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Breaking News… New York, New Jersey, Connecticut and Rhode Island Pledge to Share Gun Safety Data.

As reported in the New York Times, “Four states in the Northeast with relatively strong gun laws banded together on Thursday to form a gun safety coalition, filling what the states called a vacuum of federal action by pledging to share registries of people prohibited from owning firearms in individual states.”  Governor Andrew M. Cuomo, of New York, announced this plan in the wake of the tragic mass murder of fourteen students, and three teachers at Marjory Stoneman Douglas High School, in Parkland, Florida.

https://www.nytimes.com/2018/02/22/nyregion/four-northeast-states-pledge-to-share-gun-safety-data.html

What are New York’s gun laws?

Gun laws, in general, are complicated.  Every state has its own gun laws, and the regulations tend to reflect the societal view of guns, as held in each jurisdiction.  Additionally, there are federal gun laws.  Some states honor federal gun laws, while other states do not enforce them.  New York’s gun laws are considered to be amongst the toughest in the nation, and the policies related to the regulation of guns differs from county to county within the State of New York.

Here’s a quick rundown:

  • Guns in Cars?  Not without a permit!  Without a valid New York license to carry a gun, it is illegal to possess a loaded firearm in any motor vehicle.  However, if New York issues you a pistol license, you can carry a loaded, and concealed handgun in a vehicle.
  • Open carry?  If New York issues you a pistol license, then you have the right to carry a concealed gun.  However, as stated above, gun laws differ from county to county, so one county could restrict your ability to carry a gun openly, while another might allow for it.
  • Do I Have to Notify an Officer that I have a Gun?  While New York law requires you to carry your pistol permit at all times while you are actually in possession of a concealed handgun, New York does not require you to inform a law enforcement officer that you have a firearm when you are approached on official business.  New York’s gun laws are spelled out in Articles 400 and 265 of the New York State Penal Law.
  •  Can I carry a gun anywhere in the State of New York, if I have a permit?  No, a permit to possess a gun does not entitle you to carry it anywhere in New York State.  Despite having a permit, there are a number of restrictions on where you can carry a gun.  For example, the following places are off-limits:  Courthouses, certain government buildings, airports, schools, New York City*, facilities operated or licensed by the Office of Mental Health, and any place where carrying a firearm is prohibited by federal law.

*The NYC police commissioner can grant a special permit to carry a gun in New York City

  • Can I carry a gun in New York, if I have a license from another State?  Not in an airport, as noted above.  You will be arrested if you try to transport a gun through one of New York’s airports without having a New York gun license.  Over the years, I’ve represented  a number of people who had been arrested for weapons possession after having  declared their guns, which were stowed properly in locked gun cases.  Please note that the Firearm Owners Protection Act will not protect you traveling through a New York airport.

Can ICE arrest immigrants in courthouses?

The U.S. Immigration and Customs Enforcement announced this week that it has formalized its policy authorizing courthouse arrests in specific circumstances of immigrants who are subject to deportation.  As reported by the American Bar Association, and the New York Law Journal, the directive generally bars arrests of people visiting the courthouse as family members, friends and witnesses.  What does “generally” mean?  It means, “mostly,” or “in most cases,” which means that in some cases the ICE directive does allow for arrests of people visiting the courthouse as family members, friends and witnesses.   Which cases?  It’s unclear.

Arrests are allowed for “specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed,” the policy says.  ICE had made more than 130 arrests at courthouses in New York state in 2017, compared to just 11 arrests the prior year, according to figures from the Immigrant Defense Project cited in the New York Law Journal article. The group said in a statement that the ICE policy is “just a continuation” of a past policy that poses a threat to public safety and the fair administration of justice.

Can I record my own conversations with other people?

