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In wake of shooting, aim is to close loophole

Two days before the murder of 10 people in Buffalo, state Sen. Brad Hoylman introduced legislation to close a loophole for large capacity ammunition feeding devices that has made it difficult to prosecute those caught with such devices.

On Wednesday, Assembly Majority Leader Crystal Peoples-Stokes, D-Buffalo, joined Hoylman’s efforts. There is only one difference between the Senate and Assembly versions of the legislation — and it comes in the legislative justification.

“The horrific act of domestic terrorism committed on innocent people in Buffalo, N.Y., on May 14, 2022, further highlights the need for this legislation,” Peoples-Stokes wrote in the added legislative justification.

A.10428/S.9229 would remove an exemption for large capacity ammunition feeding devices manufactured before 1994 or possessed before 2013 from state Penal Law Section 265.02, which prohibits the possession of such devices. The bill also repeals Penal Law Section 265.36, which prohibits the possession of large capacity ammunition feeding devices manufactured prior to 1994.

“Although this creates a total ban on paper, in practice it requires prosecutors to unnecessarily prove the date of manufacture of the device, which is often impossible. This has led prosecutors to drop cases against alleged offenders of this law,” Hoylman wrote in his legislative justification.

According to a recent New York Post story, requiring prosecutors to prove which of the two statutes a person was being prosecuted under has forced prosecutors to drop cases in which legal magazines are removed from a weapon and replaced with illegal ones that hold more ammunition. The Post story cited an early May decision by Albany prosecutors to drop a felony weapons possession charge from a 2021 case even though witnesses testified it was clear the magazine in the weapon was illegal.

Thus far, Payton Gendron, the 18-year-old charged with murdering 10 Black people at a supermarket in Buffalo on Saturday, has only been charged with first-degree murder. He appeared in court Thursday after an indictment was handed up Wednesday. At his initial court appearance last week, Gendron’s court-appointed lawyer entered a plea of “not guilty” on his behalf. He is due back in court June 9.

Thirteen people in all were shot Saturday at the Tops Friendly Market in a predominantly Black neighborhood of Buffalo. Authorities are continuing to investigate the possibility of hate crime and terrorism charges.

Gendron fired more than 50 shots during the attack. Officials said the AR-15-style rifle used in the shooting was purchased legally, but New York doesn’t allow sales of the ammunition magazines that were used. It’s unclear if he will be charged with criminal possession of a weapon charges because of the loophole mentioned by Peoples-Stokes and Hoylman.

— The Associated Press contributed to this report

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