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 12
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Thursday, May 29, 2008
Commencing 9:40 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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15
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
2
1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
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1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 DETECTIVE SERGEANT THOMAS O'KEEFFE
5 By: Mr. Bevere 54 103
6 By: Mr. Mullin 95 108
7 I N D E X
8 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
9 DIRE
10 DETECTIVE CAPTAIN JOHN BUCKLEY
11 By: Mr. Bevere 159 230
12 By: Mr. Mullin 212 234
13 I N D E X
14 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
15 DIRE
16 CHIEF DENNIS CORCORAN
17 By: Mr. Bevere 249 288
18 BY: Mr. Mullin 272 290
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20 E X H I B I T S
21 NUMBER DESCRIPTION PAGE
22 (No exhibits marked.)
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1 COURT CLERK: On the record.
2 JUDGE CURRAN: Thank you. We are
3 back on the record in the matter of deVries and
4 Carter versus the Town of Secaucus. I will note
5 that the jury is not here.
6 MR. MULLIN: Can we pause for a
7 sec, Your Honor?
8 (Whereupon, a brief recess is
9 taken.)
10 JUDGE CURRAN: Is there any
11 problem with going ahead, even though we don't
12 have Payton and Miss Catapano will bring out
13 Payton?
14 MR. PARIS: I can certainly go
15 ahead. I think it's our argument initially.
16 JUDGE CURRAN: It is your
17 argument. Well, go ahead, then.
18 MR. PARIS: Thank you, Your Honor.
19 JUDGE CURRAN: We are back on the
20 record in the matter deVries and Carter versus
21 Secaucus. I will note that the jury is not in
22 the courtroom. All counsel are.
23 Mr. -- pardon me. Mr. Paris,
24 these are your motions. Not that the other side
25 is limited; but at this point these are
5
1 basically motions at the end of Plaintiffs' case
2 that are being heard somewhat into the defense
3 case with the understanding of all counsel, I
4 believe, that there was a reservation in regard
5 to the motions.
6 MR. PARIS: Absolutely. Thank
7 you, Your Honor. It was all an issue of
8 scheduling.
9 JUDGE CURRAN: Thank you.
10 MR. PARIS: Your Honor, this is
11 the defendant's motion to dismiss the
12 plaintiffs' cause of action. Let me get right
13 to the argument.
14 We have had legal argument by way
15 of motions in limine. We have had legal
16 argument prior to the -- immediately prior to
17 the trial of this action by way of a summary
18 judgment motion. But now we have essentially
19 seen the plaintiffs' proofs. And now we make a
20 motion to dismiss the plaintiffs' case.
21 The initial -- the initial
22 argument that we need to start with is the fact
23 that NJSA 10:6-2 is the statutory application of
24 the Constitution of the State of New Jersey.
25 And we have to look to that statute as to what
6
1 the elements of the cause of action are. That
2 statute, entitled, "Civil Actions for Rights of
3 Violations" talks specifically as to what has to
4 be done in order for a private individual to
5 bring a cause of action in the event that
6 they're seeking to vindicate Constitutional
7 rights in the State of New Jersey.
8 And specifically in this
9 particular case we have to look to subsection C
10 because subsection A talks about circumstances
11 where the Attorney General may bring a civil
12 action. Subsection B talks about a action being
13 brought in the State of New Jersey by the
14 Attorney General. Again -- and it's only
15 section C that talks about the private cause of
16 action.
17 And specifically -- specifically
18 what it requires is that a person who claims to
19 have been deprived of any substantive due
20 process or equal protection right, privilege
21 immunity secured by the Constitution of the or
22 laws of the United States or any substantive
23 rights, privileges or immunities secured by the
24 Constitution or laws of New Jersey whose
25 exercise or enjoyment of those substantive
7
1 rights, privileges or immunities has been
2 interfered with or attempted to be interfered
3 with by threats, intimidation or coercion by a
4 person acting under color of law may bring a
5 civil action for damages and for injunctive or
6 other appropriate relief.
7 Acting under color of law. And
8 when we -- when we started the case the Court
9 made the ruling that, yes, that was requirement
10 of this case and that the Monell case, in
11 particular, was going to apply to the standards
12 as of proof that were required for the plaintiff
13 to prevail.
14 When we look at the statute, as
15 well -- and we have to look to the legislative
16 history. And I do this for purposes of the
17 record because at various points in time the
18 plaintiffs' attorney said this is not a 1983
19 action. It's not a 1983 action. But when we
20 look to the legislative history of the statute,
21 the late -- legislative history specifically
22 says that this bill is modeled on the Federal
23 Civil Rights law, which provides for a civil
24 action for deprivation of Civil Rights 42
25 U.S.C.A. 1983. And then it refers to the
8
1 Massachusetts and Maine Civil Rights Acts.
2 So when the Court made a
3 determination that Monell was going to apply,
4 the Monell case was a 1983 -- is a 1983 action,
5 and that's what we have to look to.
6 Now, the initial requirement of
7 proof in a 1983 action -- and Your Honor, we had
8 mentioned previously when we were seeking a
9 precharge for the jury in connection with
10 essentially an action -- action being taken
11 under color of law, what we had submitted to the
12 Court was a very, very -- I think it was a
13 two-page to three-page, very, very small
14 discussion that came from the Third Circuit
15 model 1983 jury charge. And we need to kind of
16 go back to that because, ultimately, if the
17 plaintiff was going to have a case, it would
18 have to fit within that framework.
19 And what does that say? The
20 first element of a cause of action is that a
21 defendant -- now they talk about a defendant as
22 if somebody was being sued individually. As if
23 somebody was being sued individually. But in
24 this particular case the defendant is the Town.
25 Someone must have acted under color of law.
9
1 And, second, that while acting under color of
2 law, the defendant deprived Plaintiff of a
3 Federal Constitutional right.
4 So what we have to do, at least
5 initially, is take a look at the plaintiffs'
6 proofs and make a determination as to whether
7 there is sufficient proofs as to whether someone
8 was acting under color of State law while --
9 while a Federal Constitutional right was being
10 deprived.
11 And the Court goes on to say that
12 there has to be specific identification of the
13 Constitutional right which -- which is alleged
14 to have been violated. All right.
15 COURT CLERK: Juror is
16 approaching.
17 (Whereupon, a juror enters the
18 courtroom.)
19 MR. PARIS: I'm going to go back,
20 though, to the first prong, which is actions
21 under color of law. And the thing that we need
22 to look at is we need to look and see whether or
23 not the plaintiffs have presented proofs by
24 which a determination can be made. And the --
25 and the -- the jury charge, that determination
10
1 is usually made by the courts, whether someone
2 has acted under color of law. And -- but have
3 there been sufficient proofs that whoever took
4 action to harass -- and I'm going to assume that
5 that is true. I am going to assume that the
6 events of April 25th as described in various
7 police reports, various statements, et cetera,
8 assume them to be true. Were those actors in
9 the parking lot acting under color of law?
10 Now, when we were here in
11 November, the Court made a statement on the
12 record at that point in time. And frankly,
13 there has been nothing that's presented by way
14 of the evidence in the case that would negate
15 the fact that whoever did what they did, whoever
16 said what they said in that parking lot were
17 clearly not acting under color of law.
18 They were -- went to a party.
19 What are the proofs? They went to a party on a
20 Saturday night with their wives. Everyone was
21 dressed up. They came back from a party that
22 was not a Town function but was their own
23 company function. This is their own company
24 function.
25 And I am not going to talk about
11
1 any of the testimony that came in after the
2 plaintiff rested.
3 Okay. But it was a private
4 function. Everyone was all dressed up. They
5 were there with their wives or girlfriends.
6 They came back on a bus.
7 Mr. Carter testified that he
8 listened to noise in the parking lot for a
9 period of time. He indicated that after
10 listening to the noise for a period of time he
11 got fed up. And at approximately 10 of 1 he
12 went out to the porch -- or the deck, rather,
13 back deck and he said out loud, "Please shut the
14 hell up already" or however -- whatever words he
15 alleges, we will accept them as being true. And
16 he had to repeat it about five times to the
17 point that he was being heard over the crowd,
18 whatever crowd he says was out there.
19 Then the -- the noise stopped.
20 And then words went back to them. Words went
21 back to them. Okay. That is what transpired.
22 That's what transpired.
23 When we look to the cases that
24 talk about color of law, you talk about a
25 situation where a policeman goes and stops a
12
1 motorist and he is wearing his uniform, he is
2 wearing a badge, his authority to stop the
3 motorist is based --
4 COURT CLERK: Juror approaching --
5 (Whereupon, a juror enters the
6 courtroom.)
7 MR. PARIS: -- is based upon his
8 official title and authority vested --
9 COURT STAFF: Juror approaching.
10 (Whereupon, a juror enters the
11 courtroom.)
12 MR. PARIS: We are not -- you are
13 not getting anything, are you, on your thing?
14 MS. SMITH: Yeah.
15 MR. PARIS: Just try to type
16 something in.
17 (Whereupon, a discussion is held
18 off the record.)
19 MR. PARIS: Anyway, Your Honor,
20 those are the situations where a court can say
21 someone was acting under color of law. And
22 then, what they did thereafter goes into further
23 analysis as to whether municipality is going to
24 be held liable because that is not the end of
25 the day. But in this particular instance there
13
1 is absolutely no proof that's been put in by the
2 plaintiff that these firemen were acting under
3 color of law when they harassed, yelled out to
4 the plaintiffs. This was a spontaneous event
5 that occurred. They were not -- they were not
6 fighting a fire. They were not on-duty. They
7 went to a party. They came back and used the
8 firehouse for an after-party.
9 But this is not acting under
10 color of law. This is not firemen behaving as
11 firemen. This is not firemen who are able to
12 say what they are saying because of their
13 position as firemen. Your Honor, it's just so
14 clear that the act of -- the actions of
15 April 25th were not committed while these
16 individuals were acting in furtherance of their
17 position with the Town of Secaucus.
18 Now, Mr. Mullin can get up here
19 and he can say they took a bus that was loaned
20 to them by the Town of Secaucus. That doesn't
21 make it under color of law. That doesn't mean
22 that they were acting within this scope of being
23 firemen in the Town of Secaucus in order to do
24 that. Providing them with -- with a bus
25 through -- I won't say 501(c)3; that came
14
1 later -- but through a volunteer organization in
2 the community. That doesn't mean that what they
3 were doing at that moment was under color of
4 law.
5 So that when I look at it, you
6 say how could this possibly be conceived as
7 being under color of law?
8 Your Honor had discussed earlier,
9 based upon representations made by Mr. Mullin,
10 that somehow the condom complaint somehow
11 translates to making criminal conduct -- we'll
12 call it criminal conduct, the harassment. Color
13 of law? It just doesn't follow. Okay. What it
14 means -- what it means is -- if they mentioned
15 condoms -- if they mentioned condoms, what it
16 means is somebody took action and told this
17 company that there were complaints, don't be
18 throwing anymore condoms. And there is
19 absolutely no proof.
20 COURT STAFF: Juror is
21 approaching.
22 (Whereupon, a juror enters the
23 courtroom.)
24 JUDGE CURRAN: How many is that?
25 Two more?
15
1 COURT CLERK: We need two more.
2 JUDGE CURRAN: Thank you.
3 MR. PARIS: There is absolutely to
4 proof that had anything to do with the evening
5 of the 25th. Whether they made comments
6 referring back to a prior complaint, it doesn't
7 matter because it doesn't change the conduct of
8 the 25th. It doesn't change the status of the
9 actors while they were alleged to have deprived
10 the plaintiffs of a Constitutional right. And
11 that's the issue. It's not whether they were
12 acting under color of law at sometime in the
13 past. That has nothing to do with it. Were
14 they acting under color of law while they were
15 depriving someone of their Constitutional right?
16 And what transpired afterwards --
17 what transpired afterwards is an entirely
18 different analysis because the bottom line is
19 that a municipality is not liable for everything
20 that its employees do.
21 And again, you know, rather than
22 going through all the case law -- it's all part
23 of the charge. You know, municipality is not
24 responsible merely because somebody is employed
25 by them.
16
1 JUDGE CURRAN: No question.
2 MR. PARIS: So the question then
3 becomes were they acting under color of law
4 while they committed that act? And I think that
5 that's the first step in the process because
6 then, if the Court determines, look, they
7 weren't acting under color of law at that point
8 in time, then we take that event and we say --
9 we take that event and we say, okay, that event
10 we are going to have to deal with when we figure
11 out how we're going to frame the remainder of
12 the case, okay, because then what the plaintiffs
13 allege is an entirely different cause of action,
14 essentially. And that is -- but again, that
15 rests upon someone acting under color of law.
16 And then how the municipality
17 reacts to somebody acting under color of law or
18 what did municipal -- were municipal officials'
19 conduct a violation of an identifiable
20 Constitutional right? And that's a whole
21 different issue. And frankly, that
22 Constitutional right hasn't been identified. Is
23 there a Constitutional right to a particular
24 police investigation? The case law says no. Is
25 there a particular Constitutional right to have
17
1 someone disciplined? No. What's the
2 Constitutional right? And if somebody wasn't
3 acting under color of law and depriving someone
4 of their Constitutional right, this action has
5 to fail.
6 COURT STAFF: Juror approaching.
7 (Whereupon, a juror enters the
8 courtroom.)
9 JUDGE CURRAN: While we're waiting
10 would you just check the two people who just
11 came in? I --
12 MR. BEVERE: They're from our
13 office.
14 JUDGE CURRAN: I just wanted to
15 make sure they weren't witnesses because I don't
16 know what the witnesses look like. Thank you.
17 MR. PARIS: Anyway, the cause of
18 action has to fail. And at least we need that
19 initial determination as to whether there have
20 been facts submitted that indicate that at -- on
21 that evening the firemen were acting under color
22 of law. And I don't -- again, I don't want to
23 get the argument too far ahead because I think
24 that's the initial inquiry that has to be made.
25 And again, if you look to
18
1 indicia, the courts talk about looking for
2 indicia of somebody acting under color of law.
3 What do they say? Were they in uniform? Did
4 they flash a badge? You know, were -- were they
5 forwarding.
6 COURT STAFF: Juror approaching.
7 (Whereupon, a juror enters the
8 courtroom.)
9 JUDGE CURRAN: That's it?
10 COURT CLERK: Yeah, she is going
11 to count, double-check.
12 JUDGE CURRAN: I think you can
13 count on not being interrupted for the 47th
14 time, but let's just be sure.
15 MR. PARIS: I think I'm okay now.
16 JUDGE CURRAN: I think so.
17 MR. PARIS: Thank you. The point
18 being that, you know, what do we look to for
19 indicia of whether somebody is acting under
20 color of law while they're depriving somebody of
21 their Constitutional rights? You know, courts
22 will look to were they on-duty? But even that's
23 not determinative.
24 So we get this whole argument, we
25 are getting all these arguments. Were they
19
1 on-duty? Clearly, they weren't on-duty. They
2 had been drinking. Clearly, they weren't
3 on-duty. There was no proofs that were
4 presented during the plaintiffs' case that they
5 were on-duty. And whether Mr. Snyder at the
6 scene of the event said, "We are on-call," that
7 doesn't mean that every event that takes place
8 while they are carrying a pager around is taken
9 under color of law.
10 You know, if they had -- the fact
11 that they were at the firehouse doesn't mean
12 that they were acting under color of law.
13 That's not -- that doesn't -- that doesn't carry
14 any indicia that they were acting in furtherance
15 of their duties as firemen. They weren't acting
16 in furtherance of their duties when they were
17 sitting in the firehouse with their wives and
18 girlfriends having a final nightcap or whatever
19 you want to call it. They weren't acting under
20 color of law when they were hanging out in a
21 parking lot after a party. That's not acting
22 under color of law.
23 When we look at the cases, we
24 look at policemen who were on patrol, policemen
25 who respond to incidents. We look at that type
20
1 of thing. And that's where a court becomes --
2 that's what we're looking to. And we don't have
3 any of that.
4 Again, we have other arguments
5 going down the line; but all of this window
6 dressing and all these red herrings don't make
7 these actions, as despicable as they may be,
8 actions taken in furtherance of somebody's
9 functions as a fireman, in furtherance of
10 their -- of what they do as volunteers for the
11 Town. Had nothing to do with that. They were
12 all wearing dresses and blazers. They are not
13 there to say, "Hi. We're firemen; and we're
14 here to, you know, fight your fire." That's not
15 the situation here.
16 So I don't know whether the --
17 the Court finds that acceptable for me to stop
18 my argument at this point in time because I do
19 think that's the initial inquiry. And I just
20 don't see the evidence that would allow a court
21 or a jury to make a determination that they were
22 acting under color of law at that time.
23 JUDGE CURRAN: Thank you.
24 Unless Mr. Mullin has an
25 objection, I think it's --
21
1 MR. MULLIN: We will take it in
2 pieces like this, sure.
3 JUDGE CURRAN: Yes.
4 MR. MULLIN: I have no problem
5 with that. Mr. Paris' argument is based on a
6 fundamental logical error. He tries to make
7 this a 1983 case through the following
8 reasoning. He says, well, 10:6-2 implements the
9 State Constitution and 10:6-2 has some
10 legislative history. Where? He doesn't specify
11 where.
12 There is some mention that 10:6-2
13 is patterned around 42 U.S.C. 1983. Then he
14 remembers to mention also the Maine Civil Rights
15 law and the Massachusetts Civil Rights law.
16 That's what he says. And then he says,
17 therefore, we have to analyze this case under 42
18 U.S.C. 1983, and we have to go so far in doing
19 that that we can only look to Federal rights
20 that are violated.
21 So let me go back and let me try
22 to be logical. Your Honor has dismissed our LAD
23 claim; and I am going to ask you at some point
24 in this argument to reconsider that based on the
25 evidence you have heard in the trial, which I
22
1 hope has persuaded you in a different direction.
2 So LAD is not in the case.
3 Two other counts. Not one other
4 count, two other counts remain. One is directly
5 under the State Constitution and -- for
6 discrimination and harassment that was based on
7 sexual orientation animus. And the other is a
8 claim under NJSA 10:6-2, which is for harassment
9 and discrimination, all of it sexual
10 orientation-based.
11 So let's not talk about 10:6-2
12 right now. Let's talk about my action brought
13 directly under the State Constitution.
14 In Peeper v. Princeton 77 NJ 55
15 the Supreme Court of New Jersey recognizes that
16 discrimination is prohibited under the equal
17 protection clause of Article I of the State
18 Constitution. And of course, I pointed out to
19 the Court there is a direct prohibition of
20 discrimination in the Constitution, Article I
21 Section 5. So let me -- let me correct an
22 error. Article I, Section 1 and Article I,
23 Section 5 both prohibit discrimination.
24 In Peeper at page 76 to 77 the
25 court notes that this court, the Supreme Court
23
1 of New Jersey, has the power to enforce rights
2 recognized by the New Jersey Constitution, even
3 in the absence of implementing legislation.
4 That's a 1978 case. Long before 10:6-2.
5 So then the question becomes,
6 okay, under the Supreme Court's decision in
7 Peeper, which is a direct case of discrimination
8 under the State Constitution, like this case,
9 what do you have to do to prove that case? And
10 Peeper goes through what we're all accustomed to
11 seeing in discrimination cases. It talks about
12 having to prove a prima facie case, you were in
13 the protected class and that some adverse action
14 was taken against you and this was not a direct
15 evidence case. So there they had to show that
16 the reasons proved by the university were not
17 true and therefore jury could draw an inference
18 of discrimination.
