Residential burglary is a very serious violent felony. I would not be surprised to see a five year prison sentence.
Simmons found guilty of the Park Avenue burglary
Submitted by Julia Ferrini on August 14, 2014 - 9:00pm
Though staunch in his defense of Akeem Simmons, Defense Attorney Thomas Burns failed to create reasonable doubt in the minds of the 12 jurors tasked with hearing the case. Simmons was found guilty today on all three counts for which he was being tried.
The 23-year-old Batavia resident was found guilty of burglary in the first degree, a class B violent felony; criminal use of a firearm in the first degree; and conspiracy in the fourth degree. While Burns made a valiant attempt to poke holes in the prosecution's witness testimonies, the jury was not swayed in his client's favor.
"There is an irony that stands out," Burns said during closing arguments, "when you count the number of law enforcement that (18-year-old Nathaniel) Davis met, even before the trial, that he lied to about the events of that day (January 14, 2014).
"He came in, laid his hand on the Bible and swore to tell the truth and he lied," Burns continued.
Davis is also accused of first-degree burglary, and fourth-degree conspiracy. The Davis case is still pending.
Burns also noted that, according to Davis, there are lies, and then there are justifiable lies.
Reasonable doubt and the lack of quality evidence were the key points in the defense attorney's closing argument. According to the defense, Davis himself admitted to breaking into the home on Park Avenue. Additionally, when Davis was nabbed by police, he was found carrying a loaded gun. Furthermore, Burns painted the investigation by police as somewhat lackadaisical.
"Did you (jury) hear any testimony about the house being searched for evidence?" Burns queried. "It was January in New York; where are the footprints? Was anything observed in the house?"
Burns also pointed out that there was no evidence that linked his client to the gun or the screwdriver used in the crime.
District Attorney Lawrence Friedman countered with a recap of witness testimony. He stated that Simmons was seen with what looked like the grip of a gun, prior to the crime.
The focus of the evidence has been on the flight from the area -- the path that ran along the back of the Park Avenue house to St. Paul's Church, Burns argued. He also stated that police K-9 Pharoah detected a strong scent that led the animal and handler, Deputy Brian Thompson, to the porch where Simmons was hiding.
Burns contended Simmons ran because of his knowledge of a warrant issued against him for a parole violation. Friedman continued reminding the jury that the trial was not about a parole violation, it was about placing Simmons at the scene of the crime and committing burglary.
Conversely, when a search warrant was issued for Davis's phone, investigators found Simmons' number in Davis's list of contacts.
"There were no text messages or calls between Simmons and Davis," Burns said. "There was no communication between them on the phone at all. Not knowing about the phone records is a quality-of-evidence issue."
In the defense's pursuit to rebuke Friedman's witness testimony, Burns questioned a witness account of the events on the day of the burglary. He noted that her initial testimony indicated that only one person entered the Park Avenue home, and she was "pretty sure" they were black and about 5'7" or 5'8". The prosecution recalled the witness after the lunch break, whereupon she recanted her earlier testimony, and stated she saw two men enter and exit the house which is what she said in the call to 9-1-1 on Jan. 14.
Returning to Davis's testimony, Burns stated that even when Davis tried to put Simmons in the house, he still couldn't get his story straight. He contended that Davis said he lied because he was intimidated by Simmons; that he was afraid of what Simmons would do -- thus stated after notes were found where Simmons is said to have written that he "had a man killed in Elmira." The prosecution also made reference to said notes, but stated that Simmons' threat is indicative of consciousness of guilt.
Burns asked the jurors to consider Davis's demeanor on the stand, his lifestyle, his conflicting explanations, and how he justifies his lies; this goes to show a person's moral fiber. Drumming the idea into jurors' heads that Simmons only ran because of the parole warrant and Davis is a "scary pathological liar," he finalized his argument reminding jurors to follow the law as instructed by the court.
"If you have any doubt about Davis," Burns said. "Then you have reasonable doubt about Simmons' guilt.
