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Legal loophole: Cayuga County DA lobbies to change DWI law, punish post-prison violations

In March 2013, David Manwaring was driving by the Fingerlakes Mall when New York State Police spotted him spinning his tires and veering onto the shoulder of Clark Street Road. At the time, troopers said he was pulled over and registered a blood alcohol content of .08 percent, and he was charged with his fifth drunk driving offense in less than 10 years. 

Manwaring ultimately pleaded guilty to driving while intoxicated, a class D felony, and first-degree aggravated unlicensed operation of a motor vehicle, a class E felony, and was sentenced to 1 1/3 to four years in prison plus five years post-release supervision.

After serving the full four years in prison, Manwaring returned to Cayuga County where he was supposed to start his post-incarceration probation. But the county probation department said the 51-year-old never showed. 

On Tuesday, Manwaring appeared in Cayuga County Court for violating the terms and conditions of his probation. District Attorney Jon Budelmann said Manwaring had failed to report to his probation officer and continued to consume alcohol. 

"He refused to sign the orders of conditions and told (the probation department) flat out that he refused to stop drinking, he had been drinking alcohol since he got out ... and if he wanted to have a beer, he would," Budelmann said. 

However, the district attorney's office said there was not much the court could do about it. 

In 2010, New York State enacted Leandra's Law, which requires all convicted drunk drivers to install ignition interlock devices on vehicles they own or operate. It also added a period of probation or conditional discharge upon their release from jail or prison, and made it a felony to drive drunk with a child passenger in the vehicle. 

But Cayuga County Assistant District Attorney Diane Adsit said there was something missing, as the law did not address punishment for those who violated their post-incarceration supervision. 

"The bottom line is that we have a mandatory sentencing law in place ... but we have no legal means to enforce that supervision sentence with incarceration," Adsit said. 

In one case, Budelmann said the court tried to impose the maximum incarceration on a repeat offender who'd twice violated his probation in the county. But the state Supreme Court's Appellate Division said they did not have that authority. 

In 2016, Claude Zirbel was resentenced to prison after his second violation of probation in Cayuga County. Like Manwaring, Zirbel was previously sentenced to 1 1/3 to four years in prison — the minimum prison sentence for felony DWI and driving without a license — for his fifth drunk driving offense. He has since been convicted of another DWI in Cortland County. 

Budelmann said the intent was to sentence repeat DWI offenders like Manwaring and Zirbel to the minimum assuming they could be resentenced to the maximum if they "screwed up" on probation; the maximum for a D felony DWI is 2 1/3 to seven years in prison. 

"There are already statutes enacted that ... authorize punishment for violating the terms of a conditional discharge and probation," Budelmann said. "I think we assumed the normal provisions would apply — up to the maximum exposure." 

But the appellate division disagreed.

On Tuesday, Zirbel was restored to probation following an appeal by assigned defense attorney David Elkovitch. Elkovitch successfully argued that Zirbel "maxed out his underlying time" and could not be sentenced to additional prison time for the violation. 

"We agree with defendant that the court lacked the authority to sentence him to more prison time after his initial term of imprisonment was completed," the Appellate Division said in its decision

Knowing this, Adsit said the courts now have two options when a DWI offender violates their post-release supervision: they can restore the defendant to probation or conditional discharge or they can terminate the probation or conditional discharge. If terminated, the offender would no longer need an ignition interlock device or supervision. 

In Manwaring's case, the probation department asked the court to revoke the defendant's probation as Manwaring made it clear he would not comply with the terms. However, Judge Mark Fandrich said he was inclined to restore Manwaring to keep the ignition interlock device on his vehicle. Driving a vehicle without an interlock device is a class A misdemeanor punishable by up to one year in jail. 

"Probation feels it is a waste of their valuable and limited time to even supervise these people ... since the court cannot even put them in jail (for a violation)," Adsit said. "Other than personal integrity, there is no reason such DWI defendants who already served jail or prison time to comply with probation. That becomes a personal safety issue for probation officers and a public safety issue for everyone." 

Budelmann said his office has reached out to the state district attorney's association and Mother's Against Drunk Driving to push for changes in the law. At this point, he said, the Legislature has two options: to get rid of post-release supervision and ignition interlock devices — which would be a "horrible idea" — or to make it so courts can impose incarceration for those who violate their conditions. 

"They've made this good, groundbreaking law (Leandra's Law) ... and if they don't fix it, it's as if it never happened," Budelmann said. 

Richard Mallow, New York's Executive Director of MADD, agreed. 

"Mothers Against Drunk Driving firmly believes that the courts should be able to extend the terms of punishment if a defendant violates the conditions of his or her probation, even if the defendant has served their full prison sentence," he said. "The Assembly and Senate should reintroduce ... legislation to fix this horrific loophole and create stronger penalties." 

Downtown Auburn block's renovation to begin soon, one tenant signed

After going through "every inch" of the buildings, KyleCroft Development is ready to begin renovating the Nolan block.

