batavia

Anthony L. Miraglia, 18, of Byron, is charged with sexual abuse, 3rd, unlawful imprisonment, 2nd, forcible touching, and endangering the welfare of a child. State Police Bureau of Criminal Investigations investigated multiple reported incidents in Genesee County from May 2016 to July 2017. The victims ranged in age from 15 to 17 at the time of the alleged incidents. Miraglia was released on his own recognizance. Investigators believe there may be other possible victims. Anybody with information is asked to contact the State Police at (585) 344-6200.

Winston Ashton Lockhart Sr., 22, of Hutchins Street, Batavia, is charged with assault, 3rd, aggravated criminal contempt, criminal mischief, burglary, and strangulation, 2nd. At 1:39 p.m., Jan. 16, officers were dispatched to a residence no Holland Avenue to investigating a complaint that Lockhart had violated an order of protection. Upon further investigation, officers determined Lockhart allegedly committed numerous crimes and had left the scene. Lockhart was located at the Genesee County Courthouse and placed under arrest. He was jailed without bail.

Matthew Wesolowski, 23, of Burrough Road, Cowlesville, is charged with aggravated unlicensed operation, unregistered motor vehicle, and unlawful possession of marijuana. Wesolowski was stopped at 9:17 a.m. Thursday on Liberty Street by Officer James Prusak.

Michael D. Smith, 18, of Pearl Street, Batavia, is charged with DWI, driving with a BAC of .08 or greater, and inadequate headlights. Smith was stopped at 9:01 p.m. Jan. 16 on West Main Street, Batavia, by Sgt. Chris Camp.

Jaequele M. Tomlin, 23, of Central Avenue, Batavia, is charged with criminal mischief, 4th, and assault, 3rd. Jaequele allegedly attacked another person and damaged property belonging to that person in an incident reported at 11:14 a.m. Saturday. Tomlin is being held in the Genesee County Jail.

Kurt M. Golata, 37, of Oakfield, is charged with harassment, 2nd. Golata was arrested by State Police in relation to an incident reported at 5:50 p.m. Monday in Oakfield. No further details released.

County Court should have been filled with prospective jurors this morning, ready to be considered for a seat in the jury box in the trial of the People vs. Marlek Holmes on a charge that he failed to register a change of change of address in 2016.

Instead, the courtroom was empty while County Court Judge Charles Zambito, District Attorney Lawrence Friedman, and Fred Rarick, representing Holmes, met in chambers.

When they came out, all Friedman said he could say was that the jury selection would not start today because Holmes was not transported from Wende Auburn Correctional Facility where he is currently being held. Friedman said he could not discuss why Holmes was not transported.

The court will try to start the trial tomorrow, and if it doesn't, officials will try again on Wednesday.

Friedman said that if the trial doesn't start by Wednesday, it's too late for this week.

There is also a hearing scheduled for tomorrow on whether Holmes qualifies as a persistent violent felony offender for the purpose of sentencing on his jury trial conviction on two counts of assault in the second degree and criminal mischief. Holmes assaulted a fellow inmate at the Genesee County Jail.

For that hearing to proceed, Holmes will need to be present.

Holmes, 43, is already serving a 15-year prison term on an attempted criminal sexual act in the first-degree conviction. 

He was already a registered Level 3 sex offender.

Last week, Holmes was in court and reportedly used profanity during the proceedings. 

In his appearance before that, Holmes sought a delay in his trial, because, he said, being in transit between prisons meant he didn't have access to all of his paperwork and to a law library. Zambito denied the request.

CORRECTION: Holmes is currently being held at Auburn. He was scheduled to be transferred to Wende during the trial.

Shannon Marie Denison, 34, of Colony Run, Attica, is charged with petit larceny. Denison is accused of shoplifting from an undisclosed location on Veterans Memorial Drive.

Nicholas Christian Doell, 27, of Lippold Road, Darien, is charged with criminal contempt, 2nd. Doell allegedly violated a stay away order of protection at 3:20 p.m. Sunday.

James Courtney Presley, 35, of Frances Street, Rochester, is charged with aggravated unlicensed operation, no tail lamps, and driver's view obstructed. Presley was stopped at 10:10 p.m. Wednesday. He was jailed on $250 bail or $2,500 bond.

Kenneth D. Barnhardt, 51, of Mt. Morris, is charged with unlawful possession of marijuana and speeding. Barnhardt was stopped at 3:52 p.m. Saturday on Route 33 in Stafford by State Police.

