batavia

Jason Smith shared this photo of a deer he spotted along the Ellicott Trail this morning.

We stopped in for a quick chat with Ricky Palermo at Terry Hills on Saturday during his annual golf tournament to benefit spinal injury research.

Sunnking Electronics Recycling and Assemblyman Steve Hawley hosted an electronics recycling event in Batavia on Saturday, the first one Sunnking has held since the onset of the pandemic. With the use of preregistration, Sunnking was able to keep traffic flowing smoothly. 

A fawn is stuck inside the fenced in play area at the NYS School for the Blind on Washington Avenue in the city, according to a caller to dispatch. City police are responding to free the fawn.

UPDATE 1:54 p.m.: The officer successfully removed the fawn from the play area.

Pearl Blue Yoga in Batavia has announced that starting Tuesday, Aug. 4, instructor Lisa Ingalsbe will conduct yoga outdoors in Centennial Park.

The live outdoor yoga class will be held from 7 to 8:15 p.m. on Tuesdays this month. Cost is $10 per class.

This will be an all-level, adult class; you can relax while stretching and strengthening. There will be active yoga poses, breath work and stillness practices.  

Centennial Park is located at 151 State St. in the city.

Register online before 4 p.m. -- absolutely no walk-ins.

Things to know:

• Adults only;
• Bring your own mat;
• Bring your own optional yoga gear if you like, blocks, straps, blankets, water and sunscreen / bug spray might be good, too;
• There are NO restroom facilities at Centennial Park;
• Social distancing & face masks are required.

(If two or less people register, the teacher may opt to cancel. You will be notified through email by 5 p.m. and of course, fully reimbursed.)

Note that the in-person yoga studio at 301 Main St., third floor of the Masonic Temple building Downtown, will be reopening Saturday, Sept. 19.

The Fall Schedule is being developed and they are seeking input about days/times/types of classes people want. Any input would be appreciated. Email: bpyoga@gmail.com

Press release:

Batavia, N.Y. – Following recent reports that  a dog had to be rescued from a hot car in Batavia, PETA -- People for the Ethical Treatment of Animals -- is issuing an urgent warning about the importance of  never leaving animals in hot vehicles.

Twenty-four animals have  already  died  this year  from heat-related causes, and because COVID-19 is prolonging store wait times and errands, PETA is concerned that  this summer could see an unprecedented number of hot  weather–related animal deaths. 

On a 78-degree day, the temperature inside a parked car can soar to 100 degrees in just minutes, and on a 90-degree day, the interior temperature can reach as high as 109 degrees in less than 10 minutes.

Dogs, who don’t sweat and can cool themselves only by panting, can rapidly succumb to heatstroke, even if a vehicle is parked in the shade with the windows slightly open, which has little to no effect on lowering the temperature inside.

Anyone who leaves animals outside to suffer in severe weather may be  prosecuted for cruelty.

The following tips will help keep animal companions safe in hot weather:

• Keep animals indoors, and leave them at home when it’s hot outside.  Unlike humans, dogs can sweat only through their footpads and cool themselves by panting, so even brief sun exposure can have life-threatening consequences. Anyone who sees animals in distress and is unable to help should note their locations and alert authorities immediately.
• Never leave an animal inside a hot vehicle.  Temperatures can quickly soar in parked cars, and a dog trapped inside can die from heatstroke within minutes—even if the car is in the shade with the windows slightly open, which has little to no effect on lowering the temperature inside the car. PETA offers  an emergency window-breaking hammer  for help with intervening in life-or-death situations.
• Avoid hot pavement. When outdoor temperatures reach the 80s, asphalt temperatures can climb to 140 degrees, causing pain, burns, and permanent damage to dogs’ paws after just a few minutes of contact. Walk dogs on grass whenever possible, and avoid walking in the middle of the day. 
• Never run with dogs  in hot weather—they’ll collapse before giving up, at which point, it may be too late to save them.

PETA has released a hot-car public service announcement featuring Mckenna Grace. For more information, visit  PETA.org.

A caller to dispatch reports some kids are operating a golf cart in the area of Chestnut and Jackson streets in the city and appear to be heading toward Kibbe Park. City police are dispatched for the traffic complaint.

UPDATE 12:37 p.m.: The officer is out with an adult operator of the golf cart and two children in the first block of Chestnut Street.

Press release:

After decades of service, Rainbow Preschool, operated by Arc of Genesee Orleans, will permanently close on Aug. 14.

Rainbow Preschool, located in Batavia at 80 Union St., and in Albion, serves children from 2½ - 5 years old with developmental and intellectual disabilities.

After careful consideration by Arc of Genesee Orleans’ Board of Directors, this difficult decision was made due to the current environment of the coronavirus pandemic, uncertain funding and declining enrollment.

