1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 10
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
- - - - - - - - - - - - - - - -
8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Tuesday, May 27, 2008
Commencing 9:50 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
14
15
16
17
18
19
20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
2
1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
16
17
18
19
20
21
22
23
24
25
3
1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 DETECTIVE SERGEANT MICHAEL REINKE
5 By: Mr. Bevere 59 246
6 By: Mr. Mullin 208 252
7 I N D E X
8 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
9 DIRE
10 POLICE OFFICER THOMAS MALANKA
11 By: Mr. Bevere 268 277
12 By: Mr. Mullin 274
13 I N D E X
14 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
15 DIRE
16 SERGEANT FRANCIS COTTER
17 By: Mr. Bevere 280 290
18 BY: Mr. Mullin 288
19 I N D E X
20 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
21 DIRE
22 SERGEANT BRIAN KANTOR
23 By: Mr. Bevere 292 301, 303
24 By: Mr. Mullin 295 303, 304
25
4
1 COURT CLERK: On the record.
2 JUDGE CURRAN: Thank you. We are
3 on the record. I will note that counsel are
4 present.
5 COURT CLERK: We don't have all
6 the attorneys.
7 JUDGE CURRAN: They were just
8 there.
9 MR. MULLIN: We don't need them,
10 Judge.
11 JUDGE CURRAN: They wanted to go
12 without you. Mr. Bevere, the record should show
13 I was starting without you and your adversaries
14 insisted that I do not.
15 MR. BEVERE: Oh, thank you very
16 much.
17 JUDGE CURRAN: You and Mr. Paris
18 both owe them now.
19 MR. BEVERE: You can start without
20 Mr. Paris.
21 MR. PARIS: Please continue,
22 please. I will be back next week.
23 JUDGE CURRAN: Okay. It's just a
24 matter in regard to the jurors. Juror Number 8
25 called in and said that she was in an accident.
5
1 So we will only have nine jurors this morning.
2 We will try to see what more we can find out,
3 but she is out. She is out so --
4 MR. PARIS: She is done? She is
5 out for the day?
6 JUDGE CURRAN: She is out for the
7 day, so --
8 MR. PARIS: Then we have to excuse
9 her.
10 MS. SMITH: I thought she was
11 trying to get here.
12 COURT CLERK: She will be a little
13 late.
14 MS. HAWKS: She said she will be a
15 little late.
16 JUDGE CURRAN: Thank you. It is
17 nice to get that message now. I was told the
18 juror was in an accident and therefore -- no one
19 said she was a little late. I apologize. Thank
20 you. We will go off the record.
21 MR. MULLIN: Judge.
22 JUDGE CURRAN: When I asked you,
23 Miss Castelli -- go ahead.
24 MR. MULLIN: If you want, Judge,
25 we can start trying to move in some evidence.
6
1 JUDGE CURRAN: That would be
2 great.
3 When did she call?
4 MS. HAWKS: She called at 8:55.
5 JUDGE CURRAN: She said she is on
6 her way?
7 MS. HAWKS: Barbara took the
8 message; but the message said, "Had an accident.
9 Will be a little late." That is what the
10 message said. It was at 8:55, almost an hour
11 late.
12 JUDGE CURRAN: Okay.
13 (Whereupon, a discussion is held
14 off the record.)
15 JUDGE CURRAN: Okay. We will go
16 back on the record, please.
17 COURT CLERK: On the record.
18 JUDGE CURRAN: Thank you. We are
19 back on the record. I will note that counsel
20 are present. I will note that the jury is not.
21 Mr. Mullin, as to evidence.
22 MR. MULLIN: Yeah, Judge, so we
23 can fill the time a bit, I thought I would start
24 moving in evidence. What I want to start with
25 is I have gone through the trial transcripts and
7
1 tried to recheck what I actually referred to in
2 examining all witnesses.
3 JUDGE CURRAN: Okay.
4 MR. MULLIN: Much of that evidence
5 I want move in. So I want to first move in
6 stuff that flows from these first eight days of
7 trial and -- and then I will go back and move in
8 some other stuff.
9 So day one I used P-163A, B, C, D
10 and E. And counsel will remember those were
11 photos of the firehouse, the parking lot and the
12 area, the fence. And counsel made may remember
13 that I --
14 MR. PARIS: I want to make this as
15 quick as possible. The photographs that had
16 been -- that had been utilized, no objection.
17 JUDGE CURRAN: Those are the
18 enlargements, correct?
19 MR. BEVERE: They are actually --
20 actually, I believe our photographs.
21 MR. MULLIN: Yes.
22 MR. BEVERE: No objection.
23 JUDGE CURRAN: Okay. So P-163A,
24 B, C and D.
25 MR. MULLIN: Right. And just to
8
1 make that batch complete, I moved in -- I showed
2 the witness also P-163F and G, which are the
3 wall and the -- and the words, "El Homo" sprayed
4 on it. So that was that.
5 MR. PARIS: No objection.
6 MR. BEVERE: No objection.
7 JUDGE CURRAN: Thank you. We have
8 got six exhibits.
9 MR. MULLIN: Also, P-117 is the
10 request for the reservation of the firehouse.
11 That's that big blow-up I had.
12 MR. PARIS: No objection.
13 JUDGE CURRAN: Okay.
14 MR. PARIS: You know, actually,
15 could you please -- if you want to go through
16 the number, it may go quicker because, you know,
17 many of them I don't have an objection to.
18 MR. MULLIN: Yeah, I just want to
19 make clear what they are.
20 MR. PARIS: All right.
21 MR. MULLIN: D-101 is a photo of
22 the dinner of June 10th, '04.
23 MR. PARIS: No objection.
24 MR. MULLIN: D -- Your Honor, if
25 you need me to slow down, let me know.
9
1 JUDGE CURRAN: No, no.
2 MR. MULLIN: D-123 is the Moreda
3 report of 5 -- May 18, '04, Bates stamped 751.
4 MR. PARIS: I'm sorry, can I have
5 that number again, please?
6 MR. MULLIN: D-123.
7 MR. PARIS: D-123 I want to
8 double-check.
9 MR. BEVERE: There is no objection
10 to that.
11 MR. MULLIN: D-124 is another
12 Moreda report, also 5/18/04, Bates stamped 7523.
13 MR. BEVERE: No objection to that.
14 MR. MULLIN: D-126, Bates stamped
15 761, that is included in a police report, Tim's
16 description of a car he saw, some words he wrote
17 that were put into Evidence by the police -- put
18 into the evidence room by the police.
19 MR. BEVERE: Judge, there is no
20 objection to that, Your Honor.
21 MR. MULLIN: D-127, police report
22 5/19/04, Bates 051, a report by Torres, Police
23 Officer Torres.
24 MR. BEVERE: That regards to the
25 4774 on the top right corner?
10
1 MR. MULLIN: D-127 and D-131.
2 MR. BEVERE: The incident number
3 is 4774?
4 MS. SMITH: Yes.
5 MR. BEVERE: No objection.
6 MR. MULLIN: D-131, the Malanka
7 report, Bates stamp number 9, that is re the
8 drive-by, you know, yelling things.
9 MR. BEVERE: That was? I'm sorry?
10 MR. MULLIN: D-131.
11 JUDGE CURRAN: Thank you.
12 MR. BEVERE: D-131 I am sure there
13 was no objection. Let me just find it. No
14 objection.
15 MR. MULLIN: Okay. D-210, police
16 report re the cars Carter observed parked just
17 before he saw the words, "El Homo" go up.
18 MR. PARIS: No objection.
19 MR. MULLIN: D-212, the Malanka
20 report on "El Homo."
21 MR. BEVERE: No objection.
22 MR. MULLIN: And then D-64 and
23 D-65, Tim's statements -- his statement to the
24 police.
25 MR. PARIS: That is no objection.
11
1 MR. BEVERE: No objection.
2 MR. MULLIN: Then P-392B we marked
3 that day also. That was also Tim's voice mail
4 to Mayor Elwell.
5 MR. BEVERE: I'm sorry, what was
6 the number?
7 MR. MULLIN: P-392B. That was
8 marked on day three of the trial.
9 MR. BEVERE: No objection.
10 MR. MULLIN: Day four we had D-310
11 that I'm not moving in. That's the Goldwaser
12 form. I am not moving that in.
13 MR. PARIS: So 310 is out?
14 MR. MULLIN: 310 is out.
15 I believe we had already done the
16 photo of the dinner, so I am not repeating that.
17 D-159 is the police report
18 concerning the very heavy guy Tim saw in front
19 of his house and called in the report.
20 MR. PARIS: That's D-159?
21 MR. MULLIN: D-159.
22 MR. PARIS: No objection.
23 MR. MULLIN: D-305 is the e-mail
24 that Carter pretty much read to the jury
25 concerning the library issue.
12
1 MR. PARIS: Your Honor, if -- I
2 believe it was 302 and 303 were not admitted
3 into Evidence, and I would object to 305 going
4 in in that case.
5 MR. MULLIN: Your Honor, they --
6 the defendants opened the door, you recall, in
7 the library incident based on a report that
8 could never go into Evidence. It was hearsay.
9 Your Honor ruled that their report was hearsay.
10 So then in front of the jury I had Tim -- I
11 believe it was without objection -- read this
12 e-mail that he had sent to -- I think to Peter
13 concerning his final dealings with the library
14 and the issue -- and the issue of this Fire
15 Department display there. It was read to the
16 jury.
17 You know what, I am going to
18 withdraw it. It was read to the jury. I can
19 comment on it in my closing. I will withdraw
20 it.
21 MR. PARIS: Thank you.
22 JUDGE CURRAN: So the last one in
23 is D-159?
24 MR. MULLIN: That's correct; that
25 is the last one I've gotten to.
13
1 JUDGE CURRAN: Thank you.
2 MR. MULLIN: Your Honor, the
3 Bursztajn -- I am now turning to P-108A, which
4 is the updated Bursztajn curriculum vitae.
5 Miss Smith offered it. Really, the evidence
6 rule is, you know, the rule concerning summary
7 of evidence. Instead of having this man testify
8 to a hundred and whatever articles, she -- she
9 asked him if it accurately summarized. I think
10 it should go in as a summary of his testimony,
11 P-108A.
12 MR. PARIS: Your Honor, I'm
13 sorry --
14 JUDGE CURRAN: I just wanted to
15 take a look at it.
16 Mr. Paris.
17 MR. PARIS: Your Honor, I don't
18 think that an expert's curriculum vitae goes to
19 the jury. The expert testified on particular
20 items that Miss Smith asked him to, and I don't
21 think an expert's curriculum vitae is
22 evidentiary in a case.
23 JUDGE CURRAN: Mr. Mullin.
24 MR. MULLIN: I thought that under
25 Rule 1006, Summaries, evidence rule, "The
14
1 contents of voluminous writings recordings or
2 photographs which cannot be conveniently
3 examined in court may be presented by a
4 qualified witness in the form of a chart,
5 summary or calculation."
6 I viewed his -- his -- you know,
7 it would have been impossible for him to lay out
8 the contents of all the lectures he has given,
9 all the books he has written and articles he has
10 submitted. And -- and so I -- I believe the way
11 Mr. Smith -- is consistent with that Rule 1006,
12 is consistent with his testimony, which is
13 noncontroversial.
14 JUDGE CURRAN: It's not, however,
15 summary of any content. It's a summary of --
16 it's basically a curriculum vitae.
17 MR. MULLIN: It's a curriculum
18 vitae.
19 JUDGE CURRAN: It's a list.
20 MR. MULLIN: It's a curriculum
21 vitae.
22 JUDGE CURRAN: Mr. Paris.
23 MR. PARIS: Your Honor, it's a
24 summary of documents that are not evidentiary.
25 In other words, you know, we're not -- we
15
1 wouldn't -- they wouldn't be able to take a book
2 chapter and say, "Here, we are going to put this
3 book chapter into Evidence because Dr. Bursztajn
4 wrote it." That doesn't make -- the underlying
5 documents have to be evidentiary.
6 A summary is of the underlying
7 documents, which then have to -- have to be
8 available, okay. The originals or duplicates
9 shall be made available for examination or
10 copying or both by other parties at reasonable
11 place and time. And the judge may order that
12 they be produced in court.
13 I mean, to say, "Okay, well, this
14 is a summary of what of articles that he has
15 written" doesn't make those articles
16 evidentiary; and it doesn't make a summary of
17 the articles or CV evidentiary.
18 When you're talking about a
19 summary of underlying documents, usually you
20 think about it in terms of bills of lading or
21 invoices or something like that, where you have
22 a stack of invoices like this and you say, "Did
23 you prepare a summary of the amounts due under
24 all of those invoices?" "Here is the list of
25 the invoices. Here are the invoices. You can
16
1 go through them, if you want to check on
2 summary." But to put in an expert's curriculum
3 vitae doesn't make it evidence.
4 JUDGE CURRAN: Mr. Mullin.
5 MR. MULLIN: I have made the
6 arguments I have, Your Honor.
7 JUDGE CURRAN: I am not going to
8 allow P-108. I find that there was extensive
9 questioning on his curriculum vitae, talking
10 about certain chapters, certain articles,
11 certain appearances and then asking him about
12 those. I realize that, frankly, my guess is
13 that no more than maybe 20 percent of the items
14 on there were even touched on. But I find that
15 it is not appropriate to admit the list, if you
16 will, of his other chapters or books.
17 MR. MULLIN: I understand.
18 JUDGE CURRAN: I will note your
19 objection.
20 MR. MULLIN: Thank you.
21 JUDGE CURRAN: P-108 is out.
22 MR. MULLIN: P-89 is the letter
23 from Agudosi to the -- of the Attorney General's
24 Office delineating the Secaucus Police
25 Department's response -- responsibility for post
17
1 4/25/04.
2 JUDGE CURRAN: Mr. Paris is
3 objecting to the characterization, and I can see
4 that.
5 MR. PARIS: I don't --
6 JUDGE CURRAN: We got the letter.
7 We know which letter.
8 MR. MULLIN: It's just a letter,
9 and it's P-89.
10 MR. PARIS: Yeah, I am not going
11 to object to characterizations.
12 JUDGE CURRAN: Okay, good.
13 MR. PARIS: I will only object if
14 I object to the document. I have no objection
15 to that document.
16 JUDGE CURRAN: Thank you. P-89
17 goes in.
18 MR. MULLIN: Okay. Then I will go
19 to day five. Let's see. D-92 is the letter.
20 And again, I won't characterize it. It's the
21 letter from the Police Chief saying something
22 about Chuck Snyder, Jr.'s future at the police
23 station.
24 JUDGE CURRAN: As I think we
25 already had a characterization argument on that
18
1 one.
2 MR. PARIS: No objection.
3 JUDGE CURRAN: No objection. D-92
4 goes in.
5 MR. MULLIN: P-117 is the party
6 approval document. You know, it's -- one of
7 these -- you know, Judge, what we can do is we
8 can sit down before we do our closings and
9 eliminate some duplication. I believe that
10 today there will be some duplication, but all
11 counsel are committed to have only one document
12 in for each.
13 MR. BEVERE: What was the number
14 again?
15 MR. MULLIN: P-117 is the party
16 approval document.
17 MR. BEVERE: I already have that
18 as in.
19 MR. MULLIN: So that's okay.
20 JUDGE CURRAN: But you're right; I
21 would rather put in duplicates now and --
22 MR. MULLIN: In abundance of
23 caution.
24 JUDGE CURRAN: Exactly.
25 MR. MULLIN: P-395 were the group
19
1 of exhibits by -- used by Dr. Marcus for the
2 economic loss. And under the case law as it's
3 developed in the Appellate Division, economic
4 loss exhibits go to the jury. So I am offering
5 all the charts that he used in front of the
6 jury. I believe they were labeled P-395A; but
7 really, that's the whole group.
8 MR. PARIS: I think there were --
9 JUDGE CURRAN: How many pages?
10 MR. MULLIN: Well, let's get them.
11 JUDGE CURRAN: Are we talking
12 about blowups or -- just the blowups? Okay.
13 MR. MULLIN: Three sheets.
14 JUDGE CURRAN: Three sheets.
15 MR. PARIS: Your Honor.
16 MR. MULLIN: All right. Three,
17 three pages. P-295A and P-395B are ones he used
18 in front of the jury.
19 JUDGE CURRAN: But just so we keep
20 track, these the large ones.
21 Mr. Paris.
22 MR. PARIS: Yes, I am going to
23 object to the enlargements going in. There were
24 eight-and-a-half-by-11 documents from which they
25 were enlarged. We each had copy of the
20
1 eight-and-a-half-by-11. I object to the
2 enlargements going in, as opposed to
3 eight-and-a-half-by-11. That's number one.
4 Number two, unless I'm missing
5 something, I don't know why that is anything
6 other than an expert report, which is not --
7 which does not go in to the jury. I'm not
8 familiar with the case law. If Mr. Mullin says
9 there is case law that they go in, I will accept
10 that; but certainly not blowups.
11 MS. SMITH: Judge, with regard to
12 the blowups, Judge, this is fairly new. For
13 years Dr. Marcus did it in handwriting and the
14 blowups go into the jury. In this case there
15 was an addition in handwriting on the blowups.
16 JUDGE CURRAN: I was going to ask.
17 I was looking through to see.
18 MS. SMITH: Yes, there were some
19 calculations done, writing on the blowups.
20 Usually we fold them up and they go in under
21 DeHanes and a couple other cases that allow it.
22 MR. PARIS: I don't think that
23 DeHanes allows a blowup necessarily. I mean,
24 now --
25 JUDGE CURRAN: I think it doesn't
21
1 require it, but it doesn't prohibit it.
2 MR. PARIS: It says nothing,
3 probably, about blowups.
4 JUDGE CURRAN: Exactly.
5 MR. PARIS: What I'm concerned
6 about is I don't see why this document should go
7 in as a blowup, as compared to every other
8 document going in as eight-and-a-half-by-11.
9 There is no more reason for this to go in as a
10 blowup than any other document to go in in
11 eight-and-a-half-by-11.
12 JUDGE CURRAN: Well, we do have
13 the handwriting on the one.
14 MR. PARIS: We can still copy that
15 and still bring it down. You know, I just -- or
16 we can replicate the handwriting. I don't have
17 a problem replicating the handwriting on
18 eight-and-a-half-by-11.
19 MR. MULLIN: I don't -- I'm
20 looking at the case law, DeHanes ruling. I
21 don't see anything on that issue. I am just
22 looking at the notations to the evidence Rule
23 704.
24 MR. PARIS: Your Honor, DeHanes,
25 again, spoke about the expert being able to
22
1 testify as to the bottom line. Okay. But
2 sending in --
3 JUDGE CURRAN: Excuse me.
4 MR. MULLIN: It's the DeHanes.
5 Court experts may introduce into Evidence --
6 JUDGE CURRAN: I can't hear.
7 MR. MULLIN: -- to summarize their
8 result.
9 MR. PARIS: I'll stand
10 corrected --
11 MR. MULLIN: Here it is on page
12 678.
13 JUDGE CURRAN: Excuse me one
14 second. I apologize. If there is no objection,
15 I'm going to ask Miss Hawks if she will just say
16 to the jurors, "We are waiting for a juror who
17 is on her way. She had an accident," so, you
18 know, we are not criticizing her. So if they'd
19 like to go down for 15 minutes, that would be
20 great. Thank you.
21 Any objection to Miss Hawks going
22 in and doing that?
23 MR. MULLIN: No objection.
24 MR. BEVERE: No, Your Honor.
25 JUDGE CURRAN: Thank you. I will
23
1 note that the message that Miss Hawks got when
2 she called just now or few minutes ago
3 indicates -- I can't believe this lady is still
4 coming -- her car was totaled and she is
5 standing waiting for a bus. If we had known
6 that, I would have asked my law clerk to take my
7 car and pick her up.
8 MR. BEVERE: Can I surreptitiously
9 give her my card, Your Honor?
10 JUDGE CURRAN: What -- oh. If we
11 can find her.
12 MS. HAWKS: Jurors are
13 approaching.
14 JUDGE CURRAN: Thank you.
15 (Whereupon, the jury is excused.)
16 MS. HAWKS: Okay. That's it.
17 JUDGE CURRAN: Thank you.
18 MR. PARIS: Your Honor, I don't
19 have an objection, then, to the document,
20 itself; however --
21 JUDGE CURRAN: Hold on.
22 (Whereupon, a juror leaves the
23 courtroom.)
24 JUDGE CURRAN: I'm sorry. Thank
25 you. We will go back on the record, Mr. Paris.
24
1 MR. PARIS: I'm sorry. I don't
2 have an objection, as I had said, to a document
3 going in. I just do object to that document
4 being -- which is a blowup, as compared to all
5 the other documents that are going to go in as
6 eight-and-a-half-by-11s. And I don't see any
7 reason why we can't replicate the final
8 calculation that was done up there on an
9 eight-and-a-half-by-11. That's all we all have
10 eight-and-a-half-by-11s, and we can replicate on
11 an eight-and-a-half-by-11.
12 JUDGE CURRAN: Miss Smith.
13 MS. SMITH: DeHanes and the Court
14 Rule 6704 says the experts may introduce into
15 Evidence exhibits prepared to summarize their
16 results. Those are the exhibits prepared to
17 summarize their results. We're all busy. I
18 mean, if I had it properly complete in the small
19 form, fine. But I -- I don't know how to -- I
20 don't really feel like I need another job right
21 now, frankly. Goes in --
22 MR. PARIS: I will take on that
23 job, Your Honor. I will take on that job. I
24 have the eight-and-a-half-by-11 that was
25 provided to us before Dr. Marcus testified. I
25
1 will make the modification. Counsel can look at
2 it, make sure that it's consistent with the
3 blowup, so that there is no question.
4 JUDGE CURRAN: Okay. 395A and B,
5 then, will be admitted in eight-and-a-half-by-11
6 form with addition to be approved by Plaintiffs'
7 counsel.
8 MR. PARIS: Thank you, Your Honor.
9 JUDGE CURRAN: Thank you. I will
10 note your objection as to the blowup --
11 MR. MULLIN: Thank you, Your
12 Honor.
13 JUDGE CURRAN: -- or the larger
14 size.
15 MR. MULLIN: And P-53 is the fire
16 code Chapter 12 of the Secaucus ordinances. We
17 have different versions of that. What I want is
18 the complete chapter of wherever it may be
19 hiding in our books.
20 MR. BEVERE: I -- Judge, I will
21 get my D number because I think that I may
22 have -- I think my D number may be --
23 MR. MULLIN: I don't think we have
24 any objection in principle.
25 MR. BEVERE: No, I am just trying
26
1 to get you the D number.
2 MR. MULLIN: P-53.
3 JUDGE CURRAN: Well, what we'll
4 say for this list is P-53 complete.
5 MR. MULLIN: Complete.
6 JUDGE CURRAN: And then we can
7 worry about that later.
8 MR. BEVERE: Which would also be
9 D-273, Your Honor.
10 JUDGE CURRAN: D-273. Okay. I am
11 going to keep both numbers for now.
12 MR. BEVERE: D-273 through 291.
13 MR. MULLIN: Okay. To 291. To
14 D-291.
15 MR. BEVERE: Correct.
16 JUDGE CURRAN: So I am going to
17 keep P-53 now, and I am going to keep D-273
18 through 291.
19 MR. BEVERE: Correct.
20 MR. MULLIN: We will check it
21 together --
22 MR. BEVERE: Yes.
23 MR. MULLIN: -- and make sure it's
24 complete.
25 JUDGE CURRAN: Right.
27
1 MR. MULLIN: Now I am up to day
2 six of the trial. P-358 is the Patricia Hjelm
3 statement.
4 MR. BEVERE: No objection.
5 MR. MULLIN: P-390 is the 911 --
6 the CD of 911 calls.
7 MR. PARIS: I'm sorry, that was
8 number?
9 MR. MULLIN: P-390, the 911 CD
10 that I made for various witnesses.
11 JUDGE CURRAN: It has the three
12 calls on the one.
13 MR. PARIS: That's fine.
14 MR. MULLIN: That's fine. P-73,
15 that's the deVries e-mail to Troyanski of May
16 28th, where he talked about police appearing on
17 the scene and then disappearing.
18 MR. PARIS: All right. Just, I'm
19 sorry, the number again, please?
20 MR. MULLIN: P-73.
21 MR. PARIS: No objection.
22 MR. MULLIN: D-27.
23 MR. PARIS: D-27?
24 MR. BEVERE: D-27, which is --
25 D-27 is no objection.
28
1 MR. MULLIN: No objection. D-28.
2 MR. BEVERE: Second page of that.
3 MR. MULLIN: D-52 and D-53 are the
4 two pages of the Patricia Hjelm statement. So
5 that's duplicate of P-358, so I will take out
6 D-52 and 53.
7 MR. BEVERE: What was your P
8 number again?
9 MR. MULLIN: P-358, Patricia Hjelm
10 statement to the police.
11 MR. BEVERE: No objection.
12 MR. MULLIN: I am up to day seven
13 of the trial. P-134 is the general order of the
14 Secaucus Police Department bias investigation.
15 JUDGE CURRAN: I'm sorry, what was
16 that number?
17 MR. MULLIN: P-134.
18 MR. PARIS: No objection.
19 MR. BEVERE: No objection.
20 MR. MULLIN: P-220 is the
21 Amodeo -- the report -- the large report that
22 Amodeo did.
23 MR. PARIS: 220.
24 MR. MULLIN: 220. It's P -- it's
25 duplicated.
29
1 MR. BEVERE: The initial report.
2 MR. MULLIN: That's right. P-221
3 and P-222 are the reports of the two officers
4 that were assigned to be on-duty the early
5 morning hours of the incident, Moreda and Smith.
6 Just you recall, I cross examined -- I examined
7 Moreda with those documents.
8 MR. PARIS: Amodeo.
9 MR. MULLIN: Excuse me, Amodeo.
10 MR. PARIS: No objection to either
11 one.
12 MR. MULLIN: P-224 is Malanka's
13 report on talking to Dee Bardini.
14 MR. PARIS: No objection.
15 MR. MULLIN: P-226, which is also
16 your D-13, is Malanka reporting on reaching out
17 to Bobby Kickey.
18 MR. PARIS: No objection.
19 MR. MULLIN: P-274 is the
20 underlying report re the words, "El Homo" on the
21 wall. And that, again, may be duplicative. I
22 believe we have been through that but --
23 MR. PARIS: No objection.
24 MR. BEVERE: Judge, let me just
25 look at that because I thought that there may
30
1 have been -- there may have been two incidents
2 reported in that report, one which was the "El
3 Homo" and the second was an incident which I
4 think you precluded in the pretrial rulings.
5 Let me just confirm that.
6 MR. MULLIN: P-274.
7 MR. BEVERE: I thought that -- and
8 if that's the case, we have no problem with the
9 redaction.
10 MR. MULLIN: I think that was one
11 of the included incidents, not excluded.
12 JUDGE CURRAN: I have 274 as a
13 two-page report.
14 MR. BEVERE: It is. It is, Judge.
15 My recollection of Your Honor's pretrial ruling
16 was that the incident where "El Homo" was
17 written on the wall was in but then the second
18 incident referenced therein was not in. That
19 was where Mr. Carter overheard some, I think,
20 arguing or some -- have a vehicle and he heard
21 the word "faggot" yelled. And I think Your
22 Honor had ruled that incident was out.
23 Obviously, we have no problem
24 with the report going in with that redaction.
25 That's all because it was just an incident that
31
1 was not -- that was excluded.
2 MR. MULLIN: Your Honor, I think
3 counsel is accurately reporting your ruling; but
4 I will ask you to reconsider it in light of all
5 the evidence you have heard. I understand your
6 ruling on the bloody tissues in Jersey City, for
7 example, as -- but I will ask you to -- this
8 seems like an incident at the core of the case.
9 Let me just read P-274. And again, it's by
10 Officer Linda Mangone. "Timothy Carter also
11 reported an incident which occurred on
12 October 31, '04 at approximately 2300 hours. He
13 stated that while he was outside sweeping" --
14 MR. PARIS: Wait. Wait. Wait,
15 counsel, for one second, please.
16 (Whereupon, a juror enters the
17 courtroom.)
18 MR. PARIS: There is a juror --
19 there was a juror.
20 MR. MULLIN: Thank you. Okay.
21 Now, right, "stopped a vehicle at Paterson Plank
22 Road and Franklin Street. These individuals
23 then began yelling for approximately 15 seconds.
24 He stated he could not hear everything he was
25 saying but in fact" -- I guess after the word --
32
1 "did hear the word "fag" being yelled. He also
2 described the vehicle as a newer model, bright
3 red pickup truck with regular sized cab. He
4 described the actors as two white males in their
5 20s and the driver having colored hair. No
6 further description."
7 Again, Your Honor, I think the
8 basis for your ruling was that he didn't say he
9 saw -- he recognized the truck, the vehicle as
10 having belonged to firemen. And he did didn't
11 identify the participants as firemen. What I
12 said at the time was these incidents, this
13 attack identified the plaintiffs' home as the
14 home of two gay men and basically made it a
15 target for any homophobic individual in the
16 area. It was inevitable that with so much
17 prejudice out, there by attacking them this way
18 and highlighting that they lived there and that
19 they were gay, they exposed them to this kind of
20 drive-by, whether or not they were firemen doing
21 it.
22 So this is causally related in
23 that way, Your Honor, to what the firemen did.
24 And that was my argument.
25 JUDGE CURRAN: Mr. Paris.
33
1 MR. PARIS: Your Honor, this is so
2 remote. It is so remote that, obviously, the
3 Court recognized that and said this is not going
4 to come in.
5 In addition, if we're talking
6 about deliberate indifference, you're talking
7 about a remote incident, not related to the Fire
8 Department that's reported three days after it
9 occurred. It occurred, apparently, allegedly,
10 on 10/31 and was reported on 11/2. Now, I mean,
11 is that -- does that go to deliberate
12 indifference, something that's reported three
13 days later, not identified as firemen?
14 And you know, this is like --
15 this is like a new theory. The plaintiffs were
16 interviewed by newspapers. We've established
17 that Mr. deVries had his picture taken looking
18 out the window. And now Mr. Mullin wants to
19 create a new cause of action because,
20 apparently, because of the publicity which
21 plaintiffs indicated in e-mails and they have
22 testified to, which they were seeking, now they
23 are arguing that because people in the community
24 may have targeted them because they were angry.
25 And certainly by October 31st there were
34
1 newspaper articles that indicated that the
2 plaintiffs were going to sue the community. And
3 I think the -- I think the number $5 million was
4 in the newspaper. Maybe that came from a tort
5 claim notice. Now is the Town going to be
6 responsible for every citizen in Town who may
7 have been angry at the plaintiffs because they
8 were suing the Town for $5 million?
9 I mean, this gets so remote. The
10 case is becoming so amorphous that it has
11 nothing to do with deliberate indifference
12 anymore, if they are going to argue this. And
13 you know, I will leave it. The Court previously
14 made a ruling about this incident.
15 JUDGE CURRAN: Mr. Mullin.
16 MR. MULLIN: I have nothing
17 further to say, Your Honor.
18 JUDGE CURRAN: Thank you. I find
19 that, as I indicated earlier, the matter is too
20 remote, that being the information in the third
21 paragraph of the report, which goes over to the
22 second page, there is nothing definitive, as
23 indicated by Mr. Paris, in regard to the theory
24 that they were made victims or potential
25 victims. I find that there just simply is not
35
1 enough nexus to this and not enough nexus to
2 even damages of fear because it was not even
3 reported until there was another incident.
4 The one question I have -- and I
5 had made a note of this a long time ago -- there
6 are two -- well, I think the report is just
7 unclear. And if it's going in, my concern is
8 was "homo" written -- yes, it was -- on the wall
9 across 1561 Paterson Plank Road, why, then, does
10 it say that the victim -- are there two
11 addresses?
12 MR. BEVERE: 1561 Paterson Plank
13 Road is actually the address of the North End
14 Firehouse. I stood up because I anticipated
15 Your Honor was going to ask.
16 JUDGE CURRAN: But that's not what
17 this says.
18 MR. BEVERE: The address is --
19 JUDGE CURRAN: The retainer
20 wall -- I thought the retainer wall went to the
21 neighbors next door.
22 MR. BEVERE: It did. 1561 is
23 the -- is the --
24 JUDGE CURRAN: So the report is
25 wrong?
36
1 MR. BEVERE: 1561 is the
2 firehouse. 1560 would be the house across the
3 street --
4 JUDGE CURRAN: Okay.
5 MR. BEVERE: -- from the front
6 door of the firehouse.
7 JUDGE CURRAN: My concern is it
8 refers to the victim as if the individuals whose
9 home was written -- the wall of which home was
10 written on as the victim. Do you see my
11 concern?
12 MR. BEVERE: The position I think
13 that -- that Linda Mangone took with regard to
14 report was that --
15 JUDGE CURRAN: See, my only
16 concern is under "victim's name" it says,
17 "Timothy Carter." My concern is they will read
18 this and wonder are there two addresses?
19 MR. BEVERE: Oh, I see. I see
20 what you are saying.
21 JUDGE CURRAN: See my concern?
22 MR. BEVERE: I see your concern.
23 JUDGE CURRAN: Not the address of
24 what the Fire Department is versus what's across
25 the street. It's technically the people whose
37
1 wall was written on -- as long as it's a -- is
2 not the victims --
3 MR. BEVERE: I think --
4 JUDGE CURRAN: And they are not
5 identified as the victims in this report.
6 MR. BEVERE: I think that they
7 were both identified. Mr. Carter was identified
8 as a victim, as being the alleged subject of --
9 JUDGE CURRAN: It does have his
10 address.
11 MR. BEVERE: And in addition, the
12 owner of the wall would theoretically also be a
13 victim of vandalism, which I think is what they
14 were --
15 JUDGE CURRAN: I think they can
16 understand.
17 MR. MULLIN: I can understand.
18 Maybe, Your Honor, we can
19 stipulate we are allowed to refer to the jury to
20 the fact that 1561 Paterson Plank Road is the
21 address of the North End Firehouse?
22 JUDGE CURRAN: Sure.
23 MR. BEVERE: Sure.
24 MR. MULLIN: Then in the closings,
25 if we need to clarify this --
38
1 JUDGE CURRAN: So 274, then, is
2 admitted without objection in redacted form and
3 counsel will redact?
4 MR. BEVERE: Judge, I think your
5 court staff has a message for you.
6 MS. HAWKS: Your Honor, the other
7 jurors are here.
8 JUDGE CURRAN: Oh, great. So you
9 have all the jurors? Thank you. Thank you.
10 COURT CLERK: Jurors are
11 approaching.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, the jury is brought
14 into the courtroom.)
15 JUDGE CURRAN: Are you okay?
16 JUROR: Yes.
17 JUDGE CURRAN: Well, everybody
18 appreciates your getting here, thank you.
