batavia

A former Batavia resident, already serving up to seven years for second-degree rape and sexual abuse, will spend five more years in prison for raping another young victim, Judge Robert C. Noonan ruled today.

Philip Kroft, 23, admitted to rape, 2nd, in November as part of a plea deal that would cap his possible sentence at five years.

Noonan gave Kroft the five years, but denied a request by defense attorney Fred Rarick that Kroft's sentence be consecutive concurrent with the time he's already serving.

Rarick said that Kroft has completed his GED while in prison and also earned a welding certificate.

"Adding an additional five years I don’t think is necessary, may be considered harsh and excessive punishment," Rarick said. "He regrets what he’s done in the past and he’s looking forward to his future."

Kroft's 14-year-old victim gave birth to a child and Kroft would like to be involved in the child's life, according to his attorney.

At the time of the rape, Kroft was 21.

The crime occurred around the time of his previous arrest in 2008, which resulted in a conviction for rape, 2nd, sexual abuse, 1st, criminal possession of a weapon, 3rd, and conspiracy, 4th.

Kroft was eligible for parole on those convictions in 2015.

When asked for a statement, Kroft said he does know he made mistakes and he is trying to turn his life around. He said he has also enrolled for some college courses.

If the second rape had come to light during proceedings on the original charge, perhaps the crime would have been wrapped into the sentence with the first. That's what Rarick suggested to Noonan, who replied that the opposite could also be true.

"It would be an equally good argument that had both charges come before me, I would have given him four or five more years based on him victimizing yet another young girl," the judge said. 

Kroft is serving his sentence in Elmira Correctional Facility.

Darik Robert Michael Orbaker, 18, of Forest Edge Drive, Batavia, is charged with criminal contempt. Orbaker is accused of violating an order of protection.

Frank G. Frainier, 47, of Lewiston Road, Royalton, is charged with DWI, driving with a BAC of .08 or greater and improper right turn. Frainier was arrested after the Sheriff's Office received a report at 6:47 p.m., Monday, of a car off the road on Route 77, Alabama.

Ken and Andrea Mistler have made some big changes to their former coffee and smoothie shop at the corner of Main and Jackson streets.

The former Daily Grind is now Espresso Salads and Subs.

Ken Mistler said it was time to expand what the shop offered. While a prep area has been added for food service, much of the food prep -- including baking fresh sub rolls daily -- takes place at Mistler's other food establishment downtown, South Beach Restaurant.

Andrea manages day-to-day operations for the  sub and salad shop.

Subs and salads are made to order with fresh ingredients.

For the coffee and smoothie crowd, the full selection of the Daily Grind remains on the menu.

Mistler has also added free wi-fi and there are now leather chairs and couches available for customers. In the summer, Ken said, he will add outdoor seating.

The local Girl Scouts have a new home, 5 Jackson St., Batavia.

After the location the Girl Scouts occupied in City Centre was sold, the local office and retail shop was relocated to vacant retail space just about a block away.

It took about a month to get settled in, but the retail shop is now set up and the staff is ready to help local scouts and leaders.

The scouts will host an open house at its new location from 3 to 6 p.m., Monday, Feb. 28.

The grand opening will include free drawings, prizes and discounts on scouting items as well as a food drive for the Salvation Army and Batavia Agri-Business Child Development.

The shop is open from 11:30 a.m. to 4:30 p.m., Monday through Friday, with the service center opening at 8:30 a.m.

Pictured above, from left, Stephanie Burgett, customer service, Marlene Worthington, membership manager, Kathie Waika, program manager and Robin Ettinger, membership manager.

UPDATED 2:34 p.m.

A former Batavia resident is expected to soon plead guilty in a Milwaukee county court to charges that he impersonated a lawyer and committed forgery.

According to investigators in Wisconsin, Thomas J. Lyon, 28, not only represented several "clients" in legal proceedings, but also forged checks, stole money, assumed the identity of a deceased notary public and operated a prostitution ring.

According to court documents, Lyon reportedly bragged to an associate at one time that he was like Frank Abagnale Jr., the former con artist depicted by Leonardo DiCaprio in the hit movie, "Catch Me If You Can."

