Stories from

State Police conducted a DWI checkpoint Saturday evening on Route 5 in the Town of Pembroke.

Six people were arrested:

• Mark A. Newton, 42, of Batavia, charged with DWI
• Edith S. Williams, 48, of Buffalo, charged with possession of a controlled substance, 7th
• Christopher W. Palmer, 40, of Akron, charged with DWAI
• Armand Cummer, 54, of Amherst, charged with felony DWI
• Frederick E. Perry, 31, of Corfu, charged with DWI
• Nathan C. Swimline, 25, of Corfu, charged with DWI

Press release:

Representative Kathy Hochul (NY-26) announced that the Office of National Drug Control Policy (ONDCP) has awarded $125,000 from the Drug-Free Communities (DFC) Support Program to the Genesee County Drug-Free Communities Coalition in Batavia.

The funding will be used to involve and engage the local community to prevent substance abuse among youth.

“I am pleased that the Drug-Free Communities Support program recognizes the great work of the Genesee County Drug-Free Communities Coalition,” Rep. Hochul said. “With the recent rise in the abuse of prescription drugs and bath salts among young people, it is imperative that our communities have the necessary resources to help young people overcome these life-altering addictions, particularly in our rural areas.

"Working together to keep our youth drug free is critical to creating strong communities that are safe, healthy, and drug free. This funding will provide the support necessary to implement substance abuse education and prevention programs across Genesee County.”

The DFC Program was created by the Drug-Free Communities Act of 1997 and reauthorized by Congress in 2001 and 2006. Since 1998, ONDCP has awarded more than 2,000 Drug-Free Communities grants nationwide.

Earl Key (top photo, Jacquetta Simmons leaving court with Ann Nichols following the verdict).

Lawrence Friedman

Asked if his client, Jacquetta B. Simmons, got a fair trial, attorney Earl Key said, "I'm going to appeal that, so we'll see."

Earlier, as reporters walked with him as he left the courthouse, Key declined to say on what basis he might appeal the conviction.

Expanding on the fair trial thought, however, Key said it's possible intense local and regional media coverage made it much harder to ensure Simmons had her case heard before a fair and impartial jury.

"I think the media coverage -- no offense to you guys at all -- definitely hurt her chances of a fair trial," Key said. "As you heard during jury selection, we didn’t have one juror that said -- well, we had a couple, but not very many – who said they had not heard about this case.

"Even the ones who were on the panel had said they had formed an opinion, but they said they could set that aside and be fair and impartial, and the judge accepted their word at that."

Simmons, the 27-year-old Batavia woman convicted today in Genesee County Court of assaulting a 70-year-old Walmart employee, will be sentenced Nov. 15.

District Attorney Lawrence Friedman disagreed with Key's assertion.

"You were there for jury selection," Friedman said. "We went through an unusually large number of people to seat a jury. Obviously there were a lot of people who came through saying they had seen coverage, way more than we’re used to, and they had formed an opinion and, unfortunately, many people said they couldn’t set those opinions aside, and of course they didn’t wind up on the jury."

Key said he was obviously disappointed in the outcome of the case and that he firmly believes the video evidence presented at trial clearly shows a Walmart employee grabbing his client's arm and that she is trying to break free of that grasp when she strikes Grace Suozzi.

"In certain spots, the video is unclear," Key said. "I don't know that they (the jury) saw it the way I saw it."

Asked by a reporter if he thought Sharon Reigle, a Walmart customer service manager, lied on the stand about grabbing Simmons, Key didn't answer the question directly, but said, "She absolutely grabbed her arm, in my opinion."

During the trial there were several profane statements attributed to Simmons that were racially charged.

Some readers of The Batavian have questioned why Simmons wasn't charged with a hate crime.

Friedman said the facts of the case didn't fit the penal code, which requires that race be proven as a motivating factor in the crime.

"Clearly there were comments made, particularly later in the sequence of events, that relate to the race of the victim," Friedman said. "We didn't see necessarily that the crime occured because of the race of the victim."

Simmons was convicted under a relatively new New York statue that makes it a Class D felony for a person 10 years younger than a victim who is 65 or older to assault such a victim.

Originally, Simmons was also charged with the more straightforward assault in the second degree charge, which requires proof of intent to cause serious physical injury.

Prior to the start of the trial, Judge Robert C. Noonan ruled there was insufficient evidence to charge Simmons with intent to cause serious physical injury, so he reduced the charge to a misdemeanor of assault, 3rd.

Without the enhanced assault 2nd charge, the so-called elder-abuse statute, Friedman would have been left with no choice but to prosecute Simmons on the misdemeanor, which carries a maximum sentence of one year in jail.

While such crime enhancements are often controversial among civil libertarians, Friedman said any time there are additional ways to charge a perpetrator with a crime it "helps keep society safer."

"I think it's appropriate for obvious reasons," Friedman said. "You're dealing with more vulnerable victims, either young children or older adults, who are more vulnerable to injuries that can be much more serious. So from my perspective, it's absolutely appropriate."

Simmons turned down a plea bargain several weeks ago that would have capped her sentence at three-and-a-half years in state prison with an available sentence to Judge Noonan of straight probation (no jail time).

Now she's facing a sentence that ranges from probation up to seven years in prison.

A Genesee County jury of 10 women and two men has found Jacquetta B. Simmons, 27, of Batavia, guilty of assault in the second degree.

Simmons will be sentenced at 9:15 a.m., Nov. 15. She's free on bail pending sentencing.

Two attorneys, two different interpretations of what a video surveillance recording from Dec. 24 inside Walmart shows actually happened when 70-year-old Grace Suozzi was hit by 26-year-old Jacquetta Simmons.

There's no dispute, said defense attorney Earl Key, that his client hit, or even punched, Suozzi.

What the recording clearly shows, Key said, is that a Walmart store employee grabbed Simmons by the arm and Simmons tried to swing free and accidentally hit Suozzi.

Like Key in his closing statement in the trial of Simmons on a charge of assault in the second degree, District Attorney Lawrence Friedman went through the video frame by frame and pointed out to jurors that the recording shows something very different than what Key said it shows.

The video shows, Friedman said, that customer service manager Sharon Reigle, isn't even close enough to Simmons to be holding her arm when Simmons starts her swing.

As Simmons starts that swing, Friedman said, you can see Suozzi stepping back, realizing, as she testified, that Simmons is going to try and hit her.

