Gun violence statistics are a bit cloudy. In 2020, the gun crime rate dropped, but the fatality rate hit a record high.[1] The high gun suicide rate may have something to do with that discrepancy. Only 4 percent of the world’s people live in America. But the United States accounts for 35 percent of the world’s firearm suicides.[2] Understandably, therefore, a lot of people want to restrict gun ownership rights. State laws vary significantly, but there’s only one set of federal gun possession laws. So, it makes sense for these advocates to focus on federal gun laws and weapons charges.
However, there’s a little thing called the Second Amendment that guarantees the right to keep (own) and bear (possess) firearms. Congress may place reasonable time, place, and manner restrictions on Constitutional rights. Especially in this area, one person’s definition of a “reasonable” restriction is usually very different from another.
An effective Rochester gun possession lawyer makes a big difference in this changing environment. Almost literally, what’s illegal one month may be legal the next month, and vice versa. Therefore, some of the specific laws we talk about in this post might be obsolete very soon. However, the general principles, and the underlying defenses, usually remain the same. A Rochester gun possession lawyer can leverage these defenses during the trial or during plea negotiations and secure the best possible result.
Domestic Violence, Protective Orders, and Gun Ownership
Frequently, federal weapons charges have little or nothing to do with current firearm laws. Protective orders routinely strip away gun ownership rights. In other words, a gun that was perfectly legal suddenly becomes as illegal as a kilo of cocaine.
As a preliminary matter, to obtain a protective order in New York, an alleged victim must show the two people have an intimate relationship (usually two people related by blood or marriage, or who have a child together) and the alleged abuser committed a family offense (usually stalking, assault, or harassment).
Even in a temporary protective order, which doesn’t require a hearing, a judge may confiscate the alleged abuser’s guns and revoke his/her license if:
The judge concludes, based on the alleged victim’s affidavit, there is a “substantial risk” the alleged abuser may use, or threaten to use, a firearm against the applicant or anyone the protective order covers, such as the applicant’s children, or
During the misconduct, the alleged abuser caused a serious physical injury, used or threatened to use a deadly weapon, or committed a violent felony.
A Rochester gun possession lawyer cannot temporarily stop the judge from issuing such an order. However, at the full hearing, which usually occurs about two weeks after the application is filed, the judge most definitely hears both sides of the story.
Establishing Possession in Deadly Weapons Cases
Federal authorities rarely prosecute individuals for owning illegal firearms unless these firearms are automatic weapons, destructive weapons, or other weapons that violate the National Firearms Act. Illegal gun possession is a different story.
Possession is a term of art that has a specific meaning in state and federal courts. In any illegal possession case, prosecutors must establish three elements beyond a reasonable doubt:
Proximity: Vehicle cases illustrate the proximity rule. Usually, anything in the passenger area, which includes a car’s trunk and a pickup’s bed, satisfied the proximity requirement.
Knowledge: If the defendant knew that “something illegal” was under a seat, that’s not enough. The defendant must know that something was a firearm. Since ignorance of the law is no excuse, the defendant doesn’t need to know the firearm was illegal
Control: Once again, vehicle possession claims are a good example. If Tony was in the back driver’s side seat and an illegal firearm was under the front passenger side seat, prosecutors would be hard pressed to establish control. That’s especially true if someone was in the front passenger side seat.
Many people ask a Rochester gun possession lawyer to create a gun trust to avoid illegal possession issues and avoid any potential weapons charges. The trust, as opposed to the settlor (an individual who created the trust), legally owns the firearm. It’s pretty easy for the trustee, who is usually the same person as the settlor, to add co-trustees.
In plain English, if Tony accidentally leaves his licensed Glock in the car and his wife gets pulled over, if his wife is a co-trustee in a gun trust, gun possession charges against her won’t hold up in court. Roughly the same thing is true if Tony’s hunting buddy comes over for the weekend and needs to borrow one of Tony’s guns.
Contact an Experienced Attorney for Gun Possession Criminal Defense
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester gun possession attorney. Convenient payment plans are available.
