batavia

For the first time in public, Jacquetta Simmons told her side of the story today, and in front of the one audience whose opinion of the events on Dec. 24 at Walmart really matter: A jury of 12 Genesee County residents who tomorrow must decide whether a 26-year-old Simmons intentionally punched 70-year-old Grace Suozzi.

Simmons, now 27, said she had no idea she even hit Suozzi until hours later. She said she was horrified to learn she had injured Suozzi and it's been a painful realization ever since.

"I feel horrible about it," Simmons said during her only tearful moment on the stand. "I wasn't expecting somebody being -- how was I supposed to know she was standing right in front of me? I keep thinking 'how could I have hit this elderly lady and I don't remember that I hit her?' "

Reliving the realization, Simmons said, caused her to drop out of a business administration program at SUNY Brockport. She said she couldn't concentrate on her studies.

District Attorney Lawrence Friedman, however, judging by his cross examination, wasn't buying Simmon's contention that Suozzi was hit on accident.

While Simmons contends that somebody -- she doesn't know who -- grabbed her arm and, in her own words, she "aggressively" pulled away from the person, causing her to strike Suozzi, Friedman wanted to know how Simmons couldn't have seen Suozzi.

Through repeated questioning, Friedman got Simmons to admit that Suozzi was just a foot or so in front of her when she "punched" Suozzi.

The distinction between "punch" and "hit" came up a few times during a day full of testimony from prosecution and defense witnesses, with the implication being that "punch" meant an intentional act (though never explicity spelled out) and "hit" being accidental.

In various ways, through various questions about events, Friedman got Simmons, whose background includes volunteer work in literacy training and child and elder care, to repeatedly admit to "punching" Suozzi.

According to Simmons, here's how events transpired.

Simmons, she said, awoke at 10 that morning. Her mother asked her to go to the grocery store and purchase items needed for Christmas Eve dinner. Her brother, Isaac, tagged along, which Simmons said he usually does when she goes out for household errands (both Jacquetta and Isaac lived with their parents at the time).

First, the duo went to Tops and purchased some items.

Then they went to Walmart. They purchased turkey bags, cream cheese and three or four other items.

After going through one of the express lanes, they saw some chicken for sale in the hot foods section of Walmart and decided to buy something to eat.

They then got into another express lane. In this case, it turned out the cashier was Grace Suozzi.

When they got to the checkout counter, Simmons said she said hello to Suozzi and Isaac wished her a happy holiday, but Suozzi didn't respond.

After paying for the chicken, Suozzi, Simmons said, told her brother to hand over the Walmart bag and asked for a receipt.

Isaac told Suozzi his sister had the receipt.

According to Simmons, Suozzi kept asking Isaac for the receipt even as Isaac and Jacquetta kept telling Suozzi that Jacquetta had the receipt.

Simmons said her brother, who once worked for a Walmart in Henrietta, told Jacquetta, "they're not supposed to ask for your receipt anyway."

Suozzi then left her cash register and came around a "took" the Walmart bag from Isaac.

Either before or after Suozzi gained possession of the bag, Simmons pulled out a receipt and "showed" it to Suozzi (under cross examination, Friedman would focus on this point).

At some point after Suozzi had the bag, Simmons said she told Suozzi, "Give me my fucking bag back."

According to Simmons, Suozzi repled, "I'm not going to give you anything back."

She said Suozzi kept asking for the receipt and Simmons said, "I already showed you the fucking receipt."

At some point, Simmons said, Suozzi put the bag on the turnstile, and at that point, Simmons grabbed the bag. She said Suozzi reached for it at the same time, which caused the handles of the bag to rip.

She had to cradle the bag in her arm, she said, because it was hard to keep the items in the bag.

Simmons said she wanted to leave the store, but as she turned to leave, somebody grabbed her arm with some force.

"They had a nice grip on me," she said. "I pulled away very aggressively."

She said for a second afterward, she didn't know what to do and just stood there and then her brother told her to get out of the store.

Once outside, she said, she and her brother tried to get into her mother's minivan, which has a handicap placard and was parked in a handicap stall.

Two men, she said, came up to the van and opened the driver's side door and grabbed the keys from the ignition.

She said a woman came up and said, "You can’t hit a white woman like that. Who do you think you are? Who do you think you are?"

Simmons said with all of the people coming after her she was scared.

"We were being mobbed and they acted they like they knew what happened," she said. "I myself didn't know what happened completely."

With the van blocked in and no keys, she said she and her brother decided to leave the van and try to get away from the crowd.

During cross examination, Friedman called some elements of the story into question.

First, Friedman got Simmons to admit she was angry during the confrontation. Simmons adamantly wouldn't admit to being angry at Suozzi, but said she was angry at being asked to show a receipt.

Simmons also admitted that when she found the correct receipt in her pockets, she held it at a distance she knew would make it impossible for Suozzi to read.  Simmons, by her own testimony, never offered to hand the receipt to Suozzi.

Friedman also challenged Simmons on her claim that she didn't know she hit Suozzi until she saw the video at the State Police barracks.

In an incredulous tone, Friedman asked Simmons why she thought a crowd of people were chasing her in the parking lot, especially after Simmons said she thought it was because the crowd considered her a thief.

"Did they accuse you of stealing," asked a snarky Friedman?

"No," Simmons said.

Simmons also denied telling Trooper James Baines, who had testified earlier,  that "somebody grabbed me. I don't remember what happened. I just punched."

Simmons said she never told Baines, "I just punched."

Prior to Simmons' testimony, her brother Isaac took the stand as a defense witness.

