By Lee Colman
The Daily Gazette
SARATOGA SPRINGS, N.Y. — The father of the boy accidentally killed three days before Christmas in 2010 said Thursday he wanted the man who owned the handgun that killed his son to spend a year in jail.
It didn’t turn out that way.
Edward O’Rourke Jr., 58, formerly of Birchwood Drive in Wilton, pleaded guilty to a misdemeanor charge of endangering the welfare of a child Thursday but was not sentenced to any jail time by Saratoga Springs City Judge Jeffrey Wait.
Instead, O’Rourke agreed to forfeit his handgun and all other firearms along with his handgun license. He was also charged $250 in court fees and ordered to provide a DNA sample for the state database.
The Wilton man left his 9mm Ruger handgun and ammunition where his son and a son’s friend found it on Dec. 22, 2010 -- under clothing in a bedroom dresser drawer. His son, then 12, and Nicholas Naumkin, a friend visiting the son, were alone that afternoon in the Birchwood Drive home.
O’Rourke’s son, whom the Daily Gazette will not name, was playing with the gun when it fired accidentally, hitting Naumkin in the head. The Naumkin boy, also 12, a Wilton resident, died at Albany Medical Center Hospital that night.
“I am asking you to impose the maximum sentence, even if only for a year,” Yuri Naumkin said, reading his statement in City Court. Oksana Naumkin, Nicholas’s mother, sat nearby, in tears at times.
Yuri Naumkin said O’Rourke was irresponsible for leaving his handgun where it could be found. “Irresponsible people should not own guns,” he said.
“Mr. O’Rourke never showed any kind of remorse for his action. He never apologized,” Naumkin said.
The Naumkins also maintain that their son did not handle the gun along with his friend, as police reports indicate. Yuri Naumkin said subsequent investigation showed that Nicholas had no involvement in handling the handgun. He has said previously that police told him that only one set of fingerprints was found on the gun.
The case was first heard in Wilton Town Court but transferred to Saratoga Springs City Court because the Wilton justices recused themselves. The case has been in the courts for more than a year.
O’Rourke, a Marine Corps veteran honorably discharged in 1971 and an employee of a truck leasing company, sat quietly in the courtroom next to his attorney, Jeffrey Bagnoli of Mechanicville. He said little other than “Yes, your honor,” when asked if he was pleading guilty to the charge. Bagnoli said in court papers that “O’Rourke’s life has been in turmoil” since the Naumkin death. He and his wife have separated and their house is up for sale, he said.
Deal reached
Judge Wait said that the Saratoga County District Attorney’s Office and Bagnoli reached an agreement that O’Rourke would plead guilty to the endangering charge with the condition that he not serve any jail time.
The maximum sentence on such a charge is one year in county jail.
Wait explained he read Naumkin’s impact statement and found it “very compelling.” But he said without the plea deal, the case would have gone to trial in City Court. The outcome of such a trial could be acquittal. But even if a jury convicted him, O’Rourke could appeal and the verdict could be overturned.
“If I were to insist on a period of incarceration, we would have a jury trial,” Wait said. He said this would mean the Naumkin family and the O’Rourke family would have to sit through hours of testimony, again recalling “every single horrible detail.”
Bagnoli said O’Rourke has already forfeited his firearms and his handgun license.
He said O’Rourke was “averse to having his son testify” in a trial. “He wants it behind him,” he said.
Saratoga County District Attorney James A. Murphy III said, “Endangering the welfare of a child is the highest crime that could have been charged against the defendant for leaving the gun and the ammunition in close proximity in a bedroom, while his son and the Naumkin boy were home alone.”
“While the child of O’Rourke cannot be charged in criminal court, his case did go to family court for disposition,” Murphy said.
Son’s admission
The son admitted in Saratoga County Family Court that he shot his friend by accident while playing with the gun. The boy, now 13, admitted last summer to a misdemeanor-level count of reckless endangerment and unlawful possession of a firearm by a person under 16. He was sentenced to two years probation and ordered to undergo counseling.
Assistant District Attorney Debra Kaelin, who prosecuted the case, said her office would not accept anything but a guilty plea to the charge, an “admission of responsibility.”
Murphy said in a statement, “We felt it was important that Mr. O’Rourke plead guilty in recognition that a young boy died as a result of his conduct and to send a message that guns in the wrong hands are deadly.”
The Naumkin family has filed a wrongful death civil lawsuit against O’Rourke and his son in state Supreme Court in Saratoga County. The civil case alleges that the boy and his father “recklessly and/or carelessly and without justification caused the death” of Nicholas Naumkin.
The reasons listed for the lawsuit are death of a son, the pain and suffering of the parents and the recovery of damages, although no money figure was mentioned in papers filed late last year in state Supreme Court.
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