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Law and Order: Officers spot marijuana growing on roof of Batavia residence

By Howard B. Owens

Jacob J. Camerera, 26, of Ross Street, Batavia, is charged with unlawful possession of marijuana and unlawfully growing cannabis. Camerera was arrested after police responded to a neighbor illegally burning garbage at 10:03 a.m., Sunday. While Officer Mark Lawrence and Sgt. Daniel Coffey were explaining the violation of the Batavia Municipal Code, they noticed marijuana plants growing on the roof of Camerera's residence. Camerera was issued an appearance ticket and released.

Guy J. Bontrager, 46, of Werner Road, Attica, is charged with trespass. Bontrager allegedly drove an ATV on leased property on Spring Road, Alexander, without permission at 5:48 p.m. Oct. 1 causing inconvenience to deer hunters in the area.

Woodrow C. Horseman, 41, of Porter Avenue, Batavia, is charged with harassment, 2nd, and criminal mischief, 4th. Horseman allegedly pushed another person against a wall and then threw that person's phone in the road when the person tried to call the police. The incident was reported at 3:17 p.m., Thursday.

Jeffrey D. Freeman, 37, of South Spruce Street, Batavia, is charged with harassment, 2nd. Freeman was allegedly involved in a domestic incident at 9:50 a.m. Thursday on South Spruce Street, Batavia.

Sy Jesman T. Brown, 32, of Rochester, is charged with criminal impersonation. Brown was arrested by State Police following a traffic stop on the I-490 in Le Roy at 9:15 a.m., Sunday. Also arrested and charged with criminal impersonation, 31-year-old Natassia V. Travis, of Rochester. Karaya D. Cummings, 28, of Rochester, was charged with criminal possession of a controlled substance and aggravated unlicensed operation. All were ordered held on bail. No further details released.

Grand Jury Report: indictments for attempted murder on Thorpe, trailer park burglary, plus Byron man accused of selling LSD

By Billie Owens

Tyshawn K. King (AKA "Bullet," AKA "Jodeci" or "Jodecee") is indicted for the crime of second-degree attempted murder, a Class B violent felony. It is alleged that on Sept. 20 in the area of Thorpe Street, near Maple Street, in the City of Batavia, that King -- with intent to commit second-degree murder, specifically with intent to cause the death of another person -- engaged in conduct "which tended to effect the commission of such crime" by shooting the intended murder victim with a gun. In count two, the defendant is accused of the crime of first-degree assault, also a Class B violent felony. It is alleged in count two that with intent to cause serious physical injury to another person, King caused such injury by means of a deadly weapon or dangerous instrument, a gun. In count three, King is accused of the crime of criminal use of a firearm in the first degree, another Class B felony, for allegedly commiting a violent felony offense and possessing a deadly weapon, in this case a loaded gun, and/or displaying what appeared to be a pistol, revolver or other firearm.

Marie L. Gardner and Jason A. Shaffer are indicted by the Grand Jury of Genesee County. In count one, Gardner is accused of the crime of first-degree burglary, a Class B violent felony. It is alleged that between Jan. 28 and 29 Gardner entered or remained unlawfully in a dwelling on West Main Street Road in the Town of Batavia, with the intent to commit a crime. In so doing, at some point she or another participant in the crime caused physical injury to a person who was not a participant in the crime. In count two, Shaffer is accused of the crime of second-degree burglary, a Class C violent felony. It is alleged in count two, that between Jan. 28 and 29, he entered or remained unlawfully in a dwelling on West Main Street Road in the Town of Batavia, with the intent to commit a crime. In count three, Gardner is accused of the crime of second-degree burglary, a Class C violent felony, for entering or remaining unlawfully inside the same dwelling during the same time period on a second occasion with the intent to commit a crime. In count four, Shaffer is accused of first-degree burglary, a Class B violent felony, for entering or remaining unlawfully inside the same dwelling during the same time period on a second occasion with the intent to commit a crime. In so doing, at some point he or another participant in the crime caused physical injury to a person who was not a participant in the crime. In count five, Shaffer is accused of the crime of second-degree strangulation, a Class D felony. It is alleged in count five, that at the same time and place, he acted with intent to impede the normal breathing or circulation of blood of another person by applying pressure on the throat or neck of the victim, thereby causing stupor, loss of consciousness and/or other physical injury or impairment. In count six, Shaffer is accused of the crime of third-degree attempted assault, a Class B misdemeanor, for intentionally attempting to cause injury to a person. In count eight, Gardner is accused of the crime of third-degree menacing, a Class B misdemeanor. It is alleged in count eight that Gardner used physical menace to intentionally place another person in fear of death, imminent serious physical injury or physical injury, or attempting to do so. In count nine, Shaffer is likewise accused of third-degree menacing for allegedly using physical menace to intentionally place another person in fear of death, imminent serious physical injury or physical injury, or attempting to do so.

Jacob J. Russell is indicted for the crime of criminal possession of a controlled substance in the fifth degree, a Class D felony. It is alleged that on March 31 in the Town of Byron that Russell knowingly and unlawfully possessed a controlled substance -- lysergic acid diethylamide -- more commonly known as the hallucinogen LSD, with intent to sell it. In count two, the defendant is accused of the same crime on the same day for allegedly knowingly and unlawfully possessing another controlled substance with intent to sell it, psilocybin mushrooms (sometimes called 'shrooms, or "magic mushrooms"), also a hallucinogen. In count three, he is accused of the same crime as in count two, but on a different day, April 7. In counts four and five, the defendant is indicted for the crime of criminal possession of a weapon in the fourth degree, a Class A misdemeanor, for allegedly possessing "a firearm, electonic dart gun, electronic stun gun, gravity knife, pilum ballistic knife (which has a detachable blade that can be ejected to a distance of several yards by pressing a trigger or operating a lever or switch), metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chukka stick, sand bag, sand club, wrist-brace type sling or slingshot, shirken or "kung fu star," to wit, respectively: a gravity knife and a switchblade knife. In counts seven, eight and nine, he is accused of criminal possession of a controlled substance in the seventh degree, Class A misdemeanors, for allegedly knowingly and unlawfully possessing a controlled substance, psilocybin mushrooms, on March 31, and on two occasions April 7. In count 10, he is accused of another count of criminal possession of a controlled substance in the seventh degree, but this time it's for LSD. In counts 11, 12, 13 the defendant is accused of unlawful possession of marijuana ("contrary to Penal Law Section 221.05") for allegedly knowingly and unlawfully possessing marijuana on March 31 and twice on April 7, respectively, in the Town of Byron. In count 14, Russell is indicted for the crime of growing, by unlicensed persons, the plant known as cannabis (marijuana), which is a Class A misdemeanor. It is alleged in count 14, that on April 7 in the Town of Byron that Russell grew the plant of the genus Cannabis, or knowingly allowed it to grow on his land without destroying it; he allegedly grew it in his residence.

