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October 29, 2019 - 12:42pm
posted by Billie Owens in batavia, city fire department, hydrant flushing, news.

Press release:

The City of Batavia Fire Department will be flushing / testing fire hydrants on Wednesday, Oct. 30th, Thursday, Oct. 31st, and Friday, Nov. 1st from approximately 9 a.m. to 3 p.m. in the general area of north of Main Street, west of Bank Street and south of Main Street, east of Jackson Street.

Homes and businesses nearby will be affected.

These tests may result in a temporary discoloration of water in that area. As in the past, please do not attempt to wash any clothing if your water appears discolored. If you do experience a discoloration of your water, run cold water for about five minutes or until clear.

October 29, 2019 - 12:35pm

Press release:

The Genesee Amateur Hockey Association invites children to the Falleti Ice Rink on Evans Street in Batavia on Saturday, Nov. 9th for a Try Hockey For Free clinic as part of Hockey Week Across America.

Starting at 11:40 a.m. to 1 p.m. local youth, ages 4 to 9, are encouraged to experience ice hockey for the first time and learn the basic skills in a fun, safe environment.

“We look forward to welcoming families to Falleti Ice Rink to try our great sport of ice hockey,” said Dale Hutchins, president of GAHA. “Our goal is for these families to enjoy watching their kids learn new skills with big smiles on their faces.”

USA Hockey’s Try Hockey program, with the support of the National Hockey League and NHL member clubs, among others, is designed to provide youth hockey associations with a national platform for introducing children to the sport, free of charge.

All your youngster needs is a helmet (bike or sports) and winter gloves. Skates are available at the Rink. The GAHA organization does have some used hockey helmets available for the event as well as a few hockey sticks.

Players in attendance will be given a free hockey jersey to take home.

To register for this Try Hockey For Free event, please visit www.TryHockeyForFree.com

For more information, please contact:  Sharon at [email protected] 585-344-2248 (coordinator for Try Hockey For Free).

October 29, 2019 - 12:29pm
posted by Billie Owens in business, Empire Access, fiber optic services.

Press release:

Empire Access has launched state-of-the-art fiber optic Internet, phone and security services in Victor. Empire now provides super high-speed service, offering up to 10X faster connections than cable Internet services. This new fiber service is being offered to both residential and business customers.

“We’re thrilled to offer our lightning-fast fiber optic Internet to homes and businesses in Victor. Fiber optic technology provides a much faster, more reliable Internet service,” said Jim Baase, chief operating officer for Empire Access. “This recent expansion in Victor utilizes the Ontario County fiber optic network (Axcess Ontario) that Empire Access acquired in 2018.”

Empire fiber optic service offers the Victor area a unique opportunity and a clear technological advantage. Many areas comparable to the size of Victor currently do not have an option to access fiber pptic Internet.

Fiber optic service is far more reliable and not prone to slow-downs plagued by cable. Each customer has their own dedicated connection and is not affected by congestion and weather.

Empire Access features very affordable plans priced below competitors’ offerings for gigabit and 100 Mbps Internet. Gigabit offers speeds up to 1,000 Mbps and is perfect for video streaming, gaming and downloading large files.

Along with fiber optic-based Internet service, Empire also offers a complete array of communications and security services –

  • Home and business phone service – including various plans with business options including toll-free numbers, phone systems, voice mail and more
  • Security and home automation – such as 24/7 video monitoring and in-home or business-based automation, the ability to remotely manage security, lock and unlock doors, control appliances, adjust heating/cooling and more from a smartphone, tablet, or computer
  • Advanced business services – enterprise Wi-Fi, business email, audio and video conferencing, dark fiber and metro Ethernet

Empire Access is part of a locally/family-owned and operated company; rooted from a telephone company founded in 1896. The organization has long been recognized for their knowledgeable, reliable and responsive service. Live customer support is available 24/7/365.

To see if Empire Access fiber optic service is available in your neighborhood, please call 800-338-3300 or visit www.empireaccess.com.

About Empire Access

After starting in 1896 with one telephone line in Prattsburgh, NY, Empire Access has grown significantly as a family-owned, locally based communications provider serving large areas of Upstate New York and Northern Pennsylvania.

Today’s Empire offers a wide range of products and services from basic phone service to customized phone solutions, scalable high-speed fiber optic Internet, basic to enhanced digital TV service and advanced security solutions. Responding to a variety of business and consumer needs, Empire continues to expand into new areas while retaining a strong focus on local, personalized customer service. In 2017 and 2018, Empire Access was awarded Best Internet Service Provider in the Southern Tier region of New York.

Empire Access offers fiber optic service in Arkport, Batavia, Bath, Big Flats, Burdett, Canandaigua, Canisteo, Corning, Dansville, Elmira, Elmira Heights, Geneseo, Geneva, Hammondsport, Hornell, Le Roy, Montour Falls, Mount Morris, Naples, North Hornell, Odessa, Prattsburgh, Penn Yan, Victor, Warsaw, Watkins Glen, and Waverly in New York and Sayre, Athens, South Waverly and Troy in Pennsylvania.

October 29, 2019 - 12:21pm

Press release:

One of the greatest privileges we have as American citizens is to vote for the elected leaders that we choose – but for many individuals with disabilities who wish to do so in person, getting to their polling place may be a challenge.

In Erie, Niagara, Genesee, Orleans or Wyoming counties, Western New York Independent Living (WNYIL) can help!

Independence Express, the transportation branch of WNYIL, will provide van rides, free of charge, to people with disabilities who need one to vote on Election Day (Tuesday, Nov. 5th).

Independence Express has wheelchair-accessible vehicles for those with mobility challenges, and ambulatory people can get transportation, too. While we can’t help anyone up or down stairs, and they must rely on friends or relatives for that, we can take people to their voting place and then back home or to work, between the hours of 8:30 a.m. and 8:30 p.m., (except during drivers' lunch from 12 to 1 p.m.).  