Carl T. Amesbury, 25, of East Bethany, is charged with petit larceny. Amesbury is accused of shoplifting from a location in the Town of Batavia. He was arrested by State Police. No further details released.

Kourtney Kunichika, a Batavia resident, is in her third season playing forward for the Buffalo Beauts in the National Women’s Hockey League.

Kunichika is the only player on this year’s roster that played with the team during its inaugural season.

“There’s no other team I’d rather be playing for,” Kunichika said. “We have awesome fans and a high-end facility at the Harbor Center.”

Kunichika is 26 years old, and is from Huntington Beach, Calif. She started roller skating when she was 2, and started playing roller hockey when she was 4. She then transitioned to ice skates when she was 9.

She played college hockey for Rochester Institute of Technology from 2010 until 2014, scoring 136 points in 129 career games.

“I love playing hockey and being a part of a team, being relied on, and cheered on,” Kunichika said.

While living in Batavia, she works at a local restaurant and bar at night. Being unable to make practices, she works out and gets on the ice on her own.

The season for the Buffalo Beauts started at the end of October, and runs through March.

The next game for the Buffalo Beauts is at 1 p.m. on Saturday at the Harbor Center, against Connecticut Whale. The Buffalo Beauts defeated Connecticut Whale last game, on Jan. 14.

“We are halfway through the season and in second place,” Kunichika said. “We have a target on our back, so we plan to defend our title as the Isobel Cup Champs.”

Her biggest worry for the season is the length of each game.

“Right now, our biggest concern is playing a full 60 minutes as one solid team, outworking and outsmarting our opponents each shift,” Kunichika said.

Charles Thigpen-Williams AKA "Gus" or "Gusto" is indicted for the crime of criminal possession of a controlled substance in the fifth degree, a Class D felony. It is alleged that on July 19 in the City of Batavia that the defendant knowingly and unlawfully possessed a controlled substance -- cocaine -- and it weighed 500 milligrams or more. In count two, he is accused of criminal possession of a weapon in the third degree, a Class D felony. It is alleged in count two that on the same date in the city Thigpen-Williams possessed a firearm -- a Ruger model P89 9mm with a specified serial number -- and he had previously been convicted of a crime. In Special Information filed by the District Attorney's Office, the defendant is accused of having been convicted of the crime of criminal possession of a controlled substance in the fifth degree, a Class D felony. That conviction was on July 20, 2010, in Genesee County Court, and it forms the basis for count two in the current indictment.

Gregory D. Metz is accused of the crime fo driving while intoxicated as a Class E felony. It is alleged that on Aug. 10 in the Town of Darien that Metz operated a 1999 Cadillac on Sumner Road while in an intoxicated condition. In count two, Metz is accused of having a BAC of .08 or more at the time. In Special Information filed by the District Attorney, Metz is accused of having been convicted of DWI as a misdemeanor on Feb. 19, 2009, in Batavia City Court and that conviction was within 10 years of the crimes alleged in the current indictment.

Dealing with conflict in the era of hyper-disagreement was the subject of a symposium Thursday night at the YWCA.

Professor Barry Gan, director of the Center for Nonviolence at St. Bonaventure University, opened the discussion talking about some of his own experiences in working out conflicts in his life and then handed out a brochure listing steps to dealing with conflict.

The steps start with "Calm Down," which includes distracting yourself (count backward from 10, for example), relaxing, talking to yourself, and if all else fails, leave.

If you don't leave, try to reach an agreement to work it out. As the other person, "If I listen to you, will you listen to me?"

Gan promotes active listening, which includes paraphrasing the other person's concerns and asking if you are stating their position correctly.

If the disagreement is over something that needs a solution, agree to terms for a concrete solution.

Also participating in the panel were Rev. Roula Alkhouri, left in the photo, above, City Council President Eugene Jankowski and representing a gun-rights position in a later discussion, and Gary Pudup (not pictured), Upstate coordinator of New Yorkers Against Gun Violence.

Event coordinators were Alkhouri, Rev. James Morasco, Morganville United Church of Christ, and Joanne Beck, Batavia YWCA.

An ad posted to Craigslist of a car for sale in Batavia was really just a scam to rob potential buyers, police alleged, and two local men have been arrested and charged with conspiracy in the fourth degree.

