crime

A trial that Judge Charles Zambito expected to last four days stretched into a fifth day today with two-and-a-half hours of closing arguments by the two attorneys before the jury was given a chance to deliberate.

Deliberations didn't last long and David K. Atkinson was convicted of criminal sexual act in the first degree.

Atkinson was on trial for forcing a woman he was living with into performing oral sex on him.

It was an act he recorded live and streamed for a man living in Darien whom he apparently suspected of getting involved with the woman. This was apparently supposed to show the Darien man that the woman was still with Atkinson and staying with him.

Jamie Walsh, an attorney with the Public Defender's Office, represented Atkinson and argued that the sexual act was entirely consensual and that Atkinson and the woman had been cuddling before she agreed to perform the act and that she took her shirt off.

The incident started after Atkinson found text messages on the woman's phone between the woman and the man in Darien. This act was supposedly "makeup sex."

There was disagreement between the defense and the prosecution as to how a mobile phone came to be destroyed by a clawhammer and how Atkinson's guitar came to be used as a weapon against the television set in the residence.

Assistant District Attorney Robert Zickl said there was nothing about the event that suggested it was consensual, that the woman felt threatened and forced to perform the act. He said although the video is dark, the woman clearly still had her shirt on, and the language of Atkinson hardly fits his definition of "romantic." Besides, Zickl noted, it seemed odd that a man who claimed he had just been cuddling with his woman and was now getting a consensual and romantic sexual favor, still had his boots on and his pants buckled.

A 38-year-old Central Avenue man charged with second-degree assault declined a plea offer this afternoon in Genesee County Court.

Jason E. Carpenter opted to take his case to trial, according to his attorney, Jerry Ader, and it was put on the court docket for the week of Nov. 13.

He was arrested in March following an investigation by City of Batavia Police Department into a fight involving multiple persons at the corner of Liberty and Sumner streets at 12:10 a.m. on Feb. 26. Carpenter is accused of punching another person in the eye, causing multiple facial fractures.

Carpenter is charged with second-degree assault, a Class D violent felony, and was subsequently indicted for the crime by the Grand Jury. The indictment alleges that with intent to cause serious physical injury to another person, he caused such injury to a person, on Feb. 26 on Liberty Street.

If found guilty on the charge, Carpenter faces up to seven years in state prison.

Under a plea deal offered by District Attorney Lawrence Friedman, the second-degree assault charge would be amended to attempted assault, a nonviolent Class E felony, with a prison sentence range of one-and-a-third to four years, which the judge would determine.

"He's not interested in the plea -- we'd like to schedule this for trial," Ader told Judge Charles Zambito.

Carpenter, a somewhat burly, bearded strawberry blonde who wore khakis, a plaid shirt in earth tones, and clutched a baseball cap in his left hand, did not speak in court.

   Jeremy Armstrong

A man charged with attempted murder accepted a plea deal in County Court today that guarantees a 15-year prison term.

Jeremy R. "Boog" Armstrong, 27, faced a six-account indictment for the shooting of a victim on Jackson Street, Batavia, on Dec. 2. Today was his plea cut-off date and if the case had gone to trial and he was convicted, the maximum available sentence could have locked him away for 37 years.

Armstrong hesitated when first asked by Judge Charles Zambito if he was ready to agree to the terms of the plea. His attorney asked for a recess to confer with his client.

Because there was also a jury trial scheduled for the morning, the recess lasted two-and-half-hours while the attorneys in that case delivered their closing statements.

The plea deal satisfied two indictments, with the one that included the attempted murder charge being reduced to a lesser included offense under count two of attempted assault in the first degree. The second indictment included a count from a separate incident of criminal possession of a controlled substance in the third degree.

When Zambito read the supporting circumstances for attempted assault, his attorney, Mark Foti, objected to "knowingly caused serious physical injury," and with the suggestion of District Attorney Lawrence Friedman, the language was changed to "intent to cause serious physical injury."

Again, Armstrong Hesitated, but after conferring with Foti entered his guilty plea.

He didn't hesitate when pleading guilty to the drug dealing charge.

Friedman said the agreement to nine years for criminal possession and the 15 years for attempted assault were "no more and no less," meaning Armstrong agreed to exactly that time in prison. The sentences would be served concurrently. His term of parole will be decided at the time of his sentence but will be between two-and-a-half and five years.

