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Friday, November 21, 2014 at 5:19 pm

Jury finds Dashawn Butler guilty on all three counts

post by Howard B. Owens in batavia, crime

It took a jury only a couple of hours of deliberation to decide that Dashawn Butler is guilty of criminal use of a firearm, 2nd, criminal possession of a weapon, 2nd, and attempted assault, 1st.

Following the verdict, which came at the end of the second day of Butler's trial, Judge Robert C. Noonan ordered Butler held without bail until he's sentenced at 10 a.m., Dec. 22.

He faces up to 15 years in state prison.

Before he was taken to jail, he collected his personal belongings he had with him -- an iPhone, a necklace of beads and a cross and his black-and-white plaid shirt -- and had a deputy hand them over to his girlfriend, who wept while she waited.

The conviction stems from shots fired incident Sept. 27, 2013, at 117 State St., Batavia.

The case was wrapped up with closing arguments just before 2:30 p.m. Noonan spent about an hour reading jury instructions and then sent the jury into a private room for deliberations.

The jury sent out notes twice with questions and then announced it had arrived at a verdict shortly before 5 p.m.

Today's proceedings included testimony from a witness who is a firearms expert and one defense witness, whose testimony was meant to suggest that Butler's intended victim, Kelly Rhim, came to State Street that night expecting trouble.

Defense Attorney Thomas Burns tried to establish during the trial that without physical evidence that there was a gun, shots were fired, and Butler fired the gun, there was more than reasonable doubt that his client was guilty.

Before closing arguments, Burns made a motion to have the charges dismissed based on the insufficiency, as he sees it, of the prosecution's evidence.

Noonan has yet to rule on that motion. He said he will issue a ruling before Butler is sentenced. It's technically possible that Noonan could still throw out the charges, thereby overturning the jury's verdict.

District Attorney Lawrence Friedman takes a different view, of course, of the evidence.

It's beyond a doubt, but not just a reasonable doubt, Friedman told jurors during his summation that the defendant is guilty as charged.

"This defendant possessed a loaded firearm," Friedman said. "That's what the evidence points to and that's what all of the evidence establishes. He pointed it at Kelly Rhim and he intended to shoot Kelly Rhim."

Where Burns called into question Rhim's character, Friedman said Rhim's testimony wasn't even necessary for the jury to return a guilty verdict.

Burns listed off Rhim's long criminal history, his alleged failure to pay child support, his keen taste for marijuana and the inconsistencies in his story and said his version of events weren't trustworthy.

"Would you trust the word of Kelly Rhim knowing what you know now?" Burns asked. "Would you rely on his honesty if it effected the safety and security of your family?"

Friedman didn't try to boost Rhim's credibility. Rather, he told jurors that Rhim's testimony wasn't necessary to establish that Butler possessed a loaded firearm.

"The defense wants to make all of this about Kelly Rhim," Friedman said. "This case is not about Kelly Rhim. It's about Dashawn Butler. To focus entirely on Kelly Rhim and his credibility is ignoring the fact that the most important witness in this case is Traci Leubner."

It was Leubner's testimony that put a revolver in Butler's hand, Friedman said. It was Leubner's account that demonstrated that Butler expected to shoot Rhim and was surprised when all of his shots missed.

Her statements, Friedman said, were corroborated by the other witnesses, even without Rhim's testimony.

Leubner, a former girlfriend of Butler's, is the witness who refused to testify yesterday for fear of her own safety, and, instead, her grand jury testimony was read for the jury.

Burns was unsuccessful in an attempt yesterday to get a sworn statement from Leubner introduced into the record as well, because there are some possible inconsistencies in the two stories presented by Leubner.

The issue of physical evidence, or the lack of it, loomed large in today's proceedings.

Steve Padin, a firearms instructor at the Erie County Police Academy, and 25-year veteran of Buffalo PD, testified for the prosecution about how and why a person firing a handgun could not only miss his intended target, but also completely miss anything else.

