many places. To make matters worse, as the vaccine initially rolled out, there was an emphasis in getting as many people shots in the arms as possible and not necessarily an emphasis placed on how people could prove that they were vaccinated. The result, was flimsy, hand written vaccine cards written often sloppily by whoever gave the injection without any nationwide standards for the type of vaccine cards. To make matters worse many people crossed state lines to try to get the vaccine faster. Among all of the chaos and the black market in fake cards the question remains, is it illegal to use a fake vaccine card?

In late August a New Jersey woman was arrested and charged in New York City with selling fake vaccine cards for $250 each. The woman, who used the name AntiVaxMomma on social media was charged with multiple felonies including Criminal Possession of a Forged Instrument in the Second Degree. For an extra $250 an accomplice who worked at a medical facility entered peoples names into the New York State Database. While the pair has been arrested neither has been indicted and neither has been convicted of any crime. Both are presumed innocent.

Criminal Possession of a Forged Instrument requires that the prosecution can prove that a person knew that the card was forged and possessed the card with the intent to deceive, defraud or injure someone. New York, specifically rejects an approach that is used in many other states that the unexplained possession of a forged instrument creates a rebuttable presumption of knowledge that it is forged. Therefore, the prosecution would need to be able to prove, beyond a reasonable doubt, that the person was aware that the instrument was forged. In addition, to be charged in the Second Degree, which is a felony, it must be a certain type of forged instrument such as a prescription, a deed or will, a public record or a document required to be filed with the government, a government issued identification or government issued document, subway tokens or transfers, or currency.

Critical Update on Non-NFA Other Firearms Such As The Shockwave and Franklin Armory Reformation

December 19, 2019 | Peter Howard Tilem

In October 2019 we published a Blog which posed the question, “Is the NFA dead? In the article we discussed several types of short barreled weapons which had been reviewed by the ATF and other law enforcement agencies and had been found to not be covered by the National Firearms Act. In September 2017 we reported in an article about the Mossberg Shockwave and related firearms that such weapons were legal to purchase and own in New York despite the fourteen inch barrel. However, in our article in October 2019, we discussed the Franklin Armory Reformation line of firearms which at that time were considered to be legal to own and purchase based upon an ATF determination that the firearms were not considered short barreled rifles or shotguns under the National Firearms Act. However, today, the ATF issued new guidance.

In an “Open Letter” dated December 19, 2019, the Acting Assistant Director of the BATFE for Enforcement, Programs and Services, the ATF determined that Reformation firearms with barrels less than 18 inches are “Short-Barreled Shotguns” under the Gun Control Act, not the National Firearms Act. It therefore appears that it is difficult to transport or transfer any Reformation firearm with a barrel length less than 18 inches. According to the BATFE letter, this is the first firearm ever produced that the BATFE has classified as a Gun Control Act Short Barreled Shotgun. This is notwithstanding the fact that the Reformation does not accept or shoot shotgun shells.

To refresh everyone’s recollection, the Franklin Armory Reformation line includes firearms with a full stock and short barrels but unlike traditional rifles have the lands and grooves cut straight, front to back. A traditional rifle has the lands and grooves cut in a twisted pattern to impart a spin on the bullet as it travels through and leaves the barrel. Since the Reformation does not have “rifling” it could not be considered a rifle and therefore was not subject to the provisions of the NFA that pertain to rifles. In addition, because the barrel of the Reformation is not smooth and since it does not accept shotgun shells, it similarly cannot be considered a shotgun and therefore the provisions of the NFA pertaining to short-barreled shotguns also do not apply.

New York Extreme Risk Protection Orders (ERPO), Red Flag Laws Come to New York

October 25, 2019 | Peter Howard Tilem

As New York gun rights attorneys we are starting to see cases involving New York Extreme Risk Protections Orders 490x280-redflag-landing (ERPOS) sometimes referred to as Red Flag Laws. New York’s Civil Practice Law and Rules was amended to add a new Article 63-A which gives a Supreme Court Justice, sitting in the County where a person resides, the authority to take away firearms, rifles and shotguns from an individual without that person having been convicted of, arrested for charged with or even having committed any crime. As a result, these laws, which seem to be sweeping the Country, and are now law in approximately 17 states are extremely controversial since a person can lose their constitutional right without committing a crime.

New York’s Extreme Risk Protection law gives the authority to file Petitions to remove guns to three different classes of people. A police Officer, a family or household member and a school administrator are all eligible to file Petitions seeking an Extreme Risk Protection Order.

The procedure that is laid out by New York Law, CPLR sec 6341 permits one of the lawful Petitioners to file a Petition. Once a Petition is filed, if the Court finds that there is “Probable Cause” to believe the person is a danger to others or themselves, the Court can grant a temporary extreme risk protection order, ex-parte. Meaning that the Court can grant the order without the accused knowing about it or without the accused being able to defend themselves. Probable Cause is a very low standard just meaning that something is more like than not as opposed to proof beyond a reasonable doubt or proof by clear and convincing evidence.

IS THE NATIONAL FIREARMS ACT (NFA) DEAD?

