batavia

An administrator at Notre Dame High School was disciplined more than a month ago for reportedly shaving the head of a student who showed up to school one day sporting a Mowhawk-style haircut.

Vice Principal and Athletic Director Mike Rapone reportedly shaved the head of Lucus Hull in front of other students during homeroom period while in the cafeteria, according to his mother, Denise Hull.

She describes her son as "humiliated" by Rapone's actions and claims that Rapone violated the school's code of conduct by touching her son without permission.

The reprimand Rapone received, confirmed by letters to Hull by the school and the superintendent of the diocese's schools, doesn't go far enough, according to Hull. She wants Rapone terminated.

"Quite frankly, if what is on the code of conduct is correct, then Mr. Rapone has violated it and should be removed from his position with the school," Hull said in an e-mail to The Batavian.

The incident occurred in Sept. 23. Charles Hull wrote a lengthy letter to Principal Joseph Scanlan on Oct. 2 that made several points, including (but not limited to):

• That while at the Camp Hough Freshman Retreat, Sept. 3-4, Lucas asked Rapone for permission to have a "buzzcut Mohawk style," and Rapone, Hull said, told Lucas he could try it for a day.
• Lucas, Hull said, reviewed the school uniform policy and assured his parents the haircut was permitted. "Nothing was or is noted in the policy which strictly prohibits any type of Mohawk hairstyle," Hull wrote.
• Lucus was given the option Sept. 23 to go home for a haircut (which is 12 miles away) or Rapone would cut his hair.
• About 20 minutes later, Rapone returned to the homeroom, which was held in the cafeteria, and shaved the youth's hair in front of classmates.
• Among the Hulls' complaints -- that the parents were not contacted about the issue before the Mohawk was shaved off.
• The Hulls do not feel the public apology by Rapone was sufficient to assuage Lucas or his sister. They called it "damage control" and "less than sincere."

Denise Hull contacted The Batavian, she said, because she felt Notre Dame had failed to address the situation adequately. 

She said she believes the board of directors, which she characterizes as made up primarily of sports boosters and former athletes, are unduly protecting a popular athletic director and successful basketball coach.

Her communications included copies of letters from the school and diocese and a copy of the student handbook.

The handbook, dated July 2014, clearly states "Outlandish hairstyles (e.g. Mohawks, wild colors, etc.)" are prohibited.

The letters clearly state that Rapone was reprimanded, that he and Scanlan must attend sensitivity training, and that the policy for dealing with such situations would be revised.

The letter from Charles Hull to Scanlan indicates that Rapone may have misunderstood the question from Lucas about a "buzzcut Mohawk."

"Mr. Rapone misunderstanding a question does not give him the right to humiliate Lucas," Charles Hull wrote.

Of course, a "buzzcut" and a "Mohawk" are two different styles of haircuts. One involves completely shaving the head, the other leaves a streak of hair down the middle of the scalp.

Denise Hull also said she believes the school is applying a double standard because there are students who have come to school with what might be considered "outlandish" hairstyles.  

We shared one specific complaint with Scanlan (we're avoiding being specific so as not to publicly drag another student into the issue) and Scanlan said, "that's a completely separate issue," but said he couldn't elaborate.

The Hulls also contacted Child Protective Services, which told them, Denise Hull said, this wasn't a CPS issue, and Batavia PD, which investigated and found insufficient evidence to sustain a charge of harassment.

Scanlan said he couldn't comment on a personnel matter. He e-mailed The Batavian the following statement authorized by the school's board of directors:

The incident in question occurred in September, and was promptly and appropriately addressed by the Notre Dame High School Board of Trustees and the school administration.

A student came to school with a mohawk haircut that violated the School’s dress code policy. After the student declined the opportunity to leave school to get his hair cut, the assistant principal cut the student’s hair in the student’s homeroom. The assistant principal has since apologized to the student, his parents, and the school community for his error in judgment in cutting the student's hair in the student’s homeroom before discussing the violation with the student’s parents.

Additionally, the School’s Board of Trustees recently amended to the School's student dress code policy to provide that parents will be consulted prior to any action if a similar situation arises in the future.

This action by the Board, coupled with the previous actions by the School's administration, has fully and thoroughly addressed this situation, and the School will have no further comment on this private matter.

Batavia Middle School was put on lockdown just before the dismissal time this afternoon because of a report of a man with a gun inside his residence just a block or so from the school.

