Insource Urgent Care, the revolutionary health care provider that chose Batavia for the first location for its new chain of clinics, held its official grand opening today.
The celebration included a ribbon-cutting ceremony with Insource President Mark Celmer, center, Dr. Magdi Credi and VP of Operations Melissa Marsocci.
A third suspect has been accused of participating in the June 1 burglary of the Sherwin-Williams paint store on Liberty Street.
Nicholas J. Adkins, 22, of no permanent address, has been charged with burglary, 2nd.
Adkins is currently an inmate on unrelated charges in the Genesee County Jail.
Today, Adkins was arraigned on the new charge and returned to the jail.
Previously arrested were Michael J. Elmore, 22, and Rebecca G. Morse, 21, both of 130 Bank St., Batavia.
Previously:
Glossary |
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Disruptive Innovation: An innovation through technology or process that takes root in an underserved portion of the market to create new business opportunities. Incumbent: The market-leading business in an industry. Unmet Need: When a business planner identifies a hole in the marketplace, where consumers -- either consciously or unconsciously -- have a need that a new product or service can meet. Job to be Done: Much like an unmet need, the jobs-to-be-done metaphor helps a business planner target a market segment for a new product or service. The job-to-be-done metaphor is based on the idea that customers don't really buy a product or service, they hire the product or service to help with a specific task they want to accomplish. Clayton Christensen: Harvard Business School professor and creator of the term "disruptive innovation." His groundbreaking works are "Innovator's Dilemma" and "Innovator's Solution." He's also written a book on innovation in health care, "The Innovator's Prescription." |
From the perspective of the folks who run Insource Urgent Care in Downtown Batavia, their first-of-its-kind clinic is apparently seen as a competitive threat by the executives at United Memorial Medical Center.
A threat that must be crushed.
If their perception is correct, it highlights the fear disruptive innovators can strike in the hearts of incumbent businesses, especially if that business has enjoyed a monopoly position in the market.
Since UMMC officials are not talking about the tensions between Insource and UMMC, we only have the perspective of Insource's owners, which they're willing to discuss, and is also part of a federal anti-trust suit filed by Insource on June 25.
The suit alleges that UMMC conspired with HealthNow, the region's BlueCross BlueShield franchise, to eradicate the hosptial's pesky new competitor.
UMMC, according to the lawsuit, has even tried to muscle other health care providers in the county in an effort to deny Insource the partners it needs to deliver its services.
HealthNow is the dominant health insurance company in Western New York and UMMC has held a monopoly position for emergency and hospital care in Genesee County since the year 2000 merger of Genesee Memorial and St. Jerome's.
Melissa Marsocci, VP of operations for Insource, who is a native of Batavia and well versed in the literature of disruptive innovation, said she wasn't surprised by the response from UMMC to the arrival of her new company. She wishes it had been different, that cooperation rather than competition would have been the watchword, but that's not the case.
"Being from here and knowing the corporate culture over there, I knew we weren't going to be welcomed with open arms," Marsocci said. "Whenever I go anywhere else (to open a clinic), I don't know that, but here, we're just little bugs to them."
Insource is a company designed around innovation. It's model uses more efficient processes for delivering patient care and employs technology to reduce costs while improving quality.
Insource is also willing and able to deliver what it believes is world-class care while accepting lower profit margins per patient.
The result, according to Marsocci, is faster and easier access to top specialists and lower costs for uninsured patients.
The Lawsuit |
Key points raised in Insource Development Services of Batavia, LLC. vs. HealthNow New York, Inc. and United Memorial Medical Center.
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In its lawsuit, Insource claims a typical emergency room visit to UMMC costs at least $1,500. The same service through Insource would cost $150.
"I think people deserve a choice," Marsocci said. "Isn't free enterprise what America is all about? Competition is good. It ups the quality, or should, so why not? Why should United Memorial have a monopoly?"
The typical urgent care model is kind of like a doc-in-the-box. The clinics are usually only opened in high-volume communities -- such as well-populated suburbs or densely populated urban neighborhoods. They treat minor injuries and illnesses and do very little in the way of referrals. They're not the place to go if you're seriously ill.
Insource can provide health care as basic as a physical for a high school athlete, up to arranging a consultation with a heart surgeon.
In other words, from a patient perspective, the company can do everything UMMC does, but without the overhead.
When a business planner with an eye toward disruptive innovation looks at a potential opportunity, the planner will try to identify an unmet need and a job to be done.
The unmet need in Genesee County, according to Marsocci, is the lack of top-tier specialists. It's not that they're not here, but there are fewer of them.
