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 5
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Thursday, May 15, 2008
Commencing 1:40 p.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
2
1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
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3
1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 CHARLES SNYDER
5 By: Mr. Mullin 11 63
6 By: Mr. Bevere 46
7
8 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
9 DIRE
10 MATITYAHU MARCUS
11 By: Ms. Smith 74, 78
12 By: Mr. Paris 77 97
13
14 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
15 DIRE
16 CHARLES MUTSCHLER
17 By: Mr. Mullin 125
18 By: Mr. Bevere 129
19
20 E X H I B I T S
21 NUMBER DESCRIPTION PAGE
22 Court-1 Index card with Jury question 108
23 Court-2 Index card with Jury question 108
24 Court-3 Index card with Jury question 108
25 Court-4 Index card with Jury question 108
4
1 MS. SMITH: The way I understand
2 the law, Your Honor, although I -- I agree
3 it's -- it's not settled whether the collateral
4 source rule applies even to this case, the way I
5 understand it is that Your Honor molds the
6 verdict with regard to Social Security
7 disability in the event there is a plaintiffs
8 verdict at the end of the case; and usually we
9 submit a supplementary expert report on that
10 fact. And I just wanted to put that on the
11 record that that's the way I understand it.
12 Our expert is not prepared to
13 talk about offsetting Social Security on the
14 future loss, Social Security disability, which
15 is the only disability Mr. deVries collects at
16 this time. Dr. Marcus is only testifying about
17 Mr. deVries.
18 MR. PARIS: Your Honor.
19 JUDGE CURRAN: Mr. Paris.
20 MR. PARIS: And again, I don't
21 have a problem with that. I just wanted to put
22 on the record that in the event there is an
23 award, that the Court will obtain such a report
24 from the plaintiffs, we'll have an opportunity
25 to review it and then any potential verdict
5
1 would be molded accordingly. I just wanted to
2 put that on the record.
3 JUDGE CURRAN: That is usually the
4 way it is done. Usually what we do is go over
5 some, shall we call them, housekeeping issues at
6 the end. That would be one of them. Similar to
7 calculations on interest or whatever. As I
8 indicated, if I could add and subtract, I
9 probably wouldn't be an attorney. So I try very
10 hard not to do the math.
11 MS. SMITH: Okay. So we will not
12 be asking this expert to testify or talk about
13 at all the Social Security.
14 MR. PARIS: That's fine.
15 JUDGE CURRAN: Frankly, and also,
16 I think that's -- experts, as you know, I'm
17 sure, better than I, do it both ways. I think
18 it's better not to do it because the jury is
19 already confused with virtually, with all due
20 respect, any expert economist's -- then, when we
21 get into other issues --
22 How many jurors are here?
23 MS. HAWKS: The last three are
24 here.
25 (Whereupon, three jurors are
6
1 brought into the courtroom.)
2 JUDGE CURRAN: Are there any other
3 issues before we bring out the jury, now that we
4 have all of the jurors?
5 MR. MULLIN: No, we're okay.
6 JUDGE CURRAN: All right. Just so
7 that I am clear, the witnesses are going to
8 be Mr. Snyder, Mr. Mutschler and then the expert
9 witness; is that correct?
10 MR. MULLIN: That's correct, Your
11 Honor.
12 JUDGE CURRAN: Is there any
13 thought that we will not finish all of those
14 jurors -- all of those witnesses this afternoon
15 or is that we will finish early?
16 MR. MULLIN: It's possible --
17 JUDGE CURRAN: I am not trying to
18 limit anyone. I am just trying to get a handle
19 on the schedule.
20 MR. MULLIN: Your Honor, it's
21 possible to finish early. We had tried to work
22 together to work out the deposition testimony of
23 Miss Hjelm; and nobody's fault, we just found
24 out she was medically unavailable. And counsel
25 need -- I am not going to proceed with it
7
1 because counsel for defense deserves some more
2 time to look at all these dep designations. So
3 with Your Honor's permission, if we can end the
4 day with the economist testimony, we would like
5 to.
6 JUDGE CURRAN: No problem. And
7 there is no problem, I'm assuming, then, that we
8 will have the jury return at 9:00?
9 MR. MULLIN: 9:00.
10 MR. BEVERE: No problem.
11 JUDGE CURRAN: And before we go
12 off the record, did everything work out well
13 yesterday?
14 MR. PARIS: I don't know if you
15 saw the --
16 JUDGE CURRAN: Yes, I did. Yes, I
17 did.
18 MR. PARIS: We were there.
19 JUDGE CURRAN: All good?
20 MR. PARIS: But, no, it was a
21 great day. And I have to tell you, I appreciate
22 your considerations that I was able to --
23 JUDGE CURRAN: Not at all. You
24 are, as fellow attorneys are, deserve all of the
25 credit totally.
8
1 MR. PARIS: Thank you.
2 JUDGE CURRAN: Any -- anything
3 else that anybody wishes to comment on? If not,
4 just as I've already indicated, we'll bring the
5 jury back Monday at 9. Okay. And if anybody
6 has any changes, we'll take care of those.
7 We will bring the jurors out,
8 please.
9 Mr. Nulty, do you wish to put
10 your appearance on the record now or later?
11 MS. HAWKS: Jurors are
12 approaching.
13 JUDGE CURRAN: It's up to you; if
14 you want to sit at counsel table, you are able
15 to do that.
16 MR. NULTY: Whatever Your Honor
17 prefers.
18 JUDGE CURRAN: I think it's good
19 to be at counsel table. Thank you.
20 (Whereupon, the jury is brought
21 into the courtroom.)
22 JUDGE CURRAN: Good afternoon,
23 Ladies and Gentlemen. Thank you for being back
24 here so promptly. We are going to continue with
25 the plaintiffs' case. But I'm going to ask
9
1 counsel to put their appearances on the record
2 one more time, in case you have forgotten any
3 names while you were not in court. I see two
4 jurors shaking their head.
5 Okay. On behalf of the
6 plaintiff.
7 MR. MULLIN: Good -- good
8 afternoon, everybody. This is Neil Mullin and
9 Nancy Erika Smith.
10 JUDGE CURRAN: Thank you.
11 MR. BEVERE: Good afternoon,
12 Ladies and Gentlemen. Daniel Bevere and David
13 Paris on behalf of the Town of Secaucus.
14 JUDGE CURRAN: Thank you. And Mr.
15 Nulty.
16 MR. NULTY: Good afternoon, Your
17 Honor. John Nulty. I will be representing
18 witnesses Charles T. Snyder and Charles
19 Mutschler.
20 JUDGE CURRAN: Thank you. And
21 Mr. Mullin or Miss Smith, please call your next
22 witness.
23 MR. MULLIN: Your Honor, I would
24 call Charles T. Snyder, also known as Chuck
25 Snyder, Jr., to the stand.
10
1 JUDGE CURRAN: Thank you.
2 MS. HAWKS: Put your left hand on
3 the Bible. Raise your right hand, please.
4 C H A R L E S T. S N Y D E R is duly sworn by
5 a Notary Public of the State of New Jersey and
6 testifies under oath as follows:
7 MS. HAWKS: For the record, please
8 state your full name and spell your last.
9 THE WITNESS: Charles Snyder,
10 S-n-y-d-e-r.
11 JUDGE CURRAN: Thank you, sir.
12 Please be seated. Please move a little closer
13 to the microphone. Thank you.
14 You are under oath. All your
15 testimony must be truthful and accurate to the
16 best of your ability. Do you understand?
17 THE WITNESS: Yes.
18 JUDGE CURRAN: Thank you. Please
19 give us your address for the record.
20 THE WITNESS: 14 Kroll Terrace,
21 Secaucus, New Jersey.
22 JUDGE CURRAN: Thank you.
23 Your witness.
24 MR. MULLIN: Thank you. Thank
25 you, Your Honor.
11
1 DIRECT EXAMINATION BY MR. MULLIN:
2 Q Sir, you are the son of Charles
3 Snyder or Chuck Snyder, Sr., true?
4 A I would like to assert my Fifth Amendment
5 right.
6 Q When you say your "Fifth Amendment
7 right," you are asserting your Fifth Amendment
8 privilege not to incriminate yourself; is that
9 right?
10 A I would like to assert my Fifth Amendment
11 right.
12 Q On the night of -- on the early
13 morning hours of April 25th, 2004 you were a
14 captain of the Secaucus Fire Department in
15 charge of the firemen stationed at the North End
16 Firehouse on Paterson Plank Road, true?
17 A I would like to assert my Fifth Amendment
18 right.
19 Q You were appointed the position of
20 captain pursuant to the laws of Secaucus Charter
21 12, true?
22 A I would like to assert my Fifth Amendment
23 right.
24 Q As a captain of that firehouse you
25 had power and authority over the firemen
12
1 stationed at that North End Firehouse, true?
2 A I would like to assert my Fifth Amendment
3 right.
4 MR. BEVERE: Objection, Your
5 Honor. In what regard?
6 JUDGE CURRAN: Please rephrase.
7 Q Your job as captain was to lead
8 the men in the North End Firehouse, true?
9 A I would like --
10 MR. BEVERE: Objection. What
11 regard?
12 JUDGE CURRAN: All right. I will
13 ask you one last time to clarify it.
14 MR. MULLIN: I will move on, Your
15 Honor.
16 JUDGE CURRAN: Thank you.
17 BY MR. MULLIN:
18 Q You led the firemen in North End
19 Firehouse in a mob attack on the home rented by
20 Pete deVries and Tim Carter on April 25th, 2004,
21 true?
22 MR. BEVERE: Objection,
23 characterization.
24 JUDGE CURRAN: Noted on the
25 record. I'll allow the question. Thank you.
13
1 BY MR. MULLIN:
2 Q Answer the question, please.
3 A I would like to assert my Fifth Amendment
4 right.
5 Q You and others threatened to kill
6 Mr. Carter and Mr. deVries in that attack, true?
7 A I would like to assert my Fifth Amendment
8 right.
9 Q You and other firemen in your
10 presence said filthy and bias things that were
11 prejudicial to hom -- gay people, true?
12 MR. BEVERE: Objection,
13 argumentative.
14 JUDGE CURRAN: Noted on the
15 record.
16 BY MR. MULLIN:
17 Q You can answer.
18 A I would like to assert my Fifth Amendment
19 right.
20 Q You made crude and explicit sexual
21 references to my clients' sexual orientation,
22 and you shouted them loudly during that incident
23 at that -- on that night, true?
24 A I would like to assert my Fifth Amendment
25 right.
14
1 Q You heard other firemen in your
2 company shouting the same kind of things that
3 night and you took no steps to stop them, true?
4 A I would like to assert my Fifth Amendment
5 right.
6 Q You and other firemen from the
7 North End Firehouse under your command attempted
8 to tear down a fence separating the firehouse
9 parking lot from the backyard of Mr. deVries and
10 Mr. Carter, true?
11 A I would like to assert my Fifth Amendment
12 right.
13 Q The purpose of your attempt to
14 tear down that fence and the purpose of the
15 other firemen in your presence to tear down that
16 fence was to terrorize the plaintiffs and to
17 gain access to their property so that you and
18 your fellow firemen could harm them physically,
19 harm their dogs and damage their property, true?
20 MR. BEVERE: Objection, compound.
21 JUDGE CURRAN: Sustained.
22 BY MR. MULLIN:
23 Q The purpose of -- your purpose and
24 the purpose of the firemen in your company in
25 attempting to tear down that fence was to
15
1 terrorize the plaintiffs?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q And you wanted to terrorize them
5 because they were gay men?
6 A I would like to assert my Fifth Amendment
7 right.
8 Q An additional purpose of yours and
9 the firemen in your company in attempting to
10 tear down that fence was to gain access to their
11 property so that you could harm them physically,
12 true?
13 A I would like to assert --
14 MR. BEVERE: Objection,
15 speculation.
16 JUDGE CURRAN: Overruled.
17 BY MR. MULLIN:
18 Q And your purpose was to -- answer
19 that question that was overruled.
20 A I would like to assert my Fifth Amendment
21 right.
22 Q And your purpose in attempting to
23 tear down that fence was to harm their dogs,
24 true?
25 A I would like to assert my Fifth Amendment
16
1 right.
2 Q You had called their dogs "faggot
3 dogs," right?
4 A I would like to assert my Fifth Amendment
5 right.
6 Q And you said that night you would
7 not only kill them but their faggot dogs, as
8 well, true?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q And your purpose in tearing down
12 that fence was to come upon their property and
13 damage or destroy their property, true?
14 A I would like to assert my Fifth Amendment
15 right.
16 Q You took no steps to stop your
17 fellow firemen from engaging in the acts I've
18 been describing, true?
19 A I would like to assert my Fifth Amendment
20 right.
21 Q You and other firemen during this
22 incident ran around pounding on the sides of the
23 plaintiffs' house shouting, "Homo, homo, homo,"
24 true?
25 A I would like to assert my Fifth Amendment
17
1 right.
2 Q During this episode you heard and
3 saw a gunshot fired by one of the firefighters
4 near you?
5 MR. BEVERE: Objection.
6 JUDGE CURRAN: Basis.
7 MR. BEVERE: There is no evidence
8 in this case of a gunshot.
9 MR. MULLIN: That is -- I don't
10 know if he wants me to address this in front of
11 the jury, Your Honor.
12 JUDGE CURRAN: I don't think so.
13 Why don't we go to sidebar.
14 (Whereupon, the following sidebar
15 discussion is held.)
16 MR. MULLIN: As counsel actually
17 knows, as Mr. deVries actually knows --
18 MR. BEVERE: DeVries.
19 MS. SMITH: Bevere.
20 MR. MULLIN: I'm sorry. As Mr.
21 Bevere actually knows --
22 MR. BEVERE: That's all right.
23 MR. MULLIN: -- we will produce a
24 witness named Dee Bardini on Monday who will
25 testify, as she has testified -- as she said to
18
1 the police when they interviewed her few days
2 after the incident, as she said on the 911 tape,
3 she heard gunshots coming from the firehouse
4 area.
5 She is coming in to testify at
6 1:00 on Monday. That's what she testified to in
7 her deposition. That's what the police wrote
8 down in their report. And that's what's on the
9 911 tape. So there is evidence that gunshots
10 were fired that night at that place.
11 MR. BEVERE: What Miss Bardini
12 said to the police and what she said in her
13 deposition was that she heard something that
14 sounded like a gunshot. Never said it was a
15 gunshot. Something that sounded like a gunshot.
16 When we had her at her deposition, she said she
17 never would have been adamant it was a gunshot.
18 As a matter of fact, she doesn't know what a
19 gunshot sounds like because she never actually
20 heard a gunshot, except on TV. So I think it's
21 highly prejudicial at this point asking this
22 witness about gunshots.
23 MR. PARIS: Not only did he
24 mention gunshots, he indicated that -- if we
25 look at the question, he indicated you knew they
19
1 were firemen who shot a gun that night.
2 JUDGE CURRAN: That was what I
3 thought the objection was about.
4 MR. MULLIN: That's because who
5 was there? It came from the vicinity where the
6 firemen were.
7 JUDGE CURRAN: I understand that.
8 But I read --
9 MR. BEVERE: But Judge, it's --
10 MR. MULLIN: She didn't say she
11 thought it was gunshots. She said it sounded
12 like gunshots.
