batavia

Uncooperative witnesses and a victim who doesn't want to press charges means there will likely be no arrests stemming from a fight at the downtown carnival Saturday night, according to Sgt. John Peck of the Batavia Police Department.

The 19-year-old victim is a GCC student from Utica.

When police arrived on scene at 9:59 p.m., there was a group of 10 or 12 people piled onto the victim, who was having a seizure, Peck said. Some of the people involved in the melee were trying to help the victim, other people where trying to pull them off. The first concern, he said, was to deal with his seizure.

"It was pretty chaotic," Peck said.

The victim, a black male, was taken by ambulance to Strong Memorial Hospital as a precautionary measure, but it turns out he was not seriously injured, Peck said.

"It probably looked worse than it was," he said, describing the injuries as just a couple of bumps and bruises.

All of the suspects are black males, Peck said.

On Saturday night, several witnesses promised to show up at the police station on Sunday to give statements, but none of them showed up.

That night there were also white youths seen running from the carnival down Ellicott Street. Police pursued them, but were unable to apprehend them. One of the youths dropped a knife.

But, Peck said, it appears none of those youths were involved in the carnival fight and police don't know why they fled the scene.

There was a report of a second fight by the big slide, but when State Police arrived to check out the report, no fight was in progress.

The cause of the fight appears to be something someone said to another guy's girlfriend, Peck said.

In all, five Batavia patrol units, two Sheriff's units and two State Police units responded to the reported fights.

A tractor fire has been reported at Scalia's Landscape, 8106 State Street Road, Batavia.

The bobcat is not near any structures.

Town of Batavia Fire is responding.

One of the four men accused of breaking into a State Street residence last September while the elderly woman who lived there slept, was back in court today, but not on the alleged burglary charge.

Twenty-five-year-old Quentin L. Gibson faces a new charge of criminal mischief as well as two traffic citations.

While his three co-defendants in the State Street case have either pled guilty or were convicted of the crime, Gibson's case is still wending through the legal system.

While the case proceeds, Gibson has been out of jail under the supervision of Genesee Justice.

But Gibson appeared in City Court today to answer the new charges stemming from an alleged incident May 1 on Wood Street. Justice Robert Balbick adjourned the proceedings for a few minutes while Assistant District Attorney Robert Zickl consulted with Genesee Justice on Gibson's conduct since he's been out of jail.

After getting a report that Gibson has been doing well, and learning that Gibson has paid partial restitution on the alleged property damage that led to the criminal mischief charge, Zickl recommended that Gibson's release under supervision continue. Balbick agreed.

District Attorney Lawrence Friedman was in court for the Scott Doll jury selection and was not available for an update on Gibson's status in the State Street case.

Also in court today facing charges for the alleged May 1 incident on Wood Street was Thomas Culver, also facing a criminal mischief charge.

The Batavia Police department has not yet released information on the two criminal mischief arrests, so no further information on the alleged incident is available.

UPDATE: Gibson and Culver were arrested at 10:35 p.m., Saturday, for allegedly intentionally breaking the door of a friend.

Gibson resides at 27 Richmond Ave., and 31-year-old Culver's address is 13 Wood St.

Reginald Wilson was convicted April 1 of burglary and possession of stolen property following a jury trial. The other defendants in the case, Dillon Brito and Joseph Dash have both pled guilty to charges related to the State Street break-in.

In an unrelated case in City Court today: Summer Ogden, 31, appeared on an endangering the welfare of a child charge. She is in jail on $500 bail. The charge stems from an alleged April 30 incident wherein she broke a temporary, plastic window in a car while her child was in the car.

The child was not injured, according to Zickl. Ogden was arrested in March for allegedly assaulting and biting her boyfriend and also faces a DWI charge. Her case was adjourned until Thursday for review for possible referral to either mental health or drug court.

BATAVIA,  NY -- A day and a half into the jury selection process for the Scott Doll murder trial, and only three jurors have been seated.

