Sean M. Calhoun's mother said Thursday the gunshot death of her 17-year-old son was an accident and appealed to Niagara County Judge Peter L. Broderick Sr. not to send Sean's best friend to prison.
Broderick seemed to have his doubts, but he kept his promise to place German L. Mercado II on five years' probation if that was what the victim's family wanted.
Broderick made the commitment Jan. 26, when Mercado, 20, of Niagara Street, Niagara Falls, pleaded guilty to criminally negligent homicide, a charge that carries a maximum four-year prison sentence.
Calhoun was shot in the head when a sawed-off .22-caliber rifle discharged as he and Mercado were apparently wrestling over it in the victim's home on Ontario Avenue in Niagara Falls on June 27.
"I don't think I'm getting the full story," Broderick commented. He asked Mercado how long he'd had the gun.
"Three months," replied Mercado, who otherwise declined to speak in court.
"It doesn't strike me as logical that he never fired the gun at a tree, at the sky," Broderick said in response to the claim that Mercado never determined whether it was loaded.
Cheryl Harms, Calhoun's mother, said of her son, "I believe he thought the gun was not loaded, and it could be him in German Mercado's place."
First Assistant District Attorney Timothy R. Lundquist said, "No one knows how it happened. There's no indication that there was a motive in regard to it being an intentional act."
Lundquist said the rifle was found in a field off Depot Avenue in Niagara Falls.
Harms said of Mercado, "He has a child on the way. He's part of our family. He's my son just as much as if he was my blood son. I would like my son's spirit to rest. I don't believe it can if he's charged with anything more than an accident. . . . Sending [Mercado] to prison would just make him a criminal."
Defense attorney Nicholas Pelosino said Calhoun was Mercado's best friend. "My client loved Sean as if he were his own brother and protected him any way he could," Pelosino said. "My client now knows that nothing good can come from being around a weapon. For him, life goes on. Unfortunately, it doesn't for Sean, and that's a burden he'll have to deal with for the rest of his life."
Broderick was unimpressed, noting that Mercado had made a girl pregnant. "It appears to me he's not making good judgments in his life. Here he is, creating a human life he has no way of taking care of. Maybe he will in the future. That's just another example of this young man's mentality," the judge said.
Harms said, "German Mercado did not shoot my son. He grabbed the gun and the trigger went off accidentally."
Pelosino said Mercado had no prior criminal record. He said Mercado is taking remedial courses in hopes of gaining admission to Niagara County Community College.