13 MR. PARIS: Or something.
14 MR. MULLIN: It's a reasonable
15 inference there was gunshots. If it sounds like
16 a gunshot, it's a reasonable inference it is a
17 gunshot.
18 JUDGE CURRAN: I remember going
19 over this because I was concerned when I first
20 read some of the papers. I had there was
21 nothing, there was everything. And based upon
22 my recollection, what I thought the objection
23 was going to be -- and if you'd be kind enough
24 to give me additional information on both
25 sides --
20
1 MR. BEVERE: Sure.
2 JUDGE CURRAN: -- as far as the
3 vicinity of the firehouse or by a firemen, I
4 thought that was the nature of the objection.
5 MR. BEVERE: Well, Judge, that was
6 part of it. But the overall -- it's -- to say
7 that there was a gunshot is highly prejudicial,
8 when there is going to be no evidence in this
9 case that a gun was fired.
10 MR. PARIS: And then, not only to
11 say there was a gunshot, but the question said
12 there was a gunshot by a fireman.
13 JUDGE CURRAN: That's my concern.
14 MR. PARIS: That's horrible.
15 JUDGE CURRAN: That was my
16 concern.
17 MR. MULLIN: It's not all based on
18 that. Let me read this 911 passage from Dee.
19 "Caller: There is some kind of
20 disturbance going on on Paterson Plank Road off
21 of Schopmann Drive. There's -- it sounded like
22 gunshots or something. There's some guy yelling
23 and screaming for somebody to come out of his
24 house."
25 "Dispatcher Bouille: Are you
21
1 talking about Paterson Plank Road or Schopmann
2 Drive?"
3 "Caller: Well, my window faces
4 both; and I'm like right behind the firehouse.
5 And there's screaming going on; and there's some
6 kind of craziness, like drunken disturbance
7 going on out there."
8 "Dispatcher Bouille: Out where,
9 though?"
10 "Caller: It's like right by the
11 firehouse, around Paterson Plank, near
12 Schopmann, right back there. I'm not sure if
13 it's -- if it's right on Schopmann or right on
14 Paterson Plank, but it's right up by that corner
15 there."
16 That is the corner of the
17 firehouse parking lot. She placed the gunshot
18 coming from that location.
19 JUDGE CURRAN: Okay.
20 MR. MULLIN: The only people
21 present there were the firemen and -- and the
22 women that -- they came in. But my clients
23 testified that the women had retreated into the
24 firehouse. So it's a fair inference that that's
25 where the gunshot came from.
22
1 JUDGE CURRAN: It's for the jury
2 to decide if there should be any inferences
3 drawn.
4 If you would, rephrase the
5 question and leave out the shot by a fireman or
6 reference to the firemen. I think it's a fair
7 question in regard to a gunshot. You know, when
8 this witness testifies, you can clarify what she
9 did or didn't hear or if she ever heard a
10 gunshot before. But if you will rephrase it --
11 MR. MULLIN: I will.
12 JUDGE CURRAN: -- to indicate
13 that.
14 MR. BEVERE: Thanks, Judge.
15 JUDGE CURRAN: But the objection
16 is preserved.
17 (Whereupon, sidebar discussion is
18 concluded.)
19 JUDGE CURRAN: So the question is
20 to be rephrased.
21 BY MR. MULLIN:
22 Q While you were standing there on
23 April -- in the early hours of April 25th, 2004
24 did you hear something that sounded like
25 gunshots?
23
1 A I would like to assert my Fifth Amendment
2 right.
3 Q While you, your father, Chuck
4 Snyder, Sr., and captain or ex-captain Charles
5 Mutschler were still standing in the firehouse
6 parking lot during the early hours of
7 April 25th, 2004 yelling obscene and profound
8 things at my clients, at the plaintiffs,
9 Secaucus Police Officer Ulrich arrived; isn't
10 that true?
11 A I would like to assert my Fifth Amendment
12 right.
13 Q You actually saw Officer Ulrich
14 first on the front porch of Mr. Carter and
15 Mr. deVries' house; but still you, your father
16 and Mutschler kept yelling profanities at the
17 plaintiffs, who were standing right near Ulrich,
18 true?
19 A I would like to assert my Fifth Amendment
20 right.
21 Q Police Officer Ulrich then came
22 down into the parking -- firehouse parking lot
23 and your father admitted to the officer in your
24 presence and in Mutschler's presence that all
25 three of you had, in fact, been yelling and
24
1 screaming at the residents of 988 Schopmann,
2 true?
3 A I would like to assert my Fifth Amendment
4 right.
5 Q That night you and the other
6 firemen at the North End Firehouse had come from
7 an official company party at which you and other
8 firemen drank heavily?
9 MR. BEVERE: Objection,
10 characterization.
11 JUDGE CURRAN: Sustained. Please
12 rephrase it.
13 BY MR. MULLIN:
14 Q That night you had come from an
15 official company party at which you and the
16 other firemen drank alcoholic beverages, true?
17 MR. BEVERE: Same objection.
18 JUDGE CURRAN: Overruled.
19 You can answer.
20 BY MR. MULLIN:
21 Q You can answer.
22 A I would like to assert my Fifth Amendment
23 right.
24 Q You, your father and Mutschler
25 were in the early morning hours of April 25th,
25
1 2004 -- strike that.
2 Officer Ulrich did not arrest you on
3 the -- during the early morning hours of
4 April 25th, 2004, for your behavior with respect
5 to deVries and Carter and their residence, true?
6 A I would like to assert my Fifth Amendment
7 right.
8 Q You are never arrested by the
9 Secaucus Police or any other authority for your
10 behavior in the early morning hours of
11 April 25th, 2004, true?
12 A I would like to assert my Fifth Amendment
13 right.
14 Q Immediately after this incident in
15 the early morning hours of April 25th you
16 refused to cooperate with the Secaucus Police
17 Department in their investigation, true?
18 A I would like to assert my Fifth Amendment
19 right.
20 Q Because of your presence at the
21 scene of the attack on the deVries and Carter
22 residence in the early morning hours of
23 April 25th, 2004 and because you refused to
24 cooperate with the police, Police Chief Corcoran
25 fired you from your job as a police dispatcher,
26
1 true?
2 MR. BEVERE: Objection
3 characterization.
4 JUDGE CURRAN: Overruled.
5 BY MR. MULLIN:
6 A I would like to assert my Fifth Amendment
7 right.
8 Q That was a job you had held for
9 about five years at that point in time, true?
10 A I would like to assert my Fifth Amendment
11 right.
12 Q So you actually were employed by
13 the Secaucus Police Department on the night the
14 Secaucus Police Department investigated whether
15 or not you had committed any crimes, true?
16 MR. BEVERE: Objection, legal
17 conclusion.
18 JUDGE CURRAN: Sustained.
19 Please rephrase.
20 BY MR. MULLIN:
21 Q You were -- you were still an
22 employee of the Secaucus Police Department on
23 April 25th, 2004, true?
24 MR. BEVERE: Objection as to
25 characterization, legal conclusion.
27
1 JUDGE CURRAN: Overruled.
2 BY MR. MULLIN:
3 A I would like to assert my Fifth Amendment
4 right.
5 Q The Fire Chief never fired or
6 suspended you because of your presence at or
7 role in the attack on the residence of Carter
8 and deVries in Secaucus, true?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q The Fire Chief never suspended or
12 terminated your employment as a fireman, as a
13 captain because of your refusal to cooperate
14 with the Secaucus Police during their
15 investigation during the April 25th until May
16 10th, 2004, true?
17 A I would like to assert my Fifth Amendment
18 right.
19 Q The Town Council never fired or
20 suspended you because of your presence at the
21 scene of the attack on the deVries and Carter
22 residence or your refusal to cooperate with the
23 police, true?
24 A I would like to assert my Fifth Amendment
25 right.
28
1 Q The Mayor of Secaucus never fired
2 or suspended you for such reasons, true?
3 MR. BEVERE: Objection, Your
4 Honor. Can we come to sidebar?
5 (Whereupon, the following sidebar
6 discussion is held.)
7 MR. BEVERE: Judge, the Secaucus
8 Code is clear the Mayor does not have the power
9 to fire and suspend firefighters. All right.
10 So there is not a -- a basis for the asking of
11 this question. The code is clear. The Mayor
12 does not have the power to do that.
13 MR. MULLIN: I think we should
14 look at the code, if you are going to say that.
15 I think we should take a break and look at the
16 code.
17 JUDGE CURRAN: Do you have a copy
18 with you?
19 MR. BEVERE: I have a copy of the
20 code.
21 JUDGE CURRAN: Which form of
22 government does it -- which form --
23 MR. BEVERE: Secaucus is a Mayor
24 and council.
25 JUDGE CURRAN: Mayor and council.
29
1 MR. BEVERE: Yeah. What he is
2 saying is the Mayor can just fire somebody, and
3 that's not the way it works.
4 MR. MULLIN: I am happy to take a
5 break and pull out the code. And I will word my
6 question according to the language in the code.
7 JUDGE CURRAN: We will do that.
8 We will send jury back inside. I don't have a
9 copy of the code, but I am assuming that you
10 have a copy.
11 MR. BEVERE: Judge, I am happy to
12 look at the code, although -- although, I think
13 that -- I think that if the question is
14 rephrased as, "the Mayor and council," I think
15 that cures the objection. But to suggest --
16 JUDGE CURRAN: That's why I asked
17 you what form of government. Does the Mayor
18 need the action of the council to fire, or can
19 the Mayor not even be involved in firing? I
20 don't know.
21 MR. BEVERE: You know what --
22 MR. MULLIN: I would be happy to
23 look at the code and make my question just
24 right.
25 MR. BEVERE: I know what the
30
1 answer is; but let's look at the code, so we can
2 be sure.
3 MR. PARIS: Your Honor, one other
4 thing, going back, there was never an
5 instruction to the jury with regard to that
6 question about a fireman shooting a gun. There
7 was no indication that that should be stricken
8 or --
9 JUDGE CURRAN: I'm sorry?
10 MR. PARIS: I don't believe there
11 was any ruling on the record with regard to that
12 question.
13 MR. BEVERE: That's right.
14 MR. PARIS: About a fireman
15 shooting a gun.
16 MR. MULLIN: I asked --
17 JUDGE CURRAN: There wasn't --
18 there was no request for a curative instruction
19 from the defense, as I understood it.
20 MR. PARIS: I don't even know that
21 there was a --
22 MR. BEVERE: Withdrawal of the
23 question.
24 MR. PARIS: There was no
25 withdrawal of the question.
31
1 JUDGE CURRAN: I am happy to do it
2 when -- I said when I started up was, "Sir, the
3 question is going to be rephrased."
4 MR. BEVERE: That's fine. That's
5 fine, Judge. We will just take two, and we will
6 look at the code.
7 (Whereupon, sidebar discussion is
8 concluded.)
9 JUDGE CURRAN: Ladies and
10 Gentlemen, if you would be kind enough to step
11 into the jury room. Thank you.
12 (Whereupon, the jury is excused.)
13 JUDGE CURRAN: Is there a copy of
14 the exhibit list?
15 MS. SMITH: P-53.
16 JUDGE CURRAN: Thank you.
17 MR. BEVERE: I have it, as well,
18 in mine; and I'll look on. And it should be
19 Section 11, I believe --
20 JUDGE CURRAN: Thank you.
21 MR. BEVERE: -- if I'm not
22 mistaken.
23 MR. MULLIN: Might be 10, 12
24 sections.
25 MR. BEVERE: Should be able to
32
1 give you a site, if you want to see it. It's
2 Section 12-10.
3 MR. MULLIN: 12-10.
4 JUDGE CURRAN: Thank you.
5 MR. BEVERE: Does Your Honor have
6 it?
7 JUDGE CURRAN: I do.
8 MR. BEVERE: Judge, while everyone
9 is reading, can I run into the hallway and fill
10 my water bottle?
11 JUDGE CURRAN: Of course. Of
12 course.
13 Miss Hawks, would you be kind
14 enough to see if you can locate the court clerk.
15 We are still on the record.
16 MS. HAWKS: Want me to stop the
17 tape?
18 JUDGE CURRAN: Yes, can you do
19 that?
20 MS. HAWKS: Yes.
21 (Whereupon, a discussion is held
22 off the record.)
23 MS. HAWKS: Go on the record?
24 JUDGE CURRAN: Yes.
25 Thank you very much. We are back
33
1 on the record. Mr. Bevere.
2 MR. MULLIN: Yes, Judge, I have
3 had the opportunity to look at Exhibit P-53,
4 which is the Fire Department Code, Chapter 12.
5 And Section 12-10D says, "In addition to the
6 disciplinary action authorized by Section 12-10
7 of this chapter, said committee of three fire
8 chiefs or the Mayor and Council" -- so its Mayor
9 and Council -- "may, under appropriate
10 circumstances, not inconsistent with this
11 chapter, employ the following disciplinary
12 actions: Oral or written reprimand, fine not to
13 exceed $500, suspension from duty, reduction in
14 grade, permanent expulsion from the department."
15 So I suppose I should word my
16 question, "the Mayor and Council," when I ask
17 him whether any action was taken, or "the Mayor
18 together with the Council."
19 And then Section 12-18, entitled
20 "Suspension Or Disbanding of Companies" says,
21 "The Mayor and Council of the Town of
22 Secaucus" -- "Mayor and Council of the Town of
23 Secaucus may at their sole discretion suspend or
24 disband any company from service if it is deemed
25 to be in the best interests of the Town."
34
1 So I -- I would word my questions
2 to be, "The Mayor, acting with the Town
3 Council," as opposed to just the Mayor or just
4 the Town Council.
5 JUDGE CURRAN: Thank you.
6 Mr. Bevere.
7 MR. BEVERE: I think that that
8 cures my objection, Judge. My -- my objection
9 was that the implication of the question was
10 that the Mayor somehow had some individual power
11 to -- to fire or suspend firefighters, which was
12 not consistent with my understanding of the
13 code. Mr. Mullin has agreed to rephrase the
14 question to say did the Mayor and Council take
15 any action, and I think that that cures the
16 objection.
17 JUDGE CURRAN: Thank you. When
18 the witness comes back and the jury is here I
19 will indicate to the witness that the question
20 is going to be rephrased. Any objection --
21 MR. BEVERE: No problem --
22 JUDGE CURRAN: -- to that?
23 MR. BEVERE: -- with that, Judge.
24 JUDGE CURRAN: Thank you very
25 much.
35
1 Please bring the jury out.
2 MS. HAWKS: Jurors are
3 approaching.
4 JUDGE CURRAN: Thank you.
5 (Whereupon, the jury is brought
6 into the courtroom.)
7 JUDGE CURRAN: Thank you, Ladies
8 and Gentlemen.
9 Will the witness please re-take
10 the witness stand.
11 Sir, I am obligated to remind you
12 that you are still under oath. Thank you.
13 Please be seated.
14 Sir, the last question is going
15 to be rephrased.
16 THE WITNESS: Okay.
17 JUDGE CURRAN: Please move a
18 little closer to the microphone.
19 Mr. Mullin.
20 MR. MULLIN: Yes, Your Honor, I
21 will rephrase it. I am just going to ask a
22 backup -- a foundational question first.
