Drug dealer, thief and burglar get prison time while suspect mulls options

Judge Robert C. Noonan sentenced three men to prison Tuesday afternoon and gave an inmate in county jail one more time to consider a plea offer or prepare for trial.

Kirby S. Wall, 33, of Rochester, was convicted of criminal sale of a controlled substance. It was his second felony conviction; the first one was in 1995.

"He has been abusing substances and he desperately needs help," attorney David Morabito told the judge, adding that he disputes the People's contention that Wall told probation workers that he didn't have a drug problem.

"He accepts responsibility," Morabito said.

Wall was arrested in April 2009 for selling crack cocaine and illegal possession of marijuana. He had $1,000 worth of crack on him when arrested and had previously sold crack to two undercover agents, according to law enforcement.

But the judge didn't grant his attorney's request to send Wall to "shock camp," wherein those incarcerated also get substance-abuse treatment.

"Maybe this is a way of paying his debt to society and also get the help he desperately needs," Morabito said.

Instead, Noonan sentenced Wall to the maximum allowable, a determinate sentence of three-and-a-half years in the penitentiary, plus five years of post-release supervision. He has to pay $200 restitution. Noonan also issued two orders of protection, barring Wall from contacting two individuals for 11.5 years.

The next case heard was that of Thomas A. Culver Jr., 31, of 13 Wood St., Batavia, who pled guilty to grand larceny, 4th, his second felony offense. He was one of three people arrested for attempting to cash in checks from a closed account at a local bank.

"He desperately needs help," attorney Marabito said. "He wants to participate in a number of programs he's qualified for, so he can also get credit (toward his sentence)."

Morabito filed a motion to have Culver's guilty plea vacated because of the advice given by his previous attorney.

Noonan refused to vacate the plea, citing an insufficient basis on which to do so, and asked Culver if he had anything to say before sentencing.

Culver said the attorney he had, before Morabito took on the case, "pushed" him into taking a one-and-a-half to three-year plea deal, saying failure to do so would result in "excessive time." That attorney, he said, also told him he had to admit guilt in taking the plea and when he tried to discuss his case, the attorney would repeatedly hang up the phone on him.

Noonan listened and then promptly sentenced Culver to an indeterminate sentence of one-and-a-half to three years in state prision, and authorized him to be enrolled in a substance-abuse treatment program. He was ordered to pay a total of $1,897.35, "to be collected in DOCs (the Department of Corrections)," while in prison.

Also sentenced to prison Tuesday, was Malik I. Ayala, 18, of 44 Walnut St., Batavia, who was convicted of burglary, 3rd.

The conviction stemmed from his role in stealing an MP3 player on March 10 from a 15-year-old in the parking lot of MacArthur Park.

On July 2, he was re-arrested on a petit larceny charge, violating his probation.

Regarding the petit larceny charge, Ayala's attorney, Frederick Rarick, told Judge Noonan that Ayala had gone to Corfu "to line up lawns to mow." He was unsuccessful. Then some young women picked him up and they all went to a liquor store. The women went in first, and he went in afterward.

"My client had no involvement in an attempt to steal liquor," Rarick said, adding that Ayala "has major drug issues. To send him to prison would be wrong. This boy needs some help with drugs. He is a young man with many issues."

Regardless, since his burglary conviction, Ayala missed four or five appointments with the probation department, plus a 1 p.m. drug test yesterday. When he did show up for testing, he reportedly attempted to alter the results, prompting a second test in which he was positive for marijuana.

When given a chance to speak, Ayala told the judge in a rambling statement that he was thankful for the judge's patience and consideration, that he loved everybody, that he wanted to do better and had even tried to join the Army. He got emotional and asked the judge for another chance.

But Noonan was exasperated by Rarick's client.

"You've been a very big frustration for me," Noonan told Ayala, noting that he has tried to help him, his family has tried and so has his probation officer. "There is only one person in this room that can help you and that is you.

"You wouldn't last 10 minutes in the military. I have no alternative but to send you to prison. Your probation is revoked. I'm sentencing you to one-and-a-third to four years in state prison. It's not just the drugs. You can't obey rules. You don't show up for appointments. You don't do what you're told to do."

Ayala hung his head and cried. A half dozen family members and friends appeared very sad, and one woman sobbed. He asked if he could tell his family goodbye. No, like the others, he was taken into custody there and then.

Wearing orange jail garb, Brandon C. Dodd, 22, was also in court yesterday. He is charged with burglary, 2nd, for allegedly taking part in a home-invasion robbery March 18. He allegedly forced his way into a home on Vine Street wearing a bandanna over his face. The residents allegedly fought back.

Dodd has at least five arrests for various crimes.

As of Tuesday, he had not responded to the district attorney's offer of a guilty plea to a Class D violent felony as a first-time felony offender, which would permit the possibility of probation.

His attorney told Noonan he needs more time to prepare for trial, which is estimated to take four days. The judge set a new trial date for Nov. 8 and set a court time of 10:15 a.m., Sept. 2, as the last opportunity to accept the plea offer. If found guilty at trial, Dodd would face a mandatory prison term.

Dodd returned to jail.