Both New York State law, and federal law, permit you to record your own telephone calls and in-person conversations, so long as at least one of the parties to the conversation consents to its recording.  U.S.C. 2511(2)(d), NY Penal Law Section 250.  This is called a “one-party consent” law.  Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation.  Such recordings can be admissible as evidence in court, so long as they are properly authenticated.  In a recent criminal case in Brooklyn, New York, the Court found that the complainant’s testimony that a copy of recorded conversations between herself and the defendant were fair and accurate depictions of those conversations “establishing clear and convincing evidence that the recording was accurate and had not been altered” and thus the recording was properly authenticated, and admissible evidence.  People v. Bartholomew, 150 AD3d 1138, 56 NYS3d 155 (2nd Dept 5/24/2017).

In order for the police to make an arrest, they must have probable cause to believe that the accused has committed a crime.   Probable cause is derived from evidence of the accused’s guilt.  And, while the accused will be presumed to be innocent at trial, there is not always evidence of innocence to help the accused to clear his or her good name.  I’m reminded of an exquisite exchange during the District Attorney’s unrelenting cross-examination of Andy Dufresne, the falsely-accused, and later wrongfully convicted, defendant in the classic movie, “Shawshank Redemption.” On trial for the murder of his wife, and her lover, who had been shot to death with a .38 caliber handgun, Andy testifies that he had thrown his gun, a .38 caliber revolver, into a nearby river prior to the time of the shooting, and that if the gun were found, ballistics evidence would prove his innocence.  Here’s how it went:

District Attorney:  The police dragged that river for three days and nary a gun was found.  So, there could be no comparison made between your gun and the bullets taken from the blood-stained corpses of the victims.  And that, also, is very convenient, isn’t it, Mr. Dufresne?

Andy Dufresne:  Since I am innocent of this crime, sir, I find it decidedly inconvenient that the gun was never found.

While that exchange did not deal with evidence of an audio recording, it most decidedly concerned evidence, that if it were available, would have saved Andy from going to prison for a crime he did not commit.  Had Andy known that he was going to be falsely accused of murder, he surely would have taken steps to preserve evidence of his innocence – namely, he would not have thrown his gun into the river.  Obviously, he would have held onto it like it was a Get Out of Jail Free Card.  Fortunately, both New York law, and federal law, allow you make your own Get Out of Jail Free Cards – at least, as it concerns recording your own conversations.

Imagine the following scenario:  You are going through a bitter divorce, and your spouse takes out an order of protection, which prohibits you from saying or doing things that he or she considers to be harassment.  Then, after an argument, your spouse calls the police, and files a complaint accusing you of having threatened him or her during the argument.  Unless the police have evidence that the accusation is false, they will have no choice but to arrest you, and put you through the system, because it is considered to be a domestic dispute.  You’ll be hauled down to the police station, spend around twenty-four hours in jail, and face a judge for allegedly violating a Court order.  But what if you had a recording of the conversation that you had with you spouse, and it proves that he or she is lying?  Do you think it might be your Get Out of Jail Free card?

Here’s another scenario:  Following your arrest for robbery, you hire a private investigator to interview potential witnesses to your alleged crime.  Your investigator secretly records his or her own conversations with the witnesses, who give accounts favorable to you.  Get Out of Jail Free Cards, right?  At trial, however, your witness changes his or her story, and testifies against you.  Imagine the faces on the jury when your lawyer plays your investigator’s secret recording to impeach the credibility of the witness who has turned on you.  Bazinga!  In this example, your investigator’s secret recording can preserve evidence of the truth.

Both scenarios show how recorded conversations can be an important tool in the defense of a criminal case.  If you have any questions, give me a call.

Am I guilty of violating an Order of Protection if I did not know its terms?

In New York State, a defendant must have knowledge of the terms of the order of protection, not its “mere issuance,” to sustain such a conviction.  To have knowledge, there must be evidence that the defendant either read or was advised of the terms of the order, “including a handwritten condition…”  People v. John, 150 AD32 889, 53 NYS3d 377 (2nd Dept. 5/10/2017).

