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Discussion in 'Carry Issues' started by Gallium, Jan 1, 2010.
Homie screwed up in five different ways.
This could have been avoided if he watched Law & Order.
OMG, not the dreaded loaded assault weapon magazine!!
NY is retarded.
Worst upstate county to get arrested in. DA's office been cited several times for prosecutorial misconduct for overzealousness. Will probably not present a proper technical case to the GJ or prove one at trial, but county is so incestuous that the judiciary will cover for them. They are used to rolling over inexperienced assigned lawyers. There are many technical aspects to proving a weapons charge in NY and I hope the guy has enough money for a good lawyer who knows this. First thing that pops in my mind, is whether the weapon was in plain view or locked in the trunk. I for the life of me cannot imagine a scenario where a search of the trunk would be justified in a traffic stop. If the cops asked for permission and the guy said ok, then there is least a mitigating argument that the guy had absolutely no idea that his Colorado legal weapon was illegal in NY. I pray that the weapon was pre-ban or at least that the DA cannot prove otherwise. Otherwise the guy is in for a royal screwing.
Ignorance of the law is not a defense.
Now if he wanted to go balls to the wall, he COULD get a lawyer to make the case the the LAW ITSELF is wrong. That's an actual legitimate defense. But unless he has billions of dollars to throw at the case, not a defense that is likely to win out in NY....
I have no idea about "the rest of the story" but I hope the guy was not stopping in NY, just passing through onto VT or another state where everything was legal. At least then he'd have a legit defense in the federal law allowing movement unloaded and not within reach no matter what the local law.
That's why I said "mitigating" rather than "defense". Plea bargaining is restricted in weapons cases, but there are a few outs to avoid mandatory incarceration if mitigating circumstances exist and the judge sets them out on the record.
A constitutional issue can be raised as to the law itself (2nd amendment) or as it applies to the citizen of another state (equal protection), but it will lose in Ontario County for sure, at the 4th Appellate Division probably and the NY Court of Appeals probably.
Currently, the Second Circuit Court of Appeals (NY, CT, VT) has ruled that the Second Amendment is not incorporated and does not apply to state/local governments.
1. So this guy didn't have a valid drivers license? In addition it was out of state.
2. Ran a stop sign?
3. Broke the NY state firearms law (agree with or not).
4. Canandaigua is a somewhat out of the way town.
I suspect there is more to this story than "meets the eye".
The smaller towns in NY State have alot of problems with crystal meth production and distribution.
Obviously the guy is innocent until proven guilty but there are RED FLAGS all over the place on this one.
As far as I remember driving without a valid licence is an arrestable offense. So they would not need his permision to search. Now he was real dumb having high cap mags, Obviously he had a NYS banned weapon. And No I don't agree with there Fup'd laws !!! I see this guy going to prison for along time as no court in NY with help him! If you like to carry Black rifles around NYS is a place you want to avoid at all costs!
The thing is, though, the 2nd amendment protects reckless no license driving meth distributors. All that other stuff, while illegal, has no bearing on his 2nd amendment rights. If we don't support anyone and everyone legally carrying a firearm (or in this case it should be legal even if it isn't legal in NY), we are no better than the anti's.
Or so I've heard....
Driving without a license is a traffic infraction, not a crime. Same as the stop sign. Driving with a suspended or revoked license is a misdemeanor, but in NY the charge is really irrelevant. NY courts have interpreted the NY Constitution to give greater protection to the driver. No matter what the charge the officer needs "reasonable suspicion" that the vehicle contains evidence of the arresting offense or "probable cause" to support a search for evidence of another crime before a vehicle can be searched without the driver's permission. Of course, if contraband is in plain view the officer can seize it. An AR with a 30 round mag lying on the backseat would certainly give the probable cause required in NY since we have a 10 round mag limit unless it is a pre-ban mag. A lot different result if the AR is locked up in the trunk. In NY there is seldom a reason for an officer to search a glove compartment or trunk or other enclosed space within a car when the arrest is for a mere traffic infraction. Same with any closed container (briefcase, suitcase, etc.) within the passenger compartment. Note that this is an instance where the the US Supreme Court has ruled the protection for the driver is less than that the Court of Appeals as granted under the NY constitution. By protection, of course, it is meant the protection against unlawful search and seizure guaranteed by both constitutions.
If only Ronald Reagan had signed a bill into law in, I don't know, 1986 that would make it a Federal crime for states to harass people passing through their state to a destination in another state.
Plus, he is only a "meth distributor" on GT. With NO evidence that is the case. I would think if any quantity of meth were found in the vehicle, it would have been mentioned.
If he (driver) does not have proof of an operator's license, what do LE agencies routinely do? Cite and release, or impound the vehicle? (I do not know, as in 20 years my license has never been suspended).
How does the passing thru law work? I always wondered.
Do you have to pass thru non-stop? Like...can you stop for gas, lunch, etc? Stop to see a friend as long as the eventual destination for the firearm is legal?
Just curious. I hope I don't sound stupid, but I've been on the board for a few years now and have never seen this clarified.
You can stop for essentials only. Food, fuel, rest stops.
NYC has one quirky rule...I would have to dig it up...you can stop in NYC for a max of 24hrs with your long gun...I DO NOT recall the details, so please don't quote me on it!
Getting fuel is perfectly okay. If I needed food, I would do drive-through and eat in the car back on the road.
Stopping off to see a friend I doubt is covered.
"Safe passage" provision
One of the law's provisions was that persons traveling from one place to another for a shooting sports event or any other lawful activity cannot be arrested for a firearms offense in a state that has strict gun control laws if the traveler is just passing through (short stops for food and gas) and the firearms and ammunition are not immediately accessible, unloaded and, in the case of a vehicle without a compartment separate from the driver’s compartment, in a locked container.
An example of this would be that someone driving from Virginia to a competition in Vermont with a locked hard case containing an unloaded handgun and a box of ammunition in the trunk could not be prosecuted in New Jersey or New York City for illegal possession of a handgun provided that they did not stop in New Jersey or New York for an extended period of time.
Here in NY the courts have held that if a vehicle is impounded for any reason, then LE can conduct an "inventory" of the vehicle's contents to list items that might be perishable, valuable, fragile, etc...so that they can be documented in case of loss/damage/theft by the tow operator or impound lot. Also included would be a note of the vehicles odometer and visual condition.
Although the courts do not see this as a "search" , if any illegal items/materials are discovered during the inventory then they are fair game for an arrest ...imminent discovery...
That is how it works here in NY. Find a valid reason to tow the car, and its contents are fair game.