19 In the Lehmann case, which
20 derives directly from that line of
21 jurisprudence, Lehmann, 132 NJ 587, the court
22 lays out in more detail how you prove a
23 discrimination case, picking up on this same
24 principles of Peeper, which ultimately had their
25 roots in Title 7 of the United States
24
1 Government's Civil Right -- antidiscrimination
2 laws.
3 And there the court says in
4 Lehmann, at page 605, when the harassing conduct
5 is sexual or sexist in nature, it's -- the but
6 for element will automatically be satisfied.
7 Thus, when a plaintiff alleges she has been
8 subject to sexual touching or comments or where
9 she has been subjected to harassing comments
10 about her lesser abilities, capacities or the
11 proper role of members of her sex, she has
12 established that the harassment occurred because
13 of her sex. That's the kind of case we have
14 here.
15 This is not the kind of case
16 where you have to show, oh, well they didn't
17 fire a shotgun near the home of a heterosexual,
18 they did didn't attack the home of a
19 heterosexual, they didn't throw condoms on the
20 porch of a heterosexual; therefore,
21 discrimination.
22 No, Lehmann says when you have
23 direct language that reveals a discriminatory
24 animus, you have satisfied the proofs insofar as
25 you have to show that it was motivated by some
25
1 sort of bias prohibited by the law. We have
2 that. So that -- that's how you prove a case
3 under the State Constitution.
4 Now, the language of the State
5 Constitution, unlike the language of the 14th
6 Amendment of the United States Constitution,
7 which was implemented through the passage of 42
8 U.S.C. 1983, the language of the State
9 Constitution, Article I, Section 1, entitled,
10 "Natural and Unalienable Rights" and Article I,
11 Section 5, "Denial of Rights Discrimination
12 Segregation," nowhere speaks to the requirement
13 of State action.
14 Under the 14th Amendment of the
15 United States Constitution you have to show that
16 whoever harmed you and violated your rights,
17 well, they engaged in State action, they were
18 state actors. That's right in the 14th
19 Amendment. And 42 U.S.C. 1983, borrowing that
20 Constitutional requirement and implementing it,
21 says in its text -- the text of 42 U.S.C. 1983
22 says you have to show under color of State law
23 if you are going to seek remedies under this.
24 So that's where that comes from.
25 We don't have a requirement in the State of New
26
1 Jersey in those provisions which prohibit
2 discrimination saying that I have to prove that
3 someone from the State did it and that they did
4 it under color of State law. There is no case
5 law that says that someone who works for a
6 private university, like Miss Peeper did in
7 Peeper v. Princeton, gets an easier pass in
8 proving discrimination than someone who worked
9 for the government.
10 No, all entities, governmental
11 and nongovernmental alike, get the principles
12 laid out in Peeper and Lehmann. Nobody has to
13 prove that something happened under color of
14 State law. Nobody has to prove any such thing.
15 This is a discrimination case directly under the
16 State Constitution, and all we have to do is
17 prove discrimination and harassment consistent
18 with Peeper and the principles of Lehmann. And
19 there is a jury charge that's in the books on
20 that that can be fine tuned. And that's that.
21 Now let's talk about 10:6-2,
22 which I had a minute ago. Here it is. So -- so
23 now let's talk about a separate cause of action
24 I have in this case. Not all blended into one,
25 a separate cause of action under 10:6-2.
27
1 Does 10:6-2 in its text say what
2 Mr. Paris says? And he is right; we can look at
3 10:6-2C. But we can look at the statute as a
4 whole, the way you're supposed to when you're
5 construing a statute.
6 Interesting language in -- in A
7 and B because there in A and B the statutory
8 language talks about a person, whether or not
9 acting under color of law, interfering with or
10 attempting to interfere with by threats,
11 intimidation or coercion with the exercise or
12 enjoyment of substantive due process or equal
13 protection rights.
14 Well, how is that possible under
15 Mr. Paris' analytical framework? How is it
16 possible under his framework to even image that
17 there is such a thing as violation of the State
18 Constitution when someone is not acting under
19 the color of State law? Because there are cases
20 like Peeper. There are cases which say, you
21 know what, you have a substantive right to be
22 free of discrimination; and we don't care
23 whether it's done by someone in the government
24 or someone working for Princeton University.
25 Then, when -- now let's take a
28
1 look at C, which is the operative section. And
2 let's read it carefully, and let's not make any
3 of the words surplusage. This says, "Any person
4 who has been deprived of any substantive due
5 process or equal protection right, privilege or
6 immunity secured by the Constitutional laws of
7 the United States or any substantive rights,
8 privileges or immunities secured by the
9 Constitution or laws of this State or" -- "or,
10 not and, or -- "whose exercise or enjoyment of
11 those rights, privileges or immunities has been
12 interfered with or attempted to be interfered
13 with by threats, intimidation or coercion by a
14 person under color of law may bring a civil
15 action for damages," et cetera.
16 So what is this saying? What is
17 the plain language of the statute? The plain
18 language of this statute is that any person can
19 bring a cause of action for a substantive
20 violation of rights, like Peeper, because you
21 have discriminated against me in violation of
22 Article I, Section 1 and Article I, Section 5 or
23 you can bring a cause of action when the
24 government, through acting under color of State
25 law, tries to threaten or intimidate you in
29
1 connection with your asserting those rights.
2 Or means or in statutory
3 construction and never means and.
4 This article is contrary to the
5 plain language of this statute. 10:6-2 does not
6 require me to show any sort of 42 U.S. C 1983
7 proofs.
8 Now, having said that, let's
9 assume that for purposes of this argument that I
10 have pled a case under 42 U.S.C. 1983, which I
11 most definitely have not. Let's suppose that
12 Article I, Section 1 and Article I, Section 5 of
13 the State Constitution required State action and
14 action under color of State law. Let's suppose
15 the Supreme Court of New Jersey was wrong in
16 Peeper, when it didn't point out that they had
17 to establish color of State law and State
18 action. Let's suppose all that. Let's suppose
19 the word "or" in this statute means "and." Then
20 Mr. Paris would have an argument. Now, let's
21 suppose all that was true and he has an
22 argument.
23 Okay. Then I got to prove,
24 according to him, 1983 case. And he says, well,
25 stage one is you got to prove action under color
30
1 of State law. Now, he is dead wrong that I have
2 to prove that; but let's go through it.
3 Viewing -- this is a motion under
4 4:37-2B. And not only must all the evidence be
5 viewed in the lights -- light most favorable to
6 me, all inferences, all reasonable inferences
7 must be drawn in my favor. So what do we have?
8 We have a Town that, as a matter of policy, has
9 excluded for years -- so we will use the Monell
10 42 U.S.C. 1983 language, "policy, practice or
11 custom" -- for years has a policy of having a
12 policy on sexual harassment and discrimination
13 for its full-time employees but consciously
14 excluding the Volunteer Fire Department from
15 that policy.
16 Your Honor questioned Mr. Bevere
17 at one point, and he actually said it just that
18 clearly during oral argument. Your Honor made a
19 note of that. But also, we have heard several
20 witnesses testify to that. Whether it's Walters
21 saying there was never any training, I never
22 ordered any training all the years I have been
23 at the Fire Department or Iacono saying what I
24 just said, there is a policy of -- of -- of
25 creating a law-free zone, if you will, for the
31
1 volunteer firemen.
2 Now, what goes on when you train
3 people about sexual harassment in the State of
4 New Jersey? First of all, you train people
5 about what it is, how to recognize it. And an
6 important piece of any training is you train
7 people that when there is a complaint about it,
8 you don't retaliate. These are two essential
9 elements.
10 So we have three years of -- of
11 harassment that our plaintiffs have testified
12 about leading up to the events of April 25th,
13 2004. We have a series of condoms, used
14 condoms, semen-filled condoms being thrown on
15 their back porch.
16 The Plaintiff Carter complains to
17 the Fire Department. The complaint reaches the
18 ears of the Chief, himself, who, according to
19 the Chief and according to Iacono, is a
20 policy-making, high-level official. This
21 policy-making, high-level official -- and also
22 it's in Chapter 12. This policy-making,
23 high-level official doesn't do anything.
24 This policy-making, high-level
25 official claims that somebody conducted some
32
1 sort of test, throwing -- seeing if a condom
2 thrown out the second floor window of -- of the
3 firehouse with a wind of 5 miles an hour in a
4 southwest direction could be blown onto the
5 porch. He doesn't do an investigation.
6 He doesn't come and talk to Tim
7 Carter and say, "What's going on?" If he had,
8 Tim Carter would have told him what he told the
9 police when the police arrived after this ugly
10 incident of April 25th, that, "Look, I have been
11 going through three years of harassment by these
12 people." And he would have described all that
13 he described in this court -- much of it. And
14 they would have known immediately because they
15 would have had training, if this wasn't a
16 law-free zone, to -- how to recognize sexual
17 harassment and what you are supposed to do about
18 it.
19 Well, they didn't do anything
20 about it. And what did they reap from that?
21 After -- they -- well, they authorized a party
22 with very, very heavy drinking. And I guess we
23 will get to the party.
24 So the guy complains about this
25 ugly behavior. You know, we don't want to
33
1 minimize the ugliness of this behavior. Let's
2 just put it in the workplace. I am in the
3 workplace. Let's say I'm a woman and someone is
4 throwing used condoms on my desk. Is that an
5 alarm? Is that a red alarm? That is. Throwing
6 used condoms on someone's porch is an ugly, ugly
7 thing. It should alert you to the possibility
8 and probability that something very bad is
9 happening next door, that there are real
10 discriminators, there is real animosity. And if
11 you just go one little step, if you just inquire
12 and find out these are two gay men, then you got
13 the whole picture.
14 But what they did instead is they
15 had an official party and they let them get
16 blind, screaming drunk. On P-117, the function
17 can go on from 6 p.m. till. It is just an
18 unlimited company night out, company function.
19 So what happens is the firemen
20 retaliate. Let's listen to the language that
21 the firemen used during the incident aside from
22 the death threats. They were enraged that this
23 complaint had been made. They were yelling
24 about the condom incidents. "You want some more
25 of our condoms?" And I won't use the rude
34
1 language. "You want some more of our" -- et
2 cetera and et cetera. There was an act of
3 retaliation because our clients engage in
4 protected activity under the New Jersey Law
5 Against Discrimination by complaining about
6 condoms being thrown over.
7 It's not required under the law
8 that a layperson say I think this is
9 discrimination. It's not required. They
10 complained about an obvious sexual -- sexual
11 overtoned act of discrimination. The Town did
12 worse than nothing. Well, of course, they did;
13 they had no policies for those Volunteer Fire
14 Department, no training. No investigation was
15 conducted. And so all hell broke out.
16 So did the Fire Department and
17 the Town Council and the Mayor, when they
18 created this policy excluding the Fire
19 Department from all sexual harassment policies,
20 excluding them from training, was that an action
21 under color of State law? Of course it was.
22 These are high-level, policy-making officials.
23 They had a policy of not -- of allowing a
24 law-free zone in the volunteer firehouse. Of
25 course they acted under color of State law.
35
1 Why does counsel just focus our
2 attention on the firemen that night, as if
3 that's the inquiry? Your Honor correctly
4 pointed out in denying the discrimination -- we
5 don't have to limit our inquiry to just what the
6 firemen did that night, but we can look at what
7 firemen did that night and ask ourselves are
8 there genuine issues of material fact as to
9 whether or not this was under color of State
10 law?
11 When Peter deVries comes
12 downstairs, the three voices he hears were
13 identified by Tim Carter as being the current
14 captain and two -- the two ex-captains. These
15 are people vested with authority by Chapter 12
16 of the Secaucus Code to be the leaders of that
17 company firehouse; and they were exercising that
18 authority that night, albeit abusing that
19 authority. They were leading that mob. They
20 were leading that attack. And they were cloaked
21 with authority. They had the mantel of
22 authority because of Chapter 12 that gave them
23 that authority.
24 This was an official company
25 function. It was a company function, P-117
36
1 says. It was a company night out. It was
2 signed off on by the captain and the chief,
3 and -- and it had the Town's insurance approval.
4 Attending the party were -- not at the firehouse
5 but at the restaurant where the Mayor and the
6 entire Town Council, the Fire Chief and the
7 Deputy Chief. They got a company bus to get to
8 and from the function. At the party official
9 awards were given out for the members of the
10 company. At -- at -- for free, a value of a
11 thousand dollars it was estimated by one of the
12 witnesses, they got a Town bus driven for free
13 by a Town driver. And this riot took place on
14 Town property. This riot took -- this attack
15 was launched from the Town-owned parking lot and
16 the Town-owned Fire Department.
17 Now, let's look at the charge
18 that was put on the desk this morning concerning
19 1983 to which counsel referred. And on page 16
20 in this proposed model Federal jury charge the
21 court -- the court instructs the jury to ask in
22 determining color of State law, quote, whether
23 the events took place within the geographic area
24 covered by the Defendant's Police Department.
25 And they cite for that to -- looks like a cite
37
1 to -- hang on. Barna v. City of Perth Amboy
2 42F.3d at 817.
3 Did this attack get launched from
4 company property? Yes, it did -- from Town
5 property, excuse me.
6 The other factors in their charge
7 on page ten include, "Thus, in the usual
8 case" -- I'm quoting from page ten of their
9 proposed charge -- "we ask whether the State
10 provided a mantel of authority that enhanced the
11 power of the harm-causing individual actor."
12 The charge quotes Tarkanian 488
13 U.S. at 192. "Circumstances" -- I'm quoting
14 still -- "that can underpin a finding of State
15 action include the following." Bullet head, "A
16 finding that the government delegated its
17 authority to the private actor."
18 These were captains who had
19 delegated authority, and they were leading the
20 charge. For that proposition the court cites
21 Tarkanian again, which cites West V. Atkins 47
22 U.S. 42, a finding that the government knowingly
23 accepted the benefits derived from
24 unconstitutional behavior.
25 Well, certainly, this Town got
38
1 some inexpensive firemen by allowing a history,
2 a custom, policy and practice of these firemen
3 doing anything they wanted. They could drink.
4 They could have -- they could have a bar in the
5 firehouse. They could, without anything
6 happening to them, attack a gay couple. And no
7 one got suspended. And no one got fired. And
8 no one got moved to another firehouse. And the
9 social wing didn't get shut down, except for
10 five days.
11 Did the Town get a benefit from
12 allowing this kind of hard behavior to go
13 untouched? They got a great benefit. They pay
14 only $3,600 for a firemen, not 50 to a hundred
15 thousand dollars.
16 Continuing to page 11 of their
17 charge, "A finding that the State provided
18 significant encouragement, either overt or
19 covert." Here we have it both before, during
20 and after the event. We have, again, the State
21 carrying this drunken -- after receiving
22 complaints of these condoms, the State for free,
23 on a bus valued at a thousand dollars for that
24 night, carries these men blind drunk -- I have
25 two witnesses testified to drinking over more
39
1 than ten drinks -- blind drunk carries them back
2 to the edge of my clients' property.
3 And we will talk about after the
4 fact in a moment.
5 "A finding that a nominally
6 private entity is controlled by an agency of the
7 State." I read Chapter 12 in cross-examining
8 Iacono. The Town and the Council control every
9 aspect of who becomes a firemen, who gets
10 dismissed as a firemen, whether a firehouse is
11 disbanded, how they have to -- the Town Council
12 and Mayor have to approve the rules and
13 regulations passed by specific firehouses. And
14 of course, they granted a permit for drinking.
15 One of the factors considered at
16 page 17 is whether defendant used his or her
17 official position to exert influence or physical
18 control over the plaintiff. That's what was
19 going on that night. The three captains exerted
20 through -- through -- through shouts of death
21 threats and -- and through leading the mob
22 through violence while they were able to exert
23 influence or physical control over my clients.
24 This pol -- this jury charge
25 specifically says on page 17, "whether the
40
1 defendant was acting for work-related reasons;
2 however, the fact that a defendant acts for
3 personal reasons does not necessarily prevent a
4 finding that the defendant is acting under color
5 of State law. A defendant who pursues a
6 personal goal but uses government authority to
7 do so acts under color of law."
8 So three captains, empowered as
9 captains by Chapter 12 of the Secaucus code led
10 their company in an attack that was disgraceful
11 on two gay men.
12 And it wasn't just as counsel
13 says, an exchange of words over a fence. It was
14 three gunshots. It was an attempt to tear down
15 a fence. It was slamming on the side of the
16 house and saying, "The homos are home. The
17 homos are coming" or, "Homos, homos, homos." It
18 was death threats shouted repeatedly. And
19 that's just that incident.
20 In a memo -- in an e-mail I sent
21 the Court I cited Lehmann. I tried to find some
22 State case law bearing upon the standard of
23 deliberate indifference because one of the
24 issues is, well, was -- was a policy of
25 deliberate indifference exercised here by Town
41
1 officials? I have already described that to
2 some degree.
3 And -- and the Supreme Court in
4 New Jersey deals with deliberate indifference
5 in -- in Lehmann because they have to deal with
6 that standard when -- when dealing with punitive
7 damages and because that is the standard. They
8 call it "willful indifference," but I don't see
9 any difference in "willful indifference" and
10 "deliberate indifference."
11 And there, Your Honor, the court
12 cites two cases in the section of Lehmann that
13 deals with willful indifference. Winkler v.
14 Hartford, and that was 66 NJ super 22. And
15 Security Aluminum Window v. Lehmann Associates,
16 108 NJ Super 137. Both of these cases establish
17 the principle that willful indifference is
18 established not just by acquiescence in the act,
19 the bad act but also by ratification of the bad
20 act.
21 In the day -- in the hours and
22 days and weeks and months that my clients were,
23 as Peter deVries said, prisoners in their own
24 home, we had acquiescence and ratification by
25 high-level policymakers. What's uglier than,
42
1 knowing what had happened in the early morning
2 hours of April 25th, 2004, high-level,
3 policy-making officials, the Mayor and the
4 Council, the -- the Town Administrator, the Fire
5 Chief make a decision five days later, knowing
6 the danger that was there, to reopen the
7 firehouse?
8 Then comes Tim Carter's complaint
9 call and the voice mail he left for Elwell,
10 saying, look, you reopened the firehouse. Now
11 people are running around saying, "The homos are
12 home. The homos are home." And high-level
13 policymakers had a choice to make, a policy
14 choice to make. They could rescind their
15 decision to reopen that firehouse, or they could
16 let it be in place.
17 They let it be. They let that
18 firehouse open. They -- after an -- what could
19 only be described as an extortionate letter of
20 April 29th, 2004 by the firemen threatening to
21 resign and take their cheap labor elsewhere, the
22 very next day high-level, policy-making
23 officials reopened that firehouse.
24 And even though they were on
25 notice in the subsequent months of some of the
43
1 ugly incidents that were happening in that
2 firehouse, they kept that firehouse open.
3 And my clients were prisoners in
4 their own home. Peter deVries describes living
5 on the other side of the house, staying away
6 from a whole side of the house in fear. Dr.
7 Bursztajn has said that the fundamental injury
8 here was the loss of their home, the loss of
9 their place. This was taken away not just in 12
10 minutes but in 12 minutes plus six months. They
11 were tormented by these men, terrified by these
12 men, shining lights in for hours, driving by,
13 screaming, "faggot," painting the words, "El
14 Homo" across the street from the firehouse
15 shortly after my client reported seeing two cars
16 sitting there that he recognized to be in the --
17 in the fire -- belonging to the firehouse,
18 members of the firehouse.
