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Driver said he looked at GPS prior to rear-end accident

By Howard B. Owens

One person required transportation to a local hospital following a rear-end accident on Route 77 at Route 5, Pembroke, at 10:12 a.m., Tuesday.

The driver whose car rear-ended another said he looked down to check his GPS and didn't have time to stop after looking up and seeing a car stopped in front of him.

No citations were issued.

Michael J. Roeland, 19, of Newark, was southbound on Route 77 when he struck the southbound car driven by Tamibeth P. Campbell, 21, of Watertown.

Roeland had three passengers in his vehicle and Campbell had four passengers.

Harley M. English, 17, a passenger in Campbell's car was taken to UMMC with a complaint of neck pain.

The accident was investigated by Deputy Tim Wescott.

(Initial Report)

Seven drug-related arrests, 58 underage drinking citations at Vans Warped Tour

By Howard B. Owens

The following arrested were made by the Sheriff's Office during the Vans Warped Tour at Darien Lake Performing Arts Center on Tuesday.

Jeffrey P. Rolison, 18, of Chapel Street, Mt. Morris, is charged with unlawful possession of marijuana for allegedly possessing a quantity of marijuana.

Jason M. Fobare, 17, of Hardwood Lane, Cicero, is charged with unlawful possession of marijuana for allegedly possessing a quantity of marijuana.

Andrew G. Trask, 21, of Taurus Avenue, Derby, is charged with unlawful possession of marijuana for allegedly possessing a quantity of marijuana.

Andrew C. McClure, 20, of Patriot Court, Derby, is charged with unlawful possession of marijuana for allegedly possessing a quantity of marijuana.

Taylor L. Cucinelli, 18, of Manitou Road, Spencerport, is charged criminal use of drug paraphernalia, 2nd, criminal possession of a controlled substance, 7th, and unlawful possession of marijuana for allegedly possessing a quantity of hydrocodone, marijuana and drug paraphernalia.

Eric J. Saurini, 17, of Maida Drive, Spencerport, is charged criminal use of drug paraphernalia, 2nd, criminal possession of a controlled substance, 7th, and unlawful possession of marijuana for allegedly possessing a quantity of hydrocodone and marijuana.

Mitchell, A. Schroeder, 16, of Timber Ridge Drive, Spencerport, is charged criminal use of drug paraphernalia, 2nd, criminal possession of a controlled substance, 7th, unlawful possession of marijuana and possession of alcohol with intent to consume under age 21, for allegedly possessing a quantity of hydrocodone, marijuana, alcohol and drug paraphernalia.

The Sherfiff's Office issued the following 58 people citations for allegedly possession and/or consumption of alcohol under age 21.

