After being among Batavia's wanted for 18 months, Jacquetta Simmons, 30, appeared in court today following her arrest in Rochester last night, to answer to a charge of harassment 2nd.

Simmons, out of jail on $300 bail, asked for an adjournment of her case because on short notice, her attorney, Ann Nichols, could not appear in Batavia today.

The case was docked for May 25. 

In the meantime, Judge Durin Rogers issued an order of protection, which Simmons signed, barring her from any contact with the alleged victim in the harassment case, a 54-year-old woman.

Simmons was allegedly in an altercation of some sort with the woman back in October during a meeting at the YWCA. A couple of weeks later, a warrant was issued for the arrest of Simmons on the harassment charge. The warrant was reported by local and regional media in January.

The former Batavia resident gained international notoriety after punching a 70-year-old Walmart cashier on Christmas Eve, 2011. In August, 2012, Simmons was found guilty of assault in the second degree by a jury and later sentenced to five years in state prison. The sentence was later ruled too harsh by an appeals court and Simmons was resentenced to one year in jail.

Also in City Court today, 54-year-old Darlene M. Callan, charged with arson, 3rd, for allegedly starting a fire inside her home Monday at 189 South Main St., Batavia. Callan is being held on $25,000 bail and her attorney asked for her to be released under supervision given her lack of criminal record and ties to the community. Citing a low score on a bail review worksheet and concerns over recent substance use issues, Rogers declined to reduce the bail.

More than a year after a warrant was first issued for her arrest, Jacquetta Bernadine Simmons, who first made international news after punching a Walmart cashier on Christmas Eve in 2011, is back in custody.

Simmons was picked up by Rochester PD last night and turned over to Batavia PD on a warrant for an alleged incident at a church meeting in Batavia in October, 2014.

The warrant was issued Oct. 20, 2014, but information wasn't released until January. 

Simmons, 30, allegedly made some sort of physical contact with a 54-year-old woman.

She is charged with second-degree harassment.

The meeting reportedly involved church members at a business meeting being held at the YWCA, 301 North St., Batavia.

Simmons was convicted in August 2012 of assaulting a 70-year-old cashier at Walmart and later sentenced to five years in prison, but that sentence was later overturned on appeals and she was given a year in jail. She was also ordered to pay restitution, which became the subject of several court appearances as she appealed the amount and sought modifications to the payment plan.

Simmons, held on $300 bail, is scheduled to appear in City Court at 1 p.m. today to answer to the harassment charge.

The upshot is the same money Simmons had been ordered to pay in February -- $100 a month -- is the same amount she will have to pony up on the 26th of every month, beginning Friday, until the restitution of $2,000 is paid.

Her attorney at the time, Earl Keys, had argued that she was not able to make the payments because she'd just been released from jail for her crime and had been unable to find work.

The judge set another restitution hearing and asked for documentation about her efforts to find employment. There's been no progress as far as Noonan could determine.

Nothing much has changed, only months have passed.

Ann Nichols, who had also been one of the attorneys representing her at trial, was with her today and told the judge she had only met with her client on the matter yesterday, and just today was provided with a list of local places where her client has applied for jobs.

(Simmons is now married but her husband's income won't factor in much. His gross earnings are $793 a month.)

Suozzi has yet to see a penny, as far as Noonan knows.

"This victim is entitled to be paid restitution," Noonan said, "and all we've gotten so far are excuses, missed court appearances, and no restitution."

Nichols said one issue that has delayed matters is an appeal of the Jan. 13 restitution order of $100 monthly by Simmons's parents. That has now been withdrawn, and they "will be able to pay $100 as soon as Friday," the attorney said.

"We are moving toward paying restitution," Nichols said.

It was also noted that a payment of $100 was supposedly made in February, and maybe a second such payment, but no receipts were offered.

Noonan said he has no knowledge of any payments being made, but if the money was indeed received by the County Probation Department there will be a record of it and the sum(s) will be deducted from the total owed.

