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Charges against man in first SAFE Act conviction dismissed

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    Charges against man in first SAFE Act conviction dismissed

    Charges against man in first SAFE Act conviction dismissed

    Jul 8, 2019 / 03:14 PM EDTLocal News
    by: News 4 Staff

    Posted: Jul 8, 2019 / 01:18 PM EDT/ Updated:
    SILVER CREEK, N.Y. (WIVB) — The charges against a Silver Creek man who faced the first ever SAFE Act conviction have been dismissed.

    Benjamin Wassell appeared in Chautauqua County Court on Monday morning.

    In 2014, Wassell was convicted of selling two of his own assault weapons to an undercover investigator.

    The New York State Supreme Court appellate division overturned his conviction back in April.

    Monday’s decision means Wassell cannot be re-tried for the crime.
    Monday's decision means Wassell cannot be re-tried for the crime.
    Pat ------> NRA Endowment Member

    #2
    That site's description is a little lean. More here: https://www.observertoday.com/news/p...on-overturned/

    Silver Creek man has had his SAFE Act-related conviction overturned by the Fourth Department Appellate Division court in Rochester.
    The judicial panel unanimously ruled that the indictment against Benjamin Wassell of Silver Creek is dismissed, the judgement against him unanimously reversed and the case remitted back to Chautauqua County Court. Wassell was charged after allegedly selling an AR-15, nearly 300 rounds of ammuniation and six magazines and an AR-10 semi-automatic rifle with 31 rounds of ammunition and one magazine to undercover State Police investigators shortly after the SAFE Act was passed in 2013.
    Wassell had been convicted in Chautauqua County Court in May 2014 of third-degree criminal possession of a firearm and two counts of third-degree criminal sale of a firearm. He was sentenced to probation and a $375 fne.
    The court decision is less of a blow to the state SAFE Act and more of a statement on the prosecutorial authority of the state Attorney General’s office, which prosecuted Wassell’s case through both the trial and sentencing. In fact, Wassell’s contentions about the SAFE Act itself were not taken up by the Appellate Division once it made its determination about the Attorney General’s lack of jurisdiction in the case.
    Jim Ostrowski, Wassell’s attorney, also argued that the SAFE Act is unconstitutional and void for vagueness, that there were due process violations, errors in jury instructions by Judge Michael D’Amico, that Wassell’s equal protection rights under the Constitution had been violated and that the conviction was not supported by legally sufficient evidence.
    “In light of our determination, we do not address defendant’s remaining contentions,” the court wrote.
    Wassell and his attorney argued that the Attorney General’s office lacks the authority to prosecute him for the charges. The Fourth Department agreed with Wassell’s contention, saying case law and the state’s Executive Law have given the state Attorney General prosecutorial authority only on request of the head of a department, authority, division or agency of the state.
    “It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute,” the judges wrote in their opinion. “People assert that the Attorney General had authority to prosecute this matter under section 63 (3) based on a request made by the State Police, such a request would confer that authority only if made by the head of the division, i.e., the Superintendent of State Police. Moreover, ‘the state bears the burden of showing that the (division or) agency head has asked for the prosecutorial participation of the Attorney General’s office.'”
    Judges decided the record did not establish that the State Police superintendent asked the Attorney General’s office to prosecute the case and that no letter had been entered into the record from the State Police superintendent asking the Attorney General to prosecute.

    “Because the People failed to establish that the Attorney General had authority to secure the indictment and prosecute the case, we conclude that the judgment must be reversed and the indictment dismissedm,” the judges wrote. “We note that the People, for the first time through post-argument submissions, have provided this court with a letter from the superintendent to the Attorney General requesting assistance in this case. Nevertheless, the existence of that letter was not raised in the People’s brief, and thus the argument that the letter establishes the Attorney General’s authority to prosecute is not properly before us.”


    More info here : https://usbreakingnews.net/2019/07/0...ainst-veteran/
    Last edited by Grifhunter; 07-08-2019, 08:31 PM.
    Ballistic: "Grif... You are my legal eagle spirit animal...."

    Comment


      #3
      He should send a personal note to Cuomhole and the DA, to go suck it.

      Comment


        #4
        Originally posted by Grifhunter View Post
        That site's description is a little lean. More info here : https://usbreakingnews.net/2019/07/0...ainst-veteran/
        Wow! Glad the charges were dismissed, but this mans life has been destroyed.. That's the thank you he gets for serving his country?! Its a disgrace! the UNSAFE has to go!
        Lain

        Chapter Leader of The Well Armed Woman Long Island -EST 2015
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        Comment


          #5
          Can he sue for damages? I do not know the particulars or fine points of this veteran's case. What a damned shame.

          Comment


            #6
            He dodged a bullet and got off on a technicality. He wasn't absolved. Any civil suit would be poking the bear.
            Ballistic: "Grif... You are my legal eagle spirit animal...."

            Comment


              #7
              AG and NYSP won’t make that mistake again. This guy got lucky but I don’t see anything here that would effect any future case unless NYS is running on pure stupid next time.

              Comment


                #8
                I don't understand, what was he being charged with in the first place?
                Just selling an AR isn't illegal (yet).
                Were the AR's not legal under SAFE?
                I am not armed out of fear of who's in front of me.
                I am armed out of love of those behind me.

