crime

Earl Francis Sprague, 42, of 1366 Church St., Alabama, who was arrested over the weekend on two charges of sexual abuse has been indicted on 26 such Class D felonies by a Genesee County Grand Jury.

The indictment alleges sexual abuse in the first degree against a child under age 11 on 28 separate occasions from 1999 through 2009.

Sprague, who is accused of abusing a single victim, was also charged with endangering the welfare of a child, a Class A misdemeanor.

A prominent Rochester attorney and a former reality TV personality are in the national news today after they were arrested in Pembroke on Tuesday morning.

James Doyle, 54, of Rochester is accused of DWI, refusing a breath test, providing alcohol to a person under age 21 and patronizing a prostitute.

Alicia Guastaferro, 20, of Williamsville, is charged with criminal Impersonation, criminal possession of a controlled substance and prostitution.

At age 16, Guastaferro appeared in the reality TV series "Wife Swap," a series on the Lifetime Network that involves unhappy spouses switching families for a week.

In the episode Guastaferro appeared in, viewers learned the teenage beauty queen received a Christmas present from her parents every single day.

Doyle has made several statements to the media, including WHAM 13, denying all of the charges. He described Guastaferro as a family friend.

A Wichita, Kan., man who enticed a 14-year-old Batavia girl into sending him naked pictures of herself through text messages was sentenced in Federal Court yesterday to more than 26 years in prison.

Shane M. McClelland, 26, Wichita, Kan., was convicted in a jury trial in May on one count of producing child pornography.

During trial, prosecutors presented evidence that McCelland used the Internet to strike up a relationship with a 14-year-old girl in Batavia.

At McClelland’s request, the girl sent photographs of herself naked to McClelland. The mother of one of the girl’s friends became aware of what happened and reported it to police.

Det. Todd Crossett and Office Jay Andrews initiated the investigation in Batavia and during the course of the investigation Crossett posed as a 14-year-old girl and communicated with McClelland.

Crossett testified at McClelland's trial in May about the chain of evidence and his exchange of text messages with McClelland.

After McClelland's conviction, Crossett said, "He was definitely a sexual predator. He had a past history of doing this sort of thing and he does it again soon after he gets out of prison. That indicates the kind of person he is."

A 42-year-old Alabama man has been charged with two counts of sex abuse in the first degree for allegedly abusing a child.

The alleged abuse was first reported recently, but the initial allegation goes back to 1999, when the child was of preschool age.

Investigators suspect there were more alleged incidents of abuse in the following years against a single victim, but the initial two counts cover alleged incidents in 1999.

Additional charges are pending against Earl Francis Sprague, a Church Street resident in the Town of Alabama.

The alleged abuse took place at another location in Genesee County.

According to the Sheriff's Office press release the child was "in the care" of Sprague at the time of the alleged abuse.

Sprague was arraigned in Town of Alabama Court and jailed on $50,000 bail.

Daniel E. Plath is indicted by the Genesee County Grand Jury on one count of DWI, a Class E felony, for driving a 2007 GMC pickup truck on Old Creek Road in Alexander on May 12 while allegedly intoxicated. He is also indicted on a second felony count of DWI for allegedly having a BAC of .08 or more. In count three of the indictment, Plath is accused of aggravated unlicensed operation for allegedly driving the truck while intoxicated and without a valid driver's license. His license was invalidated following a DWI conviction in 2007, according to the DA's office.

Gary R. Dean is indicted by the Genesee County Grand Jury on one misdemeanor count of driving while intoxicated on April 24 in Alexander. He allegedly drove a 2007 Chevrolet on state routes 98 and 20 and in a parking lot on Broadway Road while intoxicated. In count two, he is accused of aggravated unlicensed operation in the first degree, a Class E felony, for allegedly driving without a driver's license while intoxicated. His license was revoked following a DWI conviction in 2001, according to the DA's office.

Brandon Charles Smart, 35, of Bank Street, Batavia, is charged with trespass. Smart was arrested on a warrant out of Le Roy Town Court charging him with trespass. The charge stems from a June 13 incident at Buttermilk Falls, off North Road, Le Roy, in which Smart fell to an outcrop of rocks at the falls and had to be rescued. 

Smart is also charged with DWI, driving with a BAC of .18 or greater, speed not reasonable and prudent, moving from lane unsafely and unlicensed operation. Smart was reportedly involved in a single-car property damage accident at 1:11 a.m., Saturday, on Knowlesville Road, Alabama.