Besides Batavia, a public records search shows that Lyon has also apparently lived in Warsaw, where he was born, Buffalo and Hamburg.

Wisconsin court documents state that Lyon was on probation in New York and had his probation transferred to Wisconsin. According to the documents, he was previously convicted in New York of grand larceny, stalking and false imprisonment.

Lyon was arrested for allegedly issuing a bad check in Genesee County in July 2008, according to the Sheriff's Office. According to the arrest report, Lyon lived on Saltvale Road in Middlebury at the time.

In Milwaukee, Lyon is accused of assuming the legal identity of Thomas J. Lyons, a Minnesota-based attorney -- also licensed to practice law in Wisconsin -- who told investigators he hadn't appeared in a Milwaukee court in years. 

Lyon allegedly used the bar identity number of attorney Lyons to pass himself off as the attorney.

Police searched the office space reportedly rented by Lyon at 5301 W. Hampton Ave., Milwaukee, which reportedly had a sign on it saying it was the offices of "Thomas J. Lyons & Associates, Inc.," and found documents indicating Lyon had at least nine legal clients.

On at least one occasion, Lyon allegedly kept a settlement check for $3,000 that was intended for one of his clients.

Lyon also apparently set up a Web site to advertise his alleged legal services.

The documents also include quotes from court transcripts where Lyon allegedly referred to himself as an attorney and questioned witnesses as if he were an attorney.

One of Lyon's employees is also quoted in the documents saying that besides being a secretary in his office, she worked as a prostitute for him.

Though not charged with any prostitution-related crimes, the court documents say that Lyon allegedly operated an escort service called "Lacuna Limited," and that it was really a front for prostitution.

According to the documents, Lyon booked rooms at a Comfort Suites Inn in Milwaukee and set rates at $200 to $250 per hour. Lyon also allegedly hired a guard for the prostitutes. 

He allegedly recruited prostitutes by advertising for lingerie models.

Lyon allegedly collected prostitution proceeds in cash and kept computer records of the proceeds.

In all, 11 charges were originally filed against Lyon.

He is charged with two misdemeanor counts of practicing law without a license, a felony count of theft, three felony counts of unauthorized use of personal identifying information or documents, and five felony counts of forgery.

Lyon was jailed on $20,000 bail and apparently remains in custody. His attorney last appeared in court for him Jan. 28 and a court appearance date of March 3 was set for Lyon, when he is expected to plead guilty to at least some of the charges.

The terms of the plea bargain have not been released.

The forgery charges carry a maximum sentence of a $10,000 fine for each charge and six years in jail.

UPDATED 5:52 p.m.

Members of the Local Drug Enforcement Task Force reportedly observed a Batavia man selling drugs on Wednesday, and when they moved in on the suspect, he reportedly threw some crack cocaine on the sidewalk.

Task force members then obtained a search warrant for a residence in Batavia where they allegedly found five more bags of crack cocaine.

Taken into custody was Ronnie "Ace" Allen, 23.

The search warrant was executed at 6 Vine St., upper, Batavia. Allen listed his address as 42 Mountbatten St., Henrietta.

He is charged with criminal sale of a controlled substance, 3rd, and criminal possession of a controlled substance, 3rd.

Allen was jailed on $25,000 bail.

Assisting in the investigation were the Sheriff's deputies and the District Attorney's Office.

Eight congressional hopefuls filed into South Beach restaurant on Sunday to explain to 21 GOP leaders from the 26th Congressional District why he or she should get the endorsement of the Republican Party in any upcoming special election.

Though no election has been called yet by Gov. Andrew Cuomo, it's widely anticipated that Cuomo will set a date for a special election to fill the seat vacated by Chris Lee after a shirtless picture of him showed up on Gawker.com.

Don Read, representing Genesee County, said GOP officials will meet tonight in Geneseo to go over the list and decide whom the party should back.

"A lot depends on our discussion," Read said. "We have a good cross section (of candidates). There's certainly a good group of candidates."

