Judge refuses bid to increase bail for alleged heroin dealer

July 22--A prosecutor's effort to substantially increase the bail on a major heroin-fentanyl drug dealer authorities believe is responsible for one fatal overdose and other overdoses failed Tuesday when a Buffalo City Court judge scolded him for offering "hearsay" evidence to try to sway her decision.

"If the people want to punish Mr. Hamilton, then prosecute him," Judge Betty Calvo-Torres told Assistant District Attorney James Gardner, who had requested the hearing, though he never got the chance to state that he wanted the bail upped from $20,000 to $250,000.

The issue of Hamilton remaining free on bail comes at a time when police, firefighters and other first responders are dealing with large numbers of people overdosing on opiates in what has been described as a public health crisis. Since July 1, according to Buffalo Fire Commissioner Garnell W. Whitfield Jr., firefighters have responded to 45 overdoses -- 24 in the last week.

Late last week over a 24-hour period, city police responded to 10 overdoses, one of them fatal. Narcan, an opiate antidote, has been used frequently to revive the addicts, who lose consciousness and the ability to breathe. Authorities also say the 119 deadly overdoses in 2014 could double by the end of 2015.

Alarmed by the increasing numbers of overdoses in recent days, a local health insurance company on Tuesday reinstituted the PainkillersKill campaign.

"To combat this alarming and disturbing trend, BlueCross BlueShield of Western New York announced today the relaunch of the multifaceted awareness campaign, PainkillersKill, in collaboration with more than 50 community partners," said Gretchen Fierle, spokesperson for the health insurer. "The recent spike in overdoses has made it abundantly clear that increased education, awareness, and conversation is still needed within our region."

Hamilton, 26, of Buffalo, was arrested last Wednesday for possession of 2,100 bags of heroin and fentanyl, a shotgun, and two rifles after Erie County sheriff's investigators traced the deadly overdose of a Concord man back to Hamilton. He was allegedly selling a highly potent mixture of heroin and fentanyl and claiming it was just heroin.

Fentanyl, unlike heroin, is a laboratory-manufactured opioid often prescribed for cancer patients, and three to five grains of it, the size of table salt grains, can kill, police and health officials say.

At Hamilton's arraignment last week, Assistant District Attorney Meredith M. Mohun did not make a bail recommendation because prosecutors are not permitted to do so in Calvo-Torres' courtroom, District Attorney Frank A. Sedita III said Tuesday, in again expressing frustration that Hamilton was allowed to remain free on the $20,000 bail.

"The essence of our bail argument, had we been permitted to make it, is that the charges are so serious and come with so much jail time, that the defendant would be a serious flight risk if allowed to remain at large," saidn Sedita, following the hearing.

Hamilton appeared at the hearing with his lawyer, Michael D'Amico.

The "safety of the community," Gardner argued, was at stake because of several overdoses in Erie County and the types of narcotics Hamilton possessed and sold. Hamilton, Gardner also told the judge, faces drug charges in Cheektowaga from last March and remains under investigation in that community.

Calvo-Torres demanded to know why these points were not raised at last Thursday's arraignment.

"There was no argument made at the time of the arraignment," said the judge, adding that her responsibility is to make sure the defendant appears in court. She added that Hamilton was indeed present Tuesday and that no evidence had been presented regarding a link between the overdoses and Hamilton, describing it as hearsay.

"I see no reason to change bail," Calvo-Torres said.

Hamilton on Tuesday waived his right to a felony hearing to determine if there was enough proof to support the charges. The judge held the case for a grand jury review.

Outside the courtroom, D'Amico said, "Quite frankly, I don't think bail of $20,000 is low. It's significant."

If Hamilton is convicted of the felony drug charges, he could face a minimum of six years and a maximum of 15 years imprisonment, D'Amico said, adding, "I don't think they will be able to connect my client to those overdoses."

The Buffalo News received a copy of last Thursday's arraignment transcript from the judge's staff. In it, D'Amico sought $10,000 bail on the more severe felony charges, after pleading not guilty on behalf of his client. Calvo-Torres, in the transcript, set bail at $10,000 for each of higher felony charges, for a total of $20,000.

Mohun did not address the amount of bail, according to the transcript.

Mohun, Sedita explained, was silent on that matter because she had previously been told by the judge that the prosecutor is not permitted to make bail recommendations in her courtroom.

"What confounds us is the judge chiding us Tuesday for not giving her additional details at the first court appearance," Sedita said. "Then when we provide details, she doesn't raise the bail one red cent."

Evidence against Hamilton, Sedita said, "will be promptly presented to a grand jury."

Two Buffalo defense attorneys who asked not to be identified contacted The News late Tuesday to say that is has been there experience that Calvo-Torres always treated defense lawyers and prosecutors fairly in her courtroom.

email: lmichel@buffnews.com

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