19 So what you have is -- and again,
20 ratification, what -- what more awful
21 ratification could you have than the Town
22 Council at the end of 2006 promoting Chuck
23 Snyder, Jr., who my client identified as being a
24 member of the attack group and who was actually
25 found red-handed by Officer Ulrich with Snyder,
44
1 Sr. and Mutschler in the parking lot immediately
2 after the 911 call came in, the Town Council,
3 pursuant to Chapter 12, and the Mayor approved
4 his elevation to battalion chief, which will
5 guarantee that he will be the Chief of the
6 entire Secaucus Fire Department.
7 And if that's not enough, the
8 promotion of Chuck Snyder, Sr. to a high level
9 position in DPW, heading a department.
10 These monsters were rewarded
11 publicly rewarded in an act that can only be
12 described as ratification and condonation of the
13 attack of April 25th, 2004.
14 You have heard evidence, Your
15 Honor -- we have police report on it -- that
16 even after this incident the Fire Chief
17 authorized a party with drinking on May 15th.
18 The party took place on May 15th, 2004. Just
19 incredible.
20 Six months highly traumatized
21 plaintiffs have to look out the window and see
22 these firemen, who should have been suspended or
23 fired or moved someplace else or their social
24 club should have been shut down. There were so
25 many measures, modest and major, that should
45
1 have been taken.
2 And perhaps the icing on the
3 cake, Your Honor, is when Iacono was testifying
4 and he was asked by his own counsel, "In
5 reopening the firehouse what did you consider?"
6 And he said -- and we had read at a deposition
7 where he said the same thing, Judge. He had
8 said, "Well, I considered" -- and he mentioned
9 something vaguely about public perception. And
10 then he said, "What about the people that
11 weren't there that night? Don't want to punish
12 them." And after some further questioning by
13 his counsel he said, "Well, there was a police
14 car going there, so the investigation wasn't
15 going to be compromised."
16 What he didn't say in his
17 deposition and what he didn't say at trial is,
18 "I considered the physical and emotional safety
19 and health of Peter deVries and Tim Carter."
20 High-level, policy-making
21 official showing complete and utter indifference
22 to the plaintiffs' safety and to their
23 Constitutional rights, the fact that there would
24 be -- reasonably foreseeable there would be
25 Constitutional rights violated, the right as --
46
1 as a gay person not to be sexually harassed or
2 discriminated against.
3 And -- and let me get to -- to
4 another point Mr. Paris raised. Mr. Paris
5 imagines that 10:6-2 requires me to identify a
6 Federal Civil Right. That's what he said. He
7 didn't say a State Civil Right. Federal right.
8 I dare Mr. Paris to identify where in the
9 statute anyone is required to show the violation
10 of a Federal Civil Right, as opposed to a
11 Federal Civil Right or a State Civil Right.
12 But if there is any question
13 about where the rights of the plaintiffs are
14 protected, one can look to Lewis v. Harris, 188
15 NJ 415. One can look to Dale V. Boy Scouts of
16 America. There is no question at all that in
17 this State the State Constitution protects gay
18 people from discrimination and harassment based
19 on their sexual orientation. There is no
20 question about it. And 10:6-2 does not require
21 the identification of a Federal right. It
22 doesn't say so in the statute. And it -- it's
23 just not there.
24 So Your Honor, let me change
25 the -- I wonder if I should go to asking you to
47
1 reconsider the LAD now or if you want me to stop
2 at this point? I have now addressed all of
3 Mr. Paris' arguments.
4 JUDGE CURRAN: What I think we
5 should do, just because I'm concerned about the
6 jury -- do you have your witnesses here?
7 MR. BEVERE: I will go check the
8 hallway, Judge, see if he is around.
9 JUDGE CURRAN: Is -- the LAD issue
10 is really a somewhat different issue, obviously.
11 I think we can put that off. I -- I think, in
12 fairness, there has to be at least an answer as
13 to this motion. Although I will say, because
14 I'm concerned about the jury, I'm not going to
15 put a long definitive answer on the record. I
16 will tomorrow, if we can get to that point.
17 Do you have any other motions,
18 Mr. Paris?
19 MR. PARIS: I do.
20 JUDGE CURRAN: Just outline them
21 for me, if you would.
22 MR. PARIS: Your Honor, we -- we
23 have a -- we are going to make a motion to
24 strike testimony regarding lack of subsequent
25 discipline as to the -- as to the economic loss
48
1 claim of Peter deVries.
2 JUDGE CURRAN: But that's not
3 necessary we do that before we continue with
4 your case --
5 MR. PARIS: No.
6 JUDGE CURRAN: -- correct?
7 MR. PARIS: No. And we were also
8 going to make a motion to strike the testimony
9 of Dr. Marcus.
10 JUDGE CURRAN: Those are all
11 preserved. I just am trying to figure what we
12 can do -- what we need to do before we get the
13 jury out.
14 MS. SMITH: I'm sorry, Judge, we
15 have a short in limine regarding the future
16 witnesses and to strike some of the testimony
17 from yesterday.
18 JUDGE CURRAN: What is the nature
19 of the motion in regard to the future witnesses?
20 MS. SMITH: Motion is Defendants
21 barred discovery about what the Town attorney --
22 what advice they gave people, and now they
23 marched in here yesterday and no less than
24 probably 50 times had their witnesses -- in what
25 is clearly a new defense just emerging
49
1 yesterday, had their witnesses say as frequently
2 as possible, over Your Honor's sustaining
3 objections, over counsel's objections -- I have
4 many, many examples. Now the new defense is
5 that the Town attorney did it.
6 And that's not in their
7 deposition. And in their answer to
8 Interrogatory number 50 they answered a question
9 about one meeting on Sunday morning, April 25th,
10 2004 at which the Town attorney was not present.
11 And then they said, "Any other meetings would
12 have occurred in the presence of counsel and
13 accordingly are subject to the attorney-client
14 privilege. The contents thereof are
15 nondiscoverable." So reasonably, we did not
16 depose the Town attorney.
17 The depositions say nothing
18 different than that.
19 I have copies for Your Honor.
20 And I have many examples of yesterday's
21 testimony, which is clearly a sandbagging, based
22 on starting out taking the -- pressing the
23 privilege. And now the whole new defense is
24 "The Town attorney told us to do it."
25 I have the depositions. I can
50
1 talk about the one document and the one thing
2 that they did talk about in there -- in there
3 regarding the Town attorney, Your Honor.
4 However you want to proceed.
5 JUDGE CURRAN: What I would
6 like --
7 MS. SMITH: It's possible -- I'm
8 sorry. It's possible these witnesses are not
9 going to blurt out, "Town attorney" every five
10 minutes, so we can put this off.
11 JUDGE CURRAN: That's the only
12 issue that I --
13 MR. BEVERE: I'm sorry, Judge?
14 JUDGE CURRAN: That is the only
15 issue I'm going to address now, which is the
16 issue of references by the Town's witnesses to
17 the attorney, suggested that the attorney told
18 me, that I didn't do it because of what I was
19 advised by the attorney. The issue I'm trying
20 to narrow it to right now is, is any of that
21 going to come out from any of the witnesses
22 today?
23 MR. BEVERE: I could tell you it's
24 not going to come out from the witness who is on
25 right now. I don't -- I did not discuss any
51
1 issues of the Town attorney with Captain
2 Buckley. I did discuss issues with Town
3 attorney with the Police Chief, Dennis Corcoran,
4 who is not going to be here -- I told him to be
5 here at 3. But with regard to this witness who
6 is up right now --
7 JUDGE CURRAN: The next two?
8 Well, I think, then, it would make sense from
9 the jury's standpoint to proceed with these two
10 witnesses. However --
11 MR. BEVERE: I don't understand.
12 What is the issue, though, Judge? I didn't get
13 the issue.
14 JUDGE CURRAN: The issue is that
15 there should be no -- the issue from plaintiffs'
16 viewpoint, that there should be no reference to
17 the Town attorney told me to do it or not do it
18 in the -- to oversimplify, in the testimony of
19 any of these witnesses because of the pretrial
20 position taken by the defense as to everything
21 being attorney-client privilege.
22 MR. BEVERE: All right.
23 JUDGE CURRAN: Okay.
24 MR. MULLIN: Interrogatory
25 number --
52
1 MR. BEVERE: We can address that
2 issue, Judge, because it did come up at
3 deposition. Mr. Iacono testified he was told by
4 the Town attorney --
5 JUDGE CURRAN: We can go through
6 that, but for right now we are going to move to
7 the next two witnesses.
8 MR. BEVERE: Okay.
9 JUDGE CURRAN: Any other motions
10 that the plaintiff has or that the defense has?
11 Just I'm just trying to get a list. And
12 basically we are going to do those tomorrow,
13 unless there is an objection.
14 MR. MULLIN: Off the record,
15 Judge?
16 JUDGE CURRAN: I am going to put
17 the LAD motion down too because that was not
18 argued today.
19 Basically, before we go off the
20 record what I'm going to indicate in regard to
21 the motion, the basic, substantive, important
22 motion to dismiss at this point, I'm going to
23 reserve on that motion. I would like to reread
24 certain issues. I don't think that that will
25 give you any problem today. If it does,
53
1 something I'm not thinking of, please let me
2 know.
3 MR. PARIS: We'll continue.
4 JUDGE CURRAN: Okay. Thank you.
5 MR. MULLIN: Your Honor, can we
6 have --
7 JUDGE CURRAN: Surely. Off the
8 record.
9 (Whereupon, a brief recess is
10 taken.)
11 COURT STAFF: Jurors approaching.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, the jury is brought
14 into the courtroom.)
15 D E T. S G T. T H O M A S O ' K E E F F E is
16 Duly sworn by a Notary Public of the State
17 Of New Jersey and testifies under oath as
18 Follows:
19 JUDGE CURRAN: Thank you, sir.
20 Please be seated. You're under oath. All your
21 testimony must be -- be truthful and accurate to
22 the best of your ability. Do you understand
23 that?
24 THE WITNESS: I do.
25 JUDGE CURRAN: Thank you. Please
54
1 give us your full name for the record and spell
2 your last name.
3 THE WITNESS: Detective Sergeant
4 Thomas O'Keeffe, O apostrophe K-e-e-f-f-e.
5 JUDGE CURRAN: Thank you. And
6 what is your address?
7 THE WITNESS: My current home
8 address?
9 JUDGE CURRAN: Yes.
10 THE WITNESS: It's 5 Elliott
11 Court, Morganville, New Jersey.
12 JUDGE CURRAN: Thank you. It's
13 fine as far as I'm concerned, but the computer
14 does not appear to be working. Is that a
15 problem for anyone? Or we can go off the
16 record.
17 MR. MULLIN: We will go forward.
18 JUDGE CURRAN: I'm sorry?
19 MR. MULLIN: We will go forward
20 without the computer.
21 JUDGE CURRAN: Thank you very
22 much. Your witness.
23 MR. BEVERE: Thank you, Your
24 Honor.
25 DIRECT EXAMINATION BY MR. BEVERE:
55
1 Q Detective Sergeant, I am going to
2 ask you to keep your voice up, so I can hear you
3 down here.
4 A Yes.
5 Q Detective Sergeant, by whom are
6 you employed?
7 A Secaucus Police.
8 Q How long have you been employed by
9 the Secaucus Police?
10 A Twenty years.
11 Q What is your current position?
12 A Detective Sergeant.
13 Q And how long have you been a
14 detective?
15 A Detective, since 1997.
16 Q And how long have you been a
17 sergeant?
18 A Sergeant, since -- it's three years for
19 sergeant.
20 Q Now, Detective, at some point were
21 you assigned to the investigation of an incident
22 that is alleged to have taken place in the early
23 morning hours of April 25th, 2004?
24 A Yes.
25 Q And who made that assignment?
56
1 A Detective Captain Buckley.
2 Q And did you prepare police reports
3 to document your involvement in that
4 investigation?
5 A I did, yes.
6 Q As you are sitting here today do
7 you recall what you did, or do you need to see
8 your reports to refresh your recollection?
9 A I recall. I may need to see some, if I
10 need it.
11 Q Well, let's go on. Let's start,
12 see what you recall; and then we will show you
13 reports as needed.
14 A Okay.
15 Q Do you recall when it was that you
16 first became involved in the investigation?
17 A I would believe it would be the next day
18 after it happened.
19 Q Do you recall what your
20 involvement was? What was your -- what was your
21 initial involvement in the investigation?
22 A If -- whatever was alleged to happen,
23 we -- Detective Captain Buckley would assign it
24 to myself or someone else, and we'd follow up
25 on --
57
1 Q What I'm asking you is: Do you
2 recall the first thing you did?
3 A Oh, I don't know --
4 Q If you need to see your report, I
5 will show you your report.
6 A I don't recall which was first.
7 Q Okay. I am going to show you a
8 report we marked as D-29 for Identification.
9 MR. BEVERE: Your Honor, there is
10 a deposition transcript up here of Mayor Elwell.
11 I am going to return it to --
12 MS. SMITH: Thank you.
13 JUDGE CURRAN: Thank you.
14 MR. BEVERE: -- Mr. Mullin.
15 MR. MULLIN: Thank you.
16 BY MR. BEVERE:
17 Q Detective, what I have marked as
18 D-29 for Identification, is that a copy of your
19 report?
20 A Yes, it is.
21 Q Okay. Could you tell us the date
22 of that report, please?
23 A It's dated April 28th, 2004.
24 Q Okay. And if you need your
25 report -- do you need your report to refresh
58
1 your recollection as to what you did on that
2 day?
3 A Sure.
4 Q Okay. Tell us the first thing
5 that you did in regard to the investigation on
6 April 28th, 2004.
7 A I contacted the Hudson County
8 Prosecutor's Office and spoke to Assistant
9 Prosecutor Don Gardner with regard to this.
10 MR. MULLIN: Your Honor, I am
11 going to object to the hearsay that's included
12 in this report.
13 JUDGE CURRAN: The question --
14 MR. BEVERE: I will ask him
15 different question, Judge, no problem.
16 JUDGE CURRAN: Sir, just be
17 careful please to listen to the question and
18 answer it as it's asked by Mr. Bevere because he
19 is going to be asking questions under the rules
20 thank you.
21 THE WITNESS: Thank you.
22 JUDGE CURRAN: The objection is
23 noted for the record.
24 BY MR. BEVERE:
25 Q Did you place a phone call to the
59
1 Assistant Prosecutor Don Gardner.
2 A I did.
3 Q What was the purpose of your
4 placing the phone call?
5 A To see if the incident was a bias matter.
6 Q And without telling us anything
7 that Don Gardner -- I'm sorry, who was Don
8 Gardner?
9 A He is assistant prosecutor with the
10 Hudson County Prosecutor's Office.
11 Q Did you know Mr. Gardner?
12 A Personally, not really, no.
13 Q Did you contact Mr. Gardner on
14 your own, or were you instructed to contact him?
15 A I was instructed to contact him.
16 Q By whom?
17 A Detective Captain Buckley.
18 Q And again, what was the purpose of
19 your contacting him?
20 A To see if the criteria meets bias
21 incident.
22 Q And did you have a discussion with
23 Don Gardner about that?
24 A I did, yes.
25 Q And without telling us anything
60
1 that Mr. Gardner said, what, if anything, did
2 you do in response to your phone conversation
3 with Mr. Gardner?
4 A We discussed the incident, and I did a
5 report.
6 Q Okay. Did you personally make any
7 further contact with Mr. Gardner after this?
8 A No.
9 Q Do you know if anyone else in the
10 Detective Bureau did?
11 A I don't know.
12 Q If it was, you wouldn't have been
13 involved in it?
14 A Right.
15 Q Did you provide Mr. Gardner with
16 information in this conversation?
17 A Yes.
18 Q And did you make any requests of
19 Mr. Gardner?
20 A No.
21 Q Now, looking at -- let's go to the
22 next thing that you did, which would have --
23 well, let me show you -- let me ask you first,
24 do you recall the next thing that you did in
25 regard to the investigation without looking at a
61
1 report?
2 A No, sir.
3 Q Okay. Let me show you what I have
4 marked as D-29 -- I'm sorry, D-77 for
5 Identification. And I'll take D-29 back.
6 MR. BEVERE: Judge, I apologize --
7 MR. MULLIN: D-86?
8 MR. BEVERE: -- my papers are --
9 JUDGE CURRAN: It's okay.
10 MS. SMITH: 77.
11 MR. BEVERE: 77.
12 BY MR. BEVERE:
13 Q Okay. Do you have in front of you
14 what we have marked as D-77 for Identification?
15 A Yes, I do.
16 Q Okay. And can you tell us what,
17 if any, action you took in regard to the
18 investigation -- first of all, what's the date
19 of D-77?
20 A May 3rd, 2004.
21 Q And can you tell us what, if any,
22 action you took in regard to the investigation
23 on that date?
24 A I checked our in-house computer for any
25 contact the Police Department may have had with
62
1 Mr. Carter.
2 Q Anyone else besides Mr. Carter?
3 A And Mr. deVries.
4 Q Okay. And why did you check your
5 records to locate this information?
6 A To see if there's been any other
7 incidents with them that we have had contact
8 with them.
9 Q And what did the search of your
10 records reveal?
11 A One contact with each of them.
12 Q And can you describe for us the
13 nature of the -- were these contacts -- describe
14 for us the nature of the contacts and the dates
15 of those contacts.
16 A Okay. Back in 2002 Mr. Peter deVries was
17 stopped for speeding in a motor vehicle and his
18 car was impounded. And in 2003 a Tim Carter was
19 a complainant regarding noise coming from the
20 firehouse.
21 Q I'm sorry, what was the date of
22 that?
23 A That was 2003.
24 Q And --
25 A I don't know exact date.
63
1 Q Did you actually find a copy of
2 the complaint that Mr. Carter had lodged?
3 A Yeah, there would be a report with that,
4 yes.
5 Q I am going to show you what has
6 been marked as D-78 for Identification and ask
7 you if that's a copy of the complaint.
8 MR. MULLIN: I think we need a
9 sidebar on that one.
10 A Yes.
11 MR. BEVERE: Sure.
12 Q Let me take that back, thank you.
13 (Whereupon, the following sidebar
14 discussion is held.)
15 MR. MULLIN: Judge, I allowed this
16 to go a little bit; but defendants applied for
17 and won an in limine motion barring me from
18 putting in any noise or drinking complaint. And
19 I complied with this in this trial. Now Defense
20 is putting in Evidence of a prior noise
21 complaint violating the in limine ruling of the
22 Court. So that should be the end of that, Your
23 Honor.
24 I don't know why this report on
25 prior complaint came in just now. And I don't
64
1 know why an additional report is coming in,
2 since they moved for the in limine.
3 MR. BEVERE: I will explain that
4 in two -- two parts. Detective -- the purpose
5 of Detective O'Keeffe -- I believe we testified
6 whether there had been any prior contact with
7 Mr. deVries and Mr. Carter. And the purpose of
8 that was to determine whether or not there had
9 been previous complaints there were lodged by
10 the Police Department. One of the issues in
11 this case is whether the Police Department was
12 deliberately indifferent. So one of the reasons
13 that we searched the computer is to find out if
14 there were, in fact, prior complaints.
15 JUDGE CURRAN: No, no, with all
16 due respect, it couldn't be that the computers
17 were searched on this date because there was a
18 complaint in this case. It happened --
19 MR. BEVERE: He searched the
20 computer to determine if there had been any
21 prior complaints, prior contact with the
22 residents by the agency.
