batavia

To all of our readers and sponsors: Thank you for your support of The Batavian. Happy Thanksgiving.

Changes in state law about when and how defense attorneys receive evidence in criminal cases are going to create a greater burden on police and drive up costs for the City and the County, members of the City Council were told Monday night.

City Attorney George Van Nest and Police Chief Shawn Heubusch made about a 40-minute presentation on changes to the rules around what is called "discovery" -- the prosecution turning over evidence and information to the defense -- and bail reform.

"What happened is the legislature passed, and the governor signed, a new form of Section 245 of that criminal procedure law," Van Nest said. "What it did is dramatically change the manner in which criminal discovery is handled in New York State effective January 1, 2020."

Under the current system, once a defendant is charged, a defense attorney would file a motion for discovery and the District Attorney would provide information and evidence the DA felt compelled to disclose under criminal procedure law and case law. This would happen over the course of the criminal proceeding including right up to the day of a trial if there was a trial.

The new law requires "automatic discovery" of everything related to the case within 15 days of the arraignment of the defendant. 

This new automatic discovery must include everything related to the case, including all information on witnesses or anybody with information relevant to the case, all written statements, all recordings in police possession or that the police know about, information on all physical evidence, and recordings of relevant 9-1-1 calls and dispatch.

Police officers and detectives will have only days to compile and deliver the evidence and information to the DA's office to give the DA's office time to index and inventory it and prepare it for disclosure to the defendant's attorney.

Both the compressed time frame of gathering and preparing the evidence for dissemination and the greater volume of information and evidence will consume more time for law enforcement and the DA's office.

In the case of traffic tickets -- the city issues about 1,500 a year --  all evidence must be turned over within 24 hours of the issuance of the ticket.

"This increases the workload of our officers and detectives and supervisors and our clerical staff," Heubusch said. "Officers and detective are going to be mandated to complete all paperwork and supporting documentation on a condensed schedule. What that equals is officers may be required to work overtime or maybe taken off of proactive police patrols in our community to make sure that we meet these timeframes so we don't lose any cases."

To help deal with the increased workload, the DA's office is adding another assistant district attorney, another paralegal and a part-time clerk.

Heubusch did not ask for additional personnel in his department but did note that the part-time clerk who handled evidence will now be needed on a full-time basis.

As for bail reform, Heubusch said starting Jan. 1, people accused of misdemeanors or Class E felonies will no longer be arraigned in City Court. The arresting officer, instead, must issue an appearance ticket. The officer must also issue appearance tickets, rather than taking the suspect in for arraignment, for second-degree burglary 2nd and second-degree robbery, all other violent felonies are still eligible for a bail review by a judge.

Types of criminal accusations that will require an appearance ticket include bail jumping, resisting arrest, vehicular assault, menacing, and criminal contempt (unless it's part of a domestic violence case).

Exceptions to the no-bail rules include cases involving members of the same household, a failure to identify oneself properly, a failure to appear in the previous two years, and cases where the defendant could have a driver's license suspended or revoked.

If a judge is going to set bail, the judge must set it as the least restrictive option. In most cases, this means release on own recognizance or release under supervision.

This home offers so much for someone looking for room to spread out. Large rooms, high ceilings, big bedrooms, tons of storage, two living rooms, gorgeous woodwork, hardwood floors and some of the County’s best farm land!

This property goes all the way over to East Road with frontage there as well – you could parcel off and sell or build your other dream home! So many possibilities—and all very well kept and lovingly cared for, definitely worth a look! Click here for more information on this listing.

There is a potential plea offer pending for Guillermo J. Torres-Acevedo, the 23-year-old Batavia man facing 10 criminal charges locally for allegedly having sex with an underage girl and taking her to Pennsylvania, his attorney told Judge Charles Zambito in County Court today. 

Attorney Thomas Burns asked for time to go over the terms of the plea offer from First Assistant District Attorney Melissa Cianfrini and also confer with Torres-Acevedo's attorney representing him in Federal Court on charges stemming from some of the same incidents.

