A man who suffered a serious head injury during an altercation at the Kid Rock concert at Darien Lake on July 6 is making medical progress, according to a Facebook page maintained by his family.

Jason McNeil, 43, of Tuscaloosa, Ala., has reportedly been sitting up and communicating with his family.

Here's an entry from Sunday:

Today was a good day. Jason was sitting up, waiting on our arrival. He looked himself and even gave me a kiss! I also got the "I love you" sign before we had to leave. He was exhausted by the end and we left him to rest. Praying for more good days to come.

The man who allegedly hit him, Craig Malcolm Lawson, 34, of Talbot Street, Courtland, Ontario, Canada, was originally scheduled for a court appearance this evening, but that appearance has been rescheduled to Sept 3.

The attorney handling the case for the prosecution, Robert Zickl, is out of the office today, so we don't know why the appearance was rescheduled, but it's also not unusual to change appearance dates at this stage of proceedings.

Lawson was initially charged with a misdemeanor, assault in the third degree, and while it's possible the charge could be upgraded to a felony of assault, 2nd, the prosecution would need to prove the suspect intended to cause serious physical injury to sustain the charge.

According to witness accounts, McNeil was hit once and fell backward, striking his head on the pavement.

He was initially in a coma but according to the Facebook page, he appears to be conscious and aware of the people around him over the past few days.

McNeil, originally from Alden, is reportedly well known in Tuscaloosa for his volunteer and charity work.

His family set up a donation page to help assist with his medical needs, which has so far received more than $44,000 with 11 days left to reach a goal of $50,000. Among the apparent donors was Kid Rock, who reportedly gave $5,000.

A wheat field is reportedly on fire at 9802 Simmons Road. Darien Fire Department is responding. The location is between Bennett and Richley roads.

UPDATE 3:08 p.m.: The Gator from Alexander is requested to the scene.

UPDATE 3:35 p.m.: Fire command reports that fire they are getting a handle on the fire, believed to have started by the heat from the catalytic converter on the owner's pickup truck, when the engine was running. The chief ordered the engine shut off of the Sheriff's patrol car on scene, so the fire would not reignite.

Corfu Fire Department is also on scene.

UPDATE 3:40 p.m.: They are dousing hot spots. Bennington Fire Department, which was called to provide mutual aid, is put back in service.

UPDATE 4:17 p.m.: All responders are back in service.

Press release:

The Genesee County Economic Development Center (GCEDC) is offering a second round of applications for its Food Processing Training Program. The program provides individuals with a certification to work in the food-processing industry, including the yogurt companies in the Genesee Valley Agri-Business Park. The deadline for submitting applications is Sept. 1.

Up to 25 individuals will be accepted for the class. Members from first graduating class are already working at local companies.

Applications can be picked up at the Genesee County Career Center at 587 E. Main St., Suite 100, Eastown Plaza in Batavia. The application also is available at the GCEDC Web site <http://www.gcedc.com>. Applicants also will need to complete a Customer Registration Form as well as submit an up-to-date resume with their application.

“We want to build off the success of the first graduating class and get as many applications submitted as possible in order to enhance the talent pool of individuals with the skills to work and be successful in the food processing industry,” said GCEDC Chairman Charlie Cook.

The training program is being funded by an Area Development grant obtained by the GCEDC from the National Fuel Gas Corporation with additional financial support from the Finger Lakes Food Cluster Initiative — funded by the Department of Labor's Employment and Training Administration in the amount of $38,000 or 28 percent of the program.

In addition to receiving a non-credit certificate and certificates in Team Building and OSHA Safety in a Manufacturing Environment from Genesee Community College, participants will receive certificates in Lean Systems Six Sigma Yellow Belt (Rochester Institute of Technology) and Basic Dairy Science & Sanitation Certificate (Cornell University).

“Our goal is to increase the 78 applications we received for the first class and we were encouraged that we received so many applications from outside of Genesee County,” said Steve Hyde, president and CEO of the GCEDC. “It shows that the Genesee Valley Agri-Business Park is a regional economic asset and that people are willing to travel for good jobs.”

An officer from the Sheriff's Department was dispatched to a residence on Maple Avenue in Bergen in an effort to resolve a problem with a belligerent woodchuck.

