Defendant Acquitted of Assault Charges

Modified: April 15, 2015 8:35am

2/26/2015

Erie County District Attorney Frank A. Sedita III announces that 30 year-old Marshawn Levy, a previously convicted felon, was acquitted of two counts of Assault in the 1st Degree after a jury trial before State Supreme Court Justice Penny M. Wolfgang. 

On August 10, 2013 on Freund Street in the City of Buffalo, Levy allegedly fired shots at a man with whom he had just fought, striking that man’s 21 year-old sister. One bullet fractured the victim’s heel bone, resulting in a permanent and debilitating injury to her. Three months later, the victim cooperated with the police and made a sworn statement identifying Lynch as her assailant. Levy was thereafter arrested and charged.

The victim initially refused to testify in the grand jury, claiming she did not care about the case. Instead of permitting a convicted felon and alleged gun-toting thug to get away with a violent crime, the Erie County District Attorney’s Office secured a material witness warrant compelling the victim’s appearance and cooperation before the grand jury. Based upon the victim’s testimony, as well as that of other corroborating witnesses, an indictment was returned, alleging two counts of 1st degree assault.

At trial, the victim once again expressed her reluctance to testify as well as her anger at the prosecutor calling her to do so. Once on the witness stand, the victim claimed someone other than the Levy shot her, despite the fact that she had identified him as the shooter in a sworn statement and in her sworn grand jury testimony. In addition to establishing that the victim had twice identified Levy, the prosecution called an eyewitness who also identified Levy as the assailant. Another witness, who did not see the actual shooting, testified she saw Levy wielding a gun at the crime scene seconds after shots rang out.

The jury acquitted Levy. One juror, who agreed to discuss the verdict, cited the fact that the gun was not recovered -- the defendant fled the crime scene and wasn’t arrested until three months after the crime -- as an important factor in the jury’s verdict.  

Despite the victim’s disinterest and hostility, as well as the lack of physical and forensic evidence, the Erie County District Attorney’s Office took the case to trial. As was emphasized in the District Attorney’s February 19, 2015 press release (see attached copy) regarding the recent conviction of Ronald Hough, Jr. for Attempted Murder, this case again undermines the ignorant claims (often made under the cover of anonymity) of those who allege that a case will not be prosecuted unless it is a so-called “slam dunk.”

DA Sedita stated: “This case, although resulting in a rare acquittal, once again demonstrates that the Erie County District Attorney’s Office aggressively prosecutes indicted criminals, especially when a violent felony is committed. Although we are disappointed with the result, we will continue to aggressively prosecute cases when, in our judgment, they are sufficiently supported by credible and admissible evidence.”