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It's now a felony in New York for a police officer to use a chokehold that results in the serious injury or death of a person, but Batavia police officers who have come through the academy in the past 10 years haven't even learned that maneuver, Chief Shawn Heubusch told the city's stakeholders' group at Thursday's meeting.

Since officers aren't trained in the procedure, it isn't even mentioned in the city's use of force policy, Heubusch said.

The Batavia's Police Collaboration Advisory Stakeholder Group was formed in response to an executive order from Gov. Andrew Cuomo mandating that all municipalities with a police force form a community-based group that reviews all of a police department's policies and procedures.

Thursday meeting concentrated on Batavia's use of force policy (pdf).

Chokeholds fell out of favor more than a decade ago, but their use declined steeply after New York legislators passed a law in the wake of the 2014 death of Eric Garner. He died in New York City while in police custody and restrained in a chokehold. Even while officers continued to restrain him, Garner warned them, "I can't breathe."

As a result, the State Legislature approved the Eric Garner Anti-Chokehold Act, making "aggravated strangulation" by a police officer a Class C felony punishable up to 15 years in prison.

While the city's use of policy is silent specifically on the use of a chokehold, it does allow a police officer to use any means necessary to protect his or her life or the life of another person if somebody is in imminent danger of being killed.

An officer, for example, fighting for his or her life, could use a chokehold.

"If the officer is in serious peril, you are going to do whatever you can to prevent yourself or somebody else from being killed," Heubusch said.

The use of force policy outlines when a police officer is authorized to employ a reasonable level of force in order to effect an arrest or protect him or herself or another person, up to the use of deadly force.

Reasonable, of course, is a subjective term but a 1989 Supreme Court decision, Graham vs. Connor, provides police with a method to evaluate reasonable use of force.

What is deemed reasonable? Basically, what any other typical officer would have done under a similar set of circumstances with the knowledge the officer had the time of the incident without the benefit of hindsight. In other words, if an officer has substantial reason to believe a subject has a weapon and is likely to use it, an action taken to neutralize the ability of the subject to use that weapon is reasonable, even if it turns out later the subject didn't have a weapon.

"No policy can possibly predict every situation a police officer will face," Heubusch said. "We can't reasonably think of everything and put in a policy when there is so much judgment involved in every single action an officer takes on a daily basis."

While an officer wants to avoid or minimize the use of force, nothing in the law or policy requires an officer to retreat (unlike a civilian in a public place) in the face of a threat.

When an officer uses unreasonable force, his or her fellow officers have a duty to intervene, and a duty to report under Federal law and local policy.

"We've always had a duty to intercede in our policy," Heubusch said.

Use of force can be authorized to try and capture a fleeing criminal suspect but again, sometimes the use of force is reasonable, and sometimes it isn't. An officer wouldn't use the same force to apprehend a shoplifter that he would for a bank robber. The officer must also evaluate whether the subject is a physical threat to other people.

It's never acceptable to fire a weapon at a moving vehicle. Unlike the movies, it's rarely effective and it's a danger to others.

Deadly force is only authorized when the officer or another person is in imminent threat of death or serious injury. Imminent doesn't mean immediate, Heubusch said. 

"If you point a gun at me I don’t have to wait for that trigger to be pulled," Heubusch said. "It doesn’t matter if the gun is loaded or not. We don’t have to find out if there are actually bullets in the weapon."

Anytime any level of use of force is deployed, Heubusch said, the officers must complete a report, which is another reason officers, he said, would rather avoid the use of force if at all possible.

The report is reviewed by supervisors. The information can sometimes help identify training needs and corrective measures and in rare circumstances result in disciplinary action.

"Officers hate paperwork and when they use force, they have to report it every time they wrestle with somebody," Heubusch said.

Heubusch said the use of force reports are not public even though New York recently repealed the law, Civil Rights Law 50a, which used to make records private used to evaluation police officer performance.

The reports are apparently not aggregated into any kind of statistical table.

Committee members wanted to know more about how the police department handles complaints about the possible use of force violations, particularly what protections are in place to protect an officer who cites a possible violation by a fellow officer.

Some committee members wanted to know just how thick that "thin blue line" is that supposedly protects police officers from being reported by fellow officers.

Heubusch said the department does have a whistlerblower policy that protects employees who file complaints but also noted, it's a small department -- only 33 officers on the force -- so it's hard to remain anonymous. 

That being said, Heubusch added, "supervisors know what their job is. They are not going to put their careers on the line. It's their job and their living on the line. I think our officers are comfortable coming forward if they run into a situation. I have yet to uncover a problem of an officer reporting something to a supervisor."

Public Defender Jerry Ader

Top photo: Chief Shawn Heubusch

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A 3-percent pay raise for City School's Superintendent Anibal Soler Jr. was primarily a cost-of-living adjustment, a couple of members of the board of education told The Batavian in response to a set of emailed questions.

But not all board members responded to the request for comment.

Not responding were:

• Shawna Murphy
• Barbara Bowman
• John Reigle

Trustee Tanni Bromley provided the most detailed response.

During the annual review process, the Board approved the raise of Mr. Soler after thorough discussion during the executive session. The Board felt it was justified for a few reasons which included cost of living increase, the longevity bonus would support and promote Mr. Soler's tenure in education. And finally, the Board did feel that Mr. Soler provided a well-structured plan for our district's reopening. 

The Board always takes the public's thoughts and feelings into account when making such decisions however it is also known that our decisions will not please every community member. Our objective always remains to provide our kids with the best educational experience possible, especially during these difficult and unprecedented times. 

The board approved the raise for Soler, lifting his annual pay from $160,000 to $164,800, unanimously near the end of the same meeting where Soler outlined a looming financial crisis for the school district. The governor's office is withholding at least 20 percent of state funding because of the pandemic and that could lead to a revenue shortfall of more than $5.4 million.

The seeming incongruity of the revenue discussion and the board approving a raise for Soler was questioned by members of the local community, so The Batavian asked each board member to provide their individual reasons for approving the raise.

Board President Alice Ann Benedict first responded:

As per School law, we discuss any employee issues in executive session. We had an in-depth discussion. We then put it on the agenda under consent items and voted on the raise. It is a cost of living increase. Three percent of $160,000 is $4,800.

In an attempt to get Benedict to expand on her answer, The Batavian, in a response email, noted that state law allows elected officials to discuss personnel matters in executive session (what some call "secret session") but doesn't require personnel matters be discussed behind closed doors, nor does state law prohibit elected officials from publically discussing their thoughts on matters taken up in executive session.

In a subsequent email, Benedict said the board held a thorough, in-depth discussion about the raise in closed session.

In a follow-up, we asked Benedict about the size of the raise -- 3 percent -- when the inflation rate in 2020 has been less than 1 percent and the consumer price index in 2019 was less than 2 percent.

"We choose a combination of cost of living, merit, and equity," Benedict said. "This was all decided during a very lengthy executive session meeting." 

Peter Cecere apologized for the delayed response because of a significant family matter. He again cited that the discussion was an executive session matter:

All decisions we arrive at are done with the utmost of thought and consideration from all angles and all sides. Many times not easy and often very laborious.

Rest assured we negotiated as a group, of one voice, and consent.

In response, The Batavian again noted that as a matter of law, he is not prohibited from discussing his decision to support a raise. We got no response.

John Marucci also apologized for a delayed response, citing long hours at work, and said:

What I can tell you is that any and all decisions made by the board of education are discussed thoroughly and we come together as a group on decisions that are made. Anything that is discussed in executive session is confidential.

In response, The Batavian again informed Marucci that we were seeking his individual thoughts on the raise and that state law does not prohibit him from answering questions for the public about matters discussed in executive session. He did not respond.

As for Anibal Soler Jr., he acknowledges that the optics of the raise being approved at a meeting where he spoke about the revenue issue -- the executive session where the raise was discussed was at a prior meeting -- don't look good, but he pointed out that:

• His contract includes an annual raise;
• The board was supposed to approve a raise for him in July but Soler asked that the matter be delayed because he was busy dealing with pandemic-related issues in the district;
• Every bargaining unit in the district, the various unions, and other individual administrators have contracts that mandate annual raises. "Should I be the only one to go without a raise?" he said.

