batavia

Serial sexual predator Marlek Holmes will be locked away in state prison for 15 years, with more local charges pending, after his sentencing in Genesee County Court today.

The 43-year-old Holmes, who has already spent 14 years of his adult life in prison and is a registered Level 3 sex offender, read a lengthy statement to Judge Charles Zambito before his sentencing in which he declaimed all responsibility for the sexual assault on his underage victim except that he should have been the one protecting her from another, unnamed, assailant. 

"If I had not been in prison, I would have been there to protect her from the person who sexually abused her," he said.

His victim also spoke in court -- a slight girl, barely in her teens, whose pink pants fit loosely on her thin frame -- and cried throughout most of her statement, which both described the horror she knows she will always live with and the pain of the physical assaults.

"I'm scared to even look at you," she said.

She said she can forgive but never forget.

"I wish you the best," she said. "I know you're not going to make it, but God bless."

Holmes, wiry and muscular, sat casually at the defense table, dressed in an orange jail jumpsuit, with his hands cuffed to his waist, and never looking at the girl.

District Attorney Lawrence Friedman said Holmes caught quite a break in getting a plea agreement the day his trial was supposed to start May 4. Holmes was originally charged, in this case, with Class A felonies of predatory sexual assault and predatory sexual assault against a child. A conviction in a jury trial may have meant a life sentence.

Friedman said he believes a life sentence would be appropriate, but the deal -- saving the girl, who said she also favored Holmes getting life in prison, the necessity of testifying -- allowed Holmes to plead guilty to a Class C violent felony, attempted criminal sexual act in the first degree.

After going through Holmes' lengthy criminal record, which includes prior sexual assaults, two prison terms, two periods on parole, and still 27 counts of other criminal charges, Friedman said Holmes deserved no more consideration in his sentence than what he's already received.

"He is a sexual predator," Friedman said. "He has always been a sexual predator. He will always be a sexual predator."

Zambito noted the contradiction between the statement provided by Holmes and the clear, emotional statement by his victim naming him as the abuser. Holmes, he said, did get a substantial break with the plea deal.

"I can't conceive of any legitimate reason to give anything other than the maximum sentence this plea allows," Zambito said.

A trial date for the other charges against Holmes was set for Aug. 28, but both Fred Rarick, representing Holmes, and Friedman, said they would discuss a possible plea deal to settle those charges as well.

As anticipated, Buffalo-based Savarino Companies has applied for financial assistance from the Genesee County Economic Development Center to help offset the costs of environmental cleanup and redevelopment of the long-vacant Della Penna property on Ellicott Street in the City of Batavia.

The GCEDC board will consider the application for the $17.6 million rehabilitation project at its meeting tomorrow.

Savarino is planning to replace most of the structures on the property and replace them with a 64,000-square-foot development that will include apartments, office space and a brewery and restaurant.

Once completed, there will be 47 market-rate apartments on the border of Downtown Batavia and businesses employing at least 60 full-time workers.

The terms of the application were negotiated by the city and GCEDC during the process of attracting a developer for the brownfield project and include $897,293 in sales tax abatement on materials during construction, relief on $128,232 in mortgage taxes and $537,398 in property taxes.

Savarino has already announced an anchor tenant for the Ellicott Station project, Resurgence Brewing Company of Buffalo, which plans to use the facility to increase production of a new product, a sour beer, as well as serve on tap its full line of beers that have proven popular in Buffalo.

The project is part of the Batavia Pathway to Prosperity (BP2) initiative, which is a cooperative endeavor between the city, GCEDC, Batavia Development Corp., City Schools and Genesee County.

BP2 was created to offer a tax abatement known as a PIF (PILOT (payment in lieu of taxes incremental financing), which is the first of its kind in New York. Half of the PIF payments will be used to help fund future brownfield redevelopment in Batavia, with the other half being returned to the original taxing jurisdictions.

The Batavia Opportunity Area (the brownfield redevelopment area) covers 366 acres in the city's core and contains five strategic redevelopment sites.