While no return to class date was set due to NY State COVID-19 restrictions, enrollment to date included 26 children.

The preschool provided special education, physical therapy, occupational therapy, assistive technology, counseling, parent training, music therapy, and speech/language therapy to help students achieve kindergarten readiness. Preschool staff are New York state certified teachers, with teacher assistants and aides in the classroom. 

“This decision was made with heavy hearts,” said Donna Saskowski, executive director. “For any children who are enrolled with Rainbow for the 2020-21 school year, we will work directly with parents and with school district representatives to secure appropriate placements and ensure continuity of services.”

Rainbow Preschool provided critical services to generations of children with and without disabilities and they have a proud history of service for children with special needs.

Press release:

By Tim Bojarski, for Batavia Downs

The 2020 racing season got underway at Batavia downs on Wednesday (July 29) with owners only on hand to watch the action. But absent a crowd and the usual fanfare, the horses showed up and took full advantage of a lightning-fast track.

A pair of $10,000 Open events headlined the card and the winner of each took a new seasonal mark for their efforts.

In the Open I trot, Il Mago (Jim Morrill Jr.) proved he was the best on the grounds this week after making every step from gate to wire a winning one.

Morrill shot Il Mago off the gate and to the front and the race could have been called at that point. Trotting like a loose horse on the point, Il Mago went quarters of :28.1, :57.1 and 1:26 flat, while extending his lead at each station. With only Chuckabuck (Drew Monti) remotely close, Il Mago was up by 3-1/2 at the top of the stretch and rolled home in front by 4-1/4 in 1:56.3.

It was the third win in the last four starts at three different tracks for the classy Il Mago ($2.80) who now has 49 career wins and $869,373 in earnings. The son of Kadabra-Northern Style is owned by Mike Torcello and trained by Gerry Sarama.

The fillies and mare Open I was also contested Wednesday and Julio’s Girl (Dave McNeight III) upset the apple cart for the second straight week.

HP Sissy ( Jim Morrill Jr.) left best and Lady London (Ray Fisher Jr.) followed while the rest of the field followed in post position order. After HP Sissy got to the half in :56.3, McNeight pulled Julio’s Girl first over entering the third turn and started the outside grind toward the leader. After a quarter-mile in the breeze, Julio’s Girl got even with HP Sissy at the top of the stretch and then paced clear down the lane to win by a length in 1:54.2, holding off a late rush from Protect Blue Chip (Billy Davis Jr.) and Gia’s Surreal (John Cummings Jr.) in the process.

After returning $33.60 in victory last week, Julio’s Girl blew up the tote board again in her seventh win of the year and rewarded her backers with $35.20 this week at Batavia. Julio’s Girl is owned by William Emmons and is trained by Jim Clouser Jr.

Jim Morrill Jr. had the hot hand in the bike on opening night, scoring a grand slam during the evening. Besides the already mentioned Il Mago, Morrill also won with Lyra (1:55.2, $4.90), Leaderofthepack (1:59.4, $4) and Edom Up Blue Boy (1:58.4, $2.30).

Dave McNeight III and Billy Davis Jr. also had productive nights, getting three wins each on the card.

Trainers Gerry Sarama and Jim Clouser Jr. led all conditioners with two wins apiece.

Racing resumes at Batavia Downs on Friday (July 31) with post time at 5 p.m.

A caller to dispatch reports about six or seven children are jumping off the new pedestrian bridge on Walnut Street, and into the Tonawanda Creek. City police are responding.

UPDATE 5:36 p.m.: An officer just arrived on scene.

James William Cason, 64, of West Main Street, Batavia, is charged with second-degree aggravated harassment. At 11:42 a.m. on July 24, the Genesee County Dispatch Center received a report of a harassment at an address on West Main Street in the Town of Batavia. Following an investigation into the incident, Cason was arrested for allegedly threatening harm to another person because of a belief regarding their race, color and nationality. He was arraigned in Batavia City Court July 29 and an order of protection was issued for the victim. He was released and will be scheduled to appear in Town of Batavia Court at a later date. The case was investigated by Genesee County Sheriff's Deputy Ryan DeLong, assisted by Deputy Howard Wilson.

Jacob L. Hernandez, 25, of Lewis Place, Batavia, is charged with second-degree harassment -- physical contact and two counts of second-degree harassment -- following a person. Hernandez was arrested on July 24 on an arrest warrant out of Batavia City Court. He is accused of following a person and striking another at 8 p.m. June 21 on Lewis Place in Batavia. He is also accused of failing to comply with court-ordered programs. Hernandez was processed at Batavia Police headquarters and released with an appearance ticket for July 28 in city court. The case was handled by Batavia Police Officer Wesley Rissinger, assisted by Officer Adam Tucker.

