batavia

The signs say "Re-Elect John Gerace, Town Board," but it's not that simple.

Gerace is not the incumbent in Batavia.

Chad Zambito is. He was appointed earlier this month to the seat vacated by Gerace in the spring.

Gerace has been trying to get the seat back ever since his letter of resignation, which he says was written in a "knee-jerk reaction," was accepted by Supervisor Greg Post.

As for Zambito, he's not overly concerned about Gerace posting "re-elect" signs.

"I don't think he's necessarily trying to confuse the issue," Zambito said. "I just think they're from a prior election."

Gerace said he figures he can run for reelection because he's been elected before.

Of course, so has Zambito.

Both were first elected to the town board in 2003, and then Zambito resigned in 2007 when he became VP of marketing for Genesse County Economic Development Center, causing a possible conflict of interest.

Now they face each other in a GOP primary Sept. 13 that is the result of Gerace's resignation in April.

At the time, Gerace wouldn't discuss his resignation. Now he acknowledges it was spurred by events at the awards and installation dinner for the Town of Batavia Volunteer Fire Department.

Gerace was intoxicated at the event and was observed being loud and boisterous.

What happened later in the evening isn't clear, but Gerace said that contrary to various rumors, he was not involved in a physical altercation with Supervisor  Post.

He said he and Post had words outside of the fire hall about his behavior, and some people followed them out to see what was going on, but that was it.

"I held myself up to a higher standard than most people being an elected representative," Gerace said. "(My resignation) was a knee-jerk reaction. The next day I spoke with the supervisor about it and he asked me what I should do and I said I would fire myself. It was a knee-jerk reaction."

Even though he acknowledges that he wrote a letter of resignation, it was never intended to go through or be made public.

It was supposed to be held in abeyance until and unless he had any similar problems in the future.

Once word got out about the letter, however, Gerace said, Post had no choice but to accept it.

Gerace said he also went to the next board meeting for the fire department and personally apologized to every member for his behavior at their event.

Earlier this month, Zambito, who was endorsed by the town GOP as Gerace's replacement, was selected by the town board to complete Gerace's term.

Gerace believes the process for selecting Zambito violated parliamentary procedures under Roberts Rules of Order. But Zambito said the town's attorney looked into it and the process was fine.

Besides the fire department event and resignation, the other issue that may dog Gerace in the primary is a question about unpaid taxes.

In June, NYS Taxation and Finance issued a tax warrant against Gerace $571.26.

When asked about it, Gerace said, "I know what that's about. It's taken care of."

The Batavian learned of the tax warrant after an unknown person attached a copy of it to our office door.

Even with all these issues, Gerace said he's confident he's the right man for the job and that voters should check off his name on their ballots.

"I have a proven track record serving the Town of Batavia," Gerace said. "I'm a lifelong resident of this area. It's very near and dear to me and the issues that effect this area effect myself. I don't vote to approve or disapprove motions for myself. I look at how they effect every member of the community."

Gerace added that he also has a near-perfect attendance record for town meetings over the past decade.

Zambito said he would bring experience and professionalism to the position.

He noted that besides being a previous town board member and serving on the Genesee Chamber of Commerce Board, his three years with GCEDC is just the kind of experience the board needs right now with all the planned and anticipated growth in the town.

A Wichita, Kan., man who enticed a 14-year-old Batavia girl into sending him naked pictures of herself through text messages was sentenced in Federal Court yesterday to more than 26 years in prison.

Shane M. McClelland, 26, Wichita, Kan., was convicted in a jury trial in May on one count of producing child pornography.

During trial, prosecutors presented evidence that McCelland used the Internet to strike up a relationship with a 14-year-old girl in Batavia.

At McClelland’s request, the girl sent photographs of herself naked to McClelland. The mother of one of the girl’s friends became aware of what happened and reported it to police.

Det. Todd Crossett and Office Jay Andrews initiated the investigation in Batavia and during the course of the investigation Crossett posed as a 14-year-old girl and communicated with McClelland.

Crossett testified at McClelland's trial in May about the chain of evidence and his exchange of text messages with McClelland.

After McClelland's conviction, Crossett said, "He was definitely a sexual predator. He had a past history of doing this sort of thing and he does it again soon after he gets out of prison. That indicates the kind of person he is."

Daniel E. Plath is indicted by the Genesee County Grand Jury on one count of DWI, a Class E felony, for driving a 2007 GMC pickup truck on Old Creek Road in Alexander on May 12 while allegedly intoxicated. He is also indicted on a second felony count of DWI for allegedly having a BAC of .08 or more. In count three of the indictment, Plath is accused of aggravated unlicensed operation for allegedly driving the truck while intoxicated and without a valid driver's license. His license was invalidated following a DWI conviction in 2007, according to the DA's office.