Randy K. Wilmet is accused by the Grand Jury of the offense of third-degree assault, based on Prosecutor's Information (#2017-01), which is a Class A misdemeanor. It is alleged that on July 21 in the City of Batavia that Wilmet intended to cause physical injury to another person and did so. In count two of the indictment, again based on Prosecutor's Information, Wilmet is accused of third-degree menacing, a Class B misdemeanor. It is alleged in count two that Wilmet on the same day, by means of physical menace, intentionally placed another person in fear of death, imminent serious physical injury or physical injury, or attempted to do so. On Sept. 29, Genesee County Court Judge Charles N. Zambito approved an order authorizing the filing of the Prosecutor's Information charging the defendant with the offenses, which were subsequently filed with City of Batavia Court.

Meghan K. Gould is indicted for the crime of fourth-degree grand larceny, a Class E felony. It is alleged on between Oct. 5 and Oct. 19, 2016, that she stole U.S. currency in excess of $1,000.

Matthew H. Delosh is accused of the crime of aggravated unlicensed operation in the first degree, a Class E felony. It is alleged in the indictment that on May 8 in the City of Batavia that Delosh drove a 2003 Saturn on Evans Street, Ellicott Street and South Swan Street while knowing, or having reason to know, that his driver's license was suspended or revoked by authorities and that at the time he was under the influence of alcohol or a drug. In count two, he is accused of the crime of driving while intoxicated, as a misdemeanor, on the same day and in the same places. In Special Information, the District Attorney accuses the defendant of having been convicted of driving while ability impaired by alcohol on April 19, 2012 in the Town of Salina Court, County of Onondaga, and that conviction forms the basis for the suspension or revocation referred to in count one of the indictment. Furthermore, the DA accuses Delosh of knowing, or having reason to know, that the prior conviction existed and that his driving privilege was therefore suspended or revoked because of that prior conviction.

John P. Daley is accused of the crime of driving while intoxicated, as a Class E felony. It is alleged in the indictment that on May 21 in the Town of Alabama, Daley drove a 1998 Honda on Route 77 while in an intoxicated condition. In Special Information filed with the indictment, District Attorney Lawrence Friedman accused Daley of having been convicted of the crime of aggravated driving while intoxicated, per se, as a Class D felony. The DA accuses Daley of being so convicted on June 19, 2008 in Erie County Court, and the conviction was within 10 years of the crimes alleged in this indictment.

Child sex abuser who had previous conviction overturned agrees to plea deal

By Howard B. Owens
        Sean Vickers

District Attorney Lawrence Friedman thought for sure he was going to have to retry the local case against convicted child molester Sean Vickers after an appeals court overturned four of his jury trial convictions from 2014.

Vickers was back in Genesee County Court today. He was originally scheduled for a hearing on who his trial attorney would be and to clarify whether Vickers would testify before a grand jury presentment on the evidence against him this coming Tuesday.

Instead, Vickers surprised Friedman by agreeing to a plea deal that would cap his potential prison term on the charges to 40 years.

In 2014, Judge Robert C. Noonan handed down a 107-year sentence after Vickers was convicted at trial on similar charges.

The plea deal Vickers accepted today is the same one he turned down before that trial.

Since then, he's been convicted of one count in Genesee County that carried a seven-year prison sentence and of sexual abuse charges in Niagara County that resulted in a 20-year sentence.

This afternoon, Vickers was arraigned on four counts of course of sexual conduct in the first degree. He entered a guilty to plea to two counts in satisfaction of all four charges.

The four charges covered acts against two different victims, and the two counts admitted to were for sexual acts against a child under age 13 in 2001 through 2002 in the City of Batavia.

If the case had been presented to a grand jury, Friedman would have asked the grand jury to return an indictment that included two counts of predatory sexual assault against a child in the first degree, a Class A2 felony, which would have carried a mandatory sentence of 15 to life or 25 to life.

The plea deal means the victims won't have to testify in a second Genesee County trial and the 48-year-old Vickers won't likely get out of prison before the start of the second half of the century.

BREAKING: Gov. Cuomo announces $10 million for revitalization in Downtown Batavia

By Howard B. Owens

The City of Batavia will receive a $10 million award from the State of New York as a regional winner in the 2017 Downtown Revitalization Initiative Contest.

Gov. Andrew Cuomo made the announcement moments ago at City Centre.

Batavia is one of 10 regional winners around the state, beating out other applicants in the Finger Lakes region.

MORE T/K

Appeals court upholds conviction and sentence of Park Avenue burglar

By Howard B. Owens
    Akeem Simmons

The conviction and 20-year prison term for Akeem Simmons, the then 23-year-old man who, with a partner, burglarized a home on Park Avenue, Batavia, in January 2014 will stand an appeals court has ruled.

An attorney for Simmons appealed both the conviction on a claim of an undisclosed deal with a witness and the sentence as too harsh.

The Appellate Division, Fourth Judicial Department, ruled against both motions.

Simmons and Nathaniel Davis burglarized the occupied home and Simmons was accused of carrying a gun during the commission of the crime. Davis testified against Simmons and after his testimony, Davis was sentenced to five years in prison after pleading guilty to burglary.

At trial, Attorney Thomas Burns, representing Simmons, argued that it seemed clear to him that there was an undisclosed deal between Davis and the District Attorney's Office.

At trial Davis, under oath, denied there was any deal in exchange for his testimony. District Attorney Lawrence Friedman said no deal was made in order to get Davis to testify.

A request by Burns for a separate hearing was denied by Judge Robert C. Noonan.

The appellate judges found there was no evidence to support the claim of an undisclosed deal.

The judges also ruled that because of the prior criminal record of Simmons, which included two prior burglary convictions, the 20-year prison sentence was neither harsh nor severe.

