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July 7, 2010 - 4:03pm

Drug dealer, thief and burglar get prison time while suspect mulls options

posted by Billie Owens in batavia, crime, corfu.

Judge Robert C. Noonan sentenced three men to prison Tuesday afternoon and gave an inmate in county jail one more time to consider a plea offer or prepare for trial.

Kirby S. Wall, 33, of Rochester, was convicted of criminal sale of a controlled substance. It was his second felony conviction; the first one was in 1995.

"He has been abusing substances and he desperately needs help," attorney David Morabito told the judge, adding that he disputes the People's contention that Wall told probation workers that he didn't have a drug problem.

"He accepts responsibility," Morabito said.

Wall was arrested in April 2009 for selling crack cocaine and illegal possession of marijuana. He had $1,000 worth of crack on him when arrested and had previously sold crack to two undercover agents, according to law enforcement.

But the judge didn't grant his attorney's request to send Wall to "shock camp," wherein those incarcerated also get substance-abuse treatment.

"Maybe this is a way of paying his debt to society and also get the help he desperately needs," Morabito said.

Instead, Noonan sentenced Wall to the maximum allowable, a determinate sentence of three-and-a-half years in the penitentiary, plus five years of post-release supervision. He has to pay $200 restitution. Noonan also issued two orders of protection, barring Wall from contacting two individuals for 11.5 years.

The next case heard was that of Thomas A. Culver Jr., 31, of 13 Wood St., Batavia, who pled guilty to grand larceny, 4th, his second felony offense. He was one of three people arrested for attempting to cash in checks from a closed account at a local bank.

"He desperately needs help," attorney Marabito said. "He wants to participate in a number of programs he's qualified for, so he can also get credit (toward his sentence)."

Morabito filed a motion to have Culver's guilty plea vacated because of the advice given by his previous attorney.

Noonan refused to vacate the plea, citing an insufficient basis on which to do so, and asked Culver if he had anything to say before sentencing.

Culver said the attorney he had, before Morabito took on the case, "pushed" him into taking a one-and-a-half to three-year plea deal, saying failure to do so would result in "excessive time." That attorney, he said, also told him he had to admit guilt in taking the plea and when he tried to discuss his case, the attorney would repeatedly hang up the phone on him.

Noonan listened and then promptly sentenced Culver to an indeterminate sentence of one-and-a-half to three years in state prision, and authorized him to be enrolled in a substance-abuse treatment program. He was ordered to pay a total of $1,897.35, "to be collected in DOCs (the Department of Corrections)," while in prison.

Also sentenced to prison Tuesday, was Malik I. Ayala, 18, of 44 Walnut St., Batavia, who was convicted of burglary, 3rd.

The conviction stemmed from his role in stealing an MP3 player on March 10 from a 15-year-old in the parking lot of MacArthur Park.

On July 2, he was re-arrested on a petit larceny charge, violating his probation.

Regarding the petit larceny charge, Ayala's attorney, Frederick Rarick, told Judge Noonan that Ayala had gone to Corfu "to line up lawns to mow." He was unsuccessful. Then some young women picked him up and they all went to a liquor store. The women went in first, and he went in afterward.

"My client had no involvement in an attempt to steal liquor," Rarick said, adding that Ayala "has major drug issues. To send him to prison would be wrong. This boy needs some help with drugs. He is a young man with many issues."

Regardless, since his burglary conviction, Ayala missed four or five appointments with the probation department, plus a 1 p.m. drug test yesterday. When he did show up for testing, he reportedly attempted to alter the results, prompting a second test in which he was positive for marijuana.

When given a chance to speak, Ayala told the judge in a rambling statement that he was thankful for the judge's patience and consideration, that he loved everybody, that he wanted to do better and had even tried to join the Army. He got emotional and asked the judge for another chance.

But Noonan was exasperated by Rarick's client.

"You've been a very big frustration for me," Noonan told Ayala, noting that he has tried to help him, his family has tried and so has his probation officer. "There is only one person in this room that can help you and that is you.