Simmons went to court last month by herself and had only a piece of notebook paper with some hand-written notes about her work search. Noonan told her she needed detailed, documentation of her employment search and inability to find work in order for him to decide whether to lower the amount of monthly restitution. He set another hearing for this afternoon and told her she could bring an attorney with her, or not, her choice.

Keys, it was noted, has moved to Washington State, where he is working in the State Attorney General's Office.

Noonan lectured her briefly on the need to have a proper financial statement, said that he wants to get restitution payments started in this case, and then gave her until Sept. 16 to get her documents together.

And perhaps show up with an attorney.

What Simmons arrived with in court today was a handwritten statement on a blue-lined piece of notebook paper.

"Ms. Simmons, what we need from you is a sworn statement of income and expenses for you and each person in your household," Noonan said. "We need an itemization of all the things you've done while looking for work, not just your conclusionary statement saying you can't find work."

When her case was called, Simmons ambled to the defense table dressed in faded blue jeans and a white T-shirt holding her piece of paper.

Asked about her attorney, Simmons told Noonan that she was under the impression that Key would be in court with her today, and that she spoke with Key after her Aug. 26 court appearance.

In June, the Buffalo News published a report about Key moving from the Buffalo area. His Web site says his office is located in Buffalo.

So when Simmons said she had spoke with him since August, Noonan expressed some surprise.

"Really?" Noonan said. "I thought he left town before that. Perhaps he kept the same cell phone."

Noonan told Simmons she could appear Sept. 16 with or without an attorney. "It's your choice," he said.

Simmons is under court order to make $100 monthly payments in restitution for $2,000 in medical expenses to Grace Souzzi, whom she punched in the face Christmas Eve 2011 after Souzzi asked for a receipt for items Simmons and her brother had purchased earlier at Walmart.

Because she's not working, Simmons has asked that the amount of monthly payments be reduced.

After the brief hearing, Simmons turned from the bench and walked away, mumbling something under her breath.

Her victim, Grace Suozzi, is entitled to reimbursement on $2,000 in medical expenses, Judge Robert C. Noonan has said. Simmons has been ordered to make monthly payments of $100.

According to statements made by Noonan from the bench today, Simmons is seeking a suspension of restitution payments.

While Simmons appeared in County Court today, she did so without her attorney.

She had written Noonan asking for the hearing, but her attorney, Earl Key, wasn't notified of today's court appearance in time for him to be in Genesee County Court.

Noonan rescheduled the appearance for Sept. 10.

Asked if she was looking for work, Simmons told Noonan she has applied for jobs.

Noonan told her that when she appears Sept. 10, she should have prepared an affidavit on her financial standing and outlining steps she's taken to find work.

For previous coverage of Jacquetta Simmons by The Batavian, click here.

In nearly every respect, the re-sentencing today of Jacquetta Simmons was routine. Matter of fact, perfunctory, even.

Stripped of any discretion in sentencing by the the Appellate Division, Fourth Judicial Department, NYS Supreme Court, when the higher court threw out his previous five-year prison term for Simmons, Judge Robert C. Noonan had little to say in open court before sending Simmons to jail on a one-year term.

The 12-months in county lock-up, likely to be reduced to eight months on good time, was prescribed by the appellate division, which rendered mute in court both of the normally loquacious attorneys for the people and the defense, District Attorney Lawrence Friedman and Buffalo-based private attorney Earl Key.

"The sentence imposed by me previously is obviously the sentence I thought appropriate for this case," Noonan said. "The appellate division has the authority to modify the sentence and has done so. As Mr. Friedman noted, I have no discretion to modify their sentence. Therefore, I sentence you to one year in the Genesee County Jail."

Because the local jail cannot house female inmates, Simmons has been transferred to the Allegany County Jail, one of a half-dozen other jails in neighboring counties that take Genesee County's female inmates.

The county will be billed $85 per day to house Simmons in the Allegany jail, meaning if she serves eight months, county taxpayers will pick up as much as a $20,000 tab for her incarceration.

Simmons, 27-years-old at the time of her crime, was convicted by a jury of peers in August of delivering a roundhouse punch to the face of 70-year-old Grace Suozzi, a Walmart cashier, on Christmas Eve 2011, after arguing with Suozzi about producing a receipt for her prior purchases.