District Attorney Lawrence Friedman noted that at the current rate, it would take four days and eight panels of potential jurors just to get to 12 men and women to decide the case. That doesn't include the four- to six-alternate jurors needed for the anticipated three-week trial.

The prosecution has used 12 of its 20 peremptory challenges, and the defense 14 of 20.

While either side can request more peremptory challenges, it will be up to Judge Robert C. Noonan whether to grant such an extension.

Once the peremptory challenges are gone, the prosecution and defense will be left to accept any juror that can't be dismissed for cause.

A prospective juror dismissed for cause is somebody who has a clear conflict of interest and probably can't judge the case impartially. A peremptory challenge is one in which the prosecution or defense deems a particular juror just isn't suitable for the case, for any reason.

"It's a combination of everything, what they know, what you hear -- it's just a gut reaction in the end," Friedman said, adding that "Both sides are being very careful about who goes on this jury."

Doll, a Corfu resident, is accused of murdering Joseph Benaquist of Pembroke in February, 2009. Doll and Benaquist were apparently in business together selling used cars.

Willard and Duane Preston didn't like what they found this morning when they entered an apartment Willard owns at 122 Summit Street, Batavia, so they called police.

Three doors had been pulled from the hinges, they said, three windows busted out, trash and debris littered the attic and the garage and there were numerous large holes in the walls.

They blamed the tenants they just evicted, and spurred by a recent article on The Batavian, they decided maybe they could get the police to pursue a criminal case against their former tenants.

"What is the city doing to help landlords?" Willard said. "The city can tell the landlords what to do, but the landlords can't tell the city what to do.That's my point. Damage is done? Fine. Get them in court. Put them in jail. If they're on social services, then cut it. Get them out of here. Send them back to Rochester or Buffalo."

Officer Ed Mileham confirmed he's conducting an investigation, but said he preferred not to discuss the case further. 

Police Chief Randy Baker said last week that while it's possible to look at tenant damage as a criminal matter, gathering sufficient evidence to make an arrest can be difficult.

"We have a level of proof to meet before it’s a criminal matter," Baker said. "One is, was it intentionally done or recklessly done? Then it’s a matter of identifying who did the damage. We can’t always meet all those criteria, so sometimes we can’t file the criminal charges."

Mileham said he did have a case about a year ago where a woman trashed an apartment owned by James Pontillo, and in that case, Mileham said, he did make a felony arrest.

In the case of the former tenants at 122 State, a woman was originally living there with a boyfriend who had "a good job in Rochester," Willard said. She was drawing social services benefits and had a job, too.

After breaking up with her boyfriend, apparently, she asked permission to have another man move in with her, to help her pay the rent.

"Why not?" Duane said. "It helps her and it helps us. What are we going to do, say no?"

But it wasn't long, Duane said, before the couple stopped paying rent, so they started eviction proceedings. It was during the eviction period, Duane said, that he believes they did most of the damage to the apartment.

"When she moved in, the apartment was clean and recently painted," Duane said. "It was beautiful."

Pointing to an abandoned couch, Willard said that it would cost $10 to have it removed, and $10 for each of the busted TVs left behind, plus $35 for a broken smoke detector, and all of the debris left in the attic and the garage.

"The small stuff like this ads up into thousands of dollars, at least $2,000," Willard said.

And it's hard to collect from tenants like those who just moved out, Duane said, because she's on DSS and the boyfriend -- whom he said claimed to be the son of a local contractor -- worked for various roofers, contractors and property owners around the city, always getting paid allegedly under the table, so there's no way to garnish the wages of either tenant.

While both of these former tenants have longtime roots in Batavia, both Duane and Willard pointed to transplants from Rochester and Buffalo as a cause for deteriorating neighborhoods.

"Batavia used to be pretty rosy," Duane said. "I've been in this business for 20 years. The streets used to be beautifully lined and the houses were all kept up. Now -- well, I'm glad we have an enforcement officer who says, 'let's get things cleaned up.' That's great because I'd like to protect my investments."

Top photo, Duane Preston points to debris in the attic. Bottom photo, Duane and Willard hold broken hinges, which Willard said showed no sign of wear or rust, but were just sheared off.