Cameron R. Miller, 20, of 74th Street, Niagara Falls
Cassandra R. Hefner, 17, of Peppermint Road, Lancaster
Jennifer M. Merkling, 17, of Lou-Ann Drive, Depew
Marissa A. Merkling, 16, of Lou-Ann, Depew
Kathryn M. Solecki, 18, of Walden Terrace, Buffalo
Ellen R. Pieroni, 17, of Wheaton Drive, Cheektowaga
(Name redacted upon request), 19, of McNaughton Avenue, Buffalo
Salvatore Ferrugia Jr., 20, of Wood Street, Lynbrook
Daniel C. Dapice, 18, of William Street, Hornell
Jacob E. Mazzatti, 17, of Crosby Street, Hornell
Justin R. Kelleher, 18, of Collier Street, Hornell
Rebecca K. Lovering, 17, of Scottsville Road, Scottsville
Brianna G. Boehmer, 17, of Chester Avenue, Rochester
Samantha P. Cyganik, 17, of Gallup Road, Spencerport
Kathryn M. Springsteen, 17, of Bissell Road, Bergen
Julia G. Colt, 19, of Boynton Street, West Seneca  
Daniel Gabamonte, 20, of Zoerb Avenue, Cheektowaga
Michael P. Musilli, 20, of South Creek Drive, Cheektowaga
Matthew J. Anderson, 20, of Versailles Plank Road, Versailles
Catherine A. Dickerson, 20, of Raspberry Patch Drive, Rochester 
Benjamin X. Luong, 20, of Burritt Road, Hilton
Joseph A. Ciuto, 20, of Country Meadow Way, Hilton
Jamie L. Talbot, 20, Wheelock Street, Canajoharie
Vianna M. Lawrence, 20, of Holland Avenue, Albany
Brandon J. Fox, 20, of Mead Run Road, Youngsville, Pennsylvania
Colin M. Josephson, 19, of McGraw Drive, Youngsville, Pennsylvania
Brooke E. VanHouton, 19, of Stilson Hill Road, Pittsford, Pennsylvania
Alexander J. Dunn, 19, of College Street, Youngsville, Pennsylvania
Leslie A. Bailey, 20, of East Main Street, Youngsville, Pennsylvania
Rebekah C. Warda, 19, of Emerson Drive, Amherst
Benjamin B. Warda, 16, of Emerson Drive, Amherst
Steven A. Delvecchio, 18, of Hurstbourne Road, Rochester
John T. Gasser, 19, of Pemberton Road, Rochester
Michael D. Petote, 18, of Pinoak Lane, Rochester
Kiara A. Wiltsie, 20, of Cavan Cove, Oswego
Danielle E. Pauldine, 20, of 5th Avenue, Oswego
Christopher J. Wilson, 19, of Strathcona Drive, Catherines, Ontario, Canada
Kyle E. Potter, 19, of Rochelle Drive, Street, Catherines, Ontario, Canada
Rosario S. Tocco, 19, of Mile Creek Road, Niagara On The Lake, Ontario, Canada 
Jennifer E. Vinson, 18, of Collier Road, Thorold, Ontario, Canada
Clarissa M. Metz, 19, of Bunting Road, Catherines, Ontario, Canada
Molly E. Gibson, 17, of Tonawanda Creek Road, Clarence
Robin C. Graziano, 16, of Calvin Drive, Buffalo
(Name redacted upon request), 17, of Hunters Lane, Williamsville
Robert P. Burke, 20, of Jamestown Street, Angola
Erin E. Redfield, 20, of Brescia Path, Clay
Parker M. ?, 20, of Lisbon Avenue, Buffalo
Matthew S. Fancher, 17, of Locomotive Lane, Cicero
Joshua A. Fancher, 19, of Locomotive Lane, Cicero
Kevin W. Lefurgy, 19, of West Leigh Road, Cicero
Morgan P. Cutter, 20, of James Street, Dryden
Kayla E. Ackerman, 18, of W. 10th Street, Elmira Heights
Brittany M. Button, 20, of Jefferson Street, Dansville
Daniel J. Alexander, 19, of Reeds Corners Road, Elmira Heights
Emily M. Brill,18, of Robin Wood, Elmira Heights
Kevin Oneal, 19, of East Avenue, Olean
Edward M. Seigler, 18, of Vicksburg Avenue, Tonawanda
James A. Coppola, 18, of Curtis Parkway, Tonawanda

Line arcing, power outage reported on Ham Road, Alabama

By Howard B. Owens

A power line is reported arcing in the trees on Ham Road between Gorton and Knowlesville roads, and there are reportedly power outages in the area.

Alabama Fire is responding.

UPDATE 7:19 a.m.: National Grid requested to the scene. Two tree limbs have fallen on the line.

UPDATE 7:31 a.m.: National Grid reports 38 customers without power. Full restoration expected by 9:15 a.m.

Hawley confirms support for anti-bath salt legislation in New York

By Howard B. Owens

Press release:

Assemblyman Steve Hawley (R,I,C-Batavia) is fighting to keep dangerous synthetic drugs like bath salts out of local stores and off our streets. A recent wave of crime and menace has broken out in Batavia and across the Western New York region as more people have begun abusing the chemical compound marketed as a bathing product.

Hawley voted in favor of a law banning the compound most commonly found in the substance, and a federal ban was recently instituted barring the sale and possession of the drug. Manufacturers, however, have traditionally skirted attempts to outlaw the product by tweaking the chemical composition, which has produced grave risks to health and public safety.

As a result, Assemblyman Hawley is signing on to several pieces of legislation that will strengthen New York’s ability to eliminate all forms of this dangerous substance and end the terror plaguing local communities.

“Local stores are selling products that are tearing families apart and threatening the safety of our communities,” Hawley said. “The effects that bath salts and other synthetic drugs have had on our community are all too real, with many of us knowing friends, family members and neighbors who have either succumbed to the products or been hurt by someone who has.

"We must join together in awareness and vigilance of the threats that these drugs pose and do all we can to get these products out of local stores in order to protect the upstanding members of our local community.”