Can a prosecutor ask a jury to speculate about evidence not in the trial record?

In People v. Ramirez, 150 AD3d 898, 54 NYS3d 93 (2nd Dept. 5/10/17), the Supreme Court of the State of New York, Queens County, held that it was improper for the prosecutor  to “[suggest], without any evidentiary support, that the jury should disregard the [witness]’s grand jury testimony, in which she failed to name the defendant in the subject assault, because there was more to the testimony than they knew.”  In this case, the prosecutor’s comments were “particularly prejudicial” to the defendant, as the witness’s credibility was crucial to the prosecution’s case and the evidence was “less than overwhelming,” so a new trial was ordered.

How does child support work?

Under New York State law, both parents must financially support their child until the child turns 21 years old.  It is common, however, for parents to continue paying child support until the child has turned 22, if she is college.  Child support also includes providing health insurance coverage until the child turns 21 years old.   If the child is under 21 and married, self-supporting, or in the military then the child is emancipated and the parents don’t have to support the child.

Generally, the custodial parent – the one who has physical custody of the child, e.g., the parent with whom the child lives most of the time – can get support from the other parent, the non-custodial parent.  If the child is in foster care then both parents have a responsibility of paying child support.  Child support is intended to cover food, clothing, shelter and other basic expenses, but does not include medical expenses that are not covered by insurance or child care expenses while the custodial parent goes to school or work.  These additional expenses, or add-ons, are included in the basic child support obligation, and the non-custodial parent pays his or her pro-rata share of the additional child-rearing expenses.   Mandatory add-on expenses include:  the cost of health insurance for the child, unreimbursed health care expenses (such as co-payments), and a share of any necessary child care expenses for a party who is working.   Additionally, the court may determine that certain other items, like educational expenses, religious education, and costs for extracurricular/summer activities are add-ons, requiring additional support from the non-custodial parent.

How is the amount of child support determined?

The amount of child support is largely determined by two things:  (1) a family’s total income, and (2) the number of children in the family.  The number of children determines the percentage of income that is used for calculating annual child support obligations.  This is set forth in the Child Support Standards Chart.

https://childsupport.ny.gov/dcse/pdfs/CSSA.pdf

What is “income” for child support purposes?

To determine gross“income” for the purpose of identifying child support payments, add the income from wages or salary from a job, and income received from other sources, like unemployment insurance benefits, workers’ compensation awards, disability benefits, social security benefits, veterans’ benefits, annuity payments, pension and retirement benefits, as well as stipends and fellowship awards.

After identifying gross income, subtract all appropriate deductions, such as: Social Security and Medicare (FICA) contributions; New York City or Yonkers income tax; child support or maintenance actually paid to a non-party (e.g., a previous spouse) pursuant to a court order or a written agreement ; or public assistance benefits.  After taking into account deductions, the adjusted income for each party is added together, producing an amount called the “combined parental income.”  That figure is then multiplied by the appropriate percentage of income, as determined by the number of children produced during the marriage, i.e., 17%, 25%, 29%, 31% or 35%.   Each parent’s income is then divided into the combined parental income to determine each parent’s proportional share of the combined parental income

What is “alimony”?

“Alimony” is the payment one spouse makes to another during or after a divorce, as ordered by a court.  In New York, though, the term “alimony” is no longer used.  Today in New York, alimony is called “maintenance.”  The purpose of “maintenance” is to ensure that supported spouses continue to live the same or a similar lifestyle as they did while they were married.  As of  January 25, 2016, a new law set presumptive amounts and the length of time for maintenance after a divorce.  These guidelines are presumed to be the correct amounts and time periods, but the court still has discretion to order different amounts if the court explains why.  Maintenance and support amounts are set by a mathematical formula.  The New York State Unified Court System provides a way in which to determine the amount of support.  You can check it out:  http://www.nycourts.gov/divorce/calculator.pdf