Without the gun, there's no way of knowing with 100-percent certainty whether the weapon fired was a revolver, a semi-automatic or an automatic. 

If it were a revolver, Padin testified, it wouldn't automatically eject shell casings, so no casings would be found at the scene.

The smallest caliber handgun most commonly available is a .22.  

A slug fired from a .22 handgun, if it hits no object, will travel more than a mile before losing speed and dropping to the ground.

Burns told jurors that if Butler approached Rhim from the angle suggested by witnesses, then there should have been bullet holes in the wall of 117 State St., if not, then another object nearby.

Friedman argued that Butler would have been firing in a direction that would have sent bullets north on State Street, with the possibility of there being no objects to hit. The slugs would never be found in that case.

Or if the slugs hit a sidewalk, they could have disintegrated or flown off in who knows what direction; and if they hit dirt, they would be nearly impossible to find.

Padin also testified that it would be quite easy for an inexperienced shooter to miss a person standing even just 10 feet away while firing a handgun.

While Rhim testified he was surprised he wasn't hit by a bullet, Padin wasn't surprised at all.

The quality and design of the gun can effect its accuracy, while environmental factors from wind to light can effect a shooter's accuracy. But more importantly, a shooter's ability or inability to keep the weapon pointed at its target while under stress or excitement can easily cause the shooter to miss.

Padin brought a demonstration device. It looks like a pistol but only fires a laser beam. It's used with students to show them how these factors impact accuracy.

Inexperienced shooters, he said, tend to anticipate the gun's recoil, so they might jerk it down, up or to one side or the other just before pulling the trigger.

Friedman: "Is it possible to miss a human-size target, even one as close as 10 feet away?"

Padin: "Yes."

Friedman: "Have you seen that happen?"

Padin: "I have, many times."

Which brings us to the question, "Who fired the gun?"

Obviously, the jury concluded that Butler did it.

Burns didn't offer another alternative, but he did open the door for the jury to speculate. Friedman, of course, reminded the jury to stick to the evidence and not speculate.

"When it comes to the question of any weapon in that Cadillac, it's a case of protesting a little too much," Burns said. "He isn't outraged at getting stopped for DWI. He's upset when nine officers stop him because they believe he has a gun in that car. And after he witnessed this terrible experience where he got shot at in a neighborhood he said he went back to protect his family, and he knew he left family on the front porch, he drives to a parking lot near Ri-Dans and smokes marijuana and then goes into the bar to drink with no concern for (his family member), no concern for the children in the neighborhood."

Going to Ri-Dan's "probably isn't what most people would do," Friedman told the jury, "but that isn't an argument that the shooting didn't happen." 

The one witness called by Burns was Angel Ramos, who said Rhim has been a family friend for many years.

Ramos, who made it clear almost as soon as she sat in the witness stand that she didn't want to be there, testified that she was at her mother's house on Hutchins Place when Rhim pulled up in the white Cadillac that night.

Rhim said, according to Ramos, "Are you strapped in? Are you ready for war?"

That, Burns suggested, was an indication that Rhim was looking for trouble on State Street that night.

"There's no evidence that Kelly Rhim ever possessed a gun at any point in his life," Friedman said. "There's no indication that Kelly Rhim committed any crime that night on State Street."

As for the statements attributed to Rhim by Ramos, they really don't mean anything, Friedman told the jurors.

"Even if you assume, just for argument's sake, that this was a warning to expect trouble, that doesn't mean he was going to do anything or that he had a gun. That would be entirely speculative because we have no evidence (to support the suggestion)."

Friday, November 21, 2014 at 3:52 pm

Turkeys still needed for Salvation Army's Holiday Food Baskets

post by Billie Owens in charity, Holidays

Press release:

The Salvation Army of Genesee County is still seeking donations of 10-12 pound turkeys for their Holiday Food Baskets. Turkeys will be given to Genesee County residents as part of a food basket, which contains items to prepare a traditional holiday meal.