19 JUROR: Thank you.
20 JUDGE CURRAN: I think if there is
21 no problem, we can go on with this. I know one
22 of the jurors seemed to bring in something that
23 looked like food or whatever. We can give them
24 a few minutes just so that we finish this.
25 MR. MULLIN: I will keep rolling
39
1 along, then.
2 JUDGE CURRAN: Okay.
3 MR. MULLIN: The next exhibit --
4 I'm on day seven -- that was P-351, which is
5 Amodeo's second report, where he referred to the
6 crude terminology he said was used by Snyder,
7 Sr.
8 MR. PARIS: No objection.
9 MR. MULLIN: P-364 is the Malanka
10 report on the "El Homo" spray -- spraying. I
11 think we have it, again; but again, I am just
12 going through the days. And there was no
13 objection, I believe, to that.
14 MR. PARIS: No objection.
15 MR. MULLIN: P-396 and 398 were
16 the -- actually, I think we referred to three
17 statutes cross-examining Amodeo. For some
18 reason there wasn't a P-397, but I see my notes
19 go from P-396 to 398. And we can check the
20 transcript; but we referred to three statutes,
21 two of which he had referred to in his report,
22 Amodeo. The harassment statute, and we also had
23 the assault statute. So those were the three
24 statutes I -- I used to question him.
25 MR. PARIS: Objection, Your Honor.
40
1 I don't think that the -- the State statutes are
2 evidentiary and that they should be sent in to a
3 jury for them to try to figure out what may
4 apply, what the interpretation may be. We are
5 not sending them with any of the case law that
6 may have interpreted the statute. And I don't
7 think it's appropriate for the jury to be -- to
8 have statutes in there with them. If the issue
9 is relevant, then the plaintiff can seek a
10 charge from the Court.
11 JUDGE CURRAN: Mr. Mullin.
12 MR. MULLIN: I think -- I think,
13 Your Honor, we can -- we can ask for a charge
14 from the Court. That is, Amodeo testified
15 extensively. He was the one that put two of
16 these statutes in his report. All police
17 officers put on the top of their report what
18 statutes they're investigating the violation of.
19 JUDGE CURRAN: Many times they
20 could even tell you what they are.
21 MR. MULLIN: Yes, that's right.
22 JUDGE CURRAN: He obviously knew.
23 MR. MULLIN: He knew. And so I
24 think it be would be convenient to give it to
25 the jury. But on the other hand, Your Honor, I
41
1 think it's just as easy for Your Honor to put it
2 in the charge. There is some reference in the
3 reference to some of that. The reports say what
4 the statutes were.
5 JUDGE CURRAN: I think that's a
6 better way to do it and say they read in
7 pertinent part; otherwise --
8 MR. MULLIN: Okay.
9 JUDGE CURRAN: So we will exclude
10 them, 396 and 398, correct?
11 MR. MULLIN: Yes. And 397, if
12 it's one of the statutes.
13 JUDGE CURRAN: If it's one.
14 MR. MULLIN: The mystery statute.
15 JUDGE CURRAN: I just looked on
16 mine, and I don't have 397. But again, I could
17 have --
18 MR. MULLIN: I see we leaped to
19 398.
20 JUDGE CURRAN: Yes.
21 MR. MULLIN: So, anyway, then the
22 next is D-12, is a April 27th, '04 Malanka
23 report about an attempt to reach out to Snyder
24 for cooperation.
25 MR. PARIS: No objection.
42
1 MR. MULLIN: D-13 is also P-226.
2 I think we already have this. That is the
3 Malanka call to Bobby Kickey. So I will take
4 that out; we already have that in. D-2 and D-3
5 are the two pages of the original Ulrich report.
6 MR. PARIS: No objection.
7 MR. MULLIN: D-66 is Ulrich's
8 April 30th supplemental report.
9 MR. PARIS: No objection.
10 MR. MULLIN: D-37 -- D-67 is
11 Reinke supplemental report. You know what, Your
12 Honor, I'm not going to put that one in yet, no.
13 I am not putting that in. We will leave that
14 out. Now I am up to day eight. D-34 is the
15 statement by Richard Johnson.
16 MR. PARIS: No objection.
17 MR. MULLIN: D-74 is the DeGennaro
18 report re his Kickey license plate that
19 Mr. Carter mentioned.
20 MR. PARIS: No objection.
21 MR. MULLIN: P-134 is the
22 firefighters' two-page letter of resignation or
23 threatened resignation.
24 MR. PARIS: I'm sorry, what was
25 that again?
43
1 MR. MULLIN: P-134?
2 MR. PARIS: No objection.
3 MR. MULLIN: P-327 --
4 MR. PARIS: P-134?
5 MR. MULLIN: That was -- P-134 is
6 the firefighters.
7 MR. PARIS: I thought that was
8 your bias --
9 MR. BEVERE: P-134 was the
10 general -- Secaucus general --
11 MR. MULLIN: We have the
12 firefighter letter coming into --
13 MR. PARIS: I know. And we have
14 no objection to the fire --
15 MR. MULLIN: Firefighter letter of
16 resignation. I will have to check the number on
17 that.
18 MR. PARIS: No objection.
19 JUDGE CURRAN: Whose testimony is
20 it in? Well, it's in a couple.
21 MR. MULLIN: I did that with -- I
22 did it with Dan Snyder. He authenticated it and
23 authenticated his signature on it. Your Honor,
24 we will give you a correct number on that.
25 P-329 is one of the Fire Chief Walters'
44
1 statements.
2 MR. PARIS: P-329, Walters'
3 statement, no objection, Your Honor.
4 MR. MULLIN: P-333 is yet another
5 of the Walters statements.
6 MR. PARIS: No objection.
7 MR. MULLIN: P-334 is yet
8 another -- well --
9 MR. PARIS: Again, I think a lot
10 of these are duplicative but --
11 MR. BEVERE: Judge.
12 JUDGE CURRAN: Yes.
13 MR. BEVERE: If you want to step
14 back for a second, D-61 and D-62 are my D
15 numbers for that letter from the firemen
16 threatened resignation. You want to use my D
17 numbers?
18 JUDGE CURRAN: What is the number?
19 MR. BEVERE: D-61 and D-62.
20 JUDGE CURRAN: Thank you.
21 MR. MULLIN: So D-333 is the
22 April 28th, '04 3:43 p.m. statement of Frank
23 Walters. I think counsel has already agreed
24 that goes in.
25 MR. PARIS: Yeah.
45
1 MR. MULLIN: P-334 is the
2 April 28th statement of Frank Walters taken at
3 4:47 p.m.
4 MR. PARIS: No objection.
5 MR. MULLIN: And P-335 is the
6 statement taken the next -- of Frank Walters
7 taken the next day on 4/29/04.
8 MR. PARIS: No objection.
9 MR. MULLIN: Your Honor, that's
10 what I have extracted from all the trial
11 transcripts. And I can -- then I have --
12 JUDGE CURRAN: May I just ask you
13 a question? I had in my notes P-17B.
14 MR. MULLIN: 17B?
15 JUDGE CURRAN: Could be a mistake.
16 MR. MULLIN: I think it might be a
17 mistake.
18 MR. BEVERE: That's a newspaper
19 article.
20 MR. MULLIN: That is just a
21 newspaper article we didn't put in.
22 JUDGE CURRAN: Okay. But that was
23 referred to?
24 MR. MULLIN: No, we didn't -- let
25 me see if we referred to it.
46
1 JUDGE CURRAN: Maybe that is the
2 one with the picture.
3 MR. PARIS: That -- that I -- B?
4 JUDGE CURRAN: No?
5 MR. MULLIN: No, I don't think
6 I --
7 MR. BEVERE: No.
8 MR. PARIS: No, that's too late in
9 the day.
10 MR. MULLIN: Let me check 117,
11 Your Honor, just in case there was --
12 JUDGE CURRAN: 117 is a blowup.
13 MR. BEVERE: That is the request
14 for reservation of firehouse for personal use.
15 JUDGE CURRAN: Okay.
16 MR. BEVERE: That's everybody
17 in --
18 JUDGE CURRAN: Well, everybody
19 agrees.
20 MR. MULLIN: So I have more to
21 move in, but I suppose we should move on with
22 the trial now.
23 JUDGE CURRAN: Sure.
24 MR. PARIS: Your Honor, I
25 responded -- and maybe -- maybe we need to
47
1 discuss this now, so it will move the trial
2 testimony along a little bit. We had received
3 from Mr. Mullin on Wednesday a stipulation, a
4 proposed stipulation with regard to moving
5 exhibits into Evidence. I responded to
6 Mr. Mullin where vast majority of what they
7 were --
8 JUDGE CURRAN: Excuse me.
9 Miss Castelli, I think you missed
10 some of the -- you have got to take -- what was
11 the last number that you have?
12 MR. MULLIN: My last number I
13 stopped on --
14 JUDGE CURRAN: No, no.
15 COURT CLERK: -- P-333.
16 JUDGE CURRAN: So you have to add
17 P-334, D-61 and D-62.
18 COURT CLERK: I have that.
19 JUDGE CURRAN: And P-65. You
20 can't possibly -- you just got it now? Thank
21 you.
22 I'm sorry, Mr. Paris.
23 MR. PARIS: Not at all. In any
24 case, there were a number of P exhibits that
25 they indicated that they would move in. There
48
1 was an indication that they would not object to
2 the exhibits that we had proposed or -- excuse
3 me, the exhibits that were in our notebook with
4 certain exceptions. And there were a host of P
5 exhibits which we did not object to, which
6 included a number of police reports, et cetera.
7 The objections were based upon
8 rulings that had been made by the Court with
9 regard to the American flag incident, bloody
10 tissues incident. There were objections based
11 upon prior exhibits.
12 But again, you know, as long as
13 we have an agreement we are only going to put in
14 any one exhibit once, that's not a problem.
15 With regard to the police
16 officers, if the police officers are going to
17 have to come in and identify and move in each
18 document, certainly going to take a lot longer
19 than if I -- than if the plaintiff is allowed to
20 continue moving in the exhibits that are listed.
21 The other P exhibits I will move in, and some of
22 them may be repetitive. And if there is an
23 agreement that the defendant notebook with the
24 exceptions listed by the defendant, which we can
25 argue later, can go in, I think it will move
49
1 things along a lot more -- more expeditiously.
2 MR. MULLIN: Your Honor, we tried
3 to work this all out; and we have exchanged
4 e-mails. And Mr. -- last night Mr. Paris sent
5 me a long e-mail objecting to many documents;
6 and so we never finished this process, you know,
7 of moving evidence in. So I just did it the
8 old-fashioned way; I stood up today and moved
9 evidence in.
10 As to the police reports, whereas
11 the police reports for me are, you know, party
12 admissions or evidence of, you know, clearly
13 admissible. For them police reports are
14 hearsay. However, it may be that -- that I need
15 some of these police reports in my case. So I
16 think that's what Mr. Paris is alluding to, that
17 I -- I have already admitted some police
18 reports, and now they're in.
19 But when a police officer takes
20 the stand, I don't want the police officer to
21 come to the stand with any documents. As they
22 did with Tim Carter, as they, defense counsel,
23 did with me and Tim Carter, they objected when I
24 tried to refresh his recollection with his
25 statement. Well, they have to do the same
50
1 thing.
2 They have to lay the foundation
3 with the -- for example, Officer Reinke is going
4 to get on the stand. They have to lay the
5 foundation that he -- if he wants to look at his
6 police report, he has to testify he once had a
7 recollection of these events, his recollection
8 is now impaired and so he needs his police
9 report to refresh his recollection. I -- just
10 as they demanded that foundation of me, when I
11 had Mr. Carter on the stand, I now demand that
12 of them consistent with Rule 612.
13 Now, it may be that after these
14 police officers testify that we'll agree that
15 these reports should come into Evidence. May be
16 that when they offer them into Evidence some of
17 them, probably a good number of them, are going
18 to be documents I wanted in Evidence, anyway.
19 But I don't want the fact that I'm probably
20 going to allow some of these documents into
21 Evidence to -- to give the jury the
22 misimpression that this police officer is
23 testifying from recollection, when, in fact,
24 they are sitting there reading the report.
25 So because we couldn't reach an
51
1 agreement last night because Mr. Paris sent me a
2 very long list of objections that I just,
3 frankly, wasn't able to get through, we don't
4 have any sort of deal. But what we do have is a
5 recognition on both sides that an awful lot of
6 these police reports I want in my case, anyway.
7 And -- and we'll probably reach an agreement on
8 many of them. Many of them are already in
9 Evidence as of right now. And of course, I
10 can't object to them referring to such documents
11 as being in Evidence. That's -- that's where I
12 am right now because we weren't able to reach
13 this -- this deal in time.
14 MR. PARIS: Your Honor, you know,
15 I -- the -- I have a copy of the e-mail that I
16 sent to Mr. Mullin --
17 MR. MULLIN: I do too.
18 MR. PARIS: -- at 3:30 yesterday
19 and 3:10 yesterday. And we had e-mails going
20 back and forth during the course of the weekend.
21 If that's the position he wants to take, that's
22 fine. But if he wants to say there are
23 objections to many documents, there were
24 objections to documents on the basis of
25 duplication. There were objections such as the
52
1 one we had here, a couple of minor redactions.
2 There were objections to documents regarding
3 Glocktalk, which you have already made a ruling
4 on. Counsel still sought to put the document
5 in. The American flag incident, Your Honor made
6 a ruling on. Still sought to put the document
7 in. The bloody tissues in Jersey City, Your
8 Honor made a ruling. Still sought to put the
9 document in.
10 So I had to go through each and
11 every document. I would have liked to say, "Put
12 them all in"; but -- but clearly, there were
13 documents that were proffered in violation of
14 Your Honor's prior rulings, okay.
15 In addition, those are the -- the
16 most substantive objections, all right. There
17 were -- there were documents being sought -- I
18 believe they were seeking to put in expert
19 reports of a doctor who didn't testify. I
20 thought -- I guess I'm wrong. It was the -- the
21 CV, rather than the report, of Dr. Bursztajn.
22 But for example, out of the
23 entire -- they had indicated that they had no
24 objection to the entire D notebook going in,
25 with three exceptions, Exhibits D-302, D-305 and
53
1 D-309, out of the entire D notebook.
2 I basically made three
3 objections, okay, with redactions regarding a
4 reporter, Sullivan, and what Mr. Carter was
5 reporting that some reporter had supposedly
6 reported on. That was one.
7 Two objections to D documents
8 were duplicate of a prior exhibit.
9 And the third objection was with
10 regard to library letter, which was just
11 withdrawn.
12 So out of the whole notebook,
13 that's that. There was a whole list of P
14 exhibits that the plaintiff was seeking to move,
15 a whole list. This is just scratching the
16 surface. Out of that entire list I objected to
17 the bloody tissues, comments of the reporter
18 again, certain pages from the AG's file, et
19 cetera.
20 Now, all that I'm saying is that
21 if we are now going to be arguing over exhibits
22 later on, I think we need to have the argument
23 now so that the plaintiff has their case in and
24 then we can start our case and we can refer to
25 documents that are already into Evidence.
54
1 We understand that if an officer
2 needs to have a document to have their
3 recollection refreshed, all that I said with
4 Mr. Carter, which is now being waved around like
5 a flag, all that I said is, "Does he need the
6 document to refresh his recollection?" And the
7 answer was, "Yes." I said, "Fine."
8 I had no problem with Dr.
9 Bursztajn using his report. I had no problem
10 with their other witnesses using reports. Had
11 no problem with any of that.
12 So if they want to -- if now
13 there is going to be a problem with police
14 officers looking at their reports, so be it.
15 But so that we can determine which reports are
16 already in Evidence, I think that they should
17 move them in now.
18 MR. MULLIN: Well, I have no
19 problem with that. Here is the only problem.
20 There is a logistical problem that we have a
21 jury sitting here, we have a witness sitting out
22 in the hall and we can go forward Detective
23 Reinke and get him on and off the stand.
24 Then, if -- then, after that --
25 you know, we are under time pressure in this
55
1 trial; and we discussed that on the record last
2 week. So I think we should just move this --
3 move these witnesses forward that are here, and
4 then I'll be happy to -- after Reinke we can do
5 some more work and put in some of these
6 exhibits.
7 I -- what I got was -- on May 21
8 I sent a detailed list of the evidence I wanted
9 to move in. That's May 21.
10 MR. PARIS: You know, Judge --
11 JUDGE CURRAN: You know what, with
12 all due respect, let's not go back and forth.
13 MR. PARIS: Your Honor, can I just
14 mention something?
15 MR. MULLIN: I was in the middle
16 of talking.
17 JUDGE CURRAN: In fairness,
18 Mr. Mullin was in the middle.
19 MR. PARIS: I apologize.
20 JUDGE CURRAN: There is a jury
21 waiting inside.
22 MR. MULLIN: I want to say, look,
23 we are going to work this stuff out. I think
24 there are a lot of exhibits that defense counsel
25 wants to move in that aren't a problem. I am
56
1 just talking about how they are moved in, when
2 they are moved in. I want the jury to hear that
3 an officer doesn't have a present recollection,
4 just the way they wanted --
5 MR. PARIS: That's fine.
6 MR. MULLIN: -- that Tim Carter
7 didn't have a recollection. I just want the
8 foundation laid. I don't think we are going to
9 have big battles here, Your Honor, I really
10 don't.
11 JUDGE CURRAN: It's really --
12 MR. BEVERE: Judge, I am doing the
13 examination of Detective Reinke. I will lay the
14 foundation; I have no problem.
15 JUDGE CURRAN: Fine.
16 MR. PARIS: I just want to put on
17 the record we did get an e-mail on the 21st at
18 10:47 in the evening.
19 MS. SMITH: And the response was
20 on the 26th.
21 JUDGE CURRAN: Okay. I got it.
22 All right. We will keep this list as the
23 evidence list, and we will -- unless there is
24 something else, we will bring out the jury.
25 Do you have a jury?
57
1 (Whereupon, the jury is brought
2 into the courtroom.)
3 JUDGE CURRAN: Good morning,
4 Ladies and Gentlemen. I apologize. I want to
5 thank you very much for your patience. I know
6 that you all probably know Juror Number 8 went
7 through a lot to get here today, and we really
8 appreciate that.
9 Everybody has been away for the
10 weekend, so I am going to ask counsel again to
11 put your appearances on the record for the jury.
12 MR. MULLIN: Good morning, Ladies
13 and Gentlemen. Neil Mullin. Nancy Erika Smith.
14 JUDGE CURRAN: Thank you. And on
15 behalf of the defense?
16 MR. BEVERE: Good morning, Ladies
17 and Gentlemen. Daniel Bevere and David Paris on
18 behalf of the Town of Secaucus.
19 MR. PARIS: Good morning.
20 JUDGE CURRAN: Thank you.
21 Ladies and Gentlemen, you may
22 remember that the plaintiff has rested and we
23 are now in the defense case. And so I will ask
24 Mr. Bevere to please call your next witness.
25 MR. BEVERE: I will, Your Honor.
58
1 He is in the hallway. May I grab him?
2 JUDGE CURRAN: Thank you.
3 MR. BEVERE: Thank you.
4 MS. HAWKS: Please raise your
5 right hand. Put your left hand on the Bible,
6 please.
7 D E T. L T. M I C H A E L R E I N K E, is
8 sworn by a Notary Public of the State of
9 New Jersey and testifies under oath as
10 follows:
11 MS. HAWKS: For the record, please
12 state your full name and spell your last name,
13 please.
14 THE WITNESS: Detective Lieutenant
15 Reinke, R-e-i-n-k-e, Secaucus Police Department,
16 Badge 99.
17 JUDGE CURRAN: Thank you. Sir,
18 all your testimony must be truthful and accurate
19 to the best of your ability. Do you understand?
20 THE WITNESS: Yes, Your Honor.
21 JUDGE CURRAN: Thank you. Please
22 give us your address for the record.
23 THE WITNESS: Residential address?
24 JUDGE CURRAN: Yes.
25 THE WITNESS: 267 Prospect Street,
59
1 Ridgewood, New Jersey, 07450.
2 JUDGE CURRAN: Thank you. Your
3 witness.
4 MR. BEVERE: Thank you, Your
5 Honor.
6 DIRECT EXAMINATION BY MR. BEVERE:
7 Q Good morning, Detective.
8 A Good morning.
9 Q Where are you employed?
10 A Town of Secaucus Police Department.
11 Q And what is your rank?
12 A Detective lieutenant.
13 Q Do you work in the Detective
14 Bureau?
15 A I do.
16 Q Can you give us the -- a brief
17 benefit of your educational background?
18 A Yes, I graduated Secaucus High School in
19 1986. From 1986 until 1990 I attended Seton
20 Hall University and graduated there with a BA in
21 Criminal Justice. At that point I applied for
22 the Secaucus Police Department, was accepted and
23 was hired by them. And 1990 I attended the
24 Bergen County Essex County Police Academy.
25 Q And upon your successful
60
1 completion of your -- upon your successful
2 completion of the Essex County Police Academy
3 were you hired by the Secaucus Police
4 Department?
5 A Correct.
6 Q And what was your initial rank?
7 A Police officer.
8 Q And at some point thereafter were
9 you promoted?
10 A Yes, I was.
11 Q And when were you promoted, and
12 what were you promoted to?
13 A I was promoted to sergeant at that point.
14 Q And do you recall when that was?
15 A Around 1996 maybe, give or take a year.
16 Q And at some point did you become a
17 detective?
18 A Yes, in 1997 I was brought down into the
19 Detective Division as a police officer.
20 Q And who determines -- what is the
21 difference between a detective and a patrol
22 officer?
23 A Basically, it's the same rank and level.
24 It's just that at one point they ask you to --
25 they assign you down to the Detective Division.
61
1 And that would be made by the Chief of Police;
2 that's his decision.
3 Q Well, what's the difference
4 between what the patrol officers do, as opposed
5 to the detectives? That was my question.
6 A Okay. Patrol officers, what they are
7 going to do is they are going to drive around in
8 the marked unit in the uniform. Basically, they
9 are going to handle all the day-to-day calls,
10 the accidents, the requests for services,
11 shopliftings, things like that.
12 When you're in the Detective Division,
13 you follow up, basically, on what they do. So
14 they will do the initial incident. They will
15 process that. And then we come in and do that
16 follow-up.
17 Q And have you worked in the
18 Detective Bureau continuously since 1997?
19 A I have.
20 Q And when you first started to work
21 in the Detective Division was your rank
22 sergeant?
23 A No, it was police officer. But when you
24 go down into the Detective Division, about after
25 a year they give you a detective's badge, then
62
1 they start calling you a detective.
2 Q Okay. So originally you were a
3 patrol officer in the Detective Bureau, and then
4 you become a detective?
5 A Correct.
6 Q And what was your rank when you
7 first entered the Detective Bureau?
8 A Patrol officer.
9 Q Okay. And then at some point
10 thereafter did you get a promotion to sergeant?
11 A Yes.
12 Q And in April of 2004 what was your
13 rank within the Detective Division?
14 A Sergeant.
15 Q And since April of 2004 have you
16 received a promotion?
17 A I have.
18 Q And what were you promoted to, and
19 when did you receive that promotion?
20 A I am a lieutenant now. And that was
21 about a year-and-a-half ago.
22 Q Who do you report to, Detective,
23 in the Secaucus Detective Bureau?
24 A The commanding officer is Detective
25 Captain John Buckley.
63
1 Q What is the chain of command, for
2 lack of a better term, unless that is the
3 correct term, in the Detective Bureau?
4 A Okay. Well, can I -- to reverse it, it's
5 the Chief of Police. And then it would be
6 Captain Buckley. And then at that point it
7 would be, if there is a lieutenant in the
8 Detective Division and then a sergeant and then
9 a detective.
10 Q And in April of 2004 John Buckley
11 was a captain?
12 A Yes, he was.
13 Q Was he the only captain at the
14 time of the Detective Bureau?
15 A Yes.
16 Q Are there any other captains in
17 the Detective Bureau now aside from John
18 Buckley?
19 A No.
20 Q Now, the -- I just want to talk
21 about basically what, if any, type of training
22 did you receive when you became a detective in
23 order to become a detective?
24 A It's -- it's basically a different type
25 of job because now you are getting more into the
64
1 investigative aspect, more in depth. So at that
2 point Detective Captain Buckley starts sending
3 us to in-service trainings, which can range from
4 anything from statement-taking to fingerprint
5 processing, arson investigation, things like
6 that.
7 Q While you were in the Detective
8 Bureau did you receive any, what you've referred
9 to as, in-service training on bias crimes?
10 A I had.
11 Q Can you tell us about your
12 training in bias crimes?
13 A Yes, bias -- the initial training was in
14 the Essex County Police Academy; and that was
15 taught by the academy staff.
16 And then our own Department has a
17 policy on bias incidents, on how we'll proceed
18 with them. Captain Buckley had gone over them
19 with us additionally.
20 And I had attended, I think, one or two
21 other sessions -- I don't remember when they
22 were -- in in-service training where that topic
23 was touched.
24 Q What is Secaucus General Order
25 88-2?
65
1 A That is procedures in responding to bias
2 incidents.
3 Q Typically is the manner in which
4 either patrol or detectives respond to a bias
5 crime different than responding to any other
6 incidents of criminal activity?
7 A It's all the same. It's all the same.
8 Q Are there different reporting
9 requirements with regard to the bias crimes?
10 A Basically, it's basically the same stuff,
11 except that we would also take an additional
12 step of notifying the Hudson County Prosecutor's
13 Office.
14 Q Now, are you familiar generally
15 with an incident that occurred in the early
16 morning hours of April 25th, 2004 --
17 A I am.
18 Q -- an incident that occurred at
19 the North End Firehouse?
20 A I am.
21 Q Now, Detective, when did you first
22 learn or become aware that there had been an
23 incident at the North End Firehouse on the
24 morning of April 25th, 2004?
25 A Sunday morning at approximately 3, 3:15
66
1 in the morning.
2 Q So that would be the morning of
3 the incident?
4 A Correct.
5 Q Tell us how you were notified and
6 what you were told.
7 A I was home in bed sleeping, and my phone
8 had rung. When I answered it, it was
9 Sergeant -- at the time Sergeant Amodeo. And at
10 that time he advised me of what was happening --
11 what had happened.
12 Q Why did Sergeant Amodeo call you?
13 MR. MULLIN: Objection, Your
14 Honor.
15 MR. BEVERE: Let me --
16 BY MR. BEVERE:
17 Q Do you know why Sergeant Amodeo
18 called you?
19 A Yes, I do.
20 Q Okay. What was the reason?
21 A I was the on-call detective at that time.
22 Q What does that mean, to be the
23 on-call detective?
24 A We're a small Police Department and we're
25 very small Detective Bureau, so we can't staff a
67
1 Detective Bureau 24 hours a day, seven days a
2 week. So on days, holidays, on weekends, there
3 is no one assigned to work at times. So there
4 is always one detective on-call 24 hours, seven
5 days a week. And that's why he called me,
6 because I was the person on-call that day.
7 Q And would the patrol officers be
8 made aware before each shift who the on-call
9 detective is?
10 A There is a schedule behind the desk, so
11 there is a whole roster for that week on who
12 would be on-call.
13 Q So you received a phone call from
14 then Sergeant Amodeo?
15 A Correct.
16 Q And if you -- I'm sorry,
17 Detective, I just want to get myself some water.
18 Do you recall anything about the
19 conversation you had with Sergeant Amodeo at
20 that time?
21 A Yes, I can.
22 Q Can you tell us what you can
23 recall?
24 A Basically, he told me there was an
25 incident of harassment that he felt was biased,
68
1 it involved the firemen and two residents that
2 live next door to them. He advised me that at
3 this time everybody has been sent home,
4 everybody is gone. He said that none of the
5 victims needed any medical attention. He told
6 me that he has notified the Chief of Police and
7 that he has already permanently assigned a
8 patrol officer to stand guard at that location.
9 Q And what, if anything, did you do
10 when you received this information from Sergeant
11 Amodeo?
12 A At that point my protocol would be to
13 contact Detective Captain Buckley, which I did.
14 Q I'm sorry, I didn't -- I didn't
15 hear you.
16 A I contacted Detective Captain Buckley as
17 soon as we hung up the phone.
18 Q If you could keep your voice up a
19 little bit --
20 A I'm sorry.
21 Q -- because I am having a little
22 trouble hearing you. Some doors are opening up.
23 I want to make sure we can all hear you.
24 And what was the nature of the
25 discussion between yourself and Captain Buckley?
69
1 A I reiterated what Sergeant Amodeo had
2 told me; and I informed him, you know, of the
3 details of what he instructed me.
4 Q And what, if any, course of action
5 at that point in time did Captain Buckley
6 instruct you take?
7 A Well, at that point the decision was made
8 by him not to respond, since everybody had
9 already been cleared from the scene and that the
10 next day he'll have people, you know, begin the
11 investigation down at the Detective Bureau
12 level.
13 Q And approximately what time was
14 this?
15 A This was about 3, 3:15 in the morning.
16 Q Is it typical that 3:15 on a
17 Sunday morning there would be no detectives
18 working in the Police Department?
19 A There are none at all working at 3:15.
20 Q Now, at some point were you
21 assigned by Captain Buckley to the follow-up
22 investigation?
23 A Yes, I was.
24 Q As you are sitting here today do
25 you recall when in relation to the event you
70
1 would have been assigned?
2 A Tuesday approximately 4 p.m.
3 Q And why would that -- why is it
4 that you recall that?
5 A I am off on Sundays. I am off Mondays.
6 So I work 4 p.m. until midnight Tuesdays through
7 Saturdays.
8 Q Now, at that point in time, when
9 you became assigned to the investigation, do you
10 know if any other Secaucus detectives had
11 already been assigned at that point?
12 A Yes, there was work done.
13 Q Is it typical in the Detective
14 Bureau that detectives work together on
15 investigation, or is that not typical?
16 A No, it's typical.
17 Q And I want to ask you a question
18 about report-writing.
19 A Okay.
20 Q Do you prepare reports?
21 A I do.
22 Q What is the function of -- of --
23 why does a department have you -- is it --
24 strike that. I'm sorry. Getting a little
25 tongue-tied, I apologize.
71
1 Is it the Department's policy that you
2 prepare reports?
3 A Absolutely.
4 Q All right. And what is the
5 purpose or the function of that policy?
6 A We leave a report on everything that
7 happens, whether it's barking dog, a blocked
8 driveway. Our job is to document everything
9 that we do.
10 Q And is it the regular practice and
11 procedure of your Department to prepare reports?
12 A Yes, it is.
13 Q And do you personally prepare
14 reports as part of your regular practice and
15 procedure?
16 A Yes.
17 Q Now, did you prepare reports with
18 respect to your involvement in the investigation
19 of the events of April 25th, 2004?
20 A I did.
21 Q As you're sitting here today do
22 you have any independent recollection of who you
23 spoke to, what you did; or do you need to see
24 those reports to refresh your recollection?
25 A I would need to see those reports. There
72
1 is a lot of them.
2 Q Now, I am going to start out by
3 showing you a report which is marked D-14 and
4 D-15. And Detective, is it fair to say that
5 anything that you did, anyone you spoke to would
6 be reflected in these reports?
7 A Absolutely.
8 Q Including anything that you
9 personally observed, as well as anything anyone
10 told you in the course of your investigation?
11 A Absolutely.
12 MR. MULLIN: Objection, Your
13 Honor, leading.
14 MR. BEVERE: Judge, these are
15 foundation questions, Your Honor.
16 JUDGE CURRAN: They are
17 foundation. I'll overrule the objection, but it
18 is noted on the record. Thank you.
19 MR. BEVERE: Thank you.
20 BY MR. BEVERE:
21 Q And do you rely -- does the
22 Detective Bureau rely upon the information
23 contained in these reports in determining any
24 follow-up investigation?
25 A Absolutely.
73
1 Q Now --
2 JUDGE CURRAN: Can I interrupt
3 you? I'm sorry. I don't know if it's
4 distracting to the jury; but if there's nothing
5 going to be on screen, maybe we can turn the
6 computer off? Or are you going to use it right
7 now?
8 MR. BEVERE: I was going to use it
9 right now.
10 JUDGE CURRAN: I'm sorry, okay.
11 MR. PARIS: Unfortunately, I have
12 to get that thing a little bit warmed.
13 MR. BEVERE: I thought it was a
14 very attractive, bucolic scene, Judge.
15 JUDGE CURRAN: It is.
16 BY MR. BEVERE:
17 Q I am going to show you, Detective,
18 what's been marked, I believe it was, D-13.
19 MR. MULLIN: 14 and 15.
20 JUDGE CURRAN: 14 and 15.
21 BY MR. BEVERE:
22 Q D-14 and 15 for Identification and
23 ask you --
24 MR. PARIS: Was that 13, 14, 15?
25 MR. BEVERE: No, 14 and 15. D-14
74
1 and D-15.
2 BY MR. BEVERE:
3 Q And ask you if that's a copy of a
4 report that you prepared in this matter?
5 A It is.
6 Q All right. And what is the date
7 of your report?
8 A 4/27/2004.
9 Q And would that have been the first
10 day that you were involved in the investigation?
11 A That would have been Tuesday, when I came
12 back in, yes.
13 Q Okay. And with regard to your
14 activities of that day, I want to start with the
15 first paragraph of your report. And it
16 appears -- it indicates that you had a
17 conversation with someone at the Hudson County
18 Prosecutor's Office. Can you tell us who you
19 called and why?
20 A Yes, I called Chief Hill.
21 Q And what time was that?
22 A That was at 1600 hours, which is 4 p.m.
23 Q That would have been when you
24 first came in?
25 A Yes.
75
1 Q And what was the purpose of your
2 contacting Chief Hill at the Hudson County
3 Prosecutor's Office?
4 A That was assigned to me, that detail, by
5 Captain Buckley. That was to follow up
6 Detective Lieutenant Malanka's conversation with
7 Mr. Robert Kickey and the response that
8 Mr. Kickey gave Lieutenant Malanka.
9 Q And are you aware of what response
10 was given to Lieutenant Malanka by Mr. Kickey?
11 A Yes, I was.
12 Q What was the response?
13 A Basically, Lieutenant Malanka had
14 contacted the Kickey residence, looking to speak
15 with Matt Kickey. Matt wasn't home. They had
16 gotten his father, Robert. And when he asked --
17 when Lieutenant Malanka had asked to speak to
18 Matt, Mr. Robert Kickey said he is not talking
19 to anybody, basically.
20 Q But notwithstanding that
21 conversation, you made contact with the
22 Prosecutor's Office?
23 A Correct.
24 Q And what was your -- your
25 intention or your purpose upon contacting the
76
1 Prosecutor's Office?
2 A Basically, we wanted to get a
3 determination by them that even though a family
4 member said Matt Kickey isn't going to speak
5 with us, if we would be out of order if we asked
6 Matt Kickey and approached him to speak with us
7 about this incident.
