1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 14
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Monday, June 2, 2008
Commencing 9:40 a.m.
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B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
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1 A P P E A R A N C E S:
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3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
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9 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
10 Attorneys for the Defendants
11 360 Passaic Avenue
12 Nutley, New Jersey 07110
13 BY: DANIEL R. BEVERE, ESQ.
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1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 OFFICER LINDA MANGONE
5 By: Mr. Bevere 143 161
6 By: Mr. Mullin 157
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8 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
9 DIRE
10 CAPTAIN THOMAS A. MALANKA
11 By: Mr. Bevere 163 187
12 By: Mr. Mullin 180 188
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14 E X H I B I T S
15 NUMBER DESCRIPTION PAGE
16 P-402 Stipulation 238
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1 JUDGE CURRAN: We're back on the
2 record. This is the matter of deVries versus
3 Secaucus, Docket Number 3520 of the 2004 term.
4 I will note for the record that
5 Miss Smith and Mr. Paris are taking the
6 deposition this morning of Mr. Leanza. It is my
7 understanding that there is no objection to
8 proceeding without them, correct?
9 MR. MULLIN: That's correct, Your
10 Honor.
11 JUDGE CURRAN: Thank you.
12 MR. MULLIN: No objection to
13 proceeding.
14 MR. BEVERE: No objection to
15 proceeding.
16 JUDGE CURRAN: Thank you. I will
17 first of all ask Mr. Bevere do you have any
18 motions? Mr. Paris had said the other day --
19 MR. BEVERE: Yes.
20 JUDGE CURRAN: -- that he might
21 have certain motions.
22 MR. BEVERE: Judge, I -- I am here
23 prepared to make the application --
24 JUDGE CURRAN: Sure.
25 MR. BEVERE: -- on behalf of the
5
1 Town of Secaucus.
2 JUDGE CURRAN: I did not mean that
3 you would not be. So please proceed.
4 MR. BEVERE: The first motion,
5 Your Honor, that I am going to make is my own
6 motion for reconsideration of the Court's order
7 of Friday afternoon. As --
8 JUDGE CURRAN: My motion -- your
9 motion and my decision in regard to the LAD?
10 MR. BEVERE: Correct.
11 JUDGE CURRAN: Thank you.
12 MR. BEVERE: I apologize, Judge; I
13 should have been more specific. But I am asking
14 the Court to reconsider the decision with regard
15 to the LAD. And essentially for the -- what I
16 will rely largely, Your Honor, are the motion --
17 the arguments that I put forth in favor of the
18 motion in November and then again before the
19 trial started and then my thumbnail version
20 of -- of those arguments again on Friday.
21 My point, Your Honor, essentially
22 is that the Court's initial decision with regard
23 to the entire Town being a public accommodation
24 or -- I'm sorry, let me state it this way, be
25 more clear.
6
1 There is absolutely no legal
2 precedent for this Court to rule that there is a
3 hostile life environment claim that the
4 plaintiffs can pursue here. Lehmann is an
5 employment case. It sets forth employment
6 standards. It talks about supervisors
7 exercising their authority to harass workers
8 under whom -- over whom they had supervisory
9 authority and over whom they have the ability to
10 control how the daily workday goes, for lack of
11 a better term.
12 Here, in this case we're talking
13 about the entire Town. And it's one thing to
14 ask the employer to control what goes on in the
15 confines, within the workplace. It is entirely
16 different thing to ask the employer to control
17 everything that goes on in the Town, regardless
18 of whether people are on-duty, off-duty, people
19 driving in their cars, people going to public
20 parks.
21 It's -- you're opening up the
22 policy consideration behind that Your Honor.
23 You're opening up towns to proliferation of
24 lawsuits based upon conduct that could occur
25 anywhere, anytime, anyplace. And -- and I think
7
1 when we look at -- now, let's -- let's look at
2 L.W. because I think L.W. --
3 JUDGE CURRAN: Hold on one second.
4 Let me just get my cases.
5 MR. BEVERE: Sure. Do you want my
6 copy, Judge?
7 JUDGE CURRAN: No, no, I have them
8 all here. They just are so numerous that it
9 takes a minute to pick them up. Thank you.
10 MR. BEVERE: Okay. Your Honor,
11 when we look at L.W. -- and we will look at the
12 subsequent case -- I think it was Godfrey versus
13 whatever seminary it was -- you're talking about
14 the -- the confines of the public accommodation,
15 itself. In other words, here in L.W. you're
16 talking about controlling the -- what's within
17 the four walls of the school and in Godfrey
18 within the, you know, boundaries of the
19 seminary, which is different than what the Court
20 is doing here and making an entire -- the -- the
21 municipality responsible for anything that goes
22 on within the Town.
23 And -- and quite frankly, the
24 basis behind the supervisory liability in
25 Lehmann, those cases, is because in those cases
8
1 the supervisor exercises their authority to
2 harass an employee, someone over whom they have
3 control. And the courts have said employer, you
4 need to be able to control that. And that's
5 different than what we have here.
6 And another point I wanted to
7 make -- and I think policy considerations beyond
8 that are enormous. Are enormous, Judge, they're
9 absolutely.
10 And another point that I wanted
11 to make was that the Court had relied upon
12 Ptaszynski --
13 JUDGE CURRAN: Right.
14 MR. BEVERE: Ptaszynski, I will
15 say it the best I can, versus --
16 JUDGE CURRAN: Uwaneme.
17 MR. BEVERE: Uwaneme Ehiri. And
18 at some point it changed, the first and last
19 names. I think the initial quarter had the
20 first and last names wrong.
21 And I wanted the Court to be
22 aware that that decision went up to the
23 Appellate Division. The Appellate Division said
24 we will rule that a police department is a place
25 of public accomodation; and therefore, you know,
9
1 the rules will apply within the police
2 department. And therefore, it was improper for
3 the court to have granted the 12(b)(6) motion or
4 whatever it was in regard to the fact that the
5 police department was not a public
6 accommodation.
7 But what's important to note
8 about that case, Your Honor, is that after that
9 case was decided by the Appellate -- what the
10 Appellate Division did not do, however, is
11 decide the legal standard that would apply. All
12 the court ruled was that a police department was
13 a public accommodation. It's important to note
14 that that court said we're not going to address
15 the legal standard that applies, we're going to
16 send that case back to the trial court.
17 Well, the trial court grants
18 summary judgment. It comes back to the
19 Appellate Division, and the Appellate Division
20 sustains the summary judgment.
21 And the opinion is -- it wasn't a
22 reported opinion, but if you Shepardize
23 Ptaszynski, this is what comes up. It's 2006
24 West Law 234, 6012, August 15th, 2006. And I
25 will read from the decision.
10
1 "The last remaining issue
2 concerns Plaintiff's LAD claim. As we noted in
3 the published version of Ptaszynski versus
4 Uwaneme, Plaintiffs contend the police officers
5 denied them equal protection on the basis of
6 their race, both in their home and while in the
7 township police station. They claim they were
8 beaten and verbally abused because of their
9 race. Because the judge found that a police
10 department was not a place of public
11 accommodation, he dismissed plaintiffs LAD
12 claims. In reversing the trial court's legal
13 determination that a police department was not a
14 place of public accommodation, we specifically
15 express no opinion of the merits of Plaintiffs'
16 claims. After conducting our own careful review
17 of the record, we conclude that these claims
18 were also properly dismissed, albeit for reasons
19 other than those expressed by the Law Division.
20 Plaintiffs allege that Ptaszynski and Ola used
21 racial epithets while carrying out their arrest
22 and in subsequent interactions while at the
23 police station. Both officers hotly disputed
24 these allegations. Accepting Plaintiffs'
25 contentions as true for the purpose of our
11
1 analysis, we discern no legal basis to proceed
2 under NJSA 10:5-4. While we obviously do not
3 condone the use by police officers of any
4 discriminatory or offensive language, the
5 utterance of these statements alone does not
6 establish a cognizable claim under the LAD.
7 Plaintiffs were free to file complaints,
8 civilian complaints against these officers with
9 the Internal Affairs Unit of either Woodbridge
10 Police Department and Middlesex County
11 Prosecutor's Office. The record does not
12 reflect whether such complaints were filed.
13 That was a footnote I read as an aside."
14 The important thing is all the
15 court decided is a Police Department, itself,
16 was a place of public accommodation. It did not
17 say that the use of -- the court didn't express
18 any opinion as to the merits of the underlying
19 claims. When the Appellate Division had the
20 opportunity, then, to consider the merits, that
21 was the decision, that there was no cognizable
22 LAD claim.
23 And one of the things that were
24 certainly not addressed was the legal standard
25 to be applied. And I would ask the Court to
12
1 reconsider the decision on Friday to reinstate
2 the LAD claims for the reasons that I have
3 stated, particularly the policy considerations
4 and the fact that Ptaszynski was ultimately
5 sustained on a second appeal and, quite frankly,
6 no court -- no court has held that there is a
7 hostile life environment claim.
8 JUDGE CURRAN: Oh, I don't have
9 any doubt of that.
10 MR. BEVERE: And -- and for those
11 reasons, Judge -- and I think another point I
12 have to make here, Your Honor -- and maybe I
13 should have started with this because it's of
14 that vital importance -- it would be one thing
15 if there was a decision in 2003 by the Appellate
16 Court, by the Supreme Court saying, hey, there
17 is such thing as a hostile life environment
18 claim. Then the Town of Secaucus would have
19 been on notice and could have conformed its
20 conduct to the requirements of the decision.
21 But here we're talking about now
22 creating this cause of action in 2008 and
23 holding Secaucus to that standard of conduct
24 back in 2004, when there simply was no legal
25 authority at that time. You know, it wasn't as
13
1 if legal counsel for the Town of Secaucus said,
2 "Well, you know, hey, listen, we got to" -- We
3 "got to be careful of what" -- "what happens in
4 this entire Town here, this entire life
5 environment issue." And it's just unfair.
6 If -- if an Appellate Division
7 says there is a hostile life environment claim
8 back in 2003 and Secaucus doesn't take proper
9 action, that's a different story. But now we're
10 talking about applying a legal standard to this
11 case that simply there was no authority for back
12 in 2004. And it's unfair to hold Secaucus to
13 that standard.
14 Quite frankly, back in 2004 what
15 standard was there? Well, there was Federal
16 1983 standard. And quite frankly, that's where
17 this claim lies, provided it could prove color
18 of law and municipal custom, practice, policy
19 decisions of high-level, policy-making
20 officials.
21 So based upon, you know, that --
22 that's the standard by which Secaucus would have
23 been governed back in 2004, not a Lehmann claim
24 under these circumstances. And for those
25 reasons I would ask the Court to reconsider the
14
1 consider --
2 JUDGE CURRAN: My reconsideration.
3 MR. BEVERE: Reconsider your
4 reconsideration. Thank you, Your Honor.
5 JUDGE CURRAN: Thank you, Mr.
6 Bevere.
7 Mr. Mullin.
8 MR. MULLIN: Yes, Your Honor.
9 Good morning, Your Honor.
10 JUDGE CURRAN: Good morning.
11 MR. MULLIN: First off, let me
12 start with the last first. I will call it the
13 Uwaneme case, was actually decided -- argued
14 March 24th, 2004 and decided July 21, 2004. And
15 the court was construing years and years of law
16 that had come before it. So clearly, it was the
17 standard for many, many years that -- that a
18 public accommodation was a place where
19 discrimination should not be tolerated and --
20 and the same with real property. Those
21 provisions had been in the act probably since
22 the beginning, probably since 1945 or '48. They
23 have been added to. They have been modified a
24 bit. But the fundamental provisions have always
25 been there. So that last argument doesn't hold
15
1 water.
2 JUDGE CURRAN: If I could just
3 indicate for the record, because I think there
4 is no question, we are really developing a
5 record on every side here. I did take into
6 account the dates. I quite carefully looked at
7 them. Sometimes it doesn't matter, but in this
8 case I did look at those dates carefully before
9 my initial reconsidering consideration.
10 MR. MULLIN: Thank you, Your
11 Honor.
12 JUDGE CURRAN: Thank you.
13 MR. MULLIN: I will add for the
14 record, because we are making a record here, in
15 that Dale V. Boy Scouts, which made the Boy
16 Scouts a public accommodation, extremely broad,
17 written by the Supreme Court of New Jersey, was
18 decided August 4th, 1999. If that didn't put
19 everybody on notice that this Supreme Court
20 viewed the public accommodations provision
21 extremely broadly, then they weren't paying
22 attention.
23 As for the motion, you'll notice
24 in my submitted jury charges, Your Honor, I
25 speak about a -- whether a hostile environment
16
1 existed at or near the residence of 988
2 Schopmann. Another way of putting it is at or
3 near the North End Firehouse. That's what we're
4 talking about.
5 I'm not asking the jury to ask
6 whether they created a hostile environment
7 throughout the Town. The creation of the
8 hostile environment on the public accommodation
9 of the North End Firehouse -- there is no
10 question that parking lot and that firehouse is
11 a public accommodation -- and the creation of a
12 hostile environment at the real property that
13 clients rented -- that the plaintiffs rented at
14 988 Schopmann, that is at the heart of this
15 case.
16 Now, that caused the plaintiffs
17 to lose the enjoyment and use of the entire Town
18 because they became frightened of going in or
19 near the Town. So they lost the use of all
20 these accommodations throughout the Town. And
21 Peter deVries testified and Tim Carter testified
22 about losing the use of library, the streets and
23 sidewalks, where they had walked their dogs, the
24 dentist's office and doctor's office and the
25 pharmacy and the restaurants.
17
1 So -- but -- but I'm not --
2 counsel overstates what -- what we're saying
3 here. A hostile environment was created with
4 respect to real property rented by the
5 plaintiffs and with respect to the -- a public
6 accommodation, to wit, the vicinity and -- and
7 place of the North End Firehouse. It's
8 narrow -- much narrower. While we've used the
9 phrase "hostile life environment," in fact,
10 we're well within the four corners of public
11 accommodations provision and the real property
12 provision.
13 Your Honor has given very careful
14 consideration to -- to this case. You had an
15 opportunity to hear more evidence than was in
16 the summary judgment moving papers, and -- and
17 that evidence plus reviewing the law was what
18 led Your Honor to -- to reconsider. And that's
19 totally appropriate under the Sisler case and
20 under various cases that permit a judge to
21 change his or her mind when it comes to an
22 intellectual ruling like summary judgment.
23 Let me just check one other thing
24 here.
25 I noticed an Appellate Division
18
1 decision, 293 NJ Super 421. This is Township of
2 Piscataway Board of Education v. Carabillo. The
3 cite is 293 NJ Super 421, where Judge Hamlin at
4 trial reversed what had been a grant by Judge
5 Longhi of a summary judgment. Judge Longhi had
6 denied a summary judgment and Judge Hamlin went
7 the other way right during the trial.
8 And the Appellate Division does
9 an analysis on, referring to Sisler, which we
10 had lengthy discussions about, in saying, look,
11 this is appropriate. These are interlocutory
12 orders, and there were reasons and ways judges
13 can overrule them. So I believe there are many
14 opinions out there to this effect.
15 Your Honor, let me try to find
16 the specific page cite to assist the Court. The
17 specific page cite is at page 431 of that
18 opinion, 293 NJ Super at 421, where the court
19 notes, "Plaintiffs argue that the prior denials
20 of the School Board's motion for summary
21 judgment became the law of the case pre -- and
22 precluded renewal of the motion at the time of
23 trial. Plaintiffs' position is without merit,"
24 write the Appellate Division. "The trial judge
25 has the inherent power to review, revise,
19
1 reconsider and modify interlocutory orders at
2 any time prior to the entry of final judgment."
3 Citing Johnson V. Cyklop
4 Strapping Corp., 220 NJ Super 250, certif.
5 denied, 110 NJ 196 opinion, it is, "A judge of
6 coordinate jurisdiction should only consider
7 vacating interlocutory orders entered by other
8 judges when there is a clear showing of
9 fundamental error in law or the submission of
10 new factual material."
11 Citing Sisler, 222 NJ Super 153,
12 certif. denied 110 NJ 304 and citing Cineas,
13 C-i-n-e-a-s v. Mammone, M-a-m-m-o-n-e, 270 NJ
14 Super 200.
15 Your Honor has met the standard
16 in that there is -- you found a clear showing of
17 a fundamental error in law. And also you had
18 the submission of new factual materials.
19 Doesn't have to be both. It can be or.
20 Submission of new factual materials.
21 In my motion I pointed facts that
22 came to light during trial. So, Your Honor,
23 this new motion for reconsideration should be
24 denied.
25 JUDGE CURRAN: Anything else,
20
1 Mr. --
2 MR. BEVERE: Yeah, Judge, I will
3 be very brief.
4 JUDGE CURRAN: I'm not rushing
5 you.
6 MR. BEVERE: With regard -- excuse
7 me?
8 JUDGE CURRAN: I'm not rushing
9 you.
10 MR. BEVERE: Oh, no, I understand.
11 With regard to the initial
12 Uwaneme decision, once again, argued March of
13 2004, which would be a month before the events
14 of April 25th, 2004. And that's just argued.
15 It wasn't decided until July of 2004.
16 Secondly, I come back to the
17 point, Your Honor, that all Uwaneme decided -- I
18 will say that because it's easier than saying
19 what -- Ptaszynski. But all it sided was that a
20 police department, itself, was a place of public
21 accomodation. It didn't stand for the fact that
22 there was a Lehmann claim, didn't set the
23 standard that applied. All it said was that a
24 police department is a place of public
25 accommodation and you can't discriminate in the
21
1 police department.
2 I stand by what I said earlier.
3 There is nothing that -- there was no case that
4 extends the LAD to the circumstances under which
5 is being claimed here, even in regard to the
6 real property. The cases that have to do with
7 real property are where people are being refused
8 to rent, buy. And certainly a Town can take
9 action to violate that right. But as I said at
10 the initial motion for summary judgment, that
11 has to do with official action by the Town --
12 the Fowler case. That was Fowler. They were
13 sending out their zoning code officer to pepper
14 these people with violations so that they had to
15 leave. And that's not this case. And there is
16 nothing that extends to these circumstances.
17 With regard to the decision --
18 the decision-making ability of the Court, I have
19 to say I'm familiar with the reconsideration
20 rule and the inherent power of the Court to
21 reconsider orders at any time up until the point
22 of final judgment. I do, though, have to say it
23 is one thing to deny a motion for summary
24 judgment and then at the time of trial grant the
25 motion for summary judgment. It is entirely
22
1 different thing to have a claim be out of a
2 case, have everyone rely upon that and then,
3 when it's brought -- and then be brought back
4 into a case halfway through, more than halfway
5 through the trial. It's a completely different
6 thing.
7 And may be, you know, depending
8 upon how Your Honor rules on this motion I will
9 bring that up again in my next motion, if we
10 need to get that far.
11 JUDGE CURRAN: Okay.
12 MR. MULLIN: Your Honor, I
13 suppose, in response to next motion, I will
14 address that issue. But one thing that should
15 be very, very clear in the record is that the
16 idea that the LAD standard might apply to
17 some -- to this case was something that I said
18 early and often. It was -- it was something
19 that -- that I brought out during some of the in
20 limine rulings and right before the openings.
21 I will give a few examples of it.
22 In trial day one in the transcript of May 7,
23 2008 -- the page is 58 to 59 -- you will see me
24 making a statement that probably you and counsel
25 grew tired of, where I said this is not a 1983
23
1 case, that the New Jersey Law Against
2 Discrimination has the same standards as Lehmann
3 under the LAD.
4 And then I specifically say at
5 page 59, line 2 to 7, "Bad enough we have
6 imported into this case this whole legal
7 standard that has nothing to do with the New
8 Jersey State Constitution. I understand Your
9 Honor's ruling. I am going to ask you to
10 revisit it before this case is over."
11 So that was me on day one. And
12 the counsel wanted at that point to -- to give
13 the jury a whole initial charge on 42 U.S.C.
14 1983. I strongly objected to it. Your Honor
15 did not give that charge, pointing out that this
16 is a statement of law that should be worked out
17 in a charge conference on the record after
18 careful examination of all precedents. "This
19 last minute attempt to lay out a summary of the
20 entire body of the law, really, of 42 U.S.C.
21 1983 without any citation to any Federal case
22 and, more pertinently, any citation to any case
23 remotely dealing with what this case is being
24 brought under, New Jersey Constitution, it just
25 has no -- it's not appropriate to rush in and do
24
1 this at this time."
2 And then, page 74, lines 2 to 10,
3 "Again, I would like the opportunity to try to
4 get you to charge the LAD standard. I would
5 like that opportunity. If I persuade you, this
6 might not even be the standard. It is the
7 standard we have to operate under. That's your
8 ruling, and we will. But, Your Honor, I think
9 it would be premature to give this charge and
10 unfair because it's one-sided, doesn't cite
11 precedent."
12 Then, in my proposed jury
13 charges, which I gave to the Court before the
14 trial and which probably I should make a court
15 record, in the section on the State
16 Constitutional claim, first I had a charge under
17 the LAD that I proposed. That starts at page
18 six of my proposed charge.
19 And then I had a charge under the
20 State Constitutional claim that I proposed at
21 page 29. And it says at the top of it, "Note to
22 trial judge. The New Jersey Supreme Court has
23 held that the Legislator" -- "Legislature has
24 implemented the antidiscrimination provisions of
25 the State Constitution through passage of the
25
1 New Jersey Law Against Discrimination.
2 Accordingly, the jury should be charged that if
3 it finds for Plaintiffs under the" -- "under the
4 LAD, it must find for the plaintiffs under the
5 Constitution."
6 I then -- I then set forth the
7 provision on natural and unalienable rights.
8 And I then state in the charge at page 30, "The
9 legal standard for a claim under the State
10 Constitution are the same as those I have
11 explained to you under the New Jersey Law
12 Against Discrimination."
13 Your Honor, I have argued that ad
14 nauseam throughout this case. It's all over the
15 record. I haven't gone through all the trial
16 transcripts repeatedly and side bars, in the
17 midst of various motions. I have alerted this
18 Court and counsel before the trial and during
19 the trial that I intended to fight for an LAD
20 charge, whether it be under the surviving State
21 Constitutional claim, which I said should not be
22 charged under 42 U.S.C. 1983 or whether it was
23 under the LAD, which I said several times I was
24 going to ask you to reinstate.
25 If the Town of Secaucus made its
26
1 decision not to attempt to try this case under
2 that standard, they did so at their own peril.
3 And it wasn't a wise decision, and it wasn't a
4 reasonable decision. I have tried this case
5 under both standards.
6 Frankly, having seen this case,
7 it sounds to me like any case tried under the
8 LAD, as well as the State Constitution. I have
9 heard counsel put in all the defenses one would
10 expect under both standards. They still haven't
11 specified something they would have done
12 differently had they known this was going to be
13 tried under the LAD. And why would they not try
14 it under the LAD standard, since the issue was
15 outstanding as to whether the State
16 Constitutional claim, which is still in the
17 case, was under the LAD standard?
18 I have been arguing over and over
19 again that under Peper v. Princeton, the
20 Constitutional standard -- the State
21 Constitutional cause of action is directly
22 under -- it's the LAD standard, it's identical
23 to it.
24 So they've had -- they had fair
25 warning throughout this case, Your Honor. There
27
1 is absolutely no prejudice to them by restoring
2 this case. And -- and frankly, Your Honor, that
3 argument has no merit. I expect they will make
4 it in connection with the next motion; that's
5 why I address it now. They raised it now, so I
6 address it now.
7 JUDGE CURRAN: Mr. Bevere,
8 anything else?
9 MR. BEVERE: Nothing further, Your
10 Honor.
11 JUDGE CURRAN: All right. Based
12 on the arguments I make the following findings.
13 Mr. Bevere, I could not agree
14 with you more that my denying a summary judgment
15 motion and then changing that decision is
16 significantly different from granting a summary
17 judgment motion and then changing that decision.
18 I also could not agree with you
19 more that there is no direct law on this issue.
20 There is certainly nothing that would -- that
21 has created a hostile life environment, hostile
22 neighborhood environment.
23 And I could not agree with you
24 more when the original summary judgment motion
25 was heard -- I think I even said to Mr. Mullin,
28
1 "Interesting, imaginative, but I'm not buying
2 it." And that was because, as I said the other
3 day -- and I incorporate the reasons I put on
4 the record the other day -- I think because I
5 was misreading or not reading carefully enough
6 the Uwaneme decision.
7 I also think, honestly, to be
8 fair about it, I didn't quite totally understand
9 the argument in regard to -- I understood the
10 hostile environment. Mr. Mullin talked about
11 they can't use the streets, they can't shop. I
12 understood that. I didn't, I believe, closely
13 enough take the Uwaneme case as public
14 accommodation, which I knew, I had -- I had
15 read, and translate that to the firehouse being
16 a public accommodation and this being the
17 firehouse -- the overflow from the firehouse or
18 the leaching, if you will, to use an
19 environmental term, of the atmosphere of the
20 firehouse. I didn't honestly think about it
21 that way.
22 I was aware that the Uwaneme
23 decision had gone back and had come up, but the
24 one thing that didn't change -- you're quite
25 right, there are no standards in there. But the
29
1 one thing that didn't change was that a police
2 department is a public accommodation.
3 I have said, I think also from
4 the date the summary judgment motion was made,
5 that I believe these are unique issues. I
6 believe no matter which way I decide the issue
7 will go certainly to the Appellate Division and
8 maybe to the Supreme Court. I said that from
9 the beginning. Knowing that, I have tried to
10 listen very carefully to the facts in this case.
11 I also knew, as I think we all
12 did, Mr. Mullin had indicated from the day
13 before the trial even began, when we were first
14 talking about the opening charge, that he was
15 going to ask me to reconsider this decision.
16 Having known that, I wanted to be
17 prepared on that and, again, took my notes on
18 the factual basis geared to what I knew was a
19 motion for reconsideration that was coming and,
20 as Mr. Mullin has put on the record, he said
21 that more times than I could count at sidebar.
22 Having considered all of that, I
23 find that it is proper to deny your motion for
24 reconsideration of my reconsideration. As I
25 said the other day, I realize that the timing is
30
1 difficult.
2 As I also indicated the other
3 day, I find that under Sisler certainly this
4 Court has the jurisdiction, has the flexibility
5 to make this decision, as I did the other day.
6 I also find that, with all due
7 respect, that's what we trial judges, in my
8 opinion, that's what we trial judges are
9 supposed to do. If not, we could kind of just
10 record all this. Tracey has done such a
11 fabulous job. We could just have Tracey listen
12 to arguments, and we could just send transcripts
13 along. But I find that would not be appropriate
14 here.
15 I find that -- and I do not
16 believe on Friday that I made this clear. I was
17 not saying -- and I think when I quoted from
18 Lehmann especially and I said things like just
19 take the word "workplace" and substitute "life
20 environment" and you have something that's
21 analogous. I did not mean, although I realize
22 the ramifications of this decision of mine, if
23 it is upheld -- may not be. If it is, I realize
24 the ramifications as far as broadening the
25 responsibility and the obligations of a
31
1 municipality.
2 But I did not mean in any way to
3 indicate that the municipality is responsible
4 for people who drive by and shout obscenities or
5 form displays in the library, which may have
6 been put up because it was Fire Prevention Month
7 and may have been put up to, basically, take a
8 side. I did not mean to extend the hostile life
9 environment, if you will, to there.
10 Exactly what I was finding was
11 that the firehouse and the property surrounding
12 it -- and so much of this happened on the
13 outside property, if you will, the parking lot,
14 one really has to look at the pictures. And
15 frankly, that is part of my factual
16 reconsideration. I, frankly, did not
17 understand, until I saw the actual pictures, how
18 close this house was to the fire building,
19 firehouse and to the parking lot. I have to
20 say, frankly, I guess I'm just more accustomed
21 to suburban areas, where you have the firehouse
22 and lots of surrounding area and no residences
23 near there. I think that is a factor here.
24 And as I said the other day,
25 therefore, based on the facts of this case, as
32
1 well as what I believe was an improper legal
2 decision, in that at the very least to
3 oversimplify it, even, when I denied the motion
4 for summary judgment, I did not give all
5 favorable inferences to the non-movant, in this
6 case, to the plaintiff.
7 Also, I based my decision on
8 what, certainly, the Town can argue against and,
9 certainly, the plaintiffs will argue for, the
10 understanding I have of the implementation of
11 the Constitutional rights within the LAD. I
12 find that the issues of the LAD protections have
13 always still been in this case. Different way
14 of identifying them, perhaps, different cites or
15 references; but those issues have been in this
16 case even after I made my initial decision.
