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Tuesday, November 25, 2014 at 11:58 am

Drug dealer sent to prison for five years

post by Howard B. Owens in batavia, crime
Dajuandrick Gardner

A Batavia man accused of selling drugs earlier this year was sentenced today by Judge Robert C. Noonan to five years in state prison.

Dajuandrick C. "Omega" (and "X") Gardner, 37, of East Avenue, entered a guilty plea to a count of attempted criminal possession of a controlled substance 3rd on Oct. 24.

He was indicted on six counts related to the sale of cocaine and possession of enough cocaine to constitute suspected drug dealing. The plea satisfied all the counts of the indictment.

The sales to agents of the Local Drug Task Force occurred in January.

Gardner's arrest in March was announced with two other suspects.

"For my part in this case that I committed, I probably wouldn't if I wasn't on drugs," Gardner told Noonan. "I wouldn't have committed the crime and I want to take responsibility for my part that I did regardless of the fact that I was on drugs. I want to apologize to the court and the community."

Noonan told Gardner that his turnabout was a little late.

"You've had many opportunities over the course of your life to clean yourself up from drugs and you never seized them," Noonan said. "You just dove into criminal activity over and over again."

The judge also ordered Gardner to pay $150 in restitution upon his release from prison.

Prior to sentencing, among the requests from Gardner's attorney was one for instructions from Noonan to the Department of Corrections that Gardner's head not be shaved. He said Gardner is a Rastafarian and it would violate his religion to cut his hair.

Noonan said he has no authority to tell the DOC what to do.

Monday, November 24, 2014 at 2:26 pm

Law and Order: Fourth suspect charged with first-degree rape of woman in Elba

post by Billie Owens in batavia, alexander, corfu, crime, elba, Oakfield
Uriel Ramirez-Perez

Uriel Ramirez-Perez, 26, of Oak Orchard Road, Elba, is charged with first-degree rape, a Class B felony. The defendant was arrested after allegedly raping a female victim at an Elba residence. The charge is related to the previously reported charges of rape against three other Elba men. This defendant was allegedly present during the Nov. 16 incident. He is in county jail on $25,000 cash bail or $50,000 property bond. The incident was investigated by investigator Kristopher A. Kautz, deputy Dana Richardson and Angel Santos, investigator with the State Police.

Shannon Ann Caton, 39, of Fisher Road, Oakfield, is charged with: driving while intoxicated with a previous conviction within the last 10 years; resisting arrest; attempted escape, 3rd; speed not reasonable and prudent; and following too close. She was arrested Nov. 19 on the charges after she allegedly rear-ended another vehcile twice on East Main Street near Harvester Avenue in the City of Batavia. While at police headquarters, she slipped out of handcuffs and attempted to escape. She allegedly physically resisted her re-apprehension and was then jailed without bail. She is also charged with refusing to take a breath test. The incident was investigated by police officers Jason Ivison and James DeFreze.

Thomas K. Lee, 51, of West Main Street, Batavia, is charged with resisting arrest and obstruction of governmental administration. He was arrested Nov. 18 after allegedly interfering with a Batavia police officer's investigation into a domestic incident involving Lee. He allegedly resisted arrest and "attempted to kick patrols." He is in jail in lieu of $2,500 bail. The incident was investigated by police officers Jason Ivison and Chad Richards.

Shane Zimblis, 43, of Hutchins Street, Batavia, is charged with: operating a snowmobile with a BAC of .08 or higher, first offense; operating a snowmobile without liability insurance; no/inadequate headlight; operating an unregistered snowmobile; and following too close. The charges stem from an accident Nov. 18 on Pearl Street in the city wherein Zimblis was allegedly operating his snowmobile and struck an SUV. He is to appear in city court on Dec. 3. The incident was investigated by police officers Chad Richards and James DeFreze.

April L. Walradt, 37, of Bank Street, Batavia, was arrested Nov. 11 and charged with second-degree harassment. She allegedly made comments to another person and a youth that caused them alarm. She was issued an appearance ticket for city court. The incident was investigated by police offier Matthew Wojtaszczyk.