23 JUDGE CURRAN: Thank you.
24 BY MR. MULLIN:
25 Q Sir, you are currently the
36
1 battalion chief of the Secaucus Fire Department?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q In the Secaucus Code the phrase is
5 used, "the three chiefs"; and that means the
6 Fire Chief, the deputy chief and the battalion
7 chief, the position you hold, true?
8 A I would like to assert my Fifth Amendment
9 right.
10 Q Because you have been appointed to
11 the position of battalion chief, you are
12 automatically in line to become the deputy chief
13 of the Town of Secaucus, true?
14 MR. BEVERE: Objection as to
15 characterization of "appointed," Your Honor.
16 Can we have a sidebar?
17 JUDGE CURRAN: Sure.
18 (Whereupon, the following sidebar
19 discussion is held.)
20 MR. BEVERE: Judge, the battalion
21 chief is an elected position within amongst the
22 fire companies. The Mayor and Council have the
23 authority to override a election.
24 JUDGE CURRAN: An election, what
25 does it take to override it?
37
1 MR. BEVERE: It's a vote --
2 JUDGE CURRAN: I don't want to
3 encourage --
4 MR. BEVERE: I think it's a vote
5 of the Mayor and Council on good cause shown.
6 But the Mayor and Council don't appoint the
7 battalion chief; it's an elected position. I
8 think Mr. Mullin said you were elected --
9 MR. PARIS: Appointed.
10 MR. BEVERE: He said you are
11 appointed.
12 JUDGE CURRAN: What is the
13 function of the Mayor and Council? Do they --
14 if an individual is elected and the Mayor and
15 Council do not confirm it, what happens?
16 MR. BEVERE: Then it goes back for
17 another election.
18 MR. MULLIN: Here is the statute,
19 the ordinance.
20 MR. BEVERE: They don't promote
21 someone to -- to battalion chief.
22 MR. MULLIN: Section 12-4 of the
23 Secaucus Code is a section entitled "Terms of
24 Office, Election of Battalion Chief Officer,
25 Fire Chief and Deputy Chief."
38
1 Section B-2 begins with a
2 discussion of when the election by the firehouse
3 shall take place by secret ballot and person --
4 now I am going to quote it. "The person
5 receiving the greatest number of votes for
6 battalion chief shall be declared elected,
7 subject to the approval of the Mayor and
8 Council. And the head of committee shall report
9 the results to the Mayor and Council at the
10 first meeting thereafter. Such person shall be
11 confirmed by the Mayor and Council, or Mayor and
12 Council may choose for good cause not to confirm
13 such person. Whereupon, a new election will be
14 held."
15 So it's done with the -- can only
16 take effect with the approval of the Mayor and
17 Town Council. It has no effect at all.
18 MR. BEVERE: But the implication
19 of the question, Judge, the Mayor and Council
20 somehow picked this man out and said, "We are
21 going to make you the battalion chief."
22 JUDGE CURRAN: I would appreciate
23 it if you would rephrase it. And rather than
24 use the word "approval," I believe you have to
25 use "confirm" because someone may vote to
39
1 confirm something, even though they don't
2 approve it. I believe they have to confirm it.
3 Do they not?
4 MR. MULLIN: Well, Your Honor, can
5 I use -- the word "approval" is what's used
6 here.
7 JUDGE CURRAN: Is it?
8 MR. MULLIN: The objection is that
9 I used the word "appointed."
10 MR. BEVERE: Right.
11 MR. MULLIN: So I understand --
12 MR. BEVERE: The objection is
13 "appointed."
14 MR. MULLIN: -- I can reword it to
15 talk about the -- I will use the statutory term,
16 Your Honor.
17 JUDGE CURRAN: Exactly, thank you.
18 MR. BEVERE: Thank you, Judge.
19 (Whereupon, sidebar discussion is
20 concluded.)
21 BY MR. MULLIN:
22 Q In your -- you were elected by
23 fellow firefighters to become the battalion
24 chief of the Secaucus Fire Department, true?
25 A I would like to assert my Fifth Amendment
40
1 right.
2 Q But that vote selecting you as
3 battalion chief would have had no effect if it
4 had not been approved by the Mayor and Council
5 of Secaucus, true?
6 MR. BEVERE: Objection. Calls for
7 legal conclusion by this witness.
8 JUDGE CURRAN: Overruled.
9 BY MR. MULLIN:
10 A I would like to assert my Fifth Amendment
11 right.
12 Q And in fact, the Mayor and Council
13 of Secaucus approved you as battalion chief and
14 you -- true?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q And you took the position of
18 battalion chief, which you still hold today, on
19 or about January 1st, 2007, correct?
20 A I would like to assert my Fifth Amendment
21 right.
22 Q As a result of holding the
23 position of battalion chief, in two years you
24 will automatically ascend to the position of
25 deputy chief of the Secaucus Fire Department,
41
1 true?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q And two years after that, because
5 you hold the position of deputy chief, you will
6 automatically become the Chief of the entire
7 Secaucus Fire Department, true?
8 A I would like to assert my Fifth Amendment
9 right.
10 Q Shortly after the incident
11 involving the attack on the plaintiffs' home of
12 April 25th, 2004 you signed the petition
13 addressed directly to the Fire Chief and copied
14 to the Mayor and others threatening to resign if
15 the Town Council and Mayor did not, by May 2nd,
16 2004, reopen the firehouse for all purposes,
17 including social purpose, true?
18 A I would like to assert my Fifth Amendment
19 right.
20 Q And the Town Council, Mayor and
21 Town Administrator gave in to your demands,
22 true?
23 A I would like to assert my Fifth Amendment
24 right.
25 Q The firehouse reopened on May 1st,
42
1 2004, true?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q For the next six months you and
5 firefighters under your command harassed and
6 tormented the plaintiffs for the purpose of
7 driving them out of the Town of Secaucus, true?
8 A I would like to assert my Fifth Amendment
9 right.
10 Q You and firemen under your command
11 did this, among other -- among other ways, by
12 yelling "Faggot" and "Homo" at or near them, by
13 shining the headlights of your automobiles into
14 their windows for hours at late -- at late
15 hours, by glaring and staring at them, by
16 congregating under their windows and speaking
17 loudly?
18 MR. BEVERE: Objection, compound.
19 JUDGE CURRAN: Compound,
20 sustained.
21 BY MR. MULLIN:
22 Q For the next six months you and
23 firefighters under your command harassed and
24 tormented the plaintiffs by yelling "Faggot" at
25 them or near them, true?
43
1 A I would like to assert my Fifth Amendment
2 right.
3 Q And to the same end you and
4 firefighters under your command yelled "Homo" at
5 them or near them, true?
6 A I would like to assert my Fifth Amendment
7 right.
8 Q And for the purposes of driving
9 them out of the Town of Secaucus you and
10 firefighters under your command shone the
11 headlights of your automobiles into their
12 windows late at night for hours, true?
13 A I would like to assert my Fifth Amendment
14 right.
15 Q And you and firefighters under
16 your command glared and stared at them when they
17 appeared on the street, true?
18 A I would like to assert my Fifth Amendment
19 right.
20 Q And you and fire fighters under
21 you at the North End Firehouse congregated under
22 their windows and spoke loudly for the purpose
23 of harassing and disturbing them, true?
24 A I would like to assert my Fifth Amendment
25 right.
44
1 Q On the night of the incident, of
2 the early morning hours of April 25th, 2004 you
3 and other firemen screamed, among other things,
4 that the plaintiffs should get out of Secaucus
5 because they did not belong there, true?
6 A I would like to assert my Fifth Amendment
7 right.
8 Q During that attack on the early
9 morning hours of April 25th you and firemen
10 under your command admitted to having thrown
11 condoms on the plaintiffs' back porch in
12 previous weeks and months, true?
13 A I would like to assert my Fifth Amendment
14 right.
15 Q And you and other firemen asked
16 the plaintiffs -- screamed at them asking them
17 if you -- if they wanted some more of your
18 semen, true.
19 A I would like to assert my Fifth Amendment
20 right.
21 Q And you used crude language to ask
22 that question, didn't you, sir?
23 A I would like to assert my Fifth Amendment
24 right.
25 Q And you did that because my
45
1 clients are gay men, true?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q On the late night -- on a late
5 night close to Christmas 2001 you raced your car
6 into the parking house fire lot intentionally
7 aiming it at Tim Carter and you squealed to a
8 stop within inches of his body, true?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q You did that in order to terrorize
12 Tim Carter and drive him from the Town of
13 Secaucus because he and his partner are gay men?
14 A I would like to assert my Fifth Amendment
15 right.
16 Q You were present when your father,
17 Chuck Snyder, Sr., stated to high-level Town
18 officials and to Sergeant Amodeo, "Who are you
19 going to believe, us or those cock-sucking
20 faggots?"
21 A I would like to assert my Fifth Amendment
22 right.
23 MR. MULLIN: No further questions.
24 JUDGE CURRAN: Mr. Bevere.
25 MR. BEVERE: Thank you, Your
46
1 Honor.
2 CROSS EXAMINATION BY MR. BEVERE:
3 Q Mr. Snyder, you were not working
4 that night, correct?
5 A I would like to assert my Fifth Amendment
6 right.
7 Q In fact, you weren't even on-duty
8 that night, correct?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q Mr. Snyder, the members of Engine
12 Company Number 2 and their wives and girlfriends
13 were having a party, correct?
14 A I would like to assert my Fifth Amendment
15 right.
16 Q The Town did not organize that
17 party, correct?
18 A I would like to assert my Fifth Amendment
19 right.
20 Q The Town did not pay for that
21 party, correct?
22 A I would like to assert my Fifth Amendment
23 right.
24 Q That party, Mr. Snyder, started at
25 a restaurant in Cliffside Park, correct?
47
1 A I would like to assert my Fifth Amendment
2 right.
3 Q In fact, you and the other guests
4 went to that restaurant by way of a bus,
5 correct?
6 A I would like to assert my Fifth Amendment
7 right.
8 Q And you took that bus so that
9 people wouldn't drink and drive, correct?
10 A I would like to assert my Fifth Amendment
11 right.
12 Q And when you came back to the
13 firehouse after the restaurant in Cliffside
14 Park, the purpose wasn't to work, correct?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q The purpose was to have -- was to
18 continue with your party, correct?
19 A I would like to assert my Fifth Amendment
20 right.
21 Q And that was a party for which you
22 had to obtain permission from the Town to use
23 the firehouse, correct?
24 A I would like to assert my Fifth Amendment
25 right.
48
1 Q And that would have been the same
2 permission that would have been required if any
3 private citizen in Town who wanted to use that
4 firehouse for a party, correct?
5 A I would like to assert my Fifth Amendment
6 right.
7 Q A wedding, a birthday party or
8 christening, correct?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q And in fact, the firehouse is
12 often reserved for private parties, correct?
13 A I would like to assert my Fifth Amendment
14 right.
15 Q Now, Mr. Snyder, you were drinking
16 that night, correct?
17 A I would like to assert my Fifth Amendment
18 right.
19 Q You were not permitted to respond
20 to any fire calls that night, correct?
21 A I would like to assert my Fifth Amendment
22 right.
23 Q And the police came to the
24 firehouse that night, correct?
25 A I would like to assert my Fifth Amendment
49
1 right.
2 Q Two patrol officers came, correct?
3 A I would like to assert my Fifth Amendment
4 right.
5 Q And when the officers arrived,
6 they asked you what happened, correct?
7 A I would like to assert my Fifth Amendment
8 right.
9 Q And you told the police officers
10 that they, being the plaintiffs, yelled and that
11 you guys yelled back; is that what you told the
12 police?
13 A I would like to assert my Fifth Amendment
14 right.
15 Q You did not yell any antigay
16 remarks to the plaintiffs in the presence of the
17 police officers, correct?
18 A I would like to assert my Fifth Amendment
19 right.
20 Q You did not threaten the
21 plaintiffs' lives in the presence of the police
22 officers, correct?
23 A I would like to assert my Fifth Amendment
24 right.
25 Q You did not threaten the lives of
50
1 the plaintiffs' dogs in the presence in the
2 police officers, correct?
3 A I would like to assert my Fifth Amendment
4 right.
5 Q And the police told you to stay at
6 the firehouse while they talked to the
7 plaintiffs to get their side of the story,
8 correct?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q Now, at some point a police
12 supervisor arrived, correct?
13 A I would like to assert my Fifth Amendment
14 right.
15 Q And you were told to go into the
16 firehouse, correct?
17 A I would like to assert my Fifth Amendment
18 right.
19 Q And you did as you were
20 instructed, correct?
21 A I would like to assert my Fifth Amendment
22 right.
23 Q And you were told to give your
24 name and address, correct?
25 A I would like to assert my Fifth Amendment
51
1 right.
2 Q And you gave your name and
3 address, correct?
4 A I would like to assert my Fifth Amendment
5 right.
6 Q And the supervisors who -- came
7 into the firehouse, correct?
8 A I would like to assert my Fifth Amendment
9 right.
10 Q And he told you to leave, correct?
11 A I would like to assert my Fifth Amendment
12 right.
13 Q And you objected -- and you
14 objected to having to leave, correct?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q You have denied having done
18 anything wrong to the police, correct?
19 A I would like to assert my Fifth Amendment
20 right.
21 Q You deny that you yelled anything
22 antigay to the plaintiffs, correct?
23 A I would like to assert my Fifth Amendment
24 right.
25 Q And you denied threatening the
52
1 plaintiffs' lives or the lives of their dogs,
2 correct?
3 A I would like to assert my Fifth Amendment
4 right.
5 Q The sergeant ordered you to leave,
6 anyway?
7 A I would like to assert my Fifth Amendment
8 right.
9 Q And you knew that sergeant,
10 correct?
11 A I would like to assert my Fifth Amendment
12 right.
13 Q Because you had been a Police
14 dispatcher, so you knew him?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q And you tried to negotiate with
18 that sergeant to stay in the firehouse, correct?
19 A I would like to assert my Fifth Amendment
20 right.
21 Q And that sergeant told you to
22 leave, anyway, correct? He ordered you out?
23 A I would like to assert my Fifth Amendment
24 right.
25 Q And you left as you were ordered
53
1 to do, correct?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q And the sergeant closed the
5 firehouse down, correct?
6 A I would like to assert my Fifth Amendment
7 right.
8 Q And made everyone leave, correct?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q And when that sergeant left the
12 firehouse that night, he took with him a barrel
13 half full of empty alcoholic beverages bottles,
14 correct?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q And he put it in his police
18 vehicle, correct?
19 A I would like to assert my Fifth Amendment
20 right.
21 Q And then the police made everyone
22 leave the area, correct?
23 A I would like to assert my Fifth Amendment
24 right.
25 Q And the police posted a guard
54
1 outside the plaintiffs' home, correct?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q You went to a meeting at Town Hall
5 at 10:00 in the morning -- 10:00 the same
6 morning of the incident, correct?
7 A I would like to assert my Fifth Amendment
8 right.
9 Q The Mayor was there, correct?
10 A I would like to assert my Fifth Amendment
11 right.
12 Q The Deputy Mayor was there,
13 correct?
14 A I would like to assert my Fifth Amendment
15 right.
16 Q And Police Chief was there,
17 correct?
18 A I would like to assert my Fifth Amendment
19 right.
20 Q And the three fire chiefs were
21 there, correct?
22 A I would like to assert my Fifth Amendment
23 right.
24 Q The Police Chief told you what the
25 plaintiffs had said happened that night,
55
1 correct?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q And you denied it, correct?
