Beruflich Dokumente
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James Ostrowski
Time requested:
Ten minutes
vs.
BENJAMIN M. WASSELL,
Chautauqua Co. Ind. No. 13-373
Defendant-Appellant.
JAMES OSTROWSKI
Attorney for Appellant
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
jameso@apollo3.com
TABLE OF CONTENTS
CITATIONS 1
QUESTIONS PRESENTED 3
ARGUMENT 4
CONCLUSION 25
STATUTES
CASES
Cir. 2005)
1
TREATISES, BOOKS AND ARTICLES
S. Kurutz, “The Age of the Mugger,” New York Times (Oct. 24, 2004). 21
(Nov. 1, 2016).
Ryan McMaken, “With Few Gun Laws, New Hampshire Is Safer Than 22
Ryan McMaken, “Pew: Homicide Rates Cut in Half Over Past 20 Years 23
Robert Nozick, Anarchy, State and Utopia (Basic Books, 1977), pp. 32-33. 20-21
hawaii.edu/powerkills. 13-14
R. Shepard, “Do Jokes About the Big Apple Cut to the Core?,” New York 22
2
QUESTIONS PRESENTED
2. Are the statutes the defendant was convicted of violating contrary to due
reasonable doubt?
3
ARGUMENT
In its brief, the respondent cites no authority in support of the trial court’s
charge in response to Note 2. Likewise, the trial court did not cite any authorities
for its conclusion that Pennsylvania law is irrelevant, nevertheless, a perusal of the
relevant Penal Law sections indicates there does not appear to be any basis for the
The SAFE Act, amending Penal Law Section 400.00(16-a)(a) to provide for
registration of weapons uses the term “possessed” and does not specify that such
possession can only be inside New York State. Thus, to the extent that the court
attempted to address the concerns of the jury concerning the legal validity of the
defendant’s defense, its instructions were erroneous and prejudicial to the defense.
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B. THE COURT FAILED TO ADEQUATELY
RESPOND TO JURY NOTES 12 AND 13,
RESULTING IN A GUILTY VERDICT
SHORTLY THEREAFTER.
The respondent fails to respond to our point that the trial court stated that the
statute was “confusing” and would be difficult to explain to the jury. See
Defendant’s Brief, p. 24. Yet, the defendant was somehow expected to understand
it. See also, Complaint against the SAFE Act, Record at 73, paragraph 73 (state
officials unable to explain the Act in clear terms.) As explained in our primary
prosecution and prejudicial to the defense. The court refused to give the requested
instruction; worse yet, the court, in so refusing, led the jury to believe that their
concerns were irrelevant to the case. Most catastrophically, the trial court led the
the jury on the law in a manner directly prejudicial to the defendant. In sum, the
court refused to give legal instructions to the jury, allowed the prosecution to do
the SAFE Act, which he believed, allowed him to register a weapon by April.
[768:21-769:7; 776:11-14; 777:14-19; 808:5-809:1] Thus, the trial court, not even
knowing how the SAFE Act amended the law, told the jury, which also had no clue
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how the SAFE Act amended the law, that the SAFE Act, which was the basis for
the defendants’ theory of the case and his prime defense, was irrelevant to the case,
essentially instructing the jury to take it on faith alone, in the absence of any actual
explanation of the elements of the SAFE Act, to ignore the SAFE Act and thus,
inevitably, find the defendant guilty, which is exactly what they did, twelve
minutes later.
The respondent failed to respond to this point and we therefore ask for a
The respondent argues that the statutory definition of an assault rifle can be
hundred New Yorkers could look at a rifle and know whether it uses the energy
from an expended cartridge to load the next round for firing. No doubt many
experienced rifle owners could do so but that implicates the equal protection
6
In People v. Gray, 151 AD3d 1470 (3rd Dept. 2017), the court required expert
testimony from two firearms experts to even prove the elements of the crime:
The court described Zell as “the lead firearms instructor for the Kingston Police
The issue before the Court then is simply this: does due process allow the
state to criminalize conduct that only an expert witness could even understand?
