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 10
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
- - - - - - - - - - - - - - - -
8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Tuesday, May 27, 2008
Commencing 9:50 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
14
15
16
17
18
19
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.
16
17
18
19
20
21
22
23
24
25
3
1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 DETECTIVE SERGEANT MICHAEL REINKE
5 By: Mr. Bevere 59 246
6 By: Mr. Mullin 208 252
7 I N D E X
8 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
9 DIRE
10 POLICE OFFICER THOMAS MALANKA
11 By: Mr. Bevere 268 277
12 By: Mr. Mullin 274
13 I N D E X
14 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
15 DIRE
16 SERGEANT FRANCIS COTTER
17 By: Mr. Bevere 280 290
18 BY: Mr. Mullin 288
19 I N D E X
20 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
21 DIRE
22 SERGEANT BRIAN KANTOR
23 By: Mr. Bevere 292 301, 303
24 By: Mr. Mullin 295 303, 304
25
4
1 COURT CLERK: On the record.
2 JUDGE CURRAN: Thank you. We are
3 on the record. I will note that counsel are
4 present.
5 COURT CLERK: We don't have all
6 the attorneys.
7 JUDGE CURRAN: They were just
8 there.
9 MR. MULLIN: We don't need them,
10 Judge.
11 JUDGE CURRAN: They wanted to go
12 without you. Mr. Bevere, the record should show
13 I was starting without you and your adversaries
14 insisted that I do not.
15 MR. BEVERE: Oh, thank you very
16 much.
17 JUDGE CURRAN: You and Mr. Paris
18 both owe them now.
19 MR. BEVERE: You can start without
20 Mr. Paris.
21 MR. PARIS: Please continue,
22 please. I will be back next week.
23 JUDGE CURRAN: Okay. It's just a
24 matter in regard to the jurors. Juror Number 8
25 called in and said that she was in an accident.
5
1 So we will only have nine jurors this morning.
2 We will try to see what more we can find out,
3 but she is out. She is out so --
4 MR. PARIS: She is done? She is
5 out for the day?
6 JUDGE CURRAN: She is out for the
7 day, so --
8 MR. PARIS: Then we have to excuse
9 her.
10 MS. SMITH: I thought she was
11 trying to get here.
12 COURT CLERK: She will be a little
13 late.
14 MS. HAWKS: She said she will be a
15 little late.
16 JUDGE CURRAN: Thank you. It is
17 nice to get that message now. I was told the
18 juror was in an accident and therefore -- no one
19 said she was a little late. I apologize. Thank
20 you. We will go off the record.
21 MR. MULLIN: Judge.
22 JUDGE CURRAN: When I asked you,
23 Miss Castelli -- go ahead.
24 MR. MULLIN: If you want, Judge,
25 we can start trying to move in some evidence.
6
1 JUDGE CURRAN: That would be
2 great.
3 When did she call?
4 MS. HAWKS: She called at 8:55.
5 JUDGE CURRAN: She said she is on
6 her way?
7 MS. HAWKS: Barbara took the
8 message; but the message said, "Had an accident.
9 Will be a little late." That is what the
10 message said. It was at 8:55, almost an hour
11 late.
12 JUDGE CURRAN: Okay.
13 (Whereupon, a discussion is held
14 off the record.)
15 JUDGE CURRAN: Okay. We will go
16 back on the record, please.
17 COURT CLERK: On the record.
18 JUDGE CURRAN: Thank you. We are
19 back on the record. I will note that counsel
20 are present. I will note that the jury is not.
21 Mr. Mullin, as to evidence.
22 MR. MULLIN: Yeah, Judge, so we
23 can fill the time a bit, I thought I would start
24 moving in evidence. What I want to start with
25 is I have gone through the trial transcripts and
7
1 tried to recheck what I actually referred to in
2 examining all witnesses.
3 JUDGE CURRAN: Okay.
4 MR. MULLIN: Much of that evidence
5 I want move in. So I want to first move in
6 stuff that flows from these first eight days of
7 trial and -- and then I will go back and move in
8 some other stuff.
9 So day one I used P-163A, B, C, D
10 and E. And counsel will remember those were
11 photos of the firehouse, the parking lot and the
12 area, the fence. And counsel made may remember
13 that I --
14 MR. PARIS: I want to make this as
15 quick as possible. The photographs that had
16 been -- that had been utilized, no objection.
17 JUDGE CURRAN: Those are the
18 enlargements, correct?
19 MR. BEVERE: They are actually --
20 actually, I believe our photographs.
21 MR. MULLIN: Yes.
22 MR. BEVERE: No objection.
23 JUDGE CURRAN: Okay. So P-163A,
24 B, C and D.
25 MR. MULLIN: Right. And just to
8
1 make that batch complete, I moved in -- I showed
2 the witness also P-163F and G, which are the
3 wall and the -- and the words, "El Homo" sprayed
4 on it. So that was that.
5 MR. PARIS: No objection.
6 MR. BEVERE: No objection.
7 JUDGE CURRAN: Thank you. We have
8 got six exhibits.
9 MR. MULLIN: Also, P-117 is the
10 request for the reservation of the firehouse.
11 That's that big blow-up I had.
12 MR. PARIS: No objection.
13 JUDGE CURRAN: Okay.
14 MR. PARIS: You know, actually,
15 could you please -- if you want to go through
16 the number, it may go quicker because, you know,
17 many of them I don't have an objection to.
18 MR. MULLIN: Yeah, I just want to
19 make clear what they are.
20 MR. PARIS: All right.
21 MR. MULLIN: D-101 is a photo of
22 the dinner of June 10th, '04.
23 MR. PARIS: No objection.
24 MR. MULLIN: D -- Your Honor, if
25 you need me to slow down, let me know.
9
1 JUDGE CURRAN: No, no.
2 MR. MULLIN: D-123 is the Moreda
3 report of 5 -- May 18, '04, Bates stamped 751.
4 MR. PARIS: I'm sorry, can I have
5 that number again, please?
6 MR. MULLIN: D-123.
7 MR. PARIS: D-123 I want to
8 double-check.
9 MR. BEVERE: There is no objection
10 to that.
11 MR. MULLIN: D-124 is another
12 Moreda report, also 5/18/04, Bates stamped 7523.
13 MR. BEVERE: No objection to that.
14 MR. MULLIN: D-126, Bates stamped
15 761, that is included in a police report, Tim's
16 description of a car he saw, some words he wrote
17 that were put into Evidence by the police -- put
18 into the evidence room by the police.
19 MR. BEVERE: Judge, there is no
20 objection to that, Your Honor.
21 MR. MULLIN: D-127, police report
22 5/19/04, Bates 051, a report by Torres, Police
23 Officer Torres.
24 MR. BEVERE: That regards to the
25 4774 on the top right corner?
10
1 MR. MULLIN: D-127 and D-131.
2 MR. BEVERE: The incident number
3 is 4774?
4 MS. SMITH: Yes.
5 MR. BEVERE: No objection.
6 MR. MULLIN: D-131, the Malanka
7 report, Bates stamp number 9, that is re the
8 drive-by, you know, yelling things.
9 MR. BEVERE: That was? I'm sorry?
10 MR. MULLIN: D-131.
11 JUDGE CURRAN: Thank you.
12 MR. BEVERE: D-131 I am sure there
13 was no objection. Let me just find it. No
14 objection.
15 MR. MULLIN: Okay. D-210, police
16 report re the cars Carter observed parked just
17 before he saw the words, "El Homo" go up.
18 MR. PARIS: No objection.
19 MR. MULLIN: D-212, the Malanka
20 report on "El Homo."
21 MR. BEVERE: No objection.
22 MR. MULLIN: And then D-64 and
23 D-65, Tim's statements -- his statement to the
24 police.
25 MR. PARIS: That is no objection.
11
1 MR. BEVERE: No objection.
2 MR. MULLIN: Then P-392B we marked
3 that day also. That was also Tim's voice mail
4 to Mayor Elwell.
5 MR. BEVERE: I'm sorry, what was
6 the number?
7 MR. MULLIN: P-392B. That was
8 marked on day three of the trial.
9 MR. BEVERE: No objection.
10 MR. MULLIN: Day four we had D-310
11 that I'm not moving in. That's the Goldwaser
12 form. I am not moving that in.
13 MR. PARIS: So 310 is out?
14 MR. MULLIN: 310 is out.
15 I believe we had already done the
16 photo of the dinner, so I am not repeating that.
17 D-159 is the police report
18 concerning the very heavy guy Tim saw in front
19 of his house and called in the report.
20 MR. PARIS: That's D-159?
21 MR. MULLIN: D-159.
22 MR. PARIS: No objection.
23 MR. MULLIN: D-305 is the e-mail
24 that Carter pretty much read to the jury
25 concerning the library issue.
12
1 MR. PARIS: Your Honor, if -- I
2 believe it was 302 and 303 were not admitted
3 into Evidence, and I would object to 305 going
4 in in that case.
5 MR. MULLIN: Your Honor, they --
6 the defendants opened the door, you recall, in
7 the library incident based on a report that
8 could never go into Evidence. It was hearsay.
9 Your Honor ruled that their report was hearsay.
10 So then in front of the jury I had Tim -- I
11 believe it was without objection -- read this
12 e-mail that he had sent to -- I think to Peter
13 concerning his final dealings with the library
14 and the issue -- and the issue of this Fire
15 Department display there. It was read to the
16 jury.
17 You know what, I am going to
18 withdraw it. It was read to the jury. I can
19 comment on it in my closing. I will withdraw
20 it.
21 MR. PARIS: Thank you.
22 JUDGE CURRAN: So the last one in
23 is D-159?
24 MR. MULLIN: That's correct; that
25 is the last one I've gotten to.
13
1 JUDGE CURRAN: Thank you.
2 MR. MULLIN: Your Honor, the
3 Bursztajn -- I am now turning to P-108A, which
4 is the updated Bursztajn curriculum vitae.
5 Miss Smith offered it. Really, the evidence
6 rule is, you know, the rule concerning summary
7 of evidence. Instead of having this man testify
8 to a hundred and whatever articles, she -- she
9 asked him if it accurately summarized. I think
10 it should go in as a summary of his testimony,
11 P-108A.
12 MR. PARIS: Your Honor, I'm
13 sorry --
14 JUDGE CURRAN: I just wanted to
15 take a look at it.
16 Mr. Paris.
17 MR. PARIS: Your Honor, I don't
18 think that an expert's curriculum vitae goes to
19 the jury. The expert testified on particular
20 items that Miss Smith asked him to, and I don't
21 think an expert's curriculum vitae is
22 evidentiary in a case.
23 JUDGE CURRAN: Mr. Mullin.
24 MR. MULLIN: I thought that under
25 Rule 1006, Summaries, evidence rule, "The
14
1 contents of voluminous writings recordings or
2 photographs which cannot be conveniently
3 examined in court may be presented by a
4 qualified witness in the form of a chart,
5 summary or calculation."
6 I viewed his -- his -- you know,
7 it would have been impossible for him to lay out
8 the contents of all the lectures he has given,
9 all the books he has written and articles he has
10 submitted. And -- and so I -- I believe the way
11 Mr. Smith -- is consistent with that Rule 1006,
12 is consistent with his testimony, which is
13 noncontroversial.
14 JUDGE CURRAN: It's not, however,
15 summary of any content. It's a summary of --
16 it's basically a curriculum vitae.
17 MR. MULLIN: It's a curriculum
18 vitae.
19 JUDGE CURRAN: It's a list.
20 MR. MULLIN: It's a curriculum
21 vitae.
22 JUDGE CURRAN: Mr. Paris.
23 MR. PARIS: Your Honor, it's a
24 summary of documents that are not evidentiary.
25 In other words, you know, we're not -- we
15
1 wouldn't -- they wouldn't be able to take a book
2 chapter and say, "Here, we are going to put this
3 book chapter into Evidence because Dr. Bursztajn
4 wrote it." That doesn't make -- the underlying
5 documents have to be evidentiary.
6 A summary is of the underlying
7 documents, which then have to -- have to be
8 available, okay. The originals or duplicates
9 shall be made available for examination or
10 copying or both by other parties at reasonable
11 place and time. And the judge may order that
12 they be produced in court.
13 I mean, to say, "Okay, well, this
14 is a summary of what of articles that he has
15 written" doesn't make those articles
16 evidentiary; and it doesn't make a summary of
17 the articles or CV evidentiary.
18 When you're talking about a
19 summary of underlying documents, usually you
20 think about it in terms of bills of lading or
21 invoices or something like that, where you have
22 a stack of invoices like this and you say, "Did
23 you prepare a summary of the amounts due under
24 all of those invoices?" "Here is the list of
25 the invoices. Here are the invoices. You can
16
1 go through them, if you want to check on
2 summary." But to put in an expert's curriculum
3 vitae doesn't make it evidence.
4 JUDGE CURRAN: Mr. Mullin.
5 MR. MULLIN: I have made the
6 arguments I have, Your Honor.
7 JUDGE CURRAN: I am not going to
8 allow P-108. I find that there was extensive
9 questioning on his curriculum vitae, talking
10 about certain chapters, certain articles,
11 certain appearances and then asking him about
12 those. I realize that, frankly, my guess is
13 that no more than maybe 20 percent of the items
14 on there were even touched on. But I find that
15 it is not appropriate to admit the list, if you
16 will, of his other chapters or books.
17 MR. MULLIN: I understand.
18 JUDGE CURRAN: I will note your
19 objection.
20 MR. MULLIN: Thank you.
21 JUDGE CURRAN: P-108 is out.
22 MR. MULLIN: P-89 is the letter
23 from Agudosi to the -- of the Attorney General's
24 Office delineating the Secaucus Police
25 Department's response -- responsibility for post
17
1 4/25/04.
2 JUDGE CURRAN: Mr. Paris is
3 objecting to the characterization, and I can see
4 that.
5 MR. PARIS: I don't --
6 JUDGE CURRAN: We got the letter.
7 We know which letter.
8 MR. MULLIN: It's just a letter,
9 and it's P-89.
10 MR. PARIS: Yeah, I am not going
11 to object to characterizations.
12 JUDGE CURRAN: Okay, good.
13 MR. PARIS: I will only object if
14 I object to the document. I have no objection
15 to that document.
16 JUDGE CURRAN: Thank you. P-89
17 goes in.
18 MR. MULLIN: Okay. Then I will go
19 to day five. Let's see. D-92 is the letter.
20 And again, I won't characterize it. It's the
21 letter from the Police Chief saying something
22 about Chuck Snyder, Jr.'s future at the police
23 station.
24 JUDGE CURRAN: As I think we
25 already had a characterization argument on that
18
1 one.
2 MR. PARIS: No objection.
3 JUDGE CURRAN: No objection. D-92
4 goes in.
5 MR. MULLIN: P-117 is the party
6 approval document. You know, it's -- one of
7 these -- you know, Judge, what we can do is we
8 can sit down before we do our closings and
9 eliminate some duplication. I believe that
10 today there will be some duplication, but all
11 counsel are committed to have only one document
12 in for each.
13 MR. BEVERE: What was the number
14 again?
15 MR. MULLIN: P-117 is the party
16 approval document.
17 MR. BEVERE: I already have that
18 as in.
19 MR. MULLIN: So that's okay.
20 JUDGE CURRAN: But you're right; I
21 would rather put in duplicates now and --
22 MR. MULLIN: In abundance of
23 caution.
24 JUDGE CURRAN: Exactly.
25 MR. MULLIN: P-395 were the group
19
1 of exhibits by -- used by Dr. Marcus for the
2 economic loss. And under the case law as it's
3 developed in the Appellate Division, economic
4 loss exhibits go to the jury. So I am offering
5 all the charts that he used in front of the
6 jury. I believe they were labeled P-395A; but
7 really, that's the whole group.
8 MR. PARIS: I think there were --
9 JUDGE CURRAN: How many pages?
10 MR. MULLIN: Well, let's get them.
11 JUDGE CURRAN: Are we talking
12 about blowups or -- just the blowups? Okay.
13 MR. MULLIN: Three sheets.
14 JUDGE CURRAN: Three sheets.
15 MR. PARIS: Your Honor.
16 MR. MULLIN: All right. Three,
17 three pages. P-295A and P-395B are ones he used
18 in front of the jury.
19 JUDGE CURRAN: But just so we keep
20 track, these the large ones.
21 Mr. Paris.
22 MR. PARIS: Yes, I am going to
23 object to the enlargements going in. There were
24 eight-and-a-half-by-11 documents from which they
25 were enlarged. We each had copy of the
20
1 eight-and-a-half-by-11. I object to the
2 enlargements going in, as opposed to
3 eight-and-a-half-by-11. That's number one.
4 Number two, unless I'm missing
5 something, I don't know why that is anything
6 other than an expert report, which is not --
7 which does not go in to the jury. I'm not
8 familiar with the case law. If Mr. Mullin says
9 there is case law that they go in, I will accept
10 that; but certainly not blowups.
11 MS. SMITH: Judge, with regard to
12 the blowups, Judge, this is fairly new. For
13 years Dr. Marcus did it in handwriting and the
14 blowups go into the jury. In this case there
15 was an addition in handwriting on the blowups.
16 JUDGE CURRAN: I was going to ask.
17 I was looking through to see.
18 MS. SMITH: Yes, there were some
19 calculations done, writing on the blowups.
20 Usually we fold them up and they go in under
21 DeHanes and a couple other cases that allow it.
22 MR. PARIS: I don't think that
23 DeHanes allows a blowup necessarily. I mean,
24 now --
25 JUDGE CURRAN: I think it doesn't
21
1 require it, but it doesn't prohibit it.
2 MR. PARIS: It says nothing,
3 probably, about blowups.
4 JUDGE CURRAN: Exactly.
5 MR. PARIS: What I'm concerned
6 about is I don't see why this document should go
7 in as a blowup, as compared to every other
8 document going in as eight-and-a-half-by-11.
9 There is no more reason for this to go in as a
10 blowup than any other document to go in in
11 eight-and-a-half-by-11.
12 JUDGE CURRAN: Well, we do have
13 the handwriting on the one.
14 MR. PARIS: We can still copy that
15 and still bring it down. You know, I just -- or
16 we can replicate the handwriting. I don't have
17 a problem replicating the handwriting on
18 eight-and-a-half-by-11.
19 MR. MULLIN: I don't -- I'm
20 looking at the case law, DeHanes ruling. I
21 don't see anything on that issue. I am just
22 looking at the notations to the evidence Rule
23 704.
24 MR. PARIS: Your Honor, DeHanes,
25 again, spoke about the expert being able to
22
1 testify as to the bottom line. Okay. But
2 sending in --
3 JUDGE CURRAN: Excuse me.
4 MR. MULLIN: It's the DeHanes.
5 Court experts may introduce into Evidence --
6 JUDGE CURRAN: I can't hear.
7 MR. MULLIN: -- to summarize their
8 result.
9 MR. PARIS: I'll stand
10 corrected --
11 MR. MULLIN: Here it is on page
12 678.
13 JUDGE CURRAN: Excuse me one
14 second. I apologize. If there is no objection,
15 I'm going to ask Miss Hawks if she will just say
16 to the jurors, "We are waiting for a juror who
17 is on her way. She had an accident," so, you
18 know, we are not criticizing her. So if they'd
19 like to go down for 15 minutes, that would be
20 great. Thank you.
21 Any objection to Miss Hawks going
22 in and doing that?