If this is appealing, please email t[email protected] with “Election Day” in the subject, and provide this information:

  • The rider’s name;
  • Address;
  • Phone number;
  • If rider uses a wheelchair (or write "WC"), or if rider is ambulatory ("AMB");
  • The name and address of the polling place (i.e., Ascension Parish, 15 Sumner St., Batavia, NY 14020);
  • If anyone is going with them, such as a Personal Care Attendant (PCA).
  • [If more than one extra person or PCA, give the number of PCAs -- we can only take up to three people at one time];
  • The rider's first choice of the time to go to the polls.

Alternately, one may call Christian at 716-836-0822, ext. 108, to set up a ride. If there is high demand at times, requests will be honored on a "first-come, first-served" basis.  

Voting is your right – and we can help you exercise it!

The Western New York Independent Living Inc. family of agencies offer an expanding array of services to aid individuals with disabilities to take control of their own lives.

October 29, 2019 - 12:09pm
posted by Billie Owens in harness racing, sports, Batavia Downs.

By Tim Bojarski, for Batavia Downs

On Wednesday (Oct. 30) there is a carryover of $1,381 and a guaranteed pool of $5,000 for the Pick-5 wager that day.

The pool is part of the United States Trotting Association’s (USTA) Strategic Wagering Program and as such, free program pages are available courtesy of Trackmaster on the USTA’s website or by direct download by clicking here.

The Pick-5 wager begins in race one and runs through race five. It is a 50-cent base wager and if all five winners aren’t selected, the carryover amount will move to the Friday (Nov. 1) program.

Post time for the first race Wednesday is 5 p.m.

October 29, 2019 - 11:59am
posted by Howard B. Owens in Richmond Memorial Library, batavia, news.

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Richmond Memorial Library hosted a trick-or-treat party Monday night with Batavia police officers offering parents safety tips and reading a story to the children, who then trick-or-treated through the library.

Top photo: Det. Matthew Wojtaszczyk and Officer Kevin DeFelice with little officer Aiden Scott, age 3.

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October 29, 2019 - 11:32am
posted by Howard B. Owens in GC Libertarian Party, batavia, news.

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David Olsen, former chairman of the Genesee County Libertarian Party, lost a bet on the Yankees so he had to wear a Statue of Liberty Costume on Main Street in Batavia yesterday, which he did, waving a sign that said "Vote Libertarian."

Joining him was Deborah Kerr Rosenbeck, a City Council candidate.

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October 29, 2019 - 10:52am
posted by Howard B. Owens in Deal of the Day, advertisement.

Reminders of how the Deal of the Day program works:

  • To make purchases, you must be registered. Deal of the Day uses a registration system that is not connected to the registration for commenting on The Batavian (the main user login in the upper left of the homepage).
  • Once re gistered you must sign in using the "sign in" link in this box.
  • You click on the orange button, which appears if the item is not sold out, and it takes you to a PayPal button. This allows you to pay either with your PayPal account or with a credit card/debit card. The login for PayPal is completely separate from our accounts.
  • The first person to successfully complete the PayPal transaction wins the gift certificate.
  • You are eligible to buy the same item only once in a four-month period. We use the registration system to track this for you so you don't have to.
  • Only one gift certificate from the same business PER HOUSEHOLD is allowed in each four-month period. We do not have a way to automatically track duplicate purchases within a household; however, if we notice such a purchase, we reserve the right to cancel the purchase and refund the purchase money. Each individual buyer must use his or her own PayPal account for purchases. It's important that participating businesses not be asked to redeem multiple gift certificates from the same person/family at the same time.
  • Gift certificates should be used within 30 days of receipt.

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October 28, 2019 - 10:12pm
posted by Mike Pettinella in news, Batavia City Council, genesee county.

With New York State’s blessing in hand, the Batavia City Council tonight wasted no time in approving an amended sales tax allocation with Genesee County.

By an 8-0 vote (Council Member Rose Mary Christian was absent), the board OK'd the 40-year contract that, in City Manager Martin Moore’s words, “provides a level of stability as we move forward in budget planning and strategic planning.”

Just as importantly, the agreement – which was passed by Genesee County legislators in January – gives the county the necessary time to fund a new jail and to manage the long-term debt payments associated with the building of the jail and other capital projects.

Last week, Gov. Andrew M. Cuomo signed into law Bill S4247 that allows Genesee County and the City of Batavia to enter into a sales tax allocation agreement not to exceed 40 years.

As part of the process, bonds will be issued to fund construction with a term of up to 40 years. This means that both the County and City will have assurances that, for the duration of the bonds, they can count on a distinct sales tax revenue stream.

Terms of the City/County agreement have Batavia receiving 16 percent of the county’s 50 percent share of the 8-percent sales tax – with provisions for that amount to grow in future years by a maximum of 2 percent per year.

In future years, the City’s share will depend upon sales tax revenue growth, eventually being no less than 14 percent.

The new agreement will take effect on Jan. 1, a day after the current one-year contract expires.

The vote came during a Special Business Meeting convened immediately after the regularly scheduled Conference meeting.

Three related joint agreements dealing with water supply, water treatment facilities lease and water treatment plant operation and maintenance were moved to the Nov. 12 Business Meeting.

October 28, 2019 - 9:50pm

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Deer are taking up residency in the City and the time has come to do something about it.

That’s the message conveyed by City Manager Martin Moore, Ph.D., at tonight’s City Council meeting as he outlined potential steps to reduce the number of deer and the difficulties they are causing for homeowners.

“Indicators are showing that deer are establishing residential ‘homes’ in the City and its seems to be increasing,” Moore said at the end of a report to Council about his discussions with officials of the state Department of Environmental Conservation and his call to form a new committee develop a plan of action.