Matthew Michael Biggins, 25, of Rail Road Avenue, Alexander, is charged with third-degree forgery and petit larceny. He was arrested Nov. 14 after allegedly stealing three checks, making the checks out in his own name and then cashing them. He was issued an appearance ticket and is to appear in Alexander Town Court on Dec. 2. The incident was investigated by Sheriff's deputy Cory Mower.

Terrance Trae Allen Harley, 18, of Frandee Lane, Rochester, was arrested Nov. 22 on Clinton Street Road in Stafford and charged with unlawful possession of marijuana, speed violation (67 in a 55 mph zone), and having no or inadequate taillights. The charges were issued following a traffic stop for alleged vehicle and traffic law violations. Harley is to appear in Stafford Town Court on Dec. 11. The incident was investigated by sheriff's deputy Joseph Corona, assisted by deputy Andrew Hale.

Jennifer Lynn Stack, 28, of South Main Street, Batavia, is charged with criminal contempt, 2nd. She was arrested Nov. 23 after she entered the Batavia Walmart and remained in the store. These alleged actions violated an active order of protection issued by Batavia Town Court, prohibiting her from being on the premises. She was issued an appearance ticket and is to appear in court on Dec. 18. The incident was investigated by Sheriff's deputy Chad Minuto.

Adam Paul Hoopengardner, 34, of Bank Street Road, Elba, is charged with DWI, driving with a BAC of .08 or more and speeding (52 in a 40 mph zone). He was stopped on Lewiston Road Nov. 23 for allegedly speeding and an investigation revealed he was allegedly intoxicated while driving the vehicle. The incident was investigated by Sheriff's deputy Thomas Sanfratello.

James Russell Kosiorek, 22, of East Main Street, Batavia, was arrested Nov. 20 on a state parole warrant. He responded to the Sheriff's Office to turn himself in and was placed in county jail.

Gloria Susan Moretti, 37, of Main Road, Corfu, was arrested Nov. 7 and charged with unauthorized use of a vehicle. She was a co-renter of a vehicle from Sikes Enterprises, which allegedly has not been returned and has not been paid for. She was issued a computer-generated appearance ticket and is due in city court Dec. 2. The incident was investigated by Batavia police officer James DeFreze.

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)."

Thursday, November 20, 2014 at 10:44 pm

Arrest made in Oakfield Pharmacy robbery

post by Howard B. Owens in crime, Oakfield

A 24-year-old Oakfield woman is being held on $25,000 bail after being accused of robbing a pharmacy this afternoon.

Elizabeth Marie Hamby, 24, of Forest Avenue, is charged with first-degree robbery as well as second-degree robbery.

Hamby is the person initially taken into custody this afternoon after local law enforcement was notified of the robbery.

She reportedly fled from the pharmacy on Main Street in Oakfield to a house less than a block away on Forest Avenue.

A witness saw her leave and go to that location.

A clerk at the pharmacy reportedly suffered minor fingernail cuts in a scuffle with the suspect.

Hamby allegedly made off with $400.

Investigators say Hamby entered the pharmacy and appeared to be shopping for a while and then approached the clerk, displaying what appeared to be a pistol and a knife. She allegedly demanded money.

Deputies and troopers quickly responded to the scene and surrounded the house where the suspect was believed to be hiding.

She's scheduled to appear in Town of Oakfield Court again at 2 p.m., Nov. 26.

Thursday, November 20, 2014 at 10:18 pm

Three men in Elba accused of raping woman who visited their house

post by Howard B. Owens in crime, elba
Santiago Hernandez-Ruiz Darwin Zuniga-Rocha Eliseo Mateo-Perez

Three men in Elba are accused of forcibly raping a young woman at their home on Oak Orchard Road on Saturday night.

The men are charged with rape in the first degree and were jailed on $25,000 cash bail or $50,000 bond.