23 MR. MULLIN: No objection.
24 MR. BEVERE: No, Your Honor.
25 JUDGE CURRAN: Thank you. I will
23
1 note that the message that Miss Hawks got when
2 she called just now or few minutes ago
3 indicates -- I can't believe this lady is still
4 coming -- her car was totaled and she is
5 standing waiting for a bus. If we had known
6 that, I would have asked my law clerk to take my
7 car and pick her up.
8 MR. BEVERE: Can I surreptitiously
9 give her my card, Your Honor?
10 JUDGE CURRAN: What -- oh. If we
11 can find her.
12 MS. HAWKS: Jurors are
13 approaching.
14 JUDGE CURRAN: Thank you.
15 (Whereupon, the jury is excused.)
16 MS. HAWKS: Okay. That's it.
17 JUDGE CURRAN: Thank you.
18 MR. PARIS: Your Honor, I don't
19 have an objection, then, to the document,
20 itself; however --
21 JUDGE CURRAN: Hold on.
22 (Whereupon, a juror leaves the
23 courtroom.)
24 JUDGE CURRAN: I'm sorry. Thank
25 you. We will go back on the record, Mr. Paris.
24
1 MR. PARIS: I'm sorry. I don't
2 have an objection, as I had said, to a document
3 going in. I just do object to that document
4 being -- which is a blowup, as compared to all
5 the other documents that are going to go in as
6 eight-and-a-half-by-11s. And I don't see any
7 reason why we can't replicate the final
8 calculation that was done up there on an
9 eight-and-a-half-by-11. That's all we all have
10 eight-and-a-half-by-11s, and we can replicate on
11 an eight-and-a-half-by-11.
12 JUDGE CURRAN: Miss Smith.
13 MS. SMITH: DeHanes and the Court
14 Rule 6704 says the experts may introduce into
15 Evidence exhibits prepared to summarize their
16 results. Those are the exhibits prepared to
17 summarize their results. We're all busy. I
18 mean, if I had it properly complete in the small
19 form, fine. But I -- I don't know how to -- I
20 don't really feel like I need another job right
21 now, frankly. Goes in --
22 MR. PARIS: I will take on that
23 job, Your Honor. I will take on that job. I
24 have the eight-and-a-half-by-11 that was
25 provided to us before Dr. Marcus testified. I
25
1 will make the modification. Counsel can look at
2 it, make sure that it's consistent with the
3 blowup, so that there is no question.
4 JUDGE CURRAN: Okay. 395A and B,
5 then, will be admitted in eight-and-a-half-by-11
6 form with addition to be approved by Plaintiffs'
7 counsel.
8 MR. PARIS: Thank you, Your Honor.
9 JUDGE CURRAN: Thank you. I will
10 note your objection as to the blowup --
11 MR. MULLIN: Thank you, Your
12 Honor.
13 JUDGE CURRAN: -- or the larger
14 size.
15 MR. MULLIN: And P-53 is the fire
16 code Chapter 12 of the Secaucus ordinances. We
17 have different versions of that. What I want is
18 the complete chapter of wherever it may be
19 hiding in our books.
20 MR. BEVERE: I -- Judge, I will
21 get my D number because I think that I may
22 have -- I think my D number may be --
23 MR. MULLIN: I don't think we have
24 any objection in principle.
25 MR. BEVERE: No, I am just trying
26
1 to get you the D number.
2 MR. MULLIN: P-53.
3 JUDGE CURRAN: Well, what we'll
4 say for this list is P-53 complete.
5 MR. MULLIN: Complete.
6 JUDGE CURRAN: And then we can
7 worry about that later.
8 MR. BEVERE: Which would also be
9 D-273, Your Honor.
10 JUDGE CURRAN: D-273. Okay. I am
11 going to keep both numbers for now.
12 MR. BEVERE: D-273 through 291.
13 MR. MULLIN: Okay. To 291. To
14 D-291.
15 MR. BEVERE: Correct.
16 JUDGE CURRAN: So I am going to
17 keep P-53 now, and I am going to keep D-273
18 through 291.
19 MR. BEVERE: Correct.
20 MR. MULLIN: We will check it
21 together --
22 MR. BEVERE: Yes.
23 MR. MULLIN: -- and make sure it's
24 complete.
25 JUDGE CURRAN: Right.
27
1 MR. MULLIN: Now I am up to day
2 six of the trial. P-358 is the Patricia Hjelm
3 statement.
4 MR. BEVERE: No objection.
5 MR. MULLIN: P-390 is the 911 --
6 the CD of 911 calls.
7 MR. PARIS: I'm sorry, that was
8 number?
9 MR. MULLIN: P-390, the 911 CD
10 that I made for various witnesses.
11 JUDGE CURRAN: It has the three
12 calls on the one.
13 MR. PARIS: That's fine.
14 MR. MULLIN: That's fine. P-73,
15 that's the deVries e-mail to Troyanski of May
16 28th, where he talked about police appearing on
17 the scene and then disappearing.
18 MR. PARIS: All right. Just, I'm
19 sorry, the number again, please?
20 MR. MULLIN: P-73.
21 MR. PARIS: No objection.
22 MR. MULLIN: D-27.
23 MR. PARIS: D-27?
24 MR. BEVERE: D-27, which is --
25 D-27 is no objection.
28
1 MR. MULLIN: No objection. D-28.
2 MR. BEVERE: Second page of that.
3 MR. MULLIN: D-52 and D-53 are the
4 two pages of the Patricia Hjelm statement. So
5 that's duplicate of P-358, so I will take out
6 D-52 and 53.
7 MR. BEVERE: What was your P
8 number again?
9 MR. MULLIN: P-358, Patricia Hjelm
10 statement to the police.
11 MR. BEVERE: No objection.
12 MR. MULLIN: I am up to day seven
13 of the trial. P-134 is the general order of the
14 Secaucus Police Department bias investigation.
15 JUDGE CURRAN: I'm sorry, what was
16 that number?
17 MR. MULLIN: P-134.
18 MR. PARIS: No objection.
19 MR. BEVERE: No objection.
20 MR. MULLIN: P-220 is the
21 Amodeo -- the report -- the large report that
22 Amodeo did.
23 MR. PARIS: 220.
24 MR. MULLIN: 220. It's P -- it's
25 duplicated.
29
1 MR. BEVERE: The initial report.
2 MR. MULLIN: That's right. P-221
3 and P-222 are the reports of the two officers
4 that were assigned to be on-duty the early
5 morning hours of the incident, Moreda and Smith.
6 Just you recall, I cross examined -- I examined
7 Moreda with those documents.
8 MR. PARIS: Amodeo.
9 MR. MULLIN: Excuse me, Amodeo.
10 MR. PARIS: No objection to either
11 one.
12 MR. MULLIN: P-224 is Malanka's
13 report on talking to Dee Bardini.
14 MR. PARIS: No objection.
15 MR. MULLIN: P-226, which is also
16 your D-13, is Malanka reporting on reaching out
17 to Bobby Kickey.
18 MR. PARIS: No objection.
19 MR. MULLIN: P-274 is the
20 underlying report re the words, "El Homo" on the
21 wall. And that, again, may be duplicative. I
22 believe we have been through that but --
23 MR. PARIS: No objection.
24 MR. BEVERE: Judge, let me just
25 look at that because I thought that there may
30
1 have been -- there may have been two incidents
2 reported in that report, one which was the "El
3 Homo" and the second was an incident which I
4 think you precluded in the pretrial rulings.
5 Let me just confirm that.
6 MR. MULLIN: P-274.
7 MR. BEVERE: I thought that -- and
8 if that's the case, we have no problem with the
9 redaction.
10 MR. MULLIN: I think that was one
11 of the included incidents, not excluded.
12 JUDGE CURRAN: I have 274 as a
13 two-page report.
14 MR. BEVERE: It is. It is, Judge.
15 My recollection of Your Honor's pretrial ruling
16 was that the incident where "El Homo" was
17 written on the wall was in but then the second
18 incident referenced therein was not in. That
19 was where Mr. Carter overheard some, I think,
20 arguing or some -- have a vehicle and he heard
21 the word "faggot" yelled. And I think Your
22 Honor had ruled that incident was out.
23 Obviously, we have no problem
24 with the report going in with that redaction.
25 That's all because it was just an incident that
31
1 was not -- that was excluded.
2 MR. MULLIN: Your Honor, I think
3 counsel is accurately reporting your ruling; but
4 I will ask you to reconsider it in light of all
5 the evidence you have heard. I understand your
6 ruling on the bloody tissues in Jersey City, for
7 example, as -- but I will ask you to -- this
8 seems like an incident at the core of the case.
9 Let me just read P-274. And again, it's by
10 Officer Linda Mangone. "Timothy Carter also
11 reported an incident which occurred on
12 October 31, '04 at approximately 2300 hours. He
13 stated that while he was outside sweeping" --
14 MR. PARIS: Wait. Wait. Wait,
15 counsel, for one second, please.
16 (Whereupon, a juror enters the
17 courtroom.)
18 MR. PARIS: There is a juror --
19 there was a juror.
20 MR. MULLIN: Thank you. Okay.
21 Now, right, "stopped a vehicle at Paterson Plank
22 Road and Franklin Street. These individuals
23 then began yelling for approximately 15 seconds.
24 He stated he could not hear everything he was
25 saying but in fact" -- I guess after the word --
32
1 "did hear the word "fag" being yelled. He also
2 described the vehicle as a newer model, bright
3 red pickup truck with regular sized cab. He
4 described the actors as two white males in their
5 20s and the driver having colored hair. No
6 further description."
7 Again, Your Honor, I think the
8 basis for your ruling was that he didn't say he
9 saw -- he recognized the truck, the vehicle as
10 having belonged to firemen. And he did didn't
11 identify the participants as firemen. What I
12 said at the time was these incidents, this
13 attack identified the plaintiffs' home as the
14 home of two gay men and basically made it a
15 target for any homophobic individual in the
16 area. It was inevitable that with so much
17 prejudice out, there by attacking them this way
18 and highlighting that they lived there and that
19 they were gay, they exposed them to this kind of
20 drive-by, whether or not they were firemen doing
21 it.
22 So this is causally related in
23 that way, Your Honor, to what the firemen did.
24 And that was my argument.
25 JUDGE CURRAN: Mr. Paris.
33
1 MR. PARIS: Your Honor, this is so
2 remote. It is so remote that, obviously, the
3 Court recognized that and said this is not going
4 to come in.
5 In addition, if we're talking
6 about deliberate indifference, you're talking
7 about a remote incident, not related to the Fire
8 Department that's reported three days after it
9 occurred. It occurred, apparently, allegedly,
10 on 10/31 and was reported on 11/2. Now, I mean,
11 is that -- does that go to deliberate
12 indifference, something that's reported three
13 days later, not identified as firemen?
14 And you know, this is like --
15 this is like a new theory. The plaintiffs were
16 interviewed by newspapers. We've established
17 that Mr. deVries had his picture taken looking
18 out the window. And now Mr. Mullin wants to
19 create a new cause of action because,
20 apparently, because of the publicity which
21 plaintiffs indicated in e-mails and they have
22 testified to, which they were seeking, now they
23 are arguing that because people in the community
24 may have targeted them because they were angry.
25 And certainly by October 31st there were
34
1 newspaper articles that indicated that the
2 plaintiffs were going to sue the community. And
3 I think the -- I think the number $5 million was
4 in the newspaper. Maybe that came from a tort
5 claim notice. Now is the Town going to be
6 responsible for every citizen in Town who may
7 have been angry at the plaintiffs because they
8 were suing the Town for $5 million?
9 I mean, this gets so remote. The
10 case is becoming so amorphous that it has
11 nothing to do with deliberate indifference
12 anymore, if they are going to argue this. And
13 you know, I will leave it. The Court previously
14 made a ruling about this incident.
15 JUDGE CURRAN: Mr. Mullin.
16 MR. MULLIN: I have nothing
17 further to say, Your Honor.
18 JUDGE CURRAN: Thank you. I find
19 that, as I indicated earlier, the matter is too
20 remote, that being the information in the third
21 paragraph of the report, which goes over to the
22 second page, there is nothing definitive, as
23 indicated by Mr. Paris, in regard to the theory
24 that they were made victims or potential
25 victims. I find that there just simply is not
35
1 enough nexus to this and not enough nexus to
2 even damages of fear because it was not even
3 reported until there was another incident.
4 The one question I have -- and I
5 had made a note of this a long time ago -- there
6 are two -- well, I think the report is just
7 unclear. And if it's going in, my concern is
8 was "homo" written -- yes, it was -- on the wall
9 across 1561 Paterson Plank Road, why, then, does
10 it say that the victim -- are there two
11 addresses?
12 MR. BEVERE: 1561 Paterson Plank
13 Road is actually the address of the North End
14 Firehouse. I stood up because I anticipated
15 Your Honor was going to ask.
16 JUDGE CURRAN: But that's not what
17 this says.
18 MR. BEVERE: The address is --
19 JUDGE CURRAN: The retainer
20 wall -- I thought the retainer wall went to the
21 neighbors next door.
22 MR. BEVERE: It did. 1561 is
23 the -- is the --
24 JUDGE CURRAN: So the report is
25 wrong?
36
1 MR. BEVERE: 1561 is the
2 firehouse. 1560 would be the house across the
3 street --
4 JUDGE CURRAN: Okay.
5 MR. BEVERE: -- from the front
6 door of the firehouse.
7 JUDGE CURRAN: My concern is it
8 refers to the victim as if the individuals whose
9 home was written -- the wall of which home was
10 written on as the victim. Do you see my
11 concern?
12 MR. BEVERE: The position I think
13 that -- that Linda Mangone took with regard to
14 report was that --
15 JUDGE CURRAN: See, my only
16 concern is under "victim's name" it says,
17 "Timothy Carter." My concern is they will read
18 this and wonder are there two addresses?
19 MR. BEVERE: Oh, I see. I see
20 what you are saying.
21 JUDGE CURRAN: See my concern?
22 MR. BEVERE: I see your concern.
23 JUDGE CURRAN: Not the address of
24 what the Fire Department is versus what's across
25 the street. It's technically the people whose
37
1 wall was written on -- as long as it's a -- is
2 not the victims --
3 MR. BEVERE: I think --
4 JUDGE CURRAN: And they are not
5 identified as the victims in this report.
6 MR. BEVERE: I think that they
7 were both identified. Mr. Carter was identified
8 as a victim, as being the alleged subject of --
9 JUDGE CURRAN: It does have his
10 address.
11 MR. BEVERE: And in addition, the
12 owner of the wall would theoretically also be a
13 victim of vandalism, which I think is what they
14 were --
15 JUDGE CURRAN: I think they can
16 understand.
17 MR. MULLIN: I can understand.
18 Maybe, Your Honor, we can
19 stipulate we are allowed to refer to the jury to
20 the fact that 1561 Paterson Plank Road is the
21 address of the North End Firehouse?
22 JUDGE CURRAN: Sure.
23 MR. BEVERE: Sure.
24 MR. MULLIN: Then in the closings,
25 if we need to clarify this --
38
1 JUDGE CURRAN: So 274, then, is
2 admitted without objection in redacted form and
3 counsel will redact?
4 MR. BEVERE: Judge, I think your
5 court staff has a message for you.
6 MS. HAWKS: Your Honor, the other
7 jurors are here.
8 JUDGE CURRAN: Oh, great. So you
9 have all the jurors? Thank you. Thank you.
10 COURT CLERK: Jurors are
11 approaching.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, the jury is brought
14 into the courtroom.)
15 JUDGE CURRAN: Are you okay?
16 JUROR: Yes.
17 JUDGE CURRAN: Well, everybody
18 appreciates your getting here, thank you.
19 JUROR: Thank you.
20 JUDGE CURRAN: I think if there is
21 no problem, we can go on with this. I know one
22 of the jurors seemed to bring in something that
23 looked like food or whatever. We can give them
24 a few minutes just so that we finish this.
25 MR. MULLIN: I will keep rolling
39
1 along, then.
2 JUDGE CURRAN: Okay.
3 MR. MULLIN: The next exhibit --
4 I'm on day seven -- that was P-351, which is
5 Amodeo's second report, where he referred to the
6 crude terminology he said was used by Snyder,
7 Sr.
8 MR. PARIS: No objection.
9 MR. MULLIN: P-364 is the Malanka
10 report on the "El Homo" spray -- spraying. I
11 think we have it, again; but again, I am just
12 going through the days. And there was no
13 objection, I believe, to that.
14 MR. PARIS: No objection.
15 MR. MULLIN: P-396 and 398 were
16 the -- actually, I think we referred to three
17 statutes cross-examining Amodeo. For some
18 reason there wasn't a P-397, but I see my notes
19 go from P-396 to 398. And we can check the
20 transcript; but we referred to three statutes,
21 two of which he had referred to in his report,
22 Amodeo. The harassment statute, and we also had
23 the assault statute. So those were the three
24 statutes I -- I used to question him.
25 MR. PARIS: Objection, Your Honor.
40
1 I don't think that the -- the State statutes are
2 evidentiary and that they should be sent in to a
3 jury for them to try to figure out what may
4 apply, what the interpretation may be. We are
5 not sending them with any of the case law that
6 may have interpreted the statute. And I don't
7 think it's appropriate for the jury to be -- to
8 have statutes in there with them. If the issue
9 is relevant, then the plaintiff can seek a
10 charge from the Court.
11 JUDGE CURRAN: Mr. Mullin.
12 MR. MULLIN: I think -- I think,
13 Your Honor, we can -- we can ask for a charge
14 from the Court. That is, Amodeo testified
15 extensively. He was the one that put two of
16 these statutes in his report. All police
17 officers put on the top of their report what
18 statutes they're investigating the violation of.
19 JUDGE CURRAN: Many times they
20 could even tell you what they are.
21 MR. MULLIN: Yes, that's right.
22 JUDGE CURRAN: He obviously knew.
23 MR. MULLIN: He knew. And so I
24 think it be would be convenient to give it to
25 the jury. But on the other hand, Your Honor, I
41
1 think it's just as easy for Your Honor to put it
2 in the charge. There is some reference in the
3 reference to some of that. The reports say what
4 the statutes were.
5 JUDGE CURRAN: I think that's a
6 better way to do it and say they read in
7 pertinent part; otherwise --
8 MR. MULLIN: Okay.
9 JUDGE CURRAN: So we will exclude
10 them, 396 and 398, correct?
11 MR. MULLIN: Yes. And 397, if
12 it's one of the statutes.
13 JUDGE CURRAN: If it's one.
14 MR. MULLIN: The mystery statute.
15 JUDGE CURRAN: I just looked on
16 mine, and I don't have 397. But again, I could
17 have --
18 MR. MULLIN: I see we leaped to
19 398.
20 JUDGE CURRAN: Yes.
21 MR. MULLIN: So, anyway, then the
22 next is D-12, is a April 27th, '04 Malanka
23 report about an attempt to reach out to Snyder
24 for cooperation.
25 MR. PARIS: No objection.
42
1 MR. MULLIN: D-13 is also P-226.
2 I think we already have this. That is the
3 Malanka call to Bobby Kickey. So I will take
4 that out; we already have that in. D-2 and D-3
5 are the two pages of the original Ulrich report.
6 MR. PARIS: No objection.
7 MR. MULLIN: D-66 is Ulrich's
8 April 30th supplemental report.
9 MR. PARIS: No objection.
10 MR. MULLIN: D-37 -- D-67 is
11 Reinke supplemental report. You know what, Your
12 Honor, I'm not going to put that one in yet, no.
13 I am not putting that in. We will leave that
14 out. Now I am up to day eight. D-34 is the
15 statement by Richard Johnson.