The defendant concedes that this issue was unpreserved, yet the Court can
reach this issue in the interest of justice or as a basis for finding that defense
several instances of this conclusory term, in the absence of any evidence in the
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case or even instructions to the jury about the statutory meaning of the term, is
inadequate. The witnesses did not explain what they meant by the term; there is no
dispute that the jury was not informed of the meaning of the term and there is no
dispute that the elements of that definition were not proven to exist. We also
complain elsewhere in the brief that defense counsel allowed this testimony as
improper legal opinions. Further, the defendant’s references to the term “semi-
automatic” were likewise conclusory, provided no details, and would not have
been necessary if defense counsel had made a proper motion to dismiss at the end
statutory elements, and with the jury having no clue as to what he meant by the
term, and especially since the term was never properly defined by the jury, does
not constitute an admission and any jury reliance would be purely speculative on
1470 (3rd Dept. 2017). The Third Department did not reject a claim that the trial
court should define “semiautomatic.” Respondent’s Brief at page 18. Rather, the
court stated that the issue was not preserved for review and declined to reach the
issue in the interest of justice. That latter decision was presumably based on the
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fact that the record in that case did establish the specific elements of the definition
“As to the precise manner in which each round was advanced, Zell
explained, "[A]s the trigger is pulled and the projectile goes down
through the barrel, the gases will then lock the bolt to the rear forcing .
. . the spent casing to eject through the ejection port, which then locks
the bolt[] to the rear, which then the magazine with a spring in it
allows pressure for the bolt to go forward and inject another round
into the weapon." From Zell's and D'Allaird's testimony, it is clear that
defendant's rifle "utilize[d] a portion of the energy of [the] firing
cartridge . . . to extract the fired cartridge case . . . and chamber the
next round" and, further, "require[d] a separate pull of the trigger to
fire each cartridge" (Penal Law § 265.00 [21]), which places such rifle
squarely within the definition of a semiautomatic/repeating rifle. Such
proof, coupled with the testimony from various witnesses as to the
manner in which defendant pointed and discharged his rifle and the
spent 9 millimeter casing recovered from the scene, which was
scientifically linked to the casings recovered when defendant's rifle
was successfully test-fired, established – beyond a reasonable doubt –
each of the elements of criminal possession of a weapon in the second
degree and reckless endangerment in the second degree. As the jury's
verdict is in accord with the weight of the evidence, we discern no
basis upon which to disturb it.”
Apparently, the court reasoned that, since there was actual evidence that the
statutory definition had been established, it was pointless to reverse the conviction
for want of a proper jury instruction. In this case, however, not only were the
terms “semiautomatic” and “rifle” not explained to the jury, but there was no
evidence presented to the jury that the weapon the defendant was charged with
9
Finally, there was no evidence that the weapon was not lawful under the SAFE
Act’s grandfather clause. See, Penal Law §400.00 (16-a); Point V-C, below;
appropriate case for invocation of interest of justice review than a case where a
man was convicted of felony charges without proof of several elements of such
felonies.
dixit. No authority is cited. No argument to the effect that the grandfather clause
is some sort of affirmative defense is made. No mention is made of the fact that
the deadline for registering under the grandfather clause had not yet expired when
the defendant was charged. Finally, the Respondent, for legal authority regarding
the applicability of the grandfather clause, relies on the unqualified legal opinion
10
IV. THE DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL.
based on matters outside the record, however, as our primary brief shows, this is
not the case. All errors are clear from the record and the failure to raise them on
direct appeal would surely be seen as a waiver if the same issues were later raised
tactic. Rather, none of these errors contributed in any way to the defense and all of
them prejudiced that defense as was made clear, for example, when the legal
opinions of hostile witnesses were credited by the jury and by the court itself
by the numerous failures of proof and prejudicial errors involving jury instructions
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V. THE CONVICTIONS SHOULD BE REVERSED ON
SECOND AMENDMENT GROUNDS.