8 Q And did you record the
9 conversation, or did you -- did you write down
10 in your report the nature of the discussion you
11 had with Chief Hill?
12 A I did.
13 Q Who was Chief Hill?
14 A He is the lead law enforcement officer
15 for the Hudson County Prosecutor's Office. He
16 is an attorney. He is a prosecutor. But then,
17 I guess, they promoted him and appointed him as
18 Chief in the Investigative Division.
19 Q Okay. And what was the nature of
20 your discussion with Chief Hill?
21 A I advised him, basically, of -- of what
22 had happened between Lieutenant Malanka and
23 Mr. Robert Kickey. And he said, basically, that
24 I could still speak with Matt Kickey and
25 approach him, despite what the father said.
77
1 Q Now, the next thing that you did
2 looks like at 4:10. What did you do at 4:10?
3 A At 4:10 I had taken -- well, two
4 individuals had responded to this agency, a
5 woman by the name of Kristin and her husband,
6 Harry Backiel.
7 Q Do you know why they came down to
8 the Detective Bureau?
9 A Yes, they were fire -- well, Harry is a
10 fireman. Kristin is his wife. And they had
11 been requested to come down to speak to us about
12 the incident.
13 Q And were statements taken of
14 Kristin Backiel and Harry Backiel?
15 A Yes.
16 Q And I'll get to their statements
17 in a minute. And then it appears that at
18 approximately 5:00 something else was done. Can
19 you tell us about that?
20 A Yes, at 5:05 Mike Sesty came in and then
21 had given us a statement about the incident.
22 Q And what was your understanding as
23 to who Mike Sesty was?
24 A I believe he was another fireman up
25 there.
78
1 Q Did you take a statement from him,
2 as well?
3 A I did.
4 Q We will get to that statement in a
5 minute. It also talks, your report, about a
6 phone call that you had with the Hudson County
7 Assistant Prosecutor. Who did you speak to and
8 why?
9 A That was Assistant Prosecutor Don
10 Gardner.
11 Q And what was the purpose of your
12 speaking to Mr. Gardner?
13 A Basically, he had contacted us and
14 advised us that he didn't receive any of the
15 faxed copies of the -- of the incident to his
16 office. Mr. Gardner is the -- at the time I
17 believe he was the head prosecutor of the bias
18 incident.
19 Q Was it your understanding that the
20 reports had previously been faxed?
21 A Yes.
22 Q And who did that to your
23 understanding?
24 A That was Lieutenant Malanka. And in
25 fact, he actually had a receipt for that fax
79
1 transmittal that the fax went through.
2 Q But then you sent them again at
3 Mr. Gardner's request?
4 A I did. I did.
5 Q Now, we go on to approximately
6 6:00. It looks like you had a phone call from
7 Mr. Carter?
8 A Correct.
9 Q Okay. And if you could read your
10 report -- you need to read your report, that's
11 fine. Can you tell us about your conversation
12 with Mr. Carter?
13 A Basically, at approximately 1800 hours,
14 which is 6 p.m., I received a call from Tim
15 Carter.
16 JUDGE CURRAN: I apologize. Just
17 so the record is clear, you are reading now from
18 your report?
19 THE WITNESS: Yes.
20 JUDGE CURRAN: If you would
21 indicate when you're reading or --
22 MR. MULLIN: Your Honor, this
23 is -- then we are going to different evidence
24 rule, past recollection recorded, which the
25 foundation is the witness has no recollection
80
1 whatsoever. If that would be established, then
2 that's fine. I don't want to interrupt us, but
3 I think that foundation --
4 MR. BEVERE: That's fine. I will
5 be happy to lay the foundation.
6 BY MR. BEVERE:
7 Q Detective, without looking at your
8 report can you tell us what was discussed
9 between you and Mr. Carter?
10 A Not without looking at that report.
11 Q Okay. And did you prepare as part
12 of your report a recorded -- a written record of
13 that discussion?
14 A Yes, I did.
15 Q And was that written discussion
16 included -- I'm sorry, let me ask: Was your
17 report prepared at or near the time that you had
18 your discussion with Mr. Carter?
19 A Yes.
20 Q And would that have been an
21 accurate recitation of your discussion, when it
22 was made?
23 A Absolutely.
24 Q Okay. You can --
25 MR. MULLIN: Your Honor, can we
81
1 just establish that this witness has no
2 recollection of what he is about to read, so
3 that's why he is reading?
4 JUDGE CURRAN: Sustained.
5 BY MR. BEVERE:
6 Q Do you have any recollection
7 whatsoever of your discussion with Mr. Carter?
8 A I had done so much work on this case,
9 without looking at the actual report for that
10 specific incident I wouldn't be able to do that.
11 Q Wouldn't be able to tell us
12 anything that was said?
13 A Not accurately, no.
14 JUDGE CURRAN: All right. And I
15 just would appreciate it if you would maybe
16 question the witness -- there is a difference
17 between looking at something to refresh your
18 recollection, which often police officers do,
19 and reading verbatim. If he is going to read
20 verbatim, we need that on the record, just so
21 that we're all on the same track.
22 Q Do you need to read from your
23 report in order to tell us what was discussed
24 between you and Mr. Carter?
25 A I do.
82
1 Q Okay.
2 JUDGE CURRAN: Thank you.
3 Q You can go ahead and read that
4 paragraph of your report.
5 A "At approximately 1800 hours I received a
6 call from Tim Carter, the victim, who advised
7 that as a result of this incident both he and
8 Peter deVries are moving. Mr. Carter had asked
9 if" --
10 Q I'm sorry, Detective. Let me --
11 just go a little slower. And if you could keep
12 your voice up because I am having a little
13 difficulty hearing you back here.
14 A "Mr. Carter had asked if we could
15 contact" -- "if we could advice Chuck Snyder
16 that he would be moving to" -- "to prevent
17 future incidents. Mr. Carter had also explained
18 that he had been advised by others, unknown
19 identities, that Secaucus Police Department
20 members have family relationships with Secaucus
21 Firemen. Mr. Carter" -- "Mr. Carter had also
22 said he wanted to know if any Secaucus Police
23 Officers were present when this incident had
24 occurred. At that time I advised Mr. Carter
25 that the Secaucus Police Department takes
83
1 incidents seriously and asked him if he has any
2 complaints with this agency. Mr. Carter advised
3 that he has no complaints but wanted to add that
4 he was having problems with the SFD" --
5 Q Meaning?
6 A Secaucus Fire Department. -- "for over
7 three years. And at least on one occasion when
8 the police arrived to investigate the past
9 incident the officer had described the firemen
10 as being decent people."
11 Mr. Carter also advised that he had
12 been awake all night and did not see any police
13 officers drive past his residence. I again
14 asked Mr. Carter if he had any complaints
15 regarding the actions of the SPD," which is
16 Secaucus Police Department, "or its members, and
17 he said no."
18 "I advised him that his residence has
19 been placed on a priority check and I will
20 ensure his residence is patrolled. I also
21 advised him not to hesitate in calling this
22 agency if he requires assistance and that if he
23 has any problems, that he could speak to the
24 supervisor on-duty, myself or Detective Captain
25 Buckley."
84
1 "Mr. Carter had also advised that a
2 neighbor of his, named Mrs. Hjelm, also had
3 information regarding the incident."
4 "Mr. Carter also explained that every
5 Saturday morning at 430 hours a Town of Secaucus
6 sanitation truck responds to the firehouse and
7 dumps barrels of empty booze bottles."
8 "At that time Mr. Carter's phone was
9 losing power and he advised that he would call
10 back later."
11 Q Okay. Now, after you had this
12 discussion with Mr. Carter, what, if any, action
13 did you take in regard to Mr. Carter's concerns
14 about his house being patrolled?
15 A I had gone down and checked to make sure
16 his address and the incident was detailed in
17 what we call a "priority book." And it was.
18 Q All right. And then did you
19 contact anyone in the department to discuss it
20 with them?
21 A Yes, Captain Rozansky.
22 Q Who is Captain Rozansky?
23 A He was the captain in the Patrol
24 Division. And he works evenings, so he is the
25 evening tour supervisor.
85
1 Q And if you want to look at your
2 report, so you can refresh your recollection as
3 to the -- as to the nature of the discussion
4 that you had at that time with Captain Rozansky.
5 A Yes, I advised him that -- of the
6 incident and that there was a priority check and
7 that the officers have to follow the check and
8 ensure that the checks -- and that the
9 supervisors have to ensure these checks are
10 continually being done.
11 Q Now, something happened at 6:45.
12 Would you tell us about that?
13 A Yes. Another fireman responded, and I
14 obtained -- well, a statement was obtained from
15 him.
16 Q And who was that fireman?
17 A Michael Pepe.
18 Q Okay. And you actually took that
19 statement?
20 A Yes.
21 Q And then at 7:25?
22 A Woman by the name of Veronica Vega
23 responded, and she provided me with another
24 formal statement.
25 Q Now, at approximately 8:00 at
86
1 night did you make contact with someone at the
2 Hjelm residence?
3 A Yes, I did.
4 Q Okay. And do you have a
5 personal -- do you have a personal recollection
6 as you are sitting here today?
7 A Yeah, basically, I had contacted the
8 Hjelm residence, looking for Mrs. Hjelm. And I
9 was advised by, I think it was her son, that she
10 wasn't home.
11 Q And did you leave any instructions
12 with her son?
13 A To have her contact me.
14 Q And at some point did Mrs. Hjelm
15 contact you?
16 A I believe she did, yes.
17 Q Well, we'll get to that in a
18 minute. Then, at approximately 8:20 did you go
19 to the Hudson County Prosecutor's Office?
20 A Yes, we did.
21 Q When you say, "we did," who else
22 went?
23 A My partner, Detective Sergeant Dominic
24 DeGennaro.
25 Q And do you and Detective DeGennaro
87
1 often work together?
2 A Yes, we do.
3 Q Are you on the same shift?
4 A We work -- we are the only two detectives
5 on evenings, 4 to midnights, Tuesday through
6 Saturday.
7 Q And that was true in -- in April
8 of '04?
9 A Correct.
10 Q Can you tell us what was the
11 purpose of you and Detective DeGennaro going to
12 the Hudson County Prosecutor's Office and what
13 happened?
14 A Firefighter Matt Kickey is a dispatcher
15 at the time at that agency, so we had gone there
16 to try to speak to him about the incident.
17 Q And what happened when you got up
18 there?
19 A Well, when we arrived, to get into this
20 particular office where he works, you have to
21 ring a bell. The public just doesn't have free
22 access in there. So when that bell was rung,
23 the person who opened the door for us was Matt
24 Kickey. So at that time I asked to speak to
25 Matt Kickey's supervisor, the one that was
88
1 working.
2 Q And do you have a recollection of
3 who the supervisor was?
4 A I believe it was sergeant DePascale.
5 Q Did you record that in your
6 report?
7 A I believe I did, yes, yes.
8 Q And tell us about what, if any,
9 discussion you had with Sergeant DePascale.
10 A Basically, Sergeant DePascale was on the
11 road at the time that we went there. A few
12 seconds later Matt Kickey came back and advised
13 us that Sergeant DePascale was on the phone.
14 I then answered the phone and advised
15 him I was there to speak to Matt Kickey about an
16 incident. I never told him what the incident
17 was or anything.
18 At that point I believe Sergeant
19 DePascale said -- he started getting upset with
20 me that we were there. He said that he
21 understood and knew of the incident and there
22 was no reason, I think he said, for us to speak
23 to him.
24 I came back; and I advised him, "Well,
25 I am here to speak to Matt Kickey about an
89
1 incident."
2 And at that time Sergeant DePascale
3 started -- he was very upset with us for being
4 there.
5 Q And did you have an opportunity to
6 speak to Matt Kickey when you went up there that
7 day?
8 A Yes, I did.
9 Q And tell us about your discussion
10 with Matt Kickey.
11 A Basically, Matt Kickey -- Sergeant
12 DePascale's earlier comment to me that it was --
13 I think he said --
14 Q You could look at your report to
15 refresh your recollection, if you need to.
16 A Sergeant DePascale initially had told me,
17 even though I wasn't looking for his opinion of
18 us responding to his office, that it was
19 inappropriate for me to do so. All right. And
20 then, at that time he wanted to speak to Matt
21 Kickey. That happened.
22 Then I had asked him, Matt -- then that
23 phone call had ended. I then asked Matt if he
24 wanted to speak to me about the incident.
25 Matt then started telling me how it was
90
1 inappropriate for me to be there and he wasn't
2 going to speak to me.
3 Q And then, without going -- what
4 did you and Detective DeGennaro do?
5 A We actually exited the building, and I
6 immediately contacted Captain Buckley and
7 advised him what was happenings.
8 Q Then, did you ever hear from Matt
9 Kickey again regarding giving a statement?
10 A I don't believe so, no.
11 Q And then you have the last
12 paragraph of your report talks about 2206 hours.
13 What time is that?
14 A 10:06 p.m.
15 Q What happened at 10:06 p.m.?
16 A At 10:06 Mr. deVries responded, and I --
17 and gave me a formal statement about the
18 incident.
19 Q I am going to talk to you about
20 that statement in a minute. When Mr. -- after
21 Mr. deVries gave you a statement did you give
22 him anything to take with him?
23 A Yes, we have a -- it's a Victims of a
24 Crime packet we give him -- I gave him. And
25 basically, it -- it supplies him with a phone
91
1 number where victims of crimes can contact and
2 trying to seek some, if they need any, sort of
3 help.
4 Q Is that standard to do that?
5 A Yes.
6 Q Okay. I want to show you -- I
7 will take your report back. Thank you,
8 Detective.
9 I am going to show you what I have
10 marked as D-18 and D-19 for Identification and
11 ask you if you can tell us what those two
12 documents are?
13 A Yes, D-18 is a formal statement that I
14 completed of Kristin Backiel. And D-19 is
15 what's called an "SPD-71." It's a
16 Constitutional Rights Advisement/Waiver Form.
17 Q Okay. First I want to talk about
18 the procedure for taking statements. And I
19 guess the first thing I want to start is this --
20 this form that you just discussed with us, what
21 is the nature and the purpose of that form?
22 A Which form?
23 Q This -- I'm sorry, D-19.
24 A That form we give to anyone that's a
25 potential suspect in -- in an incident. And
92
1 basically, all that is is we're required under
2 certain rules to advise people of what their
3 Constitutional rights are. Doesn't mean they're
4 being arrested. It's just that if we think
5 there might be charges pending against them,
6 it's safer to give them that form, so that way
7 later on they can't say that we extracted
8 information out of them without advising them of
9 their rights.
10 Q Okay. And whenever you're
11 interviewing someone who you believe might have
12 criminal responsibility for an incident, do you
13 provide them with this form and make them sign
14 it?
15 A Yes, it's safer to do it that way.
16 Q Okay. Whenever you're
17 interviewing someone who you believe might have
18 criminal responsibility, do you advise that
19 person prior to interviewing them of their right
20 to counsel and their right to remain silent?
21 A Absolutely.
22 Q And is that a requirement?
23 A Yeah, that's court rules. And that's
24 what this form does; it tells them that they
25 have a right for an attorney and everything like
93
1 that.
2 Q What that -- the purpose of that
3 form, then, is a written record of the fact that
4 you advised them of their right to counsel,
5 right to remain silent?
6 A It is. It even protects the police more
7 because they now read it and sign off on each
8 section. So they can't say we didn't -- we
9 didn't give them their rights, we didn't -- you
10 know, we left out a section. It's all on this
11 form that they go down and review.
12 Q Okay. And if you go to D-18 and
13 you ask -- and before we start, as you're
14 sitting here today do you have any recollection
15 of what Kristin Backiel told you?
16 A I don't.
17 Q Do you need to see her statement?
18 A I would.
19 Q The first couple of questions that
20 you ask -- and what we'll do is -- the first, I
21 guess, four questions, can you tell us what
22 those questions are?
23 A Yeah, the first one basically I'm asking
24 that person did she voluntarily come to that
25 Police Department. Basically, I'm -- what I'm
94
1 asking her is did I force her there or anything
2 else?
3 Q All right. Can you force someone
4 to come down and give a statement?
5 A I can't, no.
6 Q And then the second question is?
7 A Basically I'm asking her, "Before I spoke
8 to you did I advise you that you're not under
9 arrest and free to leave?"
10 Q And why do you ask that question?
11 A Just so that way there is no
12 misunderstandings about what their intent is. I
13 can't keep a person at headquarters unless
14 they're arrested. I can't force them there.
15 They are not under any duress. So I'm just
16 making it clear to her that she can leave at any
17 time.
18 Q Prior to a person being actually
19 arrested and charged or arrested, are they free
20 to leave at any time?
21 A Absolutely.
22 Q Would that also include being in
23 the middle of a statement?
24 A Yes, yes.
25 Q And the next sentence?
95
1 A "And did I also provide you with a piece
2 of paper explaining your Constitutional rights
3 on it?"
4 Q And that would be the right to
5 remain silent, the right to counsel --
6 A Yes.
7 Q -- that we just discussed?
8 A Yes.
9 Q Okay. And then the next sentence?
10 A "And before you spoke to me did you read,
11 understand and then waive your rights?"
12 Q And pursuant to the form that she
13 signed, did she agree to --
14 A Yes, she did.
15 Q -- waive her rights?
16 A Yes, she did.
17 Q And then you asked her a question,
18 "What can you tell me about the incident that
19 happened on 4/25/04 at the North End Firehouse?"
20 A Correct.
21 Q All right. Can you read us what
22 her response was?
23 A Yes. Her answer was, "Basically nothing.
24 My husband and I went with Patty and Michelle
25 Maxwell in Patty's car."
96
1 Q Do you know who Patty and Michelle
2 Maxwell are?
3 A Patty is a fireman, and Michelle is his
4 wife.
5 Q Okay.
6 A "We left the restaurant in Cliffside Park
7 around 10:45 p.m. And Patty dropped his wife
8 off at her home and then dropped us off at the
9 firehouse. We then went to our home, so I could
10 change. We figured that everyone who had taken
11 the bus wouldn't leave the restaurant until
12 midnight, so we stayed at our house until around
13 12:30. We got to the firehouse; and the parking
14 lot was filled, so we parked on the street and
15 walked to the front door. We then walked to the
16 backroom, and then the cops showed up. The cops
17 took our names, and we left."
18 Q Okay. Then you asked her another
19 question, which is?
20 A I asked her, "Do you know anything about
21 what had happened that caused the police to
22 respond to the firehouse?"
23 And she said, "No."
24 Q Okay.
25 MR. MULLIN: Your Honor, could we
97
1 just have the record reflect the witness is
2 reading, just so the record is clear?
3 JUDGE CURRAN: Thank you. It's
4 noted on the record.
5 MR. BEVERE: Oh, sure.
6 BY MR. BEVERE:
7 Q And Detective, you are reading
8 from the statement?
9 A I am reading, yes.
10 Q Is that because you don't have an
11 independent recollection of what she said?
12 A Absolutely.
13 Q Now, I want to go down to where
14 you ask the question, "How have I treated you
15 today?"
16 "Okay."
17 And I want to know why it is that you
18 ask that question?
19 A We ask that to everybody, so then, later
20 on, they can't say we forced things out of them
21 or anything like that. It's a loaded question
22 that we do as an investigator. And then,
23 whatever their answer is, we put that down.
24 Q With regard to the -- and then did
25 Miss Backiel sign the statement?
98
1 A Yes, she did.
2 Q And just if you could just tell us
3 basically what -- aside from advising them of
4 their Constitutional rights and if they choose
5 to waive them, having them sign the form, how do
6 you then typically conduct an interview; and how
7 does the interview become the statement?
8 A Basically what we do is we will sit down
9 after we go through everything and, you know,
10 find out who they are, get their names, get
11 their addresses, get their phone numbers. And
12 then we ask them basic questions, what happened.
13 And then, from there, once we get a pretty good
14 idea what went on, then we go into a formal
15 statement. And then we ask them basically the
16 same questions.
17 Q And then who -- who types up the
18 statement?
19 A Whoever is taking that statement. Hers I
20 did.
21 Q Okay. So for Kristin Backiel, you
22 would have typed up that statement yourself?
23 A Yes.
24 Q How are you as a typist?
25 A Two fingers.
99
1 Q Okay. In your report you also
2 said that you took -- you personally took a
3 statement of a Michael Sesty. And I am going to
4 show you what's been marked as D-20 and D-21 and
5 ask you if you could identify these documents?
6 A Yes, I can.
7 Q Okay. And I believe you already
8 told us that Michael Sesty was a firefighter?
9 A Yes.
10 Q Do you know whether someone at the
11 Detective Bureau had made contact with Michael
12 Sesty, as well as with Kristin Backiel, and
13 asked them to come down and give statements?
14 A Yes, someone had definitely asked them to
15 come in.
16 Q But it wasn't you who did it?
17 A I don't think I did at this point because
18 I would have reflected that. This was right
19 when I had first started working on that
20 Tuesday. So I'm, again, looking at this. I
21 don't remember who called, but somebody
22 definitely had to have them call and asked them
23 to come in before I got there; or else they
24 wouldn't have been there at the time that I had
25 just gotten in to work.
100
1 Q Okay. And looking at D-21 from
2 Michael Sesty, what is that form?
3 A That's -- again, that's that Secaucus
4 Police Department-71 Constitutional Rights
5 Advisement/Waiver Form.
6 Q And did Michael Sesty agree to
7 waive his Constitutional rights and speak to
8 you?
9 A He did.
10 Q And going to his statement, which
11 would be D-20, after you ask him about the
12 questions about voluntarily responding and
13 Constitutional rights, you then ask him in
14 your -- well, before I ask you the question, as
15 you are sitting here today do you have any
16 independent recollection of what Mike Sesty told
17 you?
18 A I don't. I would have to read the
19 report.
20 Q You would have to read the
21 statement?
22 A The statement, yes.
23 Q And could you tell us what Mike
24 Sesty's response was and -- when you said, "In
25 your own words tell me what happened that
101
1 night"?
2 A Reading from his statement, "We came off
3 the bus. We went through the front door of the
4 firehouse to the backroom. I was with my date,
5 Veronica Vega. About 15 minutes later an
6 officer came in and asked for my name and
7 address. I gave him that. Then I left, which
8 he asked us to do."
9 Q Then you asked him another
10 question?
11 A I asked him, "What do you know regarding
12 an altercation between firemen and local
13 residents?"
14 Q And what was his response?
15 A His answer was, "Honestly, when the cop
16 came in, he didn't explain anything to us."
17 Q Then the next question?
18 A "Did anyone explain what happened to
19 you?"
20 Q And the answer?
21 A "No."
22 Q And then the next question?
23 A "Do you know what happened?"
24 Q And the answer?
25 A "No, I don't. I left right away after
102
1 the police" -- "after the office told me to
2 leave."
3 Q Did you mean to say, "officer"?
4 A Yes, I did.
5 Q That's a typo?
6 A It is.
7 Q And then the next question?
8 A "Did you have any involvement in an
9 altercation with local residents while you were
10 at the firehouse?"
11 Q And the answer?
12 A "Absolutely not."
13 Q And, "Do you know who did?"
14 A And he said, "No, I don't."
15 Q Okay. And once again, Mr. Sesty
16 signed the statement?
17 A He did.
18 Q Okay. If I can have that back.
19 And then I am going to show you what is
20 marked D-22 and D-23 for Identification and ask
21 you what those are?
22 A That's a Secaucus Police Department
23 Constitutional Rights Advisement/Waiver Form.
24 Q And that would be D what?
25 A 23.
103
1 Q For whom?
2 A Michael Pepe.
3 Q And who -- who -- to your
4 understanding who was Michael Pepe?
5 A Another fireman.
6 Q And same thing; he would have been
7 called and asked to come down and give a
8 statement?
9 A Yes.
10 Q And then his actual statement is
11 D?
12 A 22.
13 Q Okay.
14 MR. MULLIN: Your Honor --
15 Q You took that statement?
16 MR. MULLIN: -- can we have a
17 sidebar?
18 JUDGE CURRAN: Sure.
19 (Whereupon, the following sidebar
20 discussion is held.)
21 MR. MULLIN: I have allowed a
22 couple of these documents to go in to illustrate
23 how statements are taken and so on. But at this
24 point we have a witness reading statements that
25 aren't his own. They are not his past
104
1 recollection recorded. And so this witness
2 shouldn't be sitting there reading the
3 statements of other people.
4 Now, that said, if they want
5 to -- if they, the defense, wants to put in the
6 statements of all these people that saw nothing
7 and heard nothing, I'm not going to object to
8 that because I'm going to close on that. So --
9 so I have no problem with this, but I don't want
10 this witness to sit there and read all this
11 testimony that's not his past recollection
12 recorded. It's not refreshing his -- well, if
13 it's refreshing his recollection, it is
14 refreshing his recollection about hearsay, that
15 is, what these witnesses said.
16 So I'm not at this point
17 admitting, conceding that these documents should
18 go into Evidence now. I am telling the Court
19 that my inclination is at some point I may make
20 that concession. But I'm not doing that now.
21 And so there is no basis for this testimony.
22 JUDGE CURRAN: Mr. Bevere.
23 MR. BEVERE: Judge, I am not
24 offering these statements for the truth of the
25 matter being asserted. The claim in this case
105
1 is that Detective Bureau -- at least what I
2 thought was the claim was that they didn't do
3 what they were supposed to do. And I am using
4 it to show what information was provided to the
5 Detective Bureau.
6 I am certainly not vouching for
7 the veracity or the accuracy of what was said by
8 anybody to the police, including the plaintiffs.
9 But this is about what the police were told by
10 people. This is about what the police were told
11 and what they did in their investigation.
12 And what are the -- one of the
13 issues is going to be, well, the Detective
14 Bureau never charged anybody with a crime. And
15 very relevant piece of information is that
16 people came in and told us nothing.
17 Now, whether you believe the
18 people that they saw nothing or don't believe
19 they saw nothing, it goes to the Detective
20 Bureau's state of mind as to why nobody was
21 charged with a crime between the time that the
22 incident happened and the time the Attorney
23 General Office said, "And guess what, Secaucus,
24 you are not going to be involved at all. We
25 will decide who gets charged with a crime."
106
1 JUDGE CURRAN: Those kind of
2 issues can be addressed without his reading
3 from, for instance, these two documents,
4 certainly the first document, not the second.
5 There are ways to do that, certainly, with
6 questioning, especially because you're
7 indicating you are not offering these for the
8 truth of what these individuals who were
9 questioned, for instance, Sesty or Pepe, said,
10 just that they were investigated.
11 There is lots of ways to do that.
12 I wouldn't presume to interfere with your
13 strategy, but at this point he can't really read
14 into the record what individuals are saying just
15 to indicate there was a report -- there was an
16 investigation.
17 MR. BEVERE: Well, it -- it goes
18 beyond that. It goes beyond that. Certainly,
19 the fact that he took the statement goes to the
20 fact that there was an investigation, whether
21 it's going to be a specific criticism in this
22 case as to why nobody was charged with a crime.
23 JUDGE CURRAN: He can be
24 questioned on that. Absolutely, he can be
25 questioned on that. But he doesn't have to read
107
1 in what the individuals who were interviewed
2 said. There is lots of ways to -- that could be
3 done.
4 MR. BEVERE: See, Judge, I have to
5 disagree. I mean, I think that it is very
6 relevant as to specifically what a potential
7 witness or potential suspect might have told
8 him. It's very relevant as to why the Detective
9 Bureau did or didn't do what they -- what the
10 plaintiffs claim they should have done. And
11 therefore, it goes to -- it goes his state of
12 mind, what he was told or what the Detective
13 Bureau collectively was advised.
14 And these statements are not
15 being offered for the truth of the matter being
16 asserted. They are being offered to show what
17 information was provided to the Detective
18 Bureau, what information they relied upon. And
19 in that regard, you know, I don't think we have
20 any hearsay issue here. I don't see the hearsay
21 issue because I am not offing the statements for
22 the truth the matter. I am not coming in here
23 and saying, "By the way, Mike Sesty didn't hear
24 anything and Ver" -- no, what I can say is,
25 "Look, this is the in Detective Bureau's hands.
108
1 What were they going to do? They couldn't force
2 people to talk. They can't force people to give
3 statements. People that came down said they
4 didn't hear anything." So, I mean, here we are
5 in a situation where we are being told these
6 things. And you know, this is what we're --
7 we're relying upon in the course of our
8 investigation.
9 Now, maybe at some point in time,
10 you know, somebody would have said something
11 that contradicted it and -- but right now we are
12 talking about what the detectives were told
13 about what went on. And that goes to their --
14 to the Police Department's state of mind as to
15 why nobody was charged with a crime because they
16 weren't being provided with information that
17 they believe was sufficient.
18 JUDGE CURRAN: So if we look at it
19 that way, how is it not offered for the truth of
20 what is said? Whether or not underlying fact
21 was true is not the issue. The issue is it's
22 being offered for the truth of what this witness
23 says was said to him, as I see it.
24 MR. BEVERE: Well, it's -- it's
25 certainly being offered as to what was told to
109
1 him and the effect on his state of mind, but
2 it's not being offered for the truth of who was
3 inside, who heard --
4 JUDGE CURRAN: But he -- don't
5 be -- that would be a real stretch, anyway.
6 MR. BEVERE: But Judge, the point
7 is the statements, what this has told him -- the
8 portion of this case is about what the Police
9 Department failed or didn't do or didn't do; and
10 in that respect, what they were told by
11 witnesses is very relevant and it's not hearsay.
12 JUDGE CURRAN: I understand that;
13 but it is then, obviously, being presented for
14 the truth of what was said by this witness or --
15 just take this -- just take Pepe -- what Pepe
16 said to --
17 MR. PARIS: But this witness is
18 here.
19 MR. BEVERE: No, no, he is not
20 vouching for the veracity of what Pepe said.
21 JUDGE CURRAN: I understand he is
22 here.
23 MR. BEVERE: He heard it.
24 MR. PARIS: Lieutenant rank is
25 here.
110
1 JUDGE CURRAN: We go back to there
2 are other ways to address it.
3 MR. MULLIN: Your Honor.
4 MR. PARIS: Has recorded -- he has
5 recorded --
6 JUDGE CURRAN: I'm sorry.
7 MR. PARIS: -- statements
8 contemporaneously with when they were given,
9 okay. There may also be an issue with regard to
10 his own credibility. The fact that he made the
11 statement, the fact that here is the document,
12 here is what we were told, you can go after him
13 on his credibility. But when he has a document,
14 that's why the document, itself, is evidentiary,
15 to be able to say, "And did he put it down on a
16 piece of paper, and did the witness sign it?"
17 "Yes, here it is." So the document, itself, is
18 important to go in. There is nothing wrong with
19 it.
20 If they want to question, "Do you
21 recall exactly what Miss Vega said to you
22 without reading her statement" --
23 MR. BEVERE: Which I think I did
24 say.
25 MR. PARIS: Which I thought the
111
1 foundation had been laid. That's one thing.
2 But just to say no, you can't put in a statement
3 when a statement is crucial as to what his state
4 of mind was --
5 MS. SMITH: His state of mind was
6 that he believed the statement, that it was
7 true.
8 MR. BEVERE: No, that's not --
9 that's not true. That's not true.
10 JUDGE CURRAN: He took it as true.
11 Or else, if he didn't take it as true, then he
12 would have had other things to do.
13 MS. SMITH: Right.
14 MR. PARIS: He didn't make a
15 judgment as to whether it was true. This is
16 what he had.
17 JUDGE CURRAN: With all due
18 respect, if he didn't make a judgment, where
19 does the argument go that they did what they
20 could to investigate? And if people said, "No,
21 I didn't do anything," "No, I wasn't there,"
22 "No, I didn't see anything," there was no place
23 else for them to go.
24 MR. PARIS: This is what he had.
25 MR. BEVERE: But this -- this is
112
1 what -- the point is that this is what he had to
2 go on. And the question is going to be: If you
3 are doing an investigation and there is going to
4 be a critique that you that you didn't make an
5 arrest of somebody, one of you -- the reasons
6 you didn't make an arrest is because none of the
7 witnesses were able to say, yeah, he did it, he
8 did it, he did it, he did it. So he is not
9 getting information he needs to make an arrest.
10 JUDGE CURRAN: Okay. But the
11 basis for that argument is he believed that what
12 those witnesses were saying was truthful. He
13 was not --
14 MS. SMITH: Or else he could have
15 charged them.
16 JUDGE CURRAN: He was not saying,
17 "Give me a break; I know you were out in the
18 parking lot" or -- I mean, it is certainly being
19 offered for that purpose.
20 MR. BEVERE: Judge, and I -- I
21 could not disagree more that's the purpose it's
22 being offered for. I don't think this detective
23 is vouching for the truth of --
24 JUDGE CURRAN: Okay.
25 MR. BEVERE: Of --
113
1 JUDGE CURRAN: Okay. Then, if we
2 look at it the other way, if he didn't believe
3 them, because it's just as likely, then, that he
4 didn't believe them, what more did he do?
5 MR. BEVERE: Judge, listen, I -- I
6 understand what you are saying. And here --
7 this -- this detective -- in fact, the entire
8 Detective Bureau is in a position where they
9 have this investigation for limited period of
10 time and they're trying to get information.
11 Now, if somebody else came in
12 later on and said, "My" -- "Yeah, I saw Mike
13 Pepe in that parking lot," then you would bring
14 Mike Pepe back in and say, "Mr. Pepe, we got
15 somebody, can't tell you who, who put you at the
16 scene; and you lied to us. Now, read your Fifth
17 Amendment rights" -- blah, blah -- "you want to
18 come clean, we can take this thing further."
19 So the point here is that they
20 are -- they are relying upon information that
21 comes in as to where this information is going,
22 who they're going to interview, who they're
23 going to talk to. I mean -- and it -- it all --
24 it's nothing to do with them -- him saying, "Oh,
25 I believe this person. I believe that person."
114
1 There is nothing to do -- it's a question of
2 what -- information coming in and what can I do
3 about that at this point in time.
4 JUDGE CURRAN: But then you can't
5 have him read it into the record. There are
6 other ways to address that question. But that's
7 back to where we were before. Giving you that
8 argument, okay, fine, there are ways you can
9 address it; but you can't address it by reading
10 it -- by having him read into the record, "Sam
11 Smith said this to me." You just can't; it's
12 just not proper.
13 Okay. I am going to -- I will
14 note your strong objection on the record.
15 MR. BEVERE: It's very --
16 JUDGE CURRAN: Why don't we let
17 the jury take their morning break and, you know,
18 then we'll come back. Okay. Thank you.
19 (Whereupon, sidebar discussion is
20 concluded.)
21 JUDGE CURRAN: Ladies and
22 Gentlemen, if you would like to take the morning
23 break, if you would be back in 15 minutes, we'd
24 appreciate it.
25 Go off the record. Thank you.
115
1 COURT CLERK: Off the record.
2 JUDGE CURRAN: Thank you.
3 (Whereupon, the jury is excused.)
