A Buffalo man was sentenced Tuesday to 30 days in the Erie County Correctional Facility for stealing more than $50,000 from a trust established to pay the medical expenses of a cancer-stricken Allentown restaurateur.
Scott J. Huber, 36, also was sentenced to five years of probation and must complete 1,000 hours of community service.
Senior Erie County Judge Michael L. D'Amico also instructed Huber to write letters of apology to the family of the late Mary L. Tomaselli, who had been owner of La Tee Da restaurant on Allen Street, and to those who organized a benefit to raise money for her medical expenses.
"Don't send out an email," D'Amico told Huber. "Just sit down and write your apology to them."
"I don't know if jail was necessary or proved anything," said defense attorney Andrew C. LoTempio, who represented Huber.
LoTempio sought a sentence of probation for his client.
Huber, who admitted his crime and has been remorseful, already has repaid most of the money and will make full restitution, LoTempio said.
Tomaselli died March 16, 2011,
James C. Tomaselli of Kenmore said he hoped for a longer jail term for the man who victimized his sister.
"It wasn't about the money," James Tomaselli said. Huber's crime caused angst for his terminally ill sister, as well as for family members, James Tomaselli said.
"I personally felt the 30 days was not sufficient," he said of the jail sentence.
After Mary Tomaselli was diagnosed with colon cancer in early 2010, a benefit was organized to raise money for medical expenses. The April 2010 benefit raised more than $85,000. Huber had signature authority for a trust account opened by the daughter of Mary Tomaselli.
About $36,000 of the trust was spent on legitimate medical expenses, prosecutors said.
Huber was supposed to disburse money for Tomaselli's medical needs, but started helping himself to it.
"Unfortunately, he was having financial difficulties himself," LoTempio said.
Huber took the money, incrementally, and planned to put it back before getting caught, LoTempio said.
When the daughter tried to withdraw money, she was told there were insufficient funds. That's when she confronted Huber.
There was not enough money in the trust to pay for the type of memorial service that Mary Tomaselli had wanted, her brother said.
As a restaurateur, she wanted to feed everyone who attended her service, James Tomaselli said.
The cost would have been about $20,000 to feed the 1,000-plus people who attended her service in Asbury Hall at Babeville, he said.
"The money just wasn't there at the time," he said.
Huber pleaded guilty last month to second-degree grand larceny and could have faced five to 15 years in prison.
Erie County District Attorney Frank A. Sedita III said, "This case was all about trying to achieve justice on Mary Tomaselli's behalf."
"I hope the Tomaselli family is satisfied with our efforts."
Sedita praised prosecutor Paul E. Bonanno for putting together the case against Huber.
Huber spent the money for personal expenses, as well as establishing his own insurance agency and making capital improvements, Sedita said. One of those expenses was the installation of a heated sidewalk in front of his Delaware Avenue office.
"Not only did the defendant abuse a position of trust and steal from somebody who had a terminal disease and was suffering, but he turned around and used the money for petty and unnecessary purposes," Sedita said.
"Putting in a heated sidewalk? This is not somebody who stole to feed a starving family," Sedita said. "This is someone who stole so he wouldn't have to shovel snow."?
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