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June 21, 2012 - 2:47pm

Attorney challenges constitutionality of law used to charge woman accused of hitting Walmart employee

posted by Howard B. Owens in batavia, crime, Jacquetta Simmons.

The attorney for Jacquetta B. Simmons, the 26-year-old Batavia resident accused of assaulting a 70-year-old Walmart employee on Christmas Eve, is challenging the constitutionality of one of the laws used to charge his client.

Earl Key, a Buffalo attorney, filed a motion May 31 seeking dismisal of count two of the criminal indictment, which alleges assault in the second degree on a person 65 or older. Key's motion states that the relatively new law on which the count is based violates Simmons' rights under the 5th and 14th amendments of the U.S. Constitution.

Key was scheduled to appear in Genesee County Court today to argue his motions but according to his assistant attorney, Ann Nichols, Key was too sick to appear and she asked that the case be continued until next week.

The continuance benefits Key's case, because according to court discussion between Assistant District Attorney Melissa Cianfrini and Judge Robert C. Noonan, Key did not notify the Attorney General's Office of his motion challenging the constitutionally of the law, as required by court procedure.

Noonan said if Key had appeared today, he likely would have dismissed the motion due to the insufficiency of notification of the AG's office.

Simmons is accused of hitting Grace Suozzi, who was working as a checker at Walmart on Christmas Eve, after the 70-year-old reportedly asked to see the contents of a bag being carried by Simmon's brother. An argument reportedly ensured and according to witness accounts, Simmons allegedly punched Suozzi, breaking bones in her face.

In April, Simmons was arraigned on one count of assault in the second degree and one count of assault in the second degree on a person age 65 or older, making her the first person in Western New York charged under the relatively new statute.

In his written motion, Key argues the statute is unconstitutional because:

  • There is no legitimate state interest in affording a higher level of protection to a class of citizen based solely on age;
  • The law requires the defendant have knowledge of the victim's age, and a defendant would have know way of knowing a victim's age at the time of the assault;
  • The statute is unfair and unreasonable because it elevates "an otherwise garden variety assault" from a Class A misdemeanor to a Class D felony;
  • The law is "arbitrary and capricious" in affording a person age 65 and older protection not afforded a person age 64 or younger.

According to Cianfrini's written response, prior case law establishes that legislative acts are presumed to have a legitimate state interest unless clearly shown otherwise, which, she argues, Key did not do.

She wrote that the legislative intent is clearly spelled out in the bill's supporting documents and that the state lawmakers had concerns about protecting the elderly "who are particularly susceptible to crimes as a result of their age."

"Specifically," she wrote, "the legislative history reveals that the statute was enacted because 'seniors are generally more vulnerable to injury and less able to protect themselves from younger persons.' "

Cianfrini also countered Key's point on the defendant's intent and need to know the victim's age, saying the law clearly spells out that the victim only meet the age requirement, not that the defendant know the age of the victim.

Legislative history in fact says legislators expected that "there is no requirement that the prosecutor prove the defendant knew or had reason to know the victim's age."

Simmons is scheduled to reappear in court at 3:15 p.m., June 27, for a hearing on Key's motions, which also include standard pre-trial motions related to the sufficiency of the grand jury indictment and evidence.

Michelle WIlliams
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I cannot believe that anyone would want to entertain this idea. The elderly do deserve protection under the law (for the exact reason the bill was written.) Maybe the incident was avoidable or maybe there could have been another outcome, but there was not. A woman more than 1/2 of Ms. Souzzi's age physically attacked her and to me, that is unforgivable. I cannot speculate as to how the overall incident came to fruition, however an elderly woman was assaulted and left with substantial injuries. At the end of the day Miss Simmons was wrong for striking anyone but especially wrong for striking an elderly person. Hopefully we can all agree that we were raised to never strike our elders and to above all, respect our elders. This is such a sad case that I hope comes to end with a punishment that suits the circumstances of the crime.

Thomas Schneider
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Broken bones in the face is a "garden variety assault"?

There is no need for multiple statutes based on the victims, sex, race, age, etc., Assault is assault plain and simple. Why make things more complicated than they need to be.

Tim Howe
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"In his written motion, Key argues the statute is unconstitutional"

You know what else is pretty unconstitutional?

Beating on a senior citizen.

Michelle WIlliams
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I'm so glad to see that I'm not the only one who feels this way about this case! There was a time when younger people would be scared to even think of raising a hand at an elder. The woman is wrong. If only people were made to accept responsibility for their own actions and suffer a punishment that fits the wrongs that they commit...

Janice Stenman
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"The law is "arbitrary and capricious" in affording a person age 65 and older protection not afforded a person age 64 or younger."

Those kind of laws regarding age are already on the books. You must be 21 to drink. You must be 18 to vote. You must be 65 to collect SS and Medicare. You must be 16 to apply for a driver's permit.

Senior citizens and children are the least able to defend themselves from violence.

Kyle Couchman
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Janice makes a good point. Not only do I agree with this law being needed and a good application of intent in our laws to protect the elderly but there should be something similar for children under 13 years old as well if there isnt. I hope that this lawyer doesnt set a precedent, that could lead to the fall of leandra's law and others that protect the young and the elderly....

Billie Owens
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If a 10-year-old kills somebody in a cold and callous fashion, isn't he or she dealt with in a different fashion from those 10-year-old offenders who commit the garden variety of crimes for that age?

