Secaucus Fire department trail

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.

THE TOWN OF SECAUCUS,

7 Defendant.

- - - - - - - - - - - - - - - -

HUDSON COUNTY COURTHOUSE

9 595 Newark Avenue

Jersey City, New Jersey 07306

10 Thursday, May 29, 2008

Commencing 9:40 a.m.

B E F O R E:

12 HONORABLE BARBARA A. CURRAN

13 TRACEY R. SZCZUBELEK, CSR

LICENSE NO. XIO1983

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

1 A P P E A R A N C E S:

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.

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.

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

20 E X H I B I T S

21 NUMBER DESCRIPTION PAGE

22 (No exhibits marked.)

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

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

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

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

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.

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

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

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

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

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

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?

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.

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

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

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

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

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 --

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

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

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

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

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

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.

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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,

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

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,

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

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 --

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

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

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

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

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

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 --

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,

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

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:

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?

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 --

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

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

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

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

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

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.

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

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

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

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.

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

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

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.

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.

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

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?

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.

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?

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 --

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:

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.

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

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?

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.

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?

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?

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.

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.

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,

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

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?

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

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

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

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

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.

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.

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

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?

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

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.

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

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

6 sent, what, if anything, did the Secaucus

7 Detective Bureau do in regard to the

8 investigation of this incident?

9 A We began interviewing.

10 Q Now, did you personally conduct

11 any interviews in regard to the incident?

12 A No, I did not.

13 Q What was your role in regard to

14 the investigation of the events of April 25th,

15 2004?

16 A My role is to keep my detectives focused

17 on what they need to do.

18 Q Do you -- and I guess I should ask

19 you more generally how it is that you do that.

20 A You keep in contact with them. You ask

21 them, "What are you doing? Where are you going?

22 What did you do today? Where are you going to

23 go with this tomorrow? Who did you talk to?"

24 Things like that.

25 Q Do you give them any instruction

170

1 or direction?

2 A Yeah, of course, yeah.

3 Q And in what regard would you do

4 that?

5 A If they need direction, you offer it.

6 If -- if they're doing something you think might

7 be counterproductive, you tell them not to do

8 it. Also, if they're doing something they

9 should be doing, you encourage them to do it

10 more.

11 Q What is the policy and procedure

12 with regard to documentation of an investigation

13 within the Detective Bureau?

14 A Well, the rule is very simple. If it's

15 not documented, you didn't do it.

16 Q So then what is the instruction

17 that's given to detectives?

18 A Document what you do.

19 Q Does anyone in the department

20 review the reports that are prepared by the

21 detectives?

22 A I do, and the Chief of Police does.

23 Q Does anyone in the department

24 review the reports that are prepared by patrol

25 officers when they respond to calls?

171

1 A In addition to their supervisors, I do

2 and the Chief of Police does.

3 Q And what's the reason for that?

4 A I work for the Chief of Police. I answer

5 to him. It's his Police Department. Part of my

6 responsibility is to keep him informed in the

7 comings and goings of his Police Department.

8 That's why we review police cases every day.

9 Q Do you keep -- I'm sorry. Let me

10 ask it this way: What is your daily role in

11 regard to an ongoing police investigation?

12 A My role is -- my interest is the status

13 of the case, where is the case. That's my

14 interest.

15 Q And how is it that you keep

16 yourself apprised?

17 A Well, you keep in touch with your

18 subordinates; and they keep in touch with you.

19 And you read reports. And I don't know if -- if

20 that answers the question.

21 Q Okay. It does, Detective, thank

22 you. In addition to interviewing -- I'm sorry,

23 who did you say was -- was interviewed in

24 connection with the investigation?

25 A Specifically I don't recall, but it was a

172

1 substantial amount of people.

2 Q And where would we have gotten the

3 names of those people from?

4 A From the --

5 MR. MULLIN: Objection.

6 JUDGE CURRAN: Please rephrase.

7 MR. MULLIN: The use of the "we."

8 MR. BEVERE: I'm sorry.

9 BY MR. BEVERE:

10 Q Where would the Detective Bureau

11 have gotten the names of the people to

12 interview?

13 A From the initial police reports.

14 Q And to your knowledge who

15 conducted those interviews?

16 A They were done by Lieutenant Reinke,

17 Detective Sergeant DeGennaro. I think those two

18 did the majority of the interviews.

19 Q And what is your understanding as

20 to -- I'm sorry, strike that. Let me -- let me

21 ask it -- something else.

22 In addition to interviewing witnesses,

23 what else was done to your recollection by the

24 Secaucus Detective Bureau to investigate this

25 incident?

173

1 A We -- we were looking for help from the

2 Hudson County Prosecutor's Office in the

3 investigation of this incident.

4 Q My question, though, is: In

5 addition to -- in addition to interviewing

6 witnesses, what other steps or acts would the

7 Detective Bureau have taken to investigate?

8 JUDGE CURRAN: Sustained.

9 MR. MULLIN: Object, asked and

10 answered.

11 JUDGE CURRAN: Sustained. Mr.

12 Bevere, I'm sure it's unintentional; but you

13 will have to rephrase. The questions are

14 continuously leading.

15 MR. BEVERE: Okay.

16 BY MR. BEVERE:

17 Q After Lieutenant Reinke faxed the

18 reports to the Hudson County Prosecutor's Office

19 what was the next contact that was made by your

20 agency to the Prosecutor's Office?

21 A That was made the following day, from

22 what I recall. It would have been then

23 Detective O'Keeffe speaking with Assistant

24 Prosecutor Gardner.

25 Q And what would have been the

174

1 purpose of that contact, that communication from

2 your agency?

3 A Again, we were looking for their

4 assistance.

5 Q And why is it that you were

6 looking for the Hudson County Prosecutor's

7 Office assistance?

8 A Well, I'm not that experienced in bias.

9 I'll take help, if I'm not sure.

10 The other reason was I believed, no

11 matter what I did, no matter how I did it, I was

12 going to be second-guessed of what I did. So I

13 wanted another agency in with me to verify what

14 I was doing.

15 Q Why --

16 A That I dotted my I's, I crossed my T's, I

17 did what I was supposed to do to try to achieve

18 a successful investigation. I wanted the Hudson

19 County Prosecutor's Office in with me.

20 Q During the time that the Secaucus

21 Police Department had this investigation did the

22 Hudson County Prosecutor's Office assume

23 responsibility?

24 A Never.

25 Q At some point were you contacted

175

1 by anyone from the Attorney General's Office?

2 A Yes, I was.

3 Q Do you have a recollection as to

4 about when that was?

5 A It was somewhere around May 5th, 2004.

6 Q And were you advised -- let me ask

7 you a different way. What was your

8 understanding as to why the Attorney General's

9 Office got in contact with you?

10 A My recollection is that an investigator

11 from the Attorney General's Office made an

12 inquiry from me as to the status of the

13 investigation. They wanted to know where we

14 were with this investigation. I advised that

15 investigator that we were going to have a

16 bureau-wide meeting on the investigation the

17 following day and he was more than welcome to

18 sit in on that meeting.

19 Q Why were you having a bureau -- or

20 why was the Secaucus Detective Bureau having a

21 meeting the following day?

22 A I was running out of investigative leads.

23 The -- the investigation was not going as well

24 as I had initially thought it was going to go.

25 Q Why -- at the beginning of the

176

1 investigation did you have an opinion as to --

2 let me -- let me rephrase it a different way.

3 In regard to your last answer, at the beginning

4 of the investigation did you have an opinion as

5 to whether --

6 MR. MULLIN: Objection, leading

7 question.

8 JUDGE CURRAN: Sustained.

9 BY MR. BEVERE:

10 Q I will ask it more basically. Why

11 did you not believe the investigation was going

12 as well as you initially hoped?

13 A Because there were people not cooperating

14 with the investigation.

15 Q And why do you say that?

16 A Because I had people not cooperating with

17 the investigation.

18 Q Well, when you say they weren't

19 cooperating, in what way were they not

20 cooperating?

21 A I had people that knew nothing, saw

22 nothing, heard nothing. I had a lot of those.

23 I had a few people, several people that did not,

24 would not talk to me.

25 Q And if someone does not want to

177

1 talk to you, are you allowed to talk to them?

2 A I'm allowed to talk to them until they

3 tell me, "Don't talk to me anymore."

4 Q And what happens once they tell

5 you, "Don't talk" --

6 JUDGE CURRAN: Sustained.

7 MR. MULLIN: Your Honor sustained,

8 and I would like a sidebar on this too.

9 JUDGE CURRAN: Thank you.

10 MR. MULLIN: Excuse me one second.

11 (Whereupon, the following sidebar

12 discussion is held.)

13 MR. MULLIN: Your Honor, I just

14 want to be clear, as an in limine matter, that

15 counsel has now opened the door for me on

16 cross-examination to ask this witness about that

17 statute that deals with the duty obligation of

18 public employees to testify in -- in court and

19 about procedures you use to get them to testify,

20 even in the face of a Fifth Amendment assertion.

21 That was brought to your attention earlier in

22 this case, Your Honor. I have copies of the

23 statue.

24 He has now opened the door. And

25 I didn't want to move on that in terms of

178

1 cross-examination until I cleared it with the

2 Court. I believe that he has now opened the

3 door by asking this -- this gentleman what you

4 do when a witness doesn't want to talk to you.

5 MR. BEVERE: I could not disagree

6 more. There was an assertion by the plaintiffs

7 in their case that the Detective Bureau did not

8 do their job by not following up with people who

9 said, "I don't want talk to you. I want to talk

10 to an attorney." This witness is testifying

11 that once they say they don't want to talk to

12 you and they want an attorney, this Detective

13 Bureau cannot speak to that person.

14 JUDGE CURRAN: He didn't come

15 close to saying that.

16 MR. MULLIN: No, he didn't.

17 JUDGE CURRAN: That's the problem.

18 He didn't even mention attorney. I mean, it

19 could be one of the witnesses whose names we had

20 who basically said, "I don't want to talk to

21 you." It could have been Councilman Kickey who

22 said to him, "My son doesn't want to talk to

23 you."

24 MR. MULLIN: Yes.

25 JUDGE CURRAN: Again, I'm not

179

1 trying to --

2 MR. BEVERE: But.

3 JUDGE CURRAN: -- hurt or

4 decide --

5 MR. BEVERE: Judge, this has

6 nothing to do with the statute and what his

7 authority is to make people come down and give a

8 statement, so --

9 JUDGE CURRAN: I understand that,

10 but -- I'm not sure, frankly, that door is open;

11 but frankly, there was no question of an

12 attorney. I don't know what his answer meant.

13 I don't know who his answer referred to,

14 frankly. He could have meant the plaintiffs,

15 when they allegedly wouldn't talk to certain

16 officers. I don't know what he meant, but he

17 certainly was not saying that they were asking

18 for an attorney or anything of that nature.

19 MR. BEVERE: Well --

20 JUDGE CURRAN: That's my concern.

21 I'm sorry.

22 MR. PARIS: I'm just saying the

23 reason we are at sidebar is something else, and

24 I think that's certainly inappropriate for this

25 witness. The statute that he is referring to

180

1 talks about testimony before a court. It talks

2 about the SCI, I believe it is. It talks about

3 a prosecutor giving immunity.

4 MR. BEVERE: Doesn't talk about

5 these people. Nothing to do with that

6 whatsoever.

7 JUDGE CURRAN: That is a different

8 argument.

9 MR. PARIS: That's why we're at

10 sidebar.

11 JUDGE CURRAN: I understand.

12 MR. MULLIN: Your Honor, we could

13 look carefully at these questions and answers

14 that just came; but they're basically asking

15 this witness, as a law enforcement officer, to

16 opine about his legal rights when someone

17 doesn't talk to him. That's what the question

18 was about. And he is talking as a law

19 enforcement officer about what he can and cannot

20 do. That goes -- the statute goes right to the

21 heart of that.

22 The implication of the jury is,

23 hey, once somebody doesn't want to talk to you,

24 that's the end of it. Well, that's a false

25 application, especially when it comes to public

181

1 employees taking the Fifth. There is a way you

2 go to the prosecutor, just the way he went to

3 the prosecutor. You go back to the prosecutor

4 and you say, "You know what, I want" -- "I want

5 a grant of immunity because what we're doing

6 here is we're" -- "we're demanding that he

7 cooperate with the investigation or else he is

8 going to get fired."

9 Once you laid that predicate

10 under that statute, the prosecutor gives him use

11 immunity; and he has to talk. He has to talk in

12 front of Grand Jury. He has to talk in court.

13 He has to talk in a court.

14 JUDGE CURRAN: See, my other

15 concern is his answer is not even limited to

16 employees. That's part of the problem. His

17 answer was not even limited to employees. We

18 don't know if it included all employees, some

19 employees.

20 MR. BEVERE: The person was just a

21 witness. A girlfriend could say, "I am not

22 going to talk." A wife could say, "I am not

23 going to talk to you."

24 JUDGE CURRAN: A different

25 requirement. It's a different procedure if one

182

1 of the girlfriends said -- one of the

2 girlfriends apparently did say that, and I don't

3 think the plaintiff is saying they therefore had

4 the ability to follow up with the girlfriends

5 because they didn't.

6 MR. MULLIN: Certainly not.

7 Certainly not. Only talking about the --

8 MR. BEVERE: Judge.

9 JUDGE CURRAN: I'm sorry.

10 MR. BEVERE: With regard to that

11 statute that we're talking about, for this

12 witness to be questioned about that statute --

13 MR. MULLIN: This witness probably

14 knows.

15 JUDGE CURRAN: Surely he would

16 have knowledge of that. He would have -- why

17 not?

18 MR. PARIS: Why?

19 JUDGE CURRAN: What does he do if

20 he -- what if they -- what if someone they think

21 murdered someone doesn't want to talk to them?

22 Do they just say, "Okay. We can't go any

23 further"?

24 MR. PARIS: We can't talk to them.

25 JUDGE CURRAN: Ask for a lawyer,

183

1 that's one thing. If they're employed by the

2 Town, that's another thing. If they're not --

3 he should certainly know the differences; that's

4 what he -- Mr. Paris, I am not trying to give

5 you a hard time; but shouldn't police detective

6 captain know --

7 MR. PARIS: I am -- I'm --

8 JUDGE CURRAN: I'm sorry.

9 MR. PARIS: I am so sorry. We

10 have a statute, okay. Two attorneys and the

11 Court have been looking at that statute over the

12 past whatever here and there, okay, two weeks.