16 MR. PARIS: No objection.
17 MR. MULLIN: D-74 is the DeGennaro
18 report re his Kickey license plate that
19 Mr. Carter mentioned.
20 MR. PARIS: No objection.
21 MR. MULLIN: P-134 is the
22 firefighters' two-page letter of resignation or
23 threatened resignation.
24 MR. PARIS: I'm sorry, what was
25 that again?
43
1 MR. MULLIN: P-134?
2 MR. PARIS: No objection.
3 MR. MULLIN: P-327 --
4 MR. PARIS: P-134?
5 MR. MULLIN: That was -- P-134 is
6 the firefighters.
7 MR. PARIS: I thought that was
8 your bias --
9 MR. BEVERE: P-134 was the
10 general -- Secaucus general --
11 MR. MULLIN: We have the
12 firefighter letter coming into --
13 MR. PARIS: I know. And we have
14 no objection to the fire --
15 MR. MULLIN: Firefighter letter of
16 resignation. I will have to check the number on
17 that.
18 MR. PARIS: No objection.
19 JUDGE CURRAN: Whose testimony is
20 it in? Well, it's in a couple.
21 MR. MULLIN: I did that with -- I
22 did it with Dan Snyder. He authenticated it and
23 authenticated his signature on it. Your Honor,
24 we will give you a correct number on that.
25 P-329 is one of the Fire Chief Walters'
44
1 statements.
2 MR. PARIS: P-329, Walters'
3 statement, no objection, Your Honor.
4 MR. MULLIN: P-333 is yet another
5 of the Walters statements.
6 MR. PARIS: No objection.
7 MR. MULLIN: P-334 is yet
8 another -- well --
9 MR. PARIS: Again, I think a lot
10 of these are duplicative but --
11 MR. BEVERE: Judge.
12 JUDGE CURRAN: Yes.
13 MR. BEVERE: If you want to step
14 back for a second, D-61 and D-62 are my D
15 numbers for that letter from the firemen
16 threatened resignation. You want to use my D
17 numbers?
18 JUDGE CURRAN: What is the number?
19 MR. BEVERE: D-61 and D-62.
20 JUDGE CURRAN: Thank you.
21 MR. MULLIN: So D-333 is the
22 April 28th, '04 3:43 p.m. statement of Frank
23 Walters. I think counsel has already agreed
24 that goes in.
25 MR. PARIS: Yeah.
45
1 MR. MULLIN: P-334 is the
2 April 28th statement of Frank Walters taken at
3 4:47 p.m.
4 MR. PARIS: No objection.
5 MR. MULLIN: And P-335 is the
6 statement taken the next -- of Frank Walters
7 taken the next day on 4/29/04.
8 MR. PARIS: No objection.
9 MR. MULLIN: Your Honor, that's
10 what I have extracted from all the trial
11 transcripts. And I can -- then I have --
12 JUDGE CURRAN: May I just ask you
13 a question? I had in my notes P-17B.
14 MR. MULLIN: 17B?
15 JUDGE CURRAN: Could be a mistake.
16 MR. MULLIN: I think it might be a
17 mistake.
18 MR. BEVERE: That's a newspaper
19 article.
20 MR. MULLIN: That is just a
21 newspaper article we didn't put in.
22 JUDGE CURRAN: Okay. But that was
23 referred to?
24 MR. MULLIN: No, we didn't -- let
25 me see if we referred to it.
46
1 JUDGE CURRAN: Maybe that is the
2 one with the picture.
3 MR. PARIS: That -- that I -- B?
4 JUDGE CURRAN: No?
5 MR. MULLIN: No, I don't think
6 I --
7 MR. BEVERE: No.
8 MR. PARIS: No, that's too late in
9 the day.
10 MR. MULLIN: Let me check 117,
11 Your Honor, just in case there was --
12 JUDGE CURRAN: 117 is a blowup.
13 MR. BEVERE: That is the request
14 for reservation of firehouse for personal use.
15 JUDGE CURRAN: Okay.
16 MR. BEVERE: That's everybody
17 in --
18 JUDGE CURRAN: Well, everybody
19 agrees.
20 MR. MULLIN: So I have more to
21 move in, but I suppose we should move on with
22 the trial now.
23 JUDGE CURRAN: Sure.
24 MR. PARIS: Your Honor, I
25 responded -- and maybe -- maybe we need to
47
1 discuss this now, so it will move the trial
2 testimony along a little bit. We had received
3 from Mr. Mullin on Wednesday a stipulation, a
4 proposed stipulation with regard to moving
5 exhibits into Evidence. I responded to
6 Mr. Mullin where vast majority of what they
7 were --
8 JUDGE CURRAN: Excuse me.
9 Miss Castelli, I think you missed
10 some of the -- you have got to take -- what was
11 the last number that you have?
12 MR. MULLIN: My last number I
13 stopped on --
14 JUDGE CURRAN: No, no.
15 COURT CLERK: -- P-333.
16 JUDGE CURRAN: So you have to add
17 P-334, D-61 and D-62.
18 COURT CLERK: I have that.
19 JUDGE CURRAN: And P-65. You
20 can't possibly -- you just got it now? Thank
21 you.
22 I'm sorry, Mr. Paris.
23 MR. PARIS: Not at all. In any
24 case, there were a number of P exhibits that
25 they indicated that they would move in. There
48
1 was an indication that they would not object to
2 the exhibits that we had proposed or -- excuse
3 me, the exhibits that were in our notebook with
4 certain exceptions. And there were a host of P
5 exhibits which we did not object to, which
6 included a number of police reports, et cetera.
7 The objections were based upon
8 rulings that had been made by the Court with
9 regard to the American flag incident, bloody
10 tissues incident. There were objections based
11 upon prior exhibits.
12 But again, you know, as long as
13 we have an agreement we are only going to put in
14 any one exhibit once, that's not a problem.
15 With regard to the police
16 officers, if the police officers are going to
17 have to come in and identify and move in each
18 document, certainly going to take a lot longer
19 than if I -- than if the plaintiff is allowed to
20 continue moving in the exhibits that are listed.
21 The other P exhibits I will move in, and some of
22 them may be repetitive. And if there is an
23 agreement that the defendant notebook with the
24 exceptions listed by the defendant, which we can
25 argue later, can go in, I think it will move
49
1 things along a lot more -- more expeditiously.
2 MR. MULLIN: Your Honor, we tried
3 to work this all out; and we have exchanged
4 e-mails. And Mr. -- last night Mr. Paris sent
5 me a long e-mail objecting to many documents;
6 and so we never finished this process, you know,
7 of moving evidence in. So I just did it the
8 old-fashioned way; I stood up today and moved
9 evidence in.
10 As to the police reports, whereas
11 the police reports for me are, you know, party
12 admissions or evidence of, you know, clearly
13 admissible. For them police reports are
14 hearsay. However, it may be that -- that I need
15 some of these police reports in my case. So I
16 think that's what Mr. Paris is alluding to, that
17 I -- I have already admitted some police
18 reports, and now they're in.
19 But when a police officer takes
20 the stand, I don't want the police officer to
21 come to the stand with any documents. As they
22 did with Tim Carter, as they, defense counsel,
23 did with me and Tim Carter, they objected when I
24 tried to refresh his recollection with his
25 statement. Well, they have to do the same
50
1 thing.
2 They have to lay the foundation
3 with the -- for example, Officer Reinke is going
4 to get on the stand. They have to lay the
5 foundation that he -- if he wants to look at his
6 police report, he has to testify he once had a
7 recollection of these events, his recollection
8 is now impaired and so he needs his police
9 report to refresh his recollection. I -- just
10 as they demanded that foundation of me, when I
11 had Mr. Carter on the stand, I now demand that
12 of them consistent with Rule 612.
13 Now, it may be that after these
14 police officers testify that we'll agree that
15 these reports should come into Evidence. May be
16 that when they offer them into Evidence some of
17 them, probably a good number of them, are going
18 to be documents I wanted in Evidence, anyway.
19 But I don't want the fact that I'm probably
20 going to allow some of these documents into
21 Evidence to -- to give the jury the
22 misimpression that this police officer is
23 testifying from recollection, when, in fact,
24 they are sitting there reading the report.
25 So because we couldn't reach an
51
1 agreement last night because Mr. Paris sent me a
2 very long list of objections that I just,
3 frankly, wasn't able to get through, we don't
4 have any sort of deal. But what we do have is a
5 recognition on both sides that an awful lot of
6 these police reports I want in my case, anyway.
7 And -- and we'll probably reach an agreement on
8 many of them. Many of them are already in
9 Evidence as of right now. And of course, I
10 can't object to them referring to such documents
11 as being in Evidence. That's -- that's where I
12 am right now because we weren't able to reach
13 this -- this deal in time.
14 MR. PARIS: Your Honor, you know,
15 I -- the -- I have a copy of the e-mail that I
16 sent to Mr. Mullin --
17 MR. MULLIN: I do too.
18 MR. PARIS: -- at 3:30 yesterday
19 and 3:10 yesterday. And we had e-mails going
20 back and forth during the course of the weekend.
21 If that's the position he wants to take, that's
22 fine. But if he wants to say there are
23 objections to many documents, there were
24 objections to documents on the basis of
25 duplication. There were objections such as the
52
1 one we had here, a couple of minor redactions.
2 There were objections to documents regarding
3 Glocktalk, which you have already made a ruling
4 on. Counsel still sought to put the document
5 in. The American flag incident, Your Honor made
6 a ruling on. Still sought to put the document
7 in. The bloody tissues in Jersey City, Your
8 Honor made a ruling. Still sought to put the
9 document in.
10 So I had to go through each and
11 every document. I would have liked to say, "Put
12 them all in"; but -- but clearly, there were
13 documents that were proffered in violation of
14 Your Honor's prior rulings, okay.
15 In addition, those are the -- the
16 most substantive objections, all right. There
17 were -- there were documents being sought -- I
18 believe they were seeking to put in expert
19 reports of a doctor who didn't testify. I
20 thought -- I guess I'm wrong. It was the -- the
21 CV, rather than the report, of Dr. Bursztajn.
22 But for example, out of the
23 entire -- they had indicated that they had no
24 objection to the entire D notebook going in,
25 with three exceptions, Exhibits D-302, D-305 and
53
1 D-309, out of the entire D notebook.
2 I basically made three
3 objections, okay, with redactions regarding a
4 reporter, Sullivan, and what Mr. Carter was
5 reporting that some reporter had supposedly
6 reported on. That was one.
7 Two objections to D documents
8 were duplicate of a prior exhibit.
9 And the third objection was with
10 regard to library letter, which was just
11 withdrawn.
12 So out of the whole notebook,
13 that's that. There was a whole list of P
14 exhibits that the plaintiff was seeking to move,
15 a whole list. This is just scratching the
16 surface. Out of that entire list I objected to
17 the bloody tissues, comments of the reporter
18 again, certain pages from the AG's file, et
19 cetera.
20 Now, all that I'm saying is that
21 if we are now going to be arguing over exhibits
22 later on, I think we need to have the argument
23 now so that the plaintiff has their case in and
24 then we can start our case and we can refer to
25 documents that are already into Evidence.
54
1 We understand that if an officer
2 needs to have a document to have their
3 recollection refreshed, all that I said with
4 Mr. Carter, which is now being waved around like
5 a flag, all that I said is, "Does he need the
6 document to refresh his recollection?" And the
7 answer was, "Yes." I said, "Fine."
8 I had no problem with Dr.
9 Bursztajn using his report. I had no problem
10 with their other witnesses using reports. Had
11 no problem with any of that.
12 So if they want to -- if now
13 there is going to be a problem with police
14 officers looking at their reports, so be it.
15 But so that we can determine which reports are
16 already in Evidence, I think that they should
17 move them in now.
18 MR. MULLIN: Well, I have no
19 problem with that. Here is the only problem.
20 There is a logistical problem that we have a
21 jury sitting here, we have a witness sitting out
22 in the hall and we can go forward Detective
23 Reinke and get him on and off the stand.
24 Then, if -- then, after that --
25 you know, we are under time pressure in this
55
1 trial; and we discussed that on the record last
2 week. So I think we should just move this --
3 move these witnesses forward that are here, and
4 then I'll be happy to -- after Reinke we can do
5 some more work and put in some of these
6 exhibits.
7 I -- what I got was -- on May 21
8 I sent a detailed list of the evidence I wanted
9 to move in. That's May 21.
10 MR. PARIS: You know, Judge --
11 JUDGE CURRAN: You know what, with
12 all due respect, let's not go back and forth.
13 MR. PARIS: Your Honor, can I just
14 mention something?
15 MR. MULLIN: I was in the middle
16 of talking.
17 JUDGE CURRAN: In fairness,
18 Mr. Mullin was in the middle.
19 MR. PARIS: I apologize.
20 JUDGE CURRAN: There is a jury
21 waiting inside.
22 MR. MULLIN: I want to say, look,
23 we are going to work this stuff out. I think
24 there are a lot of exhibits that defense counsel
25 wants to move in that aren't a problem. I am
56
1 just talking about how they are moved in, when
2 they are moved in. I want the jury to hear that
3 an officer doesn't have a present recollection,
4 just the way they wanted --
5 MR. PARIS: That's fine.
6 MR. MULLIN: -- that Tim Carter
7 didn't have a recollection. I just want the
8 foundation laid. I don't think we are going to
9 have big battles here, Your Honor, I really
10 don't.
11 JUDGE CURRAN: It's really --
12 MR. BEVERE: Judge, I am doing the
13 examination of Detective Reinke. I will lay the
14 foundation; I have no problem.
15 JUDGE CURRAN: Fine.
16 MR. PARIS: I just want to put on
17 the record we did get an e-mail on the 21st at
18 10:47 in the evening.
19 MS. SMITH: And the response was
20 on the 26th.
21 JUDGE CURRAN: Okay. I got it.
22 All right. We will keep this list as the
23 evidence list, and we will -- unless there is
24 something else, we will bring out the jury.
25 Do you have a jury?
57
1 (Whereupon, the jury is brought
2 into the courtroom.)
3 JUDGE CURRAN: Good morning,
4 Ladies and Gentlemen. I apologize. I want to
5 thank you very much for your patience. I know
6 that you all probably know Juror Number 8 went
7 through a lot to get here today, and we really
8 appreciate that.
9 Everybody has been away for the
10 weekend, so I am going to ask counsel again to
11 put your appearances on the record for the jury.
12 MR. MULLIN: Good morning, Ladies
13 and Gentlemen. Neil Mullin. Nancy Erika Smith.
14 JUDGE CURRAN: Thank you. And on
15 behalf of the defense?
16 MR. BEVERE: Good morning, Ladies
17 and Gentlemen. Daniel Bevere and David Paris on
18 behalf of the Town of Secaucus.
19 MR. PARIS: Good morning.
20 JUDGE CURRAN: Thank you.
21 Ladies and Gentlemen, you may
22 remember that the plaintiff has rested and we
23 are now in the defense case. And so I will ask
24 Mr. Bevere to please call your next witness.
25 MR. BEVERE: I will, Your Honor.
58
1 He is in the hallway. May I grab him?
2 JUDGE CURRAN: Thank you.
3 MR. BEVERE: Thank you.
4 MS. HAWKS: Please raise your
5 right hand. Put your left hand on the Bible,
6 please.
7 D E T. L T. M I C H A E L R E I N K E, is
8 sworn by a Notary Public of the State of
9 New Jersey and testifies under oath as
10 follows:
11 MS. HAWKS: For the record, please
12 state your full name and spell your last name,
13 please.
14 THE WITNESS: Detective Lieutenant
15 Reinke, R-e-i-n-k-e, Secaucus Police Department,
16 Badge 99.
17 JUDGE CURRAN: Thank you. Sir,
18 all your testimony must be truthful and accurate
19 to the best of your ability. Do you understand?
20 THE WITNESS: Yes, Your Honor.
21 JUDGE CURRAN: Thank you. Please
22 give us your address for the record.
23 THE WITNESS: Residential address?
24 JUDGE CURRAN: Yes.
25 THE WITNESS: 267 Prospect Street,
59
1 Ridgewood, New Jersey, 07450.
2 JUDGE CURRAN: Thank you. Your
3 witness.
4 MR. BEVERE: Thank you, Your
5 Honor.
6 DIRECT EXAMINATION BY MR. BEVERE:
7 Q Good morning, Detective.
8 A Good morning.
9 Q Where are you employed?
10 A Town of Secaucus Police Department.
11 Q And what is your rank?
12 A Detective lieutenant.
13 Q Do you work in the Detective
14 Bureau?
15 A I do.
16 Q Can you give us the -- a brief
17 benefit of your educational background?
18 A Yes, I graduated Secaucus High School in
19 1986. From 1986 until 1990 I attended Seton
20 Hall University and graduated there with a BA in
21 Criminal Justice. At that point I applied for
22 the Secaucus Police Department, was accepted and
23 was hired by them. And 1990 I attended the
24 Bergen County Essex County Police Academy.
25 Q And upon your successful
60
1 completion of your -- upon your successful
2 completion of the Essex County Police Academy
3 were you hired by the Secaucus Police
4 Department?
5 A Correct.
6 Q And what was your initial rank?
7 A Police officer.
8 Q And at some point thereafter were
9 you promoted?
10 A Yes, I was.
11 Q And when were you promoted, and
12 what were you promoted to?
13 A I was promoted to sergeant at that point.
14 Q And do you recall when that was?
15 A Around 1996 maybe, give or take a year.
16 Q And at some point did you become a
17 detective?
18 A Yes, in 1997 I was brought down into the
19 Detective Division as a police officer.
20 Q And who determines -- what is the
21 difference between a detective and a patrol
22 officer?
23 A Basically, it's the same rank and level.
24 It's just that at one point they ask you to --
25 they assign you down to the Detective Division.
61
1 And that would be made by the Chief of Police;
2 that's his decision.
3 Q Well, what's the difference
4 between what the patrol officers do, as opposed
5 to the detectives? That was my question.
6 A Okay. Patrol officers, what they are
7 going to do is they are going to drive around in
8 the marked unit in the uniform. Basically, they
9 are going to handle all the day-to-day calls,
10 the accidents, the requests for services,
11 shopliftings, things like that.
12 When you're in the Detective Division,
13 you follow up, basically, on what they do. So
14 they will do the initial incident. They will
15 process that. And then we come in and do that
16 follow-up.
17 Q And have you worked in the
18 Detective Bureau continuously since 1997?
19 A I have.
20 Q And when you first started to work
21 in the Detective Division was your rank
22 sergeant?
23 A No, it was police officer. But when you
24 go down into the Detective Division, about after
25 a year they give you a detective's badge, then
62
1 they start calling you a detective.
2 Q Okay. So originally you were a
3 patrol officer in the Detective Bureau, and then
4 you become a detective?
5 A Correct.
6 Q And what was your rank when you
7 first entered the Detective Bureau?
8 A Patrol officer.
9 Q Okay. And then at some point
10 thereafter did you get a promotion to sergeant?
11 A Yes.
12 Q And in April of 2004 what was your
13 rank within the Detective Division?
14 A Sergeant.
15 Q And since April of 2004 have you
16 received a promotion?
17 A I have.
18 Q And what were you promoted to, and
19 when did you receive that promotion?