Moore said he has received a “verbal commitment” from a DEC wildlife management specialist to come to a Council meeting next month to advise the board on the best way to proceed in culling the deer population.

“There are specialty types of controls (to ensure) a plan approved by New York State,” he said.

At the outset of the meeting, Council heard from Pat Cooper and Russell Nephew, residents of State Street in the vicinity of Batavia High School, who both said they have been confronted by deer recently (with the latter stating that she was actually chased into her apartment by a deer).

Nephew noted that the City has had an issue with an overabundance of deer for the past five years and said the predicament “is getting worse and has actually elevated to a new level of concern.”

“The City’s past Council has done investigations and surveys and they concluded there was a problem and agreed that action must be taken, as you do now,” he said.

He reported that the Town of Amherst had a similar situation between 2015 and 2017, and by virtue of special out-of-season hunting permits issued by the DEC, reduced the herd by 571.

“This is just one example of a possible solution to the problem,” he said. “By all of us working together, we can solve this problem.”

Nephew then took a local print media outlet to task for its publication of a satirical column last week, equating the deer to a West Side Story-like gang intimidating the residents of State Street.

“Instead of making an editorial joke of a situation that occurred, just report it as it happened,” he said. “I know all about your First Amendment rights, but your first responsibility is to your readers to bring them an unbiased representation of the event.

“Jumping right into an editorial opinion gathered from second- and third-hand information is unprofessional and unethical. Your quest to garner readers through your attempt at humor slid by this time, but will it lead to tragedy if the problem is ignored?”

Following the meeting, Moore elaborated on the steps going forward, adding that he hopes to have it in place within six months.

“Our exact steps right now is that tomorrow I will be asking the City Clerk to put out for applications for the public to be able to be on a deer committee -- it’s open to the public,” he said. “We’re going to ask them to get their applications in in a reasonably timely manner because as soon as we have enough qualified applications we will be getting them to a committee with the City Council for review – and as long as the individuals meet the residency requirements … they’ll be a recommendation that goes to the Council.”

Moore said that should Council vote to approve the establishment of the committee, they will set a first meeting right away and nail down a date (likely Nov. 12 or Nov. 25) for officials of the DEC’s Wildlife Management Division to address the board.

“They (the DEC) will look at how are urban structure is, they will look at some areas and ideas for dealing with the proper population-control measures – things that are safe, things that don’t either endanger or cause excitement at the public, but at the same time are effective,” he said. “Nothing is 100-percent guaranteed, obviously, when you take steps to control population.”

The city manager said an effective deer management plan is the goal – a strategy approved by City Council and then approved by New York State.

“Once that plan is approved at the state level, then we’re in a position to start talking about implementation,” he said. “And then we will be talking about the steps and timelines for implementation of ideas that come forward and are ultimately approved.”

As far as the extent of the deer population is concerned, Moore said he has “photographic evidence of fawns being born in people’s back yards … of deer coming out in the daytime as well as at night. We’re seeing them in every part of town.”

Moore said the wildlife specialists told him that other indicators of too many deer are when disease starts to come in and when deer show signs of being malnourished.

“But I don’t think we’ll see a nourishment issue in the City because, honestly, for deer it’s like coming to the supermarket,” he said. “We apparently grow some great stuff for wildlife. That’s going to be the challenge … how we balance this knowing the (number of) deer here and bringing it down to a manageable level.”

Photo: State Street resident Russell Nephew urges City Council to find a solution to the deer problem in Batavia. Photo by Mike Pettinella.

October 28, 2019 - 4:24pm

Press release:

Cornell Cooperative Extension of Genesee County, in collaboration with Genesee Valley Educational Partnership, will be offering a CDL Training Program for Genesee County agriculture producers and their employees for Class A and Class B licenses.

This training program is designed for producers and farm employees that have some experience with commercial truck operation.

An informational meeting will be held on Dec. 4 at 6:30 p.m. at the Genesee County Cornell Cooperative Extension building at 420 E. Main St., Batavia.  This meeting will explain how the program works and answer any questions you may have. The required training materials and medical forms will also be passed out at this time.

Classroom instruction dates are Dec. 10 and 11, from 6:30 to 8:30 p.m., at the Cornell Cooperative Extension building, 420 E. Main St. in Batavia.

Drive times will be scheduled with the instructor at a later date.

Class A drivers must be at least 21 years of age and Class B drivers must be at least 18 years of age.

Full payment (check or cash) is due at the class on Dec. 10. The cost for Class A is $775 and the cost for Class B is $600.

Registration is required and will be accepted until Dec. 3 or until the class is full. Class size is limited.

For more information or to register, please contact Jan Beglinger at 585-343-3040, ext. 132.

October 28, 2019 - 3:30pm
posted by Billie Owens in NY-27 District, General Election 2020, news, Nate McMurray.

Press release:

Nate McMurray, Democrat running for Congress in NY-27, intends to address loopholes that lead to corruption in Congress and fight for the bills that have died in the Senate without review. 

The “For the People Act,” or HR 1, was proposed this year, but never made it to the Senate floor, is one such piece of legislation. HR1 comprehensively addressed financing of elections, ethics reform, and expanding voting rights.

These issues were a critical focus during McMurray’s race against Chris Collins in 2018, but the legislation has been stonewalled by the Republican Senate. 

“HR 1 needs to be taken seriously by Senate Republicans, because at the end of the day, corruption is not a partisan issue. As it stands, though, Republicans will not pass this legislation all at once,” McMurray said, “We need leaders that say, ‘look, the buck stops with us.’

"We’ve seen the damage that corruption can cause in the democratic process, and we need to look at each element of this legislation and fully address it.When I’m elected, I intend to work with my colleagues and propose legislation that we will get through Congress.”

