ROCHESTER – In what could be a landmark case, the New York State Supreme Court, Appellate Division, has dismissed two SAFE Act charges against Benjamin M. Wassell, Silver Creek, who was convicted in 2014 of selling a so-called assault rifle to undercover police.
“It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the indictment is dismissed and the matter is remitted to Chautauqua County Court for proceedings,” the Court ruled.
James Ostrowski represented Wassell, who was convicted of third-degree criminal possession of a weapon and two counts of third-degree criminal sale of a weapon. Attempts to reach a Wassell spokesman were unsuccesful.
The case hinged on the jurisdiction of the State Attorney General to prosecute Wassell. Ostrowski argued that the then-Attorney General did not have jurisdiction.
“Defendant contends that the Attorney General lacked the authority to prosecute him for the crimes charged. As an initial matter, defendant’s challenge to the Attorney General’s authority presents a question of jurisdiction,” the Court said.
The Attorney General of the State of New York obtained an indictment against the defendant and prosecuted the matter through trial and sentencing.
“The simple truth is that Second Amendment civil rights won today, and the agenda of unconstitutional gun control force-fed to Upstate New York by the progressive totalitarians occupying the imperial palace in Albany lost,” 2AWNY.COM Civil Rights Advocate Steve Felano said. “Attorney Jim Ostrowski, the mastermind behind Ben Wassell’s appeal, correctly pointed out to the Court that the New York State Attorney General failed miserably to demonstrate the legal authority required to prosecute Ben Wassell for SAFE Act violations, which are, themselves, unconstitutional in the first place. The Court agreed with Jim because his argument was spot-on and logically unassailable. Furthermore, disgraced former Attorney General Eric Schneiderman, likely because he wanted to insert himself into the first ever SAFE Act case for political gain, committed a massive error in failing to demonstrate the authority of his office to prosecute the Wassell case. As the AG’s office retreats to Albany to lick the wounds inflicted by this crushing defeat, its occupants should note 2AWNY is not giving up the fight to repeal the SAFE Act in total, and the assault against Albany’s imperial gun control regime will continue. Andrew Cuomo should likewise take notice.”
It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute. As relevant here, Executive Law grants the Attorney General prosecutorial authority “[u]pon request of . . . the head of any . . . department, authority, division, or agency of the state,” the Court explained.
“Although the 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.’ ”
“Here, the stipulated record on appeal does not establish that the Superintendent of State Police requested that the Attorney General prosecute this case. Indeed, there is no letter from the Superintendent in the record, nor is there any other showing in the record that a request came from the Superintendent himself. 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 dismissed.
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