Gary R. Dean is indicted by the Genesee County Grand Jury on one misdemeanor count of driving while intoxicated on April 24 in Alexander. He allegedly drove a 2007 Chevrolet on state routes 98 and 20 and in a parking lot on Broadway Road while intoxicated. In count two, he is accused of aggravated unlicensed operation in the first degree, a Class E felony, for allegedly driving without a driver's license while intoxicated. His license was revoked following a DWI conviction in 2001, according to the DA's office.

Press release:

The Genesee County Sheriff’s Office has recently hired Anne M. Bezon to fill the position of Justice for Children Advocacy Center (JFCAC) supervisor; a position that was created after a vacancy that was left by the resignation of a Sr. Community Victim Services counselor at the center.

Bezon brings many years of social work experience to the Justice for Children Advocacy Center. In addition to previously being employed with Catholic Charities as a co-facilitator for both the Domestic Violence for Men Program and Our Kids Parent Education Program, she held the title of social worker III. She was also the assistant director of the Geneseo Summer Recreation Program for the YMCA.

The 2004 high school alumna from Oakfield-Alabama Central School graduated magna cum laude from Gannon University with a bachelor of arts degree in Legal Studies, with minors in Social Work and Pre-law. In addition, she earned a master's degree in Social Work from University of New York College at Buffalo in 2010 and is currently enrolled in the 2012 class of Leadership Genesee.

Sheriff Gary Maha said “Ms. Bezon is a perfect fit for the Justice for Children Advocacy Center Supervisor position. This position requires patience, compassion, sensitivity and social work experience, all of which Anne possesses. She started in this position July 30 and has been doing an excellent job.”

Brandon Charles Smart, 35, of Bank Street, Batavia, is charged with trespass. Smart was arrested on a warrant out of Le Roy Town Court charging him with trespass. The charge stems from a June 13 incident at Buttermilk Falls, off North Road, Le Roy, in which Smart fell to an outcrop of rocks at the falls and had to be rescued. 

Smart is also charged with DWI, driving with a BAC of .18 or greater, speed not reasonable and prudent, moving from lane unsafely and unlicensed operation. Smart was reportedly involved in a single-car property damage accident at 1:11 a.m., Saturday, on Knowlesville Road, Alabama.

Nicholas Joseph Pascucciq, 22, of Main Road, Stafford, is charged with criminal possession of a controlled substance, 7th, and possession of a hypodermic instrument. Pascucciq turned himself in on a county court bench warrant on charges of criminal possession of a controlled substance, 4th and 5th. After his arrest, the additional charged were issued stemming from an incident in Le Roy on July 14. Pascucciq was held on the warrant.

Walter B. Hale, 34, of Oakfield, is charged with felony DWI and three counts of felony aggravated DWI. Hale was charged under Leandra's Law for allegedly driving while intoxicated with three children in his car. Hale was stopped on Route 63 by State Police. According to troopers, he failed a field sobriety test and blew a BAC of .09. Hale was jailed on $5,000 bail.

There will likely be seven or eight girls volleyball teams in Section V this season with boys playing right along side the girls, setting, digging and maybe even spiking.

One of those boys may play for Batavia High School.

It's a growing trend, said Ed Stores, executive director for Section V.

"Last year a couple of schools had boys on them and this year there may be seven or eight," Stores said. "It's a concern that it's taking off a little bit. Unless the state education department gives us a little more guidance, there could be more."

State athletic rules allow for girls to play boys sports and boys to play girls sports so long as there is "no significant adverse effect," Stores said.

Right now, Section V interprets the rule to mean no girls are cut from the squad to make room for the boy.

If a boy were 6' 4" or 6' 5", that might fall under "no significant adverse effect," Stores said, but the state hasn't given regional athletic directors enough guidance to know for sure.

There is currently no protocol -- because the issue hasn't come up yet -- on what to do if a boy makes a team and just dominates games. Stores said if that happened, Section V officials would review the situation and determine whether there is a "significant adverse impact."

Mike Bromley, athletic director for BHS, said the boy and his father do not want to be part of any media coverage right now. Since the last step for the boy making the team -- final Section V approval -- won't take place, if it does, until tomorrow, Bromley declined to release the student's name (he anticipates approval, however)

The student was required to go through a review process at the school that determined that he would be able to compete without undue advantage, Bromley said.

"It's not automatic for a boy to be on the team," Bromley said. "If we think it disadvantages the female athletics then we have to look at it differently."

The youth won't be the first boy to compete in a girls sport at BHS, Bromley said. Last year a senior was on the girl's gymnastics team, though he didn't compete for points. He just participated in meets.