Nicholas A. Thurley, 25, of Lake Street, Apt. B, Le Roy, is charged with endangering the welfare of a child. Thurley was arrested after police received a complaint of 7-month-old baby with a heavily bruised buttocks. He is accused of striking the child on his face and buttocks while babysitting for a friend over the weekend. He was jailed on $2,500 bail. Det. John Candidorio and Officer Daryl Robb handled the investigation.

A 17-year-old from Batavia is charged with sexual misconduct. He is accused of engaging in intercourse with a 16-year-old girl from Batavia.

A 17-year-old from Le Roy was arrested on a warrant from the New York Office of Children and Family Services. The youth had been wanted by OCFS since October. He was found in an apartment in the Village of Le Roy.

Farah St. Cloud, 18, of Rochester, is charged with criminal trespass. St. Cloud was apprehended after allegedly trying to flee through a bedroom window at College Village, where she once lived, but had been allegedly banned from the property.

Wyatt Jeremiah Becker, 19, of Darien, is charged with trespass and unlawful possession of marijuana. Becker is accused of entering another person's property after being told not to do so. At the time of his arrest, he was allegedly found in possession of marijuana. He was jailed on $500 bail.

Accidents from the State Police blotter:

2:54 p.m., May 2, Lewiston Road, Town of Batavia, two vehicles; Driver 1: Michael A. Witkop, 18, of Batavia; Driver 2: Ronald J. Beardsley, 51, of Nunda. No injuries reported.

A tractor-trailer has apparently had a fuel tank punctured while on the Thruway.

A tie between two tanks ruptured and is gone, according to a chief on scene, and fuel is spilling from both tanks, which have a 120 gallon capacity (they were about half full, the driver said).

Fuel has spilled and "several cars have been contaminated," according to emergency dispatch.

The accident occurred in the area of mile marker 388 in the westbound lane.

Town of Batavia Fire has been dispatched.

UPDATE 5:55 p.m. (Billie): About 20 gallons has leaked out, but the leak is thought to be stopped at this point, according to a fireman.

UPDATE 6:32 p.m.: Crews were about to leave the scene when the tank started leaking again.

BATAVIA, NY -- Scott Doll's defense attorneys renewed motions today, prior to jury selection in his murder trial, to suppress key evidence and some of the statements he made during the initial investigation into the death of Joseph Benaquist.

Jury selection is expected to take as long as three days, with groups of 40 people being called in today, tomorrow and Wednesday, in the hopes of finding 12 impartial jurors and four to six alternates.

Daniel Killelea, who is assisting defense attorney Paul Cambria, argued this morning that introducing as evidence the disputed ownership of two cars in the case would unfairly prejudice the jury without establishing sufficient value to prove the murder charge.

The cars are a 2006 Chevy Malibu and 2008 Pontiac G6.

There is some question as to how Doll came into possession of the Malibu, which apparently was owned, at least at one time, by Benaquist, and there's also a question about who paid for the G6 and to what purpose.

Benaquist and Doll were apparently partners in a used car business.

District Attorney Lawrence Friedman said he intends to show that Doll forged the title on the Malibu so he could sell it to a financing company in Buffalo.

Killelea's position is that there can't be any proof that Doll didn't obtain title to the Malibu legitimately.

He argued that presenting the status of the Malibu as evidence would unfairly prejudice the jury that he committed an uncharged crime, fraud.

As for the G6, the prosecution contends that Benaquist bought the car for himself -- though using the dealership license for SF Enterprises -- and gave Doll $10,000 as a down payment on the $13,300 car, but that the money never reached the financing company.

According to Killelea, there is insufficient evidence that the transaction wasn't for the company and the implication otherwise would prejudice the jury.

Friedman said the two cars, and the ownership dispute is key to the case.

"We anticipate that it will be established that it was these very cars that led to the murder of Joseph Benaquist," Friedman said.

On his other motion, Killelea said that statements made by Doll the night of the alleged murder cannot be admitted because he had asked for an attorney.