And, many local residents -- like it or not, it's true, notes Marsocci -- also lack faith in specialist referrals through UMMC.
This isn't a problem unique to Genesee County or UMMC. It's common in rural counties across the United States.
For the local patient who needs or wants care with a top-tier specialist, the only option until now has been to drive 30 or 40 minutes to Rochester or Buffalo.
"The care here, unfortunately, and I can say this because I've lived in Genesee County all my life, the care here has been substandard for years," Marsocci said. "I don't mean that disparagingly, but I'm saying, call a spade a spade. When I need care beyond primary care, I travel. I have been in those situations where I used a local specialist and it didn't end positively for me, and I've had those times where I was lucky. But you learn through a couple of experiences and you're not going to do it again, so I go east or west."
The job to be done, then, for Insource, is to connect patients who need specialized service with specialists without making them drive for miles and miles.
Computers, laptops, smartphones, tablets, closed-circuit cameras, LCD screens and the Internet -- all the tools of telemedicine -- means those miles, and the wasted time that goes with them, disappear.
The example Marsocci used was of a patient who came to Insource in early Jully complaining of debilitating back pain.
Initially, the concern was that he had a kidney stone, but a CT scan found a growth on his spine. A surgeon and specialist in spinal problems who will soon be one of Insources subtenants was consulted using telemedicine tools. The doctor confirmed the diagnosis and told Insource to have the patient call him on his mobile phone the next day -- July 4 -- for a follow-up consultation.
Two weeks ago, the patient had surgery to remove the growth.
"If that man had gone to any other urgent care, they would not have wanted to spend any more time on him than they had to," Marsocci said. "If they didn't have access to a CT then they knew they were wasting time on him and not getting paid. They would just want to get him out the door. He would have to go to the emergency room then, which means he's going to spend a lot of money for something we did perfectly well here."
"It's pretty exciting to say he had surgery probably before he even would have seen the spine surgeon had he went anywhere else," Marsocci added.
All of these improvements -- better access to specialists, lower costs -- just make good business sense.
"Why can't the people in this community have the same level of care as the people in Buffalo or the people in Rochester?" Marsocci asked.
The response from local doctors to Insource, even those associated with UMMC, has been uniformly positive, Marsocci said. Insource refers patients to local doctors and to UMMC on a daily basis. The goal is to get the patient the best treatment possible, and that often means local doctors and local specialists are the best resources for local patients.
And local health care providers have found Insource a valuable resource, even referring patients to Insource, she said.
If all this makes so much sense, why aren't established urgent care companies around the nation providing the same service? Why isn't UMMC?
Mark Celmer |
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Yesterday, Mark Celmer, president of Insource, spoke with The Batavian's news partner, WBTA, about the lawsuit. Here's what he said. “I do find it absolutely reprehensible that any member of Genesee County that’s insured by HealthNow can travel 40 miles to Erie County and go to any of 22 urgent care sites and be fully covered for their urgent care visit, but they cannot come to the newest one on Main Street, Batavia. I find that just absolutely reprehensible.” “I would like HealthNow to say, ‘Genesee County residents: if you want to go to the urgent care center at the Jerome Center, if you want to go the urgent care center in Le Roy, if you want to go to the emergency room at United Memorial, or if you want to go to Insource Urgent Care Center on Main Street, Godspeed, let’s get going.’ ” |
As we said, we lack UMMC's perspective on this competitive climate, but we do know about the patterns of disruptive innovation.
In any classic case of disruptor vs. the disrupted, the incumbents either under-value the disruption or feel trapped by their established business model. The incumbent sees no way to extricate itself from its present business model, no matter how threatening the disruptive innovation might be.
Newspapers, for example, have found it difficult to transition to an online news model because higher profits are found in their dead tree editions.
While it costs less to produce digital news, the revenues are also substantially lower -- The New York Times publisher once said it was like converting print dollars into digital dimes -- and profit margins are slender to nonexistent (especially if newspapers want to maintain their current newsroom cost structure). Even as readers flee from printed newspapers, incumbent publishers are loathe to go to an online-only business model.
It's very difficult for an incumbent to give up a profitable line of business in favor of a business model that means lower revenue and less profit, especially when successful models are few and far between.
Sailing ship builders couldn't do it when the steam engines came along; Detroit couldn't do it when Japanese cars hit the market; mainframe computer makers couldn't do it when personal computers were first being sold; and, Kodak couldn't do it when digital cameras became popular (and Kodak INVENTED the digital camera).