Suozzi has not worked and reportedly rarely goes out of the house since the attack.

Defense attorney Key maintained at trial, and in the appeal, that the punch was accidental and that Simmons was merely pulling her arm away from another store employee as she tried to rush from the store.

The appellate division sided with the jury, with one dissenting vote, even as it decided Noonan's sentence rendered in November was too harsh.

Key and co-counsel Anne Nichols said after court that the justices made the right decision in overturning Noonan's original five-year prison term.

Key said Nichols did extensive research and found no case in the State of New York where a first-time offender who was employed and going to college was given such a harsh sentence on a Class D violent felony conviction.

"There's never been a case that we could find, and the District Attorney's Office sure didn't refute what we said in the paperwork, where anybody has ever gotten five years as a first-time offender," Key said.

Friedman did not want to comment following today's hearing. But after the decision was first announced last week, Friedman seemed to question an appeals process that had little regard for local community standards.

"Having gone through this and seeing the impact this had on Mrs. Suozzi, her family, a lot of people in the community who knew her and cared about her -- all of that is something that is lost in the appeal process," Friedman said. "It's one punch, but more than the physical harm is the emotional harm. It really affected her life as far as her ability to return to work and go out and about. She's a very nice lady and this sentence doesn't do her justice."

In overturning the sentence, Nichols said, the appellate division did apply community standards -- the standards of the entire community of the State of New York.

"That depends what community you're talking about," Nichols said.

"Genesee County," a reporter interjected.

"I think it accurately reflects what more diverse communities are in line with," she continued. "If you look across the state, as we did with the appellate division in getting the stay to begin with, it's very unusual for a first-time offender to receive a sentence of five years incarceration. I did the research myself. I looked at DOCS, and I would say that's almost unheard of. The original result was in line with community standards across the state, for sure."

Asked to respond to the notion that the local Genesee County community is offended by a reduced sentence for a person that viciously attacked an elderly woman who's highly regarded here, Key said the sentence should not be based on who the victim is.

"Should decisions be made based on the victim's character and who the victim is?" Key asked. "So somebody who is less popular in the community, or somebody who is less affluent in the community, then the sentence should have been less, and then because Grace is who she is, then the sentence should be harsher? That's absurd."

Nichols said all of the negative comments about Simmons during the course of this case have come from people who don't even know Simmons.

"Nobody has taken into account what we've been trying to get across from the beginning is that Jacquetta Simmons had absolutely no criminal history," Nichols said. "She worked. She wasn't on public assistance. She had no CPS cases. She is not what everybody in this community has painted her out to be in many comment sections and from the many people I've heard talking in the streets. They don't know who Jacquetta Simmons is and quite frankly they don't care to know who she is."

After the hearing, Simmons was led by a deputy from the court room (top photo) and toward a probable eight months in jail, but outside of court Key made clear the case is not over.

Noonan has awarded more than $2,000 in restitution be paid to Grace Suozzi. Today, Noonan ordered that Simmons begin paying the restitution at a rate of $100 per month beginning in 30 days.

Key said he's going to appeal Noonan's restitution ruling.

"She has to pay restitution for things like high blood-pressure medication and things of that nature," Key said. "For a woman who admittedly never went to the doctor for years prior, one of our arguments is you don't know if she had high-blood pressure before this incident. She wasn't seen by a medical professional, so we definitely plan to appeal the restitution."

The Batavian first broke the story of the Simmons case in 2011. For a complete archive of our coverage, click here.

The court, in a unanimous decision, found that the five-year prison sentence handed down by Judge Robert C. Noonan on Nov. 14, 2012, was "unduly harsh and severe under the circumstances of this case."

District Attorney Lawrence Friedman said he's disappointed in the decision.

"We felt Judge Noonan's sentence was appropriate," Friedman said. "I thought it was well reasoned. It may have happened before, but I don't recall a sentence of his being reversed in his 17 years of being a judge."