Yes, he said, the timing of the meeting, the optics, do not look good but the district, he said, is facing such a serious revenue shortfall that forgoing a $4,800 raise isn't going to fill in the hole.

He said last year he offered to skip a raise if all the other bargain units would forego their raises and the unions didn't take him up on the offer.

David M. Schmieder, 26, of Silver Road, East Bethany, was arrested after he allegedly assaulted a Wyoming County Sheriff's Deputy in the Village of Gainesville last month. At 1:04 p.m. on Sept. 23 Wyoming County Sheriff's deputies responded to a complaint about a man walking down the middle of Route 19, obstructing traffic and acting irrationally. Upon arrival, Schmieder allegedly refused to follow orders and ignored deputies. When one deputy approached Schmieder, the police report says he "forcefully punched the deputy in the head." A short struggle ensued and two deputies were able to take Schmieder into custody. The defendant is accused of being found with an amount of suspected drugs in his mouth, "which he refused to spit out." The injured deputy was transported to Wyoming County Community Health System for treatment of non-life-threatening injuries. Schmieder was taken to Wyoming County Community Health System for "treatment of a medical condition." On Oct. 1 he was released from Erie County Medical Center and arrested. Schmieder was taken to Wyoming County Jail for virtual arraignment in front of Wyoming County Court Judge Michael Mohun. He is charged with: second-degree assault; tampering with physical evidence; obstructing governmental administration in the second degree; resisting arrest; disorderly conduct -- obstructing traffic; and violation of probation. Schmieder was put in Wyoming County Jail without bail on the count of violation of probation. On the other charges, bail was set at $100,000 cash, $200,000 either bond or partially secured bond (same amount).

Hope Marie Grasso, 50, of Haven Lane, Le Roy, is charged with: criminal possession of a forged instrument in the second degree; attempted grand larceny in the third degree; and attempted grand larceny in the fourth degree. She was arrested at 10:04 p.m. Thursday, Oct. 8. Grasso had allegedly possessed two fraudulent checks that amounted to a combined total of $52,800 and she is accused of trying to cash them at a local bank. She was put in jail and was scheduled to be arraigned this morning (Oct. 9) in Batavia City Court. The case was investigated by Genesee County Sheriff's Deputy David Moore.

Francisco Martinez Jr., 47, of Maple Street, Batavia, is charged with: open container of alcohol on public property; petit larceny; two counts of endangering the welfare of a child; and second-degree harassment. He was arrested after an investigation into a disturbance at 3:38 p.m. Oct. 3 in Austin Park on Jefferson Avenue in Batavia. He was released on an appearance ticket and is due in Batavia City Court on Jan. 5. The case was handled by Batavia Police Officer Samuel Freeman, assisted by Officer Adam Tucker.

Nateeka M. Gibson, 31, of Tracy Avenue, Batavia, is charged with burglary in the second degree -- illegal entry into a dwelling, and disobeying a mandate of a judge. Gibson was arrested at 3:24 p.m. on Oct. 4 on Washington Avenue in Batavia after allegedly unlawfully entering the home of a person with a complete stay away order of protection. Gibson was arraigned in Batavia City Court via Skype and released under supervision of Genesee Justice with a 24/7 house arrest order. Gibson was due to return to court on Oct. 8. The case was handled by Batavia Police Officer Miah Stevens, assisted by Sgt. Dan Coffey.

Mark Theodore Helm, 39, of State Street, Batavia, is charged with second-degree harassment. Helm was arrested on Oct. 5 after an investigation into an incident that occurred on State Street at 3:10 on Sept. 28. Helm is accused of pushing and punching another male during an altercation. Helm is due in Batavia City Court on Jan. 5. The case was handled by Batavia Police Officer Samuel Freeman.

David James Leroy, 28, of Gabbey Road, Pembroke, is charged with second-degree harassment. He was arrested at 1:24 this morning, Oct. 9, after an alleged altercation with another person. Leroy was released with an appearance ticket to be Pembroke Town Court on Oct. 21. The case was handled by Genesee County Sheriff's Deputy David Moore.

Zachary V.D. Seeley, 23, of Lyman Road, Bergen, is charged with aggravated criminal contempt. He was arrested on Oct. 5 following an alleged violation of an order of protection that occurred at 9:09 p.m. Sept. 26 on Ellsworth Avenue in Batavia. Seeley was arraigned in Batavia City Court via Skype then put in jail "until his return date" to court on Nov. 19. The case was handled by Batavia Police Officer Sean Wilson, assisted by Sgt. Dan Coffey.

Jeffery Robert Roth, 54, of South Main Street, Oakfield, is charged with second-degree criminal contempt for allegedly disobeying a court order. Batavia Police Officer Peter Post arrested Roth on an active arrest warrant out of Batavia City Court and the defendant was arraigned on Oct. 4 via Skype. Roth was put in jail on $2,000 cash bail or $4,000 bond and is due back in court on Nov. 5. Post was assisted by Batavia Police Officer Kevin DeFelice.

Grace C. Murray, 21, of Hawks Road, East Bethany, was arrested Oct. 2 after she turned herself in at Batavia Police Headquarters on a bench warrant out of Batavia City Court. It was issued after she allegedly failed to appear for sentencing on an undisclosed matter on Sept. 15. Murray is to return to court on Oct. 15. The case was handled by Batavia Police Officer Wesley Rissinger, assisted by Officer Adam Tucker.

The Genesee County Planning Board is asking the Byron Town Board to consider revisions to a couple sections of its proposed local law on solar energy systems.

Planners on Thursday night approved the referral from the town for zoning text amendments governing the placement of solar projects, but not before Planning Director Felipe Oltramari pointed out issues with wording in sections pertaining to property values and prime farmland.

On the clause addressing the impact of large-scale solar projects upon property values, Oltramari said it lacked clarity and detail, noting that it was just one sentence. The section in question currently states:

Property Value and Taxpayer Protection: Tier 3 and Tier 4 Solar Energy Systems, once constructed and operational, shall not reduce the property value of adjacent parcels where a parcel owner is not in privity of contract with the applicant or its successors, agents or assigns.

Oltramari said that description “needs to be fleshed out some more” and said that without an appraisal before and after the project siting, it would be difficult to prove how much, if any, the value of the property had changed.

He said he realizes that the town consulted with attorneys to draft the plan and didn’t want to overstep their expertise, but he said he “had concerns about the clarity and the practicality of having something like that that can’t really be enforced.”

On the use of prime farmland, Oltramari said he understands the reasoning behind limiting projects to no more than 10 percent of prime farmland – as is the case of the 280-megawatt Excelsior Solar Project under Article 10 of New York State law – but he believes the proposed local law doesn’t go far enough in its description of prime farmland.

He said a local resident mentioned a soil survey that determines how much prime farmland is in the town, specifically noting a category called “prime if drained.”

“That means that if the landowner puts in what they call tiling – drainage to make the soil drain better, then the land becomes prime farm if those improvements are made to the fields,” he said. “But whether or not the field is tiled, only the property owner knows and maybe a few others. You would have to know how much of that farmland is actually drained. If you don’t know that, you don’t know the full percentage of prime farmland in the town.”

Oltramari said he expects the Byron Town Planning Board to review the proposal and issue recommendations to the town board, and hopefully will take a look at those two sections.

County planners briefly discussed NextEra Energy Resources’ 1,700-acre Excelsior project that is in the hands of the state Board on Electric Generation Siting and the Environment.

While Oltramari said large solar arrays such as this “are supposed to adhere to local regulations,” Article 10 – and now the Accelerated Renewable Energy Growth and Community Benefit Act -- supersedes local planning board authority.

In other action, planners:

• Approved a special use permit and downtown design review for the Downtown Revitalization Initiative project to renovate the Main Street Pizza building at 206 E. Main St.

As first reported on The Batavian, applicant Paul Marchese, doing business as Just Chez Realty LLC, submitted plans to create two apartments on the second floor and change the exterior of the building at 206 E. Main St.

The only stipulation in the planners’ approval was that the project meets Enhanced 9-1-1* standards.

Marchese’s request now will go before the City Planning & Development Committee, likely at its Oct. 20 meeting.