arguments typifies the casual attitude of most state and federal appellate courts
towards the right to bear arms since the revolutionary and controversial Heller and
McDonald decisions were issued: that is, they basically ignore them. The
predominant opinion in the legal community for many years had been that the
Second Amendment was a dead letter that had some vague relationship to the
militia and colonial times and that militias having passed from the scene, the
minds. As pointed out in detail in defendant’s brief, New York courts and all too
Specifically:
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3. The respondent relies on biased and tendentious academic studies
Initially, it needs to be understood that the trial judge did rule on the
defendant's Second Amendment motion. The trial judge stated, “Therefore, the
defendant’s motions are denied in all respects.” That the judge refused to discuss
the Second Amendment motion does not mean the motion was not denied. In any
event, the motion was at least denied sub silentio. See, by way of illustration,
As for why opponents of the right to bear arms ignore the actual purpose
they simply have no rebuttal to it! The historical and textual evidence for this
The right has worked exactly as intended. While the United States
persons not considered to be citizens at the time including African slaves and
Native Americans, while aggressively making efforts to ensure that both were
disarmed, that same government has not done what at least twenty other modern
regimes and an infinite number of early modern, pre-modern and ancient regimes
have done: engaged in the mass killing of its own citizens. See, R. J. Rummel,
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Death by Government: Genocide and Mass Murder in the Twentieth Century, New
had coups d’etat or other political instability commonly seen in other countries
where the right to bear arms does not exist. The fact is that the Second Amendment
has worked and those who have an ideological urge to disarm Americans have no
rebuttal to that undeniable fact. Hence, they pretend that this line of argument does
ban or restrict law-abiding, competent adults from owning weapons useful for
every kind of self-defense and that have been in common use in America would be
any gun control law has even constructed an argument for how their proposal does
proponents of gun control—that the right to bear arms relates only to self-defense
against street crime--the first problem is that their argument for a very lenient
interest balancing test contradicts the holdings of Heller and McDonald. The
New York, 134 A.D.3d 52 (3rd Dept. 2015) ("[l]egislative enactments enjoy a
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strong presumption of constitutionality . . . “) and New York State Rifle & Pistol
Ass'n, Inc. v. Cuomo, 804 F.3d 242, 252 (2d Cir. 2015):
In his dissent in Heller, Justice Breyer proposed a balancing test very much
like the one subsequently and inexplicably adopted by New York courts and the
Second Circuit.
already done all the interest balancing the right to bear arms needed:
the Supreme Court in its only two relevant Second Amendment cases, its entire
with the Supreme Court having recently accepted only its third case involving the
right to bear arms (New York State Rifle & Pistol Association, Inc., et al.,
Petitioners v. City of New York, New York, et al., 18-280) and reviewing New York
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law, this fact must be clearly understood by all: the intermediate scrutiny,
opponents of the Second Amendment to destroy the right to bear arms in actual
practice! The test was essentially the creation of Justice Breyer in Heller as a fall-
back position to his initial opposition to any individual right to bear arms.
Justice Breyer endorsed Justice Stevens’ dissent, in which he set forth the
legal establishment’s view that the right to bear arms is a dead letter as it only
protects collective rights related to the now defunct militia. As a fallback position,
Justice Breyer set forth an interest-balancing test that was designed to allow judges
hostile to the right to bear arms to provide a constitutional gloss to the pro forma
The actual, historical purpose of the Second Amendment was to protect the
sense, meaning, primarily, self-defense against government tyranny but also self-
secondarily against run of the mill street crime. However, the test developed by
those who don’t agree in the slightest with the right to bear arms, naturally fails to
incorporate in its contrived balancing test any room for “weighing” the “interests”
protected by the right! ("Timeo Danaos et dona ferentes" from Aeneid (II, 49),
important governmental objective.” Thus, in that test, zero weight is given to the
values protected by the right and near absolute weight is given to the interest of the
government. Yet, the purpose of the right is either to allow the people to protect
fails to do so. Thus, we have shown that the intermediate scrutiny test is a
disingenuous test invented by opponents of the right to bear arms whose main
federal or New York’s assault weapons ban has accomplished a net good for
society, even if social net good was a scientifically valid category. That is, since it
is undisputed that guns are used in self-defense many thousands of times each year,
abiding individuals and there does not appear to be any scientific way to prove that
the costs of that increased crime are somehow outweighed by any speculative
crime reduction legislation restricting gun use might cause in the future. Robert
Nozick explains:
New York City through the decades was a laboratory experiment in what
happens when the government makes it extremely difficult for citizens to obtain a
"’It was so easy to get mugged in those days,’ said Mr. Buggy [an
undercover officer], now retired and living in Middle Village, Queens.
‘I couldn't stagger down the street and not have 10 muggers come
after me.’ . . .
“As vast parts of the city -- Times Square, Central Park, Upper
Broadway -- became danger zones, normally intrepid New Yorkers
reacted with paranoia and fear. Restaurant business fell off. Errands
were made in the light of day. If people did venture out at night, they
walked in the middle of the street so nobody could jump them from
behind a building. Even children carried ‘mugger's money,’ and
sharing mugging stories became fodder for dinner party
conversation.” S. Kurutz, “The Age of the Mugger,” New York Times
(Oct. 24, 2004).
Henny Youngman joked about it: “Guy walks up to a fellow and says, ‘Do you
know where Central Park is?’ Fellow says no, guy says, ‘Then I'll mug you right
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here.’” R. Shepard, “Do Jokes About the Big Apple Cut to the Core?,” New York
In any event, there are no studies that scientifically prove that the benefits of
assault weapons bans and other gun control measures outweigh all the numerous
costs since those costs are never fully delineated by the result-oriented producers
of such studies.
Nevertheless, the following general facts about guns, crime and gun
4. Many states with lax gun laws and heavy gun ownership have
low crime rates. Ryan McMaken, “With Few Gun Laws, New
22
5. From 1995 through 2012, the murder rate declined while gun
gun control stronger than it is. For example, they speak of “gun
2016).
Thus, even if logic would allow the rights of vast numbers of law-abiding
a consequence if it was proven that gun control would be a net benefit to society,
The respondent argues that the weapons banned by the SAFE Act were not
in common use, however, estimates indicate that close to one million such rifles
have not been registered. F. Miniter, “Nearly One Million New Yorkers Didn’t
Register Their Assault Weapons,” Forbes.com (June 24, 2015). Evidently, such
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weapons were in common use before the SAFE Act was enacted in the middle of
the night without hearings. The respondent’s argument justifying the banning of
various features of the rifles begs the question and misconceives of the purpose of
“The bans on guns with grips, folding stocks, barrel covers, or threads
focus exclusively on the relatively minor ways in which a feature
might help a criminal and ignore the feature’s utility for sports and
self-defense. The reason that manufacturers include those features on
firearms is because millions of law-abiding gun owners want them for
entirely legitimate purposes.” D. Kopel, “The Costs and
Consequences of Gun Control,” Cato Institute Policy Analysis No.
784 (Dec. 1, 2015)
The various features banned such as pistol grips or adjustable stocks merely
make the rifles more efficient for lawful purposes and allow persons who are
criminals who would in any event disregard the gun laws. As Justice Kavanaugh
wrote in his dissent in Heller v. District of Columbia, 670 F3d 1244 (D. C. Cir.
2011):
CONCLUSION
indictment dismissed with prejudice. See Defendant’s Brief, Points I, III, IV, and
VI. Alternatively, the case should be remanded for a new trial. See, Defendant’s
Respectfully submitted,
______________________
James Ostrowski
Attorney for Defendant
BENJAMIN WASSELL
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
jameso@apollo3.com
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PRINTING SPECIFICATIONS STATEMENT
The total number of words in the brief, inclusive of point headings and footnotes
and exclusive of signature blocks and pages including the table of contents, table
of citations, proof of service, certificate of compliance, or any addendum
authorized pursuant to 22 NYCRR 1250.8 (k), is 5642, as calculated by the word
processing system used to prepare the brief.
26