It attacked the family dog and has taken up residence in a sandbox on the property.

For now, the critter has moved along. But it likes the sandbox and may return.

A barn fire was reported at 9697 Harper Road in Darien, at Lamb Farms, but now "most of the hay is pushed out of the barn" and the fire appears to be out. Darien Fire Department is responding.

"It's the rear old barn to the west," according to a Sheriff's deputy on scene.

Cows are out of the barn but have been mostly "pushed into a field," though they are making sure they are all accounted for.

UPDATE 10:42 a.m.: Fire command cancels mutual aid from Alexander and holds the Darien assignment to the single unit at the scene.

UPDATE 10:53 a.m.: The fire is confirmed to be out. Darien is back in service.

It's an ambitious plan, one that takes in 366 acres in the heart of Batavia and targets at least five major areas for redevelopment, and it got a some favorable responses at a special public meeting Monday night.

"There have been a lot of plans done over the past 15 years and they have been shelved," said local businesswoman Mary Valle. "Now, we are ready to move forward. There are a lot of exciting things going on in the county and the city. I do believe the people are ready to support it and more forward."

Perhaps the most dramatic redevelopment proposal involves knocking down part of the downtown mall and extending Jackson Street north to Alva Place.

The plan would open up some of the mall concourse, improve parking and traffic circulation and improve development potential in the area, officials said.

An artist's rendering shows a new three-story, L-shaped building at the corner of the extended Jackson Street and Main as well as a new three-story building on the east side of the new Jackson Street, next to the existing Bank of Castile building.

"I like the idea that we are doing something," said Councilman Pier Cipollone. "I would prefer to see more retail come into the mall. I really like the idea of opening up the concourse.I would actually like to see the entire concourse opened up and create an open area walkway. I understand the notion of an indoor winter area, but I still thik it would make more sense to just open it up and give all those businesses access from the outside."

The plan also calls for redevelopment in and around the Della Penna building on Ellicott Street, to stretch down Evans toward Mill Street and along the railroad tracks almost to Jackson Street.

Included in what's known as the Batavia Opportunity Area is the Harvester Center -- which has already undergone some redevelopment with the Masse Place project -- and what the plan calls the medical corridor, which is the area east of Bank Street.

The plan builds on Batavia Central Corridor Urban Design, Marketing and Development Plan completed in 2006 and the recently completed Community Improvement Plan.

The planning phase is covered under a $260,000 state grant, the Brownfield Opportunity Areas Program.

The presentation, with artist renderings, is supposed to be posted on the Batavia Opportunity Area Web site some time this morning.

Story via The Batavian's official news partner, WBTA.

New York Times: Smart, Social and Erratic in Captivity

In their vigorous effort to keep their client out of state prison, the attorneys for Jacquetta B. Simmons have presented arguments to the Appellate Division, Fourth District of the NY Supreme Court that challenge both her sentence and her conviction.

SImmons is the young woman who hit Grace Suozzi, then a 70-year-old cashier at Walmart on Christmas Eve 2011, and was later convicted of felony assault based on the injuries sustained by Suozzi and her age relative to Simmons, who was 26 at the time.

A year later, following a jury trial in Genesee County Court, Simmons was sentenced by Judge Robert C. Noonan to five years in prison and three years probation.

The defense contends that the sentence is harsh and excessive, that the evidence presented at trial doesn't support the finding of the jury, and even if it did, the law used to convict Simmons is unconstitutional.

District Attorney Lawrence Friedman has a differing view of the facts and the law and filed an answering brief.

Friedman said the attorneys will likely make oral arguments before the appellate court sometime in September and a ruling isn't likely before the end of the year.

Meanwhile, Simmons, now a mother, is out of prison with her sentence stayed until a decision is rendered.

Here's a summary of the defense's appeal:

The sentence is harsh and excessive.
The defense contends that under the current justice system, a judge is charged with selecting a sentence that will be best suited for rehabilitation of each defendant.

The judge should consider: 1) the nature of the offense; 2) the community's condemnation of the defendant's conduct; 3) the necessity of protection of the community; 4) the deterrent effect on others; 5) the potential for rehabilitation; and, 6) the defendant's previous record.