• Approved a zoning map change request from R-1 (residential) to C-2 (commercial) by James Barsaloux to offer local craft beer, food and live music, at his farm market operation at 8041 E. Main Road, Le Roy.

Oltramari said the Town of Le Roy’s comprehensive plan indicates acceptance of a mix of residential and commercial operations in its future land use.

Planners said they were concerned about traffic and noise, and hoped that the town would conduct a proper review of the site plan and special use permit to mitigate any potential problems.

Barsaloux said that he intends to have live music only a couple nights per month and no later than 9 p.m., adding that he wants to keep “a family atmosphere … not another bar.”

• Approved a special use permit request from John Kula of Freedom Fellowship LLC, for a 3,200-square-foot three-bay auto repair garage and print shop at 254 Broadway Road (Route 20).

The project came before planners in August, when they granted an area variance for the public garage, which will be set up as a vocational training site for people in recovery from substance use disorders.

*Enhanced 911, E-911 or E911 is a system used in North America to automatically provide the caller's location to 9-1-1 dispatchers. 911 is the universal emergency telephone number in the region.

Previously: County planning agenda includes special use permit referral for Main Street Pizza building.

Press release:

• Genesee County received eight new positive cases of COVID-19.
  • The new positive cases reside in Alabama, Batavia, Elba and Stafford.
  • Two of the positive individuals are between the ages of 0-20, one individual is in their 40s, two individuals are in their 50s, one individual is in their 60s, and two individuals are in their 80s.
  • Three individuals were on mandatory quarantine prior to testing positive.
  • Twenty-one new individuals are on precautionary quarantine due to travel from restricted states.
  • One of the positive individuals is hospitalized.
  • One of the individuals is a resident at the New York State Veterans Home.
• Orleans County received two new positive cases of COVID-19.
  • The new positive cases reside in Albion and Yates.
  • One of the individuals is in their 20s and one individual is in their 30s.
  • The individuals were not on mandatory quarantine prior to testing positive.
  • Seven new individuals are on precautionary quarantine due to travel from restricted states.

Batavia-based funeral director Michael Scott Tomaszewski was arraigned on 15 new charges in Genesee County Court this morning as a result of the continuing investigation of his business practices.

He owns Michael S. Tomaszewski Funeral Home & Cremation Chapel, Acme Holdings of NY Inc., which owns the building that houses his funeral home on West Main Street Road, and adjacent property, including the Dibble Family Center.

On July 23, the Edgewood Drive resident, 48, was charged with 91 counts of failure to deposit monies paid in advance in connection with agreements for funeral merchandise or services for 91 customers.

Since his initial arrest, 11 additional victims came forward.

Today's virtual arraignment via Skype in front of Judge Charles Zambito was for:

• Seven counts of third-degree larceny (Class D felony);
• Grand larceny in the fourth degree (Class E felony);
• Three counts of petit larceny (Class A misdemeanor); and
• Four counts of failure to deposit monies (in violation of NYS General Obligations law).

According to the report from the Genesee County Sheriff's Office, Investigator Christopher Parker states the new charges "represent additional allegations concerning conduct related to monies paid to Tomaszewski for prepaid funeral and grave markers which were not used for their intended purpose."

In February, Tomaszewski filed for bankruptcy for Acme Holdings under Chapter 11 in Federal Court. He has also filed for personal bankruptcy.

Following today's arraignment, Tomaszewski was released on his own recognizance.

The investigation is continuing.

Anybody who wishes to check the status of any prepaid account can call (800) 577-3752 to verify the existence of a preplan account. Anybody who believes they are a victim is asked to call the Sheriff's Office at (585) 343-5000.

Previously:

Local funeral director charged with stealing money from customers

Sheriff's Office looking into report that Tomaszewski improperly handled stillborn baby's remains

Darien Center couple would like the truth from Tomaszewski about what happened to their daughter's remains

People who think they were defrauded by Tomaszewski should hire an attorney with expertise in bankruptcy, advises law professor

Village of Le Roy Police Chief Chris Hayward acknowledged that “we’re not perfect” as he encouraged the newly formed, 15-member Police Reform and Reinvention Collaborative to provide the input to achieve its goal of developing a revised policing plan that meets the community’s needs in accordance with Gov. Andrew Cuomo’s Executive Order No. 203.

“We’re trying to get diversity here,” Hayward said on Wednesday night as the group met at the Village Hall for the first time. “I know that we’re not perfect and as for criticisms, this is what we want to do here. We want to do better.”

Hayward, sitting at a table at the front of the room with Mayor Greg Rogers, started the meeting with a PowerPoint presentation highlighting the governor’s call for police reform, members of the local advisory group, roles and responsibilities of the key players, and a timeline leading to the formation and submission of the plan to the state by April 1.

A discussion followed, focusing on policing in Le Roy, hiring and diversity, use of force policy, and accountability and transparency.

Public Defender Jerry Ader suggested the formation of a citizen-led advisory group or committee that could field individual comments or complaints, noting that people might feel more comfortable if that avenue was available.

Both Hayward and Rogers indicated that they are open to residents’ concerns regarding individual police officers and policing in general, with Rogers stating, “I’m the most approachable person in the room.”

Hayward said he is taking calls from citizens all the time, but said “we receive very few informal personnel complaints against the officers.”

He said he believes his agency is not transparent enough, but does not agree with a revised law that will allow disciplinary records for individual police officers, firefighters or corrections officers to be released without their written consent.

“That’s a violation of their constitutional rights,” he said.

Ader pressed on with his idea, adding that people would be hesitant to speak up “if they don’t think they would get a fair shake.”

Rogers said he would bring his suggestion back to the village board for discussion.

Hayward informed the group about the department’s hiring process, noting expanded interviewing, a 27-page background check packet for both full- and part-time officers and the ratifying authority of the mayor and village board.

As far as diversity on the police force, he said only one person of color applied in his 18 years as chief, adding that that individual did not make it through the background process. He then mentioned that minorities comprise only 1.7 percent of the Le Roy population before noting that the department has hired five women.

When Hayward said that it’s “getting tougher and tougher” to attract good candidates, Ader asked if there was a residency requirement.

“There is and there isn’t,” Hayward responded, prompting Ader to say, “You sound like a lawyer,” (prompting a chorus of laughter).

Hayward explained how the Civil Service scoring system guides hiring before mentioning that Le Roy’s police department of 16 officers now has “more of a balance who live in the community,” which he called a positive thing.

On the subject of use of force, Hayward said his department is steered by guidelines from the Municipal Police Training Council and the International Association of Chiefs of Police, as well as having to abide by four large volumes of general orders.

He said that officers must intervene if they see that excessive force is being used and that shots cannot be fired at a moving vehicle unless the perpetrator is using deadly physical force.

Hayward said that currently his agency does not have a ban on chokeholds since “they haven’t been trained on chokeholds since the 1980s.” However, he is fervently against the use of chokeholds and said it could be included in the reform plan.

Other topics of discussion were as follows:

-- On accountability and transparency: Hayward said the “boiler plates are there, we just have to tailor it to our department.”

He said, once again, that he didn’t think the department is transparent enough and admitted that its record keeping and filing are substandard, but added that Deputy Clerk Eileen Carmel is making great strides in correcting the situation.

-- On collective bargaining’s effect on internal discipline: Ader inquired if the contract with the union made it tough for Hayward to impose discipline.

“We’re hamstrung by village law, not the collective bargaining agreement, which is pretty standard,” Hayward replied, adding that he doesn’t have the power to discipline; that is in the village board’s hands.

Attorney Jake Whiting said that he thought the chief could be “the hammer” on disciplinary measures, but problems could arise “if he’s cherry-picking.” He suggested that maybe the chief could be given more power when it comes to discipline (a letter of reprimand, for example), with the board handling more serious charges.

-- On citizens’ level of trust in police: Whiting said the level of distrust of police and government is at “an all-time high” and only accountability and transparency will fix it.

Hayward said the perception is that “they’re going to cover for each other.”

-- On police officers’ role in mental health needs: Social worker Christine Gephart commented that school resource officers and police officers are part of the support system in Le Roy, which is important and unique to the community.

Hayward mentioned the department’s involvement in the Police Assisted Addiction and Recovery Initiative with Genesee/Orleans Council on Alcoholism and Substance Abuse, where intervention without arrest is at the forefront of the program.