Besides Assemblywoman Jane Corwin, who is the odds-on favorite of pundits, three-time loser Jack Davis showed up for an interview, as did Genesee County residents David Bellavia and Peter O'Brien.

O'Brien is a frequent commenter on The Batavian.

Also showing an interest in the seat for the GOP are: Dr. Barry Weinstein, a former Town of Amherst councilman; Brian Napoli, from Orleans County; Gary Wehate, of Avon; and Kathy Wepner, a radio talk-show host in Buffalo.

In the weighted vote system the GOP uses to pick candidates for the congressional seat, Erie County candidates have an edge in the selection process. It only takes one Erie County vote and one Niagara County vote to outweigh the votes of Orleans, Wyoming, Genesee and Monroe counties.

Story based on reporting by WBTA's Dan Fischer.

Scott C. Brown, 22, of 11 Wood St., Batavia, John C. Schurr Jr., 26, of 382 Garden Drive, Batavia, and Ashley M. Younke, 31, of 212 Trumbull Parkway, Batavia, are all charged with petit larceny and theft of services. The trio allegedly left Sport of Kings restaurant at 3:30 a.m., Sunday, without paying for food they ordered. They also allegedly left with several pieces of flatware. Officer Frank Klimjack reportedly observed the suspects' vehicle shortly after they left the restaurant. The flatware was recovered.

Ronald J. Scroger, 30, 52 Columbia Ave., Batavia, is charged with petit larceny. He is accused of stealing clothing from Olympia Sports on Wednesday.

Eugene C. Rose, 36, of 230 Keystone St., Buffalo, is charged with criminal contempt, 2nd. Rose was taken into custody by Buffalo PD on a warrant issued by Batavia City Court for allegedly violating an order of protection. Buffalo PD turned Rose over to Batavia PD and Rose was jailed without bail. Rose reportedly has prior felony convictions.

Loralyn L. Bateman, 34, 5 Edwards St., Batavia, is charged with DWI, driving with a BAC of .08 or greater and aggravated unlicensed operation, 3rd. Bateman was stopped on Union Street at 1:50 a.m., Friday, by Officer Kevin DeFelice.

Marsha Jones, 56, of Wade Avenue, Buffalo, is charged with disorderly conduct. Jones was allegedly involved in an altercation at 7 p.m., Thursday, in the Genesee Community College cafeteria with the assistant manager an employee there. Jones is accused of swearing at the assistant manager employee and then pushing a cart, causing items to fall off the cart and break.

Anthony C. Timberlake, 22, of North Street, Batavia, is charged with disorderly conduct. Timberlake is accused of being involved in an argument with a customer at the college cafe at 7 p.m., Thursday. Timberlake allegedly was swearing at the customer in front of witnesses.

Calvin Pangrazio, an employee of Sloat Tires, changes a tire on a Rent-A-Center truck in the Valu Plaza.

At least two vehicles had their tires slashed in the parking lot overnight, and there are also reports of tires slashed in the parking lots of City Centre, Walmart and  Batavia Downs as well as one report on a residential street. In all, as many as 10 cars appear to have been vandalized overnight.

Officer Jay Andrews said the two Rent-a-Center trucks each had two tires slashed, making the value of the damage more than $250 on each truck. That makes the alleged crimes Class E felonies, criminal mischief, 3rd.

Anybody with information about these incidents should call either Deputy Kevin McCarthy at 345-3000, ext. 3237 or the Batavia PD at 345-6359.

UPDATE 12:38 p.m.: A Sheriff's deputy dispatched to the Target parking lot for the report of another tire slashing.

UPDATE 3:38 p.m.: An officer is sent to Bank Street Road to interview another person whose tires were slashed.

City police were dispatched about five minutes ago to the rear parking area of Blockbuster on Lewiston Road for a report of an employee's tire slashed.

Now a Sheriff's deputy is being sent to the same area (city limit is at Park Road) for more reports of slashed tires. It isn't clear from what we picked up off the scanner which parking lot this additional vandalism took place in.

UPDATE 1:49 a.m.: Apparently, the Sheriff's Office has jurisdiction on the customer parking lot on Lewiston. That is where all of the tires were slashed, including the one initially reported behind the building in employee parking.

