Letter lays out Astacio's strategy on gun charge

(WHAM photo)

Rochester City Court Judge Leticia Astacio is scheduled to return to Henrietta Town Court this week on felony gun charges. In a letter, she says she will fight the charges and outlines how she intends to do that.

The stakes are high. Retired judge and attorney Joseph Valentino says she's risking not only her elected position but her ability to fall back on practicing law. "If she's convicted of this felony charge, she would not only be stricken from the role of judges; she would also be stricken from the roles of attorneys. She cannot practice law if she's convicted of a felony," he told 13WHAM's Jane Flasch.

Police say that on April 2, 2018, Astacio walked into the Dicks Sporting Goods in Henrietta and attempted to buy a Maverick 88 .12 gauge shot gun. An employee's deposition says the "took the gun in both hands" and "looked at it for about ten seconds" then "stated that she wanted to buy that gun." He says it never went any further because she had already been denied a similar purchase in the Greece store earlier that day.

Astacio's probation for violations to her DWI sentence prohibits her from "possessing a firearm."

In a letter to the New York Court of Appeals, her attorney lays out an argument he says Judge Astacio wanted the justices to hear. She said there is no indication that she filled out paperwork - paid - or did anything other than ask questions. "Judge Astacio opines that the case law is clear that in order for someone to be successfully prosecuted...the action in question must be nearly completed," the letter states.

The standard under the law is to come "dangerously close" to actually making the purchase. "This is an argument she will make. In an 'attempt to commit a crime' charge, you have to do more than go into Dicks and say 'I want to buy a gun,'" Valentino said.

In the letter, Astacio argues that the law itself is unclear and says her misdemeanor conviction is not enough to take away her constitutional right to own a weapon. Mark Foti is the attorney representing her on the gun charge. While he said he did not want to argue the case in the media before going into court he did say, "These are all legitimate issues that we will address. There will be others." He said there will not be a plea bargain in the case even though a felony conviction could have dire consequences for his client.

In a separate matter, Judge Astacio has until next week to decide whether she will appeal a ruling by the Judicial Conduct Commission to remove her as a judge. That case is being handled by another attorney who did not return calls for comment.

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