4 (Whereupon, a brief recess is
5 taken.)
6 COURT CLERK: On the record.
7 JUDGE CURRAN: Thank you. Mr.
8 Bevere.
9 MR. BEVERE: Yes, the only other
10 point I would make, Your Honor, is this. This
11 morning we moved into Evidence the statements of
12 Richie Johnson and three statements of Frank
13 Walters. So there are statements to the police
14 that are in Evidence in this case. So I
15 would -- I would argue that to the extent that
16 the police were provided with information and
17 relied and considered upon that information in
18 the course of the investigation, I -- actually,
19 just repeat what I said earlier. I want to note
20 for the record the statements of Richie Johnson
21 and Frank Walters came into Evidence this
22 morning without objection.
23 MR. MULLIN: Judge, obviously,
24 this is a huge difference between what comes in
25 in my case as party admissions or statements by
116
1 employees made within the scope or agents made
2 within the scope in the defense case. So we
3 have to analyze this from the standpoint of
4 defense case, which is what is this other than
5 hearsay. These aren't party admissions. They
6 are just hearsay.
7 Now, counsel made the point he
8 should be allowed to this ask this witness, you
9 know, about his state of mind, he is
10 interviewing these people, he is not getting
11 anywhere. That is fair game. I think Your
12 Honor indicated that did he learn anything? Did
13 anybody admit anything?
14 And the witness is here. But you
15 know, it's okay. He is an experienced police
16 officer. I am sure he has heard these arguments
17 before.
18 So, Your Honor, I don't have any
19 problem with them asking this witness those sort
20 of questions. The case law is -- is clear that
21 you can't -- you can't use a witness just to get
22 in hearsay testimony. I don't have a way to
23 cross-examine these people whose -- these
24 lengthy statements are being read. I allowed a
25 few just to show the process of taking a
117
1 statement.
2 So, Your Honor, I think where I
3 believe you were heading or what your ruling was
4 all right, which is you can't just read these
5 witness statements; but he can talk about state
6 of mind, having interviewed them. I think
7 that's the line that has to be drawn.
8 JUDGE CURRAN: Which is what I
9 thought I said at sidebar; but I, obviously,
10 didn't say it totally.
11 With all due respect, Mr. Bevere,
12 I think, unless there is something different
13 that you want to add --
14 MR. BEVERE: Yeah, I want to say,
15 first of all, I disagree that what I'm doing
16 here is putting in hearsay. It's not being
17 offered for the truth of the matter being
18 asserted. I can't state that enough. It's not
19 being offered for truth of the matter being
20 asserted.
21 With regard to this witness'
22 state of mind or the detective -- information
23 that was provided to the Detective Bureau in
24 general, which they relied upon, I mean, I
25 understand Your Honor's ruling is you don't want
118
1 me to have him read from the statement; but I
2 think I need to ask him if he asked them. Did
3 you ask Veronica Vega, did she hear anything?
4 Did you ask her, did she see anything? What did
5 she tell you? Did you ask her where she was?
6 What did she tell you?
7 JUDGE CURRAN: And what's the
8 point of asking -- what's the point of asking
9 those questions?
10 MR. BEVERE: Because it goes to
11 what information the Detective Bureau had to
12 base their investigation on.
13 JUDGE CURRAN: Exactly.
14 MR. BEVERE: That's what it comes
15 down to.
16 JUDGE CURRAN: And it's offered
17 for the truth of what information they had, not
18 the underlying truth of what the people said.
19 If he had -- you know, to take it to extreme, if
20 he had asked Mr. Snyder, Sr. or Jr. but Snyder,
21 "Were you there that night" and it was just left
22 that way, that would be offered for the truth of
23 what Mr. Snyder told him and what he did or then
24 didn't do to follow up. That's exactly why it's
25 offered for the truth of what they said to him,
119
1 having -- the truth that this is what they said
2 to him and this is what he believed.
3 MR. BEVERE: But -- but --
4 JUDGE CURRAN: Not the underlying
5 truth as to whether or not they lied. They
6 could have been lying to him, but it's offered
7 for the truth of this is what they said to him.
8 MR. BEVERE: But -- but Judge, the
9 witness is allowed to tell us what it was that
10 was told to him, as long as he is not offering
11 it to show the truth of the content. In other
12 words, if Mr. Snyder said to him, "I wasn't
13 there that night" and I wanted to offer that
14 statement to this witness to prove that Snyder
15 wasn't there that night, that would be hearsay.
16 But if I wanted to use that statement to show
17 that this witness didn't have a basis to arrest
18 Snyder because he said he wasn't there, that's
19 not being offered for the truth of the matter
20 being asserted because he is not vouching for
21 Snyder's credibility.
22 If someone came in and
23 contradicted it and said he was there that
24 night, he was there that night, then there would
25 be things that this detective could do. But
120
1 we're not offering it for the truth of who was
2 inside, who was outside.
3 JUDGE CURRAN: No, it's being
4 offered for truth of this is the basis on which
5 the detectives made their decisions and
6 proceeded.
7 MR. BEVERE: Right, Judge. And my
8 understanding, that is not -- that is not
9 hearsay because I am not offering it for the
10 truth of the content of the statement. In other
11 words, I am -- I am not here to offer the truth
12 of what declared is saying.
13 JUDGE CURRAN: I understand.
14 MR. BEVERE: I am offering it to
15 show what was told to this witness and which he
16 relied upon.
17 JUDGE CURRAN: But you're offering
18 it for the truth of -- because this is the kind
19 of case that it is and because it is
20 fact-sensitive, you are offering it for the
21 truth of this is what was said to this witness,
22 correct?
23 MR. BEVERE: Judge, I'm offering
24 it for the fact that, yes, this is what was told
25 to this witness. But that's not hearsay.
121
1 Hearsay would be if I was offering it for the
2 truth of what was being said by the witness.
3 MR. PARIS: Can I just try to
4 clarify, just so I can clarify on behalf of the
5 defense? Is Your Honor -- just so I understand,
6 Your Honor is allowing the witness to say, "This
7 is what I was provided"; but you are just not
8 allowing him to read verbatim the statements?
9 JUDGE CURRAN: A, he is not going
10 to be able to read verbatim. And B, depending
11 on the questions and how they're asked, he can
12 exactly be asked about his state of mind. He
13 can be asked about what is on --
14 MR. PARIS: Information?
15 JUDGE CURRAN: And what was the
16 basis for his decision? That's what I said all
17 along. He just can't do it this way. I'll note
18 the continuing objection.
19 Okay. Shall we bring out the
20 jury?
21 MR. BEVERE: Judge, can I talk to
22 Mr. Paris?
23 JUDGE CURRAN: Sure. We will stay
24 off -- go off the record. Thank you.
25 COURT CLERK: Off the record.
122
1 (Whereupon, a discussion is held
2 off the record.)
3 JUDGE CURRAN: Back on the record.
4 We will bring out the jury, thank you.
5 COURT CLERK: Thank you.
6 MS. HAWKS: Jurors are
7 approaching.
8 (Whereupon, the jury is brought
9 into the courtroom.)
10 JUDGE CURRAN: Thank you. Sir,
11 I'm required to remind you that you are sill
12 under oath.
13 THE WITNESS: Yes, Your Honor.
14 JUDGE CURRAN: Thank you. Mr.
15 Bevere.
16 MR. BEVERE: Thank you, Your
17 Honor.
18 BY MR. BEVERE:
19 Q I'm sorry, Detective, you have a
20 statement and a waiver in front of you? Whose
21 is that?
22 A I do. Michael Pepe's.
23 Q Okay. And if I asked this before
24 the break, I apologize. Mr. Pepe voluntarily
25 came down to the Department?
123
1 A He did.
2 Q And did you take a statement from
3 him?
4 A I did.
5 Q And did you ask him to -- did you
6 read him his Constitutional rights?
7 A I provided him with that SPD-71
8 Constitutional Rights Advisory Form which
9 explains that all to him.
10 Q And did he sign it?
11 A He did.
12 Q And did you ask any questions
13 about the events of that night?
14 A I did.
15 Q Now, did Mr. Sesty tell you
16 whether he had any information about what had
17 happened that night?
18 A Mr. Pepe?
19 Q Yes. You can look -- don't read
20 the statement --
21 A Understood.
22 Q -- but you can look over the
23 statement.
24 A Can you repeat the question about Pepe?
25 Q My question to you was: Did
124
1 Mr. Pepe -- talking about Sesty or Pepe?
2 JUDGE CURRAN: It's up to you.
3 You were on -- I'm sorry.
4 MR. BEVERE: I think I'm
5 vacillating between Sesty and Pepe.
6 JUDGE CURRAN: The 71 that was
7 last --
8 MR. BEVERE: Judge, I will look at
9 the statement; it will make it much easier.
10 Pepe. Okay. I apologize. They sound the same.
11 I was --
12 BY MR. BEVERE:
13 Q Okay. Did Mr. Pepe provide you
14 with any information that led you to conclude or
15 to be able to conclude as to who did or said
16 what on that night?
17 A No, he didn't.
18 Q Did Mr. Pepe tell you whether he
19 had any knowledge of the incident?
20 A He did.
21 Q What did he tell you?
22 A He had no idea.
23 Q Moving on to -- I'm sorry,
24 Mr. Pepe signed his statement?
25 A He did.
125
1 Q I believe the next statement that
2 we talked about was that of Mr. deVries. You
3 took -- oh, I'm sorry, I missed one. I am going
4 to show you D-24 and D-25. Can you tell us what
5 those are, please?
6 A Yes, D-25 is, again, that SPD-71
7 Constitutional Rights Advisement Form. And D-24
8 is a formal statement from Veronica Vega.
9 Q And what was your understanding as
10 to who Veronica Vega was?
11 A She was a girlfriend, I believe, of
12 Michael Pepe.
13 Q And did you have an understanding
14 of whether she was present at the North End
15 Firehouse that night?
16 A Yes, she was at that function, yes.
17 Q And did Miss Vega to your
18 knowledge come to the Department voluntarily to
19 give a statement?
20 A She did.
21 Q And did you ask her to read the
22 Constitutional rights form and have her sign it?
23 A I did.
24 Q And did she agree to waive those
25 rights and speak to you?
126
1 A She did.
2 Q Did Miss Vega give you any
3 information upon which you were able to conclude
4 who did what on that evening?
5 A No, she didn't.
6 Q Did Miss Vega tell you whether she
7 had any knowledge of what happened?
8 A She did.
9 Q What was her response?
10 A That she had no information, basically.
11 Q You also took statement of Peter
12 deVries --
13 A I did.
14 Q -- that night? Okay. I want to
15 talk about that for a second. If I can have
16 Miss Vega's statement. I'm sorry, I meant to
17 ask you, Miss Vega signed her statement?
18 A She did.
19 Q I am going to show you what's been
20 marked as D-27 and D-28 and ask you if you can
21 identify that?
22 A Yes, I can.
23 Q And what is that?
24 A That's Mr. deVries' formal statement.
25 Q All right. Did you personally
127
1 take Mr. deVries' statement?
2 A I did.
3 Q Okay. You did not or did you ask
4 Mr. deVries to sign a Constitutional rights
5 waiver?
6 A No, I did not.
7 Q Why would that be?
8 A He is the -- our victim.
9 Q And is it the policy not to have
10 victims sign Constitutional rights wavers?
11 A Absolutely.
12 Q Now, with regard to the statement
13 of Mr. deVries, does the statement indicate on
14 what time you began your interview with
15 Mr. deVries?
16 A Yes, it does.
17 Q What time was that?
18 A 2206.
19 Q Which would be what time?
20 A 10:06 p.m.
21 Q Does Mr. deVries' statement
22 indicate at what time he signed his statement?
23 A Yes, it does.
24 Q What time did he sign his
25 statement?
128
1 A 10:45 p.m.
2 Q Okay.
3 MR. MULLIN: Your Honor, can we
4 have a brief sidebar?
5 JUDGE CURRAN: Sure.
6 (Whereupon, the following sidebar
7 discussion is held.)
8 MR. MULLIN: The defendants made
9 an in limine to exclude all references to prior
10 noise complaints and drinking complaints, and I
11 just realized this has a question and answer on
12 that question. And the answer is, "Because of
13 prior noise complaints that we have made and Tim
14 actually going outside asking them to be quiet
15 during their drunken brawls." Your Honor
16 granted that motion, so I didn't have Tim Carter
17 or Peter deVries testify about that. So that,
18 obviously, has to be redacted from this
19 document. Shouldn't be shown.
20 JUDGE CURRAN: What line?
21 MR. MULLIN: That's -- I will hold
22 the document up, Your Honor. It is the question
23 and answer.
24 JUDGE CURRAN: Okay. Mr. Bevere.
25 MR. BEVERE: Judge, I -- you know,
129
1 we may have to check the record. My
2 understanding was he did read that. I thought
3 he did read it. But I don't -- as we are
4 standing here right now, but I thought -- I
5 thought that he did read that as part of his
6 statement.
7 MR. MULLIN: We could check that.
8 I don't recall.
9 MS. SMITH: There is other -- lots
10 of other evidence of noise and drinking and
11 drunkenness complaints that we have not put in
12 in our case because of your in limine ruling.
13 MR. MULLIN: If it came in
14 inadvertently -- if it came in inadvertently
15 without objection from the defendants, so be it.
16 I don't recall one way or the other. But I'm
17 objecting now.
18 MR. BEVERE: I won't have him -- I
19 won't have him read that portion of his
20 statement.
21 MR. PARIS: Then I won't put it up
22 there.
23 MR. BEVERE: That's fine. We
24 won't put it up, fine. Thanks.
25 (Whereupon, sidebar discussion is
130
1 concluded.)
2 BY MR. BEVERE:
3 Q Okay. I apologize, Detective. I
4 think the last question I asked you was what
5 time Mr. deVries signed this statement?
6 A Yes.
7 Q What time was that?
8 A 10:45 p.m.
9 Q Okay. Can you tell us the process
10 or the procedure that you used to take
11 Mr. deVries' statement?
12 A It's the same as we do anyone else. When
13 a person first comes in, we'll sit down with
14 them, get their name, their address, get a basic
15 idea of what went on there, especially since I
16 wasn't present at the time. We're only going by
17 what people -- the information that we're
18 bringing in. So we will get a brief idea what's
19 going on, and then we get right into asking him
20 the questions and then typing his responses.
21 Q All right. So did you personally
22 type Mr. deVries' statement?
23 A I did.
24 Q Okay. Was that with your two
25 fingers?
131
1 A It was with two fingers.
2 Q Now, did you audiotape or
3 videotape your interview with Mr. deVries?
4 A I did not.
5 Q And was it the policy of the
6 Secaucus Police Department at that time to audio
7 or videotape interviews with victims?
8 A No.
9 Q Is it the policy today?
10 A No, it's not.
11 Q Do we audio or -- does -- the Town
12 of Secaucus Detective Bureau, do we audio or
13 video any statements today?
14 A Yes, we do.
15 Q And under what circumstances do we
16 do that?
17 A Only on suspects, basically.
18 Q Okay. So the -- would that be an
19 audio or video?
20 A It's both.
21 Q It's both?
22 A It's both. And we also type it.
23 Q And you do a typed statement, as
24 well?
25 A At the same time, yeah.
132
1 Q Well, why is it the policy
2 currently, if you know, that we audio and video
3 suspects' statements?
4 A About a year ago the Hudson County
5 Prosecutor's Office required that. They advised
6 us from that point on any time we'd take a
7 suspect's statement, we're going to audio and
8 video it.
9 Q Okay. And do you have an
10 understanding as to why they want that done?
11 A I guess that way, when it goes to trial,
12 the suspect can't say we altered anything or
13 changed anything.
14 Q In other words, when the person is
15 giving a confession --
16 A Correct.
17 Q -- you want a video recordation of
18 that confession for court?
19 A Correct.
20 Q But today is it the policy of the
21 department to audio or video witness or victims'
22 statements?
23 A We don't do that, no.
24 Q Now, with regard to Mr. deVries
25 there were questions that you asked as to
133
1 whether or not he could identify anyone
2 involved?
3 A Correct.
4 Q And as you're sitting here today
5 do you have a recollection of what, if anything,
6 Mr. deVries indicated to you about whether he
7 could identify people or not?
8 A He said he could not.
9 Q Did the issue of a voice
10 recognition come up with regard to Mr. deVries?
11 A No, it did not.
12 Q Did you ask him if he could
13 recognize anyone by voice?
14 A I asked him, "Can you recognize anyone
15 involved in the incident?"
16 Q But did you ask him --
17 MR. MULLIN: Objection, Your
18 Honor. Can we be heard sidebar?
19 (Whereupon, the following sidebar
20 discussion is held.)
21 MR. BEVERE: Was going to be more
22 specific in my next question, but we can do the
23 objection.
24 MR. MULLIN: Your Honor, this is a
25 witness who testified that he had absolutely no
134
1 present recollection of what was in his report
2 and so he read most of his report. Now he is
3 purporting to have a recollection of some
4 conversation that is most definitely not in the
5 original, underlying report that this
6 examination started with. There is nothing
7 about voice recognition. There is nothing about
8 asking him whether he could or could not
9 recognize according to voice. So I ask that all
10 this be stricken.
11 It's -- it's completely
12 inconsistent with what he said before, and I
13 don't understand the foundation for it. This is
14 a witness who has -- that is really my
15 objection, is lack of foundation because this
16 witness testified he has no present recollection
17 of what's in his report. So, therefore, how
18 could he possibly be recalling something? And
19 everything has to have a foundation. He is not
20 competent to testify about this.
21 JUDGE CURRAN: Mr. Bevere.
22 MR. BEVERE: Well, I did show him
23 the statement and have him look at the
24 statement. I had him -- not his statement. I
25 showed him Mr. deVries' statement, had him look
135
1 at Mr. deVries' statement and identify it. I
2 could certainly ask him if he has any
3 recollection as he is sitting here today of
4 anything that Mr. deVries said while they were
5 in the interview room.
6 MR. MULLIN: Wait. I am talking
7 about the original police report that this
8 gentleman wrote where he talks about
9 interviewing deVries. And he has testified that
10 he had no present recollection and therefore had
11 to read this report. So therefore, there is no
12 foundation for him now testifying about his
13 recollections about what happened when he
14 interviewed Peter deVries. He testified he has
15 no recollection. There is no foundation for
16 this testimony. And to the extent he has
17 ventured into it, it should be stricken.
18 MR. BEVERE: I will withdraw the
19 question and move on.
20 JUDGE CURRAN: Okay.
21 MR. MULLIN: Thank you.
22 JUDGE CURRAN: Thank you. Another
23 one? You ask that it be stricken. At this
24 point I don't -- well, I'll listen to the
25 arguments about why it should be stricken. I
136
1 understand the basic argument, but my concern is
2 that I'll over emphasize it inadvertently.
3 MR. MULLIN: That is a problem.
4 That is the problem I have been put in. So I
5 understand your ruling, and we'll move on.
6 MR. BEVERE: Thank you, Judge.
7 We'll move on.
8 (Whereupon, sidebar discussion is
9 concluded.)
10 BY MR. BEVERE:
11 Q Okay. Detective, if I could have
12 the statement back, please.
13 A Sure.
14 Q Thank you. Detective, I'm going
15 to show you what has been marked as D-33 for
16 Identification and ask you if you could identify
17 that for the record?
18 A That's a supplemental police report I had
19 left on 4/28 of '04.
20 Q Okay. And in that supplemental
21 police report do you list the things that you
22 did on 4/28 and the times that you did them?
23 A Yes.
24 Q Okay. And as you are sitting here
25 today, without looking at that statement can you
137
1 tell us what you did on 4/28 and the times that
2 you did them?
3 A Not exactly, no.
4 Q Do you need to look at your report
5 to refresh your recollection as to what you did?
6 A I would.
7 Q Okay. 4/38 -- I'm sorry, 4/28/04
8 it says, "1340 hours." What time would that be?
9 A That's 1:40 p.m.
10 Q And at that point what did you do
11 at 1:40 p.m. on 4/28?
12 A Taken a formal statement from Richard
13 Johnson.
14 Q Now, I have a question for you.
15 You said 1:40 hours?
16 A Yes.
17 Q And my understanding was at the
18 time you were working from 4 to midnight?
19 A Correct.
20 Q All right. Do you know why you
21 would have -- do you remember why -- as you are
22 sitting here today do you have an understanding
23 as to why you would have taken a statement at
24 1:40, if your hours were 4 to midnight?
25 A We had changed our hours to try to get
138
1 everybody in and obtain interviews from people.
2 Q And at whose instruction or
3 direction would you have taken Mr. Johnson's
4 statement?
5 A Captain Buckley's .
6 Q And at 1523 hours -- what did you
7 do at 1523 hours? And by the way, would that be
8 3:23?
9 A P.m., yes.
10 Q Okay. And what did you do at that
11 time?
12 A Chief Walters came in and gave me a
13 statement about the incident.
14 Q Okay. And then what did you do?
15 A And then, at 3:52 p.m., 1552 hours, Katya
16 Gonzalez came in and gave a formal statement.
17 Q You can keep going.
18 A Then, 1620, which is 4:20, Chief Walters
19 responded back, at which time I obtained another
20 statement from him.
21 And then, at 1714 hours, which is 5:14,
22 Chief Rob Parisi responded and gave me a formal
23 statement.
24 And then, at 1758, which is 5:58, Chief
25 Cieciuch came in.
139
1 And then, at 6:34 Mrs. Hjelm came and
2 gave me a statement.
3 Q Thank you. Now, Detective, I just
4 want to start with Richard Johnson. What is
5 your understanding as to who Richard Johnson
6 was?
7 A He is a fireman.
8 Q Did you have an understanding as
9 to whether or not he was at the North End
10 Firehouse that night?
11 A Yes, he was at the -- the firehouse when
12 the whole thing had happened, yeah.
13 Q And I'm going to show you what we
14 have marked as D-34, D-37 and ask you if you
15 could identify them?
16 MR. MULLIN: D-34 and D-35?
17 MR. BEVERE: D-34, 35, 36 and 37.
18 MR. MULLIN: Oh, okay. Thank you.
19 BY MR. BEVERE:
20 A Yes, D-34, D-35, D-36 is a formal
21 statement taken from Richard Johnson. And D-37,
22 again, that's that Constitutional Rights
23 Advisement/Waiver Form --
24 Q Okay.
25 A -- for him.
140
1 Q So was Mr. Johnson requested to
2 come in and give a statement?
3 A He was.
4 Q And when he came in, you advised
5 him of his Constitutional rights?
6 A I did.
7 Q And he signed the form?
8 A He did.
9 Q And he agreed to give you a
10 statement?
11 A Yes.
12 Q And he did?
13 A Yes.
14 Q You can look at the statement to
15 refresh your recollection if you need to. Did
16 Mr. Johnson provide you with any information
17 from which you were able to conclude who did or
18 said what that evening?
19 A I don't think he did, no.
20 Q The -- well, let me ask you, did
21 he -- do you have a recollection as to whether
22 or not he indicated to you that he had any
23 knowledge of who was making any antigay remarks
24 or threats that night?
25 A I don't think he did, no.
141
1 Q Now, you also talked about -- you
2 also testified about Chief Walters. What is
3 your understanding as to who Chief Walters was?
4 A At the time Chief Walters -- there is
5 three fire chiefs at any given time for the Fire
6 Department. Chief Walters was the head Fire
7 Chief.
8 Q And did you have an understanding
9 when Chief Walters came in as to whether or not
10 he had been present at the North End Firehouse
11 that night?
12 A At that time basically there was no
13 indication that any of the fire chiefs at all
14 were at that firehouse. And that's based on the
15 police officers that had responded that -- that
16 night.
17 Q As you are sitting here today do
18 you have a recollection as to why you were
19 instructed or your understanding as to why you
20 were instructed to interview Chief Walters?
21 A Yes.
22 Q And what was that understanding?
23 A Basically, Captain Buckley had advised me
24 to -- basically, he told me there was a meeting
25 Sunday, I guess in the morning, after the
142
1 incident and at that meeting there were certain
2 people present to discuss the activity that
3 happened that night, the incident. And someone
4 at that meeting made a derogatory statement, so
5 the question -- what I was asked to do was try
6 to get to the fire chiefs to find out if the
7 statement was made and who made those
8 statements.
9 Q And did Frank Walters, Fire Chief
10 of Secaucus come in voluntarily and give you a
11 statement?
12 A Yes, he did.
13 Q I am going to show you what's been
14 marked as D-38 and 39, ask you if that's the
15 statement?
16 A Yes, it is.
17 Q Okay. And did you ask -- first I
18 will let you have the statement in front of you.
19 Did you ask Chief Walters whether he had any
20 knowledge as to who had made any antigay remarks
21 or threats?
22 MR. MULLIN: Your Honor, can we
23 just have one of those foundational questions as
24 to the witness' recollection because I know --
25 JUDGE CURRAN: Sustained.
143
1 MR. BEVERE: That's fine. I'm
2 sorry, Your Honor.
3 JUDGE CURRAN: Thank you.
4 MR. BEVERE: I apologize.
5 BY MR. BEVERE:
6 Q As you're sitting -- as you're
7 sitting here today, Detective, do you have an
8 independent recollection of what Chief Walters
9 told you?
10 A No, I don't.
11 Q Do you need to look at his
12 statement to refresh your recollection?
13 A I would.
14 Q And you can do that. Did you ask
15 Chief Walters whether or not he had had any
16 knowledge or anything had been -- let me ask it
17 this way. Whether he had any knowledge as to
18 who made -- who may have made any antigay
19 statements or threats on the early morning hours
20 of April 25th, 2004?
21 A I did.
22 Q And did he have any information?
23 A No.
24 Q He -- did you ask him in this
25 initial statement as to whether or not he had
144
1 any knowledge of any antigay statement being
2 made in that meeting on the early morning
3 hours -- not -- I'm sorry, let me rephrase the
4 question.
5 Did you ask him whether or not he had
6 any knowledge of anyone making an antigay remark
7 at the meeting that was held later in the
8 morning on Sunday at the municipal building?
9 A I believe I did, yes.
10 Q Okay. And if you need to look at
11 your report to refresh your recollection as to
12 what, if any, information he told you, you can
13 go ahead and do that.
14 A The question I had asked him was what was
15 said at the --
16 JUDGE CURRAN: That's --
17 MR. BEVERE: Excuse me?
18 JUDGE CURRAN: I just don't want
19 him to read from his report.
20 MR. BEVERE: I think these reports
21 have already been put into Evidence.
22 JUDGE CURRAN: I understand that,
23 but I just want to make sure that's your
24 question.
25 MR. BEVERE: Oh, thank you, Your
145
1 Honor.
2 JUDGE CURRAN: Because he is
3 starting to read.
4 MR. BEVERE: Okay.
5 JUDGE CURRAN: I'm not sure.
6 BY MR. BEVERE:
7 Q Did you give a question to Chief
8 Walters about whether or not he had heard a
9 statement made at the meeting on April 25th that
10 could be construed to be an antigay statement?
11 A Yes, he did.
12 Q Did he give you a response to
13 that?
14 A Yes, he did.
15 Q Could you tell us the question
16 that you asked him and what his response was?
17 A The question I had asked him was, "Did
18 anyone stand up and say, 'you are going to
19 believe those cock-suckers over me' at the
20 meeting?"
21 And his answer was, "Not in my
22 presence."
23 Q Okay. Now, you asked a very
24 specific question. "Are you going to believe
25 those cock-suckers over me?" As you are sitting
146
1 here today do you know where you got that
2 information from as to that being the statement
3 that was said?
4 A Captain Buckley.
5 Q As you are sitting here -- you
6 want to look at Chief Walters statement -- what,
7 if any, information did Chief Walters have about
8 the -- about the incident that had occurred the
9 night before? Not about the meeting but the
10 incident that had occurred in the early morning
11 hours of April 25th.
12 A Basically what he told me was that --
13 just what he heard, not officially, that there
14 was a rumor of words being said at that
15 firehouse.
16 Q And what did he tell you?
17 A That someone supposedly said, "Shut up,
18 you fucking faggot. Shut up, you cock-sucker"
19 and that no names were attached to what those --
20 you know, whoever said those words.
21 Q Okay. So he was not able to tell
22 you at that point in time as to who had said
23 those words, just that he had heard that those
24 words were said?
25 A Correct.
147
1 Q And that was recorded in his
2 statement, which he signed?
3 A Yes, it was.
4 Q Now, you also talked about
5 interviewing a Katya Gonzalez. And I'm going to
6 show you what's been marked D-40 through 42 and
7 ask you if you could recognize what that is?
8 A Yes, D-40 and D-41 is a formal statement
9 I have -- that I had taken from Katya Gonzalez.
10 And again, that D-42 that is that Constitutional
11 Rights Advisory Waiver Form.
12 Q And what is your understanding as
13 to who Katya Gonzalez was?
14 A She was one of the fireman's dates,
15 girlfriend, I believe.
16 Q Did you have an understanding as
17 to whether or not she was at the North End
18 Firehouse that night?
19 A Yes, she -- I was advised she was there.
20 Q Okay. And did she voluntarily
21 come to the Department?
22 A She did.
23 Q And did you give her the
24 Constitutional Rights Waiver Form to sign?
25 A I did.
148
1 Q And did she sign it?
2 A She did.
3 Q And she agreed to speak to you?
4 A Yes.
5 Q Did she give you any information
6 as to who said or did what that evening?
7 A I don't think so.
8 Q Do you want to look at the
9 statement to refresh your recollection?
10 A Yeah, she said she has no information
11 regarding.
12 Q All right. I'm going to show you
13 what's been marked as D-43 and D-45. And I'll
14 ask you to look at it, and I'll also ask you to
15 read the whole statement before I ask you
16 questions -- actually, before I ask you the
17 questions, let me -- let me ask you this.
18 Your report you referred to earlier
19 said that you had taken another statement from
20 Chief Walters at 1620.
21 A Okay.
22 Q I'll show you your report to
23 refresh your recollection, if you don't have a
24 specific recollection as you're sitting here.
25 It's D-33.
149
1 A Okay.
2 Q So was this a second statement
3 that you took from Chief Walters on that day?
4 MR. MULLIN: Which document do we
5 have now?
6 MR. BEVERE: I'm sorry, it was
7 D-33 that I just referred to.
8 BY MR. BEVERE:
9 Q And as you're sitting here today
10 do you have an independent recollection of what
11 it was that you spoke to Chief Walters about in
12 that second statement?
13 A It was still about that meeting, what was
14 said.
15 Q Do you have an independent
16 recollection as to what was said?
17 A No, I don't.
18 Q Do you need to look at your
19 report --
20 A I would.
21 Q -- to refresh your recollection?
22 Can you -- not your report, but look at Chief
23 Walters' statement? Can you read his statement?
24 Not out loud, but read it to yourself before I
25 ask you questions.
150
1 MR. MULLIN: Can we have a
2 question, Your Honor?
3 JUDGE CURRAN: He is reading it --
4 MR. MULLIN: Oh, he is.
5 JUDGE CURRAN: -- to refresh his
6 recollection.
7 MR. MULLIN: To refresh?
8 BY MR. BEVERE:
9 Q And now that you have had an
10 opportunity to review the statement, do you have
11 a recollection as to -- what was the purpose
12 that you had asked Chief Walters to come back to
13 give a second statement?
14 A After I had spoken to other people since
15 he had left I wanted to go back and get more
16 detailed information on that specific meeting
17 and what happened at that meeting from him.
18 Q Okay. And did he provide you more
19 specific information?
20 A He had. He had.
21 Q Now, the statement, Detective, is
22 in Evidence, so I won't burden you with the
23 details of it.
24 The -- I'll put your report back in
25 front of you, D-33. And you mentioned two other
151
1 statements, Chief Rob Parisi and Secaucus Fire
2 Chief Ray Cieciuch?
3 A Yes.
4 Q And what was the purpose of your
5 interviewing or getting statements from these
6 individuals?
7 A I was advised by Captain Buckley they too
8 might have attended that meeting, so to find out
9 what happened at the meeting.
10 Q And were either of them -- did
11 either of them provide you any information from
12 which you were able to conclude who may have
13 done or said anything antigay in the early
14 morning hours of April 25th, 2004?
15 A No.
16 Q Were they able to give you any
17 information to which you were able to conclude
18 who may have made any threats to the plaintiffs
19 in the early morning hours of April 25th, 2004?
20 A No.
21 Q Did you have an understanding as
22 to whether Chief Cieciuch and Chief Parisi were
23 at the North End Firehouse on the early morning
24 hours of April 25th, 2004?
25 A They were not there.
152
1 Q Now, I believe -- and at 6:34 you
2 took another statement, 6:34 p.m. on --
3 A Yes, I did.
4 Q If you go to your -- who was that
5 statement from?
6 A Mrs. Hjelm.
7 Q What was your understanding as to
8 who Mrs. Hjelm was?
9 A She was a neighbor and might -- and heard
10 something.
11 Q And do you recall from who you
12 learned that information from?
13 A One of the victims, I believe, had also
14 told me that too, yeah.
15 Q And you interviewed Miss Hjelm and
16 took a statement from her?
17 A Yes.
18 Q And we have that statement in
19 Evidence, as well, so I won't burden you with
20 the details of that statement.
21 Okay. I am going to show you what I
22 marked as D-54 and D-56 for Identification and
23 ask you if you can identify D-54 through 56?
24 A That is a supplemental police report I
25 completed on 4/29 of '04.
153
1 Q So the next day?
2 A Yes.
3 Q And does that police report detail
4 the things that you did in regard to this
5 investigation on that day?
6 A Yes, it does.
7 Q And that would be things that you
8 did or conversations you had with people?
9 A Correct.
10 Q And as you are sitting here today
11 do you have an independent recollection of,
12 without looking at the report, as to what you
13 did that day, who you spoke to and what they
14 said?
15 A No, I would have to look.
16 Q You would need to refer to your
17 report?
18 A Yes.
19 Q And your report was made at around
20 the time you received this information?
21 A Yes, it was.
22 Q And it was accurate when it was
23 made?
24 A Yes, it was.
25 Q Now, the first paragraph of your
154
1 report talks about something that happened the
2 previous day, 4/28/04?
3 A Correct.
4 Q Can you tell us what happened on
5 4/28/04?
6 A Yes. I got a call from a Daniel Snyder,
7 another fireman. And he said he would not be
8 coming in to speak to me.
9 Q Did you ask him to come in and --
10 and give an interview?
11 A Yes, we had.
12 Q And his response to the Detective
13 Bureau is he would not be coming in?
14 A His answer was that he wouldn't be coming
15 in until he speaks with his attorney.
16 And I asked him, "Well, who is your
17 attorney?"
18 And -- and then -- then he said, "Do I
19 need one?"
20 So one minute he was telling me, I
21 believe, he needed -- that he wants to contact
22 an attorney; and then, when I'm asking him
23 again, he is like, "Well, do I need one?"
