ca Sate or New York Orrice OF THE ATTORNEY GENERAL Letimia James Division or Criminal Jusrice Arroavey Genera CCransatExroxceMENT AND FiNaNCiAL Cries BUREAU July 1, 2019 Hon. Stephen W. Cass Chautauqua County Court P.O. Box C 3 North Erie Street Mayville, NY 14757 Re: People v. Benjamin Wassell, Chautauqua County Ind. No. 13-373 Dear Justice Cass: The People submit this letter in response to defendant’s motion dated June 6, 2019, to dismiss with prejudice the indictment in the case referenced above, The People acknowledge that the indictment must be dismissed pursuant to an order of the Appellate Division, Fourth Department, dated April 26, 2019. Defendant's further request that the indictment be dismissed vith prejudice should be denied as moot, because, for the reasons stated below, the People do not intend to seek permission to represent this case to a grand jury. The Attorney General prosecuted this ease pursuant to referral from New York State Police Superintendent Joseph D” Amico dated February 27, 2013. See Executive Law § 63(3); New York State Police referral letter, attached hereto. The charged crimes, third-degree firearms sale, in violation of Penal Law § 265.11, and one count of third-degree weapon possession in violation of Penal Law § 265.02(7), occurred on January 24, 2013. Defendant was arrested and arraigned on a felony complaint on March 14, 2013, was arraigned on an indictment on September 19, 2013, and was found guilty after trial by jury on March 10, 2014. On May 30, 2014, defendant was sentenced to five years’ probation, which he has now served. Defendant subsequently appealed his conviction. By Order dated April 26, 2019, the Appellate Division, Fourth Department, reversed and ordered dismissal of the indictment, on the ground that the Record on Appeal did not contain sufficient evidence of the Attorney General's authority to prosecute, notwithstanding that defendant had not challenged that authority below. ‘The Appellate Division remitted the matter to this Court for proceedings pursuant to C.P.L § 47045. MAIN PLace ToweR, 380 MAIN SIREET, SUITE 300A, BUFFALO, NY 14202-3750 @ PHONE (716) 883-8830 @ Fax (716) 853-8550 # www.AG.Nv.GovBy Notice of Motion dated June 6, 2019, defendant now moves this Court to dismiss the indictment with prejudice, arguing that the prior period of prosecution did not toll the statute of limitations. See Affirmation of James Ostrowski, at paras. 4-6; C.P.L. § 30.10(2)(b). This motion is returnable to the Court on July 8, 2019. While the People do not concede the validity of defendant’s claim, we have determined not to seck leave to re-present these charges to a grand jury in light of the fact that the defendant has served his full sentence, as well as a number of legal issues arising from the age of the case that would be presented by a renewed prosecution, For these reasons, the People ask this Court to dismiss the indictment with prejudice. Accordingly, defendant's motion to dismiss the indictment based on statute of limitations grounds should be denied as moot. Kindly advise counsel if the Court would still like an appearance on Monday July 8, 2019, or would prefer that the People draft an Order for the Court's signature, Respectfully submitted, 0,022 Diane LaVallee Assistant Attorney General Co: James Ostrowski, Esq Attomey for Defendant 63 Newport Avenue Buffalo, New York 14216 Jameso@apollo3.com Main PLace Towest, 350 MAIN STREET, SUITE300A, BUFFALO, NY 14202-3750 @ PHONE (716) 853-8530 @ Fax (716) 853-8550 @ WWW.AG.AY.GOVNEW YORK STATE POLICE DIVISION HEADQUARTERS 1220 WASHINGTON AVENUE ALBANY, NEW YORK (2226-2252 JOSEPH A. D'AMICO ‘SUPERINTENDENT February 27, 2013 ‘Honorable Eric T. Schneiderman Attorney General of the State of New York The Capitol Albany, New York 12224-0341 Attention: Gail Heatherly Bureau Chief Criminal Prosecutions Bureau RE: Benjamin M, Wassell, dob 12/07/79 Dear Mr. Schneiderman: On January 24, 2013, members of the New York State Police, working with your investigators, purchased from Benjamin M. Wassell (Wassell) a semiautomatic rifle, 299 rounds of ammunition and six 30-round magazines. Preliminary investigation indicates that the weapon is an "assault weapon” as defined by the Penal Law. It is believed that Wassell has access to and is willing to sell additional illegal assault ‘weapons. Accordingly, more purchases may be made in the near future. In addition, it appears based ‘upon initial contact with the manufacturer of the weapon in question, that the weapon was originally sold to @ gun dealer in Monroe County, Accordingly, Investigators assigned to the Community Narcotics Enforcement Team (“CNET”) and your office are attempting to determine: 1) if the gun ‘was illegal when obtained and sold by the dealer, or 2) did Wassell modify a legal weapon and thereby manufacture an illegal weapon. It appears that Wassell, and perhaps others, committed the erimes of Criminal Possession of a Weapon 3" Degree [(PL 265.02(7)] and possibly Manufacture, Transport, Disposition and Defacement of Weapons and Dangerous Instruments and Appliances (PL 265.10). ‘Therefore, pursuant to Section 63(3) of the Executive Law, I request that you review the facts of this matter and take whatever prosecutorial action you deem appropriate eph D'Amico Superintendent