Mark Potwora
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Key was scheduled to appear in Genesee County Court today to argue his motions but according to his assistant attorney, Ann Nichols, Key was too sick to appear and she asked the case be continued until next week.......

really sick...cmon the judge should make him show a Dr.excuse...Its stalling ...

Mark Brudz
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Billie, kids that commit murder in NY State do are in fact treated differently that your typical delienquent, I site Eric Smith who at 13 was convicted of second degree murder of a 4 year old, he was sentenced 9 years to life, was refused parole just last month

http://centralny.ynn.com/content/top_stories/584485/eric-smith-denied-pa...

I agree with Kyle though, penalties should be harsher for those that commit physical crimes against kids under 13.

Doug Yeomans
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Why shouldn't the penalty be the same for everyone, Mark? How is it that if someone punches a 35 year old woman in the face it's less severe of a crime than punching a 65 year old woman in the face? I just don't get it. Isn't it the same crime? Shouldn't the punishment be the same? What if the victim is one day away from their 65th birthday when they get punched in the face? Is the crime less severe because the victim is 64 today than if the assault happened tomorrow on their 65th birthday? hmmmm.....

Kyle Couchman
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Doug I agree that when you really scrutinize it it can seem unfair.....but if someone stole an amount of money $1 dollar less than the requirement for it to become a felony do we prosecute? If a driver is pulled over for dui and has 2 kids in the car that just turned 16 the day before, do we charge her with Leandra's law violation? I mean you can pick at the law all day long w scenarios like that.

The intent of the law I believe was to protect seniors from becoming targeted victims of abuse. Look at the stories recently of caregivers ripping off their Seniors they are supposed to be taking care of. How about larger cities or even here if youths began targeting Seniors walking back and forth between the store and their car? How about abuse in a nursing home setting, I know that some seniors with dementia can be comabtive, but hey what if ya get an A$$ that decides well I'll just knock out this granpa or granny and save myself the hassle of fightin with them to eat,bathe, or dress. For all we know Ms. Simmons might not have resorted to punching if Grace had been 25-30 yrs old and thought there was a chance that she would get up and clean her clock figuratively speaking.

I find it a sad observation that we would have to make legislation to get respect for the vulnerability of seniors.

Doug Yeomans
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Kyle, what I'm saying is that the crime should be as equally severe in all instances. I just know that if someone assaulted my mother, whether she was 35, 65 or 85, my retribution, my wrath would be equally dispensed upon the offender. They better hope that the police get to them first.

Doug Yeomans
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I don't believe that in the instance that this story covers constitutes elder abuse. Ms. Simmons didn't hit Mrs Suozzi BECAUSE she was old. Ms Simmons hit Mrs Suozzi because Ms. Simmons is an uppity idiot that thinks punching someone else is a viable means to getting her way. The person she hit just happened to be over 65.

Kyle, the crimes you describe such as stealing from someone in a nursing home, those are actually crimes committed against a person who is helpless BECAUSE they're helpless. They're victimized BECAUSE of their inability to protect their self. I think it would be virtually impossible to prove that Ms Simmons hit Mrs Suozzi because she was elderly.

I'd love to see her put away for hitting Mrs Suozzi but I'd want to see her put away just as equally if she punched a 35 year old, male store manager. I think she would've taken a swing at anyone who tried to do their job the same as Mrs Suozzi did. I might be wrong about that, though. Maybe she did say to herself: "Screw this..she's an old lady and one poke will get her out of the way." How can anyone prove that, though?

Kyle Couchman
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No argument here Doug, but in my case the older my mother is at the time that someone made the poor choice to victimize her, the less of that person the police will find. shes in her 70's now so they might find a whole corpse. after 80 though.....get the wood chipper out someones ganna have to do some overtime to find that scum's final resting place. You know what I'm sayin ;)

Mark Wiatrowski
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A simple question, what ever happened to respecting your elders no matter what age they are?

Doug Yeomans
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Mark, you can see what has happened to respecting an elder by watching this video (Warning - Profanity galore by 13 and 14 year old kids directed at an elderly bus monitor):

[video:http://www.youtube.com/watch?v=l93wAqnPQwk&feature=player_embedded]

Michelle WIlliams
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Doug, that video is inexcusable. I would love to know what the parents of those middle schoolers think of their childrens' conduct just as I would love to know how Ms. Simmon's family feels about the way she chose to present herself on the day she assaulted Ms. Souzzi. If I had acted that way towards anyone older than me (20s, 30s, 70s) my punishment would have been the same but probably it would have escalated if the age difference was as large as it was between Ms. Souzzi and Ms. Simmons. My mom would have made sure I knew I messed up. As for the case with Ms. Souzzi and Ms. Simmons, I think that anyone who takes a coherent swing at a visibly older person (obviously the two of them are a little apart in age based on appearances alone) is lacking the respect that many of us have mentioned. I don't think 65 is as big of an issue as knowingly hitting someone who is more aged than yourself. To me it is no different than an adult who physically abuses a child. Their chances of defending themselves against a more able bodied attacker are generally slim regardless of their health.

Doug Yeomans
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I agree, Michelle. It's too bad someone didn't knock Ms Simmons on her posterior when she hauled off and hit Mrs Souzzi. At least then she could have a taste of her own medicine.

Billie Owens
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Maybe if Simmons does jail time that's EXACTLY what will happen to her. Bad karma...

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