UPDATE 1:59 a.m.: If I heard this right, now there's a report of a Jeep outside Sunny's (in the City Centre) with its tires slashed.

UPDATE 7:52 a.m.: The Sheriff's Office put out a news release confirming that the tires were slashed on three cars in the Batavia Downs parking lot on Park Road some time between 9 p.m. and 1:30 a.m. Anybody with information is asked to contact Deputy Kevin McCarthy at 345-3000, ext. 3237.

UPDATE 8:04 a.m.: An officer handling another similar incident inquired with dispatch about other reports overnight. There was another car vandalized in the city that was reported early this morning and a car break-in on Park Road.

UPDATE 9:25 a.m.: Batavia PD dispatched to Batavia Commons and Valu Plaza for more tires slashed.

Margarita's Mexican Restaurant on Jackson Street has closed.

Owner Carlos Hernandez was not available for comment today.

NOTE: If you bought a Margarita's gift certificate from The Batavian within the past 30 days, return it to us for a refund. No refunds will be issued without return of the physical gift certificate and the purchase must have been made in the past 30 days.

An Oak Street man with a fondness for waterfowl will get to keep his ducks and continue some of his hobbies in his yard, but with new restrictions.

As part of a plea bargain, Ron Graziaplena, of 172 Oak St., admitted to keeping debris in his back yard, a violation of city code, and agreed to a number of conditions on his continued ability to keep 10 mallard ducks as pets and grow tomatoes and build waterfowl-related projects.

The deal was worked out Friday afternoon over three and a half hours, at a time when his trial on numerous alleged code violations was scheduled. Almost all the negotiations were held in open court with Batavia City Court Judge Robert Balbick presiding.

Balbick told Graziaplena that he would be fair with him if Graziaplena made substantial progress toward complying with the plea agreement between now and his sentencing on April 15.

The main agreement regarding the ducks is that Graziaplena can keep only 10, except when there are hatchlings, which must be released in an Elba swamp owned by Graziaplena's family before Oct. 1 of each year.

A neutral, non-governmental, qualified inspector will visit the property twice a year -- on or about July 1 and on or about Oct. -- to ensure Graziaplena is maintaining only a 10-duck population and they are kept in sanitary, humane conditions.

Graziaplena will be required to build a six-foot-high stockade-type fence along his south property line from the garage to the back corner of the lot and for some distance along the back property line. 

He must also install a stockade-style gate across his driveway from the southeast corner of his house to his property line on the south.

The gate is intended to create a visual barrier for anything on his driveway, from construction materials for his projects and his tomato boxes.

Graziaplena prefers to work on his projects in the front yard. He can continue to do so during the day, but come nightfall, he will be required to put all construction materials behind the gate.

He must also keep his BBQ grill behind the gate rather than in the yard.

In recent months, Graziaplena has mounted a number of duck decoys atop 10-foot-high poles along his south property line, and more recently added waterfowl-themed wind vanes that he said he made.

He acknowledged that some of his neighbors are aggravated by the poles, but said the decoys are left over from his hunting days and just a symbol of his hobby. He said he plans to start selling the wind vanes.

"I've gotten many compliments on them, your honor," Graziaplena said. "Several of my friends want them for themselves. Perhaps you would like one?"

Balbick said he couldn't accept the offer.

The judge ordered that all of the pole structures be taken down before sentencing and that they remain down for at least the duration of Graziaplena's conditional discharge (a six-month period after his sentence in which Graziaplena must remain violation free to avoid having the original charges reinstated).

Graziaplena also keeps a boat on the north side of his house. He must either put a driveway on the north side to set the boat on or start keeping the boat on his south side driveway.

About a half dozen of Graziaplena's supporters were at the courthouse Friday, many of them planning to testify in the trial. One neighbor who is unhappy with the situation on Graziaplena's property attended the hearing.

"I want to see that property code compliant," Balbick told Graziaplena after accepting his guilty plea. "I'm not going to punish you just for the purpose of punishing you, but I do have an obligation to the people of this city to see that the yard is safe and there isn't debris strewn about throughout the yard and that the yard is sanitary."

