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Army veteran avoids prison but still vows appeal of SAFE Act convictions

An Iraq War combat veteran who served seven years in the Army's 82nd Airborne Division avoided prison time and received a conditional discharge Wednesday for his three felony violations of New York State's gun control law.

Simeon D. Mokhiber, 42, still plans to appeal his conviction.

A Niagara County jury convicted the Niagara Falls resident of possessing high-capacity ammunition magazines, which are illegal under the state's Secure Ammunition and Firearms Enforcement Act of 2013, commonly known as the SAFE Act. Police found the items in his car during a traffic stop in April 2016 in North Tonawanda.

"I think that the SAFE Act is clearly unconstitutional," Mokhiber said after his court hearing. "The Second Amendment is only one sentence long. It's written in plain English, that one sentence, and the SAFE Act clearly violates it. It's not a complicated matter."

Mokhiber testified in his own defense at the trial. He said he hoped the jury would ignore the SAFE Act, even though the judge in the case instructed jurors to follow the law whether they agreed with it or not.

"The facts that I tried to get across to the jury are that our rights that are enshrined in the Constitution and the Bill of Rights are not for New York State or Gov. (Andrew M.) Cuomo to infringe upon," Mokhiber said. "We have rights that are supposed to be protected. I think it's important that a jury judge the law and the facts."


Simeon D. Mokhiber after his sentencing in Niagara County Court Oct. 25, 2017. (Thomas J. Prohaska/Buffalo News)

Mokhiber hopes his appeal invalidates the law.

On April 21, the jury convicted Mokhiber of having illegal high-capacity ammunition magazines but acquitted him of a drunken-driving charge that police also filed after pulling him over in 2016.

The magazines - three 17-round Glock models, loaded with bullets - were in a container that police opened. There was no gun in the vehicle.

Niagara County Judge Matthew J. Murphy III said his sentence was "not a commentary on the New York SAFE Act."

Murphy had refused to dismiss the charges against Mokhiber. Nor did he suppress the evidence from what the defense called an illegal seizure.

Murphy could have sentenced Mokhiber to 21 years in prison for three counts of third-degree criminal possession of a weapon or placed him on probation for five years.

He did neither.

"As a trial judge, it's my sworn duty to follow the laws as written," Murphy said.

He said he "may have personal views" on the SAFE Act, but he did not say what those are.

The conditions of Mokhiber's discharge include staying out of trouble, performing 15 hours of community service by March 1 and paying $375 in surcharges. Murphy fined Mokhiber $90 for speeding.

Murphy said he received more letters on Mokhiber's case than any other he's handled in 10 years on the bench. The judge said half of them assailed the SAFE Act, but the other half, which he found more important, talked about Mokhiber's personal qualities.

Mokhiber, in addition to his 82nd Airborne service, served two years in the National Guard. After leaving the service, he worked in Iraq and Afghanistan as a private security officer protecting U.S. officials.

After the sentencing, defense lawyer James M. Ostrowski vowed a thorough appeal.

"We're going to take it all the way," Ostrowski said. "We'll look at every conceivable issue."

Assistant District Attorney Claudette S. Caldwell, who prosecuted the case, made no statement in court.

"I respect the judge's decision," she said after the sentencing.

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