All three men were out of federal custody on bail after previously being charged with being in the country illegally, said Investigator Kris Kautz.

Kautz said the victim was a young woman with ties to the migrant labor community in the Elba area. She didn't know the three men, but had seen them around. She had gone to their home because an acquaintance was visiting there and called and asked for a ride home.

When the alleged victim arrived, she tried to get her friend to come out of the house, Kautz said, both by yelling inside and trying to reach her on her phone.

When the friend didn't come out, she went in and that's when things went bad, Kautz said.

Only one of the men spoke a little English, so agents from Immigration and Custom Enforcement were called in to assist in the investigation and translate.

Arrested were Santiago Hernandez-Ruiz, 19, Darwin Zuniga-Rocha, 29, and Eliseo Mateo-Perez, 20.

Deputy Dana Richardson assisted in the investigation.

Also arrested at the same location as a result of the investigation was Catalino Lopez-Leiba, 43, who was charged with criminal possession of a forged instrument, 2nd. Lopez-Leiba allegedly possessed a forged Social Security card.

Thursday, November 20, 2014 at 7:53 pm

First witnesses take stand -- and one doesn't -- in Dashawn Butler case

post by Howard B. Owens in batavia, crime

NOTE: Jurors are instructed by Judge Robert C. Noonan not to read media accounts of the trial. This story contains information not available to jurors. Certainly, no jurors should read the story nor should the case be discussed with jurors.

There's no physical evidence putting a gun in the hand of Dashawn Butler the night shots rang out on State Street 14 months ago, defense attorney Thomas Burns told jurors during opening arguments today in a criminal trial in Genesee County Court.

Three witnesses testified before jurors were sent home for the day, but the most unusual moment of the case came when one of the witnesses scheduled to take the stand refused to testify.

In his opening statement, Burns told jurors that there were no shell casings, no bullet holes in any building or car, no victim shot, nothing to demonstrate clearly that Butler either possessed or fired a gun the night of Sept. 27, 2013.

District Attorney Lawrence Friedman kept his opening remarks brief -- to match the briefness of the incident that allegedly took place on State Street in Batavia.

"When all is said and done, through the use of common sense and the collective experience you have in the world to evaluate evidence, you will find beyond a reasonable doubt that the defendant is guilty of these crimes," Friedman said.

Butler is charged with attempted assault, attempt to cause serious physical injury, and criminal possession of a weapon.

The charges stem from an incident near 117 State St. when gunshots were reportedly fired at a person standing on the sidewalk.

Butler was named as a suspect not long after the shooting and a warrant was issued for his arrest. It took several months to locate him before he was arrested.

Called to the stand today were Julie Ann Carasone, a resident of State Street, Lisa Strong, a former State Street resident now living in Oakfield, Tracy Leubner, a former girlfriend of Butler's, and Kelly Rhim, the purported target of the alleged gun fire.

The case was moving along briskly, after a late start because of a juror's mistaken belief that court was closed today, until it came time to call Leubner, the third witness of the day, to the stand.

When Friedman went into the hall to retrieve the witness, he wasn't heard from for a minute or two, and then he stuck his head in the door and told Judge Robert C. Noonan that it would be another minute.

As the minutes ticked by, a woman could be heard sobbing outside the courtroom.

After at least 10 minutes of waiting, Noonan sent the jury into recess and Friedman entered and said that his witness, Tracy Leubner, was refusing to testify. Friedman held a document that he said was a police report detailing how Leubner had been threatened by a man whom he believed is an associate of Butler's.

Leubner is reportedly an ex-girlfriend of Butler's and has knowledge of both the incident Sept. 27 and Butler's purported gang ties.

In lieu of Leubner's testimony, Friedman requested using the transcript of her grand jury testimony.

Burns objected on the grounds that there was insufficient evidence to make his client culpable in the alleged threats, and at the least, there should be a hearing on the matter to establish such evidence. The case in point, Burns said, was People vs. Smart.

That case (and previous cases) establishes that a criminal defendant surrenders his right to confront witnesses against him if the defendant threatens the witness.