23 JUDGE CURRAN: Not because this
24 case had been filed and there was an issue in
25 this case; just because that was theoretically
65
1 the standard procedure, correct?
2 MR. BEVERE: My understanding --
3 and I can have Captain Buckley clean this up
4 this afternoon, but Captain Buckley wanted --
5 one of the things that deVries and Carter had
6 said to the police is that they had been
7 complaining for three years about the Fire
8 Department. And the Town and the police did a
9 search of their records to see if there were any
10 prior complaints by deVries and Carter. That
11 was the reason.
12 MR. MULLIN: Well, Your Honor,
13 there were other complaints by other neighbors.
14 And there were, in fact, many complaints -- not
15 many, there were some complaints by Carter
16 and/or deVries. And the counsel for the Town
17 moved to bar us from putting that evidence in.
18 And we obeyed that. And maybe in retrospect for
19 them it wasn't the wisest thing for them to move
20 on. But we lived by that, and now they're
21 violating that order.
22 JUDGE CURRAN: I'm -- I'm sorry,
23 Mr. Mullin. That's my concern. That's why I
24 was looking carefully at the date of it when he
25 spoke. I was surprised because Mr. Paris
66
1 referred to that yesterday, and I was surprised
2 at that.
3 MR. MULLIN: Yeah.
4 JUDGE CURRAN: But as I said, I
5 try not to interfere --
6 MR. BEVERE: Judge, I'll withdraw
7 it.
8 JUDGE CURRAN: What was the
9 purpose -- well, the trouble is it's already on
10 there. The information is already on the
11 screen. The jurors have already --
12 MR. PARIS: I didn't put that up.
13 JUDGE CURRAN: It's not on screen?
14 MR. BEVERE: No, it's not on the
15 screen.
16 JUDGE CURRAN: Thank goodness for
17 no electronic assistance. But the information
18 is already on there as far as Mr. deVries was
19 stopped for speeding and the car is impounded.
20 I mean, frankly, there is a question as to why
21 it would be impounded. My understanding would
22 be, unless there was a problem with the license,
23 registration, the car would -- or he had been
24 drinking, the car would not be impounded. But I
25 don't think the jury is going to look at that.
67
1 But that's a whole other issue. It doesn't say
2 anything about any other allegation other than
3 speeding.
4 MR. MULLIN: I think that's --
5 JUDGE CURRAN: But really, that's
6 a red herring. The real question is
7 Mr. Carter --
8 MR. BEVERE: I think we should
9 end, and I will move on and.
10 MS. SMITH: I think we need a
11 curative.
12 MR. MULLIN: I think we need a
13 curative instruction.
14 JUDGE CURRAN: Well, in
15 fairness --
16 MR. BEVERE: What would -- I would
17 like to hear the curative instruction.
18 JUDGE CURRAN: That I am going to
19 strike the last question and answer, that there
20 had been previous rulings and that this is not
21 allowed under those previous rulings.
22 MR. PARIS: Were the previous
23 rulings with regard to neighbors making noise
24 complaints?
25 MR. MULLIN: You made an in
68
1 limine. Noise complaints, you barred them all.
2 JUDGE CURRAN: I'm sorry, I don't
3 understand the question of neighbors. I just
4 don't understand, Mr. Paris.
5 MR. PARIS: I thought it was an
6 instruction with regard to neighbors making
7 other complaints.
8 MS. SMITH: Your motion.
9 JUDGE CURRAN: As I remember, it
10 was your motion.
11 MR. PARIS: Of course.
12 JUDGE CURRAN: I'm sorry. So did
13 I misunderstand your original motion?
14 MR. BEVERE: Judge.
15 JUDGE CURRAN: No?
16 MR. BEVERE: You can give the
17 curative instruction. I will move on.
18 JUDGE CURRAN: Thank you.
19 (Whereupon, sidebar discussion is
20 concluded.)
21 JUDGE CURRAN: Ladies and
22 Gentlemen, I am going to strike the last
23 question and the last answer. There have been
24 previous rulings, and those are not allowed
25 under the previous rulings. So again, just
69
1 please disregard that. Thank you. Mr. Bevere.
2 BY MR. BEVERE:
3 Q Detective, as you are sitting here
4 would you have independent recollection of the
5 next thing that you did with regard to the
6 investigation; or would you need to see your
7 report?
8 A I would like to see the report.
9 Q Okay. I am going to show you
10 what's been marked as D-86 for Identification
11 and ask you if that is your report?
12 A Yes.
13 Q And does that document what you
14 did on that particular day?
15 A Yes, it does.
16 Q Okay. Going to -- I'm sorry, and
17 what is the date of D-86?
18 A May 6th, 2004.
19 Q And can you tell us based upon
20 your report what it is that you did on that date
21 in regard to the investigation?
22 A I received a phone call from Mr. Tim
23 Carter. Can I say what he told me?
24 Q Yeah, you can tell us the date of
25 the phone call and what was said.
70
1 A On May 5th, 2004 --
2 MR. MULLIN: Your Honor.
3 Excuse me, sir.
4 The witness is reading, so I
5 wonder if we need to establish that he has no
6 present recollection.
7 MR. BEVERE: Sure. Judge, I will
8 be happy to lay the foundation.
9 JUDGE CURRAN: Thank you.
10 BY MR. BEVERE:
11 Q Detective, without looking at your
12 report can you tell us what was said in the
13 conversation between you and Mr. Carter without
14 looking at your report?
15 A No.
16 Q Okay. At the time you made the
17 report -- well, was the report made at around
18 the time that you had the conversation with
19 Mr. Carter?
20 A Sure, it's made right after the
21 conversation.
22 Q And did your report at that time
23 accurately reflect what was -- what was
24 discussed between you and Mr. Carter?
25 A Yes.
71
1 MR. MULLIN: Okay. Judge, at this
2 point in time I would ask permission for the
3 witness to read from the report?
4 JUDGE CURRAN: Thank you.
5 MR. BEVERE: Thank you.
6 BY MR. BEVERE:
7 Q You can go ahead and read from
8 your report, Detective, if that helps you.
9 A All right. I received call from
10 Mr. Carter on May 5th, 2004 at approximately
11 3:45 p.m. telling me that he received an e-mail
12 from a woman.
13 Q You can go ahead. You can read
14 from your report.
15 A Okay. He said the e-mail came from a
16 Cathy Burk, who was a relative from a fireman.
17 And he told me that he would forward it to me.
18 I told him Mr. Carter that I would like to
19 respond to his house to --
20 Q Detective, let me just -- you have
21 permission to read the document --
22 A Read verbatim?
23 Q -- as opposed to summarizing it.
24 A Okay, good. "On Wednesday May 5th, 2004
25 at approximately 1545 hours the undersigned did
72
1 receive a phone call from Tim Carter.
2 Mr. Carter told me that he received an e-mail
3 from a woman saying she can identify the firemen
4 involved in this incident. He said the e-mail
5 came from Cathy Burk and that she is a relative
6 of a fireman. Mr. Carter said he will forward
7 it. At this time I told Mr. Carter that I would
8 respond so I can print a copy of the e-mail. He
9 said why do I have to respond; and I advised him
10 that I would like to print the e-mail from his
11 machine, the computer. He then said that means
12 I would have to go to his house. I told him
13 yes, it would only take ten minutes. He then
14 told me he is very busy, that he has to finish
15 something and he will not be available until
16 6 p.m. I then told him I will have Sergeant
17 Reinke respond at 6 p.m. to retrieve a copy of
18 the e-mail. He then said not to have Sergeant
19 Reinke respond until he, Carter, calls to
20 confirm he is ready. I told him to call when he
21 is ready and Sergeant Reinke will respond. The
22 call was then ended."
23 Q I will have that back, thank you.
24 And Detective, do you know whether Mr. Carter
25 called at 6:00?
73
1 MR. MULLIN: Objection. He has no
2 present recollection.
3 JUDGE CURRAN: Sustained.
4 MR. MULLIN: Well, he had no
5 recollection of the specifics of the
6 conversation. Now I am asking him, Judge, if he
7 recalls whether or not Mr. Carter called
8 following the conversation.
9 JUDGE CURRAN: Is there a document
10 that goes to that issue? Is there any kind of a
11 report to that issue?
12 MR. BEVERE: Well, there were
13 reports that Mr. Reinke testified to. I am
14 simply asking this witness if he is aware as to
15 whether or not Detective Reinke or Detective
16 DeGennaro -- first of all, I want to ask him if
17 he received a phone call from Mr. Carter at
18 6:00.
19 JUDGE CURRAN: I will allow that
20 question.
21 BY MR. BEVERE:
22 Q Do you recall whether or not you
23 received a phone call from Mr. Carter at 6:00 or
24 some -- sometime thereabouts?
25 A I do not know.
74
1 Q Do you know whether or not
2 Detective Reinke went to deVries' and Carter's
3 house to retrieve a copy of the e-mail?
4 A I don't know whether --
5 MR. MULLIN: Objection. That
6 would be hearsay.
7 JUDGE CURRAN: He is just asking
8 does he know.
9 MR. MULLIN: His knowledge, okay.
10 BY MR. BEVERE:
11 A I don't know what Detective Reinke did as
12 far as the investigation.
13 Q Okay. Do you know what your next
14 involvement was with regard to the matter, or
15 would you need to see your report?
16 A I would see a report.
17 Q Okay. I am going to show you
18 what's been marked as D-88 for Identification.
19 And if you can tell us what that is and what the
20 date of that is?
21 A This is dated May 6th, 2004.
22 Q And is that your report?
23 A Yes, it is.
24 Q All right. And --
25 A Should I read it?
75
1 Q No, before we get to the -- to
2 the -- whether you can read your report or not I
3 want to ask you, as you are sitting here do you
4 have an independent recollection of the
5 information that's contained on that report?
6 A I feel more comfortable reading it, to be
7 honest with you.
8 Q Would you have prepared that
9 report within or at the time you received the
10 information referenced in that report?
11 A Absolutely. All my reports are --
12 Q Would that be accurate when it was
13 made?
14 A Yes.
15 MR. BEVERE: I ask that the
16 witness be permitted to read the report.
17 MR. MULLIN: Can we establish the
18 witness has no recollection, if he is going to
19 read?
20 BY MR. BEVERE:
21 Q Do you have any present
22 recollection of that conversation referenced in
23 that record?
24 A When I read it, it -- yes, it refreshes
25 my memory, yes, so --
76
1 Q Then without reading the report --
2 JUDGE CURRAN: You don't have any
3 present recollection without the report,
4 correct?
5 THE WITNESS: Correct.
6 BY MR. BEVERE:
7 Q You have no present recollection
8 without the report?
9 A Correct. You are confusing me here
10 because it's --
11 Q We don't mean to confuse you.
12 JUDGE CURRAN: That's our job.
13 That's our job.
14 Q What we need to know is whether or
15 not you have any present recollection of that
16 conversation, or do you need to read from your
17 report?
18 A I will read from my report.
19 Q You need to do that?
20 A Sure.
21 MR. BEVERE: Your Honor,
22 permission for the witness to read from the
23 report.
24 JUDGE CURRAN: So ordered.
25 BY MR. BEVERE:
77
1 Q Okay. You can go ahead and you
2 can read your report.
3 A "On Thursday, May 6th, 2004 the
4 undersigned and Detective Lieutenant Malanka,
5 while discussing the e-mail that listed victim
6 said he received from Cathy Burk, report the
7 following information. It could be possible the
8 e-mail originated from a Kathleen Berckes, a
9 former resident from Secaucus who also has a
10 brother Mike Berckes, a former Secaucus fireman
11 and former residents. I did check DMV files and
12 found Kathleen M. Kilpatrick, married name, of 9
13 Roger Norton Place, Cranford, New Jersey, phone
14 number (908)272-5082. I did call and leave a
15 message for Mrs. Kilpatrick to call the
16 undersigned."
17 Q I will take that back. Thank you.
18 Detective, as you are sitting here today do you
19 have a recollection of whether or not you
20 received a phone call back from Miss Kathleen
21 Kilpatrick in response?
22 A I'm not sure if she called back.
23 Q If you had received a response,
24 would you have prepared a report on it?
25 A Yes, I would have.
78
1 Q Now --
2 MR. BEVERE: I'm sorry, Your
3 Honor. I'm trying to negotiate the fan here.
4 Q Detective, are you familiar with
5 an incident involving a Ford Bronco?
6 A Yes.
7 Q Okay. Do you recall what if --
8 how you're familiar with it?
9 A We were told that it --
10 MR. MULLIN: Objection, hearsay.
11 JUDGE CURRAN: Sustained.
12 BY MR. BEVERE:
13 Q Okay. Were you involved in
14 investigating an incident with a Ford Bronco?
15 A Yes, I was.
16 Q Okay. And did you prepare -- did
17 you review any reports on the incident?
18 A Yes.
19 Q Okay. I'm going to show you what
20 I have marked as D-103, and I am going to ask
21 you if that's a report you viewed on the
22 incident?
23 A Yes.
24 Q And did you prepare reports
25 documenting your involvement in the
79
1 investigation with regard to the incident?
2 A Yes.
3 Q As you read the report that was
4 D-103 can you tell us what that incident
5 involved with the Ford Bronco?
6 A The Ford Bronco had passed the firehouse,
7 Schoppmann Drive, which is right by the
8 firehouse; and someone was out cutting their --
9 doing their lawn work, yard work. And he
10 overheard the passenger say something to the
11 driver of that vehicle.
12 Q And do you recall what it was that
13 he overheard the passenger saying to the driver?
14 A I do, yes.
15 Q Excuse me?
16 A Yes, yes.
17 Q What was -- what was it that you
18 recall being said?
19 A It was some -- it was a comment, "The
20 homos are out," in that regard.
21 Q And as you're sitting here do you
22 have an independent recollection of what your
23 involvement was with regard to the investigation
24 of this incident, or do you need to see your
25 report?
80
1 A I -- I have a recollection.
2 Q You do? Okay.
3 A Yes.
4 Q Tell us what your involvement was
5 in regard to the investigation of that incident.
6 A We tried to locate the Ford Bronco and
7 identify who was in -- within the car at that
8 time.
9 Q Did you take any witness
10 statements in connection with the incident?
11 A Yes, I did.
12 Q Whose statement did you take?
13 A It was a Patrick Hjelm. He -- he
14 happened to be the owner of the house who was
15 the one that overheard the comment.
16 Q I'm just going to show you what's
17 been marked as D-108 and D-109 and ask you if
18 that's the statement of Patrick Hjelm that you
19 took?
20 A Yes.
21 Q Okay. I'll take that back.
22 Unless you need to refresh your recollection,
23 did Patrick Hjelm give you a description of the
24 vehicle?
25 A Yes.
81
1 Q And do you recall as you are
2 sitting here the description of the vehicle, or
3 do you need to see it?
4 A I would like to see it.
5 Q Okay. Okay. I'm sorry.
6 A Okay.
7 Q What was the description of the
8 vehicle? I apologize.
9 A It was a Ford Bronco II, light brown with
10 dark fenders.
11 Q Okay. And I will take that back.
12 And did you make any effort to locate this
13 vehicle?
14 A Yes, we did.
15 Q Tell me the efforts that you made
16 to locate this vehicle.
17 A We would be detailed to sit at the
18 firehouse to see any -- if any cars fitting that
19 description did pass by or respond to the
20 firehouse. We also checked names of some of the
21 firemen on a sheet, signed sheet that they had
22 to see if any firemen had a registered vehicle
23 of that nature.
24 Q And what were the results of your
25 search?
82
1 A Negative results, nobody had that type of
2 vehicle registered to them.
3 Q Did you check any of other
4 firehouses besides the North End?
5 A I believe we checked all the firehouses,
6 yes.
7 Q And I'm also going to show you a
8 report that is marked as D-11 for
9 Identification. And I'm going to ask you if you
10 recognize that document?
11 A Yes.
12 Q Okay. And what's the date of that
13 report?
14 A This is May 5th, 2004.
15 Q Was that prepared by you?
16 A Yes, it was.
17 Q Okay. And without looking at the
18 report --
19 MR. PARIS: Is that D-111 or --
20 MR. BEVERE: D-111, I apologize.
21 BY MR. BEVERE:
22 Q Without looking at the report do
23 you have an independent recollection of what you
24 did in regard to the investigation of this
25 incident on that date?
83
1 A I have a somewhat, yes.
2 Q Excuse me?
3 A Somewhat of a recollection.
4 Q Tell us what you recall.
5 A We did locate the vehicle that did fit
6 that description. I made contact with the owner
7 of that vehicle and spoke to him and found out
8 that he wasn't a fireman or anything.
9 Q And then did you document your
10 conversation with him?
11 A I did, yes.
12 Q Okay. Do you recall whether or
13 not you asked this individual if he had any
14 knowledge of the incident?
15 A Yes.
16 Q And what was his response to you?
17 A He had no knowledge.
18 Q And was this -- I'm sorry, was
19 this individual a fireman?
20 A No, he was not.
21 Q And Detective O'Keeffe, do you
22 recall whether you received any information from
23 Patrol Officer Mangone that was provided to her
24 by Mr. Carter?
25 A Yes, I did.
84
1 Q Okay. As you are sitting here
2 today do you have an independent recollection of
3 when that took place and what was provided to
4 you?
5 A I don't have -- I have a recollection of
6 what took place but not an exact date of when it
7 took place.
8 Q Okay. If I show you report, will
9 it refresh your recollection --
10 A Sure.
11 Q -- as to the date?
12 MR. MULLIN: What number is that?
13 MR. BEVERE: I'm sorry, I am going
14 to show him first D-148 and D-149.
15 BY MR. BEVERE:
16 Q Before I -- before I ask you a
17 date, let me just step back for a second. As
18 you are sitting here today do you have an
19 independent recollection of what was provided by
20 Patrol Officer Mangone?
21 A Yes.
22 Q What was provided by Patrol
23 Officer Mangone?
24 A It was a description and license plate of
25 a vehicle, I believe.
85
1 Q And do you know where Patrol
2 Officer Mangone received this information
3 regarding the description of the vehicle and the
4 license plate?
5 A From Mr. Carter or deVries.
6 Q And to your knowledge did
7 Mr. Carter and Mr. deVries provide some
8 documentation on that?
9 A I'm not sure about documentation.
10 Q Let me show you what's been marked
11 as D-149 and ask you if it refreshes your
12 recollection?
13 A Yes.
14 Q And was that what was provided to
15 you by Patrol Officer Mangone?
16 A Yes, yes.
17 Q Now I am going to show you your
18 report, which -- well, let's -- let's start with
19 what is your understanding of what D-149 is?
20 A It's a description and license plate of
21 the vehicle from Mr. Carter given to us.
22 Q Okay. What's your understanding
23 as to who prepared D-149?
24 A Mr. Tim Carter.
25 MR. BEVERE: Okay. Your Honor,
86
1 I'm going to ask for permission for him to put
2 it up on the board.
3 JUDGE CURRAN: Any objection?
4 MR. MULLIN: No.
5 MR. BEVERE: Permission --
6 MR. MULLIN: This is 149?
7 JUDGE CURRAN: 149.
8 MR. BEVERE: 149.
9 MR. MULLIN: I have a different
10 one -- that's not 149.
11 MR. PARIS: I'm putting it in.
12 MR. BEVERE: These technical
13 glitches, Judge.
14 MR. MULLIN: I have no objection
15 to that.
16 JUDGE CURRAN: Okay.
17 BY MR. BEVERE:
18 Q Okay. And if you could read D-149
19 for us.
20 A "Chief, I think that the kid, blond,
21 skinny, tattoo on arm, rather tall, short hair
22 who drives around with someone who drives
23 license number K06 KLF, dark green SUV, is one
24 of the" -- I can't make out that word -- "who
25 continues harassing me and the one involved
87
1 incident report of May 1st. Thanks Chief. Tim,
2 988 Schopmann."
3 Q Okay. Do you know whether or not
4 the Police Department ran that plate?
5 A Yes.
6 Q And what were the results, if you
7 know?
8 A It came back no record, not on file.
9 Q And at some point did you take any
10 follow-up steps in regard to this information?
11 A Yes.
12 Q Do you need to see your report to
13 refresh your recollection as to what you did?
14 A Sure.
15 Q Okay. Well, as you're sitting
16 here do you have any independent recollection of
17 what you did?
18 A I -- sure.
19 Q Why don't you look at your report,
20 refresh your recollection, then we'll talk about
21 it.
22 A Okay.
23 MR. BEVERE: Oh, I'm sorry. For
24 the record what I have shown the witness is
25 D-153?
88
1 JUDGE CURRAN: Thank you.
2 BY MR. BEVERE:
3 Q Is this a copy of your report?
4 A Yes, it is.
5 Q And what is the date of that
6 report?
7 A May 23rd, 2004.
8 Q Okay. And what was the date of
9 Patrol Officer Mangone's report pursuant to
10 which she provided you the information?
11 A May 23rd, 2004.
12 Q Okay. And as you are sitting
13 here -- you could keep the report in front of
14 you to refresh your recollection, but could you
15 tell us what you did in follow-up to your being
16 provided this information from Patrol Officer
17 Mangone?
18 A Yes, I checked the license plate with DMV
19 files. Came back not on file, no record. I
20 also spoke to Mr. Hjelm regarding that, see if
21 he had any license plates of the car that drove
22 by. And I also checked the firemen again to see
23 if they had vehicle registered to them fitting
24 that description, as well.
25 Q Was Mr. Hjelm -- or did Mr. Hjelm
89
1 provide you with any additional information
2 other than what he provided to you on May 1st?
3 A Just a description of the -- the driver.
4 Q Okay. And in regard to -- I'm
5 sorry, I missed the second thing that you did.
6 And you also -- I'm sorry, you talked about
7 checking the DMV files. What did you use to
8 check the DM files against -- the DMV files
9 against?
10 A There was a signed sheet of the
11 fireman -- firemen with the names on it.
12 Firemen, more than one.
13 Q I am going to show you D-154 for
14 Identification and ask you if that's the signed
15 sheet that you checked the DMV files against?
16 A Yes.
17 Q What was the result of your search
18 against the DMV files?
19 A Negative results. Nobody had a vehicle
20 registered like that to them.
21 Q And I'm going to show you -- well,
22 let me ask you first, do you have an independent
23 recollection of an incident reported by Mr.
24 Carter whereby there was a suspicious vehicle or
25 he reported a suspicious vehicle sitting outside
90
1 his house?
2 A There -- there were several reports of
3 that, yeah.
4 Q I am going to ask you for -- do
5 you recall a specific report by Mr. Carter
6 wherein he reported that a vehicle was sitting
7 on the street in front of his house?
8 A No.
9 Q Okay. I'm going to show you a
10 report, and I'm going to ask you if it refreshes
11 your recollection. I will show you D-160. Does
12 that refresh your recollection?
13 A Yes.
14 Q Okay. Do you recall whether or
15 not you were involved in any follow-up to this
16 report?
17 A I don't believe I was.
18 Q Let me show you a report, see if
19 it refreshes your recollection. I will show you
20 D-161.
21 A Oh, that's -- yeah, I did.
22 Q Can you tell us -- without looking
23 at your report can you tell us what it was that
24 you did?
25 A Yes, I had contacted the New Jersey State
91
1 Police to do an off-line search, which is a
2 search of a partial plate of motor vehicles.
3 Q Who would that partial plate have
4 been provided by?
5 A The New Jersey State Police.
6 Q Who provided Secaucus Police
7 Department with partial plate?
8 A I received it from Sergeant DeGennaro.
9 He would have received it from, I guess,
10 Mr. deVries.
11 MR. MULLIN: Objection. Objection
12 to where Sergeant DeGennaro got it.
13 JUDGE CURRAN: Noted on the
14 record.
15 MR. BEVERE: Excuse me, Judge.
16 JUDGE CURRAN: It's noted on the
17 record. It's on the record.
18 MR. BEVERE: Thank you, Judge.
19 BY MR. BEVERE:
20 Q So you were provided with a
21 partial plate for this vehicle?
22 A Correct.
23 Q Then what did you do with the
24 partial plate information?
25 A I contacted the New Jersey State Police
92
1 Off-line Search Division and supplied them with
2 the information. And they put it through their
3 system, and they come back with all -- whatever
4 matches come back to that partial plate,
5 sequence of numbers to that.
6 Q And do you recall whether or not
7 there were any matches?
8 A Yes, there were.
9 Q Let me show you your report marked
10 D-162.
11 A Okay.
12 Q All right. So just explain to me
13 again. You contact the State Police, and what
14 do you do?
15 A Contact the State Police. You speak to
16 the Trooper who's assigned to that unit. You
17 give them whatever partial plate you have,
18 whether it be the front three, two numbers,
19 three numbers. Whatever it is, you give them
20 those numbers. They put it into the DMV files,
21 and it comes back with every plate that has a
22 sequence of those numbers. So if it's ABC, they
23 would come back with every plate that starts
24 with ABC down the line. So it could be
25 thousands, actually.
93
1 Q And as you're sitting here today,
2 without looking at your report, do you recall
3 whether -- do you recall what the results of the
4 search were?
5 A There were -- yes, there were -- there
6 was like 1,300, maybe more.
7 Q That came back with partial plate?
8 A Partial plate, yeah.
9 Q As you are sitting here today do
10 you have a recollection whether any of those
11 partial plates came back to Secaucus residents?
12 A I believe one did.
13 Q And do you recall who that plate
14 belonged to?
15 A I don't remember the name, but -- no.
16 Q Did you make a written record of
17 it?
18 A I did, yes.
19 Q Would it have been accurate when
20 it was made?
21 A Yes.
22 MR. BEVERE: Judge, ask for
23 permission for him to read from D-162. He has
24 no recollection, and he said it was accurate
25 when it was made.
94
1 MR. MULLIN: Let me just see
2 D-162.
3 JUDGE CURRAN: So ordered.
4 MR. MULLIN: No objection.
5 BY MR. BEVERE:
6 A "On this date, Thursday, May 27th, 2004,
7 the undersigned did receive the off-line search
8 information from Trooper Duffy of the New Jersey
9 State Police. The results contained a total of
10 1,631 New Jersey license plates starting with
11 MRL. A check of these results yielded a total
12 of 92 possible suspect vehicles. One result
13 comes back to a Secaucus resident, MRL 33B, to a
14 Volkswagen, color red, to a Giacomo Sallustio,
15 D.O.B. 03/24/1958. This vehicle does not match
16 the description of the suspect vehicle. All
17 results attached."
18 Q And then did you log those results
19 into evidence?
20 A I did.
21 Q And for the record, what is D-163?
22 A That's my property in evidence report
23 showing the off-line search, that it was logged
24 into evidence.
25 MR. BEVERE: Okay. Your Honor if
95
1 I could have a second to review my notes,
2 please?
3 JUDGE CURRAN: Sure.
4 Off the record.
5 (Whereupon, a discussion is held
6 off the record.)
7 JUDGE CURRAN: Back on the record.
8 COURT CLERK: On the record.
9 BY MR. BEVERE:
10 Q Just one last question. As you
11 are sitting here today do you have a
12 recollection of whether you ever saw an e-mail
13 from a Cathy Burk?
14 A I never saw one, no.
15 MR. BEVERE: No further questions.
16 Thank you, Your Honor.
17 JUDGE CURRAN: Thank you.
18 CROSS EXAMINATION BY MR. MULLIN:
19 Q Good morning, Officer.
20 A Good morning.
21 Q Do you know whether Tim Carter
22 sent that e-mail to the Attorney General's
23 Office, to their investigator?
24 A I do not know.
25 Q You don't know that, right?
96
1 A No.
2 Q Sir, you've described looking for
3 a car in connection with the May 1 incident
4 where someone yelled, "The homos are home. The
5 homos are home," right?
6 A Correct.
7 Q Also you mentioned to the jury
8 that Detective DeGennaro is also involved to
9 some degree in that matter, right?
10 A Correct.
11 Q Are you aware of any police report
12 where Mr. Hjelm said that if he -- that if he
13 saw the person again, one of the people in the
14 car, he would be able to identify him? Are you
15 aware of that?
16 A Yes.
17 Q You are. And you never conducted
18 any photo arrays in order to help Mr. Hjelm
19 identify that person, right?
20 A No.
21 Q You are not aware that anyone
22 conducted any photo arrays to help identify him,
23 right?
24 A No.
25 Q Photo array is when you lay out a
97
1 bunch of --
2 A I understand this.
3 Q -- photographs and you ask the
4 person to pick one, right?
5 A Yes.
6 Q I just want to clear something up.
7 I think that was P-149. You were asked about
8 D-111, a report you wrote on 5/5/04, where you
9 found someone with a car that was similar to the
10 one Hjelm had seen, right?
11 A Right.
12 Q And you didn't have a license
13 plate at that point, right? I mean, you had a
14 description of a car, right?
15 A Correct.
16 Q And what you found is that
17 Mr. Badio had a Ford Bronco, colored red with
18 light color wheel walls, right?
19 A Correct.
20 Q You are not taking a position that
21 no fireman in Secaucus owned such a car, right?
22 A I did a search through DMV files, and no
23 fireman had a vehicle fitting that description.
24 Q Okay. Let's take a look --
25 A Yes.
98
1 Q -- at that. Sir, the incident
2 happened on May 1, 2004, right? I will show you
3 Pat Hjelm's --
4 A Okay.
5 Q -- statement to refresh your
6 recollection. Right?
7 A Yeah.
8 Q Is that fair --
9 A Sure.
10 Q -- incident happened on May 1?
11 You didn't even do this search until May 23rd,
12 right, 22 days later, right? Show you D-153.
13 A Okay.
14 Q And there you say, "The
15 undersigned also checked DMV vehicle" -- "DMV
16 files for any suspicious vehicles possibly being
17 registered to a fireman of Rescue 1." And then
18 you list the names of the people whose DMV
19 records you say you checked, right?
20 A Right.
21 Q That's not all firemen in
22 Secaucus, right?
23 A That was from the fire -- the signed
24 sheet, firemen from the signed sheet.
25 Q I understand you took the sign-in
99
1 sheet and you took their names and you say you
2 ran a check on their DMV files, right? And this
3 report shows -- you say you ran a check on the
4 report on the guys in Rescue One, right?
5 A Right.
6 Q It doesn't say you ran a check on
7 all the volunteer firemen of Secaucus, right?
8 A Right.
9 Q It doesn't say that. And you are
10 not aware of any report that says that, right?
11 A No.
12 Q And this report doesn't even show
13 the backup data showing that you ran a check on
14 all the DMV records of these firemen, right?
15 Doesn't show the backup data?
16 A Correct.
17 Q You actually had some backup data
18 that you talked about before where you did run a
19 check, right?
20 A It's in all -- right.
21 Q This doesn't have that data,
22 right?
23 A No, it does not.
24 Q Okay. And in checking to see --
25 in -- in checking out this incident of May 1,
100
1 say was there a fire -- was there a police
2 officer in the parking lot of the firehouse at
3 the time this incident happened on May 1, the
4 day they reopened the firehouse? Was there a
5 police officer there who got to witness this
6 incident?
7 A I don't know if there was a fire --
8 police officer there.
9 Q Are you aware of any police report
10 stating that a police officer was present in the
11 parking lot doing surveillance and he witnessed
12 this incident, "The homos are home. The homos
13 are home"? Are you aware of any report to that
14 effect?
15 A No.
16 Q Have you ever heard of any, such
17 an observation by a police officer?
18 A No.
19 Q And was there a police officer in
20 the parking lot when Tim Carter reported yet
21 another suspicious vehicle?
22 A Yes.
23 Q Who was the police officer that
24 observed what was in the parking lot at the
25 moment Tim Carter observed that vehicle?
101
1 A I believe it was Officer Mangone who's in
2 the parking lot at one point. I don't know if
3 it's the same point you are talking about.
4 Q Let's see. Mangone. Oh, let me
5 try to get the Mangone report. I think the
6 Mangone report you referred to in your
7 testimony. It's D-148. And that's a report by
8 Linda Mangone, right?
9 A Yes.
10 Q And it's dated May 23rd, '04. And
11 it talks about Pat Hjelm. It says, "On this
12 date, May 23rd, while the undersigned was
13 conducting a special detailed assignment at 988
14 Schoppmann, the undersigned was approached by
15 the victim who reported the following. He
16 stated that his neighbor, Pat Hjelm, supplied
17 him with a description of an actor and vehicle
18 involved in previous incidents." Then he quotes
19 Tim -- this is Tim Carter quoting Patrick.
20 "Patrick saw the actor who was a passenger in a
21 dark green vehicle." And it was Patrick who
22 gave this New Jersey registration, this New
23 Jersey license number, right?
24 A Right.
25 Q Okay. Now, this is May 23rd,
102
1 2004, right?
2 A Yes.
3 Q Officer Mangone was not in the
4 parking lot of the firehouse or stationed
5 anywhere near the house, according to this
6 report, on the night of the incident of May 1,
7 2004, true?
8 A I don't know where she would have been.
9 Q You have no knowledge at all about
10 where she was, right?
11 A No.
12 Q And nowhere in this report does it
13 say there was a police officer who was stationed
14 in the firehouse parking lot on surveillance of
15 Tim Carter and Peter deVries' residence, right?
16 A Not to my knowledge.
17 Q Doesn't say that. Are you aware
18 of any report concerning any of the incidents
19 you just discussed showing that police officers
20 of the Secaucus Police Department were stationed
21 in the firehouse parking lot at the moment these
22 incidents that are being reported occurred? Are
23 you aware of any report to that effect?
24 A No.
25 Q Was there a -- any sort of
103
1 surveillance mechanism placed in or near 988
2 Schopmann?
3 MR. BEVERE: Judge, objection.
4 Same -- I'm not going to go to sidebar. I think
5 we have already addressed this issue.
6 JUDGE CURRAN: Sustained. I am
7 going to sustain it, unless there is an argument
8 that's different.
9 MR. MULLIN: I have made all my
10 arguments, Your Honor.
11 JUDGE CURRAN: Noted.
12 MR. MULLIN: Nothing further.
13 MR. BEVERE: Judge, just a couple
14 quick questions.
15 REDIRECT EXAMINATION BY MR. BEVERE:
16 Q Detective, when you spoke to
17 Patrick Hjelm, did he describe for you or did --
18 when you -- when you spoke to Patrick Hjelm, how
19 did he characterize the exchange between the
20 people that he overheard in the vehicle?
21 MR. MULLIN: Objection, Your
22 Honor, calls for hearsay. How did Patrick Hjelm
23 describe --
24 JUDGE CURRAN: I'm going to rule
25 it -- the information is in other reports.
104
1 Otherwise, I am just going to overrule it.
2 MR. MULLIN: The other basis for
3 objecting is I believe that was the report for
4 which he said he had no present recollection.
5 JUDGE CURRAN: Yes, I believe that
6 is. So you can -- if you want to give --
7 MR. BEVERE: I will show him the
8 statement that he took of Mr. Hjelm.
9 MR. MULLIN: That's already
10 been -- well, Your Honor, I'm going to object to
11 the reading of that statement.
12 MR. BEVERE: I am not going to ask
13 him to read it.
14 MR. MULLIN: What are we asking
15 here exactly?
16 MR. BEVERE: I am going to ask him
17 to look at the statement to see if it refreshes
18 his recollection as to what Patrick Hjelm told
19 him happened.
20 JUDGE CURRAN: And that's a yes or
21 no question. He can say yes, it refreshes or
22 no, it doesn't refresh. He says yes, then you
23 can ask him a question but not ask -- if he says
24 yes, then take the report back, if you would,
25 please.
105
1 MR. BEVERE: Absolutely.
2 JUDGE CURRAN: Thank you.
3 MR. BEVERE: Absolutely.
4 BY MR. BEVERE:
5 Q Why don't you take a second and
6 read the statement.
7 A Yep.
8 JUDGE CURRAN: Please indicate for
9 the record the number.
10 MR. BEVERE: Oh, two pages.
11 JUDGE CURRAN: Two pages?
12 MR. BEVERE: Yes. And it would be
13 D-108 and 109.
14 JUDGE CURRAN: And 109, thank you.
15 BY MR. BEVERE:
16 Q Okay. What did Patrick Hjelm tell
17 you that he heard?
18 MR. MULLIN: Your Honor, I'm going
19 to object to double hearsay.
20 JUDGE CURRAN: Right.
21 MR. MULLIN: What did Pat tell you
22 that he heard?
23 JUDGE CURRAN: First of all, you
24 need to ask him does that refresh his
25 recollection.
106
1 MR. BEVERE: I'm sorry.
2 BY MR. BEVERE:
3 Q Does that refresh your
4 recollection now about your conversation with
5 Mr. Hjelm?
6 A Yes.
7 JUDGE CURRAN: Then rephrase.
8 Q What was your understanding of
9 what it was Mr. Hjelm heard?
10 A Just a comment being passed by another
11 person, one person talking to another person in
12 the car.
13 Q Was it your understanding that
14 people were yelling, "The homos are home"?
15 A Absolutely not.
16 JUDGE CURRAN: I'm sorry, I'm
17 sorry, Mr. Mullin.
18 Did you have another question,
19 Mr. Bevere?
20 MR. PARIS: He is still asking.
21 MR. MULLIN: Is he done asking?
22 MR. BEVERE: I'm sorry, Judge,
23 very --
24 BY MR. BEVERE:
25 Q What is your understanding as to
107
1 why Patrol Officer Mangone was in the parking
2 lot of the North End firehouse on May 23rd,
3 2004?
4 MR. MULLIN: Objection, Your
5 Honor. He is asking the motive for Officer
6 Mangone to be there. He doesn't know the
7 motive. He has no foundation for that.
8 JUDGE CURRAN: Well, it's not
9 really a motive; but I'm going to ask you to
10 rephrase it and basically back it up.
11 BY MR. BEVERE:
12 Q Do you have an understanding as to
13 why Patrol Officer Mangone was in the parking
14 lot of 988 Schopmann on May 23rd, 2004?
15 A Yes.
16 Q And what is that understanding?
17 A We were detailed by the Chief to do a
18 surveillance, stay in the area of that area, the
19 firehouse, 988 Schopmann, in case of any other
20 incidents during -- like when there is activity
21 at the firehouse and throughout the course of
22 the night, make hourly checks of it, yes.
23 MR. BEVERE: No further questions,
24 thank you.
25 MR. MULLIN: Excuse me, Your
108
1 Honor, we have to find the document.
2 JUDGE CURRAN: I'm sorry -- no
3 problem.
4 MR. MULLIN: Excuse me, Your
5 Honor. We have -- well, I'll start questioning
6 while we look for this thing.