24 Q And if a person says that they
25 want to speak to an attorney, are you allowed to
155
1 speak to them without an attorney?
2 A No, I'm not.
3 Q Now, going on, it says, "On
4 4/29/04, 1420 hours" -- what time would that be?
5 A That's at 2:20.
6 Q Okay. And can you just give us --
7 look at your report and tell us what you did at
8 2:20 on April 29th, 2004.
9 A What had happened was Captain Buckley had
10 called me earlier that day and asked me to come
11 in again early. And I did. And when I got
12 there, he advised me that I was to go speak with
13 the Mayor and the Deputy Mayor about the events
14 at that meeting that happened after the
15 incident.
16 Q Okay. The meeting at the
17 municipal building you referred to earlier?
18 A Correct.
19 Q Okay. And then did you conduct
20 interviews of the Mayor and Deputy Mayor?
21 A I had.
22 Q And as you are sitting here today
23 do you have -- you have any -- can you tell us
24 what was discussed between you and the Mayor?
25 A No, I would have to look at the report.
156
1 Q You have to look at your report?
2 And would your report be an accurate recitation
3 of that conversation?
4 A Yes, accurate.
5 Q And it would have been made at the
6 time the conversation took place?
7 A Yes.
8 Q And why don't you read us that
9 paragraph where you -- I am going to have you
10 read from the report --
11 MR. BEVERE: Judge.
12 Q -- the paragraph where you spoke
13 to the Mayor, beginning on 4/29/04.
14 MR. MULLIN: Again, just same
15 objection. If he is going to read, we should
16 just establish he has no recollection, that's
17 why he is reading.
18 JUDGE CURRAN: Sustained. Just
19 re-ask.
20 BY MR. BEVERE:
21 Q Do you have any independent
22 recollection of the conversation between you and
23 the Mayor?
24 A No.
25 Q Do you need to read from your
157
1 report?
2 A I would.
3 "On 4/29/04 at 1420 hours Mayor Elwell,
4 Deputy Mayor Reilly and the Town of Secaucus
5 Attorney Frank Leanza responded to this
6 Detective Bureau."
7 Q If you can keep your voice up
8 Detective, and read a -- a little slower.
9 A "Upon their arrival I escorted Mayor
10 Elwell and Mr. Leanza into the DB interview
11 room."
12 Q What would that be?
13 A Detective Bureau interview room.
14 Q Okay.
15 A "I then asked Mayor Elwell who was at the
16 meeting that was held on Sunday 4/25/04 at the
17 Town Hall caucus room. Mayor Elwell advised
18 that himself, Deputy Mayor Reilly, Police Chief
19 Corcoran, Fire Chief Walters, Deputy Chief
20 Cieciuch, Battalion Chief Parisi and Chucky
21 Snyder, Sr."
22 "I then asked Mayor Elwell if any other
23 person attended that meeting, and he said that
24 was it. I then asked him if Chucky Snyder, Jr.
25 or Richie Johnson was at that meeting, and he
158
1 replied that he didn't -- he didn't think they
2 were there and added that they had -- that he
3 had been going in and out of the meeting."
4 "I then asked Mayor Elwell if anyone at
5 the meeting had said, 'You're going to believe
6 those cock-suckers over me?' Mayor Elwell
7 replied that he remember the words being said
8 and added that he didn't believe it had been
9 directed at anyone. He went on to add that
10 people do curse and use words as an expletive.
11 I asked the Mayor who had said these words, and
12 he advised Chucky Snyder, Sr. I asked him in
13 what context he took the remark, and he said
14 that Snyder was saying they had cursed at them
15 and had used the words as an expletive. I asked
16 the Mayor how he took the comment, and he
17 advised that he took it as an expletive and that
18 it wasn't directed at someone."
19 Q Okay. So the Mayor told you that
20 Mr. Snyder, Sr. --
21 MR. MULLIN: Objection, Your
22 Honor. Now we have leading. He is reading a
23 document.
24 JUDGE CURRAN: Sustained.
25 BY MR. BEVERE:
159
1 Q Did the Mayor indicate to you that
2 he had heard the words, "Are you going to
3 believe those cock-suckers over me?"
4 MR. MULLIN: Objection, Your
5 Honor. This witness testified he has no
6 independent memory of this event.
7 JUDGE CURRAN: Sustained.
8 BY MR. BEVERE:
9 Q Now, Detective, did you -- your
10 report says that you interviewed the Mayor, the
11 Deputy Mayor. Did you do that together, or did
12 you separate them?
13 A Separate.
14 Q Okay. And after interviewing the
15 Mayor your next paragraph indicates a
16 conversation you had with the Deputy Mayor?
17 A Correct.
18 Q As you are sitting here today do
19 you have any independent recollection of what
20 was discussed between you and the Deputy Mayor?
21 A No, I don't.
22 Q All right. And is the recitation
23 of that conversation in your report, would that
24 have been an accurate recitation of the
25 conversation?
160
1 A Correct.
2 Q Made at or near the time you had
3 the conversation?
4 A Correct.
5 Q Can you read from -- could you
6 read from your report the nature of the
7 conversation between you and the Deputy Mayor?
8 A "After speaking to the Mayor he departed
9 our office, at which time Deputy Mayor Reilly
10 entered the interview room that was occupied by
11 Mr. Leanza and myself."
12 Q Let me ask you a quick question.
13 Do you have an understanding as to why Mr.
14 Leanza was in the room for the interview with
15 the Mayor and for the Deputy Mayor?
16 A I have no idea.
17 Q Okay. Go ahead.
18 A "I then asked Deputy Mayor Reilly who had
19 attended this meeting on Sunday. And he replied
20 that himself, Mayor Elwell, Chief Corcoran, the
21 three fire chiefs, Fire Captain Chucky Snyder,
22 Jr., First Lieutenant Daniel Snyder, Second
23 Lieutenant Richie Johnson and North End
24 Firehouse member Chucky Snyder, Sr."
25 "I then asked Deputy Mayor Reilly if
161
1 anyone at the meeting had used the words,
2 'You're going to believe those cock-suckers over
3 me?' Deputy Mayor Reilly answered by saying
4 that he had heard the words 'cock-suckers' but
5 not the comments that was said. He said that
6 everybody had been talking at the same time and
7 that was why he didn't hear the comments that
8 had been said."
9 "I then asked Deputy Mayor Reilly who
10 had said the word, and he replied that he didn't
11 recall who had said it. I then asked Deputy
12 Mayor Reilly in what context did he take the
13 words being said; and he replied that he took it
14 as being an expletive, like street slang. He
15 said that -- he said that the words were used
16 like 'Cock-sucker, we are the victims here' And
17 that they are not -- and that they had not been
18 directed at anyone. Deputy Mayor Reilly
19 and Leanza then departed the DB."
20 Q Then your report goes on to talk
21 about a conversation you had with Mr. Carter?
22 A Correct.
23 Q At what time?
24 A 1500 hours, 3 p.m.
25 Q All right. And as you are sitting
162
1 here today do you have an independent
2 recollection of the conversation you had with
3 Mr. Carter?
4 A No, I don't.
5 Q Do you need to look at your report
6 to refresh your recollection?
7 A I would.
8 Q And what's in your report, would
9 that be an accurate recitation of your
10 discussion with Mr. Carter? Would that have
11 been an accurate recitation of your discussion
12 with Mr. Carter?
13 A Yes. Sorry.
14 Q And that would have been made at
15 or near the time you and Mr. Carter had the
16 conversation, correct?
17 A Correct.
18 Q You can read to us in the report
19 as to the conversation between you and
20 Mr. Carter.
21 MR. MULLIN: Same Objection, Your
22 Honor. Establish he has no recollection in
23 order to read.
24 JUDGE CURRAN: Sustained.
25 BY MR. BEVERE:
163
1 Q Do you have any independent
2 recollection of the nature of your discussion
3 with Mr. Carter?
4 A No, I don't.
5 Q Do you need to read from your
6 report?
7 A I would. "At approximately 1500 hours
8 Mr. Tim Carter called this agency and advised me
9 that he would be responding tonight to provide
10 me with a formal statement about the incident.
11 At that time Mr. Carter explained that one of
12 his neighbors had spoken to him today asking if
13 he had trouble over the house. Mr. Carter said
14 that his neighbor advised him that she had not
15 been home that evening and had been at a
16 funeral. Mr. Carter advised that he didn't know
17 the name of the woman but that she resides in a
18 brick house on the corner. Mr. Carter advised
19 that he feels embarrassed over this incident.
20 He said that he knows the firemen are coming
21 after him and Peter and that he knows they will
22 get revenge on them and that they are very rowdy
23 people. He added that they are an organization
24 and that he and Peter is in fear and that they
25 had been run out of Town."
164
1 Q Is that -- could you read that --
2 is in -- if you can go back and read the
3 sentence --
4 A Yes. "He added that they are an
5 organization and that he and Peter is in trouble
6 and that they had been run out of Town.
7 Mr. Carter advised" --
8 Q You can keep going.
9 A "Mr. Carter advised that he is even
10 afraid to move into another Town as a result of
11 what happened. Mr. Carter also advised that he
12 is afraid when Fridays and Saturdays come, for
13 fears that those involved would go and get drunk
14 somewhere and retaliate. I advised Mr. Carter
15 that his residence is on a priority check and
16 that he should contact this agency immediately
17 for any assistance. I advised him that I would
18 speak further" -- "that we would speak further
19 when he responds to this agency."
20 Q Okay. Now, the next portion of
21 your report talks about 1900 hours, 7:00 p.m.?
22 A Correct.
23 Q Now, can you -- why don't you take
24 a look -- why don't you read that paragraph, and
25 I will ask you some questions. Not out loud,
165
1 but read it to yourself. Okay?
2 A Okay.
3 Q Can you tell us what you did at
4 7:00 p.m.?
5 A I had asked Chief Parisi to come back in.
6 Q Who was Chief Parisi again?
7 A He is one of the fire chiefs. I believe
8 he was the second in command at that time.
9 Q And what was the reason that you
10 wanted Chief Parisi to come back to the
11 Detective Bureau?
12 A After -- now that we had spoken and -- to
13 the Mayor and the Deputy Mayor and had been
14 given a name of who had said those words at that
15 meeting that had taken place, I wanted to get
16 them back in -- well, Chief Parisi at that time
17 to find out, to, you know, revisit that and see
18 if, now that we had given him the name, if he
19 had remembered more details about the incident.
20 Q And now, in your report did you --
21 well, let me ask you the question. Did you
22 indicate to Chief Parisi that you knew the
23 statement had been said?
24 A Yes.
25 Q All right. Did you tell him who
166
1 said it?
2 A I don't remember.
3 Q Want to look at your report and
4 see?
5 A I never told him who said it at that
6 point, no.
7 Q But you told him that you knew the
8 words had been said?
9 A Correct.
10 Q Did he give you any -- well, did
11 you ask him or -- sorry. So I don't run afoul
12 of a leading objection, what, if anything, did
13 you ask him in regard to the statement? And you
14 can look at your report, if you need to.
15 A I asked him if he remembers who said the
16 words, "You're going to believe those
17 cock-suckers over me?"
18 Q And what did he say?
19 A He said he doesn't remember and that
20 everybody was talking at the same time.
21 Q Okay. Then the next paragraph you
22 talk about a conversation with Captain Rozansky?
23 A Yes.
24 Q All right. And what was the
25 nature and purpose of that conversation? And
167
1 you can refer to your report, if you need to.
2 A I went up to Captain Rozansky to remind
3 him -- well, I advised him of Mr. Carter's
4 contact to me, that they are in very much fear
5 of retaliation. So I went to Captain Rozansky
6 to remind him that the victims' residence was on
7 a priority check and that the patrol officers
8 and their supervisors have to remain vigilant.
9 Q And that was the conversation that
10 you related to us earlier between you and
11 Mr. Carter --
12 A Yes.
13 Q -- earlier in your report?
14 A At around 3 p.m. I think it was.
15 Q Okay.
16 A Yes.
17 Q And then you talk about 7:15.
18 What, if anything, did you -- did you do or have
19 done at 7:15 p.m.?
20 A At 7:15 I had dispatched a police officer
21 to some of the firemen's houses that were not
22 getting back to us. We were leaving messages at
23 their houses and not getting returned calls
24 back.
25 Q And who was the officer that you
168
1 dispatched?
2 A Elphick.
3 Q And where did you send Patrol
4 Officer Elphick?
5 A I had sent her to the Maxwell house, the
6 Mutschler residence the Mondadori residence.
7 Q And did Patrol Officer Elphick
8 report back to you?
9 A Yes, she did.
10 Q And was she successful in reaching
11 anybody at those residences? Let me ask you
12 this question: Do you have an independent
13 recollection of your --
14 A I don't.
15 Q -- Patrol Officer Elphick?
16 A I don't.
17 Q Would you have to read from your
18 report?
19 A I would.
20 JUDGE CURRAN: Let's go through it
21 again. Instead of asking him -- ask him if he
22 has any recollection whatsoever, and then we'll
23 kill that question.
24 Q Do you have any independent
25 recollection whatsoever of your conversation of
169
1 Patrol Officer Elphick after you dispatched her
2 to these residences?
3 A No, I don't.
4 Q Okay.
5 A "At 1915 hours I sent P.O. Elphick to
6 attempt notification at the Maxwell residence,
7 158 Washington Avenue, the Mutschler residence,
8 310 Hagan Place and to Dawn Mondadori's
9 residence, 849 7th Street. I had also
10 dispatched P.O. Elphick to those locations on
11 4/27/04, and she was only able to contact and
12 speak to Dawn Mondadori and advise her to call
13 me. As of 4/29/04, 1900 hours dawn had not
14 called."
15 Q Who was Dawn Mondadori, if you
16 have a recollection who she was?
17 A I don't have a recollection who she was.
18 Q Okay.
19 A She was either a wife or a date of one of
20 the firemen --
21 Q Okay. Keep going.
22 A -- I believe. "P.O. Elphick did advise
23 she had spoken to Dawn Mondadori again and
24 advised her to call me. P.O. Elphick advised
25 that Dawn told her that she dates Daniel Snyder
170
1 and that she had spoken to him and that she will
2 still call him."
3 Q Okay. And then at 8:17 you took
4 another statement?
5 A I did.
6 Q Who would that be from?
7 A Chief Walters.
8 Q Okay. And what was the purpose of
9 your taking yet a third statement from Chief
10 Walters?
11 A Again, now, after that I had been given a
12 name of who had made that comment at the meeting
13 of -- from the Mayor. I think he had told me
14 that he thought it was Chucky Snyder. I had
15 asked Chief Walters to come back to try to get
16 more information out of him about that.
17 Q And as you are sitting here do you
18 have any independent recollection of your
19 statement -- of your meeting with Chief Walters?
20 A I don't.
21 Q Would you need to look at his
22 statement to refresh your recollection?
23 A I would.
24 Q D-57 and D-58, which are already
25 in Evidence.
171
1 A Okay.
2 MR. BEVERE: Judge, it is
3 90 degrees in here.
4 JUDGE CURRAN: I will just
5 indicate I know it is a little warm. Normally
6 counsel would always be -- be in court in suit
7 and tie. If counsel wishes now this afternoon
8 to remove their jackets, they certainly are much
9 advised to do so or allowed.
10 MR. PARIS: I will take the offer,
11 Judge.
12 MR. BEVERE: Thank you, Judge.
13 BY MR. BEVERE:
14 A Okay.
15 Q Okay. Did Chief Walters indicate
16 to you anything about the statement being made
17 in his now third statement?
18 A Now he remembers hearing those words,
19 yes.
20 Q Okay. Was he able to tell you or
21 did he -- did he tell you whether or not he
22 recalled who said those words?
23 A I believe he did not.
24 Q Now, going back to your report --
25 JUDGE CURRAN: Mr. Bevere, I
172
1 really hate to interrupt you; but I think you
2 are going to move on to the next paragraph,
3 which will lead to another report. Do you have
4 any objection to taking the lunch break at this
5 point?
6 MR. BEVERE: Well, Judge, I
7 certainly have no objection. The only thing
8 I -- I was just going to say is that the -- I
9 have -- you know, Judge, we can take a lunch
10 break, that's fine. That's fine. Because there
11 is -- there is another page of the report. I
12 can't say it will be five minutes, ten minutes.
13 JUDGE CURRAN: Okay. Thank you.
14 We will go off the record.
15 We will take the lunch break,
16 Ladies and Gentlemen. Again I will remind you
17 please do not discuss the case among yourselves.
18 Please don't discuss it with anyone else. I
19 will ask you if you will be back at 1:45. Thank
20 you.
21 (Whereupon, the jury is excused
22 for lunch.)
23 JUDGE CURRAN: You may step down.
24 THE WITNESS: Thank you.
25 JUDGE CURRAN: Mr. Bevere, I
173
1 apologize to you. I usually try very hard not
2 to put the attorneys on the spot. Just see the
3 jurors looking at the clock. So I didn't mean
4 to give you no real choice.
5 MR. BEVERE: Judge, you know what,
6 I -- and if I really thought I could have done
7 it in five minutes, I would have said so.
8 JUDGE CURRAN: Okay, good. Thank
9 you.
10 (Whereupon, a luncheon recess is
11 taken.)
12 A F T E R N O O N S E S S I O N
13 JUDGE CURRAN: Thank you. We'll
14 bring out the jury.
15 Again, I usually tell counsel.
16 We have a motion scheduled today and tomorrow,
17 but don't be concerned --
18 COURT CLERK: Jurors are
19 approaching.
20 JUDGE CURRAN: -- they have to
21 wait.
22 COURT CLERK: On the record.
23 (Whereupon, the jury is brought
24 into the courtroom.)
25 JUDGE CURRAN: Thank you. I will
174
1 note for the record that the jurors are
2 returning to the jury box. Please be seated.
3 Sir, again, I have to remind you
4 that you are still under oath.
5 THE WITNESS: Yes, Your Honor.
6 JUDGE CURRAN: Mr. Bevere.
7 MR. BEVERE: Thank you, Your
8 Honor.
9 BY MR. BEVERE:
10 Q Detective, I'm going to hand you
11 your report, so we could finish where we left
12 off, resume where we left off. I believe we had
13 just finished talking about Chief Walters' third
14 statement. And then it talks about at 2020
15 hours you had a phone call.
16 A Yes.
17 Q And who was that phone call from?
18 A That was from Dawn Mondadori.
19 Q And what, if anything, did you and
20 Dawn Mondadori discuss?
21 A Well, at that time she advised she wasn't
22 going to respond to come in and see me and that
23 I would have to speak with her attorney before
24 doing so, since it was voluntary.
25 Q Did you say she was or she was
175
1 not?
2 A She was not.
3 Q Okay.
4 A And then, when I asked her for her
5 attorney's name, I don't think she had it or had
6 one.
7 Q I am going to ask you to keep your
8 voice up, just because I think we have the fan
9 on and I am having a little trouble hearing you.
10 Okay. So Dawn Mondadori told you she
11 wanted an attorney?
12 A Correct.
13 Q Now, it talks about 2050 hours.
14 That would be 8:50?
15 A Yes.
16 Q You had a conversation with who?
17 A Chief Cieciuch.
18 Q And who was Chief Cieciuch again?
19 A Fire Department Chief.
20 Q And he had already given a
21 statement, correct?
22 A He had, yes.
23 Q And what was the purpose of you
24 calling him back again?
25 A As a result of that meeting with the
176
1 Mayor and the Deputy Mayor and then being
2 advised who made that comment, I wanted to see
3 if I could get some more information out of
4 Chief Cieciuch.
5 Q And did you discuss what you had
6 learned from the Mayor with Chief Cieciuch?
7 A I had advised him that I knew who had
8 made the comment. I never gave the name, and at
9 that time he still couldn't give me a name or
10 anything.
11 Q All right. Did he tell you at
12 that point whether or not he had heard the
13 comment?
14 A He said he did not hear the comment
15 still.
16 Q And then you go on in your report
17 to talk about something that Chief Walters, when
18 he was giving his statement and asked you to
19 copy?
20 A What had happened, after -- before I had
21 spoken to Chief Cieciuch, when I had taken the
22 third statement from Chief Walters, he had asked
23 to make a copy of something. He asked me to go
24 to our copy machine and make a photocopy. At
25 that time Detective Sergeant DeGennaro was in
177
1 our interview room where our copier is located.
2 So I proceeded to the police desk to make that
3 photocopy for him. He waited outside because he
4 is not permitted to be back there. I went in.
5 I hit the copy button, went outside, gave him
6 the copy that he asked for. Then I realized --
7 I went back inside because I left something in
8 there, and I found that the copy machine had
9 made a couple copies of that document.
10 Q And in your report do you indicate
11 what that document was?
12 A Yes, I believe that was a letter of
13 resignation from the Fire Department. They had
14 comprised a letter, I guess, showing
15 dissatisfaction with the Town.
16 Q And did you keep a copy of that
17 letter?
18 A I entered that into Evidence, I did, yes.
19 Q You did?
20 A Yes.
21 Q Okay. I am going to show you what
22 we marked as D-60, D-61 and D-62 and ask if you
23 can identify that for the record?
24 A Yes, I can.
25 Q Okay. And what -- first of all,
178
1 what is D-60?
2 A D-60 is my property in evidence report
3 that I completed, listing that I had entered two
4 pages of a letter into evidence.
5 Q Okay. And D-61 and D-62 are what?
6 A D-61 is the actual letter, and then D-62
7 are all the firefighters' names and signatures
8 that accompanied that letter.
9 Q And that was the letter that Chief
10 Walters had asked you to make a copy of?
11 A Yes, it was.
12 Q And when you found the extra copy
13 of the letter, you entered it into evidence in
14 the case?
15 A Yes, I did.
16 Q Now, moving on, at 8:10 p.m.,
17 what, if anything, did you do at that time in
18 terms of April 29th, 2004?
19 A At 8:10 Mr. Carter came into headquarters
20 and gave a formal statement to Sergeant
21 DeGennaro.
22 Q Did you take the statement from
23 Mr. Carter or did Sergeant DeGennaro?
24 A Sergeant DeGennaro did.
25 Q When Mr. Carter came in for his
179
1 statement, did you have some discussion with
2 Mr. Carter?
3 A We had.
4 Q Now, as you are sitting here today
5 do you have an independent recollection of the
6 nature of that discussion?
7 A I don't.
8 Q Would you need to look at your
9 report to refresh your recollection?
10 A I would.
11 Q And why don't you go on in your
12 report and tell us the nature of a discussion
13 you had with Mr. Carter -- and do you have any
14 recollection of the specifics of the
15 conversation?
16 A No, I don't.
17 Q So why don't you go ahead and read
18 from your report?
19 A "At 2010 hours on 4/29/04 Tim Carter
20 responded to this agency and provided a formal
21 statement to Detective Sergeant DeGennaro.
22 While at this office Mr. Carter advised that he
23 has received contacts from Assemblyman
24 Impreveduto, Senator Corzine and assistant dean
25 of a Newark college and, in parentheses, he had
180
1 contacted several organizations seeking victim
2 assistance."
3 "He also advised that the Town
4 attorney, Mr. Frank Leanza, had contacted him on
5 4/26/04 and had a discussion with him regarding
6 the incident. Mr. Leanza was said to have
7 commented if it was him, he would move out of
8 Town. Mr. Carter said that it was only a
9 suggestion and that Mr. Leanza said that's" --
10 "said that that's what he would do, if he was
11 the victim of this incident. Mr. Carter added
12 that it was just a comment and he didn't
13 take" -- "and he didn't" -- there is a spelling
14 error -- "any other negative way but only as
15 advice."
16 Q Now, you went on to -- when
17 Mr. Carter was there, did you provide him with
18 anything?
19 A Yes, I did.
20 Q What did you provide him with?
21 A With that victim notification packet that
22 we had.
23 Q And did you advise him of any
24 conversation you had had with the Hudson County
25 Prosecutor's Office?
181
1 A Yes, the Hudson County Prosecutor's
2 Office would have been in contact with him
3 regarding this whole case. And they suggested
4 us to advise the victims to install some sort of
5 video surveillance equipment at their residence.
6 And that's what I relayed to them.
7 Q And did you give any other
8 instruction to Mr. Carter before he left?
9 A Again, not to hesitate to call 911. And
10 I also advised him that his location, his
11 residence is still on that priority check.
12 Q And then at 10:10 p.m. what did
13 you do?
14 A I sent P.O. Elphick back to the Maxwell
15 and Mutschler --
16 Q That would be Patrol Officer
17 Elphick?
18 A Correct, Police Officer Elphick, I
19 dispatched her back to the Mutschler and Maxwell
20 residence to contact Hjelm.
21 Q Did she advise you again what her
22 results were?
23 A There was -- no contact was able to be
24 made there.
25 Q That was the third time you had
182
1 dispatched her out to do that?
2 A I believe so.
3 Q And then, finally, at 11:00 what
4 did you do?
5 A At 11:00 I had Officer Ulrich respond to
6 see me. And I asked him to clarify the
7 statements he made in his investigation report
8 in a new report about what had happened up
9 there.
10 Q What was the purpose of your doing
11 that?
12 A Just to get more specific on a comment he
13 listed in his investigation report. I wanted
14 him to get more specific on what was said up
15 there.
16 Q Meaning by what was said by the
17 people --
18 A By the people at the scene.
19 Q Okay. And then did Patrol Officer
20 Ulrich provide you with that supplemental
21 report?
22 A He had.
23 Q Okay. And that report is now in
24 Evidence, so I won't burden you with the details
25 of that.
183
1 All right. Now I'm going to show you
2 what I have marked as D-67 and D-68 for
3 Identification. Can you tell us what that
4 document is, please?
5 A That was another supplemental
6 investigation report I had submitted on
7 April 30th, 2004.
8 Q All right. And does that report
9 document what you did in regard to this
10 investigation on April 30th, 2004?
11 A It does.
12 Q And this would have been prepared
13 at the time?
14 A Yes.
15 Q And this would have been
16 information regarding what you did and who you
17 spoke to and what they told you?
18 A Correct.
19 Q And would have been accurate at
20 the time it was made?
21 A Yes.
22 Q Starting with 4:00, when you first
23 got to work, can you tell us what you did?
24 A Yeah, at 4:00 -- there was a bus driver.
25 A bus had taken, what we understand, some of the
184
1 firemen to that event. They had --
2 Q Keep your voice up a little bit.
3 I'm sorry.
4 A A bus -- a Secaucus bus had transported
5 the firefighters to their event, some of the
6 firefighters. So we had gotten the bus driver
7 in to speak to her about what, if anything, they
8 might have heard.
9 Q And did you take a statement from
10 the bus driver?
11 A Yes, I did.
12 Q And what was her name?
13 A Linda Berardo.
14 Q And did Linda Berardo provide you
15 with any information as to who may have said
16 anything antigay in the parking lot that night
17 or who may have been yelling at the plaintiffs?
18 A No, she didn't.
19 Q Did Miss Berardo have any
20 information for you about the incident, itself?
21 A I don't believe she did, no.
22 Q And then, at 1705, which would be
23 5:05 p.m., what did you do?
24 A I left another message at the Mutschler
25 residence for Charlie Mutschler, fireman, to
185
1 call me.
2 Q And why did you want him to call
3 you?
4 A Because he was at the scene that night,
5 so I could attempt to get him in for an
6 interview.
7 Q And did he get back to you?
8 A Yes, he had. He called me back, and he
9 basically told me that he wasn't going to
10 respond in.
11 Q Did you ask him to speak -- did
12 you ask him if he will speak to anyone else?
13 A I'm sorry?
14 Q Could you read your report? Ask
15 him if he could speak to anyone else?
16 A His attorney.
17 Q So he told you he wanted to get an
18 attorney?
19 A Correct.
20 Q All right. And then did you tell
21 Mr. Mutschler that you wanted to speak to anyone
22 else?
23 A Oh, I'm sorry.
24 Q Could you read your report?
25 A Yeah, I'm sorry. His wife.
186
1 Q Was she home at that time?
2 A I don't believe she was, no.
3 Q And what, if anything, did he tell
4 you?
5 A Oh, she was out for the weekend. And I
6 asked her -- to have her call me when she gets
7 back.
8 Q Okay. And then at 5:15 p.m. what
9 did you do?
10 A At 5:15 Detective Sergeant DeGennaro and
11 I responded up to the firehouse and photographed
12 that location.
13 Q And while you were there did you
14 have any conversations with anyone?
15 A Yes, another firefighter named Larry
16 Sanzari.
17 Q Did Mr. Sanzari have any
18 information?
19 A No, he did not.
20 Q And did you speak to anyone else
21 while you were at the scene?
22 A Mr. Carter.
23 Q Could you tell us -- and if you
24 need to -- do you have any independent
25 recollection of your conversation with
187
1 Mr. Sanzari and Mr. Carter, what was said?
2 A No, I don't.
3 Q Okay. You could go ahead, why
4 don't you read for us that paragraph starting
5 with, "On 4/30/04."
6 A "On 4/30/04 at 1715 hours Detective
7 Sergeant DeGennaro and I responded to the
8 incident location. And upon arrival Detective
9 Sergeant DeGennaro photographed the scene.
10 While there I had spoken to Larry Sanzari, who
11 advised that he had been dropped off by the bus
12 that night but that he had left the area
13 immediately and that there was no incident while
14 he was present. Mr. Sanzari advised that he
15 would be responding to this headquarters this
16 evening to provide me with a statement advising
17 such."
18 "While at the scene the victim, Mr. Tim
19 Carter, approached Detective Sergeant DeGennaro
20 and showed him that on the night of this
21 incident the actors had been standing on a table
22 that was located next to the fence, beating and
23 shaking the fence."
24 Q And then what happened when you
25 left the location?
188
1 A "After we cleared from that location I
2 responded back to headquarters and contacted
3 North End fireman Billy Heitzmann.
4 Mr. Heitzmann advised that he had not been out
5 with the other members of the firehouse that
6 night and had been playing cards at the American
7 Legion. I then attempted to call Chucky Snyder,
8 Jr., Kelly Snyder, Kevin Kloepping and Joseph
9 Schoendorf but had negative results."
10 Q What does that mean, "negative
11 results"?
12 A I couldn't get anybody.
13 Q And then -- then what did you do?
14 A "I then dispatched P.O. Doxbeck to the
15 Maxwell residence" --
16 Q Who was P.O. Doxbeck?
17 A He is another police officer. -- "and
18 was advised by him that he had made contact with
19 both Heather and Patrick. I then received a
20 call from Heather, who advised she would" --
21 "she would not respond this evening to speak to
22 me but would respond tomorrow."
23 "I then received a call from Patrick
24 Maxwell. And when I asked him to respond, he
25 advised that he couldn't today, since he was
189
1 going to Atlantic City. When I asked him when
2 he could respond, he advised that, 'Actually, I
3 have spoken to my attorney; and she advised that
4 I should not go.' I then asked Mr. Maxwell for
5 name and phone number for his attorney. And he
6 advised that her name is Susan Marra out of
7 Hackensack, that he would contact me back" -- I
8 put down "with her name" but --
9 Q What did you mean?
10 A With her phone number.
11 Q Okay. And then at 11:00 p.m. on
12 that day you had a message on your answering
13 machine?
14 A Yes, when we got back into the office I
15 checked out my answering machine and found out
16 that Chucky Snyder, Jr. had left a message. And
17 in that message he advised that he knows I have
18 to do my job but he will not be coming in for a
19 statement.
20 Q Now, Detective, I'm going to show
21 you what I have marked as D-81 for
22 Identification. And I'll take back your other
23 report, thank you. Can you tell us what D-81
24 is?
25 A Yes, D-81 is another supplemental
190
1 investigation report that I left on 5/4 of 2004.
2 Q Now, the last report we saw from
3 you was April 30th, 2004. And in this report is
4 dated May 4th, 2004. Can you tell us -- if you
5 don't have a recollection, that's fine. Do you
6 have a recollection or do you have an
7 understanding as to why there wouldn't be any
8 reports between May 1st and May 3rd?
9 A From me, I'm off Sunday, Mondays. And I
10 believe I had taken off that Saturday before; I
11 had a prearranged day off. So that would be
12 why.
13 Q So 4th would have been your first
14 day back to work?
15 A Yes.
16 Q Okay. And once again, is this the
17 report of the activities with regard to this
18 case for that day?
19 A It is.
20 Q And as you are sitting here today
21 can you tell us with specificity what it was
22 that you did?
23 A I would have to look at the report.
24 Q Okay. Look at the report to
25 refresh your recollection?
191
1 A Yes.
2 Q Okay. And that would be D-81.
3 And why don't you -- why don't you start with
4 the first thing that happened on that day that
5 you were involved in?
6 A Want me to read?
7 Q As you are sitting -- as you are
8 sitting here do you have an independent
9 recollection?
10 A I don't.
11 Q Okay. You need to read from your
12 report?
13 A I would.
14 Q Let me ask you this: Do you have
15 a recollection of a meeting that occurred on or
16 about May 4th, 2004 with persons from the
17 Attorney General's Office and other members of
18 the Secaucus Detective Bureau?
19 A Yes, I do.
20 Q Do you -- you do have a
21 recollection of that meeting?
22 A I do.
23 Q And as you are sitting here,
24 before you look at your report can you tell us
25 basically how it was, to your recollection, that
192
1 that meeting took place, who participated?
2 A I had gotten a phone call earlier in the
3 day asking me to come in early. Nothing was
4 explained to me. I wound up going in early.
5 And at that time I was advised that a member of
6 the New Jersey State Attorney General's Office
7 is responding out to Secaucus to meet with us
8 regarding this incident.
9 So that meeting was held at the
10 Secaucus Public Library in a backroom. Chief
11 Corcoran was there. Detective Captain Buckley
12 was there. Lieutenant Malanka was there.
13 Myself was there. Sergeant DeGennaro was there.
14 Basically everybody in the Detective Division
15 attended that meeting.
16 Q All right. And if you can keep
17 your voice up.
18 A Okay.
19 Q I'm sorry. We have the fans
20 making it a little more difficult to hear.
21 And can you give us your -- your basic
22 recollection as to what took place at the
23 meeting?
24 A At that meeting we provided Detective --
25 I think his name was, Eugene Troyanski,
193
1 something similar to that. We gave him a
2 complete copy of all the information, of all the
3 reports, of all the evidence that we had taken
4 up to that time and date.
5 Q Who was Mr. Troyanski, to your
6 recollection?
7 A He was a detective with the Attorney
8 General's Office.
9 Q And do you recall what, if
10 anything, Mr. Troyanski advised you at that --
11 at that meeting?
12 A Basically he said that he is going to --
13 once he was finished with our meeting, he was
14 going to bring everything back to his
15 organization and review the matter and then get
16 back to us.
17 Q Did you, in fact, provide
18 Mr. Troyanski with a complete copy of the case
19 filed to that point?
