1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 7
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Tuesday, May 20, 2008
Commencing 10:00 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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15
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
2
1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
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24
25
3
1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 OFFICER ROBERT ULRICH
5 By: Mr. Mullin 16 98, 109
6 By: Mr. Bevere 67 107, 113
7
8 WITNESS DIRECT CROSS REDIRECT RECROSS JURY Q'S
9 FOLLOW-UP
10 LIEUTENANT GLENN AMODEO
11 By: Mr. Mullin 118 216 238, 243
12 245, 247
13 251
14 By: Mr. Bevere 172 248
15
16 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
17 DIRE
18 CAPTAIN THOMAS A. MALANKA
19 By: Mr. Mullin 257 274
20 By: Mr. Bevere 269 277
21
22
23 E X H I B I T S
24 NUMBER DESCRIPTION PAGE
25 (No exhibits marked.)
4
1 COURT CLERK: On the record.
2 JUDGE CURRAN: Thank you.
3 MR. BEVERE: All right, Judge, for
4 the record, I have lined up the following
5 witnesses for today and for tomorrow into
6 Thursday. Those witnesses are --
7 JUDGE CURRAN: Is this the order
8 or --
9 MR. BEVERE: Well, I can tell you
10 what the order is for today and tomorrow morning
11 probably through 10:30 or 11:00.
12 JUDGE CURRAN: That's fine, okay.
13 MR. BEVERE: Officer Robert
14 Ulrich. Lieutenant Glenn Amodeo. Captain
15 Thomas Malanka.
16 COURT CLERK: Oh, a juror.
17 JUDGE CURRAN: Thank you.
18 (Whereupon, a juror enters the
19 courtroom.)
20 MR. BEVERE: And Richard Johnson,
21 who is a lieutenant in the North End Fire
22 Company and who is also an employee of the
23 Secaucus Department of Public Works, tomorrow
24 9:00 a.m. I have Matt Kickey coming in. 10:00
25 a.m. I have Daniel Snyder.
5
1 I have the following four
2 individuals but not necessarily in any order.
3 They're both -- they are available tomorrow, and
4 they are also available Thursday. And those
5 witnesses are Anthony Iacono, who is available
6 tomorrow afternoon and Thursday morning. Dennis
7 Elwell, former Fire Chief Frank Walters and
8 Police Chief Dennis Corcoran.
9 Now, Judge, here is my other
10 scheduling issue. Okay. I had spoken to Dr.
11 Goldwaser last night, who is my expert. He is
12 away next week. He is flying back in the
13 morning of Tuesday, June the 3rd. I had
14 arranged for him to come to court at --
15 MS. HAWKS: Your Honor.
16 JUDGE CURRAN: Thank you. Come
17 in.
18 (Whereupon, a juror enters the
19 courtroom.)
20 MR. BEVERE: I had arranged for
21 him to come to court, Judge, at 11 a.m., in
22 other words, get off his flight at JFK, come
23 right to court at June the 3rd.
24 JUDGE CURRAN: What time is his
25 flight?
6
1 MR. BEVERE: Wherever he is
2 leaving from, I don't know; but supposedly his
3 flight lands in JFK at like 7:30 or 8 in the
4 morning. So he had agreed to come right here.
5 Did that last night.
6 When I arrived this morning I had
7 discussion with Miss Smith and Mr. Mullin
8 whereby they advised that, based upon some dep
9 reads that they wanted to do, which Miss Smith
10 and I are in the process of going through when
11 Your Honor came out, that they may not need to
12 call Iacono, Walters, Corcoran or Elwell.
13 Not -- I don't -- I don't want to misrepresent
14 what was said. I think that it was we don't
15 know if we're going to call them or maybe we'll
16 call some but not all. And Mr. Mullin said that
17 he had hoped to rest tomorrow morning. So --
18 JUDGE CURRAN: Tomorrow morning
19 being Wednesday?
20 MR. BEVERE: Wednesday. So I had
21 then called Dr. Goldwaser to find out if he
22 would still be available on Thursday, if they
23 rested tomorrow; and I am waiting to hear back
24 from Dr. Goldwaser. So I do not know at this
25 point as we're standing here whether or not
7
1 Dr. Goldwaser is still available for Thursday.
2 And when I arranged for
3 Dr. Goldwaser to come in on June the 3rd, in my
4 own defense, I never in a million years thought
5 that we would get through Kickey, Snyder,
6 Iacono, Walters, Elwell, Corcoran.
7 MS. HAWKS: Your Honor, juror.
8 JUDGE CURRAN: Thank you.
9 (Whereupon, a juror enters the
10 courtroom.)
11 MS. HAWKS: All ten are here.
12 JUDGE CURRAN: Thank you.
13 MS. HAWKS: You're welcome.
14 MR. BEVERE: So that's my
15 scheduling issue, Judge. And I'm being honest
16 and forthright and candid. I mean, that's --
17 what could I tell you?
18 JUDGE CURRAN: I don't doubt that
19 at all.
20 Mr. Mullin.
21 MR. BEVERE: I'm doing my best.
22 MR. MULLIN: Because we have a
23 jury committed to stay only until the end of
24 May, Miss Smith and I are doing everything in
25 our power to rest sooner than we planned.
8
1 Frankly, I think there is enough evidence in
2 right now to withstand any motion; but in the
3 interests of being cautious, we are going to put
4 some more evidence in today and tomorrow. It's
5 quite possible that we can rest tomorrow.
6 Yesterday we told counsel at
7 sidebar on the record that we anticipated
8 resting by Thursday morning and that we wanted
9 the Dr. Goldwaser brought in Thursday.
10 Friday I think about 5:00 we got
11 and e-mail from Mr. Bevere and Mr. Paris saying
12 Dr. Goldwaser was scheduled to come in on
13 Thursday.
14 I guess I have two things to say.
15 If Goldwaser doesn't come in until after the
16 date this jury is committed to stay, the
17 defendants do it at their own peril. Then they
18 may never get to call Dr. Goldwaser. We're
19 certainly not going to have a mistrial because
20 they didn't bring their expert in on time. And
21 nobody wants that. They should get
22 Dr. Goldwaser in here on Thursday and we'll
23 cross-examine him and they'll examine him and
24 everything will be fine.
25 And again, it's our sincere hope
9
1 to rest tomorrow. Whether I can rest tomorrow
2 morning or whether it goes a little later than
3 that, well, that's not completely clear; it has
4 to be the way the events unfold today. But
5 that's -- that's definitely a realistic goal,
6 for us to rest at some point tomorrow. And I
7 think --
8 JUDGE CURRAN: I'm sure -- I'm
9 sure both sides are trying to be cooperative and
10 professional. My last notes indicate certainly
11 what you indicate was said at sidebar is exactly
12 accurate. But I thought when we left here
13 yesterday we had determined that the decision,
14 based on the plaintiffs' decisions, would be
15 made in regard to Dr. Goldwaser by 1:30
16 tomorrow, being today.
17 MR. MULLIN: Yes, I thought Your
18 Honor would make some sort of a ruling on
19 this --
20 JUDGE CURRAN: Exactly.
21 MR. MULLIN: -- by 1:30 today
22 based on everything you hear. Yes, that was my
23 understanding.
24 JUDGE CURRAN: Right.
25 MR. MULLIN: That's what you said
10
1 on the record.
2 JUDGE CURRAN: But I don't have
3 anything in my notes about the plaintiff being
4 able to rest on Wednesday. But --
5 MR. MULLIN: No, you're right; I
6 said I could rest by Thursday morning.
7 JUDGE CURRAN: Right.
8 MR. MULLIN: That's what I said
9 yesterday.
10 JUDGE CURRAN: Okay.
11 MR. MULLIN: Now, having looked
12 at, studied all the dep readings we have,
13 especially if someone -- in the interest of
14 expediting this trial and giving plenty of time
15 to the defense to put in their defense and
16 giving the jury's commitment only until the end
17 of May, well, we think we have to move things
18 along; and we're going to -- we're going to do
19 that.
20 JUDGE CURRAN: Okay. Well,
21 frankly, I don't think that it makes a whole lot
22 of sense to discuss this any further until you
23 hear from Dr. Goldwaser on -- about Thursday.
24 If he says he can come in Thursday, no arguments
25 needed. If he says he can't, then we'll
11
1 consider where we are at that point. Unless
2 there is something I'm missing. Is there
3 anything else?
4 MR. BEVERE: Waiting to hear from
5 Dr. Goldwaser, Judge. That's all I can tell
6 you.
7 JUDGE CURRAN: Thank you. Can you
8 just tell me, Mr. Bevere, is he going to call
9 you directly or your office?
10 MR. BEVERE: He has my cell phone.
11 I am trying to have witnesses call me --
12 JUDGE CURRAN: Right.
13 MR. BEVERE: -- just because --
14 JUDGE CURRAN: I just wondered --
15 MR. BEVERE: -- so I can get back
16 to witnesses.
17 JUDGE CURRAN: I was just going to
18 say, if you have your cell phone and your cell
19 phone goes off, no need to ask permission to
20 leave; just feel free.
21 MR. BEVERE: Well, if I'm in the
22 middle of questioning a witness, I will have
23 to --
24 JUDGE CURRAN: Well, yes. Other
25 than that --
12
1 MR. BEVERE: I mean, I guess
2 that's a realistic possibility for this morning,
3 so --
4 JUDGE CURRAN: Okay.
5 MR. BEVERE: So there is really
6 not much -- so, Judge, just so you know, it's
7 just a question of I was told to arrange a lot
8 of witnesses between today and tomorrow.
9 Mr. Paris and I absolutely have motions to do at
10 the end of plaintiffs' case, when they rest.
11 Evidentiary issues to discuss.
12 JUDGE CURRAN: I have no concern
13 that we are going to run out of things to do.
14 MR. BEVERE: Okay.
15 JUDGE CURRAN: I'm not really that
16 worried about that.
17 The other question I have is what
18 about the information on the job titles; has
19 that been --
20 MR. BEVERE: Mr. Drumeler is
21 working on that for me right now. And he is
22 going to send Mr. Paris an e-mail, and we will
23 then e-mail that to the plaintiffs' counsel.
24 JUDGE CURRAN: Okay. Thank you.
25 Anything else?
13
1 MR. MULLIN: That's all I have. I
2 am ready to go, assuming they brought the first
3 witness in. Do you have Ulrich outside?
4 MR. BEVERE: Judge, and we can put
5 also on the record that Miss Smith sent me an
6 e-mail -- made a request when the trial started
7 for me to provide certain insurance policies on
8 behalf of the Town. I sent that request to
9 Mr. Fisher. I sent him again Miss Smith's
10 e-mails. I have no reason to think that I am
11 not going to get it; I just don't have it in my
12 possession as we speak. You know, I -- I have a
13 lot to do at night.
14 JUDGE CURRAN: Okay. Anything.
15 MR. BEVERE: I'm not -- I'm not
16 trying to be glib or, you know, flippant about
17 it; but you know, I'm -- I have sent everything
18 on. The information will certainly be provided.
19 We will put that on the record. I just need to
20 get it from Mr. Fisher.
21 JUDGE CURRAN: Okay. And is
22 Mr. Ulrich outside?
23 MR. BEVERE: Mr. Ulrich is
24 outside. Amodeo is outside. And Captain
25 Malanka is outside.
14
1 MR. MULLIN: Do you pronounce his
2 name Ulrich or Ulrich?
3 MR. BEVERE: Let me confirm it
4 real fast.
5 MR. MULLIN: I don't want to say
6 his name wrong. And just remind him of the
7 sequestration.
8 MR. BEVERE: They are aware of the
9 sequestration, Judge.
10 COURT CLERK: Off the record?
11 JUDGE CURRAN: Thank you.
12 (Whereupon, a discussion is held
13 off the record.)
14 JUDGE CURRAN: Back on the record.
15 Mr. Bevere has indicated Dr. Goldwaser is
16 available this Thursday. It is agreed that he
17 will be brought in Thursday morning in order to
18 provide enough time for his direct and
19 cross-examination.
20 It is also the understanding of
21 this Court that he is being brought in with the
22 agreement and/or representation that the
23 plaintiff will have rested. The defense has
24 made their concerns clear earlier, most recently
25 yesterday at sidebar, that they do not agree to
15
1 present Dr. Goldwaser out of turn.
2 Is there any concern in that
3 regard from plaintiff?
4 MR. MULLIN: There is no concern
5 in that regard, Your Honor.
6 JUDGE CURRAN: Thank you.
7 MR. MULLIN: Off the record?
8 JUDGE CURRAN: We will go off the
9 record.
10 (Whereupon, a discussion is held
11 off the record.)
12 COURT CLERK: On the record.
13 JUDGE CURRAN: Thank you.
14 MS. HAWKS: Jurors are
15 approaching.
16 JUDGE CURRAN: Thank you.
17 MS. HAWKS: You're welcome.
18 (Whereupon, the jury is brought
19 into the courtroom.)
20 JUDGE CURRAN: Thank you, Ladies
21 and Gentlemen. We are back on the record in the
22 matter of Carter and deVries versus Secaucus.
23 Please be seated.
24 MS. HAWKS: Place your left hand
25 on the Bible. Raise your right hand.
16
1 O F F I C E R R O B E R T U L R I C H is duly
2 sworn by a Notary Public of the State of
3 New Jersey and testifies under oath as
4 follows:
5 MS. HAWKS: For the record, please
6 state your full name; and please spell your last
7 name, please.
8 THE WITNESS: Police officer
9 Robert Ulrich, badge number 93, Secaucus Police
10 Department. Last name U-l-r-i-c-h.
11 MS. HAWKS: Thank you.
12 JUDGE CURRAN: Thank you. Please
13 be seated.
14 You're under oath. All your
15 testimony must be truthful and accurate to the
16 best of your ability. Do you understand?
17 THE WITNESS: Yes.
18 JUDGE CURRAN: Thank you. Please,
19 if you will give us your address for the record.
20 THE WITNESS: My address, 329
21 Mansfield Avenue, Secaucus, New Jersey, 07094.
22 JUDGE CURRAN: Thank you.
23 Your witness, Mr. Mullin.
24 DIRECT EXAMINATION BY MR. MULLIN:
25 Q Good morning, sir.
17
1 A Good morning.
2 Q Sir, a lawyer in my office named
3 Kelly Smith took your deposition in this case.
4 Do you generally recall that?
5 A Yes.
6 Q Okay. And at that deposition you
7 were represented by a lawyer named Raymond
8 Reddin, right?
9 A Yes.
10 Q Mr. Reddin is from Mr. Bevere and
11 Mr. Paris' office; isn't that so?
12 A I believe so.
13 Q Okay. And at that deposition you
14 gave some sworn testimony?
15 A Yes.
16 Q That's right. All right. Let's
17 start from the beginning. Where are you
18 currently employed?
19 A Secaucus Police Department.
20 Q And what is your current position,
21 sir?
22 A Police officer.
23 Q And how long have you held that
24 position?
25 A Currently 20 years.
18
1 Q Twenty years. And I guess I
2 should ask who do you report to?
3 A I report to my immediate supervisor.
4 Q And the name of that person?
5 A At the time was Officer -- Sergeant
6 Zloty.
7 Q You mean back then in April 24th
8 of 2004?
9 A That was -- that would be Sergeant Amodeo
10 at the time.
11 Q That was Amodeo?
12 A Yes.
13 Q At the time it's Sergeant Zloty?
14 A It was Sergeant Zloty. Now it's
15 currently Sergeant Baccola.
16 Q Okay. And when did you start with
17 the Secaucus Police force?
18 A August of 1988.
19 Q And have you spent your entire
20 career with Secaucus Police Department?
21 A Yes, I have.
22 Q Now, police officers say they're
23 in the field of law enforcement; is that fair to
24 say?
25 A Correct.
19
1 Q Which means you enforce the law is
2 another way to put it?
3 A Yes.
4 Q At the police -- you went to the
5 Essex County Police Academy, right?
6 A Yes.
7 Q And at the Essex County Police
8 Academy one of the things you studied is what
9 the laws are?
10 A Correct.
11 Q Specifically you studied what's in
12 section 2C of the Criminal Code?
13 A Correct.
14 Q Because when you see somebody on
15 the street, you have to decide whether or not to
16 arrest them, when of the things you have to
17 think about is a crime being committed under 2C,
18 correct?
19 A Right.
20 Q Now, the Town of Secaucus you are
21 aware there is something called a bias crime,
22 right?
23 A Yes.
24 Q But the Town of Secaucus never
25 gave you any training with respect to how to
20
1 handle bias crimes; isn't that so?
2 MR. BEVERE: Objection. Can we
3 come to sidebar, Judge.
4 JUDGE CURRAN: Sure.
5 (Whereupon, the following sidebar
6 discussion is held.)
7 MR. BEVERE: Judge, I realize that
8 Mr. Ulrich, Officer Ulrich is a Secaucus
9 witness; but at this point in the proceedings I
10 object to Mr. Mullin asking leading questions.
11 He hasn't been declared as a hostile witness.
12 There is nothing indicating he is a hostile
13 witness. I ask he phrase the question as if he
14 was any other witness.
15 MR. MULLIN: This is a Rule 611.
16 There is an adverse witness. This is someone
17 associated with the Town, and we are suing the
18 Town. This is a witness so closely associated
19 with the Town that counsel from this very firm
20 represented him at his deposition. Counsel for
21 the Town represented him. One of the issues in
22 this case is --
23 JUDGE CURRAN: I thought that's
24 why Mr. Mullin asked him that.
25 MR. MULLIN: That's why I asked
21
1 the question.
2 MR. BEVERE: But Judge, at this
3 point to ask him leading questions, that's my
4 objection, Judge. I object to as of this
5 juncture --
6 MR. MULLIN: It's classical 611.
7 The rules clearly have been changed over the
8 years to allow me asking leading questions of
9 adverse witnesses or associated with the
10 defense.
11 JUDGE CURRAN: May request he be
12 declared --
13 MR. MULLIN: I will make it right
14 on the record, Your Honor.
15 MR. BEVERE: We can do it here.
16 You don't have to announce it.
17 MR. MULLIN: I make the request
18 pursuant to rule 11 --
19 MS. SMITH: 611.
20 MR. MULLIN: -- 611 to examine
21 this witness with leading questions.
22 JUDGE CURRAN: Any objections?
23 MR. BEVERE: No objection.
24 JUDGE CURRAN: Thank you. Leading
25 questions, then, may be continued.
22
1 MR. MULLIN: Thank you.
2 (Whereupon, sidebar discussion is
3 concluded.)
4 BY MR. MULLIN:
5 Q Sir, I will repeat the question.
6 A No problem.
7 Q During your 20 years as a Secaucus
8 police officer the Town of Secaucus never gave
9 you any training with respect to how to handle a
10 bias crime, correct?
11 A Correct.
12 Q Were you aware, sir, that there
13 was some sort of general order issued by the
14 Chief of Police with respect to bias
15 investigation procedures?
16 A Yes.
17 Q Okay. Now, let's go to the early
18 morning hours of April 25th, 2004. As I
19 understand it, at that time you were in the
20 station, is that right, in the police station?
21 A Correct.
22 Q And then you were told to respond
23 to some sort of disturbance by a dispatcher
24 there?
25 A Yes, correct.
23
1 Q Was that dispatcher's name Officer
2 Firtion, F-u-r-t-i-o-n?
3 A Correct.
4 Q Okay. And then you drove out to
5 the area of the North End Firehouse, right?
6 A Correct.
7 Q That's where you were told to
8 respond?
9 A Yes.
10 Q Okay. And I believe that during
11 that time as you drove out you even got a second
12 call from Officer Firtion reporting further 911
13 calls, correct?
14 A Correct.
15 Q Okay. That's standard operating
16 procedure, right? As calls come in on an
17 incident, they come into your patrol car, right?
18 A Yes.
19 Q And were you alone in the police
20 car when you drove out?
21 A Yes.
22 Q Okay. And the first thing you did
23 when you responded to this incident in the early
24 morning hours of April 25th --
25 A Correct.
24
1 Q -- 2004 is you didn't drive to see
2 the residents of 988 Schopmann; you drove to the
3 parking lot of the North End Firehouse, correct?
4 A Correct.
5 Q And there you found in the parking
6 lot Charles Snyder, Sr., Charles Snyder, Jr. and
7 Charles Mutschler, three -- three fire --
8 firemen, right?
9 A Correct.
10 Q And they were standing in the
11 parking lot, right?
12 A Correct.
13 Q And they admitted to you when you
14 spoke to them right then and there that they
15 had, in fact, been yelling certain obscenities
16 at the residents of 988 Schopmann, correct?
17 A They informed me that they were -- they
18 had a screaming match with people in the -- in
19 that residence.
20 Q They said it was a screaming
21 match, right?
22 A Right.
23 Q But on their side of the screaming
24 match, what they called a screaming match, they
25 admitted that they had yelled at the residents
25
1 of 988 Schopmann, right?
2 A Correct.
3 Q And they admitted that they used
4 some obscenities in yelling at these people,
5 correct?
6 A Correct, correct.
7 Q Okay. And in the course of
8 speaking to these three men you found in the
9 parking lot Charles Snyder, Sr. told you that
10 they had just returned from some sort of company
11 awards function, a party of some sort, right?
12 A Correct.
13 Q And he said that they -- they, the
14 whole fire company and some of their wives and
15 girlfriends, had been dropped off by a party
16 bus, right?
17 A Correct.
18 Q And then they said -- Snyder said
19 as we were leaving the party bus and walking
20 across, this whole group walking across the
21 parking lot, that's when this yelling ensued,
22 correct?
23 A Correct.
24 Q Okay. Now, at that point you knew
25 Charles Snyder, Sr.?
26
1 A Correct.
2 Q In fact, you had known him for
3 about 20 years, right?
4 A Correct.
5 Q Charles Snyder, Sr. had been
6 working and works with your brother-in-law in
7 Department of Public Works, right?
8 A Correct.
9 Q And for the record, what is your
10 brother-in-law's name?
11 A Edward Rosen.
12 Q Did you know Charles Snyder, Jr.
13 in his capacity as a Police dispatcher?
14 A Yes.
15 Q He worked at -- as of that night
16 Charles Snyder, Jr. still worked as a Police
17 dispatcher for the Secaucus Police Department,
18 correct?
19 A I believe so, correct.
20 Q Okay. Now, after talking to these
21 three firemen in the parking lot, you then went
22 to the front porch of 988 Schopmann, correct?
23 A Correct.
24 Q And there you spoke to Tim Carter
25 and Peter deVries a bit?
27
1 A Correct, correct.
2 Q I believe at that point you were
3 also joined by Officer Moreda; is that right?
4 A That's correct.
5 Q And he also was a police officer
6 and is a police officer in Secaucus, right?
7 A Correct.
8 Q Okay. Now, while you were up
9 there talking to these two gentlemen --
10 A Yes.
11 Q -- DeVries and Carter, you had
12 Moreda kind of hold the Snyders and Mutschler in
13 the vicinity of the wall of the firehouse,
14 right?
15 A Correct.
16 Q Out in the parking lot --
17 A Yes.
18 Q -- right? And during this time,
19 at that moment, at least in your report, you
20 say -- not in your report. What you recall is
21 that Mutschler started yelling some obscenities
22 at Mr. Carter, right?
23 A He yelled one comment, yes.
24 Q And it included an obscenity,
25 right?
28
1 A Yes.
2 Q And you never said to Mr. Carter,
3 "Do you recognize that voice," true?
4 A Correct.
5 Q Okay. And Mr. Carter had told you
6 something about what went on that night, right?
7 A Yes.
8 Q And you never said to Mr. Carter,
9 "Is that voice you just heard the voice of the
10 man that threatened to kill you?" You never
11 asked that question, right, sir?
12 A No, I didn't.
13 Q That question doesn't appear in
14 any of your police reports, right?
15 A Correct.
16 Q Okay. Now, they told you, Carter
17 and/or deVries, that there had been an incident
18 where they heard a large group of people yelling
19 and screaming at them, right?
20 A Correct.
21 Q And -- and among the things they
22 heard this group scream were threats, were
23 homophobic, prejudice statements about
24 homosexuals, gay people?
25 A Correct.
29
1 Q And they also yelled things
2 about -- they referred back to their having
3 thrown dirty or used condoms on the porch of
4 deVries and Carter, right?
5 A Correct.
6 Q This is what Carter and
7 deVries related to you, right?
8 A Correct.
9 Q Carter and deVries also related to
10 you that these firemen had threatened to kill
11 them, right?
12 A I believe so.
13 Q Okay. And in fact, Officer --
14 Sergeant Amodeo arrives at the scene, right?
15 A Correct.
16 Q And he is your -- he was your boss
17 that night, right?
18 A Correct.
19 Q In fact, that night he was the
20 highest ranking officer on duty at that time,
21 right?
22 A Yes, he was.
23 Q Okay. And Sergeant Amodeo
24 interviewed Carter and deVries a bit, right?
25 A Yes, he did.
30
1 Q And let me show you a report,
2 Plaintiff's Exhibit --
3 MR. BEVERE: Exhibit number.
4 Q -- 350.
5 MR. MULLIN: Got it?
6 Q Sir, I will show you a 350, which
7 is an Amodeo report. And you recognize this
8 format, right?
9 A Sure.
10 Q This is the Secaucus Police
11 Department's supplement investigation report.
12 And you recognize the name there, Sergeant
13 Amodeo?
14 A Yes.
15 Q And you see the date of the
16 report --
17 A Correct.
18 Q -- April 25th, 2004?
19 A Uh-huh.
20 Q And he is talking here about what
21 the victims told him?
22 A Correct.
23 Q He says, "The victims also stated
24 that the actors threatened their lives, as well
25 as the lives of their dogs." Do you see that?
31
1 A Yes.
2 Q And does that -- is that
3 consistent with what the victims told you?
4 A Yes.
5 Q Okay. And you wrote a report that
6 night also, right?
7 A Yes, I did.
8 Q You didn't take any notes while
9 you were there talking to anybody, right?
10 A Yes, I did.
11 Q You did? I haven't seen any of
12 those notes. Have you turned those notes over?
13 A No, I throw the notes out once I have it
14 all in my investigation report.
15 Q You destroyed those notes?
16 A I believe so, yes.
17 Q Okay. Excuse me one second.
18 Officer, let me show you what's been marked by
19 the defendants as D-2 and D-3.
20 A Sure.
21 Q And -- and ask you to, first of
22 all, look at it generally and tell me if you
23 recognize that two-page document.
24 A Yes.
25 Q And -- and what is that document?
32
1 A That's my initial investigation report
2 from the incident.
3 Q Okay. And when did you write
4 that?
5 A As soon as I arrived back at headquarters
6 that night or morning, whatever.
7 Q The next morning?
8 A Correct.
9 Q When were you on duty that night
10 on April 25th?
11 A Our shifts that night started on the 24th
12 at 11 p.m., and we finish up at 7:30 on the
13 25th.
14 Q Okay. And in this report, which
15 is your first report on this incident, you do
16 say immediately upon arriving on the scene you
17 observed Snyder, Jr., Snyder, Sr. and Mutschler
18 in the parking lot, right?
19 A Correct.
20 Q And you described some of what
21 deVries and Carter said to you, right?
22 A Correct.
23 Q You see you said, among other
24 things, that they said they'd been targeted for
25 harassment for about three years and bias
33
1 comments; do you see that?
2 A Yes, I do.
3 Q And you wrote that, right?
4 A Yes.
5 Q And you see, "Carter stated that
6 night he was told to shut his fucking faggot
7 mouth"?
8 A Yes.
9 Q You wrote that, right?
10 A Yes.
11 Q And he said -- and you wrote that
12 he said to you, "We'll kill your fucking dogs,"
13 right?
14 A Yes, that's what he said.
15 Q Officer, where did you write in
16 this report -- and I apologize, if I'm missing
17 it --
18 A No problem.
19 Q -- that these firemen threatened
20 to kill Peter deVries and Mr. Carter?
21 A I put in there that they stated they
22 would kill their dogs. I don't see where I put
23 in there that they would kill them.
24 Q Well, that -- that's a terrible
25 omission, isn't it, Officer?
34
1 MR. BEVERE: Objection.
2 JUDGE CURRAN: Basis?
3 MR. BEVERE: Characterization and
4 argumentative.
5 JUDGE CURRAN: Sustained. Please
6 rephrase.
7 BY MR. MULLIN:
8 Q It's important, when you're doing
9 investigation into certain crimes, whether or
10 not the individual alleged to be doing something
11 wrong has threatened to kill a person, right?
12 A Correct.
13 Q That's important? All right. And
14 there is a difference in a crime where a person,
15 just say, threatening to do some harm to a dog
16 versus threaten to kill a person?
17 A Correct.
18 Q That's different level of crime, a
19 different kind of crime, right?
20 A Correct.
21 Q We can agree you omitted the
22 threat to kill alleged by deVries and Carter?
23 A Allegedly.
24 Q Threatened to kill themselves,
25 right? Also in this initial report you reveal
35
1 that Snyder -- the two Snyders and Mutschler
2 told you that they had, in fact, been yelling at
3 the residents, at the people in 988 Schopmann --
4 988 Schopmann. You do put that in, right?
5 A Yes.
6 Q But nowhere in this initial report
7 do you put in they were yelling obscenities
8 at -- at Carter and deVries, right, not in this
9 initial report?
10 A I put in there what Mr. Carter and
11 Mr. deVries told me that they said to them.
12 Q Okay.
13 A So I didn't feel I needed to repeat it in
14 the report.
15 Q You didn't put in this report that
16 in your talking to Snyder, Jr. and Snyder, Sr.
17 and Mutschler they admitted to you that they had
18 used obscenities in the course of yelling,
19 right?
20 A Correct.
21 Q And in fact, at some point a few
22 days after this report Detective Captain Reinke,
23 R-e-i-n-k-e --
24 A Detective sergeant at the time.
25 Detective lieutenant now.
36
1 Q Excuse me.
2 A No, no problem.
3 Q At the time he was detective
4 sergeant. He actually asked you to write an
5 additional report providing some more detail,
6 right?
7 A Yes, he did.
8 Q Let me show you what's been marked
9 as D-67. Okay. Now, in D-67 -- well, what is
10 D-67, sir?
11 A This is Detective Sergeant Reinke's
12 supplemental investigation report.
13 Q This is the report you wrote?
14 A No, it's not. This is --
15 Q Did I give you the wrong one?
16 A Yeah, this is his supplementary.
17 Q All right. Let me show you the
18 one I have.
19 A That's mine.
20 Q Okay. So let's just -- we will
21 give it an exhibit number later, but let's let
22 the jury know what this is. What is this
23 document I have placed in front of you?
24 A That is my supplementary report.
25 Q And when did you write that?
37
1 A Five days later.
2 Q Okay.
3 A On the 30th, April 30th of '04.
4 Q This is a one-page document?
5 A Correct.
6 Q Has your signature on it?
7 A Yes.
8 Q Okay. And up there under the
9 victim name it says, "Tim Carter"?
10 A Correct.
11 Q And in this report you did report
12 that the -- the three individuals, Snyder, Sr.,
13 Snyder, Jr., Mutschler did, in fact, use some
14 obscenity?
15 A Yes.
16 Q They did admit that to you, right?
17 A Yes.
18 Q Now, let me get back to when
19 you're on the porch and -- and you've just kind
20 of arrived at the 988 Schopmann residence and
21 Carter and deVries would come -- have opened the
22 door. All right?