Donations of turkeys can be dropped off during normal business hours: Monday through Friday, 9 a.m to 4 p.m., at The Salvation Army on East Main Street. Monetary donations can be mailed to: The Salvation Army 529 E. Main St. Batavia NY 14020 and in the memo write: Banquet in a Box.

For more information contact: Major Patty at 343-6284 or e-mail at [email protected].

Friday, November 21, 2014 at 3:19 pm

Batavia Downs cancels live races tonight and tomorrow night

post by Billie Owens in Batavia Downs, harness racing, sports

Press release:

As a direct result of the relentless snowstorm that has crippled most of Western New York, Batavia Downs has announced that it will forgo live racing for the remainder of the week. The programs that were originally scheduled for tonight (Nov. 21) and Saturday (Nov. 22) have been cancelled.

The decision was made jointly on Thursday by Batavia Downs management and the Western New York Harness Horsemen’s Association (WNYHHA) and both parties agreed it was the only thing to do.

Bruce Tubin, president of the WNYHHA said “In view of the devastating storm that has kept our horses from their daily exercise routine, our trainers from leaving their homes, and our blacksmiths and veterinarians from attending to our horses, I have mutually agreed with Batavia Downs management to cancel our Friday and Saturday race cards. There was physically no way for us to properly prepare our horses to race this weekend.”

Todd Haight, director/GM of live racing at Batavia Downs added “It would have been impossible for the equine athletes to compete at the highest level when most haven't been able to leave the barn for days. The decision to cancel this early takes the pressure off all parties involved.

"Our main goal now is get the barn area cleared of snow and the racetrack in the best possible condition for next Wednesday. We regret having to cancel but it was the right thing to do to make sure we didn’t experience any injuries on or off the track.”

Further concerns cited were about horsemen who ship in from areas that have been devastated by the snow and the changing conditions forecast over the next two days taking the weather from cold and snowy to a rapid meltdown and flooding by the weekend.

In light of these cancellations, pending approval from the New York State Gaming Commission, there will be two double-headers carded on the last two Saturdays of the meet. Nov. 29 and Dec. 6 will now offer two complete cards of racing at 12:15 and 6:35. Live racing at the Downs is scheduled to resume on Wednesday, Nov. 26. That leaves eight cards of live racing over six days.

Please note the new draw schedule. The Friday and Saturday afternoon cards will be drawn on Tuesday. The Saturday night cards will be drawn on Wednesday. And the final two Wednesday’s will be drawn on Friday, as always. The box will close at 9 a.m. If you have any questions please contact Race Secretary Joe Zambito at 585-344-6161.

Haight also noted that starting Wednesday, Nov. 26, the purses will increase by 20 percent in an effort to help the horsemen through the cancellations and as they come to the five week winter break at the end of this meet.

Friday, November 21, 2014 at 3:09 pm

Deadline to apply for holiday assistance from Salvation Army extended

post by Billie Owens in christma, Salvation Army

Press release:

The local Salvation Army has extended the deadline to apply for Christmas toys and food. Applications for the Christmas Toys and Food Baskets will be received until Tuesday, Dec. 16 at 3:30 p.m.

“The recent snowstorm has made it very difficult for families and individuals to come into the office and we want to make sure every family and individual has the opportunity to apply," Major Patricia Kurtz said.

Those who wish to apply must bring picture ID, proof of household income, and proof of household expenses. Acceptable forms of documentation are: receipts, bills, bank statements, checkbooks, and letters from the Department of Social Services.

For more information contact: Major Patty at 343-6284 or e-mail at [email protected].

Friday, November 21, 2014 at 1:08 pm

City leaf pickup may be rescheduled

post by Howard B. Owens in batavia, weather

If all had gone according to plan, today would be the last day of leaf pickup in the city, but the recent snow storms have made leaf clean up impossible.