"We're trying to make sense of where everything should be -- lowering costs, improving quality, improving satisfaction, improving access," Marsocci said. "That's where we find ourselves as disruptive innovators. Nobody in the urgent care business wants to spend the amount of time that we did putting together a formal telemedicine program or the way we do things with continuity of care, having subtenant specialists in our center.
"They want the low-hanging fruit," she added. "It can be a very lucrative business, so they want to find a place in a heavy-traffic shopping plaza and just put up a center and see how many patients they can see each day and make as much money as they possibly can. Where we're really focused on what we're preaching. Continuity of care."
NOTE: Early yesterday evening, The Batavian sent an e-mail to Colleen Flynn, spokeswoman for UMMC, and outlined the nature of the article we were writing about the lawsuit and invited UMMC to comment on the topics raised in this article. The Batavian received no response to the e-mail.
The landlord of a property on East Main Street in the City of Batavia called dispatch concerned about pets there that may be neglected. His tenant hasn't been home in awhile but the person's tarantula, snake and cat are inside and may be in need. An officer will be responding.
Rensselaer Polytechnic Institute, located in Troy, named three local students to the Spring 2013 dean's list for academic achievement. They are:
Austin Kubiniec, of Batavia
Rosalie Mortellaro, of Elba
Tyler Murtha, of East Bethany
Rensselaer is America's oldest technological research university, offering bachelor's, master's, and doctoral degrees in architecture, engineering, information technology and Web science, management, the sciences, and the humanities, arts, and social sciences.
Ryan Christopher Riggi, 18, of North Street, Le Roy, is charged with criminal mischief 4th. Riggi is accused of destroying jail property while incarcerated.
Jake F. Dumas, 23, of 260 Whalen Road, Massena, is charged with trespass. Dumas was allegedly told to leave Billy Goats bar and then refused to leave.
Tony C. Bigtree, 23, of 167 Helenea Road, Hoagansburg, is charged with trespass. Bigtree allegedly refused to leave Billy Goats bar after being told to leave.
David William Santry, 21, of Robin Court, West Seneca, is charged with unlawful dealing with a child, 1st. Santry is accused of providing alcohol to people under age 21 at a party on July 6.
Lisa M. Randall, 45, of Kelsey Road, Batavia, is charged with petit larceny. Randall is accused of shoplifting at Target.
Terry A. Espinosa, 42, of 26 Ganson Ave., Batavia, is charged with disobeying a court mandate. Espinosa is accused of allowing her children to have contact with a male acquaintance in violation of a Family Court order.
Patrick Leslie Gugluzza, 34, of Broadway Road, Alexander, was arrested on a bench warrant for alleged failure to pay fines related to charges of DWI/drugs, following too closely, criminal possession of a controlled substance and criminal possession of a hypodermic instrument. Gugluzza was jailed on $1,000 bail.
Rachael J. Tabelski, communications director for Genesee County Economic Development Center, released the following details on the four projects that will be considered by the GCEDC board this afternoon. The board meets at 4 p.m. at the MedTech Centre, 99 MedTech Drive (across from the college).
1. (GCEDC) Proposed sales tax and property tax abatement -- Graham Corp.
Graham Corporation would like to renovate the "old" plant area, located at the corner of Harvester Avenue and Howard Street in the City of Batavia. A new bay will be constructed (12,439 square feet) that will enclose the area between two manufacturing bays located facing Harvester Avenue along with renovations of office and manufacturing areas. In addition, a new building (3,800 square feet) will be constructed on the 20 Florence St. property. This new building will be used for X-ray inspections of welds done during the fabrication process. Graham currently has 311 full-time equivalent (FTE) employees and expects to add 30 more over three years after the certificate of occupancy is obtained for these renovations. Board Action Request: Approval of an initial resolution to accept the application, and schedule a public hearing as benefits exceed $100,000. The application for the expansion project includes a sales tax exemption ($240,000) and property tax abatement on the incremental increase in assessed value ($243,396). Historical Look: The last expansion project that Graham undertook and the GCEDC assisted was in 2011. At the time, Graham had 278 FTE’s and pledged 30 new jobs in three years for a total of 308 FTEs. According to its 2013 application the company has exceeded its employment goals and plans to keep growing.
2. (GCEDC) Proposed sales tax and mortgage tax exemption and property tax abatement -- Guthrie Heli-Arc, Inc.