As Simmons hits Suozzi, Friedman said, Simmons is looking directly at Suozzi. In the next frame, Friedman said, you can still see Simmons looking directly at Suozzi as she falls backward to the floor, and Simmons is still looking at Suozzi, Friedman said, as Suozzi slides across the floor.

Those actions, Friedman said, contradict Simmons' claims that she didn't intend to hit Suozzi and that she didn't know she hit and injured Suozzi.

In closing arguments, the defense always gets to make its case to the jury prior to the prosecution.

Key went through the testimony witness by witness, arguing that the prosecution failed to prove the most important fact under dispute: Whether Jacquetta Simmons intended to hit and injure Grace Suozzi.

"You can see clearly from that video that she is being held," Key said. "You can see that she's swinging her arm away. The prosecution has the obligation to prove my client intentionally hit Ms. Suozzi. We all know Jacquetta hit Ms. Suozzi. They have to prove she did it intentionally."

Going through witness testimony, Key noted that Alex Derefinko said he saw a small scuffle before Simmons hit Suozzi.

While Reigle denied grabbing Simmons, Key told jurors she had a motivation to lie because by her testimony the 10-year Walmart employee knows she would be fired if she touched a customer.

While Dylan Phillips testified that he saw Reigle four or five feet away from Simmons, Key said the video shows Reigle standing right next to Simmons.

As for Suozzi, Key said, she is of course a sympathetic person, but that doesn't mean her version of events is what actually happened.

"I submit to you that Grace probably really believes that Jacquetta hit her on purpose," Key said. "But just because you believe something doesn't make it true."

While Key acknowledges that Simmons used obscenities during the incident, he said the most inflammatory statements were not substantiated by second witnesses. In each case, he said, only one person testified to those specific statements.

For example, outside of Walmart, Samual Hackenberg testified that heard Simmons say, "I don't give a fuck about these dirty white people."

Key said the accusation isn't believable because Hackenberg didn't even mention the statement until a month after the incident and nobody else said they heard it.

Even though Hackenberg claimed Simmons said it while standing next to a police car, Key noted that Trooper James Baines didn't include the statement in his report (Baines testified that all suspect statements are included in reports) and didn't repeat the statement during his testimony.

Regarding the testimony of Randy Johnson, Key said it was noteworthy that the prosecution didn't call Johnson, who testified that he saw Reigle grab Simmons.

Johnson also testified that he saw Simmons trying to leave before the punch was thrown.

"They didn't call anybody who disagreed with their theory of the case," Key said. "This trial is supposed to be a search for the truth, not a win at all costs. Let's hear from everybody and let you decide for yourself."

He criticized Friedman's attempt to impeach Johnson by going through a long list of police contact with Johnson that involved Johnson's mother.

"Friedman beat him over his head about things that had to do with his mother," Key said. "But do you disbelieve his testimony because he has trouble with his mother?"

Key told the jury to note that it wasn't the defense that brought race into the trial; it was the prosecution.

He said both Jacquetta and Isaac testified that they were upset on Christmas Eve because they thought they were being accused of stealing. Neither mentioned being upset about anything related to race.

Key closed by emphasizing that the prosecution has the burden to prove Simmons intentionally hit Suozzi, and if there is reasonable doubt that she did not intend to hit Suozzi, then the correct verdict is "not guilty."

"If you say you don't know whether she is guilty or not, that's not guilty," Key said. "If you don't know, that's not guilty."

Friedman said there are three elements of the crime the prosecution must prove.

First, that the victim was injured; second, the age differences of the defendant and the victim; and, that Simmons acted with intent.

There is no dispute over the first two, elements, Friedman said, so that leaves intent and the evidence and testimony, he said, certainly proves intent beyond a reasonable doubt.

Multiple witnesses, Friedman said, testified they saw Simmons pulling her arm back to take a swing at Suozzi.

Simmons acknowledged, Friedman said, that she wasn't going to show Suozzi her receipt.

On the subject of Johnson's testimony, Friedman said Johnson's testimony in court contradicts a statement he gave to police on Dec. 24 and that Johnson admitted that, based on his experience as a boxer, he thought it looked like Simmons intentionally positioned her body to throw a punch.

Friedman also noted that Johnson, who was called to the stand by the defense, testified that out in the parking lot Simmons warned Johnson, "Watch it, or you could get it, too."

That's not the statement, Friedman said, of somebody who just hit an elderly woman accidentally.

Also in the parking lot, Isaac Simmons was on the phone with his mother and he acknowledge telling her, "Mom, Jac just punched somebody and she's going to jail."

"That doesn't sound like somebody who just saw his sister accidentally hit somebody," Friedman said.

Friedman also took aim act Jacquetta's credibility.

Simmons had said she didn't even know she hit Suozzi until two hours later when she viewed the surveillance video at the police station, but evidence and testimony, even her own, Friedman said, contradicts that claim.

For example, Simmons testified that somebody in the parking lot told her, "You can't hit a white woman like that."

"When Trooper Baines showed her the video, after it was over, he said, 'I don't know how you're going to justify this,' " Friedman said. "She just shrugged her shoulders. She was agreeing with him. She couldn't justify it."

Following closing arguments, Judge Robert C. Noonan explained the rules of evidence and the law to the jury, a process that took close to an hour.

Around 12:30, the jury began deliberating. About 15 minutes later, Noonan received a note from jurors asking to review the video evidence.

The jury was brought back into the courtroom and the video was played while they all sat in the jury box, leaning forward trying to get the best view possible of the video.

The jury is currently back in deliberations.

UPDATE 2:09 p.m.: The jury has returned to the courtroom to view again the video of Suozzi being hit. They asked to be situated closer to the viewing screen and to watch it both in real time and four times frame-by-frame with a three-second pause between each frame. The video is now being projected on the back wall of the courtroom, closest to the jury box.

James Russell Kosiorek, 19, of Burgess Avenue, Greenville, S.C., was taken into custody on a bench warrant stemming from a second-degree assault charge. Kosiorek allegedly fled New York after being accused of assault, 2nd. The FBI contacted Sheriff's Investigator John Baiocco informing him Kosiorek had been located in South Carolina. Baiocco contacted the Greenville County Sheriff's Office. Kosiorek was taken into custody, waived extradition and was transported back to Genesee County. Kosiorek was arraigned in county court and ordered held without bail. Kosiorek was then arraigned in Batavia City Court on a charge of bail jumping.