The lockdown was requested by police, Sgt. Dan Coffey said, because of the proximity and the potential for students to be walking through a potential danger zone once they were released.

It turned out the man may have only had a BB or pellet gun, Coffey said, but a State Police K-9 was brought in just in case to sniff for actual firearm in and around the residence, which was near the corner of Ross and Miller.

The initial call came from the man's girlfriend who said her boyfriend was in an upstairs bedroom pointing a gun to his head and threatening suicide.

Coffey said police surrounded the area and the man eventually came out of the house on his own and was taken into custody without incident.

He was taken to police headquarters for questioning.

Coffey said officers are considering what if any charges might be brought.

The incident lasted about 10 minutes and after the man was in custody, students were released from school.

A Batavia man accused of selling drugs earlier this year was sentenced today by Judge Robert C. Noonan to five years in state prison.

Dajuandrick C. "Omega" (and "X") Gardner, 37, of East Avenue, entered a guilty plea to a count of attempted criminal possession of a controlled substance 3rd on Oct. 24.

He was indicted on six counts related to the sale of cocaine and possession of enough cocaine to constitute suspected drug dealing. The plea satisfied all the counts of the indictment.

The sales to agents of the Local Drug Task Force occurred in January.

Gardner's arrest in March was announced with two other suspects.

"For my part in this case that I committed, I probably wouldn't if I wasn't on drugs," Gardner told Noonan. "I wouldn't have committed the crime and I want to take responsibility for my part that I did regardless of the fact that I was on drugs. I want to apologize to the court and the community."

Noonan told Gardner that his turnabout was a little late.

"You've had many opportunities over the course of your life to clean yourself up from drugs and you never seized them," Noonan said. "You just dove into criminal activity over and over again."

The judge also ordered Gardner to pay $150 in restitution upon his release from prison.

Prior to sentencing, among the requests from Gardner's attorney was one for instructions from Noonan to the Department of Corrections that Gardner's head not be shaved. He said Gardner is a Rastafarian and it would violate his religion to cut his hair.

Noonan said he has no authority to tell the DOC what to do.

The Tonawanda Creek has reached a minor flood stage of nine feet high and is expected to crest this afternoon at 9.3 feet, according to the National Weather Service.

Photo from about an hour ago at the spillway behind the County Courthouse.

The Town of Batavia needs to treat more wastewater these days, and possibly into the future, so it must purchase additional capacity in the treatment plant on Treadeasy Avenue.

If plans are approved, the town will pay the city nearly $2 million for an additional 500,000 gallons of capacity. 

The $2 million can be used by the city to repair and upgrade existing sewer lines or sewer-related infrastructure. Legally, it can't be used for anything else.

The treatment facility opened in 1990 with the intention that it serve both the town and the city. The total cost was $48 million, with $39 million being paid by state and federal grants. The city covered more than $8 million of the local share of the cost and the town more than $500,000.

For the price, the city obtained 3.5 million gallons per-day capacity and the town 350,000 gallons per day.

The town now occasionally exceeds its capacity, City Manager Jason Molino said, especially after two yogurt plants opened in the Genesee Valley Agri-Business Park.

Molino said the town also anticipates additional manufacturing growth, which means an even greater need for sewer capacity.

Residential growth, such as the new housing development on East Main Road, doesn't greatly increase the need for more capacity, Molino said.

The process of increasing capacity for the town will take up to 12 months, since the town is broken into sewer districts and there will need to be a series of public hearings before the town board can approve bonds to cover the $2 million expense.

The fee is based on a series of complex, and legally mandated, calculations that Public Works Director Sally Kuzon explained briefly for council members.

Previously: Batavia Wastewater Treatment Plant, one of city's hidden treasures

Comcast, which is taking over Time-Warner Cable if the merger is approved by regulators, has agreed to address the apparent breaches by Time-Warner in its franchise agreement with the City of Batavia.

According to a presentation by City Manager Jason Molino at Monday's City Council meeting, Time-Warner has:

• Failed to pay $16,345 in franchise fees -- state regulators reported Time-Warner withheld the money following an audit of the cable company's revenue and fees from 2006 to 2008;
• Time-Warner has continued to under-report gross revenue, according to what the state says the company should report;
• Failed to operate a community television studio and staff it appropriately.

Molino said Comcast has agreed to address all of those issues in a new franchise agreement once the merger is approved.  

Comcast will also agree to provide free Internet service to City Hall and the public schools in the city. Comcast will also pay $2,590 of city's legal fees associated with negotiating the terms of the agreement.