Guthrie Heli-Arc, Inc., is a federally certified repair facility for transportation vessels. For the past 22 years its has operated out of a rented facility in Bergen. That facility has been sold, and the lease will terminate. CLR Industries, LLC, real estate holding company, has purchased a facility at 6276 Clinton Street Road in Stafford. The company plans on moving into the Stafford facility after a 7200-square-foot addition to the existing structure is completed. The addition is necessary to accommodate workflow. Board Action Request: Approval of a final resolution to approve incentives for the proposed project. The application for the expansion project includes a sales tax ($14,400) and mortgage tax exemption ($3,750) and property tax abatement on the incremental increase in assessed value ($58,902).
3. (GCEDC) Proposed RLF for business expansion Pellegrino Auto Sales
The company is seeking a 16’x48’ expansion to the current facility and office renovation of 12’x38' at 4060 Pearl Street Road in the Town of Batavia. This will allow for three times the office space for future growth. The company is investing $150,000 and pledging 2.5 FTEs and retaining 5.5 FTEs. Board Action Request: Approval of a $75,000 from the revolving loan fund.
4. (GGLDC) Proposed RLF from the Batavia Micropolitan Area Community Redevelopment Loan Fund -- Jackson Square, LLC.
The former Carr's warehouse was built around 1880 in what is today known as Jackson Square. The company is looking to convert the former warehouse into a mixed-use, commercial and residential site. The ground floor will have flex office/light industrial and four new market rate apartments on the second and third floors. The City of Batavia is current owner of building and will transfer the title to the Batavia Development Corporation for sale to 13 Jackson Square, LLC. It is our understanding that the City of Batavia is looking to assist the project with its 485-A real property tax exemption. Board Action Request: Approval of a $100,000 from Batavia Micropolitan Area Community Redevelopment Loan Fund. Historical look: Board approved final resolution in July 2013 for sales tax ($24,816) and mortgage tax exemption ($2,994) contingent upon 13 Jackson Square, LLC, purchasing the building.
Jayme Jack Ellsworth, 36, of 14 McKinley Ave., Batavia, is charged with grand larceny, 4th, and identify theft, 3rd. Ellsworth is accused of stealing the credit card of another person and using it.
Sean Matthew Murphy, 21, of McKinley Parkway, Blasdell, is charged with DWI, driving with a BAC of .08 or greater and moving from lane unsafely. Murphy was stopped at 11:03 p.m. Tuesday on Sumner Road, Darien, by Deputy Dana Richardson.
Derik Frazier Preston Sharkey, 18, of Center Street, Horseheads, is charged with disorderly conduct. Sharkey is accused of becoming disorderly after being ejected from the concert at Darien Lake and refusing to leave and pushing security.
Tiffany Elizabeth Schultz, 18, of Sanford Road, Perry, is charged with criminal trespass, 3rd. Schultz was allegedly found on Darien Lake Theme Park property at 5:45 p.m Monday after previously being banned from the property.
Shiasia Unique Hill,18, of Herald Street, Rochester, was arrested on a bench warrant for alleged failure to pay a fine related to a petit larceny arrest. Hill was jailed on $250 bail.
Eva A. Twichell, 47, of East Aurora, is charged with DWI and driving with a BAC of .08 or greater. Twichell was stopped at 9:41 p.m. Sunday in the Town of Batavia by State Police.
Information and photos provided by Elizabeth Bentley-Huber.
Boy Scouts Tristan Korzelius, Jake Houseknecht and Ryan Missel installed storm drain markers in the City of Batavia on Saturday as part of an ongoing effort by the Tonawanda Creek Watershed Committee to remind people that what goes down storm drains has a direct impact on the quality of water in the Tonawanda.
A dozen volunteers installed 253 medallions over storm drain inlets throughout the city.
Tonawanda Creek committee members and local volunteers have also installed these markers in the Village of Attica, hamlets of Varysburg, North Java and Johnsonburg. Last year members installed medallions in the City of Tonawanda and North Tonawanda.
If you are interested in joining this effort or have any questions, please contact Elizabeth Bentley-Huber at Genesee County Soil & Water Conservation District at 585-343-2362 or at Elizabeth.Bentley-Huber@ny.nacdnet.net.
Kirk Peryea and Lucy Pietrzykowski
Kirk Peryea, Lucy Pietrzykowski, Greg Houseknecht, Jake Houseknecht, Tristan Korzelius, Ryan Missel, Robert Cassatt, Molly Stetz. Absent: James Tuttle, Les Winters, David Winters, Addison Winters. These volunteers installed 253 medallions over storm drains in the City of Batavia on July 27, 2013.