Photos: Take at Graziaplena's residence on Friday.

The roof on the Kwik Fill at Jackson and Ellicott streets, Batavia, was peeled right off by strong winds this morning.

The incident was reported at 6:23 a.m.

City fire responded.

An electrical line was arcing so National Grid was called in to shut off power.

There is a wind advisory in place until 6 p.m 

The wind may hamper search efforts for the missing man in Darien.  It's possible that any aircraft that could be used to assist in the search will be grounded due to high winds.

Scattered snow showers are expected throughout the day.

Yesterday, in our story on the scuffle at the DSS office, we identified the suspect as Steven Joseph. His correct name is Steven Joseph Mancuso-Haitz.

We also said he was a resident of a complex called Mancuso Heights in Stafford.

It is unlikely there is a development in Stafford called Mancuso Heights, or even in the Town of Batavia, as one of our readers suggested this morning.

Mancuso-Haitz is apparently homeless and had only recently arrived in Batavia on a bus from Florida.

I'd feel a lot worse about this, but the Batavia Daily News reporter misunderstood the information in the same way I did.

I ran into one of the deputies from the scene at the courthouse this afternoon and as we discussed the confusion, it was clear how it came about. We all, I'm sure, regret the error.

Dustin M. Locicero, 26, formerly of 16 Gibson St., Bergen, is charged with criminal possession of stolen property, 4th, and four counts of identity theft. Locicero, currently an inmate at the Elmira Correctional Facility, is accused of possessing a stolen credit card at the Wilson Farms store, 8132 Buffalo Road, Bergen, on March 18, and allegedly using it to make three separate ATM withdrawls and one merchandise purchase. The investigation was conducted by Deputy Dana Richardson and Investigator Timothy Weis.

Stephen John Farrell, 44, of the Bare Hill Correctional Facility, Malone, is charged with burglary, 3rd, and criminal mischief, 4th. Farrell is accused of using force to enter a Bergen business during the early morning hours of Feb. 11. The entry door was damaged. Farrell was arraigned in Genesee County Court and bail was set at $10,000.

Cody James Sundown, 20, of Sailles Plank Road, Irving, is charged with criminal mischief, 4th. Sundown was arrested on a bench warrant out of Town of Pembroke Court. Sundown is accused of damaging another person's vehicle on Nov. 27.

Matthew Scott Williams, 23, of 21 Maple St., upper, Batavia, is charged with a violation of probation. Williams was taken into custody at 7:47 p.m., Thursday. Williams was wanted on a bench warrant out of Town of Elba Court. He was jailed on $5,000 bail. (For previous arrest reports on Williams, click here.)

A futon caught on fire this morning at 29 Tracy Ave., but the apartment was not damaged.

The initial alarm came in around 10 a.m. and city firefighters responded.

Firefighters found the futon outside the apartment, where the resident had dragged it.

According to Lt. Jay Steinbrenner, the resident was apparently smoking on the futon when he fell asleep. When he woke up, he tried putting the fire out himself. He apparently tried a few times, according ot Steinbrenner.

"This apparently went on for an hour and a half," Steinbrenner said.

When the futon flamed up pretty good, the resident dragged it outside and called 9-1-1.

It's an auspicious time for Terry Anderson to return to Batavia to dedicate a peace garden.

Anderson, who grew up in Batavia, was chief Middle East correspondent for Associated Press when he was abducted on March 16, 1985, in Beirut following a game of tennis. Anderson was held in captivity by Hezbollah for six years and nine months.

As Anderson returns to his boyhood home, the Middle East is exploding in a way it never has before. Governments in Tunisia and Egypt have been toppled by pro-democracy demonstrators. Even the Iranian government, which backs Hezbollah, is facing youthful opposition.

Anderson is cautiously optimistic about what he sees happening.

"I watched Yasser Arafat and Isaac Rabin shake hands on the White House lawn," Anderson said tonight during a meet-and-greet at Batavia Downs. "It was one of the most optimistic days of my life, because I covered that conflict for years, and (look at) what has happened since.