The defense leans heavily on the lack of criminal history for Simmons and her record of as a productive member of society, who had a job, an education and a history of volunteering in her community.

The defense contends that what Simmons did Dec. 24, 2011 -- whether it was a punch (as the prosecution maintains), a hit (the defense version) or an accident (the defense's argument at trial) -- it was "out of character" for a young woman admired by those who really know her.

While the prosecution maintained at sentencing and in its answering brief that Simmons has shown no remorse, the defense -- attorneys Earl Key and Anne Nichols -- are adamant in briefs that Simmons truly regrets her actions that busy shopping day in Walmart.

They state that at trial, Simmons admitted that she had opportunities to tone down the conflict at Walmart, but proceeded in a manner that eventually led to a harmful result.

"I still hold no hate or bitterness for Grace," Simmons said at trial. "I wish I had stop(ped) my movements before I pulled away then maybe there would have been no harm to her. I would take back that moment a million times."

The defense notes that the Probation Department, in its pre-sentence report, recommended a community-based (no jail time) sentence for Simmons.

The defense also cites several convictions in New York where defendants convicted of more serious crimes were given no more than five years in prison, or were given harsh sentences that were later reduced by the appellate court.

The verdict went against the weight of the evidence.
The defense has a different version of events and sees the testimony differently than the prosecution.

Whereas the prosecution argued at trial that Simmons planted her foot, swung back her arm and took a round-house punch that knocked Suozzi across the floor and caused facial fractures, the defense argues there is a different narrative that the jury did not fully consider.

The defense says the evidence presented at trial shows that Simmons was attempting to leave the store when Suozzi stepped in front of her and another Walmart employee grabbed the arm of Simmons, causing Simmons to swing it forward, striking Suozzi unintentionally.

According to the defense brief, Suozzi and other witnesses either forgot key facts or changed their testimony from their original statements to police in a manner that exaggerated events (Dylan Phillips, for example, was the only witness who testified that Simmons used the C-word at trial and was 15-20 feet away from the altercation).

On the other hand, according to the defense, Simmon's has remained consistent in her statements from the time of her arrest through her testimony.

"She maintained from day one that someone grabbed her arm from behind as she was pulling away as Ms. Suozzi came out from her register to confront her when she was struck," the defense states in its brief.

The defense contends also that Suozzi overstated the nature of her injuries at trial. The brief says that medical records provided to the jury show that her doctor wrote the month after the incident that her fractures were healed and that doctors' notes state that she said she wasn't taking pain medication (at trial, she said she took prescription pain pills for two weeks before switching to Tylenol).

The defense concludes, "... even in viewing the evidence in a light most favorable to the People, that the verdict of guilt is against the weight of the evidence and should be overturned."

The statute is unconstitutional.
After the basic felony assault charge against Simmons was thrown out because Noonan ruled that the grand jury had not received sufficient evidence that Simmons intended to cause serious physical injury, the prosecution was left with only one felony count to try.

That count is a relatively new law that makes it a felony for a person much younger than a person over 65 to cause injury to an older person.

It's often referred to as an elder abuse law.

The dispute between the defense and the prosecution over the law hangs on an arcane legal term, "strict liability."

Think of getting a speeding ticket: If you are driving in Corfu, going 55 mph in a 35 mph zone, it's no defense that you didn't know the posted speed limit was 35. You were going 55 in a 35 mph zone. You're guilty. Period.

In the Simmons case, the prosecution -- and Noonan agreed -- that Simmons need not have knowledge of her victim's exact age to violate the law. That's strict liability.

The defense contends the Legislature, in passing the law, did not intend strict liability, that in order to violate the law, the defendant would need to have knowledge of the victim's age.

"The grammatical construction," the defense writes, "of the statute couples the culpable mental state with the requirement that the actor cause injury to 'such person' which literally reads as an intent element requiring the defendant to have intended to assault a person age 65 years or older, which thereby requires knowledge of the victim's age."

Also, the legislation was enacted, the brief states, to deal with predatory attacks on seniors.

"The case of Ms. Simmons and Ms. Suozzi is certainly not one of a predatory attack," the defense states.

That statute as written, the defense contends, denies a defendant due process under the Fifth and Fourteenth amendments.