5 A I would like to assert my Fifth Amendment
6 right.
7 Q But the police told you at that
8 time allegations were going to be investigated
9 as a bias crime, correct?
10 A I would like to assert my Fifth Amendment
11 right.
12 Q And that the Hudson County
13 Prosecutor's Office was going to be notified of
14 the allegation, correct?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q And the Fire Chief told you the
18 firehouse was going to be closed down for
19 anything other than emergency response while the
20 criminal investigation was going on, correct?
21 A I would like to assert my Fifth Amendment
22 right.
23 Q And you objected to that, correct?
24 A I would like to assert my Fifth Amendment
25 right.
56
1 Q You denied having committed any
2 crime, correct?
3 A I would like to assert my Fifth Amendment
4 right.
5 Q And the Fire Chief shut your
6 firehouse down anyway, correct?
7 A I would like to assert my Fifth Amendment
8 right.
9 Q And you and the other members of
10 Engine 2 wrote a letter to the Fire Chief five
11 days later, correct?
12 A I would like to assert my Fifth Amendment
13 right.
14 Q The members of the Engine Company
15 Number 2 complained that it was being -- as a
16 group that it was being punished for something
17 that was only an allegation, correct?
18 A I would like to assert my Fifth Amendment
19 right.
20 Q Members of Engine Company 2 signed
21 that letter so that they wouldn't be made to
22 look guilty in an incident that is nothing more
23 than an allegation; is that correct?
24 A I would like to assert my Fifth Amendment
25 right.
57
1 Q The company complained it was
2 being treated unfairly, correct?
3 A I would like to assert my Fifth Amendment
4 right.
5 Q And that it was not getting the
6 proper respect and appreciation one would get
7 for volunteering their service, risking their
8 lives and spending countless hours away from
9 their families, correct?
10 A I would like to assert my Fifth Amendment
11 right.
12 Q And entire company threatened to
13 resign if the quarters were not reopened,
14 correct?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q And the company threatened to hire
18 a lawyer, take legal action against the Town,
19 correct?
20 A I would like to assert my Fifth Amendment
21 right.
22 Q Now, Mr. Snyder, when the
23 police -- when the Fire Chief agreed to reopen
24 the fire quarters, he told you there were
25 certain conditions, correct?
58
1 A I would like to assert my Fifth Amendment
2 right.
3 Q And one of those conditions there
4 was to be no contact between anyone in the
5 firehouse and the plaintiffs next door, correct?
6 A I would like to assert my Fifth Amendment
7 right.
8 Q And you did as you were instructed
9 by the Chief -- by the Fire Chief, correct?
10 A I would like to assert my Fifth Amendment
11 right.
12 Q You never had any further contact
13 with the plaintiffs next door, correct?
14 A I would like to assert my Fifth Amendment
15 right.
16 Q And you are not aware of any other
17 members of Engine Company Number 2 having any
18 contact with the plaintiffs next door, correct?
19 A I would like to assert my Fifth Amendment
20 right.
21 Q Now, when the quarters were
22 reopened on May 1st, you were aware that the
23 police were investigating, correct?
24 A I would like to assert my Fifth Amendment
25 right.
59
1 Q You were aware that the police
2 were watching the plaintiffs' house, correct?
3 MR. MULLIN: Objection, no
4 foundation.
5 MR. BEVERE: I will come to
6 sidebar, Judge.
7 JUDGE CURRAN: Want to go to
8 sidebar?
9 MR. MULLIN: No, just want a
10 foundational question how he was aware.
11 JUDGE CURRAN: All right. I am
12 going to overrule it. I will note it on the --
13 on the record.
14 You may answer.
15 BY MR. BEVERE:
16 A I would like to assert my Fifth Amendment
17 right.
18 Q Now, Mr. Snyder, you were aware
19 that the Hudson County Prosecutor's Office had
20 been notified of the incident, correct?
21 MR. MULLIN: Objection, no
22 foundation.
23 Q And that's because you were
24 advised --
25 MR. MULLIN: Objection.
60
1 Q -- by Chief --
2 MR. MULLIN: Hold it.
3 JUDGE CURRAN: If you would
4 rephrase.
5 BY MR. BEVERE:
6 Q Mr. Snyder, were you aware that
7 the Hudson County Prosecutor's Office had been
8 notified of the incident?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q You were told by Police Chief
12 Corcoran in that meeting on Sunday, April 25th
13 that the Hudson County Prosecutor's Office was
14 being notified of incident, correct?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q And some point you became aware
18 that the Attorney General's Office was
19 investigating, correct?
20 A I would like to assert my Fifth Amendment
21 right.
22 Q Now, Mr. Snyder, within days of
23 this incident you were contacted by the Secaucus
24 Police Department and you were asked to come in
25 and give a statement, correct?
61
1 A I would like to assert my Fifth Amendment
2 right.
3 Q And you refused to give that
4 statement, correct?
5 A I would like to assert my Fifth Amendment
6 right.
7 Q You refused to speak to the
8 police, correct?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q After you refused to speak to the
12 police you received a memo from Police Chief
13 Corcoran, the Secaucus Police Department,
14 correct?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q And at the time you had been a per
18 diem civilian dispatcher for the Secaucus Police
19 Department, correct?
20 A I would like to assert my Fifth Amendment
21 right.
22 Q And the Police Chief told you in
23 that memo that you would not be assigned any
24 more hours as a Police dispatcher until the
25 criminal investigation was completed and your
62
1 role in the matter was resolved, correct?
2 A I would like to assert my Fifth Amendment
3 right.
4 Q Now, Mr. Snyder, you were
5 contacted by the Attorney General's Office,
6 correct?
7 A I would like to assert my Fifth Amendment
8 right.
9 Q And they asked you to speak to
10 them, correct?
11 A I would like to assert my Fifth Amendment
12 right.
13 Q And you refused to speak to the
14 Attorney General's Office, correct?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q And Mr. Snyder, you are asserting
18 your Fifth Amendment privilege here today?
19 A Yes.
20 Q Now, Mr. Snyder, you were not
21 employed by the Town of Secaucus, correct?
22 A I would like to assert my Fifth Amendment
23 right.
24 MR. MULLIN: Your Honor, I will
25 move to strike that. It called for a legal
63
1 conclusion. Move to strike that.
2 JUDGE CURRAN: Sustained. You can
3 rephrase, if you'd like.
4 BY MR. BEVERE:
5 Q Mr. Snyder, do you work for Town
6 of Secaucus?
7 A I would like to assert my Fifth Amendment
8 right.
9 Q Do you hold any position in the
10 Town of Secaucus other than battalion chief?
11 A I would like to assert my Fifth Amendment
12 right.
13 MR. BEVERE: I have no further
14 questions, Your Honor.
15 JUDGE CURRAN: Mr. Mullin?
16 REDIRECT EXAMINATION BY MR. MULLIN:
17 Q You -- you report to the deputy
18 chief of the Town of Secaucus as battalion
19 chief, true?
20 A I would like to assert my Fifth Amendment
21 right.
22 Q And the deputy chief reports to
23 the Fire Chief, true?
24 A I would like to assert my Fifth Amendment
25 right.
64
1 Q And the Fire Chief reports to the
2 Mayor, doesn't he?
3 A I would like to assert my Fifth Amendment
4 right.
5 Q That party of April 25th, 2004,
6 there is a document signed by the Chief or on
7 behalf of the Fire Chief saying that it was an
8 official company function; isn't that true?
9 MR. BEVERE: Objection as to
10 characterization. And it calls for a legal
11 conclusion.
12 MR. MULLIN: I will get the
13 document, Judge.
14 JUDGE CURRAN: The question -- I
15 will wait until you get a copy.
16 MR. MULLIN: I will get the
17 document.
18 JUDGE CURRAN: The question was
19 does it say, not was --
20 BY MR. MULLIN:
21 Q Somebody was to come into this
22 court and say that the party of April -- that
23 started April 24th and went over to the wee
24 hours of April 25th was not a company function,
25 well, that would be a false statement, wouldn't
65
1 it, sir, if somebody were to come in here and
2 say that?
3 MR. BEVERE: Objection, Your
4 Honor, because the question initially called for
5 an official company function. That was the
6 question.
7 JUDGE CURRAN: Sustained. You can
8 rephrase, if you wish.
9 Please identify --
10 BY MR. MULLIN:
11 Q I am showing you P-117.
12 JUDGE CURRAN: Thank you.
13 Q The party of April 24th and 25th,
14 2004 was a company function, true?
15 A I would like to assert my Fifth Amendment
16 right.
17 Q It was a company night out, true?
18 A I would like to assert my Fifth Amendment
19 right.
20 Q It was approved by a captain of
21 the firehouse, true?
22 A I would like to assert my Fifth Amendment
23 right.
24 Q It was approved by a chief, by the
25 Chief of the Fire Department, true?
66
1 A I would like to assert my Fifth Amendment
2 right.
3 Q And all the six months followed
4 this attack on the plaintiffs' home in the
5 earlier morning hours of April 25th, all the six
6 months the firemen were on-duty some 18 hours a
7 day at that firehouse, weren't they?
8 A I would like to assert my Fifth Amendment
9 right.
10 Q So when they shone their lights
11 into my clients' house at night for hours, well,
12 they were on-duty, weren't they?
13 MR. BEVERE: Objection,
14 foundation.
15 Q Do you know whether they were
16 on-duty?
17 A I would like to assert my Fifth Amendment
18 right.
19 Q And just their mere presence, the
20 mere presence of firemen in that parking lot
21 after that attack on my clients you knew was
22 terrorizing to my clients, didn't you? Didn't
23 you know that, sir?
24 MR. BEVERE: Objection.
25 JUDGE CURRAN: Basis?
67
1 MR. MULLIN: I am asking if he
2 knows that.
3 JUDGE CURRAN: No, no.
4 MR. BEVERE: I'm sorry, can I hear
5 the question again?
6 MR. MULLIN: I will have it read
7 back.
8 (Whereupon, the requested portion
9 is read back by the reporter as follows:
10 "QUESTION: And just their mere
11 presence, the mere presence of firemen in
12 that parking lot after that attack on my
13 clients you knew was terrorizing to my
14 clients, didn't you? Didn't you know
15 that, sir?")
16 MR. BEVERE: Objection as to what
17 was in the Plaintiffs' mind, Your Honor.
18 JUDGE CURRAN: Sustained. You may
19 rephrase.
20 BY MR. MULLIN:
21 Q You and other firemen, while
22 on-duty, following the six months of this attack
23 placed yourself under my clients' windows for
24 the purpose of terrorizing them simply with the
25 sound of your voice and your presence, true?
68
1 A I would like to assert my Fifth Amendment
2 right.
3 Q And you did that for six months,
4 true.
5 A I would like to assert my Fifth Amendment
6 right.
7 Q And you succeeded in driving them
8 out of the Town of Secaucus, true?
9 A I would like to assert my Fifth Amendment
10 right.
11 Q After you refused to speak to the
12 police in the investigation that immediately
13 followed the attack on the plaintiffs' residence
14 and after Chief Corcoran of the Police
15 Department fired you as dispatcher, the Mayor
16 and Town Council approved you to become the
17 battalion chief; isn't that true?
18 MR. BEVERE: Objection as to the
19 term "fired by the Police Chief."
20 MR. MULLIN: Well, we can get that
21 document out, Your Honor.
22 JUDGE CURRAN: You can rephrase
23 it, if you'd like.
24 MR. MULLIN: I think I have got
25 it. Just give me a minute. No need to send the
69
1 jury out. Let's see if we can put our hands on
2 the document.
3 MR. BEVERE: I will give them the
4 document, Your Honor.
5 BY MR. MULLIN:
6 Q Mr. Snyder --
7 MR. MULLIN: Do we have an exhibit
8 number for this?
9 MR. BEVERE: It is -- I have to
10 find it.
11 Judge, if we want to use my
12 exhibit number, it's D-92.
13 MR. MULLIN: D-92?
14 MR. BEVERE: D-92.
15 JUDGE CURRAN: Yes.
16 MR. MULLIN: We'll use that one.
17 BY MR. MULLIN:
18 Q Sir, I am going to show you what's
19 been marked as D-92. This is a letter that was
20 sent to you, Mr. Snyder, by Police Chief
21 Corcoran, true?
22 A I would like to assert my Fifth Amendment
23 right.
24 Q And it said -- told you,
25 Mr. Snyder, that it is undisputed that you were
70
1 present at the North End Firehouse on
2 April 25th, 2004 when certain incidents took
3 place. That's what the Police Chief, the
4 highest officer in the Police Department, wrote,
5 true?
6 A I would like to assert my Fifth Amendment
7 right.
8 Q And he wrote that because that was
9 a true statement, correct?
10 A I would like to assert my Fifth Amendment
11 right.
12 Q He said these incidents are
13 currently under investigation as a bias crime.
14 And you knew that, sir, it was being
15 investigated as a bias crime?
16 A I would like to assert my Fifth Amendment
17 right.
18 Q The Chief wrote, "It is further
19 undisputed that you had refused to cooperate
20 with the officers from this department who are
21 attempting to investigate this incident"? He
22 wrote that, didn't he, sir?
23 A I would like to assert my Fifth Amendment
24 right.
25 Q And he wrote that because it was
71
1 the truth; you really had refused to cooperate
2 with the Police Department? Isn't that true,
3 sir?
4 A I would like to assert my Fifth Amendment
5 right.
6 Q The Chief wrote, "In light of
7 these facts, it is my conclusion that your
8 continued service as a dispatcher pending the
9 outcome of the current investigation would do a
10 potential disservice to the public trust in the
11 Secaucus Police Department"? He wrote that,
12 didn't he, sir?
13 A I would like to assert my Fifth Amendment
14 right.
15 Q "The risk of accusations of
16 improper response to calls by the complainants
17 in the incident, matter or other similarly
18 situated citizens is unacceptable to this
19 department." He wrote, "Therefore, please be
20 advised as a per diem employee you will not be
21 assigned any hours until the matter and your
22 role therein is resolved." He wrote that true?
23 A I would like to assert my Fifth Amendment
24 right.
25 Q And as counsel for the Town just
72
1 pointed out, you're not employed by the Police
2 Department now, are you?
3 A I would like to assert --
4 Q And after this you never got
5 assigned hours, did you, sir?
6 A I would like to assert my Fifth Amendment
7 right.
8 MR. MULLIN: It is also the same
9 document, Your Honor, as P-195.
10 JUDGE CURRAN: Thank you.
11 BY MR. MULLIN:
12 Q The Fire Chief never terminated
13 you as a volunteer fireman?
14 A I would like to assert my Fifth Amendment
15 right.
16 Q They rewarded you, didn't they,
17 by -- the Fire Chief and Town and Town Council
18 rewarded you by elevating you to battalion
19 chief, didn't you?
20 MR. BEVERE: Objection as to the
21 characterization or the term "rewarded."
22 JUDGE CURRAN: Sustained.
23 MR. MULLIN: I have nothing
24 further.
25 JUDGE CURRAN: Mr. Bevere?
73
1 MR. BEVERE: I have no redirect --
2 no recross, Your Honor.
3 JUDGE CURRAN: Thank you.
4 Thank you very much.
5 Anything else, Mr. Mullin?
6 MR. MULLIN: Nothing, Your Honor.
7 JUDGE CURRAN: Mr. Bevere?
8 MR. BEVERE: No, I just -- I need
9 my document back from Mr. Mullin, that's all.
