Tonight's Batavia City Council meeting was a conference meeting. The following items were discussed (no votes were taken):

Cedar Street reconstruction

In September 2009, the City Council authorized the Cedar Street reconstruction project. It is being paid for by federal highway money and will cost $2.8 million.

A total of 15 engineering firms were considered for a contract to provide engineering services for the project. A committee is recommending that Buffalo-based Erdman Anthony get the contract for $220,000 in engineering services.

Redevelopment

The Batavia Planning and Development Committee approved a residential redevelopment plan previously recommended by the City Council. At its next business meeting, the council will be asked to pass a resolution authorizing the plan.

It calls for foreclosed properties to be transferred to the Batavia Housing Authority so that the property can be deeded, under specific conditions, to qualified low-income families.

City budget

In keeping with Batavia's budget audit consultant, the City Council will need to adopt a resolution at its next business meeting to set up several reserve funds. These include: employee benefit accrued liability; self-insurance health benefit plan; workers' compensation; retirement contribution; and reserves for Dwyer Stadium repair.

The city has $3.5 million in compensated absence liability, with $1.3 million potentially due immediately, if the high number of employees eligible to retire actually did so. The resolution would authorize a transfer of $150,000 to the benefit accrued liability fund.

Another resolution would authorize the transfer of $100,000 to the self-insurance fund.

With $284,000 in potential workers' comp liability, another resolution would transfer $200,000 from the general reserve fund to the workers' comp liability fund.

Another resolution would transfer $150,000 for public works equipment and $50,000 for fire department equipment for future purchases.

The council is also being asked to transfer $200,000 to the retirement reserve fund.

Finally, the council is being asked to transfer $60,000 to the Dwyer Stadium repair reserve fund.

Ron Wendt's truck was likely traveling at 11 mph when it was struck by a Toyota Camry on Aug. 14, 2009 as Wendt attempted to make a left-hand turn into the parking lot of My Saloon on Broadway in Darien.

The Camry, driven by Rachel Enderle, 27, of Dansville, was likely going at 46 mph at the point of impact.

This is the testimony of accident scene investigator Deputy Ron Meides.

Meides said he had no ability to calculate the speed of the Camry in the second prior to impact.

Defense Attorney Thomas Burns asked a number of questions about the relative speed of the Camry and how much distance it would have traveled at those speeds.

Previously, Enderle and another witness have put the possible speeds in a range from 50 to 60 mph.

Witness Amanda McClellan estimated in earlier testimony that Wendt's truck was traveling at 30 to 40 mph as he attempted to make the turn.

Meides said his calculations were based on the distance the vehicles moved from the point of impact to where they came to rest. Because Wendt's truck hit a parked truck, therefore stopping motion, Meides had to begin his calculations on the distance that the stationary truck moved.

The starting point of the calculations was a gouge in the roadway. He estimated that the Camry traveled 10 feet from the point of impact and the Wendt's Dodge Ram moved 15 feet.

The weights of the vehicles with their respective passengers are also a factor in the calculation, as is the condition of the roadway. 

The type of roadway -- in this case "polished asphalt" (because of heavy use and age) -- adds "drag" to the motion of the vehicles (as does the condition of the tires, but not as much as the road surface).

Because the Sheriff's Office doesn't have the necessary device, Meides did not test for roadway drag to get a precise measurement. He testified that the number he used (called a co-efficient) was .5, which he said is standard under those conditions.

Other testimony today:

Sgt. Steve Mullen of the Sheriff's Office was called back to the stand to narrate a nighttime video he and other investigators made of driving past My Saloon. The video included two vehicles -- a truck stopped with its turn signal on in front of My Saloon and a sedan driving through Darien Center at 45 mph.

The only defense witness called today was Benjamin Bonarigo, an intern at his father's law firm, Bonarigo & McCutcheon. Bonarigo took additional pictures of the accident scene area on behalf of the defense.

Both attorneys rested their cases today and the jury was dismissed for the evening. Closing arguments begin around 9 a.m., Tuesday.

