Westchester Guardian.

Thursday, June 19, 2008

The Court Report
By Richard Blassberg

Judge Adler Dismisses 3 Of 4 Counts
Prosecution Witnesses Continued To Make Defense
Case For “Investigation Run Backwards”
Westchester Supreme Court, White Plains
Judge Lester B. Adler Presiding

Last Monday, June 9, the trial of former Mount Kisco Police Officer George Bubaris continued in Westchester Supreme Court. Prior to
admission of the jury to the courtroom, Judge Adler, as is routine, called upon both the Prosecution and Defense to submit any motions
or issues that needed to be heard by the Court prior to continuation of the trial proceedings.

Lead Prosecutor James McCarty spoke up, telling the Court that the Prosecution would be putting on a few more witnesses and then winding down their case, but that, “the Prosecution does not want to rest until we make this application requesting that the jury be allowed
to view that section of Mount Kisco between Rose Cleaners and the laundromat, the topography and the inter-relationship of the streets.”

McCarty went on, “We do not believe the desolate and seemingly removed aspect of the area to which Mr. Perez was taken, can be adequately portrayed without seeing it.

We would want people to be given the opportunity to get out in the area where the body was found.” Defense Attorney Andrew Quinn
responded, “I would only ask if where we are going to permit jurors to view includes the laundry, that they view the back of it as well.”

Judge Adler, recognizing some of the more obvious problems involved with granting such an application, asked of McCarty, “Weren’t there campsites in the woods? We’re going in the daytime; it was night. What about the foliage?” Assistant DA McCarty came back with “Our application is a broad-based application.” Whereupon Adler, who had called in his law clerk, Lee Spaulding, before hearing the application, indicated that he was reserving his decision until returning from lunch at 2pm.

The trial resumed with a reswearing of Prosecution witness Detective Sergeant Jeffrey Dickan, of the Bedford Police Department, who
had given some direct testimony on Friday, June 6. Putting up a large aerial photo of the relevant section of the Village of Mount Kisco, the
witness traced the supposed course taken by a Mount Kisco Police vehicle at 11:05pm the night in question based upon surveillance videos
taken by cameras at local business establishments. The account included movements supposedly by the Defendant, who Dickan described
first as “six feet four inches”, then “six foot three and 250 pounds.” Attorney Quinn began his cross-examination, asking, “You knew my
client’s height and weight because he told you.” The witness responded, “Yes.”

Quinn asked what evidence of homeless people the detective discovered at the site where Rene Perez was found dying? The detective responded, “Just tarps and debris.”

Then Quinn went into the subject of a certain black Armitron men’s wristwatch that was found at the site the day after Perez was discovered. Quinn got the detective, who led the investigation, to admit he never looked into who owned the watch; never had any DNA tests run on it; “never con-firmed if, in fact, it was the watch that Rene Perez was seen wearing in the videos from the laundromat.” He also got him to admit that he and his men never found Perez’ hat.

Then, after establishing that the distance from the laundromat to where Perez was found was merely 3.2 miles, Attorney Quinn asked Detective Dickan, “Is it fair to say that from 11:05pm, when he is seen leaving the laundromat on the video ´til he is found at 11:40pm, his
whereabouts remain unaccounted for?” Dickan responded, “Yes.”

Moving on to another subject, with a clear intention of showing the jury that, in fact, the investigation of Rene Perez’ death was run backward, Quinn remarked, “Of-ficer Dwyer makes a call at Stewart Place at 11:37pm, supposedly doing a license check.” He continues, “So
is it fair to say that Officer Dwyer’s whereabouts is unaccounted for between 11:15 and 11:42pm?” The witness explained that he had learned the facts on May 8, 2007, fully ten days after the incident.

Quinn came back with, “You knew then, on May 8, that Officer Dwyer’s whereabouts was unaccounted for?” Quinn declares, “It’s your investigation, you’re in charge; it’s your decision not to fingerprint Officer Dwyer’s patrol car.” Dickan, feeling obviously intimidated,
came back with, “Not just my decision alone; there were other people involved.” With that, Attorney Quinn asked, “Does the Bedford Police
Department have a policy of giving courtesy rides?”

Dickan, attempting to be cautious, said, “There are times.” Quinn then asked the witness, “When Mr. Perez was transported by Bedford
Police Officer Evans, he would’ve been in the back seat, unable to get out?” Detective Dickan responded, “Yes, unless the window was open.”

Quinn, changing gears once again, got the detective to admit that he had put together a timeline based on video images from Finch’s Mobil
and Rose Cleaners. And, more significantly, he got him to acknowledge that he did very little follow-up of other possible suspects. But Quinn wanted more from Detective Dickan. He went back to the black Armitron watch, getting the witness to admit that although he had the watch in his possession since the day after the incident, more than 13 months ago, he never had it checked for DNA evidence, or hair follicles, and never questioned Officer Evans as to whether he remembered Perez wearing it when he transported him to Mount Kisco.