City and county officials are largely in agreement on how sales tax should be distributed among the various local governments that have been part of a sharing agreement for nearly two decades, City Manager Jason Molino said last night.

The current agreement is about to expire and there are still details to be worked out, however, plus time is needed to draft new legal agreements before elected officials can approve a new plan, so the City Council is being asked to approve a temporary extension to the current agreement.

The County Legislature will also need to approve a temporary extension.

There is a working group of top managers with city and county working on the details, not only of the sales tax sharing agreement but also agreements dealing with water distribution and use of the city's wastewater treatment facility. The deals have previously been interconnected because of the mutual interest of all parties cooperating on these initiatives, Molino said.

"It is in everybody’s self-interest to have an agreed upon agreement in place for sales tax distribution," Molino said. "No one benefits from these agreements going away. There is a form and fashion they have to take with new terms and conditions, but it’s in everyone’s best interest to work out a distribution that is equal and fair to everyone."

Currently, there is an 8 percent sales tax in Genesee County. Of that, 4 percent is mandated by the state and so the money goes to the state. The county keeps 2 percent; of the remaining 2 percent, the city gets about 1/3 of it and the other 2/3 is divided among the county's town and village governments.

The city's share comes to about $6 million annually.

Work on a new agreement started in the fall. The temporary extension, once approved by both City and County, will keep it in place through December 2018.

The city continues to be dogged by vacant, abandoned and unkempt residential properties, prompting a City Council conversation Tuesday night about the city's progress on a few specific nuisance properties.

City Manager Jason Molino said the city's effort to deal with so-called zombie houses is making progress, but it's a "slow-moving train."

"Some of the vacant homes that were vacant are no longer vacant," Molino said. "They’ve been picked up and worked on, so we're seeing some progress."

Three properties, in particular, were singled out by council members -- 129 Hutchins St., 404 S. Jackson St., and a house on Ellicott Avenue.

The house on Hutchins fits the description for what officials usually mean by a "zombie property." It's long been vacant and there's little indication that anybody is taking responsibility for it.

There's junk piled on the front porch and scattered around the back yard, and the grass hasn't been cut all season. Inspectors have posted a notice on the front door.

Councilwoman Rose Mary Christian has determined the USDA, which apparently financed the purchase the property, has possibly foreclosed on the house and she's been in contact with USDA officials about cleaning up the property.

At 404 South Jackson, across from Jackson School, is the burned out hulk of a former multifamily complex. The building was destroyed in a fire March 8 and has sat untouched since, except for a safety fence the city erected around it.

Molino said the owners, Barton H. Bowman and Thomas W. Hallock, have been cited and were ordered to appear in court earlier this month, but neither showed up in City Court, so a warrant has been issued for both men.

Through the normal court process, it could take 30 to 90 days to get the structure torn down, Molino said. If the city wants razed sooner, like immediately, the city could do that, but would have to foot the bill.

As for the property on Ellicott Avenue, Councilman Bob Bialkowski raised it as a possible zombie property. A check of the residence led to the discovery of an open door with possible forced entry. When police responded, there was nobody inside and dispatchers were able to contact the property owner, who indicated she is in the process of moving out. There was no forced entry, a police officer said. The broken glass near the door was from damage the property owner knew about.

The city has a tax exemption available for owner-occupants who buy a zombie property and rehabilitate it. While there have been several inquiries about the exemption, and several former zombie houses are now owned and occupied, no exemptions have been granted yet, Molino said. That could soon change.

Molino said a young couple recently purchased a house that had been vacant for at least seven years, getting it on a short sale, and the couple plans to invest a significant amount of money rehabilitating it. Molino said he is meeting with the couple next week to discuss the exemption.

"This definitely qualifies," Molino said. "This might be our first actual case."

The city is also working with potential community partners on a loan program to help people finance the purchase of owner-occupied former zombie homes. He said an announcement about that program could come within 30 to 60 days.

The former Buffalo Jills have something to cheer about this week. A judge ruled in a 2014 lawsuit filed by the Jills against the Buffalo Bills, that the cheerleaders were in fact employees, not independent contractors.