17 And for all of those reasons and
18 the reasons I have put on the record the other
19 day I am going to deny the motion. Your
20 objection is certainly noted on the record and
21 is certainly preserved for appeal.
22 Next motion.
23 MR. BEVERE: Your Honor, my next
24 motion --
25 JUDGE CURRAN: Excuse me one sec.
33
1 COURT CLERK: Off the record.
2 (Whereupon, a discussion is held
3 off the record.)
4 MR. BEVERE: Your Honor, at this
5 point I would make a motion to declare a
6 mistrial. And there are a myriad of reasons,
7 but I will start with the most basic one. Your
8 Honor granted a motion for summary judgment in
9 November of 2007. Motion for leave to appeal
10 that ruling was made by the plaintiffs. It was
11 denied by the Appellate Division. A pretrial
12 motion for reconsideration was made by the
13 plaintiffs. It was denied by Your Honor. And
14 Your Honor also ruled pretrial that Monell
15 standards would apply to the claim.
16 This case from the defense
17 perspective was tried as a Monell case. It was
18 prepared as a Monell case. It was tried as a
19 Monell case. The -- and -- and to put it
20 simply, Your Honor -- and I'll try not to be too
21 theatrical about it -- but when I stood here on
22 the day of opening statements and I spoke to
23 this jury, I told them in my opening what the
24 plaintiffs were going to have to prove; and I
25 was talking to them about a liability standard
34
1 based upon deliberate indifference, of
2 high-level, policy-making officials, deliberate
3 indifference and persons acting under color of
4 law.
5 And as Mr. Mullin said many times
6 at sidebar in this case, "Your Honor has set a
7 very high standard for me to meet. And I am
8 prepared to meet that standard." That came out
9 numerous times, in addition to ask -- "I'm going
10 to ask Your Honor to reconsider her ruling."
11 Quite frankly, Judge, you know, it was not
12 incumbent upon me to try this case in a way that
13 if Your Honor might at some point during the
14 trial to reconsider a motion --
15 JUDGE CURRAN: That's a fair
16 argument.
17 MR. BEVERE: I tried this case
18 from a certain perspective. I told this jury
19 that a high legal standard was going to apply
20 now.
21 If I have to sum up in this case,
22 I am going to be standing here trying to defend
23 myself against a much lower threshold of proof.
24 And no matter what we tell this jury in this box
25 about how we got to this point, why things are
35
1 different, they're not stupid. They're going to
2 think either I didn't know what I was talking
3 about, which is very -- which is extraordinarily
4 prejudicial on my clients' case, or they're
5 going to think that the legal standard has
6 somehow changed between the time Mr. Mullin and
7 I gave opening statements back on May 7th or
8 wherever it was until now.
9 And the message that it will send
10 or the message that it has potential to sending
11 to this jury is that the Court believes in the
12 plaintiffs' case. And no matter what -- how I
13 question witnesses, no matter who I bring back,
14 it's going to be clear. And it's going to be
15 clear because if I have to bring witnesses back,
16 they're going to have to be told why witnesses
17 are coming back.
18 And even if we don't bring
19 witnesses back, Judge -- let's not even get to
20 that. Let's talk about the fact that when
21 this -- when summations come in this case and a
22 jury is charged in this case, should we get to
23 that point, the legal standard that's going to
24 apply is going to be significantly lower than
25 what I opened and what I presented evidence on
36
1 in this case.
2 And no matter what we say, Judge,
3 they are going to know at the outset of this
4 case we were talking about high-level,
5 policy-making officials, deliberate
6 indifference, color of law. That's Monell. And
7 that's what we opened on. And now we're going
8 to talk to this jury -- when I stand in front of
9 this jury, I'm going to have to defend myself
10 against what is, for all intents and purposes, a
11 negligence claim, which is significantly
12 different than that high-level burden of proof
13 that even Mr. Mullin himself said it many times
14 at sidebar, "Your Honor has set a very high
15 threshold of proof for me in this case, and I am
16 prepared to meet that."
17 Now we are going to go to the
18 jury with a substantially lower threshold of
19 proof, and there is simply no way for me to
20 avoid the prejudice.
21 Your Honor made a pretrial
22 ruling. I relied upon that ruling. I tried
23 this case upon that basis. I didn't question
24 witnesses about -- didn't mention it in opening,
25 didn't question witnesses about negligence
37
1 and -- and -- and liability for super -- for
2 mid-level management.
3 This was a Monell case, which is
4 here. Now we are talking about applying a
5 threshold to a jury that's here. Threshold
6 liability is here. Now it's significantly
7 reduced threshold.
8 And you know, Judge, I -- I have
9 to say and -- I'm not I'm not in any way being
10 critical of the Court.
11 JUDGE CURRAN: Oh --
12 MR. BEVERE: I understand --
13 JUDGE CURRAN: -- Mr. Bevere, you
14 do not in any way consider -- that's fair game.
15 MR. BEVERE: I don't agree with
16 the Court's decision. I understand the basis
17 for the Court's decision. I don't agree with
18 the Court's decision. But the Court has made a
19 ruling.
20 However, you know, had the motion
21 for reconsideration been granted, you know,
22 prior to trial, I would have asked the Court for
23 a week or two continuance to reevaluate where I
24 was at. I would have opened in a different way,
25 presented evidence in a different way.
38
1 And quite frankly, Judge, there
2 is just -- now -- now we're talking about a
3 standard that at least Mr. Mullin is seeking to
4 apply to the Court, whereby the Town would be
5 liable for the actions of Chuck Snyder, Jr.
6 simply because he was a fire captain of the
7 house. And that is completely, completely
8 different standard of liability than what I was
9 dealing with when this case started on May 7th
10 and when I stood before this jury right in this
11 box and I told them what it was that the
12 plaintiffs would have to prove and I would have
13 to defend against. And now I'm in a position
14 where I'm going to have to defend it against a
15 negligence theory or the actions of a captain of
16 a house.
17 And by the way, not that I'm
18 agreeing that's the standard that should apply
19 by me making that argument, what I'm saying is
20 if we get to a point and Your Honor finds that
21 pure Lehmann standards apply, which I certainly
22 don't take the position that they do, but if
23 that's the position -- and that's the position
24 that's been put forth by the plaintiff -- then I
25 think there is no way -- not I think. I know
39
1 there is going to be no way for me to avoid the
2 prejudice that is going to result on my client.
3 I had every right to rely upon
4 Your Honor's ruling that this was a Monell case.
5 Your Honor said pretrial Monell was the
6 standard. That's what we all talked about. We
7 all -- Mr. Mullin in his opening statement
8 mentioned deliberate indifference, deliberate
9 indifference, deliberate indifference. That was
10 the standard.
11 I stood here. I stood before the
12 jury; and I said to them, "Does that sound like
13 deliberate indifference to you? Does that sound
14 like a man who is deliberately indifferent?" I
15 stood right here in this very spot, and I said
16 those words to this jury. And now I'm going to
17 be forced to stand in front of this jury and
18 defend a negligence claim, a much lower standard
19 of proof -- and I hate to be repetitive -- but
20 impossibly being responsible for the conduct of
21 Chuck Snyder, Jr., simply because he is Chuck
22 Snyder, Jr. And that's a completely different
23 case. And there is no way to avoid the
24 prejudice to the Town of Secaucus.
25 And I understand -- I understand
40
1 that this has been a long road. We have tried
2 this case for four weeks. We have heard a lot
3 of witnesses. Mr. deVries and Mr. Carter have
4 testified. They have brought a psychiatrist
5 down from Boston. I have brought a
6 psychiatrist, as well -- twice, if we get to
7 that point. But what I'm saying is that you
8 have to consider the interests, fairness to both
9 sides in this case.
10 And I know Mr. Mullin is going to
11 say, "My clients have been traumatized, and they
12 shouldn't have to go through this twice."
13 And -- but the interests of the defense have to
14 be -- equally be considered and the prejudice to
15 the defense in now having to either call
16 witnesses back and, at a minimum, sum up and
17 have the jury charged on a completely different
18 legal standard.
19 And for those reasons, Your
20 Honor, I would ask that the Court declare a
21 mistrial.
22 JUDGE CURRAN: Thank you.
23 Mr. Mullin.
24 MR. MULLIN: I would have to say
25 that's a very dramatic argument. Mr. Bevere is
41
1 very passionate in his argument, but it doesn't
2 have any merit. It has no merit at all, none,
3 zero.
4 I'm going to repeat what I said
5 before. An open question facing both of us --
6 and we both did the openings here -- when I
7 stood up was whether or not Your Honor would
8 apply the 42 U.S.C. 1983 standard to my State
9 Constitutional claim or whether Your Honor would
10 decide to use the LAD standard for my State
11 Constitutional claim. That was an open
12 question. And I had to take that into account
13 when I did my opening also.
14 And reasonable counsel would have
15 taken that into account not only in their
16 openings but in their presentation of evidence.
17 And I -- I took it into account in the
18 presentation of my case. I -- I took it into
19 account when I presented witnesses with an eye
20 towards hoping that Your Honor would apply the
21 LAD standard to the State Constitutional claim
22 but also realizing Your Honor would probably
23 charge the 1983 standard under 10:6-2, which, as
24 it turned out, was your ruling.
25 So -- so neither -- I don't want
42
1 to personalize this. Let's just say the Town of
2 Secaucus had a strategic decision to make. I
3 don't want to personalize it in terms of
4 attorneys making decisions. I don't know who
5 makes the decision on the other side of the
6 table.
7 There is a defendant. And
8 defendants' lawyers come in, and they do things.
9 Well, the Town of Secaucus would not have been
10 reasonable if they did not plan this case to
11 defend on both standards because there was an
12 open question. Your Honor had only ruled on --
13 on -- let me think about what Your Honor had
14 exactly ruled on.
15 Your Honor had -- had dismissed
16 my LAD claim. Your Honor had denied my pretrial
17 motion for a hearing on that claim. Counsel had
18 offered at the beginning of trial a precharge on
19 42 U.S.C. 1983. Your Honor had, I think, based
20 on my arguments, declined to give a charge to
21 consideration 42 U.S.C. 1983 cause of action,
22 how -- how far 42 U.S.C. 1983 was going to have.
23 I made it very clear before trial started on the
24 eve of trial I was going to seek reconsideration
25 of LAD claim. I made very clear I considered
43
1 the Constitutional claim to be under LAD
2 standards.
3 So what we have here is
4 experienced counsel. I assume they made a
5 considered decision. They took some sort of
6 risk. Frankly, I don't think they took a great
7 risk because, of course, now they can sum up on
8 the LAD charge. And I have to sum up on a
9 standard I don't agree with, the 1983 claim. We
10 all have to go in there, roll up our sleeves and
11 be lawyerlike and do our best with both
12 standards because the jury could disagree with
13 me on the LAD and turns out my battlegrounds
14 turned out to be 42 U.S.C. 1983.
15 So my task is no more difficult
16 or complicated than counsel's is. I had hoped
17 that Your Honor would throw out the 1983
18 standard. Your Honor hasn't. And I understand
19 your decisions. I don't agree with them, but I
20 also have a burden to do -- to carry here.
21 Couple charges going to the jury, and one of
22 them has quite a high standard. I have to do my
23 best to meet that standard.
24 I have tried my case with an eye
25 to both standards. That is what reasonable
44
1 counsel would have done and should have done in
2 this case. This is not a case where there is a
3 total surprise out of the blue, a whole knew
4 cause of action is being thrown in that was
5 completely unforeseeable. That's -- counsel
6 argues passionately as if that was the case.
7 That is not the case. That is not the case.
8 That is not even close to this case.
9 Everything is normal here with
10 this trial at this time. There is nothing
11 unusual happening here. I have tried a lot of
12 cases. This is not the first time this has
13 happened, and it's not going to be the last time
14 this has happened. This is -- everything is
15 normal, and everything is fine. And this is not
16 a time for extraordinary remedies, like bringing
17 all the defense witnesses back and having them
18 testify, which would cause me tremendous
19 prejudice. No, counsel should have known and
20 the Town of Secaucus should have known that the
21 LAD standard was alive and well and that Your
22 Honor still had to resolve the State
23 Constitutional issue.
24 I dare say, Your Honor, if we
25 look carefully at the record, Your Honor still
45
1 hasn't ruled on the State Constitutional claim.
2 Your Honor has restored my LAD claim. Your
3 Honor has ruled against my wishes that 10:6-2,
4 as the 42 U.S.C. 1983 claim is still an open
5 issue. Whether the State Constitutional claim
6 should be decided under LAD standards, I, of
7 course, will urge the Court to look to combine
8 the two, combine the State Constitutional claim
9 with the LAD charge, as to not confuse the jury.
10 They are the same; it is the
11 enactment -- see, it is still open right now.
12 How could counsel not have tried this case with
13 an idea -- with the idea that this Court some
14 day would have to rule on whether the LAD
15 standards apply to the State Constitutional
16 claim? It's not -- it's not reasonable for
17 counsel not to have done that.
18 And while counsel says he didn't
19 do that -- and I -- I don't -- I'm not
20 second-guessing what counsel says and -- and
21 means; but if you look objectively at what
22 counsel did, he and his co-counsel, they tried
23 an LAD case, as well as a -- a Constitutional
24 case. It's unavoidable because in the State
25 Constitutional case what are we talking about?
46
1 We're talking about was there training? Was
2 there discipline? What was the remedial
3 response? Was it reasonable to have the
4 remedial response they have? Unreasonable?
5 We talked -- defense -- the
6 defense has put in Evidence that they closed the
7 firehouse down. The defense has put in reasons
8 why they felt they couldn't proceed in certain
9 other ways because they say certain police
10 investigations were going on. I'm standing
11 here -- and I am an experienced LAD lawyer; I
12 helped write a portion of the LAD -- and I -- I
13 don't -- I don't see what's missing here in the
14 defense on the LAD.
15 Now, does something need to be
16 said by the Court in the instruction that has to
17 do with the restoration of this charge? Maybe.
18 I don't rule that out. You know, I don't know
19 it's necessary. Might the Court say there were
20 certain legal rulings that came after counsel
21 did their openings and it's not counsel's fault
22 that they didn't address certain causes of
23 action which are now in this case and you
24 counsel shouldn't be blamed for not addressing
25 this legal standard in their opening? That
47
1 probably won't hurt anybody. I can't quite
2 formulate the language. Maybe there is nothing
3 wrong with that.
4 But this is a -- Your Honor, this
5 is not an unusual circumstance. This is just a
6 case like any other case where Your Honor,
7 within the four corners of Sisler, has restored
8 a cause of action. And it was completely
9 foreseeable that would be in the case. And so
10 while the argument on the other side is
11 passionate, it's dead wrong. It has no basis in
12 the record, and Your Honor should deny it.
13 JUDGE CURRAN: Mr. Bevere.
14 MR. BEVERE: Judge, clearly held
15 at the outset of this case that this case was
16 going to be under Monell. The 10:6-2 claim that
17 they brought in March was brought and was
18 allowed to be brought because all they were
19 doing was bringing the same claim that was
20 already in the case with an additional remedy of
21 attorneys fees. If it was an entirely new cause
22 of action in the case, the court would not -- it
23 was based upon their representation it was the
24 same claim, just with a different remedy.
25 That's color of law.
48
1 The color of law requirement, the
2 Monell standards, they were there. There was no
3 precedent. There was no precedent for the court
4 to apply a Lehmann standard and to say that we
5 should have somehow foreseen that Your Honor was
6 going to reconsider her rulings on the LAD and
7 then try this -- or open in a different manner.
8 I mean, that's -- it's just -- it's just not --
9 that's what's not reasonable. That's what's not
10 reasonable.
11 Mr. Mullin opened on deliberate
12 indifference, as did I. The difference is that
13 when we go to summation on this case, he will be
14 able to sum up on a much lower standard. That
15 benefits him, but it hurts me. And that -- and
16 that's -- the prejudice, no matter what you tell
17 this jury -- no matter what you tell this jury,
18 it is going to be clear to them that the
19 standard that they were told as to what they
20 would have to find, what the basis of the
21 liability of the Town would be is going to be
22 different.
23 And the fact that there is also a
24 Monell claim still in the case doesn't save the
25 day because they still can win the case based
49
1 upon a lower threshold LAD claim. So the fact
2 that we both opened on 1983 Monell standards and
3 that's still in the case, well, that doesn't
4 save it because at the end of the day the jury
5 is going to be told that they can find for the
6 plaintiffs on at least two, maybe three causes
7 of action based upon a lower threshold of
8 municipal liability.
9 This case was about deliberate
10 indifference, of high-level, policy-making
11 officials; and now we're talking about
12 negligence and supervisory liability. It's a
13 different case. And we were entitled to rely
14 upon the fact that Your Honor dismissed the LAD
15 claims and Your Honor ruled that Monell was
16 going to apply. I -- you know, and we were
17 entitled to rely upon that. And now to say that
18 we can change gears midway through the defense
19 case and that somehow that's not going to
20 prejudice the Town of Secaucus, Judge, it's
21 just -- it's not reasonable. That's what's not
22 reasonable.
23 JUDGE CURRAN: Other than the
24 openings, what would you have done differently?
25 MR. BEVERE: Well, Judge, I was
50
1 looking at the charge this weekend. And you
2 know, I mean, first of all, you have situations
3 where if you look -- if you look at the
4 Lehmann -- if you look at the Lehmann charge --
5 JUDGE CURRAN: Thank you. Excuse
6 me one sec.
7 MR. BEVERE: Sure.
8 JUDGE CURRAN: We will go off the
9 record for a moment.
10 COURT CLERK: Off the record.
11 (Whereupon, a discussion is held
12 off the record.)
13 JUDGE CURRAN: I apologize, Mr.
14 Bevere. There is a message here saying
15 Miss Smith is taking the deposition of one of
16 the witnesses, Mr. Leanza, the Town attorney.
17 Mr. Leanza keeps looking down at a BlackBerry,
18 and he won't put the BlackBerry down while the
19 deposition is being taken. Miss Smith is
20 requesting that I order Mr. Leanza to put down
21 the BlackBerry.
22 Do counsel wish to be heard on
23 that?
24 MR. MULLIN: I would like to be
25 heard on that. I want to be heard.
51
1 JUDGE CURRAN: I apologize for
2 interrupting you.
3 MR. BEVERE: So the two guys who
4 aren't in the room?
5 JUDGE CURRAN: Yes, exactly,
6 exactly, the two guys who have nothing to do
7 with this.
8 MR. MULLIN: I'm going to go a
9 little further than Miss Smith. I think that
10 BlackBerry should be turned over to Miss Smith,
11 so she can examine what messages he has received
12 during the deposition. So I would -- I mean, I
13 think that's pretty wild. I think this is very
14 much like what happened with the Dr. Goldwaser,
15 who had some notes in his lap. I think we're
16 entitled to see. And I think the law is clear
17 on it. You are entitled to see any document a
18 witness is referring to during deposition
19 testimony or trial testimony. So that
20 BlackBerry should be turned over to Miss Smith,
21 and -- and she should be allowed to examine it.
22 JUDGE CURRAN: Do you want to be
23 heard, Mr. Bevere? You don't need to be, if you
24 don't want to. I just want to ask you because I
25 think I have to call them right now.
52
1 MR. BEVERE: Judge, in all
2 honestly, I don't -- I don't know.
3 JUDGE CURRAN: Right.
4 MR. BEVERE: Obviously, I have
5 been arguing in front of Your Honor. I have no
6 idea the -- the machinations, for lack of -- for
7 what's going on up there, so I'll --
8 JUDGE CURRAN: Is there any
9 objection -- I do apologize for interrupting
10 you. I have been taking notes. If you don't
11 mind, I am going to call them back on the
12 record.
13 MR. BEVERE: I have no objection.
14 MR. MULLIN: No objection.
15 JUDGE CURRAN: Okay. This is the
16 number, Barbara?
17 COURT STAFF: Yes.
18 JUDGE CURRAN: Thank you.
19 I think you'll be able to hear
20 it.
21 (Whereupon, the following
22 telephonic conversation takes place on
23 speaker phone.)
24 RECEPTIONIST: Good morning, Smith
25 Mullin.
53
1 JUDGE CURRAN: Good morning. This
2 is Barbara Curran. I am returning Miss Smith's
3 call.
4 RECEPTIONIST: Thank you. One
5 moment, Judge.
6 MS. SMITH: Good morning, Your
7 Honor.
8 JUDGE CURRAN: Good morning,
9 Miss Smith. Is --
10 MS. SMITH: Hi. Dave Paris
11 stepped out. He is just walking in from
12 outside. I'm sorry, so sorry to bother you; I
13 know it's a busy day.
14 MR. PARIS: Good morning, Judge.
15 JUDGE CURRAN: Hi, Mr. Paris. We
16 interrupted Mr. Bevere's arguments, but he has
17 been kind enough to indicate we will take care
18 of this first.
19 MS. SMITH: Thank you. Your
20 Honor, while I'm questioning Mr. Leanza he has
21 in his hand and has been looking at a
22 BlackBerry. I asked him to please put it down
23 during the pendency of the deposition -- of
24 course, I can't see what's on the Blackberry --
25 and he refused.
54
1 MR. PARIS: Maybe we should read
2 the question and answer back, Judge. Judge, do
3 you want us to read the question back or not?
4 JUDGE CURRAN: Yes, thank you.
5 MS. SMITH: It's not about
6 question and answer.
7 JUDGE CURRAN: I understand.
8 MR. PARIS: And Miss Smith
9 indicated she was not continuing with the
10 deposition if he had the Blackberry. Mr. Leanza
11 is here. If Your Honor has any questions as to
12 why --
13 JUDGE CURRAN: All right. Do you
14 want to read the question?
15 MS. SMITH: Sure.
16 COURT REPORTER: Question: Can I
17 ask you to please put your BlackBerry away while
18 you're testifying today?
19 Answer: No, you can't because in
20 case I get something important, I'd like to take
21 a look at it.
22 MR. PARIS: Then there was --
23 COURT REPORTER: Then do I have to
24 call the judge to have him put his BlackBerry
25 away while he's testifying?
55
1 MR. PARIS: You asked him to do
2 it. He told you he doesn't want to do it, in
3 case he gets something important.
4 MR. PARIS: Then I asked a
5 question after that, I believe.
6 COURT REPORTER: Are you --
7 question asked by Mr. Paris: Are you going to
8 wait until the judge calls back?
9 MR. PARIS: And the answer was
10 yes.
11 JUDGE CURRAN: Mr. Paris, if you
12 would ask your client, please, what he means by
13 in case he gets something important on the
14 Blackberry?
15 MR. PARIS: Your Honor, can I just
16 convey that -- he has heard the question, so can
17 I let Mr. Leanza --
18 JUDGE CURRAN: Surely.
19 MR. LEANZA: Your Honor, first of
20 all, I have a BlackBerry on vibrate, so it won't
21 disrupt the deposition.
22 Secondly, if I put it on the
23 chair, I won't hear the vibration. If I put it
24 on the table, the vibration will disturb
25 anybody.
56
1 In December of 2004 my wife was
2 diagnosed with inflammatory breast cancer. She
3 has been a test patient at Sloan-Kettering
4 hospital since then. She was given six months
5 to live, which is basically the standard
6 prognosis. She went through one year of
7 intensive chemotherapy, mastectomy, radiation.
8 And we did a precautionary uterectomy. A year
9 after that the disease metastasized, and she now
10 has bone cancer.
11 She is home right now by herself
12 in a weakened state. I don't start my
13 appointments until I can drop my son off at
14 nursery school. And the reason I want to have
15 the phone, in case I get a call concerned about,
16 first of all, my wife, if she needs help and,
17 secondly, if something happens with my son at
18 school and I can pick him up.
19 MS. SMITH: Judge, I would ask if
20 Mr. Leanza is going to be allowed to have a
21 BlackBerry at trial today when he testifies in
22 front of him. I'm taking his deposition. I
23 assume he could make arrangements for whatever
24 personal things he has to take care of during a
25 deposition today. He is looking at a BlackBerry
57
1 while he testifies.
2 MR. PARIS: Your Honor, I just
3 want to be clear for the record. Mr. Leanza is
4 not going to be testifying today. We had
5 indicated on Friday with Your Honor that I think
6 there are only two witnesses today, and I -- I
7 know one is Lieutenant or Captain Malanka, and I
8 think Mangone is the other one. But just so
9 you're aware, I just don't want that to go by.
10 He is not supposed to testify today.
11 MS. SMITH: That is the first time
12 I heard that.
13 JUDGE CURRAN: Okay. We are not
14 going to argue about schedule at this point.
15 Mr. Paris, is your client
16 intending or requesting to use the beeper or --
17 or the BlackBerry whenever he testifies, if he
18 testifies.
19 MR. PARIS: Your Honor, I haven't
20 really posed that question. This just came up
21 this morning.
22 MR. LEANZA: Your Honor, I
23 would -- normally I have it in my back pocket.
24 But since I am sitting down, that's annoying;
25 and it's more of a pain in the neck to take it
58
1 out of my pocket. I didn't wear a suit and tie
2 today because I know I was just coming to a
3 deposition. Normally I just leave it in my
4 jacket pocket. And I would leave it in my
5 jacket pocket, if I testify. And that would be
6 it.
7 JUDGE CURRAN: Well, Mr. Paris, if
8 you would ask your client why, if the BlackBerry
9 is on vibrate, why is he looking at the
10 BlackBerry?
11 MR. LEANZA: I am just holding it
12 in my hand because -- I'll hold it in my hand
13 and won't look it at it. There is nothing on
14 it, if anybody wants to see it.
15 MR. PARIS: You know what, Your
16 Honor, I will hold it.
17 JUDGE CURRAN: That's --
18 MR. LEANZA: If it vibrates, just
19 let him give it to me.
20 MR. PARIS: How is that?
21 JUDGE CURRAN: Have there been any
22 messages received so far?
23 MR. LEANZA: Yes, I have gotten
24 two from my son's school, but nothing -- just
25 general information type stuff. That's why I
59
1 looked at it.
2 MR. PARIS: I will hold it in my
3 hand, Judge. And I am not holding, you know, a
4 BlackBerry, so I am not sending any messages to
5 the witness or anything like that. So if you --
6 if everyone is more comfortable, I will hold it
7 in my hand during the deposition.
8 JUDGE CURRAN: Mr. Mullin, did you
9 have a question?
10 MR. MULLIN: I wanted -- I think
11 Mr. Leanza answered. I wanted a representation
12 about what messages he received, and he has told
13 us. That's fine.
14 JUDGE CURRAN: So as an officer of
15 the Court, Mr. Leanza has indicated that since
16 the deposition began he has received no messages
17 other than the two from his son's school; is
18 that correct?
19 MR. LEANZA: That's correct, Your
20 Honor.
21 JUDGE CURRAN: All right. I think
22 it would help everybody if Mr. Paris did look at
23 the -- did hold the BlackBerry. And obviously,
24 no message other than from the school or from
25 Mrs. Leanza could be given to Mr. Leanza.
60
1 MR. LEANZA: That's all I'm
2 interested in, Your Honor.
3 MS. SMITH: Thank you, Your Honor.
4 Sorry to bother you.
5 JUDGE CURRAN: No problem. Thank
6 you.
7 (Whereupon, the telephonic
8 conversation is ended.)
9 JUDGE CURRAN: Off the record.
10 COURT CLERK: Off the record.
11 JUDGE CURRAN: Oh, we are still on
12 the record? We will go back.
13 COURT CLERK: On the record.
14 MR. MULLIN: Off the record? Can
15 I go off?
16 (Whereupon, a discussion is held
17 off the record.)
18 JUDGE CURRAN: Thank you. We are
19 back on the record.
20 Mr. Paris, please continue -- I'm
21 sorry, Mr. Bevere, please continue.
22 MR. BEVERE: I didn't think my
23 hair was that gray when I woke up this morning.
24 Your Honor, I believe the
25 question was, aside from the opening statements,
61
1 how would I have tried the case differently?
2 Before I address that issue -- I don't want to
3 underemphasize the importance of the opening
4 statements because that's where I told the jury
5 what the case was about, what the evidence was
6 going to be. So the opening statements were of
7 utmost importance. And quite frankly, as I said
8 before, either I'm going to look like I was a
9 liar or they're going to know the legal standard
10 has somehow changed. And that's -- that in and
11 of itself is sufficient.
12 But to specifically respond to
13 Your Honor's question, there are -- and you
14 know, and candidly, Your Honor, I don't know as
15 I'm standing here what standard you're
16 ultimately going to apply to the LAD claim,
17 whether it's going to be a pure Lehmann
18 standard, whether it's going to be some type of
19 modified Lehmann standard, like in L.W. and in
20 Godfrey. Not sure what Your Honor is going to
21 do.
