The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
Following the defendant's conviction for a violation of 18 U.S.C. § 922(a)(6) and § 2 (aiding and abetting in the unlawful making of a false statement in conjunction with the unlawful acquisition of a firearm), the defendant was sentenced by Hon. John T. Elfvin to a term of incarceration of 57 months, to be followed by 3 years of supervised release. A judgment was entered on January 26, 2000.
The defendant's supervised release initially commenced on December 12, 2002. On September 22, 2005, the defendant pleaded guilty to violating the terms of his supervised release by failing to notify the probation officer that he had been arrested for menacing and possession of a criminal weapon in the fourth degree. On October 21, 2005, Judge Elfvin sentenced the defendant to time served followed by two years of supervised release. A judgment was entered on October 28, 2005, and included the following conditions of supervised release:
The defendant shall not commit another federal, state or local crime. The defendant shall not possess a firearm, destructive device, or any other dangerous weapon.
On August 27, 2007, the United States Probation Office filed an Amended Petition against the defendant charging him with violating the terms of his supervised release by committing state law crimes. Specifically, the petition alleged that the defendant had violated: NYS Penal Law § 120.05(1) (assault with the intent to cause serious physical injury) (Charge 1); NYS Penal Law § 120.05(2) (assault with an intent to cause physical injury by means of a deadly weapon or dangerous instrument) (Charge 2); and NYS Penal Law § 265.01(2) (criminal possession of a weapon in the fourth degree) (Charge 3). The petition also charged the defendant with violating the term of supervised release prohibiting him from possessing a dangerous weapon while on release (Charge 4).
A supervised release hearing was held on August 28, 2007 and September 12, 2007. The government presented four witnesses at the hearing: Eric Kavulak, Don Starr, Lt. Shawn O'Brien, and U.S. Probation Officer Brian Burns. The defendant did not testify or present any witnesses.
For the reasons stated, the Court finds the defendant guilty of Charges 1, 2, 3 and 4 of the Amended Petition by a preponderance of the evidence.
The following constitutes the Court's findings of fact based upon the testimony presented at the hearing. On the evening of July 14, 2007, witness Eric Kavulak was working as a doorman checking identification at a downtown Buffalo bar called "Liar's." His friend, Jeff Angle, was working as a bouncer at a bar next door called "Big Shots." At approximately 3:45 a.m., Kavulak saw five African American males exit a sport utility vehicle (SUV) and approach Big Shots. The defendant, Rasheen Alston, was one of those five men. There was a heated exchange of words between Angle and the five men. The argument escalated and several men in the defendant's group, including the defendant himself, threatened to assault Angle. Kavulak rushed over to intervene and assist Angle. Kavulak shoved the defendant forcing the defendant to move backward several feet. The defendant did not lose his balance or fall to the ground. Other than the shove by Kavulak, there is no evidence that argument had become physical at that point or that any punches had been thrown.
After being shoved, the defendant rushed back toward Kavulak with a closed fist. Kavulak braced himself for what he believed would be a punch to his lower abdomen. Unbeknownst to Kavulak, the defendant had a knife in his fist and thrust it into the back of Kavulak's lower torso area. Kavulak felt that his shirt was wet and realized that he was bleeding heavily. He then saw a knife with a 3 to 4 inch blade in the defendant's right hand. Kavulak yelled "I've been stuck."
The knife used by the defendant was not a switchblade or gravity knife and required the defendant to pull the blade out of its holder manually. The Court finds that the defendant had already pulled out the blade before he was shoved by Kavulak. This finding is based upon Kavulak's testimony that he did not see the defendant pull the knife or the blade out before being stabbed, and based upon the testimony indicating that the defendant reacted to the shove by stabbing Kavulak almost instantaneously. In short, the Court finds that the defendant had the knife in hand, with its blade extended, while threatening to assault Angle.
Upon hearing Kavulak yell, another person at the scene, Don Starr, intervened. Starr approached the defendant purportedly in an effort to disarm him and the defendant slashed Starr's hand.
Several Buffalo police officers arrived to break up the altercation, including Lt. O'Brian. Upon seeing the police, Kavulak and Starr saw the defendant go over to the SUV and drop the knife behind the SUV's tire. Lt. O'Brian also observed the defendant attempt to hide the knife behind the vehicle's tire. Buffalo police officers confiscated the knife and placed the defendant under arrest. No one else was arrested and no other weapons were found. Lt. O'Brian did not observe any cuts or bruises on the defendant. Other than the shove by Kavulak, there was no evidence that the defendant was assaulted or injured in any manner.
Kavulak was rushed to Erie County Medical Center (ECMC) by ambulance. Upon arriving, he was immediately sedated and given intravenous fluids while the hospital staff performed an emergency ultrasound to determine the extent of his injury. Doctors determined that the wound was approximately three inches deep and the defendant was given several staples to close the wound. According ...