With the jury out of the room, Friedman called Det. Thad Mart, with Batavia PD. Mart was involved in the criminal investigation against Butler, did the initial interview with Leubner, served a subpoena on her Nov. 7, and retrieved her from her home this morning.

Leubner had to be coaxed out of her house and to the court building, Mart testified.

He claimed that Leubner had told him that when she lived with Butler, Butler used to beat her. The detective said that she told him previously she had been tricked into attending a party hosted by Butler at a residence on Holland Avenue. At the party, according to Mart, Butler confronted Leubner and said he would have "kicked the sh--" out of her if he had known about her grand jury testimony, and that he would "kick the sh--" out of her if she testified at trial.

Mart testified that a third party also contacted Leubner and threatened her.

"He told her he heard that she had snitched on Butler," Mart said. "She denied this and he went on and said that he found out she had snitched on him. He said that if Butler wanted her dead, he would be willing to take care of it himself."

During cross examination, Burns asked Mart questions about any follow-up investigation and Mart said he didn't talk with the third party and never confirmed that Butler and this other person even knew each other.

After a lunch break, Burns called witness Gina Bell to the stand.

Bell testified that she was friends with both Leubner and Butler. She was at this trial, in fact, in support of Butler. She said she was also friends with the alleged intended victim of the reported shooting, Kelly Rhim.

Contrary to Mart's testimony, Bell said that it was Leubner's idea to go to the party on Holland Avenue. Bell didn't even know about the party, she said, until Leubner invited her.

She testified that there was no apparent conflict between Leubner and Butler at the party, though she admitted she wasn't with either of them throughout the evening, and that Leubner didn't seem distressed or bothered after coming by Butler's house once she left the party.

"She seemed fine," Bell said. "She seemed like she had a good night. She was happy. She said nothing about any problems at the party."

Bell also said that in all the time she's known Leubner, Leubner never gave any indication that Butler ever harmed her.

Noonan ruled that there was sufficient evidence that Butler was involved in threats against Leubner and the grand jury transcript could be read to the jury. He said the only thing Bell's testimony established was whose idea it was to go to the party, which wasn't material to the substance of establishing why Leubner was unwilling to testify. He said nothing in her testimony directly refuted the alleged threats against Leubner.

To read Leubner's testimony, Friedman read the questions he asked in front of the grand jury and the Assistant District Attorney sat in the witness stand and read Leubner's answers.

She testified before the grand jury that somebody supplied Butler with a small, black handgun prior to the shooting. It was a revolver, she said (which wouldn't leave behind shell casings).

She said that Butler heard some people arguing near 117 State St., and then he heard his name mentioned. She said that a person was calling Butler a fake, a phony.

"'You want to see fake,'" she said Butler said. "He pulled out a gun and proceeded to shoot the man."

She later clarified that she meant to say that Butler shot at the man.

She said she heard four or five shots and then the gun jammed.

Later, at a residence in the city, Butler told a friend, she said, to flush the spent shells down the toilet.

"Dashawn was talking with friends about the gun jamming," she reportedly told the grand jury. "He was upset because he thought the bullets might be too big or something."

It was then that the subject came up that perhaps the bullets were blanks.

It was the only explanation Butler could think of, she said, for why Butler missed the person standing in front of him.

"He didn't understand why he missed," she reportedly said. "He said he was aiming right at him and if it was actual ammunition he wouldn't have missed."

Testifying in the afternoon was Kelly Rhim, the person Butler is accused of intending to shoot.

He said he's known Butler since about 2001 or 2002 and they're nearly the same age.

The night of the alleged shooting, Rhim said he went to his aunt's house at 117 State St. to pick up some CDs. He said he had recently moved to Buffalo and that he worked as a DJ and needed the CDs for a gig later that night.

He arrived on State at about 10:30 p.m. He was accompanied by his brother-in-law.

There were two people on the porch and Rhim and the other two people had words.

The group had a confrontation the night before, Rhim said.