Press release:
The Board of Directors of the Genesee County Economic Development Center (GCEDC) will consider two projects at its Aug. 1 board meeting. The board anticipates reviewing two revolving loan fund applications at this meeting as well.
Graham Corporation is seeking sales and property tax abatement for an expansion of its existing facilities. A new bay will be constructed (12,439 square feet) that will enclose the area between two manufacturing bays facing Harvester Avenue along with renovations of office and manufacturing areas. In addition, a new building (3,800 square feet) will be constructed on the 20 Florence St. property. This new building will be used for X-ray inspections of welds done during the fabrication process.
The total capital investment of the project is estimated to be approximately $5,500,000, with the proposed tax incentives contributing $483,396. Graham currently has 311 full-time equivalent (FTE) employees and expects to add 30 more over three years after the certificate of occupancy is obtained for these renovations.
The estimated economic impact of the project is 17.30:1. For every dollar of tax relief granted, the company will invest $17.30 into the local economy. Because the proposed incentives exceed $100,000, the board will first consider an initial resolution to be followed by a public hearing.
The last expansion project that Graham undertook – also with assistance from the GCEDC – was in 2011. At the time Graham had 278 FTEs and pledged 30 new jobs in three years for a total of 308 FTEs. According to its 2013 application, the company has exceeded its employment goals and plans to continue growing.
Guthrie Heli-Arc, a federally certified repair facility for transportation vehicles, is seeking sales and mortgage tax exemption and property tax abatement for an expansion and relocation project. For the past 22 years, the company has operated out of a rented facility in Bergen. That facility has been sold, and their lease will terminate. CLR Industries, LLC, a real estate holding company, has purchased a facility at 6276 Clinton Street Road in Stafford. Guthrie Heli-Arc plans on moving into the Stafford facility after a 7200-square-foot addition to the existing structure is completed. The addition is necessary to accommodate workflow.
The total capital investment of the project is estimated to be approximately $300,000, with the proposed tax incentives contributing $77,052. Guthrie Heli-Arc estimates that the project will allow the company to create two new jobs while retaining six others. The estimated economic impact of the project is 9.4:1. For every dollar of tax relief granted, the company will invest $9.40 into the local economy.
All GCEDC Board meetings are open to the public. Meetings are held on the second floor of the Dr. Bruce A. Holm Upstate Med & Tech Park, located at 99 MedTech Drive in the Town of Batavia, across from Genesee Community College. The meeting is anticipated to convene at 4 p.m.
Press release:
The Genesee County AmeriCorps Program, in collaboration with the Genesee County and Batavia youth bureaus, is planning the annual Safe Summer Children’s Carnival from 10:30 a.m. until 2 p.m. on Thursday, Aug. 1 at Falleti’s Ice Arena, 22 Evans St. in Batavia. It's open to the public.
One dollar buys a ticket to play 10 games, and children can win “funny money” to redeem for prizes.
Entertainment by “Charlie and Checkers” is scheduled from 10:30-11:30 a.m. and the games will run from 11 a.m. to 2 p.m. There will also be several community agency booths. Visiting these booths enters a child to win an iPod Shuffle.
For more information on the carnival please contact Chelsea at the Genesee County Youth Bureau at 344-3960.
A car fire, with flames showing, is reported in the parking lot of Aspen Dental office on Veterans Memorial Drive. Town of Batavia Fire Department is responding.
Satoko Iwashita, of Batavia, is among the 998 students who graduated from SUNY Oneonta following the Spring 2013 semester.
Satoko earned a BS degree in Statistics.
Established as a state normal school in 1889 and incorporated as a founding member of the state university system in 1948, the college is well known for its outstanding faculty, strong academic programs, educational technology, community service and character-building activities, and scenic campus.
It's an ambitious plan, one that takes in 366 acres in the heart of Batavia and targets at least five major areas for redevelopment, and it got a some favorable responses at a special public meeting Monday night.
"There have been a lot of plans done over the past 15 years and they have been shelved," said local businesswoman Mary Valle. "Now, we are ready to move forward. There are a lot of exciting things going on in the county and the city. I do believe the people are ready to support it and more forward."
Perhaps the most dramatic redevelopment proposal involves knocking down part of the downtown mall and extending Jackson Street north to Alva Place.
The plan would open up some of the mall concourse, improve parking and traffic circulation and improve development potential in the area, officials said.
An artist's rendering shows a new three-story, L-shaped building at the corner of the extended Jackson Street and Main as well as a new three-story building on the east side of the new Jackson Street, next to the existing Bank of Castile building.