In exchange, the City Council is being asked to approve, before Dec. 8, a resolution in support of the Comcast/Time-Warner merger.

On the franchise fee issue, Molino said Comcast will agree to calculate revenue in accordance with recommendations laid out by state regulators during an audit published in 2011. The increase in gross revenue will mean higher franchise fees paid to the city.

Time-Warner disputed the revenue adjustment and would only pay the past-due franchise fees after tacking on 22 cents per month to each customer's bill in Batavia. The city decided that arrangement as not in the best interest of local customers and had no other legal means to pursue the unpaid fees.

A memo on the topic to council members does not explicitly say Comcast will itself pay the back fees, but says Comcast will address the issue as part of a new franchise agreement, which will be negotiated after the proposed merger is final.

A letter from Phillip Fraga, an attorney representing the city on the merger and franchise agreement, informed Comcast that he would recommend the City Council oppose the merger without the franchise issue being addressed by Comcast.

Molino also shared with city council a letter from 2007 complaining to Time-Warner about the cable company falling out of compliance with its franchise agreement by laying off production employees and removing production equipment from its Batavia office that was supposed to be available for community access programming.   

This is another issue Comcast has agreed to address.

The council will be asked to vote on a resolution approving the merger at its first meeting in December.

By unanimous vote Monday night, the City Council approved the appointment of a Police Facility Task Force to study the need for a new or remodeled Batavia PD headquarters.

The Task Force is charged with making a critical appraisal of recommendations by city staff and Geddis Architects for either building a new facility at one of four locations in the city or remodeling the current location.

Picking any one of the options could lead to expenditure for the city of $9 million to $17 million.

The current headquarters -- in the former Brisbane mansion -- has a number of deficiencies, officials say.

Appointed to the task force are Durin Rogers, Ashley Bateman, Peter Garlock, Alfred McGinnis, James Jacobs, Marc Staley, Bill Hayes and David Lone.

There's no representative from the Fifth Ward because no volunteers could be found willing to take on the job. One person agreed and at the last minute backed out.

Previously:

• Batavia Police Department tour shows current working and building conditions need to be addressed
• Current police headquarters has its problems, but so do available alternatives
• Council ready to form citizen task force to study police headquarters issue

Uriel Ramirez-Perez, 26, of Oak Orchard Road, Elba, is charged with first-degree rape, a Class B felony. The defendant was arrested after allegedly raping a female victim at an Elba residence. The charge is related to the previously reported charges of rape against three other Elba men. This defendant was allegedly present during the Nov. 16 incident. He is in county jail on $25,000 cash bail or $50,000 property bond. The incident was investigated by investigator Kristopher A. Kautz, deputy Dana Richardson and Angel Santos, investigator with the State Police.

Shannon Ann Caton, 39, of Fisher Road, Oakfield, is charged with: driving while intoxicated with a previous conviction within the last 10 years; resisting arrest; attempted escape, 3rd; speed not reasonable and prudent; and following too close. She was arrested Nov. 19 on the charges after she allegedly rear-ended another vehcile twice on East Main Street near Harvester Avenue in the City of Batavia. While at police headquarters, she slipped out of handcuffs and attempted to escape. She allegedly physically resisted her re-apprehension and was then jailed without bail. She is also charged with refusing to take a breath test. The incident was investigated by police officers Jason Ivison and James DeFreze.

Thomas K. Lee, 51, of West Main Street, Batavia, is charged with resisting arrest and obstruction of governmental administration. He was arrested Nov. 18 after allegedly interfering with a Batavia police officer's investigation into a domestic incident involving Lee. He allegedly resisted arrest and "attempted to kick patrols." He is in jail in lieu of $2,500 bail. The incident was investigated by police officers Jason Ivison and Chad Richards.

Shane Zimblis, 43, of Hutchins Street, Batavia, is charged with: operating a snowmobile with a BAC of .08 or higher, first offense; operating a snowmobile without liability insurance; no/inadequate headlight; operating an unregistered snowmobile; and following too close. The charges stem from an accident Nov. 18 on Pearl Street in the city wherein Zimblis was allegedly operating his snowmobile and struck an SUV. He is to appear in city court on Dec. 3. The incident was investigated by police officers Chad Richards and James DeFreze.

