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Charges against man in first SAFE Act conviction dismissed

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    #16
    Penalties and Sentences First degree murder is a class A-I felony and is subject to one of the following sentences:
    • Death;
    • Life imprisonment without parole; or
    • Imprisonment for a term of 20 to 25 years.

    Although the statute lists the death penalty as a possible sentence, its use has been in question after certain appeals court cases, making the alternative sentences more likely outcomes.
    No Better Friend, No Worse Enemy

    - U.S. Marines

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      #17
      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?
      He can be retried, but the local county DA said they aren't going to bother. He was only gonna get probation anyway, and he likely agreed to give up the rifles, so in the "interests of justice" (and to avoid bad publicity) the local DA said enough is enough, on to the real bad guys.
      Ballistic: "Grif... You are my legal eagle spirit animal...."

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        #18
        FUAC

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          #19
          Originally posted by Grifhunter View Post
          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.”
          Gotta give props to the judge who totally saved his ass, he didn't allow the letter to be entered as evidence even though it did exist. Probably was not submitted as evidence during discovery. Bravo to the Rochester judge who decided against railroading this veteran by the state AG.

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            #20
            It doesn't seem like a win, but it's not a loss either.

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              #21
              Originally posted by LiDad View Post

              Remember that Bernie Geotz was tried, acquitted, then tried again on the same charges.
              From what I understand, he wasn't tried again on the same charges. He faced a civil suit in the second trial. That's a big difference. That's a big difference; double jeopardy protects against being charged with the same crime twice. Goetz wasn't. He lost a civil suit that said he was responsible for the injuries they sustained. He declared bankruptcy and didn't pay a dime, or so he says.

              What really pisses me off and should be considered double jeopardy is when the state loses then the Feds step in and charge the person with "Civil Rights" violations and tries them for a second crime for the same actions. It wouldn't bother me if they charged the person immediately, but back in the 90s it was happening a lot (IIRC the cops in the Rodney King case got hit with it) but only AFTER an initial acquittal. That seems to me to be a definite misuse of the system to get a second shot at a conviction.
              "The devil doesn't come dressed in a red cape and pointy horns. He comes as everything you've ever wished for.”
              Tucker Max

              Infirmitate Invitat Violentiam
              Finicky Fat Guy

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                #22
                His case was remitted to the lower court as per NY's Criminal Procedure Law 470.45:
                S 470.45 Remission of case by appellate court to criminal court upon reversal or modification of judgment; action by criminal court. Upon reversing or modifying a judgment and directing corrective action, an appellate court must remit the case to the criminal court in which the judgment was entered. Such criminal court must execute the direction of the appellate court and must, depending upon the nature of such direction, either discharge the defendant from custody, exonerate his bail or issue a securing order. (source)
                So, it does not seem likely he can be retried on the same charges without double jeopardy.
                Last edited by Glenn B; 07-10-2019, 11:12 AM.
                Retired and loving it.

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                  #23
                  Originally posted by Glenn B View Post
                  His case was remitted to the lower court as per NY's Criminal Procedure Law 470.45:
                  So, it does not seem likely he can be retried on the same charges without double jeopardy.
                  LOL. Thats not what that says. But kudos for at least looking at a statute.
                  Ballistic: "Grif... You are my legal eagle spirit animal...."

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                    #24
                    Here's an interesting article that further develops what the defendant allegedly did to get indicted. Sounds to me he was caught redhanded. "Lucky" dude. https://buffalonews.com/2019/07/07/n...fe-act-crimes/

                    More than seven years ago, Iraq War hero Benjamin M. Wassell became the first person to be criminally prosecuted under New York State’s SAFE Act, a controversial gun control law that has been applauded by advocates for victims of violent crimes but attacked by defenders of the right to bear arms.
                    State Police arrested Wassell, of Silver Creek, after alleging that he sold two semiautomatic “assault weapons” to an undercover investigator. Wassell, who suffered a brain injury from the explosion of an improvised bomb in Iraq, claimed he was confused by differing information that people gave him about the SAFE Act.
                    Wassell expects to walk into a Chautauqua County courtroom Monday morning and find out that the charges filed against him have been permanently dismissed, never to be pursued again by state prosecutors.
                    A state appeals court overturned Wassell’s convictions in April. Wassell’s attorney, James Ostrowski, told The Buffalo News Sunday that the State Attorney General’s office recently sent him and the court a letter, saying they will seek no further appeals.
                    But Wassell, now 39 and a father of four, isn’t entirely pleased.