McMurray’s proposal for addressing corruption in government includes proposals to:

  • Enact stricter limits on political contributions from special interests, lobbyists and wealthy special interests. McMurray has voluntarily imposed  a ban on corporate PAC money for his campaign, but believes this should be the law for all candidates.
  • Keep investigation inquiries open -- even after a member has left their seat.
  • Strip corrupt members of Congress of their pensions when found guilty of violating the public trust. 
  • Prohibit members of Congress from sitting on for-profit corporate boards.
  • Pass tougher campaign finance laws and more transparent disclosures of outside political spending.
  • Overturn the disastrous Citizens United decision, which opened the floodgates for unlimited, untraceable spending in our elections.
October 28, 2019 - 12:51pm
posted by Billie Owens in crime, news, batavia, corfu, bergen.

Raymond Dennis Bieganski, 66, of Main Street, Corfu, a NYS Level 2 registered sex offender, is charged with failure to register an email address. He was arrested for violating NYS Correction Law by failing to register an email address on July 22. He was issued an appearance ticket for Nov. 4 in Village of Corfu Court. The case was handled by Genesee County Sheriff's Deputy Kevin McCarthy.

Justin David Spilberg, 31, of Salt Works Road, Medina, is charged with: driving while intoxicated with a BAC of .18 percent or more; DWI; and speeding. Spilberg was arrested at 7:54 p.m. on Oct. 26 on North Lake Road in Bergen after a traffic stop for speeding. He was released on an appearance ticket and is due in Bergen Town Court on Nov. 6. The case was handled by Genesee County Sheriff's Deputy James Stack.

Cameron James Demaison, 23, of Trumbull Parkway, Batavia, is charged with aggravated driving while intoxicated and DWI. He was arrested at 9:32 p.m. Oct. 17 on North Street in Batavia following a traffic complaint. Demaison was released on appearance tickets and is due in Batavia City Court on Oct. 30. The case was handled by Batavia Police Officer Sean Wilson, assisted by Officer Jason Davis.

Joseph M. Dispenza, 46, of Maple Street, Batavia, is charged with aggravated driving while intoxicated and DWI. On Oct. 26, Batavia Police Officer Peter Post arrested Dispenza on the charges following an investigation into a one-vehicle accident involving a motorcycle on Bank Street in the city at 10:22 p.m. on Aug. 4. Dispenza was given uniform traffic tickets and is due in Batavia City Court on Nov. 6. Post was assisted by Officer Sean Wilson.

Brian Keith Dyer, 53, of North Street, Batavia, is charged with second-degree harassment. Dyer was arrested following an incident in which he allegedly pushed someone at 9:29 p.m. Oct. 22 on North Street in Batavia. He was issued an appearance ticket and is scheduled to appear in Batavia City Court on Oct. 29. The case was handled by Batavia Police Officer Felicia DeGroot, assisted by Officer Jason Davis.

October 28, 2019 - 12:24pm
posted by Howard B. Owens in City Court, news, Ben Bonarigo.

Residents of the City of Batavia will select a new full-time City Court judge in the Nov. 5 General Election. The candidates are Durin Rogers and Ben Bonarigio. We sent each candidate a series of questions about their views of the law. We are publishing their written answers verbatim. Here are the answers from Ben Bonarigo.

Among the current members of the U.S. Supreme Court, which justice do you admire the most and why?
Of the current members of the U.S. Supreme Court, I identify with and admire Justice Ruth Bader Ginsberg the most. Justice Ginsberg was raised in a working-class family in a rented apartment in Brooklyn, N.Y. She was a voracious reader and spent a good deal of her early years in the public library. She attended and graduated from public schools. Tragedy struck when her mother died from cancer a week before Ruth graduated from high school.

Earning a full scholarship to Cornell University, the seeds of legal activism and gender equality were planted. She believed very firmly in the idea, and correctly so, that women should be, in all respects, treated equally as men were under the law. This ideal was “firmed up” in her years at Harvard and Columbia Law where she graduated with her law degree at the top of her class. She left Harvard after the Dean asked her (along with her 8 other female classmates) why they were taking up the class seats of men at Harvard Law School. She transferred to Columbia Law School the next year.

After graduation, she became a law school professor and strenuously pursued significant gender-based discrimination cases. Many of those cases she successfully argued before the Supreme Court. After a stint on the U.S. Court of Appeals for the District of Columbia which commenced in 1980, she was appointed, and confirmed in 1993, to become the second female to ever sit as a Justice on the U.S. Supreme Court.

Justice Ginsberg has distinguished herself as a Justice who faced gender discrimination at almost every step of her education and legal career. She used that discrimination to fuel her desire to help women who, like her, were being improperly discriminated against in this country. Although I don’t always agree with where she comes down on her legal opinions, I have the utmost respect for this diminutive lady who has worked her way to the top bench through some very adverse circumstances. She tenaciously fought legal battles for all women to reach equality. She also fought hard for inequalities of other types in her illustrious career before becoming a judge.

She is living proof, and a beacon for all, to show how hard work, a thirst for knowledge, having a passion for what one believes and intense perseverance can propel them to the apex of their chosen field. 

Do you view the Constitution as a living document or would you define yourself more as a strict constructionist, and if neither of these terms fit your view of the Constitution, how do you view it as a point of Constitutional philosophy?
As a City Court Judge, the issue of constitutional philosophy would rarely, if ever, come up, being more the domain of appellate justices or the Justices of the U.S. Supreme Court. To view the Constitution as a living document is to say that the words on the document evolve over time, and they must be interpreted in light of the changes and adaptations of the people that they govern in the current day. In other words, current-day meaning must be read into the words of the Constitution. When interpreted this way, the words are easily stretched to extend the Constitution to meanings that may never have been intended by the Framers. This occurs as a function of judicial interpretation as opposed to Constitutional amendment or the legislative adoption of a law allowing or prohibiting the conduct described.