7 RECROSS EXAMINATION BY MR. MULLIN:
8 Q Mr. Bevere just asked you what
9 your understanding was of why Officer Mangone
10 was in the parking lot on May 23rd, right? Here
11 is Officer Mangone's report. Maybe I'm missing
12 something. This is D-148. Where does she say
13 she was in the parking lot of the firehouse?
14 A Doesn't say she was in the actual parking
15 lot, but she was on a detail at 988 Schopmann
16 Drive.
17 Q Said she was on a detail at 988
18 Schopmann Drive. Doesn't say she was in the
19 parking lot, right?
20 A No.
21 Q And you've given a reason to this
22 jury as to why she was in the parking lot on --
23 at that time?
24 A My reason -- my reason --
25 Q I'm just asking yes or no
109
1 question. You just gave this jury a reason why
2 she was in the parking lot? You know, go ahead,
3 what would you like to say?
4 A We were on a detail. It doesn't
5 necessarily mean you have to sit in that exact
6 parking lot. You have to sit in that area of
7 988 Schopmann Drive and look for anything looks
8 suspicious or for what's been going on.
9 Q Officer, this doesn't say, "We
10 were on detail." Just describes her being on a
11 detail, right?
12 A Correct, correct. When I say, "we," I
13 mean the Secaucus Police Department, the
14 officers who are working or assigned to that
15 specific zone. That would be their detail. If
16 you have that zone, which is Zone 3, that's part
17 of your -- your assignment for the evening.
18 Q Officer, are you aware of a police
19 report by Detective DeGennaro -- hold on one
20 sec. Are you aware of a police report -- we
21 don't have to dig for this now.
22 A Excuse me?
23 Q -- by an officer of the Secaucus
24 Police Department indicating that Mr. Hjelm
25 stated that he heard the words, "The homos are
110
1 home. The homos are home" yelled? That's the
2 verb that was used, "yelled." Not "spoken" but
3 "yelled."
4 A No.
5 MR. BEVERE: Judge, I am going to
6 object. We are talking about hearsay now. I am
7 going to object on the grounds of that.
8 JUDGE CURRAN: Sustained.
9 MR. BEVERE: Thank you.
10 MR. PARIS: Your Honor, can we
11 also have an identification of the document for
12 the record that counsel is referring to?
13 JUDGE CURRAN: I think that's --
14 MR. MULLIN: We will do that
15 during the break.
16 MR. PARIS: I'm sorry.
17 BY MR. MULLIN:
18 Q You weren't present on May 1, 2004
19 when this incident occurred, right?
20 A No.
21 Q And no Secaucus Police Officer
22 that you know of was present then, right?
23 A Right.
24 Q And are you aware that that's the
25 day the firehouse social wing was reopened after
111
1 being shut following the incident of April 25th,
2 2004? Are you aware of that?
3 A I don't know when it was reopened, sir.
4 I have nothing to do with that.
5 MR. MULLIN: I have nothing
6 further.
7 MR. BEVERE: No questions.
8 JUDGE CURRAN: Thank you. Is
9 there anyone on the jury who has a question for
10 this witness? If so, please raise your hand.
11 Anyone on the jury has a question?
12 I see no questions. Thank you,
13 sir. You may step down.
14 THE WITNESS: Thank you.
15 (Whereupon, the witness is
16 excused.)
17 MR. BEVERE: Judge, I'm going to
18 ask permission to take the lunch break because,
19 quite frankly, I thought with what we had
20 scheduled for this morning was going to take a
21 little longer, so my next witness will be
22 here --
23 JUDGE CURRAN: Will he be here at
24 1:30?
25 MR. BEVERE: Yes, absolutely he
112
1 will be here at 1:30.
2 JUDGE CURRAN: Okay. Do you know
3 if the witness might be here before that?
4 MR. BEVERE: I think he said he
5 will be here by 1.
6 JUDGE CURRAN: Okay. Why don't we
7 take it halfway. If the jurors would please be
8 back no later than 1:15. Okay. Again, please
9 don't discuss the case in any way, thank you.
10 Off the record.
11 (Whereupon, the jury is excused
12 for lunch.)
13 MS. SMITH: Judge, if any witness
14 this afternoon and, really, before any other
15 witnesses take the stand, I would like to be
16 heard on the Town attorney issue, especially
17 because Mr. Bevere indicated Mr. Corcoran is
18 going to testify about something that the Town
19 attorney said and he is an afternoon witness.
20 JUDGE CURRAN: I apologize. I
21 thought the first two witnesses there was no
22 question they were not --
23 MR. BEVERE: Captain Buckley will
24 not.
25 JUDGE CURRAN: Right. And that
113
1 you were going to -- I didn't realize that --
2 MR. BEVERE: I was going to
3 tell --
4 JUDGE CURRAN: -- in regard to
5 Chief Corcoran --
6 MR. BEVERE: I was going to tell
7 Chief Corcoran -- I said -- I told you that I
8 had discussions with Chief Corcoran.
9 JUDGE CURRAN: Exactly.
10 MR. BEVERE: But I will tell Chief
11 Corcoran not to mention conversations that he
12 had with the Town attorney.
13 MR. PARIS: Hold on. I think we
14 need to look at the issue first.
15 MS. SMITH: Good. Can we look at
16 it now? Because I would like to strike the
17 testimony before the jury gives it too much
18 conversation, Your Honor.
19 JUDGE CURRAN: Mr. Paris or Mr.
20 Bevere.
21 MR. BEVERE: Dave can do it.
22 MR. PARIS: I think we need to
23 know, number one, what testimony they're talking
24 about. They have already indicated it's
25 Interrogatory -- what was it -- mentioned -- 50?
114
1 MS. SMITH: Judge, I have a copy
2 of the Interrogatory for you. I have a copy of
3 the answer. Plaintiffs Interrogatory number 50.
4 JUDGE CURRAN: Excuse me. 10,000
5 pages up here.
6 MS. SMITH: Sorry, Your Honor.
7 JUDGE CURRAN: No, thank you.
8 MR. BEVERE: Judge, I will address
9 it.
10 MS. SMITH: And this is their
11 answer. The question, as you can see, Your
12 Honor is: Describe in detail each and every
13 meeting that has occurred from the year 2003 to
14 the present at which any employee or agent of
15 any defendant discussed any and all complaints
16 made by the plaintiffs against Engine Company
17 Number 2 of the Secaucus Fire Department, A, the
18 date which each such meeting took place, B, the
19 name, last known address, last known telephone
20 number, job title and current employment status
21 of each person who was present, C, the subject
22 matter of the discussion, D, what action was
23 taken, if any and, E, what method of recording
24 the meeting was used, if any and, F, attach
25 hereto a copy of each and every document and/or
115
1 recording set forth in answer to support C of
2 this Interrogatory.
3 The answer supplied in number 50
4 describes a meeting after the incident attended
5 by the Police Chief, the Mayor, the Deputy
6 Mayor, the Fire Chief, the deputy Fire Chief and
7 the battalion chief. Now, we also know that
8 there were other people there from other
9 documents and testimony; but nobody has claimed
10 that the Town attorney was there ever.
11 Further down on --
12 JUDGE CURRAN: I apologize, wasn't
13 the testimony of the Mayor yesterday that the
14 Town attorney was not there?
15 MR. BEVERE: He was not there for
16 the meeting.
17 JUDGE CURRAN: Okay.
18 MR. BEVERE: He said he was on the
19 phone with him in and out, but he was not there.
20 MS. SMITH: The -- at the end of
21 number 50, "Any other meetings would have
22 occurred in the presence of counsel and
23 accordingly are subject to the attorney-client
24 privilege and the contents thereof are
25 nondiscoverable."
116
1 Then we took some depositions,
2 Your Honor. Chief, Fire Chief Walters never in
3 his entire deposition mentions advice of counsel
4 ever.
5 Mr. Iacono talks about two things
6 with regard to the Town attorney. Page 50, that
7 he participates in creating EEO policy. And
8 page 71, where he says that, "I was advised by
9 general counsel, as well as the labor attorney
10 that this is no longer municipal issue, as far
11 as there was nothing else we could do, just wait
12 for the outcome of the action reviewed by the
13 Attorney General's Office." This was in
14 response to being shown the letter from the
15 Attorney General's Office. The only mention
16 ever of Iacono, and it related to the Attorney
17 General investigation.
18 With regard to Elwell -- you just
19 gave me that. Mayor Elwell. Oh, I have it.
20 Okay, Your Honor. Mr. Elwell, page 32 in his
21 deposition, the Town attorney reports to him.
22 Page 49, he called the Town attorney. He does
23 not say anything about the Town attorney's
24 advice. Page 51, he opines that he thinks maybe
25 the Town attorney was upset at the word -- use
117
1 of the word "cock-sucker." Of course, now we
2 know that the Town attorney wasn't even at the
3 meeting where that was being discussed. And
4 that's it. That's Mayor Elwell about the Town
5 attorney in his deposition.
6 Now, yesterday we have a whole
7 new defense. We have Mr. Iacono, after a
8 leading question by Mr. Bevere at page 50 of the
9 transcript, "Mr. Iacono, did you have a
10 conversation with the Town attorney Frank Leanza
11 about this incident?"
12 "Yes, I did."
13 Page 54, "But did you go ahead
14 and do that?" We were talking about an
15 investigation.
16 Answer blurted out at page 54 --
17 I'll wait, Your Honor.
18 JUDGE CURRAN: Thank you. I'm
19 sorry.
20 MS. SMITH: I'm sorry.
21 JUDGE CURRAN: Thank you. Go
22 ahead. Page 54?
23 MS. SMITH: Page 54, "On the
24 advice of counsel." Then there is our
25 objection. The objection is sustained. The
118
1 jury has heard it based on a leading question.
2 Page 85 -- this is still Mr.
3 Iacono -- "and all of my discussions with the
4 Town attorney, who played a very important role
5 in the decisions that we were making, obviously,
6 because there are, well, you know, legal
7 questions and legal considerations that the Town
8 attorney was advising us on." Page 85 on to 86.
9 That's still Iacono.
10 On page 95, question from Mr.
11 Bevere, "You didn't write any investigative
12 report regarding the incident" -- this might be
13 cross, Your Honor. "You didn't write any
14 investigative report concerning the incident of
15 April 25th, 2004 during this time period, after
16 this -- the Attorney General's investigation
17 ended until you left Secaucus, right? In that
18 period you didn't write an investigative report,
19 right?"
20 Answer, "Based on the direction I
21 received, no, sir."
22 Nowhere in any deposition ever
23 does anybody claim that the Town attorney gave
24 any advice at all after the Attorney General
25 stopped their investigation. Nobody claimed
119
1 that anywhere.
2 In fact, we were never told
3 specifically about the attorney's advice, except
4 for when the Attorney General took over. And we
5 were told in their own Interrogatory answers
6 that we couldn't ask about it, which is why Mr.
7 Leanza was not deposed.
8 Page 109. This is Mr. Bevere
9 doing redirect of Mr. Iacono. "After July 2005
10 when the Attorney General closed their
11 investigation you" -- "Mr. Mullin asked you --
12 I'm sorry, page 109, line 13. "Now, Mr. Mullin
13 asked you whether you had ever written a letter
14 recommending that anyone be suspended or
15 disciplined after July of 2005 when the Attorney
16 General closed their investigation. Your answer
17 is no. And I'm going to ask you why?"
18 And it goes down. And he doesn't
19 get the answer he wants, so on page 111 Mr.
20 Bevere asks a leading question. "Was this
21 matter reviewed by the Secaucus Town attorney?"
22 Answer, "Yes, it was." Yes.
23 From Mr. Bevere, "Did the Town
24 seek legal advice from its Town attorney?"
25 Then we had a long objection.
120
1 And -- and then again, because he couldn't get
2 it out.
3 On page 112, "Without telling us
4 anything that Chief Corcoran told you, did you
5 have any discussions with Chief Corcoran?"
6 Now, obviously, the witnesses
7 have been told to say, "Town attorney" as many
8 times as possible in front of this jury, "I had
9 verbal discussions the entire length of my
10 vacation with public officials. That included
11 the Police Chief, the Town attorney, the Mayor
12 and the Deputy Mayor."
13 That's nowhere in his deposition.
14 "In regard to the -- in the
15 letter" -- again, a leading question. Page
16 14 -- line 14, "In the letter dated May 10th
17 from the Attorney General's Office, to your
18 knowledge was that reviewed by counsel?"
19 It doesn't matter what the answer
20 is. The jury has heard it now. They have heard
21 it again and again yesterday. I believe I
22 counted 25 times, Your Honor.
23 Page 115, "Mr. Iacono, do you
24 know whether the letter was provided to the
25 Council for the Town of Secaucus?"
121
1 "Absolutely."
2 Page 124, Mr. Bevere, "Mr.
3 Iacono, in July of 2005 or thereabouts, when the
4 Town was made aware that the Attorney General's
5 investigation was closed, did you seek legal
6 advice from the Town attorney with regard to the
7 issue of discipline?"
8 Answer over objection,
9 "Absolutely."
10 "And without telling us what
11 advice you received, did you receive legal
12 advice?"
13 "Absolutely."
14 That's nowhere anywhere in
15 discovery, Your Honor.
16 Let's go on to the other
17 witnesses yesterday who were able to now put
18 forward a new defense that we were precluded
19 from doing any discovery on. Now we are at --
20 who was second? Sorry, Judge, it's not easy to
21 read these.
22 We are on Elwell. Mr. Elwell, in
23 his deposition he does say that he put a call in
24 to the Town attorney. He -- and then he
25 couldn't really remember. On page 231 he says
122
1 that he had a conversation with the Town
2 attorney. At page 232 he says he knows there
3 were conversations with the Town attorney. He
4 may have been -- over -- over Mr. Mullin's
5 objections, again, about conversations with the
6 Town attorney.
7 On page 234 he gets it out again,
8 a telephone conversation with the Town attorney.
9 On page 239, contrary to his
10 deposition, where he does not mention receiving
11 a call from the Town attorney and he lists he
12 got a call from his wife and he got a call from
13 his businesses. That's his testimony in his
14 deposition. "I know I did receive one call from
15 the Town attorney because initially I had -- I
16 think I had reached out to him."
17 Now, Mayor Elwell does indicate
18 that later on he talked to the Town attorney.
19 Nobody indicated anywhere in discovery -- and we
20 were barred from discovery about the Town
21 attorney telling the Town what to do and what
22 their advice was.
23 But if you get to page 241,
24 again, Mr. Elwell, "We had a conversation with
25 our Town attorney. Both the Chief of Police and
123
1 the Town attorney concurred that there was
2 obviously something here, a very, very serious
3 nature." He is telling us what the Town
4 attorney said. "Very, very possible accusations
5 of hate crimes. We would likely go to the
6 Prosecutor's Office. We were -- we spoke to the
7 Town attorney. I believe we had a conversation
8 with the Town attorney." He has gotten it out
9 four times in one answer.
10 Page 243, "I immediately called
11 the Town attorney." Now he remembers that
12 his -- that, "the Town attorney informed me to
13 tell the Chief of Police." He is telling us
14 what the Town attorney told him to do. Nowhere
15 in his dep.
16 We were precluded from that
17 discovery. We did not take Mr. Leanza's dep
18 because of the answer to number 50 in our
19 Interrogatories.
20 Page 254 he blurts out on cross,
21 "by the Town attorney not to," over objections.
22 This is when Your Honor had to ask him to please
23 not talk over objections. And he still kept it
24 up.
25 On page 256, "because we were
124
1 informed by the Town attorney."
2 The jury heard this over and over
3 and over again. And they heard it again at page
4 265. "That point I had heard enough." Now,
5 this is about the tape. They never said this
6 before. The Town attorney -- "I called the Town
7 attorney." The Town attorney -- here is a Town
8 attorney's advice after they asserted the
9 attorney-client privilege, "to me was to call
10 the Police Department."
11 So, Your Honor, we have a new
12 defense and -- I'm sorry. That was in response
13 to a juror question.
14 Obviously, the witnesses got out
15 "Town attorney" as frequently as they could
16 yesterday. We were precluded from discovery
17 because they asserted the attorney-client
18 privilege. The jury should be told to
19 completely disregard any comments about any
20 advice received from the Town attorney.
21 Now, to be fair, Your Honor, we
22 do have one letter that was produced in
23 discovery. It's D-256. It's P-183. I will
24 give you a copy. We have no objection to Mr.
25 Leanza discussing the fact because --
125
1 JUDGE CURRAN: Thank you.
2 MS. SMITH: -- I'm sure, as Your
3 Honor knows, Town attorneys have public duties.
4 They sit up at Town Council meetings. They may
5 say things in public. And then they have
6 private conversations and give private legal
7 advice.
8 If they want to put Mr. Leanza up
9 to talk about this letter, the only document
10 produced in discovery relating to him -- and we
11 were not allowed to explore any meetings. He
12 can't talk about any meetings or any advice he
13 gave other than this letter. We will concede
14 that we had this letter and we thought that was
15 the extent of any waiver. And we didn't
16 consider it a waiver because it looked like it
17 was made public.
18 JUDGE CURRAN: Anything else?
19 MS. SMITH: No -- and obviously,
20 this letter is -- is --
21 JUDGE CURRAN: This letter is
22 clear.
23 MS. SMITH: Yes, yes, thank you,
24 Your Honor.
25 JUDGE CURRAN: Mr. Bevere or
126
1 Mr. Paris, who's going to argue?
2 MR. PARIS: If I may. Number one,
3 Your Honor, obviously, counsel has had a
4 significant period of time in order to review
5 this.
6 JUDGE CURRAN: I'm sorry, I didn't
7 hear you.
8 MR. PARIS: Counsel for the
9 plaintiffs have obviously prepared this.
10 Certainly we were not aware that they were going
11 to make this application until we came in today.
12 So they have gone through the whole thing.
13 Number one, we have produced a
14 letter. The letter indicates that a copy is
15 being provided for each councilman. So for them
16 to say that there was a blanket attorney-client
17 privilege claim is incorrect. That's number
18 one.
19 JUDGE CURRAN: I'm sorry, just --
20 pardon me?
21 MR. PARIS: This letter, the D-256
22 and 257 letter from Mr. Leanza, it's addressed
23 to Mayor Elwell.
24 JUDGE CURRAN: Is that the same as
25 Plaintiff's 183?
127
1 MS. SMITH: Yes, I'm sorry, I
2 didn't have an extra copy with the same number.
3 MR. PARIS: April 28th.
4 JUDGE CURRAN: Okay.
5 MR. PARIS: Okay. Dated
6 April 28th, all right. It's addressed to Mayor
7 Elwell. And he indicates in the last paragraph
8 they enclosed for distribution a copy of the
9 letter for each councilman. Then he lists each
10 of the councilmen as cc'd. He didn't list
11 anyone other than the Mayor and Council in this
12 letter. How they can claim that somehow there
13 is a blanket attorney-client privilege once they
14 receive a letter from an attorney to his clients
15 providing legal advice, that's number one.
16 It -- this is totally inconsistent with a
17 blanket claim of attorney-client privilege.
18 Number two, during the
19 deposition -- if I can just pull it up. During
20 the deposition of Mr. Iacono, all right, at page
21 71, yeah, he says, "Did you ever write a report?
22 And what does he say?"
23 He says, "I was advised by
24 general counsel"; and then he goes on to talk
25 about the advice that he had that had been
128
1 given, that this is no longer municipal issue,
2 as far as there was nothing else we could do,
3 just wait for the outcome of the actual review
4 by the Attorney General's Office.