In custody are Jaequele M. Tomlin, 23, of Central Avenue, Batavia, and Quamane J. Santiago, 19, of Main Road, Stafford. 

They were arrested on Sumner Street in Batavia following an investigation by Batavia PD and the Local Drug Task Force.

When they were taken into custody, both reportedly possessed replica firearms.

The alleged scam came to light after concerned citizens alerted police to the post and the suspicious behavior of the sellers.

Tomlin and Santiago were arraigned in City Court and jailed without bail.

Tomlin was also arrested on a warrant for criminal mischief and assault. 

Additional charges are pending for both suspects.

Police ask that anybody who responded to a suspicious vehicle for sale ad in the City of Batavia to contact Det. Sgt. Kevin Czora at (585) 345-6311.

"The public should be aware of these types of scams, and report any suspicious activity to their local authorities," Police said in a statement. "When making transactions of these types, it is encouraged that you meet in a very public location, including local police departments."

Of 46 suspected or convicted criminal foreign nationals arrested this past week by Immigration Customs Enforcement in Western New York, seven were arrested in Genesee County, according to an ICE spokesman.

No details were released on the seven arrested locally. They were apprehended in Batavia, Elba, Byron and Bergen.

ICE provided examples of some of the people arrested without providing names or details on the locations of the arrests, such as: 

• A 39-year-old Mexican male with convictions for two counts of illegal entry, driving while intoxicated, and a protection order for domestic violence. He will remain in ICE custody pending the outcome of his removal proceedings.
• A 23-year-old Guyanese male with convictions for driving while ability impaired and harassment, following his arrest for menacing with a weapon. He will remain in ICE custody pending the outcome of his removal proceedings.
• A 53-year-old United Kingdom male with convictions for two separate convictions for felony grand larceny. He will remain in ICE custody pending the outcome of his removal proceedings.
• A 49-year-old Vietnamese male with convictions for theft, burglary, abuse, and menacing, following his arrest for menacing with a weapon, child endangerment, and criminal possession of a weapon. He will remain in ICE custody pending the outcome of his removal proceedings.

The arrests were made over a five-day period as part of an operation targeting at-large criminal aliens, illegal re-entrants, and other immigration violators.

ICE said half of those picked up had prior criminal convictions. Of the 23 who were counted among the non-criminal violators, four were fugitives and six illegally re-entered the country after being deported.

Criminal convictions of those arrested included: felony grand larceny, firearms possession, drug possession, child endangerment, abuse, driving under the influence of alcohol or a controlled substance, and forgery.

“Operations like this one demonstrate ICE’s continued focus on the arrest of dangerous criminal aliens as well as those who enter the United States illegally,” said Thomas Feeley, field office director for ERO Buffalo in a statement. “Illegal aliens will not find safe harbor in New York.”

In the press release, ICE states:

Some of the individuals arrested during this week’s enforcement action will be presented for federal prosecution for re-entry after deportation, a felony punishable by up to 20 years in prison. Those not being criminally prosecuted will be processed for removal from the country. Individuals who have outstanding orders of deportation, or who returned to the United States illegally after being deported, are subject to immediate removal from the country.

ICE stated that during the operation, which ended Jan. 12, officers may have encountered additional suspects who may be in the United States without proper documentation. Those persons were evaluated on a case by case basis and, where appropriate, arrested by ICE.

Press release:

Today recipients of the 46th annual Genesee County Chamber of Commerce awards for 2017 were announced.

The event to honor them will be held Saturday, March 3, at the Quality Inn & Suites on Park Road in Batavia.

This is the county's premier event honoring businesses and individuals for their achievement in business, community service and volunteerism.

Tickets are $50 per person or a table of 10 for $450. The event begins at 5:30 p.m. with hors d'oeuvres, entree tables and a cash bar. (No formal sit-down dinner is served.)

The Award Program starts at 7 o'clock, at which time coffee and dessert will be served.

The 2017 honorees are:

• Business of the Year -- Baltz Concrete Construction, Pavilion
• Innovative Enterprise of the Year -- Firing Pin, Bergen
• Agricultural Organization of the Year -- Cornell Cooperative Extension of Genesee County, Batavia
• Special Service Recognition of the Year -- Batavia Cross Training, Batavia
• Geneseeans of the Year -- The Family of William Kent Inc., Stafford

Call Kelly J. Bermingham at 343-7440, ext. 1026, to make your reservations.