This ruling is important because as employees they are legally entitled to workers’ rights and regulations which they wouldn’t be if they were independent contractors. Under workers’ rights laws, the Jills will have to be paid at least minimum wage for their work.

Dolce Panepinto partner Sean Cooney is one of the attorneys representing the Jills, and is dedicated to protecting the rights of workers. You can find more information on the lawsuit here and here. For further questions contact Dolce Panepinto: click here.

File photo from 2016.

Press release:

Members of the Batavia City firefighters from IAFF Local 896 will fan out across the streets of Downtown Batavia with boots in hand for this year's donation drive on Friday, June 2^nd.

Batavia’s Fill the Boot drive is organized by firefighter Chris Morasco. Proceeds benefit the Muscular Dystophy Association.

“In 2016, we set out to break the $10,000 mark," Morasco said. "Our members, with the help of our generous community were successful and able to raise $10,574.74 for the MDA! Look for us Friday!”

From 8 a.m. to 1:30 p.m., city firefighters will be at the intersection of Main Street (Route 5) and Court Street, and also at Ellicott Street (Route 63) and Court Street collecting donations for MDA.

Kiha Samuel McNear, 19, of Walnut Street, Batavia, is charged with disorderly conduct, obstruction of governmental administration, and resisting arrest.On May 27, Batavia PD responded to an address on Jackson Street for a reported disturbance. While on location, police allegedly observed McNear acting in a "violent and tumultuous way." McNear was taken into custody after a brief physical altercation. The defendant was arraigned and jailed on $1,000 cash or bond. McNear is due back in City Court this afternoon. The case was handled by Batavia Police Officer Arick Perkins, assisted by Officer Eric Foels.

Michael Bryan German, 34, of Ellicott Street, Batavia, is charged with DWI, aggravated DWI with a BAC of .18 percent or higher, and moving from lane unsafely. At about 1 a.m. on May 27, Genesee County Sheriff's Deputy Ryan Young was traveling east on Route 5 in the City of Batavia when a Ford pickup truck allegedly moved from its lane unsafely, almost striking Deputy Young's vehicle. Deputy Young initiated a traffic stop on the pickup truck. After a brief investigation of the driver, German was taken into custody and charged as noted. German was issued appearance tickets and released. The defendant is due in City Court on June 21 to answer the charges.

Darazian "Willie Paul" Williams, 23, of West Main Street, Batavia, is charged with criminal possession of a controlled substance in the 7th degree and failure to keep right. At 7:29 p.m. on May 25 on Alexander Road, Alexander, Williams was arrested following a property damage accident. He allegedly possessed amphetamine pills at the time. He was issued an appearance ticket for Town of Alexander Court on June 27. The case was handled by Genesee County Sheriff's Deputy Michael Lute, assisted by Sgt. Jason Saile.

Chris Kaboingo Mukendi, 28, of Mill Street, Le Roy, is charged with criminal possession of a controlled substance in the seventh degree. Mukendi was arrested at 7:29 p.m. on May 25 on Alexander Road in Alexander followinf a property damage accident. Mukendi allegedly possessed amphetamine pills at the time. The defendant was issued an appearance ticket for Town of Alexander Court on June 27. The case was handled by Genesee County Sheriff's Deputy Michael Lute, assisted by Sgt. Jason Saile.

Alan P. Ellis, 36, of Woodstock Gardens, Batavia, is charged with criminal contempt in the second degree -- violating a valid order of protection. Ellis allegedly sent text messages to a protected party on Ellsworth Avenue, Batavia, in violation of a duly served order of protection out of Batavia City Court. He was subsequently arrested and jailed in lieu of $1,000 bail. The case was handled by Batavia Police Officer Marc Lawrence, assisted by Officer Peter Flanagan.

Philip S. Pompey, 28, of Lark Street, Buffalo, is charged with aggravated unlicensed operation of a motor vehicle, 3rd. He was arrested May 27 on a warrant out of City Court and is due in City Court this afternoon. The case was handled by Batavia Police Officer Nicole McGinnis, assisted by Officer Darryle Street.