April L. Walradt, 37, of Bank Street, Batavia, was arrested Nov. 11 and charged with second-degree harassment. She allegedly made comments to another person and a youth that caused them alarm. She was issued an appearance ticket for city court. The incident was investigated by police offier Matthew Wojtaszczyk.

Matthew Michael Biggins, 25, of Rail Road Avenue, Alexander, is charged with third-degree forgery and petit larceny. He was arrested Nov. 14 after allegedly stealing three checks, making the checks out in his own name and then cashing them. He was issued an appearance ticket and is to appear in Alexander Town Court on Dec. 2. The incident was investigated by Sheriff's deputy Cory Mower.

Terrance Trae Allen Harley, 18, of Frandee Lane, Rochester, was arrested Nov. 22 on Clinton Street Road in Stafford and charged with unlawful possession of marijuana, speed violation (67 in a 55 mph zone), and having no or inadequate taillights. The charges were issued following a traffic stop for alleged vehicle and traffic law violations. Harley is to appear in Stafford Town Court on Dec. 11. The incident was investigated by sheriff's deputy Joseph Corona, assisted by deputy Andrew Hale.

Jennifer Lynn Stack, 28, of South Main Street, Batavia, is charged with criminal contempt, 2nd. She was arrested Nov. 23 after she entered the Batavia Walmart and remained in the store. These alleged actions violated an active order of protection issued by Batavia Town Court, prohibiting her from being on the premises. She was issued an appearance ticket and is to appear in court on Dec. 18. The incident was investigated by Sheriff's deputy Chad Minuto.

Adam Paul Hoopengardner, 34, of Bank Street Road, Elba, is charged with DWI, driving with a BAC of .08 or more and speeding (52 in a 40 mph zone). He was stopped on Lewiston Road Nov. 23 for allegedly speeding and an investigation revealed he was allegedly intoxicated while driving the vehicle. The incident was investigated by Sheriff's deputy Thomas Sanfratello.

James Russell Kosiorek, 22, of East Main Street, Batavia, was arrested Nov. 20 on a state parole warrant. He responded to the Sheriff's Office to turn himself in and was placed in county jail.

Gloria Susan Moretti, 37, of Main Road, Corfu, was arrested Nov. 7 and charged with unauthorized use of a vehicle. She was a co-renter of a vehicle from Sikes Enterprises, which allegedly has not been returned and has not been paid for. She was issued a computer-generated appearance ticket and is due in city court Dec. 2. The incident was investigated by Batavia police officer James DeFreze.

UPDATE: below, a rainbow in Bergen sent in by a reader.

At Tops, they might be singing "Yes! We Have No Bananas," and no asparagus and no pink grapefruit and no celery -- the produce section is running low on just about everything.

But help is on the way, according to managers. The fresh produce truck is in route, making other deliveries along the way. There's just no ETA.

Blame heavy snow, of course.

Speaking of running low on supplies, Janelle Larsen and Laura Kauppi, both of Batavia, and, Timothy Zorn, of Rochester, spent the day volunteering in the Buffalo area delivering food and other supplies to people who have been trapped in their homes by heavy snow.

Laura writes:

The efforts of the National Guard and police are concentrated on snow removal. Many people are stuck in their house with little or no food or supplies. We purchased water, milk, soup, bread, cereal, granola bars, crackers and peanut butter, Pop Tarts, (infant) formula, soy formula, diapers, cat food, dog food and baby wipes. We also had medicine, but we were thankful no one needed it.

Most people we helped were disabled or had very small children at home. Many roads are still closed, and lots of people are stuck with no food in travel bans. We drove to the edge of the bans, and then we had to walk, even as much as a mile to get to homes. These were people not receiving help anywhere else, and were very grateful.

We were surprised at how honest people were. One women told us she only wanted cat food and one milk (carton), and she wanted us to "keep the rest for people who needed it more." A young dad took Pop Tarts, saying "I just want something for my kids."

Another women took only milk, but told us about a single dad snowed in next door. He was grateful for some cereal, milk and bread. At a trailer park, we made up bags with two soups, one milk, a cereal, bread and several granola bars. We dropped them on the porch of every snowed-in house. Another mom was incredibly grateful for soy formula, diapers, milk and cereal. She was in the driving ban and with two babies was unable to walk the .5 mile to reach the nearest open store. Another women took wipes, diapers and cereal for the seven children she was caring for.

There is a Facebook group, WNY Storm Help 2014, where people have been posting needs for themselves or neighbors. It didn't take much time or money for us to make a difference, and I hope we have inspired others to do so, either to help with this storm, the inevitable flooding or the next storm.

