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July 30, 2012 - 2:38pm

Whether case against Simmons goes forward will depend on judge's ruling

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

In a week or two, attorneys in the Jacquetta Simmons case will find out from Judge Robert C. Noonan whether two felony counts against the 26-year-old Batavia woman will stand.

Simmons is accused of punching a 70-year-old Walmart employee on Christmas Eve.

A grand jury indicted Simmons on felony counts of assault in the second degree, for allegedly hitting the victim with intent to cause serious injury, and a second count of assault, 2nd, charging Simmons with hiitting a person more than 10 years older who is also 65 years old or older.

A hearing today was scheduled for Noonan to consider the constitutionality of the so-called "elder abuse" law, but Noonan also asked the defense and prosecution to address whether sufficient evidence was presented to the grand jury to support count one of the indictment, the basic second-degree assault charge.

On the assult charge, attorney Ann Nichols argued that there is no evidence presented to the grand jury that Simmons intended to cause serious or permanent injury to the victim, Grace Suozzi, nor that Suozzi suffered such an injury.

"In the grand jury minutes, Ms. Suozzi does not say she was punched," Nichols said. "She says she was hit. She doesn't say she was punched until after Mr. (District Attorney Lawrence) Friedman uses the word punched in a question. I don’t see intent to cause serious physical injury being reliant on one punch, if it was in fact a punch, and Ms. Suozzi said herself it was just a hit."

There's no doubt, argued Melissa Cianfrini, assistant district attorney, that the "roundhouse" swing by Simmons was a punch.

Cianfrini described a surveillance video which she said depicted Simmons bracing her leg, winding up and taking a full swing at the victim.

"The punch was so powerful that it knocked her off her feet," Cianfrini said.

Simmons's intent was also clear from statements the defendent allegedly made before and after the alleged assault.

According to Cianfrini, Simmons last statement before allegedly hitting Suozzi was, "I'm not showing the fucking white bitch the receipt."

After the confrontation, with her male companion dragging her away, Simmons allegedly told another witness "you going to get it, too."

Cianfrini said, "That’s not a statement of someone who is acting in self defense. It’s not the statement of someone who regrets what she did. It’s the statement of somebody who knows fully what she did."

Outside of court, Nichols said the defense clearly has a different interpretation of events than Cianfrini and that she believes a jury will be able to fairly weigh the facts, even if the case appears racially charged.

"We have the video," Nichols said. "You can see the video for yourself. It’s more an interpretation. Unfortunately there’s no sound, but we can all kind of see on our own and infer what it depicts."

Nichols added, "I don’t’ really it (see race being a factor with the jury). Once anyone sees the video, white, black, Asian, whatever, you’re going to get an interpretation leaving race out of it."

On the issue of whether count two of the indictment, the elder abuse law, is constitutional, Nichols argued that the way the statute is written would require a defendent to know the victim's age at the time of the assault. 

"I argue there's no way Ms. Simmons could have known, based on how the law is drafted, that this is a strict liability crime and the fact the legislature chose to draft it so poorly is a violation of the due process of this defendant and other defendents," Nichols said.

Cianfrini noted that another court -- though the decision is not binding on this court -- has already ruled the law is constitutional on the same grounds, but added that the court should not just look to the letter of the law, but the legislative intent. Cianfrini said legislative notes and history clearly indicates the legislature meant the law to apply any time a person more than 10 years younger hits a victim 65 years or older.

Noonan did not give a specific time when his written decision will be issued.

Simmons will go to trial Aug. 20. She turned down a plea offer that would have given Noonan the option of sentencing her to prison time up to three-and-a-half years in prison. If convicted at trial, Simmons could be sentenced up to eight years in prison.

bud prevost
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Hit, punch, roundhouse, cold cock.....all applicable, Ms. Nichols. I know it's your duty to provide diligent representation to Jaqueeshie, and you are only manipulating the words to hold your client in a better light. But the film don't lie, ma'am, and your client violently lashed out at another person.
Glad Jaquaotie didn't take the plea deal, because then the judge owes her no leniency, and she'll be bye-bye for a few years.