Nicholas Joseph Pascucciq, 22, of Main Road, Stafford, is charged with criminal possession of a controlled substance, 7th, and possession of a hypodermic instrument. Pascucciq turned himself in on a county court bench warrant on charges of criminal possession of a controlled substance, 4th and 5th. After his arrest, the additional charged were issued stemming from an incident in Le Roy on July 14. Pascucciq was held on the warrant.

Walter B. Hale, 34, of Oakfield, is charged with felony DWI and three counts of felony aggravated DWI. Hale was charged under Leandra's Law for allegedly driving while intoxicated with three children in his car. Hale was stopped on Route 63 by State Police. According to troopers, he failed a field sobriety test and blew a BAC of .09. Hale was jailed on $5,000 bail.

Saturday was the first big test for a new pedestrian access policy at Darien Lake and while officials are satisfied with the results overall, they admit there are some kinks to work out.

On the positive side, officials said, traffic control after the concert was much better than used to be expected for a sold-out concert.

On the negative side, there was some confusion over what to do with taxis, how to handle passenger drop-offs and dealing effectively with people trying to circumvent the policy.

Cherry Hill Campground was open for concert parking and apparently tried to establish a private vehicle shuttle service for its patrons. 

Part of the terms of service now for ticket holders is there is only one vehicle entry and one vehicle exit per person and you must have a valid ticket to come onto the property.

Drivers of cars observed coming off The Hill were threatened with arrest for criminal trespass when they were observed coming in through Employee Road and then leaving immediately.

Many of the dozens of people who tried to walk in through Employee Road managed to bum rides from other concertgoers in cars. Of course, they became pedestrians after the concert trying to exit the venue on Employee Road.

Those people were told either to walk to the main gate to leave or to the exit point at the east side of the property.

Officials wanted to keep Employee Road open for vehicle traffic, so a strict no-pedestrian rule was enforced.

"The overall objective is just to make the traffic flow smoother and just create a safer environment for our guests," said Darien Lake General Manager Bob Montgomery. "To that extent, it’s working. If we’ve got a few little leaks here and there, we’ll correct them were we can. If people are really working hard to beat the system, I guess they can if they think it’s really worth all the effort."

Some issues will just work themselves out, Montgomery said, as guests become more familiar with the new system and fewer of them are willing to hassle with private lot parking.

From just before 5 p.m. until shortly after 8 p.m., vehicle traffic to Darien Lake was gridlocked from both the south and the north.

While some concertgoers blamed the new parking policy for the stop-and-go entry, Chief Deputy Gordon Dibble, of the Sheriff's Office, said he doesn't see the connection.

"We've had traffic being backed up in the past when the private lots were open, so I don't see that being the issue," Dibble said.

What surprised authorities, Dibble said, was how relatively few concertgoers started arriving at noon or one o'clock.

Typically, a Saturday concert attracts a lot of early arrivals, and this show didn't for some reason. Many people waited until later in the afternoon to arrive, which meant more people trying to drive in closer to showtime.

Dibble said he spoke to some patrons prior to the show who said they expected other concertgoers to come early, so they decided to come late.

There also seemed to be a higher number of concertgoers coming from the south of Darien.

"There’s something about this place," Dibble said, "that no matter how long you work out here, when you think you’ve got it figured out, there’s just something to do with who the band is, whether they're drawing from the Rochester market, the Syracuse market, the Canadian market, that makes a little different pattern. To a degree it’s unpredictable, it really is."

The worst traffic-related incident prior to the show occurred just before 8 p.m. when the passenger of a vehicle stuck in traffic jumped out of the car and ran into the path of a motorcycle heading south.

Jessica Freeman, 23, of Rochester, suffered head and facial injuries and is in critical condition at ECMC, where she was flown by Mercy Flight.

Prior to the show, concertgoers turned away at Employee Road were clearly frustrated, some of them, but didn't hassle police or security about the policy.

One group of three young men did manage to talk their way onto Employee Road and enter the venue.

Apparently, they had bought their tickets and made their reservations at Cherry Hill Campground in June. After the new policy was announced, one of them had an email exchange with officials at Darien Lake and was told, incorrectly by somebody, that they would be allowed to walk onto the property.

Gerald Rakestraw, VP of development for Darien Lake's owner, Herschend Family Entertainment, was at property Saturday both observing and supervising implementation of the new policy.

He snapped an iPhone picture of the young man's email and then allowed the trio to walk up Employee Road into the venue.

The biggest conflicts of the night came after the concert was over and some people tried to exit the venue on Employee Road.