20 A I am a lieutenant now. And that was
21 about a year-and-a-half ago.
22 Q Who do you report to, Detective,
23 in the Secaucus Detective Bureau?
24 A The commanding officer is Detective
25 Captain John Buckley.
63
1 Q What is the chain of command, for
2 lack of a better term, unless that is the
3 correct term, in the Detective Bureau?
4 A Okay. Well, can I -- to reverse it, it's
5 the Chief of Police. And then it would be
6 Captain Buckley. And then at that point it
7 would be, if there is a lieutenant in the
8 Detective Division and then a sergeant and then
9 a detective.
10 Q And in April of 2004 John Buckley
11 was a captain?
12 A Yes, he was.
13 Q Was he the only captain at the
14 time of the Detective Bureau?
15 A Yes.
16 Q Are there any other captains in
17 the Detective Bureau now aside from John
18 Buckley?
19 A No.
20 Q Now, the -- I just want to talk
21 about basically what, if any, type of training
22 did you receive when you became a detective in
23 order to become a detective?
24 A It's -- it's basically a different type
25 of job because now you are getting more into the
64
1 investigative aspect, more in depth. So at that
2 point Detective Captain Buckley starts sending
3 us to in-service trainings, which can range from
4 anything from statement-taking to fingerprint
5 processing, arson investigation, things like
6 that.
7 Q While you were in the Detective
8 Bureau did you receive any, what you've referred
9 to as, in-service training on bias crimes?
10 A I had.
11 Q Can you tell us about your
12 training in bias crimes?
13 A Yes, bias -- the initial training was in
14 the Essex County Police Academy; and that was
15 taught by the academy staff.
16 And then our own Department has a
17 policy on bias incidents, on how we'll proceed
18 with them. Captain Buckley had gone over them
19 with us additionally.
20 And I had attended, I think, one or two
21 other sessions -- I don't remember when they
22 were -- in in-service training where that topic
23 was touched.
24 Q What is Secaucus General Order
25 88-2?
65
1 A That is procedures in responding to bias
2 incidents.
3 Q Typically is the manner in which
4 either patrol or detectives respond to a bias
5 crime different than responding to any other
6 incidents of criminal activity?
7 A It's all the same. It's all the same.
8 Q Are there different reporting
9 requirements with regard to the bias crimes?
10 A Basically, it's basically the same stuff,
11 except that we would also take an additional
12 step of notifying the Hudson County Prosecutor's
13 Office.
14 Q Now, are you familiar generally
15 with an incident that occurred in the early
16 morning hours of April 25th, 2004 --
17 A I am.
18 Q -- an incident that occurred at
19 the North End Firehouse?
20 A I am.
21 Q Now, Detective, when did you first
22 learn or become aware that there had been an
23 incident at the North End Firehouse on the
24 morning of April 25th, 2004?
25 A Sunday morning at approximately 3, 3:15
66
1 in the morning.
2 Q So that would be the morning of
3 the incident?
4 A Correct.
5 Q Tell us how you were notified and
6 what you were told.
7 A I was home in bed sleeping, and my phone
8 had rung. When I answered it, it was
9 Sergeant -- at the time Sergeant Amodeo. And at
10 that time he advised me of what was happening --
11 what had happened.
12 Q Why did Sergeant Amodeo call you?
13 MR. MULLIN: Objection, Your
14 Honor.
15 MR. BEVERE: Let me --
16 BY MR. BEVERE:
17 Q Do you know why Sergeant Amodeo
18 called you?
19 A Yes, I do.
20 Q Okay. What was the reason?
21 A I was the on-call detective at that time.
22 Q What does that mean, to be the
23 on-call detective?
24 A We're a small Police Department and we're
25 very small Detective Bureau, so we can't staff a
67
1 Detective Bureau 24 hours a day, seven days a
2 week. So on days, holidays, on weekends, there
3 is no one assigned to work at times. So there
4 is always one detective on-call 24 hours, seven
5 days a week. And that's why he called me,
6 because I was the person on-call that day.
7 Q And would the patrol officers be
8 made aware before each shift who the on-call
9 detective is?
10 A There is a schedule behind the desk, so
11 there is a whole roster for that week on who
12 would be on-call.
13 Q So you received a phone call from
14 then Sergeant Amodeo?
15 A Correct.
16 Q And if you -- I'm sorry,
17 Detective, I just want to get myself some water.
18 Do you recall anything about the
19 conversation you had with Sergeant Amodeo at
20 that time?
21 A Yes, I can.
22 Q Can you tell us what you can
23 recall?
24 A Basically, he told me there was an
25 incident of harassment that he felt was biased,
68
1 it involved the firemen and two residents that
2 live next door to them. He advised me that at
3 this time everybody has been sent home,
4 everybody is gone. He said that none of the
5 victims needed any medical attention. He told
6 me that he has notified the Chief of Police and
7 that he has already permanently assigned a
8 patrol officer to stand guard at that location.
9 Q And what, if anything, did you do
10 when you received this information from Sergeant
11 Amodeo?
12 A At that point my protocol would be to
13 contact Detective Captain Buckley, which I did.
14 Q I'm sorry, I didn't -- I didn't
15 hear you.
16 A I contacted Detective Captain Buckley as
17 soon as we hung up the phone.
18 Q If you could keep your voice up a
19 little bit --
20 A I'm sorry.
21 Q -- because I am having a little
22 trouble hearing you. Some doors are opening up.
23 I want to make sure we can all hear you.
24 And what was the nature of the
25 discussion between yourself and Captain Buckley?
69
1 A I reiterated what Sergeant Amodeo had
2 told me; and I informed him, you know, of the
3 details of what he instructed me.
4 Q And what, if any, course of action
5 at that point in time did Captain Buckley
6 instruct you take?
7 A Well, at that point the decision was made
8 by him not to respond, since everybody had
9 already been cleared from the scene and that the
10 next day he'll have people, you know, begin the
11 investigation down at the Detective Bureau
12 level.
13 Q And approximately what time was
14 this?
15 A This was about 3, 3:15 in the morning.
16 Q Is it typical that 3:15 on a
17 Sunday morning there would be no detectives
18 working in the Police Department?
19 A There are none at all working at 3:15.
20 Q Now, at some point were you
21 assigned by Captain Buckley to the follow-up
22 investigation?
23 A Yes, I was.
24 Q As you are sitting here today do
25 you recall when in relation to the event you
70
1 would have been assigned?
2 A Tuesday approximately 4 p.m.
3 Q And why would that -- why is it
4 that you recall that?
5 A I am off on Sundays. I am off Mondays.
6 So I work 4 p.m. until midnight Tuesdays through
7 Saturdays.
8 Q Now, at that point in time, when
9 you became assigned to the investigation, do you
10 know if any other Secaucus detectives had
11 already been assigned at that point?
12 A Yes, there was work done.
13 Q Is it typical in the Detective
14 Bureau that detectives work together on
15 investigation, or is that not typical?
16 A No, it's typical.
17 Q And I want to ask you a question
18 about report-writing.
19 A Okay.
20 Q Do you prepare reports?
21 A I do.
22 Q What is the function of -- of --
23 why does a department have you -- is it --
24 strike that. I'm sorry. Getting a little
25 tongue-tied, I apologize.
71
1 Is it the Department's policy that you
2 prepare reports?
3 A Absolutely.
4 Q All right. And what is the
5 purpose or the function of that policy?
6 A We leave a report on everything that
7 happens, whether it's barking dog, a blocked
8 driveway. Our job is to document everything
9 that we do.
10 Q And is it the regular practice and
11 procedure of your Department to prepare reports?
12 A Yes, it is.
13 Q And do you personally prepare
14 reports as part of your regular practice and
15 procedure?
16 A Yes.
17 Q Now, did you prepare reports with
18 respect to your involvement in the investigation
19 of the events of April 25th, 2004?
20 A I did.
21 Q As you're sitting here today do
22 you have any independent recollection of who you
23 spoke to, what you did; or do you need to see
24 those reports to refresh your recollection?
25 A I would need to see those reports. There
72
1 is a lot of them.
2 Q Now, I am going to start out by
3 showing you a report which is marked D-14 and
4 D-15. And Detective, is it fair to say that
5 anything that you did, anyone you spoke to would
6 be reflected in these reports?
7 A Absolutely.
8 Q Including anything that you
9 personally observed, as well as anything anyone
10 told you in the course of your investigation?
11 A Absolutely.
12 MR. MULLIN: Objection, Your
13 Honor, leading.
14 MR. BEVERE: Judge, these are
15 foundation questions, Your Honor.
16 JUDGE CURRAN: They are
17 foundation. I'll overrule the objection, but it
18 is noted on the record. Thank you.
19 MR. BEVERE: Thank you.
20 BY MR. BEVERE:
21 Q And do you rely -- does the
22 Detective Bureau rely upon the information
23 contained in these reports in determining any
24 follow-up investigation?
25 A Absolutely.
73
1 Q Now --
2 JUDGE CURRAN: Can I interrupt
3 you? I'm sorry. I don't know if it's
4 distracting to the jury; but if there's nothing
5 going to be on screen, maybe we can turn the
6 computer off? Or are you going to use it right
7 now?
8 MR. BEVERE: I was going to use it
9 right now.
10 JUDGE CURRAN: I'm sorry, okay.
11 MR. PARIS: Unfortunately, I have
12 to get that thing a little bit warmed.
13 MR. BEVERE: I thought it was a
14 very attractive, bucolic scene, Judge.
15 JUDGE CURRAN: It is.
16 BY MR. BEVERE:
17 Q I am going to show you, Detective,
18 what's been marked, I believe it was, D-13.
19 MR. MULLIN: 14 and 15.
20 JUDGE CURRAN: 14 and 15.
21 BY MR. BEVERE:
22 Q D-14 and 15 for Identification and
23 ask you --
24 MR. PARIS: Was that 13, 14, 15?
25 MR. BEVERE: No, 14 and 15. D-14
74
1 and D-15.
2 BY MR. BEVERE:
3 Q And ask you if that's a copy of a
4 report that you prepared in this matter?
5 A It is.
6 Q All right. And what is the date
7 of your report?
8 A 4/27/2004.
9 Q And would that have been the first
10 day that you were involved in the investigation?
11 A That would have been Tuesday, when I came
12 back in, yes.
13 Q Okay. And with regard to your
14 activities of that day, I want to start with the
15 first paragraph of your report. And it
16 appears -- it indicates that you had a
17 conversation with someone at the Hudson County
18 Prosecutor's Office. Can you tell us who you
19 called and why?
20 A Yes, I called Chief Hill.
21 Q And what time was that?
22 A That was at 1600 hours, which is 4 p.m.
23 Q That would have been when you
24 first came in?
25 A Yes.
75
1 Q And what was the purpose of your
2 contacting Chief Hill at the Hudson County
3 Prosecutor's Office?
4 A That was assigned to me, that detail, by
5 Captain Buckley. That was to follow up
6 Detective Lieutenant Malanka's conversation with
7 Mr. Robert Kickey and the response that
8 Mr. Kickey gave Lieutenant Malanka.
9 Q And are you aware of what response
10 was given to Lieutenant Malanka by Mr. Kickey?
11 A Yes, I was.
12 Q What was the response?
13 A Basically, Lieutenant Malanka had
14 contacted the Kickey residence, looking to speak
15 with Matt Kickey. Matt wasn't home. They had
16 gotten his father, Robert. And when he asked --
17 when Lieutenant Malanka had asked to speak to
18 Matt, Mr. Robert Kickey said he is not talking
19 to anybody, basically.
20 Q But notwithstanding that
21 conversation, you made contact with the
22 Prosecutor's Office?
23 A Correct.
24 Q And what was your -- your
25 intention or your purpose upon contacting the
76
1 Prosecutor's Office?
2 A Basically, we wanted to get a
3 determination by them that even though a family
4 member said Matt Kickey isn't going to speak
5 with us, if we would be out of order if we asked
6 Matt Kickey and approached him to speak with us
7 about this incident.
8 Q And did you record the
9 conversation, or did you -- did you write down
10 in your report the nature of the discussion you
11 had with Chief Hill?
12 A I did.
13 Q Who was Chief Hill?
14 A He is the lead law enforcement officer
15 for the Hudson County Prosecutor's Office. He
16 is an attorney. He is a prosecutor. But then,
17 I guess, they promoted him and appointed him as
18 Chief in the Investigative Division.
19 Q Okay. And what was the nature of
20 your discussion with Chief Hill?
21 A I advised him, basically, of -- of what
22 had happened between Lieutenant Malanka and
23 Mr. Robert Kickey. And he said, basically, that
24 I could still speak with Matt Kickey and
25 approach him, despite what the father said.
77
1 Q Now, the next thing that you did
2 looks like at 4:10. What did you do at 4:10?
3 A At 4:10 I had taken -- well, two
4 individuals had responded to this agency, a
5 woman by the name of Kristin and her husband,
6 Harry Backiel.
7 Q Do you know why they came down to
8 the Detective Bureau?
9 A Yes, they were fire -- well, Harry is a
10 fireman. Kristin is his wife. And they had
11 been requested to come down to speak to us about
12 the incident.
13 Q And were statements taken of
14 Kristin Backiel and Harry Backiel?
15 A Yes.
16 Q And I'll get to their statements
17 in a minute. And then it appears that at
18 approximately 5:00 something else was done. Can
19 you tell us about that?
20 A Yes, at 5:05 Mike Sesty came in and then
21 had given us a statement about the incident.
22 Q And what was your understanding as
23 to who Mike Sesty was?
24 A I believe he was another fireman up
25 there.
78
1 Q Did you take a statement from him,
2 as well?
3 A I did.
4 Q We will get to that statement in a
5 minute. It also talks, your report, about a
6 phone call that you had with the Hudson County
7 Assistant Prosecutor. Who did you speak to and
8 why?
9 A That was Assistant Prosecutor Don
10 Gardner.
11 Q And what was the purpose of your
12 speaking to Mr. Gardner?
13 A Basically, he had contacted us and
14 advised us that he didn't receive any of the
15 faxed copies of the -- of the incident to his
16 office. Mr. Gardner is the -- at the time I
17 believe he was the head prosecutor of the bias
18 incident.
19 Q Was it your understanding that the
20 reports had previously been faxed?
21 A Yes.
22 Q And who did that to your
23 understanding?
24 A That was Lieutenant Malanka. And in
25 fact, he actually had a receipt for that fax
79
1 transmittal that the fax went through.
2 Q But then you sent them again at
3 Mr. Gardner's request?
4 A I did. I did.
5 Q Now, we go on to approximately
6 6:00. It looks like you had a phone call from
7 Mr. Carter?
8 A Correct.
9 Q Okay. And if you could read your
10 report -- you need to read your report, that's
11 fine. Can you tell us about your conversation
12 with Mr. Carter?
13 A Basically, at approximately 1800 hours,
14 which is 6 p.m., I received a call from Tim
15 Carter.
16 JUDGE CURRAN: I apologize. Just
17 so the record is clear, you are reading now from
18 your report?
19 THE WITNESS: Yes.
20 JUDGE CURRAN: If you would
21 indicate when you're reading or --
22 MR. MULLIN: Your Honor, this
23 is -- then we are going to different evidence
24 rule, past recollection recorded, which the
25 foundation is the witness has no recollection
80
1 whatsoever. If that would be established, then
2 that's fine. I don't want to interrupt us, but
3 I think that foundation --
4 MR. BEVERE: That's fine. I will
5 be happy to lay the foundation.
6 BY MR. BEVERE:
7 Q Detective, without looking at your
8 report can you tell us what was discussed
9 between you and Mr. Carter?
10 A Not without looking at that report.
11 Q Okay. And did you prepare as part
12 of your report a recorded -- a written record of
13 that discussion?
14 A Yes, I did.
15 Q And was that written discussion
16 included -- I'm sorry, let me ask: Was your
17 report prepared at or near the time that you had
18 your discussion with Mr. Carter?
19 A Yes.
20 Q And would that have been an
21 accurate recitation of your discussion, when it
22 was made?
23 A Absolutely.
24 Q Okay. You can --
25 MR. MULLIN: Your Honor, can we
81
1 just establish that this witness has no
2 recollection of what he is about to read, so
3 that's why he is reading?
4 JUDGE CURRAN: Sustained.
5 BY MR. BEVERE:
6 Q Do you have any recollection
7 whatsoever of your discussion with Mr. Carter?
8 A I had done so much work on this case,
9 without looking at the actual report for that
10 specific incident I wouldn't be able to do that.
11 Q Wouldn't be able to tell us
12 anything that was said?
13 A Not accurately, no.
14 JUDGE CURRAN: All right. And I
15 just would appreciate it if you would maybe
16 question the witness -- there is a difference
17 between looking at something to refresh your
18 recollection, which often police officers do,
19 and reading verbatim. If he is going to read
20 verbatim, we need that on the record, just so
21 that we're all on the same track.
22 Q Do you need to read from your
23 report in order to tell us what was discussed
24 between you and Mr. Carter?
25 A I do.
82
1 Q Okay.
2 JUDGE CURRAN: Thank you.
3 Q You can go ahead and read that
4 paragraph of your report.
5 A "At approximately 1800 hours I received a
6 call from Tim Carter, the victim, who advised
7 that as a result of this incident both he and
8 Peter deVries are moving. Mr. Carter had asked
9 if" --
10 Q I'm sorry, Detective. Let me --
11 just go a little slower. And if you could keep
12 your voice up because I am having a little
13 difficulty hearing you back here.
14 A "Mr. Carter had asked if we could
15 contact" -- "if we could advice Chuck Snyder
16 that he would be moving to" -- "to prevent
17 future incidents. Mr. Carter had also explained
18 that he had been advised by others, unknown
19 identities, that Secaucus Police Department
20 members have family relationships with Secaucus
21 Firemen. Mr. Carter" -- "Mr. Carter had also
22 said he wanted to know if any Secaucus Police
23 Officers were present when this incident had
24 occurred. At that time I advised Mr. Carter
25 that the Secaucus Police Department takes
83
1 incidents seriously and asked him if he has any
2 complaints with this agency. Mr. Carter advised
3 that he has no complaints but wanted to add that
4 he was having problems with the SFD" --
5 Q Meaning?
6 A Secaucus Fire Department. -- "for over
7 three years. And at least on one occasion when
8 the police arrived to investigate the past
9 incident the officer had described the firemen
10 as being decent people."
11 Mr. Carter also advised that he had
12 been awake all night and did not see any police
13 officers drive past his residence. I again
14 asked Mr. Carter if he had any complaints
15 regarding the actions of the SPD," which is
16 Secaucus Police Department, "or its members, and
17 he said no."
18 "I advised him that his residence has
19 been placed on a priority check and I will
20 ensure his residence is patrolled. I also
21 advised him not to hesitate in calling this
22 agency if he requires assistance and that if he
23 has any problems, that he could speak to the
24 supervisor on-duty, myself or Detective Captain
25 Buckley."
84
1 "Mr. Carter had also advised that a
2 neighbor of his, named Mrs. Hjelm, also had
3 information regarding the incident."
4 "Mr. Carter also explained that every
5 Saturday morning at 430 hours a Town of Secaucus
6 sanitation truck responds to the firehouse and
7 dumps barrels of empty booze bottles."
8 "At that time Mr. Carter's phone was
9 losing power and he advised that he would call
10 back later."