The prosecution answers.
The brief from the District Attorney's office, written by ADAs Will Zickl and Melissa Cianfrini, argues that the defense is wrong on both the law and the facts.

Key to the prosecution's case is what Simmons knew and when she knew it, and that isn't a matter of Suozzi's age, but whether Simmons intended to strike her.

While the defense has portrayed the act of Simmons hitting Suozzi as an accident, the prosecution states that in testimony and evidence, Simmons clearly knew what she was doing and why she did it, and has never shown remorse for her actions.

When Simmons was interviewed by Trooper James Baines the night of Dec. 11, 2011, Simmons waived her Miranda rights. Simmons asked to review the surveillance footage from Walmart.

Baines testified that Simmons then said, "someone grabbed her. She doesn't remember what happened. She just punched."

According to Baines, Simmons knew Suozzi was taken to a hospital, but never asked about her well being.

At trial, under cross-examination, Simmons admitted she was angry when a Walmart cashier asked her for a receipt for a prior purchase.

In a series of questions by Friedman, Simmons was asked about punching Suozzi, with Friedman repeatedly using to the word punch, and Simmons never corrected his use of that word.

At the end of the series of questions:

Q. She was a foot away from you, right in front of you, when you punched her, isn't that what you just said?
A. Yes.

Simmons also testified overhearing a woman in the Walmart parking lot after she and her brother ran out of the store saying, "You can't hit a white woman like that." 

Under questioning from Friedman, Simmons said that contrary to the testimony of Baines, she did ask if Suozzi was hurt.

Q. You asked how she was before he showed you the video?"
A. Yes, I did.
Q. So, before you ever knew you hit her, you asked Trooper Baines how she was, right?
A. Yes.

When it comes to the conviction, the prosecution states, "the testimony of the People's witnesses was essentially harmonious and, together with the video evidence offered by the People, painted a clear picture of the case. The defendant was hostile and increasingly aggressive during the incident, and the vicious punch the defendant administered evinced her intent to cause physical injury to the victim."

As for the constitutional question, the prosecution contends that the trial court ruled correctly that the Legislature intended strict liability under the law and that state of mind about the age of the victim was not necessary to win conviction.

As for the sentence, the prosecution continues to maintain that Simmons has never expressed sincere remorse or any real concern for the injuries inflicted on Grace Suozzi, therefore, the five-year prison sentence should stand.

"Despite the fact that the defendant's behavior would have justified an even greater sentence, the court demonstrated lenity by imposing considerably less than the maximum amount of incarceration available to it."

In response to the prosecution's brief, Nichols filed a response with the court that argues strenuously that Simmons expressed remorse.

"At sentencing," Nichols writes, "Ms. Simmons stood up in an open court and stated, 'I just want to say how truly sorry I am about the incident that happened. I hate that Grace and her family had to endure all the things that they are going through right now."

That's remorse, Nichols said.

"Plantiff-Respondent and the sentencing court have simply chosen to not accept Ms. Simmons' statements of remorse, which is different than Ms. Simmons not showing remorse at all."

It will be up to a group of justices in Rochester to sort through these contradictory views, decide which facts hold the most weight and how the law should be properly applied.

Whatever their decision, the case won't necessarily be over, with an appeal to the state's top appeals court possible.

For previous coverage of the Simmons case, click here.

Press release:

Congressman Chris Collins (NY-27) and families affected by juvenile diabetes came together today to support the Kids First Research Act (H.R. 2019). Collins is a cosponsor of the legislation that would eliminate federal funding for presidential campaigns and party conventions and re-allocate the funding to expand pediatric research at the National Institutes of Health (NIH).

“Instead of using federal taxpayer dollars to fund political activities every four years, our priority should be to support medical breakthroughs that would help children diagnosed with a range of diseases and disorders,” Congressman Collins said. “Instead of asking taxpayers for more of their hard-earned money, this nation has to reprioritize its spending. The Kids First Research Act will put the health and well-being of our children ahead of presidential politics.

“The millions of federal taxpayer dollars we currently spend on these party activities would help the NIH make huge strides in research and clinical trials aimed at curing and preventing juvenile (type 1) diabetes, childhood cancers, autism, and Down Syndrome, to name a few."