The ruling means Simmons, who became a mother to her first child shortly after an appellate judge stayed her sentence in 2012, is saved from serving any further state prison time. The one-year sentence, likely to be reduced to eight months on good behavior, will be served in a county jail.

That's disappointing, Friedman said, but most importantly, the court upheld the jury's conviction of Simmons.

Attorneys for Simmons argued to the court that the jury's verdict flew in the face of the evidence presented at trial. With a dissent from Justice Rose H. Sconiers, the court upheld the jury conviction.

The jury could reasonably conclude, ruled the majority upholding the conviction, that based on the testimony and video evidence presented, that Simmons did intentionally punch Grace Suozzi.

Sconiers wrote in her dissent that she didn't believe the evidence supported that conclusion, but rather the video supported the defense contention that somebody behind Simmons had grabbed her arm and that she swung away causing her to accidentally strike Suozzi.

Friedman said he was surprised by the dissent and found it baffling.

The Batavian has no means to contact attorneys for Simmons on a Saturday for comment.

In the majority on the conviction, and joining Sconiers in reducing the sentence, were justices Henry J. Scudder, John V. Centra, Stephen K. Lindley and Joseph D. Valentino.

The case is remitted to Noonan's court for formal sentencing. No date has been set yet for re-sentencing and Simmons remains free in the meantime.

The sentence reduction is a real disservice to the victim and her family and the community, Friedman said.

"Having gone through this and seeing the impact this had on Mrs. Suozzi, her family, a lot of people in the community who knew her and cared about her -- all of that is something that is lost in the appeal process," Friedman said. "It's one punch, but more than the physical harm is the emotional harm. It really affected her life as far as her ability to return to work and go out and about. She's a very nice lady and this sentence doesn't do her justice."

The Batavian first broke the story of the Simmons case in 2011. For a complete archive of our coverage, click here.

SImmons is the young woman who hit Grace Suozzi, then a 70-year-old cashier at Walmart on Christmas Eve 2011, and was later convicted of felony assault based on the injuries sustained by Suozzi and her age relative to Simmons, who was 26 at the time.

A year later, following a jury trial in Genesee County Court, Simmons was sentenced by Judge Robert C. Noonan to five years in prison and three years probation.

The defense contends that the sentence is harsh and excessive, that the evidence presented at trial doesn't support the finding of the jury, and even if it did, the law used to convict Simmons is unconstitutional.

District Attorney Lawrence Friedman has a differing view of the facts and the law and filed an answering brief.

Friedman said the attorneys will likely make oral arguments before the appellate court sometime in September and a ruling isn't likely before the end of the year.

Meanwhile, Simmons, now a mother, is out of prison with her sentence stayed until a decision is rendered.

Here's a summary of the defense's appeal:

The sentence is harsh and excessive.
The defense contends that under the current justice system, a judge is charged with selecting a sentence that will be best suited for rehabilitation of each defendant.

The judge should consider: 1) the nature of the offense; 2) the community's condemnation of the defendant's conduct; 3) the necessity of protection of the community; 4) the deterrent effect on others; 5) the potential for rehabilitation; and, 6) the defendant's previous record.

The defense leans heavily on the lack of criminal history for Simmons and her record of as a productive member of society, who had a job, an education and a history of volunteering in her community.

The defense contends that what Simmons did Dec. 24, 2011 -- whether it was a punch (as the prosecution maintains), a hit (the defense version) or an accident (the defense's argument at trial) -- it was "out of character" for a young woman admired by those who really know her.

While the prosecution maintained at sentencing and in its answering brief that Simmons has shown no remorse, the defense -- attorneys Earl Key and Anne Nichols -- are adamant in briefs that Simmons truly regrets her actions that busy shopping day in Walmart.

They state that at trial, Simmons admitted that she had opportunities to tone down the conflict at Walmart, but proceeded in a manner that eventually led to a harmful result.

"I still hold no hate or bitterness for Grace," Simmons said at trial. "I wish I had stop(ped) my movements before I pulled away then maybe there would have been no harm to her. I would take back that moment a million times."

The defense notes that the Probation Department, in its pre-sentence report, recommended a community-based (no jail time) sentence for Simmons.