11 Q Okay. Now, after you had this
12 discussion with Mr. Carter, what, if any, action
13 did you take in regard to Mr. Carter's concerns
14 about his house being patrolled?
15 A I had gone down and checked to make sure
16 his address and the incident was detailed in
17 what we call a "priority book." And it was.
18 Q All right. And then did you
19 contact anyone in the department to discuss it
20 with them?
21 A Yes, Captain Rozansky.
22 Q Who is Captain Rozansky?
23 A He was the captain in the Patrol
24 Division. And he works evenings, so he is the
25 evening tour supervisor.
85
1 Q And if you want to look at your
2 report, so you can refresh your recollection as
3 to the -- as to the nature of the discussion
4 that you had at that time with Captain Rozansky.
5 A Yes, I advised him that -- of the
6 incident and that there was a priority check and
7 that the officers have to follow the check and
8 ensure that the checks -- and that the
9 supervisors have to ensure these checks are
10 continually being done.
11 Q Now, something happened at 6:45.
12 Would you tell us about that?
13 A Yes. Another fireman responded, and I
14 obtained -- well, a statement was obtained from
15 him.
16 Q And who was that fireman?
17 A Michael Pepe.
18 Q Okay. And you actually took that
19 statement?
20 A Yes.
21 Q And then at 7:25?
22 A Woman by the name of Veronica Vega
23 responded, and she provided me with another
24 formal statement.
25 Q Now, at approximately 8:00 at
86
1 night did you make contact with someone at the
2 Hjelm residence?
3 A Yes, I did.
4 Q Okay. And do you have a
5 personal -- do you have a personal recollection
6 as you are sitting here today?
7 A Yeah, basically, I had contacted the
8 Hjelm residence, looking for Mrs. Hjelm. And I
9 was advised by, I think it was her son, that she
10 wasn't home.
11 Q And did you leave any instructions
12 with her son?
13 A To have her contact me.
14 Q And at some point did Mrs. Hjelm
15 contact you?
16 A I believe she did, yes.
17 Q Well, we'll get to that in a
18 minute. Then, at approximately 8:20 did you go
19 to the Hudson County Prosecutor's Office?
20 A Yes, we did.
21 Q When you say, "we did," who else
22 went?
23 A My partner, Detective Sergeant Dominic
24 DeGennaro.
25 Q And do you and Detective DeGennaro
87
1 often work together?
2 A Yes, we do.
3 Q Are you on the same shift?
4 A We work -- we are the only two detectives
5 on evenings, 4 to midnights, Tuesday through
6 Saturday.
7 Q And that was true in -- in April
8 of '04?
9 A Correct.
10 Q Can you tell us what was the
11 purpose of you and Detective DeGennaro going to
12 the Hudson County Prosecutor's Office and what
13 happened?
14 A Firefighter Matt Kickey is a dispatcher
15 at the time at that agency, so we had gone there
16 to try to speak to him about the incident.
17 Q And what happened when you got up
18 there?
19 A Well, when we arrived, to get into this
20 particular office where he works, you have to
21 ring a bell. The public just doesn't have free
22 access in there. So when that bell was rung,
23 the person who opened the door for us was Matt
24 Kickey. So at that time I asked to speak to
25 Matt Kickey's supervisor, the one that was
88
1 working.
2 Q And do you have a recollection of
3 who the supervisor was?
4 A I believe it was sergeant DePascale.
5 Q Did you record that in your
6 report?
7 A I believe I did, yes, yes.
8 Q And tell us about what, if any,
9 discussion you had with Sergeant DePascale.
10 A Basically, Sergeant DePascale was on the
11 road at the time that we went there. A few
12 seconds later Matt Kickey came back and advised
13 us that Sergeant DePascale was on the phone.
14 I then answered the phone and advised
15 him I was there to speak to Matt Kickey about an
16 incident. I never told him what the incident
17 was or anything.
18 At that point I believe Sergeant
19 DePascale said -- he started getting upset with
20 me that we were there. He said that he
21 understood and knew of the incident and there
22 was no reason, I think he said, for us to speak
23 to him.
24 I came back; and I advised him, "Well,
25 I am here to speak to Matt Kickey about an
89
1 incident."
2 And at that time Sergeant DePascale
3 started -- he was very upset with us for being
4 there.
5 Q And did you have an opportunity to
6 speak to Matt Kickey when you went up there that
7 day?
8 A Yes, I did.
9 Q And tell us about your discussion
10 with Matt Kickey.
11 A Basically, Matt Kickey -- Sergeant
12 DePascale's earlier comment to me that it was --
13 I think he said --
14 Q You could look at your report to
15 refresh your recollection, if you need to.
16 A Sergeant DePascale initially had told me,
17 even though I wasn't looking for his opinion of
18 us responding to his office, that it was
19 inappropriate for me to do so. All right. And
20 then, at that time he wanted to speak to Matt
21 Kickey. That happened.
22 Then I had asked him, Matt -- then that
23 phone call had ended. I then asked Matt if he
24 wanted to speak to me about the incident.
25 Matt then started telling me how it was
90
1 inappropriate for me to be there and he wasn't
2 going to speak to me.
3 Q And then, without going -- what
4 did you and Detective DeGennaro do?
5 A We actually exited the building, and I
6 immediately contacted Captain Buckley and
7 advised him what was happenings.
8 Q Then, did you ever hear from Matt
9 Kickey again regarding giving a statement?
10 A I don't believe so, no.
11 Q And then you have the last
12 paragraph of your report talks about 2206 hours.
13 What time is that?
14 A 10:06 p.m.
15 Q What happened at 10:06 p.m.?
16 A At 10:06 Mr. deVries responded, and I --
17 and gave me a formal statement about the
18 incident.
19 Q I am going to talk to you about
20 that statement in a minute. When Mr. -- after
21 Mr. deVries gave you a statement did you give
22 him anything to take with him?
23 A Yes, we have a -- it's a Victims of a
24 Crime packet we give him -- I gave him. And
25 basically, it -- it supplies him with a phone
91
1 number where victims of crimes can contact and
2 trying to seek some, if they need any, sort of
3 help.
4 Q Is that standard to do that?
5 A Yes.
6 Q Okay. I want to show you -- I
7 will take your report back. Thank you,
8 Detective.
9 I am going to show you what I have
10 marked as D-18 and D-19 for Identification and
11 ask you if you can tell us what those two
12 documents are?
13 A Yes, D-18 is a formal statement that I
14 completed of Kristin Backiel. And D-19 is
15 what's called an "SPD-71." It's a
16 Constitutional Rights Advisement/Waiver Form.
17 Q Okay. First I want to talk about
18 the procedure for taking statements. And I
19 guess the first thing I want to start is this --
20 this form that you just discussed with us, what
21 is the nature and the purpose of that form?
22 A Which form?
23 Q This -- I'm sorry, D-19.
24 A That form we give to anyone that's a
25 potential suspect in -- in an incident. And
92
1 basically, all that is is we're required under
2 certain rules to advise people of what their
3 Constitutional rights are. Doesn't mean they're
4 being arrested. It's just that if we think
5 there might be charges pending against them,
6 it's safer to give them that form, so that way
7 later on they can't say that we extracted
8 information out of them without advising them of
9 their rights.
10 Q Okay. And whenever you're
11 interviewing someone who you believe might have
12 criminal responsibility for an incident, do you
13 provide them with this form and make them sign
14 it?
15 A Yes, it's safer to do it that way.
16 Q Okay. Whenever you're
17 interviewing someone who you believe might have
18 criminal responsibility, do you advise that
19 person prior to interviewing them of their right
20 to counsel and their right to remain silent?
21 A Absolutely.
22 Q And is that a requirement?
23 A Yeah, that's court rules. And that's
24 what this form does; it tells them that they
25 have a right for an attorney and everything like
93
1 that.
2 Q What that -- the purpose of that
3 form, then, is a written record of the fact that
4 you advised them of their right to counsel,
5 right to remain silent?
6 A It is. It even protects the police more
7 because they now read it and sign off on each
8 section. So they can't say we didn't -- we
9 didn't give them their rights, we didn't -- you
10 know, we left out a section. It's all on this
11 form that they go down and review.
12 Q Okay. And if you go to D-18 and
13 you ask -- and before we start, as you're
14 sitting here today do you have any recollection
15 of what Kristin Backiel told you?
16 A I don't.
17 Q Do you need to see her statement?
18 A I would.
19 Q The first couple of questions that
20 you ask -- and what we'll do is -- the first, I
21 guess, four questions, can you tell us what
22 those questions are?
23 A Yeah, the first one basically I'm asking
24 that person did she voluntarily come to that
25 Police Department. Basically, I'm -- what I'm
94
1 asking her is did I force her there or anything
2 else?
3 Q All right. Can you force someone
4 to come down and give a statement?
5 A I can't, no.
6 Q And then the second question is?
7 A Basically I'm asking her, "Before I spoke
8 to you did I advise you that you're not under
9 arrest and free to leave?"
10 Q And why do you ask that question?
11 A Just so that way there is no
12 misunderstandings about what their intent is. I
13 can't keep a person at headquarters unless
14 they're arrested. I can't force them there.
15 They are not under any duress. So I'm just
16 making it clear to her that she can leave at any
17 time.
18 Q Prior to a person being actually
19 arrested and charged or arrested, are they free
20 to leave at any time?
21 A Absolutely.
22 Q Would that also include being in
23 the middle of a statement?
24 A Yes, yes.
25 Q And the next sentence?
95
1 A "And did I also provide you with a piece
2 of paper explaining your Constitutional rights
3 on it?"
4 Q And that would be the right to
5 remain silent, the right to counsel --
6 A Yes.
7 Q -- that we just discussed?
8 A Yes.
9 Q Okay. And then the next sentence?
10 A "And before you spoke to me did you read,
11 understand and then waive your rights?"
12 Q And pursuant to the form that she
13 signed, did she agree to --
14 A Yes, she did.
15 Q -- waive her rights?
16 A Yes, she did.
17 Q And then you asked her a question,
18 "What can you tell me about the incident that
19 happened on 4/25/04 at the North End Firehouse?"
20 A Correct.
21 Q All right. Can you read us what
22 her response was?
23 A Yes. Her answer was, "Basically nothing.
24 My husband and I went with Patty and Michelle
25 Maxwell in Patty's car."
96
1 Q Do you know who Patty and Michelle
2 Maxwell are?
3 A Patty is a fireman, and Michelle is his
4 wife.
5 Q Okay.
6 A "We left the restaurant in Cliffside Park
7 around 10:45 p.m. And Patty dropped his wife
8 off at her home and then dropped us off at the
9 firehouse. We then went to our home, so I could
10 change. We figured that everyone who had taken
11 the bus wouldn't leave the restaurant until
12 midnight, so we stayed at our house until around
13 12:30. We got to the firehouse; and the parking
14 lot was filled, so we parked on the street and
15 walked to the front door. We then walked to the
16 backroom, and then the cops showed up. The cops
17 took our names, and we left."
18 Q Okay. Then you asked her another
19 question, which is?
20 A I asked her, "Do you know anything about
21 what had happened that caused the police to
22 respond to the firehouse?"
23 And she said, "No."
24 Q Okay.
25 MR. MULLIN: Your Honor, could we
97
1 just have the record reflect the witness is
2 reading, just so the record is clear?
3 JUDGE CURRAN: Thank you. It's
4 noted on the record.
5 MR. BEVERE: Oh, sure.
6 BY MR. BEVERE:
7 Q And Detective, you are reading
8 from the statement?
9 A I am reading, yes.
10 Q Is that because you don't have an
11 independent recollection of what she said?
12 A Absolutely.
13 Q Now, I want to go down to where
14 you ask the question, "How have I treated you
15 today?"
16 "Okay."
17 And I want to know why it is that you
18 ask that question?
19 A We ask that to everybody, so then, later
20 on, they can't say we forced things out of them
21 or anything like that. It's a loaded question
22 that we do as an investigator. And then,
23 whatever their answer is, we put that down.
24 Q With regard to the -- and then did
25 Miss Backiel sign the statement?
98
1 A Yes, she did.
2 Q And just if you could just tell us
3 basically what -- aside from advising them of
4 their Constitutional rights and if they choose
5 to waive them, having them sign the form, how do
6 you then typically conduct an interview; and how
7 does the interview become the statement?
8 A Basically what we do is we will sit down
9 after we go through everything and, you know,
10 find out who they are, get their names, get
11 their addresses, get their phone numbers. And
12 then we ask them basic questions, what happened.
13 And then, from there, once we get a pretty good
14 idea what went on, then we go into a formal
15 statement. And then we ask them basically the
16 same questions.
17 Q And then who -- who types up the
18 statement?
19 A Whoever is taking that statement. Hers I
20 did.
21 Q Okay. So for Kristin Backiel, you
22 would have typed up that statement yourself?
23 A Yes.
24 Q How are you as a typist?
25 A Two fingers.
99
1 Q Okay. In your report you also
2 said that you took -- you personally took a
3 statement of a Michael Sesty. And I am going to
4 show you what's been marked as D-20 and D-21 and
5 ask you if you could identify these documents?
6 A Yes, I can.
7 Q Okay. And I believe you already
8 told us that Michael Sesty was a firefighter?
9 A Yes.
10 Q Do you know whether someone at the
11 Detective Bureau had made contact with Michael
12 Sesty, as well as with Kristin Backiel, and
13 asked them to come down and give statements?
14 A Yes, someone had definitely asked them to
15 come in.
16 Q But it wasn't you who did it?
17 A I don't think I did at this point because
18 I would have reflected that. This was right
19 when I had first started working on that
20 Tuesday. So I'm, again, looking at this. I
21 don't remember who called, but somebody
22 definitely had to have them call and asked them
23 to come in before I got there; or else they
24 wouldn't have been there at the time that I had
25 just gotten in to work.
100
1 Q Okay. And looking at D-21 from
2 Michael Sesty, what is that form?
3 A That's -- again, that's that Secaucus
4 Police Department-71 Constitutional Rights
5 Advisement/Waiver Form.
6 Q And did Michael Sesty agree to
7 waive his Constitutional rights and speak to
8 you?
9 A He did.
10 Q And going to his statement, which
11 would be D-20, after you ask him about the
12 questions about voluntarily responding and
13 Constitutional rights, you then ask him in
14 your -- well, before I ask you the question, as
15 you are sitting here today do you have any
16 independent recollection of what Mike Sesty told
17 you?
18 A I don't. I would have to read the
19 report.
20 Q You would have to read the
21 statement?
22 A The statement, yes.
23 Q And could you tell us what Mike
24 Sesty's response was and -- when you said, "In
25 your own words tell me what happened that
101
1 night"?
2 A Reading from his statement, "We came off
3 the bus. We went through the front door of the
4 firehouse to the backroom. I was with my date,
5 Veronica Vega. About 15 minutes later an
6 officer came in and asked for my name and
7 address. I gave him that. Then I left, which
8 he asked us to do."
9 Q Then you asked him another
10 question?
11 A I asked him, "What do you know regarding
12 an altercation between firemen and local
13 residents?"
14 Q And what was his response?
15 A His answer was, "Honestly, when the cop
16 came in, he didn't explain anything to us."
17 Q Then the next question?
18 A "Did anyone explain what happened to
19 you?"
20 Q And the answer?
21 A "No."
22 Q And then the next question?
23 A "Do you know what happened?"
24 Q And the answer?
25 A "No, I don't. I left right away after
102
1 the police" -- "after the office told me to
2 leave."
3 Q Did you mean to say, "officer"?
4 A Yes, I did.
5 Q That's a typo?
6 A It is.
7 Q And then the next question?
8 A "Did you have any involvement in an
9 altercation with local residents while you were
10 at the firehouse?"
11 Q And the answer?
12 A "Absolutely not."
13 Q And, "Do you know who did?"
14 A And he said, "No, I don't."
15 Q Okay. And once again, Mr. Sesty
16 signed the statement?
17 A He did.
18 Q Okay. If I can have that back.
19 And then I am going to show you what is
20 marked D-22 and D-23 for Identification and ask
21 you what those are?
22 A That's a Secaucus Police Department
23 Constitutional Rights Advisement/Waiver Form.
24 Q And that would be D what?
25 A 23.
103
1 Q For whom?
2 A Michael Pepe.
3 Q And who -- who -- to your
4 understanding who was Michael Pepe?
5 A Another fireman.
6 Q And same thing; he would have been
7 called and asked to come down and give a
8 statement?
9 A Yes.
10 Q And then his actual statement is
11 D?
12 A 22.
13 Q Okay.
14 MR. MULLIN: Your Honor --
15 Q You took that statement?
16 MR. MULLIN: -- can we have a
17 sidebar?
18 JUDGE CURRAN: Sure.
19 (Whereupon, the following sidebar
20 discussion is held.)
21 MR. MULLIN: I have allowed a
22 couple of these documents to go in to illustrate
23 how statements are taken and so on. But at this
24 point we have a witness reading statements that
25 aren't his own. They are not his past
104
1 recollection recorded. And so this witness
2 shouldn't be sitting there reading the
3 statements of other people.
4 Now, that said, if they want
5 to -- if they, the defense, wants to put in the
6 statements of all these people that saw nothing
7 and heard nothing, I'm not going to object to
8 that because I'm going to close on that. So --
9 so I have no problem with this, but I don't want
10 this witness to sit there and read all this
11 testimony that's not his past recollection
12 recorded. It's not refreshing his -- well, if
13 it's refreshing his recollection, it is
14 refreshing his recollection about hearsay, that
15 is, what these witnesses said.
16 So I'm not at this point
17 admitting, conceding that these documents should
18 go into Evidence now. I am telling the Court
19 that my inclination is at some point I may make
20 that concession. But I'm not doing that now.
21 And so there is no basis for this testimony.
22 JUDGE CURRAN: Mr. Bevere.
23 MR. BEVERE: Judge, I am not
24 offering these statements for the truth of the
25 matter being asserted. The claim in this case
105
1 is that Detective Bureau -- at least what I
2 thought was the claim was that they didn't do
3 what they were supposed to do. And I am using
4 it to show what information was provided to the
5 Detective Bureau.
6 I am certainly not vouching for
7 the veracity or the accuracy of what was said by
8 anybody to the police, including the plaintiffs.
9 But this is about what the police were told by
10 people. This is about what the police were told
11 and what they did in their investigation.
12 And what are the -- one of the
13 issues is going to be, well, the Detective
14 Bureau never charged anybody with a crime. And
15 very relevant piece of information is that
16 people came in and told us nothing.
17 Now, whether you believe the
18 people that they saw nothing or don't believe
19 they saw nothing, it goes to the Detective
20 Bureau's state of mind as to why nobody was
21 charged with a crime between the time that the
22 incident happened and the time the Attorney
23 General Office said, "And guess what, Secaucus,
24 you are not going to be involved at all. We
25 will decide who gets charged with a crime."
106
1 JUDGE CURRAN: Those kind of
2 issues can be addressed without his reading
3 from, for instance, these two documents,
4 certainly the first document, not the second.
5 There are ways to do that, certainly, with
6 questioning, especially because you're
7 indicating you are not offering these for the
8 truth of what these individuals who were
9 questioned, for instance, Sesty or Pepe, said,
10 just that they were investigated.
11 There is lots of ways to do that.
12 I wouldn't presume to interfere with your
13 strategy, but at this point he can't really read
14 into the record what individuals are saying just
15 to indicate there was a report -- there was an
16 investigation.