The ability to interpret, so as to create law, is the reason that the appointment of federal judges has become such a political hot point in America today. If the justices view the document as a “living document”, it politicizes their appointment because they will sit a lifetime on the bench, potentially creating law for decades. This happens no matter what the political affiliation of appointing powers be at the time. I, for one, am tired of all the political wrangling between the nominating President, and confirming Congress, as it places too much emphasis on politics in what is supposed to be an independent, fair and impartial bench beholden to nothing.

On the other end of the spectrum is the view of the strict constructionist, which is sometimes referred to as the “originalist” perspective. An originalist views the Constitution as a law, giving the law the meaning that its words were understood to mean at the time of its adoption. I wouldn’t interpret the Constitution as a living document nor from an originalist position either. I see myself more in line with the late Antonin Scalia, Supreme Court Justice, who was a self-defined “textualist”. Justice Scalia felt that it was not important to look to the Framers' original intent when they set the Constitution up as our national mission statement but to look to the actual words of the document as being the law. Stated a different way, what the words comprising the Constitution meant when it was adopted are what they mean today, not what we think our founding fathers meant when they chose which words to use.

As time and society’s views on the law and policy change, there is an amendment process built into the Constitution that has been exercised many times throughout history since its original adoption. Therefore, the meaning of the document doesn’t change as a result of our changing society. If there needs to be an amendment, then take the steps to amend it. Admittedly, the steps for the amendment process are burdensome and time-consuming; however, not insurmountable as history dictates.

To view the Constitution in any other way than as a “textualist” renders it meaningless. Why have a Constitution at all if a judge or group of judges can change its meaning because of the way the wind is blowing politically or socially? If a “living document” view is taken, this is accomplished by simply stretching the words of the Constitution to fit the desired result, and if by a strict constructionist this is done to add meaning to the Framer’s intent to find the desired result. I might add here, that a “living document” philosophy is not Liberal, as opposed to Conservative, because given the opportunity to ply the Constitution to fit their needs no matter where they fit on the political spectrum if the opportunity arises it will be seized upon.

Justice Scalia referred to it as a modernist view (a living document) versus the traditional view (textualist) and I for one consider myself traditional. While in taking this view I understand that amending the Constitution is a long, laborious and, at times, a politically charged endeavor. Nevertheless, in construing the Constitution in this manner the hope would be that it would take the judiciary out of creating legislation where it may not ever have been intended. It would leave the act of creating law to the elected legislative branch instead of the appointed judges, and amendment of the Constitution to the citizenry of this great Country.

What three books related to the law have influenced your thinking the most about legal philosophy and why?

  1. To Kill a Mockingbird by Harper Lee. This novel was written in 1960 and is set in the American Deep South in the Jim Crow era of the 1930s. I read this Pulitzer Prize-winning novel in my first year of college. Atticus Finch is a white lawyer who is assigned to represent a black man, Tom Robinson, who is wrongfully accused of beating and raping a white woman. Sadly, justice doesn’t prevail as the all-white jury convicts Robinson irrespective of his innocence, which was commonplace in this time and place. Moving beyond the racial injustice, this book stands for much more. I was moved by the high moral standards and ethical behavior displayed by Attorney Finch in his representation of Robinson. Finch, after a slow start, but after realizing that Robinson was wrongfully accused, provides him with a stellar legal defense even though it made Finch unpopular in his own community. To me, this is what stands out most in this novel, and which has left an indelible mark on me. The idea that no matter how unpopular the criminal charge or the accused is, that he is entitled to the best defense the lawyer can put forth on behalf of that person. Indeed, during my 37-year career as a trial lawyer, I was asked countless times “how can you represent that person?” I would respond that as a matter of my legal ethics that if I undertake the representation of an accused individual, I must do so zealously and adequately despite how you or others might feel about the cause. Moreover, what if ever lawyer were scared away from representing individuals in difficult cases. What would happen to justice in our courtrooms? More probably, I thought to myself what would Atticus Finch do or say in this circumstance as he became a symbol, albeit fictional, of what equal protection and justice means in American Jurisprudence.
  2. The Concept of Law by H.L.A. Hart. I read this book as a 1st-year law student and I must admit that it almost scared me away from pursuing a career in law as it so philosophically written. Hart was both a lawyer and a philosopher, and I struggled to find any practical application from it at the time. I thought it important to come to an understanding of what the law was, as I had chosen to embark upon a career in it. I read this book after speaking to one of my Professors. It took me several reads before I came away with what Professor Hart was saying. In this dissertation, Hart defines the difference between rules of law and orders. Orders, refrain people from doing or direct them to do, certain acts with a sanction for non-compliance. Thus, acting as a guarantee that individuals who obey will not be sacrificed to those who do not. Rules empower people to act in certain ways such as to make a will or a contract. Failure to comply with the rules, such as the Statute of Frauds, is to nullify the contract, not sanction the individual. Therefore, rules are normative in nature, molding the way society acts in certain instances. He further distinguished between rules that were “primary” and those that are “secondary”. Primary rules are those that impose duties, such as the Penal Law. Secondary rules are those that give meaning, recognition, empowerment, and enforceability to the Primary rules, such as the Criminal Procedure Law. The uniting of Primary and Secondary rules is what Professor Hart calls the “center” of a legal system. Hart makes us keenly aware that a system of law designed only by fear of coercion will never succeed. It must, in addition, be sensitive to the recognition of authority granted to the system to implement and change the rules as time goes by. Most importantly, it must be based on a sense of moral responsibility because the imposition of laws by the authority (regime as Hart refers to it) that are morally reprehensible are doomed. To me, this illustrates, the sensitive balance that a system of law resides within. When legislatures begin to adopt laws that don’t sit well with the moral public or leave them on the books longer than needed, the fear is that there will be a lack of compliance, which if extended to its logical conclusion, could result in anarchy.
  3. My Own Words by Mary Hartnett and Wendy Williams. This being a relatively new read (2016), it has inspired me to recently think about how polarized our country has become politically. This is a biography of U.S. Supreme Court Justice, Ruth Bader Ginsberg. I have now walked two laps around the entire City of Batavia on the campaign trail. I have found the majority of people warm and receptive to my knock despite differing political labels and affiliations but, not necessarily political views. In a few instances, that fond reception was not the case, and I was surprised by the curt treatment received. During this walk, considering myself somewhat naïve politically, it became apparent to me very early on how polarized we have become as a people; even at this level. Again, most who reject my candidacy are polite indirectly stating so or did so by politely listening to what I had to say and thanking me for stopping by. It is not those that I take issue with, it is the door slammers and name-callers that trouble me. As a firm believer in our democratic form of government, I recognize that political discourse is the bedrock of our society. I have no problem with that, however, I do have a problem with the nature and tenor of the discourse I heard on my walk. In some instances, it’s fairly clear that political civility has gone out the window on a national level and the reasons why would take up space way beyond that allotted here. Suffice it to say there is blame to go around on all sides in my opinion. It never dawned on me for a moment that this unkind treatment of one person by another based upon political affiliation would filter down to this local level for a judicial race. After all, aren’t judges to be independent thinking and insulated from all outside influences including political view? When I embarked upon this campaign, I truly thought that politics would not play into such a low-level judicial position, believing that was a feature of the loftier state and federal benches, and that votes would be cast based solely upon the candidates’ education, legal experience and commitment to the community. Obviously, for some, (thankfully not all), this is not the way they see this type of election. This race, for some, is a microcosm of what is occurring on the national level and “lines have been drawn in the sand.” Which brings me to Justice Ginsberg’s biography. She probably could not be any further away on the political spectrum from Justice Scalia, however, her book is replete with praise for the now-deceased Justice. Even though they rarely saw eye to eye on Constitutional interpretation or philosophy, they were steadfast friends off the bench and thoroughly enjoyed each other’s company and discourse. Justice Scalia said in a 2007 interview: “We are two people who are quite different in their core beliefs, but who respect each other’s character and ability. There is nobody else I spend every New Year’s Eve with.” Justices Ginsberg and Scalia were fond of stating: “it is ok to disagree but, it is never ok to be disagreeable.” I said to more than one person I spoke with about our general state of political affairs locally that we shouldn’t try so hard, spending so much time to find differences between us, but instead, we should find what we share in common and celebrate it. The majority of us have chosen to reside in Batavia. Some of us have raised our families here and have worked our entire lives here. Can we be that different from each other? Don’t we have many of the same values and concerns? Don’t we all enjoy the freedoms bestowed upon us by living in the greatest country on earth? I, for one, believe we do, and I want to continue working towards making our terrific city better and safer for us all!!

