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Donald Frisby (inset photo left), 64, was arrested by the Le Roy Police Department on July 16 and charged with one count of first-degree sexual abuse, a Class D felony.

It is alleged that in the month of July, while in the Village of Le Roy, that Frisby subjected a female to sexual contact by forcible compulsion. Frisby was arraigned before the court and released under supervision of Genesee Justice.

Jeremy D. Lyons (inset photo, below right), 34, of Perry Road, Le Roy, is charged with one count each of the misdemeanors of third-degree assault and criminal obstruction of breathing or blood circulation. A violent domestic/assault led to the arrest of Lyons, a parolee, in the Village of Le Roy on Aug. 6.

The domestic incident was reported in the early morning hours on Church Street in which the victim reported that Lyons was staying with the female on Church Street, allegedly in violation of his parole conditions. It is alleged that Lyons tackled the female to the ground then punched her multiple times in the face and choked her.

Afterward, Lyons ran off. Lyons was located later that day by police after a small search, in which Lyons was discovered hiding in the weeds in the area of the Little League Field between East Main Street and St. Marks Street. Following his arrest, Lyons was arraigned and put in Genesee County Jail in lieu of $750 bail. A parole violation warrant was also issued due to this incident.

Darrell D. Smith, 52, of Highland Parkway, Batavia, is charged with criminal mischief. He was arrested after a domestic incident at midnight on Aug. 8 on Prune Street, Batavia. He was arraigned in Batavia City Court and released on his own recognizance. He is due in city court at a later date. The case was handled by Batavia Police Officer Stephen Quider, assisted by Officer Christopher Lindsay.

Carlos E. Flores, 27, of Rand Street, Rochester, is charged with second-degree harassment. Flores was arrested after an incident at 8:35 p.m. Aug. 11 on Bank Street in Batavia. He allegedly threatened a person using gestures with his hands during a verbal dispute that caused the victim to be in fear. He was issued an appearance ticket and released and is due in Batavia City Court on Aug. 20. The case was handled by Batavia Police Officer Stephen Quider, assisted by Sgt. Dan Coffey.

Darius Lamar Jones, 27, of Exchange Street, Attica, is charged with: criminal possession of a controlled substance; unlawful possession of marijuana; speed violation -- exceeding 55 mph; and unlicensed operation of a motor vehicle. At 9:02 p.m. on Aug. 7 on Route 33 in Byron, Jones was arrested after a traffic stop. It is alleged that "criminal indicators were observed," leading to a search of Jones and his vehicle. The search allegedly yielded marijuana, controlled substances and drug paraphernalia. He was issued appearance tickets for Sept. 9 in Byron Town Court. The case was handled by Genesee County Sheriff's Deputy Andrew Mullen, assisted by Deputy James Stack.

Linda Marie Clemens, 58, of South Main Street, Batavia, is charged with aggravated driving while intoxicated and DWI. At 11:23 p.m. on Aug. 7, deputies responded to the parking lot of Batavia Downs on Park Road for a reported motor-vehicle accident. When they arrived they located Clemens in her vehicle. It is alleged that Clemens struck a parked vehicle in the parking lot. She was released on appearance tickets for Aug. 26 in Batavia Town Court. The case was handled by Genesee County Sheriff's Deputy Brock Cummins, assisted by Deputy Ryan Young.

(name redacted upon request), of Farwell Drive, Batavia, is charged with unreasonable noise. He was arrested following a loud music complaint at 11 a.m. on Aug. 9 on Farwell Drive. He was released on an appearance ticket for Aug. 20 in Batavia City Court. The case was handled by Batavia Police Officer Adam Tucker, assisted by Officer Jason Ivison.

Carrie A. Stewart, 39, of Church Road, Darien, is charged with petit larceny. She was arrested after an investigation of a larceny that occurred at 11:47 a.m. on Aug. 10 on East Main Street in Batavia. She was issued an appearance ticket and is due in Batavia City Court on Aug. 20.

Christine Wark, 34, of School Street, Le Roy was arrested by the Le Roy Police Department on July 22 and charged with one count of petit larceny after a complaint from a local business that Wark was allegedly seen shoplifting inside the store. Upon arrival of the Le Roy Police, Wark was arrested and released on an appearance ticket to appear in the Le Roy Court at a later date.

Cody N. Proefrock, 26, of Liberty Street, Batavia, is charged with petit larceny. He was arrested after allegedly shoplifting from a local store at 5:20 p.m. on Aug. 6. He turned himself in. He was issued appearance tickets and released and is due in Batavia City Court on Aug. 20. The case handled by Batavia Police Officer Marc Lawrence.

Tony J. Aguglia, 39, of Main Street, Clarence, is charged with failure to appear. He responded to Batavia Police station at 1 p.m. on Aug. 6 and turned himself in on an arrest warrant. He is due in Batavia City Court on Aug. 13. The case was handled by Batavia Police Officer Felicia DeGroot.

A semi-truck hauling garbage and a passenger vehicle with a driver and 18-month-old child were involved in an accident on Route 33 near Ivison Road in Stafford at about 9:30 a.m.

The driver of the passenger vehicle was taken into custody on a warrant.

The 18-month-old was reportedly uninjured and transported to UMMC for evaluation. The child was reportedly properly strapped into a child safety seat.

We've been unable to obtain information about the accident from the Sheriff's Office.