17 MR. BEVERE: Well, it -- it goes
18 beyond that. It goes beyond that. Certainly,
19 the fact that he took the statement goes to the
20 fact that there was an investigation, whether
21 it's going to be a specific criticism in this
22 case as to why nobody was charged with a crime.
23 JUDGE CURRAN: He can be
24 questioned on that. Absolutely, he can be
25 questioned on that. But he doesn't have to read
107
1 in what the individuals who were interviewed
2 said. There is lots of ways to -- that could be
3 done.
4 MR. BEVERE: See, Judge, I have to
5 disagree. I mean, I think that it is very
6 relevant as to specifically what a potential
7 witness or potential suspect might have told
8 him. It's very relevant as to why the Detective
9 Bureau did or didn't do what they -- what the
10 plaintiffs claim they should have done. And
11 therefore, it goes to -- it goes his state of
12 mind, what he was told or what the Detective
13 Bureau collectively was advised.
14 And these statements are not
15 being offered for the truth of the matter being
16 asserted. They are being offered to show what
17 information was provided to the Detective
18 Bureau, what information they relied upon. And
19 in that regard, you know, I don't think we have
20 any hearsay issue here. I don't see the hearsay
21 issue because I am not offing the statements for
22 the truth the matter. I am not coming in here
23 and saying, "By the way, Mike Sesty didn't hear
24 anything and Ver" -- no, what I can say is,
25 "Look, this is the in Detective Bureau's hands.
108
1 What were they going to do? They couldn't force
2 people to talk. They can't force people to give
3 statements. People that came down said they
4 didn't hear anything." So, I mean, here we are
5 in a situation where we are being told these
6 things. And you know, this is what we're --
7 we're relying upon in the course of our
8 investigation.
9 Now, maybe at some point in time,
10 you know, somebody would have said something
11 that contradicted it and -- but right now we are
12 talking about what the detectives were told
13 about what went on. And that goes to their --
14 to the Police Department's state of mind as to
15 why nobody was charged with a crime because they
16 weren't being provided with information that
17 they believe was sufficient.
18 JUDGE CURRAN: So if we look at it
19 that way, how is it not offered for the truth of
20 what is said? Whether or not underlying fact
21 was true is not the issue. The issue is it's
22 being offered for the truth of what this witness
23 says was said to him, as I see it.
24 MR. BEVERE: Well, it's -- it's
25 certainly being offered as to what was told to
109
1 him and the effect on his state of mind, but
2 it's not being offered for the truth of who was
3 inside, who heard --
4 JUDGE CURRAN: But he -- don't
5 be -- that would be a real stretch, anyway.
6 MR. BEVERE: But Judge, the point
7 is the statements, what this has told him -- the
8 portion of this case is about what the Police
9 Department failed or didn't do or didn't do; and
10 in that respect, what they were told by
11 witnesses is very relevant and it's not hearsay.
12 JUDGE CURRAN: I understand that;
13 but it is then, obviously, being presented for
14 the truth of what was said by this witness or --
15 just take this -- just take Pepe -- what Pepe
16 said to --
17 MR. PARIS: But this witness is
18 here.
19 MR. BEVERE: No, no, he is not
20 vouching for the veracity of what Pepe said.
21 JUDGE CURRAN: I understand he is
22 here.
23 MR. BEVERE: He heard it.
24 MR. PARIS: Lieutenant rank is
25 here.
110
1 JUDGE CURRAN: We go back to there
2 are other ways to address it.
3 MR. MULLIN: Your Honor.
4 MR. PARIS: Has recorded -- he has
5 recorded --
6 JUDGE CURRAN: I'm sorry.
7 MR. PARIS: -- statements
8 contemporaneously with when they were given,
9 okay. There may also be an issue with regard to
10 his own credibility. The fact that he made the
11 statement, the fact that here is the document,
12 here is what we were told, you can go after him
13 on his credibility. But when he has a document,
14 that's why the document, itself, is evidentiary,
15 to be able to say, "And did he put it down on a
16 piece of paper, and did the witness sign it?"
17 "Yes, here it is." So the document, itself, is
18 important to go in. There is nothing wrong with
19 it.
20 If they want to question, "Do you
21 recall exactly what Miss Vega said to you
22 without reading her statement" --
23 MR. BEVERE: Which I think I did
24 say.
25 MR. PARIS: Which I thought the
111
1 foundation had been laid. That's one thing.
2 But just to say no, you can't put in a statement
3 when a statement is crucial as to what his state
4 of mind was --
5 MS. SMITH: His state of mind was
6 that he believed the statement, that it was
7 true.
8 MR. BEVERE: No, that's not --
9 that's not true. That's not true.
10 JUDGE CURRAN: He took it as true.
11 Or else, if he didn't take it as true, then he
12 would have had other things to do.
13 MS. SMITH: Right.
14 MR. PARIS: He didn't make a
15 judgment as to whether it was true. This is
16 what he had.
17 JUDGE CURRAN: With all due
18 respect, if he didn't make a judgment, where
19 does the argument go that they did what they
20 could to investigate? And if people said, "No,
21 I didn't do anything," "No, I wasn't there,"
22 "No, I didn't see anything," there was no place
23 else for them to go.
24 MR. PARIS: This is what he had.
25 MR. BEVERE: But this -- this is
112
1 what -- the point is that this is what he had to
2 go on. And the question is going to be: If you
3 are doing an investigation and there is going to
4 be a critique that you that you didn't make an
5 arrest of somebody, one of you -- the reasons
6 you didn't make an arrest is because none of the
7 witnesses were able to say, yeah, he did it, he
8 did it, he did it, he did it. So he is not
9 getting information he needs to make an arrest.
10 JUDGE CURRAN: Okay. But the
11 basis for that argument is he believed that what
12 those witnesses were saying was truthful. He
13 was not --
14 MS. SMITH: Or else he could have
15 charged them.
16 JUDGE CURRAN: He was not saying,
17 "Give me a break; I know you were out in the
18 parking lot" or -- I mean, it is certainly being
19 offered for that purpose.
20 MR. BEVERE: Judge, and I -- I
21 could not disagree more that's the purpose it's
22 being offered for. I don't think this detective
23 is vouching for the truth of --
24 JUDGE CURRAN: Okay.
25 MR. BEVERE: Of --
113
1 JUDGE CURRAN: Okay. Then, if we
2 look at it the other way, if he didn't believe
3 them, because it's just as likely, then, that he
4 didn't believe them, what more did he do?
5 MR. BEVERE: Judge, listen, I -- I
6 understand what you are saying. And here --
7 this -- this detective -- in fact, the entire
8 Detective Bureau is in a position where they
9 have this investigation for limited period of
10 time and they're trying to get information.
11 Now, if somebody else came in
12 later on and said, "My" -- "Yeah, I saw Mike
13 Pepe in that parking lot," then you would bring
14 Mike Pepe back in and say, "Mr. Pepe, we got
15 somebody, can't tell you who, who put you at the
16 scene; and you lied to us. Now, read your Fifth
17 Amendment rights" -- blah, blah -- "you want to
18 come clean, we can take this thing further."
19 So the point here is that they
20 are -- they are relying upon information that
21 comes in as to where this information is going,
22 who they're going to interview, who they're
23 going to talk to. I mean -- and it -- it all --
24 it's nothing to do with them -- him saying, "Oh,
25 I believe this person. I believe that person."
114
1 There is nothing to do -- it's a question of
2 what -- information coming in and what can I do
3 about that at this point in time.
4 JUDGE CURRAN: But then you can't
5 have him read it into the record. There are
6 other ways to address that question. But that's
7 back to where we were before. Giving you that
8 argument, okay, fine, there are ways you can
9 address it; but you can't address it by reading
10 it -- by having him read into the record, "Sam
11 Smith said this to me." You just can't; it's
12 just not proper.
13 Okay. I am going to -- I will
14 note your strong objection on the record.
15 MR. BEVERE: It's very --
16 JUDGE CURRAN: Why don't we let
17 the jury take their morning break and, you know,
18 then we'll come back. Okay. Thank you.
19 (Whereupon, sidebar discussion is
20 concluded.)
21 JUDGE CURRAN: Ladies and
22 Gentlemen, if you would like to take the morning
23 break, if you would be back in 15 minutes, we'd
24 appreciate it.
25 Go off the record. Thank you.
115
1 COURT CLERK: Off the record.
2 JUDGE CURRAN: Thank you.
3 (Whereupon, the jury is excused.)
4 (Whereupon, a brief recess is
5 taken.)
6 COURT CLERK: On the record.
7 JUDGE CURRAN: Thank you. Mr.
8 Bevere.
9 MR. BEVERE: Yes, the only other
10 point I would make, Your Honor, is this. This
11 morning we moved into Evidence the statements of
12 Richie Johnson and three statements of Frank
13 Walters. So there are statements to the police
14 that are in Evidence in this case. So I
15 would -- I would argue that to the extent that
16 the police were provided with information and
17 relied and considered upon that information in
18 the course of the investigation, I -- actually,
19 just repeat what I said earlier. I want to note
20 for the record the statements of Richie Johnson
21 and Frank Walters came into Evidence this
22 morning without objection.
23 MR. MULLIN: Judge, obviously,
24 this is a huge difference between what comes in
25 in my case as party admissions or statements by
116
1 employees made within the scope or agents made
2 within the scope in the defense case. So we
3 have to analyze this from the standpoint of
4 defense case, which is what is this other than
5 hearsay. These aren't party admissions. They
6 are just hearsay.
7 Now, counsel made the point he
8 should be allowed to this ask this witness, you
9 know, about his state of mind, he is
10 interviewing these people, he is not getting
11 anywhere. That is fair game. I think Your
12 Honor indicated that did he learn anything? Did
13 anybody admit anything?
14 And the witness is here. But you
15 know, it's okay. He is an experienced police
16 officer. I am sure he has heard these arguments
17 before.
18 So, Your Honor, I don't have any
19 problem with them asking this witness those sort
20 of questions. The case law is -- is clear that
21 you can't -- you can't use a witness just to get
22 in hearsay testimony. I don't have a way to
23 cross-examine these people whose -- these
24 lengthy statements are being read. I allowed a
25 few just to show the process of taking a
117
1 statement.
2 So, Your Honor, I think where I
3 believe you were heading or what your ruling was
4 all right, which is you can't just read these
5 witness statements; but he can talk about state
6 of mind, having interviewed them. I think
7 that's the line that has to be drawn.
8 JUDGE CURRAN: Which is what I
9 thought I said at sidebar; but I, obviously,
10 didn't say it totally.
11 With all due respect, Mr. Bevere,
12 I think, unless there is something different
13 that you want to add --
14 MR. BEVERE: Yeah, I want to say,
15 first of all, I disagree that what I'm doing
16 here is putting in hearsay. It's not being
17 offered for the truth of the matter being
18 asserted. I can't state that enough. It's not
19 being offered for truth of the matter being
20 asserted.
21 With regard to this witness'
22 state of mind or the detective -- information
23 that was provided to the Detective Bureau in
24 general, which they relied upon, I mean, I
25 understand Your Honor's ruling is you don't want
118
1 me to have him read from the statement; but I
2 think I need to ask him if he asked them. Did
3 you ask Veronica Vega, did she hear anything?
4 Did you ask her, did she see anything? What did
5 she tell you? Did you ask her where she was?
6 What did she tell you?
7 JUDGE CURRAN: And what's the
8 point of asking -- what's the point of asking
9 those questions?
10 MR. BEVERE: Because it goes to
11 what information the Detective Bureau had to
12 base their investigation on.
13 JUDGE CURRAN: Exactly.
14 MR. BEVERE: That's what it comes
15 down to.
16 JUDGE CURRAN: And it's offered
17 for the truth of what information they had, not
18 the underlying truth of what the people said.
19 If he had -- you know, to take it to extreme, if
20 he had asked Mr. Snyder, Sr. or Jr. but Snyder,
21 "Were you there that night" and it was just left
22 that way, that would be offered for the truth of
23 what Mr. Snyder told him and what he did or then
24 didn't do to follow up. That's exactly why it's
25 offered for the truth of what they said to him,
119
1 having -- the truth that this is what they said
2 to him and this is what he believed.
3 MR. BEVERE: But -- but --
4 JUDGE CURRAN: Not the underlying
5 truth as to whether or not they lied. They
6 could have been lying to him, but it's offered
7 for the truth of this is what they said to him.
8 MR. BEVERE: But -- but Judge, the
9 witness is allowed to tell us what it was that
10 was told to him, as long as he is not offering
11 it to show the truth of the content. In other
12 words, if Mr. Snyder said to him, "I wasn't
13 there that night" and I wanted to offer that
14 statement to this witness to prove that Snyder
15 wasn't there that night, that would be hearsay.
16 But if I wanted to use that statement to show
17 that this witness didn't have a basis to arrest
18 Snyder because he said he wasn't there, that's
19 not being offered for the truth of the matter
20 being asserted because he is not vouching for
21 Snyder's credibility.
22 If someone came in and
23 contradicted it and said he was there that
24 night, he was there that night, then there would
25 be things that this detective could do. But
120
1 we're not offering it for the truth of who was
2 inside, who was outside.
3 JUDGE CURRAN: No, it's being
4 offered for truth of this is the basis on which
5 the detectives made their decisions and
6 proceeded.
7 MR. BEVERE: Right, Judge. And my
8 understanding, that is not -- that is not
9 hearsay because I am not offering it for the
10 truth of the content of the statement. In other
11 words, I am -- I am not here to offer the truth
12 of what declared is saying.
13 JUDGE CURRAN: I understand.
14 MR. BEVERE: I am offering it to
15 show what was told to this witness and which he
16 relied upon.
17 JUDGE CURRAN: But you're offering
18 it for the truth of -- because this is the kind
19 of case that it is and because it is
20 fact-sensitive, you are offering it for the
21 truth of this is what was said to this witness,
22 correct?
23 MR. BEVERE: Judge, I'm offering
24 it for the fact that, yes, this is what was told
25 to this witness. But that's not hearsay.
121
1 Hearsay would be if I was offering it for the
2 truth of what was being said by the witness.
3 MR. PARIS: Can I just try to
4 clarify, just so I can clarify on behalf of the
5 defense? Is Your Honor -- just so I understand,
6 Your Honor is allowing the witness to say, "This
7 is what I was provided"; but you are just not
8 allowing him to read verbatim the statements?
9 JUDGE CURRAN: A, he is not going
10 to be able to read verbatim. And B, depending
11 on the questions and how they're asked, he can
12 exactly be asked about his state of mind. He
13 can be asked about what is on --
14 MR. PARIS: Information?
15 JUDGE CURRAN: And what was the
16 basis for his decision? That's what I said all
17 along. He just can't do it this way. I'll note
18 the continuing objection.
19 Okay. Shall we bring out the
20 jury?
21 MR. BEVERE: Judge, can I talk to
22 Mr. Paris?
23 JUDGE CURRAN: Sure. We will stay
24 off -- go off the record. Thank you.
25 COURT CLERK: Off the record.
122
1 (Whereupon, a discussion is held
2 off the record.)
3 JUDGE CURRAN: Back on the record.
4 We will bring out the jury, thank you.
5 COURT CLERK: Thank you.
6 MS. HAWKS: Jurors are
7 approaching.
8 (Whereupon, the jury is brought
9 into the courtroom.)
10 JUDGE CURRAN: Thank you. Sir,
11 I'm required to remind you that you are sill
12 under oath.
13 THE WITNESS: Yes, Your Honor.
14 JUDGE CURRAN: Thank you. Mr.
15 Bevere.
16 MR. BEVERE: Thank you, Your
17 Honor.
18 BY MR. BEVERE:
19 Q I'm sorry, Detective, you have a
20 statement and a waiver in front of you? Whose
21 is that?
22 A I do. Michael Pepe's.
23 Q Okay. And if I asked this before
24 the break, I apologize. Mr. Pepe voluntarily
25 came down to the Department?
123
1 A He did.
2 Q And did you take a statement from
3 him?
4 A I did.
5 Q And did you ask him to -- did you
6 read him his Constitutional rights?
7 A I provided him with that SPD-71
8 Constitutional Rights Advisory Form which
9 explains that all to him.
10 Q And did he sign it?
11 A He did.
12 Q And did you ask any questions
13 about the events of that night?
14 A I did.
15 Q Now, did Mr. Sesty tell you
16 whether he had any information about what had
17 happened that night?
18 A Mr. Pepe?
19 Q Yes. You can look -- don't read
20 the statement --
21 A Understood.
22 Q -- but you can look over the
23 statement.
24 A Can you repeat the question about Pepe?
25 Q My question to you was: Did
124
1 Mr. Pepe -- talking about Sesty or Pepe?
2 JUDGE CURRAN: It's up to you.
3 You were on -- I'm sorry.
4 MR. BEVERE: I think I'm
5 vacillating between Sesty and Pepe.
6 JUDGE CURRAN: The 71 that was
7 last --
8 MR. BEVERE: Judge, I will look at
9 the statement; it will make it much easier.
10 Pepe. Okay. I apologize. They sound the same.
11 I was --
12 BY MR. BEVERE:
13 Q Okay. Did Mr. Pepe provide you
14 with any information that led you to conclude or
15 to be able to conclude as to who did or said
16 what on that night?
17 A No, he didn't.
18 Q Did Mr. Pepe tell you whether he
19 had any knowledge of the incident?
20 A He did.
21 Q What did he tell you?
22 A He had no idea.
23 Q Moving on to -- I'm sorry,
24 Mr. Pepe signed his statement?
25 A He did.
125
1 Q I believe the next statement that
2 we talked about was that of Mr. deVries. You
3 took -- oh, I'm sorry, I missed one. I am going
4 to show you D-24 and D-25. Can you tell us what
5 those are, please?
6 A Yes, D-25 is, again, that SPD-71
7 Constitutional Rights Advisement Form. And D-24
8 is a formal statement from Veronica Vega.
9 Q And what was your understanding as
10 to who Veronica Vega was?
11 A She was a girlfriend, I believe, of
12 Michael Pepe.
13 Q And did you have an understanding
14 of whether she was present at the North End
15 Firehouse that night?
16 A Yes, she was at that function, yes.
17 Q And did Miss Vega to your
18 knowledge come to the Department voluntarily to
19 give a statement?
20 A She did.
21 Q And did you ask her to read the
22 Constitutional rights form and have her sign it?
23 A I did.
24 Q And did she agree to waive those
25 rights and speak to you?
126
1 A She did.
2 Q Did Miss Vega give you any
3 information upon which you were able to conclude
4 who did what on that evening?
5 A No, she didn't.
6 Q Did Miss Vega tell you whether she
7 had any knowledge of what happened?
8 A She did.
9 Q What was her response?
10 A That she had no information, basically.
11 Q You also took statement of Peter
12 deVries --
13 A I did.
14 Q -- that night? Okay. I want to
15 talk about that for a second. If I can have
16 Miss Vega's statement. I'm sorry, I meant to
17 ask you, Miss Vega signed her statement?
18 A She did.
19 Q I am going to show you what's been
20 marked as D-27 and D-28 and ask you if you can
21 identify that?
22 A Yes, I can.
23 Q And what is that?
24 A That's Mr. deVries' formal statement.
25 Q All right. Did you personally
127
1 take Mr. deVries' statement?
2 A I did.
3 Q Okay. You did not or did you ask
4 Mr. deVries to sign a Constitutional rights
5 waiver?