The developer of a proposed Dollar General Store in East Pembroke was willing to do a little trading with the Town of Batavia Planning Board on Tuesday night.

If the town will let him reduce the number of parking spaces from 47 to something closer to 30 he would ensure there is a sidewalk installed along Route 5 in front of the store.

"I would be more than willing to remove the parking spaces, whether it gets down to 30 or some number down there that makes sense based on the layout," said Todd Hamula of the Zaremba Group. "Then I'd stripe across here to a sidewalk that I would build either on the property or just in the DOT right of way."

Quickly, plans were made then for Hamula to rework is the site plan and get it before the County Planning Board again -- which last week recommended a sidewalk be included in the project -- and then in front of the town's Zoning Board of Appeals before coming back to the town planning board again in a month.

The ZBA would need to approve a variance for the reduced parking because the current zoning code requires a building of the type and size of the proposed Dollar General to have at least 47 parking spaces.

Hamula said that anybody who has frequently driven past a Dollar General knows there's usually only an average of five or six cars parked out front most of the time.

The Town of Batavia is in the process of reworking its comprehensive plan and adopting a planning philosophy known as form-based code. 

One of the goals of the process is to make East Pembroke a more walkable community, which means sidewalks are needed.

Paul McCullough, board member and East Pembroke resident, spoke up in favor of making the hamlet more walkable and argued in favor of a sidewalk installed with the construction of the Dollar General.

He expressed concern that the presence of the store would cause people to walk on Route 5, which is busy with fast moving traffic and isn't well lit at night.

"Let's at least get that section in and then figure out how to get that extra 100 feet in," McCullough said.

At that point, Hamula said he was amenable to working something out.

The store will be 7,100 square feet and will become the seventh Dollar General in Genesee County.

McCullough said in his informal survey of East Pembroke residents, people are excited about the potential of the store opening.

Jarvis D. "D" Seymore, 34, of Carthage Street, Rochester, is charged with two counts of criminal possession of a controlled substance, 3rd, and unlawful possession of marijuana.

On Wednesday evening, Seymore's vehicle was located in the parking lot of a business on Park Road, Batavia, by the Local Drug Task Force and Seymore was served with a search warrant that had already been obtained by agents of the task force.

During the search, agents allegedly found a quantity of cocaine, fentanyl, marijuana and cash.

Following arraignment in Town of Batavia Court, Seymore was jailed without bail.

The arrest was the result of an investigation into the sale of cocaine, heroin and fentanyl in and around Batavia.

Assisting in the investigation, State Police, uniformed deputies and the District Attorney's Office.

As part of ongoing maintenance at Dwyer Stadium, the roof is being replaced on the main structure.

Interim City Manager Matt Worth said the job was bid out some time ago but the contractor has only just now been able to complete the work.

There are also plans to replace the roofs on the clubhouses plus do some painting at the facility.

In October, the scoreboard was repaired.

The New York Penn-League has taken over management of the Batavia Muckdogs and while a lease agreement is not yet in place for the 2018 season, former manager Jason Molino indicated before he left that talks for a lease for the season had taken place.

Local high school teams also play at Dwyer.

Thomas Allen Culver Jr., 39, of Wood Street, Batavia, is charged with petit larceny. Culver is accused of stealing and selling scrap metal from a location on Alexander Road, Batavia.

Anthony M. Quinn, 28, of 67th Street, Niagara Falls, is charged with unlawful possession of marijuana and muffler exhaust system violation. Quinn's vehicle was stopped for alleged traffic violations at 6:29 p.m. Wednesday on Route 77, Pembroke, by Deputy Andrew Mullen.

Alisa M. Schenk, 47, of Rochester, is charged with petit larceny. Schenk is accused of a theft at a location on the Tonawanda Indian Reservation at 10:42 a.m. Dec. 29. Schenk was arrested by State Police. No further details released.

Justin J. Bily, 21, of Cheektowaga, is charged with unlawful possession of marijuana. Bily was stopped by State Police at 5:34 a.m. Tuesday on the I-490 in Bergen.

Keith M. Hennard, 34, of Fillmore, is charged with driving while impaired by drugs, unsafe tires, moving from lane unsafely, and speeding. Hennard was charged by State Police following a motor vehicle accident at 5:26 p.m. Tuesday on Route 77, Pembroke. There were no injuries reported in the accident.