The defense also cites several convictions in New York where defendants convicted of more serious crimes were given no more than five years in prison, or were given harsh sentences that were later reduced by the appellate court.

The verdict went against the weight of the evidence.
The defense has a different version of events and sees the testimony differently than the prosecution.

Whereas the prosecution argued at trial that Simmons planted her foot, swung back her arm and took a round-house punch that knocked Suozzi across the floor and caused facial fractures, the defense argues there is a different narrative that the jury did not fully consider.

The defense says the evidence presented at trial shows that Simmons was attempting to leave the store when Suozzi stepped in front of her and another Walmart employee grabbed the arm of Simmons, causing Simmons to swing it forward, striking Suozzi unintentionally.

According to the defense brief, Suozzi and other witnesses either forgot key facts or changed their testimony from their original statements to police in a manner that exaggerated events (Dylan Phillips, for example, was the only witness who testified that Simmons used the C-word at trial and was 15-20 feet away from the altercation).

On the other hand, according to the defense, Simmon's has remained consistent in her statements from the time of her arrest through her testimony.

"She maintained from day one that someone grabbed her arm from behind as she was pulling away as Ms. Suozzi came out from her register to confront her when she was struck," the defense states in its brief.

The defense contends also that Suozzi overstated the nature of her injuries at trial. The brief says that medical records provided to the jury show that her doctor wrote the month after the incident that her fractures were healed and that doctors' notes state that she said she wasn't taking pain medication (at trial, she said she took prescription pain pills for two weeks before switching to Tylenol).

The defense concludes, "... even in viewing the evidence in a light most favorable to the People, that the verdict of guilt is against the weight of the evidence and should be overturned."

The statute is unconstitutional.
After the basic felony assault charge against Simmons was thrown out because Noonan ruled that the grand jury had not received sufficient evidence that Simmons intended to cause serious physical injury, the prosecution was left with only one felony count to try.

That count is a relatively new law that makes it a felony for a person much younger than a person over 65 to cause injury to an older person.

It's often referred to as an elder abuse law.

The dispute between the defense and the prosecution over the law hangs on an arcane legal term, "strict liability."

Think of getting a speeding ticket: If you are driving in Corfu, going 55 mph in a 35 mph zone, it's no defense that you didn't know the posted speed limit was 35. You were going 55 in a 35 mph zone. You're guilty. Period.

In the Simmons case, the prosecution -- and Noonan agreed -- that Simmons need not have knowledge of her victim's exact age to violate the law. That's strict liability.

The defense contends the Legislature, in passing the law, did not intend strict liability, that in order to violate the law, the defendant would need to have knowledge of the victim's age.

"The grammatical construction," the defense writes, "of the statute couples the culpable mental state with the requirement that the actor cause injury to 'such person' which literally reads as an intent element requiring the defendant to have intended to assault a person age 65 years or older, which thereby requires knowledge of the victim's age."

Also, the legislation was enacted, the brief states, to deal with predatory attacks on seniors.

"The case of Ms. Simmons and Ms. Suozzi is certainly not one of a predatory attack," the defense states.

That statute as written, the defense contends, denies a defendant due process under the Fifth and Fourteenth amendments.

The prosecution answers.
The brief from the District Attorney's office, written by ADAs Will Zickl and Melissa Cianfrini, argues that the defense is wrong on both the law and the facts.

Key to the prosecution's case is what Simmons knew and when she knew it, and that isn't a matter of Suozzi's age, but whether Simmons intended to strike her.

While the defense has portrayed the act of Simmons hitting Suozzi as an accident, the prosecution states that in testimony and evidence, Simmons clearly knew what she was doing and why she did it, and has never shown remorse for her actions.

When Simmons was interviewed by Trooper James Baines the night of Dec. 11, 2011, Simmons waived her Miranda rights. Simmons asked to review the surveillance footage from Walmart.

Baines testified that Simmons then said, "someone grabbed her. She doesn't remember what happened. She just punched."

According to Baines, Simmons knew Suozzi was taken to a hospital, but never asked about her well being.