Sentencing is scheduled for 1:30 p.m., Oct. 6.

Kelly Leigh Stanton, 23, Sparksboro Drive, Camillus, is charged with forgery, 2nd. Stanton allegedly claimed to be her sister during an arrest at 12:18 a.m. on Aug. 5. She is accused of signing her sister's name on a fingerprint card. She was jailed on $15,000 cash bail or $25,000 bond.

Joelle Marie Devincetis, 34, of Weston Road, Rochester, is charged with aggravated unlicensed operation, 3rd, and inadequate plate lamp. Devincetis was arrested on a warrant out of Town of Stafford Court and jailed on $200 cash bail or $2,500 bond.

A 17-year-old resident of Basom has been indicted on two counts of unlawful surveillance in the second degree. The youth is accused of using a recording device to surreptitiously view, broadcast or record, under the clothing being worn by another person, showing the sexual or other intimate parts of the person.

He's also accused in the second count of surreptitiously using a camera to record or view a person in a location where the person expected privacy without the person's consent. The first count stems from an incident reported Jan. 31 and the second count from an incident reported June 7, both in the Town of Oakfield.

Rae C. Cook, 28, of Ellicott Street, Batavia, is charged with harassment, 2nd. Cook is accused of punching and kicking a roommate in the face during an argument at midnight, Monday. 

Passiona C. McConnell, 39, of Bank Street, Batavia, is charged with curfew violation. McConnell is accused of allowing her two juvenile children to violate the Batavia Municipal Code curfew.

Minnie M. Henry, 29, no permanent address, Batavia, is charged with criminal mischief and harassment, 2nd. Henry was arrested on a warrant and detained in jail.

A 17-year-old resident of Main Road, Le Roy, is charged with trespassing. Deputies responded to a complaint of several individuals trespassing on property at 7875 E. Main Road, Le Roy. The youth was identified as an alleged trespasser, arrested and issued an appearance ticket.

     File Photo: Scott Doll

An attempt by Scott F. Doll to get his 2010 murder conviction overturned has hit a final state-level roadblock, with New York's Court of Appeals turning down a request for either a hearing or a new trial based on Doll's lack of legal right to seek the appeal.

An attorney for Doll, Timothy Murphy, argued in January 2016, before Interim County Court Judge Micheal Pietruszka, that his client should get a new trial because of what he believed was a mishandling of fingernail scrapings from the murder victim, Joseph Benaquist, and the possibility of third-party blood DNA on one of the boots of Benaquist.

Pietruszka denied the appeal and Murphy appealed to the Fourth Department of the New York Court of Appeals and a judge there ruled that the department wouldn't hear the appeal or grant a new trial.

Today, a judge with the state's Court of Appeals issued a ruling that said Doll was asking for an appeal on issues that were not appealable. 

For previous Scott Doll coverage, click here.

A caller in the area reports seeing a person with a shopping cart full of merchandise who walked from Walmart to Pawn King.

The caller suspects the items were stolen from Walmart.

A trooper is responding.

UPDATE 3:45 p.m.: When the trooper pulled up, the subjects left Pawn King and were last seen walking toward Office Max. They left the merchandise on the counter at Pawn King.

The Attica Police Department initiated an investigation into a violation of an order of protection between Juan A. Roman, 39, of Bergen, and a female victim.

A complete stay away order of protection had been issued July 21 by the City of Batavia Court from previous charges of unlawful imprisonment in the first degree, assault in the third degree and criminal obstruction of breathing or blood circulation between the defendant and the victim.

      Juan A. Roman

Roman was charged Aug. 14 with criminal contempt in the first degree – telephone communication, and criminal contempt in the first degree – prior conviction within five years.

An arrest warrant was obtained and Roman was found and taken into custody without incident with the assistance of the Genesee County Sheriff’s Office. He was arraigned in Wyoming County Court and put in Wyoming County Jail on no bail.