Once the jury was out of the courtroom, Burns resumed his motions for dismissal of all 11 counts against Wendt, saying that the People have failed to make its case that Wendt was driving under the influence and that he drove in a reckless manner.

District Attorney Lawrence Friedman was critical of Burns' motion, saying that Burns offered no proof that the People had failed to make its case. In fact, Friedman argued, there was sufficient evidence of DWI and that Wendt's actions were reckless.

"Obviously it’s our position, and I think that viewing the evidence in the most favorable light to the people, we have established reckless driving," Friedman said. "The defendant turned (left) right in front of a car that is so close. It’s not just his intoxication. It’s not just his traffic violation. It’s that he made the turn with the other vehicle in such close proximity."

The issue of recklessness -- and how to instruct the jury on the charges involving recklessness -- were also a big point of contention between Burns and Friedman when discussing how Noonan will instruct the jury on the charges.

Burns wants a charge that would require the jury to find that Wendt's behavior was clearly reckless, that he acted in a way that showed careless disregard for other people on a public highway. Friedman said under the law, the People don't even need to prove criminal negligence to get a reckless driving conviction -- just that the defendant took an action and it led to the death of another person.

Noonan will issue his rulings on how to instruct the jury on the charges in the morning, but he set no specific time on when he might rule on Burns' dismissal motions.

The prosecution in the Ronald J. Wendt manslaughter trial will not be allowed to submit evidence from a computer program that calculates and reaches conclusions on what happened in the Aug. 14, 2009 accident that killed a Dansville girl.

However, maps generated by the program that depict the accident scene without interpretation can be used, Judge Robert C. Noonan ruled in Genesee County Court today.

The combination of measuring devices and computer programs are known as Nikon Total Station, Vista FX (6th Edition) and Crashnet.

Noonan concluded that there are no precedents for using these programs for the purpose of accident-scene reconstruction and one of the tests of admissibility would be establishing general acceptance for that purpose by the scientific community. That has not been established, Noonan ruled.

In another matter, District Attorney Lawrence Friedman objected to photos brought into court today by defense attorney Thomas Burns, saying he hadn't been properly notified and questioning their evidentiary value.

Noonan ruled that Friedman could challenge the value of the photos as evidence at the time Burns attempts to enter them as evidence.

The photos were taken recently of the accident scene area. Burns said some of the photos show views that have not been offered into evidence by the prosecution.

As I've read our coverage of the Ron Wendt manslaughter trial, I've thought a couple of times it would be useful to see the scene of the accident, what the roadway is like, where buildings are located. 

To help with some perspective are four pictures from the scene. Note, to avoid any visual warping of perspective, I did not use telephoto settings on my lens. I did use a wide-angle setting from the porch of My Saloon.

Top picture is looking east on Route 20/Broadway from the low point of the road, less than 100 yards from the driveway of My Saloon (just past the Route 354 turn sign on the right).

For a bigger version of this picture, click here.

The trial resumes this afternoon.

More pictures after the jump:

Still looking east, but further up the road, where the speed limit changes to 40 mph.  Bigger picture.

The view looking west, the direction Ron Wendt was traveling. Bigger version.

The view from the front porch of My Saloon -- the vantage point of Amanda McClellan, who said she observed Wendt's truck going from 30 mph to 40 mph, and didn't apparently slow before trying to make the turn into the driveway.  The driveway is about four feet to the left of this picture. While McClellan couldn't have seen far up the road, to stand on the porch and watch cars go by gives a different perspective on just how much she could have seen.

New York Times story: U.S. Wants to Make It Easier to Wiretap the Internet

Boats are moored to their slips and the first tints of autumn are seen along the banks of Oak Orchard Creek. It was a great day to be outdoors. However, before we motored upstream, we began the morning on Lake Ontario.

John Lawrence, in back, Mike Ficarella in foreground, enjoying a balmy day. We're about two miles west of Point Breeze, off Lakeside Beach State Park.