Rex Lampke
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If ms Simmons said "I'm not showing the fucking white bitch the receipt." is that not a hate crime ?

Michelle WIlliams
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@Rex I would say that's a darn good argument. I think that any time someone let's out any racial inference during a crime it should be able to be a hate crime. The whole case is so sad and these lawyers that are manipulating the words to try to gain Ms. Simmons leniency make themselves look absolutely foolish. At least try "Ms. Souzzi was acting in a threatening or intimidating manner and my client was scared" but really arguing hit vs punch when the woman was knocked off her feet and suffered serious injuries?? So sad...I hope this case hands down the maximum sentence. Regardless of age it was a vicious assault

david spaulding
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rex,it's only a hate crime if a white person says "i'm not showing the f..... black bitch the receipt"..
the "race card" can not be played by white people.. don't believe me?ask the white guy who was dating a black
woman,in buffalo..he got his face smashed in by black thugs using anti white slurs and that was not a hate crime.

Frank Bartholomew
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I hope she gets convicted on both charges, and gets the max. sentence for each.

Howard B. Owens
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Just for sake of clarity and information, without comment, here is NYS hate crime statute:

§485.05 Hate crimes.

A person commits a hate crime when he or she commits a specified offense and either:
(a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or
(b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief of perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.

http://www.slc.edu/offices-services/security/bias/Penal_Code.html

John Woodworth JR
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It is a lawyers duty to twist words. You cannot use common sense either. I mean really, Ms Simmons couldn't possibly know Ms Suozzi age? I bet you could have taken a survey of 100 people and 90+% of those people would have guess pretty close to her actually age. I agree with David on the hate crimes. It appears it only applys to minorities. Yes, Simmons said, "White Bitch" but, she was more offended by being asked for the receipt. Why? I cannot figure that out. What harm does it cause? Absolutely no harm! Especially, if you have nothing to hide? The F-ing Bitch was not MS Grace Suozzi in this incident, it is the defendant above.

Jeffrey Houseknecht
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Like I said before,turn it around a white girl twice the size of a little black woman greeter and Al Sharpton and Jesse Jackson would be all over this.This defense atty makes me want to puke.The defendant is actually the victim here,I almost forgot.

John Woodworth JR
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Agree with that. I am courteous why, Al Sharpton and Jesse Jackson do not go to Africa and file charges against the family members of the black men that sold their brethren into slavery? Sorry for getting off course there. The Defense Attorney is just doing her job. Hopefully the Judge knows that, it is a poor attempt to make Simmons look like the innocent victim and that her rights were being violated. Suozzi was performing her job according to store's policies and asked to view Simmons' receipts. They have that right, if you do not like it shop somewhere else.

Peter O'Brien
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"Hate Crime" is actually "Thought Crime" and it should never be against the law to think a certain way.

Is the old lady not white? Then it sounds to me like just another adjective. She could have said Walmart instead of white and been just as accurate.

I also love how our state decided to create different classes of people with different protections under the law with this elderly abuse legislation. What happened to equality under the law?

I hope this case fixes this, as no sector of our populace should have anymore rights than any other. Assault is Assault regardless of the age, race, sex, or weirdness of the victim.

Gary Spencer
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Damn, Peter, I actually agree with you! I have always said that "hate crimes" are simply nonsense! If I commit a crime and use a racial slur or any offensive slur for that matter, that means I "hate" while I am committing that crime? It is just plain nonsense that clogs our legal system with arguments like the one being brought by the defense in this case.
As for her defense attorney's, they are just doing their job, defending their client.
However, when this is all said and done, I hope Judge Noonan gives her the MAX!!

Kyle Couchman
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So I guess to Peter's version of the way life is supposed to be... it's alright to make the elderly the targets of crime because in their old age they are easily victimized. I suppose elevating the crimes that are commited against children are also an example of the state's inequal treatment of people under the law.