(Initial report)

Ajie Jqunn Javontez Smith-Ezell, 24, of Cummings Street, Rochester, is charged with: criminal possession of a narcotic drug with intent to sell; tampering with physical evidence; obstructing governmental administration in the second degree; resisting arrest; escape in the third degree; driving while ability impaired by drugs; unlawful possession of marijuana; and failure to keep right. Additional charges are pending. The county DA's Office was contacted due to felony-level charges. At 9:17 a.m. on Aug. 1, a traffic stop was conducted on Route 33 in the Town of Bergen. While conducting a roadside interview with operator/owner Smith-Ezell, the odor of burnt marijuana was allegedly detected. He was escorted to the rear of a marked Sheriff's patrol car, where he was interviewed by Investigator Christopher Parker. A vehicle search allegedly yielded packaging indicative of narcotics distribution as well as about an ounce of marijuana. Smith-Ezell was interviewed some more and while attempting to remove "an anomaly" from the driver's pant leg, he is accused of resisting arrest and obstructing deputies from accessing and taking possession of the item. A brief foot chase ensued and Smith-Ezell was taken into custody after allegedly physically resisting arrest. He was arraigned in Bergen Town Court and jailed in lieu of $5,000 cash or $10,000 bond. The case was handled by Genesee County Sheriff's Deputy Ryan DeLong, assisted by Investigator Parker and several others, including Deputy Richard Schildwaster, Sgt. James Diehl, Deputy Rachel Diehl, Deputy Kevin McCarthy, Investigator Ronald Welker, Trooper Valetta, Trooper M. Schmidt and his K9 partner.

Brandon Eugene Matteson, 25, of Ellicott Street Road, Pavilion, is charged with disobeying a mandate of the court and second-degree harassment. He was arrested after the investigation of a domestic incident that occurred 9:39 p.m. on July 25 in Pavilion. He was issued appearance tickets and is due in Town of Pavilion Court on Oct. 1. The case was handled by Genesee County Sheriff's Deputy Joshua Brabon.

Sarah Ann Fiegl, 26, of Moore Road, Ransomville, is charged with: driving while intoxicated; DWI -- with a BAC of .08 percent or more; having a front headlight out; and driving left of pavement markings. At 11:24 p.m. on Aug. 4 on Main Road in Pembroke, Fiegl was arrested following a traffic stop. She was issued an appearance ticket for Aug. 22 in Pembroke Town Court. The case was handled by Genesee County Sheriff's Deputy Mathew Clor, assisted by Deputy David Moore.

John Bennett, executive director of GCASA, has gone in a short time from the shock and disappointment he felt when people in the City of Batavia reacted with anger to a proposed social center at the former St. Nick's on Swan Street, to gratitude for the acceptance the same proposal for another property in the Town of Batavia.

Tuesday night there was a public hearing on a request for a special use permit to convert the former Bohn's Restaurant location on Clinton Street Road into a recreation center for people in recovery. There was no opposition and several people spoke in support of it. The Town of Batavia Planning Board subsequently passed all the necessary resolutions unanimously to give the project a green light.

"I'll say when I came to the town to meet with the town board originally, that I got a little choked up," Bennett said. "I got a little emotional because my reception was so different than what happened on the Southside in the city.

"(Town officials) were welcoming and they really had seemed to have an understanding of addiction and they said that this is needed in the community. I just feel blessed, actually, to be connected with this project and the town and they've welcomed us with open arms and they see the benefit of it."

The center will be the first of its kind in Batavia, a place where people who don't want to be an environment where beer, wine and liquor are part of the fabric of the party, and some people might show up with drugs. That's because the context of such an atmosphere makes it harder to resist the temptation to partake. Instead, they'll have a place to go to relax, socialize, make friends, and have a good time.

Several speakers at the public said the new center will make it easier for people in recovery to stay in recovery.

"The recovery center itself is it really a meet and greet," said Kathy Miller. "After you go in and you get treatment, you start living your life and you start getting normal, doing normal everyday things like get a job, buy a house, buy a car, have a baby -- living your life.

"You're not meeting anyone in recovery because now you're doing things and there's no place to go unless you can go into a recovery center. Then, when you're meeting other people, you don't have to say, 'hey, I'm in recovery,' because you already are there meeting people in recovery."

If you don't change the people you hang out with, Miller said, it's harder to stay in recovery.

"You need to change the people, places, and things around you," Miller said. "And sometimes that means your old friends, sometimes that's the people that are still doing the same old things they used to do. You have to find a new place. You have to find a way to live in it."

Jason Adams said a social and recreation center for people in recovery will be a game-changer for people locally. It will give them a place to engage in a variety of activities, watch sports on TV, or just hang out and talk, all without thinking about easy access to booze.

"The sky's the limit of what the program is available to do," Adams said.

The closest thing to an objection to the proposed recreation center on Clinton Street Road came from a nearby neighbor who said she supports the concept -- she understands the struggle of people in recovery because she's a cigarette smoker herself -- but was concerned that people using the center might loiter in the area or along the street, which could diminish her privacy.

A board member asked if a privacy fence would help. She said it would.

As soon as the public hearing was completed, the woman left.

During the board discussion of the project, Code Enforcement Officer Dan Lang looked up her property on a parcel map and said it was really too far from the actual Bohn's property to warrant a privacy fence.  

There is a parcel in between the Bohn's Restaurant property and the woman's property, and that property, Bennett revealed is subject of a negotiation with the town -- GCASA may swap that property with the town to settle some tax issues.

The board agreed to approve the project without the privacy fence, but left the door open to revisit the issue should circumstances make it more apparent a fence is needed.

Bennett said he totally understands the concern about people loitering and smoking cigarettes outside. He's aware of complaints about similar activity outside the GCASA property along East Main Street.

The state agency that oversees drug rehabilitation facilities has always frowned on designated smoking areas on the property of such programs or facilities but that policy is changing. GCASA has been given the approval to have a designated smoking area on the Bohn's property. He said he's working on getting approval for smoking areas on all of GCASA's properties.

"I think smoking in general in front of restaurants and other buildings the community is an eyesore and we working to remedy that," Bennett said.

Bennett said the community opposition to GCASA opening a recovery center on Swan Street caught him by surprise but admitted it may have been his own fault. He wasn't prepared for the opposition and therefore did a poor job of setting the stage and explaining the project.

At a 400 Towers community meeting where residents expressed a great deal of anger about the proposal, he could barely say anything to try and explain the project, there were so many other voices dominating the conversation.

"I guess I didn't get out ahead of this in terms of really getting out and educating people because it was such a quick grant that we got," Bennett said. "And I really guess I didn't think people would have an issue with a recovery center because people in recovery really are just like you and I.

"If you stood in a room full of  -- I bet you couldn't tell tonight who was in recovery and who wasn't, right? And the methadone clinic kind of went off without a hitch, so I just kind of thought the recovery center would, too.