                Anyone who says money doesn't matter to them is either a FOOL or a LIAR or BOTH!

                Comment


                  #9
                  Originally posted by Grifhunter View Post
                  He dodged a bullet and got off on a technicality. He wasn't absolved. Any civil suit would be poking the bear.
                  The judicial panel unanimously ruled that the indictment against Benjamin Wassell of Silver Creek is dismissed, the judgement against him unanimously reversed and the case remitted back to Chautauqua County Court.

                  The court decision is less of a blow to the state SAFE Act and more of a statement on the prosecutorial authority of the state Attorney General’s office, which prosecuted Wassell’s case through both the trial and sentencing.
                  So... the AG's indictment was dismissed due to jurisdictional issues, but it says the case was remitted back to the county court. Doesn't that mean he's technically NOT out of the woods yet? It's unlikely, but couldn't the NYS AG pull weight with the county court and get a local prosecutor to prosecute on the same charges?

                  Comment


                    #10
                    Originally posted by Jetfan1616 View Post



                    So... the AG's indictment was dismissed due to jurisdictional issues, but it says the case was remitted back to the county court. Doesn't that mean he's technically NOT out of the woods yet? It's unlikely, but couldn't the NYS AG pull weight with the county court and get a local prosecutor to prosecute on the same charges?
                    I admittedly am not too sure how re-trying a case works and double jeopardy, but this is from the original article that Pate' posted:

                    In 2014, Wassell was convicted of selling two of his own assault weapons to an undercover investigator.

                    The New York State Supreme Court appellate division overturned his conviction back in April.

                    Monday’s decision means Wassell cannot be re-tried for the crime.
                    "The Open Carry guy is my decoy."

                    Comment


                      #11
                      Originally posted by Dan 0351 View Post

                      I admittedly am not too sure how re-trying a case works and double jeopardy, but this is from the original article that Pate' posted:
                      Remember that Bernie Geotz was tried, acquitted, then tried again on the same charges.

                      I am not armed out of fear of who's in front of me.
                      I am armed out of love of those behind me.

                      Anyone who says money doesn't matter to them is either a FOOL or a LIAR or BOTH!

                      Comment


                        #12
                        Originally posted by LiDad View Post

                        Remember that Bernie Geotz was tried, acquitted, then tried again on the same charges.
                        Yeah, there are times when people can get re-tried, I'm just not too sure of when/why. Every time I'm in court I learn another 'rule of law'. I'm sure one of our local barristers can explain it.

                        A quick search on the intewebz:

                        Retrials in criminal cases come up in the following situations:
                        • After the judge has declared a mistrial, which halts the trial mid-way, or
                        • After an appellate court has reversed a conviction from the trial court.
                        "The Open Carry guy is my decoy."

                        Comment


                          #13
                          Originally posted by Dan 0351 View Post

                          Yeah, there are times when people can get re-tried, I'm just not too sure of when/why. Every time I'm in court I learn another 'rule of law'. I'm sure one of our local barristers can explain it.

                          A quick search on the intewebz:

                          Retrials in criminal cases come up in the following situations:
                          • After the judge has declared a mistrial, which halts the trial mid-way, or
                          • After an appellate court has reversed a conviction from the trial court.
                          In the Geotz case as I recall the claim was after his initial acquittal the claim was some "new" evidence had come to light.

                          One of my favorite 'rule of law' things is the "John Doe Indictment".
                          It basically allows the DA to indict an unknown suspect.
                          They use this to stop the clock on the Statute of Limitations so the case remains open indefinitely if they ever do find a suspect 10-20-30 years later. Usually used for high profile murder, kidnapping etc cases but still.....
                          I am not armed out of fear of who's in front of me.
                          I am armed out of love of those behind me.

                          Anyone who says money doesn't matter to them is either a FOOL or a LIAR or BOTH!

                          Comment


                            #14
                            Originally posted by LiDad View Post

                            In the Geotz case as I recall the claim was after his initial acquittal the claim was some "new" evidence had come to light.

                            One of my favorite 'rule of law' things is the "John Doe Indictment".
                            It basically allows the DA to indict an unknown suspect.
                            They use this to stop the clock on the Statute of Limitations so the case remains open indefinitely if they ever do find a suspect 10-20-30 years later. Usually used for high profile murder, kidnapping etc cases but still.....
                            Very interesting. Never heard of a "John Doe Indictment".

                            But there is no statute of limitations in NY for crimes like Murder 1st, and certain arson, rapes, kidnappings - not sure what else.
                            "The Open Carry guy is my decoy."

                            Comment


                              #15
                              Originally posted by Dan 0351 View Post

                              Very interesting. Never heard of a "John Doe Indictment".

                              But there is no statute of limitations in NY for crimes like Murder 1st, and certain arson, rapes, kidnappings - not sure what else.
                              I don't think there is 1st degree murder in NY. When I took law in college the professor said 1st degree is a capital offense and since there is no capital punishment in NYS there is no 1st degree murder, only 2nd degree.
                              I am not armed out of fear of who's in front of me.
                              I am armed out of love of those behind me.

                              Anyone who says money doesn't matter to them is either a FOOL or a LIAR or BOTH!

                              Comment

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