As for hate crimes, you are aware that they just dont include race, they include the handicapped, the elderly, and pretty much any group of people so if someone got a bug up their a$$ over veterans of our recents conflicts and began hurting or killing them just because of that reason then they can be tried under the hate laws? I have to disagree though with you Gary while we all know lawyers uss some of these laws to twist the truth around (Which is where the true blame needs to be placed lawyers are the reason we need these type of laws) If you rob a bank Gary while spewing racial slurs, I as a jurist would see that as a hate crime, your gonna rob the bank anyway. But if you were to run arouns and shoot an wound or kill only the female patrons and workers of the bank while commiting the crime and bitching aabout women then I could see it fitting the crime. Remember you can hate all you want, that right isnt taken away but if you begin to target people based on that hate then it steps over the line and beomes actionable.

I know people fear this cause

1) Abuse of the justice system and it's laws by police and lawyers (look to the rochester police dept scandal currently going on 2 cops proven to have lied about stopping a person for not stopping at a stop sign. The a traffic cam proved her did in fact stop, even though he was arrested for drugs and weapon in the stop the judge threw it out cause of the lies)

2) Their own fear of their own ideas, honestly even good people have thoughts of racial hatred or hatred of feminists or even homosexuals, the one person you cant really lie to is yourself. If your arrested in a bar fight only you yourself know the real reasons that fight may have began. So people are paranoid that these feelings that are natural and understandable from time to time place them under this hate crime definition. Its ok its human nature to hate, it one of the things God tries to turn us away from. But acting out that hate by tyeing someone to a bumper of a car and driving off, or gang beating them for wearing a rainbow shirt. Hellway back when even the act of tarring and feathering someone because of their political views or party affiliation or their confederat or yankee status would be defined as a hate crime now.

I agree that the Govt shouldnt be doing this as Peter states on some principals. However people themselves have poven theres a need for this otherwise it wouldnt have gone through and become law. Watch what happens with Bloombergs attempt to legislate sugary drinks, it'll NEVER become a law as it oversteps the Govt's authority. Bllomberg has proven time and again that he is a moron who reacts instead of thinking things through. Look at his recent comments involving gun control that his lawyers made him retract/clarify.

Jason Crater
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Kyle - He didn't say that at all. He said it's equally wrong to assault an old person as it is to assault anyone else.

John Roach
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Kyle, read what Peter actual said, not what you wanted to read.

Mark Brudz
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I think I have to go with Peter on this one.

Peter O'Brien
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Yes Kyle, if the victim is a child it should carry the same penalty as if the victim were an adult.

There are exceptions to this such as statutory rape which cannot be committed on an adult.

As for Bloomberg, he already got trans fats banned, why not sugary drinks? It will pass because the people of NYC will allow it to be and then he will be reelected by the sheep.

Back to the case at hand.
The reason behind a crime is irrelevant with the exception of an insanity defense. It can be used to establish motive, but doesn't change the result of the action. If I tear apart someone's body with spoon while singing God Bless America, that should be punished the same as if I did it while spouting prejudice views against the victim. Either way I have slaughtered a human being and that is the crime. The reason why is not important.

Do you want people who steal from convenience stores for different reasons to be charged with different crimes? The crime is the same regardless of the reason.

Jeffrey Houseknecht
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I don't think of it as different classes of people, but the ability to protect oneself.A 70 year old is not as strong or agile enough to fight back against a punk.If he has a .45 in his pocket that evens things up a bit,and I wish that that was more common.As far a crime against a child I believe that the punishment should be more severe because if someone has no problem committing a crime against a child they are a sick twisted person.Yes I understand that you are not suppose to commit a crime against anyone, but to be such a coward that you prey on the young or elderly so you don't have to worry about someone fighting back takes the cowardice to another level.I look at it like if you only have one joint the punishment is not as severe as if you have one ton.I look at as there are different levels of the severity of the crime

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