MAYVILLE — While legally and ethically limited as to what he can say, Chautauqua County District Attorney Patrick Swanson expressed disappointment with a decision to dismiss a murder indictment returned against a 25-year-old Jamestown man accused of murder.
On Thursday, Judge David Foley dismissed a grand jury indictment for one count of second-degree murder and two counts of second-degree attempted murder returned against Montanez.
Foley cited errors in the presentation to the grand jury. Swanson says the law supports his arguments.
“I am extremely limited with what I can say regarding this decision. Given that it is a pending matter I cannot describe the facts,” Swanson said in a statement.
“What I can say, is that I could not disagree more with the court’s decision. We firmly believe we followed the penal law. Given my ethical limitations, I cannot outline the facts or the law that firmly support my position. I am deeply disappointed we find ourselves in this position. We plan to move forward as expeditiously as possible,” furthered Swanson.
Montanez’s attorney, Chautauqua County Public Defender Ned Barone, told WNYNewsNow that his office argued that Swanson failed to inform the grand jury of the justifiable option, i.e.: self-defense.
“It really doesn’t matter whether or not there was self-defense, but more importantly, it was an issue that had to have been presented to the grand jury and wasn’t,” explained Barone. “We argued that because it was an exculpatory defense, meaning that charges could be dismissed if a juror believed it was self-defense, and was not presented as need be by the district attorney during grand jury.”
Barone says he and his staff submitted the motion to dismiss three weeks ago.
His client is currently in Chautauqua County Jail, but Barone says he will be asking the court to consider releasing him based on the indictment dismissal.
“What happens after today is really up to the District Attorney,” said Barone. “Which way they decide to follow-up on this.”
Montanez was previously charged with first-degree manslaughter by the Chautauqua County Sheriff’s Office, who say Montanez allegedly shot and killed Justin M. Gibbons, 29, of Mayville, following a dispute in an alleyway near 114 W. Main St. in Sherman just after 1:30 a.m., Oct. 6.
Gibbons was shot multiple times while he was attempting to flee the area in a vehicle, investigators said.
He was transported to Westfield Memorial Hospital by the Sherman Volunteer Fire Department Ambulance where he was later pronounced dead.
D.A. Swanson has 30 days to bring the case back to grand jury.
WNYNewsNow’s Rory Pollaro and Justin Gould contributed to this report.