A.G. Schneiderman Announces Results of Statewide Undercover Gun Show Investigation

November 30, 2011 Updated Nov 30, 2011 at 2:33 PM EDT

By WKBW News

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A.G. Schneiderman Announces Results of Statewide Undercover Gun Show Investigation

November 30, 2011 Updated Nov 30, 2011 at 2:33 PM EDT

Albany, N.Y. (WKBW release) -- Attorney General Eric T. Schneiderman on Wednesday announced that his office has filed criminal charges against 10 gun sellers from across New York State who allegedly violated the state's background check requirement for the sale of firearms at gun shows. 

As a result of the investigation, Schneiderman's office is also sending out cease and desist letters to gun show operators based upon the violations found to date.  The letters direct them to comply with the law and to cease practices that permit gun sales without background checks. 
Additionally, later Wednesday the Attorney General will issue subpoenas to several gun show operators seeking documentation and testimony related to the respective gun show events  The Attorney General's investigation is ongoing.
 
"The illegal sale of guns at gun shows endangers the public by giving felons, terrorists and the dangerously mentally ill an open and anonymous marketplace to buy guns without a background check.  Our investigators found a blatant disregard for the law where sellers made the conscious decision to sell deadly weapons to individuals who admitted they would not pass a background check," said Attorney General Schneiderman. "Operation Background Bust not only exposed major flaws in the gun show laws but also proved how ‘off the books’ operations jeopardize public safety by making it easy for guns to fall into the wrong hands.  In addition to filing criminal charges against the sellers, and demanding that the gun show operators cease and desist from engaging in illegal practices, my office plans to work with the Legislature to hold gun show operators liable when guns are sold at their gun shows without the required background check. "
 
The Attorney General's eight-month investigation into the practices of vendors at gun shows throughout the State revealed that on many occasions, weapons sellers at gun shows allegedly failed to ensure that a National Instant Criminal Background  check was conducted on the prospective gun buyer, as required by state law.  These illegal sales, classified as misdemeanors, allegedly took place even after undercover investigators told the gun sellers that they had orders of protection against them and could not pass a background check.
 
The investigation further exposed a gap in current law which holds only the individual gun seller, not the gun show operator, legally accountable for failing to ensure that a background check on the prospective gun purchaser has been conducted.  As the investigation clearly revealed, this “honor system” for conducting background checks at gun shows is not working and must be supplemented with a system that also holds the gun show operator liable when a gun sale takes place without the required NICS background check. 
 
Beginning in March of this year, undercover officers from the Attorney General's office purchased weapons from sellers at gun shows in Erie, Genesee, Saratoga, Schoharie, Suffolk and Washington counties.  The 10 defendants charged today chose to sell a firearm to the undercover officer with brazen disregard for the required NICS background check.  Typically, the undercover investigator told the seller that he had an order of protection against him and would not be able to pass a background check.
 
NICS background checks are required for all gun purchases at gun shows throughout the State, as provided by General Business Law §897.  A person who fails a NICS background check is ineligible to purchase or possess a gun under federal law. 
 
Persons prohibited under federal law from purchasing or possessing a gun include those who:
 
• Have been convicted of a felony
• Have been adjudicated a “mental defective” or committed to a mental institution
• Are unlawful users of or addicted to a controlled substance
• Being an alien, are illegally or unlawfully in the U.S.
• Are subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner
• Have been convicted of a misdemeanor crime of domestic violence; or
• Have been dishonorably discharged from the U.S. Armed Forces
 
The NICS background check requirement was put in place in New York to prevent these types of individuals from obtaining a gun at a gun show, where typically hundreds of guns are bought and sold.  Failure to perform such a background check is a Class A misdemeanor.
 
To facilitate the conducting of NICS background checks, gun show operators in New York are required to post signs giving notice of the background check requirement, as well as have a terminal inside the show where, by either phone or computer, a prospective purchaser's name and information can be cross-checked against the national NICS database which contains individuals who would be disqualified from purchasing a firearm for the reasons above.
 
The Attorney General's investigation found lax compliance with the notice requirements by gun show operators. On some occasions, sellers agreed to sell the weapon to the undercover officer and then left the premises of the gun show in an attempt to evade the background check requirement by selling the firearm in a location other than the gun show itself.  However, this conduct is also illegal under General Business Law §897.
 