Batavia man accused in Federal court of using computer at library to view child pornography

By Howard B. Owens

A Batavia man is facing Federal charges for allegedly viewing child pornography while using a computer in the Richmond Memorial Library in Batavia.

Robert Roy Richmond is being charged under a Federal statute that prohibits viewing child pornography that has been transmitted across state lines.

According to an affidavit filed in U.S. District Court, FBI agent Jennifer Amo opened the investigation after the bureau was notified by Batavia PD in January of an investigation into a computer being used to view child pornography at the library.

The case started when a library employee who was working in the DVD section saw a man at a computer looking at a pornographic picture of a child in fishnet stockings.

As soon as the man left, the employee shut down the computer and put an out-of-order sign on it in order to preserve any potential evidence until police arrived.

Library employees told Amo that Richmond came to the library every morning and used a computer.

Richmond was identified as the suspected computer user because he had to input his library card number to access the system. He was also identified as a suspect by the employee through a photo lineup.

Another library employee told Amo that Richmond may have been coming into the library since 2014 to view adult pornography and had been confronted four or five times by the employee about it.

Upon questioning, Richmond allegedly admitted he's been viewing child pornography since 2009.

The FBI conducted a forensic examination of the computer and the affidavit contains a description of two the images allegedly found on the hard drive. Both are sexually explicit, of girls who are about 6 or 7 years old.

No information has been released yet on the status of the pending legal case.

Law and Order: Batavia man arrested at Fire Hall on trespass charge

By Howard B. Owens

Anthony J. Nobile, 28, of New York Place, Batavia, is charged with trespass. Batavia PD was dispatched to 18 Evans St., Batavia, which is the City of Batavia Fire Hall, to investigate a complaint of a male subject who would not leave. Nobile was arrested and released on an appearance ticket.

Kiha Samuel McNear, 19, of Walnut Street, Batavia, was arrested on a warrant for alleged failure to appear. McNear was located by Officer Frank Klimjack and taken into custody. He was arraigned and jailed on $1,000 bail.

Tyrone N. Thigpen Sr., 40, of Jackson Street, Batavia, is charged with criminal contempt, 2nd. Thigpen allegedly violated a stay away order of protection at 7:50 a.m., Monday.

Jordan B. Abrams, 25, of Alabama, is charged with harassment, 2nd. Abrams was arrested by State Police in connection with an incident reported at 10:24 p.m. Sept. 24 in the Town of Alabama. No further details released.

Felicia A. Dumar, 27, of Byron, is charged with endangering the welfare of a child. Dumar was arrested by State Police in connection with an incident reported at 10:07 a.m. Tuesday on Swamp Road, Byron. No further details released.

Russell S. Almeter, 63, of East Aurora, is charged with DWI and driving with a BAC of .08 or greater. Almeter was stopped by State Police at 12:14 a.m. Wednesday on the Thruway exit ramp in Pembroke. He was also charged with unlawful possession of marijuana.

Reports shared with county legislators that details labor difficulties for dairy farmers

By Howard B. Owens

If the current administration in the White House was successful in closing the southern border and deporting all migrant farm workers, it would be devastating to Upstate's economy according to a report prepared earlier this year by Farm Credit East.

Libby Eiholzer, a bilingual dairy specialist with Cornell Cooperative Extension, shared the finding of the report during a presentation Tuesday to the County Legislature's Human Services Committee.

"What they found was there are at least a thousand farmers in the state that are at a higher risk, that they are highly dependent on immigrant labor," Eiholzer said. "If they lost their employees they could potentially go out of business. It would reduce the ag production by over $1 billion. There would be 900,000 fewer acres in production. On-farm jobs would be reduced by 20,000 and then there would be another 23,000 fewer off-jobs in the industry. The total economic impact would be $7.2 billion."

Farmers are so dependent on immigrant labor that they feel caught between INS enforcement and farm labor advocacy groups, Eiholzer said. Both the agency and the labor groups, farmers fear, are a threat to their ability to stay in business. That makes them hesitant to raise their concerns publicly about immigrant labor or work with the advocacy groups to ensure farm workers receive adequate care and protection.

What Eiholzer and a colleague did earlier this year was convene a focus group of dairy farmers from Genesee, Orleans and Wyoming counties in Batavia, which allowed farmers to speak out anonymously so Cornell could complete a study on the status of immigrant labor.

"This was the largest number of farms that we surveyed," Eilholzer said. "We also talked to 200 workers on those farms. What we found is that these farms, that are really representatives of other farms of similar size in the state, are very reliant on a Hispanic workforce. Seventy percent of the farms that we surveyed had at least half, if not all, of their workforce comprised of Hispanic individuals, and another quarter had a portion of their employees comprised of Hispanic individuals."

The farmers do all they can to ensure their workers have the proper documentation to allow them to work in this country, but they don't have the resources or the authority to dig too deeply. If they ask for paperwork beyond what they would as an Anglo worker, they risk accusations of discrimination.

"The only way to know the I-9 forms are not accurate is if the INS comes to your farm and does an I-9 audit and they tell you somebody is not allowed to work here," Eiholzer said. "Farmers do their due diligence to make sure people are eligible to work here but at the same time, you know that at least half of the immigrant farm workers here in the country (are undocumented)."

The full report (pdf) outlines what Eiholzer and researcher Thomas R. Maloney found.

Among the findings, it's very hard to find native-born New Yorkers to take manual labor farm jobs.

The managers also looked locally to recruit American workers through local high schools or BOCES programs, but with very little success. American workers often require a lot of social services support, which adds additional time and burden on the employer through additional paperwork requirements imposed by the social services programs and often resulting in a failed employment scenario.

Advocacy groups are pushing for higher wages, overtime pay, better housing conditions, and the right of workers to form labor unions. While farmers acknowledge there are things that could be done to make life better for workers, they don't feel the advocacy groups understand the farm business and are really out to destroy them. That distrust prevents them from bringing leaders from these groups to the farms to work with them on improving conditions.

From the report:

Their concern stems from their belief that these groups have an agenda to ultimately harm their farms, rather than actually to help farm workers. ... The advocacy groups have referred to farm employment practices as a form of “modern-day slavery,” which underscores the tone of animosity that these groups have toward the employers. 

Starting hourly pay for milkers is $9.34, with the highest rate going to $11.05. The highest rate for any Hispanic worker on average is $12.94. Farmers acknowledge, as a matter of being competitive for workers, the starting rate was low. Since the report was issued, the minimum wage rose to $9.70 and it will go over $10 an hour after the first of the year. Farmers have adjusted wages for all workers accordingly.

