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January 28, 2019 - 8:09pm
posted by Billie Owens in news, animal abuse, animal neglect, batavia, notify.

Photo of Maya at the shelter July 20, before her health returned and she was adopted.

A tearful, remorseful Becky L. Frens pled guilty this afternoon in Town of Batavia Court to one count of overdriving, torturing and injuring an animal and failure to provide proper sustenance in the case of her Labrador retriever mixed breed named Maya.

Under the state Agriculture & Markets law, Article 26, Section 353, the charge is a Class A misdemeanor. The maximum punishment is jail time of more than 15 days but not more than one year, and a fine of up to $1,000. As part of a plea agreement, Frens will serve no jail time nor pay any fine whatsoever.

She will pay restitution and, under supervision by Genesee Justice, volunteer 100 hours of community service work in the next 10 months, "obviously not at the animal shelter," said Batavia Town Court Judge Michael Cleveland.

A total of $116.84 in restitution must be paid to the nurse whose family adopted Maya, and $423.17 must be paid to the Volunteers For Animals to reimburse them for Maya's medical expenses while she was at the Genesee County shelter and in foster care awaiting a forever home.

Frens, (inset photo, right) who appeared with attorney Samuel Alba, also agreed to a one-year conditional discharge: she will not be incarcerated, but she is to have no violations of the law nor will she be able to adopt an animal from a shelter during that time. Alba noted his client has no criminal history.

Alba explained today that Frens took the dog into her home at 3475 Pearl Street Road in the Town of Batavia, even though it was not in good health, because it was her mother's pet and her mother was gravely ill.

First Assistant District Attorney Melissa Cianfrini said when Frens found herself in that situation, she realizes now that she made "honest mistakes" and "bad decisions."

"It's still your responsibility to take care of an animal once you assume responsibility for it," Cianfrini said.

When the dog was brought to the shelter by an animal control officer after neighbors called for help, a trooper happened to be there, Cianfrini said. The trooper was so alarmed at the animal's condition, that he went to Frens' home to see what the circumstances were and found other pets there who were healthy.

Doing too little, too late

Receipts for over-the-counter shampoos and treatments showed that some effort was made to help the ailing dog. But Cianfrini said Frens did not act as quickly as she should have and the dog's condition continued to deteriorate.

Maya was subsequently diagnosed with multiple skin infections, mange, double ear infections that left her only able to hear a dog whistle, and her uncut nails were so long they cut into the pads of her feet and hobbled her movement.

Cianfrini said the plea agreement "doesn't put everything back" as it should be.

"Maya is a beautiful dog and she's still on the mend," she said, at which point she praised the "great work" by many who made that mending possible: State Police Troop A -- Batavia Barracks; State Street Animal Hospital staff, particulary veterinarians Fran Woodworth and Gwendolyn Wollney; Animal Control Officer Ann Marie Brady; and the tireless Volunteers For Animals, who ferried Maya to and from the vet, walked her, fed her, loved her, comforted and aided her.

Attorney Alba offered no excuses for his client, other than to say when Frens had tried to call shelters to relinquish ownership of Maya, she was always told there was no space.

"She never intended to harm Maya," Alba said. "She never intended to do anything malicious. She's extremely remorseful."

When asked if she had anything to say on her own behalf, a shaky Frens, who wore gray suede ankle boots, black cargo pants and a blue-and-black diamond-print knit top, used boths hands to steady herself at the table in front of the judge.

"I feel so bad this happened," she said softly, crying and sniffling as she spoke. "I tried to take care of my mom. I should have taken (Maya) to the vet, but I didn't have the means at the time."

In accepting the plea deal offered by the DA's office, Judge Cleveland said both sides met in conference last month and this month, and he feels the plea deal they came up with is fair.

Cleveland said in cases like this emotions can overshadow the facts at first, but as the "wheels of justice grind slowly" the facts of the case come to the forefront.

Judge: justice has been served

"The purpose (of the plea) is not to please everybody," the judge said. "It's to do justice. With restitution, people were compensated. I'm glad to hear Maya is doing well. Justice has been served in my opinion.

"(The defendant) has pled guilty to the charge and accepted responsibility; she has not tried to get out of it. The public interest will not be served in any way by jail time."

Cleveland went on to emphasize that volunteering hours for community service is not punishment, nor is it intended to be; it is meant to serve the community -- just like scouting or 4-H.

"If all we do is take from the community, pretty soon there'll be nothing left to take," Cleveland said.

Meanwhile, Frens, who is in her mid-50s, has 30 days to file a written appeal of the adjudication.

Outcome: better than it used to be

For the Volunteers For Animals, the outcome, while perhaps not ideal, is more or less deemed "the best they could hope for."

Time was not long ago, according to some, that animal neglect cases like this never even made it to court.

Brenda Cromwell, who has volunteered at the shelter since 2001, said after court today that the first case she recalls that sparked comparable outrage was 10 years ago in Le Roy when Stanley the beagle was found dead and people wrote letters and got angry about his treatment.

"This is an improvement over how things were," Cromwell said. "It's probably the best that we can expect."

Still, Cromwell is saddened by Maya's case, which came to light on July 10 when the dog somehow managed to get out of the house and make its way down the long gravel driveway. There it was found by neighbors across the street, who said they were shocked and appalled at the dog's emaciated condition; they called dispatch to report their pathetic discovery.

"She was so beaten down, so broken, when she came to us," Cromwell said. "She was happy for any attention at all; she was so neglected. I think (Frens) gave up. That dog was totally neglected."

(Photo below of Maya taken on July 20, which is 10 days after she was first brought to the shelter. With her nails trimmed, she could manage to walk better.)

Links to previous coverage:

Batavia woman arrested by Troopers at shelter when she tried to reclaim her neglected dog

'Maya' recovering at animal shelter while former owner makes first court appearance on neglect charge

Batavia woman accused of failing to care for dog was a no-show in court today, and so was her attorney

Case of neglected lab 'Maya' delayed again so former dog owner can gather 'more documentation'

Case of Pearl Street Road woman accused of neglecting dog delayed until January

January 28, 2019 - 7:11pm
posted by Howard B. Owens in fire, news, byron, notify.

A house fire is reported at 6123 Cook Road, Byron.

It is apparently a chimney fire. 

Byron and South Byron dispatched. Bergen also dispatched.

UPDATE 7:16 p.m.: Flames showing. Second alarm requested.

UPDATE(S) (By Billie) 7:19 p.m.: It has gone to a second alarm. Stafford is asked to send one engine and one tanker to the scene; the city's Fast Team is called to respond and its fourth platoon is to report to headquarters.

UPDATE 7:35 p.m.: Byron and South Byron auxiliaries are requested to the scene.

UPDATE 8:15 p.m.: Bethany Fire Department is called to stand by in quarters.

