Articles Posted in WEAPONS OFFENSES

Senior Partner Peter H. Tilem of the White Plains law firm, Tilem & Campbell recently passed the test to become an NRA Certified Pistol Instructor. Mr. Tilem, who is a senior criminal defense lawyer, NRA member and handles much of the firms firearms law practice together with law partner Peter Tilem, was an experienced and avid firearms enthusiast before passing the National Rifle Association’s instructors’ test.Besides being a lifelong shooter, Mr. Tilem has been handling gun and weapons cases for decades. Initially, as a prosecutor, in one of the most anti-gun counties, in one of the most anti-gun states in the United States, Mr. Tilem handled the prosecution of countless gun and knife cases as well as cases involving a variety of other weapons. After several years as a prosecutor, Mr. Tilem was asked to join the District Attorney’s Office’s Firearms Trafficking Unit where he handled large scale, gun trafficking conspiracy cases in addition to other gun cases and violent crimes and became an adviser to other prosecutors in the handling of gun cases.

After leaving the District Attorney’s Office and entering private practice, Mr. Tilem put his experience and knowledge of New York gun laws to work helping law-abiding citizens who got caught in the web of New York’s criminal justice system which treats law-abiding citizens with firearms (or knives) as criminals. In New York, a law abiding citizen who carries his (or her) pistol into New York with an out-of-state permit (ccw) faces a mandatory minimum sentence of 3 and 1/2 years in prison. In addition, New York still has on the books the functional equivalent of the since repealed Federal Assault Weapons ban which punishes as a felony possession of rifles or shotguns that have cosmetic features that are deemed to look offensive. The outdated and ill conceived assault weapon ban in New York is so poorly written and hard to understand that neither the police, prosecutors nor civilians can be sure of what is felonious conduct and what is perfectly legal.

In addition to New York’s bizarre gun laws, New York bans virtually any weapon imaginable including brass knuckles, billy clubs, “sand bag[s]” (whatever that means), wrist-brace type sling shots, nun-chucks and kung fu stars just to give some examples. As Mr. Tilem has written about extensively, New York’s ban on knives is so complete that it seems to ban steak knives in restaurants (at least in the five boroughs of New York City) and virtually any lock blade folding knife as a “gravity knife.”

In the first two parts in our series of blogs on New York’s assault weapon ban we discussed the absolute silliness in banning firearms based upon certain cosmetic features. Now we discuss the most troubling part of the ban from the perspective of the citizen who finds himself charged under New York law with possessing an Assault Weapon or the experienced criminal defense lawyer who takes on the responsibility of defending the citizen.

Penalties

Generally, possession of a so called “assault weapon” in New York is a violation of Criminal Possession of a Weapon in the Third Degree under New York Penal Law sec 265.02 (7). Possession of a “Large Capacity Ammunition Feeding Device” is a violation of Penal Law sec 265.02 (8). Both are class “D” violent felonies in New York and are therefore punishable by a definite sentence of up to seven years in prison. A person charged under this section could get a sentence of Probation in lieu of a state prison sentence if the judge thought it was appropriate. In other words, prison is not mandatory.

In Part I in our series of blogs covering New York’s so called “assault weapon” ban we began to highlight some of the most troubling parts of a ban on certain weapons based purely on cosmetic features. At Tilem & Campbell we handle a large number of gun and weapons cases and so are in a unique position to see how some of these laws are applied. We continue with other troubling provisions of New York’s assault weapon ban.

One of the most troubling features of the ban is the ban on flash suppressors. The fact is that there are many devices that attach to the barrel of a rifle and which look alike. There is no definition in the New York Penal sec 265.00 of a flash suppressor. Prior to 2004 when the Federal Assault Weapon ban expired the Federal Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) was responsible for characterizing the various devices that can be attached to the barrel of a gun. Since the federal law expired the BATFE no longer will do that. So manufacturers now attach devices to the barrel of rifles that look like flash suppressors but which manufacturers classify as “muzzle brakes”. These devices look like flash suppressors but are seemingly legal under New York law since the law specifically bans flash suppressors. The problem is that New York does not provide any definition of flash suppressor (or muzzle brake) and the difference can mean the difference between not committing any criminal offense and doing 15 years.

In addition, to the ban on firearms containing certain random cosmetic features, the Federal Assault Weapon Ban also banned detachable magazines that held more than 10 rounds. The ban on detachable magazines similarly expired under Federal Law but still exists in some states. For example New York has a ban on magazines that can hold more than 10 rounds and New Jersey has a ban on magazines that can hold more than 15 rounds. (Since these numbers were selected at random there is no uniformity among the various states that imposed their own ban.)

The Assault Weapon Ban which was passed as both a federal law and State law in many jurisdictions after a swell of media hysteria and which has since elapsed as a Federal ban is still alive and well in New York and New Jersey and a recent amendment to New York law has left a dangerous trap for innocent New Yorkers. Peter Tilem, the senior partner at Tilem & Campbell and former firearms trafficking prosecutor in the City of New York has dealt with a number of these cases as both a prosecutor and a defense attorney.

The Federal Assault Weapon Ban which was passed as a 10 year ban on “Assault Weapons” expired in 2004 after it was found to be absolutely useless. The original ban which is still in effect in New York banned rifles purely based upon cosmetic features. Since automatic weapons were already illegal, the so called assault weapon ban prohibited semi-automatic weapons that had two or more cosmetic features that were deemed to make them “Assault Weapons” the list of cosmetic features includes: a pistol grip, folding or collapsible stock, bayonet lug, flash suppressor and believe it or not if it was a pistol, the weight of the pistol. If the pistol weighed more than 50 ounces that was one of the two features that would make it an “Assault Weapon”. (Up until the hysteria surrounding the Assault Weapon Ban we were told that it was the small easily concealable pistols the should be banned.) In addition, certain guns were banned by name.

It should be noted that in New York but not New Jersey if you possessed one of these guns prior to September 14, 1994 you could continue to own the so called assault weapon. This provision made the law largely unenforceable since the prosecutor could not prove, if the gun was manufactured before September 14, 1994 when it was first possessed.

A recent Appellate Court decision overturning a Nassau County gun law could have far reaching implications for New York City gun charges and New York City weapons offenses. As previously discussed in a prior blog, New York City bans many items which are legal in other parts of New York state. In Chwick v. Mulvey, gun owners successfully challenged a Nassau County local law that prohibited possession of firearms that were “deceptively” colored such as pink, gold or brown.

In finding that the Nassau County Law was preempted by New York State law which already has a comprehensive statutory and licensing scheme, the Appellate Division of the Supreme Court, Second Department ruled that Nassau County could not regulate in this area in direct contradiction to new York State law which says that licenses for firearms shall be valid throughout the State (except New York City). The ruling of this Court has binding in effect in the New York City Counties of Kings and Queens.

What is left unanswered by the Court is whether New York City has the right to ban “weapons” such as handcuffs, imitation pistols, and rifles and shotguns (for which New York City has its own licensing scheme) in the face of comprehensive state legislation that for example lists all of the illegal weapons in New York State. Penal Law sec. 265.01 (1) lists more than fifteen specific weapons such as gravity knives, kung fu stars and switchblades and then in subsection 2 lists additional weapons which are illegal if one has intent to use them unlawfully against another.