13 And Mr. Mullin has an opinion as to what that

14 statute says, and we totally disagree --

15 MR. BEVERE: Disagree.

16 MR. PARIS: -- with that opinion.

17 MR. MULLIN: That's why they have

18 juries.

19 MR. BEVERE: Jurors don't

20 interpret statutes, Judge.

21 JUDGE CURRAN: No, they don't.

22 MR. PARIS: To somehow say the

23 Town did something wrong because it doesn't

24 interpret the statute the way Mr. Mullin

25 interprets it or it didn't use the statute the

184

1 way Mr. Mullin thinks it should be used, I mean,

2 I don't think that that's an appropriate

3 question of a fact witness.

4 Are you aware a certain State

5 statute that we don't even believe applies to

6 this case -- we think it would be totally

7 inappropriate for the jury to hear about the

8 statute. And you know, I mean --

9 MR. MULLIN: I don't think they

10 get -- they get a free pass to ask these

11 witnesses -- and it's happened several times --

12 for the legal opinion about what you -- your

13 rights are as a police officer --

14 MR. BEVERE: No, no.

15 MR. MULLIN: -- when someone

16 refuses to talk. That's what they just did.

17 When I want to cross-examine to say, "You

18 haven't told the whole story," they say, "We

19 disagree with your interpretation of the

20 statute." The statute is clear as day.

21 MR. BEVERE: It is not clear as

22 day.

23 MR. MULLIN: The first sentence

24 says, "Public employee has a duty to testify."

25 Then it goes on. And then it says, "If a public

185

1 employee is threatened with termination, then

2 the prosecutor can grant immunity; and then the

3 public employee has an obligation to testify."

4 And you know --

5 JUDGE CURRAN: In fairness, he may

6 not know all that.

7 MR. MULLIN: He may not. I can

8 certainly ask him if he is aware of that.

9 MR. PARIS: The other thing is,

10 number one, it says it has to be in connection

11 with their employment.

12 MR. BEVERE: And number two --

13 MR. PARIS: Number two, it's a

14 prosecutor who is going to grant the immunity.

15 MR. BEVERE: Or someone from the

16 State Board of Investigation.

17 MR. PARIS: We are taking a huge

18 leap here. Mr. Mullin wants to speculate that

19 the prosecutor would have granted immunity.

20 MR. MULLIN: I am not speculating.

21 I am just going to ask him the same kind of

22 questions he is asking him about, "Did you call

23 the prosecutor?" You know what, you got to ask,

24 "Did you call the prosecutor?" Now I want to

25 ask, "Did you call the prosecutor?"

186

1 MR. BEVERE: Mr. Mullin wants to

2 ask my witness if he contacted the prosecutor

3 and asked him to convene Grand Jury and grant

4 immunity.

5 MR. MULLIN: That's right.

6 JUDGE CURRAN: Frankly, my

7 guess -- I find that Mr. Mullin or the plaintiff

8 has the right to do that because the door has

9 been opened. Additionally, frankly, my guess is

10 he is going to say what he just said, the

11 prosecutor didn't help us at all, didn't do

12 anything. I don't know, but I am guessing

13 that's what he is going to say.

14 Mr. Mullin, I am going to ask you

15 not to go into a whole lot of detail talking

16 about immunity and whatever.

17 MR. MULLIN: I'm not.

18 JUDGE CURRAN: But the basic

19 questions, that's absolutely fair.

20 MR. BEVERE: As to whether he

21 contacted the prosecutor and asked him to

22 convene a Grand Jury?

23 JUDGE CURRAN: Why not? Well, I

24 mean, Mr. Mullin --

25 MR. BEVERE: No, Judge, Judge,

187

1 what I'm saying --

2 JUDGE CURRAN: These are public

3 employees; and he is free to say they weren't

4 working, they were socializing or whatever his

5 thought was.

6 MR. BEVERE: Judge, Judge --

7 JUDGE CURRAN: The theory is there

8 has to be some basis for what he did or didn't

9 do.

10 MR. BEVERE: Judge, Judge, I will

11 tell you that this witness will testify that he

12 contacted the Prosecutor's Office and asked him

13 to convene a Grand Jury. There is a memo to

14 that effect.

15 JUDGE CURRAN: That's fine.

16 That's fine.

17 MR. MULLIN: You already almost

18 got to that.

19 MR. BEVERE: I am going to put it

20 up on the board.

21 MR. MULLIN: You almost got to

22 that already.

23 MR. BEVERE: I am putting it on

24 the board.

25 JUDGE CURRAN: He already said he

188

1 wanted the Prosecutor's Office, but the door is

2 open.

3 MR. BEVERE: I am putting -- that

4 document is going up on the board.

5 JUDGE CURRAN: No -- great. Thank

6 you.

7 (Whereupon, sidebar discussion is

8 concluded.)

9 JUDGE CURRAN: Excuse me, I

10 apologize. I'm sorry.

11 MR. BEVERE: Okay.

12 JUDGE CURRAN: Thank you.

13 MR. BEVERE: Thank you, Judge.

14 BY MR. BEVERE:

15 Q Detective, I apologize. I had

16 asked you the question as to why you didn't

17 believe that the investigation was going as well

18 as you initially hoped.

19 A Yes.

20 Q And you were telling me why, and I

21 believe I interrupted you. So if you could --

22 MR. MULLIN: Your Honor, asked and

23 answered.

24 MR. BEVERE: Did he complete his

25 answer? I wasn't sure if he completed his

189

1 answer.

2 MR. MULLIN: We can have the last

3 question read back.

4 JUDGE CURRAN: I believe it's

5 complete, but we can read back the answer.

6 MR. BEVERE: I can look at it.

7 THE WITNESS: Your Honor, I don't

8 want to say I don't remember.

9 JUDGE CURRAN: Okay. If Tracey

10 would be kind enough to read back the answer on

11 that, thank you.

12 (Whereupon, the requested portion

13 is read back by the reporter as follows:

14 "ANSWER: I'm allowed to talk to

15 them until they tell me, "Don't talk to

16 me anymore."")

17 JUDGE CURRAN: It was the answer

18 before that or two back.

19 (Whereupon, the requested portion

20 is read back by the reporter as follows:

21 "ANSWER: I had people that knew

22 nothing, saw nothing, heard nothing. I

23 had a lot of those. I had a few people,

24 several people that did not, would not

25 talk to me.")

190

1 BY MR. BEVERE:

2 Q I have to go back. I see my

3 question before that, and I apologize because I

4 asked you about while you were having the

5 Detective Bureau meeting on May the --

6 JUDGE CURRAN: 5/6, I believe.

7 MR. BEVERE: Pardon me?

8 JUDGE CURRAN: 5/6, I believe.

9 BY MR. BEVERE:

10 Q What was your recollection of the

11 meeting of the Bureau?

12 A Somewhere around the 5th -- no, somewhere

13 around the 5th I got the call from the Attorney

14 General's Office. The -- I believe the meeting

15 was the next day.

16 Q What -- what did you hope -- what

17 did you hope to accomplish by having this

18 meeting at the Detective Bureau or amongst the

19 detectives?

20 A Well, for me it was twofold. It might

21 have even been more. For me it was -- and

22 primarily -- primarily it was for me to allow

23 the highest law enforcement agency in the State

24 of New Jersey to look at what we were doing.

25 That was most important to me. The next thing I

191

1 wanted from that Attorney General

2 representative, I wanted a Grand Jury.

3 Q And why -- okay. What was your

4 third thing before I interrupt you?

5 A The third thing was any offer of

6 assistance, any help, you know, contribute to

7 the cause, I'm here. What am I not doing that I

8 should be doing?

9 Q Why did you want a Grand Jury to

10 be convened?

11 A My understanding of a Grand Jury is they

12 can do things I can't do. They --

13 Q What is your understanding as to

14 what they can do that you can't?

15 A They can compel people to testify. They

16 can compel people to answer questions. I can't

17 do that.

18 Q Did you, in fact, have this

19 meeting with the representatives of the Attorney

20 General's Office?

21 A Yes.

22 Q Okay. And just a basic

23 recollection of what took place at that meeting?

24 A There -- there was a very basic

25 explanation of bias. There was a full, an

192

1 absolute full review of all police reports up to

2 that day. A copy of all those reports were made

3 available to that representative. That was the

4 extent of the meeting.

5 Q And how --

6 A Everything we knew we shared.

7 Q And how was the meeting with the

8 Attorney General's representatives left?

9 A He was going to get back to us.

10 Q Okay. After that meeting with the

11 Attorney General's Office did you make any

12 contact with the Prosecutor's Office again?

13 A Yes -- again? Well, I don't know if it

14 was -- I don't remember if it was after that

15 meeting or if it was before -- it might have

16 been just before that meeting.

17 Q Well, let me show you a document

18 marked D-83 for Identification.

19 A Yes.

20 Q Okay. Do you know what D-83 is?

21 A I'm sorry?

22 Q Do you know what this document is?

23 A Yes, yes, it's my correspondence to

24 Hudson County Prosecutor's Office, dated May

25 5th, 2004.

193

1 Q And -- and did you personally

2 prepare and send this memo to the Prosecutor's

3 Office?

4 A Yes, I did.

5 Q Okay. Can you tell us what it was

6 that you said to the -- that you requested of

7 the Prosecutor's Office?

8 A You want me to read this?

9 Q Sure, you can.

10 A It will be hand-delivered to assistant

11 Hudson County Prosecutor Don Gardner on Sunday

12 April 25th, 2004. "At" -- misspelled, a-y --

13 "At 0046 hours this agency suffered a bias

14 incident. At that time this" -- "At this time

15 this agency resubmits this matter to your

16 attention, as this investigation is concluding

17 without any apparent success in identifying

18 those responsible for the incident. We are

19 calling upon your input and experience in

20 dealing with these types of bias incidents. And

21 we also ask your office consider convening this

22 matter before a Grand Jury."

23 "Also attached for your review is a

24 second incident, which is reported to occur on

25 Saturday May 1, 2004 at 1416 hours, which we

194

1 consider a result of the April 25th, 2004

2 incident."

3 "Should you have any questions on this

4 matter, please contact me or Secaucus Police

5 Chief Dennis Corcoran at your convenience."

6 Q Okay. Did you receive any

7 response from the Prosecutor's Office to your

8 request?

9 A My recollection is that hours before the

10 Attorney General took over this investigation.

11 I don't know if I called him, I don't remember

12 if he called me; but I had a conversation with

13 First Assistant Prosecutor Guy Gregory. And he

14 told me that there was not going to be a Grand

15 Jury in this matter and that we would be

16 notified of that shortly.

17 Before he ever notified me of that in

18 any other way he called me back and told me

19 that --

20 MR. MULLIN: Objection, hearsay,

21 Your Honor.

22 JUDGE CURRAN: Sustained.

23 BY MR. BEVERE:

24 Q Did you ever hear back from the

25 Attorney General's Office?

195

1 A Yes.

2 Q Okay. Do you recall about when in

3 relation to the meeting that you had with them

4 that you heard back from the Attorney General's

5 Office?

6 A I believe it was a day or two later.

7 Q And what was your understanding as

8 to what the role -- as to what role the Attorney

9 General was going to play, if any, in the

10 investigation?

11 A My understanding was that the New Jersey

12 Attorney General's Office was taking over this

13 investigation. They were going to be the lead

14 agency.

15 Q And do you recall approximately --

16 how did you receive that information?

17 A I don't -- I -- I don't think it would

18 have come to me. I think it would have gone to

19 the Chief of Police. I don't think they would

20 have called me and told me that.

21 Q At some point did you have any

22 other meeting with anyone from the Attorney

23 General's Office?

24 A Yes. They were to work out a protocol.

25 I was concerned with -- with the protocol of the

196

1 investigation now. I was concerned with what we

2 were expected to do, the Secaucus Police

3 Department. And that was kind of worked out in

4 a protocol.

5 Q Were you provided or was the

6 Secaucus Police provided with any documentation

7 from the Attorney General's Office as to what

8 role it would play in the investigation?

9 A I believe we did, yes.

10 Q I want to show you what I have

11 marked as D-30 and D-31 for Identification and

12 ask if you could recognize that document?

13 A Yes.

14 Q What is that document?

15 A I believe the term is "supersession."

16 Q And what is your understanding of

17 the term?

18 MR. MULLIN: What number are you

19 on?

20 MR. BEVERE: I'm sorry, 230 and

21 231.

22 BY MR. BEVERE:

23 Q And what's your understanding of

24 "supersession"?

25 A Not to be redundant, but that's when

197

1 another agency supersedes my agency.

2 Q And what was your understanding --

3 did you -- did you see a copy of this letter?

4 A Yes.

5 Q And how is it that you came into

6 possession of this letter?

7 A I don't recall.

8 Q What was your understanding of the

9 role that the Secaucus Detective Bureau was

10 going to play in the -- or the Secaucus Police

11 Department was going to play in the

12 investigation of this incident after your

13 receiving this letter?

14 A Our responsibility was to keep the

15 Attorney General's Office advised of any new

16 information that might come in, any new

17 incidents, any matters of concern.

18 Q Now, in that regard did you or did

19 the Secaucus Detective Bureau continue to

20 provide information to the Attorney General's

21 Office?

22 A Yes, we did.

23 Q And what information did you

24 continue to provide?

25 A Whatever was associated with Messrs.

198

1 Carter and deVries.

2 Q When you say, "whatever was

3 associated," what types of things are you

4 referring to?

5 A There were incidents after -- yeah, there

6 were incidents after the Attorney General took

7 over the incident about suspicious persons and

8 vehicles. Yeah, all that was afforded to the

9 Attorney General.

10 Q What was your understanding of the

11 role that the Secaucus Police Department was

12 going to play in the investigation of those

13 incidents after April 25th, 2004?

14 A My understanding was we were not the lead

15 agency in those incidents either.

16 Q Well, then what would your role

17 be?

18 A To keep the Attorney General's Office

19 appraised of what we knew regarding Messrs.

20 Carter and deVries.

21 Q Did you provide the Attorney

22 General's Office with all information generated

23 by the Secaucus Detective Bureau with regard to

24 these incidents?

25 A Yes, we did.

199

1 Q Now I'm going to show you what's

2 been marked as D-100 and D-101 for

3 Identification.

4 A Yes.

5 Q Can you tell us what that is?

6 A From myself to an investigator for the

7 Attorney General's Office -- you want me to read

8 it?

