By Dan Hust
MONTICELLO — A hunter who was awaiting retrial for the shooting of another hunter won’t ever have to face those charges for that incident again.
Last week, a state appeals court tossed not only the retrial but the indictment itself, charging that County Court Judge Frank LaBuda improperly ruled the first trial a mistrial and that retrying the case would violate the state and federal prohibition against “double jeopardy” (being tried for the same crime or crimes twice).
Thus Robert Robar, a Long Island hunter, won’t again face trial on second-degree assault and reckless endangerment charges in the shooting of Terry Pelton, who wandered onto Robar’s hunting group’s property in November 2009 in the Town of Lumberland – and was permanently disabled allegedly by an accidental shot from Robar.
In August of last year, a trial commenced in County Court, and arguments were raised about having hunters on the jury. Some potential jurors were dismissed for that reason, but ultimately a jury was seated and the trial commenced.
However, Judge LaBuda soon ruled it a mistrial, reportedly because of “discrimination” against those hunters who were not allowed to sit on the jury.
Neither the defense nor the prosecution wanted a mistrial, though, and the matter was appealed by Robar and his attorney, Jacqueline Ricciani of the Monticello firm Ricciani and Jose LLP, before a retrial could take place.
The appellate judges agreed with Robar and Ricciani’s contentions that LaBuda had overstepped his authority, and the mistrial decision was deemed unnecessary on the grounds that – contrary to LaBuda’s assertion – hunters are not a class entitled in and of themselves to constitutional civil rights protections.
“The fact that hunters may exercise their Second Amendment right – a right certainly not limited to hunters or conferred upon them because they are hunters – does not morph them into a cognizable group for equal protection purposes,” the appellate court wrote in its April 28 decision.
And since the prosecution had already presented its case before LaBuda’s mistrial ruling, the “double jeopardy” rule applies, so Robar cannot be brought back to court on the same charges.