LOCKPORT – Dennis F. Cherry, the Royalton homeowner who fired 15 rounds from an AR-15 rifle into the car of a man who was planning to burglarize his home four years ago, was in Niagara County Court Tuesday trying to have the rifle returned to him.
Assistant Attorney General Richard Friedfertig told County Judge Matthew J. Murphy III that the rifle was an illegal assault weapon under state law as it stood in 2010 and also was used to commit a crime, both reasons why it should be destroyed rather than returned.
Cherry and his attorney, Booker Washington of Lockport, emphasized that Cherry thought he was acting in self-defense when he riddled the intruder’s car with gunfire on Jan. 21, 2010.
Police didn’t agree and charged Cherry, who is now 67, with two felonies, first-degree reckless endangerment and second-degree criminal mischief, along with a misdemeanor, second-degree menacing.
Three months later, District Attorney Michael J. Violante decided to reduce the felonies to misdemeanors, and Cherry received an adjournment in contemplation of dismissal.
Murphy said the result “was not an adjudication of innocence.” He gave the attorneys two weeks to file written arguments before he decides on the return of the rifle or a potential state refund of its “fair market value.” Cherry showed a receipt proving he bought it new for $1,517 at Buffalo Gun Center in 2009.
“The underlying issue is that 15 rounds were fired at the vehicle, some as the vehicle was backing away,” Friedfertig said. “It would seem clear it was not self-defense.”
Cherry said his home had been burglarized two days before the shooting incident, and a .357 Magnum handgun was stolen. On the morning of Jan. 21, he received several calls from someone who kept hanging up, and he concluded that was an effort to determine if he was home.
Cherry parked his car behind the garage and waited with the AR-15 for the burglars.
Murphy, the county’s pistol permit judge, previously held two hearings over the three-year suspension of Cherry’s pistol permit.
“Mr. Cherry confessed to me that he had set up this situation to lure them into the garage,” Murphy said.
“So what am I supposed to do? Let them come back and kill my family?” Cherry asked. He acknowledged he should have called 911, but said he believed the Sheriff’s Office would take too long to respond.
The intruders were Cherry’s stepdaughter, Jenna M. Zsebhazy, and her boyfriend. Anibal R. Cordero, both of whom eventually pleaded guilty to felonies, in Cordero’s case for possession of the stolen .357 Magnum.
The woman exited the car they arrived in and Cherry confronted her, but the car began backing away and Cherry opened fire. Cordero was not hurt.
Cherry said because of a tinted windshield, he didn’t know how many people were in the car.
“All I could see [in my mind] was that .357 they stole two days before,” Cherry said.
Both sides agreed that the AR-15 Cherry used that day would be illegal under the state’s SAFE Act passed last year, but they disagreed on whether it was illegal in 2010.
Friedfertig said it was, charging that the rifle had been modified with a pistol grip and a muzzle or flash suppressor, making it an illegal assault weapon. He acknowledged that Cherry never was charged with criminal possession of a weapon, but said he could have been.
Cherry said he never modified the rifle from its store condition. He said it had a compensator, not a flash suppressor, so it was legal as of 2010.