Kenneth Damien Kowalik, 51, of Barrville Road, Elba, is charged with petit larceny. Kowalik is accused of shoplifting at Target.

Steven L. Fetterly, 28, of Elba, is charged with criminal mischief, 4th, and harassment, 2nd. Fetterly was arrested in Elba by State Police for an incident reported at 7:44 p.m., Wednesday. No further details were released.

A Rochester man is suspected of dealing crack cocaine in the City of Batavia with the help of an East Main Street resident, who allegedly allowed the man to operate his drug distribution business out of her apartment.

Taken into custody following an investigation by the Local Drug Enforcement Task Force were Dion "D" L. Clyburn, 27, of Dewey Avenue, Rochester, and Lisa M. Vega, 42, of East Main Street, Batavia.

Clyburn is charged with two counts of criminal sale of a controlled substance, 3rd, criminal possession of a controlled substance, 3rd, and unlawful possession of marijuana.

Vega was charged with criminal nuisance, 1st, criminal possession of a controlled substance, 7th, criminally using drug paraphernalia, 2nd, and unlawful possession of marijuana.

A third person was arrested when Vega's apartment was raided. Michael J. Illasi, 42, of East Main Street, Batavia, is charged with unlawful possession of marijuana.

Task force members along with deputies and Batavia PD officers executed a search warrant at 679 East Main St., Batavia.

Investigators allegedly found a quantity of cocaine, marijuana and drug paraphernalia inside the apartment.

Clyburn was jailed on $5,000 bail and bail for Vega was set at $1,000.

For the first time in public, Jacquetta Simmons told her side of the story today, and in front of the one audience whose opinion of the events on Dec. 24 at Walmart really matter: A jury of 12 Genesee County residents who tomorrow must decide whether a 26-year-old Simmons intentionally punched 70-year-old Grace Suozzi.

Simmons, now 27, said she had no idea she even hit Suozzi until hours later. She said she was horrified to learn she had injured Suozzi and it's been a painful realization ever since.

"I feel horrible about it," Simmons said during her only tearful moment on the stand. "I wasn't expecting somebody being -- how was I supposed to know she was standing right in front of me? I keep thinking 'how could I have hit this elderly lady and I don't remember that I hit her?' "

Reliving the realization, Simmons said, caused her to drop out of a business administration program at SUNY Brockport. She said she couldn't concentrate on her studies.

District Attorney Lawrence Friedman, however, judging by his cross examination, wasn't buying Simmon's contention that Suozzi was hit on accident.

While Simmons contends that somebody -- she doesn't know who -- grabbed her arm and, in her own words, she "aggressively" pulled away from the person, causing her to strike Suozzi, Friedman wanted to know how Simmons couldn't have seen Suozzi.

Through repeated questioning, Friedman got Simmons to admit that Suozzi was just a foot or so in front of her when she "punched" Suozzi.

The distinction between "punch" and "hit" came up a few times during a day full of testimony from prosecution and defense witnesses, with the implication being that "punch" meant an intentional act (though never explicity spelled out) and "hit" being accidental.

In various ways, through various questions about events, Friedman got Simmons, whose background includes volunteer work in literacy training and child and elder care, to repeatedly admit to "punching" Suozzi.

According to Simmons, here's how events transpired.

Simmons, she said, awoke at 10 that morning. Her mother asked her to go to the grocery store and purchase items needed for Christmas Eve dinner. Her brother, Isaac, tagged along, which Simmons said he usually does when she goes out for household errands (both Jacquetta and Isaac lived with their parents at the time).

First, the duo went to Tops and purchased some items.

Then they went to Walmart. They purchased turkey bags, cream cheese and three or four other items.

After going through one of the express lanes, they saw some chicken for sale in the hot foods section of Walmart and decided to buy something to eat.

They then got into another express lane. In this case, it turned out the cashier was Grace Suozzi.

When they got to the checkout counter, Simmons said she said hello to Suozzi and Isaac wished her a happy holiday, but Suozzi didn't respond.

After paying for the chicken, Suozzi, Simmons said, told her brother to hand over the Walmart bag and asked for a receipt.

Isaac told Suozzi his sister had the receipt.

According to Simmons, Suozzi kept asking Isaac for the receipt even as Isaac and Jacquetta kept telling Suozzi that Jacquetta had the receipt.

Simmons said her brother, who once worked for a Walmart in Henrietta, told Jacquetta, "they're not supposed to ask for your receipt anyway."

Suozzi then left her cash register and came around a "took" the Walmart bag from Isaac.

Either before or after Suozzi gained possession of the bag, Simmons pulled out a receipt and "showed" it to Suozzi (under cross examination, Friedman would focus on this point).

At some point after Suozzi had the bag, Simmons said she told Suozzi, "Give me my fucking bag back."

According to Simmons, Suozzi repled, "I'm not going to give you anything back."

She said Suozzi kept asking for the receipt and Simmons said, "I already showed you the fucking receipt."

At some point, Simmons said, Suozzi put the bag on the turnstile, and at that point, Simmons grabbed the bag. She said Suozzi reached for it at the same time, which caused the handles of the bag to rip.

She had to cradle the bag in her arm, she said, because it was hard to keep the items in the bag.

Simmons said she wanted to leave the store, but as she turned to leave, somebody grabbed her arm with some force.

"They had a nice grip on me," she said. "I pulled away very aggressively."

She said for a second afterward, she didn't know what to do and just stood there and then her brother told her to get out of the store.

Once outside, she said, she and her brother tried to get into her mother's minivan, which has a handicap placard and was parked in a handicap stall.

Two men, she said, came up to the van and opened the driver's side door and grabbed the keys from the ignition.

She said a woman came up and said, "You can’t hit a white woman like that. Who do you think you are? Who do you think you are?"

Simmons said with all of the people coming after her she was scared.

"We were being mobbed and they acted they like they knew what happened," she said. "I myself didn't know what happened completely."

With the van blocked in and no keys, she said she and her brother decided to leave the van and try to get away from the crowd.

During cross examination, Friedman called some elements of the story into question.

First, Friedman got Simmons to admit she was angry during the confrontation. Simmons adamantly wouldn't admit to being angry at Suozzi, but said she was angry at being asked to show a receipt.