He was in Attica Village Court Monday where he was put back in jail on no bail due to several previous felony convictions, which include:

    • Sept. 5, 2008 – Charged with driving while intoxicated, ticketed with unsafe backing, unlicensed operation of a motor vehicle, moving from lane unsafely, and consumption of alcohol in the vehicle;

    • Feb. 4, 2009 – Charged with unlawful imprisonment in the first degree, assault in the third degree and petit larceny;

    • March 3, 2011 – Roman accused of dealing cocaine, allegedly selling a quantity of the drug to an undercover agent in Batavia. He was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree;

    • Aug. 30, 2013 – Charged with harassment in the second degree and unlawful possession of marijuana;

    • Jan. 8, 2014 – Charged with harassment in the second degree, three counts of endangering the welfare of a child and criminal contempt in the first degree;

    • July 17, 2014 – Charged with three counts of criminal contempt in the second degree;

    • Sept. 9, 2014 – Charged with criminal contempt – violating a stay away order of protection; and

    • July 24 – Charged with promoting prison contraband.

Billy Brown Sr., 34, of Walnut Street, Batavia, is charged with two counts of harassment, 1st, criminal contempt, 1st, criminal mischief, 4th, criminal contempt, 2nd, and coercion, 2nd. Brown was charged following a report of a domestic incident at 9:14 p.m. Aug. 14 on Walnut Street. Brown allegedly fled into the swamp area near Walnut and was tracked by Deputy Chris Erion and K-9 Destro. Brown was located and taken into custody without incident. He was jailed without bail.

Brian K. Dyer, 50 of North Street, Batavia, is charged with menacing, 3rd, and harassment, 2nd. At 8:49 p.m. on Aug. 14, Batavia PD responded to a location on North Street for a report of a landlord-tenant dispute. Dyer was arrested for allegedly threatening a tenant with a wood dowel and attempting to strike the tenant with the dowel.

Dashawn A. Suber, 24, of East Main Street, Batavia, was arrested on a warrant for alleged failure to appear for a court appearance.

Katelyn C. Kubala, 28, of Meadow Lane, Attica, was arrested on a warrant for alleged failure to appear for a court appearance. Kubala posted bail and was released.

Kodey R. Mills, 24, of Myrtle Street, Le Roy, is charged with criminal mischief, 4th. Mills is accused of damaging a sign on the side of the road in front of a business on West Main Street, Batavia.

Christopher P. Sullivan, 37, of South Main Street, Batavia, was arrested on a warrant for alleged failure to appear for court. 

Grayson J. Finnin, 21, of Old Buffalo Road, Warsaw, was arrested on a warrant for alleged failure to appear for a court appearance.

Keyanna L. Gibson, 19, of Watson Street, Batavia, is charged with harassment, 2nd, and endangering the welfare of a child. Gibson is accused of scratching another person during a dispute on Maple Street, Batavia. That person is under 17 years of age.

Barbara E. Ferrando, 45, of Summit Street, Batavia, is charged with unlawful possession of marijuana and criminally using drug paraphernalia, 2nd. Ferrando was allegedly found in possession of marijuana and drug paraphernalia at 12:25 p.m. on Aug. 13 at a location on Summit Street, Batavia.

Steffon G. Philip, 31, of Lyell Avenue, Rochester, was arrested on a warrant for alleged failure to appear for court. He was jailed on $5,000 bail.

Maurillio Osorio-Carreno, 33, of South Main Street, Batavia, was arrested on a warrant for alleged failure to appear for court.

Travis A. Weatherbee, 30, of West Main Street, Batavia, was arrested on a warrant for alleged failure to appear in court.

Terry Lee Lamere, 52, of Buffalo Road, Bergen, was arrested on a warrant for alleged failure to appear for court.

Ernest D. Lane, 59, of Ellicott Street, Batavia, is charged with strangulation, 2nd, and aggravated family offense. Lane was allegedly involved in a domestic incident at 1 p.m., Friday. He was jailed without bail.

Lee A. Baxter, 33, of West Main Street Road, Batavia, is charged with criminal contempt, 2nd. Baxter is accused of sending text messages to a person in violation of a court order. He was jailed on $1,000 bail.

Olivia Marie Lyons, 24, of Judge Road, Alabama, is charged with petit larceny. Lyons is accused of shoplifting from Walmart.

A potential plea deal for a man accused of taking a woman's mobile phone and punching a beagle was put on hold in County Court this morning after his attorney expressed reservations about his client's ability to comprehend the court proceedings.

Attorney Micheal Locicero said that based on a recent mental health evaluation and his own conversation with his client this morning, he's concerned that Shawn M. Twardowski is confused by the proposed plea deal.

Assistant District Attorney Robert Zickl objected to a request for a detailed mental health examination.

