For the fourth time since he entered a guilty plea for defrauding funeral home customers, Michael Tomaszewski today was granted a delay in his sentencing by Genesee County Court Judge Charles Zambito.
Zambito said he granted the delay reluctantly, noting that at Tomaszewski's last court appearance he told him that continuance would be the last one.
Tomaszewski fired his previous attorney, Thomas Burns, and had told the court in October that he was going to hire a specific private attorney. He did not hire that attorney and, yesterday, Tomaszewski asked for representation by the Public Defenders Office.
First Assistant District Attorney Kevin Finnell, who is also new to the case, called Tomaszewski's failure to retain a new attorney in a timely manner a "delaying tactic." He asked Zambito to proceed with the sentencing today.
Today, Public Defender Jerry Ader appeared with Tomaszewski and said that doesn't know enough about the case or Tomaszewski to appropriately represent him and requested Zambito give him time to review files he received on a flash drive from Burns. He said he hadn't opened the flash drive yet and doesn't know what documents might be on it, what might be missing, nor how many documents he needs to review to prepare for sentencing.
"I don’t have an idea right now how much time I need," Ader said. "I don’t know how much information I need."
Zambito noted that Tomaszewski owes a substantial amount of restitution to his victims, holding up a binder at least three inches thick that he indicated contains restitution claims.
In the gallery, there were a couple of dozen victims who came to court expectingTomaszewski to finally be sentenced.
"There are people here who have been here repeatedly, victims who want to address the court," Zambito told Ader. "There have been victims who have passed away. I received a notice earlier this week that a victim had passed away and this matter still isn't settled."
"I don't what his release status is or bail," Ader said. "I don't know if my client has always appeared in court or what his track record is."
He said with the prospect of Tomaszewski owing victims money, locking him in jail would mean Tomaszewski, who is employed, would stop earning money that might help pay restitution.
And that is a complicating factor in preparing for sentencing, Ader said. He didn't think a two-week delay would give him enough time to prepare.
Some of the victims in the gallery whispered to each their dissatisfaction with the delay as the hearing proceeded. Outside court, a couple confirmed they were disappointed but also said they understand how the court system works.
"I came in, I figured the same thing would happen," said Harry Tyson. "It's just going to be dragged out. And next time we come, it'd be something different. Dragged out. I guess he's doing his job as a lawyer. But, you know, we'd like to see it ramped up and get it over with."
His wife, Kathy, said, "I heard today that he waived his right to a speedy trial for his benefit. But what about everybody that keeps coming back, coming back? Waiting for something to happen?"
Their family lost $7,000 and have little expectation of being repaid, Kathy Tyson said.
"If people cannot get paid back, then I think he needs to be in jail," she said. "I really do. He can't be out there running around and doing whatever."
Al Kurek said he considered Tomaszewski a friend and was disappointed in him. Kurek said he lost $2,800.
"I don't know what happened," Kurek said. "He got too big, too fast? No idea why, but I don't think it was drugs. I don't know if it was gambling. Nobody knows. It's just more out of the pocket than in. What can I say?"
The former funeral director entered a guilty plea in April -- a hearing that had also been delayed a couple of times -- to counts of grand larceny, scheme to defraud, offering a false instrument for filing, and untimely burial.
The plea offer included no promise of a sentence of lesser than the statutory time in prison of two and a third to seven years and he was scheduled for sentencing yesterday.
Tomaszewski, who operated the Michael S. Tomaszewski Funeral Home and Cremation Chapel in Batavia for more than a decade, was initially arrested in July 2020. He initially faced more than 200 charges stemming from accusations that he took money from customers who intended to prepay for funerals and, instead of depositing the money in appropriate accounts, he allegedly used the money for other purposes.
Both personally, and through his company, Acme Holdings of New York, Tomaszewski filed for bankruptcy in Federal Court on Feb. 5, 2020. Combined, Tomaszewski listed $1,094,346 in assets against $3,242,390 in liabilities.
This morning, Zambito wondered if he should revoke Tomaszewski's bail status -- he's released on his own recognizance -- and Ader said he didn't even know enough about the case to represent Tomaszewski on that question.
Zambito said he wanted to make sure Ader had enough time to prepare, he said, because "I'm not going to grant another adjournment."
Ader said there would be "no problem getting the case resolved before the end of the year."
The new sentencing date is Dec. 7 at 10:30 a.m.
Tomaszewski has not missed a court date and when Zambito warned him that if he doesn't appear on Dec. 7, he will be sentenced in his absence.
"I'll be here, Judge," Tomaszewski said.