We also received this storm-related e-mail fromReginaKoehler:

My husband is a truck driver and was stranded on the highway during the snowstorm. There were people from Alexander who got him and his truck to a safe warm place, a fire station, where he remained for three days. There were several people there who had also been rescued. The Red Cross brought in food and cots. I just want to say on behalf of my family and myself a GREAT BIG THANK YOU to the Town of Alexander for saving my husband and my son's dad, and my grandchildren's grandpa. It will be a happy Thanksgiving for us. It could have gone very bad had he been stuck out there and run out of fuel. Bless you all and have a GREAT holiday season....

UPDATE 5:25 p.m.: I almost forgot about this picture below. I stopped by the Tonawanda about 4:30 to see if the creek was rising.

A vehicle traveling west on West Main Street lost a wheel at about 1 p.m. causing a bit of traffic congestion, which just cleared a few minutes ago.

Photo submitted by Greg Rada.

This isn't what anybody wants to wake up to on a Sunday morning -- water filling basements, bubbling over onto streets only recently covered with smooth, black asphalt, and the exact location of the water main break a bit of a mystery.

That's the situation at North Street and Trumbull Parkway in the city this morning.

It started with three calls for city fire to pump flooded basements on Trumbull Parkway.

That's when the water main break was discovered, most likely somewhere in the middle of the intersection of Trumbull and North, which was resurfaced this summer.

The leak is likely within the area of the intersection, but exactly where along the line won't be determined until a backhoe cuts into the new pavement, pulls up dirt and uncovers the line.

Water has been shut off, arresting the leak, but that also means four houses on North Street are without water. Other residents in the area may experience water discoloration, said Matt Worth, superintendent of the Bureau of Water & Wastewater.  

The repairs will likely take most of the day, Worth said.

There is a high wind watch in place for Monday morning through Monday night. Winds from the southwest of 25 to 35 mph expected with gusts up to 60 mph. Possible impacts include trees down and power lines down. Travel could be difficult for high profile vehicles. Holiday decorations and loose outdoor items, such as trash cans, could be blown away. Scattered power outages are possible.

A flood watch, the result of melting snow, remains in effect from Sunday afternoon through Wednesday morning.

UPDATE 5 p.m.: The flood watch has been upgraded to a flood warning through 4:15 p.m., Monday.

A high of 60 degrees is predicted for Monday. A high of 37 degrees with snow is predicted for Tuesday.

From UMMC: "The blood drive scheduled for Monday, November 24th has been cancelled by the Red Cross. Their mobile unit requires repairs and the necessary parts are undeliverable from Buffalo due to the recent storm."  The blood drive will be rescheduled to a date in January.

Tim Adams sent in these three photos of pumps and hoses loaded and ready for transport to Lackawanna to assist with anticipated flooding clean-up. The equipment is from Godwin Pumps (Xylem). Making the trip from Batavia are Steve Wenzka, Steve Carmichael, Todd Palmer, Dan Judd, Herb Schroeder and Adams.

The Batavian's news partner 13WHAM has a story about anticipated flooding in Genesee County.

It's the little neighborhood restaurant that could and it will keep chugging thanks to David and Greg Luetticke-Archbell, who purchased the longtime bar-and-grill at 107 Evans St., Batavia, this week.

Luetticke-Archbell have owned and operated the Frost Ridge Campground in Le Roy since 2008 and they see their new establishment as an extension and complementary to what they're already doing.

Most recently, 107 Evans has been Delavan's, which owners Bill and Pati Cultrara closed almost exactly two years ago to the day that David and Greg completed their purchase of the property.

They're calling their new restaurant Delavan's The Little Ridge and promising "great food."

The restaurant is situated in a residential neighborhood and David and Greg think it's a perfect location for the warm, friendly atmosphere they hope to create.

It's going to feature American cuisine, much like they already serve at The Barn Grill at The Ridge, which they say has gotten rave reviews from customers, such as "some of the best American food around."

"We hope to knock your socks off," David said.

There will be prime rib, baked chicken, designer hamburgers, fish fries and salmon, with Greg overseeing the kitchen in the winter.

"The fish fries Greg has been doing, everybody has been loving," David said.

As for the salmon, again, David promises we'll love it.

"Everybody who has ever said, 'I don't like salmon' eats his and loves it."

