2010 in review Berne

Town court busy after two dogs are shot and two are dogs neglected,
Bridge rebuilt, store changes hands, and mill stays open

By Zach Simeone

BERNE — After two cases of dog cruelty shook the community, residents Robert Bushnell and Wendall Smith made multiple visits to town court this year.

An old and damaged bridge that some feared could deny a small community access to the outside world was rebuilt. A local deli was revamped by new owners who wanted to offer their customers more. And a longstanding sawmill, nearly brought down by the five feet of snow that hit the Helderbergs in February, was revived.

In the dead of last winter, Lee Crosier and Maureen Shea were taking a walk through their neighborhood, and passed by Wendall Smith’s property. It was about 1 p.m. on Saturday, Feb. 13.

Shea and Crosier sometimes checked on Smith’s dogs, two German short-haired pointers, aware that he would sometimes disappear for days at a time, they said, leaving his dogs without proper food, water, and shelter. But what they saw this time was unlike anything they had ever seen.

One dog was alive, but extremely emaciated; the other, a half-eaten carcass that lay headless nearby. One of Smith’s pets had eaten the other.

“The water container was frozen solid,” Shea told The Enterprise then, describing the scene. “There was a carcass laying in front of the doghouse, and I thought it was maybe a roast or another animal carcass that he had thrown in there for the dogs to eat. And then we saw the other dog’s head, and the living dog was emaciated, and we realized that he had never fed them…It was the most horrible thing I think I’ve ever seen.”

“He hadn’t been home since probably Thursday,” Crosier said of Smith. “We went back and looked, and we saw that the carcass was in one spot, and the dog’s head was in the other,” she told The Enterprise.

Smith, then 24, was arrested later that week by the Albany County Sheriff’s Department.

He was charged with two counts each of aggravated cruelty to animals under Buster’s Law, a Class E felony; failure to provide sustenance, a Class A misdemeanor; and failure to provide appropriate shelter, a violation.

But the felony charge under Buster’s Law was dropped, while the misdemeanor charges and violations remained in place.

Berne’s court clerk, Patricia Boice, said this week, “That case is still pending and it will probably be scheduled for trial.”

Buster’s Law is named after a 1997 case in which an 18-month-old tabby cat named Buster had been doused with kerosene and burned to death by a Schenectady teen. The state legislature passed Buster’s Law, which created the felony category of “aggravated cruelty to animals,” punishable by up to two years in prison and a $5,000 fine.

“The charges were dismissed because, quite frankly, they couldn’t prove the felony charges that were filed,” said Smith’s attorney, James Walsh, after Smith’s arraignment at Berne Town Court. “They’re going to make allegations, but Mr. Smith fed his dog; he watered his dog; the dog was not malnourished; the dog was not emaciated. This was a dog that was well taken care of, and Mr. Smith is intending on proving that; he’ll prove it through [veterinary] records, and he’ll prove it through other means as they’re necessary.”

Undersheriff Craig Apple had said after the arrest that, while Smith had been charged under Buster’s Law, it would be difficult to convict him in this case.

“Buster’s Law is designed for someone who is doing something depraved or sadistic to the animal, torturing the animal; this person basically neglected the animal,” Apple said.

Smith had moved into the neighborhood with his girlfriend the previous summer, Crosier said. Shortly after, there were two dogs living there, tied to a tree in the backyard. The dogs barked day and night, Crosier said, and she began getting phone calls from her neighbors, who thought that the dogs were on her property, being right next door to Smith’s.

“I had never met these kids, so I went over and told them there’s a problem with the dogs, and he apologized,” Crosier said of Smith.

Weeks later, the around-the-clock barking began again, but when Crosier paid him a second visit, he dismissed her, she said.

When she contacted the town’s dog control officer, Cheryl Baitsholts, Crosier was told that she needed some form of proof that the dogs were being neglected.

Baitsholts later pointed to a relevant distinction between her title of dog control officer, and being an animal control officer.

“Dog control officers aren’t allowed to investigate and prosecute cruelty,” Baitsholts told The Enterprise. “An animal control officer is a different title all together; they can prosecute neglect and cruelty. An animal control officer has an education in neglect…They have peace-officer status; us dog control officers don’t. The state requires every town that issues licenses to have a dog control officer. With that title, you put up with a lot of crap, but you have no power,” she said.

But this was not the first time Baitsholts was involved with Smith’s dogs.

“He called 9-1-1 because his dog was literally tied up in those plastic coated cables you buy to tie your dog outside,” Baitsholts said of Smith then. “Somehow, the dog got all wound up in it overnight.” The cable was wound so tight around the dog that Baitsholts had to cut it off with bolt cutters.