"I didn't really see people being upset and angry about this. I missed that and then I should have done a couple more things to educate the public, especially down on the Southside."

Photo: Sue Gagne and John Bennett.

The stenographer whose Grand Jury work has been called into question in a few criminal cases in Genesee County testified in open court today in a hearing on motions brought by the attorney for Antwan Odom.

Odom is charged with attempted assault, 1st, and criminal possession of a weapon in a case stemming from an altercation with a high school teammate a year ago yesterday.

Susan Ryckman, who is contracted with the county for Grand Jury transcription through Forbes Court Reporting Service, testified today about the equipment used to make transcriptions of proceedings and how that was tied into an automatic audio recording feature on her transcription device.

In 22 years of transcribing grand jury proceedings neither her employer nor any staff member with the District Attorney's Office ever informed her it was against state law to make an audio recording of a grand jury proceeding, Ryckman testified.

While Ryckman said she started handling grand jury work for the county in 1997, she wasn't asked nor did she say in what year she started using a transcription machine that enabled audio recordings of proceedings.

While motions have been made in other criminal cases, and there has been at least one prior hearing on the topic, and in each case, Judge Charles Zambito denied defense motions related to the audio recordings. Odom's attorney, Frank Housh of Buffalo, elected to require another hearing on the issue.

Housh is seeking disclosure of the grand jury minutes -- typically kept confidential and not disclosed to the defense attorney until the start of a trial -- to see if the audio recording resulted in anything prejudicial against his client. An example might be the stenographer asking somebody to speak up so the audio recorder would pick up the sound of the reporter not asking an inaudible word to be repeated.

If Housh could prove to Zambito that the grand jury proceedings were improperly influenced by the audio recording, then Housh would have a basis for dismissal of the charges against his client.

Zambito indicated he is skeptical that the actual substance of the grand jury testimony was changed because of the audio recording.

On another front, Housh is asking the case against Odom be dismissed because of "prosecutorial misconduct," which he said stemmed from the failure of the DA's office to ensure Ryckman knew she couldn't audio record grand jury proceedings.

District Attorney Lawrence Friedman called the accusation "ridiculous."

As for the audio recording material affecting the case, Housh noted that based on Zambito's prior ruling, the burden of proof falls on the defense, which he said he found unusual but that he was in a no-win situation if he couldn't review the transcript to prove there was an issue material to the case.

Zambito said he first had to be convinced that it would be possible there would be something in the transcript revealing the audio recording impacted the integrity of the grand jury proceeding.

Ryckman testified that with her present transcription setup she can record audio in one of two ways -- directly into her transcription machine or onto her laptop computer when it is connected to the machine. She said she doesn't always use her laptop during grand jury proceedings.

The recording is only activated when she touches a key on her transcription machine keypad. When she's not typing, if she pauses for any reason, there is no recording.

The quality of the audio is not good, she said, and doesn't necessarily pick up everything that is said. It can be affected by the position of the speaker, other room noise, or even a piece of paper left sitting on the internal mic of the laptop.

She said she doesn't rely on the audio recording for making the official transcript. She has used it to spot check her notes if she thinks something is unclear but she never listens to the audio recording from beginning to end. Her software allows her to highlight a questionable word or phrase and it will open that section of audio recording for her to check if the recording can help her clarify what was said.

The audio recordings only came up as an issue because Assistant District Attorney Shirley Gorman called Ryckman about a case citation contained in a completed transcript. Ryckman said she checked her notes and her transcript and then mentioned to Gorman that she also checked her audio recording. That was a red flag for Gorman.

And that was the first time Ryckman -- who is also a court reporter in a variety of other kinds of court cases, not just grand juries, throughout Western New York -- learned that she couldn't audio record grand jury proceedings.

Ryckman said she did not retain the recording from the Odom proceeding. She had deleted the recording by the time of Gorman's call per her standard procedure. She said once a transcript is done, she backs up the transcript and her notes to an external hard drive. The software she uses asks her if she would like to save the audio recording as well and she always checks "no" in the box. She then deletes the original files from her laptop.

She said she doesn't save the audio recordings because they are no longer needed once the official transcript is done and they take up too much storage space.

She did have audio recordings for Nov. 7 and Jan. 15 (Odom's hearing was in early December) when Gorman called. She had the Jan. 15 recordings because she hadn't finished the official transcript yet for that proceeding. She had no explanation for why she still had Nov. 7 recordings on her computer at the time of Gorman's call.

"I don't know how I missed the backup for Nov. 7," Ryckman told Housh during cross-examination. "I don't know why for some reason it was still on my computer."

Under questioning from Zambito, Ryckman said there is nothing in the final transcript that would indicate an audio recording had been made during the proceedings.

Earlier she testified that she didn't always use the audio recording feature and that she couldn't remember if she used it specifically during the Odom proceeding, and if she did, if she referred to it at all while preparing the final transcript. And if she did make a recording, she couldn't recall specifically deleting it, but if she did make it she deleted it according to standard procedure.

Zambito said he will make a decision on Housh's motions within a couple of weeks.

Friedman noted that Housh has said he is going to file a motion to make raise the character and background of Ray Leach at trial and that no such motion has been filed. In the interest of judicial expediency, Friedman asked that a deadline be set for the motion.

Housh countered that if judicial expediency was at issue, he should be given access to the grand jury transcript prior to the trial. He argued that if standard procedure is followed and he doesn't receive a copy until the first witness takes the stand, then the trial will need to take a recess while he reads the transcript and reviews it with his client.

Zambito ordered Friedman to turn the transcript over to Housh 30 days before the Sept. 30 trial date.

So, one way or another, Housh will soon get the transcript -- either 30 days before the trial, or sooner, if Zambito rules to his favor on his motion regarding the stenographer issue.

Nathan Lyle Rogers, 35, (inset photo, right) of Sky Hi Drive, West Seneca, is charged with second-degree unlawful surveillance and endangering the welfare of a child. At 5:15 p.m. on July 31, Rogers was arrested after he allegedly used two of his cell phones to record a juvenile female changing clothes in his camper while attending the Kingdom Bound Festival at Six Flags Darien Lake, Darien Center. He was issued an appearance ticket and is due in Darien Town Court at 4 p.m. on Aug. 13. The case was investigated by Genesee County Sheriff's Deputy Mathew Clor, assisted by Investigator Christopher Parker.