Asbestos abatement at the downtown Auburn buildings — 41, 43-51, and 53 Genesee St. — will take place April 18 through the end of May.

KyleCroft President Grant Kyle said the renovation will cost between $2 million and $2.5 million, and continue for 12 to 18 months. The result will be five storefronts and 14 apartments. 

However, KyleCroft's only current storefront tenant will open this fall, before the rest of the block is finished: Octane Social House. Owned by Rob and Joni Otterstatter, the 2,500-square-foot coffeehouse will also feature 28 self-serve taps of craft beer, a piano lounge, live music, a used book library, two classrooms, a vinyl record lounge, yoga lessons and more. One entrance will be located at 53 Genesee St., next to the Pawn King, but Octane Social House will also occupy the two-story addition to the rear of the building, facing Loop Road. Its opening is scheduled for Oct. 6.

The block's other storefronts will be 1,340, 1,000, 830 and 630 square feet, Kyle said. He hopes to fill them with retailers, eateries and other tenants that could benefit the residents of the Nolan block's apartments, as four of the storefronts can be accessed from a hallway in the building. The hallway will be linked to an elevator KyleCroft is installing to make the building more accessible. The elevator will have entrances on Loop Road and Genesee Street, Kyle said. However, in order to preserve the block's historic character, storefront tenants will have limited signage options, he added.

Eight of the 14 apartments will be 900 to 1,200 square feet, with two bedrooms and one bath, Kyle said. The other six will be 600 to 900 square feet, with one bedroom and one bath. Rent is projected to be $850-$1,500 a month. Amenities will include 33 off-street parking spaces, a 500-square-foot furnished community room with a home theater, and decks for two of the apartments. Kyle also highlighted the block's proximity to downtown businesses, such as the Play Space, whose child-friendly activities could make his apartments attractive to young parents, he said.

Along with Lyons National Bank and Aflac, the Play Space is located in another KyleCroft building: the former HSBC bank next door. KyleCroft completed that project in spring 2017. KyleCroft purchased the two properties within months of each other the year prior. Though renovating the concrete bank pushed back the Nolan block project, Kyle said, the bigger delay was due diligence: floor plans, permits, an asbestos survey and more. The only financial support KyleCroft has received for the project is about $122,000 in tax relief from the Auburn Industrial Development Authority.

"The dollar amount (of the project) warrants that we move carefully with what we're getting into," Kyle said. "We went through every inch of the building getting everything quoted out."

The block takes its name from the Nolan's Shoes store located there until 2004, next to the Nolan's Sporting Goods store where the Pawn King and Year of the Dragon Tattoo are now located. Its storefronts then housed various businesses until the buildings were condemned in 2014. KyleCroft's Nolan Block LLC bought the block for $255,000, according to Cayuga County property records.

Batman begins: Cayuga County legislator enters Auburn-area NY Assembly race

Keith Batman, a former chair of the Cayuga County Legislature and past Scipio town official, has formally announced that he will seek the Democratic nomination in the 126th Assembly District race. 

Batman created a campaign committee last month but said at the time he hadn't made a final decision on whether he would run for state Assembly. 

Nearly two weeks after he filed paperwork with the state Board of Elections to create the Batman for Assembly committee, he announced he is vying to become a state legislator. 

"As assemblyman, I will bring the attitude toward work taught me by father and mother: first and foremost being present, doing the job and treating all people fairly," Batman said in a statement. "Whether in Albany or Auburn, Onondaga, Cortland, Chenango or Cayuga counties, I will show up, work and deliver." 

Batman is serving his second term as a Cayuga County legislator representing District 7, which is comprised of Ledyard, Scipio and Springport. In 2016 and 2017, he was chairman of the county Legislature. 

Before being elected to the Cayuga County Legislature, Batman was Scipio town supervisor and a member of the Southern Cayuga school board. He has a long career in education, including a stint as dean of continuing education at Cayuga Community College. 

"I am a middle-class worker, whose parents taught me the principles of hard work and responsibility to family and community," Batman said. "The first and primary job of an assemblyperson is to represent the district and its citizens, get funding for projects, and help find solutions to local problems. You can count on me to listen, understand, and act." 

Ian Phillips, chairman of the Cayuga County Democratic Committee, said the party will discuss an endorsement in the Assembly race "in the coming weeks." 

Auburn Mayor Michael Quill added, "I am excited about Keith's bid for the Assembly 126 seat. He will bring to the Assembly the same focus and concern for our city that he has brought to the Cayuga County Legislature." 

If Batman secures the Democratic nomination, he will likely challenge Assemblyman Gary Finch. Finch, R-Springport, has been in office since 1999. 

Finch hasn't announced whether he will seek re-election this year. He could not be reached for comment Wednesday. 

Democrats are hopeful that they can win this seat in 2018. Finch has faced major party opposition in each of the past two elections. 

In 2014, Democratic candidate Diane Dwire received significant backing from the Assembly Democrats' campaign committee. The group invested hundreds of thousands of dollars in the race, most of which was used to pay for Dwire's television commercials. 