10 Thank you.
11 JUDGE CURRAN: Thank you. You may
12 step down.
13 THE WITNESS: Thank you, Your
14 Honor.
15 (Whereupon, the witness is
16 excused.)
17 JUDGE CURRAN: Go off the record
18 for a moment.
19 MR. MULLIN: Excuse me one second.
20 (Whereupon, a discussion is held
21 off the record.)
22 MS. SMITH: Your Honor, the
23 plaintiff calls Dr. Mati Marcus.
24 JUDGE CURRAN: Thank you. We will
25 go back on the record.
74
1 COURT CLERK: On the record.
2 MS. HAWKS: Place your left hand
3 on the Bible. Raise your right hand, please.
4 M A T I T Y A H U M A R C U S, is duly sworn by
5 a Notary Public of the State of New Jersey and
6 testifies under oath as follows:
7 MS. HAWKS: For the record, please
8 state your full name and spell your last name,
9 please.
10 THE WITNESS: My name is spelled
11 M-a-t-i-t-y-a-h-u. Marcus, M-a-r-c-u-s.
12 MS. HAWKS: Thank you.
13 JUDGE CURRAN: Thank you. And
14 will you please give us your professional
15 address.
16 THE WITNESS: 2350 South Avenue,
17 Scotch Plains.
18 JUDGE CURRAN: Thank you.
19 Your witness.
20 DIRECT EXAMINATION BY MS. SMITH:
21 Q Dr. Marcus, good afternoon.
22 A Good afternoon.
23 Q What is your profession?
24 A I am an economist.
25 Q Please describe for the jury your
75
1 educational and employment history?
2 A I received a BA degree in Economics from
3 Brooklyn College in 1959.
4 I then enrolled in the graduate
5 program, Economics, at Brown University, where I
6 received a Ph.D., a doctorate, in economics in
7 1963.
8 From Brown University I came to Rutgers
9 University, New Brunswick. I joined the
10 Department of Economics. I started as a
11 lecturer and over the years was promoted to the
12 successive ranks of assistant professor,
13 associate professor and full professor. And
14 that circle was closed when I retired from
15 Rutgers in July of 2003 after 41 years of
16 service there.
17 Q Did you hold any administrative
18 positions at Rutgers, Doctor?
19 A While at Rutgers I -- I served in the
20 chairman and director of Graduate Studies,
21 director of the Bureau of Economic Research.
22 These are positions to which the faculty elect
23 the member for a term. Here I was elected for
24 two successive terms.
25 Q Are you here today to present your
76
1 opinion regarding the economic loss due to
2 disability of Peter deVries?
3 A I am.
4 Q Have you done similar studies in
5 the past?
6 A I have prepared numerous studies of this
7 type over the past 30 years or so and have
8 appeared in court on numerous occasions but
9 always only on the issue of valuing economic or
10 wage losses.
11 Q Have you done research in
12 economics? And if so, has your research been
13 published?
14 A Over the years I have done research on
15 various subjects in economics, and articles of
16 mine have appeared in such referee journals as
17 The Review of Economics and Statistics, The
18 Canadian Journal of Economics, The Southern
19 Economic Journal, The Oxford Bulletin of
20 Statistics, The Journal of Finance, Financial
21 Review, Antitrust Bulletin, The Journal of the
22 American Institute of Planners, and several
23 other journals.
24 MS. SMITH: Your Honor, I move
25 Dr. Mattie Marcus as a forensic economist -- as
77
1 an expert in forensic economist.
2 JUDGE CURRAN: Thank you.
3 Any questions or objections?
4 MR. PARIS: I just have a few
5 questions, Your Honor.
6 JUDGE CURRAN: Surely.
7 VOIR DIRE EXAMINATION BY MR. PARIS:
8 Q Dr. Marcus, a hundred percent of
9 your work after retiring from Rutgers has been
10 in the area of forensic economics, correct?
11 A Yes.
12 Q That's coming to court to testify,
13 essentially?
14 A Preparing studies and coming to court.
15 Q Okay. Now, 75 percent of the
16 cases that you prepare are for people who are
17 seeking money damages or to recover money
18 damages from other people, correct?
19 A Yes.
20 Q Now, you've worked for either
21 Miss Smith or the firm of Smith Mullin for the
22 past 25 years, correct?
23 A Yes.
24 Q And over that period of time
25 you've received about three or four cases a year
78
1 from them, correct?
2 A Anywhere from one to two to three to
3 four, yes.
4 Q And all of those cases have been
5 for people seeking money damages from others,
6 correct?
7 A Yes.
8 Q You get paid for being here today,
9 do you not?
10 A Yes.
11 Q And essentially, you get paid
12 $3,000 for appearance at a trial?
13 A Yes.
14 MR. PARIS: Okay. I have no
15 further questions at this time, Your Honor.
16 JUDGE CURRAN: Thank you.
17 Further questions?
18 CONTINUED DIRECT EXAMINATION BY MS. SMITH:
19 Q Can't possibly be 25 years. That
20 is just mean to say that.
21 A I'm sorry.
22 Q Twenty-five years we have worked
23 together, is that possible? I'm not that old;
24 it's not possible.
25 A I am looking at you, and I doubt it. But
79
1 I'm looking -- I think we have worked that long.
2 Q All right.
3 JUDGE CURRAN: Hold on one second.
4 Do you have any further qualification questions?
5 MS. SMITH: I'm sorry, Your Honor,
6 no.
7 JUDGE CURRAN: Other than --
8 MS. SMITH: Other than I object to
9 that characterization of how long I have been a
10 lawyer.
11 JUDGE CURRAN: That will be noted
12 on the record.
13 Ladies and Gentlemen, Dr. Marcus
14 is qualified as an expert. His field of
15 expertise is forensic economics. And again, he
16 may be asked hypothetical questions; and he may
17 be asked to give an opinion.
18 Thank you. I'm sorry.
19 MS. SMITH: Thank you, Your Honor.
20 BY MS. SMITH:
21 Q Please describe in general terms,
22 Dr. Marcus, the methodology that you use and
23 that are used by other economists in determining
24 the loss of income in a case that results from
25 disability.
80
1 A Actually, the method is quite simple.
2 You don't have to be an economist to figure it
3 out, although you have to be careful when you
4 apply the figure.
5 In effect, what we set out to ask is,
6 assuming that the person whose wage loss we are
7 estimating was not disabled and -- and would
8 have continued in his occupation to retirement,
9 to normal retirement, how much would he have
10 earned over those years, adjusting for some --
11 some deductions and perhaps some additions for
12 benefits that we may have to add. So, in
13 effect, we are after how much that person would
14 have earned, had he not stopped working. That
15 is what the study involves.
16 Q And Dr. Marcus, you're an
17 economist, not a medical doctor and not a
18 psychiatrist; is that correct?
19 A That is correct.
20 Q Have I asked you to make certain
21 assumptions in when you're evaluating the
22 economic loss suffered by Peter deVries?
23 A You have.
24 Q For instance, I asked you to
25 assume that he is permanently and totally
81
1 disabled, correct?
2 A That is correct.
3 Q And you're testifying based -- as
4 an economist based on what his economic losses
5 will be, assuming that he is permanently and
6 totally disabled; is that correct?
7 A That is correct.
8 Q What materials and documents did
9 you utilize in preparing your opinion?
10 A Economists use two types of documents.
11 One is a specific information for the
12 individual. In this case I had tax records for
13 the years preceding the date he stopped working.
14 I had some pay stubs. And these -- and I had
15 some benefit documents from his employer, as
16 well. This pretty much make it easy to
17 determine how much he was earning at -- at the
18 time.
19 In addition to that, any time you talk
20 about an economic loss, continuing economic
21 loss, you have to consider such things as what
22 would inflation do to wages and could there be
23 unemployment, things of that sort.
24 For these data economists rely on
25 government publications. There are plenty of
82
1 economic statistics in this country published by
2 The Federal Reserve, by Bureau of Labor
3 Statistics, Department of Labor. Actually, even
4 State of New Jersey compiles a lot of economic
5 data.
6 Ultimately, an opinion about an
7 economic loss is an opinion which considered the
8 earnings of the individual at the time of the
9 incident in trying -- try to determine how would
10 it continue, what would happen to these wages
11 over his remaining work life, considering the
12 trend in the economy, such -- in particular,
13 such as wage inflation.
14 Q Can you please describe the
15 employment and earnings background for Peter
16 deVries?
17 A The employment -- professional background
18 in this case from a economist perspective is
19 fairly straightforward. He is a college
20 graduate and has been in the same kind of
21 professional line since he was 26. I believe
22 since about 1974 he was in an industry that is
23 kind of a specialty in New York. It's the
24 specialty publications. And there -- with
25 specialization in medical, hospital and
83
1 health-related journals. These are published
2 particularly for the trade, whether they are
3 hospital managers or doctors or whatever.
4 And he has worked for very reputable
5 publishers. The last job that he had was with
6 Dowden Health Media, and that came after coming
7 off about 20 years in that field. And he was
8 managing -- managing -- senior managing editor.
9 Essentially has responsibility for the
10 publication of that particular professional.
11 His income at the time in -- in his
12 last job, based on the pay stub, was $110,000.
13 And I have a pay stub to show that. And
14 essentially my study would be based on the
15 assumption that he would have continued in that
16 line of business, starting or continuing at
17 110,000, rising with inflation.
18 Q Is that the basis that you used
19 for the projected wage loss, Doctor?
20 A Yes, indeed. The $110,000 is the
21 starting point because you begin with what the
22 person was actually making at the time.
23 Q Doctor, I'm sorry.
24 A I'm sorry, no, that's enough.
25 Q Dr. Marcus, can you first discuss
84
1 with us the loss that Mr. deVries has suffered
2 to -- to the present?
3 A Yeah, I think, if I use the exhibits I
4 prepared, it would be quicker.
5 MS. SMITH: For the record, we're
6 referring to P-395A.
7 JUDGE CURRAN: Thank you.
8 BY MS. SMITH:
9 A It's convenient to think of the loss as
10 falling into two pieces, the loss today and the
11 future loss, because they're somewhat different
12 considerations when we talk about the future.
13 So the first chart talks about the wage
14 loss. I call it past. It means from the time
15 he stopped working. Now, he actually stopped
16 working in -- on May 20th, 2005. But he -- from
17 that point on he received short-term disability,
18 and he received some -- which then continued to
19 November. Then he started to receive long-term
20 disability. And for period of time his salary
21 continued.
22 So because of that, I begin the loss
23 with 2006 because in 2005 he actually made --
24 from a combination of all these things he made a
25 bit more than a hundred -- 110,000. Tax return
85
1 shows 112,000 total for that -- for that year.
2 So I begin the loss with January 1,
3 2006. We are now almost at the end of May, so I
4 rounded it up to May 31st. And from January 1,
5 2006 to the present is actually two years and
6 five months. And we -- if you do it -- round it
7 up, it is 2.4 years.
8 The salary, as I mentioned before,
9 based on the pay stub, was $110,000 a year. If
10 you simply multiply one more -- okay. If you
11 multiply 2.4 times 110,000, you would get a
12 number which -- you would get 263,000. But in
13 2006 he actually received 13,196. There was a
14 W-2 from his employer showing 13,196. So I am
15 deducting that, as well.
16 The conclusion is that the gross pay
17 for 2.4 years after taking into account the
18 payment he received in 2006 is $250,804.
19 Q Doctor, let me just stop you and
20 make sure I understand. He stopped working in
21 May 2005?
22 A Yes.
23 Q Okay. And then he continued to
24 receive some money from his employer?
25 A He received short-term disability and
86
1 payments and -- and some point -- yes.
2 Q Okay. So his employer kept paying
3 him as part of a short -- of some kind of
4 disability plan with the employer?
5 A All I know is he received payments from
6 the employer.
7 Q And he even received some payments
8 in 2006 from the --
9 A Yes.
10 Q -- employer?
11 A Yes.
12 Q So you subtracted them?
13 A That's correct.
14 Q Okay.
15 A Now, so your first step -- what I tried
16 to show here is how much would have been his
17 gross pay, the top of the pay -- pay stub for
18 that period of time after payments that he
19 received. And that is 250,804. But then again,
20 we now have to consider a number of deductions
21 that economists usually do when they project the
22 loss for a person.
23 One of them -- there is a possibility
24 of short layoffs. Now, he had not been laid
25 off; but in the economy there are layoffs. And
87
1 I am reducing his pay 4.9 percent for the
2 possibility that, had he continued, he would
3 have been laid off. The 4.9 percent is the
4 average for New Jersey. And I apply that in
5 this case. As well.
6 The second deduction that I make is for
7 employment-related expenses. When you go to
8 work, you have some expenses; driving, maybe you
9 have to go give your clothes to the cleaners
10 more often. And for that I subtract
11 3.1 percent. That's based on Internal Revenue
12 Service study.
13 So I'm taking out 4.9 percent and
14 3.1 percent for expenses. Then I put back
15 2 percent for -- for 401k profit sharing plan
16 that was part of his compensation. When you do
17 these adjustments, the -- the net result is a
18 reduction of about 6 percent. And that brings
19 me down to what I call the "net past loss,"
20 which is $235,881.
21 Q So even though he had never been
22 laid off in his career, you are using the
23 average of how many -- what portion of the
24 population -- what the risk is of being laid off
25 for everybody?
88
1 A Yes.
2 Q Not specifically --
3 A Yes.
4 Q -- somebody who had long-term
5 employment?
6 A Right, that is correct.
7 Q So is this conservative?
8 A It is conservative in as much as he has
9 not experienced unemployment. On the other
10 hand, we never know what the future is going to
11 hold for a person. So I do it in all studies.
12 The next thing that we have to consider, when a
13 short-term disability ended in November of 2005,
14 after six months he went on long-term
15 disability. Part of the plan that the employer
16 has, and under that plan he received $5,000 a
17 month for 24 months. So he received it
18 beginning November 2005. It ended in
19 November 2007. Twenty-four months. So he
20 received $120,000 in what is called "long-term
21 disability." And I subtract that from the net
22 past loss; and therefore, my conclusion is that
23 his loss to date of the two years and
24 approximately two-and-a-half years is $115,881.
25 Q Doctor, have you also calculated
89
1 Mr. deVries' losses into the future?
2 A Yes. And let me turn to the next --
3 MS. SMITH: That's 395B, Your
4 Honor.
5 JUDGE CURRAN: Thank you.
6 BY MS. SMITH:
7 A When we talk about the future, we have to
8 begin with the current pay and the -- as I
9 pointed out before, the current pay for 2005 was
10 $110,000. Again, we are to subtract some amount
11 for potential unemployment, some amount for
12 expenses, put back 2 percent for 401k; and we
13 come up with a current net loss of $103,459.
14 The next question is how far into the
15 future do we have to project that loss is
16 continuing? Or put it differently, when would
17 he have retired, had he not been disabled?
18 Well, people retire at different ages. There is
19 a statistical work life that shows how many more
20 years a person of a given age, given education
21 is likely to work. It's an average for all
22 people of the same age. And for Mr. deVries it
23 indicated work to age 65-and-a-half. Let me
24 point out he is just about 60 years old now. I
25 believe his birthday would be next month or in
90
1 June. So technically, it's 59.9. So I am
2 projecting it out 5.6 years to age 65.5.
