Lockport Union-Sun & Journal Online

February 26, 2014

SAFE Act charge dismissed against town man

BY JOE OLENICK
Lockport Union-Sun & Journal

LOCKPORT —

Police officers went too far when they counted the bullets in Paul A. Wojdan’s gun, City Judge William J. Watson ruled Wednesday as he dismissed a charge against Wojdan arising from New York’s SAFE Act.
During a hearing in Lockport City Court, Watson threw out the misdemeanor charge against Wojdan that had been filed because the magazine of his Ruger 9 mm pistol contained 10 bullets. That exceeds the SAFE Act’s restriction of seven bullets in a magazine.
Now, Wojdan wants all six of his firearms back. After his Oct. 12 arrest, Niagara County Sheriff’s Office confiscated all of the guns listed on Wojdan’s pistol permit. Attorney James Tresmond will file a motion with Niagara County Judge Matthew J. Murphy III for the return of the guns.
After court, Wojdan wasn’t happy about having to wait for them. 
“What does he gain keeping my guns?” Wojdan asked.
Wojdan was a passenger in a vehicle that was pulled over by Lockport Police for speeding Oct. 12. The vehicle, driven by Wojdan’s wife, was clocked by radar traveling 44 mph in a 30 mph zone on South Transit Street at about 2 a.m. The vehicle didn’t stop until Lt. Adam Piedmont had followed it for about a mile and a half, finally pulling over near Strauss Road in the town. Piedmont was aided by Officer Daniel Barrancotta, who testified Wednesday that he heard the siren while he was waiting in the drive-through lane at Mighty Taco.
Both officers testified that Wojdan and his wife were asked whether there were any weapons in the vehicle, and the couple indicated a Ruger was in the glove compartment. Barrancotta located the gun and Wojdan’s permit, and verified its listing on the permit. Then Barrancotta was directed by Piedmont to make sure the gun was safe.
“My experience is, the best way to make a gun safe is to remove the magazine,” Piedmont testified. 
The magazine had what Piedmont called “observation holes,” where every other hole was numbered and bullets could be seen. The officers said the bullets were counted.
“In observing the magazine, I did notice there were at least 10 rounds in the magazine,” Barrancotta testified.
This past December, Tresmond indicated he would file a motion with the court questioning whether police went too far when they checked how many bullets were in the gun. Wednesday’s hearing was called to explore the legality of the police’s search and seizure.
“Once the magazine is removed from the firearm, the firearm cannot fire. At that point in time, the search of the firearm should have ceased,” Tresmond argued. “But the officers went further ... . It was a search without a warrant.”
“I think it’s reasonable for them to check the firearm and the magazine. They didn’t seek the number of rounds in it. They did it for officer safety,” Assistant District Attorney David A. Hoffmann responded.
During the traffic stop, Watson ruled, officers had the right to ensure their own safety by taking the magazine out of the pistol — but they went too far when they saw how much ammunition was in the weapon without a warrant.
Lockport Police Chief Larry Eggert said he felt the officers did a good job at the time of the arrest. Wojdan was the first person arrested by Lockport Police for allegedly violating the act.
“It was our first exposure to the law,” Eggert said. “I think they did everything correct.”
Since then, police have undergone additional training, after consulting with the District Attorney’s Office. New York State Police were given guidelines on how to handle SAFE Act cases and police are being advised to follow those same guidelines, Eggert said.
Hoffmann said afterward that he doesn’t know whether the decision will be appealed. Tresmond said he doubts it, considering that in December, U.S. District Judge William Skretny had ruled the seven-bullet rule is unconstitutional.
The Secure Ammunition and Firearms Enforcement Act was signed into law by Gov. Andrew Cuomo in January 2013.