The farmers often provide free housing. They said the housing, especially group housing, is difficult and expensive to maintain, and this is an area where advocacy groups could actually help if they could be trusted to come onto dairy farms and not disrupt operations.

At the same time, if the state keeps increasing the minimum wage, and farmers are forced to pay overtime, and workers are allowed to form unions, housing is one area farmers could be forced to cut expenses, even charging rent to workers to offset higher labor costs.

Eighty percent of Hispanic dairy farm workers in the state receive free housing from their employers.

As financial pressures build on the farms, the result is to push some of the costs down to the employees. This phenomenon is commonly seen in other industry sectors when costs increase for the employer. This presents serious complications, as the Department of Labor has stringent compliance regulations regarding on-site housing for employees. There is a concern that employers may take advantage of their employees when there is a landlord/tenant relationship as part of employment. Focus group participants would prefer not to be in the landlord business. 

A change in overtime rules would also have a trickle-down effect that would hurt workers, the report found.

Their Hispanic workers who ask to work 60-70 hours per week and would seek other employment that would meet their income expectations. Those who do not leave likely will be upset, as their hours and overall pay will be cut drastically. These are the workers who most want to maximize their earnings but would end up earning less. Employers acknowledge that this move will force them to hire more people to work fewer hours or start to think about switching to robotic milking systems. 

The unpredictability of the Trump Administration on immigration and reports of greater enforcement and how these political factors have changed the perception of Hispanic workers in the communities where they live have caused fear and anxiety for farmers and workers.

This level of unpredictability is causing a sense of fear and nervousness for farm employers, workers, and the community at large. Interestingly, it was stated that the workers are not worried about crossing the border, but they are very concerned about being deported from Western New York. The most damaging and immediate impact of the recent Executive Order has been to instill a sense of fear in the community regarding these employees. Some Hispanic employees have stopped leaving the farm altogether since the order was announced. They will pay others to purchase their groceries for them, as they are afraid to be seen out in public. Farm employers are very concerned about the impact that this type of self-imposed isolation will have on their employees.

There is a perception among focus group participants that the Trump Administration is focused on jobs for Americans and does not comprehend the impact agriculture has on the U.S. economy. Agriculture is a $30 billion industry.

Paul Kesler named principal of Batavia High School

By Howard B. Owens

When this year's seniors at Batavia High School are handed their diplomas this spring, they will see a familiar face, a face they've known since they were kindergarteners in the City School District -- Paul Kesler.

This winter, Kesler will end a 13-year run as the principal of John Kennedy School and become principal of Batavia High School. He was appointed to the new position tonight by the school board. He begins his new position Dec. 22, the first day of Winter Break.

His 16-year-old daughter, now a sophomore at BHS, but also once a student at JK, also approved of the move.

"I wasn't sure how she would react but she got a big smile on her face and she said, 'Dad, kids that went to John Kennedy, they still talk about John Kennedy. They really respect you.' So when your own daughter feels like it's a good thing, that's pretty confirming."

Kesler also got a ringing endorsement from Superintendent Chris Dailey during the board meeting. 

"You have a lot of people behind you," Dailey said. "You’re going to do great things. Your dedication to your community and your school is outstanding. We can only expect great results, so no pressure. But, hey, you do the great things you do here at John Kennedy at the high school, the high school will have the same kind of results we’ve seen here."

Kesler, originally from Utica, started his teaching career in Rochester. He was a kindergarten teacher, a second-grade teacher, a reading specialist and an instructional coach for three years before moving to Batavia.

He has a daughter who is a junior at Boston University, two children attending BHS, and a child who is a student at JK.

Two weeks ago, after setting aside all the prior principal applicants, the district hired Dennis Kenney as interim principal. His contract runs through Dec. 21.

Dailey said when the initial search for a new principal didn't turn up the perfect match, he thought about the criteria the district sought in a candidate and realized they already had the perfect candidate in the district with Kesler.

One hallmark of Kesler's oversight of JK is his promotion of STEAM (Science, Technology, Engineering, Art and Math) and he's looking forward to continuing that effort at the high school level.

"I think you know we always have the instructional challenges of a small city district, especially in the performance of some economically disadvantaged students, particularly in the areas STEAM," Kesler said. "Those are some of the areas that are a challenge for any small city district. I'm excited about having that connection between what we do in the elementary school all the way up through high school."

There's really only one downside to moving to BHS, Kesler said -- leaving behind the staff and faculty at John Kennedy.

"I don't cry much but I was very close today as I told staff after school," Kesler said. These are just fantastic people. You know, they've been part of my family. My whole experience in 13 years in Batavia has been here. That's going to be the struggle, saying goodbye."

UPDATED: Darien contractor agrees to pay portion of $3 million settlement over alleged false claim of disabled-veteran-owned business status

By Howard B. Owens

A contractor from Darien will pay a portion of a $3 million settlement with the Federal government for his alleged part in a scheme to obtain construction contracts under the false pretense that an affiliate company was owned by a disabled veteran.

John Zoladz, owner of Zoladz Construction, along with David Lyons, of Grand Island, in conjunction with Zoladz Construction and Alliance Contracting, were accused in a lawsuit of setting up a company called Arsenal Contracting with a figurehead disabled veteran in order to obtain service-disabled veteran-owned (SDVO) status.

This was a civil suit filed under the False Claims Act.

“Contracts are set aside for service-disabled-veteran-owned small businesses so to afford veterans with service-connected disabilities the opportunity to participate in federal contracting and gain valuable experience to help them compete for future economic opportunities,” said Acting Assistant Attorney General Chad A. Readler of the Justice Department’s Civil Division. “Every time an ineligible contractor knowingly pursues and obtains such set-aside contracts, they are cheating American taxpayers at the expense of service-disabled veterans.”

To qualify as a SDVO small business, a service-disabled veteran must own and control the company. Arsenal purported to be a legitimate SDVO small business but it was, in fact, managed and controlled by Zoladz and Lyons, neither of whom is a service-disabled veteran. 

“Detecting and discontinuing fraud, waste, and abuse committed by those who do business with the government remains a core function performed by this Office,” said Acting U.S. Attorney Kennedy. “That function, however, takes on additional significance when the target of the fraud is a program designed for the benefit of the heroes among us—our disabled veterans.