22 However, Mr. Mullin is going to
23 ask for your pure -- for a pure Lehmann standard
24 charge. And there are issues in that standard
25 that were not addressed in questioning. First
62
1 of all, whether the -- whether anyone up at that
2 North End Firehouse was delegated the authority
3 to control that area, whether that authority was
4 exercised and whether that exercising that
5 authority resulted in the harassment, whether
6 the -- whether the authority that was granted
7 aided it. I mean, none of those issues were
8 explored, if that's the standard that Your Honor
9 is going to apply.
10 And I certainly would -- would --
11 and I'm certainly not, by saying that,
12 suggesting that Your Honor should apply the
13 delegation of authority portion of the Lehmann
14 charge, absolutely not. I'm not saying that by
15 making this argument. But Your Honor is asking
16 me how would the case have been tried
17 differently? What I'm saying is if that's the
18 standard to be applied -- certainly, I don't
19 think it should be; but if it is, those were
20 issues that would have had to have been
21 addressed and were not.
22 With regard to the -- well, first
23 of all, I mean, there would have been different
24 questioning to -- of the plaintiffs as to severe
25 and -- or pervasive. I mean, you know, we were
63
1 talking about at the time -- at the time
2 deliberate indifference to the plaintiffs'
3 Constitutional rights. We weren't talking
4 about, you know, was the environment so severe
5 or pervasive that you had to leave?
6 I mean, there -- you know, and in
7 addition, Judge, I mean, I want to say that
8 there wasn't a whole lot of hours between Friday
9 around 5:30, when we left here, and this morning
10 at 9:00. I mean, I went through bunch of the
11 transcripts; but I mean, can I give you an
12 exhaustive, comprehensive list of different
13 questions that I would have asked? It just
14 wasn't enough time to digest all of that.
15 I am going to tell you generally
16 there is severe and pervasive, no questioning on
17 that issue. Reasonable? Reasonableness of --
18 you know, whether a reasonable person would have
19 believed that it was severe or pervasive. I
20 mean, you know, but -- but going specifically
21 total Lehmann standard, once again, this whole
22 delegation of authority to a supervisor and then
23 the exercise of that authority to control the
24 situation, I mean, that's -- that's vital stuff
25 on that charge, if Your Honor was inclined to
64
1 grant that charge.
2 You know, with regard to the
3 negligence issues, I mean -- yes, Judge, I mean,
4 it -- evidence was brought out at this trial as
5 to who received sexual harassment training and
6 why they received it with regard to general
7 statements by the Town Administrator. Well, we
8 had sexual harassment training for full-time
9 employees; but we didn't have it for volunteers.
10 Well, I mean, if you're -- what
11 also would have been explored is -- the question
12 certainly would have been asked of Mr. Iacono
13 did Chuck Snyder, Sr. have harassment training?
14 Because he would have had it through his
15 full-time -- it is through his job as a
16 full-time employee. I mean, that's an example
17 of a question that -- that would have been
18 asked.
19 But when we were talking about
20 sexual harassment policies --
21 JUDGE CURRAN: I thought that was
22 asked, but I could be wrong.
23 MR. BEVERE: You know what, Judge,
24 I might have -- and I -- you know, and I'll -- I
25 certainly don't want to, you know -- to say
65
1 something that the record is not going to bear
2 out. So if Your Honor's recollection is that I
3 did ask the question --
4 JUDGE CURRAN: Well, I could be
5 wrong. I'd certainly check. I will check.
6 MR. BEVERE: -- I'll stand by
7 that. But Judge, the difference -- the
8 difference is this. Under a Monell standard
9 what you're talking about is with regard to
10 policies, harassment policies and complaint
11 procedures. What you're talking about is was
12 the municipality, you know, by not having
13 certain things in place, deliberately
14 indifferent to the fact that a Constitutional
15 violation was highly likely to occur absent such
16 training or supervision or policies? That's a
17 different standard than were you negligent? Was
18 it somehow foreseeable? Foreseeable that it
19 could happen is different than saying you're
20 deliberately indifferent to the fact that it's
21 highly likely to occur without that.
22 And, you know, quite frankly,
23 there would have been more questioning of
24 witnesses as to things that they knew with this
25 firehouse in advance. You know, I asked him
66
1 general questions, "Did you ever have any
2 complaints?" I can't say I didn't ask those
3 questions. I mean, I did. But you know, Judge,
4 it's -- it's hard for me to stand here tonight
5 in hindsight before Your Honor and give you
6 specific questions and specific inquiries,
7 especially without having had an opportunity to
8 review the 14 days of transcripts that got us to
9 this point.
10 And you know, I don't want to
11 say, "Oh, I don't really know anything else" and
12 then two days from now say, "Oh, my God, you
13 know, it should have been this" or, "it should
14 have been that."
15 You know, like I said, once
16 again, Your Honor, I'm not -- I'm not in any way
17 being critical of the Court; but you know, we
18 didn't ask to be put in this position.
19 JUDGE CURRAN: No, fair -- that's
20 fair argument, Mr. Bevere.
21 MR. BEVERE: We didn't ask to be
22 put in this position. We relied upon Your
23 Honor's ruling. And you know, quite frankly,
24 I -- I -- it's just -- it's not -- I'm going to
25 go back to the questioning is simply different
67
1 when you're talking about deliberate
2 indifference of high-level, policy-making
3 officials. The questioning is different on that
4 standard than if you're talking about pure
5 negligence or delegation of -- of authority to
6 people that are not high-level policy-making
7 decisions of the Town.
8 There was evidence in the case as
9 to who the high-level policy-making people were,
10 but there really wasn't evidence as to who was
11 delegating authority to control and under what
12 circumstances they were delegated authority to
13 do that. That is a vital portion of the Lehmann
14 charge, once again, if the Court is inclined to
15 charge that portion.
16 But either way, whether you
17 charge one -- the first, second or third motus
18 of liability, for lack of a better term, under
19 Lehmann, it really doesn't matter. Any one of
20 them requires a much lower threshold of proof
21 and -- and a completely different legal
22 standard.
23 And we can say that, well, you
24 know, we'll tell the jury that -- you know,
25 we'll tell the jury what we're going to tell
68
1 them. You know, we will tell the jury it is
2 going to be much easier for them now to find the
3 Town of Secaucus liable for what happened than
4 when we started this case. And there is no way
5 to avoid the potential prejudice to the Town of
6 Secaucus. There is just no way to avoid it.
7 And -- and on those grounds I
8 will stand on my request for the mistrial. I
9 will reserve my right to respond to my esteemed
10 adversary.
11 MR. MULLIN: Did you say your
12 "older adversary"?
13 MR. BEVERE: My older and
14 esteemed. Usually when I say, "esteemed," it's
15 included. It's a lesser included offense.
16 JUDGE CURRAN: I see. Mr. Bevere,
17 I do just want you to know, please, there is no
18 need to apologize to me. You are doing your
19 job. You are doing it professionally. You are
20 doing it, you know, as an excellent member of
21 the bar. There is no problem.
22 Just so you don't think I'm not
23 sensitive to the decision, we were going into
24 New York Saturday night or Saturday afternoon;
25 and there was discussion as to who was going to
69
1 go with whom. And I said, "I don't care what we
2 do or who we go with; I am just not in any way
3 driving toward the Town of Secaucus." So you
4 know, I understand the sensitivity of what
5 you're arguing.
6 Mr. Mullin.
7 MR. BEVERE: Well, I assume not
8 because Your Honor is afraid of Town of
9 Secaucus?
10 JUDGE CURRAN: Well, no, just
11 because I thought, you know, I would certainly
12 understand any adverse reaction that I -- I
13 might receive. I'm not saying there would have
14 been any.
15 MR. MULLIN: Of course, counsel is
16 just doing his job; and he is defending his
17 position. There are a couple things -- I don't
18 want to repeat. I want to address what he has
19 said that's knew.
20 He says he -- counsel began with
21 a phrase that went something like you clearly
22 held that this case was going to be decided
23 under Monell. Counsel just said this as he
24 began this long second portion of his argument.
25 You did not. You hadn't reached the 10:6-2
70
1 issue at the beginning of the trial, and we all
2 knew that.
3 Again, Your Honor declined to
4 give a precharge on that issue. And you hadn't
5 reached my contention that the Constitutional
6 claim had the LAD standard. And I again had
7 asked -- had indicated I was going to move to
8 restore the LAD. So that's really not accurate.
9 That's not the way it was. That's -- and so we
10 all, as lawyers, were under an obligation to try
11 our case accordingly with that -- with that risk
12 in mind.
13 Here is an interesting wrinkle.
14 In the model Section 1983 charge that Defense
15 counsel gave this Court, at page 24 there is a
16 provision there where you have to identify the
17 Constitutional right or Federal -- there it
18 says, "Federal right that's being violated."
19 And in defense counsel's request to charge on --
20 it's -- the pages are unnumbered, so I numbered
21 them.
22 On page 12, under the heading,
23 "Violation of Constitutional right," Defense
24 counsel write in their proposed charge, "I have
25 already instructed you on the first element of
71
1 Plaintiffs' claim, which requires the plaintiffs
2 to prove the Defendant Town of" -- "the
3 defendant acted under color of State law. The
4 second element is that defendant deprived him of
5 his substantive due process and equal protection
6 rights under the New Jersey State Constitution.
7 I will define those rights to you as follows:"
8 And then it's blank. And it never goes into
9 that.
10 Well, even under the Federal
11 Constitutional standard how are we -- how did
12 counsel imagine you, Your Honor, the Court was
13 going to define the rights that we claim are
14 violated? What rights were being violated
15 through under color of State law, through
16 deliberate indifference? They are the rights
17 protected by the LAD and the State Constitution.
18 When you look at the -- at the
19 form Section 1983, page 24, it has a blank for
20 both either a Constitutional right or a
21 statutory right or both. In other words, you
22 have a state -- you have -- you have a 1983
23 action where under color of State law
24 individuals violate a protected right. Well,
25 what is the right that the jury is going to be
72
1 told? It's going to be the right to be free
2 from discrimination and harassment consistent
3 with the standards of the State Constitution as
4 set forth in the Lehmann case, the LAD
5 standards. That's what happened here.
6 Even under a Federal -- under
7 this Federal -- this Federal statutory standard
8 that's been imposed on me, still the Court has
9 to identify and defendants have to identify the
10 right. So this stuff was all going to come in,
11 anyway, even if this case was never tried under
12 the LAD. Even if Your Honor thought, concluded
13 that State Constitutional claims don't have an
14 LAD standard, we were still going to have to
15 identify a right.
16 Now, what has to go there is --
17 is the LAD standard. I don't know what else
18 could possibly go there. What right is being
19 violated by all these actions? By -- what right
20 is being violated by all these high-level
21 policymakers creating policies and showing
22 deliberate indifference? What right is being
23 violated by them condoning and ratifying what
24 these firemen did?
25 The right that's being violated
73
1 is the right to be free of an abusive and
2 discriminatory environment at your home and on
3 this -- at this public accommodation, the North
4 End Firehouse. And that would call for at least
5 a summary of the LAD standards and the State --
6 which are, in my opinion, equal to the State
7 Constitutional standards. So there was never an
8 escape for Defense counsel from facing the LAD
9 standard in this case, never.
10 But again I repeat, any
11 reasonable approach to this case required
12 understanding the risk was Your Honor would
13 restore the LAD, or the risk was Your Honor
14 would impose the LAD standards for the State
15 Constitutional claim. This was always known,
16 and the case should have been tried.
17 As to counsel's reference to what
18 would have been done and wouldn't have been
19 done, most of what counsel pointed to are just
20 the legal standards a jury has to consider.
21 Counsel has brought out all the facts of this
22 case. Counsel questioned my clients for hours
23 on the issue of how severe and pervasive this
24 attack was, this harassment was. Counsel has --
25 has brought in police officers to show -- to
74
1 show when events happened, like drive-bys and
2 when they didn't happen.
3 You know, you don't have to use
4 legal terms when you cross-examine. Severe or
5 pervasive, that came out. Was the attack
6 severe? Was the attack pervasive? Or was it,
7 as some of Defense counsel witnesses say, just
8 some shouting over the fence? Counsel has done
9 that.
10 As to the delegation of
11 authority, well, we had to address that. I
12 addressed that. I -- I had to address it even
13 under State Constitutional standard because to
14 prove color of State law I had to show that the
15 three captains that led this attack did so under
16 the mantel of authority under Chapter 12. I
17 cross-examined specifically the Town manager
18 with Chapter 12. I had to show that. I had to
19 show this was not some conduct that had nothing
20 to do with delegation of authority. It had
21 everything to do with delegation of authority.
22 That's right in the heart of this case.
23 And counsel for the defense has
24 cross-examined on that issue. Counsel for the
25 defense opened on that issue, making the point,
75
1 which I disagree with, that this was an
2 unauthorized party, a spontaneous reaction, a
3 non-official party, all these arguments.
4 So this was all argued. I can't
5 think of a single element of the LAD which was
6 not argued by defense in this case through
7 cross-examination or direct examination of
8 witnesses. It's all been done. That would be
9 irrelevant, though, because counsel should
10 have -- even if it hadn't been done, it should
11 have been done.
12 The LAD standard was always
13 looming over this case, always possible. Even
14 likely, I would argue, but certainly always
15 possible. And if the Town of Secaucus chose not
16 to try the case with an eye to the LAD standard,
17 they did so unreasonable and they did so at
18 their own peril and they shouldn't have done so.
19 But in -- in defense of my
20 adversary, I think he did a lawyerlike job of
21 trying this case under both standards. I think
22 he did. I think he acted like a reasonable
23 lawyer in this case. I believe he did. I
24 almost regret that he is saying he didn't
25 because of their position as counsel, but I
76
1 strenuously disagree with him. I think he and
2 Mr. Paris did a thorough job and lawyerlike job
3 of examining witnesses with an eye to the LAD,
4 as well as the higher standard.
5 Counsel is -- is arguing his
6 position because he is making a mistrial motion.
7 But I don't think that counsel could be accused
8 of acting unreasonably with respect to both of
9 these issues. I heard all these issues argued
10 in the opening. I heard them on
11 cross-examination. I heard them on direct. And
12 so there is no prejudice to the Town in this
13 case because counsel did act reasonably and
14 thoroughly and efficiently. Thank you.
15 JUDGE CURRAN: Mr. Bevere.
16 MR. BEVERE: Yeah, Judge, I want
17 to say this. It's one thing to say that we
18 haven't identified the substantive right that
19 was violated. I mean, it's one thing to say we
20 have a substantive right to due process, we have
21 a substantive right to equal protection, we have
22 a substantive right to live freely in our home.
23 I don't have the exact quote off the top of my
24 head. It's one thing for me to leave open the
25 substantive right because, quite frankly, I
77
1 think that it's the burden of the plaintiff to
2 tell us what substantive right was violated.
3 But the legal standard by which
4 we judge the defendant's liability for the
5 violation of that right is what is at issue in
6 this case, not the identification of the
7 substantive right.
8 And quite frankly, Judge, you
9 know, there -- this case -- this case was a
10 Monell case. It was a Monell case. And for us
11 to have had to say that, well, the plaintiffs
12 were going to make an application and maybe that
13 application would be granted some point prior to
14 the verdict in the case or, you know, we had
15 this argument that the -- that the
16 Constitutional claim is the same as the LAD
17 claim, well, I mean, Your Honor, if the
18 Constitutional claim was the same as the LAD
19 claim, then, when summary judgment was granted
20 as to the LAD claim, so should summary judgment
21 have been granted as to the Constitutional
22 claim.
23 And when they filed a motion to
24 amend their complaint to name 10:6-2 as a cause
25 of action, they said it's the same claim, it's
78
1 just different remedies. And 10:6-2 is color of
2 law. So we're talking about a different legal
3 standard.
4 And yes, I keep coming back to
5 legal standard because that's the prejudice
6 here. That's the prejudice to me, the fact that
7 this case is going to go to the jury on a lower
8 threshold than what I opened on and what I told
9 this jury. And no matter what Your Honor says,
10 as I said before -- and I'll say it again --
11 it's going to make me look either like a liar or
12 that the legal standard has somehow changed.
13 And that's unduly prejudicial to the Town of
14 Secaucus, simply saying that we didn't identify
15 the substantive right. They have to identify
16 the substantive right.
17 But one thing we did from the
18 outset at this case is identify the legal
19 standard pursuant to which the violation -- the
20 alleged violation of that right had to be
21 judged. And that was color of law and
22 deliberate indifference of high-level,
23 policy-making officials. And that was the basis
24 of this case until Your Honor made the decision
25 to put the LAD claim back in.
79
1 It wasn't reasonable for us to
2 believe that we were going to be -- you know,
3 that these claims were going to come back in and
4 we were going to be charged and -- on Lehmann.
5 And quite frankly, if the
6 Constitutional claim was the same as the first
7 two, three counts of the claim as the LAD, there
8 would be no reason to reinstate the LAD claims;
9 just charge Lehmann under the Constitutional
10 claim. But there was a reason that the Court
11 reinstated counts one, two and three, because
12 the fourth count wasn't an LAD claim and Lehmann
13 is an LAD cause of action.
14 Fourth count was substantive due
15 process and equal protection. And we have a
16 statute that says that if you want to sue a
17 municipality for substantive due process in
18 violation of equal protection rights, even if
19 it's discrimination, because we all know, Your
20 Honor, that not every act of discrimination
21 falls within the LAD -- we know that. But when
22 a public servant goes out and commits an act of
23 harassment or discrimination and they do so
24 under color of law and the municipality somehow
25 had notice or knowledge of prior acts and was so
80
1 deliberately indifferent that -- I mean, the
2 whole Monell standard.
3 But -- but certainly, Your Honor,
4 LAD was not in the case. If LAD was in the
5 case, there would have been no reason to
6 reinstate the plaintiffs' LAD claims. It wasn't
7 the same claim. Count 4 and Count 9 were always
8 the same claim. It's just that Count 9 they
9 named the statute, so they can get the attorneys
10 fees. But the substantive claim, there was
11 never two different claims; it was always the
12 same claim. And Your Honor said that Monell was
13 the standard, and it was a correct ruling
14 because the statute says somebody acting under
15 color of law. And the legislative history says
16 this is modeled on 1983. I mean, that -- that
17 was what we were dealing with. We weren't
18 dealing with that plus an LAD. It was the same
19 claim. The LAD came in subsequently. And
20 that's where the problem in this case lies.
21 MR. MULLIN: Your Honor, during
22 the argument on 10:6-2 I repeatedly clarified
23 with the Court that you were not ruling on the
24 State Constitutional claim; and Your Honor
25 agreed. You were ruling on 10:6-2. And you and
81
1 I had a disagreement about that. And Your Honor
2 interpreted the statutory language in a way to
3 support the defense position. That left the
4 open question of whether the State
5 Constitutional claim should have an LAD type
6 standard. And there was the third question of
7 whether or not you should restore the LAD claim.
8 Now, I don't have to give a
9 strategic reason for why I want both the State
10 Constitutional claim and the LAD. I am entitled
11 to, I can say, my work product. But there are
12 strategic reasons why an attorney might want
13 both of those claims, and -- and so I have
14 fought for them. It's not unusual to have
15 claims in a -- in a -- go forward in a lawsuit
16 that cover the same grounds in different
17 language. And -- and so, Your Honor, I have the
18 State Constitutional claims still alive and
19 well; and I also have the -- the LAD still alive
20 and well. And it was -- it's simply a -- it was
21 not -- we all knew that these were unresolved
22 questions. And the case should have been tried
23 accordingly.
24 And my other point is my
25 impression is counsel did, in fact, try this
82
1 case under all standards. That's -- that's done
2 now. All they need to do is to argue from the
3 evidence that they developed under both
4 standards. And then I will do the same thing.
5 And the jury will render a verdict.
6 JUDGE CURRAN: Mr. Bevere.
7 MR. BEVERE: Judge, it is highly
8 unfair to say we should have anticipated that a
9 legal theory was going to be present in this
10 case that only exists under the LAD, when the
11 LAD claims were dismissed. Absolutely unfair
12 and unreasonable. Thank you.
13 JUDGE CURRAN: Based on the
14 arguments that have been made, Mr. Bevere, I am
15 going to deny the motion for a mistrial. I can
16 understand your arguments, all of them, but
17 especially the argument as to the jury openings.
18 And that will certainly have to be addressed.
19 Other than that, I find that the
20 issues that you identified basically have been
21 covered in the questions both on direct and
22 cross-examination. However, I am going to deny
23 your motion without prejudice, to give you time,
24 for instance, to go over the transcripts in more
25 detail, talk to Mr. Bevere -- there may be
83
1 something all of us -- each of us is missing.
2 So the denial is without prejudice at this
3 point.
4 Anything else? Not that I'm
5 looking to change my mind again, Mr. Bevere, but
6 just so that it's clear. I think it's only
7 fair; it's been a short time since Friday late
8 in the afternoon.
9 MR. BEVERE: And Your Honor, my
10 third motion would be a motion for stay pending
11 appeal, file interlocutory appeal. Certainly,
12 Your Honor, for all the reasons that I have
13 stated, I think that the -- it was improper for
14 the Court to have restored the LAD claim more
15 than midstream in this case and more than
16 halfway through defense case, severely
17 prejudiced us for the same reasons that I
18 believe that the motion for a mistrial should
19 have been granted. And I would ask this Court
20 to grant a stay pending appeal.
21 JUDGE CURRAN: Mr. Mullin.
22 MR. MULLIN: There is no
23 likelihood of success on the merits of -- for
24 Defense, so they can't meet that threshold
25 requirement for a stay. They have already been
84
1 a denied a motion for leave on an issue related
2 to it.
3 And Your Honor's reasons for
4 denying mistrial are sound. They knew or should
5 have known reasonably that all these issues were
6 still in the case. They should have tried the
7 case according to all possible standards that
8 might come into the jury charges. Looking at
9 the way they tried the case, it's clear that
10 they did, though -- though counsel argues he
11 didn't.
12 And so there is no likelihood of
13 success on the merits. The likelihood of
14 irreparable injury resulting should -- should a
15 stay not be granted, it's close to zero. All
16 that's going to happen is there is going to be a
17 jury verdict from which they can appeal.
18 All what's going to happen,
19 weighing the equities, which is also part of
20 this, my clients will be profoundly prejudiced.
21 My clients are severely traumatized individuals
22 who -- who need this process to be over. And --
23 and so they would be severely traumatized by
24 having a mistrial declared and having to go
25 through this whole process again. Each time
85
1 they talk about it, it's reasonable to conclude
2 that they're re-traumatized even by hearing some
3 of these witnesses on the stand, by seeing their
4 attackers in the courtroom. So the equities
5 strongly favor us, and there is no reason for
6 granting a stay pending appeal.
7 JUDGE CURRAN: Anything else?
8 MR. BEVERE: Your Honor, I -- I
9 did -- I did want to -- well, couple things.
10 First, I would like to say that I disagree with
11 Mr. Mullin's assessment of the likelihood of
12 success on the merits. I think I have a very
13 sound appeal based upon the existing case law
14 and the lack of legal precedent for what the
15 Court is doing here. So I disagree in that
16 regard.
17 And while I understand
18 Mr. Mullin's argument as to his plaintiffs and
19 the prejudice to them, I mean, we have to
20 equally consider the prejudice to the Town of
21 Secaucus.
22 And I will rest on that. And
23 what I wanted to do, Your Honor, with the
24 Court's permission, depending upon what Your
25 Honor does with regard to the motion for a stay,
86
1 I did want to go back and -- well, I'll wait
2 until Your Honor's decision. I may ask Your
3 Honor to reopen the record on one aspect of the
4 motion for the mistrial.
5 JUDGE CURRAN: Mr. Mullin,
6 anything else?
7 MR. MULLIN: Nothing further.
8 JUDGE CURRAN: All right. Mr.
9 Bevere, I am going to deny the motion for a
10 stay. Frankly, given the fact that there were
11 other motions that went to the Appellate
12 Division and given the nature of my decision, I
13 find that the likelihood of success simply does
14 not in any way outweigh the equities in regard
15 to, frankly, both the plaintiff and the
16 defendant -- defendants in going through,
17 finishing the case.
18 And then, certainly, I think, as
19 I said -- I said the day of summary judgment
20 that this case is going to certainly head to the
21 Appellate Division, no matter which side does
22 what, presumably. And I have tried carefully
23 during the trial to make sure that the record
24 noted that objections, decisions of mine were
25 noted for the record, so that they were
87
1 approved -- so that they were, you know,
2 basically reserved for -- recognized for appeal.
3 This is a complex case. This is
4 not the kind of case where basically just a
5 clear factual determination is somewhat easy for
6 a jury. This is a case that has always been
7 very closely aligned with a complex body --
8 well, that is not aligned with. That is a
9 complex area of law on which the jury must be
10 instructed, along with some facts that are
11 sensitive, to say the least.
12 I find, therefore, that it would
13 not be appropriate to grant the stay. But
14 again, your objection is preserved as to the
15 mistrial.
16 MR. BEVERE: Yes, Your Honor.
17 Also I wanted to bring to the Court's
18 attention -- and I should have done this in the
19 initial motion; I apologize. When this case
20 started, we certainly understood that Your Honor
21 had reserved as to the issue of -- well, not
22 reserved but had found that the issue of
23 punitive damages in this case was -- motion for
24 summary judgment was not granted as to the
25 punitive damages.
88
1 Certainly, we are aware of case
2 law which we have provided to the Court under
3 Monell and under 1983 whereby punitive damages
4 are not available against a public entity.
5 They're available against an individual who
6 violates someone's rights under 42 U.S.C. 1983
7 but not against the public entity.
8 We also provided Your Honor with
9 a -- a U.S. District Court case that interpreted
10 the New Jersey Civil Rights Act the same way, to
11 the exclusion of punitive damages. And quite
12 frankly, the legislative history of the statute
13 speaks for itself. It's Monell. It's 42 U.S.C.
14 No punitive damages.
15 Now we are -- are -- it's
16 significantly different and, I have to say,
17 high -- more highly prejudiced -- very much
18 highly prejudiced position in regard to the
19 punitive damages. And quite frankly, you know,
20 that changes issues in the case, as well,
21 especially if Your Honor is going to apply the
22 strict Lehmann standard, which I have to say I
23 would ask the Court not apply in this case. But
24 we'll get to that issue at some point.
25 But that's certainly a
89
1 significant change of the landscape. And you
2 know based upon the short amount of time that we
3 have had to deal with this issue, you know, we
4 think that that's a concern that also should be
5 in favor of a mistrial. Thank you.
6 JUDGE CURRAN: Thank you.
7 MR. MULLIN: Counsel has the time
8 sequence wrong. Counsel moved in a directed
9 verdict motion to strike punitive damages before
10 Your Honor restored the LAD.
11 JUDGE CURRAN: Right.
12 MR. MULLIN: Your Honor denied
13 that motion before you ever reconsidered your
14 LAD. You restored it based on my argument that
15 the LAD was the implementation of the State
16 Constitution and that the LAD explicitly allows
17 for punitive damages; therefore, the State
18 Constitutional claim should allow for it. And
19 you relied in that regard on Cavouti and also
20 Shaner V. Horizon Bank for the implementing the
21 LAD. So your decision to restore the LAD had
22 nothing to do with -- let's just say this.
23 Punitive damages were already in the case before
24 you restored it and caused no prejudice in that
25 regard.
90
1 JUDGE CURRAN: Thank you. Mr.
2 Bevere, I will note your addition of the
3 punitive damages issue, but the decision to deny
4 the mistrial remains. Any other issues? Any
5 other motions?
6 MR. MULLIN: Your Honor -- oh, you
7 are still working with --
8 MR. BEVERE: Well, you know,
9 Judge, while I am thinking, I will let
10 Mr. Mullin speak.
11 JUDGE CURRAN: Okay.
12 MR. BEVERE: As long as you can
13 come back to me, if I need to.
14 JUDGE CURRAN: Absolutely.
15 MR. MULLIN: I didn't know if Your
16 Honor wanted to work on jury instructions today
17 or if you wanted to wait until our 1:30 --
18 JUDGE CURRAN: I think it would
19 make a lot of sense not to work on jury
20 instructions, but we could continue the
21 questions on the evidence -- the submissions on
22 the evidence, if counsel are prepared.
23 MR. MULLIN: Sure, I could -- let
24 me just get my evidence books together, and I
25 can continue to put in Evidence.
91
1 MR. BEVERE: Your Honor, if I
2 could just have a few minutes to report to my --
3 JUDGE CURRAN: Sure, off the
4 record. Why don't we take a break? You deserve
5 it. Why don't we take a break for 15 minutes or
6 so. Thank you.