Despite being outspent, Finch won the race by 10 points. He defeated Dwire, D-Camillus, again in 2016. 

Dwire won't seek the Democratic nomination for a third time this year. She is supporting Batman's campaign.

"We need more people like Keith in public service and in the Assembly," she said. 

Republicans hold an enrollment advantage in the 126th Assembly District, which covers parts of Cayuga, Chenango, Cortland and Onondaga counties. As of April 1, there are 31,903 active GOP voters and 25,911 registered Democrats in the district. 

Auburn projecting $70K loss in parking revenue for 2018-2019

The city of Auburn has proposed hiring a new attendant at the Lincoln Street parking garage, yet is forecasting a $70,000 loss in parking revenues from the current fiscal year. 

According to the preliminary 2018-2019 city budget, the city expects to collect $405,000 in parking fees from off- and on-street parking meters, parking garage fees and parking permits. During the 2017-2018 fiscal year, which will end June 31, the city budgeted for $475,000 in parking revenue. In 2016-2017, the city actually collected around $415,500 from parking fees. 

City Treasurer Robert Gauthier stressed the revenue loss has been estimated "conservatively." 

"We've got to be conservative when it comes to revenue," Gauthier said. "We don't want to be over budget and have a shortfall." 

He explained the loss in revenue will be due to lost parking spaces. The Lincoln Street parking lot permanently closed in February as construction began on the visitor center. Now that the lot is closed, more people are parking in the garage, he said, which offers two hours of free parking. Council approved free two-hour parking in June as part of the 2017-2018 city budget. 

Some parking spots along Genesee Street will be temporarily unavailable over the summer due to repaving.  

Gauthier said once the expansion of the Court Street parking lot is completed, revenue will increase. The city plans to double the size of the current lot. The expanded lot will have 42 parking spaces and work will be done to improve stormwater management, traffic circulation and pedestrian access.

In a budget presentation Superintendent of Public Works Mike Talbot gave to the Auburn City Council on April 5, he requested funds to hire one additional full-time person to maintain the Lincoln Street parking garage and help with maintenance of the Equal Rights Cultural Heritage Center across the street as well. It will cost around $52,000 a year to hire another laborer. 

Despite adding a full-time position at the parking garage, the total budget for the department of public works is expected to rise by only about 1 percent, Talbot said last week. 

The Auburn City Council will meet Thursday and at that time, the remaining department heads from municipal utilities, planning and economic development, the fire department, city clerk, corporation counsel and the mayor's office will give their budget presentations to the council. Councilors are also expected to give their first public comments on the proposed budget during the meeting. 

Kevin Rivoli, The Citizen 

Cayuga County Legislator Keith Batman delivers the State of the County address in March 2017. Batman, a Democrat, is running for state Assembly. 

DOJ sues Sterling Renaissance Festival owner for sexual harassment

The Department of Justice announced Wednesday that it has filed a lawsuit alleging that Douglas Waterbury, an Oswego landlord and owner of the Sterling Renaissance Festival, sexually harassed tenants.

The lawsuit alleges that since at least 1990, Waterbury has sexually harassed several women who have lived in his properties or inquired about them, violating the Fair Housing Act. His conduct, the lawsuit says, has included demanding female tenants engage in sex acts with him to obtain or keep housing, unwelcome sexual contact, offering housing benefits in exchange for sex acts, and refusing needed maintenance for tenants who refused his advances. The DOJ seeks monetary damages to compensate the victims, civil penalties and a court order barring future discrimination.

"Subjecting tenants and those looking for housing to harassment and demands for sex is unacceptable," Acting Assistant Attorney Gen. John Gore said in a news release.

The lawsuit was filed in the U.S. District Court for the Northern District of New York. It also names Waterbury's wife and business partner, Carol A. Waterbury, and two companies, E&A Management and Ontario Realty. It's through the latter company that Waterbury bought the Sterling Renaissance Festival, a summer attraction that brings thousands to the northern Cayuga County town, in 2008. The festival has faced financial difficulties in recent years, including foreclosure proceedings Waterbury was able to avoid by paying off tax debt.

A similar lawsuit was filed in August by nonprofit CNY Fair Housing and six women who claim to have been harassed by Waterbury. Two of the plaintiffs said that when they asked Waterbury to address a broken furnace and a mice infestation, they were told that they "were not as 'fun' as he wanted them to be, that they were not having sex with him as frequently as he wanted, and that they should not use protection," the lawsuit says.

Another woman, who said she worked for the Sterling Renaissance Festival in 2010, told a reporter for The Palladium-Times in Oswego that Waterbury told her in public that her costume didn't show enough cleavage, and then adjusted the costume for her. 

Waterbury directed comment on the DOJ's lawsuit to his attorney, who did not respond to a request for comment. Waterbury did say that the 42nd season of the Sterling Renaissance Festival will take place as planned beginning in July.