The Homer Boys Toy Gun case

To begin with, Mark says this: "
I had the privilege of representing one of these boys, and I can say that this was one of the most mean-spirited and over-charged prosecutions I've ever seen anywhere. I can't imagine what Dave was thinking when he permitted this case to go forward as it did, and when he himself took the positions in the case that he personally did. I'm thankful that we were able to prevent his office from inflicting any further harm on these boys, who are now doing very well at college, and not having any difficulties with the law. I'm thankful that we had two judges who exercised sound legal judgment and common sense. It's too bad Dave didn't do the same."

In May 2006, two Homer High School juniors took an air-soft toy gun to school grounds, and pinged their friends in the spirit of youthful exuberance. Although an ill-advised prank, the boys caused no injuries or alarm. These were student athletes from solid families, who were engaged in their school community and had no prior criminal convictions.

They were arrested and indicted by the current DA's office for felony assault. If convicted, they were threatened with state prison sentences of up to 14 years.

They were punished with school suspensions of over three months, and barred from playing school sports.

Still, the DA's office pressed on with the violent felony prosecutions.

Subsequently, the felony indictments were dismissed by the County Court Judge. Mr. Hartnett himself asked the Court to reconsider, and was denied.
Still, the DA's office pressed on with the case. These children were re-arrested on new charges, and humiliated by being arrested in school in front of their classmates on the Friday before Christmas 2006.

Those charges were also dismissed, by the Homer Town Court.

Still, the DA's office pressed on with the case. They appealed the dismissal, and lost again. In addition, the appeal was filed late, beyond the legal deadline.

It was Mark Suben's privilege to represent one of these children, who is now a Dean's List student at Erie Community College. If the current DA's office had the ability to follow through on its threats, he would presently be in state prison.

Remarkably, Mr. Hartnett has disclaimed responsibility for this prosecution, placing the blame on his First Assistant DA. However, Mr. Hartnett's signature appears on many letters and documents related to the case.

MARK SUBEN WOULD have evaluated this case at its very beginning, and determined that it was not a matter that required criminal prosecution. Obviously, there was no criminal intent and no injuries. Certainly, Mark would not have pursued the case after a County Court Judge dismissed it, under the circumstances. And, Mark would never have authorized the arrest of those students in front of their peers, knowing that they had lawyers and responsible parents.