Katrina L. Thigpen, 34, of Thrope Street, Batavia, is charged with offering to file a false instrument in the first degree and issuring a false financial statement with intent to defraud. Thigpen was arrested at her residence after she allegedly provided GC Probation Department with false NYS and Federal tax return information on May 15. She was issued an apearance ticket and released. She is due in Batavia City Court at a later date. The case was handled by Batavia Police Officer Marc Lawrence.

Paul E. Tenney, 71, of East Morganville Road, Stafford, responded to Batavia Police Department Headquarters on his own accord after a bench warrant was issued. He was subsequently arrested for NYS Fire Code violations, which allegedly occured at 198 Ellicott St. at 1:30 p.m. on May 19. He is due in City Court at a later date. The case was handled by Batavia Police Officer Marc Lawrence.

A 17-year-old who lives on Slocum Road, Perry, is charged with unlawful possession of marijuana. Following a complaint on May 28 at 9:54 p.m. on Veterans Menmorial Drive, the defendant was arrested for allegedly possessing a small quantity of marijuana and issued an appearance ticket for Town of Batavia Court on June 26. The case was handled by Genesee County Sheriff's Deputy Kyle Krzemien, assisted by Deputy Ryan DeLong.

A mother managed to push her child out of the way of an oncoming car that struck her and killed the family's two dogs Saturday afternoon on Allen Street, Batavia.

The name of the 32-year-old woman hasn't been released, nor has the name of the juvenile driver.

The accident was reported at 3:16 p.m., Saturday.

A gold Ford Taurus was eastbound on Allen Street when it left the roadway, went over a curb and not the sidewalk, according to police. 

The woman pushed her son out of the way as the car approached.

The driver reportedly fled the scene but returned later.

He was allegedly driving the vehicle without the owner's permission. 

Police said the medical status of the woman is not known at this time. 

The investigation is ongoing and police said no further information will be released.

Potential witnesses are asked to contact Det. Rich Schauf at (585) 345-6312 or the confidential tip line at (585) 345-6370.

Black smoke is reportedly pouring from the back of a house at 5155 E. Main Street Road. A first responder on scene is investigating and says it's a controlled burn, of tree stumps. Town of Batavia Fire Department is called and a firefighter is continuing to the scene to investigate.

A local businessman who said he hasn't even had time to grieve his sister's death because of five years of litigation around her estate was given a conditional discharge in County Court today on his prior guilty plea to a misdemeanor of falsifying business records.

James Pontillo's attorney, Fred Rarick, reminded Judge Michael Mohun, who is handling this case, that his client accepted a plea deal, not because he had done anything wrong, but because he wanted to get this part of the legal issues surrounding his sister's estate behind him.

"I tried to do everything the best of my ability," Pontillo said. "I did everything I was called upon to do, but there seems to be a misunderstanding."

Much of what this case is about, apparently, is tied up in surrogate's court, where Scott German, as one of his duties as county treasurer, has been appointed the administrator of the estate of Jeanne Veronica Pontillo, because there was nobody else deemed qualified to assume that role.

Pontillo has said he was trying to take care of his sister's properties while the estate was settled.

The conditional discharge means the Pontillo's conviction can be dismissed if he has no run-ins with the law for a year. He was required to pay $2,500 in restitution, which Rarick asked to be applied to back taxes on Jeanne Pontillo's properties, but District Attorney Lawrence Friedman objected to the redirection of the money.

Three of the properties -- none of them in Genesee County -- are about to go into tax lien foreclosure because nobody has paid the property taxes on those properties.

"The hardest thing about all of this is I haven't been able to properly been able to grieve for my sister," Pontillo said. "This has been going on for five years. She was more than a sister to me," he said as his voice quivered, "she was like a daughter to me."

He said the litigation has affected him personally, financially and professionally.

"I just want it to end."

Friedman renewed his request for an order of protection, requiring Pontillo to have no contact with German. This was a contentious issue in December in front of then Interim Judge Micheal Pietruszka. Rarick raised concerns about the order and the ongoing probate issues, so Pietruska agreed to amend the order, but Friedman asked for further refinement, and after more back and forth among the attorneys, Pietruszka literally tore up the order in court.