Contrary to some of the testimony on Wednesday, Isaac testified that when Suozzi first asked for a receipt for the items in the bag in his hand, he said he refused to produce it.

The former Walmart employee said he told his sister, "You don't need a receipt."

He said his sister pulled out two receipts from her pockets, one from Tops and one from Walmart.

As for somebody grabbing his sister after Simmons regained control of the bag of merchandize, Isaac said, "A lady grabbed her and stuff."

Simmons pulled away, he said, and yelled, "Get off me."

A skeptical Friedman couldn't believe that a small, 70-year-old woman would take, by force, a bag of merchandise from the 6' 1", 211 pound Isaac Simmons.

According to Isaac, his sister never used the word "bitch."

Isaac denied calling his mother while in the parking lot and telling her, "Jac punched an old lady and she's going to jail."

He said he used the word "hit" and said he told his mother "the police are coming."

Under cross, Isaac admitted that in any version of his story prior to meeting with a private investigator from Key's office, he always used the word "punch."

To further impeach Isaac's testimony, Friedman questioned Isaac on his guilty plea in Greece for petit larceny.

Isaac, under repeated questions, admitted that he had committed numerous parole violations, including failing numerous times to report to his probation officer, using marijuana, testing positive for marijuana, drinking in violation of terms of probation, endangering the welfare of a child, operating a motor vehicle without a license, leaving Monroe County without permission and failure to notify probation when questioned by a police officer.

Isaac said he was trying to get his life together and was attending college.

In the morning, testimony began with a prosecution witness, Piper Sharick, a 16-year employee of Walmart.

Sharick said she hasn't worked since the end of April because she is suffering from PTSD as a result of the incident Dec. 24.

In attempt to calm down the situation after arriving on scene, Sharick said, she told Simmons she could print out another copy of the receipt.

"She just kept yelling, 'Give me my fucking shit,' " Sharick said.

When Simmons struck Suozzi, Sharick said, "It was a horrible sound, like the biggist, loudest smacking sound you could ever hear."

She testified that Simmons made a fist before striking Suozzi.

During cross examination, Sharick basically conceded the Batavia Walmart store had no policy in place on Dec. 24 for how to handle a customer who refused to show a receipt.

Next, for the prosecution, Samual Hackenberg (an assistant manager) testified that he didn't arrive on scene until after Suozzi was hit.

After ensuring Suozzi was being cared for, he went outside to see what was going on.

He testified that once outside, he said he heard Simmons say, "Do you think I care about these dirty white people?"

During cross examination, attorney Earl Key wanted to know why Hackenberg didn't tell anybody about this remark until a month after the event.

When Friedman re-questioned Hackenberg, he said he remembered the remark because after it was made, a coworker standing next to him quipped, "Well, I showered today."

The final prosecution witness was Trooper Baines.

Baines said Simmons asked him to see the video tape of the incident.

He said that when he told her, "I don't know how you're going to justify this one," Simmons just shrugged.

Just before the lunch break the defense called Patty Jacobs, even though the prosecution had not yet officially ended its case.

Testimony from Jacobs was taken early because of some schedule conflict she had if she was held over for the afternoon.

During the course of Jacobs' testimony, it was clear that Key was trying to find a way to get into evidence a statement Jacobs made on Dec. 28 on Facebook.

Jacobs wrote that day that she was in line behind Simmons and witnessed the whole event.

"The cashier asked her for a receipt," Jacobs wrote. "It was the wrong one, so she punched the elderly lady in the eye."

The jurors never heard that statement because of the nature of rules of evidence. Instead, they heard Jacobs say that she saw Simmons holding, but not showing to Suozzi, a Tops receipt, which she recognized because of the coupons on the back.

After lunch, the defense called Randy Johnson.

In his direct testimony, Johnson said he saw a woman grab Simmons' arm and Simmons swing her arm forward to try and escape from her clutches, causing her to hit Suozzi.

During cross examination, Friedman was relentless in impeaching Johnson's credibility.

First he called into question Johnson's claim that he's only lived in Genesee County for about a year.

With a stack of police reports, Friedman went through date-by-date numerous police contacts Johnson has had since November 2008.

Most of the contacts involved Johnson being kicked out of his mother's home, but Johnson has also been accused of unauthorized use of a motor vehicle, criminal mischief (for punching his parents $35,000 car) and being sanctioned by DSS.

Most of the calls involving his mother, Johnson said, is because she's an alcoholic.

Friedman then went after Johnson for discrepancies between his testimony Thursday and his previous statements to police and to the DA's office.

In July, Friedman interviewed Johnson. After repeated questions, Johnson admitted that he previously told Friedman that he could tell Simmons intentionally punched Suozzi based on his experience as a professional boxer.

According to Friedman, Johnson had said because of the way Simmons cocked her arm and the stance he took along with her follow-through, as a professional boxer, he recognized the swing and an intentional punch.

The final witness called by the defense was Donald Stillwell, the loss prevention manager for Walmart.

Stillwell testified that in order for a customer to be accused of shoplifting, a loss prevention officer or a salaried manager or an hourly shift supervisor must observe four things:

• The suspect selects an item;
• The suspect conceals the item;
• The suspect is under constant surveilance;
• The suspect bypasses the final checkout point without paying for the item.

If any one of those for criteria are missing, Stillwell said, the customer cannot be detained as a shoplifting suspect.

When Friedman cross examined Stillwell, he said the situation involving asking a customer for a receipt wouldn't fall under the shoplifting criteria.