UPDATE 11:31 p.m. (by Howard): All units back in service.

January 28, 2019 - 4:19pm
posted by Howard B. Owens in crime, batavia, news, notify.
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       Dale T. Young

A 38-year-old Ellicott Street resident has been indicted by a Genesee County Grand Jury on 10 criminal counts related to accusations that he forced a person less than 17 years old to engage in sexual activity.

The alleged crimes were first reported in October when Dale T. Young was arrested by Batavia PD and ordered held on $50,000 bail.

The counts against Young:

  • Endangering the welfare of a child. In July, Young allegedly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child.
  • Sexual abuse in the first degree. In July, Young allegedly subjected another person forcible sexual contact.
  • Criminal sexual act in the first degree. In July, Young allegedly forced oral sex on the victim.
  • Criminal sexual act in the third degree. In July, Young allegedly forced oral sex on the victim.
  • Criminal sexual act in the first degree. In July, Young allegedly forced oral sex on the victim.
  • Criminal sexual act in the first degree. In October, Young allegedly forced oral sex on the victim.
  • Criminal sexual act in the first degree. In October, Young allegedly forced oral sex on the victim.
  • Criminal sexual act in the third degree. In October, Young allegedly forced oral sex on the victim who was less than 17 years old.
  • Criminal sexual act in the third degree. In October, Young allegedly forced oral sex on the victim who was less than 17 years old.
  • Sexual abuse in the first degree. In October, Young allegedly subjected another person to forcible sexual contact.

Young is out of jail on bail.

January 28, 2019 - 1:35pm
posted by Howard B. Owens in crime, pembroke, news, notify.
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     Jacqueline Saeli

A 52-year-old Pembroke woman who started a fire that destroyed her ex-boyfriend's Harley-Davidson entered a guilty plea to attempted arson in the third degree, a Class D felony, this morning just before jury selection in her criminal trial.

Judge Charles Zambito said Jacqueline M. Saeli can avoid a prison term if she makes full restitution before she is sentenced at 1:30 p.m., March 29.

District Attorney Lawrence Friedman said after her appearance that it's expected Saeli will make a $10,000 payment this week.

Saeli, of North Lake Road, was arrested following a Jan. 6 fire at 8455 N. Lake Road, Pembroke, that destroyed a garage and the bike and was determined to be arson by Deputy Ryan Young, Investigator Chris Parker, and personnel from Pembroke Fire Department and the Emergency Management Office.

January 28, 2019 - 12:14pm
posted by Howard B. Owens in weather, news, notify.

UPDATE 2:37 p.m.: Hazardous weather outlook -- A winter storm warning is in effect from 4 p.m. Tuesday through 7 a.m., Thursday. A wind chill watch has also been issued for Thursday afternoon. The wind chill could reach 25 below zero.

-----

A winter storm watch is in effect from Tuesday afternoon through Thursday evening in Genesee County.

The National Weather Service is expecting heavy lake effect snow with storm totals of one to two feet possible in the most persistent bands.

Winds could gust as high as 45 mph later Wednesday through Thursday. Some areas could experience near blizzard conditions with severe blowing and drifting snow.

The storm is also expected to hit Erie and Wyoming counties.

The weather service warns travel could be difficult to impossible, especially Tuesday night through Thursday, due to heavy snow and significant blowing and drifting snow. The conditions could impact the morning and evening commutes.

January 27, 2019 - 7:34am
posted by Howard B. Owens in weather, news, notify.

A snow squall warning for Genesee County was issued at 7:18 a.m. and is effect until 8:15 a.m.

Dispatchers have received reports of multiple vehicles off the road in Pembroke, Alabama, Oakfield and Batavia, and town snow plow drivers are reporting whiteout conditions in Alabama.

The National Weather Service reports a dangerous snow squall has formed from Rochester to near Allegany State Park and is moving east at 45 mph.

There are wind gusts up to 30.

The weather service warns of poor visibility and dangerous, life-threatening travel conditions. 

"Consider avoiding or delaying travel until the snow squall passes your location," the weather service advises."If you must travel, use extra caution and allow extra time. Rapid changes in visibility and slick road conditions may lead to accidents."

January 25, 2019 - 4:36pm
posted by Howard B. Owens in jobs, economy, news, notify.

The unemployment rate in Genesee County for December was 4.1 percent, according to the New York Department of Labor, which is lower than the December 2017 rate of 5.3 percent.

The rate in November was 3.5 percent.

There are 1,000 more people in the labor force in Genesee County for December, at 30,100, compared to 29,100 a year ago.

Of those 30,100 people, 28,900 reported having jobs.

There are 1,200 people listed as unemployed. That's 300 fewer than a year ago.

There were 16,200 private sector, non-farm jobs reported in Genesee County for December, up 100 jobs from the previous December. Government jobs in the county fell from 5,800 to 5,700.

The unemployment rate for the GLOW region in December was reported at 4.2 percent, down from 5.6 percent a year ago.

The state's unemployment rate is 3.8 percent. The nation's is 3.7 percent.

January 25, 2019 - 2:56pm
posted by Howard B. Owens in Sheriff's Office, news, notify.

Press release:

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Officer of the Year Award – Deputy Sheriff Travis M. DeMuth
Deputy Sheriff Travis M. DeMuth has distinguished himself in the performance of service to the citizens of Genesee County during 2018. During this year, Deputy DeMuth has shown to be a reliable asset, he has maintained a consistent, positive attitude and has excelled in the performance of his duties. Specifically, during two incidents, Deputy DeMuth’s instincts, investigative skills and proactive attitude contributed to the arrest of a well-known drug trafficker from Rochester who was in possession of 154 individually packaged quantities of cocaine, heroin and marijuana. These were confiscated and never made it to the streets to be sold in our community. Additionally, during another incident, Deputy DeMuth’s calm demeanor, persistence, and decisive actions were instrumental in reviving an unresponsive victim and likely saved her life. 

Deputy Sheriff Travis M. DeMuth has reflected great credit upon himself and the Genesee County Sheriff’s Office and most deserves to be named Officer of the Year.

Photo: Christopher DeMuth, Travis' father, Larissa Shaffer, sister, Avery Schaffer, niece, Rebecca DeMuth, stepmother, Margaret DeMuth, mother, Olivia Ahearn, girlfriend, Deputy Travis M. DeMuth, Sheriff William A. Sheron Jr., Undersheriff Bradley D. Mazur.