-- On the timeline going forward: Hayward indicated that the group will meet again on Oct. 20 to identify and assess the current effectiveness of police practices and policies along with key metrics, with an eye on conducting public forums to gather recommendations.

Other tentative meeting dates are Nov. 17, Dec. 2, Jan. 14 and Feb. 28, but Hayward said he hopes to complete by Christmas the tasks of the Jan. 14 meeting – the sharing of the detailed plan with the stakeholder groups for final feedback, revised where appropriate and attain village board approval and ratification.

Cuomo’s Executive Order stipulates that community policing reform plans must be completed and submitted by next April to avoid the possible loss of state funding. Currently, the Le Roy PD receives $17,300 from New York State -- $5,850 for STOP DWI, $4,200 for Selective Traffic Enforcement Program and $7,250 for Law Enforcement Terrorism Prevention Program.

Other members of the Le Roy committee are Sean Ancker, police department representative; Lori Steinbrenner, business representative; Le Roy School Superintendent Merritt Holly, school representative; Jack Hempfling, clergy representative.

Also, Weldon Ervin, Laura Kettle and Monica Scarlotta, citizen representatives; Mary Margaret Scanlan, mental health representative; Kevin Finnell, district attorney’s office, and James Farnholz, Le Roy town supervisor.

--------------

The City of Batavia Police Collaboration Advisory Stakeholder Group meets at 6 o’clock tonight at the City Centre Council Board Room.

The Genesee County Sheriff’s Department advisory group has set a meet-and-greet for 7 p.m. next Wednesday at the Old County Courthouse. Sheriff William Sheron will make a presentation at a full meeting of the Genesee County Legislature at 5:30 p.m. Oct. 28 at the same location.

Photo: The Village of Le Roy Police Reform and Reinvention Collaborative​ listen to Chief Chris Hayward (blue shirt) on Wednesday night. Photo by Mike Pettinella.

After a trying, stressful and – ultimately – successful time managing the Primary and Special Elections in June, Genesee County Board of Elections commissioners say they are reenergized and ready to tackle the national Election Day next month.

“We are full staff now and we’re prepared as we can be for the big one,” said Republican Commissioner Richard Siebert on Wednesday afternoon during a departmental review for the Genesee County Legislature’s Ways & Means Committee at the Old County Courthouse.

Siebert and Democratic Commissioner Lorie Longhany recapped their efforts during the June 23 Primary and Special Elections for the 27^th Congressional District prior to outlining plans for the Nov. 3 general election.

Calling it a “year like we have never experienced before,” the officials stated that the COVID-19 pandemic and the ever-changing guidelines from Albany made it very difficult for their team of poll workers, inspectors and technicians.

Beyond the state-mandated coronavirus health and safety protocols that were put into place at 24 polling sites, the local election office had to send out 40,000 absentee ballot applications – paying for printing and postage both ways.

“It was a big expense to the county,” Siebert said.

The commissioners reported their deputies “worked tirelessly and seamlessly to navigate through each Executive Order, delegate job duties to various county employees who helped with the large volume of election mail and to run point on every aspect of this most difficult election, including post-election absentee ballot counting.”

Siebert said the technicians charged with preparing the ballots had to program the electronic voting machines for six elections. Unable to meet strict deadlines and without scannable absentee ballots, staff had to hand count approximately 5,000 ballots.

Longhany noted that the teamwork of election workers on both sides of the political aisle and the assistance of Genesee County employees – led by County Manager Matt Landers and Human Resources Director Anita Cleveland – enabled the Board of Election to fulfill its duties and provide all the opportunity to vote without unreasonable wait times.

“We received a great deal of help from around the county,” she said. “It showed how cooperation is the name of the game for us.”

Siebert said the four complaints they received were addressed “and satisfied with explanation,” while Longhany added that an issue at the 400 Towers senior apartment building at East Main and Swan streets has been rectified.

“With the COVID and (having a senior population), they didn’t want us there, but they’ve come back on line with us for the general election,” she said.

Both officials said they are prepared for around an 80-percent turnout of the county’s 37,000 eligible voters for the November election.

They reported that 4,000 absentee ballot requests have been processed thus far, and that training is ongoing for 200 poll workers to use new electronic poll books in addition to their other duties.

Siebert said the electronic poll books are advantageous in that “it will tell us if a person has already voted.”

Additionally, Longhany said the absentee ballots for the coming election will be scannable – enabling workers to count the 6,000 to 7,000 they expect to receive in a timely fashion.

In summary, the commissioners thanked the legislature for its support -- both financially and by providing volunteer hours -- to ensure voters have the opportunity to “exercise their rights and feel confident in the integrity of our system.”

In a related development, the Ways & Means Committee forwarded a pair of resolutions concerning “chargebacks” to the county’s 13 towns and the City of Batavia stemming from costs incurred during elections in 2019.

The first authorizes the county treasurer to bill the municipalities for $7,794 in charges for expenses during the early voting period of Oct. 26-Nov. 5, 2019. Those charges range from $233 in the Town of Bethany to $1,817 in the City of Batavia.

The second allows the county treasurer to bill the towns and city for $54,785 in charges related to training and per diem fees for poll workers, inspectors and coordinators during the local primary (June 25, 2019) and general election (Nov. 5, 2019). Those charges range from $1,470 in the Town of Pavilion to $19,450 in the City of Batavia.

Landers said the county’s real property department will notify all the municipalities of the charges this year with the expectation that the county treasurer will bill and collect what is owed in 2021.

Alice Ann Benedict is in only her fourth month as president of the Board of Education for Batavia city schools but she's already looking to make a significant change to a board policy that she said has bothered her for a long time.

Under the previous leadership of Pat Burk, who resigned suddenly over the summer, if a member of the public came to a board meeting and asked a question, Burk would inform the speaker, "We don't answer questions from the public."

Benedict wants to provide the public with public answers to board questions.

She brought the issue to the board's attention at Monday's meeting and Superintendent Anibal Soler Jr. suggested after the board discussion that the board hold off on changing the policy until staff can formalize the language and make a recommendation.

If the board adopts Benedict's suggestion, the district will offer a form on the district's website where members of the public could ask questions of the board. If the question is submitted prior to a set deadline -- such as 5 p.m. on the Thursday before the board's Monday meeting -- then either the board president or the superintendent would prepare an answer. At the next board meeting, during the "public speaks" portion of the agenda, the question and answer would be read aloud. 

Currently, Benedict said, if a question is sent to the district, either she or Soler answer it and the board never sees the question unless Benedict forwards it to them. Benedict would like the entire board to be informed of questions from the public.

During COVID-19 restrictions, members of the public are not attending meetings but once restrictions are lifted, Benedict wants the board to have in place a policy that would allow members of the public to ask questions. If questions are submitted in advance, they will be answered at the meeting. If not, the board president or superintendent will answer the question at a subsequent meeting.

Benedict expressed concern that some people, like herself, are not "quick on their feet" when it comes to answering questions, which is why she wants a built-in delay on answering questions so there is time for research and consideration.

"I always felt like before when I was on the board, I never liked the idea that if a community member took time to come to the board to make a comment or ask a question, we would never answer," Benedict said. "We would never answer the question. That really bothered me."

At first, Trustee Shawna Murphy seemed a little confused by the suggestion, noting that the public has always been allowed to speak at meetings.  After Benedict spoke more about her idea, Murphy said, "sounds beautiful."

Soler said it usually takes two readings for the board to adopt a new policy. He said the policy should incorporate best practices for dealing with public speakers and also suggested the policy should mimic what he said other districts do, which requires public speakers to sign up to speak hours in advance of the meeting "so people can't come and disrupt the meeting."

Batavia city schools are looking at a nearly $5.5 million revenue shortfall in the current fiscal year due to the global pandemic that has caused an economic retraction, and dealing with that shortfall is likely to mean the district needs to cut services and personnel, Superintendent Anibal Soler Jr. informed school board members on Monday night.

Soler told the board that state aid has been cut by 20 percent, or $425,000, so far. The state says it is "withholding" the funds but there's no guarantee the funds will be backfilled, nor that there won't be more "withholding" during the remainder of the year.