7 (Whereupon, a brief recess is
8 taken.)
9 JUDGE CURRAN: As to evidence
10 or -- is that where we are? Do you want to do
11 something else?
12 MR. MULLIN: Yes, Your Honor, do
13 you want me to continue moving in my exhibits
14 for the plaintiff?
15 JUDGE CURRAN: Yes, if you would.
16 MR. BEVERE: Judge, if you give
17 me --
18 JUDGE CURRAN: Sure, we will go
19 off the record for a minute.
20 (Whereupon, a discussion is held
21 off the record.)
22 MR. MULLIN: All right. So I was
23 moving in evidence a few days back; and I will
24 continue moving it in, Your Honor.
25 JUDGE CURRAN: Thank you.
92
1 MR. MULLIN: Move in P-52,
2 Secaucus noise ordinance.
3 JUDGE CURRAN: Any objection?
4 MR. BEVERE: Judge, that was one
5 of the few documents that we did have an
6 objection to on the grounds that the issue of
7 noise was -- was -- noise was ruled by the Court
8 as wasn't going to be an issue in the case, who
9 violated a noise ordinance. So we object on the
10 grounds of relevance of the noise ordinance.
11 And quite frankly, you know, no one has
12 testified to a violation of a noise ordinance.
13 MR. MULLIN: Again, Your Honor, we
14 have the -- one of the -- one of the themes in
15 this case is the failure of the Secaucus Police
16 to do anything to stop the incidents -- to take
17 action against those who committed the incident
18 of April 25th.
19 And the noise ordinance, that
20 actually, I believe, I think -- well, I'm not
21 going to guess; but there is a provision. It's
22 93-6, Section 13. Makes it illegal to be
23 yelling and shouting and like yelling, shouting,
24 hooting, whistling in public streets at any time
25 or place so as to annoy or disturb the quiet
93
1 comfort of persons in any office, dwelling,
2 hotel, motel or any residence of persons in the
3 vicinity.
4 It's punishment in Section 93-8
5 as a crime, $500 fine, imprisonment for 90 days.
6 Again, you have nobody is
7 arrested for anything. Mutschler is not
8 arrested for attempt -- for an assault.
9 Officers aren't arrested for refusing direct
10 commands to leave the place. Nobody is even
11 checked for being drunk in public and -- and no
12 one, of course, is arrested for the noise. You
13 have neighbors calling in, like Hjelm and Dee
14 Bardini.
15 And these firemen get a free
16 pass. These firemen, the policy is they can do
17 what they want. They can have their frat house,
18 and they can do whatever they want. So they are
19 protected by the Town. So I say it is relevant
20 that they weren't arrested for anything, and
21 this gives me some authority to argue to the
22 jury that they were untouchable.
23 JUDGE CURRAN: Mr. Bevere.
24 MR. BEVERE: Judge, first of all,
25 not one police officer who testified in this
94
1 case was questioned as to the noise ordinance
2 and what they thought about any violation of
3 that noise ordinance.
4 Secondly, I would also stress the
5 facts that, you know, clearly a police officer
6 is not permitted to arrest someone for a
7 disorderly persons offense that is not committed
8 in their presence.
9 JUDGE CURRAN: That was testified
10 to.
11 MR. BEVERE: That would clearly
12 apply to a municipal ordinance violation. And
13 without any sort of -- of, you know, foundation
14 testimony as to, you know, the -- a -- what was
15 perceived to be -- not one witness was
16 questioned from the Police Department, was
17 put -- had this noise ordinance put to them and
18 said, "Why did you not arrest them for making
19 noise?"
20 As -- as we all know, Your
21 Honor -- I'm sure Your Honor knows from being a
22 judge and, you know, maybe not a Superior Court
23 judge; but had Your Honor been a municipal court
24 judge, Your Honor would know there is a
25 tremendous amount of subjectivity involved in
95
1 when people violate noise ordinance. You know,
2 can you arrest anyone just for yelling because
3 the ordinance says yelling is -- I mean, as --
4 as Officer Ulrich said -- I don't want to repeat
5 what he said, but you know, "I would be
6 arresting everybody," including his wife I think
7 he said.
8 But that having been said, there
9 has really been no basis established with any of
10 the officers, no testimony elicited by either
11 side as to why arrests weren't made for noise,
12 whether there was a basis, whether the officers
13 believed based -- and that's really what's
14 important, based upon their understanding of the
15 noise ordinance as to whether or not there was a
16 basis to -- to arrest or charge, you know. And
17 quite frankly, Judge, I mean, I think it's just
18 so far afield, especially with the issue of --
19 that we have been staying away from the issue of
20 noise complaints throughout the trial.
21 MR. MULLIN: I have nothing
22 further.
23 JUDGE CURRAN: All right. Based
24 on the information put on the record I am not
25 going to allow the noise ordinance. I don't
96
1 think it was presented to an officer. There may
2 have been a reference to it in opening. That's
3 what I was trying to look to.
4 But I find that it is not
5 appropriate to give them the whole ordinance or
6 even part of it because then it will allow them
7 to speculate on things that are not within the
8 testimony.
9 I will note your objection,
10 Mr. --
11 MR. MULLIN: Thank you.
12 JUDGE CURRAN: -- Mullin.
13 MR. MULLIN: 53 I believe is going
14 to be a redundancy, but I will take it. It's
15 Chapter 12. Once again, I believe that's
16 already in, Your Honor.
17 MR. BEVERE: No objection to that,
18 Your Honor.
19 JUDGE CURRAN: P-53 is moved into
20 Evidence.
21 MR. MULLIN: P-54 is the alcoholic
22 beverages consumption in public places, which I
23 did question police witness about. I didn't
24 question him about the statute by putting the
25 statute in front of him, so -- so that didn't
97
1 happen.
2 But it has a provision, Section
3 47-21A, which prohibits public intoxication,
4 public consumption of alcohol. Then it says,
5 "Notwithstanding the foregoing, the Mayor and
6 Council of the Town of Secaucus may provide
7 authorization to the Secaucus Volunteer Fire
8 Department by resolution to have an event,
9 including the consumption of alcoholic beverages
10 and/or beer, subject to the approval of New
11 Jersey Division of Alcoholic Beverage Control."
12 I think that's relevant, Your Honor, that,
13 again, the firehouses get this pass on the
14 public consumption of alcohol.
15 JUDGE CURRAN: I have never seen a
16 wording that says, "alcoholic beverages and/or
17 beer." I have always --
18 MR. MULLIN: Right.
19 JUDGE CURRAN: -- seen them where
20 beer is not specifically --
21 MR. MULLIN: Right.
22 JUDGE CURRAN: -- having -- all
23 right. Mr. Bevere.
24 MR. BEVERE: Yeah, Judge, there
25 has been nothing provided in this case to
98
1 indicate the consumption of alcoholic beverages
2 at the firehouse that night was illegal. In
3 fact, there was an approval for the party.
4 There has been no evidence of a violation of
5 this ordinance, so, therefore, the ordinance,
6 itself, is irrelevant.
7 There is testimony in the record
8 by municipal officials that consumption is
9 permissible under certain circumstances. In
10 this particular instance, you know, there was a
11 party, there was an authorization. Mr. Mullin
12 and I will agree to disagree as to the import of
13 what that authorization is and what it
14 represents or what it does not represent; but
15 certainly, Judge, the ordinance is not relevant.
16 JUDGE CURRAN: Anything else,
17 Mr. Mullin?
18 MR. MULLIN: Nothing further, Your
19 Honor.
20 JUDGE CURRAN: Thank you. P-54
21 will not be moved into Evidence. There has been
22 no allegation that there was a violation of it.
23 And to put it in, I think, would simply allow
24 the jury to speculate.
25 MR. MULLIN: Your Honor, my next
99
1 is P-56, which is the letter that Iacono wrote
2 introducing himself to Carter and deVries. This
3 was --
4 MR. BEVERE: No objection.
5 JUDGE CURRAN: Thank you. P-56 is
6 moved into Evidence without objection.
7 MR. MULLIN: P-58 is my next one.
8 That's a letter from the Attorney General's
9 Office to Carter acknowledging receipt of his
10 correspondence to Peter Harvey. And Peter
11 Harvey has reserved the correspondence -- has
12 referred the correspondence to the Division of
13 Criminal Justice.
14 MR. BEVERE: No objection.
15 JUDGE CURRAN: Thank you. P-58
16 into Evidence without objection.
17 MR. BEVERE: So, so far we have --
18 so far 56?
19 MR. MULLIN: 53, 56 and 58 are the
20 ones that are in.
21 JUDGE CURRAN: For today.
22 MR. MULLIN: For today.
23 MR. BEVERE: Right. I'm not
24 talking about the ones we did previously, okay.
25 MR. MULLIN: Next one I have is
100
1 72. It's an e-mail that Peter deVries sent to
2 Eugene Troyanski on May 26th, '04 detailing
3 the -- some of the incidents that happened
4 post -- post April 5th all the way through
5 May 26th.
6 JUDGE CURRAN: Any objection?
7 MR. BEVERE: Judge, here -- here
8 is my problem with -- with the document. In
9 this document there are -- well, first of all,
10 there is a reference to that green SUV in the
11 firehouse parking lot that Your Honor excluded.
12 So, I mean, that -- that's one issue with regard
13 to it. You know what, Judge, let me -- let me
14 look at mine. Judge, before I say yes or no to
15 this, I just -- I would like to speak to
16 Mr. Paris. Can we come back to it?
17 JUDGE CURRAN: Sure.
18 MR. BEVERE: Thanks. I'll put 73
19 still open. Okay.
20 MR. MULLIN: 72.
21 JUDGE CURRAN: 72.
22 MR. BEVERE: 72, sorry. Okay.
23 MR. MULLIN: Okay. Next is P-73,
24 deVries e-mail to Troyanski. I think Defense
25 counsel referral to in cross-examination.
101
1 MR. BEVERE: No objection to 73.
2 JUDGE CURRAN: P-73 is moved into
3 Evidence without objection.
4 MR. MULLIN: Next is P-89, which
5 is the October 18, 2004 letter from Agudosi to
6 Chief Corcoran.
7 MR. BEVERE: No objection.
8 JUDGE CURRAN: P-89 is moved into
9 Evidence without objection.
10 MR. BEVERE: 73. 89. Okay.
11 MR. MULLIN: Okay. 116 is next.
12 I have to change books. Hang on a second.
13 MR. BEVERE: Yeah. Sorry, Neil,
14 which one was it?
15 MR. MULLIN: 116. It's yet
16 another version of Chapter 12, so I think we
17 have enough versions in now. I will just
18 withdraw it.
19 MR. BEVERE: Trying to set the
20 record, Judge.
21 MR. MULLIN: So I will withdraw
22 that, assuming we have --
23 MR. BEVERE: We will stipulate
24 that one complete copy --
25 MR. MULLIN: One complete version.
102
1 MR. BEVERE: -- will go in.
2 JUDGE CURRAN: And if counsel
3 will --
4 MR. BEVERE: Stipulate to that?
5 JUDGE CURRAN: Yes, and if counsel
6 will check --
7 MR. BEVERE: Yes, we will do that.
8 JUDGE CURRAN: -- when we get to
9 the end. That's all we need.
10 MR. BEVERE: I mean, this looks
11 like it's complete because of the pagination,
12 so -- but we'll certainly put a full one in.
13 MR. MULLIN: Next is P-117.
14 MR. BEVERE: No objection.
15 MR. MULLIN: Form for the party.
16 JUDGE CURRAN: P-117 moves in
17 without objection.
18 MR. BEVERE: No objection.
19 JUDGE CURRAN: I am going to put
20 P-116 in, and then we will take out all the --
21 MR. BEVERE: Fine.
22 MR. MULLIN: Okay, good.
23 JUDGE CURRAN: Okay.
24 MR. MULLIN: So 116.
25 JUDGE CURRAN: So 116 is in
103
1 Evidence. And when we go through all the --
2 MR. MULLIN: Yes.
3 JUDGE CURRAN: -- doubles.
4 MR. BEVERE: I just want to state
5 for the record I asked Your Honor to reserve as
6 to 72 because Mr. Paris handled the
7 cross-examination of Mr. deVries, so I just
8 wanted to confer with him as to the --
9 JUDGE CURRAN: Sure.
10 MR. BEVERE: -- that issue.
11 JUDGE CURRAN: No problem.
12 MR. MULLIN: We have P-121 is the
13 copy of the --
14 MR. BEVERE: No objection.
15 JUDGE CURRAN: P-121 in without
16 objection.
17 MR. MULLIN: 123 is in -- is the
18 two pages of the company function document as --
19 I did this with Cieciuch -- as the form that was
20 filled out attached to it that -- that indicates
21 how many folks were planning on coming.
22 JUDGE CURRAN: Any objection?
23 MR. BEVERE: No, sorry, Your
24 Honor.
25 JUDGE CURRAN: P-123 in without
104
1 objection.
2 MR. MULLIN: Okay. And we go to
3 128, next volume.
4 MR. BEVERE: I just want the
5 record to reflect the number of trees that were
6 killed by Mr. Mullin on exhibits that he is not
7 putting into Evidence.
8 MR. MULLIN: Many trees have gone
9 by the way.
10 JUDGE CURRAN: And I just want to
11 indicate when we're finished with this trial, if
12 that ever happens, I'm going to ask, if you
13 don't mind, Mr. Mullin, if your office would
14 take back these books. Because even though you
15 may not need all the copies of the evidence --
16 MR. MULLIN: Sure.
17 JUDGE CURRAN: -- certainly the
18 tabs are reusable.
19 MR. MULLIN: Absolutely. We will
20 take them back.
21 JUDGE CURRAN: I'd hate to see
22 them wasted. Thanks.
23 MR. MULLIN: Appreciate it. Next
24 is -- next I have marked is 128. It's short
25 statement by Captain Buckley as to who's
105
1 responsible for viewing officers responding to
2 the incident location.
3 MR. BEVERE: No objection. That
4 was in my --
5 MR. MULLIN: Okay.
6 JUDGE CURRAN: 128.
7 MR. MULLIN: 128.
8 MR. BEVERE: Well, it was in my
9 Interrogatory answers, so I have no objection to
10 that.
11 JUDGE CURRAN: Right. That goes
12 into Evidence without objection.
13 MR. MULLIN: P-130 is an admission
14 from the Police Department about certain facts
15 concerning Glenn Amodeo.
16 JUDGE CURRAN: Any objection?
17 MR. BEVERE: I'm looking at it,
18 Judge. I don't think so. No, I have no
19 objection to that.
20 JUDGE CURRAN: 130 goes in without
21 objection.
22 MR. MULLIN: P-131 is, again, a
23 statement from the Police Department as to basic
24 facts about Officer Martin Moreda.
25 MR. BEVERE: For the record,
106
1 Judge, I will have no objection from 131 through
2 133.
3 MR. MULLIN: Okay.
4 MR. BEVERE: I assume Mr. Mullin
5 wants --
6 MR. MULLIN: Absolutely, 131, 132,
7 133.
8 JUDGE CURRAN: 131, 132, 133 into
9 Evidence without objection. 134 is already in
10 Evidence.
11 MR. BEVERE: I have to say, Judge,
12 consenting to the admission of documents, I have
13 not consented to the admission of Lieutenant
14 Amodeo's personnel file.
15 JUDGE CURRAN: Understand. Thank
16 you.
17 MR. MULLIN: I didn't move that.
18 MR. BEVERE: Okay.
19 MR. MULLIN: 134, I believe
20 already referenced, but I will reference it in
21 the abundance of caution. That is the bias
22 order, bias crimes general order.
23 JUDGE CURRAN: Yes.
24 MR. BEVERE: No objection, Your
25 Honor, sorry.
107
1 JUDGE CURRAN: Thank you. That's
2 in. Thank you.
3 MR. MULLIN: P-140 is a -- P-140
4 is two separate police reports, but it's called
5 P-140. It's Francis Cotter report of 5/1/04 and
6 the Dominic DeGennaro report, two-page report of
7 5/1/04. That's P-140.
8 MR. BEVERE: No objection.
9 JUDGE CURRAN: Thank you. So
10 ordered. It's into Evidence.
11 MR. MULLIN: Let me just check
12 with counsel.
13 (Whereupon, a discussion is held
14 off the record.)
15 MR. MULLIN: So P-144 is the
16 property evidence report of tape -- the tape of
17 Tim Carter calling Elwell.
18 MR. BEVERE: No objection.
19 JUDGE CURRAN: Thank you. P-144
20 is in Evidence without objection.
21 MR. MULLIN: P-145, the Hjelm
22 statement.
23 MR. BEVERE: No objection.
24 JUDGE CURRAN: P-145 is in
25 Evidence, no objection.
108
1 MR. MULLIN: P-146. It's a -- it
2 has a few pages, but Captain Buckley signing off
3 on a bias form for the May 1st "Homos are home"
4 incident.
5 MR. BEVERE: No objection.
6 JUDGE CURRAN: 146 is in Evidence,
7 no objection.
8 MR. MULLIN: 147, police report of
9 DeGennaro, 5/1 -- 5/15/04.
10 MR. BEVERE: No objection.
11 JUDGE CURRAN: 147 is in, no
12 objection.
13 MR. MULLIN: I just have -- you
14 know, for the record, there are a few items in
15 our P-147. So there is a DeGennaro report and
16 firemen consuming alcoholic beverages and the
17 Malanka report.
18 MR. BEVERE: I have no objection
19 to all of the documents contained under 147,
20 which, for the record, are 5/15 DeGennaro
21 report, 5/15 Patrol Officer T. Malanka report,
22 5/15 Sergeant Zloty report, 5/17 Lieutenant
23 Malanka report, fax cover sheet from Captain
24 Buckley to Troyanski, a smaller -- like a
25 confirmation of fax transmittal and then a
109
1 operation report.
2 JUDGE CURRAN: Thank you.
3 MR. MULLIN: I will move in P-148,
4 which is -- I will do it by Bates stamp number;
5 that will go more quickly -- Bates stamp number
6 751 all the way through to 773. That's P-148.
7 MR. BEVERE: Let me just take a
8 look and see. I don't think that I had any
9 objection. Let me just check and make sure. No
10 objection, Judge.
11 JUDGE CURRAN: Thank you. P-148,
12 Bates stamps number 751 to 773 inclusive, into
13 Evidence.
14 MR. BEVERE: 148, beautiful, thank
15 you.
16 MR. MULLIN: I'm up to 150. I may
17 limit this. I will leave P-150 -- I will put in
18 everything.
19 MR. BEVERE: So that would be
20 Bates stamp 779 through Bates stamp 795. I
21 don't think I have any objection. Let me just
22 look. I don't think I do. Nope, no objection.
23 JUDGE CURRAN: P-150, Bates stamp
24 number 779 through 795 inclusive, are into
25 Evidence, no objection.
110
1 MR. MULLIN: Next I'm looking at
2 is P-151. I am looking only to see if I'm going
3 to limit something. P-151.
4 MR. BEVERE: Can you give me the
5 Bates stamp?
6 MR. MULLIN: Yeah, it's Bates
7 stamp 796 through Bates stamp 804, P-151.
8 MR. BEVERE: I have no objection.
9 JUDGE CURRAN: P-151, Bates stamps
10 number 796 through 804 inclusive, into Evidence,
11 no objection.
12 MR. MULLIN: P-152 I am only going
13 to put in Bates stamp 805 and 806.
14 MR. BEVERE: Judge, this is one of
15 the incidents you had excluded, I believe.
16 MR. MULLIN: Oh, is this?
17 MR. BEVERE: Yeah, this is the
18 middle finger guy.
19 JUDGE CURRAN: Oh.
20 MR. MULLIN: All right. I will
21 withdraw it.
22 JUDGE CURRAN: Thank you. 152 is
23 withdrawn.
24 MR. MULLIN: I will withdraw 152.
25 MR. BEVERE: 153, Your Honor, is
111
1 the Glocktalk. You excluded that, as well.
2 MR. MULLIN: 153, the first Bates
3 stamp number, though, is not -- that's Bates
4 stamp 824. That's the report of June 3rd, '04
5 by O'Keeffe about a June 3rd telephone call from
6 Carter about -- complaining about the police had
7 stopped patrolling his area. So that doesn't
8 have Glocktalk in it.
9 JUDGE CURRAN: Any other Bates
10 stamp?
11 MR. MULLIN: That's it. So I will
12 just go with 824.
13 JUDGE CURRAN: 153, Bates stamp
14 824. Mr. Bevere?
15 MR. BEVERE: Judge, maybe with
16 just a redaction where it says their names and
17 addresses are also on the web site. I asked
18 Mr. Carter what web site, and he says he does
19 not know, he does not remember what site he was
20 on.
21 JUDGE CURRAN: Any objection to
22 the redaction?
23 MR. MULLIN: No objection to the
24 redaction.
25 JUDGE CURRAN: Thank you. 153,
112
1 Bates stamp 824, as redacted.
2 MR. BEVERE: Only because it was
3 an incident that one --
4 JUDGE CURRAN: Right.
5 MR. BEVERE: -- and refers to the
6 Glocktalk.
7 JUDGE CURRAN: Right.
8 MR. BEVERE: Unless we gave them
9 further explanation as to what it was.
10 JUDGE CURRAN: Right.
11 MR. MULLIN: Okay. 157, which is
12 Bates stamp 847, it's a report by -- I can't
13 read the officer's name. Looks like Brosso or
14 Grosso.
15 MR. BEVERE: That's Trusso.
16 MR. MULLIN: Trusso.
17 MR. BEVERE: Trusso. No
18 objection.
19 JUDGE CURRAN: P-157, Bates stamp
20 847, into Evidence, no objection.
21 MR. MULLIN: I think 159 you
22 excluded, Your Honor, the flag incidents.
23 JUDGE CURRAN: Yes, I believe so.
24 MR. BEVERE: You are not moving
25 158?
113
1 MR. MULLIN: Yeah, I'll move 158.
2 MR. BEVERE: No objection.
3 JUDGE CURRAN: P-158 is in
4 Evidence, no objection.
5 MR. BEVERE: That would be -- I
6 can't read your Bates stamp numbers -- 850
7 through 856.
8 JUDGE CURRAN: Thank you.
9 MR. MULLIN: Looks like 851
10 through 856 because you see the second one is
11 852 -- no, he is right.
12 MR. BEVERE: I was right.
13 JUDGE CURRAN: 850 through 856.
14 MR. BEVERE: I have better eyes
15 than you.
16 MR. MULLIN: I know that. I'm
17 aware of that.
18 159 I can -- all right. So
19 that's going to be out because of Your Honor's
20 in limine ruling.
21 JUDGE CURRAN: Right.
22 MR. MULLIN: That's the flag
23 incident. 150 -- excuse me, 160 is a series of
24 documents on the "El Homo" graffiti. I will
25 move them all in. They run 862 Bates stamp
114
1 through to 867 Bates stamp. P-160.
2 MR. BEVERE: The only thing I
3 would ask for, Judge, is just a redaction on
4 852, 853 with regard to that second incident
5 which Your Honor excluded, the 10/31 incident,
6 where he stated, well, he was sweeping his
7 porch, two individuals stopped. So with a
8 redaction as to that, I have no problem with the
9 rest of the documents coming in.
10 JUDGE CURRAN: I have P-160, Bates
11 stamps 862 to 867 as redacted, it goes into
12 Evidence.
13 MR. MULLIN: I preserve my
14 objections on that, Your Honor.
15 JUDGE CURRAN: That is the -- the
16 objections are preserved.
17 MR. MULLIN: P-163, we have
18 already moved in the photographs we intend to
19 use. They were A through G. So I am not going
20 to repeat that.
21 JUDGE CURRAN: Thank you. P-163A
22 through G have already been moved in.
23 MR. BEVERE: 163A through?
24 JUDGE CURRAN: G, as in George.
25 MR. MULLIN: Those are the
115
1 photographs that I have blown up, actually, all
2 the way up through the "El Homo" photographs.
3 MR. BEVERE: Do you have them?
4 These aren't marked. These aren't marked in the
5 binder.
6 MR. MULLIN: Do you want to walk
7 over and look at them?
8 MR. BEVERE: Yeah.
9 JUDGE CURRAN: Go off the record
10 for a moment, please.
11 COURT CLERK: Off the record.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, a discussion is held
14 off the record.)
15 JUDGE CURRAN: No objection 163A
16 to 163G.
17 MR. BEVERE: I'm sorry, I didn't
18 mean to usurp Your Honor. What I meant to say
19 was we are ready to go back on the record.
20 JUDGE CURRAN: I have a question.
21 What are the blowups on defense side? Are those
22 something new?
23 MR. BEVERE: Those are blowups I
24 brought today. I blew up a couple police
25 reports.
116
1 JUDGE CURRAN: So those are yours?
2 MR. BEVERE: Those are mine.
3 JUDGE CURRAN: I just want to --
4 okay. Thank you.
5 MR. MULLIN: P-177 is AG 30. It's
6 the Lieutenant Buckley memo of 1999 appointing
7 Charles Snyder, Jr. as a Police dispatcher.
8 MR. BEVERE: I'm sorry, what was
9 that?
10 MR. MULLIN: P-177.
11 MR. BEVERE: No objection.
12 JUDGE CURRAN: Thank you. P-177
13 is into Evidence, no objection.
14 MR. MULLIN: P-179 is the Town
15 resolution appointing Charles Snyder, Jr. as
16 Police dispatcher.
17 MR. BEVERE: No objection.
18 JUDGE CURRAN: Thank you. P-179
19 is in without objection.
20 MR. MULLIN: P-184 and 185
21 together are the letter threatening resignation
22 of the firemen in the North End Firehouse.
23 MR. BEVERE: No objection.
24 JUDGE CURRAN: P-184 and 185 in
25 Evidence, no objections.
117
1 MR. MULLIN: P-186, Iacono to
2 Chief Corcoran seeking April 30th, '04 --
3 MR. BEVERE: No objection.
4 JUDGE CURRAN: P-186.
5 MR. BEVERE: Nor to 187.
6 JUDGE CURRAN: Pardon me?
7 MR. BEVERE: Nor to 187.
8 MR. MULLIN: So I am moving in
9 187. There is no objection.
10 JUDGE CURRAN: 186 and 187, thank
11 you.
12 MR. MULLIN: P-193, Buckley to the
13 Hudson County Prosecutor.
14 MR. BEVERE: No objection.
15 JUDGE CURRAN: 193 is in Evidence,
16 no objection.
17 MR. MULLIN: P-195.
18 MR. BEVERE: No objection.
19 MR. MULLIN: We have a better copy
20 somewhere where counsel shows the cc to -- this
21 is --
22 MR. BEVERE: You know what, Judge,
23 worse comes to worse, it is in my binder of
24 documents. I think I have a complete copy. If
25 we want to admit it for now and if we want to
118
1 pull Neil's copy and put in my copy.
2 JUDGE CURRAN: Thank you. So
3 P-195 is in Evidence without objection at this
4 point.
5 MR. MULLIN: P-196.
6 MR. BEVERE: No objection. It was
7 testified to.
8 JUDGE CURRAN: P-196 is in
9 Evidence, no objection.
10 MR. MULLIN: P-204, November 8th,
11 '04, Iacono to Troyanski re policy.
12 MR. BEVERE: No -- 204, no
13 objection.
14 JUDGE CURRAN: 204 is in with no
15 objection.
16 MR. BEVERE: Judge, if we can just
17 step back.
18 Neil, you are not going to move
19 in 198?
20 MR. MULLIN: Let me see it. I
21 don't know if I am. Yeah, that's where he
22 transmits the photo to Troyanski.
23 MR. BEVERE: Correct.
24 MR. MULLIN: Yeah, you probably
25 have a complete one with the photo attached,
119
1 right? I don't.
2 MR. BEVERE: Okay. So we will
3 move it in mine.
4 MR. MULLIN: I have no problem.
5 P-198 is fine with me with the --
6 MR. BEVERE: With the photograph?
7 And when we get to my exhibits later, I will
8 make sure I have a copy of the photo.
9 JUDGE CURRAN: P-198 with the
10 photo moved into Evidence, no objection.
11 MR. MULLIN: P -- let me know when
12 you're ready.
13 MR. BEVERE: Can I step out, see
14 if my witness is here?
15 JUDGE CURRAN: Sure. Off the
16 record.
17 (Whereupon, a discussion is held
18 off the record.)
19 MR. MULLIN: Do you have the
20 first; Malanka?
21 MR. BEVERE: Do we have what?
22 MR. MULLIN: Who do you have up
23 first; Malanka?