23 A Okay.
24 Q And we've already gone over this,
25 but you confirm that Mutschler is -- is yelling
38
1 and he is using some obscenity directed towards
2 Mr. Carter, correct?
3 A One comment, yes.
4 Q Okay. Now, you actually used your
5 body to block the view of my clients to prevent
6 them from seeing the -- which individuals were
7 yelling at them at that moment; isn't that true?
8 A No.
9 Q Okay. Now, you remember I took
10 your deposition?
11 A Yes.
12 Q Okay. And at the deposition there
13 was a court reporter, as there is right here,
14 right?
15 A Correct.
16 Q And you were sworn to tell the
17 truth, right?
18 A Yes.
19 Q And you knew that a verbatim
20 transcript was being made --
21 A Correct.
22 Q -- right? And you were supposed
23 to testify with as much care and deliberation at
24 the deposition as if you were sitting right here
25 in front of the jury, correct?
39
1 A Right.
2 Q Let's turn to page 29. I'm going
3 to start at line 14. I'm going to show you your
4 deposition.
5 JUDGE CURRAN: What is the marking
6 on the deposition? Mr. Mullin, what is that
7 marked?
8 MR. MULLIN: We haven't marked the
9 deposition, Your Honor. It's a deposition of
10 March 19th, 2007 --
11 JUDGE CURRAN: Thank you.
12 MR. MULLIN: -- of Officer Ulrich.
13 BY MR. MULLIN:
14 Q Sir, I'm going to draw your
15 attention to page 29. And -- of the deposition.
16 And there Miss Kelly Smith of my office asks
17 you, "When Mr. Mutschler yelled out during the
18 time that you were speaking to Mr. Carter and
19 Mr. deVries, did you block Mr. Carter and
20 Mr. deVries from seeing him physically?"
21 And you answered, "Yes."
22 Do you recall that?
23 A Yes.
24 MR. PARIS: Objection, Your Honor.
25 Objection. He hasn't read the entire answer.
40
1 Q Why don't you read the entire
2 answer after, "Yes," then. So it's, "Yes,"
3 then?
4 A "Yes. They actually weren't even
5 outside. I was standing on the porch. They
6 were in the doorway. And that's how I was
7 speaking to them. He was off to my left about
8 40 feet, again, against the wall of the
9 firehouse is when he yelled. And I quickly told
10 him to shut up, and then he apologized. So they
11 didn't even see him, I don't believe."
12 Q But yes, you used your body to
13 block their view --
14 A I used my --
15 Q -- of the gentlemen?
16 MR. BEVERE: Mischaracterizes --
17 A I used my body to --
18 JUDGE CURRAN: Hold on.
19 I am going to sustain the
20 objection.
21 Please don't answer.
22 You may --
23 THE WITNESS: No problem.
24 JUDGE CURRAN: -- rephrase, if
25 you'd like.
41
1 BY MR. MULLIN:
2 Q When I asked you -- excuse me.
3 When Kelly Smith in my office asked you, "When
4 Mr. Mutschler yelled out during the time that
5 you were speaking to Mr. Carter, Mr. deVries,
6 did you block Mr. Carter and Mr. deVries from
7 seeing him physically," the next word out of
8 your mouth before you began what you just read
9 was, "Yes," right?
10 A Yes.
11 Q We can agree on that. And you
12 were under oath and that was the truth, right?
13 A Yes.
14 MR. MULLIN: Judge, for the
15 record, the exhibit number for the supplemental
16 report that I showed Officer Ulrich, dated
17 4/30/04, it's Plaintiff's Exhibit 218.
18 JUDGE CURRAN: Thank you.
19 MR. BEVERE: But I believe he
20 referred to the D number.
21 MR. MULLIN: Yeah, we have the D
22 number, as well.
23 MR. BEVERE: Which was D-66.
24 MR. MULLIN: Oh, D-66, I
25 apologize.
42
1 MR. BEVERE: I just wanted the
2 record to be clear because it was the D exhibit
3 that he showed, not the P.
4 JUDGE CURRAN: Thank you.
5 BY MR. MULLIN:
6 Q Sir, after you spoke to my clients
7 on the porch and after you heard Mutschler yell,
8 then at some point Sergeant Amodeo directed you
9 to go into the firehouse to take the names of
10 any individuals there, right?
11 A Correct.
12 Q And you did that, right?
13 A Yes.
14 Q And that's reflected in your
15 report, right?
16 A Yes.
17 Q And I think probably we should
18 have you read the names for the record of the
19 people you saw there. Sir, I'll show you what's
20 been marked D-2 and D-3. I will draw your
21 attention to the second page.
22 A Okay.
23 Q And again, is D-2 and D-3, is that
24 your April 25th report that you wrote right
25 after going to the incident?
43
1 A Yes, it is.
2 Q And would you tell us which
3 individuals you found inside the firehouse of --
4 of the early morning hours of April 25th, 2004?
5 A Sure. Richard Johnson. Just the names
6 good?
7 Q Yes, sir.
8 A Richard Johnson, Daniel Snyder, Mike
9 Sesty, Veronica Vega, Kathy Gonzalez, Harry
10 Backiel, Patrick Maxwell, Heather Maxwell Janine
11 Mutschler, Dawn Mondori, Mike Pepe, Kristin
12 Backiel, Janine Mutschler, Kelly Snyder.
13 Q These people were all in the
14 firehouse, right?
15 A Yes.
16 Q This is just minutes after you
17 arrived at the scene, right?
18 A Correct.
19 Q And in all -- in total you spent
20 only about ten minutes in the firehouse with
21 these people; is that right?
22 A Give or take, approximate.
23 Q And you didn't interview any of
24 these witnesses -- excuse me. You didn't
25 interview any of these individuals, right?
44
1 A No.
2 Q Take them aside, separate them and
3 say, "Well, what did you say? What did you
4 hear?" Right, you didn't do that; is that
5 correct?
6 A Correct.
7 Q And in fact, Sergeant Amodeo never
8 asked you to do that, right?
9 A Correct.
10 Q You still have the report up
11 there?
12 A The investigation report, yes, I do.
13 Q The investigation report. On the
14 top there are boxes. On the top of that report
15 there are boxes, right?
16 A Right.
17 Q You filled them in, right?
18 A Yes.
19 Q There is a box that says,
20 "crime/incident." That's box number five,
21 right?
22 A Yes.
23 Q And under there you typed two
24 separate things. One is "harassment"; and one
25 is "bias intimidation," right?
45
1 A Correct.
2 Q The next box on line with those
3 two items, it says -- you typed two items under
4 the heading "NJS," right?
5 A Yes.
6 Q Now, "NJS" refers to New Jersey
7 Statutes, right?
8 A Yes.
9 Q Those are the criminal statutes
10 you're referring to, right?
11 A Yes.
12 Q You identified the two criminal
13 statutes that were the subject matter of your
14 investigation, right?
15 A Yes.
16 Q And these statutes, well, these
17 are the laws of the State of New Jersey, right?
18 A Yes.
19 Q Just to state the obvious. Let me
20 see if I have those statutes. One of the
21 statutes you cited, which we marked as P-396,
22 is --
23 MR. BEVERE: Your Honor.
24 JUDGE CURRAN: Yes.
25 MR. BEVERE: May I have permission
46
1 to join Mr. Mullin, since I --
2 MR. MULLIN: We gave you a copy.
3 MR. BEVERE: I did not receive a
4 copy of the document this morning, but I will be
5 happy to look on with Mr. Mullin and the
6 witness.
7 JUDGE CURRAN: Sure.
8 MR. BEVERE: Thank you, Judge.
9 MS. SMITH: Here, right here.
10 Here is one.
11 MR. BEVERE: Thank you.
12 MS. SMITH: You show it to him. I
13 have them in here.
14 BY MR. MULLIN:
15 Q I will show you what's been marked
16 as P-396, Officer. This is one of the statutes
17 you cited, right?
18 A Yes.
19 Q And the heading -- one of the
20 headings of this statute is, "Offenses against
21 public order, health and decency," right?
22 A Yes.
23 Q And that is, it says, "riot,
24 disorderly conduct and related offenses"; and
25 under that it says, "harassment," right?
47
1 A Right.
2 MR. BEVERE: Sorry, I need to look
3 on because it's not the one that I have.
4 JUDGE CURRAN: Would you read the
5 cite into the record?
6 MR. MULLIN: I will read it into
7 the record. This is NJSA 2C:33-4.
8 All set?
9 BY MR. MULLIN:
10 Q So this statute is called,
11 "harassment," right?
12 A Yes.
13 Q It says, "Except as provided in
14 subsection e, a person commits a petty
15 disorderly persons offense if, with purpose to
16 harass another, he makes or causes to be made a
17 communication or communications anonymously or
18 at extremely inconvenient hours or in
19 offensively coarse language or any other manner
20 likely to cause annoyance or alarm." That's one
21 of the items?
22 A Yes.
23 Q You were investigating that night,
24 right?
25 A Yes.
48
1 Q Okay. C of that says, "engages in
2 any other course of alarming conduct or
3 repeatedly committed acts with purpose to alarm
4 or seriously annoy such person," right?
5 A Correct.
6 Q Okay. And -- and you didn't
7 arrest anybody that night, right?
8 A Correct.
9 Q And you never arrested any fireman
10 for what happened that night, right?
11 A Correct.
12 Q And another statute you cite up
13 there is -- you cite on your report of that
14 night Section 2C:16-1.
15 Let me make sure counsel has that?
16 MR. BEVERE: I do.
17 MR. MULLIN: Are we all set?
18 BY MR. MULLIN:
19 Q And that's the crime of -- that's
20 the crime of bias intimidation, right?
21 A Yes.
22 Q And that crime says -- that
23 statute says, "A person is guilty of the crime
24 of bias intimidation if he commits, attempts to
25 commit, conspires with another to commit or
49
1 threatens the immediate commission of an offense
2 specified in Chapters 11 through 18 of Title 2C
3 of the statutes," right?
4 A Correct.
5 Q And one is, "with purpose to
6 intimidate an individual or group of individuals
7 because of race, color, religion, gender,
8 disability, sexual orientation, gender identity
9 or expression, national origen, ethnicity,"
10 right? That's what it says?
11 A Correct.
12 Q And it goes on, two, "knowing that
13 the conduct constituting offense would cause an
14 individual or group of individuals to
15 be intimidated because of race, color, religion,
16 gender, disability, sexual orientation, gender
17 identity, expression, national origin,
18 ethnicity," right?
19 A Right.
20 Q "Under circumstances" -- the
21 statute continues, "under circumstances that
22 cause any victim of the underlying offense to
23 be intimidated and the victim, considering the
24 manner in which the offense was committed,
25 reasonably believed that the offense was
50
1 committed with purpose to intimidate the
2 victim"; and it goes on, right?
3 A Yes.
4 Q And you didn't arrest anybody
5 under that statute you cited in your report --
6 A No.
7 Q -- that night, right?
8 A Correct.
9 Q You never arrested anybody in the
10 North End Firehouse in the North End Fire
11 Company for that offense, right?
12 A Correct.
13 Q And Peter deVries and Tim Carter
14 that night made it clear to you that they were
15 scared and frightened?
16 A That's what they stated to me, yes.
17 Q You had no reason to doubt that,
18 did you?
19 A I was taking statements. I -- it was
20 alleged to me what was going on, so I had no
21 reason to doubt what they said, as well as what
22 the firemen said.
23 Q When you actually went up to these
24 three men in the parking lot, these three
25 firemen, the two Snyders and Mutschler --
51
1 A Yes.
2 Q -- you actually could smell
3 alcohol on their breath, right?
4 A Yes.
5 Q You didn't test them for
6 intoxication, did you?
7 A No, no reason.
8 MR. BEVERE: Objection.
9 A No reason to test.
10 MR. BEVERE: Sidebar, Judge.
11 JUDGE CURRAN: Sure.
12 (Whereupon, the following sidebar
13 discussion is held.)
14 MR. BEVERE: Thank you. Judge,
15 once we -- once again we are getting into issues
16 of standard of care of police officers. Who is
17 going to come in here and testify that the
18 standard of care applicable to police officers
19 required him to do alcohol -- blood alcohol
20 testing on someone who wasn't driving a vehicle?
21 MR. MULLIN: Well, I don't
22 think --
23 MR. BEVERE: There is simply no
24 standard on that. And this is the problem we
25 are going to keep running into with regard to
52
1 the criticisms of the officers. Who is going to
2 set the standard?
3 JUDGE CURRAN: If you can move the
4 microphone, please, and repeat what you said.
5 MR. BEVERE: Okay. What I said,
6 Judge, what we are getting into again is issues
7 of standard of care applicable to police
8 officers. And there is no expert who is going
9 to come in and say understand the circumstances
10 of this -- of this particular situation that, A,
11 it was alcohol -- blood alcohol testing was
12 appropriate on someone who wasn't even driving a
13 vehicle.
14 But that's -- that's basically my
15 objection. And I'm also -- we're also going to
16 get into issues of -- I imagine that at some
17 point Mr. Mullin is going to bring up the issues
18 of voice recognition.
19 JUDGE CURRAN: I'm sorry?
20 MR. BEVERE: Going to bring up the
21 issues of voice recognition. And who is going
22 to come in and say that's what was required by
23 police officers in this situation? These are
24 the problems we are going to run into again and
25 again because of the lack of police practices
53
1 expert.
2 And you're asking this officer
3 did he do any alcohol testing on these
4 individuals. He is giving the impression in the
5 jury's mind that was required of this officer to
6 do alcohol testing on people who were at a
7 party, as opposed to someone who was weaving
8 while driving along the road and was pulled
9 over. It is a different situation. Who is
10 going to set the standard of care?
11 MR. MULLIN: Well, I guess I have
12 said this about a hundred times now; but this
13 most definitely is not a police negligence case.
14 I'm asking a very simple question, which
15 probably even children know the answer to.
16 JUDGE CURRAN: With all due
17 respect, I don't think children know the answer
18 to whether or not there should be alcohol
19 testing done for individuals who are not
20 involved with a motor vehicle.
21 MR. MULLIN: Someone can be -- how
22 would these men drive home? You mean an
23 officer --
24 JUDGE CURRAN: I was just going to
25 get to that, but I was going to say before that
54
1 was -- the testimony is that they were dropped
2 off by a party bus. So there isn't even the
3 theory that, well, they drove there and maybe
4 they had too much to drink before they drove
5 there. By the same token, there is no evidence
6 as to how they were going to get home. I don't
7 know if they had their cars in the parking lot.
8 I don't know if the party bus was coming back at
9 3:00. There is no evidence. And it's not
10 common knowledge. We have gone through this, as
11 Mr. Mullin says, about a hundred times. My
12 decision --
13 MR. MULLIN: You are restricting
14 cross-examination?
15 JUDGE CURRAN: If it's basically
16 common knowledge, that's one thing. But I don't
17 think it's common knowledge that there should be
18 testing -- I don't honestly know. My common
19 knowledge doesn't tell you should there or
20 should there, lacking as it may be.
21 MR. MULLIN: I have known a few
22 people in my life who, unfortunately, have been
23 arrested for public intoxication. I thought it
24 was common knowledge, but maybe that's only in
25 the Bronx.
55
1 JUDGE CURRAN: Well, no, I also
2 admit I am the only Irishman you will meet who
3 really doesn't drink. So I admit to my lack --
4 it's --
5 MS. SMITH: That hurts.
6 JUDGE CURRAN: It's not that I
7 don't, but I -- whatever, I just don't.
8 MR. MULLIN: I suspect you're
9 sustaining the objection.
10 JUDGE CURRAN: I am going to
11 sustain the objection because I don't think that
12 it is common knowledge. I am not going to rule
13 in regard to the voice recognition because we
14 haven't gotten there yet. And I think it's fair
15 to take it on whatever the facts are at the
16 time.
17 MR. MULLIN: Okay. Well, the next
18 thing I am going to ask -- probably one of the
19 next things has to do with Miss Dee Bardini's
20 testimony. I hope I laid a proper foundation
21 about hearing a gunshot to check for guns,
22 whether they searched these guys for any guns or
23 gunshots or gun shells.
24 JUDGE CURRAN: Mr. Bevere.
25 MR. BEVERE: Well, Judge, I mean,
56
1 here is the problem with that. Okay. This
2 officer -- this officer did not hear the 911
3 tape.
4 MR. MULLIN: That is your
5 testimony, not his.
6 MR. PARIS: You can ask him.
7 JUDGE CURRAN: Whether he heard it
8 or not, should be a question as to whether he
9 was told that. He was getting updates in the
10 car he said. If he said no one ever told him
11 about the Dee Bardini call, that's one thing.
12 If he says he was told about the Dee Bardini
13 call, that's another thing.
14 MR. BEVERE: Fair enough, Judge.
15 Fair enough.
16 MR. MULLIN: Let me go in another
17 direction, if I may. I asked him if he received
18 updates from Officer Firtion, who took all the
19 911 calls that night; and he said yes, he
20 received updates. That was my foundational
21 question. Now, he can say in response -- I can
22 ask him. I have laid a foundation. 911 call
23 was called in; I have proved that. Officer
24 Firtion, I'm sure we agree, was the guy there.
25 In fact, this witness just said he is the guy
57
1 who took the call. Officer Firtion was in
2 contact with him numerous times, he confirmed.
3 Now, he can -- he can -- I think that's a basis
4 for him to say -- "Well, did you search for
5 guns?" He may deny he ever heard it. That's
6 his right.
7 JUDGE CURRAN: Oh, I didn't say
8 you couldn't ask him that. Exactly. That's
9 exactly what I was saying, because he did say he
10 was getting updates.
11 MR. MULLIN: Right.
12 JUDGE CURRAN: Then he either says
13 he got an update that says there was a gun or he
14 doesn't get -- there was a report of a gunshot
15 or sounded like gunshot or he says he doesn't.
16 MR. MULLIN: Your Honor, let's say
17 he says, "I never got that." The jury doesn't
18 have to believe that.
19 JUDGE CURRAN: No.
20 MR. MULLIN: So I can go on and
21 ask whether he searched for guns or anything,
22 regardless of his answer. Even if he says, "I
23 never" -- a jury is entitled to say he is not
24 telling the truth on that issue.
25 JUDGE CURRAN: It's a fair
58
1 argument.
2 MR. MULLIN: I mean, it is
3 cross-examination. I assume I'm given a
4 broad --
5 JUDGE CURRAN: It is
6 cross-examination of an adverse witness. I will
7 note the objection on the record, but it is.
8 MR. BEVERE: We came to sidebar
9 about the alcohol issue. I am relieved you are
10 sustaining that objection.
11 MR. MULLIN: You are sustaining
12 that. I just want to be fair.
13 MR. BEVERE: Right.
14 MR. PARIS: Right.
15 JUDGE CURRAN: Right. I am going
16 to -- I am going to strike the last question,
17 just so that it's fair.
18 MR. BEVERE: Thank you, Judge.
19 (Whereupon, sidebar discussion is
20 concluded.)
21 JUDGE CURRAN: Thank you.
22 Mr. Mullin, I am going to strike the last
23 question and ask that you ask your next
24 question.
25 MR. MULLIN: Thank you.
59
1 BY MR. MULLIN:
2 Q Sir --
3 JUDGE CURRAN: I apologize. The
4 answer -- the question and the answer. I was
5 just checking. The answer was recorded.
6 BY MR. MULLIN:
7 Q Sir, you didn't interview that
8 night or any other night the neighbor to 988
9 Schopmann and the mother of the landlord,
10 Patricia Hjelm, right?
11 A No.
12 Q And you didn't interview that
13 night or any other night Dee Bardini, another
14 person who lived in the area of the firehouse
15 and called in a 911 call, right?
16 A Right.
17 Q That night did Officer Firtion, as
18 he called in the 911 calls, tell you that Dee
19 Bardini had called in and said, "I heard
20 gunshots coming from the vicinity of the
21 firehouse"?
22 A Not to me, no.
23 Q Your contention is that you didn't
24 know that?
25 A I wasn't told that.
60
1 Q And were you ever told to go back
2 to that firehouse and search for weapons?
3 A Never.
4 Q Were you ever told after that
5 night to go back and search for shell casings?
6 A No.
7 Q Were you ever told to go back to
8 that parking lot and examine all the premises
9 around it to search for bullet holes?
10 A No.
11 Q Were you ever told to frisk the
12 firemen to see if they had guns on them?
13 A No.
14 Q Were you ever told to search the
15 firehouse to see if there were guns in the
16 firehouse?
17 A No.
18 Q Your boss that night was a
19 sergeant, Sergeant Amodeo, right?
20 A Correct.
21 Q Sergeant Amodeo at that time was
22 not a detective, an investigator, right?
23 A Correct.
24 Q While the entire time while you
25 were at that scene investigators were not called
61
1 to the scene that night?
2 A Correct.
3 Q And you never saw any crime scene
4 tape put up around any area there, right?
5 MR. BEVERE: Objection. Come to
6 sidebar again.
7 (Whereupon, the following sidebar
8 discussion is held.)
9 MR. BEVERE: Once again, Judge, I
10 think this goes beyond the scope of common
11 knowledge as to what is required, the crime
12 scene tape be put up at a crime scene.
13 MR. MULLIN: Well, I don't know
14 how many times I have to say it. Plaintiffs
15 Exhibit 134, which has -- a Defendants Bates
16 stamp number is on it, which I mailed to the
17 Court recently, Bates stamp number 600 through
18 607, are bias investigation procedures issued by
19 the Secaucus Police Department in 1990. They
20 were given to me by the defendants in the course
21 of this.
22 They detailed the importance to
23 protect the crime scene in preparation for
24 gathering evidence. Now, I don't know how to
25 protect crime scene other than to put up crime
62
1 scene tape. That is one way to do it. There
2 are other ways to do it, but there it is. It's
3 section -- "Arrival at the scene. Upon arrival
4 at the scene the initial responding officer" --
5 that would be Mr. Ulrich -- "will apprehend
6 actors, charge and process offenders, provide
7 assistance to victims, protect the crime scene
8 in preparation for the gathering of evidence."
9 And also goes through other things, like taking
10 witness statements.
11 And then what happens is at some
12 stage investigatory personnel come over and take
13 over the crime scene and do their physical
14 analysis. I don't think, again, you need an
15 expert witness to come in and say one way to
16 protect a crime scene is to put up crime scene
17 tape and prevent the public from coming and
18 going or the perpetrators from coming and going.
19 JUDGE CURRAN: Well, because this
20 is a fine area, you can ask him. He has already
21 said that he got that report -- that he was
22 given that or --
23 MR. MULLIN: That's why I laid
24 that foundation, Your Honor.
25 JUDGE CURRAN: You can ask him did
63
1 he protect, if that's the word that's used in
2 there. And then, if he says no, it's fair game
3 to ask him what he thinks protect or what in his
4 normal everyday business of investigating would
5 include protection. He may or may not say,
6 "crime scene tape." And then we will just go
7 from there.
8 MR. MULLIN: Okay.
9 MR. BEVERE: Fair enough. Thanks,
10 Judge.
11 JUDGE CURRAN: Thank you.
12 (Whereupon, sidebar discussion is
13 concluded.)
14 BY MR. MULLIN:
15 Q Sir, I'll show you what I have
16 marked as Plaintiff's Exhibit 134. Do you
17 remember earlier on I asked you if you were
18 aware that at least a general order existed
19 about bias investigation procedures?
20 A Yes.
21 Q That's what this is, right?
22 A Yes.
23 Q P-134 was issued by Chief Alfred
24 Cormann, right?
25 A Correct.
64
1 Q And in this general order it says
2 that the -- when the responding officer arrives
3 at the scene, he has to do various things,
4 right?
5 A Correct.
6 Q One of the things he has to do is
7 protect the crime scene in preparation for the
8 gathering of evidence, correct?
9 A Correct.
10 Q We agree that's in Chief Cormann's
11 general order, right?
12 A Correct.
13 Q Okay. What, if anything, did you
14 do to protect the crime scene?
15 A Well, my police vehicle was in the
16 driveway of North End Firehouse, preventing
17 anybody from -- any vehicles from leaving or
18 going into the area. I was talking with the
19 victims. I had the victims' safety in mind.
20 And there was no one coming in or out of the
21 crime scene. We had three officers at this time
22 on the scene, and everything appeared to
23 be protected.
24 Q Eventually, sir, after about ten
25 minutes in the firehouse, you left the crime
65
1 scene, right?
2 A I went inside the firehouse, correct.
3 Q Went inside the firehouse, spent
4 about ten minutes, right?
5 A Right.
6 Q Then you left the crime scene and
7 went back to the police station?
8 A After a short period, yes.
9 Q During that time you certainly
10 weren't there protecting the crime scene,
11 correct?
12 A Correct.
13 Q You don't know what was done to
14 protect the crime scene after you left, correct?
15 A Correct.
16 Q Have you described all the
17 measures that you took to protect the crime
18 scene?
19 A I believe so.
20 Q And do you recall that one of the
21 allegations that Carter and deVries made that
22 these firemen had climbed up on the fence in
23 their backyard and rocked it back and forth?
24 A I don't recall that.
25 Q Did you do anything to protect the
66
1 fence, to preserve it as physical evidence?
2 A No.
3 Q Okay. And one of the statements
4 made -- it was dark out there when you arrived,
5 right?
6 A Street lights on. It was kind of dark.
7 Q This is in the early morning
8 hours, around 1, 2:00 in the morning?
9 A Correct.
10 Q Did you do anything to protect the
11 sides and windows of the house where the deVries
12 and Carter alleged the people had been touching
13 and banging?
14 A No.
15 Q Okay. Did you do anything to
16 protect the parking lot area in the event there
17 might be some sort of shell casings there?
18 A No.
19 Q Did you seal it off from the
20 public?
21 A To be honest with you, the first -- the
22 first time I heard about any gunshots was in
23 your opening argument. I didn't hear anything
24 regards to that until then.
25 Q But you know that that night Dee
67
1 Bardini called in and said, "I heard gunshots"?
2 A From you stating that, I believe so.
3 Q Are you saying that's the first
4 time --
5 A That's the first time I have ever heard
6 that.
7 Q Nobody sent you out there to look
8 for gun shells?
9 A I don't recall that.
10 MR. MULLIN: I have nothing
11 further.
12 JUDGE CURRAN: Mr. Bevere.
13 MR. BEVERE: Thank you, Judge.
14 CROSS EXAMINATION BY MR. BEVERE:
15 Q Officer Ulrich, on the morning of
16 April 25th, 2004 you were on patrol, correct?
17 A Yes, I was.
18 Q You happened to be behind the
19 police desk --
20 A Yes.
21 Q -- when a call came in --
22 A Yes.
23 Q -- correct?
24 MR. MULLIN: Your Honor, can we
25 have a brief sidebar?
68
1 JUDGE CURRAN: Sure.
2 (Whereupon, the following sidebar
3 discussion is held.)
4 MR. MULLIN: So far it's not
5 consequential, but this -- Mr. Bevere is
6 leading. Well, this is his witness identified
7 with him. I called him as an adverse witness.
8 Now it's time for non-leading questions of his
9 own witness from his own police force.
10 MR. BEVERE: This is not my case,
11 Judge. I assume that my cross of Officer Ulrich
12 is going to be limited to what Mr. Mullin
13 brought out on direct examination based upon
14 Your Honor's prior rulings. This witness is
15 cross-examination.
16 MR. MULLIN: No, it's not.
17 It's -- it's examination, but it's vastly
18 non-leading questions because he is an adverse
19 witness.
20 MR. PARIS: You have a juror right
21 behind you.
22 JUDGE CURRAN: I'm usually at a
23 disadvantage here because I am not quite sure
24 what strategy everybody is employing. There may
25 be some issues that you'd have to bring him back
69
1 for. I don't know what the strategies --
2 MR. BEVERE: Judge, I understand;
3 but at this point, this is cross-examination.
4 This is my cross-examination of his witness.
5 MS. SMITH: It's not --
6 JUDGE CURRAN: Well, I mean,
7 technically -- technically it is your
8 cross-examination of their witness, even though
9 he is an adverse witness. That doesn't change
10 the rules. The fact that he -- I'm more
11 concerned about his being represented by your
12 firm than I am about the other issues.
13 MR. BEVERE: Meaning the fact that
14 my office is the attorney for the Town?
15 JUDGE CURRAN: Because often we
16 don't -- we don't have that too often. That's
17 my main concern. It's not -- you know, he could
18 have called a painter who painted a target on
19 the house or something separate issue, different
20 issue, you know. But that's what I'm mainly
21 concerned about.
22 How -- you planned this as your
23 cross, so you would ask him leading questions.
24 Is there any way not to ask him leading
25 questions and get the same information on the
70
1 record?
2 MR. BEVERE: I would like to think
3 that I am artful enough to do that. I will do
4 my best. You know, I planned it as
5 cross-examination; I can tell you that.
6 JUDGE CURRAN: I think it's fair
7 for you to have planned that. My concern is
8 because your firm represented and still does,
9 theoretically -- or certainly for depositions
10 represented him. What's your position as to
11 whether you represent him now or not?
12 MR. BEVERE: This witness? Well,
13 he is not a party to the case.
14 JUDGE CURRAN: Right.
15 MR. BEVERE: He is not a party.
16 He works for the Town. I represent the Town.
17 That's, you know -- but I don't represent him
18 individually. He is not a named defendant in
19 the case.
20 JUDGE CURRAN: He was never --
21 MR. BEVERE: Never.
22 JUDGE CURRAN: So you still
23 represented when he was -- even though he was
24 not a named defendant.
25 MR. BEVERE: Because he was a
71
1 representative of the Town.
2 JUDGE CURRAN: Exactly. So what
3 I'm asking you is: Are you arguing that his
4 status has changed in regard to being
5 represented by your firm as a member of the Town
6 organizations who are defendants -- now we are
7 down to one defendant, anyway.
8 MR. BEVERE: Yeah, what's -- he
9 is -- he was -- I was asked to produce him as a
10 representative of the Town. That's what I'm
11 producing him as, a representative of the Town.
12 I do not represent this person individually. He
13 has not been named in the case. He is here as a
14 representative of the Town. That's -- that's
15 all I could say.
16 JUDGE CURRAN: So the status has
17 not changed?
18 MR. BEVERE: You mean between
19 now --
20 JUDGE CURRAN: You always
21 represented him as a representative of the Town,
22 not you personally but your firm?
23 MR. BEVERE: I have always
24 represented -- I have represented the Town.
25 JUDGE CURRAN: The Town.
72
1 MR. BEVERE: I don't think I have
2 ever represented him.
3 MR. MULLIN: Well, I have the
4 deposition where Kelly Smith asked him, "Who
5 represents you"; and he says, "Ray" -- what is
6 his last name?
7 MR. BEVERE: I understand
8 Mr. Reddin said --
9 MR. MULLIN: And confirms that on
10 the record.
11 MR. BEVERE: I mean, quite
12 frankly, I wasn't there for what Mr. Reddin
13 said. He covered the deposition because I was
14 on trial someplace else. But I can tell you
15 that at the time he was being -- the -- he was
16 being deposed as a representative of the Town
17 and my firm was --
18 JUDGE CURRAN: That's understood.
19 MR. BEVERE: -- was there as the
20 attorney for the Town. We were never there as
21 the personal attorney for --
22 JUDGE CURRAN: No, no.
23 MR. BEVERE: Because he was never
24 sued.
25 JUDGE CURRAN: No, I did not mean
73
1 to indicate in any way --
2 MR. BEVERE: We were representing
3 the Town.
4 JUDGE CURRAN: -- you were his
5 personal attorney, such as Mr. Nulty was.
6 Just to be overly safe, I am, you
7 know, basically going to sustain the objection
8 or the potential objection here. If we get to a
9 problem, we'll try to handle the problem
10 individually. But I'm going to sustain the
11 objection, just to be overly safe. Thank you.
12 MR. MULLIN: Thank you.
13 JUDGE CURRAN: I will note your
14 objection is preserved.
15 MR. BEVERE: Thank you.
16 (Whereupon, sidebar discussion is
17 concluded.)
18 MR. BEVERE: I will rephrase the
19 last question, Your Honor.
20 JUDGE CURRAN: Thank you.
21 Appreciate it.
22 MR. BEVERE: I will.
23 BY MR. BEVERE:
24 Q So Officer Ulrich, where were you
25 when you first learned about the incident that
74
1 was occurring at 988 Schopmann Drive or the
2 North End Firehouse parking lot?
3 A I was behind the desk area.
4 Q What were you doing behind -- why
5 were you there?
6 A Actually, I think I just went to the
7 bathroom. And I was ready to go back on patrol,
8 and I stopped behind the desk for a minute. And
9 I noticed there was a phone call that came in,
10 and I waited to see what it was.
11 Q And who at the front desk did you
12 speak to about the phone call?
13 A Officer Firtion. I said to him, "What do
14 you got, Charlie?"
15 And he said, "There is a incident going
16 on up by the North End Firehouse."
17 I said, "All right."
18 You know, he told me, "There is
19 screaming going on."
20 I told him I'd head up there.
21 Q I'm sorry, can you tell us
22 everything that you recall Officer -- I'm sorry,
23 is Officer Firtion a police officer?
24 A He is actually on my squad. He is still
25 a police officer. Works with me on the midnight
75
1 shift.
2 Q Okay. It's your understanding he
3 received a phone call?
4 A Correct.
5 Q All right. And what did he tell
6 you about what was allegedly going on in the
7 parking lot of the North End Firehouse?
8 A First he stated there was people -- there
9 were people yelling in the North End Firehouse
10 parking lot, some type of disturbance going on.
11 I don't know his exacts words; it's been four
12 years. But I told him, "All right. No problem.
13 I will head up there" because it was my zone.
14 So --
15 Q Did you receive from Officer
16 Firtion any report of a gun being fired?
17 A No, I don't recall that at all.
18 Q So when you drove --
19 A I felt -- I believe I was driving up
20 there to stop a screaming match, to stop some
21 type of disturbance going on.
22 Q Okay. When you were -- when you
23 left the station house to drive to the North End
24 Firehouse --
25 A Correct.
76
1 Q -- were you aware of what the
2 content was of any of the shouting that was
3 going on?
4 A No.
5 Q Okay. Did you proceed directly
6 from the police station to the North End
7 Firehouse?
8 A Yes.
9 Q And while you were on route did
10 you receive any other radio transmission or
11 calls about the disturbance?
12 A Yes, there was a second transmission by
13 Officer Firtion.
14 Q Okay. And was that a transmission
15 from Officer Firtion to you?
16 A To me, as well as another unit, Officer
17 Moreda, to respond there. We got a second call
18 on it, he stated.
19 Q Did he give you any additional
20 information that you can recall as you're
21 sitting here today about the nature of the call
22 or what was told to him?
23 A No.
24 Q When you arrived at the North End
25 Firehouse I believe you told us on direct
77
1 examination that you pulled into the parking
2 lot, correct?
3 A Correct.
4 Q And when you pulled into the
5 parking lot, who did you see?
6 A I was met by Charles Snyder, Sr., Charles
7 Snyder, Jr. and Charles Mutschler.
8 Q All right. Were there any other
9 people in the parking lot that you could see?
10 A Not at this time, no one.
11 Q And when you got to the parking
12 lot, did you have some type of discussion with
13 the Snyders and Mutschler?
14 A Yes.
15 Q Can you relate to us from what you
16 recall --
17 A Sure.
18 Q -- and I realize it was almost
19 four -- over four years ago now. But can you
20 relate to us as you are sitting here today the
21 nature of the discussion between yourselves and
22 the Snyders and -- between you and the Snyders
23 and Mutschler?
24 A Yes. I -- when I arrived they came to my
25 vehicle, my side window before I even got out of
78
1 my vehicle. And I said, "What's up?"
2 They told me they were walking -- they
3 got just dropped off from a party bus, from a
4 firemen's award function right at the parking
5 lot. They said they were walking into the
6 parking lot to go into the firehouse and
7 somebody opened up the window on 988 Schopmann
8 and started screaming at them to, "Shut the fuck
9 up. Do you know what time it is?"
10 They told me they were screaming right
11 back at them, "Who the F are you to tell us to
12 shut the fuck up?" And it was a screaming match
13 then ensued. That's what they told me.
14 Q Did -- at that point in time, when
15 you were having the discussions with the Snyders
16 and Mutschler in the parking lot, did any of the
17 three of them indicate that they had said
18 anything of a bias or sexual nature --
19 A No.
20 Q -- to the plaintiffs?
21 A No.
22 Q Did they indicate to you that they
23 had either threatened the plaintiffs or the
24 lives of their dogs?
25 A No.
79
1 Q Okay. Was this -- this discussion
2 that you had with the Snyders and Mutschler,
3 were you in your patrol car, out of your patrol
4 car?
5 A I was in it. I believe I started getting
6 out of my car at the time after I put the car in
7 park.
8 Q Okay. When you pulled up to the
9 firehouse --
10 A Yes.
11 Q -- did you hear any disturbance
12 going on?
13 A No, it was completely quiet.
14 Q And -- and the only individuals
15 you saw were the ones that you just told us
16 about?
17 A Correct.
18 Q Okay. After you have this
19 discussion with the Snyders and Mutschler, what
20 did you then do?
21 A After I spoke to them I told them to
22 stand next to the firehouse. Officer Moreda had
23 arrived at this time. I said to Martin, Officer
24 Moreda, "Go stand and hang with the firemen.
25 I'm going to go speak" -- now, at this point I
80
1 believe Officer Firtion told us there was a
2 complainant that had called from 988 Schopmann,
3 to go speak to them, which I was going to do.
4 So I walking to speak to whoever complained at
5 988 Schopmann.
6 Q Okay. And then, when you -- you
7 proceeded over to 988 Schopmann?
8 A Correct.
9 Q And you had a discussion with
10 Mr. deVries and Mr. Carter?
11 A Yes.
12 Q Okay. Where did that discussion
13 take place?
14 A It took place on a porch. As I was
15 walking to the door Mr. Carter had opened the
16 door and greeted me. We kind of met at the same
17 point.
18 Q Okay. And did you ask Mr. deVries
19 or Mr. Carter if they needed any medical
20 attention?
21 A Yeah, I asked them are they all right?
22 They told me what was going on. I asked them if
23 they needed any assistance. And they said they
24 were fine. They were just upset. Mr. Carter
25 especially.
81
1 Q Did they appear to you to be in
2 any need of medical attention?
3 A No.
4 Q If they appeared to you to have
5 been in need of medical attention, would you
6 have called for medical attention?
7 A First thing.
8 Q And then you had a discussion with
9 Mr. deVries and Mr. Carter?
10 A Correct.
11 Q Can you relate to us the
12 discussion that you had with them from what you
13 could recall?
14 A Sure.
15 Q Once again, realizing it's now
16 four years later.
17 A I spoke to Mr. Carter mainly.
18 Mr. deVries was behind him, a little more inside
19 the house. Mr. Carter was upset, telling me
20 things that the firemen allegedly were saying
21 back to them. He -- the first thing Mr. Carter
22 told me was that he did open the window and yell
23 at them because he told me that this happens all
24 the time. He said it actually happens -- it's
25 been happening for three years. He says that
82
1 they were very loud and he was screaming back at
2 them.
3 Q What did he say had been happening
4 for three years?
5 A He said -- well, he told me that they
6 were screaming bias comments to him. He said
7 they were calling him -- you know, "Shut the
8 fuck up, you faggots. You want us to kill your
9 dogs? You want us to throw another condom over
10 your fence?"
11 Mr. Carter also had told me that two
12 weeks prior to this there was a condom that was
13 thrown over his fence. And again, he said it's
14 been going on for three years and, you know,
15 they're sick of this and, you know, something to
16 that effect.
17 Q Okay. Now, at any point in time
18 while you were having your discussion with
19 Mr. Carter did you ask Mr. Carter if he was able
20 to identify anyone who had made the comments?
21 A Yes, I asked both of them, actually.
22 Q You asked Mr. deVries, as well?
23 A DeVries, as well.
24 Q And what, if any, response did
25 they give to you to that question?
83
1 A I asked them if you would like to sign
2 any complaints, if he could recognize who was
3 screaming at them. And he said he'd like to but
4 he can't recognize anybody and he couldn't
5 hear -- he couldn't understand who was yelling
6 or screaming, as well.
7 Q Now, Mr. Mullin asked you a
8 question on direct examination about Mr. Carter
9 telling you that they threatened -- whoever was
10 yelling in the parking lot had threatened to
11 kill Mr. deVries and Mr. Carter, as well as the
12 dogs?
13 A Correct.
14 Q All right. As you're sitting here
15 today do you have a specific recollection of
16 Mr. deVries or Mr. Carter telling you that, that
17 the individuals that were yelling in the parking
18 lot threatened to kill them?
19 A What they stated was that they -- they
20 were threatening them is what they told me, that
21 they wanted to kill their dogs and/or them. I
22 can't really recall.
23 Q Okay. Now -- oh, another question
24 that I wanted to -- to ask you. When you spoke
25 to Mr. deVries and Mr. Carter, did they tell you
84
1 that people were trying to climb over their
2 fence?
3 A I don't recall that.
4 Q What, if anything, do you recall
5 Mr. deVries and Mr. Carter telling you about any
6 physical contact that may have been made by the
7 persons in the parking lot and their home?
8 A I remember Mr. Carter telling me that
9 somebody was banging against his fence. I don't
10 remember him saying anything about climbing over
11 the fence or anything to that effect.
12 Q Did you -- okay. Oh, I'm sorry, I
13 meant to ask you this, as well.
14 A No problem.
15 Q At any point in time while you
16 were speaking to Mr. deVries and Mr. Carter did
17 either of them indicate to you that they had
18 heard a gunshot or anything that sounded like a
19 gunshot?
20 A No, no, not at all.
21 Q At any point in time when you were
22 at the scene were you aware or did -- did it
23 come to your attention that anyone heard
24 something that sound like a gunshot?
25 A No, not at all.
85
1 Q Did you see any evidence while you
2 were there that a gun had been used?
3 A None.
4 Q The -- oh, and -- and the first --
5 when was the first time that you became aware
6 that antigay or bias remarks were alleged to
7 have been yelled at Mr. deVries and Mr. Carter?
8 A In speaking with Mr. Carter.
9 Q Okay. And that was when you were
10 on the porch?
11 A Correct.
12 Q Now, at some point while you were
13 on the porch speaking to Mr. deVries and
14 Mr. Carter there was an exchange that occurred
15 with Mr. Mutschler --
16 A Yes.
17 Q -- in the Fire Department parking
18 lot, correct?
19 A Right.
20 Q Can you tell us in your own words
21 your recollection of that exchange?
22 A Yes, I was talking to Mr. Carter. And
23 Mr. Mutschler yelled over, "Why don't you stop
24 fucking bothering us? We ain't bothering you."
25 I immediately told him to shut up.
86
1 And he said, "I'm sorry. I'm just
2 upset."
3 I said, "Enough." And that was it.
4 Q Okay. At any point in time during
5 that exchange did you move your body in such a
6 way as to block Mr. deVries' and Mr. Carter's
7 view of that person yelling?
8 A No, I didn't block their view. What I
9 believe, why I answered yes in the deposition,
10 what I was doing was I was -- I didn't want no
11 more altercation going on, so I didn't want, you
12 know, a shouting match going back and forth. So
13 I just tried to prevent and keep the peace for
14 the night and stop any further screaming going
15 on.
16 Q Okay.
17 A And he had already clearly stated to me
18 he couldn't identify anybody screaming or -- or
19 banging against his fence.
20 Q In other words, he had told you
21 that he couldn't identify anyone who had been
22 making the antigay comments and banging against
23 the fence?
24 A Correct, correct.
25 Q So when -- when Charles Mutschler
87
1 yelled what you just related to us he yelled, is
2 it your testimony that you put your body in such
3 a way as to -- to keep the peace?
4 A Yes.
5 MR. MULLIN: Objection, leading.
6 Ask that the answer and question be stricken.
7 JUDGE CURRAN: Sustained. The
8 answer and question will be stricken.
9 Please rephrase.
10 BY MR. BEVERE:
11 Q Okay. Officer Ulrich, what -- why
12 did you do that? Why did you do that when
13 Mr. Mutschler yelled what he yelled to the
14 plaintiffs' residence as you were talking with
15 them on the porch? Why did you do that with
16 your body that you told us about from the
17 deposition?
18 A I didn't want anyone else screaming
19 against each other. If allegedly what happened
20 there was a screaming match, I didn't want no
21 more to occur that night. I stood in the way.
22 I didn't want -- you know, I wasn't blocking
23 anybody from viewing anybody. I just didn't
24 want to have anybody screaming at each other.
25 Q Now, okay, I'm sorry. When
88
1 Mr. Mutschler yelled what he yelled to the
2 plaintiffs' residence, did he use any type of
3 antigay or bias remark or statement?
4 A No.
5 Q Now, at some point while you were
6 talking to the -- Mr. deVries and Mr. Carter on
7 their front porch --
8 A Yes.
9 Q -- did another officer arrive?
10 A The sergeant had arrived already at this
11 time.
12 Q Okay.
13 A Officer Moreda was already there.
14 Q And you had said you had left him
15 in the parking lot --
16 A Right, right.
17 Q -- to -- to --
18 A To --
19 Q -- to keep the peace?
20 A Correct.
21 Q The officer who arrived was who?
22 A Sergeant Amodeo.
23 Q And at the time he was your
24 superior officer --
25 A Yes, he was.
89
1 Q -- correct?
2 A Yes.
3 Q Is it fair to say that once
4 Sergeant Amodeo arrived on the scene, he was in
5 control of it?
6 A Absolutely.
7 Q And at that point everything that
8 you did or did not do --
9 A Was under his direction.
10 MR. MULLIN: Objection, leading,
11 Your Honor.
12 JUDGE CURRAN: Sustained.
13 MR. BEVERE: I apologize.
14 BY MR. BEVERE:
15 A Once the sergeant arrived, he was in
16 control of the scene.
17 Q Who was the decision-maker once
18 the sergeant arrived on the scene?
19 A Sergeant.
20 Q Now, when the sergeant arrived and
21 appeared on -- I'm sorry, when the sergeant
22 arrived, what do you recall him doing?
23 A I -- I walked to him, I believe, down off
24 the porch. I told him the statements that
25 Mr. Carter and Mr. deVries were telling me that
90
1 were said to them. I let him know, and he
2 immediately went to go speak to Mr. Carter and
3 Mr. deVries.
4 He instructed me to go into the
5 firehouse and get as many names of the people --
6 you know, the names and -- and address of the
7 people that are in the firehouse.
8 Q Okay. And then did you do that?
9 A Yes.
10 Q Okay. And did you put those names
11 in your report?
12 A Yes.
13 Q And that was your report that we
14 just read?
15 A Correct.
16 Q At any point in time did Sergeant
17 Amodeo instruct you to interview any witnesses?
18 A No.
19 Q Did -- at any point in time while
20 you were at the scene were you aware of Patricia
21 Hjelm or Dee Bardini?
22 A No.
23 Q Now -- and after -- when you went
24 to the fire -- when you when into the firehouse,
25 tell us what, if any, physical observations that
91
1 you made -- that you made while you were in the
2 building.
3 A Well, as soon as I walked in, it was a
4 little noisy in there. I -- jukebox was on.
5 Bunch of people were hanging out. I seen there
6 was alcoholic beverages on the bar within --
7 within the firehouse. People were talking and
8 hanging out.
9 Q How were people dressed?
10 A Casual. They were all casual. Nobody --
11 you know, some dressed nice, but they were all
12 dressed -- dressed like they just came back from
13 a engagement or a function.
14 Q Now, after you -- well, when
15 you -- when you arrived inside the firehouse,
16 what, if anything, did you say to the people in
17 the firehouse?
18 A I -- I did go in there, and I just got
19 their names and -- and their numbers -- I mean
20 and their addresses and just wrote it into my
21 notes.
22 Q I wanted to step back --
23 A Sure.
24 Q -- and ask you a question about
25 when you were outside on the porch --
92
1 A Uh-huh.
2 Q -- with Mr. Carter and Mr. deVries
3 and Mr. Mutschler yelled that comment to, "Shut
4 the F up. We're not bothering you." Did
5 Mr. Carter say to you at that point in time,
6 "That's the voice. I recognize that voice"?
7 A No.
8 Q I'm sorry, I was asking you about
9 what, if anything, you said when you went into
10 the firehouse; and I believe you answered that
11 question. Or did you not answer the question?
12 A I believe I did.
13 Q Okay. When you -- after -- and
14 did you get any resistance from anyone in the
15 firehouse to giving your name and address?
16 A No.
17 Q And after you obtained the names
18 and addresses of the people in the firehouse,
19 what then did you do?
20 A I went back outside. I believe I might
21 have went to my vehicle for a few minutes.
22 Sergeant was still in the house. After a short
23 period he came out. He was in there with them
24 for a while; but after I was done in the
25 firehouse, I came outside.
93
1 I told him, "I have everybody's name."
2 And he told me I could head to
3 headquarters and start on my report.
4 Q And is that what you did?
5 A Yes.
6 Q Okay. All right. And at some
7 point after the morning in question were you
8 contacted by Detective Reinke?
9 A One night when I was in work I believe is
10 when he -- I had to go see him. I was told to
11 come in and see him. And he told me if I could
12 think of anything else or, you know, if I -- you
13 know, try and think of everything possible and
14 do another report on that incident.
15 Q Okay. And did you do that --
16 A Yes, I did.
17 Q -- as instructed?
18 A Yes.
19 Q Officer Ulrich --
20 A Yes.
21 Q -- why did you not arrest anyone
22 that night --
23 A There was no --
24 Q -- or morning?
25 A There was no basis for an arrest that
94
1 night. There was nothing that I saw when I
2 arrived to -- any reason to arrest anybody.
3 There -- there was an alleged screaming match
4 going on. The only thing that was said in my
5 presence was by Mr. Mutschler, saying to leave
6 us alone, you know, stop bothering us. There
7 was no -- no reason for any arrest.
8 Q What you did see and observe while
9 you were at the scene you documented --
10 A Absolutely.
11 Q -- in two reports?
12 A Yes, I did.
13 Q And were those reports turned over
14 to the Detective Bureau?
15 A Yes.
16 Q And you're not a detective?
17 A No.
18 Q All right. Were you involved in
19 any way in any subsequent investigation except
20 for responding to the request by Sergeant Reinke
21 to provide follow-up report?
22 A No, I was not.
23 Q Did you handle your response to
24 this complaint that night any differently than
25 you would have handled any other complaint under
95
1 the same or similar circumstances?
2 A I handled everything the same, if not
3 more care toward the victims -- to the alleged
4 victims.
5 Q Did you do -- well, why do you say
6 you gave more care? Can you explain that for us
7 in greater detail?
8 A I made -- like I made sure I listened to
9 them. I made sure that they weren't physically
10 hurt, physically harmed in any way. I -- I took
11 a little care and just writing down everything
12 they said to me.
13 Q You did take notes?
14 A Yes, I did.
15 Q I think you believe -- you
16 testified in response to Mr. Mullin's question
17 that you discarded your notes?
18 A Correct, which I do all the time.
19 Q Okay. That was my next question.
20 A Yes.
21 Q Do you -- what is your procedure
22 with regard to note-taking, note retention; what
23 is it that you normally do?
24 A My procedure is to take as many notes as
25 possible and to put that into my reports. Once
96
1 my assignment pad is filled up, there is no need
2 to keep it. I mean, once I have everything in
3 my report, notes aren't needed to be kept.
4 Q Would there have been anything in
5 your notes that wasn't in your report?
6 A No.
7 Q Now -- and did you do anything in
8 response to this complaint or -- well, I'm
9 sorry, let me ask you this -- this question.
10 Were you subpoenaed to appear before the Grand
11 Jury?
12 A Yes.
13 Q All right. And did you appear?
14 A Yes.
15 MR. BEVERE: Judge, I may be done.
16 If I can just look at my notes for a minute or
17 two.
18 JUDGE CURRAN: We will go off the
19 record for a moment.
20 COURT CLERK: Off the record.
21 (Whereupon, a discussion is held
22 off the record.)
23 BY MR. BEVERE:
24 Q I'm sorry, my last question to
25 you --
97
1 JUDGE CURRAN: Back on the record.
2 MR. BEVERE: I apologize, Judge.
3 COURT CLERK: Back on the record.
4 BY MR. BEVERE:
5 Q At any point in time that morning
6 while you were on the porch speaking to
7 Mr. deVries and Mr. Carter did they indicate to
8 you that they heard anything that sounded like
9 an explosion?
10 A No.
11 MR. BEVERE: I have no further
12 questions at this time, Judge.
13 You think I am going to say
14 something earth-shattering; but unfortunately,
15 I'm not.
16 JUDGE CURRAN: Would you like to
17 take a break?
18 MR. BEVERE: No, I'm fine, thank
19 you, Judge.
20 JUDGE CURRAN: Thank you.
21 MR. BEVERE: It's just -- can we
22 come to sidebar --
23 JUDGE CURRAN: Sure.
24 MR. BEVERE: -- briefly?
25 (Whereupon, the following sidebar
98
1 discussion is held.)
2 MR. BEVERE: The only thing that I
3 wanted to say was that he -- I do reserve the
4 right to recall Officer Ulrich in my case. And
5 that was the only thing I wanted to add. But we
6 can wait until Mr. Mullin is done with any
7 redirect.
8 JUDGE CURRAN: Sure, no problem at
9 all.
10 MR. BEVERE: Thank you.
11 (Whereupon, sidebar discussion is
12 concluded.)
13 REDIRECT EXAMINATION BY MR. MULLIN:
14 Q sir.
15 A Yes.
16 Q You have been these past 20 years
17 employed by the Police Department of Secaucus,
18 right?
19 A Correct.
20 Q And that night you were involved
21 in a criminal investigation by the Police
22 Department, right?
23 A Correct.
24 Q You have not -- and you did not
25 assist in determining whether or not the Town
99
1 Administrator, the Mayor or the Town Council
2 should reopen that firehouse? You had no role
3 in that, right?
4 A Right.
5 Q You had no role in the decision
6 whether or not the Fire Chief should fire or
7 suspend the firefighters that were at the scene
8 that night, right?
9 A Correct.
10 Q You had no role in determining
11 whether or not the Fire Chief, the Mayor, the
12 Town Council or the Town Administrator should
13 fire or suspend firefighters who refused to
14 cooperate with you fellas in the Police
15 Department, right? You had no role in that
16 decision?
17 A Correct.
18 Q You were focusing on a criminal
19 investigation, right?
20 A Correct.
21 Q Now, sometimes when you come to
22 crime scene, the people who are alleged to
23 be the perpetrators, well, they don't tell the
24 truth about whether or not they did something,
25 right?
100
1 A Correct.
2 Q They don't say, "I committed a
3 bias crime," right? That's not the way
4 perpetrators normally operate, right?
5 A Correct.
6 Q Sometimes perpetrators lie to
7 police, right?
8 A Correct.
9 Q And sometimes it's the case that
10 victims need assistance of the police and
11 detectives in order to identify the people that
12 harm them, right?
13 A Correct.
14 Q For example, when somebody is
15 murdered, just to use an example, they usually
16 can't tell you who committed the crime, right?
17 A Correct.
18 Q And that doesn't mean just because
19 they can't identify the perpetrators personally,
20 right, the police walk away, well, that's the
21 end of it? The dead person is not identifying
22 the perp, so we don't have a crime here, right?
23 A Correct.
24 Q And sometimes even people that
25 aren't killed but people who are hit from
101
1 behind, mugged, stabbed, shot, sometimes they
2 can't identify the perpetrators, right?
3 A Correct.
4 Q And your job and the job of the
5 Police Department is to assist them in every way
6 possible to identify the perpetrators, right?
7 A Correct.
8 Q And that's done through good, hard
9 police work, right?
10 A Correct.
11 Q Okay. Now, this -- these folks
12 who are claiming it was just a screaming match,
13 right, that's what they were telling you, these
14 firefighters?
15 A Correct.
16 Q Okay. And in none of your reports
17 do you ever say that you heard Peter deVries or
18 Tim Carter screaming back at them, right? You
19 don't say that in your report, right?
20 A Right.
21 Q Because that never happened while
22 you were there, right?
23 A Right.
24 Q You did hear Charles Mutschler
25 yelling right at them?
102
1 A Correct.
2 Q So you didn't have to stand
3 between them in order to stop -- you didn't have
4 to stand between Tim Carter and Peter deVries,
5 on the one hand, and the two Snyders and
6 Mutschler? You didn't have to put your body in
7 between them because you were in the middle of a
8 screaming match, right?
9 A Correct.
10 Q Just these firefighters told you
11 there had been a screaming match, right?
12 A Correct.
13 Q Are you aware, sir, Patricia Hjelm
14 has testified under oath through deposition and
15 a sworn statement that she heard some of this
16 and she was specifically asked the question by
17 the Police Department, "Did Carter scream back?"
18 and her answer was, "No"? Are you aware of
19 that?
20 A No.
21 Q Are you aware that shortly before
22 you arrived one of the 911 calls that Officer
23 Firtion took was Peter deVries saying that he
24 heard at that point, when he was standing on the
25 landing, three voices screaming abuse, three?
103
1 Are you aware of that even today?
2 A No.
3 Q And you weren't aware of it that
4 night?
5 A No.
6 Q And Officer Firtion didn't tell
7 you that?
8 A No.
9 Q And you arrived at the scene of
10 the parking lot and there were three people,
11 right?
12 A Correct.
13 Q And they were in the parking lot,
14 right?
15 A Yes, yes.
16 Q And one of them started screaming
17 while you were there, right?
18 A One.
19 Q And screaming at Tim Carter,
20 right? And you didn't arrest them, right?
21 A Correct.
22 Q Now, in your testimony, when I
23 first asked you on direct whether you heard them
24 threaten -- whether you heard these firefighters
25 threaten to -- excuse me, whether you heard Tim
104
1 Carter tell you or Peter deVries tell you the
2 firefighters had threatened to kill them, you
3 originally testified that yes, you had? Kill
4 them and their dogs, that was your testimony in
5 front of this jury, correct?
6 A Correct.
7 Q When you just testified, when --
8 when Dan Bevere was talking to you, what did
9 they say, you went back to what you wrote in
10 your report, that they threatened to kill their
11 dogs. Do you realize you dropped out of that in
12 your testimony just now, we will kill you,
13 deVries and Carter?
14 A Correct.
15 Q And then, when he questioned --
16 when Mr. Bevere questioned you further, you went
17 back and you said, well, I'm not clear. You
18 know, it was maybe, and/or?
19 A Correct.
20 Q It helps protect the firemen from
21 arrest, if you don't write down that my clients
22 heard that -- that firemen threatened to kill
23 them, right? That helps protect them from
24 prosecution?
25 MR. BEVERE: Objection,
105
1 argumentative.
2 JUDGE CURRAN: Sustained.
3 You can rephrase.
4 BY MR. MULLIN:
5 Q Now, I'm trying to understand what
6 you said about timing. You've testified here
7 that you spent a few minutes in the parking lot
8 when you arrived, right?
9 A Correct.
10 Q Then a few minutes on the porch
11 with deVries and Carter, right?
12 A Approximately ten minutes with them.
13 Q About ten minutes. And then you
14 went over to the firehouse and spent sometime
15 there, about ten minutes, I think?
16 A First I spoke to the sergeant for about a
17 minute or two. Then I went over to the
18 firehouse.
19 Q Then you came back to the house;
20 is that what you testified in response to Mr.
21 Bevere? And you met Amodeo?
22 A No, I met the sergeant after I was
23 speaking with -- to Mr. Carter and Mr. deVries.
24 Q Oh, he came on the scene?
25 A Correct.
106
1 Q Did you see him again before you
2 left the scene, Amodeo?
3 A Yes.
4 Q And when did you see Amodeo again?
5 A When he finally came back out of the
6 house.
7 Q He had finished talking to Carter
8 and deVries?
9 A Correct.
10 Q And how long had it been that you
11 had been on the scene when -- when Amodeo came
12 out of the house and you saw him again?
13 A Sergeant -- 25 minutes, 20 minutes.
14 Q Twenty-five minutes?
15 A Maybe something to that effect.
16 Q You went into the firehouse. And
17 did you tell this jury that in the firehouse, in
18 the Secaucus Firehouse, in the North End
19 Firehouse there was a jukebox and a bar; is that
20 right?
21 A Correct.
22 MR. MULLIN: Nothing else.
23 Q Thank you, sir.
24 A Okay.
25 JUDGE CURRAN: Mr. Bevere.
107
1 RECROSS EXAMINATION BY MR. BEVERE:
2 Q Officer Ulrich, did you purposely
3 not arrest someone that night to protect
4 anybody?
5 A Absolutely not. There was no basis for
6 any arrest.
7 Q In other words, when you say there
8 was no basis for any arrest, I need to
9 understand a little better why it is that you
10 believed that night that there was no basis to
11 arrest any particular person.
12 A There was nothing said in my presence
13 that required an arrest. If I was to arrest
14 somebody for saying, "Shut the fuck up. Stop
15 bothering me," I would be arresting my wife
16 every day.
17 Q Now -- now, Officer, let me ask
18 you maybe one or two quick follow-up questions.
19 At -- at any point in time --
20 MR. BEVERE: Judge, I have to
21 think about how to phrase this without running
22 afoul of a leading question objection, so if you
23 will give me a moment.
24 JUDGE CURRAN: Sure.
25 MR. BEVERE: Just grab my note.
108
1 MR. BEVERE:
2 Q I believe that on direct
3 examination Mr. Mullin had you read certain
4 portions of your report --
5 A Correct.
6 Q -- correct?
7 A Yes.
8 Q And once again, what was the
9 function of your report? Like what purpose does
10 that report serve?
11 A To show what occurred. The best of my
12 knowledge, what occurred that night.
13 Q Was it your understanding that the
14 Detective Bureau would follow up and investigate
15 this incident?
16 A Absolutely. That's what they do.
17 Q And was it your understanding
18 that, if they needed any additional information
19 from you, they would contact you?
20 A Correct.
21 Q And that it was the Detective
22 Bureau that would determine when charges were
23 appropriate?
24 MR. MULLIN: Objection, Your
25 Honor.
109
1 JUDGE CURRAN: Sustained.
2 MR. MULLIN: These are all leading
3 questions.
4 BY MR. BEVERE:
5 Q And Officer Ulrich, when you were
6 requested by the Detective Bureau to provide
7 additional information, did you provide that
8 information?
9 A Yes, I did.
10 Q Okay. Now, is it uncommon, when
11 you arrive on the scene of what you appear to
12 be a dispute, that certain parties say one thing
13 and certain parties say something else?
14 A All the time.
15 Q Okay. And what do you typically
16 do in those situations?
17 A As long as there is nothing that occurred
18 in my presence, I get the statements from
19 everybody, both sides, and I document that in my
20 report. Once the supervisor is on the scene, he
21 is in control of the scene from then forth.