The state is facing a $16 billion budget shortfall and the deficit over the next four years is expected to grow to $66 billion.

That doesn't bode well for the future of school funding, Soler said.

The superintedent said he was trying to present the board and the community with a realistic picture of the situation the district finds itself in through no fault of its own.

"If we don’t sound the alarm now and it gets sounded for us, we may be seen as not being as transparent as we can," Soler said.

While a lot of people suggest cutting things like supplies and materials, that's only 2 percent of the school district's budget. The biggest portion of the budget goes to payroll and benefits -- about 70 percent, so if it becomes necessary to cut spending, that will be the area where the district can make up much of the projected shortfall.

"At $5.4 million, you start doing the math and that's a significant number of services or employees we have to change," Soler said.

The total district budget is $51,470,726 and is supported by $27,477,066.

The unknowns at this point is: Whether there will be a round of 20-percent withholding in August and December and whether Congress will at some point approve a stimulus package that includes funding for schools.

Soler said state education officials are leaning heavily on the idea of waiting to see what happens after the election.

If the cuts turn out to be permanent, Soler outline several possible responses:

• Cut teacher aides to four days a week for a savings of $301,210;
• Cut custodial work to four days a week for a savings of $246,126;
• Go to 100-percent remote learning to cut transportation costs by $576,000;
• Eliminate activities such as music for a savings of $143,551;
• Cutting athletics could save $284,089;
• Increasing class size to 28 pupils per teacher, the maximum allowed by the current union contract, could save $630,000;
• Eliminating non-mandated staff, such as teachers for elective courses, non-graduation requirement courses, extra librarians, some tutors and counselors, an administrator, and some aides, could lead to another $3 million in savings;
• Eliminating the school resource officer would save $54,000.

What to cut and how much is a matter of priorities and a balancing act, Soler said. For example, eliminating transportation would mean a cut in state aid for transportation in future years.

Also on the table for discussion, Soler said, is a dramatic tax increase. He took notice of the possible 89-percent property tax increase in the Town of Batavia as an example of the tough budget choices the pandemic is forcing on local governments.

"Obviously, I'm not saying that's our approach but we're probably not going to be able to come out of this with no tax increase," Soler said. "It's tough because they're (property owners) are also struggling with these economic conditions."

Board Member Shawna Murphy wondered out loud why the idea of a tax increase was such a heinous idea. She suggested most people in Batavia could handle a tax increase.

Another board member spoke up (it was hard to identify the speaker on the livestream of the meeting) and said many older residents have already put their children and their grandchildren through school and now live on a fixed income. She was hesitant to burden them with a tax increase.

"I have more concern for the older property owner," she said. "Their home is the last thing they're clinging to and we're asking them to make quite a sacrifice when they have no children in the system."

The district does have about $1.75 million in reserves but that money will run out quickly if other action isn't taken, Soler said.

The district will know much more about its financial situation by the Nov. 23 board meeting, Soler said. Until then, he said, the district needs to remain "stay the course and remain Batavia Strong" and study its options.

On another budget item, the board unanimously approved an amendment to the superintendent's contract that granted Soler a $4,800 annual raise, bringing his compensation to $164,800 per year. The board did not discuss the salary increase prior to the vote.

The Genesee County Planning Board on Thursday will consider a referral from Paul Marchese, doing business as Just Chez Realty LLC, for a special use permit and downtown design review for improvements to the Main Street Pizza building at 206 E. Main St.

Documents submitted to the planning board reveal that the applicant wishes to create two apartments on the second floor and change the exterior of the building that is located in the Downtown Business Improvement District.

A letter dated Sept. 29 from Doug Randall, City of Batavia code enforcement officer, to county planners and the City Planning & Development Committee indicates exterior changes involve: adding an entrance door on the south side; replacing windows; and changing the nameplate on the north (front) of the building from MANCUSO to MARCHESE and installing “up lighting” on that side.

Additional enhancements include: removing existing awnings and exposing the original transom windows; installing a new aluminum-clad wooden door on the north side; and installing new aluminum-clad wood windows/door storefront in the center bay.

The special use permit is for “restricted residential use” to allow the two second-story apartments in an area currently used as office space.

Following a recommendation by county planners, the referral will go before the City Planning & Development Committee, likely at its Oct. 20 meeting.

The $489,000 project has been awarded $137,600 from the Batavia Development Corporation’s building improvement fund through the Downtown Revitalization Initiative.

BDC Executive Director Andrew Maguire said the project will be completed in two phases, with the second phase featuring the creation of three additional residential units upstairs.

Other referrals of note on this week’s Genesee County Planning Board agenda:

• Review of zoning text amendments from the Town of Byron for a local law governing solar energy systems as they relate to the town’s comprehensive plans.

Planning Director Felipe Oltramari said smaller solar projects such as those on building rooftops, on private property and that connect to the electric grid technically are not allowed unless a local law such as this is in place.

Large-scale solar energy systems, including those under Article 10 in New York State, are not bound by local solar energy laws, but generally attempt to follow those guidelines, Oltramari said.

Currently, the Town of Byron is engaged in negotiations with NextEra Energy Resources on the Excelsior Solar Project, a 280-megawatt, 1,700-acre venture being developed under Article 10 with oversight by the state Board on Electric Generation Siting and the Environment (Siting Board).

• A zoning map change request by James Barsaloux in order for him to add local craft beer, food and live entertainment, specifically music, to his farm market operation at 8041 E. Main Road, Le Roy.

He is seeking a change in zoning from R-1 (residential) to C-2 (commercial), noting that the farm market business is a “grandfathered use in its current R-1 zone.”

Oltramari said that while the business is in an R-1 zone, it is surrounded by commercial ventures along East Main Road. A large parcel in an industrial zone is located across the road from the farm market.

• A special use permit request from John Kula of Freedom Fellowship LLC, for a 3,200-square-foot three-bay auto repair garage and print shop at 254 Broadway Road (Route 20). This comes on the heels of the granting of an area variance for the project in August.

The public garage will be used for vocational training to support a ministry for those in recovery from substance use disorders, with work limited to light repair, tires, brakes and routine service.

That, in a nutshell, sums up the philosophy of Bill Joyce, Genesee County Veterans Services director, who isn’t bound by geographical borders when it comes to assisting those who have served in the military.

Joyce is an East Pembroke resident who retired as a sergeant major after 40 years of active and reserve duty in the Army, with tours of duty in Bosnia, Iraq and Afghanistan. He accepted his current role in May 2012 and has positively influenced the lives of thousands of vets over the past eight years.

On Monday, he presented his departmental review to the Genesee County Legislature’s Human Services Committee, reporting that “I know that I’ve been busy” although the regional office has been closed due to COVID-19 and that no actual claim and appeals numbers are available.

His report indicated that his office had 6,410 contacts and provided 8,040 client services over the past year, with a portion of those visitations involving vets from outside Genesee County. During his time on the job, Joyce has become known throughout the state as someone who can be counted upon to find solutions.

“We didn’t close the office, despite COVID-19, which was not only beneficial for our (Genesee) county veterans but for our outside (the) county veterans,” he said. “Today, I had a call from a Dutchess County veteran that can’t get a hold of anybody down there. As long as I can work by email, telephone, fax, I’ll take them.”

Joyce said he has been frustrated over the Department of Veterans Affairs’ new Rapid Appeals Modernization Program, which “is nothing like it is supposed to be. It’s not rapid.”

He said that some veterans have been waiting for almost a year for their appeals to go through. But, although the regional office is temporarily closed, he said he has found other ways to network.

“The regional office was supposed to be doing the appeals – they’re no longer there, so now I’m doing virtual,” he explained. “A veteran comes to my office and we sit there in front of my computer with the judge on the other side or they’re sitting on their telephone and I’m sitting on my computer and the judge is on the computer. So, we have appeals going through and not waiting for the regional office to get back in gear.”

Joyce said he continues to take on referrals from the Department of Social Services, assisting wives and widows of veterans with pension issues and education for children in cases where the vet has a 100-percent service connected disability.

He also has a key role in proceedings at the Western New York National Cemetery located at Route 77 and Indian Falls Road in the Town of Pembroke.

Joyce has been selected to serve on a memorial committee set up to attain donations for family members of deceased veterans.