"Although this investigation did not uncover sufficient evidence to establish criminal liability by these entities and individuals, the multimillion-dollar civil judgment ensures that those involved pay a heavy price for their decision to divert to themselves resources intended for the benefit of those who have made supreme sacrifices on behalf of all.”

The U.S. Attorney's office said the alleged sham company had few employees of its own. Instead, it relied on Alliance and ZCCI employees to function. 

After receiving numerous SDVO small business contracts, government attorneys say Arsenal subcontracted nearly all of the work under the contracts to Alliance, which was owned by Zoladz and Lyons, and ZCCI, which was owned by Zoladz. Neither Alliance nor ZCCI was eligible to participate in SDVO small business contracting programs. 

Zoladz and Lyons were accused of carrying out their scheme by, among other things, making or causing false statements to be made to the U.S. Department of Veterans Affairs (VA) regarding Arsenal’s eligibility to participate in the SDVO small business contracting program and the company’s compliance with SDVO small business requirements.  

“This settlement demonstrates the commitment of the Department of Veterans Affairs, Office of Inspector General, the Department of Justice, and other law enforcement agencies to aggressively pursue individuals and companies that misrepresent themselves as service-disabled-veteran-owned small businesses and deny legitimately disabled veterans the opportunity to obtain VA set-aside contracts,” said Inspector General, Michael J. Missal of U.S. Department of Veterans Affairs, Office of Inspector General (OIG).

“The VA OIG will continue to work diligently to protect the integrity of this important program, which is designed to aid disabled veterans. I also want to thank the U.S. Attorney’s Office and our law enforcement partners in this effort.”

The settlement resolves a lawsuit filed under the whistleblower provisions of the False Claims Act, which permit private individuals to sue on behalf of the government for false claims and to share in any recovery. The civil lawsuit was filed in the Western District of New York and is captioned United States ex rel. Western New York Foundation for Fair Contracting, Inc. v. Arsenal Contracting, LLC, et al., Case No. 11-CV-0821(S) (W.D.N.Y.). As part of today’s resolution, the whistleblower will receive $450,000.

“Providing false statements to gain access to federal contracts set aside for service-disabled veterans denies the government opportunities to meet its abiding commitment to our nation’s veterans,” said Acting SBA Inspector General Hannibal “Mike” Ware. “The SBA’s Office of the Inspector General is committed to bringing those that lie to gain access to SBA’s preferential contracting programs to justice. I want to thank the Department of Justice for its leadership and dedication to serving justice.”

This matter was investigated by the Civil Division’s Commercial Litigation Branch, Assistant U.S. Attorney Kathleen A. Lynch of the U.S. Attorney’s Office for the Western District of New York, the FBI, the VA’s Office of Inspector General, the SBA’s Office of Inspector General, and Army CID.

Press Release from Zoladz Construction:

“The very complicated and frequently changing rules and regulations governing the Service Disabled Veteran Owned Small Business Program (SDVOSB) create inherent difficulties in maintaining constant compliance. These regulatory efforts lead to frequent challenges for participating SDVOSB businesses across the nation.

Even though we had legal advice that the formation of the SDVOSB involved was in compliance, the ever changing rules made it difficult to clearly stay within a difficult landscape of compliance. All contracts procured by the SDVSOB were performed to the satisfaction of the owners and all parties involved including subcontractors and material suppliers were fully compensated.

We are proud of our history and our service to the community. We are glad to have this matter fully resolved and look forward to continuing to serve the needs of our customers and community with award-winning construction work.”

In a note, the company added:

Please also note the official press release from The Department of Justice stated: “The claims resolved by the settlement are allegations only, and there has been no determination of liability." 

NOTE: Wording was changed in the story after receiving this note to reflect that these are "allegations only."

County to join legal fight against pharmaceutical companies over opioid crisis

By Howard B. Owens

Genesee County will join the trend of local governments suing pharmaceutical companies over the opioid epidemic in an attempt to recover costs related to treating and dealing with addiction.

County Attorney Kevin Earl has recommended the Legislature sign a contract with the law firm of Napoli Shkolnik, which is based in New York City.

Earl interviewed two law firms and following negotiations selected Napoli as the best option, primarily because the financial terms were more favorable to the county.

Napoli agreed to cap their costs at 25 percent of any settlement (instead of a sliding scale that went up to 40 percent) for both the initial lawsuit and any appeals.

"Both of them would advance all of the costs of litigation," Earl said. "Also both of them we would say if they don't win, the county doesn't have to reimburse them for any of the cost and expenses. So, the county doesn't have to upfront anything or reimburse them. The only cost to the county would be some time obviously. The law firms are going to have to have information about our different costs and expenditures."

Many of the costs to the county are on the social services side, Earl said, especially dealing with parents who have become addicted.

"They're (social service workers) finding a great deal of their time and effort on trying to, first of all, rehabilitate parents because of the drug problem and then terminating parental rights when it becomes necessary. So that's that's a big cost."

In these lawsuits, being filed by municipal governments around the nation, pharmaceutical companies are being accused of flooding the market with prescription pain pills, using deceptive means to promote pain medication to doctors, and misrepresenting the addictive power of the medications, spurring an opioid epidemic that has led to the spread of heroin in local communities.

A total of 19 pharmaceutical companies have been targeted by these lawsuits.

Earl was also able to negotiate away a term in the contract that could have stuck the county with expenses related to the law firm borrowing money to proceed with the suit.

"They had something in there that if they had to borrow money we have got to pay the interest on the borrowed money," Earl said. "I said well the whole reason we got you was we thought you were a big firm and you have the money. I couldn't handle the lawsuit when I was a sole practitioner of a case like this because I couldn't advance that type of money, so they took that out completely."

While the suit on behalf of Genesee County should be filed within months, if not weeks, Earl expects the suit, on a motion by the pharmaceutical companies, will be consolidated with other similar lawsuits. In a way, at that point, Genesee County will benefit from the expertise and experience of both the big law firms handling these cases.

Even so, it will be a long time before the county sees any money from a settlement (assuming victory).

"It's going to probably be a long process," Earl said. "I look at this as similar to the tobacco cases. You know these pharmaceutical companies are going to fight tooth and nail, and they know if they settle in New York that opens the floodgates and then another state and another state and another state, so I would imagine this will take a number of years."