In response to a “reckless” Supreme Court decision, Governor Kathy Hochul approved a spate of new gun control laws, which take effect September 1, 2022.
Gov. Hochul called legislators into a special session, where they quickly approved all proposed gun control laws on a party-line vote. Leading Democrats expect opponents to challenge the gun control laws in court, but these leaders are confident the new laws will pass legal muster.
“I am proud to sign this landmark legislative package that will strengthen our gun laws and bolster restrictions on concealed carry weapons,” Gov. Hochul remarked. “I will continue to do everything in my power to combat the gun violence epidemic,” she added.[1]
Gun Control Laws in NY: Carrying a Concealed Weapon
New York State Rifle & Pistol Association, Inc. v. Bruen[2] is the Supreme Court case that got so many people in Albany worked up. In a 6-3 decision, the Supremes basically ruled that may-issue CCW laws, like the one in New York, are unconstitutional.
New York’s law stated that applicants could receive a CCW license if they met the minimum qualifications and they showed “proper cause” or a special need for such a license. In other words, officials could block CCW license applications if they had bad feelings about them. Under Bruen, any additional qualifications are now illegal.
Since local law enforcement officials lost their veto power, New York lawmakers did what was, in their opinion, the next best thing. They raised the bar as follows:
Adding requirements like character references, a more extensive background check, and live fire testing to basic CCW qualifications,
Requiring more extensive firearms training,
Standardizing the CCW licensing process statewide, and
Creating a “no-carry” default (it’s illegal to carry a concealed weapon on private property unless the property owner expressly authorizes such action).
New restrictions also include a broader “body armor” definition and pre-ammunition purchase background checks. Additionally, lawmakers changed the safe storage provision in homes and motor vehicles. More on that below.
Other provisions remain largely intact. State-issued licenses are usually only valid in upstate New York. Concealed weapons are only legal in the New York City metro area if a qualified local law enforcement official validates the license. A state license is valid in all contiguous and nearby states, except Vermont and New Hampshire.
On a related note, New York’s self-defense law includes a duty to retreat. If an individual could safely run away, that individual cannot use deadly force in self-defense.
Gun Control Provisions: Prohibited Places
Lawmakers also expanded the list of sensitive places where concealed weapons are illegal, whether the defendant has a license or not, and whether the owner posts a sign or not. Some sensitive places, like Times Square in New York City, are rather straightforward. Others are quite vague. Examples include:
Airports: Most airports have secure areas, which cover most of the airport, and unsecured areas, where people pick up or drop off passengers. Frequently, the line between secure and unsecured areas is a little blurry, especially in municipal and private airports.
Government Buildings: Frequently, tax offices, school district offices, satellite courthouses, and other such government buildings are in mini-malls. The new law is unclear as to where the sensitive place starts. Does it start at the government building itself, the frogurt stand next door, or the parking lot outside?
Places of Worship: Not all churches have steeples, not all mosques have domes, and so on. In other words, just like not all government buildings look like government buildings, not all churches look like churches.
Additional new entries on the list of the prohibited places include schools, restaurants which serve alcohol, homeless and other shelters, libraries, and public demonstrations.
Illegal Weapons Possession
We mentioned the changes to safe storage provisions above. The motor vehicle requirement is probably the biggest change. Before, gun owners could basically throw their rifles in the back seat and take off down the road. Now, it’s illegal to have a rifle, shotgun, or other long gun in a motor vehicle unless the weapon is locked in a gun case or other container.
Legally, any contraband in the passenger area satisfies the proximity requirement in an illegal possession case. A car’s trunk and a pickup truck’s bed usually count as the passenger area.
If proximity were the only requirement in these cases, if five people are in a car with an illegal firearm, all five could be guilty of illegal weapons possession. However, proximity alone isn’t enough. Prosecutors must also establish knowledge and control. Furthermore, they must establish these elements beyond any reasonable doubt.
Let’s expand on the five-people-in-a-car example. If Tony is in the back seat and the illegal firearm is under the front passenger seat, the state would be hard-pressed to establish knowledge and control. That’s especially true if Tony didn’t know the other people in the car very well and someone was sitting in the front passenger seat.