October 3, 2019 | Peter Howard Tilem

The National Firearm Act of 1934 (commonly known as the “NFA”) was the first federal gun control act and for the first time created a national registry of purchasers of “Machine guns”, “sawed-off shotguns” and “silencers”. In addition, a $200 tax is imposed on each transfer of any NFA item and waiting periods can be long.

However, with the recent introduction of innovative new guns and technology that seem to have effectively circumvented the NFA, is the NFA still a useful law?

More than two years ago, we wrote about a new and innovative “shotgun” that has since taken the forearms world by storm. Originally introduced as the Mossberg Shockwave and then the Remington Tac-14, these shotguns came with a standard 14 inch barrel and an overall length of just over 26 inches. The Bureau of Alcohol Tobacco and Firearms (BATF) had examined samples of these firearms and determined that these were legal under the NFA for reasons discussed at greater length in our article about these firearms.

New York Court Holds Jury Nullification Was Effective Strategy

June 19, 2019 | Tilem & Associates

The concept of jury nullification is an important concept for experienced criminal defense lawyers to understand. As a by product of our system of justice, a jury has the power to acquit even those who have had the charges poven against them. This is a fact, largely kept secret from the public and not sanctioned by the Courts. In People v. Goetz, the Court of Appeals stated: “While there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called mercy-dispensing power,’ . . . is not a legally sanctioned function of the jury and should not be encouraged by the court.”

Jury nullification is when the jury ignores the law because it believes that its application in a specific case is unjust. Essentially, a jury who nullifies believes that the defendant was guilty of the crimes he was charged with, but that convicting him under the specific circumstances would not be in the interest of justice. Jury nullification is not an official part of the criminal law, and in some jurisdictions attorneys who advance a nullification theory to the jury can be sanctioned by the court for violating the profession’s ethical code. Indeed, a defense attorney cannot explicitly request the jury nullify, and if she chooses a nullification strategy, she must go about it subtly.

In June, a state appellate court issued an interesting opinion in a New York burglary case discussing whether an attorney’s strategy to argue for jury nullification constituted effective representation. The court concluded that, given the facts of the case, the chosen jury-nullification strategy was appropriate and a potentially effective defense to the crimes charged. Thus, the court upheld the defendant’s conviction.

New York Court Holds Show-Up Identification Procedure Was Unduly Suggestive

April 3, 2019 | Peter Howard Tilem

Recently, a state court issued an opinion in a New York gun case discussing the importance that police follow protocol when conducting identification procedures after the commission of a crime. The case illustrates the concept that an improperly performed identification procedure can be unduly suggestive, making any identification that was made by the crime victim inadmissible.

After police receive a report of a crime and locate a suspect, there are a number of different ways in which detectives can administer an identification procedure. Below is a list of a few common identification procedures:

Line-Up: In a line-up, the suspect (also called the “prime”) is lined up among several fillers, and the witness, who is often behind two-way glass, is asked if they recognize the person who committed the offense.

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 Discusses “Depraved Indifference” Sub-Section of New York Aggravated Assault Statute

July 7, 2018 | Tilem & Associates

Earlier this month, a state appellate court issued a written opinion in a New York aggravated assault case requiring the court to discuss the “depraved indifference” sub-section of the New York aggravated assault statute. Ultimately, the court rejected the defendant’s argument that the prosecution failed to establish that the defendant’s mindset at the time of the commission of the crime met the requirement of showing a “depraved indifference for human life.”

Assault in the First Degree

In New York, there are several sub-sections under which someone can be charged with aggravated assault. Sub-section § 120.10(3) states that “a person is guilty of assault in the first degree when … [u]nder circumstances evincing a depraved indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.”

The Facts of the Case

The complaining witness lived with the defendant. One day, the defendant called the complaining witness’s mother, explaining that the complaining witness was acting odd and banging her head against the wall. Over the course of the next few weeks, several people visited the complaining witness’s residence, suggesting that the defendant take her in to get medical treatment. The defendant explained he was hesitant because he did not want to be blamed for her injuries.

New York Self Defense Establishing the Defense of Justification in New York Criminal Cases

April 17, 2018 | Tilem & Associates

When it comes to New York assault cases, or homicides there are a number of defenses that someone charged with the offense can assert. An affirmative defense is a defense which the person accused of a crime has the burden of proving by a preponderance of the evidence. A defense, on the other hand must be disproved by the prosecution, beyond a reasonable doubt. One of the most common defenses in New York aggravated assault cases is that of self-defense or as its called in New York Justification. Justification is a defense that must be disproved by the prosecution.

In New York, NY Penal Law 35.15 governs self-defense claims. The statute also includes a defense for those acting in the defense of others. Specifically, that statute requires that the actor possess an honest and reasonable belief that they are facing unlawful physical force, or an imminent threat of unlawful physical force.

The statute thus creates two essential elements of a New York self-defense claim. First, the actor was subject to unlawful force, or the actor honestly had a fear that they were about to face unlawful force. However, even if the actor believes this to be the case, the statute also requires that their belief be a “reasonable” one. This introduces an objective element into the claim, essentially asking the judge or jury to determine whether the defendant’s fears were reasonable under the circumstances.