He did say, once a cashier encounters a customer who won't show a receipt, the matter should be turned over to a customer service manager and the cashier should have no further involvement in the situation.

According to Stillwell, the Batavia store has one of the worst records in the Walmart chain for shoplifting, or what loss prevention professionals call "shrinkage."

In 2010, Stillwell said, the Batavia Walmart store lost more than $600,000 to thieves.

The following year, things only got worst with shrinkage exceeding $680,000.

An intoxicated individual has called dispatchers to report that he's in a wooded area in Batavia but can't find a way out.

His location plots off Mill Street, behind the skate park, near the Tonawanda Creek.  He's north of the train building.

Batavia PD is responding to assist the man.

This is apparently not the first time this individual has gotten lost in the same area.

UPDATE 11:33 p.m.: A Batavia officer is "down by the creek" (or "crick") and requests dispatchers try to re-establish telephone contact with the caller.

UPDATE 11:35 p.m.: Dispatchers re-established contact with the caller and are trying to get him to yell out so the Batavia officer can hear him. They're also going to try and get him to call back on 9-1-1 so they can again plot his location.

UPDATE 11:37 p.m.: He's northeast of the patrol cars. The dispatcher will  try to guide the patrol into the man's location. "He says he's stuck."

UPDATE 11:41 p.m.: The subject has been located.

This first video shows a ceiling view of express lane #2 in Walmart's grocery section when Jacquetta Simmons and Isaac Simmons purchase some hot chicken just before Grace Suozzi requests a copy of the receipt for items in a Walmart bag being held by Isaac. The sequence covers the entire transaction up to the point just after Suozzi leaves her register after Simmons grabs her bag of purchased items.

This video shows a wide aisle way from the point Randy Johnson, a defense team witness, enters the frame through the point where customers are following Simmons out of the store.

This video shows what transpired in the parking lot after Simmons left the store.

NOTE: A big "thank you" to Mark and Michelle Johnson of Millennium Computer on Washington Avenue in Batavia. Once the District Attorney's Office located a CD with the video on it that could be turned over to the media (the copy in the courtroom is evidence and could not be turned over), I took the CD to Millennium. Michelle, during lunch hour, immediately began making duplicate copies for all of the various news agencies that requested copies, such as WHAM13, News10, YNN, WBTA, WIVB, The Batavian and the Batavia Daily News. They did all this work for no charge to any of the media outlets.

Two dogs are fighting in the middle of the road on Lewis Place. City police are responding.

A tractor-trailer has struck the railroad overpass on Cedar Street. Batavia police are responding.

UPDATE 7:38 p.m.: The vehicle has Oklahoma tags. Howard, who went and took a photo, says the top of the rig "was peeled back like a sardine can."

Press release:

Batavia Downs officials are proud to announce that Charles R. Ruffino has been named the Italian-American of the Year. Mr. Ruffino will be honored with a special trackside ceremony on Friday, Aug. 31th, between the seventh and eighth harness race of the evening.

Charles Ruffino was born in Batavia and grew up on the Southside in the tight-knit community surrounding St. Anthony's Church. Within this neighborhood is where he developed a strong work ethic and commitment to community service.

Chuck attended St. Anthony's School, graduating from Batavia High School in 1957. He completed his education with a master’s degree from Buffalo State and began work as a teacher for the visually handicapped at the New York State School for the Blind. From teaching, Chuck entered into administration and transferred to the State Education Department as a regional associate and back to the State School as the assistant superintendent.

Along the way Chuck also served on the Batavia School Board of Education, as a councilman-at-large for the City of Batavia, as a legislator for Genesee County, on the Board of Visitors (currently chairman) for the State School for the Blind, as coordinator for US TOO, a cancer-support group and most recently a trustee for Genesee Community College.

It should be noted that next month he will be presented with the Charles Rapp Award as the outstanding college trustee by the New York State Community College Trustee Association in Albany.

On a personal level, Chuck’s family has always come first. He and his wife, Janet, celebrated their 50th anniversary last year. They raised three accomplished children and now enjoy the accomplishments of their four grandchildren.

Friends and family wishing to join Chuck Ruffino are asked to call Mary Bucceri at 343-3750, ext. 468, to make a clubhouse reservation.

Frank S. Smith, 18, of Lake Avenue, Perry; Zachary J. Ayres, 18, of Caswell Road, Byron; Thomas E. Hayes, 20, of Dellinger Avenue, Batavia; Matthew W. Ianiro, 17, of Elm Street, Le Roy; Maria L. Martinez, 16, of Horseshoe Lake Road, Batavia; and Adrienne S. Bechtold, 16, of Vine Street, Batavia, are all charged with criminal trespass, 2nd. Smith is additionally charged with unlawful possession of marijuana and unlawful possession of alcohol under age 21. Ayres and Hayes were charged with unlawful possession of alcohol under age 21. The suspects are accused of being inside an apartment on Walnut Street at 11:40 p.m., Tuesday, without permission of the resident, who was not home at the time.

Michael James Mead, 25, of Elmwood Avenue, Rochester, is charged with criminal contempt, 2nd. Mead is accused of trying to pass a message through a third party to a person protected from contact by a court order.

Samuel Robert Thompson, 57, of Highland Avenue, Batavia, was arrested on a bench warrant out of Monroe County and turned over to Rochester. The reason for the underlying warrant was not released.

Lisa Marie Sequerth, 42, of West Main Street, Batavia, was arrested on a bench warrant for an alleged failure to pay a fine. Sequerth appeared in family court on an unrelated matter and was taken into custody for an alleged failure to pay a fine on a case in county court.

