LITTLE VALLEY — A 26-year-old Salamanca man who insisted he defended himself in a December shooting incident in Ellicottville was acquitted Monday of felony assault by a Cattaraugus County Court jury.
The jury in the three-day trial deliberated for 45 minutes before finding Damien Marvin not guilty in the case, which stemmed from a bar altercation that escalated out in the street the night of Dec. 1. Brandon Janesz, 41 at the time of the incident, was critically wounded in the abdomen after he and his brother, according to testimony, pursued Marvin outside the Villagio bar and restaurant on Monroe Street.
Marvin’s attorney, First Assistant Public Defender Benjamin Smith, argued that the defendant feared for his life when the Janesz brothers continued the fight down the street from Villaggio.
“I’m appreciative of the jurors taking a hard look at all of the evidence presented in reaching the proper conclusion that the government had not disproven Mr. Marvin’s self-defense claim,” Smith said in a statement. “While there are no winners in a case like this, Mr. Marvin is thankful for jurors fulfilling their civic duty. (He) is happy to move on with his life and focus his attention on his fiancee and their three children.”
District Attorney Lori Pettit Rieman said Tuesday she was “not necessarily surprised” by the verdict, calling the case “a close call” between justified self-defense and Marvin going too far in using his Glock pistol on an unarmed man in a street fight.
“I would just say we wanted a jury to decide this case,” Rieman said. “And I understand their decision … they believed (Marvin) was in fear for his life. That’s why we have a jury.”
Rieman noted that Marvin had a permit to carry his concealed weapon, he was outnumbered by the Janesz brothers and he had taken the worst in the fight from Brandon Janesz.
The incident started, according to testimony, after one or both of the brothers were talking at the bar with Marvin’s fiancee. A fight ensued and the Villagio manager and employees broke up the incident and made all three men leave.
When Marvin got outside, he walked from Villagio to the intersection of Monroe and Washington streets, but was then chased down by the Janesz brothers, and another fight ensued. It was at this point that Marvin drew his pistol and, after warning Brandon Janesz to stay back, shot him.
New York is not a “Stand Your Ground” law state. In order to use deadly physical force in self-defense, New Yorkers are required to first try to retreat from a threatening situation.
Police arrived soon after the shooting and Marvin was placed under arrest, while Janesz was taken to the intensive care unit at Erie County Medical Center.
The trial was presided over by Judge Ronald D. Ploetz.
Smith, the defense attorney, also credited the work of Mark Cunningham and Phillipe Yates, investigators for the public defender’s office, in the case.