"There didn't appear to be an issue when the defendant was seeking a judicial diversion," Zickl said. 

After a sidebar with the two attorneys, County Court Judge Charles Zambito said he would like more information from the counselors at the Mental Health Association who examined Twardowski.

Zambito did not grant what's known as a 730 exam, which is a mental health exam aimed at determining a defendant's mental fitness to proceed with a legal case. 

"I want more information, more specifics," Zambito said.

Twardowski, 34, was arrested Jan. 26 following an incident on Bank Street where Twardowski allegedly strangled and punched a beagle and stole a woman's mobile phone, then when police arrived, barricaded himself in a bedroom. He allegedly struggled with officers once they gained access to the room.

A follow-up hearing is scheduled for 10:30 a.m., Sept. 1.

A 33-year-old Le Roy man arrested on Christmas Eve for threatening to kill a neighbor and starting a fire with a blowtorch will spend the next five years in State Prison.

Matthew McCracken, who was babysitting a 2-year-old child at the time of the incident, and previously pled guilty in the case.

He had been charged with attempted criminal mischief, 4th, harassment, 2nd, attempted arson, 2nd, and endangering the welfare of a child, for the incident at 10 1/2 Clay St., Le Roy, the night of Dec. 24.

This is his second felony offense.

A Niagara Falls man who walked into the Key Bank branch in Batavia in December wearing a Batman beanie and walked out with more than $10,000 in cash entered a guilty plea to robbery in the third degree yesterday.

Joel Zsebehazy, 33, an Iraq War vet who has a prior criminal record that includes bank robbery, will be sentenced Sept. 18.

Zsebehazy was arrested in April near Belle Rose, La., after being identified as Batavia's warrant suspect by authorities there.

A car that looks like this one (not actual picture) is missing in Le Roy. It went missing Aug. 9 during the early morning hours.

Le Roy PD is asking the public's assistance in determining its location and possibly who stole it from the East Avenue -- East Main Street area of the village. Anyone with information is asked to call (585) 345-6350.

Edward Joseph Stabell, 23, of Meiser Road, Corfu, is charged with trespass. Stabell is accused of trespassing at a location on Gilmore Road, Pembroke.

Scott Douglas MacPherson, 58, of Transit Road, Pavilion, is charged with DWI, driving with a BAC of .08 or greater, speeding, and insufficient tail lamps. MacPherson was stopped on Lake Street Road, Le Roy, at 9:14 p.m. Sunday by Deputy Ryan DeLong.

The following people were arrested by the Genesee County Sheriff’s Office during the Goo Goo Dolls concert at Darien Lake Performing Arts Center on Sunday:

A 17-year-old of Lincoln Avenue, Dunkirk, is charged with criminal possession of a controlled substance, 7th, and unlawful possession of marijuana after allegedly being found in possession of a controlled substance and marijuana.

Kevin R. Dawidowicz, 41, of Maywood Place, Buffalo, is charged with reckless endangerment, 2nd, after allegedly striking a Darien Lake security officer with his vehicle.

Kevin M. Buisman, 32, of Elmwood Avenue, Tonawanda, is charged with criminal trespass, 3rd, after allegedly entering the venue without a ticket.

Colleen K. O’Donnell, 26, of Warsaw Street, Cheektowaga, is charged with criminal trespass, 3rd, after allegedly entering the venue without a ticket.

Cody Z. Woodhouse, 28, of Robinson Street, Hamilton, Ontario, Canada, is charged with criminal trespass, 3rd, after allegedly entering the venue without a ticket.

Samuel P. McCaslin, 27, of Vahn Street, East Concord, is charged with trespass after allegedly attempting to re-enter the concert venue after being ejected and told not to return.

Kim Diamond was sentenced to four months of intermittent jail time with five years of probation Monday after she pled guilty to grand theft in the third degree in May.

The former United Memorial Medical Center employee admitted to stealing items valued at $170,000 from UMMC and selling them on Ebay. Diamond agreed to pay $30,000 in restitution. According to her attorney, Randolph Meyer, she is receiving mental health treatment and has never been convicted of any crimes.

Meyer said the equipment she took was in areas where they were no longer using it.

“It took them four or five years to notice anything was missing,” Meyer said. “Obviously, their inventory control system lacks a little.”