Contact an Experienced Criminal Attorney in Rochester re: Gun Control Laws
There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester criminal attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Because of increased financial stress and anxiety, domestic violence rates increased significantly during pandemic lockdowns.[1] Unfortunately, the domestic violence rate has continued to increase since 2020. The exact rate of increase varies, largely depending on who you ask.
Other things are more certain in this area. For example, domestic violence usually has criminal and civil consequences. Most law enforcement agencies have mandatory arrest policies. If officers suspect domestic violence occurred, the aggressor immediately goes to jail. Additionally, officers must usually inform victims of their right to obtain a protective order in civil court.
As the rate of domestic violence increases, the role of a Rochester criminal defense lawyer remains the same. Both parties have important legal rights in this area. Alleged victims have the right to seek protection, and defendants have the right to present their side of the story. An attorney is a strong voice for defendants in criminal and civil court cases.
Domestic Battery
Usually, domestic battery is a misdemeanor in New York. When possible, prosecutors enhance these charges to aggravated assault, a felony. The matter usually goes to a designated domestic violence court in both cases. Prosecutors in these courts have special training and, in many cases, access to additional resources.
Elements of the Case
Misdemeanor domestic battery is basically a harmful or offensive touch. Furthermore, the alleged victim must be in a protected class. Almost all domestic battery cases involve husbands and wives or estranged husbands and wives. Other protected classes include two people who are related by blood or marriage and current or former dating partners.
There’s a difference between a physical injury and a harmful or offensive touch. Domestic battery charges could hold up in court even if the alleged victim wasn’t physically injured. An injury just makes it easier for prosecutors to establish the intent element.
Usually, aggravated domestic battery involves a weapon or a serious injury. Almost any solid object that’s larger than a toothpick could be a weapon in this context. The serious injury must usually be something bad enough to put the alleged victim in the hospital.
Resolving the Case
Lack of evidence, specifically issues with the complaining witness, is usually the best defense against both kinds of domestic battery.
Technically, an alleged victim is a material witness. Therefore, the alleged victim cannot drop criminal charges. However, if the alleged victim refuses to cooperate, things get very tough for prosecutors. Typically, they can either subpoena the alleged victim and force him/her to testify or use an obscure loophole in the hearsay rule to admit part of the police report into evidence. Both these things are very rare. Usually, prosecutors would rather drop the matter and offer a favorable plea deal.
This arrangement usually involves reduced charges, like reducing aggravated assault to ordinary assault, or a reduced sentence, typically probation. Since domestic violence courts usually handle these cases, the conditions of probation often include anger management and other such classes.
Protective Orders and Rochester Criminal Defense Lawyers
Many states have civil and criminal protective orders. Civil orders are usually broader than criminal orders. Only criminal protective orders are available in New York. If an alleged victim cannot find a criminal judge, a civil judge may issue a protective order, but these orders are only valid for four days.
Types of Protective Orders
A judge may grant a temporary protective order based solely on the alleged victim’s affidavit. This order is usually a bare-bones order containing a keep-away order and an anti-stalking order. Judges may include other provisions based on good cause, such as an order excluding a defendant from a shared residence.
Temporary protective orders are valid until the defendant is served with the order and appears in court. Following a full hearing, a judge may grant a final protective order. These orders last for up to two years unless the alleged victim proves aggravating circumstances, such as:
Defendant’s injury of other people in the household.
An aggravating circumstances protective order could last up to five years in New York. Permanent protective orders often include additional provisions as well, such as financial support orders and firearms surrender mandates.
Protective Order Defense
Lack of evidence is also a defense in these matters. Obviously, the alleged victim is willing to press the issue. However, the alleged victim’s testimony might be tainted. For example, many alleged victims were drinking at the time of the incident. Memory and perception are question marks in these situations. Other times, a parallel proceeding is ongoing in family court. Very few alleged victims fabricate stories to gain leverage in a family court proceeding, but these things do happen.
