SYRACUSE, N.Y. — Two brothers accused of attempting to claim $5 million from the state lottery office with a stolen scratch-off ticket will waive their right to a jury trial, according to attorneys.
(See NY brothers charged in plot to steal $5M New York Lottery ticket, Lottery Post, Nov. 14, 2012.)
Andy Ashkar, 34, and Nayel Ashkar, 36, will opt on Monday to have County Court Judge Joseph Fahey decide their innocence or guilt, said defense attorney Robert Tisdell.
Tisdell, who is representing Nayel Ashkar, said he felt the judge would give his client "a fair shot."
"Fairer than with a jury in this particular case," he added.
He said media reports had prejudiced the public against his client. He also said he didn't believe prosecutors would be able to meet their burden of proof and that the trial will come down to "very clear legal questions for the judge to decide."
The judge ruled last week to dismiss attempted grand larceny charges against the pair, citing the state statute of limitations for felony prosecution. The ticket was allegedly stolen by Andy Ashkar from a customer at his father's convenience store on Oct. 27, 2006. Andy Ashkar is accused of telling the customer the ticket was worth $5,000 and paying him $4,000, keeping $1,000 for the store.
Six years later, the brothers took the ticket to the lottery office to claim the $ 5 million.
Nayel and Andy Ashkar are both charged with fourth-degree conspiracy, a Class E felony. Andy Ashkar faces an additional Class B felony charge of first degree criminal possession of stolen property. The brothers' father, Nayef Ashkar, has also been charged with conspiracy, but his trial date has been set for September.
The maximum penalty on the conspiracy charge is 1 1/3 to four years in prison. The minimum is conditional discharge or probation. The Class B felony Andy Ashkar faces calls for a minimum sentence of 1 to 3 years in prison and a maximum of 8 1/3 to 25 years if convicted.
Defense attorney Robert Durr, who is representing Andy Ashkar, said he believes waiving the jury will behoove his client because the case is riddled with legal complexities, such as the actual value of the scratch-off ticket.
"I feel much better having it in the hands of someone who is trained legally, who knows the law and knows how to apply the law," he said. "Everything is going to be based upon the facts and not on emotion. Juries tend to work on emotion, and everybody on a jury in this case would have a predisposition."
Assistant District Attorney Beth Van Doren said a non-jury trial will change "very little as far as the prosecution is concerned."
"We will still present the same amount of evidence to prove each and every element of the crime," she said.
However, Van Doren added that the trial will likely proceed at a quickened pace and might end two days after it begins next week.
Thanks to kapla for the tip.