That's the Somerset smokestack...... its actually located a short distance offshore, located around the point to the right and down the shoreline a few miles. Back in May I posted a photo of the smokestack as seen from Wheeler's horse farm on top of Molasses Hill in Wyoming County.

A gobi decided to make a meal of Mike's wobbling spoon.

A non-native species, this is a closeup of the gobi.

Out on the lake the wind began to pick up so John opted to motor up the creek.

John removing the weeds from his flatfish.

Heron scanning the creek while perched high in a tree.

Mute swan preening.

Turkey vulture swoops in for a closer look.

A bend in the river.

Another heron, this one doing its hunting closer to the water.

Soon it was time to head back downstream and lunch at the Black North Inn. Thanks John, for a great day!

Michael Richenberg, 20, from Elba, won the Genesee ARC 5K in Elba on Saturday. His 18:44 time beat Batavia High basketball player Collin Mulcahy, 16, by 12 seconds.

The other top 10 finishers were:

Kimberly Mills, 19, Basom, 19:08
Kevin Lavare, 30, New York, 19:14
Judy Arlington, 44, Lockport, 20:38
Chad Minuto, 34, Batavia, 21:04
Justin Carlson, 13, Le Roy, 21:07
Tom Moran, 57, Batavia, 21:17
Michael Skowronski, 13, Lewiston, 21:21
Patrick Miller, 45, Spencerport, 21:32

The top two women walkers were Kayla Russo, 16, of Williamsville, at 27:06 and Laura Felice, 74, of Jamestown at 40:37.

The top two men walkers were Paul Spiotta, 52, at 42:17 and Clarice Parrag-Graney, 68, at 44:07.

For complete results, click here.

Fumbles proved costly for the Lancers on Saturday, as more than one drive was snuffed by a lost ball.

The final score: Elba/Byron-Bergen 12 - Holley 24.

The Lancers held Holley's powerful offense scoreless in the first half, but blew a chance to take a lead in the second quarter on a fumble deep in Holley territory.

And that's pretty much how it would go the next couple of times Elba/BB took possession of the ball.

Holley finally broke the deadlock in the third quarter on a Chad Barhydt four-yard run. On the next drive, Holley made it 16-0 (with two-point conversions) on a two-yard run by Cadizsh Norford.

A 25-yard run by Spencer Greean would seal the deal for Holley, despite two touchdown passes from Eric Kowalik in the fourth quarter.

Kowalik hit Matt Ramsey on a 22-yard strike, and Ramsey also took a pass from Kowalik 65 yards for a score.

On both scores, Elba/BB failed on two-point conversion attempts.

For Elba/BB, Kowalik completed 10 of 12 passes for 178 yards and he rushed for 43 yards. Ramsey had five catches for 141 yards.

The Lancers are now 2-2 and Holley is 3-1.

In other Genesee County football action on Friday, Oakfield-Alabama (0-4) fell to Barker (2-2), 28-7; Attica (3-1) dropped Pembroke (3-1), 38-12; Notre Dame (3-1) beat Alexander (0-4), 33-12; and Batavia (1-3) won over Penfield (0-4), 20-14.

In the Genesee Region division, four teams now have 3-1 records: Holley, Attica, Pembroke and Notre Dame.

Also, interesting story from the D&C about how players in Section V are getting bigger.

More pictures from the Elba/BB game after the jump:

Passing through Corfu today, I stopped for mums and ended up taking pictures and meeting John Preisach, who came out to greet me.

Preisach's family has owned the greenhouses on Route 77 for 100 years and Preisach's been growing mums for 40 years. The greenhouses were heavily damaged in the tornado last year, but Preisach continues produce beautiful plants.

The body of Jeffrey Fredericks, missing since Sept. 15, was found late this afternoon in a wooded area not far from his home on Sumner Road.

The location is just a few houses to the west of Fredericks' house, with a field of a couple hundred yards deep between the roadway and the wooded area. The location is inside Darien Lake State Park.

Fredericks was the victim of an apparent self-inflected gunshot wound, according to Chief Deputy Gordon Dibble.