"I like the idea that we are doing something," said Councilman Pier Cipollone. "I would prefer to see more retail come into the mall. I really like the idea of opening up the concourse.I would actually like to see the entire concourse opened up and create an open area walkway. I understand the notion of an indoor winter area, but I still thik it would make more sense to just open it up and give all those businesses access from the outside."
The plan also calls for redevelopment in and around the Della Penna building on Ellicott Street, to stretch down Evans toward Mill Street and along the railroad tracks almost to Jackson Street.
Included in what's known as the Batavia Opportunity Area is the Harvester Center -- which has already undergone some redevelopment with the Masse Place project -- and what the plan calls the medical corridor, which is the area east of Bank Street.
The plan builds on Batavia Central Corridor Urban Design, Marketing and Development Plan completed in 2006 and the recently completed Community Improvement Plan.
The planning phase is covered under a $260,000 state grant, the Brownfield Opportunity Areas Program.
The presentation, with artist renderings, is supposed to be posted on the Batavia Opportunity Area Web site some time this morning.
Story via The Batavian's official news partner, WBTA.
In their vigorous effort to keep their client out of state prison, the attorneys for Jacquetta B. Simmons have presented arguments to the Appellate Division, Fourth District of the NY Supreme Court that challenge both her sentence and her conviction.
SImmons is the young woman who hit Grace Suozzi, then a 70-year-old cashier at Walmart on Christmas Eve 2011, and was later convicted of felony assault based on the injuries sustained by Suozzi and her age relative to Simmons, who was 26 at the time.
A year later, following a jury trial in Genesee County Court, Simmons was sentenced by Judge Robert C. Noonan to five years in prison and three years probation.
The defense contends that the sentence is harsh and excessive, that the evidence presented at trial doesn't support the finding of the jury, and even if it did, the law used to convict Simmons is unconstitutional.
District Attorney Lawrence Friedman has a differing view of the facts and the law and filed an answering brief.
Friedman said the attorneys will likely make oral arguments before the appellate court sometime in September and a ruling isn't likely before the end of the year.
Meanwhile, Simmons, now a mother, is out of prison with her sentence stayed until a decision is rendered.
Here's a summary of the defense's appeal:
The sentence is harsh and excessive.
The defense contends that under the current justice system, a judge is charged with selecting a sentence that will be best suited for rehabilitation of each defendant.
The judge should consider: 1) the nature of the offense; 2) the community's condemnation of the defendant's conduct; 3) the necessity of protection of the community; 4) the deterrent effect on others; 5) the potential for rehabilitation; and, 6) the defendant's previous record.
The defense leans heavily on the lack of criminal history for Simmons and her record of as a productive member of society, who had a job, an education and a history of volunteering in her community.
The defense contends that what Simmons did Dec. 24, 2011 -- whether it was a punch (as the prosecution maintains), a hit (the defense version) or an accident (the defense's argument at trial) -- it was "out of character" for a young woman admired by those who really know her.
While the prosecution maintained at sentencing and in its answering brief that Simmons has shown no remorse, the defense -- attorneys Earl Key and Anne Nichols -- are adamant in briefs that Simmons truly regrets her actions that busy shopping day in Walmart.
They state that at trial, Simmons admitted that she had opportunities to tone down the conflict at Walmart, but proceeded in a manner that eventually led to a harmful result.
"I still hold no hate or bitterness for Grace," Simmons said at trial. "I wish I had stop(ped) my movements before I pulled away then maybe there would have been no harm to her. I would take back that moment a million times."
The defense notes that the Probation Department, in its pre-sentence report, recommended a community-based (no jail time) sentence for Simmons.
The defense also cites several convictions in New York where defendants convicted of more serious crimes were given no more than five years in prison, or were given harsh sentences that were later reduced by the appellate court.
The verdict went against the weight of the evidence.
The defense has a different version of events and sees the testimony differently than the prosecution.
Whereas the prosecution argued at trial that Simmons planted her foot, swung back her arm and took a round-house punch that knocked Suozzi across the floor and caused facial fractures, the defense argues there is a different narrative that the jury did not fully consider.
The defense says the evidence presented at trial shows that Simmons was attempting to leave the store when Suozzi stepped in front of her and another Walmart employee grabbed the arm of Simmons, causing Simmons to swing it forward, striking Suozzi unintentionally.
According to the defense brief, Suozzi and other witnesses either forgot key facts or changed their testimony from their original statements to police in a manner that exaggerated events (Dylan Phillips, for example, was the only witness who testified that Simmons used the C-word at trial and was 15-20 feet away from the altercation).