The prosecution contends that under the "emergency doctrine," police can try to obtain relevant information that needs to be known immediately and can continue questioning or taking statements even after a suspect has asked for an attorney.

Killelea cited at least three cases that say Doll was entitled to an attorney. But Assistant D.A. Will Zickl countered that there are cases allowing "emergency doctrine" statements to remain admissible, just as he'd argued the first time around on the same motion.

Judge Robert Noonan said he will reserve a ruling on the motions until just before opening arguments.

Batavia Police are being dispatched to the area of Swan Street for the report of a loud noise.

The caller was on his porch and said it was very loud, a boom.

I heard it, too, and I'm four or five blocks from Swan. From the echo, I could tell it was some blocks away, but loud. I was guessing in the area of Kibbe Park, but I'm inside.

UPDATE 11:45 p.m.: A reader on Hutchins reports hearing it, too. Police cleared the scene about 11:30 p.m. without finding anything.

A dog has been struck on Colorado Avenue.

The driver did not stop.

No description of the hit-and-run vehicle is available.

A person is on scene awaiting police in order to help identify and notify the owner.

Regional and local soccer players gathered at the recently completed Batavia Sports Park at Batavia Turf Farms on Bank Street Road over Saturday and Sunday for various training sessions.

The camp included sessions for the New York State West Olympic Development Program on both days. This afternoon the Genesee Amateur Soccer Association held a Coaches and Players Clinic.

More pictures after the jump:

In the Town of Batavia Fire Hall on Saturday night, Batavia's volunteers gathered for their annual awards dinner and installation of officers.

Above, all of the firefighters who responded to at least 100 calls during 2009 are recognized.

Dan Kemp was named Firefighter of the Year and Randy McIntire won the President's Award. Nate Fix and Bob Mullen were recognized for each responding to more than 200 calls.

Dan Jacques and Paul Barrett (who was unable to attend) were recognized for 25 years of service.

After the jump, more pictures:

Dan Kemp, Firefigher of the Year.

President's Award, Randy McIntire.

Dan Jacques, 25 years of service.

Fire Chief Bob Hunt.

Harness racing isn't want it used to be and probably never will be again, according to newly elected Chairman of the Western Region Off Track Betting Board of Directors Dick Siebert.

In an interview with WBTA, Siebert characterized harness racing as "the cost of doing business." It's the loss leader that under state law allows Batavia Downs Casino to keep its doors open for the much more profitable video slot machines.

"The people that used to come to our parlors, the 55 and older men, are no longer 55 years of age," Siebert said. "Unfortunately, they're dying off. The newer group of people, it doesn't have the interest to them that it did with the old bettor. ... I honestly can't see where harness racing is going to turn around and ever be back where it was in the '50s, '60s and '70s."

He said in 2009, Batavia Downs lost $1.5 million on harness racing while the video lottery terminals brought in $3 million in profits.

To help reduce harness racing costs, more bets will be placed at electronic terminals rather than at the traditional caged window with a person taking the bet.

Meanwhile, Siebert said the Downs continues to work with state regulators on a plan to address deficiencies in some administrative procedures. He said the board is looking to hire a consultant to help address the state's concerns, rather than bring in a management company to take over the Downs' operations, which is one of the state's other suggestions.

Full interview available here (mp3).

A Batavia woman was hurt in a two-vehicle accident at 1:35 p.m. Friday in Alabama.

The woman stopped the 2003 Toyota pickup she was driving at intersection of Townline Road and Maple Street Road when she was struck by another car that was behind her.

Cheryl A. Vagg, 53, of 110 Evans St., Batavia, was transported to UMMC by ground ambulance with back pain, according to Deputy Timothy Wescott, who investigated the accident.

The other driver, Susan J. Neamon, 46, of 2272 Thomas Road, Varysburg, was not injured.

Vagg's passenger, Keith W. Cadieux, 54, was not injured.

Neamon told Wescott she was "looking for oncoming traffic and must have rolled forward." Her 2009 Ford Sedan struck Vagg's truck, which was in front of her preparing to make a right-hand turn on Maple Street Road.