Since some of the menu will be a hold over from Delavan's, David said Bill Cultrara has graciously offered to share some of his secrets.

They also plan to bring in acoustic music and assuming they continue to host live music concerts at Frost Ridge (there are still a pair of lawsuits pending that challenge their ability to do that), the national acts they bring in will be invited to The Little Ridge for pre-concert meals.

David and Greg had given no thought of opening a restaurant in Batavia, and had no idea the location was available until they went to an auction of the contents of the building Oct. 27.

Once they stewed in the idea awhile, they couldn't pass up the opportunity, David said.

"Sometimes opportunities knock and this one just clicked," David said.

The two men, along with help from their children, staff and friends, are cleaning up the restaurant, bringing in new equipment, getting everything ready to serve customers again. They plan to open Jan. 1.

"This was like a diamond that needed to dusted," Greg said. "We see the potential it has. The charm and the smallness of being manageable for one and a Cheers-like atmosphere."

Photos and write-up by Steve Ognibene.

The 13th annual Wonderland of Trees Gala of 2014 was tonight at the Holland Land Office Museum in Batavia. This year there were 38 trees from different area businesses including nonprofits.  Director Jeff Donahue, entering his fifth year at the helm, spoke about how they have had as many as 40 trees in previous years but it became to crowded so they like to keep it under 40. Jeff also spoke a little bit on the history. It originally was held at McCaully Hall (St. Jerome's building) on Main Street and started out small with only a few trees. After a few years, the event shifted locations to the HLOM. Friday's dinner was catered by D&R Depot. This year featured a choir, a local entertainer Don Bouchard on acoustic guitar, a silent auction, and a greater number of donated raffle baskets. The display will continue through Christmas and end just after New Year.

Julie Marino and Brianna Rindall of Batavia.

Amy Worthington of Amy's Fluffy Friends with her tree.

There was a silent auction and basket raffle.

Musical accompaniment by Don Bouchard.

Jim Owen and Marilyn Donahue

The Quaker Muller tree

The Girl Scout tree

Ben Landers

Top photo, members of the Oakfield Fire Department assist the Alexander Fire Department in clearing snow from the rec hall in Alexander (photo submitted by Jeff Christensen).

Six special rescue trucks from the New York City Fire Department, part of a special task force, were at the Home Depot in Batavia today on their way to Buffalo. The trucks were specifically designed and built for high-water rescues following Hurricane Sandy. The trucks were sent to WNY in anticipation of flooding Monday with warmer weather, rain and snow melt. The vehicles can carry up to 16 people each through high water. (Photos submitted by Steve Hynes Fisher)

Some coverage from The Batavian's news partner, 13WHAM:

• Cleaning up snow in Genesee County
• Roof collapses becoming a concern

The Thruway Authority announced the I-90 has reopened.

Press release:

Motorists should be aware of the following restrictions:

• Thruway (I-90) between Exit 50A (Cleveland Drive) and Exit 61 (Ripley – Pennsylvania state line) will be limited to essential travel only, including travel needed to exit the region, deliver necessary supplies, and remove snow. In this section, all exits are open wherever localities have lifted travel bans.

The following exits remain closed to traffic exiting from the Thruway, although traffic is permitted to enter at these locations:

• Exit 56 (Blasdell -- Orchard Park -- Mile Strip Road -- NY Route 179)
• Exit 57 (Hamburg -- East Aurora -- NY Route 75)
• Exit 57A (Eden --  Angola)
• Exit 58 (Silver Creek -- Irving -- NY Routes 5, 20 & 438)
• I-190 (Niagara Thruway) is open, but there is no access to Exit 1 (South Ogden) through Exit 5 (Hamburg – Louisiana).

The Town of Darien office is closed until 9 a.m., Monday.

Photo -- Steve Ferry digging out the Bartlett residence in Darien:

John Brown's car in Alexander this morning:

It took a jury only a couple of hours of deliberation to decide that Dashawn Butler is guilty of criminal use of a firearm, 2nd, criminal possession of a weapon, 2nd, and attempted assault, 1st.

Following the verdict, which came at the end of the second day of Butler's trial, Judge Robert C. Noonan ordered Butler held without bail until he's sentenced at 10 a.m., Dec. 22.

He faces up to 15 years in state prison.

Before he was taken to jail, he collected his personal belongings he had with him -- an iPhone, a necklace of beads and a cross and his black-and-white plaid shirt -- and had a deputy hand them over to his girlfriend, who wept while she waited.