“He carried the dog in the house and was all worried about it,” she said of Smith. “At least he seemed like he cared at the time.”


Robert Bushnell, 51, pleaded guilty this summer to killing Amy Tubbs’s two dogs last year. He had been charged with two counts of overdriving, torturing, and injuring animals — a misdemeanor — and two counts of dog stealing, also a misdemeanor.

On Aug. 10, Bushnell was sentenced to three years’ probation, and was not ordered to pay restitution for the dogs, as had been discussed during his arraignment. Tubbs had said that each dog had cost her $1,000.

“I don’t necessarily even want the money,” Tubbs told The Enterprise after the arraignment. “At this point, if he’d make a donation to an animal shelter, that’d be fine.”

The case is rooted in the events of Sept. 12, 2009. Tubbs, a house principal at Farnsworth Middle School, let her two dogs out of her home as she had every morning. They usually stayed out for 10 to 20 minutes, she said.

But Rocky and Mocha never came back.

When their bodies were discovered shortly after about three miles from her home, an anonymous donor offered $1,000 for information leading to the arrest and conviction of the person who killed the dogs. A neighbor soon offered another $1,000.

Evidence from the necropsies of the dogs suggested that they had been shot at close range with buckshot. Tubbs said then that she knew two of her neighbors were not pleased with her dogs. Bushnell was one of those neighbors. Tubbs also said that her dog once brought home a dead chicken from a neighbor’s property.

Bushnell told Berne Judge Albert Raymond III in June that, on that morning in September, he went outside to feed his animals when he heard noise coming from his chicken coop.

Upon investigating, he found that Tubbs’s dogs had made their way onto his property, as they had reportedly done in the past, and were breaking into the coop.

“I went into the house, and got my gun,” Bushnell told the court. “I came out and, by that point, the one dog was in the chicken coop, and the other one was trying to get in.”

One dog, he said, had already killed one of his chickens by the time he was able to lure them away. Bushnell said he opened the door to his truck to guard himself and, when one of the dogs approached him, he stepped out of the way, and the dogs jumped into the truck.

“So I got in the truck and drove away, and shot them,” Bushnell said, quietly mumbling by the end of the story.

After Bushnell pleaded guilty in June, Tubbs talked with Bushnell, her neighbor, outside of the Berne Town Court for the first time since the incident.

“I’ve moved on with my life,” Tubbs told Bushnell, “and I want you to be able to move on with yours.”

Water under a troubled bridge

At the end of 2009, the Kaehler Lane Bridge was one of more than 100 deficient bridges in Albany County, and had been in need of repair for more than a decade, according to the New York State Department of Transportation.

This Berne bridge, the only town-owned bridge in the Hilltowns on the DOT’s list of red-flagged bridges, is also the only link between residents in the Kaehler-Chrysler Lane neighborhood and the rest of town.

While such bridges are typically built to a 40-ton standard, the condition of this bridge has caused the weight limit to rise and fall multiple times over the years, the lowest point being last December, when it was posted at three tons. This raised concerns of whether residents would get fire protection, or be able to transport hay crops, logged wood, and oil.

One Kaehler Lane resident, Leo Vane, appealed to the Berne Town Board in January, laying out the recent history of the bridge, built in 1978. He presented a letter from a former fire commissioner, stating that front-line attack trucks and tankers — the department’s main firefighting tools — could not respond to a fire across the Kaehler Lane Bridge.

“We have a real issue here, folks, and I’m not going to sit idly by, knowing that my house is not protected,” Vane told the town board. He requested written verification from the town’s fire commissioners that his and his neighbors’ homes would be protected.

His neighbor, Brian Schneible, expressed concerns as well.

“I have a wife and a four-month-old child across that bridge,” Schneible told the board. “If there’s a fire, what do we do?”

Commissioner Michael Baker said the following week that this never meant those residents would be denied fire protection.

“We do have some lighter equipment that could have gone across the bridge,” Baker said. “If nothing else, we have a lightweight international pumper with a 1,000-gallons-a-minute pump on it, and it could cross the bridge and drop a line right there.”

While the town had once expected federal funding for replacement of the Kaehler Lane Bridge, Berne may end up having to foot the bill.

A spokesman for Congressman Paul Tonko’s office told The Enterprise this summer that, while the congressman is still pushing to get Berne its funding for the project, it will certainly not happen this year, if it ever does.

Tonko’s federal transportation requests for 2010 included a $234,000 earmark for replacement of the Kaehler Lane Bridge, and the town’s 2010 budget contained a $216,000 increase in highway department revenues in anticipation of that grant money. Berne’s budget for this year totaled $2.3-million. But the grant was not awarded this year.

“This project has been submitted for the transportation reauthorization bill, which contains all spending for highway and infrastructure improvements,” said Beau Duffy, a spokesman for Congressman Tonko. “So, it wasn’t part of the appropriations process for 2010…That transportation reauthorization has not been acted on yet. They did extend the solvency of the Highway Trust Fund, which does funding for all kinds of highway infrastructure projects, but the bill has not been acted on yet.”

However, even if that money does eventually become available, the town may no longer be eligible to receive it, as federally funded projects like this one must follow certain guidelines.

Said Duffy, “Federal grants, especially for infrastructure, have to be built a certain standard,” though he was unsure of what those standards specifically were.

In March, the Berne Town Board awarded the bridge reconstruction to Town and County Bridge and Rail, which submitted the lowest bid for the project at $155,657. By the end of summer, Kaehler Lane had a new bridge.

“We hope and expect that the [transportation] bill will be passed into law by the end of the year,” Duffy said this week. “The town of Berne is definitely on our list, and we’re still going to advocate for this money.”

Stocking the market

The P & L Deli II on Helderberg Trail, after being in business for four years, went on the market at the beginning of 2010; Joe and Caroline McMahon closed on the building last Tuesday, and decided to change the name. Before it was called the P & L Deli II, the clapboard building perched above the Fox Creek on Helderberg Trail was called the Berne Store.

“Fox Creek has a lot of history to it, and it runs parallel to my property, and we just wanted a nice, easy-to-remember country name,” said Joe McMahon just after the store opened in September. “We were sitting in the parking lot thinking of names, we looked over and saw the sign and thought, ‘Why don’t we just call it Fox Creek Market?’”

Former owner Jessica Tronco said that, in her years of owning the store, she was often running it without the help she needed, which led to her eventually selling the building. Her parents opened the original P & L Deli in Westerlo.

“Thirteen hours a day really kicks your butt after a while,” Tronco said. “It definitely needs to be a family business, and I told them when they opened it. But they’re great people, and I really wish them all the luck in the world.”

Before owning the store, the McMahons came to the area to spend time at their camp on Lake Onderdonk.

“We like the people here, and we saw an opportunity with this store,” said McMahon. “The opportunity we saw is, you get to be part of a small, tight-knit community where you get to know everyone.”

With their new store, the McMahons look to offer a wide range of culinary options, some offered by the previous owners, and some not. It’s a full menu of breakfast, lunch, and dinner all day, which includes: Ten different salads; a dozen different meats and cheeses; and there’s a new standard for making quality sandwiches.

“We went to a bigger sub roll, and everything is weighed out,” said McMahon. “So, if you get a large sub, we weigh it out so you get the same thing every time. We’re looking for consistency here.”

One thing that the McMahons are touting is the daily availability of pizza, made in house.

“In just the first three days alone, we probably went through 65 or 70 pizzas, just for slices — that’s not counting people that came back at night and ordered,” he said. “They can’t believe how good it is, or the fact that they can get it all the time…They used to only do pizza here on Friday and Saturday. We make our dough every day; our sauce every day; we use quality cheese; and we’ve got years of pizza-making experience.”

McMahon worked at different pizza places during high school and college, and his family used to own The Delmar Pizzeria, which is now Andriano’s. His brother, Dave, owned half-a-dozen pizza places himself, McMahon said. His brother now works with him at the Fox Creek Market.

“So, 90 percent of the time, when those doors open, there’s going to be someone in the building with the last name McMahon,” the owner said. “We’re going out of our way to meet people, and to see what they want here. We want people to have fresh quality food, and we don’t want people to have to go off the Hill to get it.”

Stempel’s sawmill

On Feb. 26, after one of the heaviest snowfalls in recent history, Rudy Stempel’s 50-year-old sawmill was nearly crushed by the accumulation. But Stempel was optimistic, stating that he would be back up and running by the time the snow had melted.

“The prediction was true,” Stempel told The Enterprise this week, and the mill was fully operational not one week after its near collapse — minus any overhead protection from the elements.

Asked how he did it, the octogenarian answered with one word — “perseverance.”

“We’ve got to rebuild the whole thing,” Stempel said of the roof. “We had to do a lot of wiring for the motors and the belts; we had to cut the wires in order to get the roof out.”

Stempel said that he, his son Brian, and a few friends had to build small, makeshift roofs over the parts of the mill that were being re-wired.

“At one point, we made a snow shovel out of the cherry picker,” Stempel laughed, “but everything went according to plan."

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