"He was really good at floor exercises," Bromley said.

The gymnasts participated, Bromley said, just because he enjoyed the sport. He wasn't trying to prepare himself for a gymnastics career in college.

There have been girls over the years who have played boys hockey, wrestling, lacross and one girl, whose ability was so advanced, played boys tennis.

Bromley described the local male volleyball player as somebody who just really enjoys the sport and wants a chance to participate.

It got a lot of attention from BHS students last year when Pittsford Mendon's volleyball team showed up with a boy on the team.

"They had a kid who was a setter who was pretty good," Bromley said. "The kids who went to the game were, 'wow, boys can do that.' I think that got them thinking about it."

Stores said there's something to seeing other boys play volleyball that helps remove the stigma, which helps encourage them to try out for the team.

In the first season after the summer Olympics, there may also be a heightened interest in volleyball among male athletes.

But there isn't enough interest yet, Bromley said, to create a separate team for boys.

Stores said in this day and age schools simply don't have the money to add more athletic teams.

"I think there are a lot of boys who want to play," Stores said. "But there aren't a lot of schools out there that are going to be adding sports."

One person is believed still in the vehicle after a one-car rollover accident on the Thruway near mile marker 290.8.

Town of Batavia Fire and Mercy EMS dispatched.

UPDATE 3:12 a.m.: One occupant, out of the vehicle, declining medical treatment.

UPDATE 3:26 a.m.: Town of Batavia back in service.

State Police conducted a DWI checkpoint Saturday evening on Route 5 in the Town of Pembroke.

Six people were arrested:

• Mark A. Newton, 42, of Batavia, charged with DWI
• Edith S. Williams, 48, of Buffalo, charged with possession of a controlled substance, 7th
• Christopher W. Palmer, 40, of Akron, charged with DWAI
• Armand Cummer, 54, of Amherst, charged with felony DWI
• Frederick E. Perry, 31, of Corfu, charged with DWI
• Nathan C. Swimline, 25, of Corfu, charged with DWI

Earl Key (top photo, Jacquetta Simmons leaving court with Ann Nichols following the verdict).

Lawrence Friedman

Asked if his client, Jacquetta B. Simmons, got a fair trial, attorney Earl Key said, "I'm going to appeal that, so we'll see."

Earlier, as reporters walked with him as he left the courthouse, Key declined to say on what basis he might appeal the conviction.

Expanding on the fair trial thought, however, Key said it's possible intense local and regional media coverage made it much harder to ensure Simmons had her case heard before a fair and impartial jury.

"I think the media coverage -- no offense to you guys at all -- definitely hurt her chances of a fair trial," Key said. "As you heard during jury selection, we didn’t have one juror that said -- well, we had a couple, but not very many – who said they had not heard about this case.

"Even the ones who were on the panel had said they had formed an opinion, but they said they could set that aside and be fair and impartial, and the judge accepted their word at that."

Simmons, the 27-year-old Batavia woman convicted today in Genesee County Court of assaulting a 70-year-old Walmart employee, will be sentenced Nov. 15.

District Attorney Lawrence Friedman disagreed with Key's assertion.

"You were there for jury selection," Friedman said. "We went through an unusually large number of people to seat a jury. Obviously there were a lot of people who came through saying they had seen coverage, way more than we’re used to, and they had formed an opinion and, unfortunately, many people said they couldn’t set those opinions aside, and of course they didn’t wind up on the jury."

Key said he was obviously disappointed in the outcome of the case and that he firmly believes the video evidence presented at trial clearly shows a Walmart employee grabbing his client's arm and that she is trying to break free of that grasp when she strikes Grace Suozzi.

"In certain spots, the video is unclear," Key said. "I don't know that they (the jury) saw it the way I saw it."

Asked by a reporter if he thought Sharon Reigle, a Walmart customer service manager, lied on the stand about grabbing Simmons, Key didn't answer the question directly, but said, "She absolutely grabbed her arm, in my opinion."

During the trial there were several profane statements attributed to Simmons that were racially charged.

Some readers of The Batavian have questioned why Simmons wasn't charged with a hate crime.

Friedman said the facts of the case didn't fit the penal code, which requires that race be proven as a motivating factor in the crime.

"Clearly there were comments made, particularly later in the sequence of events, that relate to the race of the victim," Friedman said. "We didn't see necessarily that the crime occured because of the race of the victim."

Simmons was convicted under a relatively new New York statue that makes it a Class D felony for a person 10 years younger than a victim who is 65 or older to assault such a victim.

Originally, Simmons was also charged with the more straightforward assault in the second degree charge, which requires proof of intent to cause serious physical injury.