9 Q What's the date of it?

10 A It's dated June 10th, 2004.

11 Q You can go ahead and read it.

12 A "Enclosed for your review is a copy of

13 the Thursday, June 10th, 2004 edition of the

14 Secaucus Home News newspaper. On page seven of

15 this newspaper is a published photograph of some

16 members of the North End Firehouse who attended

17 the dinner preceding the incident with

18 Mr. Carter and Mr. deVries on April 24th, 2004.

19 We have taken no action vis-a-vis this

20 photograph insofar as potential identification

21 purposes, but perhaps your agency could make use

22 of same. If you have any questions on this

23 matter, please contact me or Detective

24 Lieutenant Malanka at your convenience."

25 Q What is the second page?

200

1 A It's a copy of that newspaper article.

2 Q All right. Now, I have two

3 questions for you about the document. Number

4 one: What was your purpose in forwarding this

5 photograph to the Attorney General's Office?

6 A I couldn't use it, but maybe he could.

7 Q Why couldn't you use it?

8 A Well, I couldn't use it for couple

9 reasons. One is it wasn't my case anymore.

10 That was the first reason I couldn't use it.

11 The second reason was it didn't fit

12 into a proper photo lineup. But again, maybe

13 the Attorney General could find some use for it.

14 I couldn't.

15 Q Why do you say it wasn't your

16 investigation anymore?

17 A Because the Attorney General took over

18 the case sometime in early May.

19 Q Now, you testified earlier about

20 some subsequent incidents that occurred. What,

21 if any, was your role in regard to the -- your

22 role in regard to the investigation of those

23 subsequent incidents?

24 A I -- I'm not following you.

25 Q Okay. Okay. Can you tell us off

201

1 the top of your head what subsequent incidents

2 you're referring to?

3 A There were, I believe, two or three

4 incidents involving motor vehicles. I -- I

5 believe there was at least one other involving a

6 pedestrian, I believe. And I believe there was

7 one other involving litter at a house and

8 graffiti at a house.

9 Q Okay. And what, if any -- well

10 let me show you what I had marked as D-147 for

11 Identification.

12 A Yes.

13 Q Do you know what that document is,

14 D-147?

15 A It's my memo to all police personnel.

16 Q And what was the purpose of your

17 sending this memo to all police personnel?

18 A To bring to the attention of the entire

19 Police Department that we had an interest in

20 identifying two motor vehicles.

21 Q And what's your understanding --

22 well, why did you have an interest in

23 identifying those two motor vehicles?

24 A Because the Ford Bronco was -- was noted

25 in a previous incident reported by Mr., I

202

1 believe, Carter; and the older model sports car,

2 dull gray, silver color or primer, was also

3 brought to our attention in reporting an

4 incident to us.

5 Q Do you recall what the nature of

6 those incidents were? I can show you a report,

7 if it will refresh your recollection?

8 A Please.

9 Q First I will show you what's been

10 marked as D-103 and ask you to read that while

11 I --

12 MR. MULLIN: D-103?

13 MR. BEVERE: D-103.

14 BY MR. BEVERE:

15 Q While I find the second --

16 A You want me to read this?

17 Q Read it to yourself.

18 A Oh.

19 Q I apologize.

20 MR. MULLIN: Your Honor, can we

21 have a foundational question?

22 JUDGE CURRAN: On 103?

23 MR. MULLIN: Yeah, he is asking

24 the witness to read something.

25 MR. BEVERE: Judge, my question

203

1 was would a document refresh his recollection as

2 to the incidents involved; and I am asking him

3 to look at the document to refresh his

4 recollection.

5 JUDGE CURRAN: Thank you.

6 BY MR. BEVERE:

7 Q Does that refresh your

8 recollection as to why the department had an

9 interest in identifying one of those vehicles?

10 A Yes, it does.

11 Q Which vehicle?

12 A The -- the Ford Bronco.

13 Q Okay. And --

14 MR. MULLIN: Can we have the text

15 of that up on the screen?

16 MR. BEVERE: Dave, we need --

17 MR. PARIS: I'm sorry.

18 MR. BEVERE: -- 147.

19 MR. PARIS: Want 147 back?

20 MR. MULLIN: No, 103. I thought

21 he was looking at 103.

22 MR. BEVERE: He was looking at

23 103.

24 MR. MULLIN: Your Honor, can the

25 jury please see 103?

204

1 MR. BEVERE: Sure.

2 Can I ask my question, Judge,

3 or --

4 JUDGE CURRAN: Do you want 147

5 back up?

6 MR. BEVERE: 147, thank you.

7 BY MR. BEVERE:

8 Q Okay. Now, Detective, in regard

9 to -- you were -- you were -- I was asking you

10 the question, which is why did you have an

11 interest in identifying the Ford Bronco. If you

12 could answer the question.

13 A On May 1st that type of vehicle drove

14 past the residence of Messrs. Carter and

15 deVries and --

16 THE WITNESS: Am I allowed to say

17 what they said?

18 JUDGE CURRAN: No, sir.

19 MR. MULLIN: I don't object.

20 JUDGE CURRAN: Thank you.

21 MR. BEVERE: Thank you, Judge.

22 JUDGE CURRAN: Yes, you may.

23 THE WITNESS: I can?

24 BY MR. BEVERE:

25 Q You can.

205

1 A "The homos are out." Mr. Carter -- that

2 was -- that was -- John Hjelm, he was the --

3 the -- Hjelm was the son of the landlady of the

4 home that Mr. Carter and Mr. deVries rented. He

5 was outside. He had, in fact, heard that

6 because he was doing some yard work. And he

7 then reported that to Mr. Carter. Mr. Carter

8 reported it to us.

9 Q And with regard to the second

10 vehicle, the older model sports car, I will show

11 you your report D-123 and ask if that refreshes

12 your recollection as to that matter?

13 A Yes.

14 Q Okay. And why did you have an

15 interest in identifying that older model sports

16 car that was referenced in your --

17 A Because --

18 Q -- memo?

19 A -- on May 18th that kind of vehicle

20 approached Mr. Carter. I can say --

21 Q You can say what was said.

22 A Okay. And referred to Mr. Carter as a

23 "faggot." That too was reported to us. And

24 that's why the interest in that type of vehicle.

25 Q And -- and what did you hope to

206

1 accomplish by sending this memo, D-147?

2 A Well, the intent was for -- for some

3 police officer to bring back to me information I

4 could forward to the Attorney General.

5 Q Do you know whether the Detective

6 Bureau was ever successful in identifying either

7 of these vehicles?

8 A No, we weren't.

9 Q I want to ask you a question.

10 Does the Secaucus Detective Bureau have

11 photographs of the firemen?

12 A No, we don't.

13 Q Do you know whether the Town has

14 photographs of the firemen?

15 A I don't know.

16 Q Now, Detective, with regard to

17 these incidents that you have talked about after

18 April 25th, 2004, do you know whether the

19 Secaucus Detective Bureau was ever able to

20 connect any of these incident with the firemen?

21 MR. MULLIN: Objection, leading

22 question. Ask that it be stricken.

23 JUDGE CURRAN: Sustained.

24 BY MR. BEVERE:

25 Q Detective, was the Detective

207

1 Bureau -- sorry, let me -- aside from sending

2 this memo are you aware of any other steps that

3 were taken by the Secaucus Police Department or

4 Detective Bureau to identify these vehicles?

5 A Those two vehicles, no, no.

6 Q You don't know?

7 A No, I don't believe any other memorandum

8 went regarding those vehicles.

9 Q I'm asking what other steps. Are

10 you aware -- as you are sitting here are you

11 aware of any other steps that were taken by any

12 members of the Police Department or Detective

13 Bureau to identify those vehicles?

14 A Yeah, well, we -- we -- we did identify

15 similar vehicles; but none were productive

16 insofar as an investigation.

17 Q Now, in regard to -- my last topic

18 that I want to cover with you is -- oh, I want

19 to ask you this question. Does the Secaucus

20 Detective Bureau provide police reports?

21 MR. MULLIN: Objection, leading.

22 JUDGE CURRAN: Sustained. You can

23 rephrase it.

24 MR. BEVERE: I will try, Judge.

25 BY MR. BEVERE:

208

1 Q What is the Police Department's

2 policy with regard to providing police reports

3 to non-police personnel during a pending

4 criminal investigation?

5 A My policy is they are not going to get

6 them.

7 Q Do you recall whether at some

8 point in time you were contacted by either

9 Mr. deVries or Mr. Carter asking about reports?

10 A Yes.

11 Q Okay. And do you recall the

12 nature of the request that was made to you?

13 A Yeah, I -- I -- yeah, they -- they

14 requested those reports.

15 Q Do you recall when?

16 A No, I don't.

17 Q If I show you a document, might

18 refresh your recollection?

19 MS. SMITH: Tell us what you are

20 showing him.

21 MR. BEVERE: Oh, I'm sorry, D-171.

22 BY MR. BEVERE:

23 A Okay. I got it.

24 Q Okay. Approximately when?

25 A About May 26th.

209

1 Q And what, if any, response did you

2 have from Mr. deVries and Mr. Carter?

3 A Well, I --

4 Q You want to see your report again?

5 A No, no, Mr. Carter called one of my

6 detectives, Goyenchia, Carlos. He wanted the

7 police reports from the 25th. And Detective

8 Goyenchia told him no, he couldn't have them.

9 He asked to speak with me. I reinforced that we

10 weren't going to release them because the

11 Attorney General had instructed us to seal those

12 police reports. Mr. Carter then asked me if I

13 would call the Attorney General's Office to see

14 if -- if he could provide them. I did call the

15 Attorney General's Office, and the answer was

16 the same. Those reports are sealed.

17 Q Detective, I have a question for

18 you. Why was no one charged with a crime by the

19 Secaucus Police Department for what happened on

20 the morning of April 25th, 2004?

21 A In the time that we had that case I

22 didn't see -- I didn't see where there was

23 enough to charge somebody, and I didn't see how

24 there was enough to convict anybody. And I

25 didn't even see how there was enough to identify

210

1 anybody positively while I had the case.

2 Q Why did you feel that way?

3 A Based on -- on -- on what the

4 investigation revealed. Nobody was identified

5 that Mr. A did this, Mr. B did that, Mr. C and

6 so on and so on. None of that was ever -- ever

7 corroborated to any degree that I felt

8 comfortable with to charge somebody, no less

9 that I was going to get a conviction.

10 Q How many days did the Secaucus

11 Police Department have control over this

12 investigation?

13 A I think April 25th to May 6th, I think.

14 Q Now, in regard to -- there was a

15 question I wanted to ask. Oh, I remember the

16 question. What, if anything, did the Secaucus

17 Detective Bureau do to investigate whether a gun

18 was used in connection with the incident of

19 April 25th, 2004?

20 A There was no evidence to support that a

21 gun was used. There was -- there was never

22 anything to corroborate that there was a firearm

23 other than one person saying -- and I believe

24 it's pretty close -- "I awoke to what sounded

25 like gunshots" -- or "gun fire." It was close

211

1 to that. But no, there was never anything other

2 than that one statement to corroborate a

3 firearm.

4 Q Did the Secaucus Police Department

5 not charge anyone because firemen were involved?

6 A Absolutely not.

7 MR. BEVERE: No further questions.

8 JUDGE CURRAN: Thank you.

9 Mr. Mullin.

10 MR. MULLIN: Want to take the

11 afternoon break now, or do you want me to go

12 first?

13 JUDGE CURRAN: If you don't

14 object --

15 MR. MULLIN: Yeah, we can take a

16 break.

17 JUDGE CURRAN: All right. Ladies

18 and Gentlemen, we will take the afternoon break.

19 Thank you. Off the record.

20 (Whereupon, the jury is excused.)

21 (Whereupon, a brief recess is

22 taken.)

23 COURT STAFF: Jurors approaching.

24 JUDGE CURRAN: Thank you.

25 (Whereupon, the jury is brought

212

1 into the courtroom.)

2 JUDGE CURRAN: Go back on the

3 record, please. Please be seated.

4 Mr. Mullin, as to

5 cross-examination of the witness. Thank you.

6 CROSS EXAMINATION BY MR. MULLIN:

7 Q Good afternoon, sir.

8 A Good afternoon.

9 Q Sir, you are the captain of the

10 detectives during period you have been

11 discussing, right?

12 A Yes, sir.

13 Q You were investigating whether a

14 crime had been committed, right? That's what

15 you have been describing to the jury?

16 A Correct.

17 Q In other words, you were not

18 investigating whether the Fire Department should

19 fire some of these firemen or not? That wasn't

20 your job, right?

21 A No.

22 Q Okay. You weren't investigating

23 whether the Fire Department should close down

24 that firehouse or anything of that nature; is

25 that correct?

213

1 A Correct.

2 Q You weren't involved in the

3 decision to reopen the firehouse, right? You

4 had nothing to do with that decision, right?

5 A No.

6 Q You weren't involved in the

7 decision to promote Chuck Snyder, Jr. to be a

8 battalion chief? You had nothing to do with

9 that issue either right, sir?

10 A No, sir.

11 Q You are a captain of detectives.

12 You are investigating whether or not a crime is

13 committed, right?

14 JUDGE CURRAN: Yes, sir? Or --

15 MR. MULLIN: I'm going to clarify.

16 I think we may have gotten some double negatives

17 involved, so --

18 JUDGE CURRAN: That wouldn't be

19 the first time.

20 MR. MULLIN: -- let me ask the

21 question again, just so the record is clear.

22 BY MR. MULLIN:

23 Q You were not involved, sir, in --

24 in the decision to reopen the firehouse, right?

25 A No, I was not.

214

1 Q That's better. Okay. And you

2 weren't involved in the decision whether or not

3 to fire some of these firemen who participated

4 in this incident, right? You had nothing to do

5 with that?

6 A Nothing.

7 Q You had nothing to do with that,

8 right?

9 A I had nothing to do with that.

10 Q You had nothing to do with the

11 decision to reopen the firehouse or shut it

12 down, right? You had nothing to do with that,

13 right?

14 A I had nothing to do with that either.

15 Q And you had nothing to do with the

16 decision to promote Chuck Snyder, Jr. to be

17 battalion chief, right? You had nothing to do

18 with that, right?

19 A That's correct.

20 Q You were Detective Captain, and

21 you were in charge of some detectives and other

22 folks investigating whether or not a crime

23 occurred, right?