Hawley is also supporting multiple bills banning the sale and distribution of synthetic cannabinoids, another harmful substance that is allowed to be sold in stores due to loopholes in state law.

These marijuana-like products are marketed as incense or potpourri and are legally sold in a variety of outlets. Dangerous side effects include hallucinations, vomiting, agitation, increased heart rate, elevated blood pressure and other complications.

Hawley voted in favor of an Assembly bill banning synthetic cannabinoids and is supporting further legislation to have a ban adopted into state law.

Mother's grief has turned her into a crusader against bath salts

By Howard B. Owens

Note: There is a picket against bath salts in Batavia scheduled for tomorrow from 8 a.m. to 2 p.m. at 400 Ellicott St.

Nicole Lang said today she had no idea what bath salts did to people when her son was still running The Laughing Buddha on Ellicott Street, Batavia.

Her son, 28-year-old Jason Lang, allegedly sold bath salts at that location and last week Nicole Lang went to the new head shop (named 420 Emporium) on Ellicott Street and demanded that the store stop selling bath salts to her son.

The confrontation led to Nicole being issued an appearance ticket for alleged trespass, and the news reports of that event led to several people in the community to ask why Nicole Lang wasn't confronting Jason when he was allegedly selling the synthetic cocaine/methamphetamine.

"I never seen how bad the drug was," Nicole said. "I guess you really don't understand it until you see a person who is on it.

"He shouldn’t have sold it," she added. "And now this is his punishment because his life is just about shot."

Within the past several weeks, Jason Lang has been arrested for allegedly calling the landlord of 420 Emporium and impersonating a State Police "detective"; he's been charged with falsely reporting an incident for allegedly calling emergency dispatchers and reporting shots fired at a local hotel; and, he's reportedly made several other calls to emergency dispatchers reporting things that turned out to be unfounded (but no charges were filed related to those calls).

Today, Jason Lang was supposed to appear before Justice Tom Williams in Town of Batavia Court on the false impersonation charge, but Lang's attorney Edward Martin told WIlliams that because the date of the case had been moved, his client didn't know about today's scheduled appearance.

Williams accepted the explanation and agreed to postpone Lang's appearance until Aug. 21.

About two hours before Jason's scheduled appearance, Lang called The Batavian's Howard Owens to talk about his situation.

During the 20-minute phone call, Lang acknowledged that he had a court appearance scheduled for 1 p.m. in the Town of Batavia and said that he would be there.

When we attempted to ask Martin about this apparent discrepancy, as Martin rushed to his car, he said, "What do you want me to tell you? What my client said to me?" He then jumped in his car, slammed the door and refused to take the business card of another reporter.

As soon as Martin drove off, Jason Lang called Owens again and wanted to confirm that his attorney had been able to reschedule his court appearance.

Lang said he wanted to meet with Owens.

Within three minutes, he was in the court parking lot talking with Owens and WHAM 13's Sean Carroll.

The reason Lang didn't appear in court today, he said, is "because my attorney knew I had more important things to do."

He then asked that we not disclose the nature of his other business today.

During the morning phone call, Lang was talking very fast about a wide range of conspiracies that tie in the federal government, state police, specific local police officers, the Chinese government and "every important person in Genesee County."

He believes he knows too much about what's really going on in Genesee County related to bath salts and that his life is in danger.

He said the State Police have been monitoring his every move, including placing cameras in VCRs and other electronic devices because they're making a documentary about bath salts.

He said it is either an FBI agent or State Police internal affairs investigator who first got him hooked on bath salts.

He said he has porno films that have "bogus" FBI warnings at the beginning saying the films were made in California, but that the actors in the films are all "the most important people in Genesee County."

Nicole Lang said when her son is on bath salts, he talks fast and rambles on about conspiracies.

"We don't really know what he's talking about. He says, 'please don't think I'm crazy. I'm going to solve this puzzle.'  He says, 'Bath salts made me brilliant. I’ve learned everything about everybody.' "

A year ago, Lang seemed to be doing pretty well for himself and Nicole said she was proud that her son was making a good living running his own businesses.

His twin brother, she said, decided to get an education and is now in a doctorate program, but she said Jay wanted to prove he could make something of himself just through hard work rather than getting an advanced education.

But when Lang decided to open a store that was part head shop and part tattoo parlor, that's when things started to go wrong.