3 Let me point out Social Security
4 retirement age is 66. This is half a year
5 earlier. So that is based on the actual
6 experience of people his age.
7 Now, suppose you go that far. You
8 decide what would be the current loss of the
9 person, had he been working. I have 103,000,
10 but whatever number it is. You then decide how
11 many more years you want to project it out. And
12 I have here 5.6 more years to age 65-and-a-half.
13 What do you have to do next? Well,
14 here is a little economics. Economists agree in
15 our economy we have to consider wage inflation
16 because when you talk about wages, the fact is
17 that there is inflation and wages go up. Now,
18 wages don't go up for everybody every year.
19 Some get higher increases. Some get lower
20 increases. But, on average, they go up. And in
21 fact, if you look at statistics for the last 30,
22 40 years you will find wages go up. I am
23 assuming a 4 percent wage increase.
24 The reason I'm including 4 percent is
25 the Social Security Administration prepares
91
1 every year projections of wage increase; and
2 they are now projecting, as they have been
3 projecting for a while, an average of 4 percent.
4 4 percent is also consistent with some
5 historical trend. But I am going to assume for
6 that reason that his wages would have gone up at
7 4 percent a year.
8 So now, if you get that far, you -- you
9 may say, well, but now I have to increase these
10 wages 4 percent a year. But before you do that
11 let's introduce the last factor to consider.
12 And that is, if you were to increase it, you are
13 going to show a higher future -- a higher future
14 wage. A year from now would be higher and two
15 years, three years, five years from now. But if
16 any award is going to be made, the money
17 actually would be given to him right after the
18 trial. He is not going to wait to come and
19 claim it a year from now, in two and three years
20 from now.
21 So what is the significance of getting
22 the money up front? The significance, you earn
23 interest. And we have to take care or take
24 account of the fact that he would get interest
25 on any award because he is getting it earlier
92
1 than he should be getting those salaries. That
2 interest rate has to be deducted to make sure we
3 are not overcompensating.
4 At this time the interest rate is about
5 4 percent on -- on U.S. government securities.
6 Maybe a little lower, but let's say 4 percent.
7 Certainly no higher than 4 percent for this
8 period of time for five years.
9 So we have here this situation. We
10 have a man who is -- currently would be earning
11 $103,000 a year. We would have to raise it
12 4 percent for inflation, but we know that the
13 interest rate is going to take care of it. As a
14 result of it, we don't have to do anything. We
15 don't have to add to inflation. We have to give
16 the current amount for each future year, knowing
17 that if he would have gotten increases, the
18 interest rate would take care of it. Put it
19 differently, the interest rate offsets the need
20 for us to allow for inflation.
21 Once you have made this calculation,
22 once you have considered the wage increase and
23 the interest rate and you concluded what is the
24 amount of to give, taking both into account,
25 that figure is called "present value." And
93
1 because these two factors equal each other and
2 they cancel each other, the present value -- the
3 present value is the same. We don't have to
4 give more, nor do we have to give less. Because
5 of interest rate, we can give the same amount.
6 Once you know that the present value is
7 103,459 and you want to calculate the total
8 loss, the calculation is simply multiply 103,459
9 by 5.6 years. And that is what I have done.
10 And the total of that multiplication is
11 $579,370. Add to it the past loss of $115,881,
12 and the total income loss after deduction of the
13 long-term disability is $695,251.
14 Q Now, Dr. Marcus, if Peter deVries
15 was going to work longer, if he wasn't going to
16 stop working voluntarily at 65-and-a-half years
17 old, would his loss be greater?
18 A Yes, you would have to allow 103,459 for
19 any additional year that you think he would have
20 continued to work.
21 Q Okay. Now, Doctor, you showed the
22 loss; but you didn't show any -- any tax
23 deduction?
24 A That is correct.
25 Q Assuming -- if this award was
94
1 taxed, what effect would that have on the award?
2 A Well, in fact, the reason I did not take
3 out taxes, because people usually pay taxes, is
4 that the award may be taxed. And if he may
5 be -- if it will be taxed by the IRS as a return
6 of wages, then we have to allow -- in fact, we
7 have to allow for that income tax. And by
8 giving the full amount here, we will allow him
9 to pay the income tax, just as he would have
10 been required to do, had -- had he worked and
11 paid taxes. So we don't -- I did not --
12 specifically did not take out taxes because the
13 award may then be taxed. And if I take it out
14 here, it will be taken out twice.
15 Q Now, what would be the effect if
16 somebody who makes $110,000 a year and pays
17 taxes on that -- gets $695,000 in one year, what
18 is the tax effect of that getting it in one lump
19 sum?
20 A We have an additional implication of this
21 tax because if he is going to be taxed, he is --
22 and if an award is made for the amount that I
23 showed on the board of 659,000, he is going to
24 be taxed on the 659,000 at the time he receives
25 it.
95
1 Now, if you earn $659,000, because from
2 the IRS point of view you received it that year,
3 most of your income is going to be at the very
4 high tax rate. And I actually made the
5 calculation. And on average -- not an average.
6 On $659,000 the income tax, Federal and State,
7 would be 37.9 percent, little bit more than a
8 third.
9 However, if he had received the 110,000
10 a year over approximately, let's say, seven
11 years and he continued to work, he would have
12 been taxed every year on $110,000. Well, at the
13 $110,000 the income tax, Federal and State, is
14 just about under 21 percent. 21 percent. So
15 what will happen, if he is taxed, he will have
16 to pay a much larger amount in taxes, simply
17 because he is getting it at one time.
18 That additional amount that he would
19 have to pay simply because he is taxed at one
20 time on the entire lump sum would reduce the
21 award further than ordinary taxation would have.
22 And that additional tax, I calculated it by
23 simply comparing how much in total he would have
24 been paid year by year on his income versus
25 being taxed on the lump sum award. And that
96
1 amount is 191,446. And we call it the
2 "additional allowance" or the allowance for
3 additional income tax on a lump sum or on a
4 large single award for years of work.
5 Q Well, I'm not writing all that.
6 What's the number?
7 A But that is another implication of the
8 tax system that he will be facing.
9 Q And I'm sorry, what is that
10 amount, Dr. Marcus?
11 A $191,446.
12 Q Okay. Did you -- can you -- did
13 you total that?
14 A Yeah, I did total that. The total, then,
15 is $886,697.
16 Q So in total, if Peter deVries was
17 not disabled -- and assuming he is disabled and
18 assuming that he would have worked only to age
19 65-and-a-half, his economic losses in your
20 expert opinion are $886,697?
21 A Yes, this is the amount that would have
22 to be given to him for him to net the amount he
23 would have netted had he worked year by year and
24 been taxed year by year.
25 Q Thank you, Dr. Marcus.
97
1 MS. SMITH: I'm sorry, Judge.
2 Q Are all of your opinions within a
3 reasonable degree of economic certainty?
4 A Yes.
5 Q Thank you.
6 JUDGE CURRAN: Okay. Mr. Paris.
7 MR. PARIS: Sure, thank you, Your
8 Honor.
9 Can I just take this down a
10 second? Thank you.
11 CROSS EXAMINATION BY MR. PARIS:
12 Q Dr. Marcus, you spoke about a
13 4.9 percent potential average -- I'm sorry, this
14 is -- I'm sorry, let me just take this down.
15 You spoke about a 4.9 percent potential --
16 4.9 percent potential unemployment?
17 A Yes.
18 Q That was an average in New Jersey,
19 correct?
20 A Yes.
21 Q Okay. And essentially, that was a
22 reduction that reduced the 110,000, the annual
23 salary, correct?
24 A Yes.
25 Q Okay. Now, in making that
98
1 reduction you made no assessment as to
2 Mr. deVries' actual medical condition, correct?
3 A You are correct.
4 Q Okay. So for example, if you were
5 told that he had a greater chance of
6 unemployment or disability because he had a
7 serious heart condition that required two
8 surgeries, that might take that 4.9 percent and
9 increase it, correct?
10 A If he had been given medical opinion that
11 as a result of his condition he would physically
12 be unemployed for a longer period of time, that
13 would increase the unemployment allowance.
14 Q And that would reduce the amount
15 of annual income that was the starting point for
16 all of your calculations -- excuse -- for all of
17 your other calculations?
18 A Yes, the total would be reduced, instead,
19 by 4.9 percent, maybe seven-and-a-half or
20 whatever it is.
21 Q Right. Now, if you -- for
22 example, if you were told that Mr. deVries'
23 health was very fragile, that he was a very
24 fragile person, that would have to take that
25 4.9 percent reduction and increase the reduction
99
1 that you would start with in terms of what his
2 annual income was?
3 A No, no, it's not enough for me to be told
4 he is fragile. A lot of people are fragile and
5 they hold their work and they do very well. I
6 was very clear. Just if I were given a medical
7 opinion that in his condition, in any event, he
8 would have been absent X -- X weeks a year --
9 Q Right.
10 A -- which is greater than the amount I
11 allowed, I would have done --
12 Q Right. If he had that type of
13 medical evaluation?
14 A Correct.
15 Q Or, for example, if you had a
16 medical evaluation that said to you that while
17 other people without a history of heart surgery
18 can't necessarily work or aren't expected to
19 work 65-and-a-half, that would also reduce the
20 calculation in terms of future losses, correct?
21 A If I had a very specific opinion because
22 a lot of people will -- with heart surgeries
23 recover and work very well.
24 Q Right.
25 A So I -- but if there was specific medical
100
1 opinion about his condition at the time that he
2 stopped working or before that, that --
3 MS. SMITH: Objection, Your Honor.
4 Can I see you at sidebar, please?
5 (Whereupon, the following sidebar
6 discussion is held.)
7 MS. SMITH: I don't believe
8 defendants are going to produce any medical
9 evidence that Mr. deVries was going to be
10 disabled because of a heart condition. There is
11 no such evidence.
12 MR. PARIS: Your Honor, they can't
13 have it both ways. They can't have Mr. Carter
14 talking about how frail and fragile he was and
15 then, at the same time, not at least allow me to
16 question him that if he -- this is a projection
17 that you have somebody with medical condition,
18 it can reduce the length of work life. Or if
19 you have somebody who has a medical condition,
20 it may increase the chance of employability.
21 This is --
22 JUDGE CURRAN: But you already
23 asked that.
24 MR. PARIS: Yeah, I know.
25 JUDGE CURRAN: There was no
101
1 objection.
2 MR. PARIS: Yeah, I know that.
3 This is their burden of proof; it's not my
4 burden. It's -- it's their burden to show the
5 assumptions. And what I'm showing is that he
6 assumed somebody of average health without any
7 of the heart surgery that's already on the
8 record as to Mr. deVries. Mr. Carter wanted to
9 talk about how frail and fragile he was and how
10 concerned he was about him, et cetera. I think
11 this is absolutely appropriate. It really goes
12 to the calculations that he made, that's all,
13 that he just used an average number, instead of
14 somebody with heart surgeries.
15 MS. SMITH: Okay. I let -- I let
16 it go for really long time. The testimony is
17 only that -- from the Dr. Bursztajn is that
18 Mr. deVries was emotionally fragile, he had
19 suffered from depression, had been recovered
20 alcoholic. There is no medical testimony that
21 Mr. deVries was physically fragile and going
22 to -- and having -- going to be disabled.
23 At times recovering from heart
24 surgery, certainly, Mr. Carter talked about him
25 being concerned about him. But he went back to
102
1 work after every heart surgery. And there is --
2 they are not going to put in any medical
3 evidence that there was any potential of him
4 being disabled due to heart surgery. And he
5 keeps going on and on about it. I let it go in
6 the beginning, Your Honor, because there is some
7 testimony of heart surgery. Now he is actually
8 asking this jury to assume that he is going to
9 put in some evidence --
10 MR. PARIS: No.
11 MS. SMITH: -- and there is none,
12 that Mr. deVries would be disabled due to a
13 heart condition.
14 MR. PARIS: Your Honor, I will
15 leave the questioning right now. I will leave
16 the questioning right now. I think the point
17 has been made.
18 JUDGE CURRAN: Okay.
19 MR. PARIS: Thank you.
20 JUDGE CURRAN: Thank you.
21 (Whereupon, sidebar discussion is
22 concluded.)
23 BY MR. PARIS:
24 Q Dr. Marcus, in addition, when you
25 applied your 4.9 percent chance of unemployment
103
1 or layoff, that also did not account for what
2 Mr. deVries' previous psychological history was,
3 did it?
4 A I -- I don't -- I don't understand how --
5 I can't answer that question.
6 Q But I just -- I just need to know
7 that when you made your calculation, when you
8 used the 4.9 percent, that was an average
9 number? It didn't account for Mr. deVries' own
10 particular psychological profile? If, for
11 example, he had major depression as part of his
12 history, that type of thing may increase the
13 chance that he might be unemployed at a certain
14 point in time during his work life?
15 JUDGE CURRAN: Now you have a
16 really compound question.
17 MR. PARIS: I am sorry.
18 JUDGE CURRAN: Stick with the
19 first part.
20 BY MR. PARIS:
21 Q Dr. Marcus. Dr. Marcus, I am
22 asking you a question about what you did when
23 you did your calculations, all right. You did
24 not further reduce Mr. deVries' chance of
25 unemployment because of any psychological
104
1 history he may have had?
2 A I have used the average.
3 Q Okay.
4 A I have no knowledge that there were any
5 factors that would have to be introduced in this
6 case. He was an employed man, employed for many
7 years continuously. And in all such cases I
8 apply the average.
9 Q Okay. But I'm saying you weren't
10 provided with any particular information with
11 regard to his prior psychological history,
12 correct?
13 MS. SMITH: Objection, asked and
14 answered.
15 JUDGE CURRAN: Sustained.
16 BY MR. PARIS:
17 Q Dr. Marcus, you were told to, when
18 you started your calculations, to assume that
19 Mr. deVries was not employable at a certain
20 point in time, correct?
21 A Yes.
22 Q Okay. And that point in time was
23 in May of 2005, correct?
24 A Yes.
25 Q And then you actually began your
105
1 calculation in January because Mr. deVries
2 continued to receive pay up until January 1st of
3 '06, correct?
4 A Yes.
5 Q And then it appeared that he
6 received some other payments from his employer
7 that you were not able to explain, but you
8 reduced his future losses by -- excuse me, his
9 losses by that amount?
10 A Correct.
11 Q Okay. Now, in making your
12 calculations you assumed that Mr. deVries was
13 not employable?
14 A Yes.
15 Q And you also assumed that he was
16 totally disabled, correct?
17 A Well, it -- unemployable due to
18 disability.
19 Q Okay. Now, you -- you did your
20 calculations based upon the fact that not only
21 was Mr. deVries unemployable up to a certain
22 point in time, okay, up to the present time, you
23 have also done your calculations assuming that
24 going forward for the next 5.6 years that
25 Mr. deVries will continue to be unemployable,
106
1 correct?
2 A That's correct.
3 Q Now, when you say that he is
4 unemployable -- and I shouldn't say that. When
5 you did your calculations, your calculations are
6 based upon an assumption that there is
7 absolutely no work that Mr. deVries can do that
8 would in any way result in him deriving income,
9 correct?
10 A Effectively unemployability in our
11 economy.