Zambito deferred the case until 11:30 a.m., Dec. 6.

Torres-Acevedo is charged locally with: four counts of second-degree rape, a Class D violent felony; four counts of criminal sexual act in the second degree, also a Class D violent felony; second-degree kidnapping, a Class B violent felony; and second-degree criminal contempt.

In Federal Court, he is charged with transporting a minor across state lines for sexual activity. 

Authorities allege that in September, October, and November of last year, Torres-Acevedo engaged in sex acts with a teenage girl and then took her across state lines. He was eventually located with the girl in a Walmart in Mansfield, Pa., through a geolocation ping of her mobile phone.

Neither Burns nor Cianfrini revealed in open court the terms of the potential plea agreement nor was there any mention of whether Torres-Acevedo has an opportunity for a plea agreement in Federal Court.

The defendant is currently being held in the Genesee County jail.

A motor-vehicle accident is reported in the city at 6 Chase Park. A person was reportedly unresponsive but is now conscious. City fire, police and Mercy medics are responding. The location is between Vine and Elm streets.

UPDATE 1:02 p.m.: The female driver and sole occupant is being transported to UMMC for evaluation. Her vehicle struck an unoccupied parked car. It appears she was driving very slowly at the time of impact as little damage whatsover is observable to the vehicles. Sgt. Dan Coffey said charges are likely.

Justin P. McGirr, 37, of Ross Street, Batavia, and Jeremiah T. Jones, no age or address provided, are charged with disorderly conduct by way of fighting/violent behavior. They were arrested on Ross Street at 1:07 p.m. on Nov. 23 after Batavia police allegedly observed them fighting. Both were issued appearance tickets and are due in Batavia City Court on Dec. 3. The case was handled by Batavia Police Officer Joshua Girvin, assisted by Officer Stephen Quider.

(name redacted upon request), 28, of Hall Street, Batavia, is charged with criminal obstruction of breathing, third-degree assault and unlawful imprisonment. Batavia Police Officer Peter Post arrested xxx on the charges at 3:30 p.m. on Nov. 21 on Hall Street following a domestic dispute. He was arraigned in Batavia City Court and released under supervision. xxx is due to return to court on Dec. 4. Officer Peter Flanagan assisted in the arrest.

Katrina Lynn Drake, 29, of Locust Street, Lockport, is charged with fourth-degree criminal mischief. Drake was arrested after a domestic incident that occurred at 2:20 a.m. on Nov. 21 on Maple Street in Batavia. Drake allegedly damaged property. She is due in Batavia City Court on Dec. 5. The case was handled by Batavia Police Officer Mitchell Cowen, assisted by Officer Peter Post.

Susan Marie Devault, 49, of North Main Street, Holley, is charged with petit larceny. She was arrested on Nov. 25. She is accused of stealing a carton of cigarettes at a store on Bloomingdale Road on the Tonawanda Indian Reservation at 9:92 p.m. on Nov. 17. She was issued an appearance ticket for Dec. 11 in Alabama Town Court. The case was handled by Genesee County Sheriff's Deputy Jared Swimline, assisted by Sgt. Ronald Meides.

Matthew J. Florian, 31, of Pratt Road, Batavia, is charged with failure to appear. He was arrested Nov. 21 on a bench warrant out of Batavia City Court for failing to appear as scheduled on July 23. He was released on his own recognizance. The case was handled by Batavia Police Officer Wesley Rissinger, assisted by Officer Christopher Lindsay.

If the City of Batavia is going to address the concerns of some residents about an apparent deer overpopulation, an expert told the City Council on Monday night, the solution will require study and consideration and will need to be an ongoing effort for many years to come.

"It's not something you can just do once," said Susan D. Booth-Binczik (top photo), a wildlife biologist with the state Department of Environmental Conservation. "The deer are not going to stop doing what they do. They're not going to go away. Whatever you do, you have to do it year after year. Otherwise, you're going to end up right back where you started."

City Council President Eugene Jankowski said the city will soon appoint members to a committee to study the issue and come up with a plan for the city to pursue.

