Guilty on all counts

MAYVILLE – Guilty on all counts – that was the verdict the jury gave Monday in the trial of Benjamin Wassell.

Wassell was originally charged under the NY SAFE Act and was later indicted on five class D felonies that did not include the SAFE Act charge. On Friday, Judge Michael D’Amico reduced the number of charges to three – third-degree criminal possession of a firearm and two counts of third degree criminal sale of a firearm – saying the five charges were repetitive and may have confused the jury.

After eight hours of deliberation on Friday, four more on Monday and upwards of 15 questions, the jury reached its verdict.

On Friday, the jury asked several questions surrounding the SAFE Act and Pennsylvania gun law before saying they were stuck. After more deliberation, the jury decided more time on Monday would help them reach a decision.

The jury began deliberating again at 9 a.m. Monday and submitted three more notes containing questions. D’Amico read the questions which asked about the grandfather clause of the SAFE Act mentioned by Wassell in his testimony, how one could legally purchase an out-of-state weapon and to hear the testimony of Bureau of Alcohol, Tobacco and Firearms Investigator James Weissenburg.

D’Amico had the court reporter read Weissenburg’s testimony, but explained that neither the SAFE Act nor Pennsylvania law is at issue in this case.

“(The SAFE Act) only comes into play here with what the defendant’s knowledge or belief of what he was doing was legal,” he said. “… I can’t help you understand this. If there is evidence you can consider it, if there isn’t evidence of something, you can consider that too when making your decision.”

On Friday, he explained to be found guilty of criminal possession, there must be proof that Wassell possessed the weapon on Jan. 24, 2013, that he knowingly possessed it and that the weapon was operable. To be guilty of criminal sale – with the intent to sell – the jury must decide if it was proven that Wassell was not authorized to possess the assault weapon on Jan. 24, 2013, that he knowingly and unlawfully did so, that he possessed it with the intent to sell and the weapon was operable.

For the criminal sale charge to be proven, the jury must determine if Wassell was not authorized to possess the assault weapon, if he unlawfully sold, gave away or disposed of the weapon, if he knowingly did so and if the weapon was operable.

D’Amico deduced that the jury’s questions were focusing around the question of whether Wassell “knowingly possessed” the assault weapon, that is, if he was aware of his actions and the consequences of those actions.

“You need to determine by looking at the acts; was that the natural or necessary or usual consequences of those acts? A person is not relieved of responsibility due to a mistaken belief,” he said. “You need to make the determination if the defendant knowingly possessed an illegal weapon. His defense is that he did not. If you find that mistaken belief relieves him of criminal liability you must find him not guilty and vice versa.”

Shortly after hearing this advice, the jury reached its verdict.

D’Amico asked for the jury’s decision on each count and the lead juror answered “guilty” to all three.

Wassell made very little reaction to the verdict and his family, friends and supporters in the audience were also emotionally reserved. Wassell was seen leaving the building with his teary wife after court was dismissed.

Wassell’s defense Attorney Michael Deal said he was discouraged with the decision.

“We are very disappointed. This was a hard-fought case. While disappointed, Ben does respect the jury’s verdict. We can certainly thank the poorly-drafted SAFE Act for making a criminal out of a person who wasn’t. The confusion inherent in that act, the repercussions of that will be felt now,” he said.

Assistant attorney generals Cydney Kelly and Diane LaVallee were not authorized to comment on the outcome of the case and an email to the State Attorney General’s press office was not returned Monday.

Wassell will appear back in Chautauqua County court on May 12 at 9:30 a.m. for sentencing.

Deal said technically the maximum sentence for each charge is seven years in prison but he expects Wassell’s sentence to be seven years or less. Class D felonies hold a minimum charge of two years in prison, with the time increases depending on the violent nature of the incident.