“The VA (Veterans Administration) cannot buy stuff,” he said. “It’s as simple as a golf cart for a wheelchair (bound) spouse or family member to visit their loved one (at the cemetery). This committee is formed at all national cemeteries to buy something as simple as a golf cart for family members to visit their loved ones.”

He said donations from businesses or individuals can be made through the committee, which is working on a memorandum of understanding to accept contributions.

Joyce also is organizing the honor guard in neighboring counties to be ready since construction of the cemetery is ahead of schedule.

“They had the consecration of the grounds two weeks ago and they put the sod over the ground that was consecrated and we had the honor guard there,” he said. “The building that you see from the road – it shouldn’t be there – that’s how far ahead of schedule they are. The one committal shelter that you can see from the road, it shouldn’t be there (for the same reason).”

For those wishing to view the progress at the cemetery site, drone videos are posted on the Genesee County Veterans Services website.

Joyce responded to a question from Legislator Gary Maha about the pre-need application for veterans to secure their burial plot at the cemetery.

“The pre-need makes you feel good; you know you have a place for burial,” he said. “As I tell all the veterans, when it comes to your house, it’s in two envelopes. One’s the shipping and the other one is probably a 6 by 12 with a VA emblem on the outside. Take your discharge (paper) and make a copy of it, and put it in that envelope.

“So, whatever family member is making the arrangements for you can hand that to the funeral director. Then, the funeral director calls the national cemetery administration and they see that you’re already approved (with a docket number).”

Joyce noted that the veteran’s spouse can also be buried in the same vault. More information about the pre-need application is on the website.

Despite dealing with a public health crisis that has affected all of its programs and services, the Genesee County Department of Social Services has rolled with the changes to “continue to serve the residents of Genesee County efficiently and effectively,” the agency’s commissioner said today.

David Rumsey, presenting his departmental review at the Genesee County Legislature’s Human Services Committee at the Old County Courthouse, reported that the diligence of his 107.5 employees (including a part-timer) has “come to the forefront in 2020 during the COVID-19.”

“With their ability to adapt to a new style of remote working, virtual training and a different feel for how to conduct business, they persevered and continue to serve the residents of Genesee County efficiently and effectively,” Rumsey said.

His 30-minute talk was based on a seven-page report that touched upon programming issues relating to: family visitations; child residential placements; and youth and adult protective services; budget issues relating to personnel; Medicaid costs; family assistance and foster care; and staffing developments.

Rumsey said the agency was at 50-percent staffing through June 1 (it’s back to 100 percent now) and that made it difficult to deliver services.

“All programs and services, in part, have been affected by the COVID-19 pandemic,” he said, adding that waivers were granted – and are still in place – for all program areas from conducting face-to-face interviews.

Child Protective Services Drop with Schools Closed

 With schools closed, child protective services decreased substantially, he said, as DSS was unable to get reports from school administrators. “We are seeing an uptick in CPS calls now,” he said.

He noted that the coronavirus hampered the agency’s ability to reunite families and perform court-ordered visitations until August, when DSS staff began supervising these visitations while adhering to all Center for Disease Control and Health Department COVID-19 guidelines.

Regarding foster care, Rumsey said the county had 69 young people in various foster care placements settings in August: 36 in regular foster homes; five in cluster homes; 17 in therapeutic foster care; and 11 in residential care. Additionally, two are at state training schools (detention) and one is at the New York State School for the Blind.

“The most prevalent reasons (for foster care) are still substance abuse and/or mental health issues of the caretakers or children” or the extreme acting out by the child(ren) that compromises the safety of the family members or community,” Rumsey explained, adding that costs to house foster children are substantial.

He said that placement in a “voluntary agency therapeutic foster home can typically average about $45,000 annually for board/admin, while placement in our own county foster homes, ranges up to $11,000 annually for board.

“We currently have 17 youth in placement with Hillside or Glove House therapeutic foster homes,” he reported.

The High Cost of Residential Placements

Rumsey said costs for residential placements for “our very high need and hard-to-place youth” affect expenditures and budget appropriations the most, with board and tuition expenses at residential treatment centers ranging from $145,000 to $230,000 annually for each of the 11 current placements.

He said that savings should be realized in 2021, however, as the state’s Family First Initiative is requiring Departments of Social Services to “reduce the number of residential placements by 30 percent and place those youth with families instead.”

The commissioner said that getting a foster child into an adoption setting takes time, thus keeping costs high. He said that of the 69 youth in foster care, 14 are freed for adoption.

DSS also intervenes when it comes to law enforcement and protective services for youth and adults, Rumsey said.

In 2019, New York State’s Raise The Age law stipulated that a youth can be prosecuted as an adult in criminal cases as long as he or she is at least 18 years old.

While the original concern was that more teens would be placed in both residential foster care and secured detention, this has not materialized, Rumsey said. He added that any increase in RTA spending or electronic monitoring should have no cost effect on the DSS budget as the state continues to promise 100-percent reimbursement on any RTA-identified youth.

Adult Protective Services Stretch Staff

Rumsey reported that Genesee County DSS has 161 cases in the Adult Preventive and Protective Services category, and that has caused additional strain on the staff.

“During the COVID-19 pandemic, one worker was furloughed, which left four workers and one supervisor to oversee all the protective service for adult cases and handle preventive services (representative payee), utility referrals and guardianships,” he said.

On the subject of state-mandated Medicaid, Rumsey said New York has failed to live up to its promise to take over the administration of the program and sees “no light at the end of the tunnel.”

And, based on the requirement for a five-year look-back period for chronic care (nursing home), cases continue to take a great deal of time for eligibility determination, he said.

Rumsey said the department’s budget “remains on track despite the COVID-19 pandemic,” although a 20-percent cut of state aid looms.

“Personnel expenses are as budgeted, and we continue to experience a moderate turnover rate,” he said. “In 2020, we added two assistant county attorneys and one housing coordinator to our staff and hired a director of Fiscal Operations and Child Support (Jennifer Groff), five caseworkers, three social welfare examiners, two youth workers, an intake supervisor, intake clerk, and one part-time chauffeur. At the same time, we had one retirement, 10 resignations and two terminations.”

He said that only two of five vacant positions will be filled.

Medicaid Costs Fixed Through 2020

The county’s weekly Medicaid shares have been reduced to $153,807 per week, and will remain at the level through the first few months of 2021.

“This is the County’s local share of the entire Medicaid program, no matter how many additional people are enrolled or how many benefits are provided,” he explained.

Rumsey said the agency is providing temporary assistance for needy families at an average of 99 households per month involving around 203 individuals, with many of those being “child only” cases.

In closing, Rumsey defended and praised his employees.

“The work done at DSS does matter to our community. The job they do is not easy, and can be trying at times, and the role of this agency is often misunderstood,” he said. “Even with the additional stress the COVID-19 pandemic has placed on the staff and their families they continue to work hard and are dedicated in the services they provide. I commend them all for the job they do every day.”

County Legislature Chair Rochelle Stein echoed his sentiments.

“It has been six months and we are just really starting to get into our COVID experience of what we’re going to be living in for probably the next year to year and a half,” she said. “Thank you for your leadership. Thank you for the genuine and sincere care that your staff has demonstrated to our community. It is … appreciated by all of us here at the county because it is tremendous the pressure and the stress that is on every single person in the community and your staff.”

Commitee Passes Several Resolutions

In other developments, the committee approved several resolutions (to be forwarded to the full legislature) submitted by Mental Health Services Director Lynda Battaglia and Public Health Director Paul Pettit.

On the mental health side:

• A contract with Jessica Kurzdorfer of Scottsville to provide additional psychiatric nurse practitioner hours at a rate of $95 per hour from Oct. 19 through Dec. 31. The pact calls for a maximum of 300 hours in that time period.

• A contract with Spectrum Health & Human Services in Orchard Park for crisis after-hours services from Nov. 1 through Dec. 31 at a cost not to exceed $12,534. Battaglia said the number of cases has increased considerably since April.

• A renewal of a contract with Consilium Staffing of Irving, Texas, for psychiatry services at the same cost as what already has been budgeted for 2020 and 2021.