"When he told us he was opening we told him, 'no, you don’t need that you’re doing good,' " Nicole Lang said. "The Laughing Buddha is the most evil thing that ever happened because that’s where everything started, at The Laughing Buddha, and that’s where everything went downhill."

All that Lang once had, she said, has been replaced by a pile of bills and bankruptcy for Lang seems inevitable.

Asked if Jason is a threat to the community, Nicole said he could be, but said she believes he would never intentionally hurt anybody. He's a bigger threat to himself, she said.

The day Nicole went to the 420 Emporium, she said she had spent the afternoon with him in a cemetery where he prayed for God to take his life.

"He said, 'just come to shoot me now because I’m not going to commit suicide, because I want to go to heaven and see my children some day.'

"One of these days, one of these days he is going to be dead," Lang's mother added. "Or he's going to wind up in prison for the rest of his life because he’s under the influence, and really, it’s not even him. He’s a good person. Right now he’s so messed up, it’s not Jason."

The protest planned for tomorrow, though, isn't just about Jason.

"I’m not just trying to save him," his mother said. "There are so many people. There are his kids and there are other kids. This is just such a horrible drug right now. This is a awful drug."

Her son, at least today, agrees.

He supports making bath salts illegal he said and doesn't believe others should use it.

"I apologize to the community," Jason said. "I think bath salts in general can screw up a lot of people's lives. People don’t trust you anymore, you lose friends, you lose finances, just like any other drug. What I can assure you though is that through this whole thing, I've kept my sanity."

Later in the same conversation, he said, "They (bath salts) are dangerous. They’re dangerous. It’s something you don’t want to mess with, just like other drugs. One thing I’ve learned about bath salts is they kind of get a grip on you more than any other drugs."

"I would like to make a public apology," he added, "to the police, to anybody I’ve caused grief to, any thing that has gone on that’s been a negative side to it; however, I did learn a lot of really interesting things from it. If there’s somebody out there who could help me in that sense, that would be awesome."

Rollover accident on North Byron Road, Elba

By Billie Owens

A one-car rollover with possibly minor injuries is reported at 4857 N. Byron Road. The occupants are out of the vehicle. Elba Fire Department is responding.

UPDATE 11:44 a.m.: Fire police are responding to the scene for traffic control.

UPDATE 11:46 a.m.: Mercy medics are now available and will be responding.

Car wreck with injuries on eastbound Thruway

By Billie Owens

A two-car accident with injuries is reported on the eastbound Thruway at mile marker 402.4. There are two patients. There is a lot of traffic backed up as a result. Indian Falls and Pembroke fire departments and two ambulances are requested out of Darien.

UPDATE 11:32 a.m.: The Darien ambulances are having difficulty getting to the scene because there is virtual gridlock throughout Darien due to concert-bound traffic at the theme park. Mercy rigs are busy elsewhere.

UPDATE 11:56 a.m.: Pembroke and Indian Falls are back in service. Two patients were taken to ECMC.

Three accidents reported at Brick House Corners

By Howard B. Owens

Three accidents, one with a minor injury, is tying up traffic at Brick House Corners (Route 77 and Route 5, Pembroke).

Indian Falls Fire Department is on scene.

One person is complaining of neck pain.

Mercy EMS is dispatched.

Five cars are involved.

UPDATE 10:34 a.m.: Traffic is backing up onto the Thruway. There is a concert at Darien Lake today -- the Vans Warped Tour, featuring 70 bands.

UPDATE 10:43 a.m.: One patient being transported to UMMC as a precaution. Patient complained of neck pain initially, but was up and walking around upon the arrival on scene of Mercy EMS.

UPDATE 10:48 a.m.: There may have been a vehicle involved that fled the scene. A deputy reports "there is evidence at the scene that the vehicle that was involved was a red Chrysler, unknown if it's a van or SUV." He requests other patrols and the State Police be alerted to the vehicle's description.

Law and Order: Batavia man accused of stealing scrap metal from employer

By Howard B. Owens

Daniel Clarence Merrell, 45, of Rose Road, Batavia, is charged with grand larceny, 3rd. Merrell is accused of stealing scrap metal form his employer in June. Merrell was jailed on $10,000 bail.

Daniel W. Brown, 26, of Oneida, is charged with DWI, driving with a BAC of .13 and speeding. Brown was stopped by State Police on Monday, on Route 77 in Darien as part of an enforcement detail in the area. During the detail, troopers issued 16 tickets to motorists for various alleged violations.