Simmons also admitted that when she found the correct receipt in her pockets, she held it at a distance she knew would make it impossible for Suozzi to read.  Simmons, by her own testimony, never offered to hand the receipt to Suozzi.

Friedman also challenged Simmons on her claim that she didn't know she hit Suozzi until she saw the video at the State Police barracks.

In an incredulous tone, Friedman asked Simmons why she thought a crowd of people were chasing her in the parking lot, especially after Simmons said she thought it was because the crowd considered her a thief.

"Did they accuse you of stealing," asked a snarky Friedman?

"No," Simmons said.

Simmons also denied telling Trooper James Baines, who had testified earlier,  that "somebody grabbed me. I don't remember what happened. I just punched."

Simmons said she never told Baines, "I just punched."

Prior to Simmons' testimony, her brother Isaac took the stand as a defense witness.

Contrary to some of the testimony on Wednesday, Isaac testified that when Suozzi first asked for a receipt for the items in the bag in his hand, he said he refused to produce it.

The former Walmart employee said he told his sister, "You don't need a receipt."

He said his sister pulled out two receipts from her pockets, one from Tops and one from Walmart.

As for somebody grabbing his sister after Simmons regained control of the bag of merchandize, Isaac said, "A lady grabbed her and stuff."

Simmons pulled away, he said, and yelled, "Get off me."

A skeptical Friedman couldn't believe that a small, 70-year-old woman would take, by force, a bag of merchandise from the 6' 1", 211 pound Isaac Simmons.

According to Isaac, his sister never used the word "bitch."

Isaac denied calling his mother while in the parking lot and telling her, "Jac punched an old lady and she's going to jail."

He said he used the word "hit" and said he told his mother "the police are coming."

Under cross, Isaac admitted that in any version of his story prior to meeting with a private investigator from Key's office, he always used the word "punch."

To further impeach Isaac's testimony, Friedman questioned Isaac on his guilty plea in Greece for petit larceny.

Isaac, under repeated questions, admitted that he had committed numerous parole violations, including failing numerous times to report to his probation officer, using marijuana, testing positive for marijuana, drinking in violation of terms of probation, endangering the welfare of a child, operating a motor vehicle without a license, leaving Monroe County without permission and failure to notify probation when questioned by a police officer.

Isaac said he was trying to get his life together and was attending college.

In the morning, testimony began with a prosecution witness, Piper Sharick, a 16-year employee of Walmart.

Sharick said she hasn't worked since the end of April because she is suffering from PTSD as a result of the incident Dec. 24.

In attempt to calm down the situation after arriving on scene, Sharick said, she told Simmons she could print out another copy of the receipt.

"She just kept yelling, 'Give me my fucking shit,' " Sharick said.

When Simmons struck Suozzi, Sharick said, "It was a horrible sound, like the biggist, loudest smacking sound you could ever hear."

She testified that Simmons made a fist before striking Suozzi.

During cross examination, Sharick basically conceded the Batavia Walmart store had no policy in place on Dec. 24 for how to handle a customer who refused to show a receipt.

Next, for the prosecution, Samual Hackenberg (an assistant manager) testified that he didn't arrive on scene until after Suozzi was hit.

After ensuring Suozzi was being cared for, he went outside to see what was going on.

He testified that once outside, he said he heard Simmons say, "Do you think I care about these dirty white people?"

During cross examination, attorney Earl Key wanted to know why Hackenberg didn't tell anybody about this remark until a month after the event.

When Friedman re-questioned Hackenberg, he said he remembered the remark because after it was made, a coworker standing next to him quipped, "Well, I showered today."

The final prosecution witness was Trooper Baines.

Baines said Simmons asked him to see the video tape of the incident.

He said that when he told her, "I don't know how you're going to justify this one," Simmons just shrugged.

Just before the lunch break the defense called Patty Jacobs, even though the prosecution had not yet officially ended its case.

Testimony from Jacobs was taken early because of some schedule conflict she had if she was held over for the afternoon.

During the course of Jacobs' testimony, it was clear that Key was trying to find a way to get into evidence a statement Jacobs made on Dec. 28 on Facebook.

Jacobs wrote that day that she was in line behind Simmons and witnessed the whole event.

"The cashier asked her for a receipt," Jacobs wrote. "It was the wrong one, so she punched the elderly lady in the eye."

The jurors never heard that statement because of the nature of rules of evidence. Instead, they heard Jacobs say that she saw Simmons holding, but not showing to Suozzi, a Tops receipt, which she recognized because of the coupons on the back.

After lunch, the defense called Randy Johnson.

In his direct testimony, Johnson said he saw a woman grab Simmons' arm and Simmons swing her arm forward to try and escape from her clutches, causing her to hit Suozzi.

During cross examination, Friedman was relentless in impeaching Johnson's credibility.

First he called into question Johnson's claim that he's only lived in Genesee County for about a year.

With a stack of police reports, Friedman went through date-by-date numerous police contacts Johnson has had since November 2008.

Most of the contacts involved Johnson being kicked out of his mother's home, but Johnson has also been accused of unauthorized use of a motor vehicle, criminal mischief (for punching his parents $35,000 car) and being sanctioned by DSS.

Most of the calls involving his mother, Johnson said, is because she's an alcoholic.

Friedman then went after Johnson for discrepancies between his testimony Thursday and his previous statements to police and to the DA's office.

In July, Friedman interviewed Johnson. After repeated questions, Johnson admitted that he previously told Friedman that he could tell Simmons intentionally punched Suozzi based on his experience as a professional boxer.

According to Friedman, Johnson had said because of the way Simmons cocked her arm and the stance he took along with her follow-through, as a professional boxer, he recognized the swing and an intentional punch.

The final witness called by the defense was Donald Stillwell, the loss prevention manager for Walmart.

Stillwell testified that in order for a customer to be accused of shoplifting, a loss prevention officer or a salaried manager or an hourly shift supervisor must observe four things:

• The suspect selects an item;
• The suspect conceals the item;
• The suspect is under constant surveilance;
• The suspect bypasses the final checkout point without paying for the item.

If any one of those for criteria are missing, Stillwell said, the customer cannot be detained as a shoplifting suspect.

When Friedman cross examined Stillwell, he said the situation involving asking a customer for a receipt wouldn't fall under the shoplifting criteria.