Again, today, Rarick and Friedman couldn't agree on the necessity of the order, and while Rarick acknowledged personal animosity between Pontillo and German, he said he feared German could use the order to make a false claim against his client.

Friedman scoffed at the suggestion and said a false claim is possible with any order of protection. That's no reason, he said, not to issue one.

Mohun didn't sign the order. He thought an order of eight years was excessive in a case involving a conditional discharge, but he amended Pontillo's conditional discharge so it requires him to stay away from German for the next year.

Previously: Landlord accused of falsely claiming to own a dwelling in Batavia (we've covered James Pontillo extensively over the years and this story contains links to most of that prior coverage).

To purchase prints, click here.

Submitted photos and press release:

The Paolo Busti Cultural Foundation Scholarship Dinner will be held at Terry Hills Restaurant and Banquet Facility beginning at 6:30 p.m. on Wednesday, June 14. There will be a cash bar followed by an Italian buffet at 7 p.m. Tickets are $25 and are available at Ben’s Appliance, VJ Gautieri Construction or from any board member.

Outstanding Italian Americans will be honored and the recipient of the Paolo Busti Scholarship will be named.

The following scholarship applicants are all high school seniors in the Class of  2017.

Alexis "Lexi" Hoerner, pictured above, attends Batavia High School where she holds an overall GPA of 95 and ranks 19th in a class of 175. Lexi is a member of the National Honor Society as well as the National Art Honor Society. She has received numerous honors and awards, including a commendation in the 2016 Congressional Art Competition NY 27th District, and the Bob Heischman Award for Excellence in Creativity in Drawing as well as various school awards for outstanding achievement in art, printmaking, portfolio, sculpture, and excellence and creativity in drawing.

Lexi is a member of the BHS varsity swim team and has volunteered with various local community organizations including the Lions Club, YWCA, Crossroads House, and Genesee County CASA (Court Appointed Special Advocates). She has also served as a BHS Link Leader and with the Art Department Stage Crew at Batavia High School.

Lexi plans to attend Canisius College in the fall where she will continue her studies in Studio Art.

Alexis is the daughter of Karen Cutitta and Michael Hoerner.

She is currently employed at Olympia Sports in Batavia. This job has given her incredible communication skills, leadership qualities and patience. She volunteers at the NYS Veterans Home in Batavia. She helps in the business office with medical records and also has helped with the residents when needed.

She feels her work ethic has come from being a part of a sports team, volunteer and working with different people at Olympia. She would be a different person if she did not experience all she has, especially in her last four years at Notre Dame High School. Gabby plans on attending Niagara University in the fall and major in Biology.

Gabrielle is the daughter of Rocco and Janice Della Penna, of Batavia.

Lyndsey has dedicated many hours to various activities in high school. She has participated in band, chorus, drama club, JV and varsity volleyball, track and field, DECA, business club, National Honor Society and high honor roll. She has also participated in various events outside of school, including youth group and nursery at Grace Baptist Church, Genesee Cancer Assistance fundraisers, club volleyball, teen leadership conference, youth seminars and mission trips.  

When Lyndsey is not participating in sports and various clubs at school, she works hard at home with her many chores and household work.

Lyndsey is the daughter of Scott and Karen Rowland, of Perry.

She is president of Tri-M National Music Honor Society and treasurer and historian of the Production Club. At Batavia High School she had lead roles in "Hairspray," "Much Ado About Nothing" and "Mary Poppins."

As President of Tri-M, she established a sock drive in tandem with the Zonta Club to benefit the Salvation Army. This sock drive was a true high point for Serena.

Serena is attending the University at Buffalo in the fall with a double major in History and Theater with a minor in Italian. Her goal is to become an entertainment industry lawyer working with women in that industry who are historically under represented.

Serena is the daughter of Anita Strollo, of Batavia, and Joseph DiCenso, of Williamsville.

Karson Antonia Richenberg, bottom right, is a senior at Byron-Bergen High School. She plans to attend the University of Buffalo to study Psychology.