Pair of Orleans County resident accused of illegally dumping tires at the Iroquois Wildlife Refuge

By Howard B. Owens

A resident in Alabama near the Iroquois Wildlife Refuge reportedly spotted two men with a pickup bed full of worn tires dumping them in the wetlands at about 10:42 a.m. Thursday and reported it to State Police.

Arrested were James H. Calus, 45, of Medina, and Jerry E. Nichols, 64, of Albion.

Both were issued appearance tickets for an alleged violation of the State's Environmental Conservation Law, section 9-0303, for illegal dumping on state land.

The incident occurred in the area of 1101 Casey Road, Alabama.

Law and Order: Judge Road resident charged with assault

By Howard B. Owens

Shane Kyle Logan, 45, of Judge Road, Tonawanda Indian Reservation, is charged with assault, 3rd. Logan allegedly struck another person in the face with his fist with intent to cause physical injury.

Renae Ginine Porter, 37, of East Main Street, Batavia, is charged with petit larceny. Deputy Ryan DeLong responded to a complaint of shoplifting in progress at Kohl's Department Store at 4:19 p.m. Monday. Porter was identified as the suspect, located and taken into custody. DeLong was assisted by Trooper Bill Franz and Batavia PD Officer Chris Lindsay.

Jeremy L. Lonnen, 26, of Garland Avenue, Rochester, is charged with aggravated unlicensed operation, 2nd, and failure to use headlights. Lonnen was stopped at 9:51 p.m. Saturday on Holland Avenue, Batavia, by Officer Christopher Linsday. Lonnen was jailed on $1,000 bail.

Nicholas M. Canty, 20, of Law Street, Batavia, is charged with criminal use of drug paraphernalia, 2nd. Canty was arrested by Officer Stephen Cronmiller following an investigation into an incident where Canty may have been under the influence of drugs at 10:15 a.m. Saturday on Law Street, Batavia.

Barbara E. Ferrando, 46, of Summit Street, Batavia, was arrested on a warrant. Ferrando was located by a probation officer and taken into custody by Batavia PD.

Jaylyn Shayquawn Strong, 22, of Mazda Terrace, Rochester, is charged with aggravated unlicensed operation, 3rd, driving without a license, no stop lights, unlawful possession of marijuana, and aggravated unlicensed operation, 2nd. Strong was arrested on a warrant by the Sheriff's Office and turned over to Batavia PD.

Bedroom fire reported on Spruce Street in the city

By Billie Owens

A bedroom fire is reported at 20 N. Spruce St. Residents advised to evacuate. It's gone to a second alarm. City fire is responding, including all off-duty firefighters, along with mutual aid from Alexander's Fast Team and a tanker from Elba. Town of Batavia is asked to stand by in their quarters. Two Mercy medic units also called to the scene.

UPDATE 8:41 p.m.: All residents accounted for. A firefighter may have been injured. He may have suffered heat exhaustion or dehydration.  

UPDATE 8:50 p.m.: A cat is missing.

UPDATE: Added the last four photos, taken by Frank Capuano.

Photos: Alecia Kaus/Video News Service

Law and Order: Swan Street resident accused of repeatedly punching another person

By Howard B. Owens

Bobby Lee Mobley, 32, of Swan Street, Batavia, is charged with assault, 3rd, and criminal mischief. Mobley was arrested as a result of an investigation into an incident Aug. 28. Mobley is accused of punching another person numerous times and of damaging property at 574 E. Main St., Batavia. A warrant was issued for Mobley. Officers Marc Lawrence and Nicole McGinnis report they located Mobley hiding in a basement.

Sabrina M. Higgins, 22, of Church Street, Basom, is charged with theft of services and conspiracy, 6th. Also charged, Rae C. Cook, 28, and Latiqua S. Jackson, 25. The three women are accused of eating a meal at Bourbon & Burger Co. in Batavia and then leaving without paying their bill.

Ricky Allen Marsceill, 53, of East Main Street, Batavia, is charged with criminal use of drug paraphernalia, 2nd, and bicycle on a sidewalk. Marsceill was allegedly found in possession of drug paraphernalia after being stopped at 10:06 p.m. Sept. 25 on Main Street, Batavia, by Officer Christopher Lindsay for allegedly riding his bicycle on the sidewalk. In a separate arrest the next day, Marsceill is charged with criminal possession of a controlled substance and criminal use of drug paraphernalia. At 12:29 p.m. Tuesday, Marsceill was allegedly found in possession of crack cocaine and drug paraphernalia.

Woodrow C. Horseman, 41, of Ellicott Street, Batavia, was arrested on a warrant for alleged failure to appear. The charge stems from an alleged theft of beer from Tops Market. He was jailed on $5,000 bail.

Tracy D. Pike, 58, of Godfreys Pond Road, Bergen, is charged with harassment, 2nd. Pike allegedly threatened another motorist at 4 p.m. Sept. 13 on East Main Street, Batavia.

Shayla L. Sharrock, 32, of Stowell Drive, Rochester, was arrested on a warrant for alleged failure to appear in City Court. Sharrock was jailed without bail.

Kaila I. Tidd, 32, of Holland Avenue, Batavia, was arrested on a warrant for alleged failure to appear. Tidd turned herself in for alleged failure to appear on building code violations. She posted $250 bail.

Dakota O. Irvin, 26, of Bank Street, Batavia, was arrested on a warrant for alleged failure to appear. 

Shane E. Dann, 41, of Swan Street, Batavia, was arrested on a warrant for alleged failure to appear. Dann's vehicle was stopped for an alleged traffic infraction on Washington Avenue by members of the Local Drug Task Force. Dann was ticketed for alleged obstructed view and operating on a suspended license. He was also allegedly found in possession of marijuana and issued an appearance ticket. He was arraigned and released under supervision of Genesee Justice.

Samiria C. Brown, 29, of Carnary Street, Rochester, was arrested on a warrant for alleged failure to appear on an aggravated unlicensed operation charge. Brown was stopped for an alleged traffic violation in Greece and turned over to Batavia PD on the warrant.

David L. Hausler, 29, of South Main Street, Batavia, is charged with disorderly conduct. Hausler allegedly threw objects at a vehicle driving past him on South Main Street at 1:29 a.m. on Sunday.

Bryan J. Yockel, 29, of Rochester, is charged with unlawful of marijuana. Yockel was stopped by State Police in Oakfield at 8:49 p.m. on Sunday.