Deer become a problem, Booth-Binczik said, when the populations in certain areas become too large. Besides destroying property and presenting a road hazard, they upset the balance of the natural habitat.

And population centers are a natural place for deer herds to grow and become comfortable.

"Deer do really well living with us -- they're in our neighborhoods because we've created sort of deer habitat," Booth-Binczik said. "There's plenty of food, a lot of it in our yards and gardens. There's plenty of the edge they like because we like patches of forest mixed in with our lawns and golf courses and there isn't a lot of mortality."

If there isn't a mortality rate of at least 30 percent per year, deer populations will grow, and left unchecked, a deer population in a particular area will double in size very two to three years.

Killing deer, preferably does, may be the most effective way to reduce the deer population.

Solutions range from efforts to encourage or enable hunting to culling.

Culling involves allowing hunters to kill deers outside the regular hunting regulations, such as out-of-season, at night, and with bait.

Or the city could become the lead agency -- or allow another organization to be it -- and work out rules and guidelines for hunters so hunters could more easily go after deer in and around the city. This would mean getting permission from property owners for hunters to go on their land to either hunt or retrieve dead deer.

"What the municipality can increase residents' comfort level with -- the idea of hunting in the community -- is to run what's called a controlled hunt," Booth-Binczik said. "This is just a way to formalize the ability of the local landowners have to set restrictions on hunters that they allow on their property."

Typically these programs only allow hunters to kill does but since most hunters want bucks for the trophy of antlers, the city could provide a hunter with a permit to kill a buck after first killing two or three does as an incentive to first hunt does.

Thinning deer herds is important not just for community residents, Booth-Binczik said, but for the entire ecosystem.

"They essentially eat all of the plants on the forest floor," she said. "So they reduce plant diversity by destroying habitat. They reduce wildlife diversity. And they also threaten the future existence of the forest because when a big tree dies and falls, there's nothing to replace it because the deer have eaten all the baby trees."

Le Roy Police Department is putting on a special charity event on Saturday, Nov. 30, to help Genesee County families in need this holiday season.

Le Roy PD will be joined by New York State Police - Troop A in Batavia, New York State Environmental Conservation Police, Genesee County Sheriff’s Office, Batavia Police Department, Corfu Police Department, Genesee County Probation and Rotary International.

"Stuff the Cruiser" will take place 11 a.m. - 3 p.m. in the Target parking lot at Towne Center at Batavia on Veterans Memorial Drive.

Bring unwrapped toys, new clothing and nonperishable foods to stuff in a police vehicle. This is a kid friendly event, fun for the whole family.

More than 2 1/2 hours after the scheduled start time for a hearing a motion on allegations that Durin Rogers, City Court judge and assistant county attorney, has a conflict of interest in a Family Court matter, a reporter from The Batavian was denied access to hear arguments in the case.

Erin P. DeLabio, a judge from Erie County handling the motion after Judge Eric Adams recused himself, wouldn't even allow the reporter into the courtroom to make an argument for public transparency on the motion or grant a motion to delay the case until the reporter could obtain legal counsel. 

A deputy said DeLabio said that the motion was part of a sensitive matter.

According to a legal expert we consulted, Family Court is open to the public though individuals can be excluded from sensitive cases based on a finding supported by evidence. A motion about the attorneys in the case is not sensitive to the attorneys and the legal guardian of any children involved can consent to the presence of third-party observers.

There's no indication that DeLabio based her decision to exclude the press, and thwart public transparency of a case involving a fellow member of the judiciary, on any evidence nor that the legal guardian of the minors was consulted as to their position on a reporter being present for only the motion portion of the case.

Last month, attorney Thomas Burns filed a motion seeking to have Rogers removed from a Family Court case because of what Burns perceives as a conflict of interest.

The motion alleges that Rogers -- as a sitting, part-time Batavia City Court judge, with Burns' client also facing criminal charges in City Court -- has an apparent conflict of interest because Rogers has access to City Court documents and his position means he tries cases with other members of the county's criminal justice system who might also be involved in both cases. 

