MAYVILLE – The Chautauqua County man who made headlines when he became the first person to be arrested under Gov. Andrew Cuomo’s 2013 gun control legislation ended up being convicted on weapons charges not related to the NY SAFE Act. On Friday, he learned he would not serve any time in jail.
Benjamin M. Wassell, who twice sold illegal firearms to an undercover police investigator, was sentenced to five years’ probation by Erie County Court Judge Michael L. D’Amico. The 33-year-old Silver Creek man was convicted in March in a jury trial on three third-degree felony counts: possession of an illegal firearm, sale of a firearm and possession with intent to sell. The felonies could have resulted in jail time.
Wassell asked the court for leniency and the chance to try to provide for his wife and two children.
“I have never been in trouble before, and I will not be in trouble again,” he said.
In court Friday, Wassell maintained his innocence and said he was misguided by a local firearms salesman who told him he could sell the weapons. “I respect that the jury did not agree,” he added.
Wassell spoke about his military history and service with the Marine Corps and Marine Reserves. He said he served in Iraq and was wounded.
“I am happy to see an adjustment in attitude,” the judge said after Wassell’s statement in court. “It is the law and we have to abide by the law even if we do not agree with it.”
But the prosecution’s statement included comments that Wassell had not shown remorse.
D’Amico outlined terms of the probation and reminded Wassell that he is not to use alcohol or drugs or possess any firearms.
Wassell told the court that he lost his job after his conviction but that he was trying to work doing home remodeling and would like to support his family and not use unemployment insurance.
“This conviction is an impediment to employment, but I think you have shown that you can overcome obstacles,” the judge said. “It is a bump in the road, not the end of the road.”
The case was prosecuted by Cydney Kelly of the State Attorney General’s Office; Michael Deal represented Wassell.
Prosecutors alleged that on Jan. 24, 2013, nine days after the NY SAFE Act was passed, Wassell tried to sell a Del-Ton AR-15 rifle to an undercover police investigator.
The gun was classified as a banned weapon, and selling it is a Class D felony, because it had several military features, including a pistol grip, telescoping stock and bayonet mount.
The investigator and Wassell finalized the deal during a meeting at a restaurant in Hanover, where the weapon was sold for $1,900, and included 299 rounds of ammunition and six large-capacity clips, according to the state’s complaint.
The investigator kept in contact with Wassell after the first sale to try to purchase another weapon, according to the state complaint.
The second sale to the undercover investigator took place Feb. 24 in the parking lot of a Hanover bowling alley and involved an Armalite AR-10 Magnum semiautomatic weapon. The $2,600 sale included 21 rounds of ammunition.
Both transactions were recorded by the investigator.