"You're not being asked if he (Simmons) is a good or bad person or that he violated parole," Burns continued. "You are asked to determine if the district attorney proved beyond a reasonable doubt to my client's innocence."
"Judge (Robert) Noonan will tell you that the verdict is based on evidence, not speculation," Friedman said. "The evidence presented proves this beyond a reasonable doubt."
Speaking of the decision to use Davis's testimony, Friedman enlightened the jurors that a case can not be built solely on an accomplice's testimony -- corroborating evidence is also needed.
"You got that many times over in this case," Friedman said. "Don't get hung up solely on Davis's testimony. Look at all the evidence."
Friedman also refuted the idea that Davis received a deal for his willingness to testify. According to the D.A., they didn't need his testimony to prove the guilt of Simmons.
"Davis lied because he knew Simmons was a gang member," Friedman said. "That's why Davis wasn't willing at first to finger Simmons.
"What does Davis have to gain by testifying against Simmons?" Friedman retorted.
Friedman inferred that if it wasn't enough that Simmons was a gang member and carries a gun, it was also intimidating when threatening notes were passed to Davis in the Genesee County Jail. Conversely, Simmons was said to have given Davis the idea that breaking into the house on Park Avenue was a way to get money because the homeowner was a drug dealer.
"Upon investigation, it was obvious that the homeowner was not selling drugs out of his home as Simmons indicated to Davis," the D.A. said.
The prosecution also questioned Simmons' honesty when he denied knowing Davis, yet Davis had his phone number in the contacts of his cell phone. Furthermore, when Simmons was questioned, he said a "kid" was involved in the burglary, however, police never stated the age of the subject.
Simmons also admitted to wearing the clothes that witnesses said the men leaving the house were wearing, yet when he was found, Deputy Thompson witnessed Simmons pushing similar clothing away from him.
Additionally, Simmons puts himself on the path, going in the direction of the church, on the date and time the crime was committed. He even went so far as telling officers that he "saw two dudes in black running on the path."
"Think of the evidence the police had prior to Davis's testimony," Friedman said. "Using common sense, you (jury) will find that Simmons' innocence was proven wrong, therefore you must return a verdict of guilty."
Simmons is held without bail at the Genesee County Jail. He is scheduled for sentencing Sept.15 at 9:30 a.m..
He will get much more than 5 years burg. 1st, along with the fire arm charge, he'll get 15 years!!!
In the paragraph, which reads, "Simmons also admitted to wearing the clothes that witnesses said the men leaving the house were wearing, yet when he was found, Deputy Burns witnessed Simmons pushing similar clothing away from him.", I would assume you meant Deputy Thompson, not Burns.
Of course, I could be wrong.
OK, Julia. Now it's my turn to apologize.
I didn't notice that the post was yours, and just assumed it was Howard.
So much for MY reading skills! :>]
You may be right, Gary. In fact according to a sentencing chart from a defense lawyer's website, it looks like 10 years is the minimum that should be expected given that this appears to be Simmons's second violent felony conviction. Also considering both that a firearm was used and that a trial was required in order to secure the conviction, Simmons likely will have plenty of time to reflect on his choices. Hopefully prison will be a rehabilitative experience for him.
You know what is funny, Lincoln, there are people who actually do not think it is a serious felony. People are completely delusional. I am sick of the trash blowing up and down the streets all night long. I used to live on a quiet street. Now you have young kids (15-16) year olds to be exact staying out all night long. I get woken up just about every night at least 1 - 2 times by the teens running the streets fighting and screaming. Then they run home crying how "they got jumped." Stay home idiots….problem solved.
Just the other night a group of young teen girls were outside my house screaming and talking about how they were gonna fight some girl. Where are these brats parents?
Why are people so shocked and/or insulted when someone lays their hand on a bible, swears to tell the truth, and then lies anyway? People lie, even if it's just a small fib every day. It's part of human nature. Honorable people strive not to lie/fib, but other people just can't go a minute without telling BS stories. Oaths are man-made BS. From the master of logic, George explains it best. Uncensored: