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Judge admits error, sets businessman free

Admitting that he goofed, City Judge Thomas M. DiMillo canceled a businessman's conviction for building code violations and freed him from jail Tuesday.

But the ruling doesn't mean the city's case against Patrick S. McFall, owner of the former Peters Dry Cleaning, is over.

"The case goes back to square one," Corporation Counsel John J. Ottaviano said.

McFall, 41, of Newfane, will be back in Housing Court at 1 p.m. July 5 for a pretrial conference leading up to his second trial, one in which he can have a jury if he wants one.

He wasn't given that option prior to the first trial.

"It was Judge DiMillo ruling on his own actions," said Deputy Corporation Counsel Matthew E. Brooks, the Housing Court prosecutor. "He admits he made a mistake."

However, McFall's attorney, Jon R. Wilson, said he is researching whether trying McFall again on building code violation charges would constitute double jeopardy.

Thursday, DiMillo sentenced McFall to seven months in Niagara County Jail.

He had previously found McFall guilty of failing to comply with city orders to clean up the wreckage of the Willow Street cleaning store that partially collapsed Dec. 15.

Wilson and his father, Jon L. Wilson, hit the law books and came up with the argument that the judge should have offered McFall a trial by jury.

Customarily, people charged with violations are not entitled to jury trials. But the Wilsons found a section of the state's Executive Law that said that even if a local charge is a violation, a jury should be involved if the maximum penalty is more than six months in jail.

Brooks said the maximum sentence McFall faced was a year in jail and a fine of $1,000 per day of violation.

"I hate to run another trial. I already convicted, already proved [the charges] once. I guess I'll have to do it again," Brooks said.

Besides the constitutional issue, Jon R. Wilson said he was prepared to argue that Brooks never adequately proved McFall's ownership of the store. He said he objected during the trial on hearsay grounds, but DiMillo rejected the objection.

Legally, McFall no longer owns the store. Earlier this month, he basically gave the property to Eddie Person of West Avenue -- "subject to all liens of record," someone wrote by hand on the $1 deed on file at the County Clerk's Office.

Those could include unpaid taxes and the potential $1,000-a-day fine for not cleaning up the debris at the Willow Street site.

"Our office didn't have anything to do with the conveyance. We didn't draw up any of the documents. We didn't handle the closing," Jon R. Wilson said. "The city's position is, it's not relevant as to when the [code] violations occurred. It's relevant for future violations."

Ottaviano called the property transfer "reprehensible."

Meanwhile, the property continues to be listed by the state as a Class 2 inactive hazardous waste site because of cleaning chemicals in the ground, a situation that dates back to long before McFall bought the business in 2007.

email: tprohaska@buffnews.com