Lawrence Friedman, the district attorney, said Diamond thought she felt entitled because they were items the hospital was planning to throw out.

“I can assure the court, after extensive meetings with a number of representatives from the hospital, that is certainly not their position,” Friedman said.

She is also accused of possessing equipment from another hospital she worked at in Monroe County, with likewise claims that the items were being thrown out, Friedman said.

“I assume that this court’s sentence will have some impact on what is done there,” Friedman said.

Friedman said it was his recommendation that Diamond should receive straight jail time, but Judge Charles Zambito sentenced her to intermittent jail time.

He said he saw no reason to sentence her to straight jail, and noted Diamond has a young daughter.

“I’m very sorry for what I did do,” Diamond said. “I did do some things wrong and I apologize. I am mortified at myself. I can’t forgive myself.”

For prior coverage, click here. 

Nicholas Edmund Kaiser, 26, of Westbourne Drive, Tonawanda, is charged with felony DWI and felony driving with a BAC of .08 or greater. Kaiser was arrested after arriving at the Genesee County Jail at 1:35 a.m., Sunday, to pick up a friend who had been arrested for DWI earlier in the night. Upon Kaiser's arrive, officers suspected Kaiser of being intoxicated. He submitted to a field sobriety test. 

Jamie Ann Dorazio, 24, of Broad Street, Tonawanda, is charged with DWI, driving with a BAC of .08 or greater and failure to obey police officer. Dorazio was stopped at 11:44 p.m., Saturday, following a traffic stop on Sumner Road, Darien, by Deputy Eric Meyer.

Jeffrey Alexander Cardenas II, 26, of Lake Street, Le Roy, is charged with driving while impaired by drugs and failure to keep right. Cardenas was arrested after Deputy Mathew Clor responded to a complaint of a vehicle off the road on Lake Street Road, Le Roy, at 12:18 a.m., Saturday.

David James Leroy, 25, of Sumner Road, Darien, is charged with obstructing governmental administration, 2nd. Leroy was arrested after deputies and troopers responded to a check-the-welfare call at a location on Sumner Road, Darien. Leroy allegedly interfered with the deputies and troopers.

Ronald D. Ashton III, 24, of Bennett Street, Buffalo, is charged with aggravated unlicensed operation, suspended registration and driving to left on crest/grade curve. Ashton was arrested on a warrant for alleged failure to appear in Town of Bethany Court on charges stemming from 2016.

Kelly Ann Kasper, 47, of Judge Road, Alabama, is charged with criminal contempt, 2nd. Kasper allegedly struck a person who was the protected party in an order of protection.

Teshawn Anthony Lang-Smith, 21, of Dellinger Avenue, Batavia, is charged with criminal mischief, 3rd. Lang-Smith is accused of damaging property at a party at 3:15 a.m., Aug. 30, 2014.

Two older men, one in a red shirt and one in a gray or brown shirt, are reportedly in the parking lot of Flying J in Pembroke selling laptop boxes that contain only newspapers for $100.

Law enforcement is responding.

 

Theodis Hill Jr., 48, of Central Avenue, Batavia, is charged with assault, 2nd, and endangering the welfare of a child. Hill allegedly struck a child with an extension cord, causing an injury. He was jailed without bail.

Jeffery Richard Lefort, 35, of Maxon Road, Attica, is charged with DWI, driving with a BAC of .08 or greater, and drinking alcohol in a motor vehicle. Lefort was located at 7:12 p.m. Tuesday on Ledge Road, Alabama, waiting for a tow truck with a flat tire when Deputy Jeremy McClellan stopped to check on his welfare.

Peter C. Ayala III, 33, of Walnut Street, Batavia, is charged with harassment, 2nd, and endangering the welfare of a child. Ayala was arrested following an investigation into a domestic dispute reported at 10:56 p.m. Tuesday.

Shuronda L. Rogers, 40, of Mohawk Street, Rochester, was arrested for alleged failure to appear. Rogers was located by Monroe County deputies during a traffic stop and turned over to Batavia PD.

Dakota O. Irvin, 25, of Main Road, Attica, was arrested for alleged failure to appear. Irvin allegedly failed to appear on a ticket for aggravated unlicensed operation. Irvin posted bail and was released.

Jon N. Roblee, 41, of Main Street, Batavia, was arrested on a warrant for alleged failure to obey terms of his sentencing on a resisting arrest conviction.