Many residents probably still had leaves on some trees when the first storm hit.

City Manager Jason Molino said if warmer weather and snow melt permits, the city may reschedule a period of leaf pickup around the city, but officials won't be able to make that determination, at the earliest, until after this weekend.

Friday, November 21, 2014 at 1:05 pm

Flood watch statement for the City

post by Howard B. Owens in weather

Press release:

The National Weather Service has issued a Flood Watch for the City of Batavia and Genesee County from Sunday afternoon through Wednesday morning, Nov. 23-26.

Two significant lake effect snow events this week have brought deep snowpack across the area. This snowpack stores a large quantity of water, and a warming trend begins early this weekend. By Saturday afternoon, air temperatures will remain above freezing through Tuesday night. Daytime highs will rise to near 50 F degrees on Sunday and near 60 F degrees on Monday.

At first the snowpack is expected to absorb much of the water from the snow melt. However as the snowpack ripens, and with the addition of a half inch of rainfall expected Sunday night and Monday, the potential for flooding will rapidly increase.

Recommended precautions/preparedness actions for Batavia residents:

• Monitor forecasts for the latest alerts;
• Make sure sump pumps are turned on and are functioning;
• For those living in low-lying areas or near areas prone to flooding, move the items in your basement up off the floor;
• Don't drive in standing water or flooded streets;
• Do not drive beyond barricades that indicate a street is closed;
• Please help the City keep the storm drains free from debris. Many leaves were in the streets awaiting pick up prior to the snow storm. As the snow melts, these leaves will move toward storm drains and block drainage capability. THIS WILL CAUSE STREET FLOODING. City workers will be out clearing drains throughout the melting period, and the CITY IS ASKING ALL RESIDENTS TO rake leaves and debris away from the storm drains throughout the melting period. Please help neighbors who are out of town or unable to perform this task;
• In an emergency, call 9-1-1.

Friday, November 21, 2014 at 12:59 pm

Flooding safety message from the Office of Emergency Management

post by Howard B. Owens in weather

Press release:

Following two significant snow events this week, the National Weather Service is predicting a warming trend over the weekend and into early next week that will result in major water runoff as the snowpack melts.

FLOODING

Flooding can be expected in flood-prone areas. Based on rising temperatures the resulting water run off can be expected to be between four to six inches. Basement flooding will likely occur including some areas that have not previously experienced such flooding. It is recommended that you consider moving items stored in basements to higher levels to prevent water damage.

Be alert for water in underpasses that can collect as storm sewers reach capacity. Do not drive through any standing water on roadways as vehicles may become stalled in high water, leaving the operator and passengers stranded. Also be careful if you must walk through flooded areas. As little as six inches of moving water can result in a fall.

COLLAPSE DANGER

Heavy snow pack on building roofs presents the danger of roof collapse. If you hear strange noises such as creaks and groans in your home, it is recommended that you leave the building for a safe location and notify 9-1-1. Do not enter property you suspect may be in danger of collapse. Property owners should be vigilant of the snow load and if practical, efforts should be made to remove excessive snow from building roofs to reduce the weight.

STORM-RELATED HEALTH ISSUES

Throughout this snow and flooding event, it is important to not overexert. The snowpack is heavy with accumulated water and difficult to remove even with power equipment such as a snow blower. Older people particularly should consider a snow removal contractor to clean driveways and assist with removing snow from heavily loaded roofs.

Check exhausts from furnaces, hot water tanks and other fuel burning appliances to be sure they are clear of snow or other blockage. When blocked, carbon monoxide fumes can back up into dwellings resulting in the danger of carbon monoxide poisoning. Remember carbon monoxide is a colorless and odorless gas. 

If you exhibit symptoms of carbon monoxide poisoning such as headache, dizziness, nausea, flu-like symptoms or fatigue, impaired judgment, chest pains or confusion, dial 9-1-1 immediately for assistance.