Jason H. Freeman, 37, of Hutchins Street, Batavia, is charged with second-degree harassment -- physical contact, and criminal obstruction of breathing -- application of pressure. Freeman was arrested on Hutchins Street at 9 a.m. on July 31 following a complaint that he choked, then threw a bicycle at one of his tenants. He was issued an appearance ticket for Aug. 6 in Batavia City Court. The case was handled by Batavia Police Officer Stephen Cronmiller, assisted by Officer Stephen Quider.

Candice Sue Tortorice, 35, of Route 20, Darien, is charged with: aggravated driving while intoxicated -- a BAC of .18 percent or higher; DWI; reckless driving; failure to use designated lane; and driving with an obstructed view. On Aug. 3 at 4:25 p.m., following a traffic complaint on Route 20 in Pavilion, Torortice was arrested. She was issued appearance tickets and is due in Pavilion Town Court on Sept. 10. The case was handled by Genesee County Sheriff's Deputy Joshua Brabon.

Emily D. Schramm, 33, of Main Road, Stafford, is charged with aggravated family offense -- more than one offense within five years (five counts). On July 17, the GC Emergency Dispatch Center received a report at 10:29 p.m. from a third party of a possible violation of an order of protection. Following an investigation, Schramm was identified and is alleged to have committed second-degree criminal contempt by knowingly violating an order of protection by accepting phone calls from a protected party. Due to her previous conviction for second-degree criminal contempt, the charge was elevated to a Class E felony. She was issued an appearance ticket for Town of Stafford Court and is due there Aug. 6. The case was investigated by Genesee County Sheriff's Deputy Ryan DeLong, assisted by correctional officers at the GC Jail, including Senior Correctional Officer J.A. Smart.

Tonya M. Weber-Jackson, 35, of Highland Park, Batavia, is charged with second-degree obstruction of governmental administration. She was arrested at 1:54 Aug. 4 following an investigation into an unrelated matter outside a Batavia dance studio. She was issued an appearance ticket for Aug. 20 in Batavia City Court. The case was handled by Batavia Police Officer Peter Flanagan, assisted by Officer Stephen Quider.

Tonya M. Weber-Jackson, 35, of Highland Park, Batavia, is charged with criminal possession of a controlled substance in the seventh degree and criminal use of drug paraphernalia in the second degree. She was arrested at 1:54 a.m. on Aug. 4 following an investigation into an unrelated matter. She was issued an appearance ticket for Aug. 20 in Batavia City Court. The case was handled by Batavia Police Officer Peter Flanagan, assisted by Officer Stephen Quider.

Robert Lewis Villano, 37, of Oak Street, Oakfield, is charged with endangering the welfare of a child. At 9:17 a.m. on June 17, the GC Emergency Dispatch Center received a report of a suspected overose on Oak Street. Medics on scene requested law enforcement to the scene following their arrival. It is alleged that Villano endangered the welfare of a child due to narcotics in plain view, which was likely to be injurious to the mental, moral and physical welfare of a child in the residence. He was issued an appearance ticket for Oakfield Town Court and is due there Sept. 2. The case was handled by Genesee County Sheriff's Deputy Ryan DeLong.

Kevin J. Weber, 48, of Columbia Avenue, Batavia, is charged with second-degree criminal contempt. He was arrested at 6:48 p.m. on July 28 on Columbia Avenue after allegedly violating a stay away order of protection by contacting the protected party. He was issued an appearance ticket and is due in Batavia City Court on Aug. 6. The case was handled by Batavia Police Officer Stephen Quider, assisted by Officer Peter Post.

Jesse D. Bowman, 26, of Vine Street, Batavia, is charged with criminal use of drug paraphernalia. Following a traffic stop on Ellicott Street at 5:05 p.m. on Aug. 3, Bowman was allegedly found to possess a crack pipe. He was issued an appearance ticket for Aug. 6 in Batavia City Court. The case was handled by Batavia Police Officer Peter Post, assisted by Officer Christopher Lindsay.

Tony M. Peebles, 52, of Riley Street, Buffalo, is charged with driving while intoxicated -- common law, and aggravated DWI -- a BAC of .18 percent or higher. Peebles was arrested on School Street in Batavia at 12:30 a.m. on July 26. Batavia police were investigating a 9-1-1 hang-up call in the area when Peebles was located and allegedly found to be operating his vehicle while intoxicated. He was processed at the jail and is due in Batavia City Court on Aug. 7. The case was handled by Batavia Police Officer Cowen Mitchell.

Jonathan Patrick Little, 29, of Drake Street, Oakfield, is charged with second-degree forgery and second-degree criminal impersonation. He was arrested on Aug. 3 for allegedly impersonating another person and completing a written instrument by forging another person's name while being processed at the Genesee County Jail at 4:20 p.m. on July 10. He is due in Batavia City Court on Aug. 20. The case was handled by Genesee County Sheriff's Deputy James Stack.

Patricia A. Herzog, 52, of East Main Street, Batavia, is charged with petit larceny. She was arrested at 1 p.m. on Aug. 1 after allegedly stealing property from a grocery store in Batavia. She was issued an appearance ticket and is due in Batavia City Court on Aug. 6. The case was handled by Batavia Police Officer Christopher Lindsay.

(File photo.)

Led by the Joint Veterans Council of Genesee County, local veterans will host a rededication ceremony Saturday morning marking the centennial of the city's gateway monument at the junction of routes 5 and 63 that pays tribute to the Union Army's Emory Upton, the military service of men and women of Genesee County, and its war dead.

It starts at 10:30 a.m. and everyone is welcome.

Commonly referred to as the Upton Monument, for the statue of the colonel of the Fourth Regiment of Artillery, Army Brevit Major General Upton, it is officially known as The Soldiers and Sailors Monument. The actual marker at the base of the bald-eagle-topped pillar is engraved: In Memory of The Soldiers, Sailors and Marines of Genesee County.