5 Now, is that -- was there an
6 objection to the question? No. Was there a
7 claim of attorney-client privilege? No. Did
8 their attorney who was taking the deposition
9 decide not to go any further? Obviously, they
10 did. That's not our fault. That's not our
11 problem.
12 Okay. So now you have got a
13 deposition that they were taking of the
14 administrator, where he not only says that he
15 had conferred with counsel but also advises on
16 the record what he was told by counsel. It was
17 their decision not to question Elwell or not to
18 question Iacono or whoever they decided to
19 question or not question.
20 I don't believe there was another
21 point -- and I wasn't at the depositions; but
22 I'm sure, if there was a point during any of
23 these depositions -- and God knows there were a
24 lot of them -- where there was a claim of
25 attorney-client privilege, okay, I don't see it.
129
1 Now, with regard to the
2 Interrogatories, okay, the Interrogatories talk
3 specifically about meetings. It talks
4 specifically about meetings. It doesn't ask
5 what advice was given. Doesn't ask what
6 discussions were held. And it talks about a
7 meeting that was held the morning following.
8 Okay. The Mayor indicated that
9 he was on the phone with the attorney, that he
10 was getting phone calls back and forth from the
11 attorney. Okay. Your Honor -- Your Honor
12 indicated that there would be no hearsay
13 testimony with regard to what Mr. Iacono had to
14 say. At the same time, yesterday during
15 discussion at sidebar, if I can find it -- and
16 again, I apologize, Your Honor; I am doing this
17 a little bit on the fly. Here. Okay.
18 Yesterday, page 48. Forty-eight of the
19 transcript of day 11, if Your Honor has that.
20 JUDGE CURRAN: I do.
21 MR. PARIS: There was a sidebar.
22 Okay. There was a sidebar. And what was
23 discussed? What was discussed was Mr. Bevere
24 saying, "Witness received an instruction from
25 the Town attorney not to do investigation and
130
1 it's not hearsay. This was an instruction
2 provided to him by the Town attorney."
3 Basically saying it wasn't offered to prove the
4 truth; it was just, you know, based upon, you
5 know, what were you advised.
6 Your Honor said, you know, "Okay.
7 But you can handle it. Just rephrase the
8 question."
9 Mr. Mullin said, "I want to be
10 heard." Okay. Mr. Mullin said, "The Town --
11 that's a hearsay statement. That is an
12 out-of-court declaration offered for the truth
13 of the matter asserted. If they want to put the
14 Town attorney on, he can do that. He is listed
15 as a witness. He can testify."
16 Mr. Bevere said, "He is listed as
17 a witness."
18 Judge, you had indicated, "You
19 can save the questions for him. You can go back
20 at this witness a different way, but what you
21 asked him would elicit hearsay."
22 Okay. So there was a discussion
23 yesterday about the testimony of Mr. Leanza. It
24 was anticipated that Mr. Leanza would come in.
25 At no point did counsel say, "Wait a minute" --
131
1 and they have had our witness list for a long
2 time. At no point did they say, "Wait a minute.
3 Mr. Leanza is coming in? We didn't take any
4 discovery on Mr. Leanza. We didn't take his
5 deposition. We thought there was going to be an
6 attorney-client privilege on Mr. Leanza."
7 And yesterday counsel again
8 didn't bring up an attorney-client privilege.
9 Said Mr. Leanza can testify what he said; but if
10 they testify as to what Mr. Leanza said, then
11 that's hearsay. Then that's hearsay.
12 And that's where we were
13 yesterday. That's where we were yesterday. Now
14 to ask that this -- this be stricken, the fact
15 that they consulted with the Town attorney,
16 that's -- that's -- that is so -- it's so
17 incredible, it's so drastic to think that the --
18 that the Town witnesses are not going to be
19 allowed to testify that they received legal
20 advice, that they conferred with an attorney on
21 the matter.
22 JUDGE CURRAN: Well, with all due
23 respect, just so I'm clear, I do not -- I did
24 not think the objection was to any testimony
25 that they conferred with or consulted the Town
132
1 attorney but just what they did as a result or
2 that that might get in, depending what the Town
3 attorney told them. For instance, the testimony
4 that said, "I didn't write the report" or, "I
5 did do this because the Town attorney told me
6 that was the legal way to proceed," that's what
7 I understand the objection --
8 MS. SMITH: That's exactly the
9 objection, Your Honor. I don't think we waived
10 that objection. On page 48 of day 11 I can tell
11 you we didn't know yet that we were being
12 sandbagged with an entire new defense that
13 everybody is going to get on the stand and say,
14 "Town attorney" as frequently as they could.
15 So I went home last night. I
16 thought that -- that the -- there had been an
17 attorney-client privilege. And I didn't
18 consider the one letter that I thought he was
19 going to testify about to waive the entire
20 privilege for them. I didn't think it -- it
21 waived it. And they certainly didn't change --
22 amend their Interrogatory answer and say we take
23 back the privilege objection. So we assumed
24 that Mr. Leanza is going to testify about 256
25 and that's it.
133
1 So at page 48, I don't think
2 that's a waiver of us saying, oh, yeah, bring
3 Mr. Leanza in to tell what he said after the
4 Attorney General's investigation and every --
5 what he said about reopening the firehouse and
6 that everybody now relied on his -- and -- and
7 when Mr. Paris says we didn't ask about it, they
8 had -- by the time we took the depositions, they
9 had already asserted it and not -- I read to you
10 every single witness' reference to the Town
11 attorney.
12 They weren't sitting at
13 deposition saying, "Oh, I did it because the
14 Town attorney told me to." The only reference I
15 read to you before Mr. Paris did that was page
16 71, and it referred to the Attorney General's
17 investigation and -- and what is now D-256,
18 P-183. We didn't consider that was a waiver.
19 If they had come in to depositions and said,
20 "Town attorney" a million times, I would have
21 made a motion that they waived the privilege and
22 taken his dep.
23 MR. PARIS: Your Honor, for
24 them -- I mean, for them to say that there is a
25 half of an attorney-client privilege so that --
134
1 so that people could talk about what the
2 attorney advised on one issue but not on another
3 issue, I have never heard of that being alleged,
4 that you -- you gave them a letter, you gave a
5 letter between attorney and client wherein legal
6 advice is contained.
7 A witness, the administrator,
8 testified not only that he spoke to the attorney
9 but then testified as to what advice was
10 contained. And to somehow think that there is
11 something called, you know, a half
12 attorney-client privilege, it doesn't exist.
13 Either you are going to testify, if you are
14 asked the question; or you're not going to
15 testify, if you are asked the question. And
16 here the witness testified when they -- when he
17 was asked the question. He gave them the
18 information about what the attorney had advised.
19 We gave them the letter, the correspondence with
20 the Town attorney, in terms of what he had
21 advised.
22 And I just don't -- you know,
23 I -- you know, the use of the term "sandbagged"
24 is just inappropriate here.
25 JUDGE CURRAN: All right. I
135
1 apologize for interrupting you. I am going to
2 ask everybody to stop using pejorative terms. I
3 think it's better -- and frankly, I was going to
4 indicate this -- with all respect and
5 recognition of all of you being professional, I
6 am especially concerned about taking such a long
7 trial where, frankly, both sides are working
8 very hard and having some inflammatory
9 pejorative terms used that will upset the work
10 that you all have done.
11 As I always say to people, I am
12 going to be here, anyway, you know. But I just
13 am concerned about that. As far as anything
14 inflammatory, any editorial words, everybody is
15 better not to do it. The jury will either see
16 these defendants as the worst people in the
17 world, or they'll not. They'll either see the
18 plaintiffs as the best people in the world or
19 not. But nobody needs to editorialize and use
20 adjectives we may regret or nouns.
21 But in this regard it -- it's
22 important, I think, that everybody stop accusing
23 everybody else of -- what I'm concerned about
24 here is the legal issue. And part of -- as I
25 understand your argument is that question 51
136
1 simply means meetings and not other
2 communications? Is that part of or a basis for
3 your argument, Mr. Paris?
4 MR. PARIS: Well, yeah. In fact,
5 it talks about the dates on which each meeting
6 took place.
7 JUDGE CURRAN: I understand that.
8 MR. PARIS: Yeah.
9 JUDGE CURRAN: Do you want to
10 argue the question of meeting with regard to
11 whether or not the Mayor talked to the Town
12 attorney, is that a meeting or is it not?
13 MS. SMITH: Judge, I would
14 certainly say that it's a meeting. If -- and
15 they didn't say on -- "Only on the telephone
16 does the Town attorney ever give me advice."
17 The implication was that they were having
18 meetings.
19 And -- and the other thing is,
20 Judge, if they were going to withdraw, there is
21 a recent Appellate Division case that if they're
22 going to change their positions -- I mean, once
23 you assert the privilege, you assert the
24 privilege. Was I to assume they were not going
25 to assert the privilege about discussions, only
137
1 in-person meetings?
2 JUDGE CURRAN: See, that's part of
3 my concern. Your argument is that the
4 plaintiffs are saying, well, it was half a
5 privilege. That argument cuts both ways. It
6 either half is asserted or not.
7 MR. PARIS: Well, that's -- that's
8 exactly what I'm saying. In other words, I -- I
9 think that it became clear during discovery that
10 the privilege was not being asserted when
11 documents are being produced --
12 JUDGE CURRAN: Any other document
13 besides this?
14 MR. PARIS: I don't think there
15 was any other document.
16 JUDGE CURRAN: So one document?
17 MR. BEVERE: No other documents
18 exist from the Town attorney.
19 MR. PARIS: Again, it's a
20 attorney-client document. It gives legal
21 advice.
22 MS. SMITH: Wait a minute.
23 MR. PARIS: Mr. Iacono was asked
24 the question as to -- as to -- you know, he was
25 asked a question. He answered by saying, "I
138
1 spoke to the Town attorney. He gave me advice.
2 You know, I don't know how they" -- and then --
3 and then Mr. Leanza is listed as a witness.
4 Yesterday, when there is objections, the
5 objections --
6 JUDGE CURRAN: I got that.
7 MR. PARIS: You know.
8 JUDGE CURRAN: What was the
9 thought as to what Mr. Leanza was going to
10 testify to; just simply what happened
11 immediately thereafter --
12 MS. SMITH: My assumption --
13 JUDGE CURRAN: -- April 28th?
14 MS. SMITH: -- really not looking
15 that forward into trial because we are taking it
16 a day at a time, was that -- and because he
17 wasn't listed specifically in Answers to
18 Interrogatories as a person with knowledge and
19 because they asserted the privilege, but they
20 had given us 256, we assumed he was going to
21 come on the stand and say, "Yeah, I provided
22 those statutes and I" -- "and I wrote this
23 letter." And that -- that was it.
24 And -- and they never amended
25 their Interrogatories to take back the assertion
139
1 of the privilege, which obviously didn't just
2 pertain to meetings. And the recent Appellate
3 Division decision says it was on them to do
4 that, not for us to discern, oh, they are
5 waiving the privileges in some respects because
6 they gave us one letter that I assumed was in
7 the public domain. Mr. Leanza may have said
8 things at Council meetings in front of the
9 public also. I don't consider that a waiver.
10 MR. PARIS: Your Honor, not only
11 that, not only that, if you look at the first
12 sentence of the letter, first sentence of the
13 letter it says, "In furtherance of our caucus
14 discussions." Okay. I mean, you know, I don't
15 know -- you know, it's funny. I guess if you
16 flip this around and we introduce this letter
17 and we said, you know, here is the letter. Here
18 is the advice that was given. You gave it to
19 your client," and then, when they went to --
20 when they went to cross-examine Mr. Leanza and
21 we got up and said, "We object, attorney-client
22 privilege," that would be one thing. Okay.
23 Then they would be arguing the other side of all
24 this, that there is no attorney-client
25 privilege.
140
1 It's like, you know, clearly the
2 actions -- the actions were such that there was
3 no claim of attorney-client privilege when it
4 came to advice that was given by Mr. Leanza.
5 Here -- you know, and again,
6 there were two instances during -- I mean during
7 discovery where clearly we were being
8 provided -- we were providing information that
9 the governing body had relied upon Mr. Leanza.
10 Mr. Iacono indicated he relied upon Mr. Leanza.
11 I think it's --
12 JUDGE CURRAN: Relying on it is
13 not the threshold question on this motion,
14 though. That -- there would be no problem if
15 the Mayor or Mr. Iacono yesterday said,
16 depending on what the question was, you know,
17 "Yeah, we conducted -- yeah, we relied upon his
18 advice." The problem was, "I didn't" -- for
19 example, "I didn't write a report after" -- "I
20 didn't write a report at all because I couldn't
21 write it. I was told by the attorney not until
22 the Grand Jury" -- "until the Attorney General's
23 Office concluded. And then, after they
24 concluded I didn't write it because counsel told
25 me not to." That's the problem.
141
1 MR. PARIS: But -- but it's not
2 the problem. It -- well, certain aspects -- and
3 a lot of that was stricken. There were times
4 that this was stricken yesterday.
5 JUDGE CURRAN: Some, but --
6 MR. PARIS: Some. But then, Your
7 Honor -- but then, Your Honor, we were operating
8 under the assumption yesterday; otherwise, we
9 would have asked the witnesses the question,
10 "Did you speak to the attorney with regard to
11 this issue?"
12 "Yes."
13 "Did he provide you with advice?"
14 "Yes."
15 "As a result of his providing you
16 with advice did you write the letter?"
17 "No."
18 Okay. But instead what was said
19 was, well, we're not going to let them talk
20 about the advice that was given. What we're
21 going to do is let Mr. Leanza come in, and he is
22 going to testify. So, you know, I don't -- I
23 don't know what to say. I mean, the -- you
24 know, there are situations where --
25 JUDGE CURRAN: So is the theory
142
1 that this letter of April 28th totally waives
2 the attorney-client privilege?
3 MR. PARIS: I think it does, to be
4 honest with you. I absolutely think it does.
5 How do -- you know, if we were on the other
6 side --
7 JUDGE CURRAN: Okay. I'm sorry.
8 If I might interrupt you because I am really
9 concerned about the court staff. Let's just say
10 this was a different kind of case; and let's
11 just say that there was a letter saying to
12 corporate defendants in some sort of a trademark
13 infringement case, okay, "Here are the laws
14 about interfering here are the laws about
15 harassing. Here are the laws about whistle
16 blowers. Make sure that you don't do any of
17 these things." Would the assumption then be
18 that, if there was a discussion with the
19 attorneys on a secret formula for this
20 corporation's entity, that that attorney-client
21 privilege -- that the attorney-client privilege
22 had been waived in regard to those details
23 because the letter saying, don't interfere, you
24 know, don't do this, don't get yourself -- run
25 yourself afoul of whistle -- whistle-blower
143
1 statutes, that just because that letter was
2 given to the defense, that therefore the -- I
3 mean to the plaintiffs, that therefore the
4 attorney-client privilege was waived in regard
5 to confidential attorney-client discussions in
6 regard to the patents, the copyrights, the
7 details of the entity that was in question?
8 MR. PARIS: Your Honor, I would
9 dare say that if our roles were reversed,
10 counsel for the plaintiffs would be saying, "You
11 waived the attorney-client privilege by
12 providing this letter. You waived the
13 attorney-client privilege." But I mean -- and
14 again --
15 JUDGE CURRAN: Okay. But do me a
16 favor and try my example. What's the answer?
17 MR. PARIS: I would say that in --
18 that if there was -- there was one -- if there
19 was one event, okay, one event but then there
20 was a separate issue, separate event, okay, as
21 compared to are we going to be able to
22 discipline, are we going to be able to
23 investigate and this was on a continuum -- if it
24 was a separate issue entirely, then perhaps
25 there would be a separate privilege on that
144
1 separate issue.
2 Okay. If they were -- you know,
3 and -- and again, I'll be fair in terms of this
4 case. If they were to ask, "Did the attorney
5 give you advice about settling the Carter and
6 deVries claims," okay, I would object to that.
7 I want to be fair. I would certainly object to
8 that. Okay.
9 On the other hand, if the
10 attorney -- once they do this and he is acting
11 in his role as the Town attorney, once they do
12 this, if he says, "Yes, I was giving advice as
13 to how they should conduct themselves with
14 regard to this incident, this matter," I think
15 that that privilege clearly has been waived by
16 two things, the letter and also by Mr. Iacono's
17 testimony at depositions.
18 JUDGE CURRAN: All right. What if
19 we brought Mr. Leanza in here with nobody
20 talking to him before that?
21 MR. PARIS: You want to take his
22 deposition, you mean, or --
23 JUDGE CURRAN: Well, no, I don't.
24 Ask him what his view was as the attorney of
25 whether or not there was any attorney-client
145
1 privilege in this case.
2 MR. PARIS: I don't know if --
3 JUDGE CURRAN: And then, depending
4 on what he says, ask him his view of the
5 April 28th letter because, frankly, he either
6 was talking to them thinking there was a
7 privilege, which there virtually always is, or
8 not. And I'm not talking about talking to
9 them -- not as Miss Smith said, I'm not talking
10 about at a couple council meetings or anything
11 like that. We may have to do that.
12 MR. PARIS: The only thing is if
13 he testifies, "At the time I wrote the letter I
14 thought there was an attorney-client privilege,"
15 okay, but -- but --
16 JUDGE CURRAN: I don't know what
17 he is going to say.
18 MR. PARIS: But let's say he does.
19 To handle it both ways, if we may, Your Honor,
20 if he says, "At the time I wrote the letter I
21 thought that it was a confidential privilege
22 communication," okay, the fact that it was
23 turned over to the plaintiffs, kind of doesn't
24 matter what he was thinking at the time. The
25 bottom line is that even if it was a privileged
146
1 document, it was being turned over to the
2 plaintiffs through the course of this
3 litigation. They were made aware that this
4 existed.
5 JUDGE CURRAN: Then we'd have to
6 get to was it turned over for a limited purpose,
7 what was it -- why was it turned over? I don't
8 even know what it was in response to. I don't
9 know how they got it. I don't know what -- was
10 it turned over as a document that was requested,
11 or was it turned -- I don't know.
12 MR. BEVERE: It was turned over by
13 us --
14 JUDGE CURRAN: Right.
15 MR. BEVERE: -- in response to
16 Interrogatory answers. It was also turned over
17 by the Attorney General's Office because they
18 had the letter, as well.
19 JUDGE CURRAN: Okay. But which --
20 MR. BEVERE: Actually, the
21 Attorney General's Office had only -- I think
22 had one page of the letter. We provided the
23 other page of the letter.
24 JUDGE CURRAN: That is a separate
25 issue because theoretically we could get to,
147
1 yeah, it was inadvertent or whatever. But why
2 did you guys turn it over? In response to which
3 request?
4 MR. BEVERE: There was a response,
5 I believe, to any and all documents that Mr.
6 Iacono had in his files pertaining to the
7 matter. We turned it over.
8 In addition, like I said, the
9 Attorney General -- the Attorney General had a
10 letter -- one page of the letter was in their
11 file. And I know that we were then asked for
12 the second page of the letter, which we
13 provided. That's my recollection.
14 JUDGE CURRAN: Thank you.
15 Miss Smith, anything else? We are all going to
16 have to think about this and see if we can find
17 some cases. Is there any undue prejudice to the
18 defense in indicating to Chief Corcoran that he
19 cannot use that defense, to use the plaintiffs'
20 term, at this point? See, that's what I'm
21 really concerned about is --
22 MR. BEVERE: Judge, my -- my
23 discussions with Chief Corcoran about his
24 testimony today in this case were such that a
25 mention of Town attorney is not necessary.