Rhim was upset because one of the men, he said, had been going around telling people that Rhim had been in town the night before with a group of gang members from Buffalo.

"They're not even close to gang members," Rhim said.

He then saw Butler run up from behind the house with a youth.

He said Butler accused him of saying that he, Butler, was fake.

"We fake now. We fake now," he said Butler screamed.

Rhim said, he replied, "Yes, you're fake. You're recruiting a bunch of teenagers to be part of all that B.S."

He said Butler then pulled out a gun and told him to back up.

"I just stood there," Rhim said. "I never moved. He shot three times. I started feeling myself, because I watch a lot of crime shows on TV, to make sure if I was hit or not. I wasn't sure if I was struck or not."

He was talking fast and the court reporter couldn't keep up.

He repeated, "I watch a lot of crime shows. You're not supposed to move if you think you've been hit by a bullet."

He said he couldn't believe what just happened.

"I was shocked because I've been living in Batavia since '85," Rhim said. "That kind of violence doesn't go on here, period."

He said Butler ran off after firing the three shots. He then left with his brother-in-law and drove to Ri-Dans, a bar on West Main Street Road, where they had some drinks.

During cross, Rhim said he never saw a gun, just "flashes of light" coming from Butler's sleeve.

He admitted later that he was arrested for DWI that night and later convicted in Town of Batavia Court of the charge.

He said he didn't have anything to drink prior to driving to State Street in his brother-in-law's white Cadillac and having the alleged confrontation.

After Ri-Dans, he and his brother-in-law sat in the Caddy and lit up a blunt, he testified.

“After I got shot at I smoked some weed,” he said, rolling his eyes and looking as if any reasonable person would have done the same thing.

His previous convictions over the past decade include disorderly conduct (twice), criminal sale of a controlled substance and unauthorized use of a motor vehicle.

During cross examination, Rhim also conceded that he was driving that evening without a license, which was suspended because of late child support payments.

After leaving the bar, sometime after 2 a.m., he was pulled over so Sheriff’s deputies could asked him about the State Street incident. He said nine deputies with nine guns drawn descended on him and his brother-in-law and had them lie down on the ground. He said one of them asked him who he shot.

He said he didn’t shoot anyone and there was no gun on the two men or in the vehicle. He was found, however, to be intoxicated and was arrested for DWI. Officers found one “dime bag” of weed on him (enough to roll three blunts he says) and nine more “in the console” of the vehicle.

Continuing with questions possibly intended to cast the prosecution's witness as having less than sterling character, Burns then asked Rhim if had been arrested for allegedly stealing meat from Top’s Market. The case is still pending.

“It was not no meat. It was $240 worth of stuff,” the witness said. “Roses for my mom’s tombstone, paper goods and stuff. I thought I lost my money. I backtracked out the store and before you know it I was outside the store at my car.”

He claims his clarity of mind had been affected by medication he had been given for an abscess, which made him “disoriented and delusional.”

But going back to the matter on trial -- whether Dashawn Butler used a gun to try and shoot Rhim on Sept. 27, 2013 -- the witness stood by his testimony, even though it varied from what he had signed in a sworn statement to Batavia PD.

“They switched the words on me,” he told the jurors.

Burns asked if he remembered telling police that the incident with Butler was related to something posted on Facebook.

He replied that he never said the derogatory remarks about him on Facebook came from Butler. He said he doesn’t know who posted them.

Lastly, Burns asked him if he remembers telling officers when they pulled him over after he left the bar, “You don’t know what the f--k you’re getting into.”

No, the witness said, “They were making things up.”

State Street resident Julie Ann Carasone testified that she was in her daughter's room watching "Law & Order" while her daughter and a friend played a game on the Xbox hooked up to the living room TV when she heard the possible gunshots.

"I heard somebody say, 'get down mother f--ker, get down mother f--ker' and then I heard, pop-pop-pop, and I thought 'oh, my God, it's gunshots,' " Carasone said. "I turned down the TV to make sure it wasn't on TV and then I heard a female saying, 'I can't believe you shot him.' "

She said she ushered the children into the bathtub, thinking they would be safer there if there were any more shots fired, and called 9-1-1.

