MAYVILLE - The prosecution called four witnesses to the stand Wednesday to present evidence against Benjamin Wassell.
Wassell is charged with five felonies stemming from an incident where he allegedly sold an illegal assault weapon to an undercover officer.
Unlike Wassell's arraignment in Hanover Town Court, the court room was not crowded with SAFE Act protesters, just close family and friends.
OBSERVER Photos by Nicole Gugino
Top left: Benjamin Wassell, charged with five felonies for allegedly selling an assault weapon to an undercover officer, is pictured on the first day of his trial Wednesday. Top right: Assistant Attorney General Cydney Kelly gives the opening statements for the prosecution Wednesday in the trial of Benjamin Wassell. Above: Defense Attorney Michael Deal gives opening statements on behalf of his client Benjamin Wassell in Chautauqua County Court Wednesday.
Wassell's jury trial began Wednesday with opening statements from prosecuting attorney Cydney Kelly, assistant Attorney General.
Kelly listed the charges against Wassell.
He was indicted on Sept. 11, 2013 for 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.
"That may seem like complicated language but the facts of this case are simple. On January 24, 2013 the defendant Benjamin Wassell sold a DEl-TON AR-15, an illegal assault weapon to a man he never met before," she said.
Defense Attorney Michael Deal presented his opening statement, asking the jury to look at all of the evidence before making a decision.
Kelly then called the prosecution's first witness to the stand, Jeffrey Jankowiak, gunsmith and owner of JJ's Guns.
Jankowiak was questioned about the events of Dec. 6, 2012. He said on that day Wassell came into his store and tried to sell a gun, which under New York state law was illegal because of several features.
According to Jankowiak, he told Wassell that the gun was illegal to sell in New York state, so he was not interested in buying it.
"I told him he could get in trouble for selling it. He said, 'I'm a (expletive) Marine. What are they going to do to me?'" he said.
The store's surveillance video was played and he identified Wassell and reviewed the conversation.
Kelly made clear that this is Jankowiak's only livelihood and there are consequences for not reporting the attempted sale of an illegal weapon.
Jankowiak called the New York State Police the next day.
Deal cross examined Jankowiak and made it clear that the gun Wassell presented in the store that day was not the gun he is accused of selling to an undercover officer on Jan. 24, 2013. He also pointed out that in other states this gun is legal and used for hunting and defense.
UNDERCOVER OFFICER TAKES THE STAND
Next the prosecution called the undercover officer to enter testimony. The OBSERVER is withholding the name of the officer at the request of the court.
The undercover officer explained his long background in the state police and in the Air Force prior to that.
He said he was given the tip to investigate. He called a phone number on Jan. 10, 2013 and left a message leaving his cell phone number. Wassell called him back and left messages, which were recorded and presented. The messages said "Ben" had the AR-15 and would sell it to the interested person or would sell it online.
Wassell and the officer texted back and forth for several days. These were presented as evidence. These included pictures of the gun and texts negotiating a price before agreeing to meet at a restaurant on Route 5 in the town of Hanover.
The officer said he met Wassell on Jan. 24 at the back of the restaurant parking lot, where the gun, several 30-round magazines and 300 rounds of ammunition were exchanged for $1,900. The officer identified Wassell as the person he met.
Kelly presented an aerial map of the parking lot, the gun case with evidence tag, the gun, magazines and ammunition as evidence.
The officer also took an audio recording of the transaction. In the recording the person identified as Wassell tells the undercover officer he needs to get the telescoping stock pinned or he "could get in trouble."
The prosecution made note that the undercover officer did not know Wassell before the investigation and met him for the first time when he bought the AR-15. He did not identify himself as police, and Wassell did not ask him for his last name, his license or the intended use of the gun.
The defense focused on undercover operations being inherently "dishonest," identifying the subject of interest as a "target" and the officer's lack of knowledge of where the tip came from. Deal asked questions about a phone conversation where it was discussed that the gun was coming from out-of-state and would have to be modified to be made legal in New York. He responded, "I do not recall."
Kelly rebutted this by asking if a gun is legal in another state if that changes its legality in New York. To which the answer was, "no."
STATE POLICE QUESTIONED
The prosecution next called the arresting officer to the stand. Fredonia Trooper Dennis Gould explained how on March 14, 2013, he was instructed to arrest Wassell. Gould went to the Wassell residence with an investigator the Attorney General's Office has asked the OBSERVER not to use, and was the one to handcuff Wassell and take him back to the Fredonia barracks. After questioning, Gould processed Wassell and took him for arraignment in Hanover Town Court.
He said he did not know the charges against Wassell at the time of arrest and could not tell Wassell when he asked. He also stated to his knowledge, Wassell did not ask for a lawyer, only asked about the charges once and was not threatened or promised anything to cooperate with the investigation.
Next the investigator, who now works undercover, was called as a witness. The investigator said he went with Gould to the Wassell residence along with a number of other state police. The investigator was a witness to Wassell signing the consent for a search of the premises, Wassell's understanding of his Miranda rights and his statement given to police.
The investigator said Wassell signed the consent form for a search before being transported to Fredonia, and did not know of anyone threatening him to do so. At the barracks, the investigator read Wassell his Miranda rights, but lead investigators Stacy Stawicki (now retired) and Sandra Migaj did the questioning from which a statement was typed and signed by Wassell and witnessed by the investigator.
The investigator said Wassell asked once during questioning if he needed a lawyer, to which he was told they could not give legal advice, and he decided to proceed with a statement.
The statement which was read as evidence said Wassell bought parts to build several AR-15s which were given as gifts and sold to friends. He stated the gun he sold to the undercover officer was from a friend in Pennsylvania who wanted to sell an AR-15 with pistol grip, telescoping stock, flash suppressor and bayonet mount. He responded to a voicemail he received and sold it a week later with magazines and ammunition for $1,900. At this time (post SAFE Act) more than one of these features makes the gun an assault rifle.
The investigator said to his knowledge Wassell understood his rights and was not threatened or promised anything for cooperating.
Deal focused on the length of questioning, which according to the statement began at 8:25 a.m. with the Miranda rights, at 8:55 a.m. the statement was typed and at 10:57 a.m. it was signed.
Deal also asked if the investigator told Wassell what he was charged with. He said he did not know and it was not his duty because he was not the lead investigator.
The trial will resume today at 9:30 a.m. with more witnesses for the prosecution.
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