Danielle M. Stevens, 35, of Elba, is charged with possession of a forged instrument. Stevens was arrested by State Police on Friday for an alleged incident reported July 10. No further details were released.

Brittany B. Simmons, 19, of Rochester, is charged with unlawful possession of marijuana. Simmons was cited in Bergen on Friday by State Police.

Batavia Downs announces increase in revenue going to education

By Howard B. Owens

Press release:

Batavia Downs Casino generated more than $11.5 million for education during the first two fiscal quarters of 2012 (January - June), according to the recently released data by the Division of Lottery. As part of Batavia Downs Casino’s ongoing support of New York’s education, 51 percent of Batavia Downs Casino net win is given to the New York Lottery.

“We’re proud to our contributions to New York State Education, year after year," said Mike Kane, president and CEO of Batavia Downs Casino.  “Compared with the revenue generated last year in the same time period, we’re looking at major growth.”

Batavia Downs’ contributions from January – June in 2011 were 9.86 million dollars, making this year’s contribution a 17-percent increase from last year.  Since opening in 2005, Batavia Downs Casino has generated more than $120 million in education funding for New York.

ATV rider accused of failure to stop for police prior to accident on Creek Road

By Howard B. Owens

An ATV rider faces multiple charges following an accident that occurred after he allegedly failed to stop for law enforcement at 2:18 p.m., Monday, on Creek Road in Batavia.

According to Deputy Chris Parker's report, Adam J. Arsenault, 26, of Hutchins Street, Batavia, was southbound on Creek Road on a 1997 Honda ATV when Parker turned on his emergency lights and attempted to initiate a traffic stop.

Arsenault allegedly failed to stop and then attempted to initiate a left-hand turn onto East Road at a speed too fast to safely complete the turn.

The ATV struck a telephone utility box and then a wire fence ejecting Arsenault.

The rider suffered non-life-threatening injuries and was transported by Mercy EMS to UMMC.

Parker issued citations to Arsenault for allegedly failure to yield to an emergency vehicle, driving an unregistered and uninsured ATV and operating an ATV on a public highway in violation of the law.

Woman admits to welfare fraud, agrees to more than $17K in restitution

By Howard B. Owens

The wife of of a man who previously admitted to welfare fraud totaling more than $17,000 entered a guilty plea Monday to one felony count of attempted grand larceny, 3rd.

Deborah Schramm, 31, faces a possible sentence of six months in jail and five years probation.

She will also be expected to help pay back $17,026.39 in social services benefits illegally obtained.

Michael Schramm, 36, entered a guilty plea July 13 to a single count of offering a false instrument for failing and agreed to pay back the $17,000 to the government.

Both were accused of seeking and accepting public assistance while Michael Schramm was working an undeclared farm job in Niagara County.

Deborah Schramm was originally charged in April with five counts of offering a false instrument for filing and one count of grand larceny, 3rd. The guilty plea Monday satisfies all charges.

Schramm is now disqualified from future food stamp and temporary assistance benefits.

Pending sentencing Oct. 10, Schramm is out of jail under the supervision of Genesee Justice.

Only one arrest reported at Iron Maiden and Alice Cooper show at Darien

By Howard B. Owens

Iron Maiden and Alice Cooper performed Monday night at the Darien Lake Performing Arts Center.

There was only one arrest and one alleged underage drinking citation issued in connection with the show by the legendary rockers.

Jose D. Garcia, 39, of South Roberts Road, Dunkirk, is charged with disorderly conduct after allegedly causing a disturbance in the parking lot.

Ryan J. Gill, 18, of Wykoff Road, Scipio, received a citation for allegedly consuming alcohol under age 21.

UMMC's emergency room handling bath salt cases on a routine basis

By Howard B. Owens

There's no doubt bath salts have added to the workload at UMMC's ER, according to Chief Medical Officer Michael Merrill.

Merrill said emergency room staff deals with patients coming into the hospital on practically a daily basis who often need to be restrained and sedated.

"We see fairly frequently individuals coming in with intoxication and basically acute psychosis from (bath salts)," Merrill said. "It's quite common."

While Merrill is not working directly in ER, so he can't confirm specifics of patient behavior, they are often described as confused, delusional and agitated.

Those are all common traits with amphetamine-type drugs taken in high doses.

"I don't think people are trying to achieve psychosis," Merrill said. "They are just looking for the high.