Asked how she recognized the sound of gunshots, she said her father was a military veteran and the family spent a lot of time on military bases, near firing ranges, and that her father had taught her about guns.

Lisa Strong testified that she was sitting on her porch smoking a cigarette five doors down from 117 State St. when she heard what sounded like people arguing. She heard the gunshots and then saw a white car, possibly a Cadillac, speed away. She said from two to six people then ran in various directions.

She did not call police. She went in her house and locked the door.

The trial resumes tomorrow at 10 a.m.

Billie Owens contributed to this report.

Thursday, November 20, 2014 at 5:25 pm

Robbery suspect in custody, but investigators working to determine if she's the right person

post by Howard B. Owens in crime, Oakfield

Investigators have a suspect in custody from an armed robbery at the pharmacy on Main Street in Oakfield today, but haven't ruled out the possibility of a different person being involved, said Chief Deputy Gordon Dibble.

At about 12:30 a woman entered the pharmacy and displayed what appeared to be a handgun and demanded cash, according to Dibble.

After the robbery, she was seen fleeing down Forest Avenue, where she entered a residence.

Deputies and troopers surrounded the house, K-9 Destro responded, and a short time later, a woman was taken into custody.

She is being questioned by investigators, but Dibble said this afternoon that they hadn't ruled out the possibility that she's not the woman who robbed the pharmacy.

The house was being searched and the woman and other people were being questioned, Dibble said.

There was a tussle during the robbery and a female employee sustained fingernail scratches on the back of her neck, Dibble said.

The woman who robbed the pharmacy was wearing a hoodie and had what appeared to be an ace bandage covering a portion of her face.

Thursday, November 20, 2014 at 12:53 pm

Pharmacy in Oakfield robbed, suspect is in house on Forest Avenue

post by Billie Owens in crime, Oakfield

The suspect of an armed robbery that just occurred at a pharmacy in Oakfield is reportedly hiding inside a residence at Forest Ave.

The suspect is a female dressed in a blue sweatshirt with a scarf around her face. She allegedly drew a weapon inside the business at 40 Main St. and demanded money. She was seen running into the Forest Avenue residence and is believed to be armed with a knife and a gun.

The Sheriff's K9 unit is called to the scene and law enforcement is there and is setting up a perimeter.

UPDATE 1:44 p.m.: Deputies are speaking with a person of interest in the case.

Wednesday, November 19, 2014 at 6:54 pm

Criminal charge dismissed against Bergen man who pointed shotgun at suspected intruder

post by Howard B. Owens in bergen, crime

In the interest of justice, John Robinson, the 51-year-old Bergen resident arrested on a menacing charge after pointing a shotgun at a possible intruder into his home, is a free man.

Town of Bergen Justice Donald R. Kunego issued his ruling today on a motion by defense attorney Brian DeCarolis that the charge against his client be dismissed.

In a four-page ruling that Kunego read from the bench, the judge did just that, saying that a man has a right to defend his castle.

"People expect to be able to protect 'their castle' from attack," Kunego said. "Mr. Robinson's castle was under attack by Mr. Crooks. People confronted with the same circumstances presented to Mr. Robinson on the day in question would unquestionably engage in similar behavior with the expectation that they were properly and lawfully defending themselves."

According to Kunego, Brockport resident Michael Crooks went to Robinson's home Jan. 13, 2013, to confront Robinson, whom he had never met in person before, over some sort of relationship between Robinson and Mrs. Crooks that Mr. Crooks didn't like.

In Kunego's recital of the facts of the case, Crooks banged on Robinson's door, yelled and threatened him and kicked at the door hard enough to damage it. When Robinson didn't open the door, he went to another portion of the house presumably to gain entry.