Margaret C. Henderson, 59, of Arrington Drive, Selbyville, Delaware, is charged with DWI, driving with a BAC of .08 or greater and speeding. Henderson was stopped at 7:39 p.m., Tuesday, on Route 20 in Bethany by Sgt. Greg Walker for allegedly driving 100 mph in a 55 mph zone.

Gregory Seppe, 48, of North Spruce Street, Batavia, is charged with appearing in public under the influence of narcotics. Seppe was allegedly under the influence of drugs at Prestige Crossing, Batavia, at 11:25 a.m., Aug. 15. Seppe allegedly fell off his bicycle numerous times on a public roadway endangering himself and causing a public annoyance. The case was investigated by Deputy Chris Parker, assisted by Officer Eric Hill.

Tyler Steven Prescott, 16, of Ellicott Street Road, East Bethany, is charged with criminal mischief, 3rd. Prescott is accused of participating in destruction of property at a residence in Pavilion on Aug. 11.

The defense of Jacquetta Simmons, the 26-year-old Batavia resident accused of punching a 70-year-old Walmart employee on Christmas Eve, seems to rest on convincing a jury of 10 women and two men that Simmons swung her arm to escape the grasp of another woman and hit Grace Suozzi by accident.

Witness after witness today offered testimony that either contradicts or doesn't support that theory of the case.

Suozzi herself testified that she clearly saw Simmons draw her arm back to prepare a punch, causing Suozzi to try and raise her arm in a futile attempt to protect her face from the punch.

Testimony today was laced with profanity as witnesses recounted what they remember Simmons saying during an argument over producing a store receipt that escalated into the alleged assault.

Early in her testimony, Suozzi apologized to the jury for the language she would have to use, but the Italian immigrant grandmother was required to repeat one F-word after another as she recalled Simmons streaming verbal abuse.

The one profane word Suozzi didn't attribute to Simmons, the C-word, was mentioned by a young male Walmart employee, and when he uttered it, a ripple of reaction went through the mostly female jury.

Jurors were also shown three videos that captured some of what happened Dec. 24 inside and outside Walmart.

The sequences are not true video, but more like a string of still-frame pictures, making the visual record jerky and filled with gaps.

The key event of the video, when Suozzi was hit, is off to the left of the frame. It's a small portion of the frame, and with other people standing around it's hard to discern exactly what took place just prior to Simmons swinging her arm.

Numerous news outlets, including The Batavian, have requested copies of the video. Judge Robert C. Noonan said he is inclined to honor the request, considering the video at this point to be public record. But defense attorney Earl Key, who said already he opposes the release, will be able file a formal motion against the release in the morning, if he chooses.

The first witness called by the prosecution was James Gayton, of Batavia. Gayton said he and his finance were in the next check-out line over when he heard somebody starting to yell profanities.

"I don't need no fucking receipt," is what he said he heard.

He was close enough, he said, to hear the man with Simmons -- identified as her brother Isaac -- on the phone saying, "Mom, come quick. Jac's flipping out at the cash register and we need a receipt."

He said after he saw Simmons hit Suozzi, the brother and sister ran from the store and he ran after them. 

Simmons had parked the minivan she was driving in a handicapped spot -- her mother is reportedly handicapped -- Gayton said, and there was another car parked at an angle, apparently illegally. Gayton said he convinced that driver to back up so Simmons was unable to pull the minivan forward. When a truck came down the parking lane, he convinced the driver to park behind Simmons' van.

Somebody else grabbed the car keys from Simmons (another witness testified the keys may have been taken from the van's ignition). Simmons and her brother then began walking away from the minivan but store patrons pursued them.

Gayton testified that at no time did he see anybody, inside or outside the store, grab Simmons.

His finance, Nichole Newton, also testified that she didn't see anybody grab Simmons.

Newton testified that she heard Isaac Simmons on the phone while in the parking lot talking on his mobile phone, saying, "She punched an old lady, Mom. You need to come. She punched an old lady and she's going to jail."

The next witness was Alex Derefinko.

He said he became aware of the argument while he was in the store when he heard Simmons say repeatedly, "Give me my shit, bitch."

He said the observed a Walmart employee trying to ask Simmons something, but Simmons continued to yell profanities at her.

He said he had turned away for a second to complete his own purchase and when he turned back, he saw Suozzi get hit and go flying across the store floor.

Under cross examination by Key, Derefinko said he didn't see anybody standing next to Simmons prior to the punch being thrown.

Sharon Reigle, a Walmart customer service manager, testified that she came to Suozzi's register after she heard a call on her walkie-talkie for another CSM to respond.

When Reigle arrived, she said, Suozzi was behind her register, holding a bag of merchandise and Simmons was yelling at Suozzi.

"I wanted to try and defuse the situation," Reigle said.

While Reigle said after eight months she couldn't remember exact phrases and sentences used by Simmons, she said Simmons dropped F-bombs multiple times.

A video taken from a camera directly above Suozzi's register reveals, according to Reigle's testimony, Suozzi standing at her register holding the bag of items purchased by Simmons and Suozzi discussing the matter with a person who is off camera (Reigle said the person was Simmons). Reigle is off camera as well.

At one point, it appears that Suozzi points her finger at Simmons.

A few seconds later there is a hand that reaches out toward Suozzi. It happens so fast and the video so choppy, it's hard to see. Then Reigle's arm is clearly seen outstretched toward Suozzi.

Reigle said she reached out because she was trying to protect Suozzi.

