The case against Ben-jamin Wassell has been highly visible due to the original charges under the NY Secure Ammunition and Firearms Enforcement Act. However, the secret indictment by grand jury has created some confusion.
According to an official in the Attorney General's Office, the indictment charges no longer make this a SAFE Act case.
Wassell, 33, of Silver Creek, was charged on March 12, 2013 after two incidents where guns were sold to undercover officers in January and February 2013.
According to the police report published by the OBSERVER on March 15, 2013, on Jan. 24, 2013, Wassell allegedly attempted to sell a DelTon AR 15 rifle, a banned weapon because of a pistol grip, telescoping butt stock and bayonet mount, to an undercover officer, along with 299 rounds of ammunition and six large-capacity clips. On a second occasion on Feb. 15, 2013, Wassell allegedly sold a semi-automatic gun and ammunition to an undercover officer who claimed to have a prior felony conviction.
According to the felony complaint, which was provided to the OBSERVER by the Attorney General's Office, New York State Police accused Wassell of third-degree criminal possession of a weapon; two counts of manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances; and transfer, sale, exchange and disposal of an assault weapon to a purchaser unauthorized to possess such a weapon.
The complaint includes evidence of the case presented by the prosecution in Hanover Town Court, including information that an audio recording was made of the first transaction where Wassell allegedly "acknowledged that the weapon was an illegal weapon that would be legal if the (undercover officer) were to obtain and modify the collapsible stock."
The complaint also describes how the SAFE Act made the definition of an assault weapon more strict by defining a semi-automatic rifle with the ability to accept detachable magazines and one characteristic, like a telescoping stock, bayonet mount, etc. It also criminalized the sale, exchange or disposal of semi-automatic rifles by those not authorized to possess assault weapons.
Wassell appeared in Han-over Town Court for arraignment and the case was sent to the Chautauqua County Court for a grand jury trial.
These proceedings are secret and determine if there was probable cause a felony was committed.
Wassell was indicted on Sept. 11, 2013 for different charges than the original complaint. He was indicted for two counts of third-degree criminal sale of a firearm, a class D felony; third-degree criminal possession of a weapon, a class D felony; and two counts of manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances.
The charge of transfer, sale, exchange or disposal of an assault weapon to a purchaser unauthorized to possess such a weapon (SAFE Act charge) was not pursued by the Attorney General's Office for indictment. In addition, all of these charges stem from the Jan. 24 incident.
"Mr. Wassell was arrested and charged on March 12, 2013. At that point, he was charged with a misdemeanor under the SAFE Act. The grand jury did not indict Wassell on that misdemeanor. This is not a SAFE Act case. On Sept. 11, 2013, he was indicted for crimes that have been on the books for many years. None of these charges are related to the SAFE Act," Deputy Press Secretary for the Attorney General Casey Aguglia explained.
When asked why the Attorney General's Office is continuing to prosecute this case, Aguglia explained any prosecutor can prosecute a penal law case, but the Attorney General's Office was also originally involved in the case and will see it through.
Wassell's jury trial will begin on Tuesday with jury selection. The jury trial determines whether there is evidence beyond a reasonable doubt that the felonies were committed.
Aguglia said the jury trial will go on until the jury reaches a verdict, but it is expected to take approximately five business days.