Genesee County Coroner Kristine Flanagain pronounced him dead at 4:44 p.m. His body was located at 3:56 p.m.

Fredericks was 66 years old.

Dibble said the body was found at the end of a long day of searching this particular wooded area.

Dibble said teams had continued to traverse the area in a grid search pattern and that searches were conducted Wednesday, Thursday, Friday and today.

The exact circumstances of his death remain under investigation.

The following agencies and organizations worked cooperatively over this 10-day period to locate Fredericks: Genesee County Sheriff's Office; New York State Park Police; New York State Police; New York State Forest Rangers; Erie County Sheriff's Office; Corfu Police Dept.; Genesee County Office of Emergency Management; Darien Volunteer Fire Dept.; Bennington Fire Dept.; Corfu Fire Dept.; the Massasauga, Niagara Frontier, Livingston and Oswego Search & Rescue teams; Genesee County Planning Dept.; and Darien Lake Theme Park Security. The Salvation Army also assisted.

For previous coverage, click here.

Friday night, lights are on, stadium is packed and it's Homecoming Week. It couldn't have been a better scenario for the Batavia Blue Devils football team as they upset visiting Penfield 20-14 Friday night in high school football action for their first victory of the season.

Senior running back, Ryan Pyatt led the offense for Batavia by rushing for a career high of 124 yards on 17 carries in his first varsity start.

Quarterback Aaron Gugel rushed for 73 yards and a touchdown on 15 carries and he completed 4 of 10 passes for 44 yards and a touchdown.

Sophomore wide-out Justin Washington had two receptions for 34 yards including a 10-yard touchdown reception. Mitch Francis added two receptions for 10 yards and another reception on a 2-point conversion. Francis also had a big day on defense by intercepting a pass and returning it for a 70-yard touchdown. He also had a kick return for 45 yards.

Kyle King led the defense for Batavia with 9 tackles, 2 for a loss. Kris Jones added 7 tackles, 2 for a loss. John DiFante added 4 tackles for Batavia and recorded an interception as well.

Nick Costanza scored for Penfield on a 32-yard run and David Roque caught a 37-yard reception from from QB Kyle Covley to give Penfield their 14 points.

Batavia improves to 1-3 while Penfield falls to 0-4.

A single-car accident has occurred at 10 Munger St. in Bergen. The vehicle struck a utility pole, which fell on top of it, and two of the three occupants ran away.

One male remains at the scene. Bergen fire and law enforcement are called to the scene.

The visiting Attica Blue Devils defeated the previously undefeated Pembroke Dragons last night by a score of 38 to 12.

The Attica defense held the Dragons to just 199 total offensive yards, 31 of which came on a touchdown pass from Cody Bedard to Caleb Lang. However, any momentum Pembroke gained on that play was quickly wiped away when Attica's special teams blocked the extra point attempt.

Attica's offense dominated throughout the game, gaining 340 total yards against the Pembroke defense.

Attica's Brad Clark contributed 147 yards on 25 carries on the day, averaging 5.8 yards per run, while Pembroke's Wyatt Chittenden and Jamie Scherer each had a respectable 10 tackles.

Perhaps the biggest difference in the game was the number of turnovers; Pembroke gave up four (two fumbles, two interceptions), while Attica didn't give up any. Next week Pembroke travels to Oakfield to take on the Hornets, while Attica goes back home to play Alexander.

Below is a video with some highlights of the game. I'm very sorry for the lack of audio. We had some technical difficulties.

The DWI trial of Ronald J. Wendt II hit a snag late Friday afternoon when the prosecution elicited testimony regarding the equipment used in the accident-scene investigation.

Without the jury present, Judge Robert Noonan questioned the admissibility of information about the Nikon Total Station, Vista FX (6th Edition) and Crashnet, saying case law and the equipments' use in other jurisdictions needed to be researched before he could make a ruling.

As a result, fact-finding in the case, which was expected to conclude by 5 o'clock, was reconvened until Monday at 1:30 p.m.

(The judge has another matter to handle Monday morning.)