24 A That's correct.

25 Q Okay. Now, at some point you

215

1 wrote a letter reaching out to the Hudson County

2 Prosecutor's Office, right?

3 A Yes, sir.

4 Q And the jury was shown that

5 letter, right? And you saw that letter just now

6 during your testimony, right, sir?

7 A Yes, I did.

8 Q We can agree you never wrote a

9 letter like that asking for the Attorney General

10 to come down and -- and take over the

11 investigation, right? There is no such letter,

12 right?

13 A None.

14 Q Okay. And in fact, when you

15 testified before, you testified truthfully that

16 the Attorney General contacted you? That's what

17 you said in front of this jury, right? And

18 that's the truth, right?

19 A Yes.

20 Q And I don't know if you know it or

21 not, sir. Are you aware that Tim Carter the

22 night of the incident or shortly thereafter, he

23 called the governor -- he contacted the

24 governor, I should say, to ask the governor to

25 look in on this? Are you aware of that?

216

1 A No, I -- I don't know that specifically,

2 no.

3 Q Now, briefly you -- you talked

4 about what happens -- let me -- let me do it

5 this way. You said part of the problem with

6 your investigation is people weren't

7 cooperating, people, I believe your words were,

8 didn't see anything, didn't hear anything?

9 That's what you testified to, right?

10 A Correct.

11 Q In fact, you had people like Chuck

12 Snyder, Sr., Chuck Snyder, Jr., Charles

13 Mutschler and Matt Kickey refused to talk to you

14 at all, right -- by "you" I mean the Police

15 Department -- in connection with this

16 investigation, true?

17 A Correct.

18 Q And are you aware, sir, that your

19 detectives had to bring the Chief of the Fire

20 Department Frank Walters down to the police

21 station three times and take three separate

22 statements from him before he would admit to

23 having heard Chuck Snyder, Sr. utter the word

24 "cock-suckers" at a meeting? Are you aware of

25 that?

217

1 MR. BEVERE: Objection,

2 characterization.

3 JUDGE CURRAN: Sustained.

4 MR. BEVERE: Thank you.

5 JUDGE CURRAN: Please rephrase.

6 Characterization I am assuming as to --

7 MR. BEVERE: Yes.

8 BY MR. MULLIN:

9 Q Are you aware, sir, that your

10 detectives had to bring the Chief of the Fire

11 Department Frank Walters down to the police

12 station three times and take three separate

13 statements from him before he would say in some

14 form or fashion that he heard the word

15 "cock-suckers" uttered at a meeting he attended?

16 MR. BEVERE: Same objection.

17 JUDGE CURRAN: Shall we just make

18 it, "before he said"?

19 MR. MULLIN: Before he said.

20 JUDGE CURRAN: Thank you.

21 BY MR. MULLIN:

22 Q Are you aware of that?

23 A I'm aware that there -- there were

24 multiple interviews with -- with that

25 individual, yes.

218

1 Q Okay. At some point did you tell

2 a detective that you were aware on Sunday

3 morning, May 25th, 2004 with some -- with the

4 Mayor and certain other officials that -- that

5 it was -- that Chuck Snyder, Sr. was present at

6 that meeting and used some derogatory term

7 concerning gay people? Are you aware of that?

8 A My recollection is that yes, the term was

9 used. I -- I don't recall exactly right now if

10 it was Snyder. But yes, that -- that term was

11 used at that meeting.

12 Q You weren't present at that

13 meeting were you, sir, or were you?

14 A No, I was not.

15 Q But your Chief was, right?

16 A Correct.

17 Q He was there. Was it Chief

18 Corcoran who told you that that word was used?

19 A Yes.

20 Q And then you directed one of your

21 detectives to bring some people in to ask them

22 questions about whether or not they heard that

23 word?

24 A Yes.

25 Q Are you aware that in this

219

1 litigation under oath Frank Walters has said the

2 word he heard used by Chuck Snyder, Sr. was

3 "fucking faggots"? Are you aware of that?

4 A No, I'm not.

5 Q Did your Chief ever tell you he

6 heard those words used, "fucking faggots," at

7 that meeting?

8 A No.

9 Q Now, there was some mention of a

10 gun. Your -- you have been a detective how

11 long?

12 A 1989.

13 Q And you are the head of the

14 Detective Bureau, right?

15 A Yes, sir.

16 Q When a gun is fired, sir, what

17 kind of evidence is left behind?

18 A Well, it depends on the type of gun.

19 Q Okay. I don't know much about

20 guns, so you have to help me. When a gun, let's

21 say a handgun, is fired, a pistol, when that's

22 fired, what kind of evidence might be left

23 behind, physical evidence?

24 A Well, with a pistol --

25 Q Starting with the hand of the

220

1 shooter and working your way down.

2 A A pistol, a cartridge would eject. Would

3 there be residue on the hands? Yes, probably.

4 Would there be residue on the clothing? Yes,

5 probably.

6 Q Okay. Can you agree with me that

7 there is no police report in connection with the

8 incident of April 25th, 2004 where any officer

9 checked the hands of any volunteer fireman

10 present for gunpowder residue? Are you aware

11 there is no such report?

12 A You are correct.

13 Q Okay. And there is no report by

14 any police officer or detective in your

15 Department concerning whether or not there was

16 gunpowder residue on the clothing of any of the

17 persons present in or near the firehouse on

18 April 25th, 2004? Can you agree with me on

19 that?

20 A Correct.

21 Q And can you agree with me also

22 there is no police report indicating that any

23 shell casings or other such objects -- I think

24 you said -- used the word "cartridge" just

25 now -- were searched for in the vicinity of the

221

1 parking lot of the firehouse on or after April

2 25th, 2004? There is no police report

3 indicating such a search?

4 A That's correct.

5 Q Okay. And is it the same for a

6 shotgun, sir, a rifle or shotgun? Does that

7 leave the same kind of physical evidence?

8 A Yeah, there would be an ejection from a

9 shotgun that there wouldn't be, an ejection part

10 of a shell casing, from a revolver.

11 Q And it's also true, sir, that you

12 were called the night -- the early morning of

13 Sunday, April 25th, 2004 by Detective Reinke,

14 right?

15 A Correct.

16 Q And he called you in the early

17 morning hours, and you told him he didn't have

18 to go down to the scene of the incident at that

19 time, right?

20 A Correct.

21 Q And it's a fact that he didn't go

22 down to the scene of the incident until five

23 days later on April 30th, 2004, true?

24 A I don't know if it's that long; I don't

25 know.

222

1 Q His reports would be accurate in

2 that regard, right?

3 A Yes, they will be.

4 Q You told the jury if you don't

5 write it, it didn't happen, right?

6 A Correct.

7 Q Okay. Now, your attention was

8 drawn to a document D-123 prepared by one of

9 your officers, Moreda. And Mr. Bevere drew your

10 attention to this. And this was a report of May

11 18th, 2004, where he, Moreda, writes about

12 having -- responding to an incident concerning a

13 driver driving by and screaming, "You faggot" at

14 Timothy Carter, right?

15 A Correct.

16 Q And it says at the bottom, "The

17 victim further stated that he recognizes the

18 vehicle to be one of the firemen from the North

19 End Fire Company and can identify" -- "can

20 identify the actor, if he saw him." Okay.

21 That's written in Moreda's report, right?

22 A Correct.

23 Q And you testified about some

24 attempts that were made to find the vehicle that

25 was involved in that, right?

223

1 A Yes.

2 Q Okay. Now, the -- it says,

3 "Carter stated that he recognizes the vehicle to

4 be one of the firemen from the North End and can

5 identify the actor, if he saw him." Now, then

6 you also testified about D-100 and D-101. And

7 there you got a photograph of the North End Fire

8 Company members, their faces, right?

9 A Correct.

10 Q And you sent that photograph on to

11 Eugene Troyanski at the State Police, right?

12 A Yes, I did.

13 Q We can agree, can't we, sir -- and

14 that was June 10th that you sent that photo on,

15 right?

16 A Yes.

17 Q We can agree, can't we, sir, that

18 there is absolutely no police report wherein any

19 member of the Secaucus Fire Department went back

20 to Tim Carter with the photograph that's marked

21 D-101 that you sent down to Troyanski and said,

22 "Look, you said you can identify the actor. Is

23 he in this photograph?" There is no police

24 report reflecting that attempted photographic

25 identification by your Department, right, sir?

224

1 A It was never done, no.

2 Q Never done.

3 MR. MULLIN: I misspoke. I -- I

4 just want to correct it for the record, Your

5 Honor.

6 Q I said, "Secaucus Fire

7 Department." I meant to say there is no record

8 by the Secaucus Police Department of such a

9 photographic identification attempt, true?

10 A Correct, we never did that.

11 Q Never did that. I will show you

12 another document that was shown to you by Mr.

13 Bevere, D-103. And this is a report by Francis

14 Cotter, who is a police officer in Secaucus,

15 right?

16 A Uh-huh, yes.

17 Q And this is a report he did on May

18 1, '04, right?

19 A Correct.

20 Q Now, in this he describes an

21 incident that you discussed, witnessed by Mr.

22 Patrick Hjelm, right?

23 A Yes.

24 Q And he -- he, Officer Cotter,

25 writes, "Mr. Hjelm further states that one in

225

1 the truck yelled out the window, 'The homos are

2 out again.'" That's what he wrote, right,

3 yelled?

4 A That's correct.

5 Q Are you aware that somehow between

6 the time that he wrote that and the time Mr.

7 Hjelm's statement was taken by one of your

8 police officers the word "yelled" didn't appear

9 in Mr. Hjelm's statement; but now it just was

10 somebody said that? Are you aware of that

11 discrepancy?

12 A I am aware that the initial police report

13 said, "yelled." And I am aware that the

14 statement of Mr. Hjelm said --

15 Q Said --

16 A -- they spoke it to each other within the

17 vehicle.

18 Q Okay. And I just want to get some

19 dates down. There was some -- some discussion,

20 testimony about exactly when the Attorney

21 General took over the investigation of the

22 April 25th incident, okay.

23 A Yes.

24 Q And remember that testimony? Now,

25 here is -- here is D-97. And this has been

226

1 referred to in -- D-96 and D-97. This is a

2 letter to Chief Corcoran by someone from the

3 Attorney General's Office. I want you to look

4 at that. And if you need to, you can look at

5 D-228 and D-229, which is an investigative

6 report reflecting a meeting between you -- you

7 attended with -- with certain others from the

8 State. And I'm just going to -- you can use

9 that to refresh your recollection.

10 Using those letters can you tell us

11 with more precision when exactly it was that the

12 State took over the investigation of the

13 incident on April 25th, 2004, when that

14 supersession happened -- supersession happened?

15 Feel free to look at the other document too, if

16 you need.

17 A Yes, sir.

18 Q Now I will ask the question.

19 Having looked at those documents to refresh your

20 recollection, is it fair to say that the State

21 took over the investigation of the April 25th,

22 2004 incident on May 11, 2004?

23 A I'm -- I'm reading it May 10th.

24 Q All right. You're reading it May

25 10th. So May 10th or 11th, right?

227

1 A Uh-huh.

2 Q Is that a yes?

3 A Yes.

4 Q There was some discussion when --

5 some testimony when you spoke to Mr. Bevere

6 about what happens when -- when a witness won't

7 talk to the police, right? Do you remember

8 that --

9 A Yes, sir.

10 Q -- question? There is actually a

11 statute, isn't there, that makes it a duty of

12 every public employee to appear and testify upon

13 matters directly related to the conduct of his

14 office, position or employment before any court,

15 Grand Jury or the State Commission of

16 investigation, right? You're aware of that,

17 aren't you?

18 MR. BEVERE: Judge, I am going to

19 object. He is not reading the entire statute;

20 it's a mischaracterization.

21 MR. MULLIN: This is --

22 JUDGE CURRAN: Read the title and

23 the cite, please.

24 MR. MULLIN: This is section

25 2A:81-17.2a1, "Duty of Employee to Appear and

228

1 Testify, Removal for Failure or Refusal." This

2 is what Your Honor ruled upon before --

3 JUDGE CURRAN: I know what it is.

4 MR. MULLIN: -- so I --

5 BY MR. MULLIN:

6 Q I'm just asking you, sir --

7 JUDGE CURRAN: Excuse me, one

8 second. Are you --

9 MR. BEVERE: Can I look on with

10 Mr. Mullin?

11 JUDGE CURRAN: Sure.

12 MR. BEVERE: I won't get in his

13 way, I promise.

14 BY MR. MULLIN:

15 Q Want me to read it again, or do

16 you remember what I said?

17 A You are asking me if I'm familiar with

18 that statute? I'm not.

19 Q You're not?

20 A No, sir.

21 Q Okay. Are you familiar that there

22 is a procedure to force a public employee to

23 testify in court or before a Grand Jury if he --

24 he or she takes the Fifth Amendment? Are you

25 aware of that procedure?

229

1 A I am aware of such procedures as they

2 apply to police.

3 Q Okay. As they apply to police who

4 are employed by the Town, right?

5 A I don't want to extend to the -- I know

6 about police.

7 Q Okay. Including police who are

8 employees of Secaucus, right?

9 A Yes, sir.

10 Q Okay. And if a police officer, an

11 employee of Secaucus who happens to be a police

12 officer refuses to testify, insists on taking

13 the Fifth, say in court or Grand Jury, well,

14 there are steps that can be taken to requiring

15 them to testify, right? Give me a yes or no on

16 that.

17 A Repeat the question, please.

18 MR. MULLIN: I will have it read

19 back.

20 (Whereupon, the requested portion

21 is read back by the reporter as follows:

22 "QUESTION: And if a police

23 officer, an employee of Secaucus who

24 happens to be a police officer refuses to

25 testify, insists on taking the Fifth, say

230

1 in court or Grand Jury, well, there are

2 steps that can be taken to requiring them

3 to testify, right? Give me a yes or no

4 on that.")

5 BY MR. MULLIN:

6 A Yes.

7 Q Okay. And one of the steps

8 involves that that individual has to be

9 threatened, has to actually be told that if you

10 don't testify, you will lose your job? That's

11 one of the elements involved, right?

12 A If you're referring to Garrity, yes.

13 Q Yes.

14 A Yes.

15 Q Are you aware that in this court

16 Charles Snyder, Sr., Charles Snyder, Jr. and

17 Charles Mutschler took the Fifth?

18 A I'm aware of that, yes, sir.

19 MR. MULLIN: No further questions,

20 thank you.