There is often a lot of debate around the term “activist judges.” What is your view of such debates? Is this a valid topic or a smokescreen? Is it something the public should worry about?
The term “activist judge” is now defined popularly as a judge who uses the irresponsible exercise of judicial authority. The argument goes that if judges are not bound to the words of the Constitution, we no longer have a government of laws, but of judges.

While attempts to define judicial activism have been difficult, one thing holds true: no matter where U.S. Supreme Court Justices have been on the political spectrum, at various times in history, they have selectively used judicial activism to arrive at a desired result in a case. I don’t necessarily agree with this as I am an avowed “textualist”, however, it is a fact of life.

The Warren Court, spanning from 1953 to 1969, has historically been labeled as an activist majority bench. This court decided many cases using judicial activism on a selective basis. Justice Brennan, who shaped many decisions of this era, deferred to the elected branches of government, unless doing so would allow the democratic majority to disregard the interests of an underrepresented group or, when the governing majority was stifling those that opposed it. In those instances, Brennan felt it appropriate to take a more activist view. Those cases resulted in racial integration of schools, invalidating laws prohibiting interracial marriage, prohibition against compelled self-incrimination, and the right of an accused to effective assistance of counsel, among others.

Richard Nixon utilized this judicial activist history as part of his platform for election to the Presidency. In his nomination acceptance speech, he promised that he would appoint “strict constructionists” rather than “judicial activists” to the bench; implying that he was tired of the liberal bias. Surely, over the next several decades the appointments of Justices by Presidents Nixon, Ford, Reagan and Bush put a much more conservative look to the bench.

Nevertheless, this “conservative bent” didn’t change the court's use of selective judicial activism in many cases decided during this era. These included declaring unconstitutional certain affirmative action programs, gun control laws, restrictions on corporate political advertising, among others.

Even judges who were appointed under the guise of exercising judicial restraint (“strict construction”), the opposite of judicial activism, have become activists because in their judicial discretion they have felt it necessary, and the pull was overwhelming. Considering that courts made up of differing political views have used judicial activism at times as a means to an end, how can it be said by either end of the political spectrum that it is always inappropriate?

Therefore, there is a negative connotation attached to judicial activism by those on the other side of it. However, it seems to be used universally by the Supreme Court at various times. While, I, believe that it is a valid topic of discussion because if judges don’t consider text, sound precedent cases, and societal values and they use activism indiscriminately and without restraint as the way of deciding cases, we will become a nation run by nine judges as opposed to a nation of laws created by a representative legislature.

What is your view of jury nullification?
Deeply rooted in American constitutional democracy is the notion that a person accused of a crime must be judged by a “jury of his/her peers”. In this vein, we want our juries to be independent thinking, self-motivated people who bring their life experiences into the courtroom and deliberation rooms with them to render fair, and impartial verdicts. Individual jurors are instructed by judges to analyze the facts they hear and see, from the witness stand in an unsympathetic, unemotional, almost robotic way and to apply them to the laws applicable to the case as instructed, and directed. The determination of what law applies is up to the judge with the input of the respective defense counsel and prosecutor. In some cases, the expectant independence of jurors causes them not to follow the law as the judge has instructed them but, to find the accused not guilty despite the law.