All but perhaps two or three people present were in for a lesson in modern technology.

It began with the testimony of Genesee County Sheriff's Deputy Ronald E. Meides, who has nearly 20 years of service and was named Officer of the Year in 2009.

He took the stand at 3:30 p.m. and detailed his training, which included 14 weeks of field training, in accident-scene investigations and said he had handled about 1,000 of them, but only 20 serious enough to warrant an extensive report.

Meides investigated the accident scene in front of My Saloon in Darien in mid-August last year. Under questioning by Deputy District Attorney Kevin Finnell, he said the process includes viewing the scene, collecting data, observing the vehicles involved, noting skids marks, gouges in the pavement and environmental factors.

Measurements of tire marks, etc., are taken, in this case, on the day following the accident -- in the daytime on Aug. 15. Meides said the places where the vehicles came to rest had been spray painted and other physical evidence noted. Reference points are also noted -- a nearby drainage basin, a telephone pole, curb cut-outs, driveways, and the front porch of My Saloon.

A week later the officer went to Parisee's automotive shop in Alexander where the Sheriff's department secures and stores vehicles. He measured the "crushed profiles" of driver Rachel Enderle's Toyota Camry and defendant Wendt's Dodge Ram extended-cab pickup.

All of the data is stored in an electronic measuring device -- the Nikon Total Station -- and downloaded into a computer. Then a picture is drawn around the "data points" shown on the screen. The resulting diagram was projected in the courtroom Friday for the jurors to see.

The gist of Finnell's questions and Meides' answers seemed to indicate that this nifty tool used in creating the diagram can determine approach angles, (impact) departure angles, distances, points of impact, resting points, speed and on and on.

All ready to go for it, Finnell then asked "What happened in this accident?"

Defense Attorney Thomas Burns objected, saying there was no foundation established to allow testimony indicating the equipment is standard and accurate.

The jury was recessed and the judge left the courtroom to do a bit of research.

When Noonan returned, with the jury still out, he said his "research shows the Nikon Total Station has not been cited in any case in New York or elsewhere in the United States.

"Absent some indication by this or some other witness, that the Nikon Total Station is generally accepted, I can't allow testimony about it. I've never heard of it, know nothing about it, just that you put data in and get information. The objection is sustained."

But after all this took place, Finnell did his own research during a break and then offered that, well, Vista FX is really the computer-aided draft (CAD) software used in doing the calculations, the Nikon gadget is only a measuring tool -- a fancy tape measure, so to speak.

Noonan, who seemed rather exasperated, said that's the first he'd ever heard about the Vista FX, since no one brought it up before, and he asked if it was  "judicially recognized for admissibility purposes?"

At that point, close to 4:30, the prosecutors, including District Attorney Lawrence Friedman, scrambled to find a credible witness to testify about the widespread acceptibility of Vista FX. The judge, too, left the room briefly to research this thing, and upon his return announced that his efforts "were equally unfruitful."

But Finnell persisted, saying "It's a valid software program, a CAD program, widely used."

"Then we need to lay that foundation," Noonan said.

Whereupon, finally, Sheriff's Sgt. William C. Scott, who had left the courthouse only shortly before, returned and took the oath to testify.

Scott, with 21 years of service and hundreds of crash-scene investigations to his credit, told of his familiarity with Vista FX and the Nikon Total Station. These, he said, are routinely used by law enforcement, fire inspectors, engineers and the National Highway Traffic Safety Administration.

The Nikon Total Station uses a "reflective prism" to measure distance and other data and the Vista FX software is a CAD program which uses the Nikon information to map out the scene. These are specially geared for use by law and fire departments and in Genesee County they've been employed for 10 years, according to Scott.

"Once you put in the data, what does it give you?" the judge asked Scott.

"Points on a screen," the sargeant replied, which you can label and ID beforehand on the Nikon.

"Do these instruments calculate speed, direction?" Noonan asked, trying to put all the pieces together.