On the health department side:

• An agreement with FairBridge Inn & Suites on Federal Drive, Batavia, to provide temporary lodging for both COVID-19 isolation and quarantine of individuals who are unable to stay in their homes and have a home in which to sequester themselves. The contract, to run through Aug. 26, 2021, calls for a rate of $40 per night if the stay is at least seven days or a rate of $50 per night if the stay is less than seven days. Costs are covered by the county.

• Acceptance of a $23,130 from the state Department of Health to support the county’s Children and Youth with Special Health Care Needs Program. The grant period is Oct. 1, 2020 through March 31, 2021.

• Contracting with Melissa Caputi of Batavia, an occupational therapist, to provide addition special education itinerant teacher services, classroom services and evaluator services in the Preschool Supportive Health Services Program retroactively for the period of Aug. 15, 2020 through June 30, 2021. The pay rate is established by New York State, with 59.5 percent of the service costs qualifying for state reimbursement, less any Medicaid payment on Medicaid-eligible children.

The engine of an airplane that went down in a swampy and wooded area off of Boyce Road in Corfu was recovered today after being dug out from under more than 10 feet of mud, Sheriff William Sheron said this afternoon.

"One of the biggest problems we've had," Sheron said, "is water going back into the hole. It's a very high water table right there."

The search for pieces of the airplane, which disintegrated on impact, Sheron said, is complete and the parts are being shipped to Nashville for further investigation by the National Transportation Safety Board.

The search for human remains continues. Mud has been removed from the crash site, Sheron said, and crews will sift through it in an attempt to recover more remains of the deceased. That process will go through at least all of tomorrow and perhaps into Wednesday.

Attorneys Steve Barnes and Elizabeth Barnes died in the crash at about noon Friday when the 2009 SOCATA TBM-850 fell from the sky as it passed over Genesee County.

The cause of the crash remains undetermined. A few minutes before the plane veered off course and started a rapid descent, the pilot, Steve Barnes, told an air traffic controller "everything is fine."

The plane does not have what is commonly referred to as a "black box" but some flight data is recorded on the plane. Sheron said the recording disk is about the size of a SIM* card (like you have in your mobile phone) and it has not been located.

More personal items of the victims were recovered today. Sheron said the ID of one victim has been recovered and other items have been recovered that were personal to the individuals.

"My team is doing a very, very thorough job on collecting human remains," said Coroner Jeff McIntyre. 

Today, he said, the team dug as far as the mini-excavator would go, McIntyre said. By that point, no other items related to the crash were being found so, he said, he's confident they've dug down as far as needed to recover any human remains.

The human remains are being sent to the Monroe County Medical Examiner's Office for examination and DNA confirmation of the victim's identities.

*The acronym stands for subscriber identity module, or subscriber identification module.

Previously:

• Small airplane out of Buffalo crashes in swampy area off Boyce Road in Corfu
• Investigation continues into cause of plane crash in Corfu
• Coroner's Office begins process of recovering remains from crash site
• Jacobs, Higgins call on NTSB to send investigators to crash site in Corfu
• Video: Press conference near site of Friday's plane crash in Corfu

Press release:

As of 2 p.m. 

• Genesee County received nine new positive cases of COVID-19.
  • The new positive cases reside in Alabama, Elba, Le Roy and Oakfield.
  • Three of the individuals are between 0-20, two individuals are in their 20s, one individual is in their 40s, and three individuals are in their 50s.
  • Seven individuals were not on mandatory quarantine prior to testing positive.
  • Four of the previous positive individuals have recovered and have been released from isolation.
  • Eight new individuals are on precautionary quarantine due to travel from restricted states. 
  • One of the positive individuals is hospitalized.
  • One of the new positive cases is a student at Elba High School. This case was identified in the press release Friday evening. If you were not notified you are not considered a close contact.

• Orleans County received zero new positive cases of COVID-19.
  • Five of the previous positive individuals have recovered and have been released from isolation.
  • Eleven new individuals are on precautionary quarantine due to travel from restricted states.

Montell L. Cunningham, 27, of State Street, Batavia, is charged with second-degree strangulation, second-degree burglary and second-degree harassment. Cunningham was arrested at 7:22 p.m. on Sept. 29 after an investigation into a domestic incident that occurred on Sept. 13 on Tracy Avenue in Batavia. After arraignment in Batavia City Court, the defendant was put in jail on $2,000 cash bail, $4,000 bond, or $8,000 partially secured bond. A stay away order of protection was issued for the victim. Cunningham is due back in city court on Oct. 29. The case was handled by Batavia Police Officer John Gombos, assisted by Officer Christopher Lindsay.

Joshua K. Williams, 29, of McKinley Avenue, Batavia, is charged with: endangering the welfare of a child; criminal obstruction of breathing; and third-degree assault -- all Class A misdemeanors. He was arrested Sept. 23 on a warrant out of Batavia City Court. It was issued after an investigation into a domestic incident on McKinley Avenue on Oct. 7 of last year. He was arraigned in Batavia City Court with bail set by Judge Durin Rogers of one buck. Williams is due back in court on Oct. 28. The case was handled by Batavia Police Officer Christopher Lindsay.

Joshua K. McKinley, 29, of McKinley Avenue, Batavia, was arrested at 9:30 a.m. on Sept. 23 on a bench warrant out of Batavia City Court. It was issued after McKinley allegedly failed to participate in a court-ordered program. He was arraigned in city court and put in jail with bail set by Judge Durin Rogers of one buck. He is due back in court on Oct. 28.

Danielle E. Cummings, 42, of Batavia Oakfield Townline Road, Batavia, is charged with: aggravated unlicensed operation in the second degree; unlicensed operator; following too closely; and leaving the scene of a property damage accident. Cummings was arrested at 3:25 p.m. on Aug. 4 on Park Road in Batavia. The arrest was made after an investigation into a hit and run motor-vehicle accident on Park Road. She is due in Batavia City Court on Dec. 30. The case was handled by Batavia Police Officer Sean Wilson, assisted by Samuel Freeman.

Robert Scott Douglas, 40, no address provided, is charged with third-degree grand larceny. He is currently incarcerated at the Wyoming Correctional Facility. He was arraigned via Skype in Genesee County Court and ordered held on $100 bail. The warrant for his arrest stemmed from a grand larceny investigation by Batavia Police Officer Christopher Lindsay in February that resulted in a Grand Jury indictment. The case was handled by Batavia Police Sgt. Dan Coffey.

Rae Charlene Cook, 31, of Liberty Street, Batavia, is charged with second-degree criminal contempt. Cook was arrested at 5:20 p.m. on Sept. 30 when Batavia Police allegedly found her in violation of an order of protection while she was being taken into custody on a previous case. She was arraigned in Batavia City Court and is due back there on Oct. 14. The case was handled by Batavia Police Officer Mitchell Cowen, assisted by Officer John Gombos.

Rae Charlene Cook, 31, of Liberty Street, Batavia, is charged with first-degree criminal contempt. At 5:22 p.m. on Sept. 30, Cook was arrested after an investigation into a domestic incident that occurred on Liberty Street at 4:43 p.m. Sept. 28. It is alleged that Cook violated an order of protection by having physical contact with the protected party. She was arraigned in Batavia City Court and released under supervision of Genesee Justice. Cook is due back in court on Oct. 14. The case was handled by Batavia Police Officer John Gombos, assisted by Officer Christopher Lindsay.

Urban J. Lawson, 55, of West Main Street, is charged with second-degree harassment -- physical contact. At 9:26 a.m. on Sept. 26, Lawson was arrested because of an incident that occurred Sept. 22 on West Main Street in which he allegedly subjected a person to unwanted physical contact. He is due in Batavia City Court on Jan. 5. The case was handled by Batavia Police Officer Miah Stevens.

Lynn A. Perry, 53, of Halfmoon, no address provided, was arrested at 12:10 a.m. on Oct. 2 by troopers out of SP Batavia for driving while intoxicated and other vehicle and traffic infractions. Troopers were dispatched to a collision State Route 63 in the Town of Pavilion. Further investigation revealed a 2013 Audi was parked on the shoulder of State Route 63 and was struck by a 2019 Chevy operated by Perry. During the investigation, an odor of alcoholic beverage was allegedly present on Perry. Perry was placed under arrest after failing multiple SFSTs and transported to SP Batavia for processing. According to SP Batavia's report, Perry recorded a .11 BAC. She was issued traffic tickets returnable to the Town of Pavilion court for later this month.

