ROCHESTER – Even before Attorney Jim Ostrowski could begin his oral arguments on the SAFE Act and the overturning of the original conviction, State Supreme Court Justices were questioning the Attorney General’s jurisdiction in the case.
Ostrowski argued the Attorney General had no jurisdiction because they had no authorization from the head of the State Police, as required by law.
One Justice told Ostrowski ,”We’re bound by what’s on this record,” he said. “You have what seems to be a winning argument. I don’t care if they have a letter from the chief and it’s notarized and given to you.”
One of the other justices pointed out “If there is no jurisdiction, there is no jurisdiction.”
Matthew Keller was making the opposition argument to Ostrowski. Justices said to Keller that the Attorney General’s jurisdiction must be requested and granted by the chief officer of the police department involved, the state police in this case.
“You would agree the Attorney General doesn’t have the right to prosecute as district attorneys do,” one of the justices noted.
Lawyers said the proof of jurisdiction was requested during discovery but was not given.
Ostrowski argued that the evidence was insufficient because, “There is no evidence the weapon was a semi-automatic in the way that weapon fires. The jury has no reason to know what is meant by that (semi-automatic) word.”
“If you took a poll, most people wouldn’t be able to look at a rifle and tell that it’s a semi-automatic by definition of the law,”Ostrowski said, noting the prosecution never even proved to the jury that the gun in question was a rifle.
He went on to charge that during the prosecution of the SAFE Act case, “The prosecution’s witnesses made very broad and qualifying statements regarding the law.”
In addition, Ostrowski said “Judge DiAmico did not instruct the jury, the judge cross-referenced unqualified legal opinions by witnesses.”
Ostrowski noted for the justices that the core principle of the Second Amendment is twofold, one is protect oneself from the power of a tyrannical government, and two, to defend oneself when the government is not around.
Keller argued that the Second Amendment does not apply to so-called “assault weapons.”
“Are assault weapons even covered by the Second Amendment,” Keller said. He said the court has case history that “these dangerous and unusual weapons are not even covered by the Second Amendment.” He did not say what made the weapons unusual or why they would be excluded from Second Amendment protections.