As soon as the bag of merchandise is snatched from Suozzi's hand -- Suozzi is still holding the plastic handles -- Suozzi is seen leaving the area behind her register and heading in the direction Simmons was apparently standing.

On cross examination, Key focused on why Reigle reached out toward Suozzi.  He expressed doubt that the motion was meant to protect Suozzi since Simmons wasn't making a motion toward Suozzi's face, but rather reaching toward her waist where she held the bag.

Key drew out from Reigle that it is against store policy for an employee to touch a customer and that such an offense could lead to immediate termination.

In questioning, Key tried to determine whether Reigle was attempting to touch Simmons as she reached for the bag.

Key then turned his attention to the video that shows the wider in-store angle.

Prompted by Key's question, Reigle identified herself as the woman in the maroon blouse who was implicated in Ann Nichol's opening statement as the person who grabbed Simmons' arm just prior to Suozzi being hit.

In response to Key's questions, Reigle denied laying a hand on Simmons.

Under questioning, Reigle also identified two of Walmart's undercover loss prevention officers. She also admitted that it's store policy that when CSMs are dealing with combative customers, the lost prevention officers should be summoned because they have more experience and training in dealing with difficult customers.

Reigle said she wasn't aware of the loss prevention officers being requested to the scene.

Next on the stand was Suozzi herself.

Cianfrini opened her questioning by asking about Suozzi's personal history, which begins in Italy on Dec. 9, 1941, when she was born.

Eight years later, her entire family -- two parents and seven children -- entered America through Ellis Island (for "freedom" Suozzi said).

One of her proudest days was the day, when pregnant with her first child, she received her official citizenship document.

Suozzi has been a member of St. Anthony's/Resurrection Parish ever since coming to America.

When it came to describing the events of Dec. 24, Suozzi said after Simmons paid for the hot chicken she and her brother purchased, she noticed Isaac Simmons was carrying a Walmart bag with merchandise in it.

The items were reportedly purchased by Jacquetta and Isaac several minutes earlier when they went through Lane One. They were going through Suozzi's lane, Lane Two, after deciding to purchase some hot chicken.

Suozzi said Isaac readily handed over the bag, but when she asked Simmons for a receipt, the first words out of Simmons mouth, she said, were "Fuck you. I don’t have to show you any fucking receipt."

Suozzi said Simmons used the F-word at least a dozen times.

"If we ever used that word at Walmart, we would be fired on the spot," Suozzi said.

According to Suozzi, the local Walmart store initiated a policy five months prior to the incident of cashiers asking to see receipts when encountering customers with Walmart bags filled with merchandise.

Both under questioning from Cianfrini and from Key, Suozzi did not seem to understand questions about what her policy training was when a customer refused to produce a receipt or becomes confrontational over the issue.

Suozzi said Christmas Eve was the first time in her experience a customer had refused to produce a receipt when asked.

Key asked that since the policy was only five-months old, surely there hasn't been many opportunities for Suozzi to ask a customer to produce a receipt. "It must be rare," Key said. "No, it's not rare," Suozzi replied.

After the incident started, Suozzi tried to summon help from a customer service manager. The process for requesting CSM help is for the cashier to input a code into the cash register, which Suozzi said she did three times.

"I just wanted to hurry her over so the customer wouldn't have to wait," Suozzi said.

While waiting for a CSM, Suozzi rang up purchases from two more customers.

During the process, she continued to hold Simmons' bag.

When asked why, Suozzi said she thought it would be rude to put a customer's bag on the floor and she had no place else to put it.

"Out of courtesy, I thought it was the right thing to do," Suozzi said.

While waiting, Simmons continued to hurl profanities at her, Suozzi said.

"How did that make you feel, to hear the F-word in your presence?" Cianfrini asked.

"It was humiliating," Suozzi said, "embarrassing."

After a pause, she added, "I was embarrassed for the customers who had to listen to that."

Suozzi admitted her exact memory is fuzzy on the sequence of events after the bag of merchandise was grabbed from her hand, but she did say she remembered two things clearly: Simmons calling her a "fucking white bitch" and just before hitting her, she saw Simmons draw her arm back, make a fist and start her swing.

As the swing came forward, Suozzi said she tried to raise her arm to protect herself.

At no time, Suozzi said, did she see anybody grab Simmons by the arm.

About the only time Suozzi cried on the stand was when recalling a nurse who came to her aid after she was hit.

"I remember a lady knelt right beside me and said she was a nurse, I don't remember from where, Michigan or Massachusetts, and she asked me not to move and she asked me if my back hurt or if my shoulder hurt and told me to stay still," Suozzi said. "She was a very kind lady. I wish I had gotten her name."

The first feeling Suozzi said she remembers was feeling numb. Later, when transported by ambulance to UMMC, she said the pain in her face, on a scale of 1 to 10 was an 8. By the time she was in the emergency room it was 9 or 10.

Under questioning from Cianfrini, Suozzi said she continues to suffer aliments from being hit to this day and continues to take Tylenol to help manage the pain.

For months she saw white light flashes and though the flashes stlll occur, they are not as frequent or intense.

She still feels pressure on the left side of her head, has blood pressure problems and is scared to leave her house.

"I haven't slept a whole night since the incident," Suozzi said. "I sleep sound for two hours and then I'm up for three hours and all I can think about is the assault."

Ann Nichols handled the cross-examination of Suozzi and she focused on a statement Suozzi made to State Police while in the emergency room. Nichols tried to get Suozzi to admit that she told a trooper that she "took the bag" from Isaac Simmons.

Suozzi told Nichols that the receipt check policy was communicated to her verbally and she was given no other instructions.

