MAYVILLE - The truth was left unclear as Benjamin Wassell contradicted testimony of police and a gun shop owner as he took the stand Thursday.
Wassell was indicted on the charges of two counts of third-degree criminal sale of a firearm, third-degree criminal possession of a weapon and two counts of manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances, all class D felonies after he allegedly sold an illegal gun to an undercover officer.
The prosecution brought three witnesses to testify prior to the defense calling Wassell and his wife Jacqueline Wassell to the stand.
Benjamin Wassell may learn his fate today.
THE PROSECUTION'S FINAL WITNESSES
The trial began Thursday with the prosecution calling witness Sandra Migaj, senior investigator for the New York State Attorney General's Office in Buffalo, who was a part of the investigation and the arrest of Wassell. She said she received orders on March 14 to determine Wassell's whereabouts and to assist with obtaining a statement.
Migaj said she heard a New York State Police investigator, whose name was asked to be withheld by the Attorney General, read Wassell his Miranda warnings and after this Wassell was questioned. She confirmed the investigator's testimony Wednesday, that Wassell asked if he should get an attorney only once after he had given a statement. She also reiterated that he was told the police cannot give legal advice.
Assistant Attorney General Cydney Kelly asked Migaj if any threats, tricks, promises or use of force were part of the interview with Wassell. She said there was none.
Wassell's defense attorney Michael Deal cross examined Migaj and focused on why no local law enforcement was involved in the investigation, arrest or prosecution.
Migaj was not a part of the arrest or search of the Wassell residence, but was involved in holding the guns seized from the residence on the day of arrest until the determination was made the guns were legal and were released. Deal asked why the guns were seized if both Benjamin and Jacqueline Wassell had valid pistol permits. She said it was for the officer's safety and that a determination of the guns' legality was not made on site.
Next the prosecution called State Police Sgt. Lawrence Dorchek, a senior firearms instructor. He said, as a part of his duties, he test fires guns to determine functionality in investigations.
On Jan. 29, he test fired the DEL-TON AR-15 sold to the undercover officer using two rounds sold with the gun and determined it was functional. The report was entered into evidence and he identified the gun previously entered as evidence as the test-fired weapon.
Deal focused on the lack of difference between the weapon Wassell allegedly sold and what state police use as a "patrol rifle." He also pointed out that the AR-15 is a popular model that can be used for hunting and is legal in other states.
The prosecution's final witness was Bureau of Alcohol, Tobacco and Firearms Investigator James Weissenburg. He said he contributed to the investigation of Wassell by searching to see if he had or had applied for a federal firearms license (FFL), which would allow him to build and sell assault weapons.
Weissenburg testified that he did not find Wassell's name in the database, meaning that he had not applied or received an FFL.
Deal objected to the report, called a "blue ribbon," which was signed by a different investigator.
The judge overruled and allowed it to be entered into evidence because Weissenburg explained he cannot generate this report in his position.
Deal again focused on the fact that ATF, a non-local agency, was involved in the case. He also asserted that there is not a federal assault weapon ban.
Assistant Attorney General Diane LaVallee clarified that although the federal government does not ban assault weapons, it restricts them through licensing and background checks. She also noted that a gun must be legal under both federal and state laws to be considered legal.
The defense called Wassell's wife of 10 years, Jacqueline, to the stand.
Deal asked her about their life and about an incident in 2005 when their home in southern California was burglarized while they slept. After that the couple had guns in the house for protection as well as Wassell's hobby of hunting.
He also asked about the day Wassell was arrested. She said she was awake to get her older of two children up for school when troopers knocked on the door and told her they had to confiscate all of the guns on the premises. She said the officers would not tell her what her husband was charged with other than it was gun-related and that officers upset he daughter by taking the guns and their father into custody. She described a "commotion" of officers outside and said she did not see her husband until after the arraignment.
She said the guns were returned later.
LaVallee asked Jaqueline Wassell to confirm her husband's cell phone number. She said she did not know her husband was selling guns at the time of the arrest.
LaVallee asked if Jaqueline Wassell was trying to make money off her husband's charges. She said that is the legal defense fund they set up on the internet to try to fundraise for the costs of her husband's attorney.
Jaqueline Wassell told Deal she felt upset to be in court and "antagonized."
Wassell described his background as a boy who grew up in Forestville and after the events of Sept. 11, 2001, joined the Marines. He married and served two tours in Iraq. Between tours he served as a marksman instructor on a U.S. base.
In 2006, during his second tour, he was part of a group that suffered two consecutive improvised explosive device blasts. He saved several of his fellow Marines, while suffering a knee injury, traumatic brain injury, post concussion syndrome and post traumatic stress disorder. He received a certificate of commendation for this.
He returned stateside and in 2007 came off active duty.
Later the couple moved back to western New York and he started working at a gas company. He said he started ordering parts to assemble guns as a hobby and the first two he gave to his brother and a family friend as gifts.
