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Veteran ‘frustrated’ with felony gun plea but gets rare chance for dismissal

Judge's gavel in a courtroom, stack of law books. (wp paarz/Flickr)

Timothy A. Payne sent a scare through North Tonawanda City Hall in June, and when police discovered an unregistered handgun in his van in the parking lot, he was arrested and charged with a felony.

Payne, 37, who lost both his legs as an Army sergeant in a 2011 bomb blast in Afghanistan, pleaded guilty Thursday to criminal possession of a firearm, a felony carrying a maximum four-year prison sentence.

“The whole aspect of being labeled a criminal for possessing a firearm is frustrating,” Payne told Niagara County Judge Sara Sheldon.

But Sheldon told him her court is “the right place for you, though you may not know it yet.”

In the county’s Veterans Court, former military members who have committed crimes can obtain treatment for substance abuse or mental health problems.

“All I care about is, our veterans must be clean and sober and safe,” Sheldon said.

She told Payne that in the six years of her court’s existence, 61 veterans have successfully completed substance abuse or mental treatment, and “more than 95% have not reoffended.”

Normally, those who plead guilty in Veterans Court are offered a reduction to a misdemeanor charge and are not sentenced to jail if they succeed in treatment.

In Payne’s case, Assistant District Attorney Peter M. Wydysh offered a dismissal of the felony charge.

“Peter’s never offered that before,” Sheldon told Payne.

“Mr. Payne’s been through more than I’ll ever know. He’s served our country magnificently,” Wydysh said in an interview.

He said the plea offer was approved in advance by District Attorney Caroline A. Wojtaszek and the North Tonawanda Police Department.

The handgun was legal under North Carolina law, where Payne had lived, but not in New York. Sheldon said Payne is not the first defendant from out of state to face that situation in her court.

If Payne does not successfully complete his court-supervised mental health treatment program, he faces four years in prison.

The judge was optimistic he could avoid that.

“I see wonderful things in your future,” Sheldon told Payne. “Something is just a little bit off kilter. We need to figure that out.”

The wheelchair-bound Payne was arrested after visiting several City Hall offices, including that of Mayor Arthur G. Pappas. A police officer who questioned him thought he “needed some kind of evaluation,” Police Chief Roger R. Zgolak said at the time.

Inside the specially modified van that Payne had driven from his home in North Carolina, police found a Sig Sauer pistol and ammunition, plus an object they initially thought might be a pipe bomb, although it turned out to be harmless hitch lock.

“Mr. Payne does have some trust issues,” defense attorney Michael Zosh said.

He said Payne, an Amherst native and Williamsville North High School graduate, particularly distrusts some of his relatives and wanted to make sure they didn’t get their hands on his VA benefits.

Payne claimed in court that his VA benefits had been “frauded” while in the VA Medical Center following his arrest, and he said he wanted an independent evaluation of his mental health.

“In 33 days (in the VA Medical Center) I had six mental health diagnoses,” Payne said in court. “If I have a mental health issue, it’s because the Army trained me with the seven core Army values.”

Those values, according to the Army website, are loyalty, duty, respect, selfless service, honor, integrity and personal courage.

Sheldon said she had a particular residential facility in mind for Payne, although it has a waiting list for admission.

“He needs to go to the top of the list, in my humble opinion,” the judge said.

For the past two weeks, Payne has been living with some friends in the Town of Lockport.

“I’m an emotional person,” Payne said.

“I can’t even imagine what you’ve been through,” Sheldon replied. But she urged him to “try real hard and capitulate to the experts.”

Payne said he has been prescribed medical marijuana for pain management. Sheldon said she will allow him to keep taking that, although most treatment courts don’t permit its use. He also takes the mental health drug Adderall.

“You’ve got the prosecutor and the court rooting for you. So don’t screw it up,” Sheldon told Payne.


© 2019 The Buffalo News