24 MR. BEVERE: I am probably going
25 to put Mangone because she is -- comes up from
120
1 South Jersey and is going back. So I am going
2 to put her up first. She'll be quick.
3 MR. MULLIN: So P-209.
4 MR. BEVERE: I have no objection
5 to 209.
6 JUDGE CURRAN: 209 is in Evidence,
7 no objection.
8 MR. MULLIN: P -- P-212 I'm going
9 to move in the following. They have AG Bates
10 stamp numbers. P-212, AG 91 through, I'll say,
11 AG 105.
12 MR. BEVERE: Judge, the only thing
13 I'm going to say, because this contains that
14 e-mail that I want Mr. Paris to review --
15 JUDGE CURRAN: You reserve on this
16 one?
17 MR. BEVERE: If we can just hold
18 off on that.
19 JUDGE CURRAN: We will reserve on
20 212, then.
21 MR. MULLIN: There are other docs,
22 just so counsel knows what I'm looking at, in
23 that same batch, AG 112 through AG 117.
24 MR. BEVERE: Same issue, Judge. I
25 would just like Mr. Paris to see it. Okay?
121
1 JUDGE CURRAN: That it on 212?
2 MR. MULLIN: That's it on 212.
3 JUDGE CURRAN: Okay. So we will
4 reserve on 212, on all the AG numbers.
5 MR. MULLIN: 218, which is AG 129,
6 that's the April 30th, Ulrich report.
7 MR. BEVERE: No objection.
8 JUDGE CURRAN: P-218 in Evidence,
9 no objection.
10 MR. MULLIN: 219, which is also AG
11 130 and 131.
12 MR. BEVERE: No objection.
13 JUDGE CURRAN: P-219 in Evidence,
14 no objection.
15 MR. MULLIN: 220, which is AG 132
16 and 133.
17 MR. BEVERE: No objection.
18 JUDGE CURRAN: P-220 in Evidence,
19 no objection.
20 MR. MULLIN: 221.
21 MR. BEVERE: No objection.
22 MR. MULLIN: 222.
23 JUDGE CURRAN: 221 in Evidence, no
24 objection.
25 MR. MULLIN: 222.
122
1 MR. BEVERE: 222 no objection.
2 MR. MULLIN: P-223.
3 JUDGE CURRAN: P-222.
4 MR. BEVERE: No objection.
5 JUDGE CURRAN: In Evidence, no
6 objection.
7 MR. MULLIN: 224.
8 MR. BEVERE: No objection.
9 JUDGE CURRAN: In Evidence, no
10 objection.
11 MR. MULLIN: 225.
12 MR. BEVERE: No objection.
13 JUDGE CURRAN: In Evidence, no
14 objection.
15 MR. MULLIN: 226.
16 MR. BEVERE: No objection.
17 JUDGE CURRAN: In Evidence, no
18 objection.
19 MR. MULLIN: 227.
20 MR. BEVERE: No objection.
21 JUDGE CURRAN: In Evidence, no
22 objection.
23 MR. MULLIN: 229.
24 MR. BEVERE: No objection.
25 JUDGE CURRAN: In Evidence, no
123
1 objection.
2 MR. MULLIN: 230.
3 MR. BEVERE: Just see. No
4 objection.
5 JUDGE CURRAN: In Evidence, no
6 objection.
7 MR. MULLIN: 231.
8 MR. BEVERE: No objection.
9 JUDGE CURRAN: No objection.
10 MR. MULLIN: 232.
11 MR. BEVERE: 232 is the canvas
12 sheet. No objection.
13 MR. MULLIN: 233.
14 JUDGE CURRAN: 232, no objection,
15 in Evidence.
16 MR. BEVERE: No objection.
17 MR. MULLIN: 233, no objection?
18 MR. BEVERE: Huh-uh.
19 JUDGE CURRAN: In Evidence, no
20 objection.
21 MR. MULLIN: 234, that's AG 149
22 through AG 151.
23 MR. BEVERE: No objection.
24 JUDGE CURRAN: In Evidence, no
25 objection.
124
1 MR. MULLIN: 235.
2 MR. BEVERE: No objection.
3 JUDGE CURRAN: In Evidence, no
4 objection.
5 MR. MULLIN: 236, which is AG 151
6 to 154.
7 JUDGE CURRAN: P-236.
8 MR. BEVERE: Let me -- I just want
9 to make sure. No objection.
10 JUDGE CURRAN: In Evidence.
11 MR. MULLIN: 237.
12 MR. BEVERE: No objection.
13 JUDGE CURRAN: In Evidence, no
14 objection.
15 MR. MULLIN: 239.
16 MR. BEVERE: No objection.
17 JUDGE CURRAN: In Evidence, no
18 objection.
19 MR. MULLIN: 240.
20 MR. BEVERE: No objection.
21 JUDGE CURRAN: In Evidence, no
22 objection.
23 MR. MULLIN: 241, which is AG 159
24 and 160.
25 MR. BEVERE: No objection.
125
1 JUDGE CURRAN: In Evidence, no
2 objection.
3 MR. MULLIN: 242, which is AG 161
4 and 162.
5 MR. BEVERE: Let me just see. No
6 objection.
7 JUDGE CURRAN: In Evidence, no
8 objection. Thank you.
9 Mr. Mullin, would it be
10 convenient for you to -- if we took the lunch
11 break now?
12 MR. MULLIN: This is fine. So
13 next one will be P-243.
14 JUDGE CURRAN: 243.
15 MR. BEVERE: I think that's
16 duplicative, Judge.
17 MR. MULLIN: Well, I'll wait until
18 after lunch.
19 MR. BEVERE: I have no objection
20 to the letter, so we will just -- we will go out
21 and weed out duplicates before. But I have no
22 objection to the letter. But I do recall that
23 was the first document I think we did this
24 morning, but that's okay.
25 JUDGE CURRAN: Okay.
126
1 (Whereupon, a luncheon recess is
2 taken.)
3 A F T E R N O O N S E S S I O N
4 JUDGE CURRAN: As to scheduling
5 for tomorrow, what is the -- at this point what
6 is the present plan, Mr. Bevere.
7 MR. BEVERE: Well, we had arranged
8 for Dr. Goldwaser to come in --
9 JUDGE CURRAN: Right.
10 MR. BEVERE: -- tomorrow at 11.
11 Now, I'm assuming that -- you know, his flight
12 is coming in early, early in the morning. I am
13 assuming there won't be a problem. I haven't
14 heard yet that his flight has been cancelled,
15 delayed or whatever.
16 JUDGE CURRAN: I haven't heard
17 about any big storms in the area.
18 MR. BEVERE: Yeah.
19 JUDGE CURRAN: I actually thought
20 of that when I looked at the weather.
21 MR. BEVERE: Nor have I heard
22 about any insurrections in Argentina, which
23 might shut the airport down. So I think --
24 JUDGE CURRAN: No, the
25 insurrections were in Washington, D.C. this
127
1 weekend --
2 MR. BEVERE: Yes.
3 JUDGE CURRAN: -- as --
4 MR. BEVERE: Yes. So we have
5 that. And I think that we need to discuss
6 scheduling vis-a-vis Frank Leanza. And we could
7 address this, as well. But I think Your Honor
8 had said that you would give us some period of
9 time to look at the transcripts and see if we
10 needed to bring any witness back from
11 questioning. So --
12 JUDGE CURRAN: Right.
13 MR. BEVERE: -- we could talk
14 about that.
15 JUDGE CURRAN: Okay. I thought we
16 had one more witness who was temporarily
17 scheduled the other day.
18 MR. BEVERE: If you could refresh
19 my memory, Judge.
20 JUDGE CURRAN: I'm just trying to
21 look through my notes. I don't see it right
22 now.
23 MR. MULLIN: Your Honor, could I
24 just say a word?
25 JUDGE CURRAN: Surely.
128
1 MR. MULLIN: This is the last week
2 the jury has -- has agreed to. So it's
3 extremely important that we don't waste any time
4 at all. So I need to know if they are calling
5 Mr. Leanza tomorrow. I understand he might have
6 to make a few phone calls. The deposition is
7 going on. I respect that. Hopefully by the
8 time we leave today -- I need to know if Mr.
9 Leanza is coming up tomorrow. And you know,
10 that -- that's something I need to know. I
11 gather Goldwaser is the last witness?
12 JUDGE CURRAN: Unless there will
13 be a request to recall several witness.
14 MR. MULLIN: I will object to it
15 on the grounds -- whoever is being called by the
16 defense, Your Honor, I hope they are called
17 tomorrow. I am willing to work hard to put up
18 as many witnesses as they want to put up. I am
19 going to object to any witnesses being recalled.
20 I see no basis for it. Then we can move rapidly
21 to bring this case to a conclusion. The jury
22 was kind enough to give us an extra week. I
23 think as it is we are going to lose a juror on
24 Thursday.
25 JUDGE CURRAN: We are definitely
129
1 going to lose Juror Number 2. I will note for
2 the record that still gives us nine jurors, so
3 we still have three jurors --
4 MR. MULLIN: Still fine.
5 JUDGE CURRAN: I will also say for
6 the record I try to be very respectful of the
7 jury's time, but nobody the other day indicated
8 there was a big problem. In fact, Juror Number
9 1 asked about this coming Friday but didn't
10 indicate, nor did anybody else, by that Thursday
11 is the drop dead, I can't come back beyond that
12 day. And I find usually with trials that go a
13 long time that the jurors do somehow become more
14 complacent. It's harder to get a jury if you
15 have told them two days for some tiny little
16 case and you want to go the third day. That's
17 harder.
18 So I, frankly, would err on the
19 side -- certainly, no one wants to delay
20 anything. But I would err on the side of, if we
21 had to, bringing them back on Monday, rather
22 than rush to judgment.
23 The last thing I want, in
24 addition to all the other issues in this case,
25 which are legal issues and very fair issues, is
130
1 to have a question of whether or not, whichever
2 way, they rush to judgment because they wanted
3 to get out of here at 6:00 on a Friday night or
4 something of that nature.
5 So we'll take it step by step.
6 But certainly, if Mr. Leanza is going to be
7 called and if you haven't had the chance to talk
8 with your client about that, I think it's only
9 fair that we know by the end of today whether or
10 not he is going to be here tomorrow and whether
11 or not you're going to recall some other
12 individuals, if we could recall -- I can't
13 imagine that the recalling would take a long
14 time because, you know, that, I don't think,
15 would be the problem. I am guessing that
16 scheduling them to be here would be the bigger
17 problem. But if that could be addressed so that
18 we could certainly end up tomorrow where -- at
19 the very least, you know, first thing on
20 Wednesday.
21 We also then do need to go over
22 the jury charges and a few other matters.
23 Let me just ask you this. About
24 Juror Number 2, I agree -- I think it was
25 Mr. Mullin -- I'm not sure -- who said -- or
131
1 maybe the two of you said, you know, part of the
2 reason we didn't excuse him last week was
3 because we legitimately thought maybe we can
4 finish by Thursday and we didn't want to start a
5 run on jurors. So I'm not saying we should
6 excuse him tomorrow, but I think we have to
7 legitimately think about, you know, excusing him
8 on Wednesday.
9 MR. MULLIN: I think so. Again,
10 my sense is it's always best to let the jurors
11 come to us.
12 JUDGE CURRAN: Yes.
13 MR. MULLIN: I'm always worried
14 about a run on the jurors.
15 JUDGE CURRAN: Exactly. But in
16 fairness to him, he did come to us.
17 MR. BEVERE: He did.
18 JUDGE CURRAN: And I don't
19 think --
20 MR. MULLIN: Yes.
21 MR. BEVERE: There is no question,
22 Judge; he came to us.
23 JUDGE CURRAN: If I excused him,
24 what I would do is ask to talk to him privately
25 at the end of the day. I would wait for other
132
1 jurors to go. I would not say anything until
2 Thursday. I would say, "There is an excuse.
3 Don't speculate. He had a, you know, a
4 engagement that had to be kept that he
5 notified" -- "and he notified the Court well in
6 advance." And I just say that so they don't
7 think I can say something now.
8 Okay. So if we do Dr. Goldwaser
9 at 11 and then, theoretically, he would continue
10 maybe over to the afternoon or at least part of
11 the afternoon. In regard to Dr. Goldwaser, is
12 there going to be -- are there going to be -- I
13 am not soliciting them, but I just want for
14 scheduling viewpoint to know is there any motion
15 in regard to Dr. Goldwaser or anything of that
16 nature that we would need to fit into a
17 schedule?
18 MR. MULLIN: If there is, it will
19 be a very brief one.
20 JUDGE CURRAN: Okay.
21 MR. MULLIN: I won't mess the
22 schedule up.
23 JUDGE CURRAN: So then we can
24 count on that. And theoretically, we would move
25 to Mr. Leanza in the afternoon. And it could
133
1 be, if you are going to call a municipal witness
2 or two for a short time, maybe we can even fit
3 them in tomorrow afternoon.
4 Any other issues?
5 MR. BEVERE: You mean a municipal
6 witness other than Mr. Leanza?
7 JUDGE CURRAN: Yes. I'm just
8 saying let us just say that you talk to your
9 clients and you decided you wanted to bring back
10 X person and that person was available tomorrow
11 afternoon. I'm guessing that we could fit in a
12 municipal witness or two because I'm guessing
13 that the amount of time would not be long.
14 MR. BEVERE: Well, Judge, here --
15 here is my issue with that. My issue with that
16 is, as I said earlier, you know, I went through
17 transcripts. I don't know if I will be able
18 to -- to make the decision by tomorrow
19 afternoon, particularly since, you know, I'm
20 doing other things in regard to the trial in the
21 meantime. We are doing evidence. I'm reviewing
22 the charge. You know, I'm -- I have to get
23 ready again for Dr. Goldwaser because now I
24 haven't dealt with him in over a week. So I
25 don't know if I could necessarily be combing
134
1 over transcripts by then, you know.
2 And I think another issue too,
3 Your Honor, is that whether I recall a witness
4 from the Town is also going to be, you know,
5 largely dependent upon the standard that you are
6 going to apply under the -- the --
7 JUDGE CURRAN: We can do the
8 arguments.
9 MR. BEVERE: -- the hostile
10 environment claim because I think that -- let me
11 tell you the position I -- I'm going to take in
12 regard to that. And that might be able to --
13 you know, might be able to get some of this, you
14 know, out.
15 But because Mr. deVries and
16 Mr. Carter are not employees of the Town and --
17 and Chuck Snyder, Jr. nor Chuck Snyder, Sr. had
18 supervisory authority over them and harassed
19 them in the workplace, I would ask that Your
20 Honor not charge that portion of Lehmann. I
21 think that if Your Honor is inclined to charge a
22 hostile environment claim and is -- and is
23 inclined to apply a Lehmann type standard, the
24 Court should apply the standard that was applied
25 in L.W. and in the Godfrey case, which is simply
135
1 did the Town have knowledge or actual or
2 constructive knowledge of acts of harassment or
3 acts that created a hostile environment and were
4 the steps that were taken by the municipality,
5 meaning, you know, those in charge of the
6 municipality to address and correct those
7 problems, were reasonable.
8 So, basically, if you look at
9 L.W., look at Godfrey, what they did was they
10 didn't apply the traditional negligence with
11 regard to workplace harassment policies because
12 it wasn't a workplace issue. Even though people
13 worked there, wasn't a workplace issue. And
14 they didn't charge the supervisory liability of
15 Lehmann because it wasn't a situation where the
16 person being harassed was under the supervisory
17 control of the alleged harasser.
18 So what they did was they went to
19 the -- the -- what we call -- you know, under
20 the Lehmann prong and which is the -- and
21 I'll -- I'll call it -- of course, you know,
22 when I turn things upside down I can't always
23 find them when I need them.
24 But basically, the issue would be
25 one of upper management employees knew or should
136
1 have known about the harassment, failed to take
2 prompt and immediate action to stop this
3 calculated to end the harassment. The
4 reasonableness of the response must be judged by
5 the ability to stop it by the person who engaged
6 in the harassment.
7 I mean, that's -- that's the
8 prong. But if you look at what the Court did in
9 L.W. and what they did in Godfrey, basically the
10 standard that they gave was a modified Lehmann
11 standard. And what they said was you would be
12 liable for the harassment if it creates a
13 hostile environment when you knew or should have
14 known of the harassment and failed to take
15 action reasonably calculated to end the
16 harassment.
17 And quite frankly, whether the
18 Court is going to charge that or the Court is
19 going to charge everything under Lehmann I think
20 is going to impact on whether or not I need to
21 call witnesses back in the case.
22 JUDGE CURRAN: Thank you.
23 Mr. Mullin.
24 MR. MULLIN: Yeah, I think -- I
25 don't have L.W. and Godfrey in front of me; but
137
1 as I recall, L.W. --
2 JUDGE CURRAN: Do you want it? I
3 think I might have it.
4 MR. MULLIN: It would be helpful
5 to have it, yeah.
6 MR. BEVERE: L.W.? I will give
7 Mr. Mullin a copy.
8 JUDGE CURRAN: Thank you.
9 MR. BEVERE: Save some time.
10 JUDGE CURRAN: Thank you.
11 MR. MULLIN: Yeah, I was recalling
12 it right. L.W. was student-on-student
13 harassment. That is the equivalent of one
14 employee harassing a coworker. So, of course,
15 they use that standard.
16 But when you look at Lehmann, the
17 supervisory -- the reason the supervisory
18 creates liability is because of the restatement
19 of agency second. It's -- it doesn't matter --
20 that's where it comes from. It's -- it's the --
21 under the restatement of agency second -- or I
22 think it was second -- which was relied on in
23 Lehmann.
24 If a supervisory personnel does
25 something bad, well, then there are
138
1 circumstances under which the entity is liable.
2 That -- that -- and we have that here. We have
3 the captain, who is charged with taking control
4 of that firehouse and that fire company, and he
5 is acting badly. So that's why the other
6 standard was used in Lehmann.
7 Now, in my charge I actually have
8 both charges. I have -- they're together. I
9 have how shall the jury -- I'm sorry.
10 JUDGE CURRAN: I apologize.
11 MR. BEVERE: I don't have Godfrey
12 either with me, I apologize.
13 JUDGE CURRAN: Okay. We will go
14 off the record for a moment.
15 (Whereupon, a discussion is held
16 off the record.)
17 MR. BEVERE: This may be a minor
18 matter. If Your Honor wouldn't mind telling the
19 jury we had another matter, so the jury doesn't
20 think that Mr. Mullin and I were holding them
21 up.
22 JUDGE CURRAN: Absolutely.
23 MR. MULLIN: Also in that regard,
24 just something about Mr. Paris and Miss Smith
25 not being here --
139
1 MR. BEVERE: As well.
2 MR. MULLIN: -- they are doing
3 something related to case but --
4 JUDGE CURRAN: Absolutely. Thank
5 you.
6 Would you bring the jury out,
7 please? Thank you.
8 COURT CLERK: Jurors are
9 approaching.
10 (Whereupon, the jury is brought
11 into the courtroom.)
12 JUDGE CURRAN: Ladies and
13 Gentlemen, I thank you very much. I'm sorry
14 that we kept you imprisoned in that jury room
15 for as long as we did.
16 I am going to ask counsel to
17 please put their appearances on the record once
18 more because it's the beginning of the week.
19 On behalf of the plaintiffs.
20 MR. MULLIN: Good afternoon. Neil
21 Mullin.
22 JUDGE CURRAN: Thank you.
23 MR. BEVERE: Good afternoon.
24 Daniel Bevere.
25 JUDGE CURRAN: Thank you. Ladies
140
1 and Gentlemen, first of all, I take the
2 responsibility for delaying you this afternoon.
3 And also, you may note that
4 Miss Smith is not here and Mr. Paris is not
5 here. It's not that they have gone off to play
6 golf or to enjoy the weather. They are each --
7 in fact, they are both at the same place,
8 presumably, working on another aspect of this
9 case.
10 I want you to know that, as I'm
11 sure you can tell because you have heard the
12 case, this is very complex case and the
13 attorneys have been working extremely hard.
14 While you all were having a good time,
15 hopefully, on Friday, the attorneys were in this
16 courtroom arguing issues and -- and putting
17 information on the record until almost 5:00 on
18 Friday. And they, you know, were back before
19 nine this morning.
20 So it's not as if anybody is
21 delaying, but there are complex matters. And
22 everyone is working hard to make sure that we
23 be, you know, very respectful of your time.
24 That is why, for example, we called. When we
25 were going through some of the arguments on
141
1 Friday, we realized that we just did not want
2 you to sit in that jury room for a long time
3 today. And so that is why you got the calls on
4 Friday. I'm sorry that that has happened, but I
5 can assure you that everyone really is working
6 very hard on the case.
7 We're going to continue now with
8 the defense case. So Mr. Bevere is going to
9 call his next witness.
10 Mr. Bevere.
11 MR. BEVERE: Thank you. I'm going
12 to go out in the hallway and retrieve Patrol
13 Officer Linda Mangone.
14 JUDGE CURRAN: Thank you.
15 (Whereupon, a brief recess is
16 taken.)
17 JUDGE CURRAN: Hi. Good
18 afternoon.
19 THE WITNESS: Good afternoon.
20 MS. HAWKS: Raise your right hand.
21 You can stand up.
22 THE WITNESS: Okay.
23 MS. HAWKS: Raise your right hand.
24 Place your left hand on the Bible, please.
25 O F F I C E R L I N D A M A N G O N E is duly
142
1 Sworn by a Notary Public of the State of
2 New Jersey and testifies under oath as
3 Follows:
4 MS. HAWKS: For the record, please
5 state your full name and spell your last name,
6 please.
7 THE WITNESS: Linda Mangone,
8 M-a-n-g-o-n-e.
9 MS. HAWKS: Thank you. You may be
10 seated.
11 JUDGE CURRAN: Please be seated.
12 You are under oath. All your testimony must be
13 truthful and accurate to the best of your
14 ability. Do you understand?
15 THE WITNESS: Yes.
16 JUDGE CURRAN: Thank you. Please,
17 if you will move a little closer to the
18 microphone. And if you will, please spell your
19 last name for the record -- oh, I am sorry, you
20 have done that. If you will give us your
21 address.
22 THE WITNESS: 545 Cooper Road, Red
23 Bank, New Jersey, 07701.
24 JUDGE CURRAN: Thank you. Your
25 witness, Mr. Bevere.
143
1 DIRECT EXAMINATION BY MR. BEVERE:
2 Q Good afternoon.
3 A Good afternoon.
4 Q Miss Mangone, by whom are you
5 employed?
6 A The Town of Secaucus Police Department.
7 Q And what is your position there?
8 A I am a patrol officer.
9 Q And were you a patrol officer in
10 April of 2004?
11 A Yes, I was.
12 Q How long have you been a patrol
13 officer for the Town of Secaucus?
14 A I was hired in 1997. I'm right now in my
15 11th year as a patrol officer.
16 Q Miss Mangone, I'm going to show
17 you a document which I have marked as D --
18 actually, I'll show you two documents, D-148 and
19 D-149 for Identification.
20 A Okay.
21 Q And I'm going to ask you if you
22 recognize those documents. Start with D-148,
23 then we will get to D-149.
24 A Okay. D-148, yes, sir, I do recognize
25 that.
144
1 Q What is D-148?
2 A It is Police Department investigation
3 report.
4 Q And who prepared that report?
5 A I did, sir.
6 Q When did you prepare that report?
7 A Excuse me?
8 Q When did you prepare that report?
9 A This was done on May 23rd, 2004.
10 Q And can you tell us what that
11 report is about? Without reading from it. So
12 do you need to look at the document --
13 A I would need to look at it --
14 Q -- to refresh your recollection?
15 A -- it's been quite a few years -- to
16 refresh my memory as to the details of that day.
17 Q Let me ask you a question. As you
18 are sitting here today do you have -- do you
19 have a recollection of that matter?
20 A Yes.
21 Q Okay. Do you need to -- what can
22 you tell us -- can you tell us anything without
23 looking at the report?
24 A No, no, not -- not in detail, sir.
25 Q In order to give us the details do
145
1 you need to look at the report?
2 A Yes, sir.
3 Q Okay. Why don't you go ahead and
4 read your report?
5 A Okay.
6 Q Not out loud, but you can read it
7 to yourself?
8 A Okay. Okay.
9 Q Okay. Now do you have a
10 recollection of what happened?
11 A Yes.
12 Q Why don't you tell us in your own
13 words what happened that day?
14 A While I was on patrol conducting a
15 special detail, which officers are assigned to
16 when there is a particular incident that needs
17 observation of a certain area pertaining to an
18 incident, I was detailed there that day to
19 observe the area of 988 Schopmann Drive, which
20 is the residence of the victim, and the
21 surrounding area of the firehouse.
22 Q And what day was that?
23 A This was on May 23rd, 2004 at 1:20 --
24 1:20 in the afternoon.
25 Q And what happened at 1:20 in the
146
1 afternoon?
2 A While I was conducting the detail I was
3 sitting stationary. I was approached by the
4 victim, Timothy Carter, who presented me with a
5 piece of paper regarding a -- regarding
6 information that included a vehicle
7 registration. It was given to him by his
8 neighbor, Patrick Hjelm, who said that this
9 vehicle had been in the area and had been
10 involved in some harassing activity towards the
11 victim.
12 So with that I took the note with the
13 information and asked our dispatcher to run the
14 license plate to find out who owned the car and,
15 you know, if it came back on file, which it did
16 not at that time.
17 What that means is either -- in most
18 cases either that's an incorrect documented
19 license plate with an inaccurate letter or
20 number or the vehicle is just not registered.
21 The computers sometimes can be down at the time,
22 the system; and that could have been the reason
23 for it. At that particular time it just shows
24 not on file.
25 Q Okay. Now, can you tell us where
147
1 you were when you were approached by Mr. Carter?
2 A I was on Paterson Plank Road. That would
3 be in the westbound direction across from the
4 firehouse and from the victim's residence.
5 Q And what were you doing at the
6 time that Mr. Carter approached you?
7 A Observing the area. As I said, just
8 observing the area regarding previous harassment
9 reports to observe, to see if there is any
10 unusual activity or vehicles in the area that
11 may have appeared suspicious or conducting
12 activities that would be considered as
13 harassment.
14 MR. BEVERE: Now, Your Honor,
15 permission to show the report?
16 Neil?
17 MR. MULLIN: No objection. No
18 objection.
19 JUDGE CURRAN: Can the jurors all
20 see that?
21 MR. BEVERE: Should I move it
22 closer? Little closer?
23 JUDGE CURRAN: Closer.
24 MR. BEVERE: Okay.
25 JUDGE CURRAN: Mr. Mullin, feel
148
1 free to move anyplace --
2 MR. MULLIN: Thank you, Your
3 Honor.
4 MR. BEVERE: I don't have Dave, so
5 I don't have my technology.
6 BY MR. BEVERE:
7 Q Okay. And Miss Mangone, can you
8 see that?
9 A I can see it. I can't read it from this
10 angle, but I have this copy in front of me is
11 fine.
12 Q Is this your report?
13 A Yes, it is.
14 Q Thank you.
15 JUDGE CURRAN: Sorry, Mr. Bevere,
16 is the blowup 149?
17 MR. BEVERE: The blowup is 148.
18 JUDGE CURRAN: The blowup is --
19 MR. BEVERE: Yes.
20 JUDGE CURRAN: The blowup is of
21 148?
22 MR. BEVERE: Is of 148.
23 JUDGE CURRAN: Okay.
24 BY MR. BEVERE:
25 Q And do you know how -- or how did
149
1 it come to be that you were conducting a special
2 detail assignment?
3 A At the beginning of our -- of our shift
4 coming in to work the supervisor will assign us
5 to details that have been ordered by a superior.
6 So with that, in -- you know, with that I was
7 detailed by whoever the supervisor was that day.
8 I don't recall at this moment who that was. But
9 it's usually done through the supervisor. And
10 then we leave reports on what, you know,
11 occurred at the time of the detail.
12 Q Now, what were you assigned --
13 what was your detail?
14 A The detail, in itself, was to, again,
15 observe the area for any kind of suspicious
16 persons or vehicles or activity involving any
17 kind of harassment or -- or activity directed
18 towards that -- the victim's home, car, his
19 person or the surrounding area that would
20 reflect anything involving the victim.
21 Q Do you recall as you're sitting
22 here today whether you observed any such conduct
23 on that day?
24 A No, I did not.
25 Q Now, I gave you a second document,
150
1 which I have marked as D-149.
2 A Okay.
3 Q If I could ask you to look at that
4 and you could tell us what that is?
5 A This is the -- this is actually a copy of
6 what was given to me by Mr. Carter stating the
7 information that his neighbor had informed him
8 of.