21 JUDGE CURRAN: Mr. Bevere.

22 REDIRECT EXAMINATION BY MR. BEVERE:

23 Q What's your understanding,

24 Captain, as to who has to -- well, you said

25 there was a procedure that you were aware of to

231

1 compel police officers to talk. What's that

2 procedure?

3 A The -- the compelling that I'm familiar

4 with would fall under Attorney General

5 guidelines for Internal Affairs investigations.

6 Q And do you have an understanding

7 as to -- you know what, let me -- let me ask

8 you, are you familiar with the term "use

9 immunity"?

10 A Yes, sir.

11 Q Okay. What's your understanding

12 of "use immunity"?

13 A Use immunity is when I invoke my Fifth

14 Amendment privilege afforded me under the

15 Constitution and, in essence, I'm now compelled

16 to answer questions because what I say will not

17 be held against me.

18 Q And what's your understanding as

19 to who can grant use immunity?

20 A Hudson County -- my opinion is the Hudson

21 County Prosecutor's Office. That's --

22 JUDGE CURRAN: With all due

23 respect, you can't have an opinion.

24 Q What's your understanding? Don't

25 give us your opinion. What is your

232

1 understanding as to who can grant use immunity?

2 A If I sought use immunity for one of my

3 cops, I would obtain it through the Hudson

4 County Prosecutor's Office.

5 Q Now, couple other questions. Why

6 didn't the Secaucus Police department

7 investigate the issue of a gun?

8 Did I phrase the question poorly?

9 Should --

10 MR. MULLIN: Objection, Your

11 Honor. The question was asked, and the witness

12 was thinking.

13 JUDGE CURRAN: Sustained.

14 BY MR. BEVERE:

15 A I don't recall -- this is how -- the only

16 way I can answer the question, I don't recall if

17 that person who said that statement about, "I

18 just woke up and heard" -- I don't remember if

19 that was reported the night of the incident or

20 if that came out later in -- in interviews; I

21 don't remember. But again, there was nothing to

22 support that statement.

23 Q And why do you say there was

24 nothing to support that statement?

25 A Because nobody else said it. There was

233

1 no corroboration.

2 Q Now, Detective, I want to step

3 back to the issue of the photograph. Why didn't

4 you take that photograph that you sent to the

5 Attorney General's Office and show it to

6 Mr. Carter to see if he could identify anyone

7 involved in any of these subsequent incidents?

8 A Well, I'm bound by Attorney General

9 guidelines on lineup procedures. For me to use

10 that picture -- I can't use that picture. It --

11 it -- I wouldn't be able to conform at least

12 five other pictures to those types of pictures.

13 I wouldn't be able to do it.

14 Q Well, what's your -- what is your

15 understanding of the requirements with respect

16 to showing photographs?

17 A I have to have six similar-looking

18 featured photographs. I can't include a

19 codefendant. I can't do that. I have to show

20 the photograph one photograph at a time. Then I

21 have to remove that photograph and show another

22 photograph. No one involved in the case can

23 show the photograph. I don't know if that

24 answers your question.

25 Q Thank you. Well, let me -- let me

234

1 look at your answer, and let me see if I need to

2 ask you a follow-up.

3 And my last question to you, Detective:

4 Do you know whether Patrick Hjelm signed his

5 statement to the Detective Bureau wherein he

6 related the incident of May 1st?

7 A I can't answer that. I would want to

8 look at the statement.

9 Q I will show it to you. Show you

10 what's been marked as D-108 and D-109 for

11 Identification. And I will ask you if Mr. Hjelm

12 signed his statement?

13 A Yes, he did.

14 Q And are there penalties for

15 signing a false statement?

16 A Yes, there are.

17 Q What are those penalties to your

18 knowledge?

19 A Off the top of my head, I -- I -- there

20 is a -- at least a disorderly persons statute

21 that would address it.

22 Q Okay. I have no further

23 questions. Thank you, Detective.

24 RECROSS EXAMINATION BY MR. MULLIN:

25 Q So if Frank Walters lied in his

235

1 statements, he could be charged for a crime

2 under that statute? That's what you're saying,

3 right?

4 A If he lied in his statements?

5 Q In his statements to the police,

6 the way -- you were just asked about a statement

7 about Pat Hjelm, right? And you said he could

8 be charged with a crime, if he didn't tell the

9 truth in that statement, right?

10 A Yes, if it's a sworn statement, yes.

11 Q So if it was a statement in

12 exactly the same format with exactly the same

13 swearing at the bottom of it by Frank Walters

14 and if he was asked, "Did you hear the word

15 "cock-suckers" at a meeting on Monday morning,

16 the 25th" and he lied about it in this

17 statement, he could be charged under -- as --

18 for a crime, right?

19 A I am going to say yes.

20 Q And he wasn't charged in that

21 case, right?

22 MR. BEVERE: Objection.

23 MR. MULLIN: On what basis?

24 JUDGE CURRAN: Sustained.

25 MR. BEVERE: Thank you.

236

1 JUDGE CURRAN: Well, I think I

2 know the basis it was. Mr. Mullin has the right

3 to ask. Do you want to go to sidebar?

4 MR. BEVERE: Yes, thank you.

5 (Whereupon, the following sidebar

6 discussion is held.)

7 MR. BEVERE: Objection to the

8 characterization that he lied in his statement.

9 MR. MULLIN: It's too late. That

10 was -- that was a few questions ago. I just

11 asked him if he was charged with the incident.

12 MR. BEVERE: No, no, no, no, no,

13 he said if --

14 MR. MULLIN: My question was

15 charged for a crime.

16 MR. BEVERE: He said if he lied.

17 JUDGE CURRAN: But that was the

18 question before.

19 MR. MULLIN: Few questions back.

20 JUDGE CURRAN: Last question was

21 just charged.

22 MR. BEVERE: The question -- the

23 question that was charge --

24 JUDGE CURRAN: If he lied.

25 MR. BEVERE: Right now the

237

1 question here that he is asking is implying that

2 he was lying, and that's why he -- and he wasn't

3 charged. That's what this question is

4 implying --

5 MR. MULLIN: We have evidence --

6 MR. BEVERE: -- that he was lying

7 and wasn't charged.

8 MR. MULLIN: We have evidence in

9 this case that he was lying, Your Honor. It's a

10 reasonable inference.

11 JUDGE CURRAN: See, I thought you

12 were going to say, when he said, "if" because

13 that's a hypothetical; but there was no

14 objection. So at this point the best I can

15 think of is when we get to the charge

16 conference, you may want me to emphasize the

17 part of the charge that says any hypothetical

18 question is up to a jury to decide whether or

19 not the facts on which it's premised actually

20 exist. But that's in a standard charge. If you

21 want to consider asking me to expand on the

22 charge in that regard, I will gladly do it; but

23 the questions and answers are on the record.

24 I -- I really thought there was going to be an

25 objection to the hypothetical.

238

1 Any other objections?

2 MR. BEVERE: No.

3 JUDGE CURRAN: I will note your

4 objection. Hold on one second. It's preserved.

5 Do you have any other witnesses?

6 MR. BEVERE: Just Chief Corcoran

7 sitting outside.

8 JUDGE CURRAN: He is sill here? I

9 just wanted to make sure he was here.

10 MR. BEVERE: He is here.

11 JUDGE CURRAN: Thank you.

12 (Whereupon, sidebar discussion is

13 concluded.)

14 JUDGE CURRAN: I misunderstood

15 what the objection was. I am going to ask if

16 you will please repeat or have read the last

17 question.

18 MR. MULLIN: I will repeat. I

19 will repeat the question. And Frank Walters was

20 not charged with any crime in connection with

21 making false statements in a police statement in

22 connection with this matter, right?

23 A To -- to be consistent, it -- I guess

24 there would be a disorderly persons offense.

25 Q I am just asking Frank Walters was

239

1 not, in fact, charged with that --

2 A No, sir, he was not.

3 Q And Deputy Chief Cieciuch was not,

4 in fact, charged with making false statements?

5 MR. BEVERE: Judge, absolutely,

6 objection.

7 JUDGE CURRAN: There is no basis

8 for -- if you want to go to sidebar, we will go

9 back.

10 MR. MULLIN: Well, I'll do it

11 differently.

12 BY MR. MULLIN:

13 Q Do you know if Deputy Chief

14 Cieciuch was asked in the course of his

15 statement being taken by the Secaucus Police

16 whether or not prior to the April 25th, 2004

17 incident he was aware of any other incidents

18 between the firehouse and the residence of 988

19 Schopmann?

20 MR. BEVERE: Objection as to the

21 characterization of the question and the

22 statement. Be happy to go to sidebar, but my

23 objection is as to the characterization of the

24 question.

25 JUDGE CURRAN: Okay. We will go

240

1 to sidebar.

2 (Whereupon, the following sidebar

3 discussion is held.)

4 MR. BEVERE: Your Honor, okay.

5 JUDGE CURRAN: What's the number?

6 MR. BEVERE: The number is D-51.

7 JUDGE CURRAN: Okay. And what's

8 the objection?

9 MR. BEVERE: Okay. The question

10 was, "Are you aware of any other problems that

11 have occurred between the members of the

12 firehouse with any other neighbor?" And

13 Cieciuch's answer is, "Not that I'm aware of."

14 Mr. Mullin is suggesting that

15 Mr. Cieciuch lied in his statement when

16 Mr. Cieciuch was not asked what his

17 interpretation of this question was. And

18 therefore, for Mr. Mullin to suggest that he

19 purposefully gave an untruthful answer is

20 unfair; and it is improper characterization for

21 him -- for him to suggest.

22 MR. MULLIN: It's just remarkable

23 that he would make a statement like that when

24 only a week before he handled the condom

25 incident, according to Frank Walters' testimony.

241

1 MR. BEVERE: He wasn't --

2 MR. MULLIN: It's a fair inference

3 he was lying.

4 MR. BEVERE: He wasn't asked what

5 his interpretation of the question was.

6 JUDGE CURRAN: In fairness, he

7 wasn't. And --

8 MR. BEVERE: And maybe --

9 JUDGE CURRAN: -- this is also,

10 you know, not a witness who is going to be able

11 to resolve that, if that was possible.

12 I am going --

13 MR. MULLIN: He did say he

14 reviewed all these reports, but --

15 JUDGE CURRAN: Yes, he did. But

16 still I am going to sustain the objection,

17 unless there is -- I will note your objection is

18 preserved.

19 MR. MULLIN: Thank you.

20 (Whereupon, sidebar discussion is

21 concluded.)

22 JUDGE CURRAN: The objection is

23 sustained. The last question is stricken.

24 MR. MULLIN: No further questions.

25 JUDGE CURRAN: Thank you. Mr.

242

1 Bevere?

2 MR. BEVERE: No questions, Your

3 Honor.

4 JUDGE CURRAN: Anyone on the jury

5 who has a question for this witness? I see no

6 questions. Thank you. The witness may step

7 down. Thank you.

8 THE WITNESS: Thank you, Your

9 Honor.

10 (Whereupon, the witness is

11 excused.)

12 JUDGE CURRAN: Please call your

13 next witness.

14 We will go off the record.

15 COURT CLERK: Off the record.

16 (Whereupon, a discussion is held

17 off the record.)

18 JUDGE CURRAN: I just wanted to

19 talk with you about a few things mechanical.

20 What time do you want jury back on Monday? Want

21 them 9:30?

22 MR. BEVERE: 9:30 is fine.

23 MR. MULLIN: 9:30 is great.

24 JUDGE CURRAN: If you have any

25 thoughts as to what time you want to come back

243

1 tomorrow. I was truly lucky; I arranged to get

2 coverage during lunch. So if you want to, we

3 can come back like at 12.

4 MR. BEVERE: You used us as an

5 excuse, Judge?

6 JUDGE CURRAN: I did. So we'll

7 have coverage. So we can come back -- I'm

8 hoping I can get finished by 12:00. If you want

9 to say 12:00. But that might interfere with

10 your lunch. I would just say caveat has to be

11 no matter what time I start it's that I get

12 finished with what I've got. You know, if

13 I'm -- excuse me one sec.

14 (Whereupon, a discussion is held

15 off the record.)

16 JUDGE CURRAN: Sometimes you get

17 people that come in with 10 or 12 cases, so you

18 are lucky, you can go through all those with the

19 same one. So I am guessing I could finish by

20 12:00. You want to start at 12 or no?

21 MR. BEVERE: I will start any

22 time. As long as we don't have to walk in to

23 mediate cases, I will start any time.

24 JUDGE CURRAN: I'm sorry?

25 MR. BEVERE: As long as we don't

244

1 have to walk in, start mediating cases.

2 JUDGE CURRAN: No, no, everybody

3 is due here for 8:30 for that one.

4 The other thing is -- I hate to

5 say this, and I -- but it -- you know, everybody

6 is working very hard. I have no objection if

7 you want to bring a snack or if you want to

8 bring something to drink or whatever. I --

9 MR. MULLIN: We might end up doing

10 that.

11 MS. SMITH: If Gallipoli catches

12 us, we won't rat you out, Judge.

13 JUDGE CURRAN: I have a feeling he

14 may not be here tomorrow. He and I both left

15 late last night; and I think he said he wasn't,

16 but I could be wrong. But I have no objection

17 to that. That goes for Tracey too.

18 MR. BEVERE: I will go find my

19 witness.

20 JUDGE CURRAN: Okay. The last

21 thing that Mr. Bevere may actually want to be

22 here on that, and I have been thinking about

23 this attorney-client privilege issue. And at

24 one point you raised the question, well, what

25 about just deposing him? I was really thinking

245

1 just bringing him in. I almost think now that

2 it might be better to depose him.

3 MS. SMITH: The problem with that

4 is, Judge, if I knew they were waiving the

5 privilege, I would have his e-mails, I have

6 would have his billing records, I would have his

7 memos. I'm just --

8 JUDGE CURRAN: I think it might go

9 half a step, at least.

10 MR. MULLIN: The trouble is it may

11 go --

12 JUDGE CURRAN: Because the

13 other -- there is a couple cases I would like to

14 cite to you, Judge. If we can put the witness

15 on and then maybe have a few minutes of your

16 time, there is a couple -- there is a case right

17 on point that says if they don't amend their

18 Interrogatories and that if they assert the

19 privilege in discovery, that lawyer can't

20 testify.

