By Tom Dinki

The man shot following a downtown Ellicottville bar fight nearly a month ago is now in fair condition.

Staff at Erie County Medical Center in Buffalo reported Dec. 27 that 41-year-old Brandon Janesz is in fair condition and, while still at the hospital, is no longer in the trauma intensive care unit.

Janesz was in critical condition in the ICU for at least the first 12 days after he was shot in the abdomen area on the night of Dec. 1 by Damien M. Marvin, 25, of Salamanca. Marvin fired the single round with a legally possessed Glock handgun after he, Janesz and Janesz’s brother were thrown out of the Villaggio bar and restaurant for fighting.

Marvin, who is charged with first-degree assault, a class B felony, was released from Cattaraugus County Jail on $25,000 bond more than two weeks ago.

Cattaraugus County District Attorney Lori Rieman has said that her office will likely wait until after Jan. 1 to present Marvin’s case before a grand jury for indictment.

Both Marvin, in statements to New York State Police shortly after his arrest, and Marvin’s attorney, Cattaraugus County Assistant Public Defender Ben Smith, have claimed Marvin shot Janesz in self-defense.

According to Marvin, he was assaulted by Janesz and Janesz’s brother both at Villaggio and again out in the street after the three were escorted from Villaggio.

At Marvin’s preliminary felony hearing Dec. 4, Villaggio General Manager Spencer Murray testified that Marvin walked away toward the corner of Washington and Monroe streets, but Janesz’s brother charged toward Marvin, causing Janesz to follow.

“I saw both brothers push the defendant down to the ground from behind, and then I saw Janesz fall into a snow bank, and at that point I saw the defendant pull a gun out of his hip and shoot (Janesz),” Murray testified.

Marvin told state police that, after he got pushed to the ground, he got up, pulled out his gun while walking backward into the road and gave three verbal commands of “stop, I have a pistol.” Marvin said Janesz “kept coming at me” so he shot him. Marvin then dropped the gun and put his hands in the air. State police arrived shortly after and took him into custody.

New York is not a “Stand Your Ground” law state. In order to use deadly physical force in self-defense, New Yorkers are required to first try to retreat from the threatening situation.

According to Cattaraugus County property records, Janesz owns a townhouse part of the Wildflower Apartments in Ellicottville, which he purchased in 2015.

However, property records also state that Janesz’s home address is located in Orchard Park in Erie County.