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Distinguished Service Award – Confidential Secretary Carolyn A. Della Penna
Confidential Secretary Carolyn A. Della Penna has distinguished herself as a member of the Genesee County Sheriff’s Office. Carolyn continuously goes above and beyond to ensure that the operations of the Genesee County Sheriff’s Office are accomplished in an efficient and professional manner. She is always available to take on additional tasks and assist members with complicated issues. Carolyn has a wealth of knowledge and is recognized as the "go to person" on operational procedures of the Sheriff’s Office and Genesee County. Her willingness to help others is truly appreciated by all the members of the Sheriff’s Office. Confidential Secretary Della Penna’s knowledge and attention to detail have proven to be a great asset to the Department and, through her work, has distinguished herself and brought great credit upon herself and the Genesee County Sheriff’s Office. Thank you for all you do.

Photo: Sheriff William Sheron; Confidential Secretary Carolyn Della Penna; her daughter, Sydney; her husband, Tom; and Undersheriff Bradley Mazur.

Longevity Awards:

  • Jail Cook Manager William S. Cultrara, 10 years
  • Principal Financial Clerk Deborah A. Shea, 10
  • Sr. Emergency Services Dispatcher Michael T. Sheflin, 10
  • Sr. Emergency Services Dispatcher Jason W. Holman, 10
  • Investigator James M. Diehl, 10
  • Deputy Sheriff Kevin R. McCarthy, 10
  • Emergency Services Dispatcher Steven L. Robinson, 10
  • Emergency Services Dispatcher Francis A. Riccobono, 10
  • Correction Officer Daniel J. Renz. 15 years
  • Sr. Correction Officer Caleb C. Chaya, 15
  • Correction Officer Brian M. Manley, 20 years
  • Sr. Correction Officer Peter M. Hoy, 20
  • Investigator/Youth Officer Timothy G. Wescott, 20
  • Emergency Services Dispatcher Lynn B. Riccobono, 25 years
  • Deputy Sheriff Deborah L. Snyder, 25

Certificates of Appreciation

  • Cook Manager William S. Cultrara
  • Community Services / Victim Counselor Rosanne DeMare Smart
  • Volunteers for Animals

Commendations

  • Investigator Chad J. Minuto, 2nd
  • Deputy Sheriff Chad P. Cummings, 2nd
  • Deputy Sheriff Ryan W. Young, 2nd
  • Deputy Sheriff Mathew J. Clor, 2nd
  • Deputy Sheriff Jeremy M. McClellan, 2nd
  • Emergency Services Dispatcher Steven L. Robinson, 2nd
  • Sr. Emergency Services Dispatcher Jason W. Holman, 2nd
  • Emergency Services Dispatcher Steven R. Smelski, 2nd
  • Deputy Sheriff Kevin R. McCarthy, 3rd
  • Deputy Sheriff Deborah L. Snyder, 4th
  • Emergency Services Dispatcher Lynn B. Riccobono, 5th
  • Sergeant Jason E. Saile, 6th

Meritorious Awards

  • Deputy Sheriff Matthew R. Butler, 3rd
  • Investigator Christopher A. Parker, 2nd
January 24, 2019 - 5:51pm
posted by Howard B. Owens in Alpina Products, batavia, business, news, notify.

Some potential buyer of the now-shuttered Alpina property in the Genesee Valley Ag Park is going to pick up an ultramodern dairy plant for a relative song, according to the man tasked with finding a buyer.

And it will sell soon, said Aaron Morgenstern, managing director of Harry Davis & Company, the firm handling the real estate listing.

"It's an opportunity that doesn't come along often," Morgenstern said. "I would expect we'll soon find a buyer. I'm 100-percent confident that it will be sold soon and I'll be surprised if it's July 4 and we're still talking about who will buy the plant."

Harry Davis & Company specializes in valuing dairy companies and handling dairy plant and operations sales. The company helped in the sale of the former Muller Quaker Dairy plant in Batavia when HP Hood acquired it from Dairy Farmers of America.

Alpina acquired the land and built the plant for $20 million in 2012. Over the next six years, Alpina invested another $50 million in buying more land in the ag park, adding equipment, including equipment for liquid yogurt production, and adding onto the facility in anticipation of increased production.

The fully automated plant will help the company that acquires it control labor costs; at full capacity, Morgenstern would expect the plant to employ about 100 people.

"Our goal is to find a new operator who will bring jobs back to the area and grow the facility to its full capacity," Morgenstern said.

Morgenstern said he couldn't disclose the asking price for the plant but said it's substantially less than the $70 million that Alpina invested.

"The value proposition is that this an opportunity for somebody not currently in New York State to get into one of the premier milk sheds in the United States," Morgenstern said. "Or it's an opportunity for somebody in New York to continue to capture this milk shed with a brand-new ultramodern facility."

Morgenstern said he's received about three dozen inquiries about the property from serious potential buyers since the plant went on the market last week.

In 2012, Alpina, based in Colombia, received $767,096 in tax incentives to build its first U.S. plant in Batavia. A large portion of those tax incentives was in the form of a PILOT -- Payment In Lieu Of Taxes -- in which Alpina paid a fee in exchange for reduced taxes on the increase in assessed value of the property. The amount of taxes due to the increase in assessed value graduates upward over the years, from zero percent the first year, to about 50 percent today.

The assessed value of the property $168,000 (commercial properties are assessed differently than residential properties to account for the depreciation of commercial buildings). CORRECTION: When looking at assessments, we only looked at one parcel. There is another parcel that Alpina owns with an assessed value of $4.2 million.

Jim Krencik, spokesman for the Genesee County Economic Development Center, said the GCEDC board has the option, under the PILOT agreement, to adjust the agreement, or even cancel the PILOT, to increase the tax bill to 100 percent of assessed value.

A potential pitfall of canceling the PILOT is that a new owner would not be eligible for a continued tax abatement. The board keeps the PILOT in place but adjusts the taxable amount, another company could get a new PILOT agreement. A canceled PILOT agreement potentially makes the property less marketable.

The Batavian contacted four of the five current GCEDC board members and all said they wanted to reserve comment on the status of the PILOT until they had more information.

The board doesn't meet again until February and the time period for making a decision about the future of the PILOT is February and March.

"As we move forward with the site, I’m keeping in mind that any decision regarding the PILOT is within a larger effort to continue to bring more capital investment and job growth at the Alpina site, the Ag Park and Genesee County," Krencik said.

If the amount of taxes due under the PILOT were adjusted, it wouldn't take effect until the tax years for municipalities and school districts, and if Morgenstern's prediction of a quick sale is correct, the issue would become moot.

When Muller Quaker sold its $200 million plant to DFA, DFA didn't immediately decide what to do with the plant and it sat vacant for more than a year. In that case, the GCEDC board adjusted the PILOT and DFA paid more than $655,000 in additional taxes to local governments in 2017. When HP Hood acquired the plant, the PILOT benefits were extended to Hood.

January 23, 2019 - 5:20pm
posted by Howard B. Owens in crime, batavia, news, notify.
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Christopher Sprague

One suspect -- a man with a history of burglaries locally -- is in custody in a series of business break-ins in Batavia earlier this month and investigators believe another suspect is still at large.