21 MR. PARIS: Well, obviously --

22 MS. SMITH: I would really --

23 JUDGE CURRAN: Oh, I -- I would

24 like to look at the case, but I'm not unfamiliar

25 with that because we get a fair number of these.

246

1 My concern is the argument is did they or did

2 they not assert it? They are saying they didn't

3 assert it.

4 MS. SMITH: They asserted it in

5 writing.

6 MR. MULLIN: They asserted it in

7 writing.

8 JUDGE CURRAN: With regard to

9 meetings. What I'm trying to do is avoid the --

10 that was their argument this morning; it was in

11 regard to meetings.

12 MS. SMITH: They assert the

13 privilege only with regard to face-to-face

14 communications; that's --

15 JUDGE CURRAN: That's what I don't

16 have a case on.

17 MS. SMITH: They should find a

18 case that says you can assert the

19 attorney-client privilege only with regard to

20 face-to-face meetings. Sorry.

21 JUDGE CURRAN: We don't have to do

22 this now. I don't want to delay the witness.

23 But all I was -- if we're going to, you know,

24 need to depose him, we may as well know it now,

25 so that you'd have more time. But you can think

247

1 it over. We will do the witness.

2 MR. MULLIN: I think we can take

3 this up tomorrow, Your Honor.

4 JUDGE CURRAN: Sure. It's fine

5 with me. I just didn't want to not raise it --

6 MR. BEVERE: No, I understand.

7 JUDGE CURRAN: -- raise it as

8 quickly as --

9 MR. PARIS: I think we should make

10 it at noon, then, tomorrow.

11 MS. SMITH: Are we going to have

12 your jury charges?

13 MR. PARIS: Yeah, by noon.

14 MS. SMITH: We will have them when

15 we walk in the door?

16 MR. MULLIN: You gave us the

17 Federal draft.

18 MS. SMITH: The form, you are not

19 going to fill it in?

20 MR. PARIS: We will fill in the

21 blanks where it says --

22 JUDGE CURRAN: Okay. We will see

23 everybody at 12. So we will worry about that --

24 MR. MULLIN: 12:00.

25 JUDGE CURRAN: Thank you. Thank

248

1 you. Thanks, Tracey.

2 (Whereupon, sidebar discussion is

3 concluded.)

4 JUDGE CURRAN: Thank you. Please

5 call your next witness.

6 MR. BEVERE: Yes, Secaucus Police

7 Chief Dennis Corcoran.

8 JUDGE CURRAN: Thank you.

9 C H I E F D E N N I S C O R C O R A N is duly

10 Sworn by a Notary Public of the State of

11 New Jersey and testifies under oath as

12 Follows:

13 COURT STAFF: State your full name

14 and spell your last name.

15 THE WITNESS: Dennis Corcoran,

16 C-o-r-c-o-r-a-n.

17 COURT STAFF: You may be seated.

18 JUDGE CURRAN: Thank you, sir.

19 You're under oath. All your testimony must be

20 truthful and accurate to the best of your

21 ability. Do you understand?

22 THE WITNESS: Yes, ma'am.

23 JUDGE CURRAN: Thank you. Please

24 move a little closer to the microphone, if you

25 can.

249

1 THE WITNESS: I could.

2 JUDGE CURRAN: Thank you. Please

3 give us your address for the record.

4 THE WITNESS: 13 Schmidts Place,

5 S-c-h-m-i-d-t-s, in Secaucus, New Jersey.

6 JUDGE CURRAN: Thank you. Your

7 witness.

8 MR. BEVERE: Thank you.

9 DIRECT EXAMINATION BY MR. BEVERE:

10 Q Good afternoon, Chief.

11 A Dan.

12 Q By whom are you employed?

13 A By the Town of Secaucus.

14 Q And what's your position?

15 A I am the Police Chief.

16 Q And how long have you been the

17 Police Chief?

18 A Since 1996.

19 Q And just give me general overview

20 of your duties as Police Chief.

21 A I'm responsible for the operation of the

22 Police Department and reporting budgets,

23 finances to the Mayor and Council.

24 Q Now, what, if any, supervisory

25 responsibilities do you have as Police Chief?

250

1 A I have total responsibility for the rank

2 and file underneath me.

3 Q Now, in your capacity as Police

4 Chief did you have the -- are you familiar with

5 an incident that's alleged to have occurred in

6 the early morning hours of April 25th, 2004?

7 A Yes, I am.

8 Q And can you tell us how and when

9 you became aware of that incident?

10 A Early that morning of the 25th I received

11 a phone call at my home from the desk officer

12 that there was an incident at the North End

13 Firehouse involving the neighbors next door.

14 Q And what, if anything, did you do

15 in response to that phone call?

16 A Well, they had told me that the incident

17 was over and that they were going to keep a

18 policeman there for the rest of the evening.

19 And I was satisfied with that. And then I would

20 be in first thing in the morning to take a

21 closer look at it.

22 Q And what was the next thing that

23 you did in connection with the incident?

24 A Then I informed the police liaison,

25 Deputy Mayor Reilly, and the Mayor and the Fire

251

1 Chief the next morning, approximately 9 to 10:00

2 in the morning about the incident that had

3 occurred.

4 Q And at that point, about 9 in the

5 morning on Sunday, what was your understanding

6 of what had occurred earlier at the firehouse?

7 A That it was a shouting match between --

8 MR. MULLIN: Objection, Your

9 Honor, calls for hearsay.

10 MR. BEVERE: Judge, I am --

11 MR. MULLIN: No foundation.

12 MR. BEVERE: What his

13 understanding was.

14 JUDGE CURRAN: All right. I will

15 allow that question, overrule the objection.

16 Noted on the record.

17 BY MR. BEVERE:

18 A That there was a shouting match between

19 the firemen and the neighbors in the

20 house adjacent to the parking lot.

21 Q And what was your purpose in

22 contacting the fire liaison?

23 A To advise him of the incident because

24 they -- officer had notified me did inform me

25 that the people that they were involved with the

252

1 incident are -- are gay, and it -- it could be

2 something more to it.

3 Q What, if any, decision did you

4 make -- let me ask it this way. After you spoke

5 to the Deputy Mayor did you speak to anyone

6 else?

7 A That morning?

8 Q Yes.

9 A There was a meeting that -- later on in

10 the morning that the Mayor wanted to have with

11 the Fire Chiefs, myself, Deputy Mayor and couple

12 firemen from that North End Firehouse. And I

13 advised them of the incident and that the Police

14 Department was going to do an investigation of a

15 possible bias crime.

16 Q And how -- what's your

17 understanding as to how this meeting came to be?

18 A The Mayor wanted to have the meeting so I

19 can inform the Fire Chiefs of what the Police

20 Department was going to be investigating.

21 Q And what, in fact, did you inform

22 the fire chiefs you were going to be

23 investigating?

24 A That -- possibly a bias crime.

25 Q Did you advise of anything else

253

1 that the department was going to do?

2 A Notified the Hudson County Prosecutor's

3 Office. And then we also -- through a form we

4 notified the State Attorney General's Office.

5 Q Now, why is it that you notified

6 the Hudson County Prosecutor's Office?

7 A That's -- my immediate supervisory

8 officer is the Hudson County Prosecutor. I'm

9 compelled to notify him about certain incidents,

10 this being one of them.

11 Q Who do you report to on law

12 enforcement issues?

13 A Ed DeFazio, Hudson County Prosecutor.

14 Q Was that true in April 2004?

15 A Yes, it was.

16 Q I want to talk a little about this

17 meeting that took place at the North End -- I'm

18 sorry, at the -- where did the meeting take

19 place?

20 A At the Town Hall, in the Town Council

21 chamber.

22 Q Approximately what time did the

23 meeting take place?

24 A Eleven, 11:30-ish, somewhere that Sunday

25 morning.

254

1 Q And what is your recollection as

2 to who was present for this meeting?

3 A The Mayor, the Deputy Mayor, John Reilly,

4 the three fire chiefs, the two Chuck Snyders,

5 Richie Johnson, myself.

6 Q And what, if anything -- let me

7 ask it this way. Do you recall anything that

8 was said by anyone at the meeting regarding the

9 incident? Just asking if you recall. I am not

10 asking --

11 MR. MULLIN: Is that a yes or no?

12 JUDGE CURRAN: Yes, it is.

13 BY MR. BEVERE:

14 Q Yes or no?

15 A There was --

16 MR. MULLIN: Objection.

17 JUDGE CURRAN: Sir, it calls for a

18 yes or no.

19 BY MR. BEVERE:

20 A Yes.

21 Q You do recall?

22 A Yes.

23 MR. MULLIN: Thank you, Your

24 Honor.

25 JUDGE CURRAN: Thank you.

255

1 BY MR. BEVERE:

2 Q Now, with regard to your role at

3 the meeting, what was your role? What were you

4 doing?

5 A Simply to advise the parties involved

6 that the Police Department had begun an

7 investigation of the incident.

8 Q At that point in time, aside from

9 notifying the Prosecutor's Office, what had you

10 determined to do in regard to an investigation?

11 A Continue a policeman up at the vicinity

12 to keep an eye on it, to make sure the

13 neighborhood stayed calm.

14 Q I am going to get into those

15 matters in a minute. With regard to the

16 meeting, did you overhear anyone at the meeting

17 make an antigay remark?

18 A I heard one of the firemen --

19 JUDGE CURRAN: It's a yes or no.

20 Q It's a yes or no.

21 A Yes.

22 Q Okay. As you're sitting here do

23 you recall the individual who made the remark?

24 A Yes.

25 Q And who was that individual?

256

1 A Chuck Snyder, Sr.

2 Q And do you recall the remark that

3 was made?

4 A Yes.

5 Q Can you tell us what that remark

6 was?

7 A "Are you going to take the word of those

8 cock-suckers over us?"

9 Q And upon hearing that remark,

10 what, if anything, did you do?

11 A That was when I stood up and said, "I'm

12 not partaking in this meeting anymore. I have

13 an investigation to start."

14 Q And what, if anything, else did

15 you do that morning?

16 A Notified the detectives that were going

17 to be -- I met with some detectives that were

18 going to be investigating the case and how we

19 were going to proceed.

20 Q Did you have any contact with

21 either of the victims?

22 A I did, yes.

23 Q Okay. Can you tell us how that

24 came about?

25 A The Mayor wanted to go to see the victims

257

1 and explain to them that the Town is going to

2 take this --

3 MR. MULLIN: Objection.

4 Excuse me. I'm sorry, sir.

5 Objection, hearsay.

6 JUDGE CURRAN: Sir, you cannot say

7 what someone else said.

8 BY MR. BEVERE:

9 Q Chief, without telling us what the

10 Mayor said, tell us what you did.

11 A Went to see the two victims.

12 Q And what was your purpose in going

13 to see the victims?

14 A To explain to them that the Police

15 Department was going to -- is in the process of

16 investigating the incident.

17 Q And what, if anything, happened

18 when you got to the plaintiffs' residence?

19 A Mr. deVries answered the door, stated, "I

20 don't want to talk to any of yous" and shut the

21 door.

22 Q How did you know it was

23 Mr. deVries?

24 A I didn't at that time.

25 Q Okay.

258

1 A I found out -- I knew several days later

2 that that was Mr. deVries --

3 Q And how --

4 A -- because I met Mr. Carter.

5 Q Okay. And then did you do

6 anything else that Sunday in regard to the

7 incident?

8 A No.

9 Q And then what was your next

10 involvement with the incident?

11 A First thing in the morning we notified

12 Hudson County Prosecutor's Office.

13 Q Okay. I want to show you a

14 document which I have marked as D-9 for

15 Identification.

16 A Uh-huh.

17 Q I am going to ask you if you can

18 identify D-9?

19 A Yes, I can.

20 Q Okay. What is D-9?

21 A It's a priority check for 988 Schopmann

22 Drive.

23 Q And what is the date of that?

24 A 4/25/2004.

25 Q What is the purpose of this

259

1 priority check?

2 A So that house would get the hourly --

3 checked hourly 24/7.

4 Q And what does it mean to -- when

5 you say, "check," with a priority check -- what

6 exactly is a priority check, I guess is my

7 question to you?

8 A Police officer in that zone physically

9 have to go to that location and check the

10 neighborhood to make sure everything was okay.

11 Q How long did Mr. deVries and

12 Mr. Carter's residence remain on priority check?

13 A Until they moved out of Town in the fall

14 of that year.

15 Q Now, do you know whether the

16 Hudson County Prosecutor's Office was notified

17 of the incident?

18 A Yes.

19 Q And what was your role, just you

20 personally, in the investigation of the events

21 of April 25th, 2004?

22 A Daily I was updated by Captain Buckley

23 and his staff on the investigation.

24 Q Now, at some point were you -- let

25 me ask it more basically. Did you have any

260

1 contact with the Attorney General's Office in

2 regard to the incident?

3 A Yes, I did.

4 Q Okay. Can you tell us the first

5 time?

6 A Approximately 11 days after the incident,

7 somewhere around May 11th or so, we were

8 notified that -- we set up a meeting with the

9 Troyanski, I believe his name is; and we went

10 over our entire case with inspector --

11 Investigator Troyanski.

12 Q Okay. I want to show you a report

13 which I marked as D-81, D-82. D-81, D-82. Ask

14 you to take a look at that. And I want to ask

15 you if it refreshes your recollection as to the

16 date of the meeting?

17 MR. MULLIN: Objection, Your

18 Honor -- well, I will withdraw the objection.

19 A Yes.

20 Q Okay. What was the date of the

21 meeting?

22 A On May 4th of '04.

23 Q Do you have --

24 A Excuse me.

25 Q Do you have a recollection of this

261

1 meeting?

2 A Yes.

3 Q Okay. What was the purpose of the

4 meeting?

5 A To explain --

6 MR. MULLIN: Objection, Your

7 Honor. He can testify as to his understanding

8 of the meeting. Purpose of the meeting, well,

9 that has to do with what's in the heads of --

10 MR. BEVERE: Judge, I will be

11 happy to withdraw the question.

12 JUDGE CURRAN: Thank you.

13 BY MR. BEVERE:

14 Q Who was present for the meeting?

15 A Troyanski from the State Attorney

16 General's Office, myself, Captain Buckley,

17 Lieutenant Malanka, Reinke. I don't recall

18 anyone else.

