New York Criminal Attorney Blog

BIDEN’S EXECUTIVE ACTION ON GUN CONTROL IS ABSURDLY SHORT ON DETAILS BUT LONG ON POLITICS

April 8, 2021 | Peter Howard Tilem

As New York’s Premier Second Amendment lawyers we eagerly awaited President Joe Biden’s Executive Orders today so we can analyze its effect on our clients. In reality, today’s announcement had no effect on our clients and really had no effect on any gun owners. The only people affected seem to be the people who write regulations for the ATF.

To be sure, there were no surprises in the announcement today except the for lack of details after over 2 months in office. For example, one of the centerpieces of today’s announcement was that the ATF will have 60 days to propose a rule about pistol braces and when such devices will turn a pistol into a short barreled rifle that would be regulated under the National Firearms Act. However, as we wrote in our December blog, such a rule was already proposed as recently as December, less than 4 months ago and quickly withdrawn under pressure from Congress. Surely, the ATF could have had something written by now having already written a regulation on the same topic just three and a half months ago.

The other centerpiece of today’s announcement was a direction that the ATF propose rules regarding “ghost guns” within 30 days. The announcement cites, without any evidence, the proliferation of “ghost guns” that are supposedly being completed by criminals to use in crimes. It is hard to imagine what such a regulation would look like or how the ATF would regulate an unfinished block of aluminum or polymer. Will a block of aluminum be considered a firearm if it is 70% complete, 60% complete or 40%? It is also hard to imagine why after more than 2 months in office no details about any regulation were given or why it would take 30 more days to write such a proposed regulation.

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

April 6, 2021 | Tilem & Associates

Recently, a state appellate court released an opinion in a New York gun case requiring the court to determine if the officers’ search of the defendant’s car, which was parked outside his home, was within the scope of the search warrant. Ultimately, the court determined that the defendant’s car was not covered by the search warrant and ordered the suppression of all evidence obtained from the vehicle.

The Facts of the Case

According to the court’s opinion, police officers were investigating the defendant for selling heroin from his home. Officers watched on several occasions as the defendant and another man would walk out of the defendant’s home, meet up with someone who pulled up in a car, and exchange items for money. The officers also arranged a controlled buy.

Taking the information they gathered during their investigation, the officers obtained a search warrant. Specifically, the warrant affidavit claimed that there was probable cause to search the defendant and his home. However, when officers arrived to execute the warrant, they also searched his car, finding a loaded gun and other drug-related evidence.

NEW YORK SECOND AMENDMENT LAWYERS WIN FIVE YEAR BATTLE TO CLEAR NAME OF MASSACHUSETTS LICENSED GUN OWNER AFTER APPELLATE COURT SUPPRESSES FIREARM AND DISMISSES INDICTMENT

March 31, 2021 | Peter Howard Tilem

New York’s premier second amendment law firm announced that a Massachusetts licensed gun owner who was

Mass has very strict gun laws

arrested for bringing his licensed pistol into Manhattan won a five-year battle to clear his name yesterday after the Appellate Division ruled that the police violated the gun owners Fourth Amendment rights after they stopped a vehicle that he was a passenger in for allegedly running a red light. Tilem & Associates, PC, won the decision suppressing the gun and ordering the indictment dismissed after they appealed the denial of the suppression motion and ultimate plea on behalf of the licensed gun owner whose first name is Sandley. You can read the appellate court decision here.

Court Reverses Motion to Suppress in Recent New York Gun Case After Finding Officer’s Conduct Was Permitted

March 24, 2021 | Peter Howard Tilem

Earlier this month, a state appellate court issued an opinion in a New York firearms case, reversing the lower court’s decision to grant the defendant’s motion to suppress. The case required the court to determine whether the police officers’ actions leading to the defendant’s tossing of the gun were justified.

The Facts of the Case

According to the appellate court’s recitation of the fact, police officers received a call describing a group of men, two of whom had “guns out.” The 911 caller told the dispatcher one of the men had on a tan-and-black coat, and another a black coat.

