A Niagara Falls man was spared jail time Wednesday on three felony weapons charges for possessing 17-round magazines in a case that outraged gun rights advocates.
Niagara County Judge Matthew Murphy sentenced Simeon Mokhiber, an Iraq War veteran, to a conditional discharge on three counts of third-degree criminal possession of a weapon, a class-D felony. Each charge carried a maximum penalty of 7 years in prison.
Mokhiber, 42, was stopped by Niagara Falls police on April 18, 2016, for speeding. He was charged with driving while intoxicated and was hit with the weapons charges after police found three 17-round magazines for a Glock handgun in his vehicle.
Mokhiber did not have a weapon in the vehicle and he was a licensed pistol permit holder, according to Assistant District Attorney Claudette Caldwell.
On April 21 of this year, a jury acquitted Mokhiber of DWI but convicted him on the three weapons charges and speeding charge.
Conservative websites and local pro-gun groups, such as SCOPE Niagara County and the Wilson Conservation Club, rallied to Mokhiber’s defense. They have said the magazines are standard issue for Glock handguns, pointed to his service with the U.S. Army in Iraq and decried the length of his potential sentence.
Mokhiber’s supporters donated over $3,380 to an online legal defense fund for him. An online petition calling for leniency in his sentencing received more than 1,500 signatures.
His supporters blamed his conviction on the New York SAFE Act, although magazines containing more than 10 rounds were banned in New York state in 1994. And, the SAFE Act did end an exemption on magazines with over 10 rounds that were bought prior to the 1994 ban, according to a New York State Police guide to the SAFE Act.
Murphy said he received more correspondence on Mokhiber’s case than on any other in his 10 years as a judge. So many of Mokhiber’s supporters were present, the sentencing had to be relocated to a larger courtroom.
However, Murphy said trial judges must administer the law as it is written.
“I want to stress the sentence I’m about to impose is not a commentary on the SAFE Act,” Murphy said.
Rather, Murphy said he was basing his sentence on Mokhiber’s character. Mokhiber served 9 years in the U.S. Army, participated in the U.S. invasion of Iraq and later returned to Iraq as a private security contractor. Mokhiber is the father of a child with disabilities, holds a job at Seneca Niagara Resort & Casino and was never previously convicted of a penal law violation.
Despite the conditional discharge, Mokhiber’s attorney Jim Ostrowski said he plans to appeal Mokhiber’s conviction.
The SAFE Act’s ban on magazines with over 10 rounds was upheld in late 2013 by U.S. District Court Judge William M. Skretny in Buffalo, and later by the 2nd Circuit of the United States Court of Appeals. (However, Skretny struck down a provision prohibiting individuals from loading more than seven rounds into a magazine.)
Ostrowski said his appeal will follow a different route. He plans to appeal to the New York State Supreme Court Appellate Division Fourth Department in Rochester. From there, the case could advance to the New York Court of Appeals and perhaps ultimately the U.S. Supreme Court. He hopes to have the SAFE Act declared unconstitutional, and thus, have Mokhiber’s case dismissed.
“We’re going to appeal it as high as we can,” Ostrowski said. “We’re going to look at everything.”
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