"As this court is certainly aware, and as DCA Rogers should be aware," Burns wrote in his motion, "a judge is obligated to avoid impropriety and the appearance of impropriety in all of the judge's activities and a judge is obligated to respect and comply with the law and is obligated to act at all times in a manner that promotes the confidence of the public in the integrity and impartiality of the judiciary," Burns wrote in his motion. "As this court is also aware, the judicial duties of a judge take precedence over all of the judge's other activities."

In a response to The Batavian for publication of the original story (see link above), Rogers denied there was a conflict of interest.

Photo: Taken of Erie County Judge Erin P. DeLabio from outside Genesee County Family Court through the doorway window.

Press release from the Batavia-based Libertarian Party of New York:

Yesterday, the New York Campaign Finance Commission voted to raise the threshold for political parties to gain ballot access. In so doing, they voted to deny choices to the millions of New Yorkers who are fed up with the two major parties.

All New Yorkers should know this: THE FIX IS IN.

Despite the claims of Jay Jacobs, minor parties are not “sham parties.” The Libertarian Party earned ballot access in 2018 with 95,000 votes. Now, Andrew Cuomo wants to move the goalposts further back to 130,000.

Unless the state legislature acts, this change will become state law. We call upon the legislature to reverse this shameful decision and allow voters a choice.

The Libertarian Party of New York is determined to fight for fair and open elections for all New Yorkers and will use every resource available to us.

SHAME ON ANDREW CUOMO AND SHAME ON JAY JACOBS!

Libertarian Party of New York

P.O. Box 1627

Batavia, NY 14021-1627

Submitted image and press release:

Northgate Free Methodist Church invites the community to its annual Vintage Christmas event on Friday, Dec. 6. This family friendly event will be “come and go as you please,” from 6 to 8 p.m.

Enjoy a guided tour of a live nativity through the community prayer walk, complete with yuletide carols and hot chocolate. Come decorate cookies, visit with Santa, enjoy a few classic Christmas movies on our outdoor movie screen, all while staying cozy around a campfire.

There will be a small devotional presented at 7 p.m., to ready our hearts and minds for the Christmas season, accompanied by a magnificent tree lighting.

This is a free event, open to all ages. Northgate Free Methodist Church is located at 8160 Bank Street Road, Batavia.

For more information, contact the Northgate office at 585-343-4011 or visit northgatefmc.com.

Get ready for some family fun!

• Take a Photo with Santa
• Free Kids Games & Activities
• Free Wagon Rides
• Free Hot Chocolate and Snacks!
• & Much More

The Park Place Event Center​ is located inside Batavia Downs Gaming & Hotel at 8315 Park Road, Batavia.

Click here for more information on this event!

After 35 years in the pizza business, 15 years as an owner, Paul Berardini, owner of Big Pauly's Pizza in Batavia, has decided it's time to stop tossing dough and do something else with his life.

He's sold his business to his manager, Angela Cinquino. She opens Cinquino Pizza at the same location on Ellicott Street next week.

In a way, the business has come full circle. Berardini's first job was in the pizza shop of Cinquino's father.

"My father had a pizzeria when I was a kid so (the pizza business) is kind of in our family our whole lives and I figured since my father passed away 15 years ago so I could just bring back the tradition," Cinquino said.

At 50 years old, Berardini said he's had enough of the grind of running his own restaurant.

"I haven't had a vacation in three years," Berardini said. "I've worked every night and weekend for 35 years. I have worked on holidays. I've worked Christmas Eve, Super Bowls. It's gonna be nice to just relax."

He said Cinquino is going to do a great job.

"She knows everybody that comes to the door," Bernardini said. "She has her customer base and they love her. They're excited. They're excited for her.  ... I think she'll do very well and she will be the second female pizza owner in town. I think that's also good for business, too. You know, as a woman in business, in a pizzeria, it's not a hot dog cart. This is big business."