"No, not in and of itself," Scott explained, sort of. "They are used for you to make your own determinations. The program (Vista FX) can be input with information for it to calculate...the mathematics for crash measurements."

Scott said he was trained to use Vista FX by the vendor himself and his salesman.

Burns asked if Vista FX can calculate the results, if requested, for speeds of vehicles at the time of impact, or provide estimates of the kinetic energy, or amount of force, in a crash.

Yes, Scott said, he uses Vista FX and measurements gathered from other sources to glean information to feed into yet another wonder of the modern world, Crashnet.

This is a software program comprised of 150 mathematical equations, embedded in Vista FX, to provide answers once figures are manually put in. For example, the momentum of a bicycle involved in an accident with a car.

Burns asked if other members of the Sheriff's Department were also trained in Crashnet and Scott said that four or five others were trained the first week it was acquired.

This is also employed by the Sheriff's offices in Niagara and Chautauqua counties, among other organizations, Scott said.

"Have they put that before a court? Has it been used in any court?" Burns asked.

"I don't know," Scott responded.

"This is new territory," Noonan said. "I know you want me to make a ruling today, but I want to look into this a little more before reconvening (the jury)."

Eighteen-year-old Katie Stanley died in the crash Wendt is on trial for. She was a front-seat passenger in Rachel's car when it slammed into the side of Wendt's truck just after 11 p.m. on Aug. 14, 2009.

Batavia PD is asking for help in identifying the man in this picture. Investigators wish to speak to him related to a possible larceny at Tops Market. No further details were released.

A Covington man is being accused of trying to convince Walmart employees that he was a federal law enforcement agent.

Why isn't clear, but Nikko C. Gambino allegedly entered the Batavia Walmart on two occasions wearing clothing with law enforcement markings, displaying a badge and saying, the first time, that he was looking for robbery suspects, and a second time saying he was looking for a fugitives.

Following an investigation, members of the Genesee County Local Drug Task Force along with officers from the Wyoming County Sheriff's Office, conducted a search of Gambino's Covington home and reportedly found articles of clothing with law enforcement markings and a metal badge.

Gambino was charged with two counts of criminal impersonation, 2nd, and one count of falsely reporting an incident.

He was jailed on $5,000 bail and additional charges may be pending.

The case against Ronald J. Wendt II continued today in Genesee County Court with testimony from Deputy Tim Westcott and then Sgt. Brian Frieday.

Deputy Westcott was asked questions by the District Attorney Lawrence Friedman regarding the condition of Wendt at the time of the arrest. When asked if Wendt showed any indications of injury at the time of the accident, he replied with "no."

Wescott stated he was not aware of Wendt's purported forearm injury until after the arrest. When asked about whether he was aware of a pre-existing knee injury, saw any signs of allergies or knew of any allergies that Wendt had, Deputy Westcott responded with "no."

Friedman then asked Deputy Westcott if he had any doubts in his mind about the accuracy of the details in the arrest report and again the response was "no."

It was stated in the report that the last drink that Wendt consumed was at 10:50 p.m. and the accident occured at 11:08 p.m.

Westcott added testimony that when he asked Wendt, after he was under arrest, to submit to a chemical test, Wendt replied with "I don't know" and later consented after he was informed of the consequences if he did not.

Deputy Westcott also testified that, in his opinion, the flashing lights from the emergency vehicles would not have had any effect on Wendt's eyes while performing field sobriety tests, since the officer was facing the lights, not Wendt.

Frieday was called to the stand next. He supervises the midnight shift for the Genesee County Sheriff's Department and is the department's breath analyst advisor. He maintains the records of DataMaster breath tests, including the one given to Wendt the night of the accident.

Frieday testified that the DataMaster is sent to Albany once a year to be re-calibrated and tested to maintain its accuracy. Plus, every six months tests are performed on the machine over a phone line. He added that the supervisor also gives weekly simulated tests.

Assistant District Attorney Kevin Finnell then asked him how a BAC is reported on the DataMaster. Frieday said it is recorded in the machine up to three decimal places, but is only displayed on the machine in two. Thus, if a BAC was recorded in the DataMaster at 0.099 it would only be seen on the display and recorded as a 0.09 BAC.