He did say, once a cashier encounters a customer who won't show a receipt, the matter should be turned over to a customer service manager and the cashier should have no further involvement in the situation.

According to Stillwell, the Batavia store has one of the worst records in the Walmart chain for shoplifting, or what loss prevention professionals call "shrinkage."

In 2010, Stillwell said, the Batavia Walmart store lost more than $600,000 to thieves.

The following year, things only got worst with shrinkage exceeding $680,000.

An intoxicated individual has called dispatchers to report that he's in a wooded area in Batavia but can't find a way out.

His location plots off Mill Street, behind the skate park, near the Tonawanda Creek.  He's north of the train building.

Batavia PD is responding to assist the man.

This is apparently not the first time this individual has gotten lost in the same area.

UPDATE 11:33 p.m.: A Batavia officer is "down by the creek" (or "crick") and requests dispatchers try to re-establish telephone contact with the caller.

UPDATE 11:35 p.m.: Dispatchers re-established contact with the caller and are trying to get him to yell out so the Batavia officer can hear him. They're also going to try and get him to call back on 9-1-1 so they can again plot his location.

UPDATE 11:37 p.m.: He's northeast of the patrol cars. The dispatcher will  try to guide the patrol into the man's location. "He says he's stuck."

UPDATE 11:41 p.m.: The subject has been located.

Two vehicles are reportedly on fire at 8390 E. Main Road, Le Roy -- Stella's Collision.

Chiefs from Le Roy fire are on scene. Trucks from Le Roy are responding.

Vehicles are "going good," says a chief. Both vehicles are outside the fence.

UPDATE 11:09 p.m.: National Grid requested to the scene for the power line above the area of the fire.

UPDATE 11:25 p.m.: Fire is under control.

UPDATE 11:34 p.m.: National Grid on location.

UPDATE 12:02 a.m.: Le Roy has a light tower in place.

UPDATE 12:20 a.m.: Le Roy fire is back in service.

View Larger Map

This first video shows a ceiling view of express lane #2 in Walmart's grocery section when Jacquetta Simmons and Isaac Simmons purchase some hot chicken just before Grace Suozzi requests a copy of the receipt for items in a Walmart bag being held by Isaac. The sequence covers the entire transaction up to the point just after Suozzi leaves her register after Simmons grabs her bag of purchased items.

This video shows a wide aisle way from the point Randy Johnson, a defense team witness, enters the frame through the point where customers are following Simmons out of the store.

This video shows what transpired in the parking lot after Simmons left the store.

NOTE: A big "thank you" to Mark and Michelle Johnson of Millennium Computer on Washington Avenue in Batavia. Once the District Attorney's Office located a CD with the video on it that could be turned over to the media (the copy in the courtroom is evidence and could not be turned over), I took the CD to Millennium. Michelle, during lunch hour, immediately began making duplicate copies for all of the various news agencies that requested copies, such as WHAM13, News10, YNN, WBTA, WIVB, The Batavian and the Batavia Daily News. They did all this work for no charge to any of the media outlets.

Bob Bowcock spent much of his time at the American Legion Hall on Wednesday evening talking about the Lehigh Valley Train Derailment Site and spilled TCE at a community meeting originally billed as a joint appearance by Bowcock and Erin Brockovich.

Brockovich didn't make the trip. According to Bowcock, she developed a staph infection following a hospital visit with her pregnant daughter.

About 100 people attended the event, plus pretty much every news outlet in Batavia, Rochester and Buffalo.

Bowcock said his goal for the meeting was to empower the community with knowledge and help them seek answers for apparent environmental hazards in their community.

While he said he considers the identified dangers real and significant, he doesn't believe they are connected to the tic outbreak among mostly Le Roy High School students last year.

He also hasn't ruled out an unidentified environmental cause.

He noted that the girls who have been treated by medical doctors have gotten better and the girls who were treated by mental health doctors have gotten better.

"Why they got better, I don't know," Bowcock said. "I don't think any one scientist can articulate (why)."

The three environmental concerns for Bowcock in Le Roy are the derailment site, MTBE (an outlawed gas additive) found in water wells on Harris Road, and the natural gas wells on school property.

Bowcock made it clear, he considers the EPA's handling of the Superfund site on Gulf Road both slipshod and irresponsible.

The spill should have been remediated decades ago, he said.

"It's a situation that's not good," Bowcock said. "It's not healthy," adding, "I think the EPA should be ashamed of themselves. They need to get out here and they need to get serious."

Lehigh Valley Railroad is a multimillion-dollar holding company, Bowcock noted. There are homeowners who have seen their property values decline, potentially, because they must disclose TCE contamination below the surface of their homes. More than a dozen of them must constantly run noisy filtration systems.

The property owners, he suggested, should be compensated for their losses, possible related health problems and time, aggravation and any of their own expenses for dealing with contaminated water.

Bowcock said there should be extraction wells in the area, drawing up contaminated water and "cones of depression" to help draw the water out. The water should then be treated and the contaminates incinerated.

"Not one gallon of water has ever been treated at that site," Bowcock said.

Though it's never been statistically documented, people in the Limerock area believe just about every home within the plume area has had one or more cancer patients.

Bowcock noted that scientists have criteria for identifying "cancer clusters," but nowhere in the United States has a "cancer cluster" ever been scientifically validated. He doesn't expect that to be the case in Limerock.

"If every household in a community has a cancer patient, if that's the case, I wouldn't call it a cancer cluster," Bowcock said. "I would call it a catastrophe."

At one point during the meeting, Bowcock introduced a representative from the environmental law firm Weitz & Luxenberg. 

Brockovich has been a paid spokesperson for Weitz & Luxenberg.

Asked about any possible perception that Bowcock's community meeting might be an infomercial for Weitz & Luxenberg, Bowcock said that certainly wasn't an impression he intended to leave.

"I actually kind of went out of my way to downplay it, if anything," Bowcock said. "I didn’t allow her to speak. I introduced her only after somebody asked 'who’s the girl sitting next to you?' If the perception is we were doing an infomercial for a law firm, I wouldn’t know what we were doing an infomercial for, because there’s been no decision made that we would even litigate."

On the Harris Road issue, Bowcock noted that the DEC was out on Harris Road yesterday for the first time getting its own water samples from the possibly contaminated wells.

As for natural gas wells on Le Roy School District property, Bowcock said he didn't care what kind of extraction was being used, whether fracking or some other method, they are natural gas wells and the district needs to be fully transparent about what's going on with them.

