Turn in your gun, go to prison

Since his wife died in 2003, James Hasselbacher has faced 10 years of very few highs and numerous lows.

Without any children or family to lean on for support, he went into a downward spiral. The drug Valium helped numb the pain — and, in some ways, became his best friend. His career as a respiratory therapist went down the tubes, as did relationships with friends. He hit rock bottom in January when, at age 62, he found himself living in his car and motels.

James had been to rehab and a drug treatment facility; unfortunately, insurance covered only the first two weeks.

Determined to get clean he went to Geneva General Hospital to detox. Standard procedure for treatment includes a psychiatric evaluation, during which the topic of suicide was raised. James admits he has had such thoughts in the past but says it is not an issue now.

The doctor asked if he owned any weapons; James said he did. The doctor asked if he was willing to voluntarily turn them in to the hospital, anonymously; James agreed, as long as he wouldn’t get into any trouble. He had legally registered the guns in Oregon when he lived there, but had not re-registered them after moving to New York less than two years ago.

James said a hospital social worker called the Geneva Police Department to ask if the guns could be turned in anonymously. James was told they could be. I have heard the taped recording between Geneva police and social worker and can confirm this arrangement was in place.

Police arrived at the hospital the same day and asked Robert Colton, head of hospital security, to have James sign a voluntary, consent-to-search form. Colton took the guns from a suitcase and brought them to the waiting police officers.

Seven days later James was set to be discharged. He asked Colton for the keys to his car, which were under the care of the hospital. Within 30 minutes Geneva police arrived and arrested him in his hospital room, charging him with second-degree criminal possession of a weapon, a felony.

James is being represented by Ontario County Public Defender Carrie Bleakley, who feels there is much to be questioned about how the case has been handled.

First, James insists that nowhere on the form did it say he was waiving his rights and could be prosecuted (the Finger Lakes Times has seen a copy of the consent form). Nor was he verbally warned.

Second, the form James signed listed Colton as a witness; the copy Bleakley later received also listed Geneva PD Sgt. Tyler Turner as a witness. James said Turner wasn’t there at the time the form was signed.

Bleakley wonders if Colton was acting, in essence, as an agent of the police, and if he may have also violated HIPAA laws. Given the timing of James’ discharge and the arrest in his hospital room, Bleakley speculates that Colton was the one who alerted the police.

Bleakley says that at Hasselbacher’s initial court appearance Ontario County Assistant District Attorney James Ritts claimed the guns were in full view at the hospital, and that Hasselbacher threatened employees at the facility. The hospital records Bleakley obtained do not indicate Hasselbacher made threats to anyone.

Bail was set at $15,000 cash or $30,000 bond. Hasselbacher was remanded to the Ontario County Jail, where he stayed for five months.

With no immediate family to help, James saw his financial situation implode while he was incarcerated. No one could pay his bills for him. His vehicle was repossessed.

Ritts told Bleakley that any plea agreement must go through county District Attorney R. Michael Tantillo; Tantillo has refused to deal in this case. He wants James to plead guilty — second-degree criminal possession of a weapon carries a minimum sentence of 3 1/2 years, along with five years of post-release supervision.

According to Bleakley, Hasselbacher’s record contains only a reckless driving conviction in 1977. Bleakley said Tantillo told her the incident at the hospital isn’t the one that concerned him. She said she subpoenaed Hasselbacher’s personnel records from when he worked at GGH, indicating there is no mention of him making any threats while he was employed there.

When Bleakley mentioned the latter fact to Tantillo, she says he declined to discuss the case any further. Several motions were made to have the case dismissed due to Ritts’ failure to instruct the grand jury as to the exemption under the Penal Law eliminating criminal liability when guns are voluntarily surrendered to a police agent in the defendant’s jurisdiction. County Judge Frederick Reed agreed, dismissing the indictment. Good news, right?

Not really. It was a dismissal without prejudice, a legal term meaning Reed could allow the case to be resubmitted to the grand jury with appropriate instructions. Ritts did so June 25; Bleakley says she expects Hasselbacher to be re-indicted tomorrow. Reed has since reduced bail to $1,500 after Bleakley argued that given time served and the indictment being overturned, a more reasonable bail seemed fair.

Bleakley says she can’t find case law supporting Hasselbacher: Why would anyone take issue with someone voluntarily turning in a gun?