Prior to the start of the trial, Judge Robert C. Noonan ruled there was insufficient evidence to charge Simmons with intent to cause serious physical injury, so he reduced the charge to a misdemeanor of assault, 3rd.

Without the enhanced assault 2nd charge, the so-called elder-abuse statute, Friedman would have been left with no choice but to prosecute Simmons on the misdemeanor, which carries a maximum sentence of one year in jail.

While such crime enhancements are often controversial among civil libertarians, Friedman said any time there are additional ways to charge a perpetrator with a crime it "helps keep society safer."

"I think it's appropriate for obvious reasons," Friedman said. "You're dealing with more vulnerable victims, either young children or older adults, who are more vulnerable to injuries that can be much more serious. So from my perspective, it's absolutely appropriate."

Simmons turned down a plea bargain several weeks ago that would have capped her sentence at three-and-a-half years in state prison with an available sentence to Judge Noonan of straight probation (no jail time).

Now she's facing a sentence that ranges from probation up to seven years in prison.

A Genesee County jury of 10 women and two men has found Jacquetta B. Simmons, 27, of Batavia, guilty of assault in the second degree.

Simmons will be sentenced at 9:15 a.m., Nov. 15. She's free on bail pending sentencing.

A two-car accident, which is blocking traffic, is reported at East Main Street and Harvester Avenue. City police are on scene and city fire and Mercy medics are responding. No injuries.

UPDATE 2:37 p.m.: Now they say there are three vehicles involved.

UPDATE 2:57 p.m.: City fire is back in service.

Two attorneys, two different interpretations of what a video surveillance recording from Dec. 24 inside Walmart shows actually happened when 70-year-old Grace Suozzi was hit by 26-year-old Jacquetta Simmons.

There's no dispute, said defense attorney Earl Key, that his client hit, or even punched, Suozzi.

What the recording clearly shows, Key said, is that a Walmart store employee grabbed Simmons by the arm and Simmons tried to swing free and accidentally hit Suozzi.

Like Key in his closing statement in the trial of Simmons on a charge of assault in the second degree, District Attorney Lawrence Friedman went through the video frame by frame and pointed out to jurors that the recording shows something very different than what Key said it shows.

The video shows, Friedman said, that customer service manager Sharon Reigle, isn't even close enough to Simmons to be holding her arm when Simmons starts her swing.

As Simmons starts that swing, Friedman said, you can see Suozzi stepping back, realizing, as she testified, that Simmons is going to try and hit her.

As Simmons hits Suozzi, Friedman said, Simmons is looking directly at Suozzi. In the next frame, Friedman said, you can still see Simmons looking directly at Suozzi as she falls backward to the floor, and Simmons is still looking at Suozzi, Friedman said, as Suozzi slides across the floor.

Those actions, Friedman said, contradict Simmons' claims that she didn't intend to hit Suozzi and that she didn't know she hit and injured Suozzi.

In closing arguments, the defense always gets to make its case to the jury prior to the prosecution.

Key went through the testimony witness by witness, arguing that the prosecution failed to prove the most important fact under dispute: Whether Jacquetta Simmons intended to hit and injure Grace Suozzi.

"You can see clearly from that video that she is being held," Key said. "You can see that she's swinging her arm away. The prosecution has the obligation to prove my client intentionally hit Ms. Suozzi. We all know Jacquetta hit Ms. Suozzi. They have to prove she did it intentionally."

Going through witness testimony, Key noted that Alex Derefinko said he saw a small scuffle before Simmons hit Suozzi.

While Reigle denied grabbing Simmons, Key told jurors she had a motivation to lie because by her testimony the 10-year Walmart employee knows she would be fired if she touched a customer.

While Dylan Phillips testified that he saw Reigle four or five feet away from Simmons, Key said the video shows Reigle standing right next to Simmons.

As for Suozzi, Key said, she is of course a sympathetic person, but that doesn't mean her version of events is what actually happened.

"I submit to you that Grace probably really believes that Jacquetta hit her on purpose," Key said. "But just because you believe something doesn't make it true."

While Key acknowledges that Simmons used obscenities during the incident, he said the most inflammatory statements were not substantiated by second witnesses. In each case, he said, only one person testified to those specific statements.

For example, outside of Walmart, Samual Hackenberg testified that heard Simmons say, "I don't give a fuck about these dirty white people."

Key said the accusation isn't believable because Hackenberg didn't even mention the statement until a month after the incident and nobody else said they heard it.

Even though Hackenberg claimed Simmons said it while standing next to a police car, Key noted that Trooper James Baines didn't include the statement in his report (Baines testified that all suspect statements are included in reports) and didn't repeat the statement during his testimony.