"It doesn’t always turn out for the best. But yes, I see something new in the Middle East. I see something that promises something hopeful for the future."

One of America's most acclaimed and recognized journalists, Anderson was invited to return to his former hometown to help raise funds for a War of 1812 Peace Garden planned for a plot of land adjacent to the Holland Land Office Museum.

Anderson will have a busy day Friday, starting with an 8 a.m. visit to Batavia High School. He will also have lunch with GCC President Stuart Steiner followed by a public lecture at noon at GCC. At 2 p.m., there will be a press conference with Anderson at the Genesee County History Office, 7 W. Main St., and at 5 p.m., the main event -- a dinner at Terry Hills ($25 per person), where Anderson will be the featured speaker.

Thursday night, Anderson arrived at Batavia Downs shortly after 7 p.m. and he was warmly greeted by a few old friends as well as people involved in organizing the peace garden effort. Anderson also took a few minutes to talk with members of the media who where there.

Anderson -- who recently finished a teaching stint at the University of Kentucky and is now contemplating a return to residency in Upstate New York -- was animated as soon as the topic turned to the turmoil in the Middle East.

He recalled that he was in captivity when Marcos fell in the Philippines, and that was followed by the regime falling in South Africa and then, of course, the toppling of the Berlin Wall and the fall of the Soviet Union.

"It just proves again what we knew then – you can have all of the police and secret police and guns and thugs in the world, and when your people stand up and say, ‘no, we’re tired of you,’ you’re gone," Anderson said.

He added, "Every country is different, but there is something going around that they all seem to have in common: They are tired of dictators and corruption and denial of human rights."

A Vietnam veteran, Anderson said that as a 19-year-old Marine, he visited the most famous peace garden in the world, the one at ground zero in Hiroshima, Japan. So when he was invited to return to Batavia to help bring about a new peace garden he thought, "who's not in favor of peace?

"Why would I miss a chance to dedicate a peace garden? It may be on a smaller scale, but why wouldn't I support it?"

Photo: Jim Owen gets an autograph from Terry Anderson on one of his books.

A public hearing has been set with the Town of Batavia Planning Board to discuss a proposed change to the location of Oil Doctor, 4003 W. Main St. Road, Batavia.

Owner Ben Thompson has requested permission to convert a portion of the existing building to an area for motorcycle sales.

The hearing will be at 7:30 p.m., March 1, at town hall, 3833 W. Main St. Road, Batavia.

A copy of the application is available at town hall for review.

Construction has begun on a $2 million project to add an indoor water park to the Clarion Hotel on Park Road, Batavia.

Owner Chan Patel (above) said he is looking forward providing year-round recreation to the region. He expects to draw customs from Buffalo and Rochester, not just Genesee County.

"We have a big staff," Patel said. "Even in the winter, we have 60 people on staff. During the summer there's plenty of work, but in the winter I have to cut down their hours. It's not fair because they have to support their families, too."

The 12,000-square-foot facility -- Palm Island Indoor Water Park -- includes a 197-foot and a 169-foot water slide, a pool equipped with basketball hoops, a spa, a play lagoon with waterfalls, small slides and dumping buckets, as well as birthday party rooms, a food and beverage concession and an arcade room with 15 games.

Patel said he planned the park so that there would be activities that would appeal to all ages.

"This will bring more business into town," Patel said. "It will be a benefit to the whole community."

He's even partnering, he said, with local businesses to help ensure his guests patronize those businesses.

He's also using local or regional contractors. The design was completed by Smart Design, of Batavia. Whitney East, of Rochester, is the general contractor, and Batavia's Arctic Refrigeration is handling all of the mechanical work.

The project received tax abatements from the Genesee County Economic Development Center worth about $91,600. That includes partial abatement of property taxes for 10 years worth $18,800, a mortgage-tax abatement worth $12,800, and exemption from sales tax on materials for construction of the park worth $60,000.

GCEDC estimates the $91,600 in tax abatement will have more than a $5 million multiplier-effect benefit for the local economy.