MAYVILLE - The truth was left unclear as Benjamin Wassell contradicted testimony of police and a gun shop owner as he took the stand Thursday.
Wassell is indicted on the charges of 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, all class D felonies after he allegedly sold an illegal gun to an undercover officer.
Trial began Thursday with the prosecution calling witness Sandra Migaj, senior investigator for the New York State Attorney General's Office in Buffalo, who was a part of the investigation and the arrest of Wassell. She said she received orders on March 14, 2013, to determine Wassell's whereabouts and to assist with obtaining a statement.
Migaj said she heard Miranda warnings read to Wassell and after this Wassell was questioned. She confirmed Wednesday testimony, that Wassell asked if he should get an attorney only after he had given a statement.
Wassell's defense attorney Michael Deal cross-examined Migaj and focused on why no local law enforcement was involved in the investigation, arrest or prosecution.
Migaj was not a part of the arrest or search of the Wassell residence, but was involved in holding the guns seized from the residence on the day of arrest until the determination was made the guns were legal and were released. Deal asked why the guns were seized if both Benjamin and Jacqueline Wassell had valid pistol permits. She said it was for the officer's safety and that a determination of the guns' legality was not made on site.
Next the prosecution called State Police Sgt. Lawrence Dorchek, a senior firearms instructor who testified the gun sold to the undercover officer was functional.
The defense called Wassell's wife of 10 years, Jacqueline, to the stand.
Deal asked her about their life and about an incident in 2005 when their home in southern California was burglarized while they slept. After that the couple had guns in the house for protection as well as Wassell's hobby of hunting.
He also asked about the day Wassell was arrested. She said she was awake to get her older of two children up for school when troopers knocked on the door and told her they had to confiscate all of the guns on the premises. She said the officers would not tell her what her husband was charged with other than it was gun-related and that officers upset her daughter by taking the guns and their father into custody.
Wassell testified that on Dec. 6, 2012, he was not trying to sell the gun he brought into JJ's Guns. He said he wanted to show it to the owner and the discussion they had was about restrictive gun laws. They also argued whether it was legal to have the collapsible stock pinned by a gunsmith or if only a manufacturer can pin it.
He said the statement Jeffrey Jankowiak said he made was "off base and untrue." Wassell said he would never make the statement, "I'm a (expletive) Marine. What are they going to do to me?" because it is offensive to servicemen.
Deal thanked the jury and called Wassell a "war hero" who defended the Constitution and had no intent to break the law. He said the treatment of this case could be foreshadowing for the future and that the jury would have the final say in Wassell's fate.
Kelly said it is fact that Wassell possessed, transported and had the intent to sell the AR-15 to a man he only knew by his first name.
She also argued Wassell knew the standards because he warned the undercover officer what to do to make the gun legal.
The jury will meet again today for final instruction at 9:30 a.m. and then will deliberate until a decision is reached.