Deal asked Wassell what he thought of some of the testimony that was given Wednesday and Thursday. Wassell said some of it was just not true.
He testified that on Dec. 6, 2012 he was not trying to sell the gun he brought into JJ's Guns. He said he wanted to show it to the owner and the discussion they had was about restrictive gun laws. They also argued whether it was legal to have the collapsible stock pinned by a gun smith or if only a manufacturer can pin it.
He said the statement Jeffrey Jankowiak said he made was "off base and untrue."
He said he would never make the statement, "I'm a (expletive) Marine. What are they going to do to me?" because it is offensive to servicemen?
He also disputed Jankowiak's testimony that the weapon's collapsible stock was not pinned.
Deal asked about the phone call he received from the undercover officer. Wassell said he received the call during a family trip to California and did not return it right away.
The Wassells returned from their trip around the date the NY SAFE Act was passed and he said he tried learning about the new stricter requirements online and by talking to an attorney who was at a local gun shop explaining the new regulations.
He said he assumed the person calling was able to possess assault weapons because the message said he was referred to Wassell from JJ's Guns, a reputable business. He said he also believed he was acting legally by selling the AR-15 based on his knowledge of the grandfather clause in the SAFE Act.
He said he had bought this gun from a friend in Pennsylvania, where it is a legal weapon, in July 2012 but did not bring it to New York because he did not have the money to make the alterations to the "cosmetic features" to make it legal in New York.
Wassell admitted calling and texting the undercover officer about selling the gun. He said it was not his intention to break the law and thought he was not doing so.
Deal then asked about the day of his arrest. Wassell said Trooper Dennis Gould handcuffed him and they stood by the trooper's vehicle.
He contradicted several troopers' testimonies and said he asked repeatedly, every trooper he saw, about what he was being charged with. Gould said Wassell had only asked once and the investigator repeated this.
Wassell also said he asked for a lawyer multiple times once he was transported to the Fredonia barracks. This is different from the testimony of the investigator and Migaj.
Wassell also said he signed a blank paper, which was later handwritten to be a form of consent for a search. He said the only reason he signed was because he was told the police would get a warrant anyway and that he had no choice about the guns being seized.
He said he was read his Miranda warnings and promptly asked for a lawyer, but decided to cooperate with the questioning without one because he was under the impression he had done nothing wrong.
He also said he was not given time to read the statement printed for him and signed it not knowing what it said.
Deal asked Wassell about his thoughts on the Constitution. Wassell said in the military he swore to uphold it and believes deeply in Second Amendment rights.
"I have the constitutional right to defend my family," he said.
Kelly asked Wassell to confirm his cell phone number and that the messages and texts were from him. He said they were.
She also asked if he asked the undercover officer for his last name, if he had a license and what the intended use of the gun was. He said he did not.
She pointed out that the person who burglarized their home in 2005, if they had a gun, probably would have acquired it off the street, where no one asked their name or what it would be used for.
She also pointed out that although Wassell referred to the gun's collapsible stock, threaded barrel, bayonet lug and pistol grip as "cosmetic" these features have actual uses.
She asked Wassell if his right to bear arms was more important than state law. He stated he has that right until she insisted on an answer and he said no.
She also asked if Wassell did not have to obey a law he didn't like. He said he did not say that.
She also asked why he did not research the SAFE Act online. He said he found it confusing and sources "contradictory."
Before closing, Deal asked for lead Investigator Stacy Stawicki to be called as a witness and was informed she has retired and moved to Georgia, so she could not appear. Kelly said Stawicki was never alone with Wassell so her testimony is not necessary.
Deal thanked the jury for listening to all the evidence including that the investigation was carried out by state and federal agencies where the undercover officer was "dishonest," that state agents "stormed in and swooped down" to arrest Wassell. He also said they took away his legal, constitutionally-protected guns and his rights when he asked for an attorney and was not given one.
He called Wassell a "war hero" who defended the Constitution and had no intent to break the law. He said the treatment of this case could be foreshadowing for the future and that the jury would have the final say in Wassell's fate.
Kelly said it is fact that Wassell possessed, transported and had the intent to sell the AR-15 to a man he only knew by his first name.
She said the gun would have been illegal before the passage of the SAFE Act because it has four militaristic features. She also argued Wassell knew the standards because he warned the undercover officer what to do to make the gun legal.
She asked why Jankowiak would lie about what he heard on Dec. 6 because he has nothing to gain by doing so. She said the jury can review proof of all the testimony.
She added the only deception by the undercover officer was his name. She said although there are constitutional rights, everyone must still obey the law, even if they disagree with it or if it is different in another state.
"You must decide this based on evidence, not sympathy," she concluded.
The jury will meet again today for final instruction at 9:30 a.m. and then will deliberate until a decision is reached.
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