A State Trooper has been arrested and charged with offering a false instrument for filing and falsely reporting an incident after allegedly claiming she was menaced by a person with a weapon while in Batavia.

Investigators say Brianna J. Smith, 25, was off duty at the time of the incident.

The location in Batavia of the report was not released nor were other details of the incident.

The State Police Bureau of Criminal Investigation conducted the investigation. In a release, State Police say that investigators determined a weapon was never displayed nor used in the incident.

She was arrested and processed at the Batavia Barracks. Smith was attached to Troop T in Syracuse.

She was issued an appearance ticket in Town of Batavia Court for a date this month.

Photo and info from Coach Matt Holman. Photo: Aubrey Towner.

Alpine Ski Results for Tuesday at Swain Resort:

There was snow falling all night for a two-run Giant Slalom Race at Swain Resort on Tuesday night. (The resort is also located in Swain, a hamlet in Livingston County.) The loose soft powder pushed together to form big ruts as the hard base was exposed just inside the race line.

The Boys Batavia Alpine Ski Team finished fifth out of eight teams in the Southern Tier Race League. Top finishers included Brandon Bradley (15th), Alec Wagner (24th), Zack Wagner (28th), Matt Grover (31st) and Ryan Bowen (36th).

The Girls team competed individually (no team time), the top finisher was Aubrey Towner (21st).

The next race will be a slalom race Thursday.

Pierre Mahon Humphrey, 27, of Michigan Street, Batavia, is charged with criminal possession of a controlled substance, 3rd, criminal possession of a controlled substance, 4th, criminal possession of a controlled substance, 7th, and unlawful possession of marijuana. Humphrey was allegedly found in possession of marijuana and narcotics during a traffic stop on Park Road, Batavia, by Deputy Travis DeMuth at 4 p.m. Tuesday. Humphrey was jailed on $25,000 bail or $50,000 bond.

Lucas T. Shafer, 20, of State Route 96A, Romulus, is charged with unlawful possession of marijuana. Shafer was charged after Officer Arick Perkins located a vehicle parked behind the Harvester Center and stopped to investigate at 12:45 a.m., Tuesday. Also charged, Aaron C. Cuyler, 19, of Batavia Stafford Townline Road, Batavia.

Sath Paul Dhanda, 37, of Clapsaddle Road, Bethany, is charged with criminal contempt, 2nd. Dhanda was arrested following a complaint of a person banging on the back door of a residence on Ellicott Street, Batavia, at 3:08 p.m. Monday. There was an order of protection in place that Dhanda allegedly violated. Dhanda was jailed on an unspecified amount of bail.

Alexander J. Schultz, 18, of Ross Street, Batavia, is charged with obstructing governmental administration and disorderly conduct. Schultz and a 17-year-old, who was also charged, were allegedly involved in a fight on Ross Street, Batavia, at 4:34 p.m. Jan. 11.

Ryan N. Bartholomew, 23, of Adams Street, Batavia, is charged with making terrorist threats and aggravated harassment, 2nd. Bartholomew allegedly made threats against police officers on social media. He was jailed without bail.

Desiree M. Sumeriski, 34, of South Main Street, Batavia, is charged with endangering the welfare of a child. Sumeriski allegedly failed to seek medical care for a child after observing injuries sustained by the child.

Camon T. Wyatt, of Pardee Street, Rochester, was arrested on a warrant for alleged failure to appear as ordered in court. Wyatt was released on bail.

David L Andrews, 30, of Lewis Place, Batavia, is charged with criminal impersonation and conspiracy 6th. Andrews is accused of conspiring with another person not to pay a bill at a local person by pretending to be another person.

Preston Randall Herbst, 21, of Hamlin Drive, Canandaigua, is charged with DWI, driving with a BAC of .08 or greater, and moving from lane unsafely. Herbst was stopped at 2:51 a.m. today on Telephone Road, Pavilion, by Deputy Mathew Clor.

Joseph Thomas Misiak Jr., 62, of Pratt Road, Batavia, is charged with making terrorist threats. Misiak allegedly called a supervisor at the Sheriff's Office and threatened to damage the property of the subject as well as physical harm the subject. Misiak was arraigned and released under supervision of Genesee Justice.

Anna Marie Howard, 32, of Ivison Road, Byron, is charged with driving while ability impaired by drugs, aggravated unlicensed operation, 2nd, and registration display violation. Deputy Ryan DeLong and Deputy Andrew Mullen responded to a complaint of a person driving erratically in the parking lot of the 7-Eleven in Bergen at 4:05 p.m. Sunday. 