New book corrects the record on Emory Upton's attitude toward the military and the republic

By Howard B. Owens

At the intersection of Main and Ellicott stands a monument to Gen. Emory Upton, Batavia's most revered military figure, and for good reason, says history professor and now Upton biographer David J. Fitzpatrick.

Upton distinguished himself during the Civil War in battles at Salem Church, Spotsylvania, Opequon Creek, and in other engagements.

"He was one of the outstanding regimental commanders of the war," said Fitzpatrick, who teaches at Washtenaw Community College in Ann Arbor, Mich. "He had a tremendous tactical success at Spotsylvania."

The fact that Upton is still discussed among military leaders and those interested in military history, though, has more to do with his ideas and what he scribbled on paper than what he accomplished on the battlefield.

Some of what Upton wrote has led to more than 50 years of the Army officer being misunderstood and misrepresented, though, according to Fitzpatrick.

In the mid-20th century, Upton gained a reputation as a Prussian-inspired militarist with little respect for democracy. That assertion doesn't fit the documents in the historical record, Fitzpatrick contends and he makes that case in his new book: "Emory Upton: Misunderstood Reformer" (University of Oklahoma Press).

"Upton is an important figure in U.S. military history," Fitzpatrick said. "He's a figure a lot of people don't know about."

While you might expect a book steeped in military policy and battlefield strategy to be dull and dry, Fitzpatrick has written a story that is fascinating and at times even a real page-turner. Upton was a man both of action and ideas dealing with some of the most important considerations that would shape history after his death in 1881.

Batavia's Civil War hero was born to a farming family in Genesee County Aug. 27, 1839. A devout Methodist and a fervent abolitionist, Upton attended the era's most famous integrated college, Oberlin, before being accepted into West Point, graduating eighth in his class in May 1861 (The only blemish on his West Point career was a fight with a Southern cadet who made remarks behind his back, hinting that Upton had sexual relations with a black girl at Oberlin. Upton took offense and when the cadet wouldn't explain himself, Upton challenged him to a duel that became a fight in a West Point dorm.)

After the war, Upton was sent on an 18-month tour of Europe and Asia to study the military tactics of countries on those continents, especially Germany. When he returned he wrote "The Armies of Europe and Asia," "A New System of Infantry Tactics" and "Tactics for Non-Military Bodies" (aimed at civilian associations, police and fire departments); and more than 20 years after his death, his unfinished work, and most important book, "The Military Policy of the United States," was released by the War Department.

There were aspects of the military position in Germany that Upton admired and these served as a basis of Upton's recommended reforms to the U.S. military. This led to charges among critics that Upton and his like-minded reformers were trying to foist Prussian militarism on the United States.

These charges were amplified with the publication of a book in 1960 by Russell Weigley, "The American Way of War," which traced the intellectual development of military strategy and policy, and Stephen Ambrose, with "Upton and the Army," in 1964.

To Fitzpatrick, the real offense to Upton's legacy was the book by Ambrose. Weigley can be forgiven for getting Upton wrong, Fitzpatrick said, because he wasn't writing a biography, but Ambrose's biography began as his dissertation (and was published verbatim in book form). 

"Ambrose was doing a biography but didn't dive into the sources he should have," Fitzpatrick said. "I think Ambrose read Weigley and just decided to echo Weigley."

Fitzpatrick poured through the letters of Upton, among other documents, with help from Sue Conklin, who at that time was Genesee County's historian, and the Holland Land Office Museum (Fitzpatrick was provided a CD of images of all the Upton letters in the HLOM's collection).

And going through Upton's letters isn't an easy task.

When arranging a visit to the County's history department, Fitzpatrick told Conklin his topic and Conklin told him, "Have you seen his handwriting?"

"No," Fitzpatrick admitted.

"You might want to consider another topic," was her droll response.

Fitzpatrick doggedly stuck with Upton's letters, however, which provided insight overlooked by Ambrose into Upton's thinking on military planning and civilian government.

Upton believed the Union could have ended the Civil War before the close of 1862 (it wouldn't end until 1865) if the military had been led by more competent officers, had been better equipped, staffed with more men, and Gen. George McClellan hadn't been hampered by interference from civilian bureaucrats, notably Secretary of War Edwin Stanton.

Even though Upton had been critical of McClellan during the war, his animosity toward Stanton was even deeper.

"He starts to twist history to make Stanton into the bad guy and McClellan a genius," Fitzpatrick said. "He wrote (in a letter) that he was having a hard time with 'the McClellan question,' as he calls it. It is really causing me trouble, he said. I hear him saying that he's having a hard time making the facts fit the story. Stanton was a meddling failure, not that it was McClellan himself who caused his failures."

The focus on Stanton, however, Fitzpatrick concludes, isn't because Upton is against civilian leadership of the military, but rather a concern that a war secretary with too much power could potentially use that position subvert the country's republican form of government.

Upton's reform ideas included mandatory retirement at age 62 for officers, rotation of officers between artillery and infantry, promotion on merit rather than seniority, and more training for officers.

While Upton was distrustful of democracy -- like Alexander Hamilton, fearing mob rule -- he saw the role of the military as protecting the nation's republican style of government. 

He took note of the dictatorial powers assumed by George Washington and Abraham Lincoln -- "arbitrary arrests, summary executions without trial, forced impressment of provisions, and other dangerous precedents" for Washington; and in Lincoln's case, the suspension of habeas corpus, arbitrary arrests, and the seizure of the railroads, along with "opening the treasury to irresponsible citizens" -- and concluded with a query. If that is what happens when good men without a genuine dictatorial impulse are president, what would happen if a true authoritarian took office and there was a war?

Upton wrote, "Let us not stultify ourselves by talking of the danger of an army, but rather reflect that the lack of one may at any time, in the space of two years, bring upon us even graver disasters than Long Island or Brandywine, or the two Bull Runs ... Our danger lies not in having a regular army but in the want of one."

In other words, Upton concluded a professional military, vowed to protect and defend the Constitution, as a safeguard against civilians, especially the president, grabbing dictatorial power.

Upton was one of several reformers, Fitzpatrick said, who saw the need for a more highly trained military and professional officer corps heading into the 20th century but in Upton's lifetime, most of Upton's reforms were thwarted by politics. For the North, another insurrection seemed impossible and there was no apparent external threat to U.S. sovereignty, so reform didn't seem like a pressing need. The South was distrustful of the Army in general following Reconstruction.