Specifically, the Kids First Research Act would eliminate the Presidential Election Campaign Fund (mainly used to finance party conventions) and re-allocate $130 million, over 10 years, to the NIH. 

“JDRF’s mission is to cure, treat and prevent diabetes,” said Patrick Marks, president of the WNY Chapter of JDRF, and a type 1 diabetic himself. “Passage of this legislation will help better equip the NIH to fund research that directly impacts the future of our children living with type 1 diabetes. Children with type 1 diabetes grow up to become adults with type 1 diabetes, and we need to cure this disease.”

This bill has the support of the Juvenile Diabetes Research Foundation (JDRF), Autism Speaks, the Children’s Hospital Association, the Coalition of Pediatric Medical Research, the National Down Syndrome Society and the Leukemia and Lymphoma Society, among others.

Each of the past two Monday's I've posted a simple message: When you join The Batavian Club, you are helping to support your favorite local news site. The simple message has been working. People have been joining.

The Batavian is blessed with strong support from the local business community, but advertising is only a portion of the revenue any local news organization needs to grow and provide well-rounded local news coverage.

That's not just true of an online news site like The Batavian. It's true of any local news organization. 

A newspaper garners very important reader support by dropping a physical product on your doorstep or driveway. You pay for the product and delivery. Since we don't have a physical product to deliver to your home, we offer you a package of gift certificates to local businesses in exchange for your support.

Think of a membership in The Batavian Club as a voluntary subscription for all the great news you get online from The Batavian.

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Press release:

Assemblyman Steve Hawley (R,C,I-Batavia) will hold a telephone town hall event on Tuesday, July 30 at 6:30 p.m. The event is free of charge.

The forum allows constituents to dial into a conference call, ask the assemblyman questions and hear from their neighbors on the most important issues regarding state government in our community.

“In order to best serve our community, I am always working to find new ways to connect with local families and businesses so that I can make our voices heard at the Capitol,” said Hawley. “In addition to weekly town hall meetings and mobile office hours I hold across the district, this telephone town hall event will provide a great opportunity to discuss our local priorities.

"I look forward to hearing from many friends and neighbors during this productive discussion.”

Starting at 6:30 p.m. on Tuesday, July 30, residents can call 877-228-2184 and enter the pin number 111837. Participants can dial *3 to ask a question, at which time you will be entered into a queue and be informed when it is time to pose your question.

Police were called to an address on Harvester Avenue to check on a resident's complaint that the neighbor was burning garbage outside.

"They're having a backyard cookout," said the responding officer before leaving.

A second suspect has been arrested in the June 1 burglary of the Sherwin-Williams paint store on Liberty Street, Batavia.

Michael J. Elmore, 22, of 130 Bank St., Batavia, is charged with third-degree burglary. He is accused of participating in the break-in and entering the story during the burglary.

Earlier this month, a former employee, who worked at the store at the time, was accused of supplying a key to the theives to help them with the burglary.

Rebecca G. Morse, 21, of 130 Bank St., Batavia, is charged with burglary, 3rd. She allegedly received a portion of the proceeds from the burglary.

Elmore was jailed on $10,000 bail.

The investigation is continuing.

Kyle Jackson, 21, of Slusser Road, Batavia, is charged with grand larceny, 4th. Jackson allegedly drove an electric shopping cart across the Walmart parking lot, onto Route 63 and into the parking lot of Rite Aid at 4:30 a.m., June 12.

Douglas G. Goodwin Jr., of 130 Bank St., Batavia, is charged with offering a false instrument, 2nd, grand larceny, 4th, and criminal mischief, 3rd. Goodwin is accused of entering an apartment and stealing a hot water tank, gas and water lines and other items. Goodwin was jailed on $10,000 bail.

Foster M. Brandt, 22, of 20 Tracy Ave., Batavia, was arrested on warrants for obstruction of governmental administration and criminal mischief, 3rd. Brandt was jailed on $2,000 bail.

Christina A.M. Deluna, 33, of 122 State St., Batavia, is charged with harassment, 2nd. Deluna was arrested by Batavia PD following an investigation into a domestic incident reported at 6 p.m, Friday.