On the other hand, according to the defense, Simmon's has remained consistent in her statements from the time of her arrest through her testimony.
"She maintained from day one that someone grabbed her arm from behind as she was pulling away as Ms. Suozzi came out from her register to confront her when she was struck," the defense states in its brief.
The defense contends also that Suozzi overstated the nature of her injuries at trial. The brief says that medical records provided to the jury show that her doctor wrote the month after the incident that her fractures were healed and that doctors' notes state that she said she wasn't taking pain medication (at trial, she said she took prescription pain pills for two weeks before switching to Tylenol).
The defense concludes, "... even in viewing the evidence in a light most favorable to the People, that the verdict of guilt is against the weight of the evidence and should be overturned."
The statute is unconstitutional.
After the basic felony assault charge against Simmons was thrown out because Noonan ruled that the grand jury had not received sufficient evidence that Simmons intended to cause serious physical injury, the prosecution was left with only one felony count to try.
That count is a relatively new law that makes it a felony for a person much younger than a person over 65 to cause injury to an older person.
It's often referred to as an elder abuse law.
The dispute between the defense and the prosecution over the law hangs on an arcane legal term, "strict liability."
Think of getting a speeding ticket: If you are driving in Corfu, going 55 mph in a 35 mph zone, it's no defense that you didn't know the posted speed limit was 35. You were going 55 in a 35 mph zone. You're guilty. Period.
In the Simmons case, the prosecution -- and Noonan agreed -- that Simmons need not have knowledge of her victim's exact age to violate the law. That's strict liability.
The defense contends the Legislature, in passing the law, did not intend strict liability, that in order to violate the law, the defendant would need to have knowledge of the victim's age.
"The grammatical construction," the defense writes, "of the statute couples the culpable mental state with the requirement that the actor cause injury to 'such person' which literally reads as an intent element requiring the defendant to have intended to assault a person age 65 years or older, which thereby requires knowledge of the victim's age."
Also, the legislation was enacted, the brief states, to deal with predatory attacks on seniors.
"The case of Ms. Simmons and Ms. Suozzi is certainly not one of a predatory attack," the defense states.
That statute as written, the defense contends, denies a defendant due process under the Fifth and Fourteenth amendments.
The prosecution answers.
The brief from the District Attorney's office, written by ADAs Will Zickl and Melissa Cianfrini, argues that the defense is wrong on both the law and the facts.
Key to the prosecution's case is what Simmons knew and when she knew it, and that isn't a matter of Suozzi's age, but whether Simmons intended to strike her.
While the defense has portrayed the act of Simmons hitting Suozzi as an accident, the prosecution states that in testimony and evidence, Simmons clearly knew what she was doing and why she did it, and has never shown remorse for her actions.
When Simmons was interviewed by Trooper James Baines the night of Dec. 11, 2011, Simmons waived her Miranda rights. Simmons asked to review the surveillance footage from Walmart.
Baines testified that Simmons then said, "someone grabbed her. She doesn't remember what happened. She just punched."
According to Baines, Simmons knew Suozzi was taken to a hospital, but never asked about her well being.
At trial, under cross-examination, Simmons admitted she was angry when a Walmart cashier asked her for a receipt for a prior purchase.
In a series of questions by Friedman, Simmons was asked about punching Suozzi, with Friedman repeatedly using to the word punch, and Simmons never corrected his use of that word.
At the end of the series of questions:
Q. She was a foot away from you, right in front of you, when you punched her, isn't that what you just said?
A. Yes.
Simmons also testified overhearing a woman in the Walmart parking lot after she and her brother ran out of the store saying, "You can't hit a white woman like that."
Under questioning from Friedman, Simmons said that contrary to the testimony of Baines, she did ask if Suozzi was hurt.
Q. You asked how she was before he showed you the video?"
A. Yes, I did.
Q. So, before you ever knew you hit her, you asked Trooper Baines how she was, right?
A. Yes.
When it comes to the conviction, the prosecution states, "the testimony of the People's witnesses was essentially harmonious and, together with the video evidence offered by the People, painted a clear picture of the case. The defendant was hostile and increasingly aggressive during the incident, and the vicious punch the defendant administered evinced her intent to cause physical injury to the victim."
As for the constitutional question, the prosecution contends that the trial court ruled correctly that the Legislature intended strict liability under the law and that state of mind about the age of the victim was not necessary to win conviction.