At trial, under cross-examination, Simmons admitted she was angry when a Walmart cashier asked her for a receipt for a prior purchase.

In a series of questions by Friedman, Simmons was asked about punching Suozzi, with Friedman repeatedly using to the word punch, and Simmons never corrected his use of that word.

At the end of the series of questions:

Q. She was a foot away from you, right in front of you, when you punched her, isn't that what you just said?
A. Yes.

Simmons also testified overhearing a woman in the Walmart parking lot after she and her brother ran out of the store saying, "You can't hit a white woman like that." 

Under questioning from Friedman, Simmons said that contrary to the testimony of Baines, she did ask if Suozzi was hurt.

Q. You asked how she was before he showed you the video?"
A. Yes, I did.
Q. So, before you ever knew you hit her, you asked Trooper Baines how she was, right?
A. Yes.

When it comes to the conviction, the prosecution states, "the testimony of the People's witnesses was essentially harmonious and, together with the video evidence offered by the People, painted a clear picture of the case. The defendant was hostile and increasingly aggressive during the incident, and the vicious punch the defendant administered evinced her intent to cause physical injury to the victim."

As for the constitutional question, the prosecution contends that the trial court ruled correctly that the Legislature intended strict liability under the law and that state of mind about the age of the victim was not necessary to win conviction.

As for the sentence, the prosecution continues to maintain that Simmons has never expressed sincere remorse or any real concern for the injuries inflicted on Grace Suozzi, therefore, the five-year prison sentence should stand.

"Despite the fact that the defendant's behavior would have justified an even greater sentence, the court demonstrated lenity by imposing considerably less than the maximum amount of incarceration available to it."

In response to the prosecution's brief, Nichols filed a response with the court that argues strenuously that Simmons expressed remorse.

"At sentencing," Nichols writes, "Ms. Simmons stood up in an open court and stated, 'I just want to say how truly sorry I am about the incident that happened. I hate that Grace and her family had to endure all the things that they are going through right now."

That's remorse, Nichols said.

"Plantiff-Respondent and the sentencing court have simply chosen to not accept Ms. Simmons' statements of remorse, which is different than Ms. Simmons not showing remorse at all."

It will be up to a group of justices in Rochester to sort through these contradictory views, decide which facts hold the most weight and how the law should be properly applied.

Whatever their decision, the case won't necessarily be over, with an appeal to the state's top appeals court possible.

For previous coverage of the Simmons case, click here.

Simmons was released under a court order signed by Associate Justice Rose Sconiers, Appellent Division, 4th Department. Sconiers ordered the release, on $50,000 bond, pending an appeal by Simmons that the five-year prison sentenced handed down by Judge Robert C. Noonan is overly harsh.

Representatives of Simmons posted the bond for Simmons yesterday and Noonan signed the release order.

Under the terms of Sconiers' order, attorneys for Simmons have until May 31 to "perfect" the appeal -- meaning produce a brief on all the points of law relative to the items under appeal, which includes both the term of her sentence and whether Simmons received a fair trial.

A three-judge panel of the NYS Supreme Court will conduct a hearing on the points of appeal and render a decision at a later date. What happens next for Simmons will depend on the outcome of the appeal.

Simmons was convicted by a jury following a weeklong trial Aug. 24 of second-degree assault under a section of the law that covers an assault by a much younger person hitting and injuring a person 65 or older.

At the time of the Christmas Eve confrontation last year between Simmons and Grace Suozzi, a Walmart cashier, Simmons was 27 and Suozzi was 70.

The 27-year-old Batavia resident was found guilty earlier this year of assaulting 70-year-old Wal Mart employee Grace Suozzi in the store last Christmas Eve.

On Nov. 30, New York Appellate Division Justice Rose Sconiers ordered that Simmons' sentence be stayed pending a hearing on her attorneys' appeal, which argues her sentence of five years in prison is overly harsh considering that Simmons is a first-time offender. This is what made it possible for Simmons' release this afternoon.

Judge Robert C. Noonan signed a release order and she'll be released from custody once it's received by Bedford Hills Correctional Facility where she is incarcerated.