"Due to Mr. Crooks' relentless and persistent actions, aggressive demeanor and verbal threats, Mr. Robinson felted threatened in his own home," Kunego said. "He feared that Mr. Crooks was not going to leave until at the very least he had entered his home and physically confronted him and at worse he would physically harm him."

Kunego said he believed Robinson's response was entirely lawful and justified.

After the ruling, Robinson said he was relieved, but he also expected to prevail.

"I wasn't really that nervous because I thought I did everything right," Robinson said. "I called 9-1-1. I put the dogs away. I avoided contact with him and all I did was stay in the house and tried not to have the conflict. When I talked to the state troopers, when they were there, they said I did the right thing."

The day of the confrontation, Crooks heard later that a trooper wanted to talk with him. He went to the Batavia barracks, where he was arrested by Trooper Eric Daigler. He was charged with criminal mischief, 4th, for damaging the door of Robinson's home on Lake Road in Bergen.

The door was pretty heavily damaged, Robinson said today, as well as the screen, from Crooks kicking and hitting it.

Crooks, who had no prior criminal record, eventually received an ACD (adjudication in contemplation of dismissal). As soon as his six months of good behavior was up, he started lobbying for the arrest of Robinson. First he went to the State Police, but local troopers wouldn't even consider it, so he went to the Sheriff's Office.

There he found a sympathetic ear with a sergeant who turned the case over to Deputy Matthew Butler.

"When Officer Butler showed up 15 months later and told me I was under arrest, I couldn't believe it," Robinson said. "I was like, you've got to be kidding me, right? He told me right then and there that he didn't want to arrest me, but he had to. I don't know what he meant by that. I don't know if he was forced by his upper commanders, but that's what he told me. He said, 'John, I don't want to do it, but I've got to.' "

Robinson's arrest didn't sit well with the troopers familiar with the case, which was part of Daigler's testimony in a hearing on the motion to dismiss Oct. 1.

"I was dumbfounded," Daigler said. "First and foremost, it's common practice not to take on other agency's cases. We refer to it as 'cop shopping.' It happens. Usually, we are pretty good at stopping people who are just trying to get the right answer. They are looking for the answer they want. That's usually the Sheriff's Office policy."

The State Police response to Robinson's arrest is one element of the case that helped Kunego arrive at his decision to dismiss the charge.

"It cannot be overlooked that after a full and complete investigation of this incident by the New York State Police and after consultation with the Genesee County District Attorney's Office, a decision was made that there was insufficient evidence to even charge Mr. Robinson," Kunego said, referring to the initial investigation and consideration of charging Robinson in 2013.

"Significantly, the New York State Police still believe that Mr. Robinson should not have been charged and are not supportive of his prosecution."

Factors in Kunego's decisions, which are part of the findings in an "interest of justice" dismissal, are:

  • Menacing, 2nd, a Class A misdemeanor. The maximum sentence is one year in jail. Given Robinson's lack of criminal record, his steady employment and longtime residence in the same home, he would not have received any jail time even if convicted. The dismissal might have been harder for Robinson to obtain if any of those facts weren't true.
  • There was no real harm to anyone from Robinson wielding a shotgun inside his own home. More significantly, Kunego said, only Robinson contacted police in relation to the incident. Crooks didn't contact police until after he inquired with a family member and learned that Daigler was looking for him.
  • If the case did go to trial, Kunego said, it would be unlikely, given the facts of the case, that Robinson would be convicted by a jury, especially in New York, where a person who is protecting life and home is legally protected in taking action to advance that protection.
  • While nobody in the Sheriff's Office can be accused of misconduct in the case, Kunego said, the fact that his arrest came 15 months after the arrest cannot be ignored.
  • Sending Robinson to jail would not advance the cause of justice, Kunego said, nor would it make the community safer given the unique circumstances of the case and the lack of any prior arrests or criminal complaints against Robinson.
  • Dismissal, Kunego ruled, would advance public confidence in the criminal justice system, while further prosecution of Robinson would erode public confidence, since any reasonable person, according to Kunego, would do exactly what Robinson did Jan. 13, 2013, in the same circumstances.

