WEOS Finger Lakes Public Radio

SAFE Act debated in state court appeal heard in Rochester

Mar 1, 2019
Originally published on March 1, 2019 7:01 am

Lawyers argued the appeal Thursday in the case of the first man convicted under the SAFE Act.

That legislation, passed in 2013, adding strict requirements for buying, selling, and storing guns in New York State. Arguments were made at the Appellate Division of State Supreme Court in Rochester.

Benjamin Wassell is from Silver Creek, New York in Chautauqua County. He was convicted right after the SAFE ACT was passed. Authorities say that he sold a semi-automatic rifle to an undercover state trooper.

Wassell’s attorney Jim Ostrowski, says Wassell has already been sentenced and served probation but wants the conviction overturned. Ostrowski says that rifle sold by Wassell is protected by the Second Amendment.

“It’s a military style weapon but these weapons are in common use,” said Ostrowski. “If you go back to the original Second Amendment it certainly protected muskets and that was the military weapon of its time.”

Assistant State Attorney General Matthew Keller called the weapon Wassell sold, dangerous and unusual.

“This court has plenty of strong persuasive authority that these dangerous and unusual weapons are not even covered by the second amendment,” Keller said.

Wassell and Ostrowski did agree on one point: that the trial's jury instructions were improper. The difference: Keller says the improper instructions benefited Wassell.

“Lack of intent is not a defense for an assault weapon. Yet the judge gave the jury this instruction twice, erroneously, right before their verdict. So to the extent that the jury instructions were mistaken they were beneficial to the defendant not prejudicial.”

Ostrowski claims they did not.

“The jury is the fact finder but the jury needs to know what the law is before they find the facts. And my client was deprived of that right.”

Ostrowski expects the court’s response in about two months.

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