Cinquino said she's developing her own logo and new signs will be out soon. She's changing the decor of the restaurant but all of the recipes will remain the same. She might expand the menu but nothing will be removed, she said. She's also keeping all of Pauly's staff and she will get more help from her family.

As for Berardini, he'll see what comes next.

"I made it 15 years as a business owner in Batavia I just decided to try something different," Berardini said. "I mean, I obviously have to work. You know, this isn't a Mark Zuckerberg deal where I'm going to make $50 billion. I still have to work. But, you know, this helps me clear up some debt and move on to another chapter of my life."

Despite holding police officers at bay for 20 hours a week ago, despite a prior felony conviction, despite alleged mental health and substance abuse issues, under the state's new bail reform rules, Daniel Wolfe could have gotten out of jail today at no cost.

Judge Charles Zambito was only able to set bail in the case because Wolfe allegedly violated a stay-away order of protection by twice trying to contact his girlfriend, whom he allegedly abused Nov. 18 before barricading himself in his apartment at 209 Liberty St., Batavia.

Without the allegation of those phone calls, Zambito would have been forced to release Wolfe under terms of the new bail standards.

The new bail reform guidelines -- designed primarily to address pretrial confinement issues in New York City -- don't take effect until Jan. 1. But First Assistant District Attorney Melissa Cianfrini made her request for bail under the new rules because otherwise Wolfe would be entitled to a bail review Jan. 1, when he's still likely to be in pretrial status awaiting further court proceedings in his case.

In setting the amount of bail, Zambito was allowed to consider other factors in the case that indicate Wolfe's potential to flee the court's jurisdiction. These include: the 20-hour standoff; the potential for a harsher sentence because of Wolfe's 2012 felony conviction; his potential for untreated mental health and substance abuse issues; and the fact he has a relative in Alaska, where he lived for a while in 2012.

Zambito also could take into account the fact that Wolfe doesn't have an apparent place to live now that his apartment is destroyed, though he also needed to consider Wolfe's inability to pay cash bail because he isn't employed.

Zambito set bail at $10,000 cash, $25,000 insurance bond, or $50,000 partially secured bond. Cianfrini requested $25,000 cash bail and Public Defender Jerry Ader requested $5,000 bail.

Previously:

• Liberty Street standoff ends; suspect being transported by ambulance
• Video: Part I of the Liberty Street standoff
• Video: End of the 20-hour standoff on Liberty Street
• Subject of 20-hour standoff on Liberty Street facing at least five criminal charges
• Defendant in 20-hour standoff appears in court, case continued to Dec. 1

As "Movember" comes to a close, members of the Batavia Police Department presented a donation of $2,215 to Genesee Cancer Assistance.

During November, officers were allowed to grow facial hair so long as they paid "fines" to Genesee Cancer Assistance.

Female members of the department also made donations and the Police Benevolent Association made a sizable donation, too.

Developer Sam Savarino heads into the holiday season optimistic that once the weather clears in the spring he will finally be able to begin construction on Ellicott Station -- the restaurant/brewery, apartment, and office complex on the former Della Penna and Santy properties on Ellicott Street in the City of Batavia.

Savarino said within days, once the application window is open, Savarino Companies will submit an application for funding assistance to the state's Home and Community Renewal agency and he expects a determination to be reached in January sometime.

It was good news last week, he said, when he learned that the Department of Environmental Conservation had opened public comment period for expedited remediation of environmental contamination at the sites.

Work will begin with cleanup of contamination followed by demolition of a portion of the main Della Penna building (the front part) and the rest of the buildings on the two sites. Then construction of the restaurant and brewery for Resurgence Brewing Company in Buffalo will begin.

If all goes according to schedule, the total project -- including office space and 55 apartments -- will be completed in October 2021.

There's a significant change in the funding plan. Savarino initially intended to finance the $19 million project (now $1.4 million more than the earlier estimates) using a federal program known as the New Market Tax Credit, where investors could get a tax break for backing the project.

Savarino said the timing of the project no longer favors using the New Market Tax Credit program.

He said, "a lot more of my money" is going into the construction of the multi-use complex to ensure the project is fully financed.