After Suozzi's testimony, another cashier, Dylan Phillips, took the stand.

Phillps said he was just starting his break, buying a few personal items in check out lane five or six, when he heard yelling. He moved to another vantage point, but not necessarily closer to the action and watched what was going on.

He said he heard Simmons direct the C-word at Suozzi.

Key wanted to know where Reigle was standing in relation to Simmons just before Suozzi was hit.

Using the podium as a prop, Key asked Phillips to tell him were to stand. Phillips directed Key to move a couple of steps forward. Phillips said Reigle was three or four feet away from Simmons.

With that response, Key sharply turned on his heels toward the defense table and said, "Nothing further for this witness, your honor."

Following Phillips was Lisa Biegaswiecz, a cousin by marriage of Suozzi's who happened to be in the checkout line behind Simmons.

She said Suozzi politely asked Simmons for a receipt and Simmons immediately became confrontational.

Biegaswiecz quoted very little profanity from Simmons but said she did hear something like "fucking white ..." but couldn't hear the next word.

She also said she didn't see anybody grab Simmons and she saw Simmons draw her arm back and make a fist.

The trial resumes at 10 a.m., Thursday. Judge Noonan told jurors he expects a full day of testimony and evidence presentation, but that he still thinks the trial will wrap up by Friday.

A train's traction wheels, or possibly brakes, are smoking at the Walnut Street railroad crossing and city firefighters are responding to the call, which came from CSX.

UPDATE 12:33 p.m.: The incident is on the main line, just east of Donahue Road, and it's determined to be outside city limits. The Town of Batavia Fire Department is handling the call and the city's crews are standing down.

UPDATE 12:46 p.m.: Dispatchers were told by CSX authorities in Albany that train traffic was stopped to accommodate emergency responders. Then firefighters see a train chugging down the tracks in the opposite direction. So are the trains stopped or aren't they? Dispatch can only relay what they were told. "You can only do so much," one says.

UPDATE 1:02 p.m.: First responders on scene report fire is dying down, assignment held to units already responding.

UPDATE 1:12 p.m.: The smoking wheels are no longer smoking.

UPDATE 1:23 p.m.: Batavia fire is back in service.

In her opening statement, defense attorney Ann Nichols told the jury in the Jacquetta Simmons trial this morning that her client didn't intend to hit a 70-year-old Walmart employee on Christmas Eve.

Nichols said when Simmons tried to leave Walmart after producing a receipt for her purchases, a woman in a yellow maroon blouse grabbed her arm and Simmons tried to pull free and her arm swung around at struck Grace Souzzi as Souzzi stepped from behind her register.

"This is an unfortunate accident," Nichols said.

During her opening, Nichols described a several-minute event that began with Simmons and her brother Isaac purchasing grocery items in lane one at Walmart and then after spotting some hot chicken for sale decided to return to lane two, where Souzzi was working, and pay for the chicken.

After a quick transaction to pay for the chicken, Simmons and her brother started to leave and Souzzi pointed at the bag in Isaac's hand and asked to see a receipt.

Nichols said the surveillance video will show Simmons looking in her pockets for the receipt when Souzzi comes out from behind her register stand and grabs the bag. She said Souzzi continued to hold the bag while checking out other customers.

Over the next couple of minutes, other managers come to the register, one or two leave and come back, while Simmons continues to look for the receipt for her initial purchase.

Souzzi places the bag under her register, according to Nichols, and seconds later Simmons finds the receipt and held it up for Souzzi to see.

"But that's not good enough for Grace," Nichols said. "She wants to physically hold the receipt."

Souzzi then takes the bag into her hand again and places it on the counter.

At that point, Simmons grabs her bag and tries to leave. Nichols said Souzzi reached for the bag, the bag started to tear. Nichols said Simmons cradles the bag in her arm.

As she's trying to leave, the scene has attracted a lot of attention and there are more managers and other people around and these people are starting to get involved, grabbing at Simmons.

At that point, the video will show a person grabbing Simmons' arm, Nichols said, and Souzzi steps out from behind her register walks into Simmon's arm swinging forward.

"It was no roundhouse punch," said Nichols, countering a statement by Assistant District Attorney Melissa Cianfrini in her opening statement.

In her opening, Cianfrini described the kind of day Souzzi expected to lead on Christmas Eve, cooking for her family after work and attending Christmas Eve Mass.

"What Mrs. Souzzi didn't know was in the next few minutes, her best laid plans would be ruined and her life would be forever changed," Cianfrini said.

After describing Souzzi's injuries, Cianfrini said, "She would not have Christmas dinner with her family and she would not be able to attend Christmas Eve or Christmas Day Mass for the first time in her life."

"All of this happened," Cianfrini added, "because Mrs. Souzzi made a simple request, to see a receipt."

Cianfrini said witnesses will describe Simmons as angry and yelling profanities throughout the confrontation.

"Rather than produce a receipt that she did have," Cianfrini said. "She delivered a crushing blow with a closed fist to Mrs. Souzzi's face. This wasn't a hit. It wasn't a slap. This was an intentional and vicious roundhouse punch to her face."

Cianfrini said she is confident the evidence will show Simmons intended to physically injure Souzzi.

The trial is currently ongoing with the first prosecution witness on the stand.

Earlier this morning, a Batavia PD officer responded 138 Jackson St. for a report of sporting goods strewn across the lawn.

A police officer secured a golf bag containing golf clubs and a tackle box.

The reader who alerted us to this discovery suggested the items might be stolen and perhaps a crime victim might want to know what happened to his or her items.