148
1 JUDGE CURRAN: Okay.
2 MR. BEVERE: So I mean --
3 JUDGE CURRAN: At least we are
4 past today.
5 MR. BEVERE: Yeah.
6 JUDGE CURRAN: And I would
7 appreciate it if everybody would do some
8 research on this issue, and then we'll go from
9 there. I am not going to strike anything at
10 this point.
11 I realize there is a request from
12 Plaintiff to strike closer -- as close as
13 possible. And I realize by putting this off,
14 if -- if it is stricken, it is not going to be
15 stricken until Monday; but I think it's better
16 to err on the side of caution.
17 MS. SMITH: Judge, I would like to
18 tell you specifically Mr. Leanza's letter was
19 turned over to us as part of the AG's file. So
20 they said --
21 JUDGE CURRAN: You didn't get it
22 from them?
23 MS. SMITH: We got it from them as
24 part of the AG's file.
25 JUDGE CURRAN: Just as part of the
149
1 AG's file?
2 MS. SMITH: Page two is missing.
3 They didn't turn it over in response to a
4 document demand.
5 JUDGE CURRAN: See, that was my
6 question. Why did you turn it over?
7 MS. SMITH: Exactly. It was given
8 to the AG, and then we happened to get the AG's
9 file.
10 JUDGE CURRAN: But then that --
11 MR. BEVERE: We turned it over.
12 JUDGE CURRAN: No, you wouldn't
13 have any choice if --
14 MS. SMITH: We already had it from
15 the AG. That's how we got the second page. We
16 demanded the second page because it had been
17 given to the AG and it was part of the AG's
18 file. It was clearly that the AG asked for the
19 second page, and that's how we got the second
20 page.
21 MR. MULLIN: Your Honor,
22 Miss Smith is referring to Plaintiff's
23 supplemental request for production of
24 documents, February 22nd, 2006. Something
25 called, "Supplemental Document Request,"
150
1 question one from us to defense counsel,
2 "Provide a true and accurate copy of Mr.
3 Leanza's letter, dated April 28, 2004, to Mayor
4 Elwell." Then there is a bracketed comment,
5 "Only the first page of the letter was included
6 in the documents produced by the Attorney
7 General's Office." Paren, quote, "AG docs,"
8 close quote, close paren, close bracket.
9 MR. BEVERE: I produced the second
10 page of the letter without objection and without
11 an assertion of the attorney-client privilege.
12 MR. MULLIN: Well --
13 JUDGE CURRAN: Yeah, that's very
14 true; but the second page simply says -- it's
15 simply a signature and indicates, "I enclosed
16 for your distribution a copy of this letter and
17 its enclosures." There is no enclosure -- oh,
18 enclosures, I'm guessing, of letter for each
19 councilman?
20 MR. BEVERE: Right.
21 JUDGE CURRAN: And that's listed.
22 MR. BEVERE: Judge, but the point
23 that I'm making, at that point I didn't say,
24 "Hey, wait a second. There is a privileged
25 document."
151
1 JUDGE CURRAN: I understand.
2 MR. BEVERE: I gave them the --
3 the second page of the letter without any
4 objection. When Iacono testified in deposition
5 he was told by general counsel this. I didn't
6 object to that.
7 MS. SMITH: You know what, he
8 didn't testify; and Mayor Elwell didn't say,
9 "After the AG."
10 MR. BEVERE: He wasn't asked the
11 question, Judge. He wasn't -- they -- this
12 case --
13 MS. SMITH: Wait a minute.
14 MR. BEVERE: This case -- Judge,
15 this case proceeded -- in this case -- the
16 discovery in this case was taken as if this was
17 a case not in this posture. This case proceeded
18 as an LAD case. All right. Questions -- they
19 were never precluded from asking the question,
20 "Once the Attorney General's Office completed
21 their investigation, why didn't you conduct any
22 disciplinary hearings or take any administrative
23 action?"
24 MS. SMITH: Yes, we did.
25 MR. BEVERE: They were never
152
1 precluded from asking that question. That
2 question was, "Why didn't you" -- "Why didn't
3 you take administrative action when the Attorney
4 General completed their investigation?"
5 MS. SMITH: You are saying none
6 of -- of these witnesses were asked that in
7 their depositions or that they said because of
8 advice of counsel?
9 MR. MULLIN: Is that what you are
10 telling the Judge, that we never asked any of
11 the witnesses that or that they --
12 MR. BEVERE: I don't recall being
13 asked --
14 JUDGE CURRAN: That's how I
15 understand the question.
16 MR. BEVERE: -- completed their
17 investigation, "Why didn't you take" -- "Why
18 didn't you take administrative action?" And
19 quite frankly, Judge, once the Attorney
20 General's investigation is completed, then
21 whether or not there was an advice about whether
22 to proceed with disciplinary action against
23 these firemen is not a discussion about the
24 plaintiffs' complaints. The plaintiffs'
25 complaints is about the things they were
153
1 complaining against the Town in the lawsuit.
2 The attorney -- the Town attorney
3 and the -- and the administrator or the Town
4 attorney says, "Listen, hey, I don't think there
5 is enough evidence here for me to conduct a
6 disciplinary hearing against these guys," that's
7 not the plaintiffs' complaints. That's the Town
8 deciding whether or not they are going to take
9 disciplinary action.
10 This lawsuit was still going on.
11 They're asking about conversations about the
12 plaintiffs' complaints, which is about this
13 lawsuit and what the plaintiffs were seeking
14 from the Town in this lawsuit, separate issue
15 with regard to discipline. And the question was
16 never asked --
17 JUDGE CURRAN: Why is it a
18 separate issue? Isn't the argument not just --
19 we are skipping a step, as far as if the lawyers
20 said there isn't enough evidence. We're
21 skipping the step of did they say to the lawyer,
22 "Should we have an investigation?" And did the
23 lawyers say, "You've got to have an
24 investigation." Did nobody consider that
25 question? Then you'd get to if there was an
154
1 investigation, was there sufficient evidence?
2 And you might get, you know, what Section 12
3 says or --
4 MS. SMITH: Judge, after the
5 Attorney General concluded their investigation,
6 after, in February of 2006, they asserted the
7 privilege; and they did not turn over this
8 document. It was in the AG's file.
9 MR. BEVERE: But Judge --
10 MS. SMITH: Just got page two from
11 them.
12 MR. BEVERE: But Judge, that had
13 nothing to do with the discipline. That
14 discussion was about the plaintiffs' complaints.
15 That is -- that -- that's a separate issue.
16 Discussion about the plaintiffs' complaints.
17 JUDGE CURRAN: Honestly, I am not
18 trying to give you a hard time. I don't
19 understand that argument. Just give me that
20 argument one more time.
21 MR. BEVERE: Okay. What I'm
22 saying, Judge, is that whether or not the Town
23 decided to discipline these firefighters after
24 July of 2005, when the Attorney General closed
25 their investigation, that was not a decision
155
1 regarding the plaintiffs' complaints against a
2 municipality. The plaintiffs' complaints
3 against the municipality were the allegations
4 that the Town was levying about not controlling
5 these firefighters that led to these incidents
6 occurring.
7 That's what that question was
8 geared toward. Did you discuss the plaintiffs'
9 complaints? Did they do it? Did they not do
10 it? Are we going to fight the litigation? Are
11 we going to settle the litigation? That's a
12 separate issue, then, a year later. Are we
13 going to discipline from a municipal standpoint?
14 From our own integrity are we going to
15 discipline these firefighters for what happened?
16 Separate from the plaintiffs' complaints, the
17 lawsuit.
18 MS. SMITH: That's irrational,
19 Judge.
20 MR. BEVERE: It's not irrational,
21 Judge.
22 MS. SMITH: The Interrogatory
23 reads, "Describe in detail each and every
24 meeting that has occurred from the year 2003 to
25 the present at which any employee or agent of
156
1 any defendant discussed any and all complaints
2 made by the plaintiffs."
3 MR. BEVERE: Against --
4 MS. SMITH: Yeah, and the Secaucus
5 Fire Department.
6 MR. BEVERE: -- Secaucus Fire
7 Department.
8 JUDGE CURRAN: I just don't see
9 the argument, but I'll think it over. I will
10 think about it.
11 MR. BEVERE: Well, Judge --
12 JUDGE CURRAN: I'm not trying
13 to -- I'm not making a decision. I just don't
14 see that argument. I'll -- all right. Okay.
15 All right. We are going to take lunch break, so
16 that everybody can --
17 MS. SMITH: Thank you.
18 JUDGE CURRAN: -- think clearly.
19 And I would appreciate it if we could have any
20 cases you want me to consider or whatever for
21 tomorrow afternoon's arguments, okay. Mr.
22 Bevere has represented there will not be --
23 MR. BEVERE: He will not reference
24 advice of Town attorney.
25 JUDGE CURRAN: I don't think it's
157
1 an issue that is going to be imminent for any
2 witness this afternoon.
3 MR. PARIS: What time are we
4 coming in? We can go off --
5 JUDGE CURRAN: We didn't really
6 say, so if you have a preference, 1, 1:30, it's
7 up to you.
8 MR. MULLIN: Okay.
9 JUDGE CURRAN: You can all think
10 about it.
11 MR. MULLIN: Your Honor, will we
12 be starting at 1:30? It is now quarter to 1.
13 Or when did you want to start with the jury?
14 JUDGE CURRAN: I think we told --
15 MR. BEVERE: We told them quarter
16 after 1. If we can have to 1:30?
17 JUDGE CURRAN: 1:15 to 1:30, they
18 won't mind, thank you.
19 MS. SMITH: Thanks.
20 JUDGE CURRAN: Thank you, Shirley.
21 You deserve to at least get some water, you poor
22 thing.
23 MR. PARIS: Your Honor, tomorrow,
24 1 or 1:30?
25 JUDGE CURRAN: Roughly. Or if
158
1 somebody has a different time, it's fine with
2 me.
3 (Whereupon, a luncheon recess is
4 taken.)
5 A F T E R N O O N S E S S I O N
6 COURT STAFF: Jurors approaching.
7 JUDGE CURRAN: Thank you.
8 (Whereupon, the jury is brought
9 into the courtroom.)
10 JUDGE CURRAN: We are back on the
11 record. Thank you, sir. Please call your next
12 witness, Mr. Bevere.
13 MR. BEVERE: I will call Detective
14 Captain Buckley to the stand.
15 JUDGE CURRAN: Thank you.
16 Thank you, sir. You may step up
17 here.
18 COURT STAFF: Left hand on the
19 Bible. Raise your right hand.
20 D E T. C A P T A I N J O H N B U C K L E Y is
21 Duly sworn by a Notary Public of the State
22 Of New Jersey and testifies under oath as
23 Follows:
24 COURT STAFF: State your full name
25 and spell your last name.
159
1 THE WITNESS: John Buckley,
2 B-u-c-k-l-e-y.
3 COURT STAFF: You may be seated.
4 JUDGE CURRAN: Thank you, sir.
5 Move a little closer to the microphone, if you
6 can, thank you.
7 You are under oath. All your
8 testimony must be truthful and accurate to the
9 best of your ability. Do you understand?
10 THE WITNESS: Yes, Your Honor.
11 JUDGE CURRAN: Thank you, sir.
12 Please give us your address for the record.
13 THE WITNESS: Home address or work
14 address?
15 JUDGE CURRAN: Yes, sir, home.
16 THE WITNESS: 5 Mill Ridge Road,
17 Secaucus, New Jersey.
18 JUDGE CURRAN: Thank you. Your
19 witness.
20 MR. BEVERE: Thank you, Your
21 Honor.
22 DIRECT EXAMINATION BY MR. BEVERE:
23 Q Detective, by whom are you
24 employed?
25 A I am employed by the Town of Secaucus
160
1 Police Department.
2 Q And what is your position with the
3 Town of Secaucus Police Department?
4 A I am a Detective Captain.
5 Q And what does it mean to be
6 Detective Captain?
7 A It's a rank of captain, and it's an
8 assignment to the Investigation Division.
9 Q And how long have you been
10 employed by the Secaucus Police Department?
11 A Since March of 1978.
12 Q And how long have you been a
13 captain?
14 A Since 2000.
15 Q And how long have you been in the
16 Detective Bureau?
17 A Since 1989.
18 Q Captain, what's your role with the
19 Detective Bureau?
20 A To supervise their investigations.
21 Q Whose investigations?
22 A Detective Division investigations.
23 Q What does the Detective Division
24 of the Secaucus Police Department do?
25 A It follows up on incidents accumulated by
161
1 the Police Department.
2 Q When you say, "follow up," in what
3 regard?
4 A It depends on the incident. A house gets
5 broken into, a detective will investigate that
6 matter. Things such as that. Things that need
7 follow-up attention, rather than the important
8 patrol preventative mode.
9 Q What is the general chain of
10 command within the Police Department?
11 A The ultimate demand is the Chief of
12 Police. Chief of -- now employ a deputy chief,
13 then captains, lieutenants, sergeants and
14 patrolmen.
15 Q Is a Detective Division separate
16 from the Patrol Division?
17 A Yes, it is.
18 Q What does the Patrol Division do?
19 A They're responsible for day-to-day police
20 activities, presenting a police presence,
21 investigating accidents, caring for sick and
22 injured. Everything we take for granted they
23 do.
24 Q Now, Captain, I'm going to cut to
25 the chase and I'm going to ask: You are you
162
1 familiar with an incident that's alleged to have
2 occurred on April 25th, 2004?
3 A Yes, I am.
4 Q And how is it that you are
5 familiar with that incident?
6 A Because we investigated that incident.
7 Q When did you first become aware of
8 the incident?
9 A I became aware of it on the morning of
10 April 25th, 2004.
11 Q And how was it that you became
12 aware?
13 A I got a telephone call from one of my
14 detectives.
15 Q And who would that detective be?
16 A Detective Lieutenant Reinke.
17 Q And what, if anything, did
18 Detective Lieutenant Reinke advise you in
19 this -- was this a phone contact?
20 A Yes.
21 Q And where were you at the time?
22 A I was home.
23 Q Doing what?
24 A Sleeping.
25 Q Okay. And when you got the phone
163
1 call from Lieutenant Reinke, what did he advise
2 you?
3 A He told me that he was advised by police
4 patrol that an incident occurred at the North
5 End Firehouse involving persons in that parking
6 lot and a neighbor, I believe, 988 Schopmann
7 Drive.
8 Q Did he tell you anything further
9 or more specific about the nature of the
10 incident?
11 A Specifically I don't recall exactly what
12 he told me, except from what I have just said.
13 Q Did you direct Lieutenant Reinke
14 to go out to the scene at that point?
15 A No, I didn't.
16 Q And why did you not do that?
17 A Because in follow-up conversations I had
18 with Lieutenant Reinke, he made it clear to me
19 that there were -- it was counterproductive for
20 him to do that because the scene had been
21 cleared.
22 Q And how did you end your
23 conversation with Lieutenant Reinke?
24 A I said, "We'll follow up on it."
25 Q And then when was your next
164
1 involvement with the incidents of April 25th,
2 2004?
3 A Sometime that morning I had a
4 conversation with the Chief of Police, again by
5 telephone.
6 Q And what was the nature of the
7 discussion between you and the Chief of Police?
8 A Essentially, an incident occurred. I
9 wanted to give him the information I had, if he
10 hadn't already have been notified. Specifically
11 what I said to him I don't remember, but it
12 would have involved the incident.
13 Q Did you and the Chief reach any
14 neutral decisions as to what you would do?
15 A We -- we would have -- you know,
16 specifically I don't remember; but there would
17 have had to have been a mention that we will
18 investigate the incident.
19 Q And I'm sorry, when would this
20 have been, this conversation with the Chief?
21 A 8-ish in the morning on the 25th.
22 Q And then, what was the next
23 contact that you had regarding the incident, if
24 you could recall? And I understand it was four
25 years ago.
165
1 A Could you repeat the question, the first
2 part?
3 Q What was your next contact with
4 regard to the incidents or your next
5 involvement?
6 A My next involvement would have been
7 Monday morning, the 26th. I'm not sure if --
8 if -- I'm going to say the 26th because I'm not
9 sure if I went in there on the 25th. I don't
10 think I did.
11 Q If I told you that the 25th was a
12 Sunday, would that refresh your recollection?
13 A No, because sometimes I go in there on a
14 Sunday. But I don't think I did.
15 Q Okay.
16 A The 26th I would have assigned the case.
17 My recollection is it was assigned to a
18 Detective Lieutenant at the time Malanka and
19 Reinke.
20 Q What was your -- let me -- let me
21 step back for a minute. When you went to work
22 on April 26th, what was the status, if any, of
23 the criminal investigation?
24 A I don't understand "status." It was an
25 open investigation.
166
1 Q When you got in to work on
2 April 26th, did you discuss the matter with the
3 Chief?
4 A Yes.
5 Q What did you and the Chief decide
6 that you would do in regard to the incident?
7 A Well, I think the first thing we decided
8 was we were going to notify the Hudson County
9 Prosecutor's Office.
10 Q And why did you decide to do that?
11 A I'm obliged to do that.
12 Q Under what circumstances?
13 A I have to do it, Attorney General
14 guidelines.
15 Q Now, in regard to -- does the
16 department have a bias crimes order?
17 A Yes, it does.
18 Q And does that order require that
19 you notify --
20 A Yes, it does.
21 Q Now, did you personally notify the
22 Hudson County Prosecutor's Office?
23 A No, I did not.
24 Q Did you direct anyone to do that?
25 A Yes, I did.
167
1 Q Who did you direct to do that?
2 A Lieutenant -- then Lieutenant Malanka.
3 Q And at the time did you instruct
4 Lieutenant Malanka to do anything else besides
5 notify the Prosecutor's Office?
6 A No, that's the extent of my recollection,
7 yeah.
8 Q Okay. Do you know whether or not
9 Lieutenant Malanka notified the Prosecutor's
10 Office?
11 A It's my understanding he did.
12 Q Was the Prosecutor's Office to
13 your knowledge provided with any documentation
14 by the Secaucus Police Department?
15 A Yes.
16 Q What were they provided with?
17 A They were provided police reports up
18 until the morning of the 26th, whatever had been
19 accumulated.
20 Q To that point?
21 A Yes.
22 Q And after that what, if anything,
23 did you do in regard to the investigation, if
24 you could recall as you sit here?
25 A On the 26th we had a problem insofar as
168
1 we needed to -- the 26th was a problem because
2 we needed to retrain the entire Police
3 Department in the Domestic Violence Act of New
4 Jersey. I had to dedicate a lot of resource to
5 retraining each member of the Police Department
6 that Monday.
7 Q And why did you have to do that?
8 A It's mandated by the Attorney General.
9 Q Okay. And then what would have
10 been your next involvement in regard to the
11 investigation of the incidents of April 25th,
12 2004?
13 A I think on the 27th I -- I wanted to know
14 where the Prosecutor's Office was with regard to
15 any input and any advice on what we had sent
16 them the previous day.
17 Q And did you direct anything to be
18 done to determine that?
19 A Yeah, I had, I believe, then Sergeant
20 Reinke contact the Prosecutor's Office, the
21 Hudson County Prosecutor's Office.
22 Q And are you aware of what the
23 result of that conversation was?
24 A The result of that was we were told they
25 never got the reports.
169
1 Q And then what, if anything, was
2 done by the Secaucus Detective Bureau at that
3 point?
4 A We resent those reports.
5 Q And then once the reports were