Doug Doktor, chairman of the Joint Veterans Council, said that James Neider, of the Glenn S. Loomis American Legion Post 332 in Batavia, will provide a brief historical overview of Upton, one of the nation's foremost military strategists of the 19th century. Then Elijah Monroe, of the Sons of Union Veterans of the Civil War, Abraham Lincoln Camp 6 in Rochester, will speak on that organization's instrumental role in fundraising and getting the monument constructed.

There will also be a rifle salute.

The dedication held a hundred years ago took place on Wednesday, Aug. 6, 1919.

According to City of Batavia Historian Larry Barnes, there was a morning footrace from Le Roy to Batavia, followed by the dedication ceremony at which a relation of the Upton family, Col. Upton, served as the keynote speaker. The special occasion was capped off by a grand display of fireworks at the old Genesee County Fairgrounds, where Tops Friendly Market is now on West Main Street.

Proposals for the monument were bandied about as early as the 1870s. But getting it funded and built was not a given. Its price tag of about $15,000 was considered steep. Funds were sought from the county, the city and fundraising campaigns were launched by Batavia City School District Superintendent John Kennedy and Sarah Upton Edwards, sister of Emory Upton.

In 1907, city voters nixed spending $5,000 as their share of the monument's cost. It was not until World War I that action was taken that would finally pave the way for the planned monument to become reality.

In 1917, city fathers managed to get the city's funding share approved by a bit of political maneuvering -- slipping language for the monument expense into a sewer and water appropriations bill.

The architect chosen to design the monument was C. A. Worden, a local company responsible for many monuments at Gettysburg.

Once built, there was controversy as to whether the statue of Emory Upton was based on the actual likeness of the man himself. And the question, some local historians say, has never been wholly resolved.

To read more about Emory Upton from an 1885 biography, click here.

Also, previously: 

• New book corrects the record on Emory Upton's attitude toward the military and the republic
• History Department receives collection of Emory Upton documents
• Emory Upton: No. 5 in What Made Genesee County Famous

(Editor's Note: Publisher Howard Owens had planned to complete a video of the history of the monument in time for tomorrow's rededication. That is no longer possible, but he does hope to finish it very soon.)

       Brandon Fogg

A 32-year-old Batavia man went into County Court today facing a certain prison sentence for menacing a police officer with a BB gun but left with a second chance.

The attorney for Brandon Fogg told Judge Charles Zambito that his client had secured a bed-to-bed substance abuse treatment program and asked that he be allowed to enter the program Friday morning for 21 days of treatment. 

Expressing a bit of reluctance, the judge agreed to let Fogg enter treatment, with his mother providing transportation from the Genesee County Jail to the Bradford Regional Medical Center for treatment.

"I'll give you an opportunity to convince me that I shouldn't send you to prison," Zambito said. "That doesn't mean you won't do further jail time and time on probation."

Absent a chance at treatment, Fogg could have reasonably expected to be sent to prison today for one and a half to four years.

"One of the conditions is that you stay in bed-to-bed treatment and follow any recommendations of the program," Zambito said. "If you violate any of the terms of the program you will be brought back here and sentenced and you will be going to prison."

Batavia police officers encountered Fogg on Cedar Street in early June after he trespassed at a location on Ellicott Street. Due to an illegal tire on Fogg’s vehicle as he drove away from the location, officers initiated a traffic stop.

According to police, Fogg attempted to flee the vehicle, but he was taken to the ground by Officer Darryle Streeter. Fogg then removed from his pocket what appeared to be a handgun during the struggle between himself and Streeter.  

An employee of a nearby business came to the aid of Streeter by stepping on Fogg’s wrist, which caused him to drop the BB gun from his grasp. Streeter took Fogg into custody shortly afterward.

Fogg's next scheduled court appearance is Aug. 26 when Zambito will decide whether a prison term is still appropriate or if he should receive less time in the local jail.

       TeeSean Ayala

A former high school basketball star who got caught with a gun outside the county manager's home on Washington Avenue in November is being released from jail before being sent to prison so he can be at the hospital later this month for the birth of his child.

Judge Charles Zambito granted the unusual request because he promised TeeSean Ayala, 19, the opportunity to be around for the birth of his baby if he cooperated with prosecutors. Today Zambito acknowledge that Ayala kept his promise.

"I'm doing all of this because you did cooperate," Zambito said. "That's part of the bargain."

In May, Ayala entered a guilty plea to a charge of criminal possession 2nd, which carries a mandatory prison sentence with a maximum possible term of 15 years.

The plea also satisfied several charges related to local burglaries.

"If you flee, you will eventually be caught and then you're going to be sentenced to the 15 years," Zambito told Ayala. "If you commit any crimes while you're out, you will be sentenced to 15 years and face enhanced sentencing on those charges."

Ayala said he understood.

When the case was first called a little after 1:30 p.m., there was some discussion between Zambito and the attorneys about whether to adjourn the sentencing of Ayala. Ayala's attorney Richard Shaw started whispering to Ayala and at one point, Ayala became visibly emotional and said loudly, "but it's my first one."  

Shaw continued whispering to Ayala and Zambito asked if he and his client needed to discuss the matter privately. They did so Zambito ordered the case recalled later in the afternoon.

When Ayala came back into court, Zambito said he had been reminded of the promise to allow Ayala to be present for the birth of his child if he kept up his end of the bargain.

Zambito said Ayala isn't to leave his residence for any reason other than going to court or to go to the hospital for the delivery of his child when his fiancée goes into labor.

Ayala is allowed to have visitors but cannot be in contact with Malik Ayala, his brother who is a co-defendant.

Sentencing on the weapon charge is scheduled for 9:30 a.m., Aug. 21.

Paul Ralph Avino, 46, of Ellicott Street, Batavia, is charged with: disorderly conduct; obstruction; resisting arrest; criminal impersonation of police officer in the first degree; and obstruction of governmental administration. Following a complaint at Six Flags Darien Lake at 7:31 p.m. on July 31, Avino was arrested. He was allegedly swearing in a public place; and he allegedly resisted arrest and obstructed governmental administration. He is accused of possessing a police badge and he is not a police officer. Avino was released on an appearance ticket and he is due in Darien Town Court on Sept. 3 to answer the charges. The case was handled by Genesee County Sheriff's Deputy Kyle Krzemien.