Bleakley said in past gun-related situations the DA’s office has plea-bargained, including the case of a South Carolina man who left his gun under a pillow at a Victor motel earlier this year. That man also didn’t have a permit for the gun, but was charged with only a misdemeanor. His bail was $500 cash or $1,000 bond. Bleakley said Hasselbacher would agree to a plea bargain of a misdemeanor with time served.

Readers may not know that district attorneys and assistant DAs take an oath of office different from any other job of lawyer, one that states finding proper justice trumps overzealously advocating for a particular client. The oath requires the prosecutor to look out for the interests of all the people, meaning the victims and the accused.

Bleakley finds it puzzling that Tantillo will not release the arrest report for this case. She thinks the facts are clear, and that the arrest report may contain information either dubious or fabricated. The first chance Bleakley will have to see the report is at trial — during testimony of narrative, with no time to prepare adequate cross-examine if needed.

A recent example of a DA honoring his oath is Wayne County DA Rick Healy, who asked for a case be dismissed involving Clyde resident Jesse Daniels. Daniels caught four youngsters vandalizing a home and locked them in a closet until the police came — yet was charged with four counts of endangering the welfare of a child. In the interests of justice, Healy’s office asked that the case be dismissed, and it was.

Bleakley said she wonders about the message Tantillo sends if people voluntarily surrender illegal guns only to be prosecuted to the fullest extent of the law.

Hasselbacher would not have these problems if he had just lied and said he didn’t have any guns. However, would that have been the right thing to do?

Notes: • The Geneva Police Department referred all questions on this matter to Ritts. • In an email, Ritts’ replied to questions with this: “Under the NY Rules of professional conduct, with certain exceptions, I am not permitted to comment on pending litigation. That is especially true of matters involving evidentiary inquiry. This matter will be litigated in County Court where I am confident your questions will be answered.” • Tantillo did not respond to my questions. • Geneva General Hospital declined comment on Hasselbacher’s stay at the hospital.

Checking pistol permits is exactly what they did, and within 3 days they were asking for my dad's 3 pistols. (This was 10 years ago before the Un “Safe Act”)

The good news in my family's particular case and I've posted it before if it sounds familiar, is that my dad, in the early 1980’s, when he knew he was getting older, had my brother put on his pistol permit. My brother took this paperwork to our sheriff's dept. and NY state's response was “we don't allow that anymore”. But my brother proved it was a legal document and in 1983 was allowed so he was given the guns. Otherwise, the state would have taken them. My dad and brother were always "gun guys" and kept up with rules and what they could do before some new moronic NY law went into effect. I hate to see what NY state has put other families through that don't keep up with these laws.

Government preys on the week, just like gangs and the mob. It's sick.

James is being represented by Ontario County Public Defender Carrie Bleakley, who feels there is much to be questioned about how the case has been handled.

I pity the guy. He's got a PD and worse, she just 'feels' the case is questionable.

You shouldn’t lose your rights because you cross a state line. It’s still America. This is like a modern, state imposed, Fugitive Slave Law, only this time it’s the 2nd Amendment.

Give her credit. That’s more than a lot of them do. Especially in Ontario County. The county was sued a few years ago and the state courts ruled their previous assigned counsel program was so deficient that it amounted to a denial of the sixth amendment.

Disgusting on many levels. Democrat Ontario Country DA R. Michael Tantillo should be kicked in the balls and then out of office and into a gutter. Just from googling his name I found several complaints about him.

My Dad passed away in Ontario County, same thing happened, they came looking for his handguns, my brother the executor suggested that they drag Canandaigua Lake. Said they were lost in a “tragic boating accident”.

I suspect they did not believe him.

gotta go now..........i`m off to the range.

Wow. Police state.

Yeah. What if his (hand)guns had magazines with greater than 7-round capacity? Even surrendering them wouldn't be good enough under the SAFE law, I guess.

Hasselbacher would not have these problems if he had just lied and said he didn’t have any guns. However, would that have been the right thing to do?

Actually, the word "lie" only applies if the questioner has an actual right to the information requested.

Under NY's Sullivan Law, possession of an unlicensed handgun is a misdemeanor, and carrying one is a felony. Carrying one in your luggage probably comes under felony. The police have a right to ask. A psychiatrist does not, probably. any other citizen, probably not.

However, police saying you will not be arrested for giving up can easily be a bald-faced lie. They can lie to make an arrest or get a conviction. A LEO is not your buddy nor a confidante.

Welcome to New York, where you can go to prison for doing the right thing.

This kind of stuff probably gives Mike Bloomberg a woodie.

(New York, a state that even Marylanders can laugh at.)

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