Matthew J. Reed, 36, no permanent address, was arrested at 1 p.m. Oct. 20 on a bench warrant out of Batavia City Court for allegedly failing to appear for a prior court date. He is due to return to court Oct. 20. The case was handled by Batavia Police Officer Adam Tucker.

The Genesee County Coroner's Office has begun the process of recovering human remains from Friday's airplane crash site near Route 33 and Boyce Road in Corfu, according to Coroner Jeff McIntyre.

McIntyre said it will be a long process.

"I am unsure as to how long this will take, as the plane buried itself fairly deep in mud," McIntyre said. "My office arrived on the scene yesterday at 2 p.m. along with an aircraft recovery and salvage company contracted by the NTSB. We still have not found remains." 

There are three coroners from Genesee County at the crash site along with the chief coroner from Orleans County, a forensic anthropologist from Wyoming County, along with volunteers from East Pembroke and Corfu fire departments, and staff from the Genesee County Emergency Management Office and the Genesee County Sheriff's Office.

"My thoughts and prayers go to the Barnes family during this tragic time," McIntyre said.

Previously:

• Small airplane out of Buffalo crashes in swampy area off Boyce Road in Corfu
• Investigation continues into cause of plane crash in Corfu

When Mary Doktor heard the sound of an airplane clearly in distress passing over her house on Boyce Road yesterday just before noon, she looked up and saw a small plane passing overhead.

She knew it was too low to the ground and the engine was sputtering, making a strange "winding" sound.

"I knew it was going down and I thought, 'Thank God, he's not hitting my house,' " Doktor said. "That's what I thought. It was scary ... .  Poor guy."

The plane, she said, was still relevantly level with the ground and the nose was not pointed down, she said.

She ran into her house to call 9-1-1 and then heard a boom.

"I ran back out and jumped in my car," she said. "I was scared at that point that somebody else's house was hit. I never even called 9-1-1."

The crash site was about a mile into the woods from Boyce Road. It wasn't possible for Doktor to get to the crash site but she could smell fuel in the air. There was no fireball, just a small plume of smoke rising in the air.

Steve Barnes,  of Cellino and Barnes, and his niece Elizabeth Barnes apparently died in the crash, though the Sheriff's Office has not yet officially released the names of the victims.

Barnes was flying a 2009 SOCATA 700N, commonly referred to by aviators as a TBM-850, with the tail number N965DM, from Manchester, N.H., to Buffalo. Barnes had been in radio contact with Boston Center but apparently lost radio contact with air controllers there and a short time later made contact with air traffic control in Buffalo.

Once contact was established, a controller informed him to maintain 8,000 feet and asked him if everything is fine. "Yes, sir," Barnes responded. "Everything is fine."

A couple of minutes later, radar shows his plan veering north. The air traffic controller says, "965 Delta Mike, stop your descent, level your wings, maintain your altitude." 

Twice more the controller tells Barnes to stop his descent. There is no response.

"965 Delta Mike, how do you hear?" The controller asks.

Within seconds, the plane disappears from radar.

"Radar contact loss," the controller says.

This afternoon, Sheriff William Sheron there was a change in plans for investigators from the National Transportation Safety Board to visit the crash site. The FAA is conducting the on-site investigation. The debris will be shipped to Nashville where it will be examined by the NTSB and the manufacturer.

TOP Photo: Genesee County Emergency Management vehicles parked this morning on land off of Route 33 near the crash site in Corfu.

John (last name withheld) is a 50-year-old long distance truck driver who has been out of work for some time due to a 20-year addiction to alcohol.

He’s also someone who has found renewed hope and strength toward living the remainder of his days in sobriety through his participation in recovery programs offered by Genesee/Orleans Council on Alcoholism and Substance Abuse.

Originally from Corning and most recently a resident of Saratoga Springs, John has found himself in the Batavia area and, as a result, things are looking up for him for the first time in decades.

“I have had a problem with alcohol for my whole life,” he said while taking part in a special game day and potluck dinner recently at The Recovery Station, GCASA’s social gathering place on Clinton Street Road.

John said he was taking too much time off work “because all I really wanted to do was sit around and drink all day.”

He was able to gather the wherewithal to get into a 28-day program and was referred to a local residential facility to continue the recovery process.

He Hasn't Had a Drink in Six Months

“They referred me for a little bit of aftercare, and I’m glad that I did it,” he said. “It was the best thing that I did in my life because I haven’t had a drink in six months. That’s the longest that I’ve been without a drink in probably for 20 years.”

John said that the counselors at the residence, which houses several people in recovery, helped him tremendously.

“I’m the type of person that likes to isolate a lot and everybody over there is really open and they make me feel very comfortable. I feel that I can talk to them about any mood that I am in or anything that I am feeling throughout the day,” he explained.

He then mentioned the importance of The Recovery Station in his efforts to remain sober.

“This place has been a godsend,” he said. “You can come here and work out as they’ve invested in exercise equipment and they have many different activities throughout the week if you look at the calendar.”

John said the certified peer recovery advocates at The Recovery Station are “good listeners who have helped me considerably.”

Social Gathering Place Fills a Gap

“From what I hear because I’m not from here, this area needed a place like this, and I think that everything that GCASA is doing for this city as far as recovery goes is wonderful,” he said. “Really, I can’t give this place enough accolades.”

The Recovery Station is meeting the need for him to treat “mind, body and spirit,” John said.

“I had the mental support and counseling support, but I always wanted to have a place to come and play games and work out. It has made a huge difference thus far,” he said.

John’s downward spiral with alcohol started when he was 13 years old and hanging out with some older boys.

“It was peer pressure from the bigger kids. They said that if I would carry their beer to the campsite – we used to go camping in the woods – then they would let me drink with them,” he recalled. “That’s what got me started but what kept me drinking was that I always had a self-esteem problem. I got picked on a lot when I was a kid as I had buckteeth and was kind of skinny.”

He said that when he “found alcohol, it took that all away.”

“It takes the inhibitions away. It makes you fit in. You don’t really care what other people say about you. It just makes you feel like you’re on top of the world. That’s what kept me drunk my whole life,” he shared.

Alcohol Catches Up to You over Time

In time, the effect of alcoholism reared its ugly head.

“As you get older, your body starts to wear down and it can’t process (the alcohol) anymore and it starts to affect your health,” he said. “For me, when I start to drink in excess, it makes me very unmotivated. I’ve never been really fired from a job, but I always have quit because I didn’t want to go to work or I didn’t show up to work.”

John said he realized that he was traveling down the wrong road.

“At my last job, I knew that drinking and driving don’t mix but also I didn’t have any desire or energy to go to work because the alcohol takes all of your energy away and makes you not care about anything,” he said.

Divorced with a son, John said alcoholism didn’t cause the marital split, but admits it didn’t make things easier. Still, he is grateful for having a relationship with his son and says his self-esteem and health are improving since he stopped drinking.

However, he is aware that the battle to overcome the disease is far from over.

Support is a Key to Sobriety

“It’s a struggle if I don’t have support around me,” he said. “My whole life, and I don’t know if it’s a man thing or an ego thing, but I’ve always had a hard time accepting help from other people. I’ve always wanted to do everything on my own.”

John said he’s made a conscious effort to accept help from others and to get involved in social activities.

“That’s what has kept me from wanting to drink again,” he said.

He also spoke about how alcohol triggered the depression that has buffeted him.

“Depression is a side effect of alcoholism, for sure. A lot of people use alcohol to stop their depression, which helps for a little while,” he offered. “But then, as you get into the disease and you start to rely on it, it compounds the depression and makes it worse than it was before. It absolutely turns on you. Then the depression doubles and triples.”

John said he’s working through some issues and seeking to develop a support system and a sponsor – with the goal of being in a position to help others.

“I’m making good progress at that. I just don’t have a complete plan in place to be able to help somebody else right now but I can see that coming in the near future,” he said. “I’ve been doing a really good job about taking advice. People say the only way you can keep your sobriety is by giving it back to others and helping others. I do see that as being my long term solution to keeping my sobriety.”

Disclosure: Story by Mike Pettinella, GCASA publicist.