No citations were issued.

A 35-year-old Batavia man reported being shot and his wallet stolen as he walked down what he thinks was Indian Falls Road about 5:30 p.m., Saturday.

After being shot and robbed, Carlos Torres called a friend for assistance, who drove him to UMMC. He was transferred from UMMC to Strong Memorial Hospital by Mercy Flight, according to the Sheriff's Office.

He was in surgery at the time the Sheriff's Office released information on the incident at 11:23 p.m., Saturday.

Torres told officials, according to the release, that he believes he was walking on Indian Falls Road when a car pulled up behind him and somebody demanded his wallet. He was then shot in the back and his wallet was taken.

After the suspects left, he continued walking to Route 5, where he called a friend for help.

The Sheriff's Office says Torres was shot twice with a small caliber weapon. His injuries are not believed to be life threatening.

Anyone with information is asked to call the Sheriff's Office at 345-3000.

Police have responded to a report of a fight at the carnival in downtown Batavia.

When the first unit he arrived, the officer reported "quite a fight." He immediately called for an ambulance for a person having a seizure.

A subject was reportedly seen fleeing west on Ellicott Street and crossing the street toward Della Penna's. Police are looking for two white males, with one wearing a white T-shirt.

UPDATE 10:04 p.m.: One of the subjects who fled reportedly dropped a knife. A second fight has reportedly broken out. Two State Police units have been called in to back up Batavia Police.

UPDATE 10:11 p.m.: Mercy EMS was requested to check on a male down behind Alberty's. He reportedly has a head laceration. There is also a report of "all suspects are black males." It's unclear if that's related to all fights or just one of the fights.

UPDATE 10:29 p.m.: One patient transported to UMMC. Police units going back in service. 

UPDATE 8 a.m. Sunday: Reader Adam Lowder submitted the photo above. His description of events follows after the jump:

Adam Lowder's description of events:

I was at the carnival when the fight took place, and I have attached a photo of the aftermath.

First off I would like to say that this carnival was just plain disgusting. The majority of the ride attendants I witnessed were interacting with the patrons; using foul language, leaving their stations for minutes at a time, and one was even smoking a swisher sweet style cigar that he passed to a young patron to hold onto and smoke for a few minutes.

There were groups of unsupervised middle-school aged kids all over.

We were getting ready to leave around ten o'clock when I saw the ride attendant from the “vehicles that go in a circle” kids' ride (black male 20's red hat with goatee) wrap his arms around a black male, belly to belly, and slowly but forcefully push him across the grounds. The attendant was making statements along the lines of, "just leave" and the male being forced back was saying, "did you hear what he said" repeatedly.

After a minute of this and after a few other people involved yelled towards the two men, the ride attendant in red let go of the male who took off towards Jackson St. Seconds later a group of people (prominently if not all black males) took off running in the same direction.

Ten to fifteen seconds later a few more males ran passed me in the same direction. That is when I saw a crowd of observers gathering on Jackson St. and people screaming and yelling.

As I approached the area, I could see a large group of people involved in physical actions (some jumping around, some swinging their arms, some taking pictures with their phones) in the middle of the street.

An officer in a SUV pulled up with his lights flashing and the group quickly scattered. A few more police cruisers quickly arrived on the seen. I did not see the police apprehend any of those involved, or really even attempt to do so. They all came to the man that was left lying in the middle of the street.

A few minutes later, two of the cruisers rushed over towards Rt. 63, and one stopped next to the Salvation Army.

One thing that I am certain of is that some of the ride attendants were involved in this. The one that I mentioned earlier who was smoking the cigar was in the group that ran past me. He was a black male wearing a Kobe Bryant Lakers jersey, and he was running the “Rio Grande Train” kids’ ride.

I stopped to snap this photo as I walked back to my car parked across from O’Lacy’s Bar.

At this point, the injured male was still lying in the road, paramedics had arrived, there was a crowd of people watching, and a couple of officers were standing near the victim watching.