Jordan R. Mock, 23, of Pavilion, is charged with a false written statement and falsely reporting an incident. Jordan J. Schilling, 30, of Silver Springs, is charged with criminal mischief, 3rd, false written statement, and falsely reporting an incident. Mock and Schilling were arrested in relation to a burglary investigation by State Police reported at 4:10 p.m. Saturday on Perry Road, Pavilion. Schilling was also charged in Wyoming County with false written statement in relation to a fraud investigation. No further details were released.

Timothy A. Frenchy, 24, of Bronx, is charged with unlawful possession of marijuana. Frenchy was charged while at College Village at 9:03 p.m. Monday by State Police.

A minor injury accident is reported at Richmond Avenue and Woodrow Road, Batavia.

City fire and Mercy EMS responding.

Press release:

The Batavia Police Department is asking citizens and business owners with surveillance cameras to partner with us in the fight against crime!

The Batavia SafeCam Registration Program allows citizens / businesses to register their camera systems with the police department to aid in crime prevention strategies and investigations which may occur in the proximity of their camera systems.

The registration process is very easy and free.

Simply go to http://www.batavianewyork.com/police-department/webforms/batavia-safecam-program and fill out the form. Registration forms can also be picked up at Batavia Police Headquarters located at 10 W. Main St., Batavia.

Surveillance cameras have been an integral part of fighting crime in Batavia. Privately owned camera footage has helped solve a variety of serious offenses in Batavia over the years, including various burglaries, a fatal hit-and-run accident, and even a homicide.

Working together, we can keep Batavia a safe place to live and work.

Please note that the police department will not have the ability to freely or remotely access your cameras, claim ownership, or dictate the camera systems functions. This is simply a database that will allow the Batavia Police Department to see who might have captured footage related to a particular crime.

Thank you for signing up and joining us in the fight to keep our city safe!

There will apparently be no contempt charge against Marlek Holmes after the convicted sexual predator used profanity and hurled insults at the District Attorney today in County Court.

Judge Charles Zambito apparently did not hear the most profane statement by Holmes, when he told District Attorney Lawrence Friedman he could go eff himself while the DA was using a copy machine near the defense table.

Defense Attorney Fred Rarick put his hand on his client's shoulder and advised him to be careful about what he said in court. 

Zambito did hear Holmes say, “I don’t understand anything that stupid ass says," after Zambito asked if he understood the plea offer presented by the district attorney.

Zambito pressed on without acknowledging the remark and clarified that Holmes was declining a plea offer that would have capped his potential prison sentence on his latest conviction and avoid a trial on a charge of failure to register a new address as a registered sex offender.

In May, Holmes, already a convicted sex offender, entered a guilty plea to guilty to a Class C violent felony, attempted criminal sexual act in the first degree. Later that month, he was sentenced to 15 years in prison while proclaiming his innocence. 

In October, Holmes was convicted following a jury trial on two counts of assault in the second degree and criminal mischief for assaulting a fellow inmate at the Genesee County Jail. 

On that conviction, he could be sentenced up to seven years each, for a total of 14 years, on top of the 15 years he's currently serving.

The plea offer from Friedman would have capped the sentence at five years, consecutive to his current 15 years, for a total of 25 years in prison, and satisfied the pending charges against Holmes related to his alleged failure to register a change of address as a sex offender (the oldest of the group of charges that has tied him up in County Court for more than a year).

As part of the deal, Holmes would be required to drop his current appeal on his sexual abuse conviction and not pursue appeals on his other cases.

The deal would have saved the people the expense of another trial.

Holmes refused the deal.

Earlier this month, Holmes sought to have his new trial delayed because he's being shuttled between prisons and doesn't have all of his paperwork and access to the prison law library. Friedman argued against a delay and Zambito agreed a delay was not necessary.

Jury selection is scheduled to begin Monday with a hearing before the actual trial begins on Tuesday on whether Holmes qualifies as a persistent violent felony offender, which could mean an enhancement on his sentence on the jail assault conviction.

After court, Friedman said he wasn't sure what Zambito might have heard Holmes say, and he wasn't sure what was captured on the record.

"I decided at that point not to bother saying anything," Friedman said.

Alex Feig, from our news partner WBTA, contributed reporting to this story.