park avenue

Use a gun, go to prison.

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

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

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

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

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

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

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

Simmons made no statement in court today.

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

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

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

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

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

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

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

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

The trial for a Batavia man accused of breaking into a house on Park Avenue in January got under way today. Akeem M. Simmons, 23, is one of two men accused of first-degree burglary in the crime.

He is also accused of first-degree criminal use of a firearm for allegedly possessing a loaded weapon during the commission of a crime, even though the weapon was allegedly found on the other defendant, 18-year-old Nathaniel R. Davis. Both are Class B violent felonies. The Davis case is still pending. They are also accused of fourth-degree conspiracy.

During opening statements this morning, District Attorney Lawrence Friedman told jurors that two people were seen running out of the house.

"On January 14 of this year, a resident at (X) Park Ave., Batavia, was looking out her window and noticed two people go up the driveway of (X) Park Ave., go around the back part of the house and break in," Friedman said. "She then called 9-1-1 to report the incident."

According to a witness, two people ran out the back in a southwesterly direction along a path behind St. Paul's Lutheran Church. WIth law enforcement converging on the scene, the duo split up -- one ran east toward State Street and the other ran west toward Lewis Avenue.

Davis, who ran east, was apprehended immediately. Simmons, on the other hand, was chased by police and lost during the chase. When officers failed to catch him a manhunt ensued with Batavia PD, the Sheriff's Office, State Police, a K-9 and a helicopter. He was apprehended in about 45 minutes.

Deputy Brian Thompson and his K-9 Pharoah found Simmons hiding under a tarp at a nearby residence, Friedman told the jurors. Furthermore, a black hoodie, gloves, a black and white bandana, and a baseball hat with red trim on the brim, was also found in Simmons' possession.

According to the DA, when Simmons was interviewed, he gave alternate excuses of why he was running from police and denied knowing Davis.

"Search warrants for both men's phones found that Davis had a contact nicknamed Kemo," Friedman said. "Upon investigation, it was found that the number in Davis' phone belonged to Simmons. This suggests that the phone evidence links Simmons to Davis, as well as the crime committed."

He wound up his opening statement telling jurors that testimony from Davis is a possibility.

"Davis's credibility will be attacked," Friedman said. "Don't get hung up on Davis, listen to the proof to find the defendant guilty of the crime."

While they didn't get a chance to steal anything, according to a previous statement by a detective in the case, it is still burglary by virtue of the two breaking into the house with the intent to commit larceny.

"When all is said and done and the proof is in," Friedman said. "I will ask the jury, based on the evidence, to find Simmons guilty as charged."

Subsequently, Defense Attorney Thomas A. Burns told jurors that it makes perfect sense that they were told that opening statements are not evidence.

"Consider the court process, listen to the facts of the testimony and evidence to prove that Simmons did not commit the crime he is charged with," Burns said.

The defense attorney told the jurors to keep an open mind and see the evidence showing Davis, alone, entered the house; it was Davis who was apprehended running away from the house, and it was Davis who was Tased and when that did not stop him, it was Davis who was tackled by police.

In addition, Davis was also found with a loaded weapon -- which, when examined by police, was found to be capable of causing injury or death -- plus a screwdriver, Burns continued. And upon examination of the gun, no DNA links Simmons to the weapon, nor do any of the fingerprints found on it.

"The neighbor will testify that she saw two people at the Park Avenue home, yet she cannot describe them," Burns said. "She told police that she heard a sound of two people going in and coming out."

Burns also informed the jury that at the time Simmons was found, he had an outstanding parole warrant.

"The people have the burden of proof in this case," the defense attorney said. "If you listen to Davis's testimony, not only listen to what he is saying, listen to what is behind what he is saying.

"You are asked to judge the credibility of people. Davis is not on trial at this point, Simmons is," he continued. "When you hear all the evidence, at the conclusion I ask that you return a verdict of not guilty."

Testimony continues today with Judge Robert Noonan presiding.

Between Picnic in the Park and Mark and Mary Holmes' 4th of July garage sale, spectators had a lot of attractions to choose from on Sunday.

Mark and Mary, who are brother and sister, have a big sale in front of Mary's home on 18 Park Ave. -- right across the street from Centennial Park -- around every major holiday. They donate the proceeds to different area charities; this time, the money went to the Junior Grange in East Pembroke.

Many of the items they sell are recyclable, including these wind chimes made of empty cans:

Mark and Mary may have another sale on Labor Day, depending on what their schedule is like. They are currently in the process of opening up a used bookstore in the Batavia Industrial Center on Harvester Avenue. 

The store will be called "Anything Goes: Books and More," and they hope to have it up and running by the end of the month.

They had some books and movies on sale Sunday, you might say as a sort of "preview":

"Anything Goes" will be something quite different for Batavia. It will be a sort of hybrid bookstore/flea market/antique store/forum for charities, among other things.

In addition to selling used books, VHS tapes, antiques, and other needful items -- most of which will cost $5 or less -- the Holmes' will have a corner of the store dedicated to area charities. A jar will be available for donations, and a different charity will be featured each week.

"This is a way for us to give back to the community," Mary said, pointing out the tremendous amount support she and her brother have received from the people of Genesee County during their sales.

Anyone who would like more information about the store, or would like to volunteer to help set things up, may call Mark at 591-2669 (leave a message).