                    “Yes, it’s a win, but my life has been turned upside-down for almost seven years now,” the Marine Corps veteran said in a telephone interview Sunday evening. “This whole thing has been hell for me and my family. We’ll never get those years back.
                    “I got fired from the job I had when I got arrested. I was also under consideration for a job with the federal government, and I was told I was no longer under consideration, because of the arrest. I tried to get back on active duty with the Marines and was turned down. And with all that has happened, there was no ruling in my case on whether the SAFE Act is unconstitutional or not.”
                    Wassell said he is now working at a sewage treatment plant “because friends were willing to vouch for me, and the employer gave me a chance.”
                    “The felony convictions will be cleared from his record, and that’s important,” Ostrowski said. “The Second Amendment arguments against the SAFE Act law will continue to be made.”
                    State attorneys could not be reached Sunday for comment.
                    According to Ostrowski and Wassell, a state attorney recently sent a letter to the judge handling the case, Acting State Supreme Court Justice Stephen W. Cass, telling him that the state will no longer pursue the case and will agree to have it “dismissed with prejudice,” meaning there will be no further efforts to appeal.
                    “My client, the state’s attorney and I will be appearing before Judge Cass at 10 a.m.” Monday, Ostrowski said.
                    The law officially known as the New York Secure Ammunition & Firearms Enforcement Act took effect in January 2013, after it was passed by state lawmakers and signed by Gov. Andrew M. Cuomo. Cuomo and others have called it the toughest gun control law in the nation. Wassell was arrested about two months later.
                    He was charged with selling a Del-Ton AR-15 rifle, 299 rounds of ammunition and six large-capacity clips for $1,900 to the undercover trooper on Jan. 24, nine days after the SAFE Act was passed. Police said the weapon had an illegal pistol grip, telescoping butt and bayonet mount. Later, Wassell allegedly sold another semiautomatic rifle with 21 rounds of ammunition for $2,600. That gun had a pistol grip.
                    The arrest of a decorated war hero — who was twice injured by explosions in Iraq — upset gun rights advocates and members of Wassell’s family.
                    After a jury trial in March 2014, Wassell was convicted of three felony weapons counts. Two other charges were dismissed by the trial judge.
                    Wassell testified that he believed the sale was lawful because the SAFE Act had only recently taken effect and he had been given “a lot of different information from a lot of different people.” He said it was his understanding that the gun he sold was “grandfathered in” and that he was legally allowed to sell it.
                    A state appeals court in Rochester ruled in April of this year that State Police did not have the proper jurisdiction to take the case, but they did not rule on the constitutionality of the SAFE Act.
                    Steve Felano of the gun rights organization 2AWNY.COM issued a statement on Friday calling the demise of the case against Wassell a “crushing rebuke” to SAFE Act supporters. He said gun rights advocates will hold a press conference at the Chautauqua County Courthouse in Mayville after Monday’s court appearance.
                    Felano said the Wassell case is the latest development in what he believes will be a successful effort to overturn the SAFE Act.
                    SAFE Act supporters contend that the law makes it tougher for criminals and the dangerously mentally ill to buy guns by requiring universal background checks on purchases. State officials said the law “increases penalties for people who use illegal guns, mandates life in prison without parole for anyone who murders a first responder, and imposes the toughest assault weapons ban in the country.”

                    Ballistic: "Grif... You are my legal eagle spirit animal...."

                    Comment


                      #25
                      Originally posted by Finicky Fat Guy View Post

                      From what I understand, he wasn't tried again on the same charges. He faced a civil suit in the second trial. That's a big difference. That's a big difference; double jeopardy protects against being charged with the same crime twice. Goetz wasn't. He lost a civil suit that said he was responsible for the injuries they sustained. He declared bankruptcy and didn't pay a dime, or so he says.
                      No, he was tried twice and convicted of the illegal gun charge. Spent a year I think in Rikers.
                      The civil suit was something else. Don't know how that ended.

                      What really pisses me off and should be considered double jeopardy is when the state loses then the Feds step in and charge the person with "Civil Rights" violations and tries them for a second crime for the same actions. It wouldn't bother me if they charged the person immediately, but back in the 90s it was happening a lot (IIRC the cops in the Rodney King case got hit with it) but only AFTER an initial acquittal. That seems to me to be a definite misuse of the system to get a second shot at a conviction.
                      Agreed!

                      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


                        #26
                        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.....
                        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.
                        My understanding is .. a John Doe Indictment is generally used when a DNA evidence profile has been identified in a case...it is specific to a person even if the name is unknown allowing the prosecute to present evidence to a Grand Jury that that a certain person did commit a certain crime ..but is not in custody..as a result an arrest warrant is issued for "John Doe" with a certain DNA profile..there is no statute of limitation for arrest warrants ...
                        Last edited by crashguy; 07-11-2019, 12:54 PM.