Regarding the testimony of Randy Johnson, Key said it was noteworthy that the prosecution didn't call Johnson, who testified that he saw Reigle grab Simmons.

Johnson also testified that he saw Simmons trying to leave before the punch was thrown.

"They didn't call anybody who disagreed with their theory of the case," Key said. "This trial is supposed to be a search for the truth, not a win at all costs. Let's hear from everybody and let you decide for yourself."

He criticized Friedman's attempt to impeach Johnson by going through a long list of police contact with Johnson that involved Johnson's mother.

"Friedman beat him over his head about things that had to do with his mother," Key said. "But do you disbelieve his testimony because he has trouble with his mother?"

Key told the jury to note that it wasn't the defense that brought race into the trial; it was the prosecution.

He said both Jacquetta and Isaac testified that they were upset on Christmas Eve because they thought they were being accused of stealing. Neither mentioned being upset about anything related to race.

Key closed by emphasizing that the prosecution has the burden to prove Simmons intentionally hit Suozzi, and if there is reasonable doubt that she did not intend to hit Suozzi, then the correct verdict is "not guilty."

"If you say you don't know whether she is guilty or not, that's not guilty," Key said. "If you don't know, that's not guilty."

Friedman said there are three elements of the crime the prosecution must prove.

First, that the victim was injured; second, the age differences of the defendant and the victim; and, that Simmons acted with intent.

There is no dispute over the first two, elements, Friedman said, so that leaves intent and the evidence and testimony, he said, certainly proves intent beyond a reasonable doubt.

Multiple witnesses, Friedman said, testified they saw Simmons pulling her arm back to take a swing at Suozzi.

Simmons acknowledged, Friedman said, that she wasn't going to show Suozzi her receipt.

On the subject of Johnson's testimony, Friedman said Johnson's testimony in court contradicts a statement he gave to police on Dec. 24 and that Johnson admitted that, based on his experience as a boxer, he thought it looked like Simmons intentionally positioned her body to throw a punch.

Friedman also noted that Johnson, who was called to the stand by the defense, testified that out in the parking lot Simmons warned Johnson, "Watch it, or you could get it, too."

That's not the statement, Friedman said, of somebody who just hit an elderly woman accidentally.

Also in the parking lot, Isaac Simmons was on the phone with his mother and he acknowledge telling her, "Mom, Jac just punched somebody and she's going to jail."

"That doesn't sound like somebody who just saw his sister accidentally hit somebody," Friedman said.

Friedman also took aim act Jacquetta's credibility.

Simmons had said she didn't even know she hit Suozzi until two hours later when she viewed the surveillance video at the police station, but evidence and testimony, even her own, Friedman said, contradicts that claim.

For example, Simmons testified that somebody in the parking lot told her, "You can't hit a white woman like that."

"When Trooper Baines showed her the video, after it was over, he said, 'I don't know how you're going to justify this,' " Friedman said. "She just shrugged her shoulders. She was agreeing with him. She couldn't justify it."

Following closing arguments, Judge Robert C. Noonan explained the rules of evidence and the law to the jury, a process that took close to an hour.

Around 12:30, the jury began deliberating. About 15 minutes later, Noonan received a note from jurors asking to review the video evidence.

The jury was brought back into the courtroom and the video was played while they all sat in the jury box, leaning forward trying to get the best view possible of the video.

The jury is currently back in deliberations.

UPDATE 2:09 p.m.: The jury has returned to the courtroom to view again the video of Suozzi being hit. They asked to be situated closer to the viewing screen and to watch it both in real time and four times frame-by-frame with a three-second pause between each frame. The video is now being projected on the back wall of the courtroom, closest to the jury box.

Press release:

State Senator Michael H. Ranzenhofer will sponsor a free car seat safety check from 10 a.m. to noon tomorrow at the Genesee County Sheriff’s Office, 165 Park Road in Batavia.

“Every parent knows installing a car seat can be difficult," Ranzenhofer said. "Certified technicians from local police agencies will be on hand to check your child’s car seat.

"I encourage all parents, as well as grandparents, to stop by to have their child’s car seat checked this Saturday morning. Even if you may think it has already been installed properly, it never hurts to double-check."

According to the National Highway Traffic Safety Administration, car seats decrease the risk of fatalities in cars by 71 percent for infants and 54 percent for children, ages 1 to 4 years old. An inspection of 3,500 car seats in a study found that 72 percent were not correctly installed.

The program is being held in conjunction with the Genesee County Sheriff’s Office, Le Roy Police Department and City of Batavia Fire Department.