Christopher T. Sprague, 25, of West Main Street, Batavia is charged with four counts of burglary.

Sprague is accused of participating in a series of burglaries and attempted burglaries at nine business locations on Ellicott Street, Jackson Street, Harvester Avenue, Swan Street, Center Street, Apollo Drive, and Liberty Street between Jan. 4 and Jan. 7.

A truck was stolen -- and later recovered -- at one of the locations.

Police say the suspects broke windows or kicked in doors to gain entry to most of the businesses. Items were taken at some businesses but not all.

Evidence was uncovered at each location that indicated the burglaries were all related and committed by the same suspects, said Det. Eric Hill in a news release.

Sprague was arrested in 2012 and convicted on burglary and attempted burglary charges. He was sentenced to three to six years in prison and released from custody in April 2016.

He was arrested in Batavia in May 2016, accused of breaking into a business on Treadeasy Avenue and stealing money.

Information isn't available at this time about the resolution of that 2016 case.

Sprague was arrested on the four burglary charges while in custody at the Genesee County Jail, where he was being held on an unrelated petit larceny charged and an alleged parole violation.

His parole on his 2012 conviction is scheduled to expire next month.

Hill said police are not releasing more information about the investigation at this time since there is the possibility of another suspect yet to be taken into custody.

January 23, 2019 - 11:16am
posted by Howard B. Owens in news, Le Roy, Robbin's Nest, Presidential Acres, notify, land use.

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Good fences make good neighbors the poet Robert Frost observed, but that may not apply to driveways, at least not in Le Roy.

A driveway is the latest flashpoint in a nearly decade-long neighborhood dispute that pits local businessman Pete McQuillen against Steve Barbeau and other residents of the subdivision known as Presidential Acres.

In the latest chapter, McQuillen was brought up on criminal charges for use of a driveway that traverses a parcel he owns next to the residence of Barbeau. It allows him to access both a utility building he constructed behind Barbeau's lot and the single-family home he and his wife, Judith, now live in further back on their parcel.

A judge in Darien Town Court dismissed the criminal complaint, which prompted Barbeau and several other residents to file an Artice 78 petition seeking, among other things, to overturn the dismissal.

An Article 78 filing, or proceeding, is an appeal of an agency decision. It is how a citizen in New York can appeal to judge in a county supreme court the ruling or decision of any government agency in the state.

Barbeau's side lost in a harshly worded decision written by Justice Emilio Colaiacovo of the NYS Supreme Court 8th Judicial District.

"As this Court has some familiarity with these parties and prior proceedings, it is deeply troubled by the continued methods employed by the Petitioners," Colaiacovo wrote. "While it is one thing to complain about your neighbor, it is another to install video equipment and keep a log documenting your neighbor's activities in an attempt to subject and expose him to criminal prosecution. The Petitioners' demonstrated pattern of prosecution against their neighbor is nothing short of harassment."

Despite the ruling, the legal proceedings are likely to continue, Barbeau indicted in an email to The Batavian.

History of Disputes
McQuillen purchased property in the Fillmore/Robbins Road area, adjoining Presidential Acres, in September 2010.

Shortly after acquiring the property, McQuillen announced his intention to build 26 single-family homes for people 55 and over on the subdivision, which McQuillen dubbed "Robbins Nest." This met with opposition and eventually resulted in a lawsuit with Barbeau, supervisor in the Town of Le Roy, as one of the plaintiffs.

The legal challenges eventually brought an end to McQuillen's plans for Robbins Nest, but by that time he was being sued over duplexes he built in the subdivision as well as a challenge to the utility barn he built behind Barbeau's home.

McQuillen eventually prevailed in the challenge to the duplexes and in that ruling, issued in February 2017, Colaiacovo determined the challenge to the utility structure was moot because McQuillen had built a single-family residence on the property (a utility structure, or garage, or barn, is not permitted as a stand-alone structure on a lot in a single-family area, according to Village of Le Roy code).

Village code enforcement had, perhaps incorrectly, issued a building permit to McQuillen for the utility building before plans were submitted for the single-family residence.

While McQuillen was erecting that barn-like structure in August 2013, Barbeau became upset with McQuillen when a tree fell on his house (there was little or no damage). An argument ensued and an accusation that Barbeau shoved McQuillen, causing him to fall ot the ground, leading to Barbeau's arrest (Barbeau eventually received a conditional discharge).

It was during this time that Barbeau and his then-neighbor David Boyce (who has since moved) had their own complaints against McQuillen. McQuillen was accused of parking construction equipment in front of their homes; storing waste construction material on the property across the street; and of once dumping a pile of manure against the back property line Boyce's home just in time for a graduation party for Boyce's daughter (an allegation recounted in a recent email to The Batavian from Amy Kendall, attorney for the Presidential Acres residents).

In July 2013, the Village granted a building permit for McQuillen to construct a single-family home with an address of 9313 Robbins Road.

Boyce and neighbors, in a lawsuit titled Bartz vs. Le Roy, challenged the ZBA's decision on the building permit.

As part of its decision, the ZBA ruled (and this point is part of the ongoing dispute) that ingress and egress for 9312 Robbins Road would be from a driveway leading to Robbins Road.

The neighbors ended up withdrawing the suit, letting the ZBA decision stand, in order to challenge McQuillen's use of the driveway leading to Fillmore Street.

Barbeau began keeping a log of traffic on that driveway, and at the suggestion of a code enforcement officer, set up a video camera to monitor vehicle traffic on the driveway.

That evidence was eventually used to file a criminal complaint against McQuillen. The case was moved to Darien because both justices in Le Roy had a conflict of interest as did Judge Gary Graber in Darien, which is how the case was handed to Darien Town Justice Michelle Krzemien.

The Easement
Pete and Judith McQuillen own the parcel at 9313 Robbins Road.

Judith McQuillen is CEO of Circular Hill Inc., according to a court filing by attorney Kendall, and that corporation owns the parcel adjoining Fillmore Street.

In September 2013, Circular Hill granted an easement to the McQuillens for use of a driveway and utility connections attached to the Robbins Road residence.

In July 2014, the Zoning Board of Appeals affirmed its prior decision to issue a building permit, after hearing an appeal from the neighbors, and stated in its decision, "The board notes the owners' right of entry to the primary and accessory structure will be accessed through Robbins Road."

It's the position of Barbeau and his co-plaintiffs that the decision limits the McQuillens to using only the drive leading to Robbins Road.

One point of contention in the case is that McQuillen did not mention, nor did the ZBA ask about, nor did anybody apparently research, the easement on the property next to Barbeau's.

McQuillen did not appeal this decision and later claimed he did not know about the ZBA's written decision requiring access on Robbins Road.

The McQuillens received a certificate of occupancy for their new home in June 2016.

Later that month, Pete McQuillen testified in the Bartz case that he used the Robbins Road driveway for ingress and egress to his house.

In July 2016, Code Enforcement Officer Jeff Steinbrenner sent a letter to McQuillen notifying him that he was violating Village code and the ZBA decision by using the Fillmore Street driveway.

From August 2016 through January 2017, Barbeau made a log of vehicles using the Fillmore Street driveway, which included a black Dodge Ram, a white GMC SUV, a gray pickup, a FedEx truck, tractors, a four-wheeler, and several other vehicles.

The following February, the Village filed a criminal complaint against McQuillen.

The case was transferred to Darien Town Court in May and McQuillen's attorney Benjaman Bonarigo filed a motion to dismiss the criminal complaint "in the interest of justice" in the fall.

A hearing on the motion was held Dec. 3, 2017.

The Dismissal Hearing
In New York, a criminal case can be dismissed "in the interest of justice" if a judge finds compelling factors about the circumstances of the case that clearly demonstrate that prosecution, or conviction, would result in an injustice, such as insufficiency of evidence or the defendant was really doing nothing wrong.

At the dismissal hearing in People v. McQuillen, Bonarigo represented McQuillen and James Wujcik represented the Village of Le Roy.

Kendall and Barbeau were also present and both attempted to speak and Krzemien denied their requests, an effort characterized by Colaiacovo in his ruling as an attempt to influence the proceedings.

In her subsequent filings, Kendall would have a few complaints about this hearing:

  • That neither Bonarigo nor Wujcik corrected Krzemien on relevant points of law;
  • That Wujcik did not correct what Kendall sees as inaccurate factual statements during the hearing and that he did not sufficiently challenge Bonarigo on points of law;
  • That neither attorney corrected Krzemien on misstatements about the county issuing the easement;
  • That Bonarigo failed to produce citations to back his assertion that the easement barred his client from being charged criminally;
  • That she wasn't allowed to speak in violation of court rules.

At the hearing, Bonarigo spoke first, according to a court transcript, and presented the facts of the case as he saw it, from McQuillen's purchase of the property in 2010 through McQuillen's eventual criminal charge. He covered the easement and the ZBA hearings.

In the midst of his presentation, Krzemien interrupted and explained why she had not read filings from Kendall relevant to the Bartz case.

"I did not look at the paperwork because I don't know too much about zoning and you (Bonarigo) told me the appellate -- the appellate decision had nothing do with what was laid out here," she said.

A short time later, Bonarigo sums up, "Let me just say ... there's an easement. It's a matter of record. It allows for exactly what Mr. McQuillen is accused of doing here in a quasi-criminal matter. Therefore, it's our contention that based upon those facts and what's before this court, documentarily, that you should dismiss this case in the interest of justice."

In response, Wujcik argues that the ZBA had already ruled that McQuillen could only access his property from Robbins Road.

"Mr. McQuillen never disclosed that he had an easement," Wucik said. "So since he didn't disclose it, then the business about that he wasn't aware of the ZBA's decision -- our position is that's misplaced because he was the defendant in a litigation, so he certainly was aware of the two -- there's also a different ZBA decision against him -- but he was aware of that."

After more discussion, Krzemien asked who issued an easement, the village or the county.

Wujcik explained that private citizens grant easements, with a short explanation of how the process works, and that once two private parties agree on an easement, it is filed with the relevant government agency.

After the explanation, Krzemien asked, "So I guess what I'm asking is, ... in the VIllage of Le Roy, is there a process that you would go through to get an easement or all easements issued through the county?"

Bonarigo: "No, there is no such procedure."

Krzemien: "No such procedure."

There is then a long discussion related to issues contained in the Bartz case.

Returning to the requirement to use Robbins Road, Bonarigo said, "The ZBA can't create that by law over the top ... they can't take away a legal right that has been formulated for years prior to it by just a stroke of the pen. They don't have that kind of authority. As a matter of law, the easement was in existence."

Wujcik said the ZBA has the authority to nullify an easement, and as to the assertion that the ZBA didn't ask about the easement, "the Zoning Board of Appeals doesn't know what it doesn't know. If they are not made aware of an easement, they can't make an interpretation or a ruling on it."

Bonarigo: "They were made aware of it, Judge. That's my point."

He would later point out that the easement is on file with the clerk's office and is a public document and easily discoverable. In reviewing court documents obtained by The Batavian we didn't find any indication the ZBA was made aware of the easement prior its decision, nor is there any indication any ZBA member or staff member tried to research the title of the property.

After more discussion, Krzemien makes reference to the county granting the easement and discusses the life of the easement, which goes with the land.

Wujcik did not correct her misstatement about the easement being granted by the county but did agree it goes with the land.

Later, Wujcik points out that the McQuillens filed the easement two weeks after the first ZBA discussion of the property but before any ZBA decision.

At this point, Kendall tries to speak and Bonarigo objects.

"This is not a civil matter despite what Ms. Kendall might think," Bonarigo tells the judge.

Krzemien: "Ms. Kendall, I'm sorry. I'm not going to hear what you have to say, so will you have to sit down, please."

A few pages later in the transcript, Krzemien again refers to the county issuing the easement and neither attorney corrects her misstatement.

At one point, Krzemien complains about Kendall, "I'm not. I'm not. I know you're just -- got information from him. And that little bird back there is chirping at you."

Wujcik: "Yeah, I don't need her -- no disrespect to her, I don't need the chirping."

When it comes time to discuss when Krzemien might issue a decision, Krzemien asks that McQuillen, in the meantime, stop driving bulldozers down the driveway, along with snowmobiles and four-wheelers; asking that they only use the driveway for their own personal vehicles, except for snow removal. McQuillen agrees.

On April 16, Krzemien granted McQuillen's motion, dismissing the criminal complaint in the interest of justice, noting the existence of a valid easement.

The Village of Le Roy did not appeal Krzemien's decision, and Wujcik later informed Colaiacovo that the Village would not be joining the challenge by neighbors to the ruling.

The Batavian emailed Wujcik last week and asked why the Village did not appeal the ruling, as well as why Wujcik did not mount a more explicit challenge to Bonarigo's assertion that the easement took precedence over Village code or the ZBA decision. After acknowledging our questions and saying he would respond, he did not provide a statement.

The Batavian also contacted Bonarigo and asked him to provide case law citations or specific code sections that would indicate an easement takes precedence over local codes or a ZBA decision.

Bonarigo responded:

A decision was rendered by Justice Emilio Colaiacovo, Supreme Court, supporting my client's position on the Art. 78. I trust you have read that and would hope that you are going to report that result as I don't care to relitigate the Town of Darien case with you.

Bonarigo has declined to comment on follow-up questions.

Article 78 Petition and Ruling
Kendall filed an Article 78 petition May 16. The petition was on behalf of Barbeau, Earl Bickett, Robert Boyce, Joseph McKay, Stephen Moulton, and Ronald Paganin, all property owners in Presidential Acres.

In her motion, Kendall said the petitioners had no other means of seeking remedy than through an Article 78 petition.

The petition asks the court to annul Krzemien's "arbitrary, capricious, and illegal decision." Kendall claimed the ruling was based on insufficient information and misunderstanding of relevant law. Kendall asked the court to rule the use of the driveway off of Fillmore Street illegal and order that it no longer be used.

She asked that the court rule that the McQuillens' use of the driveway constituted a nuisance.

As part of the motion to overrule Krzemien's decision and bar use of the driveway, Kendall complains that the Village of Le Roy failed to challenge the judge's inaccurate statements and that her clients have experienced special damages.

She also asks for attorneys fees, court costs and punitive damages.

By the third page of his 17-page opinion rendering his decision, Colaiacovo is sniping at the petitioners.

"The petitioners live near McQuillen and have exhaustively and painstakingly monitored this otherwise innocuous activity and complaint to the Village of Le Roy," Colaiacovo writes.

The justice ruled that since the criminal proceeding involved only the Village of Le Roy, which declined to participate in the petition, and McQuillen, the petitioners lacked standing to file the motion.

The petitioners failed to demonstrate any injury or harm they sustained because McQuillen used the driveway, Colaiacovo said, adding, "It certainly is not a nuisance as Petitioners maintain, however, there is mounting evidence to suggest that these continued lawsuits are."

He dismissed the complaint against Krzemien, saying that even if the petitioners had standing, Krzemien has judicial immunity.

"Petitioners insist that they have a viable cause of action against the Town Justice because she lacked subject matter jurisdiction over a ZBA decision. Petitioners strangely maintain that by granting the motion to dismiss, the judge erroneously invalidated a ZBA decision by passing judgment on the validity of an easement. However, the Town Justice insists that these charges were dismissed 'in the interest of justice.' This court agrees that the Petitioners' argument improperly mischaracterizes the decision of the Town Justice."

While a town justice doesn't have subject matter jurisdiction, Colaiacovo said, they can dismiss such matters "in the interest of justice."

"Judge Krzemien's determination was just that, a determination and exercise of her judgment, and not a ministerial or clerical act that could be reviewed under Article 78."

He added later in the same section, "to otherwise entertain the relief requested would create a terrible precedent, allowing officious, meddlesome individuals, like those here, an opportunity to intervene and challenge any judge's decision that offends their belief of what the law should be. Sanctioning the relief requested by the Petitioners would only empower like-minded obstreperous people who are engaged, as is the case here, in a simple yet ongoing neighborhood dispute."

While the neighbors sought attorneys fees, court costs, and punitive damages, Colaiacovo notes the arguments of Bonarigo claim that the Article 78 petition was "frivolous" and that challenging the town justice's decision was "beyond zealous representation and of a client and constituted an abuse of process."

Colaiacovo also faulted Kendall and Barbeau for what he said was attempted interference in the McQuillen case at the Dec. 3 hearing and then commencing the Article 78 petition without standing.

"This tactic, which is completely lacking in merit and cannot be supported by a reasonable argument, cannot now be simply overlooked," Colaiacovo wrote. "When viewed in its entirety, the conduct of Petitioners clearly evidences a systematic and torrid legal assault of anyone who stands in the way of what they ultimately seek, including a local Town Justice. This court finds that this reckless and egregious conduct justifies the imposition of costs and fees."

Colaiacovo ordered a hearing on costs and fees for 9:30 a.m., Feb. 14.

Kendall said her clients remain unsatisfied with the response of the Village to the situation, unhappy with Krzemien's ruling, and with Colaiacovo's opinion upholding that decision.

"My clients simply want the McQuillens to comply with the law of the Village," Kendall wrote in an email to The Batavian. "I do not know why that is so difficult. The McQuillens have at least one other driveway onto their property, so the reason they continue to violate the ZBA Decision seems clear. The Village did not support its Code Enforcement Officer’s determination that McQuillen was violating the ZBA Decision by appealing the Justice Court’s obviously incorrect decision. At this point, it appears that having an easement allows you to violate Village law and that is a very dangerous precedent."

She added, "My clients do not want to live with this ongoing harassment and feel that they should be protected from it by the Village. The Village isn’t protecting them."

Given a chance to respond to Kendall's remarks, McQuillen replied, "My response would be to only quote the Supreme Court Judge Hon. Emilio Colaiacovo in his decision – 'The Petitioners’ demonstrated pattern of prosecution against their neighbor is nothing short of harassment.' "

This is probably not the end of the story.

Previously:

Photos: Top and bottom photo made Jan. 17. The top photo is the driveway from Fillmore Street. The bottom photo is the driveway from Robbins Road. Both drives showed evidence of regular use at the time the photos were taken. "Skippy's Way" refers to a friend of Pete McQuillen's, he said.

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Map of the area we created in 2013 to provide an overview of who owned what property. Fillmore Street now connects with Robbins Road. David Boyce is no longer a resident of Presidential Acres.

January 22, 2019 - 6:10pm
posted by Billie Owens in politics, news, GC Women's Republican Club, notify.

When the Genesee County Women's Republican Club convenes its emergency meeting tonight to discuss its anemic body politic, Melissa Haacke will seek guidance and direction, input and feedback.

The chairwoman and other members of the board need to know what the 65 dues-paying members (at least on paper) want to see happen this year. Are there changes that ought to be made? What can be done to boost participation? Do you know what the club's purpose is?

It's aim is to encourage candidates to run for office; help them get endorsed; and support their candidacy for office.

But that is getting harder to do.

The notice sent out last week about the 6:30 meeting at Oakfield's Community & Government Center cited low attendance at last year's spring breakfast and the summer cancellation of the Lucky Numbers basket raffle fundraiser at T.F. Brown's because of lack of interest.

"It is becoming more and more difficult to continue this Club with little to no participation or support," the notice said.

Haacke knows that problem is not uncommon for volunteer groups, particularly with people's tight schedules, regardless of whether the groups are focused on partisan politics, civic or religious purposes, sports or hobbies.

"We've had the same five people, with one or two migrating in or out for the last 10 years," Haacke said, an untenable track.

The echo chamber and self-interest bubble perpetuated and fostered by social media is perhaps part of waning real-world participation in many groups, she acknowleged.

"People are at one end of the spectrum or the other," Haacke said.

And fewer young people are taught about the virtues of volunteerism, she said, and many equate volunteering with punishment: wrongdoers are often given community service in lieu of a harsher penalty.

The irony is that Genesee County is solidly red territory in a blue state, and the GC Women's Republican Party is having trouble pulling off a breakfast when Democrats and Progressives say it's "standing room only" at their events these days.

Asked if Trump's treatment of women or his language concerning them is causing Republican females to go missing in action, Haacke said unequivocally and 100-percent "No. Trump is not a factor."

Any awkwardness in his oratory is because he's "not a politician" but "he tells the truth."

"If we want to get to where we need to be as a Christian and God-loving people, we need to support Trump and the Republican candidates," Haacke said.

Naturally, Erica O'Donnell, chairwoman of the City of Batavia Democratic Committee, sees things differently, but she does sympathize.

"Political or not, all organizations struggle with participation at times, with the busy lives we lead," O'Donnell said. "But we decided to come out of the closet and do more community involvement -- be in parades, go to community events, be at Picnic in the Park (for the 4th of July).

"We are the party of inclusion and acceptance. We should have a big tent."

O'Donnell said that women's participation increased in Democratic and Progessive politics here and elsewhere after Bernie Sanders lost the primary and after the 2016 election.

And O'Donnell thinks Trump is not resonating with a growing number of Republican women, so they are sitting on the sidelines.

"The way he treats women, the way he talks about them," O'Donnell said. "I don't want my daughters exposed to that."

January 19, 2019 - 5:39pm
posted by Howard B. Owens in Women March, news, batavia, notify.

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With a theme of "We Will Rise," about 75 people, mostly women, came out on perhaps the winteriest day of the winter so far -- with a bit of wind, a temperature in the mid-teens, and snow -- to Jackson Square this morning for the local version of Women March.

On a day when Buffalo organizers canceled their march, Genesee County's women's rights supporters rallied each other to do better and help each other.

"We don’t all have to be leaders but we each need to be participants," said Diane Kastenbaum, the keynote speaker.

Born and raised in Batavia, Kastenbaum moved away from her hometown as a young adult and returned seven years ago, going to work for the family business and eventually running for Congress against the now-indicted Chris Collins in 2016.

When she returned, she said, she found some irregularities in the family business and when she pressed the accountant and the attorney for information and documents, she met resistance.

She suspected the resistance was due, at least in part, to gender bias, she said, even though she was a stockholder and board member in the company.

Eventually, after continuing to press the issue, she staged a boardroom coup and was appointed CEO.

In 2016, she said, when she told a business colleague, a male colleague, that she was going to challenge Collins for the NY-27 seat, she said the man asked "Are you crazy?" He wondered, she said, how she could run her business and run for Congress.

"Would he have said that to a man? I don't think so," Kastenbaum said.

To fight back against sexism and discrimination, Kastenbaum said, women need to get involved. They need to join organizations and become board members, whether arts councils, civic group, nonprofits, or business organizations, women need to participate.

"Get yourself on some board and then run for office yourself," Kastenbaum said. 

Women getting involved will make a difference, she said.

"If you make that promise to me, together we will rise," Kastenbaum said. "And if you make that promise to yourselves, together we rise. And if you make that promise to your daughters and your granddaughters and your nieces and your mothers, together, we rise.

"And if you make that promise to your sisters here today, who will bear witness, together, we rise. And if you make that promise to take the power into your own hands, women, together we rise."

The crowd gathered in Jackson Square then broke into a call-and-response chant.

"We will"

"Rise up."

"We will"

"Rise up."

"We will"

"Rise up."

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After Kastenbaum spoke, the activists marched down Center Street, to Main Street, to City Centre to conclude the rally.

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January 19, 2019 - 1:01pm
posted by Howard B. Owens in Robert Bausch, news, bergen, notify, county legislature.

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When Bob Bausch joined the County Legislature in 2010 he said he was making at least a four-year commitment to serve. Nine years later, at age 75 and with a new four-year term looming, he thinks it's time to step aside.

Bausch announced today that he's not going to seek reelection this year.

"When I was pushing for the four-year terms, I knew that at 75 I shouldn't run for a four-year term," Bausch said. "I'm in good health but I'm 75. There's no denying it."

Bausch editorialized and lobbied in support of staggered four-year terms for the county legislative members, replacing a system that had all nine members up for election every two years. County voters approved the reform in November.

Before joining the Legislature, he served as a Village of Bergen trustee for eight years and for 10 years before that, he was on Bergen's Zoning Appeals Board.

He became chairman of the County Legislature in 2017.

Once his term is up at the end of this year, after 27 years in either elected or appointed office, Bausch said he will have plenty to do to keep himself busy. He will continue to serve on the boards of community groups. He also has family spread across the country from Philadelphia to San Jose, Calif., and so will travel occasionally to see them.

"There are still things I would like to get done but I should step aside," Bausch said.

Photo: File photo.

January 18, 2019 - 6:13pm
posted by Howard B. Owens in fire, batavia, news, notify.

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A mother and two young children were displaced from their home after a fire that started on a stove quickly spread to the kitchen leading to a burnt-out kitchen and extensive smoke and water damage to their second-floor apartment.

The mother and her children were at home at the time of the fire and evacuated safely.

City Fire Chief Steve Napolitano said the fire cause $10,000 to $25,000 damage and the apartment wouldn't be fit for habitation until the kitchen is rebuilt and there is extensive, deep cleaning in the rest of the apartment.

A downstairs apartment sustained minor water damage and the residents have been allowed to remain.

The fire was reported at 136 Pearl St., Batavia, just after 1:30 p.m.

"Crews did an outstanding job of containing the fire with little or no extension into the attic or the rest of the structure," Napolitano said.

The Salvation Army is assisting the mother and her children.

(Initial Report)

Submitted photos.

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January 18, 2019 - 5:58pm
posted by Howard B. Owens in Alpina Foods, news, business, notify, GCEDC.

Press release:

“The Genesee County Economic Development Center in collaboration with our many public and private sector partners celebrated in bringing Alpina Foods to Genesee County in 2011. Unfortunately, due to the loss of a co-packaging contract, Alpina Foods has made a decision to close its operations at the Genesee Valley Agri-Business Park.

“While this is extremely disappointing news, the GCEDC will be diligent in marketing and promoting the facility to other agricultural businesses. This was similar to our approach in marketing and promoting a former yogurt manufacturing site, which resulted in bringing HP Hood to our community and with it, further economic investment and eventually the hiring of hundreds of employees.

“We are confident that we will have similar success with the Alpina Foods facility in the Genesee Valley Agri-Business Park.

“In the meantime, the GCEDC will work with our public and private sector partners to assist displaced workers in any capacity we can.”

January 18, 2019 - 3:39pm
posted by Billie Owens in crime, news, notify, Le Roy, batavia.

Brady Christopher Lund (photo above), 21, of Lake View Park, Rochester, is charged with: criminal sex act in the first degree; first-degree sex abuse; and endangering the welfare of a child. Lund was arrested on Jan. 17 and arraigned in Batavia Town Court at 4:20 p.m. He is accused of having oral sexual contact with a male victim less than 11 years old. The alleged incident occurred at 2 p.m. on Dec. 1 on Pearl Street Road in Batavia. The case was investigated by Genesee County Sheriff's Investigator/Youth Officer Timothy Westcott, assisted by Investigator Howard Carlson.

Carla L. Catalano, 46, of 9 Mill St., Apt. 1, Le Roy, was arrested Jan. 14 and charged with criminal possession of stolen property in the fourth degree, a Class E felony, and fifth-degree conspiracy, a Class A misdemeanor. It is alleged that between September and this month that Catalano intentionally agreed with one or more persons to engage in or cause criminal possession of stolen property. Further it is alleged that Catalano knowingly possessed stolen property consisting of one pump shotgun (color black), belonging to the victim, and that she refused to return the gun to the victim when the victim asked/then demanded she do so. Catalano was arraigned in Le Roy Town Court and released under supervision of Genesee Justice.

Chazmar T. Walters, 26, of 12 Myrtle St., Le Roy, was arrested Jan. 15 and charged with these misdemeanors: aggravated unlicensed operation in the second degree -- driving while license suspended; and resisting arrest. It is alleged that Walters was seen by a Le Roy patrol driving on Myrtle Street in the Village while his license was suspended 20 times. Upon approach of the Le Roy patrol, it is alleged that Walters resisted arrest by refusing to exit the vehicle after being ordered multiple times to do so, then he had to be physically removed from the vehicle. It is further alleged that Walters continued to be obstructive during the officers' attempts to walk him into the court for arraignment and further charge(s) are pending. Walters was arraigned in Le Roy Town Court and put in Genesee County Jail in lieu of $5,000 cash or $10,000 bond.

January 18, 2019 - 11:10am
posted by Howard B. Owens in weather, news, notify.

The National Weather Service has upgraded the outlook for the expected winter storm this weekend to a warning with the possibility, starting at 1 p.m., Saturday, that the storm will bring up to 14 inches of snow to the region.

Winds could gust to 35 mph and temperatures are expected to be low and cold.

The warning is in effect until 6 p.m., Sunday.

Travel is expected to be very difficult, potentially impossible, according to the weather service. Areas of blowing snow could reduce visibility.

Wind chills could make it feel like 15 below zero and frostbite on exposed skin could occur in as little as 30 minutes.

January 16, 2019 - 2:47pm
posted by Howard B. Owens in weather, news, notify.

Expect snow to start falling Saturday morning, according to the National Weather Service, snowfall becoming heavier that night and becoming lake-effect snow by Sunday night.

At this time, accumulations of only seven inches are expected but it will be accompanied by gusting winds and cold, arctic air.

Blowing and driving snow could make travel difficult and wind chills could drop to well below zero.

This storm is expected to hit all of Western New York.

Drivers should plan on slippery roads and low visibility.

January 16, 2019 - 2:04pm
posted by Howard B. Owens in crime, news, corfu, Oakfield, notify.

In deciding how to sentence a 24-year-old from Oakfield who caused a serious injury accident while drinking and driving on Route 33 in Corfu on April 18, just weeks after a prior DWI arrest, Judge Charles Zambito said he had to wrestle with how to balance punishment, protecting the community, and providing the young man with the best chance at rehabilitation.

To that end, he decided that Jacob Szumigala should serve an intermittent jail sentence in the Genesee County Jail followed by five years under the watchful eye of the County Probation Department.

Nothing against state's parole supervision but Zambito said he believed Szumigala would be more closely monitored by local probation and if there was a violation, Szumigala would be returned quickly to Zambito's court.

"I'm more confident that this type of sentence will provide the community with more protection and you with more supervision," Zambito told Szumigala in Genesee County Court Tuesday afternoon.

Szumigala was stopped by State Police on Lockport Road in Oakfield in March and charged with DWI. With his driving privileges already revoked, Szumigala was driving through Corfu when his gray Hyundai Sonata was heading eastbound on Route 33 at high speed when it struck a Honda sedan.

That Honda struck a black pickup truck. The driver of the Honda, James Hoskins, of Corfu, suffered serious injuries -- considered so serious at the time of the accident that the Crash Management Team was called to investigate the crash in case the Hoskins didn't survive.

Assistant District Attorney Shirley Gorman said the injuries sustained by Hoskins are life-altering. She argued for a harsh prison term, especially in light of an alleged violation of Szumigala's terms of release while awaiting sentencing.

Szumigala's attorney, Tom Burns, didn't dispute Gorman's assertion that Szumigala tried to get high and when the drug was ineffective, he stopped taking medication to soothe his craving for alcohol and then got drunk.

"That decision to not only use alcohol but to deliberately use a substance intended to induce a high and then stop his treatments that he was authorized to be on and required by his treatment counselor," meant Szumigala deserved a prison term, Gorman argued.

"If there was a time in which you follow the letter of what is expected of you, it's while you're at the mercy of the court before sentencing. But within a month of his appearance, he used alcohol."

Gorman concluded, "how can anything here stop him from drinking other than state incarceration?"

Burns said everybody was disappointed in his client's relapse, including Szumigala. What separated Szumigala from many other defendants in a similar situation is that all the treatment Szumigala has been through -- in-patient, a halfway house, residential treatment -- have all been voluntarily, and other than the one relapse Szumigala's performance throughout treatment has been excellent.

"I was extremely disappointed in his relapse," said Burns, while several members of Szumigala's family sat in the first row of the gallery. "I know his family was disappointed in his relapse."

And unlike many other defendants, Szumigala isn't thinking just of himself, standing before the court expressing remorse over his addiction. Szumigala acknowledges the harm his actions caused other people.

Burns pointed out that if placed on probation, a violation would subject Szumigala to a potentially much longer prison term than available to Zambito under terms of the plea agreement reached in this case. Zambito later said Szumigala could be sent to prison for from five to 15 years if Szumigala violated his probation terms.

In November, Szumigala entered a guilty plea to aggravated vehicular assault and DWI as a misdemeanor and aggravated unlicensed operation. The DWI case in Oakfield is still pending and under terms of his plea agreement, he must plead guilty in that case.

Zambito said that if he sent Szumigala to prison, that would mean he would be taken out of treatment at the Oxford House, cause him to lose his job, and eventually return Szumigala to the community without treatment. That would mean, Zambito said, Szumigala would still be a potential threat to the community.

Szumigala will serve his intermittent jail term on Mondays through Wednesdays.

There is still the issue of restitution to the victims to be resolved and a hearing on restitution was set for March.

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