"What drug users do is dose themselves for drugs," Merrill added. "They make a calculation on how much they want to take and I don’t think that is an easy calculation to make."

A miscalculation leads to an overdose and the bizarre behavior now associated with bath salts.

In Batavia, recently, we've seen reports of people climbing on roofs, waving knives and calling 9-1-1 to report the sounds of gushots fired.

Talk to just about anyone about bath salts and invariably somebody mentions face eating.

Rumor has it, people high on bath salts have a propensity to try and take a bite of other people's faces.

Merrill said there's no reliable evidence that's a behavior associated with bath salts.

"I don't know if there's anything specific about bath salts that would make anybody want to bite anybody's face," Merrill said. "I know that’s in the news, but I don’t know that’s an intoxicating feature of bath salts. It’s not known to be a typical intoxicating feature of bath salts."

One interesting aspect of reports about bath salts is the patchy nature of the seeming epidemic across the United States. Some communities, such as Batavia, Utica, Fulton and even big cities such as Los Angeles, seem to have significant problems with bath salts. Yet Merrill said he talks to colleagues in places such as San Francisco and Buffalo and is told bath salt problems are rare.

Meanwhile, the Batavia Daily News reported today that 420 Emporium, 400 Ellicott St., Batavia, has been selling a bath salt known as Amped.

The story doesn't even use the word "alleged" to describe the assertion that 420 Emporium has been selling the controlled substance.

A reporter said she observed Amped transactions Saturday night and that an employee handed a package of Amped to Councilwoman Rosemary Christian after she inquired about purchasing the drug (Christian did not complete the purchase). 

An employee reportedly said the shop would continue selling Amped until today.

U.S. Attorney for Western New York William Hochul confirmed today something he told The Batavian last week, that as he understands the new law, as of July 9, when President Barack Obama signed legislation sponsored by Sen. Chuck Schumer, it is a federal crime to sell and possess bath salts.

If it's true that 420 Emporium sold bath salts through Sunday, and the law was effectively immediately upon the president's signature, any such alleged sales would be in violation of federal law.

Also, if the store employee said sales would be discontinued, he is implicitly admitting to bath salt sales prior to today. Besides the new law, bath salts were on a Drug Enforcement Administration emergency controlled substance list prior to July 9 and illegal to sell, though the federal government had a much higher bar to cross to prove any crime.

When The Batavian entered 420 Emporium today, as soon as we identified ourselves, a stocky male employee pointed to the door and said, "Have a nice day."

We asked, "Is the information in this article accurate?"

He repeated the gesture and said, "Have a nice day."

When asked if he wanted a chance to correct any issues, he said, "Please leave." 

The employee refused to answer a number of repeated questions, saying each time, "Have a nice day."

The Batavian then attempted to contact the owner of the 420 Emporium chain by calling the Brockport store and the Fulton store. Both employees took messages and the employee in Fulton offered to send a text message to the owner with our interview request. So far, the owner has not called The Batavian.

Hearing on constitutionality of elder abuse law in Simmons case delayed again

By Howard B. Owens

There is another delay for a hearing to determine the constitutionality of the elder abuse law being used to prosecute 26-year-old Jacquetta B. Simmons for allegedly punching 70-year-old Grace Suozzi on Christmas Eve at Walmart.

The Attorney General's Office, which has the option of offering its opinion on the constitutionality motion by Attorney Earl Key, contacted Judge Robert C. Noonan today and asked for more time to further review the case.

Whether the AG's office will offer a defense of the law, either in writing or in a court appearance, has yet to be determined.

The hearing date has been rescheduled before and was on the court calendar for today, but has now been moved to 11:45 a.m., July 30.

Today was also the last day Simmons had to accept a plea offer from the District Attorney's Office or be left with only two options, go to trial or make an unconditional plea.

The offer Simmons turned down today was to plead guilty to the second count of the indictment -- the Class D felony assault charge with the elder abuse provision -- and let Noonan determine her fate.

Under the plea offer, Simmons wouldn't serve more than three-and-a-half years in prison, but Noonan would have had the option for a community-based sentence (meaning a little one-day jail time and probation).

Also, the date of the trial -- originally set to start on Aug. 20 is now in doubt. Even though Key originally agreed to the date, it turns out he also has a trial scheduled in Erie County that week.

Noonan's clerk will contact the Erie County clerk to determine whether the other trial can be moved to another date, or if the Simmons trial needs to be rescheduled.

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