9 Q And is it signed?
10 A It's signed, "Tim."
11 MR. BEVERE: Permission to show
12 D-149?
13 Q Miss Mangone, is this a copy of
14 D-149?
15 A Yes, it is.
16 Q Can you tell us, Miss Mangone,
17 what you did with D-149?
18 A After receiving this from Mr. Carter,
19 I -- I observed the document; and I advised him
20 that I would -- what -- what we would say, run
21 the license plate through our DMV system to see
22 who the owner was of that vehicle. And at that
23 time that's -- that's exactly what I did.
24 Q Now, as you are sitting here today
25 do you recall anything else that you did on that
151
1 day?
2 A No, no. Actually, I believe that was the
3 only activity that occurred while I was posted
4 on that detail.
5 Q Okay. And when did you prepare
6 your report?
7 A Excuse me?
8 Q When did you prepare your report?
9 A When?
10 Q Yeah.
11 A On --
12 Q In other words, when did you
13 prepare the report that was marked --
14 A As D-148?
15 Q -- as D-148?
16 A May 24th, 2004.
17 Q And then what did you do with the
18 report?
19 A I submitted to the supervisor that's
20 working that shift. Then it gets forwarded to
21 the Detective Division.
22 Q What did you do with D-149?
23 A I included that with the report.
24 Q Now, Officer, I am going to show
25 you what I have marked as D-210 and D-211 for
152
1 Identification and ask you if you could
2 recognize that document?
3 A Yes.
4 Q What is that document?
5 A This is also a departmental investigation
6 report that is -- was done by myself on
7 November 2nd, 2004.
8 Q And as you're sitting here today
9 do you have a recollection of the matter that's
10 contained in the report?
11 A Yes, yes.
12 Q Could you tell us what it is that
13 you recall about the incident?
14 A This -- this was an incident where I was
15 on patrol. I was not assigned to a special
16 detail. I was on patrol and observed two men on
17 the -- it would be the north side of Paterson
18 Plank Road in the area of the firehouse with
19 cameras taking photographs -- what appeared to
20 be they were taking photographs of a wall that
21 was part of one of the residences along Paterson
22 Plank Road, which is right across from the
23 victims' home and the firehouse.
24 Q And what -- on what date was this?
25 A This was on 11 -- November 2nd, 2004.
153
1 Q And at what time did you make this
2 observation?
3 A Two -- this was at 2:27 in the morning,
4 a.m.
5 Q And what did you do when you made
6 this observation?
7 A I -- I asked the gentlemen what they were
8 doing. And they informed me that they were
9 taking photographs of bias slur that was on the
10 wall and they felt that it was directed towards
11 them.
12 Q Do you know who the gentlemen were
13 that you spoke to?
14 A At the time I didn't know them, but I --
15 I know who they are now.
16 Q Well, I'm asking did you get their
17 names?
18 A Oh, yeah.
19 Q What were their names?
20 A Yes, well, Timothy Carter. The other
21 fella's name I'm not exactly sure. I don't
22 recall his name. I think it was -- I would have
23 to look at the report to --
24 Q Go ahead, you can refresh your
25 recollection. I'm sorry.
154
1 A That's right, Peter deVries.
2 Q And if I asked you this
3 previously, I'm sorry. What time was this that
4 you made this observation?
5 A This was at 2 -- 2:27 in the morning,
6 a.m.
7 Q And then, after you spoke to
8 Mr. deVries and Mr. Carter, what, if anything,
9 did you do?
10 A I immediately contacted my supervisor,
11 Sergeant Zloty. Due to the nature of the
12 report, you know, I wanted him to be there to
13 observe the -- the statement that was on the
14 wall that they -- they were trying to photograph
15 and asked if he would bring the camera so that
16 we would have photographs done by our department
17 camera, so we can keep them on file for -- for
18 the report.
19 Q What was the statement that was
20 written on the wall?
21 A It was El -- E-l was the first word --
22 and homo, H-o-m-o.
23 Q Okay. And then, after you
24 notified Sergeant Zloty, then what happened?
25 A He photographed the wall and I did an
155
1 investigation report and we logged the
2 photographs into Property.
3 Q I am going to show you --
4 A It's property and evidence.
5 Q Well, actually, before I show
6 you -- I'll show you this one. I am going to
7 show you what's marked as D-123 --
8 A Okay.
9 Q -- for Identification and ask you
10 if you know what that is?
11 A Yes.
12 MR. MULLIN: What number was that?
13 MR. BEVERE: D-123.
14 BY MR. BEVERE:
15 Q What is that document?
16 A This is a Secaucus Police Department
17 property and evidence report.
18 Q And who was it prepared by?
19 A It's prepared by myself.
20 Q And when did you prepare that?
21 A This was on November 2nd, 2004.
22 Q And what evidence did you log in
23 pursuant to that property and evidence report?
24 A Photograph of the -- the bias statement
25 that was observed on the wall.
156
1 Q Is that the statement that you
2 observed?
3 A Yes.
4 Q Okay.
5 A Yes, it is.
6 JUDGE CURRAN: What are you
7 holding up?
8 MR. BEVERE: Oh, I'm sorry, Your
9 Honor. I am holding up Plaintiff's Exhibit
10 163G.
11 JUDGE CURRAN: G, thank you.
12 BY MR. BEVERE:
13 Q And when did you prepare report?
14 A On November 2nd, 2004.
15 Q And what did you do with the
16 report?
17 A I submitted it to our supervisor in
18 charge.
19 Q Okay. Were you involved in any
20 follow-up investigation with regard to any of
21 these matters?
22 A No, sir.
23 MR. BEVERE: Okay. I have no
24 further questions at this time, thank you.
25 CROSS EXAMINATION BY MR. MULLIN:
157
1 Q Good afternoon, Miss Mangone.
2 A Good afternoon.
3 MR. MULLIN: Dan, do you mind if I
4 turn it over and just use the report that you
5 showed the witness?
6 MR. BEVERE: Sure. Want me to do
7 it?
8 MR. MULLIN: Yeah, maybe you
9 should do it.
10 BY MR. MULLIN:
11 Q Officer, the date of this report
12 that's marked D-148, that's May 23rd, 2004,
13 right? Do you have it in front of you still?
14 A No, I don't.
15 MR. BEVERE: You know, let me give
16 her --
17 THE WITNESS: Thank you.
18 BY MR. MULLIN:
19 Q You have it in front of you now?
20 A Yes, sir.
21 Q So the date of this report is May
22 23rd, 2004; is that right?
23 A Yes, sir.
24 Q Is this the only report you're
25 aware of, May 23rd, 2004, where you were on
158
1 special detail near 988 Schopmann Drive?
2 A Yes.
3 Q Okay. You're not aware of any
4 reports indicating you were on special detail
5 before or after that date, correct?
6 A No, I don't recall.
7 Q Okay. And in this report you --
8 you're writing some stuff down; you report some
9 stuff that has to do with a Patrick Hjelm,
10 right?
11 A Yes, sir.
12 Q Of 984 Schopmann Drive?
13 A Yes.
14 Q Okay. And Patrick stated -- you
15 write, "Patrick stated he saw the actor who was
16 a passenger in a dark green SUV-type vehicle."
17 And there is an NJ registration number, "which
18 was parked in the firehouse North End parking
19 lot"; that's what you wrote, right?
20 A Yes.
21 Q And that was accurate, right? You
22 were reporting accurately what you were being
23 told?
24 A Yes.
25 Q Okay. And on that date, when you
159
1 were out there on May 23rd, Tim Carter gave you
2 this handwritten document that's marked D-149;
3 is that right?
4 A Yes.
5 Q And this document -- so this
6 document was given to you on May 23rd, 2004,
7 right?
8 A Yes, this is a copy of the actual
9 document.
10 Q Actual document you put into
11 the --
12 A Yes.
13 Q -- evidence room?
14 A Yes.
15 Q And on that date, May 23rd, Tim
16 Carter wrote that, "I think that the kid, blond,
17 skinny, tattoo on arm, rather tall, short hair,
18 drives around with someone who drives license
19 number KO6 KLF, dark green SUV, is one of the
20 ones who continues harassing me and one involved
21 in the incident report of May 1," right?
22 A Yes.
23 Q So that's May 23rd Mr. Carter
24 gives you a note complaining of continuing
25 harassment, correct?
160
1 A Well, this -- yeah, this would have been
2 previous to taking the report that day.
3 Q Well, when did he hand you this
4 note?
5 A He handed it to me that day; but what he
6 is stating is that the incidents of the
7 harassment happened previously, yes.
8 Q He says, "one of the ones who
9 continues harassing me"?
10 A Right.
11 Q That's one of the things he says,
12 right?
13 A Yes.
14 Q And he says, "one of the ones
15 involved in the incident report of May 1,"
16 right?
17 A Yes.
18 Q That's all I want to establish.
19 A Okay.
20 Q Again, just for the record, okay,
21 Mr. Carter's complaints of continuing harassment
22 were -- it was handed to you --
23 A Yes.
24 Q -- on May 23rd, 2004, right?
25 A Yes.
161
1 Q Thank you.
2 MR. MULLIN: No further questions.
3 A Thank you.
4 REDIRECT EXAMINATION BY MR. BEVERE:
5 Q Just one question, Miss Mangone.
6 A Yes.
7 Q Who provided you with the
8 information regarding the vehicle and the actor?
9 A Mr. Carter.
10 Q Did you speak to Mr. Hjelm?
11 A No.
12 MR. BEVERE: No further questions.
13 JUDGE CURRAN: Mr. Mullin.
14 MR. MULLIN: I think I'm finished.
15 No further questions. Thank you very much.
16 THE WITNESS: Thank you.
17 JUDGE CURRAN: Ladies and
18 Gentlemen, is there anyone on the jury who has a
19 question for this witness? If so, please raise
20 your hand.
21 I see no questions. Thank you.
22 Thank you very much.
23 THE WITNESS: Thank you, Your
24 Honor.
25 JUDGE CURRAN: You may step down.
162
1 Thank you.
2 (Whereupon, the witness is
3 excused.)
4 JUDGE CURRAN: Mr. Bevere.
5 MR. BEVERE: With the Court's
6 permission, I will recall to the stand Captain
7 Malanka.
8 JUDGE CURRAN: Thank you.
9 MR. BEVERE: I will go get him,
10 Your Honor.
11 JUDGE CURRAN: Thank you.
12 C A P T A I N T H O M A S A. M A L A N K A is
13 duly sworn by a Notary Public of the State
14 of New Jersey and testifies under oath as
15 follows:
16 MS. HAWKS: For the record, please
17 state your full name and spell your last name,
18 please.
19 THE WITNESS: Captain Thomas A.
20 Malanka, M-a-l-a-n-k-a.
21 MS. HAWKS: Thank you. You may be
22 seated.
23 JUDGE CURRAN: Thank you. Your
24 address is already on the record, thank you.
25 Your witness.
163
1 DIRECT EXAMINATION BY MR. BEVERE:
2 Q Captain Malanka, what is your
3 position?
4 A I'm a captain with the Secaucus Police
5 Department.
6 Q Were you involved in the
7 investigation of incidents that have alleged to
8 have occurred on April 25th, 2004?
9 A Yes.
10 Q Can you please give us a general
11 overview of what your involvement was?
12 A I'm in the -- at the time I was
13 lieutenant in the Detective Division, and I was
14 working Monday through Friday at the time. I
15 came in -- I believe that was early Sunday
16 morning, the incident. I came in that Monday
17 morning, and I was advised by Captain Buckley
18 and through the reports of the incidents.
19 Q And what, if anything, did you do
20 in regard to the investigation?
21 A Well, he -- he detailed me; he told me to
22 call the Prosecutor's Office. And I attempted
23 to contact some of the witnesses for interviews.
24 Q Did you make contact with the
25 Prosecutor's Office?
164
1 A Yes, I did.
2 Q What, if any -- well, who did you
3 contact?
4 A I spoke to First Assistant Prosecutor Guy
5 Gregory. I think -- I think he advised me to
6 call Assistant Prosecutor Don Gardner. And I
7 explained to him briefly what had occurred, and
8 I told him I would fax him a copy of the reports
9 that were done up to that time.
10 Q What was your purpose in speaking
11 to the Prosecutor's Office?
12 A Well, what we generally do is when we
13 have a bias or -- or something that's possibly
14 bias incident, we contact them and we fax them a
15 copy of the reports up to that current time.
16 Q Now, you said that you had spoken
17 to some witnesses. Do you recall who you made
18 contact with?
19 A I called a Miss Bardini, a Dee Bardini.
20 I spoke to her because originally -- I don't
21 have the report.
22 Q Do you need the report to refresh
23 your recollection?
24 A Please.
25 Q Sure.
165
1 MR. BEVERE: I'm going to show the
2 witness what's marked as D-10 for
3 Identification.
4 JUDGE CURRAN: Thank you.
5 BY MR. BEVERE:
6 Q You can't read from your report,
7 but you can look at it to refresh your
8 recollection and tell us what it is that you
9 did.
10 A Yes, I spoke to Miss -- Miss Bardini.
11 And I asked her if -- of course, if she was
12 aware of the incident, which she was. And I
13 asked her to tell me what happened. And she did
14 tell me in her words that she heard some
15 shouting and some words and -- and she didn't
16 actually know where they were coming from, but
17 it was the direction of Paterson Plank and
18 Schopmann, which is the firehouse parking lot.
19 Q In your report did you say
20 specifically what it was that she said?
21 A Yes.
22 Q Do you need -- do you need to read
23 from your report to tell us what it was that she
24 said?
25 A Yes.
166
1 Q And that report would have been
2 accurate when it was made?
3 A Yes.
4 Q Okay.
5 MR. BEVERE: Your Honor,
6 permission for him to read what Miss Barred told
7 him from the report?
8 MR. MULLIN: No objection.
9 JUDGE CURRAN: So ordered.
10 BY MR. BEVERE:
11 A When I spoke to her, she said she thought
12 she heard three shots and a male yell, "It's
13 1:30" --
14 MR. MULLIN: Objection, Your
15 Honor. He hasn't read it accurate. He said,
16 "She thought she heard." Please have him read
17 it accurately.
18 A I'm sorry. "She said she heard three
19 shots after an unknown male yelled, 'It's 1:30.
20 People are trying to sleep.' A second male
21 voice shouted, 'Come out, you chicken shits'
22 and, 'Go ahead and call the police, you chicken
23 shits.' I" --
24 Q I'm sorry, keep --
25 A "I asked her if" --
167
1 MR. MULLIN: Can we have the
2 witness read? Then I have no objection to the
3 witness reading, Your Honor.
4 MR. BEVERE: Thank you, Your
5 Honor, I appreciate that.
6 BY MR. BEVERE:
7 A "I asked Ms. Bardini if she heard anyone
8 say anything bias or sexual in nature. She said
9 no. And she concluded by saying she did not see
10 anyone from her apartment and doesn't know where
11 the incident actually took place."
12 Q Who, if anyone, else did you make
13 contact with on that date?
14 A I called Charles Snyder, Sr.; and I spoke
15 to him briefly. And he said he wanted to speak
16 to an attorney before he would come in. And
17 also --
18 Q Did you speak to anyone else?
19 A I called Matt Kickey. And actually, I
20 spoke to his father, Bob Kickey. And he told me
21 that he wasn't going to have anyone speak to his
22 son unless he was charged. And I believe I
23 called a Harry Backiel, who did give me a brief
24 statement regarding the incident.
25 Q And did you speak to either of the
168
1 victims?
2 A I -- not originally. I spoke to them
3 after. I think I --
4 Q Want to look at your report,
5 refresh your recollection?
6 MR. MULLIN: Which report is he
7 looking at?
8 MR. BEVERE: I'm sorry, he is
9 looking at D-10.
10 BY MR. BEVERE:
11 A Okay. At 1:00 on 4/27/2004 I telephoned
12 Peter deVries after receiving a message from the
13 other victim, Tim Carter, who stated that Peter
14 could be the point person. And I informed
15 Mr. deVries that I was waiting to hear from the
16 Prosecutor's Office and myself and Detective
17 Sergeant Reinke were investigating the matter
18 further.
19 I also requested that he and Mr. Carter
20 respond to Police Headquarters to file formal
21 statements regarding the matter. Mr. deVries
22 said he would speak to Mr. Carter and they would
23 call to schedule appointments for the
24 statements.
25 Q Were you involved in the -- in the
169
1 taking of the statements of either
2 Mr. deVries --
3 A No.
4 Q -- or Mr. Carter? Do you --
5 what -- what, if any, action was taken to your
6 knowledge in regard to Matt Kickey after you
7 spoke to Mr. Kickey?
8 A Sergeant Reinke and Detective DeGennaro
9 responded to the Hudson County Prosecutor's
10 Office to speak to him in person. And I
11 don't -- I don't think they spoke to him that
12 night. That's all I know about that.
13 Q I am going to show you a report
14 that I have marked as D-119 for Identification.
15 I'm going to ask you if you recognize that
16 report?
17 A Yes, I do.
18 Q What is it?
19 A It's a Supplementary Investigation Report
20 that I prepared.
21 Q When did you prepare it?
22 A The report was done on May 17th, 2004.
23 Q And what was it regarding?
24 A It was regarding a phone call that was
25 left on my answering machine the day before.
170
1 Q Who was the phone call from?
2 A It was from Mr. Carter.
3 Q What was the phone call about?
4 A Mr. --
5 Q Do you have an independent
6 recollection of the phone call, or do you need
7 to --
8 A I think I have to read it again.
9 Q Okay. Was this report prepared by
10 you at or near the time that you had the --
11 the -- you received -- that you received the
12 message?
13 A I received a message on Sunday. I
14 prepared the report the next day, Monday.
15 Q Did you listen to the message
16 again before preparing the report?
17 A Yes.
18 Q And was the -- is the report an
19 accurate recitation of the message?
20 A Yes.
21 MR. BEVERE: Okay. Your Honor,
22 permission to have him read from the report.
23 MR. MULLIN: No objection.
24 JUDGE CURRAN: Thank you. So
25 ordered.
171
1 BY MR. BEVERE:
2 A "On Sunday morning" -- that was May 16th,
3 2004 -- "I was at work and noticed there was a
4 message on my machine. I played the message.
5 The caller stated he was Tim Carter. And the
6 time was 1840 hours on Saturday evening,
7 May 15th, 2004. Mr. Carter stated that he
8 walked passed the open firehouse, where the
9 doors were open and the fire trucks were parked
10 outside. He said that there were dozens and
11 dozens of beer cans on tables inside the
12 firehouse and firemen were drinking in the
13 firehouse parking lot. He further stated they
14 were not taking things seriously and were almost
15 practically purposely to let everyone know that
16 alcohol is alive and well there. He also
17 stated, 'I'm calling and writing people about
18 this.'"
19 Q Now, based upon your report, when
20 was the message left?
21 A The message was left on Saturday evening.
22 That was the 5th of May at -- it says, "1840,"
23 which is 6:40 hours.
24 Q And when did you first receive the
25 message?
172
1 A I received it the following morning,
2 Sunday, which is May 16th.
3 Q And where was the message?
4 A It was on my telephone answering machine.
5 Q Do you know whether any other --
6 well, let me -- let me ask it this way. Do you
7 have an understanding as to whether anyone else
8 received a message about this incident?
9 A Yes.
10 Q Do you know who?
11 A Detective Sergeant DeGennaro was working
12 Saturday evening; and he responded, along with
13 Pat, and they left reports.
14 Q And what is your understanding as
15 to what, if anything, was done in response to
16 this call by Mr. Carter?
17 A They responded; and from what I
18 understand, there was a communion party for --
19 for children.
20 Q Now, I would like to show you what
21 I have marked as D-99 for Identification and ask
22 you if you recognize that document?
23 A Yes, I do.
24 Q What is that document?
25 A This is another Supplementary
173
1 Investigation Report.
2 Q And who was it prepared by?
3 A By myself.
4 Q When did you prepare that report?
5 A On May 17th, 2004.
6 Q And what is that report about?
7 A Can I read it again?
8 Q Well, let's establish, do you have
9 an independent recollection as you are sitting
10 here today?
11 MR. MULLIN: Can we establish that
12 without the witness --
13 Q Yeah, you have to -- without
14 looking at the -- do you have --
15 A There is a lot of reports.
16 Q Do you recall what was said?
17 A I'm not sure.
18 MR. MULLIN: Can we have a
19 question as to whether he has any recollection
20 of what was said without looking at the report?
21 Any recollection without looking?
22 Q Without looking, if I was to take
23 this report away and you weren't allowed to look
24 at it --
25 A Right.
174
1 Q -- would you be able to tell us
2 anything that was said?
3 A I don't think so.
4 JUDGE CURRAN: Sir, if you would
5 be kind enough to say, "yes" or, "no."
6 THE WITNESS: Oh.
7 MR. MULLIN: Can we have --
8 THE WITNESS: No.
9 MR. MULLIN: -- a, "yes" or, "no"
10 on that?
11 BY MR. BEVERE:
12 Q The answer is no. Okay. Now,
13 this report that you prepared, where would you
14 have gotten the information that was in the
15 report?
16 A From a phone call or from a conversation
17 with someone.
18 Q And would you have prepared this
19 report at or near the time, if you had that
20 phone call, the conversation?
21 A Yes.
22 Q And would it have been accurate
23 when made?
24 A Yes.
25 MR. BEVERE: Your Honor,
175
1 permission to have him read from D-99?
2 JUDGE CURRAN: So ordered.
3 BY MR. BEVERE:
4 Q Let me give you a second, so I can
5 put it up. Can you tell us who the phone call
6 was from?
7 A It's from Mr. Tim Carter.
8 Q At what time?
9 A At 12:00, 1200 hours.
10 Q At what date? On what date?
11 A On May 18th, 2004.
12 Q And can you tell us what was said
13 by Mr. Carter and what was said --
14 A Yes.
15 Q What, if anything, was said by Mr.
16 Carter?
17 MR. MULLIN: You mean can he read
18 it?
19 MR. BEVERE: Can he read it, I'm
20 sorry.
21 BY MR. BEVERE:
22 A "Mr. Carter stated that several firemen
23 were drinking beer in the firehouse parking lot
24 this past Saturday evening, 5/15/2004. I
25 advised him the Attorney General's Office was
176
1 now handling the case. He said he knew that,
2 and he asked how the investigation was going. I
3 told him that they were in charge of the ongoing
4 investigation and all information would have to
5 come from their agency. He concluded by saying,
6 'I've gotten past it' but they still have to
7 move because of all the publicity. Mr. Carter
8 also asked if this agency had alcoholic beverage
9 bottles taken on the morning of the incident. I
10 informed him that the items taken were counted,
11 photographed and listed on official SPD property
12 reports. The photograph of the empty alcoholic
13 beverage containers were placed into property
14 and evidence by the undersigned."
15 Q And what, if anything, did you do
16 with this report?
17 A I submitted it with the rest of the case.
18 Q Okay. And I'm going to show you
19 what I have marked as D-131 for Identification
20 and ask you if you can identify that document?
21 MR. MULLIN: 151?
22 MR. BEVERE: 151, yes.
23 BY MR. BEVERE:
24 A Yes, I can.
25 Q Okay. What is that document?
177
1 A This is a -- another Supplementary
2 Investigation Report.
3 Q Prepared by whom?
4 A By myself.
5 Q When?
6 A May 20, 2004.
7 Q And what does that report
8 document?
9 A Again, I have to read it.
10 MR. MULLIN: Which one is this?
11 MR. BEVERE: I'm sorry.
12 THE WITNESS: It's 131.
13 MR. MULLIN: Oh, 131.
14 JUDGE CURRAN: It's 5/20/04.
15 MR. MULLIN: Thank you.
16 BY MR. BEVERE:
17 Q Where did the information come
18 from that's contained in that report?
19 A It was a telephone call from Mr. Carter.
20 Q As you are sitting here today,
21 without looking at this report, do you have an
22 independent recollection of what was said in
23 that phone call?
24 A No.
25 Q All right. When would you have
178
1 prepared this report in relation to when the
2 phone call was made?
3 A When I received the phone call.
4 Q All right. And would the report
5 be an accurate documentation of what took place
6 in that conversation?
7 A Yes.
8 MR. BEVERE: Okay. Your Honor,
9 permission to have him read from D-131?
10 JUDGE CURRAN: So ordered.
11 MR. MULLIN: No objection.
12 JUDGE CURRAN: Thank you.
13 BY MR. BEVERE:
14 Q Okay.
15 A At 13 --
16 Q You can read.
17 A "At 1300 hours on 5/20/04 the undersigned
18 received a telephone call from Mr. Carter. I
19 advised Mr. Carter that on Saturday, 5/22/04,
20 the Secaucus High School senior class was having
21 a car wash at the North End Firehouse at 900
22 hours. Mr. Carter told me about an incident he
23 had reported earlier. A young North End Fire
24 Department firefighter drove by him near the
25 firehouse on the above date and called him a
179
1 "faggot." He said the driver of the flat gray
2 two-door sports car is most definitely a fireman
3 at the North End Firehouse. He also said that
4 he is disappointed in several agencies involved
5 in the investigation. The one exception is the
6 Secaucus Police Department. He is satisfied
7 with the SPD and the police -- police chief
8 100 percent. He asked me to inform the Chief of
9 Police that he and Mr. deVries were retaining
10 Neil Mullins as their attorney. He wanted the
11 Chief to know as a courtesy and said it was no
12 reflection on the Police Department."
13 Q What, if any, attempts are you
14 aware of to locate the vehicle that's referenced
15 in paragraph two of the report?
16 A Every time -- every time there was a
17 vehicle in question, we look for the vehicle.
18 We ran several plates. Every time there was a
19 vehicle called --
20 Q What do you personally recall
21 doing?
22 A I remember we responded to the DPW, where
23 several volunteer firemen are employed; and we
24 looked for a vehicle that would match that
25 description.
180
1 Q Were you able to locate a vehicle
2 that matched this description?
3 A No, we weren't.
4 Q And what does it mean to be on
5 special assignment?
6 A When you're -- when you're assigned to a
7 specific post or a specific zone or a specific
8 location and usually detailed there for a
9 specific reason.
10 Q And what is the policy with regard
11 to -- or the procedure with regard to
12 preparation of reports when you're on special
13 assignment?
14 A When we go on a special assignment, if
15 there is any activity or anything that would --
16 would happen at the scene, we would put it into
17 a report.
18 Q And what happens if nothing
19 happens?
20 A It probably wouldn't be long.
21 Q I have no further questions, thank
22 you.
23 JUDGE CURRAN: Mr. Mullin.
24 CROSS EXAMINATION BY MR. MULLIN:
25 Q Sir, when Mr. Bevere asked you to
181
1 read D-10 about your interview with Bardini, you
2 started saying to the jury she thought she heard
3 three shots, right?
4 A Right.
5 Q But that wasn't accurate, right?
6 A Right.
7 Q She said she heard three shots,
8 right?
9 A Yes.
10 Q Sir, there is absolutely no record
11 of you doing any forensic work to track down any
12 traces of any shooting at the firehouse parking
13 lot, right, sir?
14 A That's correct.
15 Q No such record exists?
16 A That's correct.
17 Q Okay. And in that report you say,
18 "I asked Ms. Barred if she heard anyone say
19 anything bias or sexual in nature. She said
20 no"?
21 A Yes.
22 Q Are you aware Miss Bardini came in
23 here and she said she heard the word "fag" or
24 "faggot" being yelled?
25 MR. BEVERE: Insofar as this is a
182
1 sequestered witness, so I don't know how he
2 would have knowledge.
3 MR. MULLIN: I am asking him if he
4 has knowledge.
5 JUDGE CURRAN: I will overrule it.
6 You can answer yes or no.
7 BY MR. MULLIN:
8 A Yes, you told me last time.
9 Q But that's not what you wrote
10 here; you wrote, "She said no"?
11 A "She said no."
12 Q Are you aware that Police Officer
13 Mangone, who just testified here, on May 23rd
14 got a note from Tim Carter saying he was being
15 continually harassed by a North End firefighter
16 who was yelling, "Faggot"? Are you aware of
17 that? On May 23rd.
18 A Not that I recall.
19 Q Are you aware that on May 24th
20 Police Officer Thomas Borrelli reported,
21 "Mr. Carter calling agency, worried that someone
22 parked outside his" -- "his house was possibly
23 hired by the Secaucus Fire Department, as they
24 are out to kill him?" Are you aware of that
25 call?
183
1 A No.
2 Q Are you aware that on May 25th
3 Detective Sergeant Dominic DeGennaro reported
4 that, "Mr. Carter stated he is afraid that this
5 same individual may have been hired to hurt or
6 kill him regarding the bias incident?" Are you
7 aware of that?