In these cases, when jurors decide not to follow the written, instructed law and use their independent thought processes to determine if the accused is guilty or not, it can result in a verdict that is called a “jury nullification.” This means that the jurors do not limit themselves to the determination of the case’s facts but, step into the realm of deliberately not following the law provided to them by the judge. In instances of jury nullification, the jury feels more strongly about their definition of justice being served than they do about following the judicial instructions on the law.

Jury nullification may occur for several different reasons, including, but certainly not limited to: the law itself lacks support from the jurors (and the community at large) to be enforced, or the jury feels the law is being misapplied by the prosecutor in the particular case they are hearing. While some would argue that jury nullification is never appropriate, I cannot agree with this assertion. Currently, we never instruct our juries, one way or the other, about the appropriateness or inappropriateness of exercising their independence on the issue of the law, However, in certain instances, they find their own way to it anyway. The subject is taboo for attorneys to bring up in front of the jury, and jurors are not advised on the topic by the judge either.

The most significant argument against jury nullification is found in the racially motivated acquittals of those accused of lynching blacks and murdering civil rights activists in the southern states in the Jim Crow era. All-white juries routinely nullified the law in these types of cases, giving free passes to the accused despite overwhelming evidence of guilt. Obviously, these racially motivated jury nullifications cannot be tolerated nor accepted as a society. So, as I say that I believe jury nullification is appropriate in certain cases to provide a social conscience for the community, it is not without serious reservation on my part, recognizing that it may be used inappropriately as history illustrates.

In order to maintain the rule of law, it is my opinion that judges should routinely instruct juries about nullification, the seriousness of it and that it should be applied in the rarest of cases. Courts should sternly and very carefully instruct juries that nullification should never be based upon some ulterior motive, like racial hatred. Attorneys should be allowed to make counterbalancing arguments in favor of, and opposed to, its use in a given case. In allowing openness and transparency by the “system”, it recognizes jury nullification has been in existence in this country since its founding. Historically, juries have taken this responsibility seriously and have not used it in excess, except for those exceptional cases from our past stemming from hatred, racism, intolerance, and ignorance.

When a jury of our peers is confronted in a trial with a law they feel so repulsive in its design or application, and they are unable to nullify it, by finding the accused not guilty, the grave potential is that they will lose confidence in the ability of the system to be fair and impartial in every case. Inform them, put it in front of them and they will use jury nullification when appropriate, as they do now. In New York, a jury verdict in a criminal case requires a unanimous verdict, so just as history dictates, it will be used rarely.

As the full-time City Court judge, will you ensure court staff is considerate and helpful in fulfilling requests for public court documents, and that all public documents are accessible upon request, and that members of the media can make copies of documents using their smartphones in order to avoid document copy fees?
As the full-time City Court Judge, I will be bound by the rules governing judicial conduct which are set forth in New York Code of Rules and Regulations, Part 100. At Section 100.3 (C)(2) these rules state: “a judge shall require staff, court officials and others subject to the judge’s direction and control to observe standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.” As a judge, one must conduct himself in a courteous and non-condescending manner to all individuals the court conducts business with. By virtue of the quoted rule above, the same holds true to the staff that supports the judge.

Having administered a private law office for over 35 years, I am acutely aware of client relations and the impact they have on the success of the business. Although, success may be measured differently for a court than a private law office, the same standards of common decency and dignity towards those that enter the office apply. It is a matter of creating a culture that is positive, and supportive of all team members, and allows for open and frank discussion of office procedures and policies. In this way, the entire team is included and feels worthy of delivering a first-class service to the public.

All public documents will always be made available to the requesting public upon request. In the event the documents are in the file, which may be in the courtroom, there may be some delay in processing by the staff. As for making copies of documents using smartphones, I personally don’t see a reason why that shouldn’t be allowed, but I would defer to the Office of Court Administration that sets down the rules in these matters.

October 28, 2019 - 12:21pm
posted by Mike Pettinella in sports, Bowling.

james_townsend_1.jpgTwenty-one-year-old James Townsend, just two years out of youth bowling, recorded his first United States Bowling Congress-certified 300 game last Monday in the Mancuso Real Estate Doubles League at Mancuso Bowling Center in Batavia.

Townsend, an employee of Walmart Automotive in Batavia, started his series on lanes 7-8 with 12 consecutive strikes and followed that up with 212 and 220 for a 732 series.

The right-hander said he had the jitters on the 12th ball, but came through in fine fashion by putting his MOTIV Golden Jackal bowling ball squarely in the 1-3 pocket.

"My nerves were high, having my first 11 in a row and a lot of people were watching me – a lot of my friends," he said. "But as soon as it left my hand I knew it was going to be in the pocket – it was just a matter of carrying the 10-pin.”

Townsend has improved dramatically over the years and he was quick to credit his father, Paul Townsend, and Tom Fluker – coaches in the Turnbull Heating Junior League -- for working with him.

Also that night and in the same league,Jason Quilliam of Batavia rolled a 299 game – also in the first game – on the pair right next to Townsend – 9 and 10. Jason ended up with a 787 series.

In the Toyota of Batavia League at Mancuso's on Thursday night, Bill Neubert of Batavia led the way with a 755 series.

October 28, 2019 - 12:12pm
posted by Howard B. Owens in City Court, Durin Rogers, news.

Residents of the City of Batavia will select a new full-time City Court judge in the Nov. 5 General Election. The candidates are Durin Rogers and Ben Bonarigio. We sent each candidate a series of questions about their views of the law. We are publishing their written answers verbatim. Here are the answers from Durin Rogers.