“Many parents don't know the importance of having their child properly secured in a car seat to prevent serious injury if involved in a car crash," said Genesee County Sheriff Gary Maha. "This is a great opportunity for parents to learn how to properly install their child's car seat and there is no charge for this service."

Car seats are inspected on a first-come, first-served basis. An appointment is not necessary. Residents can contact Senator Ranzenhofer’s District Office at (716) 631-8695 for more information.

James Russell Kosiorek, 19, of Burgess Avenue, Greenville, S.C., was taken into custody on a bench warrant stemming from a second-degree assault charge. Kosiorek allegedly fled New York after being accused of assault, 2nd. The FBI contacted Sheriff's Investigator John Baiocco informing him Kosiorek had been located in South Carolina. Baiocco contacted the Greenville County Sheriff's Office. Kosiorek was taken into custody, waived extradition and was transported back to Genesee County. Kosiorek was arraigned in county court and ordered held without bail. Kosiorek was then arraigned in Batavia City Court on a charge of bail jumping.

Kenneth Damien Kowalik, 51, of Barrville Road, Elba, is charged with petit larceny. Kowalik is accused of shoplifting at Target.

Steven L. Fetterly, 28, of Elba, is charged with criminal mischief, 4th, and harassment, 2nd. Fetterly was arrested in Elba by State Police for an incident reported at 7:44 p.m., Wednesday. No further details were released.

A Rochester man is suspected of dealing crack cocaine in the City of Batavia with the help of an East Main Street resident, who allegedly allowed the man to operate his drug distribution business out of her apartment.

Taken into custody following an investigation by the Local Drug Enforcement Task Force were Dion "D" L. Clyburn, 27, of Dewey Avenue, Rochester, and Lisa M. Vega, 42, of East Main Street, Batavia.

Clyburn is charged with two counts of criminal sale of a controlled substance, 3rd, criminal possession of a controlled substance, 3rd, and unlawful possession of marijuana.

Vega was charged with criminal nuisance, 1st, criminal possession of a controlled substance, 7th, criminally using drug paraphernalia, 2nd, and unlawful possession of marijuana.

A third person was arrested when Vega's apartment was raided. Michael J. Illasi, 42, of East Main Street, Batavia, is charged with unlawful possession of marijuana.

Task force members along with deputies and Batavia PD officers executed a search warrant at 679 East Main St., Batavia.

Investigators allegedly found a quantity of cocaine, marijuana and drug paraphernalia inside the apartment.

Clyburn was jailed on $5,000 bail and bail for Vega was set at $1,000.

For the first time in public, Jacquetta Simmons told her side of the story today, and in front of the one audience whose opinion of the events on Dec. 24 at Walmart really matter: A jury of 12 Genesee County residents who tomorrow must decide whether a 26-year-old Simmons intentionally punched 70-year-old Grace Suozzi.

Simmons, now 27, said she had no idea she even hit Suozzi until hours later. She said she was horrified to learn she had injured Suozzi and it's been a painful realization ever since.

"I feel horrible about it," Simmons said during her only tearful moment on the stand. "I wasn't expecting somebody being -- how was I supposed to know she was standing right in front of me? I keep thinking 'how could I have hit this elderly lady and I don't remember that I hit her?' "

Reliving the realization, Simmons said, caused her to drop out of a business administration program at SUNY Brockport. She said she couldn't concentrate on her studies.

District Attorney Lawrence Friedman, however, judging by his cross examination, wasn't buying Simmon's contention that Suozzi was hit on accident.

While Simmons contends that somebody -- she doesn't know who -- grabbed her arm and, in her own words, she "aggressively" pulled away from the person, causing her to strike Suozzi, Friedman wanted to know how Simmons couldn't have seen Suozzi.

Through repeated questioning, Friedman got Simmons to admit that Suozzi was just a foot or so in front of her when she "punched" Suozzi.

The distinction between "punch" and "hit" came up a few times during a day full of testimony from prosecution and defense witnesses, with the implication being that "punch" meant an intentional act (though never explicity spelled out) and "hit" being accidental.

In various ways, through various questions about events, Friedman got Simmons, whose background includes volunteer work in literacy training and child and elder care, to repeatedly admit to "punching" Suozzi.

According to Simmons, here's how events transpired.

Simmons, she said, awoke at 10 that morning. Her mother asked her to go to the grocery store and purchase items needed for Christmas Eve dinner. Her brother, Isaac, tagged along, which Simmons said he usually does when she goes out for household errands (both Jacquetta and Isaac lived with their parents at the time).

First, the duo went to Tops and purchased some items.

Then they went to Walmart. They purchased turkey bags, cream cheese and three or four other items.

After going through one of the express lanes, they saw some chicken for sale in the hot foods section of Walmart and decided to buy something to eat.

They then got into another express lane. In this case, it turned out the cashier was Grace Suozzi.

When they got to the checkout counter, Simmons said she said hello to Suozzi and Isaac wished her a happy holiday, but Suozzi didn't respond.

After paying for the chicken, Suozzi, Simmons said, told her brother to hand over the Walmart bag and asked for a receipt.

Isaac told Suozzi his sister had the receipt.

According to Simmons, Suozzi kept asking Isaac for the receipt even as Isaac and Jacquetta kept telling Suozzi that Jacquetta had the receipt.

Simmons said her brother, who once worked for a Walmart in Henrietta, told Jacquetta, "they're not supposed to ask for your receipt anyway."

Suozzi then left her cash register and came around a "took" the Walmart bag from Isaac.

Either before or after Suozzi gained possession of the bag, Simmons pulled out a receipt and "showed" it to Suozzi (under cross examination, Friedman would focus on this point).

At some point after Suozzi had the bag, Simmons said she told Suozzi, "Give me my fucking bag back."

According to Simmons, Suozzi repled, "I'm not going to give you anything back."

She said Suozzi kept asking for the receipt and Simmons said, "I already showed you the fucking receipt."

At some point, Simmons said, Suozzi put the bag on the turnstile, and at that point, Simmons grabbed the bag. She said Suozzi reached for it at the same time, which caused the handles of the bag to rip.

She had to cradle the bag in her arm, she said, because it was hard to keep the items in the bag.

Simmons said she wanted to leave the store, but as she turned to leave, somebody grabbed her arm with some force.

"They had a nice grip on me," she said. "I pulled away very aggressively."

She said for a second afterward, she didn't know what to do and just stood there and then her brother told her to get out of the store.

Once outside, she said, she and her brother tried to get into her mother's minivan, which has a handicap placard and was parked in a handicap stall.

Two men, she said, came up to the van and opened the driver's side door and grabbed the keys from the ignition.

She said a woman came up and said, "You can’t hit a white woman like that. Who do you think you are? Who do you think you are?"

Simmons said with all of the people coming after her she was scared.

"We were being mobbed and they acted they like they knew what happened," she said. "I myself didn't know what happened completely."

With the van blocked in and no keys, she said she and her brother decided to leave the van and try to get away from the crowd.

During cross examination, Friedman called some elements of the story into question.

First, Friedman got Simmons to admit she was angry during the confrontation. Simmons adamantly wouldn't admit to being angry at Suozzi, but said she was angry at being asked to show a receipt.

Simmons also admitted that when she found the correct receipt in her pockets, she held it at a distance she knew would make it impossible for Suozzi to read.  Simmons, by her own testimony, never offered to hand the receipt to Suozzi.

Friedman also challenged Simmons on her claim that she didn't know she hit Suozzi until she saw the video at the State Police barracks.

In an incredulous tone, Friedman asked Simmons why she thought a crowd of people were chasing her in the parking lot, especially after Simmons said she thought it was because the crowd considered her a thief.

"Did they accuse you of stealing," asked a snarky Friedman?

"No," Simmons said.

Simmons also denied telling Trooper James Baines, who had testified earlier,  that "somebody grabbed me. I don't remember what happened. I just punched."

Simmons said she never told Baines, "I just punched."

Prior to Simmons' testimony, her brother Isaac took the stand as a defense witness.

Contrary to some of the testimony on Wednesday, Isaac testified that when Suozzi first asked for a receipt for the items in the bag in his hand, he said he refused to produce it.

The former Walmart employee said he told his sister, "You don't need a receipt."

He said his sister pulled out two receipts from her pockets, one from Tops and one from Walmart.

As for somebody grabbing his sister after Simmons regained control of the bag of merchandize, Isaac said, "A lady grabbed her and stuff."

Simmons pulled away, he said, and yelled, "Get off me."

A skeptical Friedman couldn't believe that a small, 70-year-old woman would take, by force, a bag of merchandise from the 6' 1", 211 pound Isaac Simmons.

According to Isaac, his sister never used the word "bitch."

Isaac denied calling his mother while in the parking lot and telling her, "Jac punched an old lady and she's going to jail."

He said he used the word "hit" and said he told his mother "the police are coming."

Under cross, Isaac admitted that in any version of his story prior to meeting with a private investigator from Key's office, he always used the word "punch."

To further impeach Isaac's testimony, Friedman questioned Isaac on his guilty plea in Greece for petit larceny.

Isaac, under repeated questions, admitted that he had committed numerous parole violations, including failing numerous times to report to his probation officer, using marijuana, testing positive for marijuana, drinking in violation of terms of probation, endangering the welfare of a child, operating a motor vehicle without a license, leaving Monroe County without permission and failure to notify probation when questioned by a police officer.

