The judicial panel unanimously ruled that the indictment against Benjamin Wassell of Silver Creek is dismissed, the judgement against him unanimously reversed and the case remitted back to Chautauqua County Court. Wassell was charged after allegedly selling an AR-15, nearly 300 rounds of ammuniation and six magazines and an AR-10 semi-automatic rifle with 31 rounds of ammunition and one magazine to undercover State Police investigators shortly after the SAFE Act was passed in 2013.

Wassell had been convicted in Chautauqua County Court in May 2014 of third-degree criminal possession of a firearm and two counts of third-degree criminal sale of a firearm. He was sentenced to probation and a $375 fne.

The court decision is less of a blow to the state SAFE Act and more of a statement on the prosecutorial authority of the state Attorney General’s office, which prosecuted Wassell’s case through both the trial and sentencing. In fact, Wassell’s contentions about the SAFE Act itself were not taken up by the Appellate Division once it made its determination about the Attorney General’s lack of jurisdiction in the case.

Jim Ostrowski, Wassell’s attorney, also argued that the SAFE Act is unconstitutional and void for vagueness, that there were due process violations, errors in jury instructions by Judge Michael D’Amico, that Wassell’s equal protection rights under the Constitution had been violated and that the conviction was not supported by legally sufficient evidence.

“In light of our determination, we do not address defendant’s remaining contentions,” the court wrote.

Wassell and his attorney argued that the Attorney General’s office lacks the authority to prosecute him for the charges. The Fourth Department agreed with Wassell’s contention, saying case law and the state’s Executive Law have given the state Attorney General prosecutorial authority only on request of the head of a department, authority, division or agency of the state.

“It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute,” the judges wrote in their opinion. “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.'”

Judges decided the record did not establish that the State Police superintendent asked the Attorney General’s office to prosecute the case and that no letter had been entered into the record from the State Police superintendent asking the Attorney General to prosecute.

“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 dismissedm,” the judges wrote. “We note that the People, for the first time through post-argument submissions, have provided this court with a letter from the superintendent to the Attorney General requesting assistance in this case. Nevertheless, the existence of that letter was not raised in the People’s brief, and thus the argument that the letter establishes the Attorney General’s authority to prosecute is not properly before us.”

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