The sporting goods have been secured in the found property room at Batavia PD.

There were also a couple of morning reports of overnight thefts. An Elm Street resident reports having two large flower pots stolen and another city resident said a GPS unit and other items were stolen from his car.

A two-car accident is reported at Lewiston Road and West Main Street.

Law enforcement is on scene, reporting no apparent injuries, though air bags were deployed.

The accident is blocking.

Town of Batavia fire dispatched.

UPDATE: One patient was transported to UMMC with minor injuries.

Jason Lang, the local businessman who caught got up in using bath salts and still faces some criminal charges that appear to stem from his use of the chemical substances, is doing much better, according to family members.

Lang appeared in Town of Batavia Court on Tuesday, which is a big step forward from July 17, when he didn't make it for a scheduled appearance, but did meet with reporters in the court parking lot minutes after his attorney left the facility.

Observers at the courthouse said Lang looks much healthier and his mother and sister say his mental outlook and demeanor have improved.

Today's court appearance was to answer to charges stemming from an alleged phone call he made to the owner of 400 Ellicott Street attempting to convince the landlord not to rent to The 420 Emporium. Lang allegedly posed as a State Police investigator and said the 420 sold synthetic marijuana.

The case was continued until 3 p.m., Tuesday, Sept. 18.

In the weeks following his alleged impersonation, Lang's name or his home address came up several times in calls on the police scanner for incidents that give the appearance of being related to bath salt use, including a report of Lang saying he heard gun shots at a local hotel. For that call, Lang was eventually charged with filing a false report and harassment, 2nd.

Since the last week of July, there have been no reported bath salt related calls connected with Lang's name.

Lang's mother, Nicole, said today that since the 420 closed, her son has not been using bath salts.

"He’s doing pretty good," Nicole Lang said. "He’s doing a lot better than he was doing. Now that the emporium is shut, I think it’s made a big difference."

Brandi Smith, Lang's sister, agreed.

She said in recent weeks, she's been able to talk with her brother on a daily basis, something they used to do but stopped doing for the time Lang appeared to be using bath salts.

Jason Lang has been going to daily sessions at GCASA, she said.

"The other day I drove past GCASA and I saw his car parked out front and it just brought a huge smile to my face to know that he’s going every day and he’s getting help," Smith said.

"Bath salts" is a generic media term for a class of substances that are sold under a broad range of product names and claims but when consumed cause stimulation, euphoria, hallucinations along with paranoia, agitation and fear.

The substances, meant to mimic drugs that were already outlawed, can also be highly addictive.

At one time, Jason Lang owned the Batavia Cab Company and the Laughing Buddha.

Lang has previously admitted to selling both bath salts and synthetic marijuana at the buddha.

Both companies went out of business about the time it became public knowledge that Lang was getting into trouble with the law.

During the seeming height of Jason Lang's contact with local law enforcement, Nicole Lang went to The 420 Emporium at 400 Ellicott St., Batavia, and demanded employees stop selling bath salts to her son.

She was convinced if it continued, her son wouldn't survive.

On Tuesday, prosecutors dropped the trespass charge against Nichole Lang stemming from that confrontation at the 420.

A couple of weeks after the confrontation, the 420 was raided by the DEA and its doors have been closed since.

The raid and the increased awareness about the dangers of bath salts, Smith said, have been a good thing for the Batavia community.

"It has really helped our community," Smith said. "Like I said, it’s harder for these people to find it and it pushes them to get clean quicker. Overall, I think our community is doing much better."

In general, Smith said, her brother's outlook has improved, he's much less paranoid -- though some paranoia lingers -- and he has a better grasp on reality.

She said it's good to have her bother back.

With the Lang family getting so much media attention in July, Gov. Andrew Cuomo's office invited Smith to be part of his press conference in Buffalo earlier this month to announce new penalties in New York for the possession and sale of "bath salts."

Smith said it was a real honor to be included and get a chance to share with people about what the now-banned substances have done to her family.

"Unfortunately, we’ve had to live through it, but it has been a learning experience," Smith said. "I’m thankful for each person that I can maybe give some advice to and help them because we have been through this. Unfortunately, we had to live through it but I think by going through it, it makes us stronger and we’re able to help more people."

A Batavia man who escaped a fiery crash unscathed Sunday night in Orleans County is facing DWI charges.

Keith Stevens, 57, reportedly crashed his vehicle on South Holley Road after failing to negotiate a curve.

His Pontiac Grand Prix caught fire after the car hit a sign, a utility pole and a tree.

Stevens was uninjured, but will appear in Clarendon Town Court on Sept. 10 to answer to the charges.

(via WBTA)

A caller reports that two children, about ages 8 or 9, have been left in a red BMW in the Batavia Downs parking lot while their father -- or presumed father -- has walked into the casino.

A deputy is responding.

UPDATE 1:42 a.m.: It was a tow-truck driver who made the initial report. The driver did not initially see that mom was also in the car. All three people, mom and the two children, were sleeping under a blanket in the car.

(This photo from the scene was provided from reader Joel R. Murcin.)

A fully involved barn fire "with lots of smoke" is reported in Pavilion at the Schumacher's Kelkenberg's barn, thought to be located at 11338 11304 Starr Road. The location is between River and Hudson roads.

Alexander, Bethany, Town of Batavia's Fast Team, and Pavilion are responding along with units from Wyoming County. They are asked to draw water from Pearl Creek.

Bergen will stand in at Pavilion's fire hall.

UPDATE 8:31 p.m.: National Grid has been notified that there are power lines on the ground and it will respond ASAP.

