Two rounds does not make case

DA declines to bring SAFE Act charges in New Leb ammo arrest

NEW LEBANON—The first alleged violation of the New York Secure Ammunition and Firearms Enforcement (SAFE) Act in Columbia County made it briefly to Town Court, but was soon dismissed after Columbia County District Attorney Paul Czajka declined to prosecute the charge.

Gregory D. Dean, Jr., 31, of Hopewell Junction was pulled over by New Lebanon State Police on Route 22 for having an inadequate license plate lamp May 12 at 9:45 p.m.

While the troopers were talking to Mr. Dean they noticed a handgun partially covered by a sweatshirt on the front passenger seat.
They subsequently found that the Smith and Wesson semi-automatic .40 caliber handgun was legally owned by Mr. Dean but that it contained nine rounds of ammunition rather than the limit of seven rounds as dictated by the SAFE Act. Mr. Dean was also found to be driving with a suspended license.

He was charged with unlawful possession of certain ammunition feeding devices and third degree aggravated unlicensed operation of a motor vehicle, both misdemeanors, and with a Vehicle and Traffic Law infraction for his busted plate lamp.

Mr. Dean appeared in New Lebanon Court May 23 with his attorney, Jonna Spilbor, to answer the charges.

In a phone interview this week, the DA said he told New Lebanon Town Justice Jessica Byrne that he had reviewed the circumstances surrounding the arrest, talked to the troopers, reviewed the defendant’s history and determined to exercise his prosecutorial discretion by declining to prosecute the SAFE Act charge. The other two charges stand.

“I am not making a blanket policy regarding all offenses relevant to the enactment of the SAFE Act and my personal opinion is of little relevance,” the DA said.

Mr. Czajka said he had no criticism of the conduct of the State Police, “It was not a factor.” He said he would not detail what circumstances led to his decision because he did not want to mistakenly leave something out or give something too much significance.

In not making a “blanket policy” with regard to all SAFE Act cases, DA Czajka deflects intervention by Governor Andrew Cuomo.

According to the 1997 Fordham Law Review article, “Prosecutorial Discretion and the Death Penalty: Creating a Committee to Decide Whether to Seek the Death Penalty,” after re-instituting the death penalty in New York State, Governor George Pataki “superseded” Bronx County DA Robert Johnson, March 21, 1995, in a first degree murder case and replaced him with then Attorney General Dennis Vacco.

According to the article, the governor claimed that because the DA refused to state whether he would ever seek the death penalty, he failed to implement the laws of New York. Attorney General Vacco subsequently elected to seek the death penalty in the case.

A footnote in the article refers to a written argument by Governor Pataki that said, “…a District Attorney who has instituted a blanket policy not to seek the death penalty violates his obligation to make informed, reasoned decisions on a case-by-case basis and thereby violates as well his sworn obligation to uphold the laws of this State.”

The SAFE Act was approved by the state legislature under a fast-track provision known as a “message of necessity” last January following the shooting murders in Newtown, CT. Since then, the Columbia County Board of Supervisors and several Town Boards have adopted resolutions opposing the law.

Asked for his take on the DA’s prosecutorial discretion in this case, Assemblyman Pete Lopez (R-101st) told The Columbia Paper Wednesday, that the DA’s response is “in step with a large plurality of residents in the region, his constituents and other law-abiding firearm owners.”

The assemblyman said “the general public is frustrated with the process and the way this law took shape.” He noted that the SAFE Act is still the subject of broad public discussion and litigation over how it was adopted. “I can’t speak for the DA,” said Mr. Lopez, but “I think he was responding to all these factors.”

State Senator Kathy Marchione (R-43rd), whose district includes all of Columbia County, who has actively campaigned for repeal of the SAFE Act, said Wednesday that she has no concerns about the decision by Mr. Czajka not to prosecute, saying the district attorney must have the “flexibility and autonomy” to determine which cases to prosecute. She called the part of the law that limits the number of rounds of ammunition to seven “Nonsensical,” adding that most pistols manufactured today are made with clips containing 10 rounds.

Ms. Marchione said her online petition calling for repeal of the SAFE Act has over 128,000 signatures.

Governor Cuomo’s office and the District Attorneys Association of the State of New York declined to comment for this story. A call to the State Attorney General’s Office was not returned.

To contact Diane Valden email .

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