6 A No, I did not.
7 Q Why would that be?
8 A He is the -- our victim.
9 Q And is it the policy not to have
10 victims sign Constitutional rights wavers?
11 A Absolutely.
12 Q Now, with regard to the statement
13 of Mr. deVries, does the statement indicate on
14 what time you began your interview with
15 Mr. deVries?
16 A Yes, it does.
17 Q What time was that?
18 A 2206.
19 Q Which would be what time?
20 A 10:06 p.m.
21 Q Does Mr. deVries' statement
22 indicate at what time he signed his statement?
23 A Yes, it does.
24 Q What time did he sign his
25 statement?
128
1 A 10:45 p.m.
2 Q Okay.
3 MR. MULLIN: Your Honor, can we
4 have a brief sidebar?
5 JUDGE CURRAN: Sure.
6 (Whereupon, the following sidebar
7 discussion is held.)
8 MR. MULLIN: The defendants made
9 an in limine to exclude all references to prior
10 noise complaints and drinking complaints, and I
11 just realized this has a question and answer on
12 that question. And the answer is, "Because of
13 prior noise complaints that we have made and Tim
14 actually going outside asking them to be quiet
15 during their drunken brawls." Your Honor
16 granted that motion, so I didn't have Tim Carter
17 or Peter deVries testify about that. So that,
18 obviously, has to be redacted from this
19 document. Shouldn't be shown.
20 JUDGE CURRAN: What line?
21 MR. MULLIN: That's -- I will hold
22 the document up, Your Honor. It is the question
23 and answer.
24 JUDGE CURRAN: Okay. Mr. Bevere.
25 MR. BEVERE: Judge, I -- you know,
129
1 we may have to check the record. My
2 understanding was he did read that. I thought
3 he did read it. But I don't -- as we are
4 standing here right now, but I thought -- I
5 thought that he did read that as part of his
6 statement.
7 MR. MULLIN: We could check that.
8 I don't recall.
9 MS. SMITH: There is other -- lots
10 of other evidence of noise and drinking and
11 drunkenness complaints that we have not put in
12 in our case because of your in limine ruling.
13 MR. MULLIN: If it came in
14 inadvertently -- if it came in inadvertently
15 without objection from the defendants, so be it.
16 I don't recall one way or the other. But I'm
17 objecting now.
18 MR. BEVERE: I won't have him -- I
19 won't have him read that portion of his
20 statement.
21 MR. PARIS: Then I won't put it up
22 there.
23 MR. BEVERE: That's fine. We
24 won't put it up, fine. Thanks.
25 (Whereupon, sidebar discussion is
130
1 concluded.)
2 BY MR. BEVERE:
3 Q Okay. I apologize, Detective. I
4 think the last question I asked you was what
5 time Mr. deVries signed this statement?
6 A Yes.
7 Q What time was that?
8 A 10:45 p.m.
9 Q Okay. Can you tell us the process
10 or the procedure that you used to take
11 Mr. deVries' statement?
12 A It's the same as we do anyone else. When
13 a person first comes in, we'll sit down with
14 them, get their name, their address, get a basic
15 idea of what went on there, especially since I
16 wasn't present at the time. We're only going by
17 what people -- the information that we're
18 bringing in. So we will get a brief idea what's
19 going on, and then we get right into asking him
20 the questions and then typing his responses.
21 Q All right. So did you personally
22 type Mr. deVries' statement?
23 A I did.
24 Q Okay. Was that with your two
25 fingers?
131
1 A It was with two fingers.
2 Q Now, did you audiotape or
3 videotape your interview with Mr. deVries?
4 A I did not.
5 Q And was it the policy of the
6 Secaucus Police Department at that time to audio
7 or videotape interviews with victims?
8 A No.
9 Q Is it the policy today?
10 A No, it's not.
11 Q Do we audio or -- does -- the Town
12 of Secaucus Detective Bureau, do we audio or
13 video any statements today?
14 A Yes, we do.
15 Q And under what circumstances do we
16 do that?
17 A Only on suspects, basically.
18 Q Okay. So the -- would that be an
19 audio or video?
20 A It's both.
21 Q It's both?
22 A It's both. And we also type it.
23 Q And you do a typed statement, as
24 well?
25 A At the same time, yeah.
132
1 Q Well, why is it the policy
2 currently, if you know, that we audio and video
3 suspects' statements?
4 A About a year ago the Hudson County
5 Prosecutor's Office required that. They advised
6 us from that point on any time we'd take a
7 suspect's statement, we're going to audio and
8 video it.
9 Q Okay. And do you have an
10 understanding as to why they want that done?
11 A I guess that way, when it goes to trial,
12 the suspect can't say we altered anything or
13 changed anything.
14 Q In other words, when the person is
15 giving a confession --
16 A Correct.
17 Q -- you want a video recordation of
18 that confession for court?
19 A Correct.
20 Q But today is it the policy of the
21 department to audio or video witness or victims'
22 statements?
23 A We don't do that, no.
24 Q Now, with regard to Mr. deVries
25 there were questions that you asked as to
133
1 whether or not he could identify anyone
2 involved?
3 A Correct.
4 Q And as you're sitting here today
5 do you have a recollection of what, if anything,
6 Mr. deVries indicated to you about whether he
7 could identify people or not?
8 A He said he could not.
9 Q Did the issue of a voice
10 recognition come up with regard to Mr. deVries?
11 A No, it did not.
12 Q Did you ask him if he could
13 recognize anyone by voice?
14 A I asked him, "Can you recognize anyone
15 involved in the incident?"
16 Q But did you ask him --
17 MR. MULLIN: Objection, Your
18 Honor. Can we be heard sidebar?
19 (Whereupon, the following sidebar
20 discussion is held.)
21 MR. BEVERE: Was going to be more
22 specific in my next question, but we can do the
23 objection.
24 MR. MULLIN: Your Honor, this is a
25 witness who testified that he had absolutely no
134
1 present recollection of what was in his report
2 and so he read most of his report. Now he is
3 purporting to have a recollection of some
4 conversation that is most definitely not in the
5 original, underlying report that this
6 examination started with. There is nothing
7 about voice recognition. There is nothing about
8 asking him whether he could or could not
9 recognize according to voice. So I ask that all
10 this be stricken.
11 It's -- it's completely
12 inconsistent with what he said before, and I
13 don't understand the foundation for it. This is
14 a witness who has -- that is really my
15 objection, is lack of foundation because this
16 witness testified he has no present recollection
17 of what's in his report. So, therefore, how
18 could he possibly be recalling something? And
19 everything has to have a foundation. He is not
20 competent to testify about this.
21 JUDGE CURRAN: Mr. Bevere.
22 MR. BEVERE: Well, I did show him
23 the statement and have him look at the
24 statement. I had him -- not his statement. I
25 showed him Mr. deVries' statement, had him look
135
1 at Mr. deVries' statement and identify it. I
2 could certainly ask him if he has any
3 recollection as he is sitting here today of
4 anything that Mr. deVries said while they were
5 in the interview room.
6 MR. MULLIN: Wait. I am talking
7 about the original police report that this
8 gentleman wrote where he talks about
9 interviewing deVries. And he has testified that
10 he had no present recollection and therefore had
11 to read this report. So therefore, there is no
12 foundation for him now testifying about his
13 recollections about what happened when he
14 interviewed Peter deVries. He testified he has
15 no recollection. There is no foundation for
16 this testimony. And to the extent he has
17 ventured into it, it should be stricken.
18 MR. BEVERE: I will withdraw the
19 question and move on.
20 JUDGE CURRAN: Okay.
21 MR. MULLIN: Thank you.
22 JUDGE CURRAN: Thank you. Another
23 one? You ask that it be stricken. At this
24 point I don't -- well, I'll listen to the
25 arguments about why it should be stricken. I
136
1 understand the basic argument, but my concern is
2 that I'll over emphasize it inadvertently.
3 MR. MULLIN: That is a problem.
4 That is the problem I have been put in. So I
5 understand your ruling, and we'll move on.
6 MR. BEVERE: Thank you, Judge.
7 We'll move on.
8 (Whereupon, sidebar discussion is
9 concluded.)
10 BY MR. BEVERE:
11 Q Okay. Detective, if I could have
12 the statement back, please.
13 A Sure.
14 Q Thank you. Detective, I'm going
15 to show you what has been marked as D-33 for
16 Identification and ask you if you could identify
17 that for the record?
18 A That's a supplemental police report I had
19 left on 4/28 of '04.
20 Q Okay. And in that supplemental
21 police report do you list the things that you
22 did on 4/28 and the times that you did them?
23 A Yes.
24 Q Okay. And as you are sitting here
25 today, without looking at that statement can you
137
1 tell us what you did on 4/28 and the times that
2 you did them?
3 A Not exactly, no.
4 Q Do you need to look at your report
5 to refresh your recollection as to what you did?
6 A I would.
7 Q Okay. 4/38 -- I'm sorry, 4/28/04
8 it says, "1340 hours." What time would that be?
9 A That's 1:40 p.m.
10 Q And at that point what did you do
11 at 1:40 p.m. on 4/28?
12 A Taken a formal statement from Richard
13 Johnson.
14 Q Now, I have a question for you.
15 You said 1:40 hours?
16 A Yes.
17 Q And my understanding was at the
18 time you were working from 4 to midnight?
19 A Correct.
20 Q All right. Do you know why you
21 would have -- do you remember why -- as you are
22 sitting here today do you have an understanding
23 as to why you would have taken a statement at
24 1:40, if your hours were 4 to midnight?
25 A We had changed our hours to try to get
138
1 everybody in and obtain interviews from people.
2 Q And at whose instruction or
3 direction would you have taken Mr. Johnson's
4 statement?
5 A Captain Buckley's .
6 Q And at 1523 hours -- what did you
7 do at 1523 hours? And by the way, would that be
8 3:23?
9 A P.m., yes.
10 Q Okay. And what did you do at that
11 time?
12 A Chief Walters came in and gave me a
13 statement about the incident.
14 Q Okay. And then what did you do?
15 A And then, at 3:52 p.m., 1552 hours, Katya
16 Gonzalez came in and gave a formal statement.
17 Q You can keep going.
18 A Then, 1620, which is 4:20, Chief Walters
19 responded back, at which time I obtained another
20 statement from him.
21 And then, at 1714 hours, which is 5:14,
22 Chief Rob Parisi responded and gave me a formal
23 statement.
24 And then, at 1758, which is 5:58, Chief
25 Cieciuch came in.
139
1 And then, at 6:34 Mrs. Hjelm came and
2 gave me a statement.
3 Q Thank you. Now, Detective, I just
4 want to start with Richard Johnson. What is
5 your understanding as to who Richard Johnson
6 was?
7 A He is a fireman.
8 Q Did you have an understanding as
9 to whether or not he was at the North End
10 Firehouse that night?
11 A Yes, he was at the -- the firehouse when
12 the whole thing had happened, yeah.
13 Q And I'm going to show you what we
14 have marked as D-34, D-37 and ask you if you
15 could identify them?
16 MR. MULLIN: D-34 and D-35?
17 MR. BEVERE: D-34, 35, 36 and 37.
18 MR. MULLIN: Oh, okay. Thank you.
19 BY MR. BEVERE:
20 A Yes, D-34, D-35, D-36 is a formal
21 statement taken from Richard Johnson. And D-37,
22 again, that's that Constitutional Rights
23 Advisement/Waiver Form --
24 Q Okay.
25 A -- for him.
140
1 Q So was Mr. Johnson requested to
2 come in and give a statement?
3 A He was.
4 Q And when he came in, you advised
5 him of his Constitutional rights?
6 A I did.
7 Q And he signed the form?
8 A He did.
9 Q And he agreed to give you a
10 statement?
11 A Yes.
12 Q And he did?
13 A Yes.
14 Q You can look at the statement to
15 refresh your recollection if you need to. Did
16 Mr. Johnson provide you with any information
17 from which you were able to conclude who did or
18 said what that evening?
19 A I don't think he did, no.
20 Q The -- well, let me ask you, did
21 he -- do you have a recollection as to whether
22 or not he indicated to you that he had any
23 knowledge of who was making any antigay remarks
24 or threats that night?
25 A I don't think he did, no.
141
1 Q Now, you also talked about -- you
2 also testified about Chief Walters. What is
3 your understanding as to who Chief Walters was?
4 A At the time Chief Walters -- there is
5 three fire chiefs at any given time for the Fire
6 Department. Chief Walters was the head Fire
7 Chief.
8 Q And did you have an understanding
9 when Chief Walters came in as to whether or not
10 he had been present at the North End Firehouse
11 that night?
12 A At that time basically there was no
13 indication that any of the fire chiefs at all
14 were at that firehouse. And that's based on the
15 police officers that had responded that -- that
16 night.
17 Q As you are sitting here today do
18 you have a recollection as to why you were
19 instructed or your understanding as to why you
20 were instructed to interview Chief Walters?
21 A Yes.
22 Q And what was that understanding?
23 A Basically, Captain Buckley had advised me
24 to -- basically, he told me there was a meeting
25 Sunday, I guess in the morning, after the
142
1 incident and at that meeting there were certain
2 people present to discuss the activity that
3 happened that night, the incident. And someone
4 at that meeting made a derogatory statement, so
5 the question -- what I was asked to do was try
6 to get to the fire chiefs to find out if the
7 statement was made and who made those
8 statements.
9 Q And did Frank Walters, Fire Chief
10 of Secaucus come in voluntarily and give you a
11 statement?
12 A Yes, he did.
13 Q I am going to show you what's been
14 marked as D-38 and 39, ask you if that's the
15 statement?
16 A Yes, it is.
17 Q Okay. And did you ask -- first I
18 will let you have the statement in front of you.
19 Did you ask Chief Walters whether he had any
20 knowledge as to who had made any antigay remarks
21 or threats?
22 MR. MULLIN: Your Honor, can we
23 just have one of those foundational questions as
24 to the witness' recollection because I know --
25 JUDGE CURRAN: Sustained.
143
1 MR. BEVERE: That's fine. I'm
2 sorry, Your Honor.
3 JUDGE CURRAN: Thank you.
4 MR. BEVERE: I apologize.
5 BY MR. BEVERE:
6 Q As you're sitting -- as you're
7 sitting here today, Detective, do you have an
8 independent recollection of what Chief Walters
9 told you?
10 A No, I don't.
11 Q Do you need to look at his
12 statement to refresh your recollection?
13 A I would.
14 Q And you can do that. Did you ask
15 Chief Walters whether or not he had had any
16 knowledge or anything had been -- let me ask it
17 this way. Whether he had any knowledge as to
18 who made -- who may have made any antigay
19 statements or threats on the early morning hours
20 of April 25th, 2004?
21 A I did.
22 Q And did he have any information?
23 A No.
24 Q He -- did you ask him in this
25 initial statement as to whether or not he had
144
1 any knowledge of any antigay statement being
2 made in that meeting on the early morning
3 hours -- not -- I'm sorry, let me rephrase the
4 question.
5 Did you ask him whether or not he had
6 any knowledge of anyone making an antigay remark
7 at the meeting that was held later in the
8 morning on Sunday at the municipal building?
9 A I believe I did, yes.
10 Q Okay. And if you need to look at
11 your report to refresh your recollection as to
12 what, if any, information he told you, you can
13 go ahead and do that.
14 A The question I had asked him was what was
15 said at the --
16 JUDGE CURRAN: That's --
17 MR. BEVERE: Excuse me?
18 JUDGE CURRAN: I just don't want
19 him to read from his report.
20 MR. BEVERE: I think these reports
21 have already been put into Evidence.
22 JUDGE CURRAN: I understand that,
23 but I just want to make sure that's your
24 question.
25 MR. BEVERE: Oh, thank you, Your
145
1 Honor.
2 JUDGE CURRAN: Because he is
3 starting to read.
4 MR. BEVERE: Okay.
5 JUDGE CURRAN: I'm not sure.
6 BY MR. BEVERE:
7 Q Did you give a question to Chief
8 Walters about whether or not he had heard a
9 statement made at the meeting on April 25th that
10 could be construed to be an antigay statement?
11 A Yes, he did.
12 Q Did he give you a response to
13 that?
14 A Yes, he did.
15 Q Could you tell us the question
16 that you asked him and what his response was?
17 A The question I had asked him was, "Did
18 anyone stand up and say, 'you are going to
19 believe those cock-suckers over me' at the
20 meeting?"
21 And his answer was, "Not in my
22 presence."
23 Q Okay. Now, you asked a very
24 specific question. "Are you going to believe
25 those cock-suckers over me?" As you are sitting
146
1 here today do you know where you got that
2 information from as to that being the statement
3 that was said?
4 A Captain Buckley.
5 Q As you are sitting here -- you
6 want to look at Chief Walters statement -- what,
7 if any, information did Chief Walters have about
8 the -- about the incident that had occurred the
9 night before? Not about the meeting but the
10 incident that had occurred in the early morning
11 hours of April 25th.
12 A Basically what he told me was that --
13 just what he heard, not officially, that there
14 was a rumor of words being said at that
15 firehouse.
16 Q And what did he tell you?
17 A That someone supposedly said, "Shut up,
18 you fucking faggot. Shut up, you cock-sucker"
19 and that no names were attached to what those --
20 you know, whoever said those words.
21 Q Okay. So he was not able to tell
22 you at that point in time as to who had said
23 those words, just that he had heard that those
24 words were said?
25 A Correct.
147
1 Q And that was recorded in his
2 statement, which he signed?
3 A Yes, it was.
4 Q Now, you also talked about
5 interviewing a Katya Gonzalez. And I'm going to
6 show you what's been marked D-40 through 42 and
7 ask you if you could recognize what that is?
8 A Yes, D-40 and D-41 is a formal statement
9 I have -- that I had taken from Katya Gonzalez.
10 And again, that D-42 that is that Constitutional
11 Rights Advisory Waiver Form.
12 Q And what is your understanding as
13 to who Katya Gonzalez was?
14 A She was one of the fireman's dates,
15 girlfriend, I believe.
16 Q Did you have an understanding as
17 to whether or not she was at the North End
18 Firehouse that night?
19 A Yes, she -- I was advised she was there.
20 Q Okay. And did she voluntarily
21 come to the Department?
22 A She did.
23 Q And did you give her the
24 Constitutional Rights Waiver Form to sign?
25 A I did.
148
1 Q And did she sign it?
2 A She did.
3 Q And she agreed to speak to you?
4 A Yes.
5 Q Did she give you any information
6 as to who said or did what that evening?
7 A I don't think so.
8 Q Do you want to look at the
9 statement to refresh your recollection?
10 A Yeah, she said she has no information
11 regarding.
12 Q All right. I'm going to show you
13 what's been marked as D-43 and D-45. And I'll
14 ask you to look at it, and I'll also ask you to
15 read the whole statement before I ask you
16 questions -- actually, before I ask you the
17 questions, let me -- let me ask you this.
18 Your report you referred to earlier
19 said that you had taken another statement from
20 Chief Walters at 1620.
21 A Okay.
22 Q I'll show you your report to
23 refresh your recollection, if you don't have a
24 specific recollection as you're sitting here.
25 It's D-33.
149
1 A Okay.
2 Q So was this a second statement
3 that you took from Chief Walters on that day?
4 MR. MULLIN: Which document do we
5 have now?
6 MR. BEVERE: I'm sorry, it was
7 D-33 that I just referred to.
8 BY MR. BEVERE:
9 Q And as you're sitting here today
10 do you have an independent recollection of what
11 it was that you spoke to Chief Walters about in
12 that second statement?