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                          #27
                          Originally posted by crashguy View Post



                          My understanding is .. a John Doe Indictment is generally used when a DNA evidence profile has been identified in a case...it is specific to a person even if the name is unknown allowing the prosecute to present evidence to a Grand Jury that that a certain person did commit a certain crime ..but is not in custody..as a result an arrest warrant is issued for "John Doe" with a certain DNA profile..there is no statute of limitation for arrest warrants ...
                          That could be. I'm not a lawyer but I have stayed at a Holiday Inn Express.
                          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


                            #28
                            Originally posted by LiDad View Post

                            No, he was tried twice and convicted of the illegal gun charge. Spent a year I think in Rikers.
                            I see no record of a second criminal trial. Do you have a source? Wikipedia and Famous-Trials.com only indicate one criminal trial. HEre is a timeline of events leading up to his one criminal trial from https://famous-trials.com/goetz/135-chronology:
                            January 25, 1985 In a hearing before a grand jury, prosecutors seek indictments on four counts of attempted murder, four counts of assault, one count of reckless endangerment and four counts of criminal possession of a weapon. The 23 jurors refused to indict Goetz on anything more serious than three counts of illegal gun possession.
                            February 1985 Two victims, Canty and Cabey, file civil suits against Goetz seeking $50 million in damages.
                            February 26, 1985 U.S. Attorney Rudolph Giuliani decides not to proceed with a federal civil rights prosecution after finding insufficient evidence that race was a motive in the shooting.
                            March 14, 1985 Based on new evidence regarding the fifth shot that paralyzed Cabey, District Attorney Waples petitions Judge Crane to allow him to resubmit the assault and attempted murder charged to a grand jury.
                            March 27, 1985 A second grand jury indicts Goetz on ten new charges, including four charges of attempted murder and four charges of assault.
                            June 27, 1985 Goetz shooting victim James Ramseur is arrested for raping and robbing a nineteen-year-old woman at his apartment complex.
                            October 14, 1985 Goetz moves to dismiss the charges contained in the second indictment alleging that the evidence before the grand jury was not sufficient to establish the offenses charged and that the prosecutor’s instructions to the grand jury on self-defense were erroneous and prejudicial to the defendant.
                            January 21, 1986 Judge Crane dismisses nine counts of the original thirteen based on the prosecution’s explanation of the New York self-defense statute to the second grand jury, leaving only the charges of gun possession and reckless endangerment.
                            March 3, 1986 James Ramseur is convicted of rape, robbery, sodomy, sexual abuse, assault, criminal use of a firearm, and possession of stolen property. He will spend the next 24 years in prison on these charges. A year after his release, on December 22, 2011, Ramseur dies from a drug overdose (suicide cannot be ruled out).
                            July 8, 1986 The New York Court of Appeals holds that the prosecution’s self-defense description was correct and all counts of the indictment are reinstated.
                            December 12, 1986 The criminal trial of the People of New York v. Bernhard Hugo Goetz opens in New York City.
                            You may be confusing the fact that he went before a Grand Jury twice with two trials.
                            "The devil doesn't come dressed in a red cape and pointy horns. He comes as everything you've ever wished for.”
                            Tucker Max

                            Infirmitate Invitat Violentiam
                            Finicky Fat Guy

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                              #29
                              Originally posted by Finicky Fat Guy View Post
                              I see no record of a second criminal trial. Do you have a source? Wikipedia and Famous-Trials.com only indicate one criminal trial. HEre is a timeline of events leading up to his one criminal trial from
                              You may be confusing the fact that he went before a Grand Jury twice with two trials.
                              Source is my memory.

                              I remember he was charged and acquitted, then bragged off to the media about his experience instead of just taking the ruling as good fortune and fading off into the sunset, then was tried again and convicted of the gun possession charge only.

                              But it could have been the grand jury part I'm thinking about.
                              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


                                #30
                                I said this,

                                His case was remitted to the lower court as per NY's Criminal Procedure Law 470.45:
                                So, it does not seem likely he can be retried on the same charges without double jeopardy.
                                you said what follows, and the court, in their brief said the last thing.
                                Originally posted by Grifhunter View Post

                                LOL. Thats not what that says. But kudos for at least looking at a statute.
                                Is it really not what was said or did you not read my post and then go to the supplied source because here is what the court's brief says:

                                .
                                ..and the matter is remitted to Chautauqua County Court for proceedings pursuant to CPL 470.45.
                                Could not be much plainer than that and as per the law the lower court must carry out what the higher court ordered as to the dismissal. You will note that not only did I look at the statute, I looked at the finding of the appeals court. LOL my arse.
                                Retired and loving it.

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