19 Q Okay. What, if any, information

20 was provided by the Secaucus Police Department

21 to the representatives of the Attorney General's

22 Office?

23 A Everything that we had up to that point

24 was turned over to them.

25 Q And how did you leave the meeting

262

1 with the Attorney General's Office?

2 A I personally asked him if the Attorney

3 General's Office would convene a Grand Jury.

4 Q And why did you want him to do

5 that?

6 A Because we were getting resistance from

7 people coming in as witnesses to an incident,

8 and I knew only Attorney General office can

9 compel people to testify by offering maybe use

10 immunity.

11 Q Now, I want to ask you a question

12 about the -- to follow up with regard to the

13 Attorney General's Office, at some point did you

14 hear back from the Attorney General's Office?

15 A Yes.

16 Q Okay. And do you recall about

17 when that was in relation to the meeting?

18 A Shortly thereafter. Days after I was

19 notified by them.

20 Q Notified by them as to what?

21 A That they were going to take over the

22 case.

23 Q And what does that mean, for them

24 to take over the case?

25 A That it's no longer our investigation.

263

1 And I was instructed to -- anything that goes

2 on, to report it to them immediately, only get

3 involved if immediate action was necessary

4 because there was something going on but then

5 follow up with the Attorney General's Office

6 immediately and forward them all reports.

7 Q Okay. That was my question to

8 you. What does it mean to follow up with the

9 Attorney General?

10 A We forward everything new that came in to

11 the Attorney General's Office because it was

12 their investigation.

13 Q Now, I'm going to show you what I

14 have marked as D-30 and D-31 for Identification

15 and ask you if you can identify that document?

16 A Yes.

17 Q Okay. And what is that document?

18 A This is the letter that I received from

19 the State Attorney General's Office that they

20 were taking over the case and that also the

21 Hudson County Prosecutor's Office would have no

22 involvement in it.

23 MR. PARIS: Sorry, what document

24 is that?

25 MR. BEVERE: D-230 and D-231?

264

1 JUDGE CURRAN: That was

2 incorrectly marked every single time you use it.

3 We use the 2. It's always identified as "30."

4 MR. BEVERE: Maybe it's my voice,

5 Judge. I apologize.

6 BY MR. BEVERE:

7 Q I am going to get back to the

8 letter in a second. When the Secaucus Police

9 Department began its investigation into the

10 incident, what, if any, instruction did you give

11 to the municipality?

12 A I advised the Town Administrator that the

13 Police Department is conducting a criminal

14 investigation, any information that they would

15 have wanted, they're not going to get and

16 they're not permitted to have, as a criminal

17 investigation is ongoing.

18 Q And why is that?

19 A Because it could impede my criminal

20 investigation. Releasing any information for

21 their administrative hearing, no, the criminal

22 matter comes first.

23 Q Okay. Now -- now, with regard to

24 the supersession letter that you received from

25 the Attorney General's Office, which is 230 and

265

1 231, I believe that -- well, I'll ask you the

2 question again. What was your understanding of

3 your role once you received this letter? I say,

4 "your role," I mean the Secaucus Police

5 Department.

6 MR. MULLIN: Objection, asked and

7 answered. Your Honor, it is asked and answered.

8 JUDGE CURRAN: You want to

9 rephrase it?

10 MR. BEVERE: No, I will ask a

11 different question.

12 JUDGE CURRAN: Thank you.

13 BY MR. BEVERE:

14 Q I believe -- I believe you did

15 answer the question.

16 With regard to -- and this letter was

17 addressed to you?

18 A Yes.

19 Q Okay. With regard to the second

20 page of the letter --

21 MR. MULLIN: Which number?

22 MR. BEVERE: I'm sorry, D-31.

23 MR. MULLIN: 231.

24 JUDGE CURRAN: 231.

25 MR. BEVERE: I keep saying,

266

1 "D-31," don't I? D-231. We've figured out the

2 problem, Judge. It was me.

3 BY MR. BEVERE:

4 Q D-231, what is your understanding

5 of the instruction that was given to the Town?

6 A That they --

7 MR. MULLIN: I have an objection,

8 Your Honor. Might take me a moment to formulate

9 it. What was his understanding of the

10 instruction that wasn't given to him? I object

11 to that, Your Honor.

12 MR. BEVERE: Judge, the letter was

13 addressed to the Chief.

14 MR. MULLIN: Oh, this letter? You

15 know, you said, "D-30" and you threw me.

16 JUDGE CURRAN: Yes.

17 MR. MULLIN: I'm with you. I'm

18 with you.

19 JUDGE CURRAN: You may answer the

20 question, if you can remember it.

21 BY MR. BEVERE:

22 A Yeah, also they notified the Secaucus

23 EEOC officer that they're not to have any

24 involvement in this case, as it's an ongoing

25 criminal investigation.

267

1 Q And why is it important that there

2 be no other involvement or -- let me rephrase

3 the question. Why is it important that no other

4 department aside from the law enforcement be

5 involved in an investigation of this type?

6 A Anyone outside law enforcement, talking

7 to anyone that may have knowledge of the

8 incident that took place could hinder any

9 criminal investigation. So administratively is

10 always done after criminal is handled.

11 Q Now, what, if any, steps did the

12 Secaucus Police Department take after

13 April 25th, 2004 to protect Mr. deVries and

14 Mr. Carter?

15 A Twenty-four -- right after the incident

16 there was a policeman assigned to the vicinity

17 on times where there would be activity in the

18 firehouse. Those times would be from 3:00 to,

19 on a week night, maybe 11:00, maybe 12:00. On a

20 weekend it would be all day and into the early

21 evenings because there could be activity in the

22 firehouse. Plus, the zone guy had to make a

23 minimum of one-hour check at the residence.

24 Along with that, detectives were also told to

25 make frequent checks in their unmarked cars

268

1 while they're on patrol. I, myself, made

2 numerous checks up there.

3 Q Did you develop a relationship

4 with either Mr. deVries or Mr. Carter?

5 A I had several conversations with Tim

6 Carter.

7 Q And how would you characterize

8 your contact with Mr. Carter?

9 A Very pleasant.

10 Q Now, when -- I'm sorry, what --

11 how long was the officer posted between those

12 hours that you told us?

13 A The continuous assignment sitting in a

14 police car in the area was for two weeks. The

15 continuing coverage of a minimum hourly was for

16 as long as the two people lived within the Town

17 of Secaucus, which they moved out sometime

18 November, I believe, of '04.

19 Q Now, I want to step back for a

20 second to the meeting the morning following the

21 incident. Did you have any conversations with

22 anyone in the Police Department about your

23 meeting?

24 A I spoke to Captain Buckley about it

25 because we both met in headquarters to start

269

1 what we were going to do.

2 Q Did you advise Captain Buckley as

3 to what you had heard at the meeting said by --

4 A Oh, immediately.

5 Q And what, if any, instructions did

6 you give Captain Buckley at that point?

7 A File a police report to that account.

8 Q Now, in addition, at some point in

9 time was Charles T. Snyder, which would be

10 Charles Snyder, Jr., employed as a Police

11 dispatcher?

12 A Yes, he was.

13 Q Okay. And following the incident

14 of April 25th of 2004 did you send a memo to

15 Charles Snyder, Jr. about his employment as a

16 Police dispatcher?

17 A Yes, I did.

18 Q And I'm going to show you what's

19 been marked as D-92 and ask you if this is copy

20 of your memo?

21 A Yes.

22 Q Okay. And you can look at it, if

23 you need to refresh your recollection. What was

24 your purpose in sending that memo to Chuck

25 Snyder, Jr.?

270

1 A We were receiving quite a few phone calls

2 from the two people, Mr. deVries and Mr. Carter.

3 I never wanted to run the risk of one of them

4 calling the Police Department and getting Snyder

5 on the phone. I would -- that would be awkward.

6 The integrity of the Police Department -- I

7 didn't want to take any chances of they made a

8 call for something and a car wasn't sent because

9 possibly dispatcher may have forgotten. So I

10 just didn't want to take any chances of that

11 happening. And to protect the interests of

12 Mr. deVries and Mr. Carter and maintain the

13 integrity of the Police Department, I felt it

14 was best that he would not be scheduled for

15 anymore work.

16 Q All right. Did you fire or

17 suspend Snyder, Jr.?

18 A No, I don't have the authority to fire an

19 employee. I could temporarily suspend an

20 employee, but he is a per diem employee. All I

21 did was merely not have him scheduled anymore

22 for any more work.

23 Q Do you have the discretion as to

24 whether per diem --

25 A That discretion I have, yes.

271

1 Q Now, did Chuck Snyder work as a

2 Police dispatcher at any time between April

3 25th, 2004 and the day you sent this memo?

4 A No.

5 Q Since this memo has Chuck Snyder

6 worked as a Police dispatcher?

7 A Excuse me?

8 Q Since you sent this memo has he

9 worked as a Police dispatcher?

10 A No.

11 Q Chief, I may be done. Just give

12 me a second to check my notes.

13 A Sure.

14 Q I have no -- I'm sorry. Oh, I'm

15 sorry, I had one question.

16 MR. BEVERE: One more question for

17 the witness.

18 Q Do you know whether the Town of

19 Secaucus maintains photographs of its volunteer

20 firemen?

21 A No, they don't.

22 MR. BEVERE: Thank you. No

23 further questions.

24 JUDGE CURRAN: Thank you.

25 Mr. Mullin.

272

1 CROSS EXAMINATION BY MR. MULLIN:

2 Q Chief, good afternoon.

3 A Good afternoon.

4 Q So Chuck Snyder, Jr. was working

5 as a part-time dispatcher until you wrote the

6 letter D-92 that he just referred to, right?

7 A That's correct.

8 Q And then he never worked as a

9 part-time dispatcher again for the Police

10 Department, true?

11 A No.

12 Q And you don't call that being

13 fired, right?

14 A No.

15 Q You don't call that being

16 suspended, right?

17 A I don't have the authority to fire

18 someone. And if I suspend someone, they have to

19 have a hearing within 30 days.

20 Q Chief, May 7th, 2004 you wrote a

21 letter saying to Chuck Snyder, Jr. that his

22 services weren't going to be used anymore as a

23 part-time police dispatcher, true?

24 A That's correct.

25 Q What's today's date? Help me

273

1 here. May -- May 20-something --

2 JUDGE CURRAN: May 29.

3 Q -- 2008. That would be four years

4 later, right, sir?

5 A That's correct.

6 Q He never worked again during those

7 four years as a police dispatcher for the Police

8 Department, right?

9 A That's correct.

10 Q You don't call that being fired or

11 suspended, correct?

12 A I didn't do either.

13 Q Right. And you told the jury that

14 the reason that you -- what should we call it?

15 What do you call what you did to Chuck Snyder,

16 Jr.? Is there a word for it?

17 A We no longer scheduled him.

18 Q Ever again?

19 A For any work. For any work.

20 Q "We never again scheduled him,"

21 can I say that?

22 A You can.

23 Q Okay. That's fair, right?

24 A Yeah.

25 Q Okay. So as of May 7th, 2004 you

274

1 never again for four years scheduled Chuck

2 Snyder, Jr.; and you said that was because,

3 well, it was a danger that maybe deVries or

4 Carter would call up and get him on the phone,

5 right?

6 A I didn't want to run that risk --

7 Q I understand.

8 A -- of making your clients feel

9 uncomfortable.

10 Q I appreciate that. In the letter

11 you say -- this is the letter you wrote, D-92,

12 right?

13 A That's correct.

14 Q That's your I signature, right,

15 sir?

16 A Yes.

17 Q And you copied it to Mayor Dennis

18 Elwell, correct?

19 A Yes.

20 Q And it's dated May 7, 2004, right?

21 A Yes.

22 Q You say in the second paragraph,

23 "It is undisputed that you were present at the

24 North End Firehouse on April 25th, 2004 when

25 certain incidents took place"?

275

1 A Yeah.

2 Q That's what you wrote, right?

3 A Yes.

4 Q You write, "These incidents are

5 currently under investigation as a bias crime."

6 You wrote that, right?

7 A Yes.

8 Q And that's all the truth, right?

9 A Yes.

10 Q You wrote, "It is further

11 undisputed that you refused to cooperate with

12 the officers from this department who were

13 attempting to investigate his incident," right?

14 A That's correct.

15 Q And that was the truth also,

16 right?

17 A Yeah.

18 Q And it's because of those facts --

19 because of those facts that you created a

20 situation where for the next four years Chuck

21 Snyder, Jr. would never again be a part-time

22 Police dispatcher, true? It's because of those

23 facts? That's why you did it, because he was

24 present at the incident and because he refused

25 to cooperate when your officers tried to

276

1 interview him? It's in light of those facts

2 that you --

3 A Stopped scheduling him.

4 Q -- stopped scheduling him,

5 correct?

6 A That's correct.

7 Q So it's not just because we're

8 worried that maybe Carter and deVries would call

9 in? Maybe that was a factor --

10 A That's a factor.

11 Q -- but you have to agree with

12 me --

13 A There is multiple --

14 Q -- other?

15 A There is multiple factors.

16 Q Okay, fine. So that was a letter

17 you wrote on May 7th, 2004 --

18 A That's correct.

19 Q -- bringing to an end the work of

20 Chuck Snyder, Jr. as a police dispatcher,

21 correct?

22 A Yes.

23 Q And then the next day -- I will

24 show you what's been marked P-196. Now, this is

25 -- this is actually four days after you wrote

277

1 this letter that we just went through.

2 A Right.

3 Q And this is a letter written to

4 you, right?

5 A Yes.

6 Q And it's written from?

7 A Captain Skalzo.

8 Q Is that Skalzo?

9 A Yeah, it's Richard Skalzo.

10 Q And in this letter Captain Skalzo

11 writes on Friday -- this is May 11th. This is

12 after you've written this letter cutting him off

13 as --

14 A That's correct.

15 Q Right? And after this Skalzo

16 writes a letter saying, "On Friday, April 23,

17 2004 Dispatcher Charles Snyder, Jr. entered my

18 office to request a modification to his current

19 schedule as a part-time dispatcher for the

20 Secaucus Police Department."

21 So on May 11th, after you've done this

22 you get this letter written to you from

23 Skalzo -- Skalzo, that the proper pronunciation?

24 A Yes.

25 Q -- saying that before the

278

1 incident, on April 23rd, Snyder entered my

2 office requesting a modification of his current

3 schedule, right?