22 Q Okay. Thank you.
23 A You're welcome.
24 FURTHER REDIRECT EXAMINATION BY MR. MULLIN:
25 Q Officer, You keep talking about
110
1 unless something occurred in my presence. Well,
2 there is no arrest. Let's say my wife murdered
3 me in Hudson County outside your presence. Does
4 that mean you don't -- there is not a crime and
5 you don't arrest her?
6 A Of course not.
7 Q Just because a crime didn't happen
8 in your presence, that doesn't mean there were
9 no arrests, right?
10 A That's correct.
11 Q That's kind of what you were
12 saying, isn't it officer?
13 A A murder is a little different than
14 people screaming at each other.
15 Q People screaming at each other --
16 this was a bias crime, wasn't it?
17 A Alleged bias crime.
18 Q This was a crime where -- excuse
19 me. This was an alleged crime where people said
20 they -- that firemen threatened to kill them,
21 while trying to climb over their fence, while
22 pounding on their house, screaming,
23 "Homo, homo, homo." A witness named Dee Bardini
24 told the police she heard three gunshots; and
25 that's in a police report. She testified here
111
1 that she dropped to her knees in fear when she
2 heard those shots and --
3 A Sir, I could assure you --
4 Q Are you characterizing this as
5 just a screaming match?
6 A I could assure you if any of that took
7 place --
8 JUDGE CURRAN: Is there an
9 objection?
10 THE WITNESS: Oh, sure, no
11 problem.
12 JUDGE CURRAN: Is there an
13 objection?
14 MR. BEVERE: Judge, I object to
15 the compound nature of the question and
16 characterization of this -- of counsel of the
17 evidence that this witness did not hear.
18 JUDGE CURRAN: Sustained.
19 MR. BEVERE: Thank you.
20 BY MR. MULLIN:
21 Q Sir, you didn't take any witness
22 statements that night, correct?
23 A Correct.
24 Q And when my clients tried to see
25 who was screaming at them in the parking lot,
112
1 you took your large upper body and you know --
2 I'm not commenting on your weight; I am just
3 commenting on your strength and size.
4 A No problem.
5 Q And you stuck it between my
6 clients and the perps, and then you say they
7 couldn't identify anybody. Isn't that what you
8 are saying?
9 A Prior to me even -- prior to me -- prior
10 to anything said, they had told me that they
11 couldn't identify anybody.
12 Q But your job was to help them
13 identify somebody? You're a cop. They're
14 victims, right?
15 A If -- correct, alleged victims.
16 Q You were really happy, weren't
17 you? You felt happy that they were saying, "I
18 can't identify any of these fire" --
19 A No.
20 MR. BEVERE: Objection.
21 JUDGE CURRAN: Sustained.
22 BY MR. MULLIN:
23 A That's not true.
24 Q You knew Chuck Snyder, Sr. for 20
25 years at that point, right?
113
1 A Doesn't mean I like him.
2 Q Yeah, well, I'll give you that.
3 A I mean, it's -- they're acquaintances. I
4 just know them from being in Town.
5 Q And Chuck Snyder, Jr. worked as a
6 police dispatcher right next --
7 A Yes.
8 Q -- to Officer Firtion, right?
9 A I don't know if he worked with him on
10 nights, but he worked with him before. He
11 actually worked the day shift, I believe.
12 MR. MULLIN: I have no further
13 questions.
14 A Thank you.
15 JUDGE CURRAN: Mr. Bevere.
16 FURTHER RECROSS EXAMINATION BY MR. BEVERE:
17 Q Officer Ulrich, did you have any
18 type of social relationship with either the
19 Snyders or Mr. Mutschler?
20 A No, I haven't.
21 Q Thank you.
22 JUDGE CURRAN: Anything else?
23 MR. MULLIN: I think that's it.
24 MR. BEVERE: Thank you, Judge.
25 JUDGE CURRAN: Is there -- sorry.
114
1 Is there anyone on the jury who has a question
2 for this witness? If so, please indicate to me
3 that you are writing down a question. I see no
4 questions.
5 Thank you.
6 THE WITNESS: Thank you, Judge.
7 JUDGE CURRAN: You may step down.
8 THE WITNESS: Thank you.
9 (Whereupon, the witness is
10 excused.)
11 MR. BEVERE: Judge, maybe we
12 should just approach briefly, talk about
13 scheduling.
14 JUDGE CURRAN: Surely.
15 MR. BEVERE: Your Honor, I believe
16 that the witnesses from Secaucus Police
17 Department probably came -- I'm not positive,
18 may have come together. Let me just refresh
19 their --
20 JUDGE CURRAN: We will go off the
21 record.
22 MR. BEVERE: -- memory of the
23 sequestration order.
24 COURT CLERK: Off the record.
25 MR. BEVERE: Mr. Paris will do
115
1 that, Judge. We can proceed.
2 COURT CLERK: Back on the record.
3 JUDGE CURRAN: Back on the record.
4 (Whereupon, the following sidebar
5 discussion is held.)
6 JUDGE CURRAN: Back on the record.
7 MR. MULLIN: I guess who do we
8 have next?
9 MR. BEVERE: I have Amodeo and
10 then Malanka.
11 MR. MULLIN: Well, Judge, I'm okay
12 if you want to break for lunch now or not.
13 JUDGE CURRAN: Is it okay?
14 MR. BEVERE: Doesn't matter to me.
15 JUDGE CURRAN: That way you don't
16 have to interrupt any witness.
17 MR. MULLIN: I don't think there
18 will be any problem finishing witnesses after
19 lunch.
20 MR. BEVERE: I have three
21 witnesses after lunch. I have Lieutenant
22 Amodeo. I have Captain Malanka and Richard
23 Johnson.
24 MR. MULLIN: Right. Well, I don't
25 think -- I think two of them are pretty short
116
1 witnesses, and one of them is a little long but
2 not --
3 JUDGE CURRAN: 1 to 4 should be
4 enough time?
5 MR. BEVERE: I can't imagine it
6 wouldn't be, Judge, to be honest with you.
7 Thanks.
8 JUDGE CURRAN: Thank you.
9 (Whereupon, sidebar discussion is
10 concluded.)
11 JUDGE CURRAN: Ladies and
12 Gentlemen, we will take the lunch break now, so
13 we don't have to interrupt the next witness.
14 Again I will remind you, please
15 don't discussion the case amongst yourselves;
16 and don't discuss it with anyone else.
17 We'd appreciate it if you would
18 be back at 1:00. Thank you.
19 Off the record.
20 COURT CLERK: Off the record.
21 (Whereupon, the jury is excused
22 for lunch.)
23 (Whereupon, a luncheon recess is
24 taken.)
25 A F T E R N O O N S E S S I O N
117
1 (Whereupon, the jury is brought
2 into the courtroom.)
3 COURT CLERK: On the record.
4 JUDGE CURRAN: I will note for the
5 record that the jury has returned to the jury
6 box.
7 And the plaintiffs can call their
8 next witness. Mr. Mullin.
9 MR. MULLIN: Yes, Your Honor, I
10 would call Lieutenant Amodeo to the stand.
11 JUDGE CURRAN: Thank you.
12 MR. MULLIN: Thanks.
13 MS. HAWKS: Please raise your
14 right hand and place your left hand on the
15 Bible.
16 L I E U T E N A N T G L E N N A M O D E O is
17 duly sworn by a Notary public of the State
18 Of New Jersey and testifies under oath as
19 follows:
20 MS. HAWKS: For the record, please
21 state your full name and spell your last name,
22 please.
23 THE WITNESS: Lieutenant Glenn
24 Amodeo. A-m-o-d-e-o. Secaucus Police
25 Department.
118
1 MS. HAWKS: Thank you.
2 JUDGE CURRAN: Thank you. Please
3 give us your address for the record. You may be
4 seated.
5 THE WITNESS: 214 Benjamin Street,
6 Toms River, New Jersey.
7 JUDGE CURRAN: Thank you. You are
8 under oath. All your testimony must be truthful
9 and accurate to the best of your ability. Do
10 you understand?
11 THE WITNESS: Yes, ma'am.
12 JUDGE CURRAN: Thank you. Please
13 move a little closer to the microphone.
14 Mr. Mullin.
15 MR. MULLIN: Thank you.
16 DIRECT EXAMINATION BY MR. MULLIN:
17 Q Good afternoon, Lieutenant.
18 A Good afternoon, sir.
19 Q Sir, where are you currently
20 employed?
21 A At the Secaucus Police Department.
22 Q You currently a lieutenant there?
23 A That's correct.
24 Q Okay. And can you tell us when
25 you started with the Secaucus Police Department?
119
1 A September 30th of 1983.
2 Q What was the date?
3 A September 30th of 1983.
4 Q 1983?
5 A Yes, sir.
6 Q And can you tell us -- you started
7 off -- you went to the Essex County Police
8 Academy?
9 A Yes, sir.
10 Q And I take it at the Essex County
11 Police Academy you studied -- one of the courses
12 you took was 2C, the laws -- the criminal laws
13 of the State?
14 A Criminal laws of the State of New Jersey,
15 yes, sir.
16 Q And then you started as a police
17 officer; is that right?
18 A That is correct also.
19 Q And sir, at some point you were
20 promoted to a sergeant; is that right.
21 A Yes, sir, that was in year 2000.
22 Q That was in the year 2000? And at
23 the time of the incident involved in this case
24 of April 24th, 25th, 2004, you were a sergeant
25 at that time; is that correct?
120
1 A Yes, sir, it is.
2 Q Okay. And to help us with the
3 chain of command on that date -- in April 2004
4 you were a sergeant -- who did you report to?
5 And take us all the way up the chain of command.
6 A On the early morning hours of the date in
7 question I was the highest ranking officer
8 on-duty.
9 Q So you, in effect, were taking the
10 place of the Chief of Police at -- for -- on
11 behalf of the Police Department?
12 A No, sir. I will disagree with that
13 because the Chief is a policy-making position;
14 and I certainly had no policy-making authority.
15 Q Okay. So what did you mean by
16 that, when you said?
17 A I meant simply that I was the highest
18 ranking officer on-duty. There were no -- there
19 were no lieutenants on-duty at the moment.
20 There were no captains on-duty. There were --
21 there were two sergeants assigned to be working.
22 One of them, for whatever reason -- and I don't
23 know why -- was not there that evening.
24 Q Okay. Let's forget that
25 particular night. And I just want to establish
121
1 for the record --
2 A Okay.
3 Q -- what the chain of command was
4 in or about April of 2004. You were a sergeant.
5 What level did you report to?
6 A Honestly, I would have to look at a table
7 of organization from that particular date. I
8 don't believe -- I don't believe that there were
9 captains at that time. I could be wrong. There
10 was one lieutenant in particular but was not
11 assigned to the night tour. I believe he
12 went -- he also had a squad, as I do now. The
13 situations were kind of parallel.
14 Q Did sergeants normally report to
15 lieutenants in 2004?
16 A Not directly.
17 Q Did they report to captains in
18 2004?
19 A Captain Buckley was in place and
20 Captain -- I don't know if Captain Rozansky was
21 even in place.
22 Q You don't know who you reported to
23 on April 24th, 25th --
24 A I don't recall the rank structure.
25 Q Do you recall who you reported to
122
1 that night? As of that night who did you report
2 to? Who was your boss?
3 MR. BEVERE: Does he mean on the
4 night, Judge, or at the time?
5 Q Let's say on the night -- in the
6 early morning hours of April 25th, 2004 who was
7 your direct boss?
8 A There was no direct boss on-duty.
9 Ultimately I report to the Chief of Police. I
10 know it's difficult to believe in this day in
11 age, but the organizational hierarchy of the
12 Secaucus Police Department is kind of like a
13 broom.
14 Q How so?
15 A There are -- it's narrow at the top; and
16 it's kind of broad at the bottom, like the
17 bristles.
18 Q Okay. I understand.
19 A I am not attempting to be evasive.
20 Q I'm not suggesting it. I'm just
21 trying to --
22 A I am trying to answer your questions with
23 every degree of certainty that I have, but I
24 can't honestly ask -- answer what you're asking.
25 Q Thank you, sir. We'll go on to
123
1 another topic. In the early morning hours of
2 April 25th, 2004 did there come a time when you
3 responded to some incident in the vicinity of
4 988 Schopmann and/or the North End Fire Station?
5 A Yes, sir.
6 Q And you wrote a report about what
7 happened that night, right?
8 A Yes, sir.
9 Q Maybe it will save some time for
10 us to just go through that report. Okay?
11 A Sure.
12 Q I will give you a copy of it,
13 which is P-350. And I think I have a blowup of
14 it. Sir, I will show you what's been marked as
15 P-350, two-page document. And I'll ask you if
16 you recognize that document?
17 A Yes, sir, I do.
18 MR. BEVERE: Your Honor,
19 permission to stand in the jury box -- rear of
20 the --
21 JUDGE CURRAN: Sure.
22 MR. BEVERE: Thank you.
23 BY MR. MULLIN:
24 Q And sir, I have a blowup over here
25 to assist the jury; and you have it over there.
124
1 Okay?
2 A Yes.
3 Q And I'm not going to prevent you
4 from looking at your report. I just want to
5 take you through your report. Okay?
6 A Very good, sir.
7 Q So let's -- P-350, well, that has
8 your signature on it, right?
9 A Yes, sir, it does.
10 Q And it's on a standard
11 Supplementary Investigation Report form of the
12 Secaucus Police Department; is that right?
13 A Yes, sir.
14 Q And do you type this out? And you
15 signed it, right?
16 A Yes, sir.
17 Q It's two-page document, right?
18 A That's correct.
19 Q And when it says, "The
20 undersigned," which is the way the report
21 begins, that refers to you, sir, right?
22 A It does.
23 Q And it says, "The undersigned,"
24 you, "met with the victims." That is Tim Carter
25 and Peter deVries; is that right?
125
1 A Yes, sir.
2 Q And they told you that they had
3 suffered from a repeated course of conduct aimed
4 at causing annoyance or alarm motivated by their
5 sexual orientation; is that right?
6 A Yes, sir.
7 Q They told you that?
8 A Yes, sir.
9 MR. MULLIN: Let me just clarify
10 for the record that this is a -- document here
11 says, "P-220"; it's a duplicate. It's also
12 P-350, Your Honor, for the record.
13 Q Okay. And the deVries and Carter
14 told you that they rented the listed home,
15 right, that they were in?
16 A Yes, sir.
17 Q That they were renters, right?
18 And they told you that night and you sat there
19 in the living room and talked to Mr. Carter
20 primarily; is that right, sir?
21 A That is correct, yes, sir.
22 Q And he told you that they, deVries
23 and Carter, had been subjected to verbal taunts,
24 threats and other acts which negatively impacted
25 the quality of their life, right?
126
1 A Yes, sir.
2 Q And he told you that such other
3 acts included loud noise at unreasonable hours,
4 fornication in vehicles parked alongside their
5 home, discarding personal trash on their
6 property? He told you that, right?
7 A He did.
8 Q And he told you -- he specifically
9 referenced an incident where he discovered a
10 condom containing semen in a Trojan box
11 discarded on the deck at the rear of his home;
12 is that right?
13 A Yes, sir.
14 Q And further stated that these
15 incidents are being perpetrated by members of
16 the fire company, right?
17 A That was his allegation, yes, sir.
18 Q And that's what he told you that
19 night sitting on the couch, correct?
20 A Yes, sir. Those are my words.
21 Q And that's what -- you're not
22 quoting him, right?
23 A Yes.
24 Q You are kind of summarizing --
25 A Exactly.
127
1 Q -- what he told you?
2 A I was mirroring what he relayed to me.
3 Q By the way, how long after you --
4 you interviewed or, I should say, spoke to
5 Mr. Carter, Mr. deVries did you write this
6 report? Did you type it up?
7 A I believe that it was immediately after
8 we had gotten most of the people out of the
9 firehouse. I left Officer Moreda there with the
10 last few.
11 Q Okay.
12 A They were the most obstinate ones.
13 Q We will get to that a little
14 later.
15 A Yes, sir. And that's when I took the
16 barrel with the beer and went back to the
17 station with that.
18 Q Right, took some evidence from the
19 firehouse?
20 A Yes, sir. I believe that that was when I
21 would have done this.
22 Q So --
23 A I can't say with a hundred percent
24 certainty, but I believe that --
25 Q Okay.
128
1 A -- that's --
2 Q Within an hour or two or three
3 after you spoke to Mr. Carter --
4 A Yes, sir.
5 Q -- and Mr. deVries. It was
6 primarily Mr. Carter, right?
7 A Yes.
8 Q Okay. You wrote in your report,
9 "On this date the victims allege that Mr. Carter
10 spoke with unidentified parties outside the
11 firehouse with respect to the level of noise."
12 Mr. Carter told you that at some point he went
13 out on his porch and said -- told these
14 firefighters, whoever was over there, to keep
15 the noise down, right? Is that what he told
16 you? Words to that effect?
17 A The words, yes, sir. I don't recall him
18 ever telling me that he made that communication
19 from the deck. I was --
20 Q Okay.
21 A -- unsure of where the communication was
22 actually made.
23 Q So you didn't even specify --
24 A No, sir.
25 Q -- one way or another? And you
129
1 said, "This occurred just prior to this agency,"
2 meaning the Police Department, "being notified,"
3 right?
4 A Yes, sir.
5 Q And Mr. Carter told you that
6 apparently members of the North End Company and
7 their escorts were returning from an awards
8 banquet and they were alighting from the bus and
9 caused -- and they are the ones who caused the
10 disturbance? That's what Carter told you?
11 A No, sir, that was a determination that I
12 made.
13 Q Okay. So there you're saying
14 you --
15 A Hence the "apparently."
16 Q I see. Based on your view of the
17 facts at the time, members of the North End Fire
18 Company and the women they were with were
19 returning from an awards banquet and they're
20 leaving the bus caused the disturbance, that's
21 what you wrote and that's what you concluded,
22 right?
23 A Yes, sir.
24 Q You say after that, "The victims
25 then state that unknown actors proceeded to bang
130
1 on the side of the house facing the parking lot;
2 and something may have been thrown against the
3 home, as well." This is something Mr. Carter
4 told you, right?
5 A That is correct, sir.
6 Q And the -- next you said, "In
7 addition, the unknown actors did then verbally
8 taunt the victims by yelling that the village
9 homos don't belong here." This, again, is
10 something Carter reported to you that night,
11 right?
12 A He did. And his words were "village
13 homos," hence the quotation marks.
14 Q Then it says in the report,
15 "Numerous other sexually oriented epithets were
16 directed at the victims, including cock-suckers,
17 sword-swallower and faggot." Is this, again,
18 something Carter is saying to you?
19 A Yes, sir.
20 Q It says, "The victims also stated
21 that the actors threatened their lives, as well
22 as the lives of their dogs." And again, is this
23 something Mr. Carter told you?
24 A Yes, sir.
25 Q Said, "The victims expressed a
131
1 genuine fear for their safety." Is that
2 something Mr. Carter told you that night?
3 A Yes, sir.
4 Q And you say you, "advised them
5 that I would be posting an officer on this site
6 for the remainder of the tour to ensure no
7 further incidents of retaliation"; is that
8 right?
9 A Yes, sir.
10 Q And in fact, you did ensure that a
11 police officer -- I think there were two police
12 officers, one after the other, stationed
13 until -- for some hours near their house; is
14 that right?
15 A Through the remainder of the night tour.
16 The officer that was posted there was properly
17 relieved by another officer so that he could
18 have his meal period. And then the day tour --
19 the officer didn't leave until an officer from
20 the day tour properly relieved him.
21 Q Thank you. And you said the home
22 was also placed on a priority check for Zone 3?
23 A Yes, sir.
24 Q That was a system whereby you
25 wanted to have police cars drive by on a regular
132
1 basis; is that right?
2 A Yes, sir. It was a redundancy that we
3 would have the officer that had called for
4 service responsibility in that area at least
5 hour -- originally hourly, drive by the house,
6 even though there was a -- an officer on scene.
7 Q So the victims -- you write --
8 continuing with your report, you wrote, "The
9 victims expressed the desire" -- "their desire
10 to pursue the matter with complaints but cannot
11 identify any specific actor at the time of the
12 report." And that's something that you wrote,
13 that they indeed wanted to go forward with
14 criminal complaints, if possible, right?
15 A Yes, sir. And Mr. Carter was, you know,
16 firm in his position that he couldn't identify
17 anyone physically with any degree of specificity
18 to point that it was somebody in a black suit,
19 it was somebody in a red tie, it was a tall guy,
20 a short guy, a heavyset guy.
21 Q In fact, you may recall, did
22 Mr. Carter and/or deVries say during this
23 incident, "We were afraid to even go near the
24 windows or look out the windows?" Do you recall
25 that?
133
1 A I don't recall that, sir.
2 Q Okay. You say, "They were advised
3 that a detective would follow up the case with
4 them." Is that something you told the -- Carter
5 and deVries?
6 A Yes, sir.
7 Q That a -- you say, "They were also
8 advised they might seek redress of their
9 grievance with the North End Company as a
10 professional standards complaint filed with the
11 Town Administrator and additional assistance
12 through the Office of Victim Advocacy" -- "of
13 Victim-Witness Advocacy." And that's something
14 you told them that night, right?
15 A Yes, sir.
16 Q Now, you, as a police officer, had
17 nothing to do with whether or not the Town
18 Administrator took action against these police
19 officers for conduct unbecoming or whatever?
20 MS. SMITH: Fire.
21 MR. BEVERE: Term "police
22 officers"?
23 BY MR. MULLIN:
24 Q Excuse me, I misspoke; I flipped
25 something around. Let me try it again. You
134
1 were a sergeant at the time, right?
2 A Yes, sir.
3 Q And you had no control at that or
4 involvement whether the Town Administrator took
5 some sort of action against the firefighters
6 involved in this incident, right, in terms of
7 terminating them, suspending them, moving them
8 to another firehouse? You had no role in that,
9 right, sir?
10 A No, sir, that was outside the scope of my
11 duties and responsibilities. And I was not
12 contacted with reference to those particular
13 matters.
14 Q I understand. And you were
15 focused on a criminal investigation, right?
16 A My focus was on protecting the victims.
17 Q Protecting the victims and
18 criminal investigation, right?
19 A Yes, sir.
20 Q You write further on your report,
21 "At approximately 200 hours" -- again, for the
22 record, does "200 hours" mean 2 a.m.?
23 A 2 a.m., yes, sir.
24 Q -- "I finished speaking with the
25 victims and proceeded to the firehouse where
135
1 Officers Moreda and Ulrich had been detailed to
2 identify all persons present." And that's what
3 you did; you left the Carter and deVries
4 residence and went over to the firehouse, right?
5 A Yes, sir.
6 Q And you had directed Moreda and
7 Ulrich, these two police officers, to take down
8 the names of all persons present, right?
9 A Yes, I did that over the phone, actually,
10 prior to arriving on the scene.
11 Q Okay. And when you got over to
12 the firehouse, were Officers Ulrich and Moreda
13 still there?
14 A Yes, sir.
15 Q And it says -- you write, "The
16 officers previously reported that Charles
17 Snyder, Sr., Charles Snyder, Jr. and Charles
18 Mutschler were the only persons present in the
19 parking lot when the officers arrived on the
20 scene." And in fact, Ulrich had told you that
21 when he arrived on the scene those three men
22 were in the parking lot, right?
23 A Yes.
24 Q Says, "When I entered" -- when you
25 say, "I," you're referring to yourself, right?
136
1 A Yes, sir.
2 Q "When I entered the bar area in
3 the rear of the firehouse, I observed a number
4 of persons, male and female, seated at the bar."
5 And you did, right?
6 A Yes, sir.
7 Q And they actually had a bar in
8 this firehouse, right?
9 A Yes, sir.
10 Q You say, "I further observed one
11 of the females to have a glass in her hand
12 containing a clear liquid. I was advised by
13 those present they had just returned from the
14 previously mentioned banquet and that no
15 alcoholic beverages were being consumed
16 on-site." Is that what somebody told you
17 there --
18 A Yes, sir.
19 Q -- at the firehouse?
20 A Yes, sir.
21 Q You then requested everyone vacate
22 the premises and that it be secured? That's a
23 request you made of all the people in -- in the
24 firehouse at that time, right?
25 A Yes, sir.
137
1 Q And they didn't immediately comply
2 with that, did they?
3 A No, sir.
4 Q You say, "they," meaning the crowd
5 in the firehouse, the firemen and their
6 girlfriends or wives, right?
7 A Yes, they collectively, yes.
8 Q "They attempted to barter a
9 compromise to my position." That's -- in other
10 words, they -- they resist and try to barter
11 some deal with you, right?
12 A Yes, sir.
13 Q You say, "I made a total of three
14 requests that everyone exit the premises."
15 Three times -- were you in uniform that night?
16 A Yes, sir.
17 Q You wearing a sergeant's uniform?
18 A Yes.
19 Q Three times you in uniform
20 requested that these firemen and their escorts
21 leave the premises and they did not, right?
22 A That's correct.
23 Q "When those present failed to
24 comply with my request, I ordered" -- now you
25 ordered everyone out, right?
138
1 A Yes, sir.
2 Q Now you gave an order, get out?
3 A Yes.
4 Q "I did then go behind the bar and
5 find a pool of liquid which had on the floor and
6 wheeled a garbage barrel one third full with
7 empty beer bottles," right?
8 A Yes, sir.
9 Q You actually took the barrel of
10 empty bottles into evidence, right?
11 A Yes, sir.
12 Q And put that into the evidence
13 room that night?
14 A Yes, sir.
15 Q You said that two males previously
16 behind the bar had since left that position.
17 Those were some guys who appeared to be running
18 the bar?
19 A They were just standing behind the bar,
20 actually. And as soon as I made the corner to
21 go behind the bar, they left in the opposite
22 direction.
23 Q You say, "I again ordered everyone
24 out" -- "out of the building, and Charles
25 Snyder, Sr." -- now you are ordering them out --
139
1 second time you're ordering them out, right?
2 A Yes, sir.
3 Q Three requests, two orders. "And
4 Charles Snyder, Sr. held his wireless telephone
5 and stated he was waiting for the Mayor to call
6 him back, ostensibly to provide authority to
7 remain." Is that your -- do you recall that
8 Snyder standing there with -- what did he have;
9 a cell phone?
10 A Yes, sir.
11 Q He purported to be calling the
12 Mayor?
13 A Yes, sir.
14 Q You ordered him out, and he didn't
15 leave, right?
16 A Yes, sir.
17 Q "Again I ordered everyone out,"
18 you write, right? "And Mr. Snyder stated he was
19 on-call and there might be a fire." And that's
20 what he stated to you, right?
21 A Yes.
22 Q And you put that in quotes. He
23 actually said he was on-call that night, right?
24 A Yes, sir.
25 Q So three requests and two or three
140
1 orders and Snyder, Sr. refused to leave that
2 building; is that right, sir?
3 A Yes, sir.
4 Q And you were in uniform, right?
5 A Yes, sir.
6 Q You didn't arrest him?
7 A No, sir.
8 Q Now -- now, there is an
9 incident -- there is an incident that happened
10 in the firehouse, sir, while you were in uniform
11 that you have omitted from this report.
12 Actually, there are two incidents at least that
13 you have omitted from that report; isn't that
14 fair to say, sir?
15 A Yes, sir.
16 Q Again, sir, you were in uniform
17 and you were a sergeant that day, right?
18 A Yes, sir.
19 Q And by the time you were in that
20 firehouse Charles Mutschler, an ex-captain, one
21 of the firefighters, well, he was there too
22 among these firefighters, right, sir? He was --
23 he was there in the firehouse when you were
24 there, right?
25 A Yes.
141
1 Q Okay.
2 A Yes, he was identified subsequently. I
3 didn't know who he was.
4 Q Subsequently you learned his name?
5 A Yes.
6 Q And what he did was -- at some
7 point while you were in that firehouse bar area,
8 you were in uniform, Charles Mutschler -- let me
9 use the exact words. Charles Mutschler charged
10 forward towards you, didn't he?
11 A Yes, sir.
12 Q He had aggressive intentions
13 towards you, didn't he?
14 A That was my perception.
15 Q He actually made statements which
16 conveyed that intention, didn't he?
17 A I don't recall with specificity any
18 statements he might have made, but he had to
19 alert others to his intention because as he was
20 coming -- and again, he was in another room
21 coming toward the door -- other people in the
22 room just blocked his path.
23 Q Okay. But in a deposition under
24 oath didn't you say, "He may have made
25 statements which conveyed his intention"?
142
1 A He may have made. I made that leap
2 because he had to communicate that intention for
3 other people to intercede in his best interests
4 by stopping him in the other room.
5 Q That's right. So not only did he
6 indicate this intention and he may have said
7 words indicating that intention; but as he
8 lunged forward, he actually had to be stopped
9 physically by firemen to his left and right,
10 true?
11 A I don't know that I would say he had to
12 be stopped. He was stopped.
13 Q He was, in fact, stopped?
14 A He was, in fact, stopped in the other
15 room, yes, sir.
16 Q And if you were out on the street,
17 sir, in uniform and I lunged at you with the
18 intention to hurt you, would you arrest me?
19 A For what, sir?
20 Q Assault.
21 A Based upon what elements?
22 Q Well, let's take a look. We are
23 up to Exhibit 398. And I'll refer you to
24 exhibit -- well, Exhibit 398. And it's statute
25 12C1.
143
1 MR. PARIS: 12C1?
2 MR. MULLIN: 12C -- excuse me,
3 2C:12-1.
4 BY MR. MULLIN:
5 Q So this is what we talked about at
6 the beginning of your testimony. This is a
7 statute from the criminal laws of the State of
8 New Jersey, right?
9 A Can I just have you clarify where I'm
10 looking?
11 Q I am going to help you.
12 A Thank you.
13 Q Let me come over here, if you
14 don't mind?
15 A No, no, go right ahead.
16 Q This is part of our State's
17 criminal laws. You are familiar generally with
18 2C has our State's criminal laws, right?
19 A Yes, sir.
20 Q This is called, "Assault," right?
21 A 2C:12-1?
22 Q Dash 1.
23 A A is simple assault.
24 Q A is simple assault?
25 A That is correct.
144
1 Q A person is guilty of assault if
2 he, one, attempts to cause or purposely,
3 knowingly or recklessly causes bodily injury to
4 another, right? You're familiar with that?
5 A I am familiar with that, yes, sir.
6 Q So it's not just that you actually
7 have to hit somebody; if you attempt to cause,
8 knowingly and recklessly bodily injury to
9 someone else, that can be a simple assault,
10 right?
11 A Yes, sir.
12 Q Okay. Now, there is something
13 called "aggravated assault," right?
14 A Uh-huh.
15 Q A person is guilty of aggravated
16 assault if he commits a simple assault as
17 defined in the section we just read, right?
18 A That's correct.
19 Q Upon, a, 5a, "any law enforcement
20 officer acting in the performance of his duties
21 while in uniform or exhibiting evidence of his
22 authority or because of his status as a law
23 enforcement officer."
24 Now, here is my question to you. On
25 the early morning hours, in the early morning
145
1 hours of August 25th, 2004 you were a law
2 enforcement officer, true?
3 A Yes, sir.
4 Q You were acting in the performance
5 of your duties, true?
6 A Yes, sir.
7 Q While you were in uniform, right?
8 A Yes, sir.
9 Q And you did --
10 A But if I may --
11 Q No, I am going to ask the
12 question. Anything you want to clarify, your
13 lawyers will on redirect --
14 A Yes, sir.
15 Q -- help you out. You can talk all
16 you want. I am going to keep you focused on my
17 questions here.
18 You did not arrest Charles Mutschler
19 that night or any other night, true? Yes or no?
20 A True.
21 Q Now, there was one other thing
22 that you left out of that report. Let me see if
23 I can put my hands on it.
24 Sir, this incident you were
25 investigating on April 25th, 2004, well, this
146
1 was a bias incident, right, sir?
2 A That was my estimation, based upon the
3 totality of the circumstances, yes, sir.
4 Q You actually, as the officer in
5 charge of the scene, as a responding officer in
6 charge of the scene, made a determination that
7 this was a bias crime incident, right?
8 A That is correct, yes, sir.
9 Q And that's one of the reasons why
10 you took some care in writing down some of the
11 crude and awful and ugly bias statements
12 Mr. Carter alleged he heard from the firemen,
13 right?
14 A No, sir, I do that as a matter of
15 routine. I'm very detail-oriented.
16 Q That's good. That's good
17 policing, right? It's actually good police
18 work, right?
19 A I just believe it's customer-centric or
20 client-centric; it's doing the right thing.
21 Q And in a -- when a bias crime is
22 involved, it's critically important that the
23 officers take down language that has been
24 uttered that expresses the biased or prejudiced
25 intent of the actors, right, the perpetrators,
147
1 right?
2 A I don't disagree with that statement, but
3 I believe that it's important to do that in all
4 aspects because criminal sanctions restrain the
5 liberty of individuals and Constitution is
6 paramount in protecting our liberties.
7 Q I appreciate that. One of the
8 things that you didn't put in this report that
9 we've marked both as P-350 and D-220 is that
10 while you were in the firehouse you spoke to
11 Charles Snyder, Sr. and he said to you, while
12 you stood in the kitchen area off the bar in the
13 firehouse, "Who are you going to believe, the
14 cock-sucking faggots or the firemen?" That's
15 what Mr. Snyder, Sr. said to you that very
16 night, right?
17 A Yes, sir.
18 Q You omitted it from this report,
19 the original report?
20 A Admittedly, yes, sir. I am fallible. I
21 did report it.
22 Q You did report it eventually?
23 A It was recognized, as you mentioned,
24 in -- in your opening statements.
25 Q And let me give you some credit.
148
1 You didn't put the Mutschler incident in this
2 report, right?
3 A No, sir.
4 Q And you didn't put the Mutschler
5 incident in this report, right?
6 A No, sir.
7 Q But during your deposition, when
8 we took your deposition, you told us about the
9 Mutschler incident?
10 A Oh, yes, sir, yes. And as I mentioned in
11 the deposition, I believe then and continue to
12 believe that it was inconsequential.
13 Q It was inconsequential that
14 Charles Mutschler attempted to assault a
15 uniformed sergeant?
16 A I --
17 MR. BEVERE: Objection.
18 A I --
19 Q Is that what you are saying?
20 A I disagree, sir, with your saying that he
21 attempted to commit an assault. And I still --
22 I still believe that today. But we will get
23 into that a little bit later, as you said.
24 Q I understand. Your lawyer --
25 A Yes.
149
1 Q -- can have you elaborate on that.
2 A Sure.
3 Q Let me show you P-351. This is a
4 police report that you did on April 30th, 2004,
5 right?
6 A Yes, sir.
7 Q And on that date you learned from
8 Captain Rozansky and Detective Sergeant Reinke
9 that the North End Firehouse had been reopened
10 for social purposes, right?
11 A Yes, sir.
12 Q And it's then that you wrote this
13 report stating that on the night of the
14 incident, the early -- the early morning hours
15 of April 25th, 2004, Charles Snyder, Sr. had
16 told you, "Who are you going to believe, those
17 cock-sucking faggots or the firemen," right?
18 It's at that point --
19 A Yes, sir, I had a discussion with
20 Sergeant Reinke; and that caused the
21 recollection. When I made the connection, I
22 went right to the typewriter.
23 Q And you noted this language
24 mirrored that as alleged to have been used
25 against the victims by the actors in the parking
150
1 lot, right?
2 A Yes, sir, that was what --
3 Q This --
4 A -- why I perked up when he said it. And
5 over the course of the evening I unintentionally
6 omitted it and when, again, did recollect it,
7 memorialized it in a report.
8 Q Who did you give this report to?
9 A I submitted this supplementary report --
10 Q Yes, sir.
11 A -- to -- honestly, I don't know. I could
12 have given it directly to Sergeant Reinke. I
13 could have filed it in the filing cabinet at the
14 police desk, where the reports normally go at
15 the end of each tour. I can't --
16 Q Who gets to look at these reports?
17 A I can't say with specificity. In the
18 morning Captain Buckley would come in.
19 Q Captain of the Police Department?
20 A The Detective Bureau. He collects all
21 the reports and will either himself do the
22 Uniform Crime Reporting coding, which is you
23 make a determination based upon what exactly
24 what happened. It gets a four-digit code for
25 reporting for statistical purposes. And -- or
151
1 he would have assigned that to somebody else to
2 do. But yes, sir, he collects them in the
3 morning.
4 Q Now, there has already been some
5 reference in the trial -- I'm sorry. You're
6 aware, aren't you, sir, that there has been for
7 many years now a general order at the Secaucus
8 Police Department concerning bias investigation
9 procedures, right?
10 A Yes, sir.
11 Q And it's also true, isn't it, sir,
12 that the Town of Secaucus has not given you any
13 training with respect to these bias
14 investigation procedures?
15 A How would you define training, sir? Or
16 if I may clarify and maybe narrow this -- the
17 scope of that question --
18 Q Well, in your deposition do you
19 recall being asked, sir, "You don't specifically
20 recall actually attending any bias crime
21 training since the time you graduated the
22 academy?"
23 And your answer was, "That's correct."
24 Do you recall that answer?
25 A Yes, I -- and I would agree with that,
152
1 that I don't recall any training. We may have
2 had a block of instruction, which was probably
3 limited to the reading of that general order --
4 Q Okay.
5 A -- to an assembled mass and then you
6 simply sign off that you have received it.
7 Q But the testimony I just read at
8 the deposition, that was true, right?
9 A Interactive training, yes, sir, no, it
10 didn't happen.
11 Q Sir, I will show that you general
12 order, which is P-134. I just want to take you
13 very briefly through a couple items in that.
14 P-134 is the Secaucus Police Department Bias
15 Investigation Procedures General Order 88-2,
16 right?
17 A Yes, sir.
18 Q You see that was issued by Chief
19 Alfred L. Cormann? You see that?
20 A Yes, sir.
21 Q Now, if you turn to the second
22 page of that, under, "Procedure," it talks about
23 responding officers and what they are to do when
24 they arrive on the scene. Now, in this case the
25 responding officers, who are the responding
153
1 officers?
2 A Moreda and Ulrich.
3 Q Now, then, on page three, these
4 procedures -- you'll see right on page three,
5 under the Roman Numeral III, you see that number
6 two?
7 A Yes, sir.
8 Q It talks about the arrival of the
9 patrol supervisor. That is first you have
10 Moreda and Ulrich come. Then the patrol
11 supervisor comes. And that would be you, right?
12 A That's correct.
13 Q It says you have to supervise the
14 preliminary response and the preliminary
15 investigation, right?
16 A Yes.
17 Q You have to take appropriate steps
18 to make sure the indent does not escalate?
19 A Yes.
20 Q When appropriate, you have to
21 arrange for immediate increase of patrols
22 throughout the affected area?
23 A Yes.
24 Q If the potential exists for
25 further acts of violence or damage to property,
154
1 provide for officers to be assigned to the
2 incident location in a fixed position, right?
3 A Yes.
4 Q And you have talked about, to this
5 jury, doing some of these things, right?
6 A I did all those things.
7 Q I think you did every single one.
8 A Yes.
9 Q It says, "d, notify headquarters
10 of the facts and circumstances surrounding the
11 incident, maintaining a line of communication to
12 provide updated factual information regarding
13 the incident." Do you see that?
14 A Yes.
15 Q Then comes e. And this is for
16 you, the patrol supervisor. "Request
17 investigative personnel to the scene, if a bias
18 incident is suspected or confirmed."
19 Now, you did confirm that it was a bias
20 incident that night, right? You made that call?
21 A Yes, sir.
22 Q But having made that call, while
23 you notified investigative personnel, I think
24 you called one of the detectives, may have
25 called the Chief also?
155
1 A Both. But Sergeant Reinke was the
2 on-call detective.
3 Q You did not request that
4 investigative personnel show up then on the
5 scene, nor did they show up on the scene, true?
6 A They did not. I gave him all the facts
7 and information that I had, and he made the
8 determination that he would not respond to the
9 scene.
10 Q Okay.
11 A I can request. I cannot order them to
12 come to the scene. They're outside of my chain
13 of command.
14 Q You did not request -- contrary to
15 this order, sir, you did not request that
16 investigative personnel respond that night to
17 the scene, true?
18 A I don't have the recollection of that.
19 Again, as I said, I gave him all the facts and
20 information. He told me he was not coming.
21 Q Let me --
22 A Okay.
23 Q -- refer to your deposition.
24 A Okay.
25 Q And again, we don't have to go
156
1 through all that; but you testified under oath
2 at the deposition, right?
3 A Yes, sir.
4 Q And do you recall that you were
5 asked --
6 MR. MULLIN: And here, Counselors,
7 I'm referring to page 135, line 8.
8 Q Do you recall that you were asked
9 by a lawyer from my office, "On the morning of
10 April 25th, 2004 did you request that
11 investigative personnel respond to the scene?"
12 And your answer was, "No, I made
13 notification of the incident to both the on-call
14 detective and the Chief of Police"?
15 A Okay.
16 Q And that was true testimony,
17 correct, sir? You did not request --
18 A That was the testimony, I believe -- I'm
19 sorry.
20 Q Sir, you did not request
21 investigative personnel to come to the scene of
22 this bias crime incident that night, right?
23 A That's what the deposition says.
24 Q Okay.
25 A And the deposition was --
157
1 Q You were telling the truth, and
2 you were under oath?
3 A Sir, please let me finish.
4 Q I apologize.
5 A Thank you. The deposition was taken in
6 July of 2007, I believe, if I'm correct. I know
7 it was 2007. I believe it was July.
8 Q I think you're right -- or
9 January.
10 A It's some 39 months after the fact.
11 Q Sir.
12 A And this is -- now we are almost another
13 12 months on top of that. And --
14 Q I'm not trying to embarrass you or
15 anything.
16 A Oh, no, I'm not embarrassed. I am trying
17 to be truthful with you --
18 Q I appreciate that.
19 A -- and for the jury.
20 Q Thank you, sir.
21 A We're not -- our purposes are not
22 incompatible here.
23 Q Let's -- let me just take you
24 through a couple --
25 A Okay.
158
1 Q -- other passages --
2 A Sure.
3 Q -- of this -- this document, this
4 bias investigation procedure. Now, by
5 investigate -- by "investigatory personnel,"
6 what's meant is detectives, right?
7 A Yes, sir.
8 Q And then you can look at -- you
9 can follow along with me. I'm on the bottom of
10 page three of this document. "Upon arrival of
11 investigatory personnel, that officer will
12 assume control of the bias incident following
13 up" -- "follow-up investigation, ensuring that
14 the scene of the bias incident is properly
15 preserved and protected, taking samples of
16 physical evidence, the securing and transporting
17 into custody related movable evidence and
18 photographing the crime scene as is
19 appropriate." That's one of the things
20 investigatory personnel are required to do when
21 they come to the scene of a bias crime, correct?
22 A That's what it says.
23 Q And this is the general standing
24 order concerning bias investigations of the
25 Secaucus Police Department, right?
159
1 A Yes, sir.
2 Q Okay. And if you turn to the next
3 page, it says another thing that the detectives
4 will do when they arrive at the scene -- you see
5 how it says, "Arrival at the scene"?
6 A Uh-huh.
7 Q They will, "Interview all victims
8 and/or witnesses, taking statements when
9 relevant." Now, sir, you weren't a detective,
10 right, at the time?
11 A No, sir.
12 Q And neither you, nor Ulrich, nor
13 Moreda took any statements from those 15, 16, 17
14 or more people inside the firehouse? That's a
15 true statement, isn't it?
16 A That is a true statement.
17 Q In fact, ultimately what you did
18 is you dispersed them, those who listened to
19 you? You sent them home, right?
20 A Eventually everybody went.
21 Q Some of them were interviewed few
22 days later, right?
23 A I can't speak to that, sir; I was not
24 involved in that. My involvement in this ended
25 on the 30th, when I did that supplementary
160
1 report. I had no further interactions with this
2 particular case.
3 Q Another thing that detectives,
4 investigatory personnel have to do, according to
5 General Order 88-2, when they arrive at the
6 scene, is to go to "canvas the community to
7 identify other victims and/or witnesses,
8 conducting additional interviews as necessary
9 and the taking of statements when relevant."
10 Did I read that correctly?
11 A Yes, sir, you did.
12 Q That's what the investigatory
13 personnel is supposed to do when they arrive on
14 the scene, right? That's under, "Arrival at the
15 scene"?
16 A You read it as it exists on the page,
17 sir.
18 Q Now, neither you nor Ulrich nor
19 Moreda canvassed the community that night to
20 identify other victims and/or witnesses; is that
21 night?
22 A Neither Ulrich, nor Moreda, nor myself
23 are investigatory personnel. These are the
24 actions of investigatory personnel, as you said
25 and pointed out for the jury on page three.
161
1 Q I don't mean to interrupt you, but
2 hang on; I don't have a question for you yet.
3 A Okay.
4 Q Bear with me. Now, one of the
5 things that's repeatedly referred to in here is
6 preserving the crime scene, right?
7 A Where would that be, sir?
8 Q Well, you can start on page two,
9 under when the responding Officers Ulrich and
10 Moreda come. Look at page two. You see C --
11 you see D, rather? Says, "Protect the crime
12 scene in preparation for the gathering of
13 evidence"?
14 A Yes.
15 Q And that's something that these
16 rules require to be done when the -- when those
17 officers arrive, right?
18 A For what officers?
19 Q Right, when the responding
20 officers arrive, that's what they're supposed to
21 do, right?
22 A Provided if it's applicable to the
23 situation, yes, sir.
24 Q And under the -- on page three, at
25 the bottom that paragraph, we went -- we saw the
162
1 investigatory personnel, the detectives are
2 supposed to assume control of the bias incident
3 following the investigation, ensuring that the
4 scene of the bias incident is properly preserved
5 and protected, right? And that's what the order
6 requires, right?
7 A That is one -- that is one component part
8 of that particular paragraph.
9 Q Now, you said that you detailed
10 some people there to protect Tim Carter and
11 Peter deVries, right?
12 A Yes, sir.
13 Q You didn't secure as a crime scene
14 either the firehouse, the fire parking lot or
15 the deVries Carter home, right? You didn't put
16 up crime scene tape or anything of that nature,
17 right?
18 A No, sir. We did an inspection of the
19 exterior of the home and open grounds and
20 parking lot, and there was no physical evidence
21 to be collected or -- that we could determine at
22 the time.
23 Q You are not a detective, right?
24 A No, sir, I am just a working cop.
25 Q At the time --
163
1 A Sorry.
2 Q I don't want to diminish your
3 position at all.
4 A I am fallible too. I left that thing out
5 of the report. I'm trying -- I'm trying to
6 improve.
7 Q But you weren't -- all I'm saying,
8 without any disrespect --
9 A I know.
10 Q -- you weren't trained to various
11 techniques --
12 A No, sir.
13 Q -- that detectives are trained --
14 A Training is --
15 Q -- all kind of evidence, physical
16 evidence?
17 A All kinds are lacking, yes, sir; I agree
18 with you a hundred percent.
19 Q Now, let's look at P-222 and
20 P-221. And I'm going to bring them up to you.
21 A Thanks.
22 Q Let me show you P-222. P-222 is
23 another Supplementary Investigative Report,
24 dated the day of the incident, March 25, '04, by
25 an Officer Moreda. Do you see that?
164
1 A Yes, sir.
2 Q And it's -- you know Moreda
3 worked -- was a police officer at the time of
4 the incident, right?
5 A Yes, sir.
6 Q And you testified here that you
7 detailed, I think, two officers to stand guard
8 and protect for some hours deVries' and Carter's
9 residence, correct?
10 A No, it was one officer on a fixed post
11 and one on a patrol post.
12 Q Okay. It says on this report,
13 P-222, "The undersigned was detailed to the
14 North End Firehouse to secure that the area is
15 clear. At approximately 220 hours" -- that's
16 2:20 in the morning, right?
17 A Yes, sir.
18 Q -- "Charles Snyder was the last
19 person to leave the house and did lock the door.
20 I was then relieved by Police Officer" --
21 "Patrolman Smith at 230 hours," right?
22 A Yes, sir.
23 Q Had you detailed Malanka -- excuse
24 me, I misspoke. Moreda wrote this report. Had
25 you detailed Moreda to -- to be there during the
165
1 time frame that's discussed here?
2 A Yes, after I left the firehouse there
3 were, I said, still some people. The ones that
4 were most obstinate in leaving were still in
5 there. And I left Moreda and told him he could
6 not be relieved from there until such time as
7 everybody was out of the firehouse.
8 Q And Snyder, that's Charles Snyder,
9 Sr. we're talking about, right?
10 A It's not clarified in the report, sir.
11 Q Well, when you last left Snyder,
12 he had refused several orders to leave the
13 firehouse, right?
14 A He was still in the firehouse when I
15 left, yes.
16 Q This says, "Charles Snyder was the
17 last person to leave the firehouse"; and then he
18 says, "I'm relieved at 230 in the morning,"
19 right?
20 A That's what it says, yes.
21 Q Now, look at this next one, P-221.
22 This is by Police Officer Smith. You knew
23 Police Officer Smith, right?
24 A Uh-huh, yes, sir.
25 Q And this says, "The undersigned
166
1 was detailed to watch the house next to the
2 North End Firehouse." Is this an officer you
3 detailed to watch the Carter and
4 deVries residence?
5 A Apparently.
6 Q Said, "The undersigned was
7 detailed there from 2:30 a.m. to 4 a.m." Is
8 that, in fact, how long you had him detailed to
9 watch the house, until 4 a.m.?
10 A No, sir, ordinarily Smith takes his meal
11 period 4 a.m.
12 Q Well, he says, "The undersigned
13 was detailed there from 2:30 a.m. to 4 a.m." Is
14 that inaccurate?
15 A You would have to ask Smith.
16 Q Okay. Says, "At approximately
17 3:05 a.m. I noticed several volunteer firemen
18 and their girlfriends were inside the firehouse.
19 At this time I informed them they were not to
20 be inside the firehouse for personal reasons,
21 only for fire calls. They left without
22 incident. The volunteers there were Matt Kickey
23 and Pat Maxwell." You see that?
24 A Yes, sir.
25 Q So far from securing the firehouse
167
1 as a crime scene, Matt Kickey, the son of Bobby
2 Kickey, the councilman, was allowed to enter the
3 firehouse and leave the firehouse while these
4 police officers were on patrol; isn't that true?
5 MR. BEVERE: Objection as to
6 speculation.
7 JUDGE CURRAN: Sustained. If you
8 can rephrase it, please.
9 BY MR. MULLIN:
10 Q You have no reason to doubt this
11 report by Officer Smith, do you?
12 A No, no, sir. But I do take exception to
13 you calling the interior of the firehouse a
14 crime scene. I don't believe a crime took place
15 in the firehouse.
16 Q You know that woman named Dee
17 Bardini has testified here and told the Police
18 Department call 911 and said she heard shots
19 fired or what she thought were gunshots fired or
20 what she thought were shots fired on the night
21 of this incident? Are you aware of that?
22 A Yes, sir, I became aware of that the
23 first time, actually, at the deposition in July
24 of 2007.
25 Q Nowhere in your reports do you
168
1 indicate that you searched the firehouse for a
2 gun that night, did you? That's not in your
3 reports, right?
4 A No, of course not. The reports were done
5 in 2004, and I first became aware of the whole
6 element of gunshots in 2007. So that -- that's
7 ludicrous to think that I would have searched
8 the firehouse for a gun. There was also no
9 evidence --
10 Q How about Officer -- go -- I'm
11 sorry, go ahead.
12 A There was also no evidence of gunshots
13 being fired.
14 Q You didn't look for evidence of
15 gunshots being fired, did you?
16 A We looked at the house --
17 Q You didn't look for evidence of
18 gunshots being fired?
19 A Sir, you are doing it again.
20 MR. BEVERE: If the witness could
21 please finish his answer.
22 JUDGE CURRAN: One at a time.
23 Please allow him to answer.
24 Q Go ahead. Sorry, sir.
25 JUDGE CURRAN: Do you want to
169
1 repeat the question, Mr. Mullin?
2 MR. MULLIN: Sure, he can have it
3 read back if he likes.
4 JUDGE CURRAN: Thanks.
5 THE WITNESS: No, no, I'm good
6 with that. Thank you.
7 BY MR. MULLIN:
8 Q Go ahead.
9 A Based upon the information that I was
10 provided at the scene by the victims, the
11 victims made no mention of gunshots. The
12 victims made no mention of people banging on the
13 fence in attempting to scale the fence. The
14 first time I became aware of that particular
15 allegation was during your opening arguments.
16 So now we are -- as I said, we are approaching
17 50 months later. A lot of new information is
18 coming to light.
19 Q So I guess there were no police
20 reports back then, around the time of incident,
21 where someone in your -- under your command or
22 someone that worked with you called Miss Bardini
23 and asked her what she heard and Miss Bardini
24 said, "I heard three shots" and then this
25 officer named Malanka wrote it down just a few
170
1 days after this incident?
2 MR. BEVERE: Objection. Judge,
3 can we come to sidebar, please?
4 JUDGE CURRAN: Sure.
5 Q Never heard of that report?
6 MR. BEVERE: Judge.
7 (Whereupon, the following sidebar
8 discussion is held.)
9 MR. MULLIN: What's the objection?
10 MR. BEVERE: Judge, I will try and
11 lay out the objection as simply as I can. The
12 question was: Did someone under your command do
13 a report whereby someone said three shots --
14 now, this witness was a sergeant.
15 MR. MULLIN: I said, "or someone
16 who worked with you." I said, "under your
17 command or someone who worked with you."
18 MR. BEVERE: All right. So is the
19 question going to be: Are you aware of a report
20 by Lieutenant Malanka wherein that was reported?
21 MR. MULLIN: That's what I'm
22 saying.
23 JUDGE CURRAN: I think if --
24 MR. BEVERE: I think that the
25 question got a little far afield. And if it's
171
1 that simple of a question, I wouldn't have an,
2 objection.
3 JUDGE CURRAN: Yeah, I don't think
4 you could to the basic question.
5 MR. BEVERE: Yeah.
6 JUDGE CURRAN: If you would just
7 rephrase it, Mr. Mullin, if you would, because,
8 frankly, I was also --
9 MR. MULLIN: I will try to
10 rephrase the question more concisely.
11 MR. BEVERE: Thank you.
12 JUDGE CURRAN: Thank you.
13 MR. BEVERE: Thank you, Judge.
14 (Whereupon, sidebar discussion is
15 concluded.)
16 BY MR. MULLIN:
17 Q Sir, are you aware of a police
18 report typed and written on the kind of forms
19 that we've been looking at by Lieutenant Malanka
20 just a few days after the incident of the early
21 morning hours of April 25th, 2004 in which
22 Lieutenant Malanka purports to have spoken to
23 Dee Bardini on the telephone and she told him
24 that the night of that incident she heard three
25 shots coming from the area of the North End
172
1 Firehouse parking lot? Are you telling us that
2 you are not aware of that?
3 A Yes, sir, that's exactly correct.
4 Q Excuse me one sec. I have no
5 further questions.
6 MR. BEVERE: Thank you, Your
7 Honor.
8 CROSS EXAMINATION BY MR. BEVERE:
9 Q Good afternoon, Lieutenant Amodeo.
10 A Good afternoon, sir.
11 Q I guess, just to start kind of
12 from the back and then go forward a little bit,
13 in April of 2004 did you work in the Detective
14 Bureau?
15 A No, sir, I have never worked in the
16 Detective Bureau.
17 Q Did you work at all on the
18 follow-up investigation that was done by the
19 Detective Bureau with respect to this incident?
20 A No, sir, I was active the evening -- the
21 early morning hours of the incident. I went
22 home at approximately 8:00 that morning. My
23 only other interaction was the brief interaction
24 with Sergeant Reinke on the 30th, in which I did
25 the supplementary report, which was P-351, in
173
1 which I documented the comments made by Charles
2 Snyder, Sr. And that was the last contact that
3 I had with this particular case.
4 Q Okay. Now, is it typical or
5 untypical for you not to receive reports that
6 the Detective Bureau prepares during the course
7 of the follow-up investigation?
8 A Everything they do stays downstairs.
9 They're physically segregated from the Patrol
10 Division, and what they do they keep to
11 themselves. Their reports are not shared with
12 the remainder of the department.
13 Q So if a detective during a
14 follow-up investigation had spoken to a witness
15 and prepared a report on it, that's something
16 that would not be shared with you?
17 A No, the only time information is shared
18 is when it's -- comes up in the form of a memo
19 from Captain Buckley.
20 Q Your -- your responsibility as a
21 patrol supervisor was to be a first responder?
22 A Yes, sir, and to supervise the initial
23 response.
24 Q And to supervise initial response?
25 A Yes.
174
1 Q You -- let's -- I will get into
2 the supervision of the initial response in a
3 minute. But I want to step back for a second,
4 and I want to talk about how it was that you
5 first became aware as to what was going on in
6 the parking lot of the North End Firehouse that
7 morning.
8 A I was on patrol and I was in the southern
9 end of the Town and I heard the radio
10 transmission that directed Ulrich and Moreda up
11 to the area of Schopmann Drive and Paterson
12 Plank Road for a dispute.
13 Q Okay. Do you recall what the
14 content of that transmission was? In other
15 words, what was transmitted to Ulrich and,
16 excuse me, Moreda about the nature of what was
17 going on, do you have a recollection of that?
18 A We listened to that tape last night. And
19 it was about a disturbance and it was shouting
20 and it was just very vague and amorphous
21 dispute.
22 Q What I'm asking, as you are
23 sitting here today do you have a recollection of
24 what was advised -- do you have a recollection
25 of what was contained in the transmission to
175
1 Officers Ulrich and Moreda?
2 A Not with specificity.
3 Q Okay. But you overheard a radio
4 transmission, and what was your next action or
5 reaction when you learned of that radio
6 transmission?
7 A Oh, I did nothing. There was two
8 officers being dispatched to a dispute, and I
9 didn't believe that that required my presence.
10 Q Okay. Then at some point did that
11 position change?
12 A Yes.
13 Q Okay. Tell me what happened to
14 cause that position to change.
15 A The desk officer, which was Officer
16 Charles Firtion, requested that I give him a
17 telephone call from the road to him at the
18 station. I did that. I called him on my cell
19 phone.
20 He then relayed to me that this dispute
21 was involving the firemen. I believe he also
22 told me that it had -- it was a potential bias
23 incident or it had to do with the sexual
24 orientation of Mr. deVries and Mr. Carter. He
25 may have just described him simply as "the
176
1 victims."
2 I then directed him to transmit to
3 Ulrich and Moreda that after establishing the
4 scene was and the victims were safe, their
5 secondary task should be to identify everybody
6 on the scene by making everybody produce I.D.
7 and to get a full canvas or list of everybody
8 that was there and had potential knowledge
9 and/or involvement in whatever took place.
10 Q And then what, if anything, did
11 you then determine to do?
12 A And then I started to drive to the scene.
13 Q So you made a determination you
14 would actually go to the scene?
15 A As soon as I knew that it had escalated
16 to a more serious event, then, yes, because this
17 requires my presence.
18 Q Okay. And why does it require
19 your presence?
20 A It's dictated in the general order as a
21 standard operating procedure.
22 Q That a supervisor respond?
23 A Respond to the scene, yes.
24 Q Now, did you go directly from --
25 where were you at the time that you had this --
177
1 A I was still in the south end of the
2 southern border of the Town.
3 Q And how did you make contact
4 with -- how did Officer Firtion make contact
5 with you?
6 A He over the radio requested that I give
7 him a telephone call.
8 Q And how did you call him?
9 A On my cell phone.
10 Q All right. And you called the
11 desk --
12 A Yes.
13 Q -- and had this conversation with
14 him?
15 A That's correct.
16 Q Okay. And then did you go
17 directly to the firehouse?
18 A Yes, sir. I mean, it -- two areas in
19 question -- well, three. The firehouse, the
20 very small parking lot and the -- and the home
21 of Mr. Carter and Mr. deVries are all
22 contiguous.
23 Q And when you arrived did you park
24 on Paterson Plank Road, or did you park in the
25 fire parking lot?
178
1 A I believe I parked on Paterson Plank
2 Road.
3 Q And then what did you do once you
4 arrived and you -- and you parked your car?
5 A I walked over to the threshold of 988
6 Schopmann Drive because Mr. Carter was in the
7 doorway. And Moreda and Ulrich were on that
8 threshold also --
9 Q Okay.
10 A -- or in that general area.
11 Q From the time that you got out of
12 your vehicle until the time that you reached the
13 home of Mr. deVries and Mr. Carter, as you told
14 us, did you hear any yelling or any disturbance?
15 A None at all.
16 Q What was the first thing that you
17 did when you arrived at the home of Mr. deVries
18 and Mr. Carter?
19 A I asked the two initial responding
20 officers just to give me a quick rundown of what
21 was going on.
22 Q Okay. And did those officers give
23 you a quick rundown?
24 A Yes.
25 Q And then what, if any, instruction
179
1 did you give to those officers?
2 A I asked them if they had completed the
3 task or begun the task of identifying everybody
4 on the scene.
5 They said they had not.
6 I directed them both to go do that, and
7 then I took over the investigation and began to
8 speak with Mr. Carter and find out what
9 happened.
10 Q Okay. Now, I believe that you
11 spent some time with Mr. deVries and Mr. Carter?
12 A Yes.
13 Q Okay. Can you tell us where it
14 was that you spoke to Mr. deVries and
15 Mr. Carter?
16 A Both on the threshold of the home and
17 then in their living room.
18 Q Okay. Lieutenant, is it -- is it
19 fair to say that once you arrived on the scene
20 that you were in charge of the scene?
21 A Yes, sir.
22 Q And then everything that Officers
23 Moreda or Ulrich would have done would have been
24 done at your direction?
25 A Yes.
180
1 Q Now, you -- okay. Do you
2 recall -- well, I know that Mr. Mullin put up
3 your report; and in that report we had gone
4 through some information that you testified had
5 been conveyed by Mr. Carter to you, correct?
6 A Yes.
7 Q The -- at any point in time during
8 your discussion with Mr. Carter or with
9 Mr. deVries did either of them mention that they
10 heard a gun or gunshots?
11 A No, sir, that was never mentioned.
12 Q Did either of them mention that
13 they believed that a gun had been used against
14 them?
15 A No, sir.
16 Q Did either Mr. deVries or
17 Mr. Carter use the word "explosion"?
18 A No, sir.
19 Q Did either of Mr. deVries or
20 Mr. Carter tell you that people were attempting
21 to scale their fence to get onto their property?
22 A No, sir. As I mentioned to Mr. Mullin,
23 the first time I became aware of that particular
24 allegation was during his opening arguments.
25 Q Is what Mr. Carter told you fairly
181
1 summarized in the report that was -- that
2 Mr. Mullin put up here in the -- on the easel
3 and had you read from?
4 A The P-350, yes, sir, excepting the fact
5 that I didn't document the statements made by
6 Charles Snyder, Sr., which I did subsequently on
7 the 30th of April and, again, omitting the
8 incident with Mr. Mutschler inside the
9 firehouse.
10 Q All right. Well, we'll get to
11 those in a second. Aside from discussing with
12 Mr. Carter, Mr. deVries what had happened in the
13 parking lot that night, did you discuss anything
14 else with Mr. Carter and Mr. deVries?
15 A We just spoke in generalities. Again, I
16 was attempting to -- to build a rapport with him
17 because it was their position during our initial
18 confrontation or -- not confrontation, our
19 initial meeting that he felt that he wasn't
20 going to get any type of satisfaction from the
21 Police Department. He said that he had dealt
22 with the Police Department in the past and
23 nobody was very helpful to him.
24 I -- I had no personal knowledge of
25 Mr. Carter and Mr. deVries or of any incidents
182
1 occurring at that particular location, so this
2 was all new to me. So he spent some time going
3 over these repeated acts that he alleged that he
4 was subjected to.
5 Q Now, did you discuss any -- well,
6 let me -- let me focus on that for a second.
7 While you were either in the home or on the
8 porch with Mr. deVries or Mr. Carter, did you
9 discuss anything about their personal
10 background?
11 A Yes.
12 Q Okay. And what was the reason
13 that you did that?
14 A We were just having a conversation.
15 Q At any point in time while you
16 were discussing either the incident or anything
17 with Mr. deVries and Mr. Carter, did you ever
18 indicate or tell Mr. deVries and Carter that
19 nothing was going to be done about this
20 incident?
21 A No, sir, not at all. As I said, that was
22 his position. And I spent a lot of time
23 actively listening to what he was saying. And
24 as I mentioned, again, in Mr. Mullin -- Mullin,
25 rather, in my report, these are my words; but I
183
1 certainly would have paraphrased and mirrored to
2 him what he was saying to me so that I fully had
3 a grasp of what he was saying and that I
4 understood his feelings and his interests in
5 this entire matter.
6 Q Did you at any point in time --
7 let me -- let me ask you this. While you were
8 talking to Mr. deVries and Mr. Carter did you
9 take notes, if you can recall?
10 A No, I didn't take notes at all.
11 Q Do you normally take notes?
12 A Yes.
13 Q Why didn't you take notes in this
14 situation?
15 A Because they were very hesitant about
16 trusting me and cooperating with me and having a
17 belief that I would actually help them.
18 Q And were you -- did you try and
19 convince Mr. deVries and Mr. Carter that you
20 would help them?
21 A I believe that we -- we had a major
22 breakthrough and we had an understanding and --
23 and a certain level of trust. I certainly can't
24 speak to the level of trust that -- that
25 Mr. Carter and Mr. deVries had in me. I know I
184
1 was comfortable with the place where we -- we
2 had gotten to.
3 Q Now, I believe when we went over
4 your report you had advised Mr. deVries and
5 Mr. Carter that you were going to do certain
6 things?
7 A Yes.
8 Q And was one of those things that
9 you were going to post an officer outside their
10 home?
11 A Yes.
12 Q And was another one of those
13 things that you were going to place the home on
14 priority check?
15 A Yes.
16 Q Now, I believe you also said in
17 your report that the Detective Bureau would
18 follow up with them?
19 A I did tell them that. I told them I
20 would be contacting the on-call detective, that
21 I would be calling the Chief of Police and that,
22 you know, that the matter would, in fact, be
23 continued.
24 Q And you also advised Mr. Carter
25 and Mr. deVries about professional standards
185
1 complaint and the Office of Victim-Witness
2 Advocacy, correct?
3 A Yes.
4 Q Okay. What is the Office of
5 Victim-Witness Advocacy?
6 A That's an -- it's a Statewide
7 organization based in each county that affords
8 certain benefits to victims. It could be
9 financial. It could be psychological aide. It
10 could be any -- any number of social service
11 initiatives that can be provided to them for
12 relief, depending upon the individual
13 circumstance.
14 Q At any point in time while you
15 were inside the home of Mr. deVries and
16 Mr. Carter did they indicate to you that someone
17 in the parking lot had yelled to their porch
18 while Officer Ulrich was there?
19 A They didn't mention that to me.
20 Q Okay. And what, if any,
21 discussion did you have with Mr. deVries and
22 Mr. Carter about being able to identify people?
23 A As I -- I wrote in my report, which was,
24 again, P-350, "The victims expressed their
25 desire to pursue the matter with a complaint,"
186
1 meaning a criminal complaint, "but cannot
2 identify any specific actor at the time of this
3 report."
4 So they told me that certain events
5 transpired. I documented in my report to the
6 best of my abilities believing them. I believed
7 that what they said happened happened. But I
8 cannot charge everybody in the firehouse with an
9 event that one, two or possibly three specific
10 individuals did.
11 Q Well --
12 A I believe that they met the elements of
13 the offense. I started off my report with that.
14 I utilized the elements of the offense of
15 harassment, which is recognized by the State of
16 New Jersey as a bias-related criminal offense.
17 They alleged they've suffered from a
18 repeated course of conduct. That's an element.
19 Aimed at causing annoyance or alarm. Again,
20 right from the statute. Motivated by their
21 sexual orientation. That's a motive, a bias
22 motive, which increases the potential penalties.
23 It doesn't alter the mental state of the person
24 committing the act; it merely enhances the
25 penalties.
187
1 I also put that they've been subjected
2 to verbal taunts, threats and other acts which
3 negatively impact their quality of life. Such
4 other acts include loud noise at unreasonable
5 hours, fornication in vehicles parked alongside
6 their home and the discarding of personal trash
7 on their property. Separate elements of the
8 same offense. The offense of harassment is
9 tiered in. I believe it's three separate
10 courses of conduct, if you will, that, if you
11 can substantiate, would uphold the charge and
12 the criminal complaint.
13 Q Well, when you arrived on the
14 scene, Officer Ulrich told you that the Snyders,
15 Sr. and Jr., and Mutschler were in the parking
16 lot?
17 MR. MULLIN: Objection, Your
18 Honor, leading.
19 MR. BEVERE: I'll rephrase it,
20 Judge. I'm happy to.
21 BY MR. BEVERE:
22 Q When you arrived on the scene did
23 Officer Ulrich tell you whether or not he had
24 seen anyone in the parking lot when he arrived?
25 A Yes, sir, I included that in my report
188
1 also. They identified Charles Snyder, Sr.,
2 Charles Snyder, Jr. and -- I don't want to call
3 Mutschler his first name -- Charles Mutschler
4 outside the firehouse and in the parking lot.
5 Q Well, what was the reason that you
6 did not arrest Charles Snyder, Sr., Charles
7 Snyder, Jr. or Charles Mutschler that night?
8 A Because they had not committed an offense
9 in my presence; and I had no evidence or fact
10 pattern to support arresting them to achieve a
11 level of probable cause, which is the standard
12 for arrest in the State of New Jersey.
13 Q And why did you not believe that
14 you had probable cause to arrest the Snyders and
15 Mutschler?
16 A Because the investigation was just
17 beginning. I had established no material fact,
18 and they had not committed any overt act or
19 course of action in my presence.
20 Q What, if any, effect did the --
21 Mr. deVries and Mr. Carter's advising you that
22 they could not identify anyone involved have on
23 your decision not to make any arrests that
24 night?
25 A It only reinforced my decision because,
189
1 as I stated earlier, not only must you meet the
2 individual elements of the offense, the actions
3 taken or actions omitted and, in certain cases,
4 a particular state of intention, a mind-set, but
5 you have to identify the specific person that
6 committed the offense.
7 Q In other words, you have to
8 be able to identify who did what?
9 A Exactly.
10 Q Now, when you left the plaintiff
11 home that night, did you then go to the
12 firehouse?
13 A Yes.
14 Q Okay. Did you make any physical
15 inspection of the property or the area?
16 A I made a physical inspection of the
17 victims' home and the area around the home.
18 Q And what was the purpose that you
19 made a physical inspection of their home and the
20 area around the home?
21 A Because Mr. Carter, when I spoke with
22 him, stated that some persons proceeded to bang
23 on the side of the house facing the parking lot
24 and that something may have been thrown against
25 the home, as well.
190
1 Q And when you did your physical
2 inspection, did you see any damage to the side
3 of the plaintiffs' home?
4 A No, none at all.
5 Q Did you find in the parking lot
6 anything physical near there -- near their home
7 that would have indicated it had been thrown up
8 against it?
9 A No, sir.
10 Q Okay. I'm sorry, before you left
11 Mr. deVries' and Mr. Carter's home did you
12 provide them with any means with which to get in
13 touch with you?
14 A Yes, sir. I gave them my personal cell
15 phone number; and I again told them that they
16 could contact me personally, should they have
17 any other issues or concerns.
18 Q And why did you do that?
19 A Because they were visibly shaken and
20 upset and, again, reinforcing my desire to
21 be helpful and focused on their interests and
22 their needs. It was the one and only time in
23 24 -- it's actually coming up on -- 24 years and
24 nine months that I have done that.
25 Q That was the only time you have
191
1 ever given out your personal cell phone number?
2 A To a victim, yes.
3 Q Now, then you went to the
4 firehouse, correct?
5 A Yes.
6 Q And I believe that Mr. Mullin went
7 over this with you; but you had made several
8 requests for people to leave, correct?
9 A Yes.
10 Q And what, if any, response or
11 reaction did you get to those requests to leave?
12 A We had a few people leave. Mostly it
13 revolved around Mr. Snyder, Sr. assumed a
14 position -- and rightfully so, probably -- that
15 I had no authority to remove them from their
16 firehouse.
17 Q Now, in other words -- you said,
18 "rightfully so." Why do you say, "rightfully
19 so"?
20 A Because, quite frankly, it was -- in --
21 my belief was it was a constructive force bluff.
22 I don't believe that I had lawful authority to
23 remove them from the firehouse.
24 Q But you attempted to, anyway?
25 A Sure. It was in the best interests of
192
1 everybody. It protected the victims by removing
2 the source of the friction, which he believed
3 and I believe to this date was the firemen. And
4 it was also in the best interests of the Town
5 that I protect their interests by closing down
6 the firehouse and, again, removing the source of
7 the friction.
8 Q And at some point Mr. Snyder made
9 a comment to you that it was his firehouse and
10 he was staying, in case he got a fire call or
11 something to that effect, correct?
12 A Yeah, that was Mr. Snyder, Sr.
13 Q Mr. Snyder, Sr.?
14 A Yes.
15 Q But ultimately he agreed to get
16 out and left, did he not?
17 A Eventually he did leave, as in Officer
18 Moreda's report, which is P-222, he says that he
19 left at 2:20. I left first. Clearly, I
20 attempted to engage in a cooperative agreement
21 with everybody in the firehouse. "It's in
22 everybody's best interests that we leave." Some
23 did. Some didn't. Some took up a position
24 behind -- not literally, figuratively -- behind
25 Mr. Snyder, Sr., that they did not have to
193
1 leave.
2 That's when it escalated to where I
3 said, "All right. Now I'm ordering everybody
4 out." So we went from attempting to have a
5 cooperative movement to where we started to
6 compete. And I felt that the competition was
7 counterproductive, which is why I left Moreda
8 there and I left. When I left, he saved face.
9 Couple of minutes later, he leaves. He won.
10 That's fine. We all win.
11 MR. MULLIN: Objection, Your
12 Honor. Objection, Your Honor. This witness is
13 speculating what's going on in the mind of
14 several different people. I ask that this
15 answer be stricken.
16 JUDGE CURRAN: Sustained. You
17 will rephrase the question.
18 MR. BEVERE: Judge, I will be
19 happy to.
20 BY MR. BEVERE:
21 Q When you left the firehouse, did
22 you take anything with you?
23 A I took the barrel that had the empty beer
24 vessels in it.
25 Q And why did you take that with
194
1 you?
2 A It was evidence of consumption. I
3 believe it spoke to intent. I believe it would
4 help to explain certain intemperant and narrow
5 remarks, actions that were related or -- yeah,
6 related to certain people, comments that Officer
7 Ulrich would later write in his report, that
8 Mutschler would have verbal exchanges with
9 Mr. Carter from Mr. -- the threshold of
10 Mr. Carter's home back to the firehouse. And
11 the alcohol explained a lot, in my perception.
12 Q Which is why you took bottles with
13 you?
14 A Yes.
15 Q Okay. And ultimately what did you
16 do with the alcohol bottles that you took with
17 you?
18 A I took them to the police station. In
19 our normal area -- evidence lockers it certainly
20 wasn't able to be accommodated. I did a
21 property report on it. I took photos of it.
22 And I locked it in a cell.
23 Q And what did you do with the
24 photos?
25 A The photos were placed into evidence
195
1 in -- in the evidence locker.
2 Q Now, to step back to the
3 firehouse, you said that there was a -- you were
4 explaining to us the reason as to why you left
5 before Officer Moreda. What, if any,
6 instructions did you leave -- I'm sorry, before
7 I -- before I ask you that, let me ask you:
8 When you left what was the status, for lack of a
9 better term, of everyone leaving or staying?
10 A There were only a handful of people left
11 at that point.
12 Q And what did you believe the
13 people that were left in the firehouse were
14 going to do, leave or stay?
15 A I couldn't say.
16 MR. MULLIN: Objection, Your
17 Honor.
18 MR. BEVERE: I asked him what he
19 believed, Your Honor.
20 MR. MULLIN: Withdrawn.
21 JUDGE CURRAN: Thank you.
22 BY MR. BEVERE:
23 A I couldn't say with any degree of
24 certainty what might or might not happen. I
25 afforded them an opportunity to save face and
196
1 let them perceive a win by myself leaving.
2 Q What, if any, instructions did you
3 leave with Officer Moreda?
4 A He does not leave until everybody is out
5 and the door is locked.
6 Q And you have seen the reports
7 and -- and it's your understanding that -- that
8 ultimately people left and the door was locked?
9 A Yes.
10 Q The -- now I want to talk about
11 the statement that Charles Snyder, Sr. made.
12 Before I do that I want to talk about this
13 exchange that you had with Charles Mutschler,
14 okay, in the firehouse.
15 A Okay.
16 Q Can you explain to us in your own
17 words what you recall happening with regard to
18 Charles Mutschler?
19 A Yeah, the back area of that firehouse
20 is -- on the most interior portion is the bar.
21 There is a doorway. And then you have what I
22 call in my reports the anteroom, which is the
23 doorway that opens to the threshold and leads
24 three steps down right into the parking lot,
25 which abuts the victims' home.
197
1 I was standing in that anteroom,
2 going -- having a back and forth with
3 Mr. Snyder, Sr. over getting them to leave. And
4 I noticed out of the corner of my left eye at
5 one time that Mutschler started to come toward
6 the door. And he was blocked by two persons,
7 one from his left, one from his right. I looked
8 over. He never broke the threshold of that
9 doorway. He never entered the room where I was.
10 He was nowhere near close to where I was. And
11 if I --
12 Q Let me -- let me ask you the
13 question because the question I want to ask you
14 is: Mr. Mullin wanted to know why it was that
15 you didn't arrest Mr. Mutschler for assault
16 or -- or --
17 A Yes.
18 Q I forget what term he used against
19 you. And I guess I want to know why it was that
20 you didn't arrest Mr. Mutschler that night?
21 A Well, what Mr. Mullin read was a
22 component that would raise the offense of simple
23 assault to a more serious charge of aggravated
24 assault, if it's, in fact, committed against a
25 uniformed law enforcement officer acting in a
198
1 performance of his office. But what Mr. Mullin
2 left out of that was the fact that you had to
3 have a simple assault occur.
4 Q Why --
5 A That assault never occurred.
6 Q Why did you not believe an assault
7 didn't occur to have an arrest?
8 A Because to have a simple assault occur
9 you have to meet certain requirements as
10 dictated by the legislature. The statutes are
11 very specific.
12 Q Did you believe in your mind that
13 what Mr. Mutschler did that night rose to the
14 level of an assault?
15 A No.
16 Q And at any point -- well, can you
17 explain to us why you didn't think it rose to
18 that level of an assault?
19 A Can I refer to -- I don't seem to have it
20 in front of me. I know I did have a copy of the
21 2C statute for assault, and I don't seem to have
22 it any longer. So if I could either see that or
23 a 2C book. Thank you.
24 Okay. What Mr. Mullin read was 5a.
25 Number 5 starts with, "Commits a simple assault
199
1 as defined in subsection a (1), (2) or (3) of
2 this section upon: Any law enforcement officer
3 acting in the performance of his duties while in
4 uniform or exhibiting evidence of his authority
5 or because of his status as a law enforcement
6 officer." That's what -- that subsection 5a
7 elevates the disorderly persons offense or
8 misdemeanor offense of simple assault to
9 aggravated assault.
10 But again, we have to have the
11 element -- there had to be a simple assault. We
12 will go back to simple assault. It says, "A
13 person is guilty of assault if he, one, attempts
14 to cause or purposely, knowingly or
15 recklessly" -- those are the mind states --
16 "causes bodily injury to another." I had no
17 bodily injury. I don't believe as reasonable
18 people we can agree that there was an actual
19 attempt to cause injury with him in another
20 room.
21 Q Would you say that you used a
22 certain amount of discretion in determining that
23 an arrest was not warranted for that situation?
24 A No, sir. And if I finish --
25 Q I'm sorry.
200
1 A Just bear with me one second. Number two
2 is that he -- that he negligently causes bodily
3 injury to another with a deadly weapon. He
4 possessed no deadly weapon. I suffered no
5 bodily injury. That particular element, he
6 doesn't meet that particular element.
7 The third and final element is that he
8 attempts by physical menace to put another in
9 fear of imminent serious bodily injury. Serious
10 bodily injury is well above and beyond bodily
11 injury. Broken bone, knocked out tooth. It's
12 something that's going to significantly require
13 medical attention.
14 Q Well, let me ask you this. At any
15 point in time did you feel that you were
16 physically threatened by Charles Mutschler?
17 A No, sir. And that's where I was going,
18 because that is the whole driver behind number
19 three, attempts by physical menace. He was just
20 a jerk in another room. He was guilty of
21 stupidity, potentially contempt of cop.
22 Contempt of cop is nowhere in the 2C Code of
23 Criminal Conduct in the State of New Jersey.
24 And stupidity, I would just put a fence around
25 the State.
201
1 Q Well, let me -- let me ask you a
2 question. Did your not arresting Mr. Mutschler
3 for what happened in the firehouse that night
4 have anything whatsoever to do with Mr. deVries
5 or Mr. Carter?
6 A No, sir.
7 Q And you certainly did not -- when
8 you -- when you chose not to arrest Charles
9 Mutschler for what happened that night, did
10 you -- did you not do so for intention of --
11 MR. MULLIN: Objection.
12 Q -- causing --
13 MR. MULLIN: Leading, objection.
14 JUDGE CURRAN: Sustained. You can
15 please rephrase.
16 MR. BEVERE: I will try and
17 rephrase as best I can.
18 BY MR. BEVERE:
19 Q Did your not arresting Charles
20 Mutschler for coming at you that night or making
21 that movement toward you have anything to do
22 with your wanting -- sorry, I have to rephrase
23 it again because now I am getting a little far
24 afield.
25 Were you intending to cause any harm or
202
1 any injury to Mr. deVries or Mr. Carter by not
2 arresting Charles Mutschler that night?
3 MR. MULLIN: Objection,
4 irrelevant.
5 MR. BEVERE: Judge, can we come to
6 sidebar?
7 JUDGE CURRAN: Sure.
8 (Whereupon, the following sidebar
9 discussion is held.)
10 MR. MULLIN: I made my objection.
11 JUDGE CURRAN: Mr. Bevere.
12 MR. BEVERE: Okay. Judge, I think
13 it's relevant because there has to be a
14 relevance of proximate cause. We can't just
15 talk about deliberate indifference in a vacuum.
16 So if -- if -- if Mr. Mullin is saying that it
17 was deliberately indifferent for him not to have
18 arrested Charles Mutschler that night, then it
19 has to be deliberately indifferent to some
20 Constitutional right of the plaintiffs. So it's
21 very relevant for us to say where he chose not
22 to arrest him, it had nothing to do with
23 Mr. deVries and Mr. Carter, nothing to do with
24 them at all.
25 MR. MULLIN: My client -- there
203
1 are many different acts of deliberate
2 indifference in this case. There are so many I
3 really don't know where to begin. But this
4 particular situation involves my clients'
5 testimony that the police and the Town have a
6 policy protecting the volunteer Fire Department
7 no matter what. One hand washes the other. And
8 this is just showing that this -- this attitude,
9 this policy of the Town to always give in to the
10 firemen, no matter what, always protect the
11 volunteer firemen, Chief services for the Town,
12 whatever.
13 I don't claim Amodeo was
14 personally, through this act, trying to cause
15 physical or mental injury to my client. I am
16 just -- it's one more piece of evidence that,
17 whatever the firemen do, they are going to get a
18 pass in this Town. That goes from the bottom to
19 the very top; they can do anything they want.
20 They can assault a -- a uniformed officer. They
21 can yell and scream. They can refuse to follow
22 orders. From top to bottom. Whatever they
23 want, they can do.
24 And if they don't get what they
25 want and they get cranky and they write a letter
204
1 saying, hey, we are all going to resign, that
2 kind of extortion behavior takes place, the Town
3 says -- the highest levels of the Town says,
4 "Don't worry. Please don't resign. We will
5 open the firehouse."
6 So my -- my -- the objection is
7 this is not -- it's not relevant because it
8 suggests to the jury -- this question suggests
9 to the jury that I have to prove as to each and
10 every act by every Town official that they were
11 motivated by desire to personally physically or
12 emotionally -- emotionally injure my plaintiffs.
13 There is no law to that effect. I mean, he can
14 explore it, as he is doing, the facts, what
15 motivated this individual not to arrest
16 Mutschler. He has done that very thoroughly.
17 But it's completely -- what he is asking is
18 completely irrelevant to this case.
19 JUDGE CURRAN: Mr. Bevere.
20 MR. BEVERE: Judge, I believe that
21 it is very relevant to this case because you are
22 talking about Mr. deVries' and Mr. Carter's
23 Constitutional rights. This is a case about
24 Mr. deVries' and Mr. Carter's Constitutional
25 rights. And what they have -- what the
205
1 plaintiffs have to prove it someone acted under
2 color of law, violated their Constitutional
3 rights.
4 MR. MULLIN: But that doesn't mean
5 that I have to show that this officer tried to
6 injure my clients physically and mentally.
7 JUDGE CURRAN: To me it's almost
8 comparable to mens rea in criminal, which you
9 don't have here. You don't -- you don't have to
10 prove in deliberate indifference that -- well, I
11 mean, I can't say -- it's deliberate
12 indifference; you don't have to -- in fact, it's
13 not significant. Even in the jury charge you
14 tell them you don't have -- the plaintiff
15 doesn't have to prove that -- that the
16 defendants did this to be mean, did this because
17 they didn't like the people, did this because of
18 whatever reason. That's not what deliberate
19 indifference is. Basically --
20 MR. BEVERE: But has to
21 be deliberate indifference to something.
22 JUDGE CURRAN: Yeah, to what basic
23 standards are.
24 MR. PARIS: Your Honor, has to
25 be deliberate indifference to the Constitutional
206
1 rights of plaintiffs.
2 MR. MULLIN: I don't dispute --
3 JUDGE CURRAN: Well, yeah, that's
4 the basis. But what kind of a Constitutional
5 right are we talking about here? Here we are
6 talking about a Constitutional right to, if you
7 will -- this is the plaintiffs' argument; I'm
8 not adopting it. As I understand their
9 argument, it's a Constitutional right to proper
10 response from elected and appointed officials,
11 law enforcement, et cetera, Town officials. Is
12 that fair?
13 MR. MULLIN: Yes, that's a very
14 fair statement when it comes to this topic.
15 MR. PARIS: But Your Honor, the --
16 the question has to be asked of people who are
17 acting and whose conduct is being questioned and
18 criticized, "Did you" -- "Did your action" --
19 "Was your action or inaction taken because you
20 were seeking to violate their Constitutional
21 rights?" That's --
22 MR. MULLIN: See, that's exactly
23 what --
24 JUDGE CURRAN: No, that's not
25 necessary. That's the problem.
207
1 MR. PARIS: This is not a
2 negligence case.
3 JUDGE CURRAN: I understand that.
4 MR. PARIS: In other words, the
5 question is motive. Was there a motive to
6 violate their Constitutional rights?
7 JUDGE CURRAN: As I understand
8 most of the -- I could certainly be wrong; but
9 as I understand most of the deliberate
10 indifference cases, depending on what the fact
11 basis is, somebody could just be stupid or lazy
12 and theoretically that might be sufficient in
13 the right fact pattern. You do not have to
14 prove, as I said, something comparable in
15 criminal to mens rea.
16 You do not have to prove, as I
17 understand it -- and as I've looked at the
18 cases. You don't have to prove they
19 deliberately said, "I am going to violate their
20 rights." That is not required as a threshold
21 proof as I understand it. You may -- I will be
22 happy to read any cases that are --
23 MR. PARIS: But what we're leading
24 to -- what we're leading to seems to be -- and
25 Mr. Mullin said it a hundred times; this is not
208
1 a negligence case. But yet what we seem to
2 be leading to is negligent violation of
3 Constitutional rights.
4 MR. MULLIN: No, not at all, Your
5 Honor. It's exactly --
6 MR. PARIS: In other words, if --
7 MR. MULLIN: Your Honor, can we
8 have an objection here and move on? Because
9 this is getting into a big philosophical
10 discussion.
11 MR. PARIS: If you didn't put
12 police tape up, that --
13 JUDGE CURRAN: No, no.
14 MR. PARIS: But that's the type of
15 thing. You didn't investigate. You didn't
16 investigate. You didn't go out and canvas the
17 neighborhood.
18 JUDGE CURRAN: As I understood --
19 and I don't want to keep the jury waiting --
20 there is a huge chasm between accidentally doing
21 something and deliberate indifference.
22 At this point, frankly, I'm going
23 to sustain the objection; but you can go at it,
24 if you like. I am going to sustain it because I
25 think that the way you phrased it is not proper
209
1 at this point because it does lead to, perhaps,
2 the indication that they have to prove that. I
3 am not saying if you can rephrase it differently
4 that you can't go at that question.
5 Do you see what my concern is?
6 It's more your phrasing to me because I think
7 that Mr. -- in fact, I am not going to sustain
8 it because it's irrelevant. I am going to
9 sustain it because, although I think that the
10 issue could be relevant, it has to be phrased
11 differently. It can't assume setting up a
12 standard that doesn't exist. So I will probably
13 notice everybody's objections on that decision.
14 MS. SMITH: Can I --
15 MR. MULLIN: Go ahead.
16 MS. SMITH: Can I just add one,
17 Your Honor? Mr. Bevere asked this witness, "Why
18 didn't you arrest Mutschler?" Now he is trying
19 to lead him into other -- saying more about --
20 the witness answered thoroughly why he didn't --
21 didn't arrest Mutschler.
22 JUDGE CURRAN: That's fair. And
23 that's a fair objection. You did ask him all
24 those questions, then this new question is
25 another dimension that kind of crosses the road.
210
1 That makes it seem as if there is a standard
2 over there that there is not --
3 MR. BEVERE: Okay.
4 JUDGE CURRAN: -- in deliberate
5 indifference.
6 MR. BEVERE: I'll move on. I'll
7 move on. That's fine. Thanks.
8 (Whereupon, sidebar discussion is
9 concluded.)
10 BY MR. BEVERE:
11 Q I'm sorry, Lieutenant Amodeo,
12 prior to your leaving the area that night did
13 you, in fact, post an officer on the premises?
14 A Yes.
15 Q Okay. And did you place the home
16 on priority check, as you told the plaintiffs
17 that you would?
18 A Yes.
19 Q All right. At some point -- and
20 then what did you do after you left the
21 plaintiffs' home?
22 A I went back to the station. I logged the
23 evidence, which was the beer barrel, as I said.
24 I completed the property report, photographed
25 it, placed it in a cell. I probably did the
211
1 report that was identified as P-350. And then I
2 went back out on the road.
3 Q Now, when you prepared your report
4 back at the station, you did not include in your
5 initial report this exchange that you would have
6 with Charles Mutschler, correct?
7 A I wouldn't call it an "exchange" because
8 an exchange involves a degree of mutuality.
9 This was him in another room.
10 Q Well, what was the reason that you
11 didn't relate the events with regard to Charles
12 Mutschler in your report?
13 A It could have been an intentional over --
14 unintentional oversight, or it could have simply
15 been that it was -- I considered it
16 inconsequential, as I do today.
17 Q Why did you consider it
18 inconsequential?
19 A It was just a stupid act.
20 Q Now, let me ask you this question.
21 Did you also testify in response to Mr. Mullin's
22 questions that when you were in the firehouse
23 you heard Charles Snyder, the father, make a
24 certain remark and in that remark used the word,
25 I think it was, "cock-suckers," correct?
212
1 A Just bear with me one second. Yes, he
2 made the remark. And this is on P-351. He
3 questioned me as to whether or not I was going
4 to believe the cock-sucking faggots over the
5 firemen.
6 Q Now, you did not put that in your
7 initial report, correct?
8 A That is correct.
9 Q All right. And I believe that you
10 testified on direct examination that it was an
11 oversight on your part?
12 A That is correct.
13 Q But you did put it in a
14 supplemental report, correct?
15 A Yes.
16 Q Did anyone tell you or instruct
17 you on the supplemental report?
18 A No, sir.
19 Q You did it on your own?
20 A Yes, sir.
21 Q And you gave that report to the
22 Detective Bureau so that they could be aware?
23 A I submitted it through the chain of
24 command. Yeah, I can't say who I handed it
25 off -- as I mentioned to Mr. Mullin, I don't
213
1 know if I handed it to Sergeant Reinke directly.
2 I don't know if I filed it at the -- at the
3 desk. I don't -- that I don't recall with
4 specificity.
5 Q Okay. And you did not have any
6 further involvement with regard to the
7 investigation of this matter, correct?
8 A No, sir, that was the absolute last
9 interaction that I had with this particular
10 case.
11 Q Okay. I want to ask you just --
12 just a couple quick questions, and then I'll be
13 done. What was the reason that the people in
14 the firehouse that night were not questioned?
15 A It's outside of the scope of my training
16 and responsibility.
17 Q And why do you say that?
18 A Because I have not been trained to
19 conduct in-depth criminal investigations.
20 Q And who does that with regard to
21 the Secaucus Police Department?
22 A The Detective Bureau.
23 Q Okay. Now, the -- with regard
24 to -- did you handle your response to this
25 incident any differently than you would have
214
1 handled any other response to similar
2 circumstances or allegations?
3 MR. MULLIN: Objection, asked and
4 answered. I believe it was the first question.
5 JUDGE CURRAN: Sustained. You may
6 rephrase it, if you like.
7 BY MR. BEVERE:
8 Q Okay. Did you treat your response
9 to this incident any differently because
10 Mr. deVries and Mr. Carter were gay?
11 A No.
12 Q Is anything that you did with
13 regard to this investigation or did not do with
14 regard to this investigation have anything to do
15 with Mr. deVries and Mr. Carter being gay?
16 A No.
17 Q Now, were you called to appear
18 before the Grand Jury?
19 A Yes.
20 Q All right. And did you appear
21 before the Grand Jury?
22 MR. MULLIN: Your Honor, I object
23 to that, that question, pursuant to your prior
24 ruling.
25 JUDGE CURRAN: I am going to
215
1 strike the question and the answer. We will
2 move on.
3 BY MR. BEVERE:
4 Q And that night you did make
5 notification of the incident to the on-call
6 detective, correct?
7 A Yes.
8 Q And you also notified the Chief of
9 the incident, correct?
10 A That is correct.
11 Q Oh, I'm sorry, my last question to
12 you. Did your failure to arrest anyone for
13 anything that happened to that night in any --
14 let me ask it this way.
15 Was your failure to arrest anyone in
16 connection -- for anything that happened to that
17 night in any way motivated to -- to protect any
18 firemen?
19 A No, sir, I don't believe that I suffered
20 a failure to make any arrests.
21 Q You don't believe --
22 A Arrests have to be specifically
23 violations of narrow courses of conduct as
24 defined by the legislature. And they must, in
25 the case of a disorderly persons offense, be
216
1 committed in my presence.
2 Q And was anything that you did that
3 night motivated by a desire to protect any of
4 the firemen?
5 A No, sir, not at all. I have no personal
6 relationship with any of them. And to -- to
7 speak quite frankly --
8 Q Sure.
9 A -- I have more sympathy with Mr. Carter
10 and Mr. deVries than I do with the firemen. I
11 told you, my son is gay.
12 Q Thank you. Thank you, Lieutenant.
13 REDIRECT EXAMINATION BY MR. MULLIN:
14 Q Aside from you, sir -- and thank
15 you for your expression of sympathy.
16 A Thank you.
17 Q Aside from you, sir --
18 A Can I get a drink of water?
19 Q Absolutely.
20 MR. BEVERE: We have a fresh
21 bottle here.
22 MS. SMITH: Yeah, I don't have
23 fresh.
24 MR. BEVERE: I apologize.
25 JUDGE CURRAN: We will go off the
217
1 record for a moment.
2 (Whereupon, a discussion is held
3 off the record.)
4 THE WITNESS: Okay.
5 BY MR. MULLIN:
6 Q Thank you for that expression of
7 sympathy. And I'm sorry you're upset.
8 A All right.
9 JUDGE CURRAN: On the record?
10 COURT CLERK: Back on the record.
11 BY MR. MULLIN:
12 Q Sir, aside from you, did any
13 police officers arrest anybody ever, any
14 Secaucus Police Officers arrest anybody ever for
15 what was done to my clients that night?
16 A No, sir.
17 Q And it's terrible thing what was
18 done to my clients that night. That's what you
19 are saying; is that right?
20 A Absolutely. As I said, I believe
21 everything that they said.
22 Q You believe what they said,
23 thanks.
24 A Which is why on P-350, if I could just go
25 back for a moment, I attempted in that first
218
1 paragraph to completely meet all the elements
2 for harassment, because it was, in fact, a
3 bias-related criminal offense, whereas
4 disorderly conduct, the stupid comments --
5 Q We appreciate your efforts. I
6 appreciate the report.
7 A What Mutschler said back and forth prior
8 to my arrival was not a bias-related criminal
9 offense.
10 Q You were in a very conflicted
11 position, given that the fact you thought my
12 clients were -- had been harmed that night and
13 also that your son is gay. That puts you in a
14 conflicted position and very difficult position;
15 let me just say that.
16 A No, sir, sympathetic position.
17 Q Sympathetic position.
18 A I don't believe there was a conflict.
19 Q One thing is for sure. Let's
20 leave aside what the Police Department did.
21 When you heard that the Fire Department reopened
22 the firehouse on April 30th, that was not a
23 happy moment for you, right?
24 MR. BEVERE: Judge, I am going to
25 object as to the relevance of whether this was a
219
1 happy moment for the witness or not.
2 MR. MULLIN: Your Honor, this door
3 has been opened wide, I would say, by the last
4 question counsel --
5 JUDGE CURRAN: You can rephrase
6 it. I will overrule the objection, but happy is
7 not really --
8 MR. MULLIN: I will rephrase it.
9 BY MR. MULLIN:
10 Q Right now, by wiping your eyes, by
11 wiping away your tears, by telling the jury your
12 son is gay, you are expressing to people about
13 this whole matter, right?
14 A Yes.
15 Q My brother is gay, right, and so,
16 you know, we have feelings about this, right?
17 Right, sir?
18 A Yes.
19 MR. BEVERE: Judge, come to
20 sidebar?
21 JUDGE CURRAN: Let's go to
22 sidebar.
23 (Whereupon, the following sidebar
24 discussion is held.)
25 MR. PARIS: It's getting out of
220
1 hand.
2 MR. MULLIN: Your Honor, let me
3 just note an objection here, say that Rule 403
4 has been violate by Mr. Bevere's eliciting from
5 this client the testimony that his son is gay,
6 followed by an emotional display. Well, that's
7 about the grossest violation of Rule 403 I have
8 ever seen. And that wasn't an accident; that
9 was planned.
10 And furthermore, now I need a
11 broad scope, a very broad scope to deal with the
12 inflammation of this jury, inflammatory impact
13 of this. I need a broad scope of
14 cross-examination. This officer is expressing
15 his feelings and attempting to inject -- and
16 this lawyer is attempting to engender tremendous
17 sympathy for the Police Department.
18 We were never told about this.
19 This is never mentioned in deposition. This is
20 a total sandbagging and a total surprise and
21 grossly improper. I am very close to moving to
22 a mistrial. But you know what, I have
23 profoundly traumatized clients; and that's a
24 very difficult thing for me to do. So this is a
25 gross, improper thing that has been done. I
221
1 need, at a minimum, an extremely broad scope of
2 discovery -- an extremely broad scope of
3 cross-examination in order to deal with this
4 inflammation of the jury.
5 JUDGE CURRAN: Mr. Bevere.
6 MR. BEVERE: Judge, let me just
7 start by saying that -- that, you know, it seems
8 to me that during the course of this trial I
9 have been accused of a lot of things, okay.
10 Certainly was not my intention to inflame this
11 jury or open up an area. I asked him -- the
12 issue in this case is -- issue in this case
13 is -- one of the issues, anyway, is did the
14 Police Department treat the response here any
15 differently because the plaintiffs were gay.
16 That was the question I asked. I didn't ask him
17 if his son was gay. It wasn't a sandbag. I
18 didn't elicit that testimony. None what --
19 JUDGE CURRAN: Did you know his
20 son was gay?
21 MR. BEVERE: I knew his son was
22 gay, but it was not my intention to elicit that.
23 Quite frankly, I didn't really want that to come
24 out during the course of this trial.
25 JUDGE CURRAN: Before we get -- I
222
1 just have to indicate on the record I have been
2 watching the witness carefully. In fairness,
3 that's a fair question. That was a fair
4 question. It was asked. I don't honestly
5 believe that it was done intentionally. If it
6 was, then Mr. Bevere lives with that as a
7 professional. But I don't think it was.
8 Additionally, I saw the witness'
9 reaction. I honestly didn't know what he was
10 going to say. I thought that he was annoyed
11 that that question was asked, as if, you know,
12 most people would be. I don't think it was
13 intentional.
14 You've already taken great
15 liberties, Mr. Mullin, by stating that your
16 brother is gay, which I look at as a direct
17 attempt to combat whatever sympathy might be in
18 the jury's mind for this witness and, at the
19 very least, to neutralize it. Other than that,
20 we're not going with any more broad brushes than
21 would normally be required.
22 The whole area of what's being
23 litigated in this case is sensitive. Everybody,
24 I think, has tried to handle it very
25 professionally. But to the best of my knowledge
223
1 I do not think that that was what Mr. Bevere was
2 attempting to do. I looked at that witness, and
3 you could just see his -- his face change. For
4 whatever, he chose to say what he did say.
5 You've already chosen to indicate the
6 information about your brother, which certainly
7 is your right to do. But I don't think it is in
8 anybody's best interest to go beyond this.
9 MR. MULLIN: I understand your
10 ruling.
11 JUDGE CURRAN: Thank you.
12 MR. MULLIN: I'll proceed.
13 JUDGE CURRAN: Everybody's
14 objection is noted.
15 BY MR. MULLIN:
16 Q How are you doing?
17 A Okay, thank you.
18 Q Sir, let's try to move on to some
19 of the other issues. If you need a break, any
20 time.
21 A No, I'm okay.
22 Q Any time, okay. I am going to
23 draw your attention to this Exhibit 220, which
24 was your report. It's also Exhibit P-350.
25 A Okay.
224
1 Q And this is the report you wrote
2 that we went through, right?
3 A Yes, sir.
4 Q You wrote it on April 25th, 2004;
5 is that right?
6 A Yes, sir.
7 Q Now, you've told -- in answering
8 Mr. Bevere's questions, you told Mr. Bevere that
9 you had conducted a physical inspection of my
10 clients' house and property?
11 A Yes, sir.
12 Q All right. We can agree, can't
13 we, that that doesn't appear anywhere in this
14 report?
15 A No, sir.
16 Q Okay. Instead, it says that when
17 you left at 2:00, you finished speaking with the
18 victims, you proceeded to the firehouse, right?
19 A Yes.
20 Q That's what it said. It doesn't
21 say you proceeded to do a physical inspection --
22 A I don't disagree with that.
23 Q -- of the house? We can agree
24 it's --
25 A Yes, sir.
225
1 Q Can we also agree, sir, nowhere in
2 here do you mention that you gave my client your
3 cell phone number, right?
4 A That's correct.
5 Q Okay. And can we agree also that,
6 although you detail what Tim Carter said to you,
7 nowhere in here do you have Tim Carter saying to
8 you -- do you report Tim Carter saying to you
9 what you said that he felt, that nothing was
10 going to be done by the Police Department to
11 help him? That's not in this report, right?
12 A That's correct.
13 Q You told the jury that he said
14 something like that to you, that you didn't say
15 that to him. You told this jury that he had
16 said to you during this meeting he didn't think
17 the police were going to do anything to help
18 him, words to that effect?
19 A Yes.
20 Q We can agree you didn't write Tim
21 Carter's words to that effect here?
22 A Yes, sir.
23 Q Sir, you testified -- and when I
24 was questioning you, when I asked you something
25 that was said in the deposition, you said,
226
1 "Well, Mr. Mullin, I took that deposition
2 sometime in 2007. You can't except me to
3 remember everything I said," right? You
4 remember saying that to me?
5 A Everything I did.
6 Q Everything I did or said?
7 A Yes.
8 Q Were you referring to the
9 deposition?
10 A Yes, yes, sir. I gave the deposition to
11 the best of my ability and my recollection at
12 the time.
13 Q I understand. But you said here
14 in front of this jury that you remember sitting
15 here today that in 2004 Mr. Carter didn't tell
16 you about the attack on the fence?
17 A Yes, sir.
18 Q That's what you told the jury. So
19 you -- you're telling this jury that you
20 remember what Mr. Carter didn't say about four
21 years ago; is that right?
22 A Yes, sir.
23 Q And you took no notes during your
24 conversation with Mr. Carter?
25 A Yes, sir; that's correct.
227
1 Q Sir, you're in a very conflicted
2 position, aren't you?
3 A How so, sir?
4 Q You're someone who believes what
5 my clients said, right?
6 A Absolutely.
7 Q You have, as you've said, a gay
8 son; and you have sympathies there, right?
9 A Sure.
10 Q And you're in a Town that didn't
11 lift a finger to protect my clients.
12 MR. BEVERE: Objection.
13 JUDGE CURRAN: Sustained.
14 BY MR. MULLIN:
15 Q Well, the Fire Chief reopened the
16 firehouse and you knew about it on April 30th,
17 2004, right?
18 A I don't know who made the policy
19 decision, sir. If I recall from your opening
20 arguments, it was the Town Administrator --
21 Q Sure, was a policy decision?
22 A -- with an exhibit. Clearly, it was a
23 policy decision.
24 Q It was the Town Administrator,
25 right?
228
1 A I believe that was the letter. Yes, sir,
2 it was over his signature.
3 Q One other thing. When you spoke
4 to Mr. Carter and Mr. deVries that night of the
5 incident, you didn't ask them whether they could
6 recognize the voices they heard threatening to
7 kill them, true?
8 A That's correct.
9 Q Just one -- one other matter.
10 Now, this jury has got -- gotten an opportunity
11 to see Officer Mutschler. He came in. Would
12 you agree he is a pretty big guy?
13 MR. BEVERE: I am sorry, Judge, I
14 didn't hear the question.
15 Q This jury had the opportunity to
16 see Mr. Mutschler. Can we agree he is a
17 physically big guy?
18 A I couldn't speak to that, sir.
19 Q Okay. When he was finally stopped
20 by the crowd of firemen holding him, as he
21 charged towards you, he was only 6 to 8 feet
22 away from you, right?
23 A He was in the other room. I don't recall
24 the distance. And it wasn't a crowd; it was two
25 people.
229
1 Q Well, he was either in the other
2 room or he was in the door between the rooms;
3 that would be more accurate, wasn't it?
4 A I said he was approaching the threshold,
5 the doorway between the two rooms. To the best
6 of my recollection he never broke the plane of
7 that threshold.
8 Q Actually, the truth is you were
9 either in that anteroom or you were in the door
10 between the anteroom and the bar when Mutschler
11 came at you, right?
12 A No, sir, I said I was in the anteroom.
13 He was in the other room.
14 Q All right. So let's look at your
15 deposition, page 93, for starters. And I'll
16 draw your attention -- you see that you're
17 testifying there, starting on page 92?
18 A Okay.
19 Q And you talk about Mr. Snyder, Sr.
20 assuming the position. You told the jury about
21 that right?
22 A Right.
23 Q You talk about seizing the barrel
24 of empties and so on and so forth. You say,
25 "But I remember Mutschler started to come at me
230
1 in an antagonistic fashion while I was in that
2 anteroom or in the door between the anteroom and
3 the bar." That's what you said under oath at
4 your deposition right?
5 A Okay.
6 Q That was the God's honest truth?
7 A That's what I had said at the time.
8 Q And that was the truth at the
9 time?
10 A To the best of my recollection.
11 Q You said he was held back by a
12 couple --
13 A Couple other people. Couple is two.
14 Q Then you said when he finally
15 stopped he was only 6 to 8 feet away from you,
16 right?
17 A Yeah, that wouldn't be unreasonable.
18 Q I wish I had a tape measure. All
19 I have is this dinky thing. But we can kind of
20 estimate, can we, what 6 to 8 feet -- let me --
21 sir, would you watch?
22 A Those are probably 10-inch tiles.
23 Q So watch while I do it, so we can
24 agree. I am going to do it from here. I am
25 going to do 6 feet. One, two, three, four,
231
1 five, six. Can we agree I did that honestly?
2 A Okay.
3 Q So when Mr. Mutschler finally
4 stops and is held back by firemen, this is the
5 distance between him that the jury now sees?
6 A Take your best shot, sir. I guarantee
7 you are not going to hit me.
8 Q I am never going to try to hit
9 you, sir.
10 Look, we went over this statute
11 concerning this P-398, this statute concerning
12 assault. I don't want to spend much more time
13 on it.
14 A This is yours, sir.
15 Q Thank you. And do you have that?
16 A Yes.
17 Q Okay. When Mr. Bevere was
18 questioning you, sir, you were not trying to
19 attempt to -- to suggest to the jury that the
20 only way to prove assault is by that passage you
21 read, by attempting by physical menace to put
22 another in fear of physical bodily injury? That
23 is just one of three ways?
24 A Yes, sir. I read all three.
25 Q I understand. So one way to prove
232
1 a simple assault is if you attempt to cause --
2 attempt to cause, right, or purposely, knowingly
3 or recklessly cause bodily injury to another.
4 So if someone just attempts to cause injury to
5 another, bodily injury to another, well, that's
6 an assault, right?
7 A It is under definition of the statute,
8 and I will yield to your superior legal
9 education.
10 Q I'm not superior.
11 A But during -- I don't -- I believe that
12 we can disagree on the definition of "attempts
13 to" and probably come to different conclusions.
14 And again, I only went to the Essex County
15 Police Academy for 13 weeks.
16 Q All right. I'm not going to try
17 to --
18 A You went -- you went to law school. So I
19 am not going to argue the law with you, sir.
20 But since I have to make the arrest, I have to
21 be guided by my perceptions and my beliefs and
22 the -- and what I also believe to be the intent
23 of the legislature.
24 Q And you and I agree that you
25 didn't arrest Mutschler that night, right?
233
1 A That is a fact, sir.
2 Q I just was curious about something
3 you said. When Mr. Bevere mentioned these
4 dispatch tapes, you said, "We listened to them
5 last night," meaning just last night, right?
6 A Yes.
7 Q Who is "we"?
8 A Myself and Mr. Bevere.
9 Q Oh, okay. I have no further
10 questions.
11 JUDGE CURRAN: Mr. Bevere.
12 MR. BEVERE: I have no further
13 questions, Your Honor, thank you.
14 JUDGE CURRAN: Okay. Is there
15 anyone on the jury who has a question? All
16 right. We will go off the record. If you will
17 please collect them.
18 (Whereupon, a discussion is held
19 off the record.)
20 (Whereupon, the following sidebar
21 discussion is held.)
22 JUDGE CURRAN: Are we up to 6,
23 Miss Castelli?
24 COURT CLERK: 6.
25 JUDGE CURRAN: 6, thank you.
234
1 There are a lot on these. "The
2 witness testified that he was bluffing when he
3 ordered the firefighters to leave the firehouse
4 because he did not believe he really had legal
5 authority to do so. Was this because they were
6 firefighters, or was" -- "or would this also
7 apply to private citizens who may be using the
8 firehouse for a party or function?"
9 That's the first question.
10 "Or to ask it another way, if" --
11 something -- "people" -- "if people in the
12 firehouse were just ordinary citizens, would the
13 sergeant have the authority to remove them?"
14 Want to take a look at the questions?
15 MR. MULLIN: No, I'm fine. No
16 objection on that question.
17 JUDGE CURRAN: Number one on the
18 next one -- there are five questions on the next
19 one. "Did Charles Snyder, Sr. Charles Snyder,
20 Jr. and Mr. Mutschler" -- this person is paying
21 attention -- "appear to be intoxicated to you?
22 Did you smell alcohol on their breaths?" That's
23 really been asked and answered.
24 MR. MULLIN: I have no objection.
25 MR. BEVERE: I have no objection
235
1 to that.
2 MS. SMITH: Not this witness,
3 Judge.
4 JUDGE CURRAN: Not?
5 MS. SMITH: Not this one.
6 JUDGE CURRAN: Next question.
7 "What is the Secaucus Police Department policy
8 or procedure, whichever one, on public
9 intoxication?"
10 MR. MULLIN: No objection.
11 JUDGE CURRAN: No objection.
12 MS. SMITH: No.
13 MR. PARIS: Do you have an
14 objection to that?
15 MR. BEVERE: You can put the
16 question to the witness. If he knows, he knows
17 and he can say what it is. I have no problem
18 with those.
19 JUDGE CURRAN: Next one -- oh, I'm
20 sorry, they crossed out number three. Number
21 four, "Why wasn't Police Officer Moreda or
22 Police Officer Ulrich instructed to question the
23 other 911 callers, Mrs. Hjelm and Mrs. Dee
24 Bardini?"
25 MR. MULLIN: No objection.
236
1 JUDGE CURRAN: Objection? Number
2 five, "Why did you feel that you did not have
3 the authority or you was calling a bluff to
4 remove the firemen from the firehouse, if it was
5 being used for a party, not work, and the men
6 were off-duty?" Same question.
7 MR. BEVERE: Same question.
8 JUDGE CURRAN: I think we have
9 another one.
10 MR. PARIS: No.
11 JUDGE CURRAN: Miss Hawks, do we
12 have another one? They changed it. I
13 thought -- great.
14 MS. HAWKS: No more questions.
15 MR. MULLIN: No objections.
16 JUDGE CURRAN: Thank you.
17 MR. BEVERE: Thank you.
18 (Whereupon, sidebar discussion is
19 concluded.)
20 JUDGE CURRAN: I am going to read
21 these questions to you, and then the attorneys
22 have the right to follow up. They may or may
23 not have follow-up questions.
24 I would appreciate it if you
25 answer the question I --
237
1 First question. The witness
2 testified you were bluffing when you ordered the
3 firefighters to leave the firehouse because you
4 did not believe you had the legal authority to
5 do so. Was this because they were firefighters,
6 or would this also apply to private citizens who
7 may be using the firehouse for party or
8 function?
9 I will give you the next part.
10 Or to state this another way, if the people in
11 the firehouse were just ordinary citizens, would
12 the sergeants have the authority to remove them?
13 THE WITNESS: There were a couple
14 of parts to that. Authority to restrain
15 individuals' liberties, whether they were
16 firemen or civilians -- and there was a mix in
17 there at the time -- authority has to be granted
18 by a governmental body.
19 As an example, the police are the
20 only civil authority empowered by the -- the
21 government to utilize force against individuals
22 to achieve a lawful end. I don't believe and I
23 cannot cite the governmental authority that
24 would have provided me with the ability to force
25 them to vacate the premises. That's still my
238
1 belief today.
2 I may be mistaken. I can't say.
3 But in my training and my experience, you all
4 have the right to come and go as you please.
5 And for me to simply say without a public safety
6 exception or hazard or -- or some legitimate
7 reason to restrain your freedom of movement,
8 freedom of association, I don't believe that I'm
9 empowered to restrict your movements. And that
10 would apply to everybody.
11 Of course, in any particular case
12 it's going to be fact-sensitive. It depends on
13 what's going on. There were no criminal
14 offenses going on in that firehouse. Again,
15 Mr. Mullin and I agree to disagree, okay; but
16 there were no criminal offenses. There was no
17 disorderly conduct. There was no ongoing
18 harassment of Mr. Carter or Mr. deVries. These
19 were all separate incidents. They unfolded in a
20 certain chronology, but they're not directly
21 related. They meet at one point on a circle,
22 but they're not directly related.
23 JUDGE CURRAN: Any follow-up
24 questions?
25 FURTHER EXAMINATION BY MR. MULLIN:
239
1 Q Yeah, the firehouse and the fire
2 property are public property owned by the Town
3 of Secaucus, right?
4 A Yes, sir.
5 Q So you had the authority -- strike
6 that.
7 Someone had the authority to close that
8 firehouse down and throw those firemen out of
9 there, right? Someone?
10 A I won't disagree with that, sir. And if
11 I may, I'll just add to it slightly and say that
12 I believe that would be a policy decision. And
13 as I stated earlier in my testimony, I have no
14 policy-making role or authority.
15 Q I understand that. But the night
16 of the incident you have told this jury you
17 actually called the highest level officer in the
18 entire Secaucus Police Department, right?
19 A Yes.
20 Q You called Chief Corcoran?
21 A Yes.
22 Q Chief Corcoran reported to the
23 Town Administrator, right?
24 A He belong -- would report to both the
25 Town Administrator and the Mayor and Council.
240
1 Q And the Mayor?
2 A Yes.
3 Q You reported what was going on to
4 Chief Corcoran?
5 A Yes.
6 Q And in fact, the very next morning
7 someone in the high -- in the high levels -- in
8 the high policy levels of the Town did shut that
9 fire -- the social wing of that firehouse down,
10 right?
11 A Yes, sir.
12 Q You became aware of it, right, at
13 some point?
14 A At some point.
15 Q Okay. Now, you did exercise some
16 authority that night over some of the property,
17 the public property in that firehouse, right?
18 A I attempted to.
19 Q Well, you actually took out of
20 that firehouse a barrel that belonged in that
21 firehouse full of empty containers of booze,
22 right?
23 A Yes.
24 Q And you took it out and you drove
25 it to the police station, right?
241
1 A Yes.
2 Q And you put it in the evidence
3 room, right?
4 A Yes, in a cell.
5 Q You had power over that property,
6 right?
7 A I exercised control over the property,
8 yes, sir.
9 Q One of your obligations under the
10 General Order Number 88?
11 MR. BEVERE: Judge, can we come to
12 sidebar? Because we are talking about questions
13 with regard to the question that was asked by
14 the jury.
15 JUDGE CURRAN: Do you want to go
16 up to sidebar?
17 MR. MULLIN: I am staying on
18 topic, Your Honor.
19 JUDGE CURRAN: Pardon me?
20 MR. MULLIN: I am staying on the
21 topic.
22 JUDGE CURRAN: Is that the
23 objection, or do you want to still go to
24 sidebar?
25 MR. BEVERE: I guess we will hear
242
1 the question and then I'll --
2 BY MR. MULLIN:
3 Q One of your obligations, sir, as
4 the patrol supervisor when you arrived at the
5 scene of a bias crime is to take appropriate
6 steps to ensure the incident does not escalate,
7 right?
8 A Yes.
9 MR. MULLIN: I have no further
10 questions.
11 JUDGE CURRAN: Any questions from
12 the defense?
13 MR. BEVERE: No questions.
14 JUDGE CURRAN: Thank you.
15 Next question. If Charles
16 Snyder, Sr. Charles Snyder, Jr. and
17 Mr. Mutschler appeared to be intoxicated, did
18 you did you smell alcohol on their breaths?
19 THE WITNESS: I didn't spend any
20 time close to Charles Mutschler, Jr. He was
21 in -- or Charles Mutschler. He was in the other
22 room.
23 I had a brief very brief
24 confrontation with Charles Snyder, Sr.; and he
25 didn't appear to be intoxicated.
243
1 And I spent more time in very
2 close proximity to Charles Snyder, Sr.; and he
3 did have the odor of an alcoholic beverage on
4 his breath.
5 JUDGE CURRAN: Any follow-up
6 questions?
7 FURTHER EXAMINATION BY MR. MULLIN:
8 Q Sir, are you aware that firemen
9 started this party by drinking at the firehouse
10 before they went to this restaurant? Are you
11 aware of that?
12 A No, sir, it's the first time I'm hearing
13 that.
14 Q Are you aware that then firemen
15 drank extensively at the restaurant where they
16 did the party?
17 A I wouldn't be surprised to learn that,
18 sir.
19 Q Are you aware that, for example,
20 Richard Johnson, a firefighter, has admitted
21 under oath at that party alone, forget the
22 restaurant only, he drank more than ten
23 alcoholic beverages?
24 MR. BEVERE: Objection. Judge,
25 can we come to sidebar?
244
1 JUDGE CURRAN: Sure.
2 (Whereupon, the following sidebar
3 discussion is held.)
4 MR. BEVERE: Judge, I believe that
5 the jury's question was: Did you believe
6 Charles Mutschler, Charles Snyder, Sr., Charles
7 Snyder, Jr. to be intoxicated. That was the
8 question. Now we are talking about Richard
9 Johnson and whether he was aware -- the question
10 asked for his physical observations in the
11 firehouse that night, what did he physically
12 observe with regard to these three individuals.
13 MR. MULLIN: I was simply
14 cross-examining, Your Honor, on the issue that,
15 you know, they're trying to show that these guys
16 came from hours and hours of drinking, of heavy
17 drinking. That's a fair cross-examination.
18 JUDGE CURRAN: It's fair in regard
19 to these three. If you had information in
20 regard to those three, it would be fair. But
21 it's -- I'm going to sustain the objection,
22 unless it's in regard to these three.
23 MR. MULLIN: I understand.
24 JUDGE CURRAN: Your objection is
25 preserved for the record.
245
1 (Whereupon, sidebar discussion is
2 concluded.)
3 JUDGE CURRAN: Any further
4 questions, Mr. Mullin?
5 MR. MULLIN: I have no further
6 questions, Your Honor.
7 JUDGE CURRAN: Question from the
8 defense on that question?
9 MR. BEVERE: Judge, I don't think
10 so. I just want to just read his answer again,
11 just to make sure I heard him properly, if Your
12 Honor doesn't mind.
13 Okay. No questions. I just
14 wanted to make sure I heard his answer properly,
15 and I did. Thank you.
16 JUDGE CURRAN: The next question.
17 What is the Secaucus Police Department's policy
18 or procedure on public intoxication?
19 THE WITNESS: There is no policy
20 or procedure. Public intoxication is not an
21 offense or a crime in the State of New Jersey.
22 FURTHER EXAMINATION BY MR. MULLIN:
23 Q There are, of course, crimes
24 associated -- associated with the kind of
25 behaviors that sometimes happen when people are
246
1 intoxicated, like -- like noise, making a loud
2 disturbance, things of that nature? Those are
3 criminal, even under Secaucus ordinances, aren't
4 they? You have a noise ordinance, don't you?
5 A There is a noise ordinance. I don't know
6 the specifics of it. I would have to look up
7 that, but I know it's not alcohol-related.
8 Q It's fair to say, isn't it, that
9 people who get drunk sometimes run afoul of the
10 noise ordinance of Secaucus, right?
11 A That's not been my experience, sir.
12 Q Is that right?
13 MR. MULLIN: I have no further
14 questions.
15 JUDGE CURRAN: Must be the Bronx,
16 Mr. Mullin, to go back to comment at sidebar.
17 Any questions from the defense?
18 MR. BEVERE: No, Judge, thank you.
19 JUDGE CURRAN: Thank you. Next
20 question. Why wasn't Police Officer Moreda or
21 Police Officer Ulrich instructed to question the
22 other 911 callers, Mrs. Hjelm and Mrs. Dee
23 Bardini?
24 THE WITNESS: I was never made
25 aware of the substance or nature or identity of
247
1 anyone that made those calls. As I mentioned to
2 Mr. Mullin earlier, the -- when I listened to
3 the tapes at deposition, which was in July of
4 2007, more than three years after the incident,
5 was the first time I became aware that the first
6 call placed to the Secaucus Police Department,
7 which I believe was from the Dee Bardini
8 residence, mentioned gunshots. That information
9 was never transmitted via radio, in person or by
10 any other communication device, like a
11 telephone. First time I heard it was at
12 deposition.
13 JUDGE CURRAN: Mr. Mullin.
14 MR. MULLIN: Let me just read the
15 answer again.
16 FURTHER EXAMINATION BY MR. MULLIN:
17 Q You're just speaking on behalf of
18 yourself, right, what you knew?
19 A Yes, sir.
20 Q You are not speaking on behalf of
21 what the Police Department or the hierarchy, the
22 upper echelons, the Police Department knew,
23 right?
24 A No, sir. I simply got that very vertical
25 chain of command.
248
1 Q I understand.
2 A Down at the bottom and had no
3 involvement.
4 MR. MULLIN: No further questions.
5 FURTHER EXAMINATION BY MR. BEVERE:
6 Q Are you aware of whether the
7 Detective Bureau followed up and spoke to people
8 who had made 911 calls that night?
9 A Only to the extent that Mr. Mullin stated
10 that Lieutenant Malanka left a report. But as a
11 rule, again, we're physically and operationally
12 segregated. And as a rule, they don't share any
13 information with Patrol.
14 MR. BEVERE: I have no further
15 questions, thank you.
16 JUDGE CURRAN: Thank you. And the
17 last question is similar to our previous
18 question, but it is slightly different. Why did
19 you feel that you did not have the authority or
20 that you were doing what you called a "bluff" to
21 remove the firemen from the firehouse, if it was
22 being used for a party, not work and the men
23 were off-duty?
24 THE WITNESS: Similarly --
25 similarly to my earlier answer, authority has to
249
1 come and be issued from a governmental body. I
2 don't know that there was that governmental
3 authority to stop people from lawful -- lawfully
4 congregating, even if it's a Town building. And
5 I simply don't believe, no more so than I could
6 order you from the room for no reason, that I
7 could order them from the firehouse.
8 Oftentimes the mere presence of
9 the uniformed police officer, reasonable people
10 will comply. That's what I attempted to do. As
11 I explained earlier, attempted to show them the
12 benefits of cooperating with me, in everybody's
13 best interests in leaving the area. Some did.