Angela S. Bianco, 42, of 137 State St., Batavia, is charged with petit larceny. Bianco was allegedly seen on security footage at Save-A-Lot taking a Red Osier billfold belonging to another customer.

Bryon Gilbert Keller, 18, of Sumner Road, Corfu, is charged with petit larceny. Keller is accused of stealing a laptop computer from a residence in Darien.

Frank Lyman Stanton, 32, of Bethany Center Road, Bethany, is charged with DWI, driving with a BAC of .08 or greater and no/inadequate exhaust system. Stanton was stopped at 12:32 a.m. Sunday on South Lake Road, Bergen, by Deputy Patrick Reeves.

Joshua Todd Fullmer, 20, of West Main Street Road, Batavia, is charged with criminal possession of a weapon, 4th, and unlawful growing of marijuana. At 5:48 p.m., Saturday, deputies responded to a report of a fight at 3124 W. Main Street Road, Batavia. Upon investigation, Fullmer was allegedly found in possession of brass knuckles and had several marijuana plants growing on his property.

Joshua Christopher Uptegrove, 27, of Meadville Road, Alabama, is charged with harassment, 2nd. Uptegrove allegedly pushed another person during an argument.

At first glance this photo appears to be nothing more than some tall wild grass. But a look just beyond the grass reveals an ominous shape and a pair of sinister-looking eyes. Even before I took this photo the first image I saw was that of a large bundle of feathers with a pair of enormous wings extended.

A closer look revealed a great horned owl that had apparently just made a kill and looks none too pleased over my intrusion. Judging from its size I'd say it's a female and she's on full alert, unsure of my intentions. Her raised tufts and intense, glowering stare seem to be saying, "stay away."   

You may find it funny, but, I took several photos and talked to her the entire time. Though still eyeing me warily, she seemed less tense. Unlike a few previous encounters where the owls repeatedly clacked their beak and emitted a hissing sound, this gal just looked at me as I took her picture.    

I've long had an infatuation with mature great horned owls, dating back to my first enounter in the late Sixties. They are an ultimate predator, and while highly nocturnal, they do make daytime hunting forays. They can rotate their head 280 degrees, enabling them to watch their own back, so to speak. That's quite an asset while hunting from a perch. Their long, thick talons will easily skewer flesh and they are built for silent flight as there is no swooshing of air as it passes though their feathers. Except for mating calls and territorial warnings, they navigate the wilds without making a sound.

Eventually I turned and walked away, as fascinated as ever with the great horned owl.

James Maslow, member of Big Time Rush, which performed at Darien Lake last night, stopped in at Next Level Fitness yesterday for a workout.

Big Time Rush is both a boy band and a television series on Nickelodeon.

Maslow is a singer-songwriter and actor from La Jolla, Calif. who plays in the television series a Minnesota Hockey player who's moved to Los Angeles and cast into the band Big Time Rush.

Pictured are Andrea Mistler, Kristin Bates, Maslow and Tim Walton.

Photo submitted by Tim Walton.

New York Times: Momentum Builds Against N.S.A. Surveillance

A deputy has been dispatched to Gabbey Road, Pembroke, to check on a dog in the roadway.

The dog is wearing a sweater.

Last night, it was time again for the party of the year in the Town of Batavia with the fire department's annual Harley Raffle.

Paul Berardini, owner of Big Pauly's Pizza, won the Harley Fatboy.

Prints of photos available for purchase by click here.

One night you're playing the Grand Ole Opry. A few nights later, you're playing a campground. That's the life of a touring country star.

But Phil Vassar made it clear last night that he couldn't be happier playing Frostride in Le Roy.

He praised the setting. He praised the hospitality. He praised the acoustics of the venue.

"This is a special place," Vassar told the crowd after his fourth song. "We play a lot of places around the country and there's no place else like this."

On Tuesday, Vassar played at the Opry in Nashville and two days ago a 13,000-seat theater in Memphis on Thursday, but on Tuesday he said he was thrilled to be back at Frostridge, meeting with fans before the show and playing in the open air.

Vassar has 19 hit singles, including two number ones, "Just Another Day in Paradise" and "In a Real Love."

The opening acts included Rochester's Johnny Bauer, Jordan Diggory and Madeleine Snyder, a talented 15-year-old from Pittsford.