Quinn said, “So you just operated on the theory that since you thought you saw the watch in the laundromat video on Mr. Perez, that it was his watch.” Dickan said, “Yes.”

Then, Andrew Quinn revisited the issue of Mount Kisco Police Of-ficer Dwyer’s call from Guard Hill, attempting once again to emphasize
the lead detective’s failure to follow-up, by asking if Dickan ever checked to confirm Dwyer’s reported purchase of a pack of cigarettes,
with a rephrased question. Judge Adler quickly responded with, “Sustained,” which was certainly in order and appropriate, but followed
up with, “Nice try, nice try.”


After the lunch break, the Judge denied the Prosecution’s application to transport the jury to the site where Rene Perez was found near death, as well as other relevant locations, including the laundromat.

Tuesday afternoon the last Prosecution witness, Dr. Barbara Sampson, a Medical Examiner for the City of New York, “specializing in unexpected deaths,” was back on the witness stand for cross-examination. She had made a firm argument for a punch, or a kick, as the probable source of the “concentrated bluntforce trauma that ruptured Rene Perez’ mesentery.”

Attorney Quinn returned to the issue of chemo-dilution, a critical one because it spoke to the question of how long it would take for Perez’
blood hemoglobin level to drop to the level it was at.

In responding, Dr. Sampson spoke about “the constellation of evidence” and admitted having gone to the scene.

Quinn asked if she saw rocks at the site where Perez was found. Sampson replied, “I didn’t see a rock that perfectly fit the injury.” However, Quinn got the witness to acknowledge that Perez had a “recent abrasion” of his knee, and “two minor abrasions to his nose,” suggesting the very real possibility he had suffered a fall.

Quinn asked, “In reading through his medical record, did you learn that Mr. Perez had numerous incidents of falling down?” Sampson responded, “I noted several hospital visits for injuries from falling down.”

In response to Mr. Quinn’s inquiry into her compensation, Sampson said, “I am here today as a favor to Westchester County from the New York City Medical Examiner’s Office. My testimony is not for sale. I am being paid my regular salary to be here.” With that, cross-examination was concluded and ADA McCarty rose and told the Court, “The People rest.”

At that point, Defense counsel Andrew Quinn proceeded to make a motion for a Trial Order Dismissal, a traditional, but not mandatory, defense motion upon the completion of the Prosecution’s case, predicated on the theory that the People have failed to make out a case that establishes each and every element of the charged offenses, even when viewed in a light most favorable to the Prosecution. Quinn told the Court, “The evidence is, at best, circumstantial. But, at best, it is insufficient. We have received no credible evidence that Rene Perez was ever in Mr. Bubaris’ police car; if you believe it’s a police car in the Peltz Tape.

“He never told Officer Dwyer anything other than that he had given Rene Perez a ride. He never said he struck him. He never said he abandoned him. He never said he took him beyond his will.

“Until the People make out manslaughter, the People must prove intentional bluntforce trauma. Even if you accept Dwyer’s statement,
there is no nexus to my client. There is no DNA in the rear of my client’s police car, even though Perez has a bleeding nose and we see him at the laundromat rubbing his nose. “Even if you accept all of their medical evidence, there is still 25 to 35 minutes that the Prosecution fails to make any connection with my client. As regards Count Two, Unlawful Imprisonment In The First Degree, there is no way it was a non-consensual act.

“If ever there was an appropriate case for a Trial Order Dismissal, this is it; it’s conjecture based on conjecture.” Assistant District Attorney Mc- Carty responded, attempting to defend the Prosecution case based upon a reckless murder theory. Then, in response to a question
from the Judge, McCarty declared, “It is our position that we do not have to prove every element of the crimes charged.” He then further
declared, “Officer Dwyer had no personal motive in testifying against a brother officer. The People are entitled to the reasonable assumption
that the victim was taken to Byram Lake without his consent.”

The Judge asked, “Where have you proven that there is a difference between what you are alleging Mr. Bubaris did and the ride he was given by a Bedford Police officer?” The Judge further questioned the “benefit element” in the charges of Official Misconduct. Attorney Quinn’s motion and argument were no mere perfunctory gesture. He offered a well-organized, well-framed, and highly persuasive retort to the People’s presentation.

Judge Adler listened intently as did his law clerk, Lee Spaulding. And, having asked several questions of both Quinn and McCarty, he reserved his decision.

Wednesday morning the resumption of trial was delayed until 11am. Citing no fewer than four cases, Judge Adler denied Quinn’s motion as applied to Count One, Second Degree Manslaughter. Then, to the obvious dismay and surprise of the three-man Prosecution team, as well as some six other District Attorney staff, including Patricia Murphy, he proceeded to dismiss Counts Two, Three and Four; one count of Unlawful Imprisonment, and two counts of Official Misconduct as “legally insufficient”.

Analysis:

This was Les Adler at his best; a judge who hasn’t lost his legal compass and who applied the law irrespective of the pressures of public
opinion and politics. Assistant District Attorneys McCarty, Perrone, and Delohery were visibly blown away. They had truly come to trial with their “tank on empty”.