"I'm glad he went this way, but I can't believe it took this long," Robinson said.

Tuesday, November 18, 2014 at 6:38 am

Law and Order: Alleged driving while license revoked lands Wyoming couple in trouble

post by Howard B. Owens in batavia, alexander, Bethany, byron, crime, Darien, Oakfield, pembroke

Christian J. Finkney, 26, of South Academy Street, Wyoming, is charged with 18 counts of criminal contempt, 2nd, aggravated unlicensed operation and unlicensed operation. Ashly N. Boatwright, 27, of South Academy Street, Wyoming, is charged with 18 counts of facilitating aggravated unlicensed operation, 3rd, and one count of circumventing an interlock device. Finkney allegedly drove a vehicle 18 times in Genesee County while his license was revoked for an alcohol-related offense. Darien Town Court reportedly directed Finkney not to drive until his privileges were reinstated by the DMV. Finkney was arraigned in Batavia, Darien, Alexander, Pembroke and Bethany and jailed on $10,000 bail. Boatwright is accused of allowing Finkney to drive a vehicle registered to her on 18 occasions. She is also accused of blowing into an interlock device to circumvent the device.

Nathan Robert Arnold, 22, of Terry Street, Byron, is charged with criminal contempt, 1st. Arnold was allegedly involved in a fight with a person protected from him by court order. He was jailed on $5,000 bail.

Jamie Michelle Lauck, 27, of Spencer Court, Batavia, is charged with DWI, driving with a BAC of .18 and parking in the highway. The Sheriff's Office received a report at 12:51 a.m. Sunday on Colby Road, Darien. Lauck was allegedly located in a vehicle stopped in the roadway by Sgt. Thomas Sanfratello.

Louis James Stoller Jr., 22, of Erie Street, Le Roy, is charged with burglary, 2nd, and petit larceny. Stoller is accused of entering a residence on South Street Road, Le Roy, with the intent of taking the dog from the residence. He was jailed on $5,000 cash bail or $10,000 bond.

Damian Christopher Woodruff, 32, of Walmore Road, Niagara Falls, is charged with criminal possession of a weapon, 4th. Woodruff was stopped by Deputy Patrick Reeves on federal game lands on Sour Springs Road, Alabama. He was allegedly hunting without a permit. He allegedly was found in possession of a shotgun, in violation of the law barring convicted felons of possessing firearms. 

Nathaniel Michael Dickes, 21, of Broadway Street, Oakfield, is charged with harassment, 2nd. Dickes was allegedly involved in a fight at 9:57 pm., Saturday, at a location on Webber Avenue, Oakfield, in which Dickes allegedly pushed and grabbed another person and threw an object at that person.

Donald Ivan Manes, 58, of Lewiston Road, Basom, is charged with DWI, refusal to take breath test, misuse of dealer plate, speeding (74 in a 55 mph zone) and failure to keep right. Manes was stopped at 2:06 a.m. Sunday on Kelsey Road, Batavia, by Deputy Joseph Corona.

Kristen Irene Merriam, 33, of Summit Street, Batavia, is charged with unlawful possession of marijuana. Merriam was charged following a traffic stop at 12:30 a.m. Saturday on Clinton Street Road, Stafford, by Deputy Joseph Corona.

Bryan D. Bates, 35, of Mill Street, Batavia, is charged with conspiracy, falsely reporting an incident to law enforcement and offering a false instrument, 1st. Bates allegedly reported an incident that did not occur and providing a false written statement. Bates is being held on a parole violation.

Tyler J. Warfle, 19, of Chapel Street, Elba, is charged with five counts of identify theft, 3rd. Warfle is accused of using the debit card of another person without permission.

Mark T. Zdrojewski, 61, of Meyer Road, Pendleton, is charged with issuing a bad check. Zdrojewski was arrested on a warrant. 

A 17-year-old resident of Liberty Street in Batavia was arrested on a warrant for alleged failure to appear. He was taken into custody during an investigation of an unrelated complaint.

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