Rakestraw had predicted some 500 people would try to leave via Employee Road -- far fewer than the thousands walking out in concerts past.

The actual number of pedestrians trying to leave on Employee Road was probably far fewer than 500.

Most were cooperative when told to head in another direction.

One gentleman who was highly intoxicated got lost in the employee parking lot (which was used for regular guest parking last night).

Two people were arrested after apparently wearing out their welcome, so to speak, arguing with deputies about the pedestrian policy.

Rebecca A. Pickem, 25, of Olive Drive, Baldwinsville, discussed the situation with a couple of different cops, went round and round with Sgt. Tom Sanfratello. After several minutes of discussion, Sanfratello told her to leave or she'd be arrested.

Her alleged reply: "I guess you'll have to arrest me," which at that point became a refusal to follow an officer's order, so she was arrested.

Her companion, Tyler A. Vincent, 24, of Olive Drive, Baldwinsville, wouldn't leave and was also arrested.

Reportedly, Pickem and Vincent had parked their vehicle more than two miles from the concert facility and were apparently concerned about how to get back to their car.

The thing is, if Pickem and Vincent had been a little more patient, they were two minutes away from a cab ride to their car.

Sgt. Steve Mullen had called a cab for them.

There was another group of young ladies, four of them, who were stranded at the park. They were reportedly staying at the Attican Motel. The Attican charged them $20 for a shuttle ride to and from the show, according to Mullen. When the driver dropped them off, he reportedly informed them the shuttle might not be available for a ride back to the hotel.

When the women called the motel, they were reportedly told the van had broken down (Note, I was on Employee Road when I saw the van, with Attican Motel written on it, pull into the parking area).

Mullen called a cab for the young ladies and escorted them out to Sumner Road and waited with them for the cab.

By the time Mullen returned to bring Pickem and Vincent to their cab, they were already in custody.

While all of this was going on, there was a young Canadian woman in full agitation mode, running around from one cop or security guard to another yelling at them, hurling insults and threatening to call the Canadian Embassy.

Deputies said she had been difficult to deal with prior to the concert when she tried to walk into the venue.

After the show, she claimed her "bestfriend" had gotten separated from her and her other friend during the concert, three hours prior to her first notifying law enforcement.

She gave three different ages for her missing friend and changed the clothing description.

Any time an official would try to ask her questions about her friend and their travel plans, she would just start yelling again.

She also claimed she wanted to walk out of the facility, but continued to yell at deputies for not doing more to find her friend.

At one point, she yelled at a deputy, "I hope your daughter gets raped some day."

There was another young woman from Canada who was also missing her travel companion, another young woman. She was calm, but clearly worried about her friend.

At 1:30 a.m., Darien Lake security officials were still involved in trying to help both young women locate their friends.

At 1:30 a.m., all Darien Lake parking lots were empty, which under normal sold-out concert nights was at least an hour earlier than might be expected.

Dibble said with Sumner Road free of traffic from private lots, it was much easier to get cars out of the parking lots. Both lanes of Sumner Road could be used for traffic leaving the facility. If not for a couple of minor accidents on Sumner Road, patrons would have gotten out even quicker.

While there were 15 arrests at the concert, the majority of them were related to the new policy, such as three people accused of climbing the new fence to try and gain access to the property.

I spent two hours at the entry gate known as "South PAC," where concert security will bring any unruly patrons for deputies to deal with and potentially arrest or release. South PAC is normally bustling with activity during a concert. During the two hours I was there, not one patron was escorted from the concert.

Batavia resident Carrie Hylkema, who's attended several country shows at Darien Lake, was at the show Saturday as a volunteer for a beer concession set up to raise money for Batavia Ramparts.

She said the atmosphere Saturday was very different from any country show she had ever attended at Darien Lake.

She said concertgoers were much less aggressive than she's seen in the past.

"A lot of times we come driving in, whether we’re working the concert or just going to the concert, you can see it’s out of control before you even come into the gates," she said. "It just seemed more managed tonight. My husband I both commented tonight that it just seemed more in control."

Some of the explanation for the mellower atmosphere, Dibble said, is the fact that so many people came later to the show, got caught in traffic, and had less time to get intoxicated in the parking lot before the concert.

"I’d like to think the underage drinking work that we’ve been doing is paying off, too," Dibble said.

There were 48 underage drinking citations issued Saturday, which is far fewer than have been issued at big country concerts over the past two seasons.

Among the kinks in the system Saturday was what to do with taxi cabs. The plan was, officials said, to only allow cabs into a designated area after 10 p.m. -- for pick up only, not for drop off. But cabs were entering the facility prior to the show.