Morgan Ashlee Brown, 25, of Wyoming Road, Wyoming, is charged with third-degree assault. At 9:39 p.m. on July 31, Brown was arrested following the investigation of a domestic incident that occurred on July 25 on Ellicott Street Road in Pavilion. Brown was issued an appearance ticket and is due in Pavilion Town Court on Aug. 6. The case was handled by Genesee County Sheriff's Deputy Joshua Brabon.

Brittany M. Smith, 27, of Pringle Avenue, Batavia, is charged with second-degree harassment -- making physical threats. She was arrested at 9:26 a.m. on July 29 after allegedly threatening to assault Department of Social Services case workers during a child house visit. She was released on an appearance ticket for Batavia City Court Aug. 6. The case was handled by Batavia Police Officer Jason Ivison, assisted by Officer Miah Stevens.

Penny B. Hargrave, 52, of Morrow Road, Pavilion, is charged with: driving while intoxicated; failure to keep right; moving from lane unsafely; leaving the scene of a motor-vehicle accident; and refusal to take a breath test. At 11:11 p.m. on July 30 on Ellicott Street Road, Pavilion, Hargrave was arrested, arraigned in Pavilion Town Court and directed to return to court on Aug. 6. The case was handled by Genesee County Sheriff's Deputy Jenna Ferrando, assisted by Deputy James Stack.

Duane K. Miller, 54, of Linwood Avenue, Warsaw, is charged with obstruction of governmental administration and illegal use of toxic vapors. Miller was arrested at 3:25 p.m. July 29 on West Main Street in Batavia. He was allegedly located huffing from an aersol can and refused commands to stop the behavior while being taken into custody. He was arraigned in Batavia City Court and jailed in lieu of unspecified bail. He was due to return to court today (Aug. 1). The case was handled by Batavia Police Officer Christopher Lindsay.

Kyle L. Humphres, 33, of Rockefeller Road, Phelps, is charged with second-degree criminal contempt. On July 31 he responded to Batavia Police Department and turned himself in on a warrant stemming from an unspecified incident on Willow Street in Batavia on Feb. 22. He was arraigned in Batavia City Court and released under supervision of Genesee Justice. He is due back in city court on Aug. 22. The case was handled by Batavia Police Officer Felicia DeGroot.

Christian Saez, 30, of Copeland Street, Rochester, is charged with petit larceny. He was arrested at 11:46 a.m. on July 12 after allegedly attempting to steal seafood from a grocery store. He was issued an appearance ticket for July 30 in Batavia City Court. The case was handled by Batavia Police Officer Peter Post.

Hector M. Arroyo, 44, of Mustang Circle, Geneseo, is charged with petit larceny. At 6:36 p.m. on July 29, Arroyo was arrested on East Main Street in Batavia after allegedly shoplifting from a local business. He was jailed in lieu of $1,000 cash or $2,500 bond. He was due to return to Batavia City Court on July 30. The case was handled by Batavia Police Officer Peter Post, assisted by Officer Felicia DeGroot.

Jenna Marie Lange, 36, of Mustang Circle, Geneseo, is charged with attempted petit larceny. Lange was arrested after a shoplifting incident at a store on East Main Street Road in Batavia at 6:36 p.m. on July 29. She was issued an appearance ticket and was due in Batavia City Court on July 30. The case was handled by Batavia Police Officer Peter Post, assisted by Officer Felicia DeGroot.

Shawntoy L. Pryor, 33, of Stockbridge Avenue, Buffalo, is charged with trespass. The defendant was arrested after allegedly trespassing on private property at 11:50 a.m. on July 12 on East Main Street in Batavia. He responded to Batavia Police Department headquarters and was issued an appearance ticket for Aug. 20 in Batavia City Court. The case was handled by Batavia Police Officer Marc Lawrence.

Defense and prosecution attorneys delivered closing statements in a last attempt to persuade jurors to adopt their interpretations of the evidence from the July 24, 2018, murder of Raymond L. Morgan in his 111 Liberty St., Batavia, home.

After five days of the trial and three hours of deliberations, Richard D. Hanes was convicted of murder in the second degree this afternoon. The jury returned a unanimous guilty verdict to a suspense-filled courtroom packed with family members, legal counsel and law enforcement personnel.

Lindsay A. Clemm, 37, of Batavia, was arrested on July 28 following a traffic stop on Route 19 in the Town of Warsaw. Clemm was stopped for allegedly going 56 mph in a 30-mph zone on South Main Street near Jefferson Street in the Village of Warsaw. Multiple other traffic infractions were allegedly observed in the Town of Warsaw while Wyoming County Sheriff's deputes attempted to get Clemm's vehicle to pull over. Clemm allegedly failed field sobriety tests. Clemm's vehicle was towed from the scene and she was taken to the Sheriff's Office where she was evaluated by a drug recognition expert. She was charged with driving while ability impaired by drugs and was processed and released to a third party. She is due in Town of Warsaw Court Aug. 12. The case was handled by Wyoming County Sheriff's Sgt. Colin Reagan.

James K. Penders, 47, of Pavilion, was arrested July 27 following a traffic stop for a loud muffler on Route 19 in the Town of Covington. He was allegedly found to have a revoked license dated June 22, 1996 and an expired license dated March 16, 1995. He was released with appearance tickets for Covington Town Court on Aug. 12. The case was handled by Wyoming County Sheriff's Deputy Adam Hope.

Richard D. Hanes was found guilty by a jury this afternoon of second-degree murder for the killing July 24, 2018, of Ray Morgan at 111 Liberty St., Batavia.

Murder in the second degree is a Class A-1 felony and carries a possible term of life in prison.

Hanes will be sentenced at 9:30 a.m., Aug. 28.

MORE T/K

A key issue in the July 2018 murder of Raymond L. Morgan — and a crucial piece of evidence that could connect the perpetrator to the 111 Liberty St., Batavia, crime scene — is the description of the man who jumped out Morgan’s window after the bludgeoning attack. 