Booker T. Ricks III, 48, of North Lyon Street, Batavia, is charged with endangering the welfare of a child. Ricks was arrested after an incident on North Lyon Street at 7:47 p.m. July 18 where a child was allegedly left unsupervised and was found hanging out of a window at the residence. Ricks was released on an appearance ticket for Oct. 21 in Batavia City Court. The case was handled by Batavia Police Officer Adam Tucker, assisted by Officer Mitchell Cowen.

Jose A. Rivera, 34, of Swan Street, Batavia, is charged with second-degree criminal contempt and second-degree burglary. Rivera was arrested at 5:59 a.m. July 27 at an apartment on Swan Street in Batavia and allegedly being found in the presence of a protected person who had a stay away order of protection against him. He was arraigned in Batavia City Court and put in Genesee County Jail on $2,000 cash bail, $4,000 bond, or $8,000 partially secured bond. He was due back in court that morning at 11 a.m. The case was handled by Batavia Police Officer Samuel Freeman, assisted by Officer Joshua Girvin.

Lyndsay T. Young, 37, of Ross Street, Batavia, is charged with attempted assault in the third degree. Young was arrested after an investigation into a domestic incident that occurred at 7:13 p.m. July 18 on MacArthur Drive, Batavia. Young was released with an appearance ticket returnable to Batavia City Court on Oct. 20. The case was handled by Batavia Police Officer Sean Wilson.

Amy A. Potrzebowski, 34, of Burke Drive, Batavia, is charged with: leaving the scene of a property-damage accident; driving while intoxicated -- two previous convictions within 10 years; and moving from lane unsafely. Potrzebowski was arrested at 9:39 p.m. July 17 on Richmond Avenue in Batavia following an investigation into a motor-vehicle accident. Potrzebowski was issued traffic tickets and is due in Batavia City Court on Nov. 4. The case was handled by Batavia Police Officer Stephen Cronmiller.

Devon A. Wright, 18, of Batavia, was arrested at 8:15 p.m. on July 24 on two outstanding bench warrants out of Batavia City Court. One warrant was for failure to pay a fine in connection with his conviction on: second-degree harassment; fourth-degree grand larceny; endangering the welfare of a child; and attempted grand larceny in the fourth degree. The other warrant was for failure to appear in court to answer a charge of second-degree criminal contempt. Wright was observed traveling in a vehicle in the area of State Street by Batavia Police officers Hedges and Borchert, who are assigned to the area on a special Neighborhood Engagement Team (NET) detail. Wright was taken into custody by officers Tucker, Hedges and Borchert on North Street in the city without incident. He was arraigned in city court and put in Genesee County Jail without bail to appear in city court at a later date.

Patricia A. Herzog, 53, of East Main Street, Batavia, is charged with trespass. At 3:23 p.m. on July 20, Herzog was arrested after allegedly entering a business on East Main Street that she is banned from. Herzog was issued an appearance ticket and is due in Batavia City Court on Oct. 20. The case was handled by Batavia Police Officer Christopher Lindsay, assisted by Officer Sean Wilson.

Families who may have been defrauded by Michael S. Tomaszewski when they purchased prepaid funeral arrangements may want to consult with an attorney who is an expert in bankruptcy if they wish to recover any lost funds, according to a law school professor from the University at Buffalo.

S. Todd Brown is the vice dean for Academic Affairs for the UB School of Law and teaches bankruptcy law at the school.

"They would need to talk with someone to make sure their interests can be protected in the bankruptcy," Brown said. "I suspect there are lawyers who have been going around talking to different people, some people have probably already reached out to an attorney. This is an incredibly complex area of law."

Tomaszewski, both personally, and his company Acme Holdings of N.Y. filed for bankruptcy in Federal Court Feb. 5. Combined, Tomaszewski lists $1,094,346 in assets against $3,242,390 in liabilities. 

That doesn't include any restitution he may be ordered to pay if convicted of the nearly 200 criminal charges he faces locally.

The 48-year-old funeral director is charged with 91 counts of failure to deposit monies paid in advance in connection with agreements for funeral merchandise or services. He also charged with 61 counts of third-degree grand larceny, 29 counts of fourth-degree grand larceny, 4th, and three counts of petit larceny.

According to the Sheriff's Office arrest report from July 23, Tomaszewski received deposits form customers ranging from $350 to $15,500. His customers allegedly suffered a combined loss of more than $525,000.

That is a sum of money that people might expect a criminal court judge be repaid to victims once the defendant is convicted but it doesn't necessarily work that way, Brown said, when the criminal defendant has also filed for bankruptcy.

In general, bankruptcy allows an individual to discharge debts and get a fresh start. For businesses, Chapter 11 is a chance to reorganize debts. The judge may help the creditors and debtors work out a repayment plan that lowers the debt burden or if assets are liquidated, the bankruptcy judge will issue an order on how cash obtained during the liquidation is divided among creditors.