12 Q As an economist -- and you've
13 assumed that there is nothing that Mr. deVries
14 can do that would bring him income going forward
15 for another 5.6 years?
16 A That he cannot hold employment in our
17 competitive market economy.
18 Q So he would not be able to do --
19 he would not be able to earn a dime in income --
20 well, Doctor, Dr. Marcus, I'm not trying to
21 be funny. I'm trying to understand.
22 A I understand; but when you say, "a dime,"
23 I didn't think in terms of a dime. I was simply
24 assuming and I was asked to assume that this man
25 is disabled in the sense that he cannot work now
107
1 and that he -- his -- his disability is
2 permanent and is likely to continue. Can he
3 make a dime sometimes by standing outside and
4 washing a car? I don't know. So let me leave
5 it by saying I assume he is essentially
6 unemployable in any regular capacity, in any
7 ongoing regular job in our economy.
8 Q That he would not be able to earn
9 any money going forward for another 5.6 years,
10 correct?
11 A From regular employment, yes.
12 Q Because if -- if there was some
13 money that you attributed over the next 5.6
14 years, that would reduce your calculation?
15 A If he is employable, we would reduce it,
16 yes.
17 Q Now, one of the things that
18 you've -- one of the things that you've -- well,
19 let me just touch on that. Dr. Marcus, you are
20 an economist; you didn't -- you are not a
21 vocational expert, correct?
22 A You are correct.
23 Q Okay. One of the things that you
24 indicated in your report at page two was that
25 you were also told that Mr. deVries' prospects
108
1 for recovery were -- and I will use the word in
2 your report at page two -- were uncertain,
3 correct?
4 A Yes.
5 Q Okay. And that information came
6 from Mr. deVries, correct?
7 A Yes.
8 Q I have no further questions.
9 Thank you, Doctor.
10 JUDGE CURRAN: Any redirect?
11 MS. SMITH: No, thank you, Your
12 Honor.
13 JUDGE CURRAN: Thank you.
14 Ladies and Gentlemen, is there
15 anyone on the jury who has a question? Thank
16 you, sir. Thank you. We will go off the
17 record.
18 (Whereupon, the following sidebar
19 discussion is held.)
20 (Whereupon, four index cards with
21 Jury questions is received and marked as
22 Court's Exhibits Court-1 through Court-4
23 for Identification.)
24 JUDGE CURRAN: I have marked these
25 Court-1 through 4. I will read them for the
109
1 record, and then I'll give them to you to read.
2 Sometimes I can't, quite honestly, make out the
3 handwriting.
4 "Does your estimation of damages
5 or wages lost also include benefits such as
6 health insurance, vacation, et cetera?"
7 MR. MULLIN: No objection to that
8 question.
9 JUDGE CURRAN: Okay. Number two.
10 "Does your estimation include the prospect of
11 wage increases due to races or promotions?"
12 Some of these guys have done this
13 before.
14 MR. MULLIN: No objection.
15 JUDGE CURRAN: Any objection from
16 the defense on those two?
17 MR. PARIS: No.
18 JUDGE CURRAN: Okay. Number three
19 has two questions. "What effect, if any, does
20 Mr. deVries' inability to contribute to his 401k
21 and profit sharing have on his overall income?"
22 MR. MULLIN: No objection.
23 JUDGE CURRAN: He has already
24 answered that other than dollars.
25 MR. PARIS: He has.
110
1 JUDGE CURRAN: "If Mr. deVries is
2 taxed on the entire amount in one year, is he
3 planning on claiming zero income for the next
4 five years?" We have to have an accountant over
5 there. "Will he then be taxed at all?"
6 MR. MULLIN: No objection.
7 Interesting question.
8 JUDGE CURRAN: Yes.
9 MR. PARIS: Is there an accountant
10 up there?
11 MR. MULLIN: I think maybe.
12 JUDGE CURRAN: I don't remember
13 one. But either that or somebody has done their
14 income taxes. Very good detail.
15 Number four. "Are the
16 unemployment and annual percent of income
17 increases industry standards and average or all
18 around State standards and averages? Is there a
19 significant difference between industry and
20 State?" Excuse my left hand.
21 MR. MULLIN: Good questions. No
22 objection. Smart questions.
23 MS. SMITH: Unbelievable. You
24 know, I always learn something from jurors.
25 MR. MULLIN: Any objections?
111
1 MR. PARIS: I'm just taking a
2 look. This question I am not so sure about. In
3 other words --
4 JUDGE CURRAN: The last one?
5 MR. PARIS: Yeah, because it's not
6 anything he based his report on. In other
7 words, he based it upon State standards. The
8 juror is looking for another standard,
9 apparently, to see if one is higher or lower.
10 But there has been no testimony. They really
11 shouldn't be considering any other standard
12 other than what the testimony was.
13 MS. SMITH: I think they are just
14 asking for a clarification of where he --
15 MR. MULLIN: Where he got his
16 percentages.
17 JUDGE CURRAN: What standards he
18 used.
19 MR. PARIS: I have no problem with
20 that.
21 JUDGE CURRAN: Do you object to
22 that?
23 MR. PARIS: No, it's the last
24 part, is there a significant difference between
25 industry and state. In other words, I think
112
1 this juror should just be instructed -- the jury
2 should just be instructed this is the standard
3 the doctor utilized, which you feel most
4 appropriate.
5 JUDGE CURRAN: He can say that. I
6 don't think it's appropriate for me to instruct
7 them.
8 MR. PARIS: The problem with the
9 question is they are trying to interpose,
10 perhaps, another standard that wasn't part of
11 Dr. Marcus' report. And I really can't go out
12 and gage whether or not it's an appropriate
13 standard to use. So Dr. Marcus may start
14 testifying about an industry standard that isn't
15 part of his report, not part of his
16 calculations. I don't know whether it's going
17 to be higher, lower or whatever. I know the one
18 he used. I was prepared for that. But this
19 really could open can of worms.
20 JUDGE CURRAN: Wouldn't it clarify
21 things, then, just to ask him, "What standard
22 did you use?"
23 MR. PARIS: Yeah.
24 JUDGE CURRAN: Okay. I'll ask him
25 that. May I have that back when you're --
113
1 MR. MULLIN: Sure.
2 JUDGE CURRAN: When you're
3 finished, Mr. Mullin. Sometimes it's very hard
4 to read the writing. And I think I've read it
5 properly. That's why I give it to you.
6 MR. PARIS: That's fine.
7 MR. MULLIN: Here is one -- that
8 was the one that was just referred to last, Your
9 Honor. Thank you.
10 JUDGE CURRAN: Thank you.
11 MR. MULLIN: Your Honor, when this
12 witness is finished can we have a brief break?
13 I imagine I am going to go very short with
14 Mr. Mutschler, anyway; but I just need a
15 bathroom break.
16 JUDGE CURRAN: Sure, absolutely.
17 Just so you know, Mr. deVries just left. He
18 started to go into the jury room to, I guess,
19 use the men's room. So --
20 MR. MULLIN: Oh, my goodness. He
21 forgot.
22 MR. PARIS: Judge, can I just
23 double-check that?
24 JUDGE CURRAN: Sure.
25 MR. PARIS: I just want to make
114
1 sure this isn't opening a can of worms, the
2 additional -- this one we already dealt with.
3 JUDGE CURRAN: Remember, you have
4 whatever you want by way of follow-ups. The
5 follow-ups start with plaintiffs because it's
6 their witness. Then whatever you want.
7 MR. PARIS: Your Honor, the
8 problem I have with this --
9 JUDGE CURRAN: With which?
10 MR. PARIS: With all of these. It
11 opens -- I think these open up the door to
12 different calculations other than the one that
13 he did. In other words, you know, are -- I
14 don't know whether juries are looking for
15 confirmation it includes it or, you know, an
16 indication that it doesn't. But then are we
17 going to end up with another calculation, which,
18 again, isn't part of his report, isn't part of
19 his evaluation and is something I am not
20 prepared for?
21 JUDGE CURRAN: I could preface
22 each of the questions with, "Based on the report
23 you submitted."
24 MR. PARIS: Does your report
25 account for --
115
1 JUDGE CURRAN: If that's agreeable
2 for everybody.
3 MR. PARIS: That would be better.
4 I think either yes or no; it does or doesn't.
5 JUDGE CURRAN: Right. I just want
6 to do those. Excuse me.
7 (Whereupon, sidebar discussion is
8 concluded.)
9 JUDGE CURRAN: Ladies and
10 Gentlemen, as I indicated to you earlier, the
11 questions need to be proper questions under our
12 rules. So you will note, if you provided the
13 question, that there has been some slight
14 revision.
15 Doctor, I am going to read these
16 questions to you one at a time. I would
17 appreciate it if you would look at the jury when
18 you give your answer. People tend -- witnesses
19 tend to try to be polite because I asked the
20 question, but it is really a juror's question.
21 First question. Based on the
22 report that you have submitted does your
23 estimation of damages or wages lost also include
24 benefits such as health insurance, vacation, et
25 cetera?
116
1 THE WITNESS: No, the testimony
2 that I presented here did not include vacation,
3 any additional value to vacation time or time
4 off; nor did it include loss of health insurance
5 benefits. It only included profit sharing and
6 401k, 2 percent added to the pay. No other
7 fringe benefits were included.
8 JUDGE CURRAN: Thank you. Any
9 follow-up questions?
10 MS. SMITH: No, thank you, Your
11 Honor.
12 JUDGE CURRAN: The defense?
13 MR. PARIS: I just have one.
14 JUDGE CURRAN: Surely.
15 MR. PARIS: Doctor, if Mr. deVries
16 had been receiving paid vacations, that would
17 have been part of his salary, correct?
18 THE WITNESS: That is correct; the
19 salary includes it. But some economists add the
20 special value to vacation because you don't have
21 to do work and you get the time off. No
22 additional value. I only included the pay that
23 you received for the year.
24 JUDGE CURRAN: Again, based on the
25 report you've submitted, does your estimation
117
1 include the prospect of wage increases due to
2 raises or promotions?
3 THE WITNESS: It includes only
4 what I call across the board inflationary wage
5 increase. No promotional increase. And I would
6 add, which I -- that, in fact, between -- in
7 2004 his salary was $103,000. We know that in
8 2005 his salary was a hundred and ten. There
9 was a significant increase in the one year that
10 he was there. That was 6.7 percent. I,
11 however, only allowed for an average of
12 4 percent a year, which is the rate projected
13 today by Social Security Administration when
14 they calculate future contributions.
15 JUDGE CURRAN: Thank you. Any
16 follow-up questions?
17 MS. SMITH: No, thank you, Your
18 Honor.
19 MR. PARIS: No, Your Honor.
20 JUDGE CURRAN: Thank you. Next
21 question. Based on the report that that you've,
22 Doctor, what effect, if any, does Mr. deVries'
23 inability to contribute to his 401k and profit
24 sharing have on his overall income?
25 THE WITNESS: The two benefits to
118
1 401k for profit sharing, one is that if the
2 employer matches, you pay by certain percent.
3 In this case it was a 2 percent that the
4 employer contributed. That is the first
5 benefit. And that is the benefit that I
6 captured.
7 There is a second benefit, which I did
8 not capture. And that is the tax saving effect
9 of deferring income. And that's why 401k are
10 considered to be retirement plans. The
11 additional tax benefit would not consider the
12 list because I did not get into -- into tax
13 benefit or gains or losses due to deferment. I
14 only included the match of the employer as if it
15 was additional 2 percent made a year.
16 JUDGE CURRAN: Any follow-up?
17 MS. SMITH: So was your report
18 conservative with regard to those losses?
19 THE WITNESS: Yeah, in that
20 regard, it was.
21 MS. SMITH: Thank you.
22 MR. PARIS: Dr. Marcus, did you --
23 did you receive any information as to whether
24 Mr. deVries was making regular contributions to
25 his 401k?
119
1 THE WITNESS: Yes, I did.
2 MR. PARIS: Thank you.
3 JUDGE CURRAN: Next question --
4 and I have changed this slightly because it says
5 is, "Is he, Mr. deVries, planning to." Well, I
6 have made it a hypothetical question using the
7 word, "if which is allowed with an expert."
8 Based on the report you
9 submitted, once again, Doctor, if Mr. deVries is
10 taxed on the entire amount in year one, if he
11 was planning on claiming zero income for the
12 next five years, would he then not be taxed at
13 all?
14 THE WITNESS: I would like to hear
15 the question again. I'm not sure I understand.
16 JUDGE CURRAN: If Mr. deVries is
17 taxed on the entire amount in year one -- and
18 then it says is he planning, which you, of
19 course, can't answer. If he were planning to
20 claim zero income for the next five years, would
21 he then not be taxed at all?
22 THE WITNESS: He wouldn't -- he
23 wouldn't be taxed on the next five years. I am
24 assuming here taxed on the entire amount we are
25 talking about tax on the award.
120
1 JUDGE CURRAN: Right.
2 THE WITNESS: He would be taxed on
3 the award. And subsequent to that he will not
4 be taxed on any income because he wouldn't
5 receive any income. He received it all in lump
6 sum, and -- but on the -- it -- on the total
7 wages that he has collected in one shot he is
8 paying a percentage that is higher than he would
9 have paid had he been paid out by the
10 installment plan, a hundred thousand dollars a
11 year. You save taxes, and that is -- and that
12 is the saving of the additional penalties that
13 he would pay is the $199,000 that I calculated.
14 JUDGE CURRAN: Any follow-up
15 questions?
16 MS. SMITH: No, thank you, Your
17 Honor.
18 MR. PARIS: I have none, thank
19 you.
20 JUDGE CURRAN: Thank you. And the
21 last question, which, again, has been revised.
22 What is the basis in the report that you
23 prepared for the unemployment and annual
24 percentage income increases that you used?
25 THE WITNESS: For the unemployment
121
1 it's the average unemployment -- actually, in
2 this case it was for the metropolitan area
3 because he worked in New York. For all
4 employees in the -- in that local labor market.
5 So for the -- what we call the "average
6 unemployment," what he is reporting, what is
7 accepted, I look at a three-year average. And
8 that average was 4.9 percent.
9 Because I wouldn't know whether he
10 would be unemployed at some point, how long he
11 might be unemployed, what I do, I assume -- is
12 add unemployed for the economy each and every
13 year. So in effect, it's 4.9 percent reduction
14 in wages in each year of your employment. That
15 was the basis for the 4.9 percent statistical
16 data for unemployment in the local labor market.
17 For the 4 percent wage increase, that
18 is a projection that Social Security board of
19 trustees comes up every year. They project how
20 much will come into Social Security from
21 employee or employer contributions because they
22 have to know how much will come in.
23 In order to project that they have to
24 project by how much wages would increase. So
25 they have actuaries and economists who do it
122
1 every year.
2 The 4 percent that I'm employing, that
3 I'm using, comes from their annual report, which
4 is widely utilized by economists when we are
5 projecting future wage increases. In fact, I
6 don't know of any other U.S. government agency
7 that has a projection of long-term wage
8 increases. Social Security Administration or
9 the board of trustees is the only one that is
10 available and that is highly regarded by
11 economists.
12 JUDGE CURRAN: Any follow-up
13 questions?