4 A Yes.

5 Q Okay. Then he says, "As a

6 full-time firefighter for the Hudson Regional

7 Fire Department, Dispatcher Snyder felt that he

8 has little time to devote to anything beyond his

9 firefighter duties and his growing family.

10 During the past several weeks Dispatcher Snyder

11 has been scheduled with this department; but due

12 to his responsibilities with the Hudson Regional

13 Department, he was unable to fulfill his

14 duties."

15 "However, Dispatcher Snyder did not

16 wish to break totally from this Department but

17 did request a leave of absence from his duties.

18 As he is not a full-time employee with the Town

19 of Secaucus, it was only a matter of not

20 including this employee in his normal time slot

21 of Friday 0700 to 1500 hours until further

22 notice. As this did not put a burden on the

23 Police Department, it was easily accommodated."

24 This letter was written to you, right?

25 A Yes, it was.

279

1 Q If a third party was to look at

2 this, like maybe the Hudson Regional Fire

3 Department, if Mr. Snyder was to present this

4 letter to a potential employer, the employer

5 would think, would they not, based on this

6 letter, that he wasn't terminated, he just

7 voluntarily resigned, right?

8 MR. BEVERE: Objection,

9 speculation --

10 JUDGE CURRAN: Sustained.

11 MR. BEVERE: -- and argumentative.

12 BY MR. MULLIN:

13 Q May 11th --

14 MR. BEVERE: Judge.

15 MR. MULLIN: I'm sorry. I'm

16 sorry.

17 JUDGE CURRAN: Sustained. The

18 witness cannot testify as to what other --

19 MR. BEVERE: Only I am allowed to

20 do that, Judge.

21 MR. MULLIN: Only Bevere can do

22 that.

23 BY MR. MULLIN:

24 A Maybe you want an explanation for the

25 letter?

280

1 Q Well, your lawyer is going to get

2 up, and he is going to let you chat about the

3 letter. You will be able to give an explanation

4 when he is questioning you.

5 A Okay.

6 Q Believe me, he will ask you.

7 JUDGE CURRAN: Unless he asks you

8 a leading question, in which case --

9 MR. MULLIN: In which case I will

10 stand up and object.

11 MR. BEVERE: You will object, and

12 we will go to sidebar.

13 JUDGE CURRAN: Jury is going to

14 start thinking that, okay.

15 MR. MULLIN: We will let Mr.

16 Bevere handle that one.

17 BY MR. MULLIN:

18 Q Sir, your investigation, Secaucus

19 Police Department investigation of the

20 April 25th incident, that only lasted about five

21 days, that investigation, right?

22 A Until the Attorney General's Office took

23 it over. What -- what date is that?

24 Q That's -- that's May 11th, the

25 letter of supersession.

281

1 A That's when our investigation stopped.

2 Q Okay. Because let me show you

3 what's been marked D-83. This is a letter

4 written by Captain Buckley --

5 A Yes.

6 Q -- to the prosecutor. You are

7 familiar with this letter, right?

8 A Yes, I am.

9 Q And in that letter he says, "At

10 this time this agency resubmits this matter to

11 the Hudson County Prosecutor," right, "to your

12 attention, as this" -- "as this investigation is

13 concluding without any apparent success in

14 identifying those responsible for the incident,"

15 right? That's what your --

16 A Yes.

17 Q -- captain wrote?

18 A That's correct.

19 Q He wrote that on May 5th, 2004,

20 correct?

21 A That's correct.

22 Q Now, at some point you learned

23 that the Attorney General had also concluded

24 their investigation, right?

25 A Yes.

282

1 Q Okay. And there was a --

2 Hester Agudosi wrote a letter on July 5th, 2005

3 indicating that, "the Division of Criminal

4 Justice is closing the above referenced case

5 investigation." Does that ring a bell with you?

6 A Yes.

7 MR. PARIS: Excuse me, can we just

8 have a document reference?

9 MR. MULLIN: That is D-232.

10 BY MR. MULLIN:

11 Q Oh, yeah, that was the -- yeah, I

12 got to get that other one, hang on. Mr. Bevere

13 showed you a letter bearing upon the -- you

14 know, the May 10th, May 11th, when the -- when

15 the supersession --

16 A Yes.

17 Q See in D-230, D-231. And he

18 showed you -- and this was written to you,

19 right, Chief?

20 A Yes.

21 Q And this is from the Attorney

22 General's Office, right, Hester Agudosi?

23 A That's correct.

24 Q And he showed you a paragraph at

25 the end that says, "The Township of Secaucus

283

1 should withhold administrative action under NJSA

2 40A:14-119 pending notification from the

3 Division of Criminal Justice"?

4 A That's correct.

5 Q Okay. Now, maybe you misspoke,

6 but in your testimony what I heard you say was

7 that letter said the Town of Secaucus should do

8 nothing. It's narrower than that, isn't it?

9 A During the criminal investigation.

10 Q But it actually doesn't say, "Do

11 nothing"? It says, "The Town of Secaucus should

12 withhold administrative action under NJSA

13 40A:14-119"; that's what it says?

14 A The only --

15 Q It doesn't say, "Do nothing,"

16 right?

17 A The only thing the Town could do is take

18 administrative action.

19 Q Well, are you familiar with that

20 statute?

21 A Yes, I am.

22 Q That statute has to do with --

23 well, first of all, she cited the wrong statute;

24 are you aware of that?

25 A No.

284

1 Q That is a repeal statute. Well,

2 if she got the right statute, that would have

3 been dealing with suspending or firing paid

4 firemen, right?

5 A Okay.

6 Q This doesn't say anything else

7 beyond that, right? It says no administrative

8 action in connection with that statute, right?

9 A Okay, yes.

10 Q That's what this says, right?

11 A Yes.

12 Q It says, "until you hear that

13 we've closed our investigation," right?

14 A Yes.

15 Q Which closed on July 5th, 2005,

16 correct?

17 A Yes.

18 Q The Attorney General never told

19 you in that letter you have to keep the social

20 wing of the North End Firehouse open, right?

21 That was never said, right?

22 A No.

23 Q No. Look, you're the Police

24 Chief, right?

25 A Yes, I am.

285

1 Q You had nothing to do with the

2 decision whether or not to close or open the

3 social wing of the North End Firehouse, right?

4 A I'm not so sure I would have closed it

5 from day one.

6 Q You?

7 A But they did.

8 Q You might have just --

9 A They -- but they did.

10 Q You might have just left it open,

11 right?

12 A I had police there.

13 Q Let me just -- let me just get to

14 that, if in this mess of paper I can find what I

15 want.

16 Let me show you D-7 and D-8. D-7,

17 well, that's a police -- a report by Officer

18 Moreda on the date of the incident --

19 A Yes.

20 Q -- 4/25/04. And it says, "The

21 undersigned" -- that would be Officer Moreda,

22 right -- "was detailed to the North End

23 Firehouse to secure that the area is clear. At

24 approximately 220 hours" -- that is 2:20 in the

25 morning, right?

286

1 A Yes.

2 Q -- "Charles Snyder was the last

3 person to leave the house and did lock the door.

4 I was then relieved by P.O. Smith at 2:30

5 hours" -- that is 2:30 in the morning -- "on

6 Sunday, April 25th, 2004," right?

7 A Correct.

8 Q The next report, D-8, says -- and

9 that's police report by Officer Smith, right?

10 A Yes.

11 Q Says, "The undersigned was

12 detailed to watch the house next to the North

13 End Firehouse. See investigation report. The

14 undersigned was detailed there" -- well, he is

15 picking up from where Moreda left off, right?

16 Moreda leaves at 2:30 in the morning -- "was

17 detailed there from 2:30 a.m. to 4 a.m." You

18 see that?

19 A Yes.

20 Q "At approximately 3:05 a.m. I

21 noticed several volunteer firemen and their

22 girlfriends were inside the firehouse." You see

23 that?

24 A Yes.

25 Q "At this time I informed them they

287

1 were not to be inside the firehouse for personal

2 reasons, only for fire calls. They left without

3 incident."

4 So we have -- on the day of the

5 incident I see coverage from 2:30 in the morning

6 and from 2:30 in the morning until 4 a.m.

7 Now let me ask you this. Do you have

8 any other report -- can you point me to any

9 other report that shows that after 4 a.m. on the

10 day of the incident, April 25th, 2004, there was

11 a police officer stationed there? Can you think

12 of any other report that says that?

13 A No.

14 Q Sir, you said in your testimony

15 when Mr. Bevere was questioning you that there

16 was 24-hour coverage for two weeks following

17 this incident. And my question to you is: Are

18 you aware of any report that proves that, any

19 police report? Are you aware of that?

20 A They weren't leaving reports, no.

21 Q And what you just told this jury

22 is you would have left that firehouse open? You

23 wouldn't have even closed it for the five days,

24 right?

25 A I may not have.

288

1 Q Is that your testimony?

2 A Because I had policemen there.

3 Q I didn't ask you for your reason.

4 No further questions.

5 JUDGE CURRAN: Mr. Bevere?

6 MR. BEVERE: Judge, very quickly.

7 REDIRECT EXAMINATION BY MR. BEVERE:

8 Q My first question to you, Chief,

9 is: Why would there be no police reports from

10 officers who were -- who were posted at that

11 location?

12 A Because I gave -- I put out a memo, I

13 believe, for it to be covered. And those

14 officers that night were probably instructed by

15 their supervisor to leave report that night.

16 That's why they left the report.

17 Now, after 4:00 in the morning I'm sure

18 one of them went back to that location there

19 because I was told that they were keeping

20 somebody there all night and I picked it up in

21 the morning, having somebody there.

22 Q Do you have a specific

23 recollection of police officers being posted

24 there?

25 A Yes, I used to see them my -- personally.

289

1 Q Was it 24/7?

2 A No, it was only during the times when the

3 firehouse would be active, 3:00 and later, until

4 maybe 11, 12:00 on a week night. It could be

5 later on the weekend. That was somebody was --

6 had to be staying up in that general vicinity,

7 within half a block, that they could see the

8 firehouse and then the neighborhood.

9 Q Mr. Mullin had asked you a

10 question about the memo of Mr. Skalzo, and I'm

11 asking you for your explanation to Mr. Mullin's

12 question.

13 A Captain Skalzo had mentioned to me after

14 he knew I was not going to schedule him because

15 Captain Skalzo was the person that does the

16 scheduling. He says, "Hey, Chief, he just came

17 into my office on Friday and said he really

18 doesn't want to get scheduled anymore."

19 MR. MULLIN: Objection, hearsay,

20 motion to strike.

21 JUDGE CURRAN: Sustained.

22 Granted. The last part of the answer is

23 stricken.

24 BY MR. BEVERE:

25 Q Okay. Just tell us your

290

1 understanding without telling us anything

2 Mr. Skalzo said.

3 A I was advised that the dispatcher --

4 MR. MULLIN: Objection, hearsay.

5 A -- does not want to be scheduled anymore.

6 JUDGE CURRAN: What was your

7 understanding?

8 THE WITNESS: That he does not

9 want to be scheduled anymore.

10 BY MR. BEVERE:

11 Q Why did you have Captain Skalzo

12 write the memo?

13 A Because I told him to reduce it in

14 writing to me.

15 Q Had you and Captain Skalzo

16 discussed your memo to Snyder, Jr. of May 7th?

17 A Yes, because Captain Skalzo does -- was

18 doing the scheduling at the time of employees.

19 MR. BEVERE: I have no further

20 questions, thank you.

21 JUDGE CURRAN: Recross.

22 RECROSS EXAMINATION BY MR. MULLIN:

23 Q Are you aware not a single police

24 report reflects a police officer in the vicinity

25 of 988 Schopmann witnessing any incident that

291

1 happened during the six months after April 25th,

2 2004? Are you aware that no such reports exist?

3 A Yes, I am.

4 Q Okay. Sir, you just sought to

5 give an explanation for why there weren't some

6 written reports about police presence. Are you

7 familiar with the expression in your Police

8 Department, "If it's not written, it didn't

9 happen"? Have you ever --

10 A I have heard the expression.

11 Q Ever hear Captain Buckley say

12 that?

13 A Yes, I have.

14 Q Nothing further.

15 JUDGE CURRAN: Mr. Bevere,

16 anything else?

17 MR. BEVERE: Nothing further.

18 JUDGE CURRAN: Thank you. Is

19 there anyone on the jury who has a question for

20 this witness? If so, please raise your hand.

21 Anyone on the jury who has a question?

22 I see no questions. Thank you

23 very much. You may step down, sir.

24 THE WITNESS: Thank you, Your

25 Honor.

292

1 (Whereupon, the witness is

2 excused.)

3 JUDGE CURRAN: Ladies and

4 Gentlemen, we appreciate your patience. We

5 indicated yesterday that you will not be

6 required to be here tomorrow. I don't want you

7 to think we are not going to be busy. The

8 attorneys have even decided they are willing to

9 give up even their lunch hour, work through

10 lunch and work all tomorrow afternoon; but you

11 will not be required to be here.

12 We will ask if you will please

13 return on Monday at 9:30. And again, I will

14 remind you please do not discuss the case among

15 yourselves. Please do not discuss the case with

16 anyone else.

17 Yes.

18 JUROR NUMBER 1: Are we required

19 to be here next Friday --

20 JUDGE CURRAN: Sorry?

21 THE WITNESS: -- so I can make

22 arrangements for work next Friday?

23 JUDGE CURRAN: It is our belief

24 that you will not be; however, I can't totally

25 guarantee that at this time. Okay? Thank you.

293

1 Any other questions? Thank you

2 very much. Have a wonderful weekend. Thank

3 you. Bye-bye.

4 (Whereupon, the jury is excused.)

5 JUDGE CURRAN: We do, as we have

6 every day, another motion, so we will just warn

7 counsel we will see you tomorrow at noon; is

8 that right?

9 MR. MULLIN: At noon, Judge?

10 Thank you very much.

11 (Whereupon, the proceeding is

12 concluded at 4:40 p.m.)

294

1 C E R T I F I C A T E

3 I, TRACEY R. SZCZUBELEK, a Certified Court

4 Reporter and Notary Public of the State of New

5 Jersey, do hereby certify that the foregoing is

6 a true and accurate transcript of the

7 stenographic notes as taken by and before me, on

8 the date and place hereinbefore set forth.

18 ________________________________

19 TRACEY R. SZCZUBELEK, C.C.R.

20 LICENSE NO. XIO1983