There was also some confusion over how parents dropping off concertgoers were to enter and leave the facility.

Montgomery acknowledged he and his staff are going to need to figure out these issues for future concerts.

"What we'll do with the team here is, we'll meet again tomorrow and kind of put those issues on the table," Montgomery said. "There's nothing big, nothing that would be a big concern. You're right about the issue with taxis and where do we place them. We want to go back specifically and address that. That's one of the issues that stood out."

Traffic entering the venue, heading toward the main gate, backed up on Sumner Road, with a group of pedestrians in the distance getting into a passenger vehicle offering them a lift.

Pedestrians being told they would not be allowed to walk into the venue.

This vehicle came down off The Hill and is heading toward the main gate.

A trio of concertgoers (third person already in the back seat) get a lift into the venue.

A vehicle that had allegedly previously come off The Hill and delivered concertgoers into the venue gets a trespass warning, and would not be allowed in with another group.

Another driver allegedly issued a trespass warning.

This gentleman was eventually allowed to walk on Employee Road and into the venue after displaying an email from Darien Lake saying that he would be allowed in on foot.

Subject taken into custody after allegedly refusing a police officer order to leave the facility.

Concertgoers party in a 1968 stretch Checker Cab.

A reportedly highly intoxicated individual is taken into custody, charged with disorderly conduct, after allegedly causing a disturbance in a parking lot at about 11 p.m.

This photo submitted by a reader. One concertgoer decided to drive his tractor to the show.

NOTE: This was the first sold out concert after the new no-pedestrian access rule to the Darien Lake property came into full force. I did a ride along with the Sheriff's Office for the night and will have a report, with photos, later.

The following people were arrested by the Sheriff's Office in connection with the Jason Aldean Concert at Darien Lake Performing Arts Center.

Matthew K. Skelton, 26, of Coe Avenue, Oakfield, is charged with disorderly conduct after allegedly yelling profanities and causing a disturbance in the parking lot. Skelton was arraigned in Darien Town Court and remanded to jail in lieu of $200 bail.

Rebecca A. Pickem, 25, of Olive Drive, Baldwinsville, is charged with trespass after allegedly refusing to leave the Darien Lake Employee Road area after attempting to exit the venue as a pedestrian. Pickem was arraigned in Darien Town Court and released on her own recognizance.

Tyler A. Vincent, 24, of Olive Drive, Baldwinsville, is charged with trespass after allegedly refusing to leave the Darien Lake Employee Road, area after attempting to exit the venue as a pedestrian. Vincent was arraigned in Darien Town Court and releaed on his own recognizance.

Nicole L. Louiseize, 23, of Summerhill Drive, Moncton, New Brunswick, Canada, is charged with trespass after allegedly entering the concert venue after being denied entry and told not to reenter. Louiseize was arraigned in Darien Town Court and remanded to jail in lieu of $400 bail.

David W. Pitts, 30, of Buford Deli Townline Road, Scotland, Ontario, Canada, is charged with DWI and aggravated DWI with a BAC of .18 percent or more after allegedly operating a motor vehicle while intoxicated in the campgrounds.

Brian A. Rupe, 29, of Ransom Road, Lancaster, is charged with trespass after allegedly jumping the fence to enter the Darien Lake property.

Nicholas J. Pagano, 19, of Savage Road, Holland, is charged with trespass after allegedly jumping a fence into the concert venue.

Mark A. Silvestri, 26, of South Seine Drive, Cheektowaga, is charged with trespass after allegedly jumping a fence into the concert venue.

Michael J. Riley, 47, of Beckett Drive, Brantford, Ontario, Canada, is charged with criminal mischief, 4th, after allegedly punching a car causing damage.

Adam R. Wattles, 19, of Old Lower East Hill, Colden, is charged with false personation after allegedly providing a false age. (Wattles was cited at the Toby Keith concert for alleged underage drinking.)

Colin J. Haines, 17, of Americo Court, Lancaster, is charged with trespass after allegedly attempting to enter the concert venue with a ticket to a show in West Virginia. When he was denied entry, Colin allegedly ran through the gate and entered the venue.

Kelly L. Alcorn, 47, of Tower Hall Terrace, Grand Island, is charged with harassment, 2nd, after allegedly hitting another patron in the concert venue.

Karen M. Walker, 35, of Niagara Falls, is charged with harassment, 2nd, after allegedly striking another patron in the concert venue.