20 A We gave him everything. We even -- I
21 went further, and I explained the whole
22 situation when I had responded to the Hudson
23 County Prosecutor's Office and had that run-in
24 with their sergeant over there. And he advised
25 us at that point that he is going to bring that
194
1 back also and that when he contacts the Hudson
2 County Prosecutor's Office, he will have that
3 issue addressed also.
4 Q In other words, you are talking
5 about the conversation you had with Sergeant
6 DePascale about Matt Kickey?
7 A Correct, yes.
8 Q Now, going on in your report you
9 talk about a conversation that you had at about
10 9:30 at night. Do you need to look at it to
11 refresh your recollection?
12 A I would.
13 Q Okay. Go ahead.
14 A Around 1930 hours, 7:30, myself and
15 Sergeant DeGennaro responded to a street in
16 Secaucus to look for a car, specific car.
17 Q And was it your understanding
18 that -- what was your understanding -- well,
19 before I get into that, as you're sitting here
20 today what was -- what was the reason you were
21 looking for that car?
22 A Detective Captain Buckley had contacted
23 us. He detailed us up there. Apparently, one
24 of the victims had reported another incident
25 where someone might have yelled something at
195
1 them. So he had -- while Detective Captain
2 Buckley was driving home that day, he had seen a
3 car fitting that description of the victims. So
4 he said, you know, it was at this particular
5 location, you know, go check it out to see if
6 there is any connection.
7 Q And did you go up there to find
8 the vehicle?
9 A We did.
10 Q What was your -- what was the
11 result?
12 A We couldn't find it.
13 Q Now, going on, talks about
14 something that happened at about -- would that
15 be 9:30, 2130?
16 A 9:30, yes, 2130.
17 Q What happened at that point?
18 A I received a call from Kelly Snyder and
19 asking her to come in. She said --
20 Q What is your understanding as to
21 who Kelly Snyder was?
22 A She was a wife of one of the Snyders, I
23 believe. And she advised that she is not going
24 to come in as per her attorney. Then I asked
25 her for her attorney's name and number, and she
196
1 didn't have it with her at that time she told
2 me.
3 Q And then did you make any other
4 phone calls?
5 A I attempted to contact Janine Mutschler
6 and, again, was only able to leave a message for
7 her.
8 Q And then who did you call?
9 A Then I called the Kloepping residence and
10 was advised by, I believe, his wife that Kevin
11 Kloepping, the fireman, was asleep and that he
12 had just had heart surgery and to call back
13 tomorrow.
14 Q Is it your understanding
15 Mr. Kloepping was a fireman?
16 A Yes.
17 Q And then, going on, next call?
18 A Then I called the Schoendorf residence.
19 Q Then -- I didn't give you the
20 second page?
21 A No, you didn't.
22 Q Okay. And what was your
23 understanding as to who Mr. Schoendorf was?
24 A He is another fireman.
25 Q And do you have an independent
197
1 recollection of the conversation, or do you need
2 your report?
3 A I need the report.
4 Q Why don't you tell us about your
5 conversation?
6 A Basically, Mrs. Schoendorf says that her
7 husband wasn't home. I asked if she would have
8 him call me regarding the incident, and she
9 advised she didn't want her husband to speak to
10 me. I again asked to have her husband call me,
11 and she advised that she will have him call me.
12 And then at 2225 hours I got a call
13 from Mr. Schoendorf. He said that he was out
14 that evening and that when they returned, he
15 entered his car and left. He said that no
16 incident happened while he was there, nor does
17 he know what happened.
18 I asked him if he could still come in;
19 but he advised that since he wasn't there and he
20 has no idea what happened, that it was
21 voluntary, he'd rather not come in.
22 Q Then the last thing at, I believe,
23 11:20?
24 A Yes, at 11:20 I spoke to Police Officer
25 Smith, police officer, regarding the incident.
198
1 He advised that he wasn't present at the time of
2 the initial incident and that he has no other
3 information to report besides what he previously
4 had reported.
5 Q Okay. Now, at some point do you
6 recall receiving -- I will take that report
7 back, please. I'm going to show you what I had
8 marked as D-123 for Identification. Before I
9 ask you about that, as you're sitting here today
10 do you have a recollection of whether or not you
11 worked on any other investigations between
12 April 27th, 2004 and May 4th?
13 A No, this was my sole investigation I was
14 assigned to.
15 Q Now, you told us earlier about a
16 conversation that you had had or a meeting that
17 was attended by you and the Attorney General's
18 Office was involved?
19 A Correct.
20 Q And at some point thereafter what,
21 if any, understanding or what, if any,
22 understanding do you have as to what happened in
23 regards to the Attorney General's Office after
24 that meeting?
25 A Two days after that meeting, on May 6th,
199
1 2000 -- 2004 Captain Buckley contacted us when
2 we arrived at headquarters to work on our shift.
3 He told us that we are going to cease all our
4 investigations at that point, that the Attorney
5 General's Office had ordered us to stop the case
6 on our end and that they're taking this whole
7 case over and that they are the lead
8 investigative agency on that matter.
9 Q And at that point what was your
10 understanding of what, if any, role the Town of
11 Secaucus was supposed -- Secaucus Police
12 Department was supposed to have in regard to the
13 investigation?
14 A Basically nothing, that they were taking
15 the whole case over.
16 Q All right. Now, at some point --
17 and I'm going to show you what I have marked as
18 D-123 for Identification. And I believe this is
19 already in Evidence, D-123.
20 MR. BEVERE: If you would, please.
21 MR. PARIS: Yes.
22 BY MR. BEVERE:
23 Q Are you familiar with the incident
24 contained in D-123?
25 A I am.
200
1 Q Were you involved in any part of
2 the follow-up investigation to that incident?
3 A I believe I was.
4 Q Okay. Why don't you tell us --
5 why don't you read for us D-123, so that the
6 jury can get an idea of what that incident was?
7 MR. MULLIN: Objection, Your
8 Honor. It's not this officer's police report.
9 JUDGE CURRAN: I'm sorry, I didn't
10 hear you.
11 MR. MULLIN: Objection, Your
12 Honor. This report is not this officer's police
13 report, so I object.
14 JUDGE CURRAN: It is not.
15 MR. BEVERE: Judge, from my
16 understanding, this was a document that was
17 moved into Evidence this morning. If I'm wrong,
18 I will stand corrected.
19 JUDGE CURRAN: No, 123 is on the
20 list.
21 MR. MULLIN: But I still have my
22 objection as to reading it.
23 JUDGE CURRAN: I understand that.
24 I just want to make sure that we're accurate.
25 123 is in Evidence here. We have got the same
201
1 objection as to his reading it. We don't need
2 to go through --
3 MR. BEVERE: Not a problem.
4 BY MR. BEVERE:
5 Q What is your understanding of the
6 incident that is involved -- that is recorded by
7 D-123?
8 A Basically, one of the victims had
9 contacted our agency and reported that, I
10 believe, somebody had drove by their residence
11 and shouted something out their car.
12 Q And I am going to show you -- I'm
13 sorry, I'm going to go back to D-123 briefly.
14 Did the police officer who took the initial
15 report give a description of the vehicle?
16 A Yes, he did.
17 Q And what was the description of
18 the vehicle as reported by the officer?
19 A A dull gray, older model, two-door sports
20 car.
21 Q And I'm going to show you what has
22 been marked as D-132 for Identification and ask
23 you if you can recognize that document?
24 A Yes, I do.
25 Q And what is that document?
202
1 A That's a supplemental investigation
2 report that I completed on 5/28 of 2004.
3 Q And does that document report your
4 involvement in regard to this investigation?
5 A It did.
6 Q Okay. And as you're sitting here
7 today do you have an independent recollection --
8 independent recollection of what you did?
9 A No, I don't.
10 Q Would you need to look at your
11 report to refresh your recollection?
12 A I would.
13 Q The information contained in that
14 report, would that have been stuff that would
15 have been done by you or reported by you in
16 regard to the investigation?
17 A Yes, it would.
18 Q It would have been accurate when
19 it was made?
20 A Yes.
21 Q Okay. Why don't you start from
22 the top of the report and tell us what it was
23 that you did?
24 A "On 5/28 at 1420 hours Detective Captain
25 Buckley observed the vehicle matching the
203
1 description of the vehicle that was involved in
2 this incident" -- "incident in the area of Huber
3 Street and Paterson Plank Road. This vehicle, a
4 2003 Nissan, model 350, color silver, New Jersey
5 registration ZYAA, two-door, is registered to a
6 Yasemin Guneren. LKA" -- is last known
7 address -- of 3 Oak Lane, Secaucus.
8 Q And then at 5:00 what did you do?
9 A "At 5:00 that day I dispatched P.O.
10 Cucciniello to 3 Oak Lane to notify owner Onur
11 I. Guneren." That's, "NG found" -- "We checked
12 New Jersey Division of Motor Vehicle records and
13 found that the person named Onur Guneren is
14 residing at that location and that the person is
15 in his early 20s. Cucciniello then contacted
16 that person's mother and asked that mother to
17 have the 20-year-old call us."
18 Q And then did you receive a call
19 from Onur?
20 A Yes.
21 Q Okay. And did you ask him to come
22 down?
23 A I did.
24 Q And when did -- when, if at all,
25 did he come down?
204
1 A On 5/28 at 8:31 p.m.
2 Q And what did you do when Onur came
3 down?
4 A Right offer the bat we told him he is not
5 under arrest and free to leave at any time. I
6 provided him with a Constitutional Rights
7 Advisement and Waiver Form, which he read,
8 understood and then signed, indicating that he
9 waived his rights.
10 I then asked him if he had any
11 knowledge, involvement in this incident. And he
12 advised no, that he had no idea what I was
13 talking about.
14 I then asked Onur if he would allow me
15 to photograph him, and he advised he would. And
16 several Polaroids and 35 millimeter photographs
17 were then taken.
18 I then asked if he would permit me to
19 photograph his vehicle; and he said yes, but
20 that it was parked at his work, located at the
21 AMEX Limo Company at 267 Bayridge Ave.,
22 Brooklyn. I wrote, "New Jersey"; it is a typo.
23 That's New York. And he provided a phone
24 number. Onur then advised he would escort us to
25 that location to obtain the photos of his car.
205
1 Q Then did you and Detective
2 DeGennaro then go to AMEX Limo and photograph
3 the vehicle?
4 A We did.
5 Q When you went to AMEX Limo to
6 photograph the vehicle, what then did Onur
7 advise you?
8 A He told us several weeks ago his car had
9 been in an accident at the Gothals Bridge Toll
10 Plaza and took ten days for the car to be fixed
11 at Boulevard Automotive, located on Kennedy
12 Boulevard in Bayonne. Then he also gave us his
13 Social Security number and phone number.
14 Q I'm going to show you what's been
15 marked as D-141 for Identification and ask you
16 if you recognize that document?
17 A That's a supplemental investigation
18 report completed on June 3rd, 2004 by Detective
19 Thomas O'Keeffe.
20 Q Did I show you the wrong one? I
21 may have.
22 MR. MULLIN: Which number?
23 Q I apologize, I meant to show you
24 D-140. I apologize. D-140. Could you identify
25 D-140?
206
1 A I recognize that report.
2 Q All right. And what is that?
3 A That's a supplemental investigation
4 report I completed on 5/29 advising that I
5 obtained the phone number for Boulevard
6 Automotive and made numerous attempts for them
7 to contact me -- I'm sorry, made numerous
8 attempts to contact anyone there, but we
9 couldn't get anybody at all.
10 Q The photographs of Mr. Guneren and
11 the photographs of the vehicle, did you log
12 those into evidence?
13 A I did -- or it wasn't -- someone put it
14 in.
15 Q I'm sorry?
16 A Myself or Sergeant DeGennaro would have.
17 Q I'll show you what's been marked
18 as D-139 for Identification.
19 A Okay. That's my property and evidence
20 report on those photographs for that vehicle.
21 Q Thank you. Detective, when you or
22 anyone else in the Police Department or
23 Detective Bureau prepares a report, what happens
24 to that report?
25 A Once we completed that report, we
207
1 submitted that to Captain Buckley; and he
2 reviews them.
3 Q Was that true of all reports?
4 A Yes.
5 Q And then did Detective -- is
6 Detective Buckley involved in any follow-up that
7 is done?
8 A He instructs us where to go next.
9 Q So you take your instruction from
10 Captain Buckley as to what -- what, if any,
11 follow-up you do?
12 A Correct.
13 Q Now, Detective, just very briefly,
14 and I think I may be done, did you do anything
15 in regard to this investigation or fail to do
16 anything in regard to this investigation that
17 you otherwise would have done because the people
18 involved were firemen?
19 A No, sir.
20 Q Did anyone from the Town or the
21 Police Department instruct you to do something
22 or not do something because firemen were
23 involved?
24 A No, sir.
25 Q I have no further questions at
208
1 this time.
2 JUDGE CURRAN: Mr. Mullin.
3 CROSS EXAMINATION BY MR. MULLIN:
4 Q Okay. Good afternoon, Officer.
5 A Good afternoon, sir.
6 Q So the incident happened about 1
7 a.m., in the early morning hours of April 25th,
8 2004, right?
9 A Correct, sir.
10 Q And then you testified that then
11 Sergeant Amodeo was at the scene, called you at
12 about 3 a.m.; was that your testimony, sir?
13 A About 3:15, yes.
14 Q About 3:15 in the morning, right?
15 A Yes.
16 Q You testified you were at home
17 asleep but you were on-call?
18 A Correct.
19 Q And then I -- if I understood your
20 testimony correctly, you called Captain Buckley
21 basically, head of the Detective Bureau, right?
22 A Yes, I did.
23 Q He indicated you didn't have to go
24 out to the scene, right?
25 A Correct.
209
1 Q And your schedule was such that
2 you didn't go out to the scene that day, Sunday,
3 right?
4 A Correct.
5 Q And you didn't go out to the scene
6 the next day, Monday, because you were off,
7 right?
8 A Correct.
9 Q And you didn't do anything on this
10 case until you were told to, starting, I think,
11 4 p.m. on Tuesday April 27th, right?
12 A Yes, that's when I came back to work.
13 Q And you didn't even go out to the
14 scene -- and I'm not saying it's your fault.
15 You didn't go out to the scene of this crime
16 until April 30th to take some photographs; is
17 that correct?
18 A It was around that time, yes.
19 Q You just testified to that?
20 A Right.
21 Q So just do a little math, sir,
22 because of your captain's orders, you didn't get
23 out -- you didn't start working on this case for
24 about 63 hours after 1 a.m. on April 20 -- the
25 early morning hours of April 25th, right?
210
1 A It would be Tuesday at 4 p.m., whatever
2 that comes out to.
3 Q Let's see, we got 3 p.m. -- well,
4 1 p.m. on -- 1 a.m., excuse me, on April 25th,
5 right? So we got 23 hours on that day, right?
6 You didn't work on those?
7 A Correct.
8 Q Those 23 hours is Sunday?
9 A Correct.
10 Q We have 24 hours of Monday you
11 didn't work on the case, correct?
12 A Right.
13 Q So 23 and 24 is 47. Then we got
14 16 hours to get you up to 4 p.m. Tuesday, when
15 you were assigned to the case, right?
16 A Correct.
17 Q If you add them up, that gets to
18 63 hours; can we agree on that?
19 A Somewhere around there.
20 Q You will go --
21 A I didn't do the math.
22 Q We don't have a calculator?
23 A At 4 p.m. on Tuesday is when I --
24 Q Now, when Sergeant Amodeo called
25 you that early morning, you testified about what
211
1 he said; you testified to this jury, right?
2 A Absolutely.
3 Q He didn't tell you, did he, that
4 the Mayor of Secaucus was out there at the scene
5 or had been out there at the scene having been
6 requested to come out to the scene of this crime
7 or this incident on -- by Chuck Snyder, Sr.? He
8 didn't tell you that, right?
9 A No, sir.
10 Q And he didn't tell you that it was
11 the Mayor of the Town of Secaucus who gave the
12 order to clear the firehouse? He didn't tell
13 you that, did he?
14 A No, sir.
15 Q Are you learning this for the
16 first time now?
17 A First time I'm hearing this, sir.
18 Q We have read some testimony of the
19 Mayor under oath to this jury. He didn't tell
20 you that the Mayor said, "What I did was I --"
21 JUDGE CURRAN: Can I see
22 counsel --
23 Q -- "close the firehouse and go
24 home"? Amodeo didn't tell you that?
25 JUDGE CURRAN: Excuse me. Mr.
212
1 Bevere.
2 MR. BEVERE: Judge, I believe that
3 the testimony of Lieutenant Amodeo is being
4 misconstrued. We can come to sidebar. I do not
5 believe that's what Sergeant Amodeo --
6 MR. MULLIN: I am reading the
7 Mayor's testimony that I read to the jury.
8 MR. BEVERE: Oh, I'm sorry -- the
9 implication with the question was that
10 Lieutenant Amodeo knew that, and that wasn't
11 Lieutenant Amodeo's testimony.
12 JUDGE CURRAN: Mr. Bevere was
13 faster than I, Mr. Mullin. I was trying to
14 interrupt you to say please indicate -- you said
15 it was the Mayor's deposition, but if you would
16 indicate that. Clearly indicate the date again,
17 and please give the line and page.
18 MR. MULLIN: Sure. I am reading
19 from the trial -- this trial's --
20 JUDGE CURRAN: Yes.
21 MR. MULLIN: -- transcript, trial
22 day nine, page 29, Mayor Elwell testifying. And
23 we read that to the jury.
24 BY MR. MULLIN:
25 Q And what he is describing is,
213
1 "What I did was" -- he is describing showing up
2 at the firehouse that night. Page 26, 27, 28,
3 29. And he says, "What I did was I told the
4 firefighters to close the firehouse and go
5 home." And what you're saying is no one told
6 you -- Amodeo didn't tell you that, right?
7 A This is the first time I'm hearing it,
8 sir.
9 Q First time?
10 A Yes, sir.
11 Q Now, the scene of a bias crime,
12 it's really important to take the evidence while
13 the scene is hot, right, right away? Any scene?
14 Any crime scene, right?
15 A Yes, sir.
16 Q Okay. What you had was a whole
17 bunch of firefighters and their wives and
18 girlfriends at the scene, right?
19 A Yes, sir.
20 Q And what the Mayor did was he
21 disbursed them? He told them to go home?
22 A I don't know what the Mayor did, sir.
23 Q What you heard was Amodeo told --
24 Amodeo related to you that he told them to go
25 home, right?
214
1 A I can only go by what Amodeo had told me.
2 Q What you do know -- and just
3 working with what you recall, you do know that
4 no statements whatsoever were taken of those --
5 by police officers or detectives at the time of
6 the incident in those early morning hours when
7 they were all there, right? You know that?
8 A No formal statements.
9 Q No -- no formal statements?
10 A Correct, correct.
11 Q And no formal statements were
12 taken the next day, on Monday, right?
13 A I don't know. I didn't take any.
14 Q Not that you're aware of, right?
15 A Not that I'm aware of, but I didn't take
16 any.
17 Q Now, you told this jury that you
18 learned of a meeting that took place Sunday
19 morning among some high-level Town officials,
20 right?
21 A Yes, sir.
22 Q This was in a meeting at the Town
23 Hall caucus room that took place Sunday morning,
24 the day of the incident, right?
25 A That's what I was told, yes.
215
1 Q And you have written in a report
2 that present at that meeting was the Mayor,
3 himself, right?
4 A Yes.
5 Q The Deputy Mayor Reilly, right?
6 A Yes, sir.
7 Q Your Chief, the Deputy Chief
8 Corcoran, right?
9 A Yes, sir.
10 Q Fire Chief Walters, right? Is
11 that correct?
12 A Correct.
13 Q Deputy Chief Cieciuch, right?
14 A Correct.
15 Q Battalion Chief Parisi?
16 A Yes, sir.
17 Q And Chucky Snyder, Sr., right?
18 A Yes.
19 Q At least those people were there.
20 And what you learned at some point was that
21 Chucky Snyder, Sr. made some sort of statement
22 that reflected his bias towards my clients
23 being -- as a result of their being gay, right?
24 You heard that, right?
25 MR. BEVERE: Objection as to what
216
1 was in Chucky Snyder's mind when the statement
2 was made.
3 JUDGE CURRAN: Sustained.
4 Rephrase.
5 BY MR. MULLIN:
6 Q Forget what was in Chucky Snyder's
7 mind. I am just asking about what you heard
8 Chucky Snyder said.
9 JUDGE CURRAN: But prejudice --
10 the characterization, I believe, is the
11 objection. If you will just rephrase.
12 Q Okay. So at some point you -- you
13 heard through, I think you said it was Captain
14 Buckley that some statement was made by Chucky
15 Snyder, Sr. using a derogatory term towards gay
16 people, right?
17 A I heard from Captain Buckley that a
18 derogatory comment was made at that meeting.
19 Q You heard that from Buckley. Now,
20 Buckley -- I just read the list -- was not at
21 that meeting, correct?
22 A Correct.
23 Q Did Buckley tell you he had heard
24 it from Chief Corcoran?
25 A He never disclosed where he got the
217
1 information from.
2 Q Chief Corcoran was at that
3 meeting, right?
4 A Yes, that's what I understood.
5 Q You never took a statement from
6 your Chief, right, about whether or not he heard
7 that statement?
8 A I did not, no.
9 Q You don't know of any such
10 statement, right?
11 A I was not assigned to take a statement
12 from him.
13 MR. MULLIN: Now, here, Your
14 Honor, I'm referring to this trial, this trial
15 transcript, day eight, page 283 to 284.
16 MR. PARIS: Can I have a second,
17 please, Your Honor?
18 I'm sorry, can we have the page,
19 please?
20 MR. MULLIN: Page 283 to 284 and
21 specific focus on 284, the answer, lines 1 to 5.
22 MR. PARIS: Thank you.
23 MR. MULLIN: You're welcome.
24 BY MR. MULLIN:
25 Q Are you aware that, you know,
218
1 before we came to this trial we took some
2 depositions, sworn statements of various
3 witnesses in this case? Are you generally aware
4 of that?
5 A Yes, sir.
6 Q Your deposition was taken, right?
7 A Absolutely.
8 Q Are you aware that we took -- we
9 took the Chief Frank Walters' deposition before
10 we came into this trial and we read it to the --
11 portions of it to the jury?
12 JUDGE CURRAN: I apologize,
13 Mr. Mullin, if you would not ask him a compound
14 question.
15 MR. MULLIN: Okay, sorry.
16 BY MR. MULLIN:
17 Q Are you aware that -- that Frank
18 Walters, Chief Frank Walters admitted that the
19 comment he actually heard at that big meeting
20 was made by Chuck, Sr. and it was, "You're going
21 to believe those fucking faggots over me?" Did
22 you ever hear anyone tell you that was really
23 the statement, "You're going to believe those
24 fucking faggots over me?" Is that the first
25 time you're hearing that?
219
1 A First time I'm hearing that, sir, yes.
2 Q Because when you interviewed the
3 Mayor, he didn't tell you that, right? He
4 didn't tell you that was the statement, right?
5 A I'd have to read the report I referenced;
6 but I don't think he used those words, no.
7 Q Let me see if we can put our hands
8 on that statement. Here we go. D-54. Pardon
9 me standing over here, sir. You can ignore my
10 markups. I will show you what's been marked as
11 D-54 and D-55. And just so the record is clear,
12 tell the jury what that is.
13 A That is a supplemental investigation
14 report I left on 4/29 of 2004.
15 Q And you prepared this, right?
16 A I did, yes.
17 Q What is the date on that, sir?
18 A 4/29/2004.
19 Q Okay. Well, one thing we can
20 agree is when you interviewed the Mayor about
21 what was said at this meeting, he didn't say,
22 "Chucky Snyder, Sr. said, 'You're going to
23 believe those fucking faggots,'" right? The
24 Mayor didn't say that, right?
25 A No, he did not.
220
1 Q You have your report in front of
2 you. The Mayor said he may have heard the word
3 "cock-sucker" used, right?
4 A He said to me, "You're going to believe
5 those cock-suckers over me?" That's what he
6 told me.
7 Q He didn't say, "fucking faggots,"
8 right?
9 A That is the exact words he said to me.
10 Q And the Mayor says in that passage
11 that he thinks it was just the word
12 "cock-sucker" was just being used as kind of an
13 expletive, right?
14 A That's his words yes, sir.
15 Q In other words, just like an
16 expression, right? You put quotes around the
17 word "expletive"?
18 A I quoted. That is the word the Mayor had
19 used to me.
20 Q Okay. And then you interviewed
21 Mayor -- Deputy Mayor Reilly, right?
22 A Yes, sir.
23 Q You asked him if anyone used the
24 words, "You're going to believe those
25 cock-suckers over me," right?
221
1 A Yes, sir.
2 Q And Reilly said he heard the word
3 "cock-suckers" but not the comment that was
4 said, right?
5 A That's what he told me, yes.
6 Q Okay. Then I think you
7 interviewed Parisi that same day, right?
8 A Yes, I believe so.
9 Q And he said he doesn't remember
10 anyone saying those words? This is Chief
11 Parisi, right, battalion chief?
12 A Yes, sir.
13 Q And that everyone was talking at
14 the same time, right?
15 A That's what he told me.
16 Q And then you've described -- you
17 tried hard, sir; you tried hard to get the truth
18 about this matter out of -- out of Fire Chief
19 Frank Walters, didn't you? You made an effort?
20 A We tried to get the truth out of
21 everybody.
22 Q You did. But you brought Walters
23 back three times, didn't you, sir?
24 A I brought him back three times; and I had
25 brought other people back, I think the other
222
1 chiefs, two times at that point.
2 Q And it was only on the third time,
3 the third time, right, in the third statement on
4 April 29th that you took of Walters, only on the
5 third time that Walters finally admitted that he
6 heard the word "cock-sucker," right?
7 MR. BEVERE: Objection as to the
8 characterization, "admitted." Walters'
9 statement said was that he recalled it.
10 JUDGE CURRAN: Sustained. Change
11 the verb, Mr. Mullin.
12 MR. MULLIN: All right. I'll try
13 to restructure my question.
14 BY MR. MULLIN:
15 Q Let me show you what's been marked
16 as D-57 and D-58. And this is the third
17 statement that you took of -- of Frank Walters,
18 then the Fire Chief, right?
19 A Yes, sir.
20 Q And this statement has your
21 signature on it, right?
22 A It does.
23 Q And then you asked the question,
24 "So someone in that meeting did say those
25 words?" Well, let's back it up. You say,
223
1 "Frank, do you recall me yesterday asking you if
2 anyone at the meeting said the words, 'You're
3 going to believe those cock-suckers over me,'"
4 right?
5 A Yes.
6 Q And that was your question, right?
7 A Yes, it was.
8 Q You hadn't heard until this moment
9 that the Chief had said in a deposition that the
10 word was actually "fucking faggots," right? You
11 never heard that before, right?
12 A First time I'm hearing it.
13 Q Captain Buckley never told you
14 those were the words that were used, right?
15 A The words that were told to me were used
16 is, "You're going to believe those cock-suckers
17 over me?"
18 Q And Captain Buckley, he reported
19 right to Police Chief Corcoran, right? And that
20 was the question you were asking, right?
21 A That was the question I was asking.
22 Q And he said dis -- so you say,
23 "Frank, you recall asking about that phrase?"
24 And he says, "Yes," right?
25 A Uh-huh.
224
1 Q And then you say, "At that time
2 did you advise me you did not hear that?"
3 And he said, Answer, "I believe so,"
4 right?
5 A Yes, sir.
6 Q And when he said in the other two
7 statements that he didn't hear that, he was
8 saying that under oath, right? These were sworn
9 statements you were taking from Frank Walters,
10 the Fire Chief, right?
11 A We don't swear them in, but they sign off
12 that they're true and accurate.
13 Q They say that, "Knowing that any
14 false statements made herein are punishable by
15 law" --
16 A Yeah.
17 Q -- "I certify that the facts
18 contained herein are true and correct"?
19 A Yes.
20 Q They're certifying to the truth
21 of --
22 A We don't --
23 Q -- the facts contained herein,
24 knowing any false statements are punishable by
25 law?
225
1 A We don't swear them in.
2 Q I understand you don't actually go
3 through that formality.
4 A Correct, correct.
5 Q Then you say, "Is there anyone you
6 want to tell me about someone saying the words,
7 'You want to believe those cock-suckers over
8 me?'"
9 And he says, "It may have been said,
10 but I cannot attribute it to any one person due
11 to the fact that numerous conversations going on
12 in the room"; is that right?
13 A Yes, that's what he said.
14 Q Then you ask the question -- I
15 think there is a question. There is no "Q" next
16 to it; but, "Did someone at the meeting say,
17 'Are you going to believe those cock-suckers
18 over me?'" Can we agree that is one of your
19 questions?
20 A Yes, it was.
21 Q And the answer was, "I heard
22 something to that effect, but the exact quote I
23 cannot say. There were numerous conversations
24 going on in the room at that time."
25 Then you say, "When you heard those
226
1 words being mentioned, what were you doing?"
2 And he describes what he was doing, he
3 was at the far end of the table, et cetera,
4 right?
5 A Yes, he did.
6 Q And then you ask him at some
7 point, "Who else was in the room when this
8 statement was made?"
9 And he says, "Battalion Chief Parisi,
10 Deputy Chief Cieciuch, Richie Johnson; and I
11 can't be sure if the Mayor was in or out at this
12 time," right?
13 A Yes.
14 Q Then the question, "So someone in
15 that meeting did say those words?"
16 And now he answers, "Something to that
17 effect, definitely, 'You're going to believe
18 those cock-suckers,'" right?
19 A That's what he told me.
20 Q Then the question is, "Can you
21 tell me why you answered yesterday that no one
22 had said those words and today you advised
23 this?"
24 And he says, "Because at the time it
25 honestly didn't click. But thinking about it,
227
1 it came back into my mind," right?
2 A Yes, sir.
3 Q And that's what he said. So you
4 kept that officer, right, and you took three
5 different statements from him, right?
6 A Yes, sir.
7 Q And finally, while you didn't get
8 him to admit he used the phrase "fucking
9 faggots"; but you did get him to admit he used
10 the phrase involving the word "cock-suckers,"
11 right?
12 A Yes, it recalled his memory, yes, that's
13 what he told me.
14 Q Excuse me one sec. Sir, are you
15 aware that Peter deVries, one of the two
16 plaintiffs here, called 911 while this incident
17 was happening and said, "We have three firemen
18 standing outside our house yelling abuse?" Are
19 you aware of that? Three firemen, three.
20 A I don't remember that, no, sir.
21 Q Are you aware that then Officer
22 Ulrich immediately thereafter arrived at the
23 scene and found three firemen, three, standing
24 right there in the parking lot and one of them
25 was yelling at Tim Carter? Are you aware of
228
1 that, sir?
2 A I know there was firemen in there. I
3 don't know if there was just three or more, but
4 there were three there.
5 Q Well, have you seen Ulrich's
6 report? I think you said you had?
7 A I had, but I would have to read them now.
8 Q Are you aware that Ulrich saw
9 three firemen there and when he arrived in the
10 scene, right in the parking lot and that he
11 named them, he named the three firemen?
12 A I remember there were three firemen names
13 in his report, yes.
14 Q Are you aware that my client,
15 Peter deVries, told the police immediately upon
16 being interviewed that these men had been
17 yelling death threats, threatening to kill him
18 and his partner? Are you aware of that?
19 A I don't know which men you're talking
20 about, sir.
21 Q The three people that my -- that
22 Peter deVries called in about on 911.
23 A Those --
24 Q Are you aware that -- that
25 Mr. deVries said, when he was interviewed by the
229
1 police, when he gave a statement, that these
2 were death threats that were --
3 MR. BEVERE: Note my objection to
4 the mischaracterization of Mr. deVries'
5 testimony.
6 JUDGE CURRAN: Sustained.
7 BY MR. MULLIN:
8 Q Are you aware that Mr. deVries
9 told the police that the voices he heard yelling
10 were yelling, among other things, "We will kill
11 you"? Are you aware of that?
12 A Yes, sir.
13 MR. BEVERE: Once again I am going
14 to object to the characterization of
15 Mr. deVries. We are talking about 911 tape.
16 MR. MULLIN: No, I wasn't. I
17 wasn't, actually. That wasn't my question.
18 JUDGE CURRAN: I didn't think it
19 was but --
20 MR. MULLIN: Said he told the
21 police.
22 JUDGE CURRAN: The police.
23 MR. BEVERE: I thought he was
24 talking about the 911. I will stand corrected.
25 JUDGE CURRAN: Thank you.
230
1 BY MR. MULLIN:
2 Q Are you aware that a neighbor
3 named Dee Bardini called in on 911 and said she
4 heard something that sounded like gunshots while
5 this incident was taking place?
6 A Yes, I am.
7 Q Are you aware that Officer Malanka
8 called on the telephone a couple days after the
9 incident and she told Malanka and Malanka wrote
10 in the report that she heard three shots fired
11 during the incident?
12 A That's --
13 Q Are you aware of that?
14 A I'm not aware of that report being filed,
15 no, sir.
16 Q And there is no report by you or
17 any -- or anyone else that you know of
18 investigate -- reporting investigation of
19 whether or not bullet shells, casings were found
20 anywhere near this scene of this incident?
21 You're not aware of any report?
22 A There was nothing there, sir, no.
23 Q And you didn't write any such
24 report, right?
25 A No, sir.
231
1 Q And you didn't write any report --
2 you're not aware of any report of any police
3 officers on the night of the incident frisking
4 these firemen at the scene for guns, right?
5 A I wasn't there, so, no.
6 Q You are not aware of any report to
7 that effect, right, as you sit here today --
8 A No, sir.
9 Q -- using your mind, your
10 recollection?
11 A No, sir.
12 Q And you're not aware of any report
13 by the Secaucus Police Department involving a
14 search of the officers' cars and trucks for guns
15 on the night of the incident or any other time?
16 You're not aware of that?
17 MR. BEVERE: I'm going to object.
18 Can we come to sidebar?
19 JUDGE CURRAN: Sure.
20 (Whereupon, the following sidebar
21 discussion is held.)
22 MR. BEVERE: My objection --
23 sorry. My objection, once again, is as to one
24 of police practices.
25 JUDGE CURRAN: I'm sorry?
232
1 MR. BEVERE: This is -- my
2 objection is as to police practices. That's my
3 objection. To ask this witness the
4 circumstances under which would there have been
5 probable cause to search the vehicles, whose
6 vehicles, do you need a warrant, not need a
7 warrant, this is getting beyond. To suggest to
8 this jury that the officers had probable cause
9 to search someone's vehicle for a gun --
10 MR. MULLIN: This is -- Mr. Bevere
11 has elicited detailed testimony about the
12 practices of this detective, when he put
13 evidence in the evidence room, whether he took
14 photographs of the vehicle or not, just an
15 incredible detail, I mean, almost, I would say,
16 boring detail. He has put in the practices of
17 this detective from top to bottom. And all I'm
18 doing is normal cross-examination testing
19 whether, you know, these practices were designed
20 to uncover the truth and also testing his -- his
21 knowledge of this investigation.