Finnell then provided Frieday with documentation showing that the machine was calibrated accurately and Frieday testified that it was and that the DataMaster also operated properly the night of the crash.

During cross-examination, Defense Attorney Thomas Burns questioned Frieday about the accuracy of the results. Frieday stated that the DataMaster takes breath samples and uses mathematic equations to calculate the BAC, since actual blood samples are not tested.

Burns argued that the equation, which is based on the average person, is not the same for each person, therefore it could not be 100-percent accurate. Frieday subsequently testified that the fixed ratio is higher than the average person, therefore the BAC reading would actually tend to show lower than it really was.

Frieday said that the time that it takes to absorb alcohol into the blood stream depends on different variables including the amount of food in a person's stomach and how much they have eaten.

He testified that after 15 minutes it "would not be absorbed into the blood stream fully."

When asked by Burns if it could take upwards of two to three hours to fully absorb alcohol in the body, Frieday stated that it was possible and would be on the upward side of the absorption.

When asked if it could still be absorbing into the blood stream even after four hours, Frieday responded by saying "I have heard that number, I recall that number, yes."

The judge then dismissed the case until 2 p.m.

The expert witness for the defense in the Ronald J. Wendt II trial was grilled Thursday afternoon by the prosecution, which brought out some discrepancies in testimony given years ago in other trials.

Fran Gengo, Ph.D, is a clinical pharmacologist at the DENT Neurological Institute and currently serves as an associate professor of Pharmacy and Neurology and a clinical assistant professor of Neurosurgery at the SUNYAB School of Medicine. He now practices neuropharmacology research and pharmacotherapy.

His testimony yesterday concerned the rate of alcohol absorption in the body, the accuracy of breath analysis devices, specifically the DataMaster, and criteria for determining a person's level of intoxication.

Assistant District Attorney Kevin Finnell asked if alcohol can have an impact on a person's perception, eye-tracking ability, motor skills and cognition.

Gengo said he had to qualify his answer, "depending on the concentration amount."

According to testimony given in a trial on April 10, 2007 in Michigan, Finnell told Gengo, "you said you believe you can look at a person and determine if he's been drinking."

Gengo said, yes, but not whether that person was intoxicated. Finnell countered by saying Gengo back then said he could tell someone's BAC by looking at them, which Gengo flatly denied.

Back and forth they went, with Finnell asking a question and saying "that's a yes or no," and Gengo hesitating and saying the prosecutor was "mischaracterizing his words."

Finnell also asked him about his voluntary participation in unpaid activities, specifically  "grand rounds," a sort of group discussion with students and other professionals about medical, pharmacologic and related topics.

The witness on several occasions, including this inquiry, looked puzzled by Finnell's questions, as though he could not ascertain their relevance.

Finnell asked him if he was paid for his testimony, yes, Gengo replied, $500 to research and decide whether to take a case, and $3,500 for preparation and testimony.

Finnell pointed out that his prices had gone up since 2004, when he charged $2,000 for preparation and testimony. Finnell asked Gengo if favorable defense testimony resulted in more clients, therefore more money in his pockets.

Gengo replied that no, it didn't, his career was more dependant upon his credibility regardless of a trial's outcome, and furthermore, he accepts on only one of every six cases he encounters.

Then they parsed over how correct the calibration was of the DataMaster breathylizer once it left the factory with a rate of .002 accuracy in detecting the amount of alcohol in a person's system. Gengo maintained that, although that standard was higher than the state's .005 standard, the "instrument alone" shouldn't be the determining factor, rather a person's biology, whether they have eaten, their body-mass index, gender, are part of the picture as well.

"The mathematical calculations in some instances are arbitrary," Gengo said.

Inevitably, they went into the inscrutable territory of "partition co-efficients," citing an esteemed Swissman, Dr. Allen Jones's body of work and when and how Gengo's statements differed with this colleague, a man Gengo "had the pleasure of dining with on at least three occasions."