The conviction stems from shots fired incident Sept. 27, 2013, at 117 State St., Batavia.

The case was wrapped up with closing arguments just before 2:30 p.m. Noonan spent about an hour reading jury instructions and then sent the jury into a private room for deliberations.

The jury sent out notes twice with questions and then announced it had arrived at a verdict shortly before 5 p.m.

Today's proceedings included testimony from a witness who is a firearms expert and one defense witness, whose testimony was meant to suggest that Butler's intended victim, Kelly Rhim, came to State Street that night expecting trouble.

Defense Attorney Thomas Burns tried to establish during the trial that without physical evidence that there was a gun, shots were fired, and Butler fired the gun, there was more than reasonable doubt that his client was guilty.

Before closing arguments, Burns made a motion to have the charges dismissed based on the insufficiency, as he sees it, of the prosecution's evidence.

Noonan has yet to rule on that motion. He said he will issue a ruling before Butler is sentenced. It's technically possible that Noonan could still throw out the charges, thereby overturning the jury's verdict.

District Attorney Lawrence Friedman takes a different view, of course, of the evidence.

It's beyond a doubt, but not just a reasonable doubt, Friedman told jurors during his summation that the defendant is guilty as charged.

"This defendant possessed a loaded firearm," Friedman said. "That's what the evidence points to and that's what all of the evidence establishes. He pointed it at Kelly Rhim and he intended to shoot Kelly Rhim."

Where Burns called into question Rhim's character, Friedman said Rhim's testimony wasn't even necessary for the jury to return a guilty verdict.

Burns listed off Rhim's long criminal history, his alleged failure to pay child support, his keen taste for marijuana and the inconsistencies in his story and said his version of events weren't trustworthy.

"Would you trust the word of Kelly Rhim knowing what you know now?" Burns asked. "Would you rely on his honesty if it effected the safety and security of your family?"

Friedman didn't try to boost Rhim's credibility. Rather, he told jurors that Rhim's testimony wasn't necessary to establish that Butler possessed a loaded firearm.

"The defense wants to make all of this about Kelly Rhim," Friedman said. "This case is not about Kelly Rhim. It's about Dashawn Butler. To focus entirely on Kelly Rhim and his credibility is ignoring the fact that the most important witness in this case is Traci Leubner."

It was Leubner's testimony that put a revolver in Butler's hand, Friedman said. It was Leubner's account that demonstrated that Butler expected to shoot Rhim and was surprised when all of his shots missed.

Her statements, Friedman said, were corroborated by the other witnesses, even without Rhim's testimony.

Leubner, a former girlfriend of Butler's, is the witness who refused to testify yesterday for fear of her own safety, and, instead, her grand jury testimony was read for the jury.

Burns was unsuccessful in an attempt yesterday to get a sworn statement from Leubner introduced into the record as well, because there are some possible inconsistencies in the two stories presented by Leubner.

The issue of physical evidence, or the lack of it, loomed large in today's proceedings.

Steve Padin, a firearms instructor at the Erie County Police Academy, and 25-year veteran of Buffalo PD, testified for the prosecution about how and why a person firing a handgun could not only miss his intended target, but also completely miss anything else.

Without the gun, there's no way of knowing with 100-percent certainty whether the weapon fired was a revolver, a semi-automatic or an automatic. 

If it were a revolver, Padin testified, it wouldn't automatically eject shell casings, so no casings would be found at the scene.

The smallest caliber handgun most commonly available is a .22.  

A slug fired from a .22 handgun, if it hits no object, will travel more than a mile before losing speed and dropping to the ground.

Burns told jurors that if Butler approached Rhim from the angle suggested by witnesses, then there should have been bullet holes in the wall of 117 State St., if not, then another object nearby.

Friedman argued that Butler would have been firing in a direction that would have sent bullets north on State Street, with the possibility of there being no objects to hit. The slugs would never be found in that case.

Or if the slugs hit a sidewalk, they could have disintegrated or flown off in who knows what direction; and if they hit dirt, they would be nearly impossible to find.

Padin also testified that it would be quite easy for an inexperienced shooter to miss a person standing even just 10 feet away while firing a handgun.

While Rhim testified he was surprised he wasn't hit by a bullet, Padin wasn't surprised at all.

The quality and design of the gun can effect its accuracy, while environmental factors from wind to light can effect a shooter's accuracy. But more importantly, a shooter's ability or inability to keep the weapon pointed at its target while under stress or excitement can easily cause the shooter to miss.