Isaac said he was trying to get his life together and was attending college.

In the morning, testimony began with a prosecution witness, Piper Sharick, a 16-year employee of Walmart.

Sharick said she hasn't worked since the end of April because she is suffering from PTSD as a result of the incident Dec. 24.

In attempt to calm down the situation after arriving on scene, Sharick said, she told Simmons she could print out another copy of the receipt.

"She just kept yelling, 'Give me my fucking shit,' " Sharick said.

When Simmons struck Suozzi, Sharick said, "It was a horrible sound, like the biggist, loudest smacking sound you could ever hear."

She testified that Simmons made a fist before striking Suozzi.

During cross examination, Sharick basically conceded the Batavia Walmart store had no policy in place on Dec. 24 for how to handle a customer who refused to show a receipt.

Next, for the prosecution, Samual Hackenberg (an assistant manager) testified that he didn't arrive on scene until after Suozzi was hit.

After ensuring Suozzi was being cared for, he went outside to see what was going on.

He testified that once outside, he said he heard Simmons say, "Do you think I care about these dirty white people?"

During cross examination, attorney Earl Key wanted to know why Hackenberg didn't tell anybody about this remark until a month after the event.

When Friedman re-questioned Hackenberg, he said he remembered the remark because after it was made, a coworker standing next to him quipped, "Well, I showered today."

The final prosecution witness was Trooper Baines.

Baines said Simmons asked him to see the video tape of the incident.

He said that when he told her, "I don't know how you're going to justify this one," Simmons just shrugged.

Just before the lunch break the defense called Patty Jacobs, even though the prosecution had not yet officially ended its case.

Testimony from Jacobs was taken early because of some schedule conflict she had if she was held over for the afternoon.

During the course of Jacobs' testimony, it was clear that Key was trying to find a way to get into evidence a statement Jacobs made on Dec. 28 on Facebook.

Jacobs wrote that day that she was in line behind Simmons and witnessed the whole event.

"The cashier asked her for a receipt," Jacobs wrote. "It was the wrong one, so she punched the elderly lady in the eye."

The jurors never heard that statement because of the nature of rules of evidence. Instead, they heard Jacobs say that she saw Simmons holding, but not showing to Suozzi, a Tops receipt, which she recognized because of the coupons on the back.

After lunch, the defense called Randy Johnson.

In his direct testimony, Johnson said he saw a woman grab Simmons' arm and Simmons swing her arm forward to try and escape from her clutches, causing her to hit Suozzi.

During cross examination, Friedman was relentless in impeaching Johnson's credibility.

First he called into question Johnson's claim that he's only lived in Genesee County for about a year.

With a stack of police reports, Friedman went through date-by-date numerous police contacts Johnson has had since November 2008.

Most of the contacts involved Johnson being kicked out of his mother's home, but Johnson has also been accused of unauthorized use of a motor vehicle, criminal mischief (for punching his parents $35,000 car) and being sanctioned by DSS.

Most of the calls involving his mother, Johnson said, is because she's an alcoholic.

Friedman then went after Johnson for discrepancies between his testimony Thursday and his previous statements to police and to the DA's office.

In July, Friedman interviewed Johnson. After repeated questions, Johnson admitted that he previously told Friedman that he could tell Simmons intentionally punched Suozzi based on his experience as a professional boxer.

According to Friedman, Johnson had said because of the way Simmons cocked her arm and the stance he took along with her follow-through, as a professional boxer, he recognized the swing and an intentional punch.

The final witness called by the defense was Donald Stillwell, the loss prevention manager for Walmart.

Stillwell testified that in order for a customer to be accused of shoplifting, a loss prevention officer or a salaried manager or an hourly shift supervisor must observe four things:

• The suspect selects an item;
• The suspect conceals the item;
• The suspect is under constant surveilance;
• The suspect bypasses the final checkout point without paying for the item.

If any one of those for criteria are missing, Stillwell said, the customer cannot be detained as a shoplifting suspect.

When Friedman cross examined Stillwell, he said the situation involving asking a customer for a receipt wouldn't fall under the shoplifting criteria.

He did say, once a cashier encounters a customer who won't show a receipt, the matter should be turned over to a customer service manager and the cashier should have no further involvement in the situation.

According to Stillwell, the Batavia store has one of the worst records in the Walmart chain for shoplifting, or what loss prevention professionals call "shrinkage."

In 2010, Stillwell said, the Batavia Walmart store lost more than $600,000 to thieves.

The following year, things only got worst with shrinkage exceeding $680,000.