Jones has written, according to Finnell, that the body's rate of alcohol absorption is between five minutes to two hours. Gengo said that was wrong, he believes it to be 45 minutes to two to three hours. The provider of the course materials used to train officers, Intoxometer Co., claims it is 15 minutes to two hours.

"But that is not complete absorption," Gengo said. "It is the time of peak absorption. (In detecting alcohol levels) breath overtakes blood until absorption is complete."

On re-direct examination, Defense Attorney Thomas Burns asked Gengo if he was aware of any jurisdiction where two blows into a breathylizer are mandated. Yes, Dengo replied, but not in New York.

"I don't recall any case where they had the same numbers twice," Gengo said, although they are usually "within a narrow margin."

Gengo was able to explain that a "partition co-efficient" says that for every 2,100 molecules of alcohol in one's breath, there is one molecule in the blood.

This tends to "grossly underestimate the variance of alcohol levels of subjects in the field versus the laboratory."

For example, he said, if a person is running a fever, that can result in a higher number of molecules of alcohol in the blood.

After Gengo's testimony, Sheriff's Deputy Tim Wescott was recalled to the stand. Under questioning by Burns, the officer said he did not ask Wendt at the accident scene about his physical condition, whether or when he had eaten or slept, if he wore contacts and if he was injured.

But when placing handcuffs on him later, Wendt told the officer his left forearm was injured in the accident. Asked if that could have had an impact on his balance during the field sobriety tests, the officer said, yes, if could have.

Asked if he had looked inside Wendt's truck to ascertain any damage inside the cabin on the driver's side, Wescott said no, because he's "not the tallest man in the world" and it would have been difficult to do from a street level.

Batavia resident Dave Chua -- pictured with his son, Kian -- is set to lead the Next Level Running Team, which will compete in the Genesee ARC Friends & Family 5K on Saturday.

Chua formed this team recently with the help of a friend. He was inspired to do so by his son, who has Autism.

The objective of Next Level is to raise money for the Organization for Autism Research. Chua's support of this organization is founded upon his desire to promote "practical research that will open avenues to fuller, more complete lives for those diagnosed with Autism."

Next Level runners are eligible for a variety of gifts and prizes donated by area businesses. These include sunglasses, water bottles, a recliner, a spa treatment, and more.

"In the meantime," Chua says, "our runners will be benefitting from the experience and insight of other runners."

In addition to running in the 5K race on Saturday, Chua is going to represent the team by running in the New York City Marathon on Nov. 7. If you wish to support him in either of these events, please visit http://www.firstgiving.com/davidchua1.

Local sponsors of Next Level include the following:

T.F. Brown’s
The Legend Group
The Spa at Artemis
Blue Pearl Yoga
SolarX Eyewear
PK T shop
Oliver’s Candies
Lawley Genesee Insurance
T-Shirts Etc.
Southside Photography
Pauly’s Pizzeria
Max Pies Furniture
South Beach Restaurant
The Daily Grind Coffee Shop

Photo submitted by Dave Chua

Tonight, as part of its home coming game at VanDetta Stadium, the Batavia Blue Devils will honor its 2010 Hall of Fame inductees.

The ninth annual inductees are:

• Don Cerefin, 1947
• Bruce Beswick, 1970
• Sharon Leising, 1964
• Ernest Found Jr., 1970
• Barry Sheldon, 1967
• Matthew Doward, 1986
• James Briggs, 1969
• Teal Fowler, 1989
• James Dzierzanowski, 1969

Tonight's game is at 7 against Penfield.

The inductees will be recognized during a half-time ceremony.

Following the game, there will be a reception at Ri-Dan's Sports Park, 3755 West Main St. Road, Batavia.

The induction dinner is Saturday at Terry Hills. A social hour begins at 5 p.m., and dinner is served at 6 p.m., with the ceremony immediately after dinner.

Tickets are available at the Batavia High athletic director's office, or call 343-2480, ext. 2003.

More inductee pictures after the jump: