Attorney challenges constitutionality of law used to charge woman accused of hitting Walmart employee
The attorney for Jacquetta B. Simmons, the 26-year-old Batavia resident accused of assaulting a 70-year-old Walmart employee on Christmas Eve, is challenging the constitutionality of one of the laws used to charge his client.
Earl Key, a Buffalo attorney, filed a motion May 31 seeking dismisal of count two of the criminal indictment, which alleges assault in the second degree on a person 65 or older. Key's motion states that the relatively new law on which the count is based violates Simmons' rights under the 5th and 14th amendments of the U.S. Constitution.
Key was scheduled to appear in Genesee County Court today to argue his motions but according to his assistant attorney, Ann Nichols, Key was too sick to appear and she asked that the case be continued until next week.
The continuance benefits Key's case, because according to court discussion between Assistant District Attorney Melissa Cianfrini and Judge Robert C. Noonan, Key did not notify the Attorney General's Office of his motion challenging the constitutionally of the law, as required by court procedure.
Noonan said if Key had appeared today, he likely would have dismissed the motion due to the insufficiency of notification of the AG's office.
Simmons is accused of hitting Grace Suozzi, who was working as a checker at Walmart on Christmas Eve, after the 70-year-old reportedly asked to see the contents of a bag being carried by Simmon's brother. An argument reportedly ensured and according to witness accounts, Simmons allegedly punched Suozzi, breaking bones in her face.
In April, Simmons was arraigned on one count of assault in the second degree and one count of assault in the second degree on a person age 65 or older, making her the first person in Western New York charged under the relatively new statute.
In his written motion, Key argues the statute is unconstitutional because:
- There is no legitimate state interest in affording a higher level of protection to a class of citizen based solely on age;
- The law requires the defendant have knowledge of the victim's age, and a defendant would have know way of knowing a victim's age at the time of the assault;
- The statute is unfair and unreasonable because it elevates "an otherwise garden variety assault" from a Class A misdemeanor to a Class D felony;
- The law is "arbitrary and capricious" in affording a person age 65 and older protection not afforded a person age 64 or younger.
According to Cianfrini's written response, prior case law establishes that legislative acts are presumed to have a legitimate state interest unless clearly shown otherwise, which, she argues, Key did not do.
She wrote that the legislative intent is clearly spelled out in the bill's supporting documents and that the state lawmakers had concerns about protecting the elderly "who are particularly susceptible to crimes as a result of their age."
"Specifically," she wrote, "the legislative history reveals that the statute was enacted because 'seniors are generally more vulnerable to injury and less able to protect themselves from younger persons.' "
Cianfrini also countered Key's point on the defendant's intent and need to know the victim's age, saying the law clearly spells out that the victim only meet the age requirement, not that the defendant know the age of the victim.
Legislative history in fact says legislators expected that "there is no requirement that the prosecutor prove the defendant knew or had reason to know the victim's age."
Simmons is scheduled to reappear in court at 3:15 p.m., June 27, for a hearing on Key's motions, which also include standard pre-trial motions related to the sufficiency of the grand jury indictment and evidence.