22 JUDGE CURRAN: Maybe you can get
23 where you want to go in a different way,
24 Mr. Mullin. But what you just used as your own
25 examples were internal practices. What Mr.
233
1 Bevere is objecting to is practices that deal
2 with the public, like searching someone's car,
3 for which you need probable cause. That's
4 different than what the practice -- I don't need
5 to tell you; I know you know that's
6 significantly different than the practices that
7 are put into effect internally as far as
8 evidence and the identification and the bagging
9 and signing and that kind of thing.
10 MR. MULLIN: I understand that
11 point. I think my question was, if I remember
12 correctly, whether he is aware of any report
13 concerning the searches of these cars. And he
14 said -- he said no. I wasn't asking him about
15 practices and procedures in connection with
16 searches. I'm not even going to go there, if
17 that was the worry of the Court. I'm not going
18 into how you get a warrant and how you conduct a
19 search. I simply asked if he was aware of any
20 reports. He testified about the reports of
21 others, not just his own reports. I think it's
22 fair game to ask what reports you're aware of,
23 not aware of, what exists, what doesn't exist.
24 He opened the door on the topic.
25 JUDGE CURRAN: He opened the
234
1 door --
2 MR. MULLIN: I am not going into
3 search warrants.
4 JUDGE CURRAN: -- but you can't
5 get into Evidence -- or get into the testimony
6 did you -- I know you're not planning to do this
7 but, you know, "Did you take DNA samples" or
8 whatever.
9 MR. MULLIN: No.
10 JUDGE CURRAN: But I think at
11 least the last question goes too close to those
12 kinds of questions. You can certainly ask him
13 what reports he did or saw or -- what he did,
14 certainly, is on the record -- what he saw in
15 general. But to go through a list of did you
16 see report that says this, did you see a report
17 that says that gives the jury the impression
18 that that should have been done. Maybe yes;
19 maybe no. I don't know what you want to ask;
20 but certainly, you know, there --
21 MR. MULLIN: I'm just trying to
22 understand the common knowledge realm. If guns
23 go off, you check to see if there are guns. And
24 if you are saying that I have gone close to the
25 line with --
235
1 JUDGE CURRAN: I think --
2 MR. MULLIN: -- searches, I
3 understand your ruling; and I'm not going
4 further than that.
5 JUDGE CURRAN: That's my concern
6 in regard to the searches. Mr. Bevere.
7 MR. BEVERE: And I think that
8 there should be an instruction to the jury.
9 MR. PARIS: Should be stricken.
10 The searches of the individuals, searches of
11 cars, these questions were all asked.
12 JUDGE CURRAN: You didn't object.
13 MR. PARIS: It implies -- it
14 implies that it was required to be done and they
15 didn't do it. That's the only reason for him to
16 have asked these questions. The implication to
17 the jury is that it should have been done but it
18 wasn't. And that's why those things need to be
19 stricken and the jury has to be instructed to
20 disregard those questions.
21 MR. MULLIN: Well, that's --
22 JUDGE CURRAN: Mr. Mullin.
23 MR. MULLIN: That's wrong because,
24 look, they have gone through the Miranda rights.
25 They had this detective testify about Miranda
236
1 procedures. To suggest that -- I asked the
2 question whether he is aware of any report
3 involving the searches of these vehicles.
4 That's what I asked; completely proper question.
5 I didn't ask him about what he has to do in
6 order to get a search warrant. I didn't go into
7 search warrants. Sure, they -- I mean, to just
8 get to the bottom of this, of course they had to
9 have gotten search warrants, should have had --
10 MR. BEVERE: Says who?
11 MR. MULLIN: They are not
12 searching cars. They could have frisked. Of
13 course we know that they don't need a search
14 warrant to frisk. They could have searched the
15 publicly-owned building. Of course they could
16 have done that. They could have searched any
17 publicly-owned vehicles out there. I don't know
18 whether there were or not.
19 But in any event, I'm not going
20 there. You know, they do this sweeping police
21 practices testimony with this officer; and now
22 they want to limit my cross-examination on the
23 issue of police practices. I don't think it's
24 fair to limit me. However, I say that I'm
25 finished with this topic and move on to the next
237
1 topic.
2 JUDGE CURRAN: Mr. Bevere.
3 MR. BEVERE: Judge, my police
4 officers are being accused of purposefully
5 tanking a criminal investigation, purposely.
6 And this detective's testimony was to testify
7 what he did. It was in the record that people
8 were Mirandized before they gave statements.
9 This is why we did it. This is why we do it.
10 This is why we take statements. This is when we
11 can't take statements, when people say, "No, we
12 can't talk to you." He has to be able to
13 explain why. That's part of what was done in
14 this case.
15 It is completely different to
16 suggest to this jury that search warrants should
17 have been issued for people's vehicle and under
18 what circumstances it would have been proper to
19 conduct searches of people in that firehouse,
20 firehouse parking lot, in the whatever without a
21 police practices expert to come in here, say the
22 standard of care that night required them to do
23 this.
24 MR. MULLIN: This is not a police
25 negligence case and I don't need a police
238
1 practices expert, although I do have the
2 standards I have set forth in the bias crime
3 general order. But as far as -- as far as when
4 the law requires search warrant to be gotten,
5 that's more the province of the judge than a
6 police expert.
7 I haven't asked the question
8 about search warrants; it's a -- it's a red
9 herring. I asked the question about whether he
10 was aware of any police reports concerning
11 searches of these vehicles. And -- and that's
12 all I've done. So if there is an objection on
13 that question, I haven't heard it. I heard kind
14 of a speech about police practices experts.
15 JUDGE CURRAN: Well --
16 MR. MULLIN: I haven't heard the
17 objection.
18 JUDGE CURRAN: In fairness, I
19 think their objection is on the record in regard
20 to the question. I am going to sustain the
21 objection. I am going to strike the last
22 question and answer. I am not going to give any
23 curative instructions because, in fairness to
24 the other side, that was the question. It
25 wasn't, "Why didn't you get a search warrant" or
239
1 something of that nature. It was carefully
2 drafted. I am going to strike the last question
3 and answer, and then we'll go from there.
4 MR. MULLIN: Thank you.
5 JUDGE CURRAN: Thank you.
6 (Whereupon, sidebar discussion is
7 concluded.)
8 JUDGE CURRAN: Sorry. We'll go
9 back on the record. I'm sorry.
10 MR. PARIS: Thank you.
11 JUDGE CURRAN: I apologize, Ladies
12 and Gentlemen. We have another matter, and I
13 was just indicating to my law clerk we will not
14 be able to handle it until we take a break here.
15 Ladies and Gentlemen, I am going
16 to strike the last question and the last answer,
17 so, of course, you cannot consider that in your
18 deliberations.
19 Want to go off the record? We
20 will go off the record.
21 MR. MULLIN: Is this a good time
22 for a break, Your Honor?
23 JUDGE CURRAN: Okay. Good time
24 for a break?
25 MR. MULLIN: This would be a good
240
1 time for me to break.
2 JUDGE CURRAN: Any objections?
3 Ladies and Gentlemen, we will
4 take a ten-minute break. Thank you.
5 (Whereupon, the jury is excused.)
6 COURT CLERK: Off the record.
7 (Whereupon, a brief recess is
8 taken.)
9 MS. HAWKS: Jurors are
10 approaching.
11 (Whereupon, the jury is brought
12 into the courtroom.)
13 JUDGE CURRAN: Thank you. The
14 officer, the witness is needed.
15 MR. BEVERE: Yes, I'm sorry.
16 JUDGE CURRAN: I'm sorry, I
17 thought he was finding his way back in. I
18 should have asked. We'll go off the record for
19 a minute.
20 (Whereupon, a discussion is held
21 off the record.)
22 JUDGE CURRAN: We will go back on
23 the record.
24 THE WITNESS: Yes, Your Honor.
25 COURT CLERK: On the record.
241
1 JUDGE CURRAN: Again I am required
2 to remind you that you are still under oath.
3 THE WITNESS: Thank you.
4 JUDGE CURRAN: Thank you, sir.
5 Mr. Mullin.
6 BY MR. MULLIN:
7 Q Officer, Mr. Bevere questioned you
8 using your reports to figure out how long
9 Mr. deVries was interviewed. Do you recall that
10 questioning?
11 A Yes, I do.
12 Q Now let me -- he didn't ask you
13 about Carter. I want to go through that with
14 Carter. And pardon my chicken scratch on the
15 top here. But this is D-64 and D-65. And this
16 is the statement of Carter; is that right?
17 A This was Carter's statement to Detective
18 Sergeant DeGennaro, yes.
19 Q Okay. And you reference in your
20 report, D-54, 55 and 56, when Carter came in,
21 right?
22 A Yes, sir.
23 Q And you say, "At 2010 hours on
24 4/29/04 Carter responded to this agency," right?
25 A Yes, I did.
242
1 Q So that's -- at 2010 would --
2 would be what time?
3 A 8:10.
4 Q 8:10, thank you. And then Carter
5 signs his statement. Well, looks like there is
6 an entry on the form in typewriting, right?
7 A Yes, sir.
8 Q 2115, hours is that 9:15?
9 A That would be 9:15, yes.
10 Q So the 9:15 that appears on the
11 statement is not, in fact, when Carter arrived
12 at the police station, right?
13 A My report reflects that he showed up at
14 2010.
15 Q Which would have been about an
16 hour earlier, right?
17 A Correct.
18 Q And then it reflects that Carter
19 signed at 10:36 -- looks like he wrote, "a.m.,"
20 doesn't it?
21 A It appears that way, sir, yeah.
22 Q But that would probably be p.m.,
23 right, 10:36 p.m.?
24 A It's not my report, so I wasn't privy to
25 that interview.
243
1 Q Okay. So we have three numbers
2 referring to time? We have your report saying
3 he arrived at about 8:10 p.m., right?
4 A Yes, sir.
5 Q We have Detective DeGennaro
6 indicating the time on the top of the report at
7 9:15 p.m., right?
8 A That could have been the time that
9 Detective Sergeant DeGennaro typed on this when
10 they began to take the statement.
11 Q That's when they start typing?
12 A Again, I don't know how he does it.
13 Q Then we have 10:36, which -- which
14 may be the time Peter -- excuse me, Tim Carter
15 signed; but you just don't know?
16 A I didn't take that statement, no, sir.
17 Q Sir, just go back to a topic we
18 discussed before, were you aware as of
19 April 30th, 2004 that Sergeant Glenn Amodeo
20 wrote a report indicating that he personally
21 heard Charles Snyder, Sr. say -- question him as
22 to whether he, Sergeant Amodeo, was going to
23 believe the cock-sucking faggots over the
24 firemen? Weren't you aware of that at that
25 time --
244
1 A Yes, sir.
2 Q -- of April 30th?
3 A Yes, sir.
4 Q Let's go back to one of the
5 statements, one of the three statements by Frank
6 Walters, the Fire Chief. Again, this is a
7 statement that you took, right?
8 A Yes, it is.
9 Q And this is D-38 and D-39. Now,
10 one of the questions you asked Chief Walters is,
11 "Are you aware of any other problems that have
12 occurred between firemen and this neighbor"; is
13 that right?
14 A Yes, sir.
15 Q He answered a flat out, "No,"
16 right?
17 A Yes, sir.
18 Q And you also ask a similar
19 question of Raymond Cieciuch. And Raymond
20 Cieciuch was the -- he was the deputy chief at
21 that time, right?
22 A They have three layers of chief. I know
23 there is the head chief and, I guess, the
24 assistant chief; and then they call something
25 the "battalion chief."
245
1 Q Okay.
2 A That's their hierarchy.
3 Q He was one of the three chiefs,
4 right?
5 A I believe he was the lowest of the three.
6 Q That would have been battalion
7 chief?
8 A I think so, yes.
9 Q And then there was Parisi, yes,
10 and he was also one of the chiefs?
11 A I'm not a fireman; I don't know how they
12 do it.
13 Q Then you also asked Cieciuch, "Are
14 you aware of any other problems that have
15 occurred between the members of the firehouse
16 with any neighbor?"
17 And he answers, "Not that I'm aware
18 of"; do you see that?
19 A Yes.
20 Q And that is the answer he gave
21 you?
22 A That is the exact answer he gave me.
23 Q Neither Frank Walters -- neither
24 Chief Frank Walters nor Deputy or Battalion
25 Chief Cieciuch ever told you that shortly before
246
1 this incident of the early morning hours of
2 April 25th, 2004 it was brought to their
3 attention that Peter deVries and Tim Carter had
4 been complaining about firemen throwing used
5 condoms from the parking lot onto their porch?
6 That had not been brought to your attention,
7 right?
8 A No one disclosed that to me no, sir.
9 Q Excuse me?
10 A No, correct.
11 Q That's all I have, thank you, sir.
12 THE WITNESS: Thank you.
13 JUDGE CURRAN: Mr. Bevere.
14 MR. BEVERE: Yes, Judge, very
15 briefly.
16 REDIRECT EXAMINATION BY MR. BEVERE:
17 Q I want to -- with regard to
18 Mr. Carter's statement, where your report says
19 that he reported to the Detective Bureau at 2010
20 hours on 4/29/04 --
21 A Yes, sir.
22 Q -- does the fact that that's when
23 he came down to the Detective Bureau mean that's
24 when you started -- that's when Detective
25 DeGennaro started interviewing him?
247
1 MR. MULLIN: Objection, leading.
2 JUDGE CURRAN: Sustained. Please
3 rephrase.
4 MR. BEVERE: I will, thank you.
5 BY MR. BEVERE:
6 Q What, if anything, does the 2010
7 hours indicate?
8 A That's when I saw Mr. Carter arrive at
9 headquarters.
10 Q Is it typical, untypical, common
11 or uncommon --
12 MR. MULLIN: Objection, leading.
13 JUDGE CURRAN: It -- just go back
14 the other way and rephrase it.
15 MR. BEVERE: Judge, that's fine.
16 BY MR. BEVERE:
17 Q Well, let me -- very simply, do
18 you know what time it was when Detective
19 DeGennaro actually started interviewing
20 Mr. Carter?
21 A No, sir, they -- I know they were there
22 for a while just talking. They were in a
23 backroom. I was in a different room.
24 Q But you were not involved in the
25 interview with Tim Carter?
248
1 A No, sir.
2 Q Detective DeGennaro handled that?
3 A Yes, sir.
4 Q So he would be the person --
5 A I believe so.
6 Q -- who would speak to the times?
7 A Yes, sir.
8 Q Okay. Did you -- I believe you
9 testified earlier that you took a statement from
10 a Patricia Hjelm?
11 A Yes, sir.
12 Q And I'm going to show you --
13 MR. MULLIN: Your Honor, can we
14 have sidebar? I think I have a beyond the scope
15 objection.
16 JUDGE CURRAN: Sure.
17 MR. BEVERE: Happy to come to
18 sidebar.
19 (Whereupon, the following sidebar
20 discussion is held.)
21 MR. MULLIN: Your Honor, my
22 objection is I didn't mention Hjelm. It's
23 beyond the scope of my cross.
24 MR. BEVERE: Okay. What was
25 mentioned, Mr. Mullin mentioned that --
249
1 Mr. Mullin asked my -- asked my witness did you
2 know that Mr. deVries called the police that
3 night and said that he heard three firefighters
4 outside yelling and that there was a report
5 saying that three firefighters were standing in
6 the parking lot when he got there? That was the
7 question that was asked.
8 And my question to this detective
9 is going to be: When you interviewed Patricia
10 Hjelm, how many voices did she tell you she
11 heard yelling? I don't think it's beyond the
12 scope at all.
13 JUDGE CURRAN: It's a fair
14 question. I will note the objection, but it's
15 fair. Thank you.
16 (Whereupon, sidebar discussion is
17 concluded.)
18 BY MR. BEVERE:
19 Q Detective, I want to show you
20 Patricia Hjelm's statement, which we have marked
21 as D-52 and D-53. And did you take this
22 statement?
23 A Yes, I did.
24 Q Okay. And did you ask Patricia
25 Hjelm how many voices she heard yelling that
250
1 night?
2 A Yes, I did.
3 Q And how many voices did she tell
4 you she heard yelling?
5 A Just one.
6 Q Now, did Mr. deVries indicate to
7 you at any point in time while you were taking
8 his statement that he had heard a gunshot?
9 A No, he did not.
10 Q In any of your conversations that
11 you had with Mr. Carter did he indicate to you
12 that he had heard a gunshot?
13 A No, he did not.
14 Q If she had told you that, would
15 you have put that in a report?
16 A Absolutely.
17 Q And aside from the one report of
18 Lieutenant Malanka from Dee Bardini, are you
19 aware of any other person who reported hearing a
20 gunshot?
21 A No.
22 Q Are you aware as you are sitting
23 here today of any evidence of a gun being used?
24 MR. MULLIN: Objection, Your
25 Honor. We had -- evidence is a legal
251
1 description. We had a witness come in and
2 testify.
3 MR. BEVERE: I asked him what his
4 awareness was, Your Honor.
5 JUDGE CURRAN: Sustained. Just
6 rephrase the question.
7 MR. BEVERE: Okay.
8 BY MR. BEVERE:
9 Q Aside from the report that
10 Lieutenant Malanka took of his conversation with
11 Dee Bardini, are you aware of any other evidence
12 of a gun or a gunshot being involved in this
13 incident?
14 JUDGE CURRAN: "Evidence" is the
15 objectionable term.
16 MR. BEVERE: Excuse me?
17 JUDGE CURRAN: The word objected
18 to --
19 MR. BEVERE: I will rephrase it.
20 BY MR. BEVERE:
21 Q Are you aware of anyone else
22 besides Dee Bardini reporting that they had
23 heard a gunshot?
24 A No.
25 Q Oh, I'm sorry, my last question to
252
1 you, Detective, was with regard to the meeting
2 that occurred the morning of the incident. What
3 was the statement that you were instructed by
4 Detective Captain Buckley to ask the witnesses
5 about?
6 A "Are you going to believe those
7 cock-suckers over us" I believe it was.
8 Q Okay. And is it -- in your
9 experience as -- as a detective, is it unusual
10 for different people in the same place to hear
11 something different ways?
12 A No, sir.
13 Q No further questions. Thank you.
14 RECROSS EXAMINATION BY MR. MULLIN:
15 Q From your experience sometimes
16 witnesses hear something in different ways,
17 right?
18 A Yes.
19 Q You are aware that Miss Bardini
20 thought she heard gunshots, right?
21 A Yes.
22 Q And are you aware that Mr. Carter
23 has testified that when he was out on the porch,
24 he heard a loud explosive bang, as he put it?
25 A No, sir.
253
1 Q Are you aware of that? Are you
2 aware that in his -- in one of his police
3 statements he said that, "At the moment, at the
4 beginning of the attack" -- and I will show you
5 D-64 -- "I heard what sounded like a big rock
6 hit the side of my face" -- "side of my fence,"
7 right?
8 A That's what he put down.
9 Q That's what he put down.
10 Different people, you just told this jury, hear
11 different things in different ways, right?
12 A Yes, sir.
13 Q And you didn't search -- and you
14 didn't search the firehouse parking lot for
15 shell casings on Sunday, right?
16 A I did not, no, sir.
17 Q You didn't search on Monday,
18 right?
19 A No, sir.
20 Q You have never searched ever,
21 right?
22 A We went on that one day. We had taken
23 photographs. We looked at everything, and we
24 found no destructive evidence.
25 Q Is there something in that police
254
1 report that says you searched for gun casings?
2 A We didn't specifically -- we looked for
3 anything. There was nothing, nothing. The
4 fence wasn't even damaged.
5 Q Are you aware, sir, that not only
6 did Officer Ulrich say that he found these three
7 people in the parking lot when he arrived at the
8 scene that night of the incident but that they
9 actually admitted to him that they had been
10 yelling at the plaintiffs? Are you aware that
11 Ulrich wrote that in his report?
12 A On the 30th?
13 Q Yes.
14 A Yes, sir, I found that out after he
15 submitted that report.
16 Q You're aware of it?
17 A Yes.
18 Q Hold on one sec. I think you just
19 said to the jury the fence wasn't even damaged?
20 Is that what you just said?
21 A Correct, sir.
22 Q Okay. There is no report that you
23 did -- you're a Detective, right?
24 A Yes, sir.
25 Q Was the fence painted or
255
1 unpainted?
2 A I believe at the time it was weathered,
3 unpainted.
4 Q Weathered. And "weathered" means
5 that -- means what?
6 A Not well kept.
7 Q Not well kept. Was the wood
8 exposed or unexposed?
9 A Exposed.
10 Q Exposed. When you put your hands
11 on exposed wood, what happens? You're a
12 detective. What happens? When you grip exposed
13 wood and rock it, what happens?
14 A I don't know.
15 Q Don't know. Anything about
16 splinters, fibers, anything like that?
17 A It depends --
18 Q Depends, right?
19 A -- how you hold it, I guess.
20 Q And a detective didn't come to the
21 scene of this incident at the time of the
22 incident, right?
23 A Correct.
24 Q And the detective didn't come to
25 the scene of this incident any time Sunday, the
256
1 day of the incident, right?
2 A No, sir.
3 Q Didn't come Monday, right?
4 A No, sir.
5 Q Didn't come Tuesday, right?
6 A Correct.
7 Q And all the firefighters who were
8 there, well, they were sent home by the Mayor,
9 right?
10 MR. BEVERE: Judge, objection as
11 to the characterization as to who they were sent
12 home by.
13 MR. MULLIN: I just read the
14 testimony of the Mayor saying it. I read it to
15 the jury.
16 JUDGE CURRAN: I will overrule it
17 based on the reading, and we had that question
18 before.
19 MR. BEVERE: Judge, the testimony
20 in this case was that Sergeant Amodeo sent
21 everyone home. That was the testimony.
22 JUDGE CURRAN: But if you look at
23 the deposition --
24 MR. BEVERE: Well, Judge -- Judge,
25 with all due respect to that, what the Mayor
257
1 testified to was that when he came down, the
2 officers were instructing everyone to go home.
3 And he said comply with what the officers said
4 and go home. That doesn't mean the Mayor closed
5 the firehouse and sent everyone home. That is a
6 mischaracterization of the testimony before this
7 Court.
8 MR. MULLIN: Your Honor, can I --
9 I really resent that, Your Honor. I would now
10 like permission to read the section of the trial
11 testimony this jury has already heard concerning
12 that issue because I think that was quite
13 prejudicial.
14 JUDGE CURRAN: Thank you.
15 MR. MULLIN: I am going to start
16 reading page 26 of the trial testimony, day
17 nine, that this jury has already heard. I am
18 going to start on page -- line 7?
19 JUDGE CURRAN: Mr. Paris.
20 MR. PARIS: Can I follow along
21 with Mr. Mullin?
22 MR. MULLIN: He can stand right
23 next to me.
24 MR. PARIS: Thank you.
25 MR. MULLIN: This is the testimony
258
1 of May Elwell that was read into the record.
2 JUDGE CURRAN: The testimony of
3 the Mayor from his deposition?
4 MR. MULLIN: Yes, from his
5 deposition. I am going to start, actually, to
6 make it clear to the jury, on page 25, line 25.
7 BY MR. MULLIN:
8 Q Question: Now, moving to the
9 events of April 25th, 2004 -- and when I say
10 that, I'm going to assume that you know what I
11 mean -- that I mean what took place at 988
12 Schopmann Drive between the firefighters and my
13 clients. Is that fair?
14 Answer by the Mayor: That's fair.
15 Question: When did you first find out
16 what happened?
17 Answer: I received a phone call I
18 would guess somewhere between 1 and 2 in the
19 morning. I was woken up. I was asleep. So
20 somewhere between one and two in the morning.
21 Who called you?
22 Answer: Chucky Snyder, Sr.
23 What did he say?
24 Answer: He called. He asked me to
25 come over. He said there was a problem at the
259
1 firehouse.
2 Question: What was Chuck Snyder, Sr.'s
3 title at the time?
4 Answer: You know, he has been a
5 captain of that firehouse several times. At
6 that point I can't tell you. I don't know who
7 the captain was. It could have been him. It
8 could have been his son. It could have been any
9 other firefighter. They share terms for like a
10 year. They have their own in-house elections.
11 So I can't tell you if he was a captain or if he
12 just was -- if he just was a firefighter.
13 Question: Do you know why he was the
14 one who called you?
15 Answer: No, I have no knowledge as to
16 why.
17 Question: What did you do?
18 I got up, I got dressed and I went to
19 the firehouse.
20 Question: What did you see when you
21 got there?
22 Answer: There was a police car there.
23 There was some firefighters there. I guess
24 Chuck Snyder might have been outside waiting for
25 me to come. There was some firefighters inside.
260
1 That is what I saw.
2 Question: Did you speak to anyone on
3 the scene?
4 Answer: I spoke to Chuck Snyder. And
5 I'm trying to think. There was a police officer
6 there. I'm not really sure which police
7 officer.
8 And when you --
9 Answer: But there was a police officer
10 there.
11 Question: When you say, "Chuck
12 Snyder," you mean Senior?
13 Answer: Yes.
14 Question: What did he say to you at
15 that time?
16 Answer: I asked him what happened. He
17 said there was a commotion between the -- some
18 -- I guess he said there was charges made by two
19 neighbors. There was a commotion. There was
20 some yelling and screaming. And that was all.
21 Question: How long did you stay at the
22 site?
23 Answer: Probably no more than less --
24 more than -- less than five minutes.
25 Question: Did you speak to the police
261
1 officer who was there?
2 Answer: Yes, I did.
3 Question: What did he say?
4 Answer: He said he had asked the
5 firefighters to close the firehouse and go home.
6 Question: When you were speaking with
7 Chuck Snyder, Sr., did he indicate that he had
8 done any yelling that evening?
9 Answer: No.
10 So when you were there for, what did
11 you say, 10, 15 minutes?
12 Answer: Five minutes.
13 I'm sorry. And then you went home?
14 Answer: What I did was I told the
15 firefighters to close the firehouse and go home.
16 And then I went home.
17 Question: Was the --
18 Answer: Which they did.
19 Question: Was the firehouse clear when
20 you left?
21 Answer: Yes -- well, there was a
22 police officer there -- officer there, and
23 firefighters were clearing it.
24 MR. MULLIN: That's to page 29,
25 line 10.
262
1 JUDGE CURRAN: Anything else?
2 MR. BEVERE: No, Judge, I think
3 that accurately states what the police officer
4 said.
5 MR. MULLIN: Your Honor, can we
6 stop having the testimony of this lawyer? This
7 lawyer is not a witness.
8 JUDGE CURRAN: I'm going to
9 continue the -- I'm going to continue overruling
10 the objection, but your objection and my
11 decision is on the record.
12 MR. BEVERE: Thank you, Judge.
13 BY MR. MULLIN:
14 Q I have no further questions,
15 Officer.
16 A Thank you.
17 JUDGE CURRAN: Mr. Bevere.
18 MR. BEVERE: Before I let the
19 detective go it's my intention to move some
20 reports into Evidence. And if there is
21 objections to them, I would like to do it while
22 we have the potential document authenticator on
23 the stand.
24 JUDGE CURRAN: Okay. We can go
25 over to sidebar on that. Meanwhile, I will ask
263
1 the jury, if you have any questions for this
2 witness, if you will please write them down
3 while we're at sidebar about the evidence.
4 Okay? You have the notecards, and pencils are
5 there. Thank you.
6 (Whereupon, the following sidebar
7 discussion is held.)
8 MR. BEVERE: Judge, basically what
9 I -- first -- the first thing I will start with
10 is Detective Reinke's report.
11 MS. SMITH: Judge, we gave him a
12 list five days to review. I mean, there may be
13 some redactions. We may have no problems. If
14 they want to give us this list, we can go home
15 and we can do what they did for five days, just
16 look and see if there is a redaction, if there
17 is a specific problem. The jury is sitting
18 here. We are going to do this?
19 MR. PARIS: Your Honor, when we
20 received the e-mail of May 21, counsel for the
21 plaintiffs had indicated --
22 MS. SMITH: I can't hear you.
23 MR. PARIS: I'm sorry. When we
24 received the e-mail of May 21, counsel for the
25 plaintiffs --
264
1 JUDGE CURRAN: Replied to on the
2 26th, okay.
3 MR. PARIS: Replied to yesterday
4 afternoon on Memorial Day, yes. We were told as
5 part of that e-mail that the defendant -- the
6 plaintiffs would have no objection to admitting
7 the entirety of our notebook subject to three
8 documents.
9 MR. MULLIN: That's if you agreed
10 to move in all the evidence I want. Instead,
11 you gave me a pile of objections.
12 JUDGE CURRAN: Okay. Let me try
13 to cut to the chase. How many documents are you
14 talking about?
15 MR. BEVERE: I am talking about
16 Detective Reinke's reports; and I am talking
17 about one, two, three, four, five, six --
18 MS. SMITH: How many reports does
19 he have?
20 JUDGE CURRAN: At this point it
21 isn't fair, A, to delay the jury or, B, keep the
22 other witnesses waiting. I'm getting concerned
23 because it's 3:35. I don't think there is any
24 problem with Detective Reinke's reports,
25 correct? So Reinke's reports are in?
265
1 MS. SMITH: Judge, there might be
2 redactions, like I have -- they agreed to
3 redaction. There is something about a newspaper
4 article.
5 JUDGE CURRAN: Subject to
6 redaction?
7 MR. BEVERE: Judge, let me do
8 this. Let me do this, then. I understand with
9 the jury in the box you want to proceed; I
10 understand that. I assume we will be able to
11 work on any objections with regard to the police
12 reports? If we can't, I will reserve the right
13 to recall Detective Reinke, if he has to come in
14 and authenticate documents.
15 JUDGE CURRAN: That's okay.
16 MR. MULLIN: Won't be an
17 authentication problem.
18 MR. BEVERE: Or making out the
19 business records exception.
20 JUDGE CURRAN: We are going to
21 excuse him. You have a right to recall him or
22 at least ask to recall him; and we will have the
23 arguments then, if we need them.
24 MR. BEVERE: Thank you.
25 (Whereupon, sidebar discussion is
266
1 concluded.)
2 JUDGE CURRAN: Are there any
3 questions from the jury?
4 All right. Thank you very much.
5 I see no questions. You may step down. Thank
6 you.
7 (Whereupon, the witness is
8 excused.)
9 JUDGE CURRAN: Mr. Bevere, if you
10 would be kind enough to call your next witness.
11 MR. BEVERE: I will, Judge.
12 JUDGE CURRAN: Thank you.
13 MR. BEVERE: Let me just get my --
14 COURT CLERK: Off the record.
15 JUDGE CURRAN: Thank you.
16 (Whereupon, a discussion is held
17 off the record.)
18 MR. BEVERE: Your Honor, I'm
19 sorry.
20 That side.
21 JUDGE CURRAN: Juror, what kind of
22 a question is this?
23 JUROR NUMBER 4: Just curious
24 about something.
25 JUDGE CURRAN: Well, we'll see
267
1 later. Okay. Thank you.
2 MS. HAWKS: Raise your right hand,
3 sir. Stand up, please. Raise your right hand.
4 Place your left hand on the Bible.
5 O F F I C E R T H O M A S M A L A N K A is
6 duly sworn by a Notary Public of the State
7 of New Jersey and testifies under oath as
8 follows:
9 MS. HAWKS: For the record, please
10 state your full name, spell your last name,
11 please.
12 THE WITNESS: Thomas Malanka,
13 M-a-l-a-n-k-a.
14 JUDGE CURRAN: Thank you, sir.
15 Please move a little closer to the microphone.
16 You are under oath. All your
17 testimony must be truthful and accurate to the
18 best of your ability. Do you understand?
19 THE WITNESS: Yes, ma'am.
20 JUDGE CURRAN: Thank you. Please
21 give us your address for the record.
22 THE WITNESS: My home address?
23 JUDGE CURRAN: Yes, sir.
24 THE WITNESS: It's 21 East Hunter
25 Avenue in Maywood, New Jersey, 07607.
268
1 JUDGE CURRAN: Thank you.
2 Your witness.
3 MR. BEVERE: Thank you.
4 DIRECT EXAMINATION BY MR. BEVERE:
5 Q Officer Malanka, with whom are you
6 employed?
7 A The Town of Secaucus.
8 Q What is your position?
9 A Police officer.
10 Q And how long have you been a
11 police officer?
12 A Six-and-a-half years.
13 Q And has that entire time been with
14 Secaucus Police Department?
15 A Yes.
16 Q And were you working for the
17 Secaucus Police Department in April of 2004?
18 A Yes.
19 Q I am going to show you a report
20 that I have marked as D-117 for Identification
21 and ask you, first of all, if that's your
22 signature on the report?
23 A Yes.
24 Q Okay. Did you prepare this
25 report?
269
1 A Yes.
2 Q As you are sitting here today do
3 you have any recollection of the incident that's
4 reflected in this report?
5 A Yes.
6 Q Okay. At some point did you
7 respond to the North End Firehouse in mid May of
8 2004 --
9 A Yes.
10 Q -- in regard to a complaint of
11 drinking in the Fire Department parking lot?
12 A Yes.
13 Q Okay. And when you got to the
14 Fire Department parking lot, what observations
15 did you make?
16 A I'd have to reference my report.
17 Q Okay. So you need to see your
18 report in order to remember what it was that you
19 saw, who you spoke to, what was said?
20 A Yes, to refresh.
21 Q Okay. With regard to this report,
22 was this report prepared by you that day?
23 A Yes.
24 Q And the information contained in
25 this report, would this be information that you
270
1 either personally observed or was told to you at
2 the scene?
3 A Yes.
4 Q And do you have a duty to make
5 reports such as this when you respond to a
6 scene?
7 A Yes.
8 Q All right. And with regard to
9 this particular report, it would have been
10 accurate when it was made?
11 A Right.
12 Q And it's part of your regular
13 duties to make reports like these?
14 A Yes.
15 Q All right. Why don't you then --
16 MR. MULLIN: Dave, D-117.
17 MR. PARIS: I'm trying.
18 BY MR. BEVERE:
19 Q I'm sorry. It's the Police
20 Department's policy that you prepare reports in
21 all the cases where you respond?
22 A Yes.
23 Q Okay.
24 JUDGE CURRAN: Good, a
25 non-electronic fix.
271
1 Q So as -- once again, you have no
2 independent recollection as you are sitting here
3 today as to what you saw, what was discussed?
4 A I remember going on the call, but that's
5 about it. Just my report would reflect what
6 happened.
7 Q Okay. Why don't you look at your
8 report, and why don't you tell us -- I guess we
9 are not going to look at it; you will just tell
10 us.
11 A You want me to read it?
12 Q Yes, if you need to. Do you need
13 to read the report in order to refresh your
14 recollection?