This pivotal detail caused defense attorney Frederick Rarick to motion for a trial dismissal for his client, Richard D. Hanes, three times yesterday. Rarick argued that without DNA evidence, finger or palm prints or identification of Hanes at the scene, the case is “all speculative as to who that subject is.”

District Attorney Lawrence Friedman responded that eyewitness accounts of Hanes are not needed to overcome the prosecution’s burden of proof. Judge Charles Zambito denied all three of Rarick's motions because “the People have established each and every element of the offense,” so the jury should be able to reach a verdict on Hanes's second-degree murder charge. 

Detective Sgt. Kevin Czora, the last witness called by the prosecution, questioned inconsistencies about the gray sweatpants and green shirt — similar to those of the unidentified suspect — found in Hanes’s bedroom closet at his former 5 Thorpe St., Batavia, house. 

The clothing items recovered from Hanes’s closet did not match either the descriptions given by witnesses or the clothing items shown in surveillance video footage from Southside Deli, Marchese Computer Products and a Goade Park residence.

The videos also captured a man who appeared to be Hanes biking from Liberty Street to Ellicott Street at 11:13 p.m., moments before Batavia PD received a 9-1-1 call to the scene at 11:14 p.m. Czora testified to the possibility that Hanes arrived at 111 Liberty St. unnoticed by making a U-turn on Goade Park and cutting behind the house. 

Rarick called witnesses Michael Elmore, Danielle Case and Bonnie Cortright to attest to their recollections of the man who fled the scene. Elmore said his statement to police was mistakenly based on the premise that the individual who jumped out the window was Morgan. 

“I gave [Batavia PD] a description that resembled Ray Morgan,” Case also told jurors. 

Rebuttal testimony from detectives Matthew Wojtaszczyk and Thad Mart offered evidence against Case and Cortright. The detectives said the suspect was bald and wore sandals despite the women’s claims that the individual had short dark hair and wore sneakers. 

The jury must sort through these contradictory descriptions starting today in Genesee County Court. Jurors will hear closing arguments and elements of the second-degree murder charge before entering verdict deliberations. Hanes can be sentenced to life in prison if convicted.

In the six months since Kim Albanese learned of her mother's and brother's death in an accident on a snow-covered road on Route 98 in Elba, it hasn't stopped hurting, she said today during a stop at the accident scene where she placed some flowers in memory of Teresa M. Norton.

Norton would have turned 54 today.

In the six months since the accident, Albanese has given birth to a daughter. She also suffered the loss of her stepfather, who was the intensive care unit at Strong Memorial Hospital when he learned that his wife of 30 years and son had died.

"It still feels like a nightmare like still trying to put the pieces back together," Albanese said. "It's so hard. It feels like yesterday that they died. I still pick up my phone and go to call her or receive a phone call from her."

Norton and her son Thomas, 22, were northbound on Oak Orchard Road when she lost control of her 2008 Suzuki on a stretch of roadway that was heavily covered by drifting snow. Her Suzuki was broadsided by a pickup truck driven by Jeffrey S. Toussaint, 59, of Albion.

"That accident destroyed three families not just ours, but the guy that hit her," Albanese said. "We feel horrible because he was an innocent party in the whole thing. He was just in the wrong place at the wrong time. We don't blame him at all."

Given the conditions of the road and the lack of information forthcoming from the Department of Transporation about road conditions at that time, Albanese has retained an attorney, Jon Wilson, of Buffalo.

Wilson confirmed a lawsuit has been filed.

"The State answered and served various discovery demands and we are in the process of responding to those demands," Wilson said.

Albanese said telling her stepfather of his wife's and son's deaths was one of the hardest things she's ever had to do.

The whole process has been difficult.

"You watch it on the news and you're like, 'Oh that stinks for their family. I feel bad. My heart goes out.' But when it happens to your own family -- I lost my whole family in that instant, in that split second -- and I think the hardest part is I got stuck in the detour," Albanese said. "I was just at that light and I could see the tow trucks lights.

"But it was up on the hill, just right where I couldn't see my mom's truck. And I was like 'well, that's good maybe.' People tell me it was a good thing you didn't because I didn't go into labor because I could've had my daughter at 29 weeks pregnant."

Her fiancé, Cory Vanameron, said Albanese is a strong woman to go through what she's gone through. He said he's a bit older, more experience at life, he's been through the death of loved ones before but she doesn't see how she carries on.

"I couldn't do it," he said.

"I had my daughter two months after the accident," Albanese said. "(My mom) never once got to hold her. She never once got to see her. She was so excited to have a granddaughter and now just to look at my daughter, knowing she would never experience my mom, it's heartbreaking."

Previously:

• Mother and adult son killed in crash on snow-covered Route 98 in Elba
• Witness recalls scene of double fatal accident in Elba on Saturday
• State DOT declines to address road conditions at site of double fatal accident in Elba
• Vigil held in Elba for Teresa Norton and Thomas Norton, who died in collision on Route 98

Kiha S. McNear (inset photo left), 21, of Holland Avenue, Batavia, is charged with: first-degree criminal contempt -- with a prior conviction; criminal contempt -- having physical contact; second-degree burglary; fourth-degree criminal mischief; and second-degree harassment. McNear was arrested at 1:55 a.m. July 25 after a domestic incident on Walnut Street in which he allegedly violated an order of protection and got into a physical fight with a famiy member. He was arraigned in Batavia City Court and jailed in lieu of $10,000 cash or bond. He was due back in court July 26. The case was handled by Batavia Police Officer Christopher Lindsay, assisted by Officer Christopher Camp.

Justin P. Avino, 26, of Swan Street, Batavia, is charged with second-degree harassment. He was arrested after an investigation allegedly found he physical contact with another person at 4 a.m. July 21 on Swan Street in Batavia. He was issued an appearance ticket and is due in Batavia City Court on Aug. 8. The case was handled by Officer Peter Flanagan.