13 A It was still about that meeting, what was
14 said.
15 Q Do you have an independent
16 recollection as to what was said?
17 A No, I don't.
18 Q Do you need to look at your
19 report --
20 A I would.
21 Q -- to refresh your recollection?
22 Can you -- not your report, but look at Chief
23 Walters' statement? Can you read his statement?
24 Not out loud, but read it to yourself before I
25 ask you questions.
150
1 MR. MULLIN: Can we have a
2 question, Your Honor?
3 JUDGE CURRAN: He is reading it --
4 MR. MULLIN: Oh, he is.
5 JUDGE CURRAN: -- to refresh his
6 recollection.
7 MR. MULLIN: To refresh?
8 BY MR. BEVERE:
9 Q And now that you have had an
10 opportunity to review the statement, do you have
11 a recollection as to -- what was the purpose
12 that you had asked Chief Walters to come back to
13 give a second statement?
14 A After I had spoken to other people since
15 he had left I wanted to go back and get more
16 detailed information on that specific meeting
17 and what happened at that meeting from him.
18 Q Okay. And did he provide you more
19 specific information?
20 A He had. He had.
21 Q Now, the statement, Detective, is
22 in Evidence, so I won't burden you with the
23 details of it.
24 The -- I'll put your report back in
25 front of you, D-33. And you mentioned two other
151
1 statements, Chief Rob Parisi and Secaucus Fire
2 Chief Ray Cieciuch?
3 A Yes.
4 Q And what was the purpose of your
5 interviewing or getting statements from these
6 individuals?
7 A I was advised by Captain Buckley they too
8 might have attended that meeting, so to find out
9 what happened at the meeting.
10 Q And were either of them -- did
11 either of them provide you any information from
12 which you were able to conclude who may have
13 done or said anything antigay in the early
14 morning hours of April 25th, 2004?
15 A No.
16 Q Were they able to give you any
17 information to which you were able to conclude
18 who may have made any threats to the plaintiffs
19 in the early morning hours of April 25th, 2004?
20 A No.
21 Q Did you have an understanding as
22 to whether Chief Cieciuch and Chief Parisi were
23 at the North End Firehouse on the early morning
24 hours of April 25th, 2004?
25 A They were not there.
152
1 Q Now, I believe -- and at 6:34 you
2 took another statement, 6:34 p.m. on --
3 A Yes, I did.
4 Q If you go to your -- who was that
5 statement from?
6 A Mrs. Hjelm.
7 Q What was your understanding as to
8 who Mrs. Hjelm was?
9 A She was a neighbor and might -- and heard
10 something.
11 Q And do you recall from who you
12 learned that information from?
13 A One of the victims, I believe, had also
14 told me that too, yeah.
15 Q And you interviewed Miss Hjelm and
16 took a statement from her?
17 A Yes.
18 Q And we have that statement in
19 Evidence, as well, so I won't burden you with
20 the details of that statement.
21 Okay. I am going to show you what I
22 marked as D-54 and D-56 for Identification and
23 ask you if you can identify D-54 through 56?
24 A That is a supplemental police report I
25 completed on 4/29 of '04.
153
1 Q So the next day?
2 A Yes.
3 Q And does that police report detail
4 the things that you did in regard to this
5 investigation on that day?
6 A Yes, it does.
7 Q And that would be things that you
8 did or conversations you had with people?
9 A Correct.
10 Q And as you are sitting here today
11 do you have an independent recollection of,
12 without looking at the report, as to what you
13 did that day, who you spoke to and what they
14 said?
15 A No, I would have to look.
16 Q You would need to refer to your
17 report?
18 A Yes.
19 Q And your report was made at around
20 the time you received this information?
21 A Yes, it was.
22 Q And it was accurate when it was
23 made?
24 A Yes, it was.
25 Q Now, the first paragraph of your
154
1 report talks about something that happened the
2 previous day, 4/28/04?
3 A Correct.
4 Q Can you tell us what happened on
5 4/28/04?
6 A Yes. I got a call from a Daniel Snyder,
7 another fireman. And he said he would not be
8 coming in to speak to me.
9 Q Did you ask him to come in and --
10 and give an interview?
11 A Yes, we had.
12 Q And his response to the Detective
13 Bureau is he would not be coming in?
14 A His answer was that he wouldn't be coming
15 in until he speaks with his attorney.
16 And I asked him, "Well, who is your
17 attorney?"
18 And -- and then -- then he said, "Do I
19 need one?"
20 So one minute he was telling me, I
21 believe, he needed -- that he wants to contact
22 an attorney; and then, when I'm asking him
23 again, he is like, "Well, do I need one?"
24 Q And if a person says that they
25 want to speak to an attorney, are you allowed to
155
1 speak to them without an attorney?
2 A No, I'm not.
3 Q Now, going on, it says, "On
4 4/29/04, 1420 hours" -- what time would that be?
5 A That's at 2:20.
6 Q Okay. And can you just give us --
7 look at your report and tell us what you did at
8 2:20 on April 29th, 2004.
9 A What had happened was Captain Buckley had
10 called me earlier that day and asked me to come
11 in again early. And I did. And when I got
12 there, he advised me that I was to go speak with
13 the Mayor and the Deputy Mayor about the events
14 at that meeting that happened after the
15 incident.
16 Q Okay. The meeting at the
17 municipal building you referred to earlier?
18 A Correct.
19 Q Okay. And then did you conduct
20 interviews of the Mayor and Deputy Mayor?
21 A I had.
22 Q And as you are sitting here today
23 do you have -- you have any -- can you tell us
24 what was discussed between you and the Mayor?
25 A No, I would have to look at the report.
156
1 Q You have to look at your report?
2 And would your report be an accurate recitation
3 of that conversation?
4 A Yes, accurate.
5 Q And it would have been made at the
6 time the conversation took place?
7 A Yes.
8 Q And why don't you read us that
9 paragraph where you -- I am going to have you
10 read from the report --
11 MR. BEVERE: Judge.
12 Q -- the paragraph where you spoke
13 to the Mayor, beginning on 4/29/04.
14 MR. MULLIN: Again, just same
15 objection. If he is going to read, we should
16 just establish he has no recollection, that's
17 why he is reading.
18 JUDGE CURRAN: Sustained. Just
19 re-ask.
20 BY MR. BEVERE:
21 Q Do you have any independent
22 recollection of the conversation between you and
23 the Mayor?
24 A No.
25 Q Do you need to read from your
157
1 report?
2 A I would.
3 "On 4/29/04 at 1420 hours Mayor Elwell,
4 Deputy Mayor Reilly and the Town of Secaucus
5 Attorney Frank Leanza responded to this
6 Detective Bureau."
7 Q If you can keep your voice up
8 Detective, and read a -- a little slower.
9 A "Upon their arrival I escorted Mayor
10 Elwell and Mr. Leanza into the DB interview
11 room."
12 Q What would that be?
13 A Detective Bureau interview room.
14 Q Okay.
15 A "I then asked Mayor Elwell who was at the
16 meeting that was held on Sunday 4/25/04 at the
17 Town Hall caucus room. Mayor Elwell advised
18 that himself, Deputy Mayor Reilly, Police Chief
19 Corcoran, Fire Chief Walters, Deputy Chief
20 Cieciuch, Battalion Chief Parisi and Chucky
21 Snyder, Sr."
22 "I then asked Mayor Elwell if any other
23 person attended that meeting, and he said that
24 was it. I then asked him if Chucky Snyder, Jr.
25 or Richie Johnson was at that meeting, and he
158
1 replied that he didn't -- he didn't think they
2 were there and added that they had -- that he
3 had been going in and out of the meeting."
4 "I then asked Mayor Elwell if anyone at
5 the meeting had said, 'You're going to believe
6 those cock-suckers over me?' Mayor Elwell
7 replied that he remember the words being said
8 and added that he didn't believe it had been
9 directed at anyone. He went on to add that
10 people do curse and use words as an expletive.
11 I asked the Mayor who had said these words, and
12 he advised Chucky Snyder, Sr. I asked him in
13 what context he took the remark, and he said
14 that Snyder was saying they had cursed at them
15 and had used the words as an expletive. I asked
16 the Mayor how he took the comment, and he
17 advised that he took it as an expletive and that
18 it wasn't directed at someone."
19 Q Okay. So the Mayor told you that
20 Mr. Snyder, Sr. --
21 MR. MULLIN: Objection, Your
22 Honor. Now we have leading. He is reading a
23 document.
24 JUDGE CURRAN: Sustained.
25 BY MR. BEVERE:
159
1 Q Did the Mayor indicate to you that
2 he had heard the words, "Are you going to
3 believe those cock-suckers over me?"
4 MR. MULLIN: Objection, Your
5 Honor. This witness testified he has no
6 independent memory of this event.
7 JUDGE CURRAN: Sustained.
8 BY MR. BEVERE:
9 Q Now, Detective, did you -- your
10 report says that you interviewed the Mayor, the
11 Deputy Mayor. Did you do that together, or did
12 you separate them?
13 A Separate.
14 Q Okay. And after interviewing the
15 Mayor your next paragraph indicates a
16 conversation you had with the Deputy Mayor?
17 A Correct.
18 Q As you are sitting here today do
19 you have any independent recollection of what
20 was discussed between you and the Deputy Mayor?
21 A No, I don't.
22 Q All right. And is the recitation
23 of that conversation in your report, would that
24 have been an accurate recitation of the
25 conversation?
160
1 A Correct.
2 Q Made at or near the time you had
3 the conversation?
4 A Correct.
5 Q Can you read from -- could you
6 read from your report the nature of the
7 conversation between you and the Deputy Mayor?
8 A "After speaking to the Mayor he departed
9 our office, at which time Deputy Mayor Reilly
10 entered the interview room that was occupied by
11 Mr. Leanza and myself."
12 Q Let me ask you a quick question.
13 Do you have an understanding as to why Mr.
14 Leanza was in the room for the interview with
15 the Mayor and for the Deputy Mayor?
16 A I have no idea.
17 Q Okay. Go ahead.
18 A "I then asked Deputy Mayor Reilly who had
19 attended this meeting on Sunday. And he replied
20 that himself, Mayor Elwell, Chief Corcoran, the
21 three fire chiefs, Fire Captain Chucky Snyder,
22 Jr., First Lieutenant Daniel Snyder, Second
23 Lieutenant Richie Johnson and North End
24 Firehouse member Chucky Snyder, Sr."
25 "I then asked Deputy Mayor Reilly if
161
1 anyone at the meeting had used the words,
2 'You're going to believe those cock-suckers over
3 me?' Deputy Mayor Reilly answered by saying
4 that he had heard the words 'cock-suckers' but
5 not the comments that was said. He said that
6 everybody had been talking at the same time and
7 that was why he didn't hear the comments that
8 had been said."
9 "I then asked Deputy Mayor Reilly who
10 had said the word, and he replied that he didn't
11 recall who had said it. I then asked Deputy
12 Mayor Reilly in what context did he take the
13 words being said; and he replied that he took it
14 as being an expletive, like street slang. He
15 said that -- he said that the words were used
16 like 'Cock-sucker, we are the victims here' And
17 that they are not -- and that they had not been
18 directed at anyone. Deputy Mayor Reilly
19 and Leanza then departed the DB."
20 Q Then your report goes on to talk
21 about a conversation you had with Mr. Carter?
22 A Correct.
23 Q At what time?
24 A 1500 hours, 3 p.m.
25 Q All right. And as you are sitting
162
1 here today do you have an independent
2 recollection of the conversation you had with
3 Mr. Carter?
4 A No, I don't.
5 Q Do you need to look at your report
6 to refresh your recollection?
7 A I would.
8 Q And what's in your report, would
9 that be an accurate recitation of your
10 discussion with Mr. Carter? Would that have
11 been an accurate recitation of your discussion
12 with Mr. Carter?
13 A Yes. Sorry.
14 Q And that would have been made at
15 or near the time you and Mr. Carter had the
16 conversation, correct?
17 A Correct.
18 Q You can read to us in the report
19 as to the conversation between you and
20 Mr. Carter.
21 MR. MULLIN: Same Objection, Your
22 Honor. Establish he has no recollection in
23 order to read.
24 JUDGE CURRAN: Sustained.
25 BY MR. BEVERE:
163
1 Q Do you have any independent
2 recollection of the nature of your discussion
3 with Mr. Carter?
4 A No, I don't.
5 Q Do you need to read from your
6 report?
7 A I would. "At approximately 1500 hours
8 Mr. Tim Carter called this agency and advised me
9 that he would be responding tonight to provide
10 me with a formal statement about the incident.
11 At that time Mr. Carter explained that one of
12 his neighbors had spoken to him today asking if
13 he had trouble over the house. Mr. Carter said
14 that his neighbor advised him that she had not
15 been home that evening and had been at a
16 funeral. Mr. Carter advised that he didn't know
17 the name of the woman but that she resides in a
18 brick house on the corner. Mr. Carter advised
19 that he feels embarrassed over this incident.
20 He said that he knows the firemen are coming
21 after him and Peter and that he knows they will
22 get revenge on them and that they are very rowdy
23 people. He added that they are an organization
24 and that he and Peter is in fear and that they
25 had been run out of Town."
164
1 Q Is that -- could you read that --
2 is in -- if you can go back and read the
3 sentence --
4 A Yes. "He added that they are an
5 organization and that he and Peter is in trouble
6 and that they had been run out of Town.
7 Mr. Carter advised" --
8 Q You can keep going.
9 A "Mr. Carter advised that he is even
10 afraid to move into another Town as a result of
11 what happened. Mr. Carter also advised that he
12 is afraid when Fridays and Saturdays come, for
13 fears that those involved would go and get drunk
14 somewhere and retaliate. I advised Mr. Carter
15 that his residence is on a priority check and
16 that he should contact this agency immediately
17 for any assistance. I advised him that I would
18 speak further" -- "that we would speak further
19 when he responds to this agency."
20 Q Okay. Now, the next portion of
21 your report talks about 1900 hours, 7:00 p.m.?
22 A Correct.
23 Q Now, can you -- why don't you take
24 a look -- why don't you read that paragraph, and
25 I will ask you some questions. Not out loud,
165
1 but read it to yourself. Okay?
2 A Okay.
3 Q Can you tell us what you did at
4 7:00 p.m.?
5 A I had asked Chief Parisi to come back in.
6 Q Who was Chief Parisi again?
7 A He is one of the fire chiefs. I believe
8 he was the second in command at that time.
9 Q And what was the reason that you
10 wanted Chief Parisi to come back to the
11 Detective Bureau?
12 A After -- now that we had spoken and -- to
13 the Mayor and the Deputy Mayor and had been
14 given a name of who had said those words at that
15 meeting that had taken place, I wanted to get
16 them back in -- well, Chief Parisi at that time
17 to find out, to, you know, revisit that and see
18 if, now that we had given him the name, if he
19 had remembered more details about the incident.
20 Q And now, in your report did you --
21 well, let me ask you the question. Did you
22 indicate to Chief Parisi that you knew the
23 statement had been said?
24 A Yes.
25 Q All right. Did you tell him who
166
1 said it?
2 A I don't remember.
3 Q Want to look at your report and
4 see?
5 A I never told him who said it at that
6 point, no.
7 Q But you told him that you knew the
8 words had been said?
9 A Correct.
10 Q Did he give you any -- well, did
11 you ask him or -- sorry. So I don't run afoul
12 of a leading objection, what, if anything, did
13 you ask him in regard to the statement? And you
14 can look at your report, if you need to.
15 A I asked him if he remembers who said the
16 words, "You're going to believe those
17 cock-suckers over me?"
18 Q And what did he say?
19 A He said he doesn't remember and that
20 everybody was talking at the same time.
21 Q Okay. Then the next paragraph you
22 talk about a conversation with Captain Rozansky?
23 A Yes.
24 Q All right. And what was the
25 nature and purpose of that conversation? And
167
1 you can refer to your report, if you need to.
2 A I went up to Captain Rozansky to remind
3 him -- well, I advised him of Mr. Carter's
4 contact to me, that they are in very much fear
5 of retaliation. So I went to Captain Rozansky
6 to remind him that the victims' residence was on
7 a priority check and that the patrol officers
8 and their supervisors have to remain vigilant.
9 Q And that was the conversation that
10 you related to us earlier between you and
11 Mr. Carter --
12 A Yes.
13 Q -- earlier in your report?
14 A At around 3 p.m. I think it was.
15 Q Okay.
16 A Yes.
17 Q And then you talk about 7:15.
18 What, if anything, did you -- did you do or have
19 done at 7:15 p.m.?
20 A At 7:15 I had dispatched a police officer
21 to some of the firemen's houses that were not
22 getting back to us. We were leaving messages at
23 their houses and not getting returned calls
24 back.
25 Q And who was the officer that you
168
1 dispatched?
2 A Elphick.
3 Q And where did you send Patrol
4 Officer Elphick?
5 A I had sent her to the Maxwell house, the
6 Mutschler residence the Mondadori residence.
7 Q And did Patrol Officer Elphick
8 report back to you?
9 A Yes, she did.
10 Q And was she successful in reaching
11 anybody at those residences? Let me ask you
12 this question: Do you have an independent
13 recollection of your --
14 A I don't.
15 Q -- Patrol Officer Elphick?
16 A I don't.
17 Q Would you have to read from your
18 report?
19 A I would.
20 JUDGE CURRAN: Let's go through it
21 again. Instead of asking him -- ask him if he
22 has any recollection whatsoever, and then we'll
23 kill that question.
24 Q Do you have any independent
25 recollection whatsoever of your conversation of
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1 Patrol Officer Elphick after you dispatched her
2 to these residences?
3 A No, I don't.
4 Q Okay.
5 A "At 1915 hours I sent P.O. Elphick to
6 attempt notification at the Maxwell residence,
7 158 Washington Avenue, the Mutschler residence,
8 310 Hagan Place and to Dawn Mondadori's
9 residence, 849 7th Street. I had also
10 dispatched P.O. Elphick to those locations on
11 4/27/04, and she was only able to contact and
12 speak to Dawn Mondadori and advise her to call
13 me. As of 4/29/04, 1900 hours dawn had not
14 called."
15 Q Who was Dawn Mondadori, if you
16 have a recollection who she was?
17 A I don't have a recollection who she was.
18 Q Okay.
19 A She was either a wife or a date of one of
20 the firemen --
21 Q Okay. Keep going.
22 A -- I believe. "P.O. Elphick did advise
23 she had spoken to Dawn Mondadori again and
24 advised her to call me. P.O. Elphick advised
25 that Dawn told her that she dates Daniel Snyder
170
1 and that she had spoken to him and that she will
2 still call him."
3 Q Okay. And then at 8:17 you took
4 another statement?
5 A I did.
6 Q Who would that be from?
7 A Chief Walters.
8 Q Okay. And what was the purpose of
9 your taking yet a third statement from Chief
10 Walters?
11 A Again, now, after that I had been given a
12 name of who had made that comment at the meeting
13 of -- from the Mayor. I think he had told me
14 that he thought it was Chucky Snyder. I had
15 asked Chief Walters to come back to try to get
16 more information out of him about that.
17 Q And as you are sitting here do you
18 have any independent recollection of your
19 statement -- of your meeting with Chief Walters?
20 A I don't.
21 Q Would you need to look at his
22 statement to refresh your recollection?
23 A I would.
24 Q D-57 and D-58, which are already
25 in Evidence.