Use of gun helps land 20-year prison term for Park Avenue burglar

Use a gun, go to prison.

Judge Robert C. Noonan applied that principle to 23-year-old Akeem Simmons today, handing down a 20-year prison term to the thrice convicted burglar.

"I can't think of any reason why you would bring a gun into a home invasion burglary other than kill somebody if you were caught," Noonan said. "I just can't think of any other reason."

Simmons was convicted Aug. 15 following a jury trial of first-degree burglary, criminal use of a firearm 1st, and conspiracy, 4th.

Noonan dismissed the firearm charge today because the burglary, 1st, conviction covers the use of a weapon in the crime, but Noonan still made it clear it was an important element of the crime.

Simmons and 18-year-old Nathaniel Davis were arrested Jan. 14 shortly after Batavia PD received a report of a burglary in progress at 28 Park Ave.

Davis was found with the handgun, but testimony at trial, Noonan noted, established that it was Simmons who brought the gun to the burglary and influenced Davis into joining him in break-in.

"It's very clear to me you were the moving force of a home-invasion burglary," Noonan said.

Simmons made no statement in court today.

As an adult, he has a prior burglary conviction in Monroe County, which counted as a predicate violent felony for the purpose of today's sentencing. He also has a prior burglary conviction that was given youthful offender status.

Before Noonan pronounced sentence, defense attorney Thomas Burns made a motion for a delay in sentencing because he suspects an undisclosed deal between the District Attorney and Davis for the testimony Davis provided at trial.

"I think it would be completely unfair to my client that any kind of wink-wink agreement between the prosecution and his attorney would be done in such a fashion," Burns said.

Noonan asked if he had any evidence of an agreement and Burns said the point of holding a hearing on his motion prior to sentencing would be aimed at uncovering any evidence.

The fact that Davis entered a guilty plea after the trial to a lesser burglary charge, Burns said, and after Noonan's plea cut off date, certainly suggests a backroom deal.

"I don't know how this is meted out without having princple players describe under oath what took place," Burns said. "I don't think that's unreasonable."

Noonan said his plea cutoff dates are not anything in statute, but used exclusively to help the court manage its calendar, and given the fact that Davis "implicated himself 100 percent" during the Simmons trial, it warranted giving him another shot at a plea deal.

Without evidence of a rights violation, Noonan wouldn't delay sentencing today and said Burns is always free to make a motion later if he uncovers any evidence of an undisclosed, inappropriate deal for the testimony of Davis.