Her interests include track and field, soccer and basketball. Her hobbies are hiking, running, visiting historical places, and volunteering her time to different community activities.

She is a Scholar Athlete, and also received the Triple C Award from the New York State Attorney General for her “Character, Courage and Commitment.” She has been awarded the Human Services Scholarship for her involvement in the community and her plan to pursue a career in Psychology.

Karson prides herself on her ability to overcome adverse situations and never losing her positive outlook on life and the future. She has been able to do this through her faith in God. Karson enjoys making lifelong memories with her family and friends and never taking any moment for granted.

She is the daughter of Eric and Antonia Richenberg.

Installation of a new LCD lighting system atop the Old Courthouse in Batavia was completed this week and for Memorial Day Weekend, the cupola is illuminated with alternating red, white and blue lights.

The system, donated by Batavia-based Lighting Design Innovations, has a color pallet of thousands of shades to fit any occasion.

The value of the system is $7,500 and is computer controlled.

Paul Mercier, a partner in the company, pitched the idea to the County Legislature in February and said his company would donate the system for the cupola.

"For us, the significant aspect of being here is we believe in community," Mercier said.

Mercier suggested that at some point, the Legislature may wish to support a fundraising effort to illuminate the entire building.

Veterans, other volunteers, and family members were in cemeteries throughout the area today to replace worn flags and place new flags on the graves of the men and women who served in the U.S. military.

It's an annual tradition locally to honor military personnel on Memorial Day Weekend.

Emilio Rosales, 8, places a flag at Elmwood Cemetary. Also placing flags was his sister, Valentina, 5.

Daniel Tomaszewski and his family, from Freedonia, made their annual trip to the St. Joe's Cemetery in Batavia to plant flowers on the grave site of his parents, who grew up and were married in Batavia before moving to Freedonia. With Daniel are wife Kristin, daughter Josephine and son Mason.

Tim Burch places a flag at a marker in Elmwood Cemetery.

Don Morris at Elmwood.

Riley D'Alba, of Oakfield, completes her squats during a workout today at Batavia Cross Training known as the Memorial Murph.

The event is a scholarship fundraiser for students pursuing careers in law enforcement; the proceeds this year going to D'Alba, who plans to attend Hobart College.

Dozens of people completed The Murph today, which is named in honor of Lt. Micheal Murphy, a Navy Seal killed in action in 2005 in Afghanistan. The workout, which he called Body Armor, starts with a one-mile run, followed by 100 pull-ups, 200 push-ups, 300 squats, and ends with another one-mile run. Those who have them and can endure it also wear a 20-pound vest.

Batavia Cross Training holds annual Memorial Murph over Memorial Day weekend to honor those who have served or are serving in the U.S. military. Several members of local law enforcement participate each year.

Joey Belladonna and his band Chief Big Way play the Paddock Room at Batavia Downs tonight.

The lead singer with Anthrax, nominated five times for Grammy awards, Belladonna is playing in Batavia for the second time this year. The show is free and starts at 9 p.m.

Pictured with Belladonna are his friend Tom Mazurkiewicz and band members Dave Michelson and Joe Precourt.

Veterans Don Lewis and Roger Martin will serve as grand marshals for the annual Memorial Day parade in Batavia on May 29th.

Lewis will be driving in the parade and Martin will be riding with him. Lewis and Martin were both born and raised in Batavia.

“We’ve been good friends ever since high school,” Lewis said. “He and I have been in the parade every year since we could be.”

Lewis graduated high school in 1944 and shortly after, joined the military. He went overseas to the Philippines and when he returned to the United States, he was discharged.

Martin also graduated from high school in 1944 and joined the Navy in February of 1945.

The parade starts at 9:45 a.m. from the Eastown Plaza, proceed down Main Street, and end at the Alva Place parking lot. A Veterans Memorial Service will be held afterward at Jerome Center.

If any veterans wish to participate in the parade, they can just show up at 9:15 a.m. Any veterans needing a ride in the parade, should contact Bob Bialkowski at 409-3624.

Don Lewis

Roger Martin