Creditors who provided secured loans -- meaning collateral for the money borrowed -- are top priority for repayment. If there is any money left over after secured loans have been paid off, the administrative creditors -- people handing the bankruptcy proceedings, such as attorneys -- are paid. Last in line are unsecured creditors. That is people or entities that are owed money but did not secure the debt with collateral.

The exception to this pecking order, Brown said, is when fraud can be proven.

A common example is if a person or business borrowed money under false pretenses, such as claiming assets that didn't exist or using the money for purposes other than promised.

For a funeral director, Brown used the example of borrowing money on the promise to build a new cemetery but then spending the cash on a new Ferrari or a monthlong trip to Las Vegas.

A funeral home director who accepts prepaid deposits for funeral arrangements could be considered a fiduciary (a person legally responsible for ensuring the money is handled only in the way specified by the contract and in the best interest of the person who owns the money). In order to determine whether Tomaszewski had a fiduciary responsibility to his clients, a lawyer would need to review any specific agreement along with applicable state and federal law.

A fiduciary who converts money to some other users cannot discharge the resulting debt in bankruptcy.

Using pre-need funds for other expenses in violation of the pre-need contract may also be considered fraud and fraud can't be discharged.

In either case, a bankruptcy court judge would need to make the determination on the debtor's obligation based on the case presented by an attorney representing such victims.

"This is really important," Brown said. "If they think they've been defrauded by this individual, they need someone who knows how the process works guiding them through it."

He added, "I tell my students when they enter my Intro to Bankruptcy class, I tell them, most of what we cover is general bankruptcy law. Unless you're working under the guidance of a talented and experienced bankruptcy attorney for at least two or three years, you're to commit malpractice if you go out and practice on your own right away because this is a very technical and complicated area of law. The importance of that story is to stress how easy it is for trained attorneys to mess up if they aren't practicing bankruptcy law regularly."

Brown also noted that a person who filed for bankruptcy can't make any payments on debt without the judge's authorization, even to creditors not listed in the bankruptcy. That rule applies for all debts paid for 90 days prior to filing for bankruptcy and until the bankruptcy case is resolved. The bankruptcy trustee has the option to recover any unauthorized payments from the creditors who received them.

Asked if a County Court judge to order restitution paid first, Brown gave an emphatic, "no."

"In terms of who gets paid when that's entirely the role of the bankruptcy court," Brown said.

For anybody who allegedly lost money to Tomaszewski through means other than fraud -- consider the petit theft charges he's facing -- any potential restitution there will be considered unsecured debt, meaning those possible victims will be among the last to get repaid, Brown said.

"People who have been defrauded need to have someone who is expert in bankruptcy law who is keeping a close on out for their interest in this case," Brown said but also acknowledge that for many people in a case such as this, they haven't lost enough money to interest an attorney taking on their case.

Previously:

• Local funeral director charged with stealing money from customers
• Sheriff's Office looking into report that Tomaszewski improperly handled stillborn baby's remains
• Darien Center couple would like the truth from Tomaszewski about what happened to their daughter's remains

Press release:

The City of Batavia Water Department is on location of a water main break. The break is on the National Grid right-of-way south of the Industrial Park. This is in the same area as the leak last week and the area will experience similar conditions.

The area has very low pressure currently, that should become better once the main is isolated. While no customers should be without water some area homes and businesses may experience lower pressure or discolored water.

We are making all attempts to have water restored to normal as soon as possible.

St. Paul Lutheran School in Batavia held a COVID-distanced graduation for its three fifth-grade students on Saturday.

A caller to dispatch reports four or five children are jumping off the new pedestrian bridge on Walnut Street, into the Tonawanda Creek. City police are responding.

His attorney, Thomas Burns, asked Judge Charles Zambito to make Torres-Acevedo's sentence in state prison concurrent with his Federal term but Zambito decided the defendant shouldn't get that benefit while also denying the prosecution's request to lock Torres-Acevedo away for up to six years in state prison.

Torres-Acevedo entered a guilty plea in County Court in December to one count of second-degree rape. Other charges against him were dropped as part of a plea agreement.

He admitted to being a person over the age of 18 and having sexual intercourse with a person under age 15 in the Town of Batavia sometime between Nov. 15th and the 26th in 2018.

Earlier that month, Torres-Acevedo entered a guilty before Chief U.S. District Judge Frank P. Geraci Jr. to enticing a minor, a 14-year-old Bergen girl, to travel across state lines to engage in criminal sexual activity. 

Torres-Acevedo was arrested in November 2018 following an Amber Alert for his victim. They were eventually located in a Walmart in Pennsylvania when authorities were able to locate the girl's phone at that location.