Stephanie A. Fenner, 36, of Lafayette Road, Cortland, is charged with disorderly conduct after allegedly punching and grabbing a Darien Lake security officer.

Daren J. Conklin, 20, of Lafayette Road, Cortland, is charged with harassment, 2nd, and resisting arrest after allegedly being involved in a fight and pushing a deputy while being detained. Conklin then allegedly physically resisted and kicked deputies during the course of the arrest.

The NYS DMV had an enforcement detail at the venue and the following individuals were accused of using a fictitious/fraudulent driver's license.

James A. Carbamone, 20, of Delta Drive, Niagara Falls, Ontario, Canada
Rebecca E. Blondin, 20, of South Taylor Road, Charles, Fla.
Kyle R. Henecke, 21, of Loonis Road, Farmington
Morgan J. Engesser, 19, of Higby Road, New Harford

The following indivdiuals received citations for alleged possession or consumption of alcohol while under age 21.

Colin J. Haines, 17, of Americo Court, Lancaster
Adam R. Wattles, 19, of Old Lower East Hill, Colden
Guymichael A. Gornicki, 20, of Lockport Road, Niagara Falls
Anthony R. Dicosmo, 20, of Lockport Road, Sanborn
Megan P. Barney, 20, of Gerald Hunter Road, Madrid
Meghan R. McGee, 20, of Lagrass Street, Waddington
Katie C. Mach, 18, of Banko Drive, Depew
Maxwell I. Crabtree, 19, of South Seine Drive, Cheektowaga
Matthew R. Walsh, 19, of Gabriel Drive, Cheektowaga
Aleigh J. Andrews, 18, of Homestead Drive, Niagara on the Lake, Ontario, Canada
Richard W. Ingoldsby, 20, of Rice Road, Boston
Nicole M. Vinci, 19, of Hogan Road, Webster
Eryn E. McBride, 18, of Houston Road, Webster
Alexandra N. Liberty, 18, of Chigwell Lane, Webster
Alyssa C. Proietti, 20, of Cottage Brook Lane, Webster
Tyler M. Smedley, 19, of Morning Glory Drive, Webster
Kaitlin M. Cunningham, 19, of Cottage Street, Fredonia
Heather N. Tomsick, 20, of Gardner Street, Fredonia
Thomas F. R. McRae, 20, of Parkside Road, Niagara Falls, Ontario, Canada
Jacob D. Cardwell, 20, of Woodinton Road, Niagara Falls, Ontario, Canada
James A. Carbanone, 20, of Delta Drive, Niagara Falls, Ontario, Canada
Taylor R. O’Leary, 20, of Chesterbrook Lane, Pittsford
(name removed upon request), 20, of Mendon Center Road, Pittsford
Kaitlyn M. Piccarrento, 17, of Temple Road, Henrietta
Samantha N. Jones, 19, of Cameron Hill Road, Rochester
Kathryn E. Pietropalo, 18, of Southery Place, Rochester
Nicole S. Mercendetti, 19, of Elwood Drive, Rochester
Rose R. Emilie, 20, of West Center Street, Medina
Patricia A. Glass, 19, of Chase Street, Medina
Kalie L. Curtain, 18, of South Gravel Road, Medina
(name redacted upon request), 18, of Owls Nest Road, Marion
Melissa A. Cook, 18, of Kemp Drive, Macedon
McKenzie T. Bigley, 20, of North Main Street, Marion
Jordan L. Phillips, 18, of Sunset Drive, Marion
Julia M. Smallman, 20, of Effingham Street, Street, Catherines, Ontario, Canada
Cassandra R. Robinson, 20, of Sunset Drive, Fenwick, Ontario, Canada
Britta M. Adamczyk, 18, of Route 39, Springville
Jochua I. Burau, 19, of Newman Street, Springville
Taylor M. Sikes, 17, of Oak Street, Geneseo
Delilah M. Cipriano, 16, of Upper Mt. Morris Road, Leicester
Bianca R. Weber, 19, of Markie Drive, West Rochester
Veronica L. Maznikovski, 19, of Abbottsford Drive, Gates
Melissa A. Cook, 18, of Kemp Road, Macedon
Darren W. Godfrey, 20, of Witmer Road, North Tonawanda
Ashley M. Drouin, 20, of Peek Road, Hilton
Amanda M. Marlow, 17, of State Street, Caledonia
Corey R. Sherman, 19, of Fraser Drive, Hilton
Austin G. Kelly, 16, of Sunderland Trail, Rochester

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

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.

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.

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.

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.

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.