"There are six natural gas wells on school property that need to be regulated in a format or a formula that the community is comfortable with," Bowcock said.

Bowcock did praise the district for being far more transparent in the past several months than he at one time expected and said he believed the district would do the right thing.

On any environmental issue, Bowcock stressed that while the meeting was meant to bring some sense of closure on a number of lingering questions from community members -- he said he gets daily emails from people in Le Roy -- he said he and his firm were not abandoning Le Roy.

"I will be back at your invitation and your invitation only," Bowcock told the audience near the end of the meeting. "We will fight to get that TCE removed with you and only fight with you if you fight with us."

Frank S. Smith, 18, of Lake Avenue, Perry; Zachary J. Ayres, 18, of Caswell Road, Byron; Thomas E. Hayes, 20, of Dellinger Avenue, Batavia; Matthew W. Ianiro, 17, of Elm Street, Le Roy; Maria L. Martinez, 16, of Horseshoe Lake Road, Batavia; and Adrienne S. Bechtold, 16, of Vine Street, Batavia, are all charged with criminal trespass, 2nd. Smith is additionally charged with unlawful possession of marijuana and unlawful possession of alcohol under age 21. Ayres and Hayes were charged with unlawful possession of alcohol under age 21. The suspects are accused of being inside an apartment on Walnut Street at 11:40 p.m., Tuesday, without permission of the resident, who was not home at the time.

Michael James Mead, 25, of Elmwood Avenue, Rochester, is charged with criminal contempt, 2nd. Mead is accused of trying to pass a message through a third party to a person protected from contact by a court order.

Samuel Robert Thompson, 57, of Highland Avenue, Batavia, was arrested on a bench warrant out of Monroe County and turned over to Rochester. The reason for the underlying warrant was not released.

Lisa Marie Sequerth, 42, of West Main Street, Batavia, was arrested on a bench warrant for an alleged failure to pay a fine. Sequerth appeared in family court on an unrelated matter and was taken into custody for an alleged failure to pay a fine on a case in county court.

Margaret C. Henderson, 59, of Arrington Drive, Selbyville, Delaware, is charged with DWI, driving with a BAC of .08 or greater and speeding. Henderson was stopped at 7:39 p.m., Tuesday, on Route 20 in Bethany by Sgt. Greg Walker for allegedly driving 100 mph in a 55 mph zone.

Gregory Seppe, 48, of North Spruce Street, Batavia, is charged with appearing in public under the influence of narcotics. Seppe was allegedly under the influence of drugs at Prestige Crossing, Batavia, at 11:25 a.m., Aug. 15. Seppe allegedly fell off his bicycle numerous times on a public roadway endangering himself and causing a public annoyance. The case was investigated by Deputy Chris Parker, assisted by Officer Eric Hill.

Tyler Steven Prescott, 16, of Ellicott Street Road, East Bethany, is charged with criminal mischief, 3rd. Prescott is accused of participating in destruction of property at a residence in Pavilion on Aug. 11.

Two teenagers were taken to ECMC today after an ATV they were on while crossing Day Road was struck by a car.

One patient was transported by Mercy Flight.

Injured where Manual Cruz-Santiago, 15, and Vanessa Caswell, 17.

Their medical status is not currently available.

According to an accident report by Deputy Cory Mower, Cruz-Santiago and Caswell were struck on Day Road near Sprague Road by a southbound car driven by Jennifer L. Shaw, 27, of Dodgeson Road, Alexander.

No citations were issued following the accident, which was reported at 10:45 a.m.

The defense of Jacquetta Simmons, the 26-year-old Batavia resident accused of punching a 70-year-old Walmart employee on Christmas Eve, seems to rest on convincing a jury of 10 women and two men that Simmons swung her arm to escape the grasp of another woman and hit Grace Suozzi by accident.

Witness after witness today offered testimony that either contradicts or doesn't support that theory of the case.

Suozzi herself testified that she clearly saw Simmons draw her arm back to prepare a punch, causing Suozzi to try and raise her arm in a futile attempt to protect her face from the punch.

Testimony today was laced with profanity as witnesses recounted what they remember Simmons saying during an argument over producing a store receipt that escalated into the alleged assault.

Early in her testimony, Suozzi apologized to the jury for the language she would have to use, but the Italian immigrant grandmother was required to repeat one F-word after another as she recalled Simmons streaming verbal abuse.

The one profane word Suozzi didn't attribute to Simmons, the C-word, was mentioned by a young male Walmart employee, and when he uttered it, a ripple of reaction went through the mostly female jury.

Jurors were also shown three videos that captured some of what happened Dec. 24 inside and outside Walmart.

The sequences are not true video, but more like a string of still-frame pictures, making the visual record jerky and filled with gaps.

The key event of the video, when Suozzi was hit, is off to the left of the frame. It's a small portion of the frame, and with other people standing around it's hard to discern exactly what took place just prior to Simmons swinging her arm.

Numerous news outlets, including The Batavian, have requested copies of the video. Judge Robert C. Noonan said he is inclined to honor the request, considering the video at this point to be public record. But defense attorney Earl Key, who said already he opposes the release, will be able file a formal motion against the release in the morning, if he chooses.

The first witness called by the prosecution was James Gayton, of Batavia. Gayton said he and his finance were in the next check-out line over when he heard somebody starting to yell profanities.

"I don't need no fucking receipt," is what he said he heard.

He was close enough, he said, to hear the man with Simmons -- identified as her brother Isaac -- on the phone saying, "Mom, come quick. Jac's flipping out at the cash register and we need a receipt."

He said after he saw Simmons hit Suozzi, the brother and sister ran from the store and he ran after them. 

Simmons had parked the minivan she was driving in a handicapped spot -- her mother is reportedly handicapped -- Gayton said, and there was another car parked at an angle, apparently illegally. Gayton said he convinced that driver to back up so Simmons was unable to pull the minivan forward. When a truck came down the parking lane, he convinced the driver to park behind Simmons' van.

Somebody else grabbed the car keys from Simmons (another witness testified the keys may have been taken from the van's ignition). Simmons and her brother then began walking away from the minivan but store patrons pursued them.

Gayton testified that at no time did he see anybody, inside or outside the store, grab Simmons.

His finance, Nichole Newton, also testified that she didn't see anybody grab Simmons.