"You wouldn't last 10 minutes in the military. I have no alternative but to send you to prison. Your probation is revoked. I'm sentencing you to one-and-a-third to four years in state prison. It's not just the drugs. You can't obey rules. You don't show up for appointments. You don't do what you're told to do."

Ayala hung his head and cried. A half dozen family members and friends appeared very sad, and one woman sobbed. He asked if he could tell his family goodbye. No, like the others, he was taken into custody there and then.

mug_brandon_dodd.jpgWearing orange jail garb, Brandon C. Dodd, 22, was also in court yesterday. He is charged with burglary, 2nd, for allegedly taking part in a home-invasion robbery March 18. He allegedly forced his way into a home on Vine Street wearing a bandanna over his face. The residents allegedly fought back.

Dodd has at least five arrests for various crimes.

As of Tuesday, he had not responded to the district attorney's offer of a guilty plea to a Class D violent felony as a first-time felony offender, which would permit the possibility of probation.

His attorney told Noonan he needs more time to prepare for trial, which is estimated to take four days. The judge set a new trial date for Nov. 8 and set a court time of 10:15 a.m., Sept. 2, as the last opportunity to accept the plea offer. If found guilty at trial, Dodd would face a mandatory prison term.

Dodd returned to jail.

Lincoln DeCoursey
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Judge Noonan sentenced three men to prison and gave a third more time to consider a plea offer? Brandon, I'd give the offer some serious consideration.
Gary Spencer
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Lincoln, Brandon isn't all that smart, he'll probably take this to trial and complain after he goes to state prison.......
Howard B. Owens
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Actually, I've heard Brandon is pretty smart. He just hasn't made great choices.
tracey brewer
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Brandon is extremely intelligent. He needs to lay off substances. His little brothers worship the ground he walks on. He is not making good choices, I agree. He would do anything for his family. If he goes to prison he knows that it wont be a cake walk like it is in GCJ. I'd appreciate you refraining from saying he is not intelligent.
CELESTINE ROTT
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Brandon is a great guy. He makes some dumb choices. He is however extremely intelligent. Let's hope he takes the plea and goes to college to use his brain.
Ryan Scott
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a few thing people seen to look over - one day while walking down washing ton brandon and a few of his other friends jumped me for seven dollars in my pocket. i was scarred trying to stop cars to get help finally after my 140lb body took a beating a mailman stoped shooed them off and i filed a police report. he got probation. - he is a habitual drug ATTIC -for some one to ever stick up or a twenty six year old grown man makes me sick. -you make break the law you go to jail. what about these 16 and 17 that have violent felonies maybe we should give them a second chance. i commend the batavia police for keeping the streets clean god speed. lets hope for justice not probation.
Gabor Deutsch
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At least 5 bad decisions it seems. "Dodd has at least five arrests for various crimes".
paddy horgan
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maybe the time will be a help with the substance problem
Lorie Cook
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Ryan, So sorry you went through that. I can only imagine how scared you were. I read in the daily about a young boy attacked near the Y...the attackers wanted his ipod...how sad. I think people need to wonder if the "good, smart guy" is an act...
Resa P
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First of all, an ATTIC is in the roof of a house, ADDICT however is what Brandon is unfortunately. He is a very intelligent 22 yr old, not 26. Not once has Brandon complained about owning up to what he has done. He knows he has done wrong in the past. I hope he takes the plea bargin and works towards making himself a better person. He has just made some bad choices..def not a bad person.
Lorie Cook
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I am so sick of the phrase "bad choices." Bad choices to me means...I parked somewhere I should not have. I loaned money to someone I should not have. Not I beat someone up for money. That is not a "bad choice". It was a decision to do the wrong thing. To the folks saying he made "bad choices" how would you feel if he and his associates were beating you or someone you cared about?
Jamie Lindsley
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By some of these people's definitions, it would seem even Hitler was not a bad person...just someone who made some bad choices. What a bunch of bs.
Lorie Cook
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LOL, jamie, so true. He is a good person as long as he is not under the influence. So how often is he under the influence? Waiting for his supporters to answer.
Ryan Scott
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habitual offender end of story.

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