14 Some didn't. Became a more competitive
15 situation, and then it was my belief that when
16 the few leaders of the group that remained were
17 still on scene that if I left, I believed in my
18 mind they could save face and felt like they
19 won. And by that time it's very late; it's 2:20
20 or so in the morning. They eventually left, and
21 it worked out.
22 It served the best interests of
23 Mr. Carter and Mr. deVries, it served the best
24 interests of the Town without creating greater
25 conflict and escalating. That was one of the
250
1 things that was on page three, to take
2 appropriate steps to ensure that the incident
3 does not escalate.
4 Me getting in a verbal argument
5 with people that have been drinking -- and if
6 Mr. Mullin's contention they started well before
7 at the firehouse, well before they went out to
8 dinner, I don't know what time the dinner was.
9 Let's say 7. Maybe they were -- started at the
10 firehouse at 5 or possibly 6. And it's now 2:00
11 in the morning. That's a considerable amount of
12 time to be consuming alcoholic beverages.
13 I clearly wasn't -- it was my
14 belief at the time from my interactions with
15 them we weren't going to arrive at a rational,
16 reasoned judgment. Getting in an argument with
17 them, it's blue, it's black, it's blue, it's
18 black, pointless.
19 Attempting to stretch what I
20 believe the elements of simple assault were to
21 attempt to make a custodial arrest, which I
22 wouldn't have done, anyway, with Mr. Mutschler
23 and then trying to drag him out kicking and
24 creaming through a hostile mob, foolish. They
25 had practice.
251
1 My experience would have been,
2 had I believed he committed offense in my
3 presence, would have been to go back to complete
4 a criminal complaint, a complaint summons for
5 the simple assault, had it occurred, and would
6 have mailed it to him. He would have gotten it
7 in the mail, would have had a notice to appear
8 in the municipal court. There is no reason to
9 make a custodial arrest in a situation where the
10 offender is known, he is not a flight risk, not
11 hazard to the community and to escalate the
12 situation and further compound the problem. And
13 that's what would have happened in my
14 estimation, in my experience.
15 FURTHER EXAMINATION BY MR. MULLIN:
16 Q Sir, neither you nor anyone else
17 at the Secaucus Police Department ever, even
18 after that date, even after there was no hostile
19 mob, as you put it, arrested Mutschler, right,
20 for anything associated with the events of
21 April 24th and 25th, 2004? That's true, isn't
22 it?
23 MR. BEVERE: Objection, asked and
24 answered.
25 JUDGE CURRAN: Sustained.
252
1 BY MR. MULLIN:
2 Q And the phrase you just used was
3 the firemen saving face, was that the phrase you
4 used?
5 A Yes, sir.
6 MR. MULLIN: I have no further
7 questions.
8 JUDGE CURRAN: Mr. Bevere, any
9 questions?
10 MR. BEVERE: Let me just look at
11 something. Judge, I just want to read the
12 answer, make sure that I have it understood.
13 No questions, Your Honor, thank
14 you.
15 JUDGE CURRAN: Thank you, sir.
16 You may step down.
17 THE WITNESS: Thanks.
18 JUDGE CURRAN: May I see counsel
19 at sidebar, please.
20 (Whereupon, the following sidebar
21 discussion is held.)
22 JUDGE CURRAN: I'm just concerned
23 that you have witnesses out there who are
24 waiting who may not be reached and you may want
25 to let somebody go or whatever.
253
1 MR. MULLIN: Well --
2 JUDGE CURRAN: Or maybe not?
3 MR. MULLIN: How late are we going
4 to work today? Just until 4?
5 JUDGE CURRAN: I have a hearing at
6 4; but no, no, we have already told them that
7 they will have to wait until the trial is
8 through. So it doesn't matter to me.
9 MR. MULLIN: I would certainly
10 like to get Malanka through.
11 MR. BEVERE: We can bring Johnson
12 tomorrow.
13 JUDGE CURRAN: I just thought you
14 might want to release somebody.
15 MS. SMITH: Want to bring him
16 tomorrow? Is that okay?
17 MR. BEVERE: Let me go outside,
18 tell Johnson be back tomorrow. That way --
19 MR. PARIS: Malanka has been here
20 all day.
21 MR. BEVERE: Malanka has been here
22 all day, Judge, so if we can release him --
23 MR. MULLIN: Judge.
24 JUDGE CURRAN: Why don't we let
25 them go?
254
1 MR. MULLIN: I want to let the
2 jury go while we are still at sidebar for a
3 specific reason, if you could.
4 (Whereupon, sidebar discussion is
5 concluded.)
6 JUDGE CURRAN: Ladies and
7 Gentlemen, we will give you the afternoon break,
8 if you will. Just ten minutes. We'd appreciate
9 it if you would be back, thank you.
10 (Whereupon, the jury is excused.)
11 (Whereupon, the witness is
12 excused.)
13 COURT CLERK: Are we still on the
14 record?
15 MS. SMITH: Now I will go wipe ink
16 off the floor. I'm sorry, Your Honor.
17 JUDGE CURRAN: I'm so short, when
18 you all are over there, I can barely just see
19 your heads. There is ink on the floor?
20 MS. SMITH: Just little marks to
21 make the 6 feet.
22 JUDGE CURRAN: Oh, the 6 feet, oh,
23 my God.
24 MR. MULLIN: Like a virtual
25 Picasso.
255
1 MS. SMITH: I'm sorry.
2 MR. MULLIN: So we are going to
3 take like a five-minute break right now?
4 JUDGE CURRAN: Why did you want to
5 stay over here?
6 MR. MULLIN: Because my paranoid
7 mind, I thought that Officer Amodeo was going to
8 shake my hand in front of the jury.
9 JUDGE CURRAN: Oh, oh, oh, oh.
10 MR. MULLIN: While I have great
11 affection for --
12 MR. BEVERE: No, I would have
13 tackled him.
14 MR. MULLIN: So just kind of --
15 MR. BEVERE: I would have tackled
16 him, I assure you.
17 JUDGE CURRAN: Good thinking.
18 (Whereupon, a brief recess is
19 taken.)
20 MS. HAWKS: Jurors are
21 approaching.
22 (Whereupon, the jury is brought
23 into the courtroom.)
24 COURT CLERK: On the record.
25 JUDGE CURRAN: Thank you, Ladies
256
1 and Gentlemen.
2 You're calling your next witness,
3 Mr. Mullin.
4 MR. MULLIN: I call -- I want to
5 get the title right.
6 MR. BEVERE: Captain Thomas
7 Malanka.
8 MR. MULLIN: I call Tom -- Captain
9 Thomas Malanka.
10 JUDGE CURRAN: Thank you.
11 MS. HAWKS: Please raise your
12 right hand, put your left hand on the Bible.
13 C A P T A I N T H O M A S A. M A L A N K A is
14 duly sworn by a Notary Public of the State
15 of New Jersey and testifies under oath as
16 follows:
17 MS. HAWKS: For the record, please
18 state your full name and spell your last name,
19 please.
20 THE WITNESS: Thomas Anthony
21 Malanka, M-a-l-a-n-k-a.
22 MS. HAWKS: Thank you.
23 JUDGE CURRAN: Thank you, sir.
24 You're under oath. All your testimony must be
25 truthful and accurate to the best of your
257
1 ability. Do you understand?
2 THE WITNESS: Yes.
3 JUDGE CURRAN: Thank you. Will
4 you please give us your title and your address
5 for the record.
6 THE WITNESS: I'm a captain with
7 the Secaucus Police Department. My address is
8 762 10th Street in Secaucus, New Jersey.
9 JUDGE CURRAN: Thank you.
10 Your witness.
11 DIRECT EXAMINATION BY MR. MULLIN:
12 Q Good afternoon, Captain.
13 A Good afternoon.
14 Q Sir, where are you currently
15 employed?
16 A Secaucus Police Department.
17 Q And you're a captain there?
18 A Yes, I am.
19 Q And how long have you been with
20 the Secaucus Police Department?
21 A Since 1986, 22 years.
22 Q And would you just take us through
23 the ranks you held? You started as a police
24 officer?
25 A Yes, I did.
258
1 Q Then you went to what position?
2 A In 1997 I was promoted to sergeant.
3 Q Okay.
4 A 2004 January I was promoted to
5 lieutenant. And last June '07 I was promoted to
6 captain.
7 Q Okay. Now, in April -- in
8 April 2004 you were a lieutenant, correct?
9 A Yes.
10 Q And okay. I just want to show you
11 a few police reports.
12 A Yes.
13 MR. MULLIN: P-224.
14 MR. BEVERE: Can you just give me
15 the date of the report?
16 MR. MULLIN: That's 4/27/04.
17 MR. BEVERE: And it was --
18 MR. MULLIN: That's Malanka.
19 MR. BEVERE: Okay.
20 MR. MULLIN: Tell me when you're
21 ready.
22 MR. BEVERE: I'm ready.
23 MR. MULLIN: Okay. We don't have
24 that laser, do we? Do we have that? Might make
25 it a little easier for the jury. Does it work?
259
1 I think it does work.
2 BY MR. MULLIN:
3 Q Sir, I am going to show you what's
4 been marked as Plaintiff's Exhibit 224. And I
5 have a blowup for the jury. And I want to ask,
6 sir, if you recognize that document?
7 A Yes, I do.
8 Q And what is that?
9 A This is a Supplementary Investigation
10 Report.
11 Q And did you prepare it?
12 A Yes, I did.
13 Q And is that your signature on it
14 in the lower left-hand corner?
15 A Yes, it is.
16 Q And you prepared this report on
17 April 27th, 2004?
18 A Yes, I did.
19 Q Okay. And in the -- I am going to
20 draw your attention to the middle paragraph. In
21 the middle paragraph you write, "At 900 hours
22 this morning 4/27/04" -- so again, for the
23 record, 900 hours means 9 a.m., right?
24 A Yes, it does.
25 Q -- "I telephoned Miss Dee
260
1 Bardini." When you say, "I," you mean you,
2 Lieutenant Malanka, telephoned --
3 A Yes.
4 Q 970 Schopmann Drive. And,
5 "Miss Bardini called the police shortly before
6 the above victims called to report the
7 incident," you wrote that right?
8 A Yes, I did, yes.
9 Q And in the telephone conversation
10 you had with Miss Bardini, as stated in this
11 report, "She stated she was awokened by," quote,
12 "partying and loud noise but was not sure
13 exactly where it was coming from"; you wrote
14 that?
15 A Yes.
16 Q You said she thought it was coming
17 from the corner of Paterson Plank Road and
18 Schopmann Drive, right?
19 A Yes.
20 Q At the corner of Paterson Plank
21 Road and Schopmann Drive, well, that's the
22 parking lot for the North End Firehouse, right?
23 A Yes.
24 Q And Miss Bardini, you wrote in
25 this report, "She said she heard three shots
261
1 after an unknown male yelled, 'It's 1:30.
2 People are trying to sleep.'" This is what she
3 said to you during this conversation that you
4 had in the morning of April 27th, 2004, right?
5 A Yes.
6 Q And she said a second male voice
7 shouted, "Come out, you chicken shits. And go
8 ahead and call the police, you chicken shits"?
9 This is what she reported to you, right?
10 A Yes.
11 Q And then you said, "I asked
12 Miss Bardini if she heard anyone say anything
13 biased or sexual in nature." And you said, "She
14 said no." Is that -- is that what you wrote?
15 A Yes.
16 Q Are you aware that Miss Bardini
17 has testified here and said that she heard the
18 word "fag" or "faggot" shouted? Are you aware
19 of that testimony?
20 A No.
21 Q And just for -- to complete, "She
22 concluded by saying she did not see anyone from
23 her apartment and doesn't know where the
24 incident actually took place," right?
25 A Yes.
262
1 Q And when you wrote, "She said she
2 heard three shots," you were accurately and
3 precisely reporting what she said to you on the
4 morning of April 27th, 2004, right?
5 A Yes.
6 Q Let's go to P-226. It's also
7 D-13. Show you what's been marked as P-226 and
8 D-13 in Evidence and ask you if you recognize
9 that document? Is that a police report --
10 A Yes.
11 Q -- you wrote?
12 A Yes, sir.
13 Q And that's your signature that
14 appears in the lower left-hand corner?
15 A Yes, it is.
16 Q And you wrote that actually the
17 same day you wrote the report we just saw,
18 right?
19 A Yes.
20 Q April 27, 2004?
21 A Yes.
22 Q And it says there -- you write,
23 "At 1545 hours" -- and 1545 hours, that would be
24 3:45 in the afternoon?
25 A Yes, sir.
263
1 Q -- "on April 27th, '04 the
2 undersigned" -- that refers to you, right, sir?
3 A Yes.
4 Q -- "telephoned the Kickey
5 residence," right?
6 A Yes.
7 Q "25 Arn Terrace. And I asked to
8 speak to Matt Kickey," right?
9 A Yes, I did.
10 Q And that's what you actually did?
11 This is accurately reporting what you did that
12 day, right?
13 A Yes.
14 Q And it says, "The person who
15 answered said Matt is not home," right? That
16 was the answer you got, right?
17 A Yes.
18 Q And you then -- "I asked the
19 person," you write, "if he was Bob Kickey, to
20 which he replied, 'Yes.'" And that's accurate
21 and that's what you heard that day, right?
22 A Yes.
23 Q And at that time Bob Kickey was a
24 councilman on the Council of the Town of
25 Secaucus, right?
264
1 A Yes.
2 Q And then you identified yourself
3 as Lieutenant Malanka and advised Mr. Kickey
4 that you wanted to speak to Matt regarding the
5 incident that occurred at the firehouse, right?
6 A Yes.
7 Q And Matt Kickey, his son, the
8 councilman's son, well, he was a volunteer
9 fireman at the North End Firehouse right, sir?
10 A Yes.
11 Q And then Mr. Kickey and the
12 councilman said -- and you quoted him, right?
13 A Yes.
14 Q -- "I spoke to him already.
15 Unless there are charges, he don't speak to no
16 one." That's what -- those were literally the
17 words he said to you, Councilman Kickey?
18 A Yes.
19 Q Let's go to D-12. Show you, sir,
20 what's been marked as D-12. And is D-12 a
21 report that you wrote on April 27th, 2004,
22 Captain?
23 A Yes.
24 Q And it indicate -- and that is
25 your signature in the lower left-hand corner?
265
1 A Yes, it is.
2 Q It indicates at 1525 hours on
3 March 27th -- that would be 3:25 in the
4 afternoon, right?
5 A Yes.
6 Q -- you telephoned Charles Snyder,
7 Sr., right?
8 A I did.
9 Q And you asked him to respond to
10 police headquarters to file a formal statement
11 regarding the above incident, right?
12 A Yes, I did.
13 Q And "the above incident" refers to
14 a harassment and bias intimidation incident that
15 occurred on April 25th and involved, as victims,
16 Tim Carter and Peter deVries, right?
17 A Yes.
18 Q And Mr. Snyder, Sr. stated that he
19 did not -- he wanted to seek legal advice before
20 speaking to the police, right?
21 A Yes.
22 Q I'm told that I said, "March 27th,
23 2004."
24 A I'm sorry.
25 Q That's my mistake.
266
1 A April.
2 Q April 27th, 2004. And then the
3 incident was April 25th, 2004, right?
4 A Yes, sir.
5 Q My apologies.
6 I am going to show you a document we
7 marked Plaintiff's Exhibit 364. And if you need
8 to refresh your recollection about the
9 underlying incident that's referred to in here,
10 I'm also going to put P-274 next to you, as
11 well.
12 MR. BEVERE: Can I just have a
13 second, so we can --
14 MR. MULLIN: Sure.
15 MR. BEVERE: -- pull --
16 MR. PARIS: It's 364.
17 MR. MULLIN: I think I have an
18 extra copy. Here is P-364. And I also have an
19 extra copy of P-274.
20 MR. BEVERE: Oh, okay.
21 MR. MULLIN: Okay.
22 MR. BEVERE: Thank you, thank you.
23 BY MR. MULLIN:
24 Q Sir, I'll show you what's been
25 marked as P-364. It is a -- is that another
267
1 police report that you wrote, sir?
2 A Yes, it is.
3 Q And is that a report that you
4 wrote on November 3, 2004?
5 A Yes, it is.
6 Q And that's your signature in the
7 lower left-hand corner?
8 A Yes.
9 Q And in that report you wrote that,
10 "At 900 hours" -- that would be 9 in the
11 morning, right?
12 A Yes.
13 Q -- "on November 2nd, 2004 the
14 undersigned" -- that would be you, right?
15 A Yes.
16 Q -- "was detailed to follow up the
17 above reported incident by Detective Captain
18 Buckley." Okay. Do you see that?
19 A Yes, I do.
20 Q And the incident reported is a
21 criminal mischief -- was called a criminal
22 mischief/bias incident that it's referenced to
23 the Alkazah residence. Do you see that?
24 A Yes.
25 Q Now, maybe you recall what that
268
1 incident was. Was that the incident where
2 someone had sprayed the words, "El Homo" in
3 shaving cream across the street from the North
4 End Firehouse on the wall, on the Alkazah --
5 where the family named Alkazah lived?
6 A Yes.
7 Q In this report that we marked
8 P-364, you state that you were detailed by
9 Captain Buckley to follow up after he, Captain
10 Buckley, advised you that the incident was not
11 bias, right? And is that what Captain Buckley
12 advised you, that the "El Homo" incident was not
13 a bias incident?
14 A Yes. But I'm not sure if he -- if he
15 told me before I went. I'm not positive of
16 that.
17 Q Okay. You're not sure if he told
18 you before or after you went, but at some
19 point --
20 A Yes.
21 Q -- he told you he, Captain
22 Buckley, of the Secaucus Police Department said
23 this is not a bias incident?
24 A Yes.
25 Q And in fact, you report that, "At
269
1 approximately 1200 hours" -- that would be 1
2 noon, right?
3 A Yes.
4 Q -- "on November 3rd, 2004 the
5 graffiti "El Homo" written in shaving cream was
6 removed by the Department of Public Works,"
7 right?
8 A Yes, it was.
9 Q That's all I have. Thank you,
10 sir.
11 JUDGE CURRAN: Mr. Bevere.
12 MR. BEVERE: Thank you, Judge.
13 CROSS EXAMINATION BY MR. BEVERE:
14 Q Captain, I'll be very brief. With
15 regard to your April 27th report, where
16 Mr. Mullin had read the portion of your
17 interview, telephonic interview of Dee Bardini,
18 do you have that in front of you?
19 A Yes, I do.
20 Q Okay. The report also tells us
21 something that you did at 9:00 a.m. on
22 April 26th. Can you tell us what it was that
23 you did at 9 a.m. on April 26th?
24 A Again, Captain Buckley detailed me to
25 telephone Hudson County Prosecutor's Office and
270
1 report the incident to them.
2 Q And did you, in fact, telephone --
3 A Yeah.
4 Q -- Hudson County Prosecutor's
5 Office?
6 A Yes, I did.
7 Q Did you send them any information?
8 A Yes, I did.
9 Q What information did you send to
10 them?
11 A I sent them the fax copy of all the
12 reports done up to that -- that time.
13 Q Up to that point?
14 A Yeah.
15 Q Okay. And I believe you went over
16 this with Mr. Mullin; but you spoke to
17 Miss Bardini, correct?
18 A Yes, I did.
19 Q And you also spoke to -- did you
20 speak to Mr. deVries? Is that reflected in your
21 report?
22 A Yes, I did.
23 Q Okay. And can you tell us what
24 was -- what was your purpose -- and you can --
25 you can read your report to refresh your
271
1 recollection. What was your purpose in
2 contacting Mr. deVries?
3 A I advised him that I did call the
4 Prosecutor's Office. And I told them that we
5 were investigating the matter. And I requested
6 that Mr. Carter and Mr. deVries come in and file
7 a formal statement regarding the incident.
8 Q And did they both agree to do
9 that?
10 A They said they would call back and make
11 appointments.
12 Q All right. Were you the one who
13 interviewed Mr. deVries or Mr. Carter --
14 A No.
15 Q -- when they came in?
16 A No, I wasn't.
17 Q Okay. I believe you went over
18 this with Mr. Mullin; but you attempted to make
19 contact with Matt Kickey, correct?
20 A Yes.
21 Q To have him come down and make a
22 statement?
23 A Yes.
24 Q And you spoke to his father?
25 A Yes.
272
1 Q Are you aware of any follow-up
2 that the Detective Bureau did?
3 A I believe Detective Sergeant Reinke at
4 the time and Detective Sergeant DeGennaro
5 responded to Hudson County, where he works as an
6 agent, a police officer; and I don't think they
7 had any luck at that location. I know they did
8 follow it up, though.
9 Q Now, you also called Charles
10 Snyder, Charles F. Snyder, correct? That would
11 be the Charles Snyder, Sr.?
12 A Senior, yes.
13 Q And the purpose of you contacting
14 him was asking him to come down and give a
15 statement?
16 A Yes.
17 Q And I believe you went over this
18 with Mr. Mullin, but his response was he was not
19 coming down?
20 A No, he said he have going to speak to an
21 attorney.
22 Q And what happens when a person
23 says they want to speak to an attorney?
24 A Well, as a detective for 11 years, once a
25 party requests to speak to an attorney, we stop
273
1 everything; and we don't speak to them again
2 unless they initiate conversation.
3 Q Now, I'm going to show you --
4 okay. Mr. Mullin asked you some questions about
5 a follow-up that you did with regard to some
6 graffiti on a retaining wall, correct?
7 A Yes.
8 Q All right. And I believe you have
9 your investigation report in front of you?
10 A Yes.
11 Q To your understanding -- you also
12 have the initial report that was prepared by the
13 responding officer, correct?
14 A Yes.
15 Q And who was that responding
16 officer?
17 A Police officer Linda Mangone.
18 Q I'm sorry, it's P-274.
19 A Yes, Police Officer Linda Mangone.
20 Q P-364, correct?
21 A Yes.
22 Q Mr. Mullin asked you a question
23 about the graffiti being removed. And is it
24 your -- it's your understanding who removed the
25 graffiti from the wall?
274
1 A The Department of Public Works removed
2 it.
3 Q And why did the Secaucus
4 Department of Public Works remove the graffiti?
5 A We -- after we -- after it was
6 photographed we thought that it wasn't, you
7 know, a good idea to leave that up there with
8 that kind of writing on the wall. So we had it
9 taken down, cleaned.
10 Q Okay. So you actually asked that
11 it be taken down?
12 A Yes.
13 Q But prior to the graffiti being
14 taken down it was photographed?
15 A Yes.
16 Q Okay. And were those photographs
17 logged into evidence?
18 A Yes.
19 MR. BEVERE: Okay. I have no
20 further questions at this time.
21 REDIRECT EXAMINATION BY MR. MULLIN:
22 Q Captain, I will draw your
23 attention back to P-274, which is the underlying
24 report about that "El Homo" on the wall. Do you
25 see that?
275
1 A Yes.
2 Q And that's a report by Police
3 Officer Linda Mangone, right?
4 A Yes.
5 Q She reports coming out and seeing
6 this on the wall and -- and interviewing Tim
7 Carter about it, right?
8 A Yes.
9 Q And Tim Carter is reported there
10 as saying right before this -- these words, "El
11 Homo" went up on the wall he saw a car parked
12 there, which he believes is driven by Matt
13 Snyder, right? Do you see that?
14 A That's what the report says, yes.
15 Q Matt Snyder, is he, to your
16 knowledge, related to Chuck Snyder, Sr.?
17 A I don't know anyone with that name.
18 Q You don't know -- or Dan Snyder
19 or -- you don't know anybody by that name?
20 A No, Matt Snyder, no.
21 Q And then there was some mention by
22 Mr. Bevere of Matt Kickey, right? Matt Kickey
23 is the son of the Councilman Bobby Kickey,
24 right?
25 A Yes.
276
1 Q And Matt Kickey is a volunteer
2 fireman who was at the time of this incident at
3 the North End Firehouse, right?
4 A As far as -- I wasn't there. As far as
5 the reports say, yes.
6 Q As far as the report goes, right?
7 And then you talked about an attempt to
8 interview Matt Kickey at the time. Was that you
9 that went out to attempt to interview Matt
10 Kickey?
11 A No, it wasn't.
12 Q But you testified about knowing
13 that some folks from the Secaucus -- Reinke and
14 DeGennaro went out, right?
15 A Yes.
16 Q And Matt Kickey at that time
17 worked for the Hudson County Prosecutor's
18 Office; and that's where DeGennaro and Reinke
19 went, right?
20 A Yes.
21 Q And did -- Hudson County
22 Prosecutor wouldn't let them interview Matt
23 Kickey, right?
24 A As far as I know.
25 Q As far as you know. And so that
277
1 was the Hudson County Prosecutor that you
2 contacted, as referenced in your report P-224,
3 right?
4 A Yes.
5 Q Where Matt Kickey worked, right?
6 A Yes.
7 MR. MULLIN: I have no further
8 questions.
9 RECROSS EXAMINATION BY MR. BEVERE:
10 Q I just want to be clear, Captain
11 Malanka. The extent of your involvement in the
12 follow-up investigation to April 25th, 2004,
13 have we gone over the extent of your involvement
14 in that --
15 A Yes.
16 Q -- to your recollection, as you're
17 sitting here today?
18 A Yes.
19 Q Okay. Thank you.
20 MR. MULLIN: Nothing further.
21 JUDGE CURRAN: Ladies and
22 Gentlemen, is there anyone on the jury who has a
23 question for this witness? If so, please raise
24 your hand. You stopped all your questions
25 earlier.
278
1 Thank you, sir. You may step
2 down.
3 (Whereupon, the witness is
4 excused.)
5 JUDGE CURRAN: If I might see
6 counsel at sidebar.
7 (Whereupon, the following sidebar
8 discussion is held.)
9 JUDGE CURRAN: 9 tomorrow? 9:30?
10 What's your --
11 MR. BEVERE: Excuse me, Judge?
12 JUDGE CURRAN: What time do you
13 want them back tomorrow?
14 MR. MULLIN: 9:30. 9:30 is always
15 so much better for us.
16 MR. BEVERE: I see no reason to
17 come before 9:30; let's put it that way.
18 JUDGE CURRAN: This is -- as far
19 as I'm concerned --
20 MS. SMITH: You know what happens,
21 Judge, we all take a breath and leave later and
22 we actually get here on time.
23 JUDGE CURRAN: Trust me, I have
24 commuted for 14 years; you don't have to tell
25 me. Judge Eisman taught me that. I needed to
279
1 be -- well, if we're on the record, I won't.
2 But no, you're totally right, totally right. So
3 I will tell them 9:30.
4 MR. BEVERE: Thanks.
5 (Whereupon, sidebar discussion is
6 concluded.)
7 JUDGE CURRAN: Ladies and
8 Gentlemen, we will excuse you for the day. I
9 will again remind you please don't discuss the
10 case among yourselves. Please don't discuss it
11 with anyone else.
12 And we'd appreciate it tomorrow
13 if you would be back at 9:30. That will give
14 you a little chance to avoid the line
15 downstairs. Thank you. Hope you get home
16 without getting too drenched out there.
17 Bye-bye.
18 (Whereupon, the jury is excused.)
19 MR. BEVERE: Judge, so we're
20 clear, Mr. Johnson is coming back tomorrow
21 morning. Mr. Kickey is coming in tomorrow
22 morning. Mr. Daniel Snyder is coming in
23 tomorrow morning. I believe those are the only
24 live bodies I need to have here tomorrow.
25 MR. MULLIN: That's correct. I
280
1 would just -- we have some other witnesses
2 on-call. It's my hope that we don't need them,
3 but --
4 MS. SMITH: We are going to go
5 over all the evidence.
6 MR. PARIS: We just need to take a
7 time out because Mr. Drumeler told me something
8 about the Mayor that's a problem.
9 MR. BEVERE: Judge.
10 (Whereupon, jurors leave the
11 courtroom.)
12 MR. MULLIN: Judge, can I say it
13 would be helpful if we confer tonight by phone
14 or e-mail. We can maybe even cut the witness
15 list for tomorrow back because of certain things
16 that occurred today. And I just need to review
17 everything this evening.
18 MS. SMITH: We are going to review
19 all the evidence and see what we can stipulate.
20 MS. HAWKS: Jurors.
21 (Whereupon, jurors leave the
22 courtroom.)
23 MR. BEVERE: Just I have been
24 informed --
25 (Whereupon, jurors leave the
281
1 courtroom.)
2 JUDGE CURRAN: Is that it?
3 MR. MULLIN: I think we're up to 2
4 jurors, Your Honor.
5 JUDGE CURRAN: I think so.
6 MS. HAWKS: That's it.
7 JUDGE CURRAN: See, I think the
8 weather does it. If it's really warm in here,
9 they go right out of there and out that door.
10 They don't go into the jury room; they just want
11 to get out of here. But it's chilly.
12 MR. BEVERE: Judge, I just spoke
13 with Mr. Drumeler; and I apologize, the Mayor is
14 ill.
15 MR. DRUMELER: That's true.
16 JUDGE CURRAN: Want me to
17 administer the oath, Mr. Drumeler?
18 MR. DRUMELER: I'd be happy to.
19 JUDGE CURRAN: I thought we were
20 not calling the Mayor, though. I thought that
21 was at agreement this morning.
22 MR. MULLIN: That was my hope. I
23 said -- I told counsel to keep him on-call.
24 It's my hope we don't need him. It's -- we have
25 got a couple stipulations.
282
1 MR. BEVERE: Judge, what was that
2 murder trial where they brought the lady in on
3 the bed?
4 JUDGE CURRAN: I was just going to
5 say we will be happy to travel to wherever he
6 is.
7 MR. DRUMELER: I would expect him
8 to be available on Thursday definitely, Judge.
9 I spoke to him today, and he was sounding much
10 better than he did yesterday.
11 JUDGE CURRAN: Okay.
12 MR. MULLIN: It wasn't this trial
13 that made him --
14 JUDGE CURRAN: We certainly will
15 hope that he continues to improve.
16 MR. DRUMELER: I don't believe
17 there would be any problem with Thursday at all.
18 MR. MULLIN: Okay. Well, Your
19 Honor, again, we are going to hope that we can
20 limit witnesses, rather than expand. We will
21 work on that tonight, and we will confer with
22 counsel this evening to try to move things
23 forward rapidly.
24 JUDGE CURRAN: Okay. The fewer
25 the witnesses, the later one can start, just in
283
1 case somebody, you know --
2 MR. BEVERE: Judge, you know me.
3 JUDGE CURRAN: -- missed that
4 nexus there.
5 MR. MULLIN: It's a great
6 incentive.
7 MR. BEVERE: I am all for a
8 permanent 10:00 start; I can tell you that right
9 now.
10 JUDGE CURRAN: As soon as we sell
11 that to Judge Gallipoli. See, Judge Gallipoli
12 keeps telling us the lawyers want to start at
13 8:30 to 9.
14 MR. BEVERE: No, no lawyer wants
15 to start at 8:30.
16 JUDGE CURRAN: Okay. Thank you.
17 (Whereupon, the proceeding is
18 concluded at 4:10 p.m.)
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1 C E R T I F I C A T E
2
3 I, TRACEY R. SZCZUBELEK, a Certified Court
4 Reporter and Notary Public of the State of New
5 Jersey, do hereby certify that the foregoing is
6 a true and accurate transcript of the
7 stenographic notes as taken by and before me, on
8 the date and place hereinbefore set forth.
9
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18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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