An out-of-court protective order settlement usually features a shorter duration and less onerous legal provisions.
Book a Consultation with an Experienced Criminal Attorney in Rochester
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. The sooner you call us, the sooner we start fighting for you.
Statements like “These drugs aren’t mine” and “I was just holding this bag for a friend” are pretty much the worst things a suspect can say during a drug possession investigation. There’s a difference between ownership and possession. [1] Therefore, these excuses usually fall on deaf ears. Additionally, the officer’s next question is usually, “what’s your friend’s name?” That’s not a question anyone wants to answer. Finally, depending on exactly what was said, the statement might be an admission of possession. More on that below. If you’re arrested for possession, regardless of who actually owns the drugs, it’s crucial for you to retain a top criminal defense attorney as soon as possible.
Public Defender vs. Criminal Defense Attorney if You’re Arrested for Possession
If you were in possession of someone else’s drugs, you definitely need a qualified defense attorney in Rochester. In these cases, a public defender or court-appointed lawyer is usually a bad idea. The image of the overworked public interest lawyer is a little inaccurate, but many of these lawyers do have very heavy caseloads. Non-ownership drug possession cases require lots of attention that a public interest lawyer may be unable to give. A private attorney with experience and dedication is a much better option.
Investigatory Statements
The I-word is Legalese for any statements the defendant made between the time an officer says “pull over,” and the moment an officer handcuffs the defendant.
Generally, these statements are only admissible if an officer Mirandizes the defendant. The law requires officers to administer the Miranda rights before they begin custodial interrogation. “Custody” doesn’t mean placement in a steel cage or the back seat of a police car. Instead, “custody” means whenever a reasonable defendant doesn’t feel free to leave. When officers question them, most people don’t feel free to leave.
Almost all of us have been pulled over before, and officers never give the “you have the right to remain silent” spiel. Because of this rule, a defense attorney in Rochester may be able to exclude damaging investigatory statements. This issue is complex since the Supreme Court recently watered down the Miranda rule. [2]
Drug Possession Elements and Defense Attorneys in Rochester
As mentioned, drug ownership is technically irrelevant in a drug possession case. However, it could affect the elements of a possession case. Prosecutors must establish three elements beyond a reasonable doubt in these cases:
Proximity,
Control, and
Knowledge
Ownership usually doesn’t affect proximity. Defendants either have drugs in their possession, or they don’t. Usually, anything in the room, even if it is across the room, is legally close to a person. For this same reason, ownership usually doesn’t affect control.
Knowledge is different. Let’s take a closer look at the two aforementioned excuses: “These drugs aren’t mine” and “I was just holding this bag for a friend.” The first statement is an admission of knowledge. The second statement is not an admission of knowledge. So, a word or two could make a big difference.
As for the defendant’s actual words, body camera audio transcripts are proof beyond a reasonable doubt. Anything else, such as the officer’s recollection of the statement, is he said/she said. Usually, that’s not proof beyond a reasonable doubt.
Possible Resolutions if You’re Arrested for Possession
Non-owner possession cases could involve procedural and/or substantive defenses. Either one could encourage prosecutors to offer a favorable deal. The stronger the defense, the more likely the state is to back down. Prosecutors usually feel like they haven’t done their jobs if defendants avoid all punishment. So, rather than risk a not-guilty verdict at trial or an unfavorable result at a pretrial hearing, they offer favorable deals.
These deals usually include pretrial diversion or deferred disposition in drug possession cases. Both have the same result.
Prosecutors usually offer pretrial diversion for evidence or political reasons. We discussed the evidence problems in these cases above. Politically, many people view drug possession as a health and safety issue and not a criminal law issue. Common pretrial diversion program requirements in drug possession cases include community service and a substance abuse evaluation. Once a defendant successfully completes the program, prosecutors dismiss the charges.
Pretrial diversion is a judicial remedy. The judge doesn’t find the defendant guilty when the defendant pleads guilty to non-ownership drug possession. Instead, the judge defers that part of the proceeding until the defendant completes probation. The judge dismisses the case if the defendant successfully completed this court supervision program.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced defense attorney in Rochester. Convenient payment plans are available.