Newton testified that she heard Isaac Simmons on the phone while in the parking lot talking on his mobile phone, saying, "She punched an old lady, Mom. You need to come. She punched an old lady and she's going to jail."

The next witness was Alex Derefinko.

He said he became aware of the argument while he was in the store when he heard Simmons say repeatedly, "Give me my shit, bitch."

He said the observed a Walmart employee trying to ask Simmons something, but Simmons continued to yell profanities at her.

He said he had turned away for a second to complete his own purchase and when he turned back, he saw Suozzi get hit and go flying across the store floor.

Under cross examination by Key, Derefinko said he didn't see anybody standing next to Simmons prior to the punch being thrown.

Sharon Reigle, a Walmart customer service manager, testified that she came to Suozzi's register after she heard a call on her walkie-talkie for another CSM to respond.

When Reigle arrived, she said, Suozzi was behind her register, holding a bag of merchandise and Simmons was yelling at Suozzi.

"I wanted to try and defuse the situation," Reigle said.

While Reigle said after eight months she couldn't remember exact phrases and sentences used by Simmons, she said Simmons dropped F-bombs multiple times.

A video taken from a camera directly above Suozzi's register reveals, according to Reigle's testimony, Suozzi standing at her register holding the bag of items purchased by Simmons and Suozzi discussing the matter with a person who is off camera (Reigle said the person was Simmons). Reigle is off camera as well.

At one point, it appears that Suozzi points her finger at Simmons.

A few seconds later there is a hand that reaches out toward Suozzi. It happens so fast and the video so choppy, it's hard to see. Then Reigle's arm is clearly seen outstretched toward Suozzi.

Reigle said she reached out because she was trying to protect Suozzi.

As soon as the bag of merchandise is snatched from Suozzi's hand -- Suozzi is still holding the plastic handles -- Suozzi is seen leaving the area behind her register and heading in the direction Simmons was apparently standing.

On cross examination, Key focused on why Reigle reached out toward Suozzi.  He expressed doubt that the motion was meant to protect Suozzi since Simmons wasn't making a motion toward Suozzi's face, but rather reaching toward her waist where she held the bag.

Key drew out from Reigle that it is against store policy for an employee to touch a customer and that such an offense could lead to immediate termination.

In questioning, Key tried to determine whether Reigle was attempting to touch Simmons as she reached for the bag.

Key then turned his attention to the video that shows the wider in-store angle.

Prompted by Key's question, Reigle identified herself as the woman in the maroon blouse who was implicated in Ann Nichol's opening statement as the person who grabbed Simmons' arm just prior to Suozzi being hit.

In response to Key's questions, Reigle denied laying a hand on Simmons.

Under questioning, Reigle also identified two of Walmart's undercover loss prevention officers. She also admitted that it's store policy that when CSMs are dealing with combative customers, the lost prevention officers should be summoned because they have more experience and training in dealing with difficult customers.

Reigle said she wasn't aware of the loss prevention officers being requested to the scene.

Next on the stand was Suozzi herself.

Cianfrini opened her questioning by asking about Suozzi's personal history, which begins in Italy on Dec. 9, 1941, when she was born.

Eight years later, her entire family -- two parents and seven children -- entered America through Ellis Island (for "freedom" Suozzi said).

One of her proudest days was the day, when pregnant with her first child, she received her official citizenship document.

Suozzi has been a member of St. Anthony's/Resurrection Parish ever since coming to America.

When it came to describing the events of Dec. 24, Suozzi said after Simmons paid for the hot chicken she and her brother purchased, she noticed Isaac Simmons was carrying a Walmart bag with merchandise in it.

The items were reportedly purchased by Jacquetta and Isaac several minutes earlier when they went through Lane One. They were going through Suozzi's lane, Lane Two, after deciding to purchase some hot chicken.

Suozzi said Isaac readily handed over the bag, but when she asked Simmons for a receipt, the first words out of Simmons mouth, she said, were "Fuck you. I don’t have to show you any fucking receipt."

Suozzi said Simmons used the F-word at least a dozen times.

"If we ever used that word at Walmart, we would be fired on the spot," Suozzi said.

According to Suozzi, the local Walmart store initiated a policy five months prior to the incident of cashiers asking to see receipts when encountering customers with Walmart bags filled with merchandise.

Both under questioning from Cianfrini and from Key, Suozzi did not seem to understand questions about what her policy training was when a customer refused to produce a receipt or becomes confrontational over the issue.

Suozzi said Christmas Eve was the first time in her experience a customer had refused to produce a receipt when asked.

Key asked that since the policy was only five-months old, surely there hasn't been many opportunities for Suozzi to ask a customer to produce a receipt. "It must be rare," Key said. "No, it's not rare," Suozzi replied.

After the incident started, Suozzi tried to summon help from a customer service manager. The process for requesting CSM help is for the cashier to input a code into the cash register, which Suozzi said she did three times.

"I just wanted to hurry her over so the customer wouldn't have to wait," Suozzi said.

While waiting for a CSM, Suozzi rang up purchases from two more customers.

During the process, she continued to hold Simmons' bag.

When asked why, Suozzi said she thought it would be rude to put a customer's bag on the floor and she had no place else to put it.

"Out of courtesy, I thought it was the right thing to do," Suozzi said.

While waiting, Simmons continued to hurl profanities at her, Suozzi said.

"How did that make you feel, to hear the F-word in your presence?" Cianfrini asked.

"It was humiliating," Suozzi said, "embarrassing."

After a pause, she added, "I was embarrassed for the customers who had to listen to that."

Suozzi admitted her exact memory is fuzzy on the sequence of events after the bag of merchandise was grabbed from her hand, but she did say she remembered two things clearly: Simmons calling her a "fucking white bitch" and just before hitting her, she saw Simmons draw her arm back, make a fist and start her swing.

As the swing came forward, Suozzi said she tried to raise her arm to protect herself.

At no time, Suozzi said, did she see anybody grab Simmons by the arm.

About the only time Suozzi cried on the stand was when recalling a nurse who came to her aid after she was hit.

"I remember a lady knelt right beside me and said she was a nurse, I don't remember from where, Michigan or Massachusetts, and she asked me not to move and she asked me if my back hurt or if my shoulder hurt and told me to stay still," Suozzi said. "She was a very kind lady. I wish I had gotten her name."