Among the current members of the U.S. Supreme Court, which justice do you admire the most and why?
I admire our United States Supreme Court as a whole entity. It is an integral part of our judicial system and an essential part of the checks and balances created by our Constitution to ensure that no one branch of government becomes too powerful. It is part of our American way of life and so important because its decisions can affect so many aspects of our daily lives, whether that be our right to freedom of religion, speech and press; our right to bear arms; our right to travel; our right to legal representation; and so many more.

Do you view the Constitution as a living document or would you define yourself more as a strict constructionist, and if neither of these terms fit your view of the Constitution, how do you view it as a point of Constitutional philosophy?
A Judge should never interpret the Constitution to meet their own individual preferences. As a local court judge, I have an obligation to follow legal precedent (established laws and the decisions of our New York and Federal courts). When I sit on the bench, I likewise expect that the attorneys before me base their advocacy on legal precedent. As such, it would be a rare situation for me to be called upon to interpret the Constitution and determine an issue that has not come up before. Any personal agenda to expand or narrow the intention of the law is inconsistent with the role of a judge as that would be imposing one’s own will on the bench. Instead, every decision of a judge should represent the application of the law fairly and equally to the facts at hand.

What three books related to the law have influenced your thinking the most about legal philosophy and why?
Having first read this book in law school, Roger Fisher and William Ury’s Getting to Yes was of great influence as it taught negotiating and bargaining by separating the person from the problem and taking emotion out of it.

The Federalist Papers, which are indispensable commentaries on the Constitution and the new system of government our Founding Fathers created in the late eighteenth century.

John Grisham’s The Firm was the first legal drama I read while in law school before Tom Cruise starred in the blockbuster movie. It incorporated so many legal issues (attorney-client privilege, search and seizure, probable cause, etc.) in such a great read. It confirmed my love for the law.

There is often a lot of debate around the term “activist judges.” What is your view of such debates? Is this a valid topic or a smokescreen? Is it something the public should worry about?
An activist judge may decide what he or she thinks the law should be, without regard to what it actually is. An activist judge acts as a legislator and blurs the lines between the branches of government. It is not the role of a city Court judge to render decisions that effectively rewrite laws and replace the role of elected legislators. With that being said, as a Judge, I do actively try to administer justice for our community and the people who come before the court. Lawbreakers need to be held accountable for their actions and as a Judge, my goal is to help them realize the value in being constructive members of our community. A judge can use many tools to get individuals to confront and address their problems, whether they are substance abuse issues, mental health issues, or basic issues revolving honesty while ordering appropriate and just consequences for their actions. (CLARIFICATION: On the first published version of this answer, we mistakenly left part of the question unhighlighted making it look like it was part of the answer.  It's now corrected.)

What is your view of jury nullification?
In rare situations, juries have been known to disregard the legal instructions given to them by a court when applying to facts of a particular case. As a sitting Judge, I have an absolute obligation to instruct a jury to follow the law and jurors swear an oath to do so. I have a sworn obligation to advise the jury on what the law is, and it's up to the jury to apply the law to the facts and determine a defendant’s guilt or innocence. If citizens do not like a particular law that has to be applied to a particular case, the remedy under our system of government is for them to persuade their representatives in the legislature to change the law, or to elect new representatives who will do so.

As the full-time City Court judge, will you ensure court staff is considerate and helpful in fulfilling requests for public court documents, and that all public documents are accessible upon request, and that members of the media can make copies of documents using their smartphones in order to avoid document copy fees?
In general, the media and members of the public may get copies of public documents upon appropriate request, yet they are not allowed to photograph documents. While I can certainly appreciate the changes in technology and the ease that this would allow, the decision on whether to allow photography of documents and the fees charged for copies of any documents, are policy decisions made by the New York State Office of Court Administration, not the Batavia City Court Judge. A local judge, part-time or full-time, simply does not have the authority to change these policies based on his or her own personal feeling.

October 28, 2019 - 12:00pm


In addition to the opportunity to start your holiday shopping and enjoy some yummy treats, by attending this year’s event you can help two local families who are going through difficult times.

We will be featuring a big screen TV raffle to benefit the Maniace family. Susan Maniace has been a vendor at this craft show and other local shows for many years and her 20-year-old daughter Olivia, who has cystic fibrosis, is currently at the Cleveland Clinic in serious condition, hopefully awaiting a lung transplant.

Raffle tickets for the TV will be sold at this event and also at the Holiday Hollow event in Holland. NY on Nov. 23rd from 10 a.m. - 4 p.m. The drawing will take place on Nov. 23rd.

Additionally, a portion of the proceeds from Holiday Happenings will be donated to Jessie Elliott, a Pavilion resident who is battling cancer.

Join us at Holiday Happenings on Saturday, Nov. 2nd, and help others while kicking off the holiday season.

October 28, 2019 - 11:56am
posted by Howard B. Owens in plane crash, le roy airport, Le Roy, news.

leroyplanecrashoct20192.jpg

A small plane attempting to take off from Le Roy Airport on Sunday was unable to become airborne and struck an earth embankment, according to the Genesee County Sheriff's Office.

The cause of the crash is under investigation by the Sheriff's Office and the Federal Aviation Administration.

The four occupants in the six-seater Beech A36 were not seriously injured and were able to get out of the plane on their own before emergency responders arrived.

The pilot was John Yates, 48, of Canandaigua. The passengers were his wife and their two children.

The family was on a return trip to Canandaigua.

Emergency dispatchers were notified of the crash at 3:05 p.m. Le Roy fire and Le Roy ambulance were dispatched along with patrols from the Sheriff's Office and State Police.

The occupants were transported to Strong Memorial Hospital for evaluation. 

The plane sustained significant damage to the underbody and front-engine compartment.

Also assisting at the scene were Emergency Management, Le Roy PD, and CHS Mobile Integrated Healthcare.

Photos by Alecia Kaus/Video News Service.

leroyplanecrashoct2019.jpg

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