15 A You want me to read the actual report, or
16 are you going to -- you want me --
17 JUDGE CURRAN: He wants you to
18 read it yourself.
19 Q Do you want to read it?
20 A I went over it. I -- I vaguely remember
21 what happened.
22 Q Okay. But without the report in
23 front of you, you can't tell us what happened?
24 A No.
25 Q Okay. And once again --
272
1 MR. BEVERE: Well, Judge, with the
2 Court's permission, he testified that he doesn't
3 have -- he has a recollection of going to the
4 scene but not what was said, so I'd ask he be
5 allowed to read from that report.
6 JUDGE CURRAN: Well, at this point
7 ask him a question or two and -- and we'll see
8 if he --
9 MR. BEVERE: Okay.
10 JUDGE CURRAN: -- needs it because
11 he said in the beginning he had some
12 recollection.
13 MR. BEVERE: Of responding, okay.
14 BY MR. BEVERE:
15 Q As you are sitting here do you
16 have a recollection of what it was that you
17 observed when you got to the firehouse?
18 A Without the report -- I believe it was a
19 party of some kind in the parking lot of the
20 firehouse.
21 Q Do you have -- as you are sitting
22 here today do you have a recollection of whether
23 ever -- why don't you look at your report. You
24 can refresh your recollection. Then I will ask
25 you some questions. That is probably the best
273
1 way to do it.
2 A Yeah.
3 Q Read the whole thing.
4 A Okay.
5 Q Okay.
6 A Yeah.
7 Q When you arrived at the Fire
8 Department parking lot did you see anyone
9 drinking outside?
10 A No.
11 Q Where was the drinking occurring?
12 A I was told it was inside. We didn't go
13 inside because that wasn't the complaint.
14 Q But you didn't see anyone in the
15 parking lot drinking?
16 A There was no one drinking outside.
17 Q Did you have any discussions with
18 anyone at the firehouse parking lot?
19 A I believe I spoke with a firefighter, one
20 of the Snyder -- there is a few of them. One --
21 I forget which one it was.
22 Q And when you were there -- I'm
23 sorry, did Mr. Snyder advise you as to what the
24 nature of the function was?
25 A Yeah, I -- as per my report, it was a
274
1 communion party for a little girl.
2 Q And while you were there did you
3 see any disorderly conduct or behavior going on?
4 A No.
5 MR. BEVERE: No further questions,
6 thank you.
7 CROSS EXAMINATION BY MR. MULLIN:
8 Q Good afternoon, sir.
9 A Hello.
10 Q Sir, do you have a relative -- is
11 it your father --
12 A Yes.
13 Q -- who is also in the Police
14 Department?
15 A Yes.
16 Q Officer Malanka, is he a
17 lieutenant?
18 A He is a captain now.
19 Q Captain. Did your father write a
20 report also about this same incident? Are you
21 aware of it?
22 A No, I don't believe so.
23 Q Not that you are aware of, but he
24 may have? Let me show you D-119. And do you
25 recognize that name?
275
1 A That is my father.
2 Q That is your father. And --
3 A Two days later.
4 Q -- you see this report says, "On
5 Sunday morning, 5/16/04, I was at work and
6 noticed there was a message on my machine"?
7 A Uh-huh.
8 Q "I played the message. The caller
9 stated he was Tim Carter. And the time was 1840
10 hours on Saturday evening, 5/15/04." You see
11 that?
12 A Uh-huh.
13 Q 1840, that would be like 6:40 --
14 A 6:40.
15 Q -- in the evening, right?
16 A Uh-huh.
17 Q "And Mr. Carter stated he walked
18 past the open firehouse, where the doors were
19 open and the fire trucks were parked outside.
20 Said there were dozens and dozens of beer cans
21 on tables inside the firehouse and firemen were
22 drinking in the firehouse parking lot. Then he
23 further stated they were not taking things
24 seriously and were almost practically purposely,
25 to let everyone know alcohol is alive and well
276
1 there. And he stated, 'I am calling, writing,
2 let people know about this.'" So that call came
3 in to your father at 6:40 p.m. on Saturday 5/15,
4 right?
5 A Right.
6 Q And you didn't arrive at the
7 firehouse --
8 A Until 8:00.
9 Q -- to check this out until 1959;
10 that is 8 p.m., right?
11 A Right.
12 Q So that was an hour and 20 minutes
13 after the call came in complaining about firemen
14 drinking in the parking lot you arrived at the
15 firehouse with Sergeant Zloty; is that right?
16 Is that right? That is correct?
17 A Right.
18 Q Now, by then, at that time there
19 was nothing out in the parking lot, right?
20 A Right.
21 Q Now, what you also say there is
22 that -- in this report that you signed off on
23 that, "Assistant Chief Cieciuch of the Secaucus
24 Fire Department stated that the group having the
25 party did have a permit for alcohol inside the
277
1 firehouse," right?
2 A Uh-huh.
3 Q You confirmed that? Is that a
4 yes?
5 A No, that's from Captain Rozansky.
6 Q And Rozansky confirmed they
7 actually had a permit? The Chief confirmed that
8 they had gotten a permit to drink there, right,
9 inside the firehouse --
10 A Okay.
11 Q -- is that correct? So that's on
12 May 15th, 2004, 20 days after the incident of
13 April 25th, 2004, the Fire Department gave a
14 permit for drinking inside the North End
15 Firehouse; is that --
16 MR. BEVERE: Objection as to when
17 they gave the permit, Your Honor.
18 JUDGE CURRAN: Sustained. Just
19 rephrase it, please.
20 MR. MULLIN: No further questions.
21 REDIRECT EXAMINATION BY MR. BEVERE:
22 Q Officer, do you know when the
23 permit was obtained for that party?
24 A You would have to ask Captain Rozansky,
25 who -- who's the one who told me. I didn't
278
1 speak with Chief Cieciuch.
2 Q Your only job was to go there and
3 report as to what you saw?
4 A Right, an hour-and-a-half after he left
5 the message.
6 Q The -- I have no further
7 questions, thank you.
8 THE WITNESS: Okay.
9 JUDGE CURRAN: Any other
10 questions, Mr. Mullin?
11 MR. MULLIN: No, Your Honor, no
12 further questions.
13 JUDGE CURRAN: Thank you.
14 Does anyone on the jury have a
15 question for this witness? If so, please raise
16 your hand.
17 Thank you. Seeing no questions,
18 this witness may step down.
19 THE WITNESS: Okay. Thank you.
20 (Whereupon, the witness is
21 excused.)
22 MS. SMITH: Who is next?
23 MR. MULLIN: Who is next, please?
24 MR. BEVERE: Cotter.
25 COURT CLERK: Off the record.
279
1 (Whereupon, a discussion is held
2 off the record.)
3 COURT CLERK: On the record.
4 JUDGE CURRAN: Thank you.
5 MS. HAWKS: Please raise your
6 right hand. Place your left hand on the Bible.
7 S E R G E A N T F R A N C I S C O T T E R, is
8 duly sworn by a Notary Public of the State
9 of New Jersey and testifies under oath as
10 follows:
11 MS. HAWKS: For the record, please
12 state your full name and spell your last name.
13 THE WITNESS: Sergeant Francis
14 Cotter, C-o-t-t-e-r, Badge Number 105.
15 JUDGE CURRAN: Thank you.
16 THE WITNESS: I have bronchitis;
17 you have to excuse me. No, I'm fine, thank you.
18 JUDGE CURRAN: Do you need some
19 water?
20 THE WITNESS: No, it doesn't --
21 thank you.
22 JUDGE CURRAN: Can you move a
23 little closer to the microphone, please?
24 THE WITNESS: Sure.
25 JUDGE CURRAN: Sir, you are under
280
1 oath. All your testimony must be truthful and
2 accurate to the best of your ability. Do you
3 understand?
4 THE WITNESS: Yes.
5 JUDGE CURRAN: Thank you. What is
6 your address, home address?
7 THE WITNESS: 434 Orchard Street,
8 Cranford, New Jersey.
9 JUDGE CURRAN: Thank you. Your
10 witness.
11 MR. BEVERE: Thank you.
12 DIRECT EXAMINATION BY MR. BEVERE:
13 Q Patrol Officer, by whom are you
14 employed?
15 A Excuse me?
16 Q By whom are you employed?
17 A Town of Secaucus, Secaucus Police
18 Department.
19 Q How long have you been a police
20 officer for Secaucus?
21 A Currently 16 years.
22 Q And what is your rank?
23 A Sergeant.
24 Q And were you working for the
25 Secaucus Police Department in May of 2004?
281
1 A Yes, sir.
2 Q I am going to show you what I
3 marked as D-103 and ask you if you know what
4 that is?
5 A I do. It's a investigation report that I
6 prepared.
7 Q Is that your signature?
8 A It is.
9 Q What is the date of the report?
10 A May 1st, 2004.
11 Q Okay. And do you recall the
12 circumstances under which this report was
13 prepared?
14 A I do.
15 Q Do you remember the call?
16 A Vaguely.
17 Q All right. Well, let me ask you
18 this question: With regard to the police
19 reports, is it Department's policy to make you
20 prepare police reports when you respond?
21 A Yes, sir.
22 Q Do you have personal knowledge of
23 the information contained in the report?
24 A I do.
25 Q In other words, either through
282
1 information -- either through things that you
2 see or information provided to you by persons at
3 the scene?
4 A Correct.
5 Q And this report would have been
6 accurate when it was made?
7 A Yes, sir.
8 Q And it's the Department's regular
9 practice, policy and procedure to require you to
10 make these reports?
11 A That's correct.
12 Q And this particular report was
13 prepared in accordance with that practice,
14 policy and procedure, correct?
15 A Yes, sir.
16 Q As you are sitting here do you
17 have any independent recollection of the
18 incident?
19 A Vague, somewhat.
20 Q Why don't you tell us what you
21 know, then I will ask you some more specific
22 questions?
23 A Regarding the incident on the 1st of May?
24 Q Do you want to see your report to
25 refresh your recollection?
283
1 A If I could, please, yes.
2 Q Why don't you read it. Take a
3 minute and read it, and then I will ask you some
4 questions.
5 MR. PARIS: Excuse me. May I,
6 Your Honor?
7 A Okay.
8 Q Okay. Give us your basic
9 recollection of why it was that you were called
10 out?
11 A Gentleman was outside the home at 988
12 Schopmann Drive when -- when a vehicle passed by
13 that corner location of the home. And someone
14 from the vehicle had yelled out a derogatory
15 statement in his general area.
16 Q Well, you know what, I hate to do
17 this; but you are having trouble with your
18 voice, so let me --
19 A Okay.
20 Q -- turn this off. And I
21 apologize.
22 Okay. And when you responded to the
23 location, what, if any, observations did you
24 make?
25 A I met with the party, Mr. Hjelm, who
284
1 had -- who had placed the call to our
2 headquarters. He was standing outside the home
3 on the corner.
4 Q Was anyone else there?
5 A Not that I recall, but from reading my
6 report and Mr. -- Mr. Carter was present, as
7 well.
8 Q And did you speak to both of them?
9 A I had spoke to Mr. Hjelm at first. He
10 was the initial caller.
11 Q In order to tell us specifically
12 what it was that Mr. Hjelm and Mr. Carter told
13 you, would you need to read from your report?
14 A Yes, sir.
15 MR. BEVERE: Judge, ask permission
16 that he read from his report as to specifically
17 what was told to him.
18 JUDGE CURRAN: Okay. I'll allow
19 it. You need to tell him where you want him to
20 read.
21 BY MR. BEVERE:
22 Q Okay. You can read from the top.
23 A Very top, go through the entire --
24 Q No, why don't you start from where
25 it says, "The undersigned."
285
1 A "The undersigned, along with P.O.
2 Malanka, were detailed to incident location,
3 which was 988 Schopmann Drive, on May 1st, 2004.
4 Upon arrival the undersigned," myself, "did
5 speak with Mr. Patrick Hjelm. And Mr. Hjelm was
6 raking leaves in front of 988 Schopmann Drive
7 when a light-colored, older model Ford Bronco
8 passed by incident location. Mr. Hjelm further
9 states that someone in the truck yelled out the
10 window, "The homos are out again." This vehicle
11 does stop at Huber Street and Paterson Plank
12 Road, at which time a white male in his 20s does
13 exit the vehicle. This male is described only
14 as wearing a bright red baseball cap, and no
15 further description was given at this time. And
16 this male crosses the street towards the North
17 End market, and the Ford vehicle continues east
18 on Paterson Plank Road."
19 Q Is that what was reported to you
20 by Mr. Hjelm?
21 A That's correct, yes, sir.
22 Q Okay. Now, just -- where is
23 Paterson Plank Road and Huber Street in relation
24 to the North End Firehouse, if you know?
25 A About a block-and-a-half up east of the
286
1 firehouse --
2 Q Okay.
3 A -- and Schopmann Drive.
4 Q Okay. And then your report goes
5 on to say that someone else was present at the
6 time of the report?
7 A It does.
8 Q And who was that?
9 A Mr. Tim Carter of 988 Schopmann Drive.
10 Q And what, if anything, did
11 Mr. Carter tell you?
12 A Read from here?
13 Q Sure, you can.
14 A "Mr. Carter states that he was inside his
15 home when the Ford vehicle passed by. And
16 Mr. Carter was made aware of the incident by Mr.
17 Hjelm. Mr. Carter was in his home placing a
18 call to Detective Sergeant Reinke. And this
19 call was placed regarding a white-colored
20 vehicle bearing New Jersey registration PFK
21 47" -- we didn't get the last character of the
22 license plate. "This car was parked and
23 occupied by two white males in the parking lot
24 of the North End Firehouse. Mr. Carter was
25 unable to provide a complete license plate
287
1 number. Mr. Carter did describe the driver as a
2 white male in his early 20s and the passenger
3 being approximately 17 and also a white male.
4 No further description at this time."
5 Q Okay. And did you have an
6 understanding as to whether the vehicle that
7 Mr. Carter reported had anything to do with the
8 other incident?
9 A I took it to be two separate. The
10 vehicle -- the light-colored Ford Bronco was
11 first reported by Mr. Hjelm. I was done
12 speaking with him. That's when I was informed
13 of the conversation Mr. Carter had with the
14 Detective Sergeant Reinke.
15 Q And everything that Mr. Carter
16 told you about that vehicle that was parked in
17 the lot is reported in your report?
18 A That's correct.
19 Q Okay. At any point in time did
20 either Mr. Hjelm or Mr. Carter indicate to you
21 that the person that he saw got out of the Ford
22 Bronco was sitting in a bar up the street?
23 A No, sir, there was no mention.
24 Q If they had told you that, would
25 you have put that in your report?
288
1 A It would have been included in it, yes.
2 Q What else would you have done?
3 A Excuse me?
4 Q What else would you have done?
5 A We would have tried to locate that
6 individual.
7 Q Thank you.
8 MR. BEVERE: No further questions.
9 JUDGE CURRAN: Mr. Mullin.
10 MR. MULLIN: Thank you.
11 CROSS EXAMINATION BY MR. MULLIN:
12 Q Sir, in fact, there are a few
13 police reports on this matter, aren't there?
14 A I left one, sir. I don't know how many
15 there are.
16 Q Let me show you D-104 and D-105.
17 That's -- that's a Secaucus police report,
18 right?
19 A That's -- yes, sir, it is.
20 Q And that's signed by Detective
21 Sergeant Dominic DeGennaro, right?
22 A Correct.
23 Q And that's dated May 1, 2004,
24 right?
25 A Correct.
289
1 Q And it refers to Patrick Hjelm
2 stating that, as he was mowing the lawn, he
3 heard someone say, "The homos are out," right?
4 You see that? "I guess the homos are out"?
5 A This is from --
6 Q DeGennaro.
7 A Yes, sir.
8 Q And this report says -- refers to
9 the same vehicle that you described in your
10 report, right?
11 A Yes, sir.
12 Q Bronco, light brown, right?
13 A Correct.
14 Q And DeGennaro says, "Pat stated he
15 believes that the one male said to the other
16 male" -- "said it to the other male." And then
17 you see it says, "The vehicle then made a right
18 turn onto Paterson Plank Road and stopped near
19 the corner of Huber Street. The passenger
20 exited the vehicle and crossed over the street
21 where he stopped to talk with someone in front
22 of Danny's Bar"?
23 A Okay.
24 Q Now, my question to you is:
25 That's what DeGennaro wrote in his report,
290
1 right?
2 A Yes, sir.
3 Q In your report you don't mention
4 stopping at Danny's -- stopping in front of
5 Danny's Bar, right? We can agree that's not in
6 there?
7 A That's not in there, sir.
8 Q If they told you that stop -- if
9 Pat Hjelm told you he saw one of the
10 perpetrators stopped at Danny's Bar, what would
11 you have done?
12 A We would have tried to locate that party.
13 Q In this report by DeGennaro it
14 says, "Patrick stated he would be able to
15 identify the passenger, if seen again, but not
16 certain if he could identify the driver"; and
17 you don't have that in your report, right, sir?
18 No statement to that effect, that Patrick said
19 he could identify one of these people?
20 A That isn't included in my report.
21 Q That is not in your report?
22 A No, sir.
23 MR. MULLIN: That's all I have.
24 JUDGE CURRAN: Okay.
25 REDIRECT EXAMINATION BY MR. BEVERE:
291
1 Q Did you put everything that Pat
2 told you at that time in your report?
3 A Yes, sir, absolutely.
4 Q No further questions, thank you.
5 JUDGE CURRAN: Thank you.
6 Anything else?
7 MR. MULLIN: No further questions,
8 Your Honor.
9 JUDGE CURRAN: Anyone on the jury
10 who has a question for this witness? If so,
11 please raise your hand.
12 Thank you. You may step down.
13 THE WITNESS: Judge, thank you.
14 (Whereupon, the witness is
15 excused.)
16 MS. SMITH: Who is next?
17 MR. BEVERE: Kantor.
18 COURT CLERK: On the record.
19 JUDGE CURRAN: Good afternoon.
20 MS. HAWKS: Please raise your
21 right hand. Place your left hand on the Bible.
22 S E R G E A N T B R I A N K A N T O R is duly
23 sworn by a Notary Public of the State of
24 New Jersey and testifies under oath as
25 follows:
292
1 MS. HAWKS: For the record, please
2 state your full name and spell your last name,
3 please.
4 THE WITNESS: Sergeant Brian K.
5 Kantor, Secaucus Police Department, Badge Number
6 96. Last name, K-a-n-t-o-r.
7 MS. HAWKS: Thank you. Please be
8 seated.
9 JUDGE CURRAN: Thank you, sir.
10 You're under oath. All your testimony must be
11 truthful and accurate to the best of your
12 ability. Do you understand?
13 THE WITNESS: Yes, ma'am.
14 JUDGE CURRAN: Thank you. Please
15 move a little closer to the microphone.
16 Please give us your address for
17 the record.
18 THE WITNESS: 1203 Paterson Plank
19 Road, Secaucus, New Jersey.
20 JUDGE CURRAN: Thank you. Your
21 witness.
22 MR. BEVERE: I apologize, Your
23 Honor. Having some technical difficulties. But
24 I have a hard copy of the document, so --
25 DIRECT EXAMINATION BY MR. BEVERE:
293
1 Q Patrol Officer, by whom are you
2 employed?
3 A Secaucus Police Department.
4 Q And what is your rank?
5 A Sergeant.
6 Q And how long have you been a
7 sergeant?
8 A Four-and-a-half years now.
9 Q And were you employed by the
10 Secaucus Police Department in May of 2004?
11 A Yes.
12 Q I am going to show you a report
13 which I have marked as D-102 for Identification
14 and ask you if you can identify that report?
15 A Yes, that's my report.
16 Q And what was the date that you
17 prepared that report?
18 A May 1st of 2004.
19 Q Okay. And what time is the report
20 prepared?
21 A Time out was 2:34 in the morning. Time
22 cleared was 2:42.
23 Q Okay. Perfect. As you are
24 sitting here today, without seeing your report,
25 do you have any independent recollection of
294
1 this?
2 A Yes.
3 Q You do? Why don't you tell us
4 what you recall about being called out on May
5 1st at approximately 2:30 in the morning.
6 A I was dispatched to the North End
7 Firehouse on, apparently, suspicious vehicles
8 that were parked there. When I arrived, I spoke
9 with the complainant, who stated that he felt
10 the vehicles were parked for a rather lengthy
11 time, which made him suspicious of that fact. I
12 informed the complainant that the Fire
13 Department was called out on a fire alarm and,
14 more than likely, the cars that were parked
15 there were probably police personnel. I checked
16 the area. I found no suspicious vehicles in the
17 area. And that was it.
18 Q On that night, May 1st, 2004, did
19 Mr. Carter report to you that cars had been
20 sitting in the Fire Department parking lot
21 shining headlights into his house?
22 A No.
23 Q If he had told you that, would you
24 have put that in your report?
25 A If he told me that, would have been in my
295
1 report; that's correct.
2 Q And with regard to report that you
3 prepared -- once again, it's department
4 practice, policy and procedure to prepare
5 reports every time you go out?
6 A Yes, exactly.
7 Q And the information contained in
8 this report is information that you would have
9 personal knowledge of?
10 A Yes, it is.
11 Q And would be your duty to prepare
12 reports, be your duty to impart that knowledge
13 onto a report?
14 A That's correct.
15 Q And this particular report was
16 prepared as part of your regular course of your
17 duties, correct?
18 A Yes.
19 Q All right. And what happens to
20 this report once you prepare it?
21 A After I write up the report I submit it
22 to the police desk, it's turned in.
23 Q No further questions, thank you.
24 JUDGE CURRAN: Mr. Mullin.
25 CROSS EXAMINATION BY MR. MULLIN:
296
1 Q You're not saying there were no
2 police reports where Carter and/or
3 deVries called in and said, "Firemen are shining
4 lights into our house"? You're not saying that,
5 are you? You are just talking about this
6 report, right?
7 A That's correct.
8 Q You are saying this report they
9 didn't call you about that particular issue,
10 right?
11 A Correct.
12 Q You are saying this report, dated
13 May 1, that's 2:42 in the morning; is that
14 right?
15 A That's -- 2:42, I believe, is the ending
16 time. That's when I wrote the report up.
17 Q That's when you wrote the report.
18 Does it say when you were called by Carter?
19 A My dispatch time should be on the top of
20 that report. At 2 --
21 Q You can look on. I thought you
22 had the report up there.
23 A I don't. Thank you, sir.
24 Q So look on and tell me when did
25 you get the call from Carter based on D-102?
297
1 A 2:34 in the morning.
2 Q So 2:34 in the morning Tim Carter
3 called. Did he speak to you?
4 A Yes.
5 Q You took -- you actually took a
6 call that came in?
7 A Well, the call came into the desk; and
8 they dispatched me to the North End Firehouse.
9 Q So when you say, "The caller
10 stated," you're just talking about something
11 secondhand, right? The dispatcher told you
12 something?
13 A No, the complainant stated to me.
14 Q When did he state it to you?
15 A In that time frame between 2:34 and 2:42
16 in the morning.
17 Q I am just trying to understand the
18 facts. At some point you were in the police
19 station on -- on the early morning of May 1,
20 2004, right? Is that right?
21 A I don't recall that.
22 Q You don't recall?
23 A I was probably on patrol.
24 Q You were on patrol?
25 A And they dispatched me --
298
1 Q And then you recall --
2 A -- over the radio.
3 Q -- the dispatcher dispatching you,
4 right?
5 A Correct.
6 Q And when you got to the firehouse
7 area, the North End Firehouse, did you speak to
8 Mr. Carter? Doesn't say that, right?
9 A It doesn't say that.
10 Q So when you're writing -- when
11 you're saying, "Caller stated," you're talking
12 about a caller, right, someone on a telephone?
13 A Right.
14 Q So you're talking about what
15 Carter supposedly said to the Police dispatcher,
16 right?
17 A Yes, I guess you're right, correct.
18 Q Okay. You don't have any personal
19 knowledge --
20 A Of speaking directly to Mr. --
21 Q -- of speaking directly to
22 Mr. Carter, right?
23 A No, I don't, I apologize.
24 Q So you don't know what Carter said
25 to the police dispatcher that night, or do you?
299
1 Right?
2 A The exact conversation that occurred, no.
3 Q You don't know the conversation on
4 the telephone?
5 A No, I don't.
6 Q You don't know whether Carter said
7 anything to that dispatcher about headlights
8 being shined into his house or anything else,
9 right?
10 A If that would have been the fact, they
11 would have told me that.
12 Q Well, who was the dispatcher that
13 night?
14 A I have no idea.
15 Q One of the dispatchers was Chuck
16 Snyder, Jr., right? One of the -- on May 1,
17 2005 -- '4, right?
18 A I don't know, sir.
19 Q Well, did you ever know that Chuck
20 Snyder, Jr., captain of the North End Firehouse,
21 was a police dispatcher?
22 A Dispatcher, yes, I do.
23 Q You knew that?
24 A Yes.
25 Q Was that the police dispatch you
300
1 spoke to that night?
2 A I don't know.
3 Q Don't know one way or the other?
4 Now, May 1, 2004 is the date of this report,
5 right?
6 A Correct.
7 Q The day before, all right, the
8 Town had ordered that the North End Firehouse be
9 reopened for social purposes, right?
10 A I don't recall. I'm not privy to that
11 information.
12 Q Did you write down the license
13 plate numbers of the cars that you saw when you
14 arrived there?
15 A No, I didn't.
16 Q You didn't write down the license
17 plate numbers?
18 A No.
19 Q How many cars -- there were two
20 cars there, right?
21 A Supposedly there were two cars parked
22 there.
23 Q There is no reference in this
24 report to some fire being called in that night,
25 right? There is no reference in this report to
301
1 that, right?
2 A Not in this report, no.
3 Q Okay. And this is your report on
4 that incident, right?
5 A That's correct, sir.
6 Q
7 MR. MULLIN: I have nothing
8 further.
9 REDIRECT EXAMINATION BY MR. BEVERE:
10 Q Why don't you read for us -- first
11 of all --
12 MR. MULLIN: Objection to the
13 leading and pointing at the document. Objection
14 to reading without a foundation.
15 JUDGE CURRAN: Sustained.
16 MR. BEVERE: Judge, that's fine.
17 That's fine. That's fine.
18 BY MR. BEVERE:
19 Q When you were in your patrol car
20 and you got the dispatch, what were you told to
21 look for when you got to the North End
22 Firehouse?
23 MR. MULLIN: Objection, hearsay.
24 Hearsay.
25 MR. BEVERE: No, Judge, this is
302
1 what he was told to look for.
2 MR. MULLIN: Objection, hearsay.
3 JUDGE CURRAN: It is hearsay, but
4 you can rephrase it and --
5 BY MR. BEVERE:
6 Q When the dispatch call came in,
7 were you advised that there were cars shining
8 lights in the plaintiffs' residence?
9 MR. MULLIN: Objection.
10 JUDGE CURRAN: That's right; that
11 is a leading question.
12 MR. MULLIN: And leading. What
13 the dispatcher said to him is hearsay.
14 MR. BEVERE: Well, Judge, what did
15 this -- all right.
16 BY MR. BEVERE:
17 Q From the time you got the dispatch
18 to the time you got to North End Firehouse,
19 about how long did it take you to get there?
20 A Few minutes.
21 Q Did you see any cars in the lot at
22 all when you got there?
23 A No, I didn't.
24 Q And then did you see anybody
25 shining lights in anybody's house?
303
1 A No, I didn't.
2 MR. BEVERE: No further questions.
3 RECROSS EXAMINATION BY MR. MULLIN:
4 Q You didn't write in your report,
5 D-102, which your -- your -- Mr. Bevere can give
6 you. You didn't write that you saw no cars?
7 You just said, "A check of the area proved
8 negative for any suspicious vehicles," right?
9 That's what you wrote?
10 A That's what I wrote.
11 Q You didn't write, "I saw no cars
12 at all," right?
13 A No.
14 MR. MULLIN: Okay. Nothing
15 further.
16 FURTHER REDIRECT EXAMINATION BY MR. BEVERE:
17 Q If you had arrived in the parking
18 lot and you had seen vehicles there with their
19 lights shining on the plaintiffs' house, would
20 you have reported that?
21 A Exactly.
22 MR. BEVERE: Thank you.
23 JUDGE CURRAN: Anything else, Mr.
24 Bevere?
25 MR. BEVERE: Nothing, thank you.
304
1 JUDGE CURRAN: Mr. Mullin,
2 anything else?
3 MR. MULLIN: Yeah, one other
4 question.
5 FURTHER RECROSS EXAMINATION BY MR. MULLIN's:
6 Q It says at the bottom of this,
7 "reviewed." Can you tell me who signed off
8 under that in that box?
9 A I can't make out that signature, sir.
10 MR. BEVERE: I'm sorry, I can't
11 hear, Your Honor.
12 A I can't make out that reviewing
13 signature. It may be Amodeo at the time.
14 Q Okay.
15 A Maybe. I can't make it out.
16 Q Not sure.
17 MR. MULLIN: Nothing further.
18 That's it.
19 JUDGE CURRAN: No further
20 questions?
21 MS. SMITH: No, Your Honor.
22 JUDGE CURRAN: Mr. Bevere?
23 MR. BEVERE: Nothing further,
24 thank you.
25 JUDGE CURRAN: Is there anyone on
305
1 the jury who has a question for this witness?
2 If so, please raise your hand.
3 See no questions, therefore the
4 witness may step down.
5 THE WITNESS: Thank you, Your
6 Honor.
7 (Whereupon, the witness is
8 excused.)
9 JUDGE CURRAN: Mr. Bevere.
10 MR. BEVERE: Judge, it's 10 after
11 4. For me to start Detective O'Keeffe now --
12 JUDGE CURRAN: You want to bring
13 him back tomorrow?
14 MR. BEVERE: I think he is
15 available Thursday, not tomorrow, so I will
16 bring him back Thursday. I have other witnesses
17 lined up for tomorrow.
18 JUDGE CURRAN: Anything else?
19 MR. MULLIN: No, Your Honor,
20 nothing. We can put everything off the record.
21 JUDGE CURRAN: All right. Thank
22 you.
23 All right. Thank you very much,
24 Ladies and Gentlemen. We will excuse you for
25 today.
306
1 Again, I will remind you, as I'm
2 required to, don't discuss the case among
3 yourselves or anyone else.
4 Report back tomorrow at 9:30.
5 Thank you very much. If Juror Number 4 will
6 just wait so that she can ask us the question
7 privately. Thank you.
8 COURT CLERK: Off the record.
9 JUDGE CURRAN: Thank you.
10 (Whereupon, the jury is excused.)
11 JUDGE CURRAN: Juror Number 4, you
12 can come over here.
13 (Whereupon, the following sidebar
14 discussion is held.)
15 JUDGE CURRAN: Juror Number 4
16 indicated to the Court Aide, Miss Hawks, that
17 she had a question.
18 What is your question?
19 But that it was not for the
20 witness, so I asked her if she would wait.
21 What is your question? We may or
22 may not be able to answer it.
23 JUROR NUMBER 4: I was just
24 curious what happened to the last -- last
25 witness that the defendant had, the doctor.
307
1 MR. BEVERE: Oh, there we go.
2 JUDGE CURRAN: We will address
3 that. He will be back.
4 JUROR NUMBER 4: Okay.
5 MR. PARIS: Your Honor, if the
6 rest of the jury --
7 JUDGE CURRAN: Miss Hawks, if all
8 the jurors are still here, maybe we can bring
9 them back.
10 JUROR NUMBER 4: Got a little
11 heated.
12 JUDGE CURRAN: Can we do me a
13 favor and put the screen down? I can't see if
14 jurors are there, not with that screen.
15 MR. BEVERE: Dave, can you put
16 that screen down? You are better than I at
17 that.
18 JUDGE CURRAN: So we can talk to
19 the jurors. Thanks.
20 JUROR NUMBER 4: I'm sure they are
21 also curious.
22 JUDGE CURRAN: Thank you. So --
23 the other jurors we will need out too. Miss
24 Hawks went to get them.
25 (Whereupon, the jury is brought
308
1 into the courtroom.)
2 JUDGE CURRAN: Don't worry, you're
3 not in trouble.
4 It was a good question; I should
5 have thought to do that.
6 Thank you, Miss Hawks.
7 You guys thought you were
8 finished for the day, huh? We will continue on
9 the record. Ladies and Gentlemen, Juror Number
10 4 asked us a question. We're required to talk
11 with her privately because we didn't know what
12 she was going to ask us. But her question was
13 that she wondered and she thought maybe others
14 did what happened to the witness, the last
15 witness that the defense had on Thursday.
16 And I will just tell you in
17 regard to that witness that the witness will be
18 back. The witness will be back next week. You
19 heard in regard, for instance, to the witnesses
20 the defense had today one witness is outside,
21 it's too late to start, he is not available
22 tomorrow, he will be back on Thursday. And the
23 same is true with the doctor. So the doctor
24 will be back next week.
25 Okay. Thank you very much. We
309
1 thank Juror Number 4. I should have mentioned
2 that. Thank you.
3 (Whereupon, the jury is excused.)
4 MS. SMITH: Judge, can we have who
5 is up tomorrow, in what order?
6 MR. BEVERE: Okay. Tomorrow is
7 Detective DeGennaro, Anthony Iacono, Ray
8 Cieciuch, Mayor Elwell. Now, the only thing I
9 am not aware -- the only thing I'm not sure, who
10 is going to go first, DeGennaro or Iacono
11 because Anthony works for somebody else and I
12 don't know what his schedule is going to be.
13 But either one will be DeGennaro, and two will
14 be Iacono or one will be Iacono and two will be
15 DeGennaro.
16 MR. MULLIN: At some point you are
17 going to learn who goes first, right?
18 MR. BEVERE: Yeah.
19 MR. MULLIN: Can you tell us, just
20 shoot me an e-mail tonight?
21 MR. BEVERE: Yeah.
22 MR. MULLIN: Preferably sometime
23 before midnight, right?
24 JUDGE CURRAN: Who is doing the
25 cross on either one or both or --
310
1 MR. MULLIN: I think I will.
2 JUDGE CURRAN: Same person doing
3 both? What I was saying, because that would
4 make it tougher for them.
5 MR. MULLIN: Yeah, I think I'm
6 doing them.
7 JUDGE CURRAN: If you don't know,
8 that's okay.
9 MR. MULLIN: We haven't quite
10 worked it out, but I think I am going to be
11 doing them.
12 MS. SMITH: I am pretty much doing
13 all the experts, Your Honor.
14 JUDGE CURRAN: So that's an
15 easy -- anything else for tomorrow?
16 MS. SMITH: That's why you need to
17 know.
18 JUDGE CURRAN: Right, exactly.
19 Okay. Thank you. Off the record.
20 (Whereupon, the proceeding is
21 concluded at 4:15 p.m.)
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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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