The first feeling Suozzi said she remembers was feeling numb. Later, when transported by ambulance to UMMC, she said the pain in her face, on a scale of 1 to 10 was an 8. By the time she was in the emergency room it was 9 or 10.

Under questioning from Cianfrini, Suozzi said she continues to suffer aliments from being hit to this day and continues to take Tylenol to help manage the pain.

For months she saw white light flashes and though the flashes stlll occur, they are not as frequent or intense.

She still feels pressure on the left side of her head, has blood pressure problems and is scared to leave her house.

"I haven't slept a whole night since the incident," Suozzi said. "I sleep sound for two hours and then I'm up for three hours and all I can think about is the assault."

Ann Nichols handled the cross-examination of Suozzi and she focused on a statement Suozzi made to State Police while in the emergency room. Nichols tried to get Suozzi to admit that she told a trooper that she "took the bag" from Isaac Simmons.

Suozzi told Nichols that the receipt check policy was communicated to her verbally and she was given no other instructions.

After Suozzi's testimony, another cashier, Dylan Phillips, took the stand.

Phillps said he was just starting his break, buying a few personal items in check out lane five or six, when he heard yelling. He moved to another vantage point, but not necessarily closer to the action and watched what was going on.

He said he heard Simmons direct the C-word at Suozzi.

Key wanted to know where Reigle was standing in relation to Simmons just before Suozzi was hit.

Using the podium as a prop, Key asked Phillips to tell him were to stand. Phillips directed Key to move a couple of steps forward. Phillips said Reigle was three or four feet away from Simmons.

With that response, Key sharply turned on his heels toward the defense table and said, "Nothing further for this witness, your honor."

Following Phillips was Lisa Biegaswiecz, a cousin by marriage of Suozzi's who happened to be in the checkout line behind Simmons.

She said Suozzi politely asked Simmons for a receipt and Simmons immediately became confrontational.

Biegaswiecz quoted very little profanity from Simmons but said she did hear something like "fucking white ..." but couldn't hear the next word.

She also said she didn't see anybody grab Simmons and she saw Simmons draw her arm back and make a fist.

The trial resumes at 10 a.m., Thursday. Judge Noonan told jurors he expects a full day of testimony and evidence presentation, but that he still thinks the trial will wrap up by Friday.

An ATV rider was reportedly struck by a car on Day Road north of Sprague Road, Alexander, at 10:45 a.m.

Alexander Fire Department responded to the call and Mercy Flight was dispatched at 10:55 a.m. and the patient was flown to ECMC at 11:15 a.m..

No further information has been released yet.

At 11:31 a.m., a car went over a guard rail on Route 19 just south of North Road. Le Roy Fire and Le Roy Ambulance were dispatched. A Mercy Flight bird out of Canandaigua was dispatched to this call.

No further information has yet been released.

In her opening statement, defense attorney Ann Nichols told the jury in the Jacquetta Simmons trial this morning that her client didn't intend to hit a 70-year-old Walmart employee on Christmas Eve.

Nichols said when Simmons tried to leave Walmart after producing a receipt for her purchases, a woman in a yellow maroon blouse grabbed her arm and Simmons tried to pull free and her arm swung around at struck Grace Souzzi as Souzzi stepped from behind her register.

"This is an unfortunate accident," Nichols said.

During her opening, Nichols described a several-minute event that began with Simmons and her brother Isaac purchasing grocery items in lane one at Walmart and then after spotting some hot chicken for sale decided to return to lane two, where Souzzi was working, and pay for the chicken.

After a quick transaction to pay for the chicken, Simmons and her brother started to leave and Souzzi pointed at the bag in Isaac's hand and asked to see a receipt.

Nichols said the surveillance video will show Simmons looking in her pockets for the receipt when Souzzi comes out from behind her register stand and grabs the bag. She said Souzzi continued to hold the bag while checking out other customers.

Over the next couple of minutes, other managers come to the register, one or two leave and come back, while Simmons continues to look for the receipt for her initial purchase.

Souzzi places the bag under her register, according to Nichols, and seconds later Simmons finds the receipt and held it up for Souzzi to see.

"But that's not good enough for Grace," Nichols said. "She wants to physically hold the receipt."

Souzzi then takes the bag into her hand again and places it on the counter.

At that point, Simmons grabs her bag and tries to leave. Nichols said Souzzi reached for the bag, the bag started to tear. Nichols said Simmons cradles the bag in her arm.

As she's trying to leave, the scene has attracted a lot of attention and there are more managers and other people around and these people are starting to get involved, grabbing at Simmons.

At that point, the video will show a person grabbing Simmons' arm, Nichols said, and Souzzi steps out from behind her register walks into Simmon's arm swinging forward.

"It was no roundhouse punch," said Nichols, countering a statement by Assistant District Attorney Melissa Cianfrini in her opening statement.

In her opening, Cianfrini described the kind of day Souzzi expected to lead on Christmas Eve, cooking for her family after work and attending Christmas Eve Mass.

"What Mrs. Souzzi didn't know was in the next few minutes, her best laid plans would be ruined and her life would be forever changed," Cianfrini said.

After describing Souzzi's injuries, Cianfrini said, "She would not have Christmas dinner with her family and she would not be able to attend Christmas Eve or Christmas Day Mass for the first time in her life."

"All of this happened," Cianfrini added, "because Mrs. Souzzi made a simple request, to see a receipt."

Cianfrini said witnesses will describe Simmons as angry and yelling profanities throughout the confrontation.

"Rather than produce a receipt that she did have," Cianfrini said. "She delivered a crushing blow with a closed fist to Mrs. Souzzi's face. This wasn't a hit. It wasn't a slap. This was an intentional and vicious roundhouse punch to her face."

Cianfrini said she is confident the evidence will show Simmons intended to physically injure Souzzi.

The trial is currently ongoing with the first prosecution witness on the stand.

Earlier this morning, a Batavia PD officer responded 138 Jackson St. for a report of sporting goods strewn across the lawn.

A police officer secured a golf bag containing golf clubs and a tackle box.

The reader who alerted us to this discovery suggested the items might be stolen and perhaps a crime victim might want to know what happened to his or her items.

The sporting goods have been secured in the found property room at Batavia PD.

There were also a couple of morning reports of overnight thefts. An Elm Street resident reports having two large flower pots stolen and another city resident said a GPS unit and other items were stolen from his car.