8 A No.
9 Q Are you aware that he reported an
10 exchange with a police officer that he called up
11 and -- and -- who asked him, Tim Carter, "Why do
12 you feel threatened?" Are you aware of that
13 interchange?
14 A No.
15 Q And that's May 25th, right?
16 That's reported on May 25th report by Sergeant
17 Dominic DeGennaro, right?
18 A Yes.
19 Q Okay. And yet --
20 MR. MULLIN: Could you give me
21 D-99? Can you flip it over? I don't want to
22 screw your pages up.
23 Thank you.
24 Q And yet in D-99 on May 17th you
25 write a report where you claim Mr. Carter said
184
1 to you, "I've gotten past it"; is that correct?
2 A Yes.
3 Q Now, that's what you say
4 Mr. Carter said, right?
5 A That's what Mr. Carter told me.
6 Q You didn't take a statement from
7 Mr. Carter --
8 A No.
9 Q -- to the effect that he signed
10 and swore to?
11 A No.
12 Q You have no tape recording of
13 that, right?
14 A No.
15 Q The note -- did you take any notes
16 that day?
17 A No.
18 Q You have no notes?
19 A No.
20 Q And he says -- but he -- you write
21 that he said, that Carter said, "they still have
22 to move because of all the publicity." You
23 don't put quotes around that phrase, do you?
24 A No.
25 Q And the date of that report is
185
1 May 17th, right? Is that right? D-99.
2 A Yes.
3 Q And just -- and another report on
4 the same day that you wrote, right, D-119?
5 A Yes.
6 Q You write that you played a
7 message from Tim Carter, right?
8 A Yes.
9 Q And Carter called at 6:40 p.m. on
10 Saturday evening, right?
11 A Yes.
12 Q On the very same -- on May 5th,
13 right?
14 A Right.
15 Q And he said there were dozens and
16 dozens of beer cans on tables inside the
17 firehouse and firemen were drinking in the
18 firehouse parking lot, right?
19 A Yes.
20 Q He called and left a message on
21 the Police Department tape recorders?
22 A Yes.
23 Q Mr. Carter further stated on May
24 15 that, "They were not taking things seriously,
25 were almost practically purposely to let
186
1 everyone know that alcohol is alive and well
2 there"? And Mr. Carter said in that tape, "I'm
3 calling and writing people about this," right?
4 A Yes.
5 Q Sir, you were shown D-131, which
6 is a report you wrote on May 30th, 2004, right?
7 And there you write that Mr. Carter told you
8 about an incident that he had reported earlier,
9 right?
10 A Yes.
11 Q And you write that, "A young North
12 End Fire Department firefighter drove by him
13 near the firehouse on the above date and called
14 him a faggot." So he identifies him as a North
15 End Fire Department firefighter, right, in this?
16 A Yes.
17 Q And then what he said, drove by,
18 called him a "faggot." He says, "The driver of
19 the flat gray, two-door sports car is most
20 definitely a fireman at the North" -- says,
21 "most definitely a fireman at the North End
22 Firehouse," right?
23 A Yes.
24 Q And you, in answer to Mr. Bevere's
25 questions, you said you checked on the car,
187
1 right?
2 A Yes.
3 Q Okay. There is no report where
4 you attempt to show photographs of the firemen
5 of the North End Firehouse for purpose of
6 obtaining an identification of the firefighter
7 he saw, true? There is no report where you do
8 that?
9 A No.
10 MR. MULLIN: No further questions.
11 REDIRECT EXAMINATION BY MR. BEVERE:
12 Q Why didn't you show photographs?
13 A I wasn't detailed to do so.
14 Q Do you know whether anyone else
15 did? Do you know whether --
16 A No, I don't.
17 Q I'm sorry. Do you know whether
18 the Secaucus Police Department has photographs
19 of the firefighters?
20 A Excuse me.
21 Q Do you know whether the Secaucus
22 Police Department has photographs of the
23 firefighters?
24 A We don't have photographs of the
25 firefighters.
188
1 MR. BEVERE: Okay. No further
2 questions, thank you, Your Honor.
3 RECROSS EXAMINATION BY MR. MULLIN:
4 Q What steps did the Secaucus Police
5 Department take to get photographs of the North
6 End firefighters?
7 A I don't know.
8 Q Did anyone take photographs of the
9 North End firefighters where they were out there
10 in the parking lot at the North End Firehouse to
11 your knowledge?
12 A Not that I know.
13 Q To your knowledge did anyone in
14 the Secaucus Police Department ask the North End
15 firefighters to please give them photographs of
16 themselves to your knowledge?
17 A No.
18 Q And when you say you weren't
19 detailed to show photographs, you know, to Tim
20 Carter --
21 A Yes.
22 Q -- about that -- to make an I.D.
23 on that guy you saw yelling, "faggot," what you
24 mean is your superior didn't ask you to go do
25 that, right?
189
1 A Yes.
2 Q And your superior, when you're a
3 lieutenant at that time, in -- in April 2004,
4 May 2004, well, that would have been Detective
5 Captain Buckley, right?
6 A Yes.
7 Q And what you are telling the jury
8 is Detective Captain Buckley never detailed you
9 to attempt to make a photo identification with
10 Tim Carter of the individual he saw driving by,
11 yelling, "faggot"? You were never detailed to
12 do that, right?
13 A Right.
14 Q And Chief Corcoran of the Police
15 Department never detailed you to do that either,
16 true?
17 A True. I wouldn't get my orders from the
18 Chief, but true.
19 MR. MULLIN: No further questions.
20 MR. BEVERE: Nothing further, Your
21 Honor, thank you.
22 JUDGE CURRAN: Thank you.
23 Is there anyone on the jury who
24 has a question for this witness? If so, please
25 raise your hand.
190
1 I see no questions. Thank you,
2 sir.
3 THE WITNESS: Thank you.
4 JUDGE CURRAN: You may step down.
5 (Whereupon, the witness is
6 excused.)
7 JUDGE CURRAN: If I might see
8 counsel at sidebar.
9 MR. BEVERE: Sure.
10 (Whereupon, the following sidebar
11 discussion is held.)
12 JUDGE CURRAN: You don't have any
13 other witnesses, do you, Mr. Bevere?
14 MR. BEVERE: Not today, I do not.
15 JUDGE CURRAN: Want the jury back
16 at 9:30 tomorrow? What is your preference.
17 MR. BEVERE: Dr. Goldwaser is
18 coming in at 11.
19 JUDGE CURRAN: So why don't we
20 have them at 11, because we have arguments we
21 can make before then.
22 MR. BEVERE: I think that would be
23 appropriate time.
24 MR. MULLIN: We will do this when
25 the jury is out. I want to encourage rapid
191
1 forward motion, if possible, in terms of calling
2 witnesses; but we can deal with that later.
3 JUDGE CURRAN: When the jury
4 leaves we are going to go back to the evidence,
5 anyway, so we can at least finish that and try
6 to finish up some things. Thank you.
7 MR. BEVERE: Thank you.
8 (Whereupon, sidebar discussion is
9 concluded.)
10 JUDGE CURRAN: Ladies and
11 Gentlemen, we are going to excuse you for
12 tomorrow. I know it seems like a short day, but
13 I can assure you that there are careful
14 decisions that have to be made in regard to
15 cases.
16 Tomorrow we will continue with
17 the defense case, but the first witness will not
18 be here until 11. That will allow us to go
19 through some legal arguments. And again, rather
20 than have you sit in our luxurious jury room, I
21 will ask if you will please report here tomorrow
22 at 11.
23 Okay. Anything else? Thank you
24 very much. Please don't discuss the case among
25 yourselves. Please don't discuss it with anyone
192
1 else. If you would just like to remain, if you
2 have a question.
3 JUROR NUMBER 2: Sure.
4 (Whereupon, the jury is excused.)
5 (Whereupon, the following sidebar
6 discussion is held.)
7 JUDGE CURRAN: Yes, sir. I will
8 note that we're back on the record. Juror
9 Number 2 has asked to speak with us.
10 THE WITNESS: Yeah, I was
11 concerned about what I had brought up, I guess,
12 last week about my trip scheduled for Thursday,
13 late afternoon, as well as the -- I also had
14 that Traffic Court, which you had postponed,
15 which would have been Wednesday morning.
16 JUDGE CURRAN: Right.
17 THE WITNESS: So I guess -- I
18 don't know how long we are still going to be
19 here at this point.
20 JUDGE CURRAN: Exactly. We have
21 been discussing that, sir. We did discuss it
22 earlier, actually, before you came out. If --
23 we promised you wouldn't miss the wedding. And
24 certainly, I would not want you to miss Traffic
25 Court, although that is easily changed. But if
193
1 you can just be patient with us for one more
2 day, we would appreciate it, okay?
3 THE WITNESS: Okay.
4 JUDGE CURRAN: So we will let you
5 know tomorrow, unless there is something I'm
6 forgetting here. Okay. We have not forgotten
7 your -- you were brought up when we were doing
8 issues this morning.
9 THE WITNESS: Okay.
10 JUDGE CURRAN: Thank you.
11 THE WITNESS: Thank you.
12 JUDGE CURRAN: Thank you, sir.
13 We can go off the record.
14 (Whereupon, sidebar discussion is
15 concluded.)
16 (Whereupon, a discussion is held
17 off the record.)
18 MR. MULLIN: I will move in 243.
19 I don't remember --
20 MR. BEVERE: Oh, Judge, can I let
21 my witness go?
22 JUDGE CURRAN: Sure.
23 MR. BEVERE: I will be right back
24 in.
25 (Whereupon, a brief recess is
194
1 taken.)
2 MR. MULLIN: 245, Your Honor.
3 COURT CLERK: Go back on the
4 record?
5 JUDGE CURRAN: Yes, we will go
6 back on the record. Thank you.
7 COURT CLERK: Back on the record.
8 JUDGE CURRAN: Thank you.
9 MR. MULLIN: P-245.
10 JUDGE CURRAN: Any objection?
11 MR. BEVERE: No.
12 JUDGE CURRAN: Thank you. P-245
13 is in Evidence, no objection.
14 MR. MULLIN: P-246.
15 MR. BEVERE: If we're -- if you
16 move in 244 --
17 MR. MULLIN: No.
18 MR. BEVERE: Because 244 and 246
19 are -- all right. 246.
20 MR. MULLIN: I will live with it.
21 JUDGE CURRAN: No objection?
22 MR. BEVERE: No.
23 JUDGE CURRAN: Thank you. In
24 Evidence, no objection.
25 MR. BEVERE: I will move in 244.
195
1 MR. MULLIN: 247.
2 MR. BEVERE: Yeah, that's the one
3 I have a problem with because it references Al
4 Sullivan, the firehouse drunkenness and reports;
5 and I believe, similar to Your Honor's pretrial
6 rulings, that would not be an admissible
7 document.
8 MR. MULLIN: I would like the
9 part, "I received a new message from Tim Carter,
10 who said he wasn't safe." Then it goes on to
11 the Al Sullivan thing. I don't mind redacting
12 after that. I want him letting the police know
13 he wasn't safe.
14 MR. BEVERE: So you want to redact
15 everything after, "And."
16 MR. MULLIN: Everything after the
17 word "safe" or if you want to put the "and" in.
18 MR. BEVERE: No, we can redact
19 everything after "safe."
20 MR. MULLIN: Everything after
21 "safe" will be redacted.
22 JUDGE CURRAN: I think that makes
23 more sense.
24 MR. BEVERE: Excuse me?
25 JUDGE CURRAN: It makes more sense
196
1 to --
2 MR. BEVERE: Yeah, leave it at
3 "safe" and redact.
4 JUDGE CURRAN: Right.
5 MR. BEVERE: So 247 with
6 redaction.
7 JUDGE CURRAN: All right. So 247
8 goes into Evidence as redacted.
9 MR. MULLIN: Redacted. P-250.
10 MR. BEVERE: I think it's
11 duplicative, Judge, but no problem.
12 MR. MULLIN: It is -- it might be;
13 but you know, Your Honor, we will go through it
14 all --
15 MR. BEVERE: Yeah.
16 MR. MULLIN: -- both sides and
17 make decent book for the jury.
18 MR. BEVERE: In theory, I have no
19 objection. I have no evidentiary objection.
20 JUDGE CURRAN: Thank you. In
21 Evidence.
22 MR. MULLIN: P-252, Backiel
23 statement.
24 MR. BEVERE: No objection.
25 JUDGE CURRAN: 252 in Evidence, no
197
1 objection.
2 MR. MULLIN: P-254, Sesty
3 statement -- oh, excuse me, P-2 -- just a
4 second. P-254, yes.
5 MR. BEVERE: No objection.
6 JUDGE CURRAN: 254 in Evidence, no
7 objection.
8 MR. MULLIN: P-255.
9 MR. BEVERE: No objection.
10 JUDGE CURRAN: 255 in Evidence, no
11 objection.
12 MR. MULLIN: P-257.
13 MR. BEVERE: No objection.
14 JUDGE CURRAN: 257 in Evidence, no
15 objection.
16 MR. MULLIN: Let me just ask
17 counsel a question Your Honor. Is P-258 a
18 waiver signed by deVries?
19 MR. BEVERE: No, he didn't sign a
20 waiver.
21 MR. MULLIN: That is always
22 confusing.
23 MR. BEVERE: Let me see if I can
24 figure it out because by the time of the
25 statement.
198
1 MR. MULLIN: I see, it's Richie
2 Johnson's.
3 MR. BEVERE: That would be Richard
4 Johnson looks like to me.
5 MR. MULLIN: So I will do P-258.
6 MR. BEVERE: And 260?
7 MR. MULLIN: And P-260.
8 MR. BEVERE: No objection.
9 MR. MULLIN: P-261.
10 MR. BEVERE: 263?
11 MR. MULLIN: 262 and -- P-262.
12 MR. BEVERE: P-261 and 262.
13 MR. MULLIN: Right. Let me see.
14 I want to --
15 JUDGE CURRAN: How about 263?
16 MR. MULLIN: That's Parisi's
17 statement. Let me look at it for a second, Your
18 Honor.
19 JUDGE CURRAN: So we have P-258,
20 260, 261, 262 in Evidence so far.
21 MR. MULLIN: Right.
22 MR. BEVERE: What are we up to,
23 Judge? I'm sorry.
24 MR. MULLIN: I'm reviewing 263
25 right now.
199
1 JUDGE CURRAN: Up to 262 were
2 complete.
3 MR. MULLIN: P-264. P -- I will
4 wait for an answer.
5 MR. BEVERE: No objection.
6 MR. MULLIN: P-265, the Patricia
7 Hjelm statement.
8 MR. BEVERE: No objection.
9 JUDGE CURRAN: P-264 and 265 in
10 Evidence.
11 MR. MULLIN: P-266, the first
12 Frank Walters statement.
13 MR. BEVERE: No objection.
14 JUDGE CURRAN: 266 in Evidence, no
15 objection.
16 MR. MULLIN: Your Honor, just for
17 the record, P-270 I offer; but I know it's --
18 Your Honor has made an in limine ruling about
19 the flag, the flag incident.
20 MR. BEVERE: Yeah, Your Honor, I
21 object on the grounds it was excluded by the
22 Court.
23 JUDGE CURRAN: Thank you. It will
24 be excluded.
25 MR. MULLIN: It is AG 210 through
200
1 213, just for the record.
2 JUDGE CURRAN: Thank you.
3 MR. MULLIN: P-274, which is AG 21
4 to 218.
5 MR. BEVERE: 274?
6 MR. MULLIN: Mangone report.
7 MR. BEVERE: Yeah, Judge, the same
8 as before; I have no problem with a redaction of
9 the incident on 10/31/04.
10 JUDGE CURRAN: Thank you. 274
11 will go into Evidence as redacted.
12 MR. MULLIN: As consistent with
13 Your Honor's in limine ruling.
14 JUDGE CURRAN: Yes.
15 MR. MULLIN: P-275. Okay?
16 MR. BEVERE: Yes.
17 MR. MULLIN: P-276.
18 JUDGE CURRAN: 275 in Evidence, no
19 objection.
20 MR. BEVERE: 276, no objection.
21 JUDGE CURRAN: 276 in Evidence.
22 MR. MULLIN: Your Honor, I
23 understand Your Honor's rulings on the Jersey
24 City stuff; but just for the record, P-278 is a
25 report. I think, even consistent with Your
201
1 Honor's in limine ruling, we can have first
2 sentence, "The undersigned responded to 260
3 Harrison Avenue on a complaint of harassment at
4 apartment 404. Upon our arrival we spoke to
5 Peter deVries and Timothy Carter, occupants who
6 live in this apartment." And then skip all the
7 way down to, "Mr. Carter stated."
8 So it will be redacted consistent
9 with your in limine ruling that, 'Mr. Carter
10 stated that he observed a truck from the Town of
11 Secaucus Department of Public Works outside 260
12 Harrison Avenue approximately one week ago.'
13 Then I would conclude, "Mr.
14 deVries also expressed concern regarding this
15 event. And Mr. deVries noted that the volunteer
16 firefighters in Secaucus were aware of the car
17 that he drives. And Mr." -- "Mr. deVries and
18 Mr. Carter believe this could be a continuation
19 of the bias incidents that occurred in Secaucus.
20 West Sergeant Harmon advised and responded to
21 the scene."
22 And I guess the rest would have
23 to be redacted.
24 Then West Detective Sean
25 Cavanaugh responded to scene. Did escort
202
1 Mr. deVries to West District for statement.
2 City Captain Spefore notified by Tour Commander
3 Atkins. That's AG 222. I would ask that that
4 document go in without the references to the
5 bloody tissues. So we have to redact the
6 references in the headings there, but I would
7 ask that it go in redacted as I read it.
8 JUDGE CURRAN: Any objection?
9 MR. BEVERE: Yes, Your Honor. I
10 think that the -- the entire document should be
11 excluded. When Mr. Carter testified, he
12 testified about seeing a Secaucus DPW truck in
13 the vicinity of his house. There was no
14 testimony about calling the police and police
15 response. It all came in for the bloody towels.
16 For the jury to be given now the impression that
17 police were called in response to seeing a DPW
18 truck stop in front of his house would be
19 misleading. I think the whole document should
20 be excluded.
21 JUDGE CURRAN: Mr. Mullin,
22 anything else?
23 MR. MULLIN: That's all I have,
24 Your Honor.
25 JUDGE CURRAN: I have read through
203
1 here, I think, many notes requested by Mr.
2 Mullin. I find, really, at the very least that
3 this is cumulative. The testimony is on in
4 detail as to the problems Mr. Carter had when he
5 saw the DPW truck. I don't think this adds
6 anything. There was no argument that maybe the
7 police here didn't respond. I will note the
8 objection, but P-278 is not moved into Evidence.
9 MR. MULLIN: Your Honor, just so
10 the record is clear, I assume your ruling
11 will -- I'm moving for P-279, 280, 281, 282 to
12 go into Evidence; but I gather from your ruling
13 that you will deny that request?
14 JUDGE CURRAN: Yes, I think also
15 we went through those in limine too, that they
16 were -- the incident with the truck is not
17 remote, but the others were just really too
18 vague. There was no real nexus. But please
19 give me those numbers again, so I will deny
20 them. 279.
21 MR. MULLIN: P-279, P-280, P-281,
22 P-282. That's it. That's what I'm offering,
23 but I understand Your Honor's in limine ruling.
24 JUDGE CURRAN: Thank you. Based
25 on those rulings, 279, 280, 281 and 282 are not
204
1 allowed into Evidence; but the objection is
2 preserved for the record.
3 MR. MULLIN: Thank you, Your
4 Honor. I will move in P-284, Mr. Carter's
5 statement.
6 MR. BEVERE: No objection.
7 JUDGE CURRAN: P-284 is moved in,
8 no objection.
9 MR. MULLIN: P-287, the property
10 and evidence report on Mayor -- Mayor Elwell,
11 Tim Carter tape.
12 MR. BEVERE: That's 280?
13 JUDGE CURRAN: 7.
14 MR. BEVERE: 287. You are not
15 going to move in 286?
16 MR. MULLIN: I don't think so.
17 You'll probably move it in.
18 MR. BEVERE: Okay.
19 JUDGE CURRAN: 287 is in Evidence,
20 no objection.
21 MR. BEVERE: Oh, you had a good
22 copy of it.
23 MR. MULLIN: I have the best copy
24 here, it turns out.
25 MR. BEVERE: Okay.
205
1 MR. MULLIN: Okay. You can borrow
2 that.
3 MR. BEVERE: Okay.
4 MR. MULLIN: I will move in P-288.
5 MR. BEVERE: No objection.
6 JUDGE CURRAN: So ordered.
7 MR. MULLIN: P-289.
8 MR. BEVERE: No objection.
9 JUDGE CURRAN: So ordered.
10 MR. MULLIN: P-291, which is AG 23
11 and AG 240.
12 MR. BEVERE: No objection.
13 JUDGE CURRAN: So ordered.
14 MR. BEVERE: P-292 is the same
15 document.
16 MR. MULLIN: Yeah, so I skipped
17 it. P-293.
18 MR. BEVERE: Yep.
19 MR. MULLIN: P-294 we already did,
20 right, the Pat Hjelm statement? I am going to
21 pass that.
22 JUDGE CURRAN: Right, 293 is in
23 without objection.
24 MR. MULLIN: P-299, is that the --
25 may I ask counsel if that's the 911 tape?
206
1 MR. BEVERE: I believe it is, yes.
2 MR. MULLIN: Okay. I will put
3 P-299 in, which is AG 250.
4 JUDGE CURRAN: P-299 in Evidence.
5 MR. MULLIN: P-300.
6 MR. BEVERE: No objection. It was
7 testified to.
8 JUDGE CURRAN: Hold on one second.
9 I have in my book the tape as 390.
10 MR. BEVERE: No, this is the
11 property report, Judge.
12 JUDGE CURRAN: Oh, this is the
13 property report on it.
14 MR. MULLIN: The tape, itself, is
15 390.
16 JUDGE CURRAN: Okay, good. So
17 299, 300.
18 MR. MULLIN: Okay. So P-301.
19 JUDGE CURRAN: No objection on
20 300?
21 MR. BEVERE: No.
22 MR. MULLIN: No.
23 JUDGE CURRAN: Okay. 301?
24 MR. MULLIN: P.
25 JUDGE CURRAN: I'm sorry, 301, any
207
1 objection?
2 MR. BEVERE: No, Your Honor.
3 JUDGE CURRAN: Thank you. So
4 ordered. Moves in.
5 MR. MULLIN: P-308.
6 MR. BEVERE: P-308. Let me just
7 get there. No objection.
8 JUDGE CURRAN: 308 in Evidence, no
9 objection.
10 MR. MULLIN: P-313, which is AG
11 number 268 and 269.
12 MR. BEVERE: 313, no objection.
13 JUDGE CURRAN: P-313 in Evidence,
14 no objection.
15 MR. MULLIN: P-315.
16 MR. BEVERE: No objection.
17 JUDGE CURRAN: In Evidence, no
18 objection.
19 MR. MULLIN: P-317 has to do with
20 the -- again, another flag incident, magnetic
21 flag. So that's barred by Your Honor's in
22 limine motion.
23 JUDGE CURRAN: Thank you. The
24 objection is noted, though preserved for appeal.
25 MR. MULLIN: We did Mangone
208
1 already.
2 MR. BEVERE: We did.
3 MR. MULLIN: P-320.
4 MR. BEVERE: I think it's in,
5 Judge; but that's all right. We can weed it
6 out.
7 MR. MULLIN: We are going to get
8 some repeats in there because we are in the AG's
9 file; but I am going to do it in abundance of
10 caution, Your Honor.
11 JUDGE CURRAN: P-320 is in
12 Evidence, no objection.
13 MR. MULLIN: P-321.
14 MR. BEVERE: No objection.
15 JUDGE CURRAN: P-321 is in
16 Evidence, no objection.
17 MR. MULLIN: P-323.
18 MR. BEVERE: 323, let me see. No,
19 okay, I think it's repetitive.
20 MR. MULLIN: No, I know P-324 is
21 in, so I am not going to put it in.
22 JUDGE CURRAN: All right. P-323
23 is in, no objection.
24 MR. BEVERE: We left off at 323?
25 JUDGE CURRAN: Yes.
209
1 MR. MULLIN: That's where I was.
2 I'm looking at 326. P-326.
3 MR. BEVERE: No objection.
4 JUDGE CURRAN: So ordered. It's
5 in Evidence.
6 MR. MULLIN: 328 is a repeat. 329
7 is a repeat. I'm not moving it. 331 is a
8 repeat. P-336.
9 MR. BEVERE: No objection.
10 JUDGE CURRAN: So ordered. 336 is
11 in Evidence, no objection.
12 MR. MULLIN: P-337, just to be
13 safe.
14 MR. BEVERE: No objection.
15 JUDGE CURRAN: So ordered, in
16 Evidence.
17 MR. MULLIN: P-338. P-339.
18 MR. BEVERE: Judge, I'm going
19 to -- I just have an objection to his 339
20 because it has underlining.
21 JUDGE CURRAN: How about 338?
22 MR. MULLIN: I won't put in
23 underlined copy, Judge.
24 MR. BEVERE: 338 -- well, I'm
25 sorry, Your Honor, that has underlining too. I
210
1 just realized that.
2 JUDGE CURRAN: Do we have clean
3 copies of --
4 MR. BEVERE: I have them in my
5 binding. It's Amodeo, Ulrich's initial reports.
6 From that point I have them in my binders; we
7 can use my D numbers. We can -- we can move
8 them in as D.
9 JUDGE CURRAN: We will move them
10 in, and they will show up on a duplicate.
11 MR. BEVERE: Let me -- just
12 because I don't want to run any risk because
13 there is some underlining on it. But that would
14 be D-2 and D-3 for Ulrich's report. And it
15 would be D-4 and D-5 for Amodeo's report. So
16 D-2 through 5 would be duplicates of these
17 without any underlining.
18 JUDGE CURRAN: So do you want to
19 put the D numbers in?
20 MR. MULLIN: Sure, that's fine.
21 JUDGE CURRAN: D-2 --
22 MR. BEVERE: Through D-5.
23 JUDGE CURRAN: -- through D-5
24 inclusive. Thank you.
25 MR. MULLIN: P-342.
211
1 JUDGE CURRAN: Any objection?
2 MR. BEVERE: 342, no.
3 MR. MULLIN: P-343.
4 JUDGE CURRAN: 342 -- 342 in
5 Evidence. 343. I feel like an auctioneer here.
6 MR. BEVERE: What?
7 JUDGE CURRAN: I feel like an
8 auctioneer here. Do I hear 343?
9 MR. MULLIN: So 343 is the next
10 one. And 344.
11 MR. BEVERE: 344, it's
12 duplicative; but all right.
13 JUDGE CURRAN: How about 43?
14 MR. BEVERE: Yeah, no problem.
15 That's --
16 MR. MULLIN: We will pull out the
17 duplicates.
18 MR. BEVERE: I have no substantive
19 objection.
20 MR. MULLIN: Sometimes the
21 duplicates are better copies than the ones I
22 originally put.
23 JUDGE CURRAN: So 343 and 343 are
24 in.
25 MR. MULLIN: 346, P-346.
212
1 MR. BEVERE: No objection.
2 MR. MULLIN: P-347.
3 MR. BEVERE: No objection.
4 JUDGE CURRAN: 346 and 47 are in
5 Evidence.
6 MR. MULLIN: P-350.
7 MR. BEVERE: Let me just get 350.
8 Yeah, duplicative; but that's all right. 350.
9 MR. MULLIN: P-351.
10 MR. BEVERE: 351, no objection.
11 JUDGE CURRAN: 350 and 351, in
12 Evidence.
13 MR. MULLIN: Again, some of these
14 duplicates I am putting in because they are much
15 better copies, what the AG had, than what I had
16 in my original numbers. P-352.
17 MR. BEVERE: No objection.
18 MR. MULLIN: P-353.
19 MR. BEVERE: No objection.
20 JUDGE CURRAN: 352 in Evidence.
21 353 in Evidence.
22 If we could just interrupt a
23 moment, Mrs. Cahill brought out a note that
24 Miss Smith is on the phone and would like me to
25 take the call.
213
1 MR. MULLIN: Oh, sure.
2 JUDGE CURRAN: Okay. So --
3 COURT CLERK: On the record?
4 JUDGE CURRAN: Yeah, we can just
5 stay on the record, I guess. Oh, can you
6 transfer it for me, please. Kathy, can you --
7 thank you.