Friday, November 21, 2014 at 12:11 pm

The Weekend Lineup: 11.21.2014

post by Paul Draper III in entertainment, lineup, music, weekend

Friday, November 21, 2014 at 12:04 pm

City schools asking district parents to complete online survey

post by Howard B. Owens in batavia, City Schools, education, schools

Press release:

The Batavia City School District is dedicated to providing all students with the educational foundation necessary to succeed in school and in life. To ensure your child's success, we have set high standards that are reflected in what is taught in our classrooms.

We would like to get your feedback about our district. We will use the information provided by all stakeholders in future plans and are asking you to complete the Family Engagement Survey by November 30, 2014. We want to hear your voice regarding Batavia's educational program. Please complete the survey at the link below:

https://www.surveymonkey.com/s/8XV7LLC

Your input is valued and we thank you for taking time to share your thoughts, ideas and aspirations for the Batavia City School District.

Friday, November 21, 2014 at 8:37 am

Travel advisory lifted

post by Howard B. Owens in weather

Press release:

Effective immediately, the Genesee County Sheriff’s Office is lifting the Travel Advisory for the towns of Darien, Alexander, Bethany and Pavilion.

At this time, there are no travel advisories or travel bans in Genesee County.

Thursday, November 20, 2014 at 11:24 pm

During storm, dispatchers handle three times the usual call volume

post by Howard B. Owens in genesee county emergency dispatch center

A segment from The Batavian's news partner 13WHAM focuses on the high call volume to the Genesee County Emergency Dispatch Center over the past couple of days.

On average the dispatch center receives 575 calls in a 24-hour period. Those numbers nearly tripled during Tuesday's snow storm to 1,550 calls.

On Thursday, they received nearly a day's worth of calls in half the time. Senior Emergency Services Dispatcher Jason Holman said:

"We dealt with a lot of vehicles off the road, vehicles that were stuck, motorists who were stranded in their vehicles. So the snow has caused a hazard to the folks out there.

"...The increase in mental stress, mental fatigue is something that we're working with and through, and like I said, we're more than capable of doing that and happy to do our part."

Thursday, November 20, 2014 at 11:18 pm

National Weather Service warns of flooding Monday

post by Howard B. Owens in weather

From the National Weather Service:

...FLOODING POSSIBLE EARLY NEXT WEEK... TWO SIGNIFICANT LAKE EFFECT SNOW EVENTS THIS WEEK HAVE BROUGHT A VERY DEEP SNOWPACK ACROSS PORTIONS OF WESTERN NEW YORK. THIS SNOWPACK NOW STORES A LARGE QUANTITY OF WATER. AFTER THE LAKE EFFECT SNOW ENDS...A WARMING TREND IS EXPECTED TO START EARLY THIS WEEKEND. BY SATURDAY AFTERNOON AIR TEMPERATURES WILL REMAIN ABOVE FREEZING THROUGH TUESDAY NIGHT. DAYTIME HIGHS WILL RISE TO NEAR 50 F DEGREES ON SUNDAY...AND NEAR 60 F DEGREES ON MONDAY. IN ADDITION TO THE WARMING AIR TEMPERATURES...A SOUTHERLY BREEZE AND RISING DEW POINTS WILL MAKE FOR A MORE EFFICIENT MELTING OF THE SNOWPACK.

AT FIRST THE SNOWPACK WILL ABSORB MUCH OF THE WATER FROM THE SNOW MELT. HOWEVER AS THE SNOWPACK RIPENS...AND WITH THE ADDITION OF A HALF INCH OR SO OF RAINFALL SUNDAY NIGHT AND MONDAY...THE POTENTIAL FOR FLOODING WILL RAPIDLY INCREASE.