Katherine S. Thomas, 46, of Ross Street, Batavia, is charged with trespass. She was arrested after an investigation into a disturbance on Ross Street at 1:11 a.m. on July 26. Thomas was warned to stay away from the scene by police but she allegedly returned a short time later. She was issued an appearance ticket for July 30 in Batavia City Court. The case was handled by Batavia Police Officer Peter Flanagan, assisted by Sgt. Matthew Lutey.

Dustin Wayne Bogue, 37, address unknown, Buffalo, was arrested on a warrant in which is alleges that the defendant violated an order of protection at 10:38 a.m. on April 5 on Tracy Avenue in Batavia. He was arraigned in Batavia City Court and jailed with unspecified bail. He was due to return to city court on July 28. The case was handled by Officer Peter Flanagan.

Myriam M. Cruz, 36, of Copeland Street, Rochester, and Christian Saez, no age or address provided, are each charged with two counts of petit larceny after allegedly shoplifting from a local business on separate occasions in July. Cruz was released on her own recognizance. Saez was jailed on July 26 in lieu of $500 cash bail or $2,500 bond. Both are due in Batavia City Court on Aug. 1. The investigation was conducted by Batavia Police Officer Kevin DeFelice, assisted by Sgt. Dan Coffey.

Tony J. Aguglia, 39, of Main Street, Clarence, is charged with larceny of beer from a local business at 2:50 a.m. on July 25. He was arrested and processed at the jail, issued an appearance ticket for Aug. 6 in Batavia City Court, and released to his mother. The case was handled by Batavia Police Officer Darryle Streeter.

Press release:

Troopers from SP Warsaw responded to a cornfield off Soper Road in the Town of Perry for a skydiving accident today. Further investigation revealed that Richard S. Cordaro, 68, of Bergen, flew out of Perry/Warsaw airport with three others. All four individuals jumped from the plane. The other three landed safely.

Cordaro had more than 45 years of skydiving experience. Cordaro's parachute opened normally but then became tangled. Troopers attempted life-saving measures. Cordaro was pronounced at the scene. Rochester Skydivers was the company involved in this incident.

UPDATE: The State Police issued a correction on the spelling of the victim's last name. The press release above has been corrected accordingly. 

Terrill James Cunningham (inset photo, left), 23, of Treehaven Road, Buffalo, is charged with first-degree sexual abuse, second-degree sexual abuse, and two counts of forcible touching.

Following an investigation at Six Flags Darien Lake, Cunningham was arrested at 6:40 p.m. on July 25 and arraigned in Darien Town Court. He is accused of touching the intimate parts of two individuals less than 14 years of age.

He was jailed in lieu of $2,500 cash bail and is due back in Darien Town Court at 3 p.m. on July 30. The case was investigated by Genesee County Sheriff's Deputy Kyle Krzemien.

Ricardo Sampel, 50, of Dellinger Avenue, Batavia, is charged with five counts of aggravated family offense -- more than one offense within five years. On July 17, the Genesee County Emergency Dispatch Center received the report of a violation of an order of protection by a third party. Following an investigation, Sampel was identified and is alleged to have committed the crime of second-degree criminal contempt. It is alleged that he knowingly violated an order of protection by contacting the protected party via phone on July 13. Due to his previous criminal history, including criminal contempt convictions, the charge against him was elevated to a Class E felony. The defendant is currently being held in GC Jail on a separate criminal contempt charge. He was arraigned in Batavia City Court and jailed without bail. The investigation was assisted by jail correctional officers, including Senior Correctional Officer J.M. Smart. The investigation was conducted by Genesee County Sheriff's Deputy Ryan DeLong.

Jennifer Jean Greene, 46, of Tennyson Terrace, Williamsville, is charged with second-degree criminal contempt. At 4:45 p.m. on July 7, deputies responded to Six Flags Darien Lake for the report of a violation of an order of protection. Following an investigation, Greene was arrested. It is alleged that she made physical contact with a person who had a stay away order of protection against Greene. The defendant was arraigned in Darien Town Court and released on her own recognizance. She is due back in Darien Town Court on July 30. The case was handled by Genesee County Sheriff's Deputy Erik Andre.

Batavia Police Department detectives' court testimony on Thursday attempted to connect the bludgeoning death of 47-year-old Raymond L. Morgan to Richard D. Hanes, the man accused of murdering Morgan in his Liberty Street residence last July.  

District Attorney Lawrence Friedman called detectives Eric Hill and Thad Mart to testify about their recollections of the events surrounding the July 24, 2018, murder. 

The investigators said lab tests detected Hanes’s DNA on a baseball cap found below Morgan’s bedroom window. Detectives reportedly also found a green shirt and gray pants — similar to descriptions of the unknown perpetrator’s clothes — in Hanes’s blood-covered closet at his former Thorpe Street, Batavia, home. 

The detectives explained to jurors that Morgan’s DNA began to be collected throughout the city following his death. Batavia PD found Morgan’s blood on both the exterior of his bedroom window and the house siding below the room in the hours after the attack. 

Morgan’s DNA was also swabbed from a handlebar grip of Hanes’s bicycle and a hammer on the roof of an Ellicott Street house. Detectives suspect Hanes may have thrown the alleged murder weapon before pedaling back to Thorpe Street. 

Jurors listened as Hill reassembled a text conversation between Morgan and Hanes from the fatal night last July. Although Morgan’s contact information and the text messages did not appear on Hanes’s phone, they were later found in a phone records search by police. 

Hanes apparently texted Morgan “I owe you $395. Imma pay you” around 10:50 p.m. and “Here” at 11:09 p.m, minutes before Batavia PD was called to 111 Liberty St.

Mart told the jury that he had heard loud sirens from emergency responders as he was driving on Main Street before being dispatched to the scene of Morgan's death.

Mart questioned why Hanes said in a July 26, 2018, interview that he did not hear or see responders while traveling on his bicycle in the vicinity of the crime scene. 

“For him to be in the area where he said he was, I find it hard to believe that he would not at least hear the sirens,” Mart said.

Hanes faces life in prison if convicted of second-degree murder. Defense attorney Frederick Rarick will have the opportunity to cross-examine Mart when the trial continues at 2 p.m. today in Genesee County Court.