14 MS. SMITH: Just two short ones,
15 Your Honor. So you used the 4 percent from the
16 Social Security data, rather than the
17 6.7 percent, which was the actual wage increase
18 for Mr. deVries from 2004 to 2005 --
19 A Yes.
20 Q -- to project?
21 A Yes, I did not use the last wage
22 increase. And I believe, when you are looking
23 to the future, you really have to consider what
24 is likely to happen. And -- and if you have
25 reliability models, the Social Security
123
1 Administration does, they are quite acceptable.
2 MS. SMITH: And I just want to
3 make sure I understand the metropolitan
4 unemployment data. That includes waitresses and
5 cab drivers and lawyers and everybody?
6 A Employees.
7 Q Employees?
8 A Not self-employed lawyers.
9 Q Okay. Thank you.
10 JUDGE CURRAN: Any follow-up?
11 MR. PARIS: No, thank you, Your
12 Honor.
13 JUDGE CURRAN: Thank you.
14 Thank you very much, Doctor. You
15 may step down.
16 Ladies and Gentlemen, we will
17 take the afternoon break for about, oh, maybe 10
18 or 15 minutes. If you will be back about
19 quarter of or ten of.
20 Thank you. Off the record.
21 JUDGE CURRAN: You may step down.
22 Thank you.
23 (Whereupon, the witness is
24 excused.)
25 (Whereupon, a brief recess is
124
1 taken.)
2 MS. HAWKS: Jurors are
3 approaching.
4 (Whereupon, the jury is brought
5 into the courtroom.)
6 COURT CLERK: On the record.
7 JUDGE CURRAN: Thank you. Thank
8 you, Ladies and Gentlemen. We appreciate your
9 being back on time. Please be seated. We will
10 continue with the plaintiffs' case. Mr. Mullin.
11 MR. MULLIN: Yes, Your Honor. I
12 will call Charles Mutschler to the stand.
13 JUDGE CURRAN: Thank you.
14 MS. HAWKS: Place your left hand
15 on the Bible, please and raise your right hand.
16 C H A R L E S M U T S C H L E R, is duly sworn
17 by a Notary Public of the State of New Jersey
18 and testifies under oath as follows:
19 MS. HAWKS: For the record, please
20 state your full name; and please spell your last
21 name.
22 THE WITNESS: Charles Mutschler,
23 m-u-t-s-c-h-l-e-r.
24 MS. HAWKS: Thank you.
25 JUDGE CURRAN: Thank you, sir.
125
1 Please be seated. You're under oath. All your
2 testimony must be truthful and accurate to the
3 best of your ability. Do you understand?
4 THE WITNESS: Yes, Your Honor.
5 JUDGE CURRAN: Thank you. Please
6 move a little closer to the microphone, and
7 please give us your address.
8 THE WITNESS: Address is 737 2nd
9 Street in Secaucus, New Jersey.
10 JUDGE CURRAN: Thank you. Your
11 witness.
12 MR. MULLIN: Thank you, Your
13 Honor.
14
15 DIRECT EXAMINATION BY MR. MULLIN:
16 Q Mr. Mutschler, you have been a
17 firefighter for the Town of Secaucus for many
18 years, true?
19 A I assert to use my Fifth Amendment right.
20 Q I'm sorry, I didn't hear.
21 A I said, "I assert to use my Fifth
22 Amendment right."
23 Q You assert your Fifth Amendment
24 right not to incriminate yourself?
25 A I assert to use my Fifth Amendment right.
126
1 Q At one point you were the captain
2 of the Secaucus Police Department?
3 A Assert to use my Fifth amendment right.
4 Q And you are still a firefighter
5 for the Town of Secaucus, true?
6 A I assert to use my Fifth Amendment right.
7 Q Town of Secaucus has never
8 suspended or terminated you in connection with
9 any behavior towards Tim Carter, Peter deVries
10 or their residence, true?
11 A I assert to use my Fifth Amendment right.
12 Q And you are going to assert your
13 Fifth Amendment right about every question I ask
14 you today, sir?
15 A I assert to use my Fifth Amendment right.
16 Q In the early morning of
17 April 25th, 2004 did Police Officer Ulrich --
18 isn't it true that Police Officer Ulrich found
19 you in the company of Chuck Snyder, Sr. and
20 Chuck Snyder, Jr. near the residence of Tim
21 Carter and Peter deVries in the parking lot of
22 the North End Fire Department?
23 A Assert to use my Fifth Amendment right.
24 Q And Patrol Police Officer Ulrich
25 did not arrest you, true?
127
1 A I assert to use my Fifth Amendment right.
2 Q And shortly after that, shortly
3 after around -- around 1 a.m. on April 25th,
4 2004 Sergeant Amodeo came and addressed you,
5 Charles Snyder, Sr., Charles Snyder, Jr. and the
6 firefighters of the North End Firehouse inside
7 the Fire Station, true?
8 A I assert to use my Fifth Amendment right.
9 Q Three times he asked the
10 firefighters on the North End Fire Station to
11 disperse; three times they disobeyed the order,
12 true?
13 A I assert to use my Fifth Amendment right.
14 Q Sergeant Amodeo was in uniform,
15 was he not?
16 A I assert to use my Fifth Amendment right.
17 Q Sergeant Amodeo was and is an
18 officer of the Secaucus Police Department, true?
19 A I assert to use my Fifth Amendment right.
20 Q During the early morning hours of
21 April 25th, 2004, when Sergeant Amodeo was in
22 the firehouse, right after the incident that
23 took place out in the parking, lot you lunged
24 at -- charged at Sergeant Amodeo for the purpose
25 of harming him, true?
128
1 A I assert to use my Fifth Amendment right.
2 Q You had to be physically
3 restrained by fellow firefighters, true?
4 A I assert to use my Fifth Amendment right.
5 Q Sergeant Amodeo did not arrest
6 you, true?
7 A I assert to use my Fifth Amendment right.
8 Q No further questions -- oh, hold
9 on. And after that attempt to assault a police
10 officer you continued to work as a volunteer --
11 as a fireman for Secaucus, true?
12 A I assert to use my Fifth Amendment right.
13 Q And Fire Chief never terminated
14 you or suspended you, true?
15 A I assert to use my Fifth Amendment right.
16 Q And the Mayor, acting jointly with
17 the Town Council, well, they never suspended
18 you, true?
19 A I assert to use my Fifth Amendment right.
20 Q They never fired you, true?
21 A I assert to use my Fifth Amendment right.
22 Q You didn't cooperate with the
23 police investigation in the -- in the matter of
24 the incident of the early morning hours of
25 April 25th, 2004, right?
129
1 A I assert to use my Fifth Amendment right.
2 Q The Fire Chief never fired you for
3 that lack of cooperation, right?
4 A I assert to use my Fifth Amendment right.
5 Q And the Mayor and Town Council
6 jointly never fired you or suspended you for
7 that failure to cooperate with the Police
8 Department, right?
9 A I assert to use my Fifth Amendment right.
10 MR. MULLIN: Nothing further.
11 JUDGE CURRAN: Mr. Bevere?
12 MR. BEVERE: Yes, I will be brief,
13 Your Honor.
14 CROSS EXAMINATION BY MR. BEVERE:
15 Q Mr. Mutschler, it is true, is it
16 not, that you did not say --
17 MR. MULLIN: Objection. Beyond
18 the scope, Your Honor. And I -- can I be heard
19 on sidebar?
20 MR. BEVERE: I hadn't finished the
21 question yet, Judge.
22 JUDGE CURRAN: Sure. I was going
23 to say I don't know.
24 (Whereupon, the following sidebar
25 discussion is held.)
130
1 JUDGE CURRAN: You have to give me
2 a hint here.
3 MR. MULLIN: Your Honor, I'm
4 quick. I'm quick. Well, here is one thing. I
5 am pretty sure I never asked that witness what
6 he said to anybody. So when I hear a question
7 asking, "Isn't it true you didn't say" -- and I
8 assume he was going to say, "you didn't say
9 maybe homophobic things." But I didn't ask him
10 what he said about anything, so that's beyond
11 the scope of my examination.
12 JUDGE CURRAN: You can rephrase,
13 if you'd like.
14 MR. MULLIN: He is free to call
15 him as a witness in his case. I don't --
16 JUDGE CURRAN: Absolutely, no
17 question.
18 MR. BEVERE: Judge, I will be
19 happy to rephrase, but maybe I will ask him
20 non-leading questions.
21 MR. MULLIN: It's beyond the scope
22 still, Your Honor.
23 MR. BEVERE: Judge.
24 MR. MULLIN: Call him in his case.
25 MS. SMITH: You subpoenaed him.
131
1 MR. BEVERE: Judge, they
2 subpoenaed him. And I knew he was going to be
3 here, okay. I should have no reason why I
4 should have to now call him in my case and cross
5 examine when he is on the witness stand.
6 MR. MULLIN: Your Honor.
7 MR. PARIS: There was also a
8 discussion about what happened with Officer
9 Amodeo.
10 MR. BEVERE: Clearly raised the
11 issue of Sergeant -- Officer Ulrich did not
12 arrest you, correct?
13 That is correct.
14 So I think I should be allowed to
15 ask him what he may have said to Officer Ulrich
16 that would have lead Officer Ulrich to make the
17 decision not to arrest him.
18 JUDGE CURRAN: In fairness, it
19 would save a lot of time; but I just don't see
20 it working that way. That's one reason -- not
21 that I anticipated this objection, but that's
22 why I make my checkmarks as to each time they
23 take the Fifth. And I make my notes as to what
24 the issue was, so that I have, you know, vague
25 recollection.
132
1 I must admit, I didn't get the
2 "did you say" part until we came over to
3 sidebar. I mean, in fairness, under the rules
4 it is not appropriate at this point.
5 MR. BEVERE: Judge, you know --
6 MR. MULLIN: Let me also add this.
7 Let me throw this in too. Mr. -- we have an
8 inference in our -- excuse me. We have an
9 inference in our favor under Fifth Amendment
10 under the Rad case.
11 MR. BEVERE: I disagree with that.
12 MR. MULLIN: I understand there is
13 a disagreement with that, but I put an argument
14 on the record. When counsel, through leading
15 questions about the entire case, attempts to
16 draw an inference, for example, that he never --
17 that he, Mutschler, never did anything to harm
18 my client, he is attempting through those
19 questions to draw an inference in the Town's
20 favor. He is not allowed to do that because
21 these witnesses that are taking the Fifth are
22 employees testifying within the scope of their
23 employment.
24 MR. BEVERE: I completely
25 disagree.
133
1 MR. MULLIN: They are the Town
2 speaking. And that's what the Rad case said.
3 They cannot impeach this witness and draw -- and
4 allow the jury to draw an inference against my
5 plaintiffs. That's contrary to the Rad case and
6 a whole line of cases under the Fifth Amendment.
7 But I'm going -- I am asserting that now to put
8 it on the record.
9 JUDGE CURRAN: It's on the record,
10 but I am not going to make my decision on it
11 because the Rad case, different set --
12 MR. MULLIN: I eventually may have
13 to reselect jury instructions, so on.
14 JUDGE CURRAN: That's exactly
15 right; we may.
16 MR. MULLIN: But right now I'm
17 saying this is classical beyond the scope. I
18 was very careful to have a limited direct
19 examination.
20 MR. BEVERE: Judge, before we
21 leave this issue, he asked the witness a
22 question, did officer -- I am getting confused
23 between sergeants and lieutenants; but he said,
24 "Did Officer Ulrich arrest you?" Okay. So now
25 there -- now the issue is in the jury's mind,
134
1 Why wasn't this guy arrested? So shouldn't I be
2 allowed to ask him?
3 JUDGE CURRAN: Not this way. I
4 can understand your argument, absolutely; but
5 not this way. Absolutely I can understand your
6 argument. But it's a very unique set of
7 circumstances.
8 I know the plaintiffs still -- do
9 you object to bringing him back?
10 MR. MULLIN: I object to him
11 bringing him back in his case.
12 JUDGE CURRAN: No, no, no. Does
13 he object as far as time or whatever because,
14 theoretically, we could let you call him after
15 you're finished with any cross you have on the
16 plaintiffs case. Little tough, maybe, for the
17 jury to figure it out but --
18 MR. MULLIN: I would ask that he
19 not be put in on his case in my case.
20 JUDGE CURRAN: Okay. You have a
21 fair --
22 MR. MULLIN: I think I have --
23 that is a fair request.
24 JUDGE CURRAN: That is a fair
25 argument.
135
1 MR. MULLIN: He can put on his
2 case in his case.
3 JUDGE CURRAN: I understand
4 exactly. I can't disagree with you.
5 MR. BEVERE: I need about 30
6 seconds about whether we want to bring him back
7 or ask him a couple questions.
8 JUDGE CURRAN: Mrs. Cahill -- why
9 don't we just go off the record right now. You
10 all can talk. You can talk to Mr. Paris, if you
11 want to.
12 MR. BEVERE: Yeah, just whether I
13 want to do that or whether I am going to ask him
14 a couple questions and be done. Thank you.
15 (Whereupon, sidebar discussion is
16 concluded.)
17 (Whereupon, a discussion is held
18 off the record.)
19 BY MR. BEVERE:
20 Q Mr. Mutschler, are you going to
21 take the Fifth Amendment with regard to any
22 question I ask you this afternoon?
23 A I assert to use my Fifth Amendment right.
24 MR. BEVERE: Your Honor, I have no
25 further questions.
136
1 JUDGE CURRAN: Thank you. Any
2 further questions?
3 MR. MULLIN: No further questions,
4 Your Honor.
5 JUDGE CURRAN: Thank you. The
6 witness may step down.
7 (Whereupon, the witness is
8 excused.)
9 MR. NULTY: Your Honor, may I be
10 excused, as well?
11 JUDGE CURRAN: Certainly,
12 Mr. Nulty. Thank you very much.
13 Ladies and Gentlemen, we
14 concluded the testimony for today. We don't
15 like to start another witness this late in the
16 day. So you will be excused for the weekend.
17 Please understand it's not that, you know, we go
18 off and play golf. If you come in here tomorrow
19 morning at 8:30, you probably won't be able to
20 find a seat. But that's the way things are
21 scheduled in a big county.
22 So you will be excused today.
23 You will obviously please be asked to report on
24 Monday at 9 a.m.
25 Again I will remind you please do
137
1 not discuss the case among yourselves. Don't
2 discuss it with anyone else. Don't read any
3 stories or listen to any stories or go on the
4 internet or do anything in regard to this case.
5 I hope that you have a nice
6 weekend.
7 Are there any questions about
8 returning back here on Monday at 9?
9 Thank you very much. Off the
10 record.
11 (Whereupon, the jury is excused.)
12 (Whereupon, a discussion is held
13 off the record.)
14 JUDGE CURRAN: The objection of
15 the defense is noted for the record and reserved
16 for appeal.
17 MR. BEVERE: Thank you.
18 JUDGE CURRAN: We will go off the
19 record.
20 MR. MULLIN: Thank you, Your
21 Honor.
22 JUDGE CURRAN: And you can close
23 down the computer if you wish.
24 (Whereupon, the proceeding is
25 concluded at 4:10 p.m.)
138
1 C E R T I F I C A T E
2
3 I, TRACEY R. SZCZUBELEK, a Certified Court
4 Reporter and Notary Public of the State of New
5 Jersey, do hereby certify that the foregoing is
6 a true and accurate transcript of the
7 stenographic notes as taken by and before me, on
8 the date and place hereinbefore set forth.
9
10
11
12
13
14
15
16
17
18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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