Officers responded to the scene to find two groups of men walking in opposite directions. One officer stopped a man in a tan-and-black coat, searched him, and found nothing. Officers then located the defendant, who was wearing a black coat. One officer followed the defendant, relaying his location over police radio.

Court Addresses Reliability of Citizen Informant in New York Murder Case

March 18, 2021 | Peter Howard Tilem

An appellate court recently issued an opinion in a defendant’s appeal of his New York murder conviction. At the core of the defendant’s appeal is whether the officers who took him into custody had probable cause to arrest him. Before the police officers took the defendant into custody, they interviewed several witnesses, including two accomplices. The witnesses stated that the defendant killed the victim. One of the witnesses stated that they overheard a call the defendant made to another person during the murder. The witness recounted that during the call, the defendant stated that he was killing the victim by strangulation. The witness further explained that he overheard the defendant state that the victim was bleeding but not dying. The defendant motioned to suppress the informant’s statements, and the court conducted a combined Huntley and Dunaway hearing.

In New York, defendants may argue various motions when they believe that police did not abide by the proper procedures to get evidence in the case. Among the most common examples of motion to suppress hearings are Huntley and Dunaway hearings. Huntley hearings are proceedings to determine the admissibility of a defendant’s statement. During these proceedings, a criminal defendant’s attorney may argue that the defendant’s statements were made against their will due to pressure, threats, trickery, or without Miranda warnings. A Dunaway hearing is a motion to suppress evidence that authorities obtained from an illegal arrest or detention.

Arrests and detentions can stem from many different situations; in some cases, an officer witnesses a crime, and in other situations, someone reports the incident. The reporting individual may be a citizen informant, an anonymous tipster or an accomplice. Citizen informants are those that provide information and their identity, which constitutes the basis for probable cause. An anonymous tipster provides information about a crime but not information about themselves. Courts generally favor testimony from a citizen informant compared to that of an anonymous tipster. Anonymous informant’s tips often need substantiation and are often regarded as less reliable. Tips from accomplices who are informing to curry favor with the prosecutor may similarly require corroboration.

WAS A LICENSED GUN DEALER ARRESTED FOR SELLING “OTHERS” IN NEW YORK?

March 12, 2021 | Peter Howard Tilem

After our recent win in an ill-conceived Mossberg Shockwave prosecution earlier this year we would have thought that the issue of the legality of “Other” weapons in New York would be resolved. However, rumors started spreading late last week that a New York Licensed gun store owner and licensed dealer was arrested and charged with multiple felonies for selling AR-15 based “Others”. Our law firm, is closely monitoring this case.

Dark Storm Industries Non-NFA “Other”Weapon

According to information that we received, Jerome Rallo, the owner of Jerry’s Firearms in Bohemia, New York has been charged with multiple felonies under New York State law for selling illegal weapons including the top counts of Criminal Sale of a Firearm in the First Degree, a class “B” violent felony which carries a mandatory minimum of 5 years in prison and a maximum of 25 years in prison.

New York Court Discusses Miranda Requirement in Recent Opinion

March 10, 2021 | Tilem & Associates

Recently, a state appellate court issued an opinion in a New York Leaving the Scene of an Accident case which required the court to analyze whether a defendant’s statements that were elicited before he was given his Miranda warnings were admissible at trial. Ultimately, the court held that, because the defendant was not in custody when he made the statements, the detective interviewing him did not need to Mirandize the defendant. Thus, the statements were admissible and the defendant’s conviction was affirmed.

The Facts of the Case

According to the facts contained in the appellate opinion, a pedestrian was struck by a pickup truck in East Islip. Throughout the course of the investigation, the detective got a lead that the defendant had a pickup truck that matched the description of the one that hit the pedestrian.

The detective went to the defendant’s home. When the detective arrived, he told the defendant why he was there, and the defendant voluntarily answered a few preliminary questions. The defendant also agreed to let the detective check out his vehicle.