Has the number of criminal charges increased over the past decade? Since 2012, the number of drug arrests in Monroe County has decreased by over 80 percent. [1] However, this decline represents more of a shift.
In the early 2010s, drug possession arrests, specifically marijuana possession arrests, made up almost all of the drug arrests in New York. These cases are still fairly common, though marijuana’s partial legalization in NYS has had a drastic effect. Today, law enforcement focuses more on trafficking and altering drugs.
Aggressive prosecution has contributed to this trend as well. When they review the evidence in a case, prosecutors keep a sharp eye out for additional seized evidence, like guns or cash, which could justify elevating simple possession charges to more serious trafficking charges.
A Rochester criminal lawyer normally doesn’t pay much attention to politics. Aggressive representation is different. As tenaciously as prosecutors try to obtain convictions, that’s how hard a Rochester criminal lawyer works to beat drug charges in court.
Possessing Criminal Drug Charges
In terms of marijuana, it’s usually legal to possess one or two joints or one or two plants. Anything greater is illegal, even if it’s for personal use. Other common charges include illegal possession of prescription drugs and possession of street drugs, like meth and crack. All drug possession cases require prosecutors to prove three elements beyond a reasonable doubt:
Proximity: Generally, if Max is in a room, any drugs in the room are close enough to satisfy this requirement. The same is true if Max is in a vehicle and drugs are anywhere in the cargo or passenger area.
Knowledge: The further away the drugs are from Max, the harder it is for the state to prove he knew they were there. That’s especially true if Max was a guest in the house or he didn’t know the other people in the car very well.
Control: This element is even more difficult to prove than knowledge, particularly if there was more than one person in the room or vehicle. If Max couldn’t access the drugs without asking someone to move, he didn’t control them.
Thanks to the changing legal environment, most prosecutors view drug possession as not a criminal issue but a health and safety issue. Therefore, in most cases, resolutions are available that keep the matter off the defendant’s permanent record.
This offense usually involves manufacturing, selling, and/or distributing illegal drugs. Giving away an illegal drug, like giving leftover pain pills to a co-worker, is drug distribution.
These matters often involve long investigations with lots of moving parts. Therefore, procedural defenses are common in such matters.
Search warrants based on the informer’s testimony are a good example. Prosecutors cannot work backward in these situations. They cannot argue that if the information was accurate, it must have been reliable. Accuracy and reliability are two different things.
Most people will say practically anything for love or money. Therefore, judges closely scrutinize informer information in search warrants. If the informer doesn’t have an established track record or there’s no corroborating evidence, a judge may throw the warrant out of court. If that happens, the seized drugs are inadmissible.
Procedural and other possible defenses are critical in drug trafficking cases. These offenses are more serious than possession. Therefore, prosecutors don’t hand out favorable plea bargains like candy on Halloween. Plea negotiations are a little like poker. If a Rochester criminal lawyer holds a good hand, the prosecutor is more likely to fold.
Altering Drugs
Technically, these offenses don’t involve illegal drugs. Instead, these cases usually involve altering a medicine label or, less commonly, faking a prescription. Almost anyone with a laser printer and some patience can create a fake medicine label. Simple safeguards, like calling the doctor to confirm the prescription, have all but eliminated prescription fraud, at least with regard to opioids.
Prosecutors are particularly aggressive in these cases, and not just to protect public safety. Essentially, there’s a presumption that people who alter labels have drug problems. Nevertheless, favorable plea bargains are still available in these cases, especially if a drug evaluation reveals the defendant isn’t an addict.
These cases sometimes have proof problems. For example, in New York, possessing a fraudulent label is only “presumptive evidence of such person’s intent to use same for the purpose of illegally obtaining a controlled substance.” [2] This presumption alone usually isn’t enough to prove altering beyond any reasonable doubt.