PEOPLE LIVING IN AREAS PRONE TO FLOODING...AND WHERE SIGNIFICANT AMOUNTS OF SNOW FELL SHOULD TAKE TIME IN ADVANCE OF THE WARMING TO PREPARE FOR THE POTENTIAL FOR SIGNIFICANT FLOODING EARLY NEXT WEEK. IN ADDITION TO CREEKS AND SMALL STREAMS FLOODING THEIR BANKS...WIDESPREAD FLOODING IS POSSIBLE ACROSS TOWNS WHERE SEVERAL FEET OF SNOW FELL.

...FLOOD WATCH IN EFFECT FROM SUNDAY AFTERNOON THROUGH WEDNESDAY MORNING...

THE NATIONAL WEATHER SERVICE IN BUFFALO HAS ISSUED A

* FLOOD WATCH FOR A PORTION OF WESTERN NEW YORK...INCLUDING THE FOLLOWING COUNTIES...GENESEE...NORTHERN ERIE...SOUTHERN ERIE AND WYOMING. THIS ESPECIALLY INCLUDES THE BUFFALO METRO AREA.

* FROM SUNDAY AFTERNOON THROUGH WEDNESDAY MORNING.

* SNOW MELT FROM THE RECENT SIGNIFICANT LAKE EFFECT SNOW EVENTS COMBINED WITH RAINFALL EARLY NEXT WEEK WILL BRING THE POTENTIAL FOR FLOODING.

* SMALLER STREAMS AND CREEKS WILL BE PRONE TO FLOODING FROM SNOW MELT. THIS WILL INCLUDE THE CREEKS THAT FLOW THROUGH THE BUFFALO METRO AREA. TOWNS THAT RECEIVED SIGNIFICANT AMOUNTS OF SNOW WILL ALSO HAVE POTENTIAL FOR URBAN FLOODING FROM THE SNOW MELT.

PRECAUTIONARY/PREPAREDNESS ACTIONS...

A FLOOD WATCH MEANS THERE IS A POTENTIAL FOR FLOODING BASED ON CURRENT FORECASTS. YOU SHOULD MONITOR LATER FORECASTS AND BE ALERT FOR POSSIBLE FLOOD WARNINGS. THOSE LIVING IN AREAS PRONE TO FLOODING SHOULD BE PREPARED TO TAKE ACTION SHOULD FLOODING DEVELOP. STAY TUNED TO WEATHER RADIO OR OTHER RADIO AND TV STATIONS FOR FURTHER DETAILS OR UPDATES.

Thursday, November 20, 2014 at 11:14 pm

Readers share weather photos and even a new song lyric

post by Howard B. Owens in batavia, Le Roy, weather

Bernie Thompson and Steve Ognibene face off in a Southside snow blower battle. (Submitted by Steve Ognibene)

Below are some pictures from Le Roy from Rob Radley.

Finally, with perhaps too much time on his hands while snowed in, Bob Trombley rewrote the lyrics to Simon and Garfunkel's "America."

Let us be Eskimos, we'll build our igloos together/ I've got some hand warmers here in my bag.

So we bought pack of rock salt and tops store made pies and walked off to look for Batavia. "Snovember" I said, as we snowboarded along the way in Oakfield, Corfu seems like a dream to me now.

It took me 4 days to clear off my windshield "I've come to look for Batavia."

Laughing in our igloos, playing games with the muckdogs, she said the man in the snow suit was a good guy.

I said "be careful, his snow plow is really buried."

"Toss me a shovel, I think there's one on my front step." We broke the last one an hour ago."

So I looked at the scenery, she read her magazine; and the snow fell over an open field. "Kathy, they're lost" I said as the news trucks were live streaming. "Facebook and Twitter are hashtagging silly snow names and I don't know why."

Counting the cars on the New York State Thruway, they've all come to look for Batavia, all come to look for Batavia, all come to look for Batavia.

Thursday, November 20, 2014 at 11:04 pm

More photos of snow and snow removal in Batavia

post by Howard B. Owens in batavia, weather

Local photographer Steve Ognibene shared these pictures with of some snow scenes in Batavia today.

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