8 (Whereupon, the following
9 telephonic conversation takes place on
10 speaker phone.)
11 JUDGE CURRAN: Is Miss Smith on
12 the phone? Miss Smith? Miss Smith?
13 MS. SMITH: Your Honor.
14 JUDGE CURRAN: Yes, I'm in court
15 with Mr. Mullin and Mr. Bevere.
16 MS. SMITH: So sorry to bother you
17 again, Your Honor. I am going through the bills
18 with -- in the deposition; and Mr. Bevere has
19 asserted the attorney-client privilege with
20 regard to this witness as it regards to trial
21 strategy, which is something he billed for.
22 MR. PARIS: Judge.
23 JUDGE CURRAN: Did you mean
24 Mr. Paris?
25 MS. SMITH: Mr. Paris, I'm so
214
1 sorry.
2 MR. PARIS: Having an identity
3 problem.
4 MR. BEVERE: I was going to say I
5 don't remember asserting anything as I was
6 sitting here.
7 MR. PARIS: Judge, let me tell you
8 what the issue is, if I may. We have gone
9 through billing, and now we're at -- we're at a
10 point of April 7th -- April 7th of this year.
11 April 7th of '08 there is an indication of a
12 meeting with Dan Bevere, John Sheridan, Mayor
13 Elwell and Dave Drumeler regarding deVries
14 strategy and witness preparation.
15 I have not spoken to the witness
16 about this entry, so I don't know what his
17 testimony would be on this entry. But it was
18 our intention -- and we certainly waived the
19 privilege with regard to the advice and counsel
20 that Mr. -- that Mr. Leanza provided to the --
21 to the Town with regard to the deVries matters
22 and the handling from day one right up until a
23 decision was made that they were not going to
24 take disciplinary action with regard to the
25 firemen.
215
1 Now, here we are with an entry of
2 April 7th. The trial was scheduled to begin
3 April 14th. Again, I don't know what the
4 witness is going to say. If Your Honor would
5 allow me to, I would ask him what he was going
6 to say because we may be arguing about nothing,
7 I don't know.
8 But the point being that it's one
9 thing -- and he has already testified that he
10 did not provide legal counsel to the governing
11 body of the Town with regard to the trial, that
12 he didn't prepare for the trial, et cetera, and
13 that that matter was left to the outside
14 counsel. So there is nothing that he carries
15 back.
16 He indicated -- he already
17 indicated there were two times that he reported
18 back to the Mayor and Council with regard to the
19 matter. Once was when the individual defendants
20 were let out of the case. And the second time
21 was when the LAD claims were dismissed. So to
22 ask now what the -- the particular trial
23 strategy may have been a week before the trial
24 was to begin I really think is inappropriate.
25 And it's not a question of an
216
1 attorney -- it is a question of attorney-client
2 privilege. However, Your Honor had actually
3 asked this question when we were talking about
4 this issue last Friday. And in fact, I don't
5 know whether the Court recognized it; but
6 certainly, my -- my answer was that yes, you can
7 waive the privilege. And in this case it was
8 waived de facto with regard to certain issues.
9 But now for the defendant to ask
10 him specifically not about advice and counsel
11 that he gave to the Mayor and Council but
12 specifically with regard to trial strategy is
13 inappropriate.
14 So that's where we're at. He has
15 testified all day long ever since the issue with
16 regard to his BlackBerry was resolved. I have
17 not instructed him not to answer a single
18 question. But here we are with a meeting a week
19 before trial. His billing notes indicates
20 regarding "deVries strategy and witness
21 preparation." And I think that for the
22 defendants to seek to obtain a -- any testimony
23 as to what the defense strategy for trying the
24 case was I think is inappropriate.
25 That's where we are, Judge.
217
1 JUDGE CURRAN: Who is John
2 Sheridan?
3 MR. BEVERE: It's John Shahdanian.
4 MR. PARIS: He didn't know who
5 John Sheridan was. Maybe he knows who John
6 Shahdanian is.
7 MS. SMITH: John Shahdanian, his
8 clients had already been dismissed from the case
9 at that time, so the privilege was waived,
10 anyway. But Your Honor, in fact -- we can read
11 it back -- what Mr. Paris said is, "We didn't
12 waive the privilege with regard to trial
13 strategy." I don't think he can pick and choose
14 what he waives the privilege about.
15 MR. PARIS: Your Honor, I don't --
16 I don't think that's the case. You know, he
17 is -- he has already testified as to his advice
18 to the Mayor and Council. He has already
19 testified fully as to what he told the Mayor and
20 Council and what he discussed with them. Now
21 this is asking what the defense trial strategy
22 would be.
23 MS. SMITH: Well, you know, just
24 let me add, Judge, we never got the executive
25 session minutes to this day. Your order of
218
1 Friday has been completely disregarded. This
2 witness came here today with numerous documents,
3 obviously, missing from his file because they're
4 referenced in his billing but not in his file.
5 This witness came here today with
6 one e-mail, despite innumerable e-mail
7 references in his billing. And he has no idea
8 how to search his computer for his e-mails.
9 This witness came here today and said for four
10 years he billed hundreds of thousands of dollars
11 on this case and he never took a note ever.
12 MR. PARIS: Judge, the
13 characterization of what was produced is
14 absolutely incorrect. Your order was not
15 totally -- he produced all of his billing record
16 as requested.
17 Regular meetings. There are no
18 minutes of executive sessions that we are aware
19 of. I have been asking about that, okay. There
20 are tapes of caucus meetings. We produced a
21 tape of the April 27th caucus meeting. This
22 morning the Town found equipment so that they
23 can duplicate the other tapes. That's what
24 they're in the process of doing. But there are
25 130 hours of caucus minute tapes. When we were
219
1 before Your Honor on Friday, I questioned
2 whether all of these executive minutes would be
3 required. And what Miss Smith said, in good
4 faith, was, "They're probably all in a book."
5 And if they were all in a book, everything would
6 have been fine. But they're not in a book.
7 There is no book of executive session minutes.
8 They're all these caucus tapes.
9 MS. SMITH: This --
10 MR. PARIS: Excuse me.
11 In addition, when we were before
12 you on Friday, you said produce the items one
13 through seven; and if there are issues with
14 regard to any particular item, we would discuss
15 it later. Well, you know, we're prepared to
16 talk about some of these other issues. But to
17 say that we have not produced documents -- we
18 have produced Mr. Leanza's file as it exists.
19 We have gone and we have determined that there
20 was material from Mr. Iacono's file which we
21 produced.
22 So we have produced the material,
23 all right. But if he doesn't have the material,
24 I can't produce it. He hasn't indicated that he
25 has no idea where e-mails are. What he has
220
1 indicated is that most of his e-mails were on
2 the BlackBerry and they get deleted.
3 MS. SMITH: That is false.
4 MR. PARIS: He said that he uses
5 his -- you know what, Your Honor, here is the
6 issue -- here is the defined issue with regard
7 to whether the defense -- and again, I -- I
8 don't even know what the witness is going to
9 ask. And I hate to argue about something that
10 may be moot. I don't know. But I have to
11 protect the record. For the plaintiffs to seek
12 to know the -- what the trial preparation, trial
13 strategy might have been, I don't know if that
14 was discussed a week before the trial is going
15 to start. Whether there has been testimony he
16 didn't advise the governing body or the Town
17 about this, I think, is inappropriate.
18 Okay. And that's where we're at
19 right now. We want to talk about documents, we
20 want to talk about other things, be happy to do
21 it. But I think for them to be seeking to
22 determine what Mr. Bevere may have discussed a
23 week before trial with various co-counsel or his
24 client -- and it's really Mr. Bevere's
25 discussion, I think, that's inappropriate.
221
1 JUDGE CURRAN: Miss Smith.
2 MS. SMITH: Your Honor, they
3 waived the privilege. Now they want to come in
4 here and assert the privilege that -- they can't
5 pick and choose. They waived the privilege.
6 JUDGE CURRAN: All right. They
7 waived the privilege as to advice and counsel,
8 correct?
9 MR. PARIS: We -- we waived the
10 privilege as to advice and counsel to the
11 governing body. This is Mr. Bevere discussing
12 with his client trial preparation. Okay. Mr.
13 Leanza has already indicated that he did not
14 advise the governing body of the Town or anyone
15 else with regard to trial strategy or how this
16 case was going to be conducted.
17 MS. SMITH: Mr. Leanza is involved
18 in every aspect of reviewing depositions,
19 reviewing motions, reviewing Interrogatory
20 answers, unless he is billing for things he is
21 not doing. His bills are replete with many,
22 many, many references in being very involved in
23 all aspects of this litigation. So he is
24 obviously formulating and participating in trial
25 strategy. And they don't want him to testify
222
1 about it. And they have waived the privilege.
2 So they have -- and so I don't understand how
3 they can pick and choose, we waive the privilege
4 except for conversations in which he
5 participates about trial strategy.
6 MR. PARIS: You know, you can look
7 at it another way, Your Honor. It's an
8 attorney-client privilege. Did he discuss this
9 matter with his client? No, it was Mr. Bevere
10 who was discussing it and Mr. Shahdanian,
11 apparently, who was discussing it, okay, with
12 their client. And I guess Mr. Leanza, as the
13 Town attorney, may have been.
14 MS. SMITH: Mayor Elwell was --
15 MR. PARIS: Mayor Elwell and Dave
16 Drumeler were at the meeting. But the bottom
17 line -- and the testimony has already been
18 given -- is he did not provide guidance or
19 counsel to the Town with regard to the
20 litigation. Mr. -- and he said it clearly. Mr.
21 Bevere was doing that. Was Mr. Bevere sending
22 deposition summaries in? Yes. Did he retain
23 them? No. Okay. He didn't even have them in
24 his file. He didn't even retain them. He has
25 already testified he did not provide guidance to
223
1 his -- to his client, the Town, in connection
2 with the trial.
3 JUDGE CURRAN: Okay. Hold on. If
4 he has testified that -- first of all, if you
5 have waived the privilege as to advice and
6 counsel provided to his client and if he has
7 testified that he did not advise or consult or
8 give opinions in regard to trial strategy, is
9 the question then what is this for which you
10 billed on April 7th?
11 MS. SMITH: He billed for
12 attending a very lengthy meeting on that date,
13 and I wanted to say -- I asked him what was
14 discussed.
15 MR. PARIS: You know what, Your
16 Honor, again, let me -- let me tell you what's
17 billed for that date, okay. And -- and
18 Miss Elwell -- Miss Smith wants to say it was a
19 lengthy meeting. Okay. Here are the entries.
20 Meeting with John Volley regarding sports
21 uniform bids; meeting with Mike Marra regarding
22 agenda and bid items; meeting with Dave Drumeler
23 for RSVP, counsel labor; meeting with Dan
24 Bevere, Mayor Elwell and regarding strategy and
25 witness preparation review, April 2, '08
224
1 correspondence from Joel Jacobson, Esquire
2 regarding nautical properties, total time six
3 hours. Now, how you can extrapolate from that
4 that it was a lengthy meeting with Mr. Bevere --
5 JUDGE CURRAN: Mr. Paris, I don't
6 mean to cut you off; but it is getting late for
7 you all. In regard to the deVries meeting, in
8 regard to the deVries strategy and witness prep,
9 how, then, could he have testified that he had
10 nothing whatever to do with trial preparation?
11 MR. PARIS: No, what he testified
12 to, he testified to that he did not prepare this
13 case for trial, that that was left to
14 Mr. Bevere. And he testified that he did not
15 provide any litigation assistance to the Mayor
16 and Council or the Town. In other words, that
17 once the lawsuit was filed, that was in the
18 hands of Mr. Shahdanian's firm, Chasan Leyner.
19 And that was in the hands of our firm. And that
20 was that. And he said I did not get involved in
21 the litigation thereafter, so he did not advise
22 his client with regard to litigation.
23 JUDGE CURRAN: So is the theory
24 that maybe he just sat there and has billed for
25 sitting there -- is billing for sitting there?
225
1 MR. PARIS: He very well may have
2 been. But the point being if he is sitting
3 there and Mr. Bevere is talking about trial
4 strategy, that doesn't mean that the
5 attorney-client privilege has been waived with
6 regard to Mr. Bevere in connection with the
7 litigation. Mr. Leanza was -- had already
8 indicated what he advised the governing body
9 about; and clearly, the litigation wasn't it.
10 JUDGE CURRAN: Okay. This is what
11 I'm going to do. I'm going to note the
12 objection. Miss Smith and Mr. Paris, if you can
13 craft a question or two which may not ever, you
14 know, see the light of day anyplace, in regard
15 to did you participate in the discussions that
16 day, because, clearly, Mr. Bevere was discussing
17 strategy and, clearly, there has been no waiver
18 there. So just so that there is as close to no
19 thought that there was something improper done
20 or improper testified to as we can get.
21 You can ask him limited
22 questions. He may say, "No, I just sat there
23 and listened." The fact that maybe he sat there
24 and listened and that he billed has nothing to
25 do with this case. That's a totally separate
226
1 issue.
2 MS. SMITH: Okay. Your Honor.
3 JUDGE CURRAN: Okay.
4 MS. SMITH: Yep.
5 JUDGE CURRAN: Thank you.
6 Bye-bye.
7 (Whereupon, the telephonic
8 conversation is ended.)
9 MR. BEVERE: Judge.
10 JUDGE CURRAN: We will go back, I
11 think.
12 MR. BEVERE: Judge.
13 JUDGE CURRAN: Yes, we are still
14 on the record.
15 MR. BEVERE: Okay.
16 MR. MULLIN: P-353.
17 JUDGE CURRAN: 353 in Evidence.
18 MR. MULLIN: That is the last one
19 we did, 353?
20 JUDGE CURRAN: Yes.
21 MR. MULLIN: Your Honor, these
22 will be duplicates but better copies. 357.
23 MR. BEVERE: Let me just get 357.
24 That's fine, Judge.
25 MR. MULLIN: 359.
227
1 JUDGE CURRAN: 357 in Evidence.
2 MR. BEVERE: 359, let me just take
3 a peak. 359, no objection.
4 JUDGE CURRAN: 359 in Evidence.
5 MR. MULLIN: I'm sorry?
6 JUDGE CURRAN: 360?
7 MR. MULLIN: 360.
8 MR. BEVERE: Okay.
9 JUDGE CURRAN: 360 in Evidence.
10 MR. MULLIN: 362.
11 MR. BEVERE: No objection.
12 MR. MULLIN: Did I do 361?
13 JUDGE CURRAN: Moved into
14 Evidence, 362.
15 MR. MULLIN: 361.
16 MR. BEVERE: No objection to 361
17 or 362.
18 JUDGE CURRAN: 361 is moved into
19 Evidence, thank you.
20 MR. MULLIN: 364.
21 MR. BEVERE: Let me just go to
22 364. No objection.
23 MR. MULLIN: 366.
24 JUDGE CURRAN: 364 in Evidence.
25 MR. BEVERE: No objection on 366.
228
1 JUDGE CURRAN: 366 in Evidence.
2 MR. MULLIN: 367.
3 MR. BEVERE: Duplicative but no
4 objection.
5 JUDGE CURRAN: 367 in Evidence.
6 MR. BEVERE: Let the record
7 reflect that I could recite these documents by
8 heart at this point in the trial.
9 JUDGE CURRAN: I definitely will,
10 Mr. Bevere.
11 MR. MULLIN: I'm getting close.
12 374.
13 MR. BEVERE: No objection.
14 JUDGE CURRAN: 374 in Evidence, no
15 objection.
16 MR. MULLIN: 375.
17 MR. BEVERE: 375, no -- well, let
18 me take a look.
19 MR. MULLIN: The Reinke report.
20 MR. BEVERE: Oh, yeah, both Reinke
21 reports. Yeah, no objection.
22 JUDGE CURRAN: 375 in Evidence.
23 MR. MULLIN: 376.
24 MR. BEVERE: No objection.
25 JUDGE CURRAN: In Evidence, no
229
1 objection.
2 MR. MULLIN: 377.
3 MR. BEVERE: No objection.
4 JUDGE CURRAN: In Evidence, no
5 objection.
6 MR. MULLIN: 385.
7 MR. BEVERE: No objection.
8 JUDGE CURRAN: In Evidence, no
9 objection.
10 MR. MULLIN: 388.
11 MR. BEVERE: No objection.
12 JUDGE CURRAN: In Evidence, no
13 objection.
14 MR. BEVERE: Although, again, I
15 believe it's duplicative but --
16 JUDGE CURRAN: Okay.
17 MR. MULLIN: Some of these are
18 much better copies. I will do 391.
19 MR. BEVERE: No objection.
20 Obviously, I'd actually prefer 391 to the
21 earlier version.
22 JUDGE CURRAN: 391 in Evidence.
23 MR. BEVERE: That's all I have as
24 documents.
25 MR. MULLIN: 390, of course, is
230
1 the tapes.
2 JUDGE CURRAN: 390 is the tapes.
3 MR. BEVERE: No objection to the
4 tapes.
5 JUDGE CURRAN: Thank you.
6 MR. MULLIN: I have just a handful
7 of D exhibits.
8 MR. BEVERE: Get my D binder.
9 JUDGE CURRAN: Mr. Bevere,
10 something fell.
11 MR. BEVERE: Yeah, my CD of the --
12 whatever we had.
13 JUDGE CURRAN: Oh.
14 MR. BEVERE: The voice mail of
15 Dennis Elwell.
16 MR. MULLIN: So D-29.
17 MR. BEVERE: I'm sorry, Judge, let
18 me just get my --
19 JUDGE CURRAN: Sure.
20 MR. BEVERE: -- D binder. D-29
21 you said?
22 MR. MULLIN: D-29.
23 MR. BEVERE: No objection, Judge;
24 but D-29 through 31 would be duplicative --
25 through D-32.
231
1 JUDGE CURRAN: Okay. D-29 will go
2 into Evidence, no objection.
3 MR. MULLIN: I'm not sure I saw
4 the July 5th, 2005 letter to Carter from Agudosi
5 indicating that the investigation was closed,
6 but I'll pull that out in a minute. D-92 has
7 the cc, so I want that one.
8 JUDGE CURRAN: D-92.
9 MR. BEVERE: Let me get to 92.
10 D-92 is no objection.
11 JUDGE CURRAN: That's 5/17/04?
12 MR. MULLIN: Yes.
13 JUDGE CURRAN: Thank you.
14 MR. BEVERE: 5/7.
15 JUDGE CURRAN: 5/7. 5/7/04.
16 MR. MULLIN: 5/7/04. D-92 is
17 5/7/04.
18 JUDGE CURRAN: Thank you. D-92 is
19 in Evidence, no objection.
20 MR. MULLIN: D-96 and D-97.
21 MR. BEVERE: No objection.
22 JUDGE CURRAN: D-96 and 7 in
23 Evidence, no objection.
24 MR. MULLIN: Do you have D-100
25 there?
232
1 MR. BEVERE: D-100 is the -- this
2 is the one we needed. This is the memo of
3 Captain Buckley to Detective Troyanski, which
4 includes the photograph. So D-100 and 101
5 should be the exhibits we move in on that.
6 JUDGE CURRAN: D-100 and?
7 MR. BEVERE: 101.
8 JUDGE CURRAN: D-101, thank you.
9 MR. MULLIN: There -- D-232.
10 MR. BEVERE: D-232, no objection.
11 JUDGE CURRAN: That's one where
12 Mr. --
13 MR. MULLIN: That's the
14 notification of the Attorney General's
15 investigation is over.
16 JUDGE CURRAN: Right.
17 MR. BEVERE: No objection.
18 JUDGE CURRAN: D-232 is in
19 Evidence.
20 MR. MULLIN: So D-265 to D-272,
21 the general order on bias investigations.
22 JUDGE CURRAN: 260?
23 MR. MULLIN: D-265 to D-272.
24 JUDGE CURRAN: 272?
25 MR. MULLIN: Yep.
233
1 JUDGE CURRAN: Thank you. Moved
2 into Evidence without objection.
3 MR. BEVERE: D-265 to 272,
4 duplicative, Your Honor; but you know --
5 MR. MULLIN: Maybe a better copy.
6 Looks like a better copy.
7 MR. BEVERE: Okay.
8 MR. MULLIN: How about D-308; do
9 you have that there?
10 MR. BEVERE: D-308 would be --
11 D-308 is the document, the letter from Mr.
12 Iacono to Mr. Carter and Mr. deVries, dated May
13 3rd, 2004. I have no objection, but I think
14 it's got in a couple of times.
15 MR. MULLIN: All right. The more
16 the merrier. So D-308. And --
17 MR. BEVERE: No objection.
18 MR. MULLIN: -- then do you have a
19 D number for the Carter voice mail to Elwell?
20 MR. BEVERE: Do I have a D number
21 for that?
22 MR. MULLIN: Yeah.
23 MR. BEVERE: I think it was your P
24 number.
25 MR. MULLIN: I think I moved that
234
1 in already, but I don't --
2 MR. BEVERE: I -- I think the
3 Carter voice mail -- I think the -- the CD, Your
4 Honor, of the Carter voice mail, I believe
5 that's what fell out of my binder.
6 MR. MULLIN: Yeah.
7 JUDGE CURRAN: Okay.
8 MR. BEVERE: And that's -- I'm
9 looking at a 392B.
10 MR. MULLIN: That sounds familiar.
11 MR. BEVERE: I'm assuming A is the
12 transcript of the recording.
13 MR. MULLIN: So I would move in
14 392A, the transcript that Carter read to the
15 jury; and B would be the tape, itself.
16 MR. BEVERE: No objection.
17 JUDGE CURRAN: D-392A and B.
18 MR. MULLIN: And that does it.
19 And the only other piece of
20 homework I have is to read into the record the
21 stipulation counsel provided, or simply have it
22 marked and to hand it Your Honor. Shall I read
23 it, Your Honor?
24 JUDGE CURRAN: I think we should
25 read it in, just --
235
1 MR. BEVERE: Let me look on with
2 Mr. Mullin, not that I don't trust him.
3 MR. MULLIN: Take this.
4 MR. BEVERE: Oh, thank you.
5 MR. MULLIN: So Mr. Bevere on
6 behalf of the Town on e-mail of May 28th, 2008
7 has 8:42 p.m. has stipulated the following. The
8 following individuals were employed by the
9 Township of Secaucus. Richard Johnson employed
10 by the Department of Public Works, hired
11 October 30th, 1989. He has been a laborer and
12 driver, same position throughout his tenure. I
13 understand that he -- so he has consistently
14 worked there and continues to work there today
15 since 10/30/89.
16 Harry Backiel is an employee of
17 the Department of Public Works who was hired
18 March 6th, '94 and has continuously worked there
19 through this trial, today. He is a laborer, has
20 been a laborer and driver during this entire
21 time period.
22 Charles F. Snyder, who we also
23 call, "Chuck Snyder, Sr.," was hired by the
24 department -- Secaucus Department of Public
25 Works October 7, 1974 as a laborer/driver. He
236
1 became a Department of Public Works foreman
2 January 20th, 1986. He became a supervisory
3 foreman, Streets Division, Department of Public
4 Works October 3, 1988. And on May 1, 2006 he
5 became assistant superintendent of the
6 Department of Public Works.
7 In Engine Company Number 2, which
8 is one of the companies housed in the North End
9 Firehouse, from 2003 to 2004 Charles T. Snyder,
10 who is known as Charles Snyder, Jr., Chuck
11 Snyder, Jr., was the captain. Daniel Snyder was
12 the first lieutenant, and Richard Johnson was
13 the second lieutenant. From 2005 until 2006
14 Daniel Snyder was the captain of the North End
15 Firehouse. Richard Snyder was the first
16 lieutenant.
17 MR. BEVERE: Richard Johnson.
18 MR. MULLIN: Richard Johnson was
19 the first lieutenant of the North End Firehouse.
20 Chris Snyder was the second lieutenant of the
21 North End Firehouse. From 2007 to 2008 Richard
22 Johnson was the captain of the North End
23 firehouse. Chris Snyder was the first
24 lieutenant. And Robert Morrison was the second
25 lieutenant.
237
1 And that's the stipulation that
2 has been agreed to by the Town of Secaucus in
3 this case.
4 JUDGE CURRAN: Thank you.
5 MR. MULLIN: I guess we should
6 have counsel's agreement on the record.
7 JUDGE CURRAN: Mr. Bevere.
8 MR. BEVERE: Yes, Your Honor.
9 JUDGE CURRAN: Thank you. And
10 that has been typed, and it will be marked and
11 sent in to the jury.
12 What markings do you want for it?
13 MR. MULLIN: Well, I'll do a court
14 exhibit, I guess, Your Honor, because it's
15 stipulation, whatever number we're up to.
16 JUDGE CURRAN: What is the next
17 number on the court exhibit, Miss Castelli?
18 MR. BEVERE: Judge, I have no
19 objection to a P exhibit.
20 MR. MULLIN: P exhibit is fine
21 with me too.
22 JUDGE CURRAN: Do it as a joint
23 exhibit.
24 MR. MULLIN: You know what, let's
25 just say P-400, to be safe -- I mean, wait a
238
1 minute. No, we have a P-400. Shall we will
2 call it 402? Thanks, John.
3 COURT CLERK: 406?
4 JUDGE CURRAN: 402.
5 (Whereupon, stipulation is
6 received and marked as Plaintiff's
7 Exhibit P-402 for Identification.)
8 JUDGE CURRAN: Miss Castelli, if
9 you can get us the clerk's list of all of the
10 items that have been moved into Evidence last
11 week and then today. And if you would make a
12 note next to the ones that had to be redacted,
13 then at least we will have the formal list; and
14 then they can go through and get rid of the
15 duplicates.
16 COURT CLERK: I have a list
17 already. I will add to it.
18 JUDGE CURRAN: What?
19 COURT CLERK: I have a list. I
20 will add to it.
21 JUDGE CURRAN: If you can make a
22 list and copy it, they can make a list what is
23 duplicative when we get to the defense side. Is
24 that fair, Mr. Bevere?
25 MR. BEVERE: Yes.
239
1 JUDGE CURRAN: Okay. Anything
2 else?
3 MR. MULLIN: That's all I have for
4 today, Your Honor.
5 JUDGE CURRAN: I think if it's
6 okay, we'll resume tomorrow at the usual time;
7 and then we'll be ready, hopefully, for
8 Dr. Goldwaser at?
9 MR. BEVERE: Can we have 9:30,
10 instead of 9 tomorrow?
11 JUDGE CURRAN: Yes. And
12 Dr. Goldwaser is coming at 1, hopefully?
13 MR. BEVERE: 11. Judge, let me do
14 one quick favor. Let me give my office a call
15 and make sure that we haven't heard from him,
16 you know; and then I'll be able to --
17 COURT CLERK: Should I go off the
18 record?
19 JUDGE CURRAN: Sure, thank you.
20 MR. MULLIN: Oh, just one thing on
21 the record first.
22 JUDGE CURRAN: Mr. Mullin.
23 MR. MULLIN: I would like some
24 time set as to when I will be notified about Mr.
25 Leanza's testimony or the testimony of anybody
240
1 else tomorrow. Again, I don't want to have any
2 dead time tomorrow.
3 JUDGE CURRAN: Mr. Bevere.
4 MR. BEVERE: Judge, I am -- I
5 am -- barring an emergency, I am planning on
6 proceeding with Dr. Goldwaser at 11. I guess we
7 have to wait and see what happens with the
8 deposition, which is still in progress. But
9 obviously, it would be our position that what we
10 would do is we would try and have Frank Leanza
11 on stand-by, so that when Dr. Goldwaser
12 finished, he could come down and testify.
13 JUDGE CURRAN: Where is Mr.
14 Leanza's office?
15 MR. BEVERE: I believe he is in
16 Hasbrouck Heights.
17 JUDGE CURRAN: Okay. Just so we
18 all know, they're tearing up every other street
19 in Jersey City. So if he is going to be coming
20 down after a call, he should just be called in
21 time. So --
22 MR. MULLIN: Can we say by 7:00
23 tonight counsel will advice me they are
24 calling Leanza?
25 JUDGE CURRAN: I think that's a
241
1 fair time.
2 MR. BEVERE: Yeah.
3 MR. MULLIN: Just an e-mail.
4 MR. BEVERE: That's fine.
5 JUDGE CURRAN: Thank you.
6 Anything else?
7 MR. MULLIN: That's it for today.
8 JUDGE CURRAN: That's it. Thank
9 you. We will go off the record. Thank you.
10 MR. MULLIN: Thank you, Your
11 Honor.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, the witness is
14 excused.)
15 (Whereupon, the proceeding is
16 concluded at 4:25 p.m.)
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1 C E R T I F I C A T E
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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.
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18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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