As for the sentence, the prosecution continues to maintain that Simmons has never expressed sincere remorse or any real concern for the injuries inflicted on Grace Suozzi, therefore, the five-year prison sentence should stand.
"Despite the fact that the defendant's behavior would have justified an even greater sentence, the court demonstrated lenity by imposing considerably less than the maximum amount of incarceration available to it."
In response to the prosecution's brief, Nichols filed a response with the court that argues strenuously that Simmons expressed remorse.
"At sentencing," Nichols writes, "Ms. Simmons stood up in an open court and stated, 'I just want to say how truly sorry I am about the incident that happened. I hate that Grace and her family had to endure all the things that they are going through right now."
That's remorse, Nichols said.
"Plantiff-Respondent and the sentencing court have simply chosen to not accept Ms. Simmons' statements of remorse, which is different than Ms. Simmons not showing remorse at all."
It will be up to a group of justices in Rochester to sort through these contradictory views, decide which facts hold the most weight and how the law should be properly applied.
Whatever their decision, the case won't necessarily be over, with an appeal to the state's top appeals court possible.
For previous coverage of the Simmons case, click here.
Police were called to an address on Harvester Avenue to check on a resident's complaint that the neighbor was burning garbage outside.
"They're having a backyard cookout," said the responding officer before leaving.
A second suspect has been arrested in the June 1 burglary of the Sherwin-Williams paint store on Liberty Street, Batavia.
Michael J. Elmore, 22, of 130 Bank St., Batavia, is charged with third-degree burglary. He is accused of participating in the break-in and entering the story during the burglary.
Earlier this month, a former employee, who worked at the store at the time, was accused of supplying a key to the theives to help them with the burglary.
Rebecca G. Morse, 21, of 130 Bank St., Batavia, is charged with burglary, 3rd. She allegedly received a portion of the proceeds from the burglary.
Elmore was jailed on $10,000 bail.
The investigation is continuing.
Kyle Jackson, 21, of Slusser Road, Batavia, is charged with grand larceny, 4th. Jackson allegedly drove an electric shopping cart across the Walmart parking lot, onto Route 63 and into the parking lot of Rite Aid at 4:30 a.m., June 12.
Douglas G. Goodwin Jr., of 130 Bank St., Batavia, is charged with offering a false instrument, 2nd, grand larceny, 4th, and criminal mischief, 3rd. Goodwin is accused of entering an apartment and stealing a hot water tank, gas and water lines and other items. Goodwin was jailed on $10,000 bail.
Foster M. Brandt, 22, of 20 Tracy Ave., Batavia, was arrested on warrants for obstruction of governmental administration and criminal mischief, 3rd. Brandt was jailed on $2,000 bail.
Christina A.M. Deluna, 33, of 122 State St., Batavia, is charged with harassment, 2nd. Deluna was arrested by Batavia PD following an investigation into a domestic incident reported at 6 p.m, Friday.
Angela S. Bianco, 42, of 137 State St., Batavia, is charged with petit larceny. Bianco was allegedly seen on security footage at Save-A-Lot taking a Red Osier billfold belonging to another customer.
Bryon Gilbert Keller, 18, of Sumner Road, Corfu, is charged with petit larceny. Keller is accused of stealing a laptop computer from a residence in Darien.
Frank Lyman Stanton, 32, of Bethany Center Road, Bethany, is charged with DWI, driving with a BAC of .08 or greater and no/inadequate exhaust system. Stanton was stopped at 12:32 a.m. Sunday on South Lake Road, Bergen, by Deputy Patrick Reeves.
Joshua Todd Fullmer, 20, of West Main Street Road, Batavia, is charged with criminal possession of a weapon, 4th, and unlawful growing of marijuana. At 5:48 p.m., Saturday, deputies responded to a report of a fight at 3124 W. Main Street Road, Batavia. Upon investigation, Fullmer was allegedly found in possession of brass knuckles and had several marijuana plants growing on his property.
Joshua Christopher Uptegrove, 27, of Meadville Road, Alabama, is charged with harassment, 2nd. Uptegrove allegedly pushed another person during an argument.
James Maslow, member of Big Time Rush, which performed at Darien Lake last night, stopped in at Next Level Fitness yesterday for a workout.
Big Time Rush is both a boy band and a television series on Nickelodeon.
Maslow is a singer-songwriter and actor from La Jolla, Calif. who plays in the television series a Minnesota Hockey player who's moved to Los Angeles and cast into the band Big Time Rush.
Pictured are Andrea Mistler, Kristin Bates, Maslow and Tim Walton.
Photo submitted by Tim Walton.
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