Padin brought a demonstration device. It looks like a pistol but only fires a laser beam. It's used with students to show them how these factors impact accuracy.

Inexperienced shooters, he said, tend to anticipate the gun's recoil, so they might jerk it down, up or to one side or the other just before pulling the trigger.

Friedman: "Is it possible to miss a human-size target, even one as close as 10 feet away?"

Padin: "Yes."

Friedman: "Have you seen that happen?"

Padin: "I have, many times."

Which brings us to the question, "Who fired the gun?"

Obviously, the jury concluded that Butler did it.

Burns didn't offer another alternative, but he did open the door for the jury to speculate. Friedman, of course, reminded the jury to stick to the evidence and not speculate.

"When it comes to the question of any weapon in that Cadillac, it's a case of protesting a little too much," Burns said. "He isn't outraged at getting stopped for DWI. He's upset when nine officers stop him because they believe he has a gun in that car. And after he witnessed this terrible experience where he got shot at in a neighborhood he said he went back to protect his family, and he knew he left family on the front porch, he drives to a parking lot near Ri-Dans and smokes marijuana and then goes into the bar to drink with no concern for (his family member), no concern for the children in the neighborhood."

Going to Ri-Dan's "probably isn't what most people would do," Friedman told the jury, "but that isn't an argument that the shooting didn't happen." 

The one witness called by Burns was Angel Ramos, who said Rhim has been a family friend for many years.

Ramos, who made it clear almost as soon as she sat in the witness stand that she didn't want to be there, testified that she was at her mother's house on Hutchins Place when Rhim pulled up in the white Cadillac that night.

Rhim said, according to Ramos, "Are you strapped in? Are you ready for war?"

That, Burns suggested, was an indication that Rhim was looking for trouble on State Street that night.

"There's no evidence that Kelly Rhim ever possessed a gun at any point in his life," Friedman said. "There's no indication that Kelly Rhim committed any crime that night on State Street."

As for the statements attributed to Rhim by Ramos, they really don't mean anything, Friedman told the jurors.

"Even if you assume, just for argument's sake, that this was a warning to expect trouble, that doesn't mean he was going to do anything or that he had a gun. That would be entirely speculative because we have no evidence (to support the suggestion)."

If all had gone according to plan, today would be the last day of leaf pickup in the city, but the recent snow storms have made leaf clean up impossible.

Many residents probably still had leaves on some trees when the first storm hit.

City Manager Jason Molino said if warmer weather and snow melt permits, the city may reschedule a period of leaf pickup around the city, but officials won't be able to make that determination, at the earliest, until after this weekend.

Press release:

The Batavia City School District is dedicated to providing all students with the educational foundation necessary to succeed in school and in life. To ensure your child's success, we have set high standards that are reflected in what is taught in our classrooms.

We would like to get your feedback about our district. We will use the information provided by all stakeholders in future plans and are asking you to complete the Family Engagement Survey by November 30, 2014. We want to hear your voice regarding Batavia's educational program. Please complete the survey at the link below:

https://www.surveymonkey.com/s/8XV7LLC

Your input is valued and we thank you for taking time to share your thoughts, ideas and aspirations for the Batavia City School District.

Bernie Thompson and Steve Ognibene face off in a Southside snow blower battle. (Submitted by Steve Ognibene)

Below are some pictures from Le Roy from Rob Radley.

Finally, with perhaps too much time on his hands while snowed in, Bob Trombley rewrote the lyrics to Simon and Garfunkel's "America."

Let us be Eskimos, we'll build our igloos together/ I've got some hand warmers here in my bag.

So we bought pack of rock salt and tops store made pies and walked off to look for Batavia. "Snovember" I said, as we snowboarded along the way in Oakfield, Corfu seems like a dream to me now.

It took me 4 days to clear off my windshield "I've come to look for Batavia."

Laughing in our igloos, playing games with the muckdogs, she said the man in the snow suit was a good guy.

I said "be careful, his snow plow is really buried."

"Toss me a shovel, I think there's one on my front step." We broke the last one an hour ago."

So I looked at the scenery, she read her magazine; and the snow fell over an open field. "Kathy, they're lost" I said as the news trucks were live streaming. "Facebook and Twitter are hashtagging silly snow names and I don't know why."

Counting the cars on the New York State Thruway, they've all come to look for Batavia, all come to look for Batavia, all come to look for Batavia.