UPDATE 8:45 p.m.: Fire police are asked to shut down traffic at Route 63 and Starr Road.

UPDATE 8:53 p.m.: Le Roy Fire Department is also responding as is Caledonia's.

UPDATE 8:56 p.m.: York's pumper is on scene and will be drawing water from the "first hydrant in the village," because getting an adequate water supply to fight the fire is proving problematic. The natural gas line in the barn is shut off.

UPDATE 8:58 p.m.: Monroe County is being notified they are tapping into hyrdrants. The water in the creek is said to be low, yet the amount to be had from the hydrants is also said to be limited. Now, they have enough water flow from the Hanson Aggregates mining facility. "We have plenty of it now." Warsaw crews have arrived.

UPDATE 9:06 p.m.: The top of a utility pole is on fire, directly across from where firefighters are working. Le Roy's auxiliary is called to provide cold drinks to the firefighters.

UPDATE 9:09 p.m.: They will employ the ladder brought by Warsaw to wipe out fire on one side of the barn, allowing those on the ground using hoses to concentrate on the other areas.

UPDATE 9:22 p.m.: The Town of Batavia's Fast Team is released from duty.

UPDATE 9:28 p.m.: Since the water supply from Hanson's is proving adequate, they are going to shut down the hand lines connected to fire hydrants.

UPDATE 9:58 p.m.: Cold beverages have arrived for the crews.

UPDATE 11:25 p.m. (by Howard): Fire crews are still on scene.The fire is knocked down but tankers continue to bring water to the scene to deal with what's left of the smoldering remains of the barn. Below are more pictures submitted by Joel R. Murcin. I was also out at the scene and will have a report with photos later tonight.

UPDATE 12:21 a.m.: Le Roy units returning to their hall.

A person is stuck in the elevator at Milton Cat, located at 4610 E. Saile Drive. Town of Batavia Fire Department is responding. The store deals in heavy equipment and power systems.

So far, according to attorney Earl Key, Jacquetta Simmons, the 26-year-old Batavia woman accused of hitting a 70-year-old Walmart employee on Christmas Eve, hasn't had a chance to tell her side of the story.

"There's only been one side of the story up to this point reported in the media," said Key following the completion of jury selection in the Simmons case. "Our side will come out in the courtroom, not the media."

Simmons is facing one felony count of assault in the second degree with an accusation that Simmons struck a person 65 years or older while being at least 10 years younger than the alleged victim.

Simmons is accused of striking Grace Suozzi, who was working as a cashier the afternoon of Christmas Eve when she reportedly asked Simmons and her brother to produce a receipt for items in a bag her brother was carrying.

During jury selection, District Attorney Lawrence Friedman asked each prospective juror about their attitudes toward employees who ask customers to show receipts before leaving a store.

Today, one juror, who said he came into the court yesterday with no prior knowledge of the case, told Friedman that what he gathered from prior questioning of prospective jurors was that the defendant had been profiled on Christmas Eve based on her race. He said he disagreed with the practice and, after admitting he couldn't be an impartial juror, was dismissed.

Eight jurors were picked yesterday, and the final four plus three alternates were chosen today.

Yesterday during jury selection, prospective jurors were closely questioned about racial attitudes.

Today, there were few questions about race and none from defense attorney Ann Nichols, who today handled jury questioning for the Simmons team.

After court, Key reiterated that he doesn't believe the case is about race and he isn't concerned with presenting the case to an all-white jury.

"I've tried cases with an all-white jury before," Key said. "I've had black jurors convict black defendants and white jurors acquit black defendants. I don't care what color you are, so long as you're fair and impartial."

Key said all the talk about race being a factor has been in the media; it's not part of his case. Nichols added that most of the race talk around the case has been from readers leaving comments on stories on various news sites.

To the degree that race plays a factor in the case will hinge on a seemingly racially charged statement Simmons allegedly made during the confrontation.

Assistant District Attorney Melissa Cianfrini revealed the alleged statement during a hearing July 30 when arguing whether Simmons had intended to cause serious physical injury to Souzzi.

Proving intent of serious physical injury was a key part of count one of the grand jury indictment, the Class D felony of assault in the second degree, but last week Judge Robert C. Noonan ruled there was insufficient evidence to sustain the charge.

"... the evidence before the grand jury of serious physical injury was not overwhelming and established only that the victim approached the defendant and the defendant withdrew from the confrontation after throwing the punch," Noonan wrote in his decision. "The grand jury could not have reasonably inferred from such evidence that the defendant acted with the culpable mental state of intent to cause serious physical injury."

With that second-degree assault charge no longer being presented to the jury, and no requirement to prove intent to cause serious physical injury, it's unknown if the jury will even hear the alleged statement by Simmons.

Under count two of the indictment, which Noonan upheld, the prosecution need only prove intent to cause physical injury.

After count one was reduced to a Class B misdemeanor, assault 3rd, Friedman moved to have the charge dismissed and try only count two.

The trial begins at 10 a.m. Wednesday. The 12-person jury is comprised of 10 women and two men and the three alternates are women.

Key said with all the media attention the case has gotten, the past several months have been stressful for his client. She dropped out of college, Key said. She's seen ugly comments left about her online, especially on Facebook, he said, and Nichols added that she's received hate mail at home.

"She's taken it all in stride," Key said. "She's looking forward to us putting her side of the story in front of a jury."

Photo: Simmons leaves the Genesee County Courthouse during the lunch break with Nichols while a WHAM 13 cameraman photographs her, and a member of the defense team finishing hold the courthouse door.