Facing Criminal Drug Charges? Get Help Today
There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester criminal attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Less than a year after New York Governor Kathy Hochul signed a series of soft-on-crime reform bills which radically changed the criminal justice system, she began rolling back these reforms.[1] With things constantly changing, you may wonder if you still need a Rochester criminal defense lawyer. We’ll weigh in.
“We’re not here to undo the progress that was made in the past,” Hochul said from the Capitol. “But I also said we have to realize there are areas where improvements can and need to be made,” so “We are moving forward with a thoughtful approach,” she added.
Some reforms on the chopping block include changes to the juvenile justice system, such as closing a controversial loophole in the so-called Raise the Age law. Governor Hochul said the reforms would also keep potentially violent offenders behind bars longer and ease discovery deadlines for prosecutors.
The proposed rollback is “too little, too late,” remarked former NYPD detective and current professor at John Jay College of Criminal Justice Joseph Giacalone. “The damage is done. There are too many politicians in New York that have gaslighted us for so long about the surge in violence.”
Juvenile Cases
Well before the latest round of criminal justice reforms, the number of juvenile arrests in New York started plummeting. Now, when kids run afoul of the law, they rarely end up with police records.[2] Criminal convictions are even rarer.
As a result, some people believe a juvenile arrest in New York is not a big deal. That’s simply not true. Although the law makes some accommodations, for the most part, the same criminal code that applies to adults also applies to juveniles.
As mentioned, most juvenile cases have a happy ending or at least a reasonably happy ending. However, these resolutions usually aren’t available for the asking. A Rochester criminal defense lawyer must stand up for juvenile rights.
On a related note, many people believe that juvenile criminal records are automatically sealed when the child turns 18. That’s true in a few cases. If the case is dismissed or otherwise ends favorably for the defendant, all law enforcement and judicial records are immediately sealed.
If a court places a juvenile defendant on probation or takes other adverse action, the defendant, or rather the defendant’s Rochester criminal defense lawyer, must petition the court for sealing. This relief is available if the defendant is at least 16 at the time of the petition.
Post-conviction seals only apply to judicial records. Any law enforcement records usually remain. Fortunately, most people, such as future employers, know there’s a big difference between a criminal charge and a criminal conviction.
Pretrial Release
Many were upset with New York’s radical bail reform, which ended pretrial detention for nonviolent offenders. Some offenses, like stalking and weapons possession, are technically nonviolent. Obviously, though, these situations could escalate and end very badly. So, the rules are changing, but the structure is basically the same.
Pretrial release is usually available for first-time, nonviolent offenders. The sheriff releases these individuals if they pay a small fee and promise to appear in court and comply with other bail conditions, such as reporting to a supervision officer. Attorneys advocate for prisoners in borderline situations, like semi-violent crimes or situations involving remote (older than ten years) criminal convictions.
Attorney advocacy is available in other areas as well. If the sheriff doesn’t set bail or the amount is too expensive, a Rochester criminal defense lawyer can appear for the defendant at a bail reduction hearing. At these hearings, judges consider a wide range of factors, not just the offense’s severity.
Very few things jumpstart a successful criminal defense better than prompt pretrial release. Especially in the coronavirus era, incarcerated defendants usually have limited contact with their lawyers. Additionally, when the cell doors open, the pressure is off defendants to accept unfavorable plea bargains just to get it over with.
Criminal Evidence
The fact that prosecutors quit because they must follow the rules doesn’t bring us to tears. However, they have a point. Discovery in criminal cases should be fair to both sides. Since discovery is limited in criminal cases, defense attorneys must usually work harder and be creative.
In a personal injury case, evidence is usually easy to obtain. But in a criminal case, attorneys often partner with private investigators to find video surveillance evidence, additional witness testimony, and other potentially game-changing bits of evidence.
Additionally, many criminal cases include some non-criminal ancillary proceedings. DWIs are a good example. During an Administrative License Revocation hearing, the state must show its hand in front of a judge. If a lawyer represents the defendant at this hearing, the attorney knows exactly what’s coming at trial.
Get Help from a Dedicated Rochester Criminal Defense Lawyer
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal defense attorney. We routinely handle matters in Monroe County and nearby jurisdictions.