Court Reverses Denial of Defendant’s Suppression Motion in New York Weapons Case

February 28, 2021 | Peter Howard Tilem

An appellate court recently issued a decision reversing a New York criminal defendant’s conviction for Criminal Possession of a Weapon. The defendant unsuccessfully moved to suppress evidence, the sawed-off shotgun, found to charge him with the crime, and the jury found him guilty. Amongst other issues, the defendant challenged the denial of his motion to suppress. The charges arose after police officers stopped the vehicle in which the defendant was a passenger. Officers discovered a sawed-off shotgun and then found a shotgun shell on the defendant.

The officers claimed that they initiated a search of the car after discovering a shotgun shell during a protective pat-down of the defendant. The officers claimed that this discovery provided them with probable cause to search the car, which led to the discovery of the shotgun. The defendant argued that the People did not provide any evidence to support this. He contended that law enforcement searched the car before the pat-down. The court found that even though the People raised arguments that may justify the search, the law does not permit the appellate court from considering those factors because they were not ruled upon by the lower court. Ultimately, they held the appeal and remitted the matter to the lower court for review.

New York firearm possession charges carry serious penalties, and it is crucial that criminal defendants seek representation from an experienced attorney. Those that do not possess a handgun license may be found guilty of unlawful possession. There are four main charges that are typically associated with firearm possession. In some cases, the court may enhance penalties depending on the circumstances and related charges.

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

February 22, 2021 | Peter Howard Tilem

Recently, a New York appellate court issued a written opinion in a New York DWI case discussing the defendant’s motion to suppress evidence obtained during what could be characterized as a “wellness check.” Ultimately, the court held that the officer’s actions were justified, and denied the defendant’s motion.

The Facts of the Case

According to the court’s opinion, an officer was on routine patrol when he saw a truck parked along the side of the road with no one inside. The officer pulled up behind the vehicle, noticing that it was running. The officer then exited his car, approached the driver’s side door, and saw that the defendant was hunched over the wheel, asleep.

The officer tapped on the window, and after about 30 seconds, the defendant came to. The officer asked him out of the car several times, and on the third time, the defendant complied. During this time, the officer noticed that the defendant seemed intoxicated. Specifically, the defendant had “bloodshot, watery eyes, dilated eyes, slurred speech and a strong odor of alcoholic beverages emanating from the vehicle.”

Court Rule on Motion to Suppress Evidence Following New York DWI Arrest

February 16, 2021 | Peter Howard Tilem

In most cases, driving while intoxicated (DWI) charges come after police notice a motorist driving erratically or otherwise violating a New York traffic law. In other cases a person may be stopped at a DWI checkpoint. After law enforcement pulls over a driver, they may notice signs of intoxication, such as the smell of an alcoholic beverage, flushed face, or impaired coordination or speech. After an arrest for a New York DWI, the defendant may argue a motion to suppress evidence of their intoxication based on an illegal stop. This often occurs in situations when a police officer approaches a stopped vehicle.

Under New York law, police officers have a broad authority to approach individuals and make inquiries about their identity or destination. However, when an officer’s inquiry becomes accusatory, extended, or focuses on a person’s potential criminality, the officer is no longer asking for information. Once an officer asks more directed questions, in a way that would lead the person to believe that they are under suspicion of wrongdoing, the officer’s inquiry must be supported by a founded suspicion that criminality is afoot.

In some cases, an arrest for DWI precipitates a stop for an unrelated traffic violation. For instance, an appeals court recently issued an opinion stemming from a defendant’s motion to suppress evidence obtained during a traffic stop. In that case, the officer approached the defendant’s vehicle after noticing that the vehicle was illegally parked at a bus stop. The defendant stated that he was waiting for someone and moved his vehicle. The officer then noticed that the defendant’s rear brake light was out. He stopped the vehicle and arrested the defendant for DWI.