New York’s background check requirement for all gun show sales was enacted in 2000 in an effort to prevent potentially dangerous individuals, including felons and the seriously mentally ill, from having easy access to firearms in the State.  By ignoring the background check requirement, the sellers charged today are accused of putting a firearm in the hands of a buyer who, in violation of law, has not been determined to be legally eligible to possess that weapon.
 
The 10 charged defendants are:
• David Cox - Stillwater, Saratoga County
• Michael Ferrara - Saratoga Springs, Saratoga County
• Daniel Heinsler - Waterport, Orleans County
• Dan Kowalczewski - Cheektowaga, Erie County
• Alexander Lasurdo - Wading River, Suffolk County
• John Malinowski - Waterford, Saratoga County
• Sam Savino- North Bellmore, Nassau County
• William Smith - Corfu, Genesee County
• Christopher Sterling - Alden, Erie County
• Peter Tric - Kingston, Ulster County
 
The Gun Shows examined as a part of this investigation include:
 
• May 14   - Hamburg (Erie County)
• May 20   - Greenwich (Washington County)
• June 19   - Alexander (Genesee County)
• July 16    - Cobleskill (Schoharie County)
• August 27 - Saratoga Springs (Saratoga County)
• September 24  - Hauppauge (Suffolk County)
 
The gun types included:
 
• 3 AR-15 (Assault Rifles)
• 1 semi-automatic rifle called a "Mauser" (from Czech Republic)
• 1 Savage 7mm Rifle
• 1 Remington Model 710
• 1 Colt 7.72 x39
• 1 Enfield Military rifle
• 1 Browning .22 cal, model 235
• 1 Ithaca .22 gauge
• 1 Remington 25.06
 
Each defendant is charged with a Class A Misdemeanor, Failure to Conduct a Background Check at a Gun Show. 
 
The Attorney General's office also intends to work with lawmakers to impose gun sale monitoring obligations on operators to help ensure that the current NICS-check requirement at gun shows is not being flouted, and impose enhanced liability on operators who fail to comply with those stricter monitoring requirements
 
“New York leads the nation with a tough law that requires background checks for all sales at gun shows,” said New York City Mayor Michael R. Bloomberg.  “But the Attorney General’s important investigation shows that tough laws need tough enforcement.  I applaud Attorney General Schneiderman for sending the message that sellers at gun shows need to obey the law and do their part to keep communities safe.”
 
"When gun show vendors purposely subvert the law and illegally sell a firearm, they endanger all of us," Westchester District Attorney Janet DiFiore, President of the District Attorneys Association of the State of New York. "I fully support Attorney General Schneiderman's crackdown on this illegal conduct."
 
“While enforcement actions like this are essential, Attorney General Schneiderman is right that more needs to be done to ensure that gun show sellers comply with the background check law and that our laws are improved to make our state even safer," State Senator Jose Peralta said. "I look forward to working with the Attorney General to address this critical public safety issue.”
 
"Gun shows are a notorious source of illegal guns, and anything we can do to reduce trafficking is integral to public safety," Richard Aborn, President of Citizens Crime Commission of NYC. "Attorney General Schneiderman is a longtime champion of sensible gun laws, and played a critical role in passing the background check law that these sellers were violating.  So it’s no surprise that he is vigorously enforcing the law, and supporting efforts to strengthen it. This is exactly the kind of leadership we need to protect the people of New York from senseless gun violence."
 
“We commend Attorney General Schneiderman, not only for cracking down on violators of the gun show background check law, but for his forceful advocacy to strengthen the law," Jackie Hilly, Executive Director of New Yorkers Against Gun Violence, said. "The legislature should listen to our state’s top law enforcement officer by closing the terror gap and holding gun show operators accountable for widespread violations of the law that put our communities in danger.”
 
"Thank you, Attorney General Schneiderman, for reining in irresponsible gun sellers who are putting our communities at risk just to make a profit," Reverend Dr. Calvin O. Butts, III, The Abyssinian Baptist Church, said. "Too many young lives are lost every year because deadly weapons get in to the wrong hands.
 
“Background checks are intended to prevent seriously dangerous individuals from purchasing guns: felons, individuals under orders of protection for domestic violence, people who have been adjudicated to be too mentally unstable to own a gun,"
New York Urban League President Arva Rice said "That these sellers would deliberately bypass the background check is as appalling as it is dangerous.  Attorney General Schneiderman is making our communities safer by holding irresponsible gun sellers accountable."