The lack of external threats prior to 1860 is also one reason Fitzpatrick thinks Upton's idea that the war could have lasted less than two years with better preparation is unrealistic.

While it's interesting to contemplate how history might be different if the Civil War had come to an end before 1863 -- no Jim Crow South, as one potential outcome -- it would have required the Union to have in place a large, well-trained and equipped Army by 1860 and Congress would never have approved the expenditure.

"The only reason to have a large, well-trained Army prior to 1860 was to repress the South and Congress would never have done it, so it's kind of a moot question," Fitzpatrick said. "You never could have ended the war in 1862 because you would never have gotten the Army you needed."

By 1881, Upton began suffering from debilitating headaches. He was transferred to the Presidio in San Francisco but managed to delay assuming the command for three months while he sought treatment in New York. A doctor diagnosed a sinus problem and provided an electric treatment, which brought no relief. Upton probably suffered from a brain tumor. He transferred to San Francisco but the headaches grew worse. On March 15, 1881, he wrote his last words. A two-sentence letter to the adjutant general to tender his resignation. He then apparently took his own life with a revolver.

He was proceeded in death by his wife, Emily, and they are buried together in Auburn.

At the time of his death, "Military Policy of the United States" was incomplete and unpublished. The manuscript passed to a friend and slowly it circulated among the Army's officers, gaining a reputation for its insightful look at military policy and strategy. In 1904, the War Department published the book minus three chapters.

One of the chapters dealt with Roman military history and when Fitzpatrick first came across it, he thought it rather odd. It was placed between two unrelated chapters, which was also odd.

Years later while continuing his research, Fitzpatrick recognized Upton probably wrote the chapter quickly in a period of inspiration and that it contained a lesson relevant the political situation of the time.  

While Upton admired President Ulysses S. Grant as a general, he was appalled by the corruption in his administration.

The Roman Republic possesses an interest, civil as well as military. "Forewarned is forearmed." Free people like the Romans admire heroism and love to reward military achievement.

No monarch in Europe has to day [sic] the power of an American President. With the consent of the Senate, from the Chief Justice down, he has the gift of more than 90,000 civil offices, any one of which save the judiciary, he can vacate and fill at pleasure.

Ever since the acceptance of the pernicious maxim "To the victor belong the spoils," these offices, like so much gold have been distributed by the senators and representatives to the men who have been, or maybe, most loyal to themselves or the party. 

With the people thus accustomed to executive corruption let us imagine, as under the Roman System, our President, in uniform, booted and spurred, galloping from the White House to the camp, his military retinue swelled by senators and representatives, fawning for favor and scrambling for spoils, how long it be asked would our liberties survive ... 

To historian, from example of Rome, might not fix the exact duration of the Republic, but he could make at least one prophesy of speedy fullfllment: At the first [meeting] held at headquarters the means would be discussed of prolonging the term of the President, if not the more startling propositon to declare him President for life.

"Upton wasn't writing about Rome," Fitzpatrick said. "It was about Ulysses Grant. He was writing at a time when Grant, running for a third term in 1880, was being seriously discussed. He had come to a different opinion of Grant. He had seen all the scandals of Grant's administration, and while he admired Grant as a general, the scandals appalled him.

"He's not talking about an imaginary president climbing on a horse. He's talking about Grant. If Upton was really a militarist interested in a military government, that wouldn't have bothered him at all."

Law and Order: 'Destro' helps find alleged drunken driver who fled accident

By Howard B. Owens

Michael Alan Shelter, 27, of Lewiston Road, Alabama, is charged with: DWI; driving with a BAC of .08 or greater; criminal possession of a controlled substance, 7th; aggravated unlicensed operation, 2nd; and leaving the scene of a property damage accident. At 2:23 p.m., deputies responded to a report of a motor-vehicle accident on Maple Road, Alabama, where the driver had fled the scene. Deputy Chris Erion and K9 "Destro" were dispatched and Shelter was located not far from the scene of the accident. The incident was investigated by Deputy Eric Meyer.

Aaron Robert Webb, 21, of West Combe Park, West Henrietta, is charged with unlawful possession of marijuana, failure to stop at stop sign and insufficient tail lamp. Webb was stopped at 11:57 p.m., Thursday, on Telephone Road, Pavilion, by Deputy Eric Meyer.

Joshua A. Aughenbaugh, 23, of Junction Road, Pavilion, is charged with endangering the welfare of a child and harassment. Aughenbaugh is accused of holding a child behind a running vehicle in an attempt to prevent the child's mother from putting the vehicle in reverse. Aughenbaugh is also accused of butting heads with the woman and shoving her. He was jailed on $500 bail.

Leaha RaeAnne Wimmer, 25, of Allen Road, Albion, is charged with grand larceny, 4th. Wimmer allegedly stole a debit card and made purchases with it.

Cuomo cancels appearance in Batavia

By Howard B. Owens

For a second time, Gov. Andrew Cuomo’s office has sent out invitations to members of the community for an announcement at City Hall only to cancel the same day. 

Cuomo’s office sent out invitations this afternoon and before 5 p.m. canceled the appearance. 

No reason was given for the cancellation. 

State Police investigating fatal truck accident on Thruway in Le Roy

By Howard B. Owens

A truck driver died this afternoon when his truck left the roadway on the westbound Thruway in Le Roy and headed into a line of trees.

The driver was ejected and found nearby with only a slight pulse. He died a short time later and a coroner was called to the scene.

Troop T, State Police, are investigating the accident, but have little to go on at this point. A spokesman said there is no apparent cause for the driver to have lost control of the truck and no prior reports of erratic drivers in the area.

The truck was apparently making drop-offs and deliveries in the area and the nature of its cargo is not currently available.

Both lanes are now open, but the shoulder in the area of mile marker 392 is closed, making travel through the area slower.

The name of the driver has not been released yet pending notification of his family.

Le Roy fire and Le Roy ambulance responded to the scene.

(Initial Report)

Our news partner 13WHAM contributed to this story.

Gov. Cuomo to make announcement in Batavia tomorrow

By Howard B. Owens

Gov. Andrew Cuomo's visit to Batavia has been rescheduled and he will be at City Hall at 1:40 p.m., tomorrow.

It's possible -- though no official will confirm it -- that Cuomo is here to announce Batavia is the winner in the Finger Lakes region of the $10 million Downtown Revitalization Initiative prize.

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