Court Transcript from 4/22/13

4331 D4M9FLO1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 DAVID FLOYD, et al., 3 4 Plaintiffs, 4 5 v. 08 CV 1034(SAS) 5 6 CITY OF NEW YORK, et al., 6 7 Defendants. 7 8 ------------------------------x 8 New York, N.Y. 9 April 22, 2013 9 10:13 a.m. 10 10 Before: 11 11 HON. SHIRA A. SCHEINDLIN, 12 12 District Judge 13 13 APPEARANCES 14 14 BELDOCK LEVINE & HOFFMAN, LLP 15 Attorneys for Plaintiffs 15 BY: JENN ROLNICK BORCHETTA 16 JONATHAN MOORE 17 COVINGTON & BURLING, LLP 17 Attorneys for Plaintiffs 18 BY: KASEY MARTINI 18 GRETCHEN HOFF VARNER 19 ERIC HELLERMAN 19 BRUCE COREY 20 20 CENTER FOR CONSTITUTIONAL RIGHTS 21 Attorneys for Plaintiffs 21 BY: DARIUS CHARNEY 22 SUNITA PATEL 22 BAHER AZMY 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4332 D4M9FLO1 1 APPEARANCES (Cont'd) 2 2 MICHAEL A. CARDOZO 3 Corporation Counsel for the City of New York 3 Attorney for Defendants 4 BY: HEIDI GROSSMAN 4 BRENDA E. COOKE 5 JOSEPH MARUTOLLO 5 MORGAN D. KUNZ 6 SUZANNA PUBLICKER 6 LINDA DONAHUE 7 LISA M. RICHARDSON 7 JUDSON VICKERS 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4333 D4M9FLO1 1 THE COURT: Good morning everyone. Please be seated. 2 Mr. Charney, are you there because we're in the middle 3 of a witness? 4 MR. CHARNEY: I know you have to address -- 5 THE COURT: I think we should probably take care of 6 the other issue first. I received a letter from Mr. Quinn. Is 7 he here? 8 MR. QUINN: I am, your Honor. May I approach? 9 THE COURT: And also Mr. Moschella. 10 MR. MOSCHELLA: Good morning, your Honor. 11 THE COURT: I read your letter, Mr. Quinn. And I'm 12 torn whether to ask the questions that I thought I should ask 13 as follow-up questions or to accept your suggestion of just 14 allowing Mr. Downs to take a look at the witnesses who we would 15 have seen but for the fortuity of the order in which the 16 testimony unfolded and then ask him a few questions. 17 I guess what I would do, I would start with the first 18 of those. Let them, one by one, come up, sit on the stand for 19 a minute, maybe talk for a minute so we can hear their voice, 20 just: What's your name, what's your rank, just something like 21 that, and then ask them to leave. Ask Mr. Downs whether he 22 recognizes either of them. And then I'll consider what to do 23 from there. We'll see. But, for now, keep it very simple. 24 So which one would you like to produce first? 25 MS. GROSSMAN: Your Honor may I just be heard? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4334 D4M9FLO1 1 THE COURT: Yes. 2 MS. GROSSMAN: I just want to alert the court or 3 remind the court that there was a sequestration order in place 4 that the plaintiffs asked for. 5 THE COURT: But the plaintiff testified first in every 6 other stop and the plaintiffs all remained in the room after 7 they testified first when they heard the police officers. I 8 watched every one unfold. The plaintiff would tell his 9 version, sit in the audience, and the police officers would 10 come in. So the sequestration would never have separated -- in 11 fact, the police would have stayed out while Mr. Downs 12 testified but not vice versa. 13 All right. Can you -- who do you want to bring in 14 first. 15 MR. QUINN: We recommend Giacona first, your Honor. 16 THE COURT: Sure. 17 While we're waiting, Mr. Charney, who is the witness 18 we're in the middle of? 19 MR. CHARNEY: Assistant Commissioner McGuire who is 20 here. 21 THE COURT: Where is he? 22 Now I remember. 23 MS. PATEL: Your Honor, we stipulated something. I 24 could put it on the record while we're waiting. 25 THE COURT: He's here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4335 D4M9FLO1 1 MR. MOSCHELLA: May he, your Honor? 2 THE COURT: Please. 3 SCOTT GIACONA, resumed. 4 BY THE COURT: 5 Q. Good morning. 6 A. Good morning. 7 Q. Please be seated. 8 Detective Giacona, right? 9 A. Yes, ma'am. 10 Q. Just wanted to ask you again where are you assigned now? 11 A. Brooklyn South gang squad. 12 Q. What's your rank now? 13 A. Detective. 14 Q. Since when have you been a detective? 15 A. I got promoted February last year. 16 Q. February 2012? 17 A. Yes. 18 Q. Where is your precinct? 19 A. We work out of the Brooklyn Army Terminal. 20 Q. Now you do? 21 A. Yes. 22 THE COURT: All right. I think that's all I wanted to 23 ask for now. But one more thing maybe. 24 Mr. Downs, could you just stand up for a minute. 25 Because a photograph is different from a person. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4336 D4M9FLO1 1 Q. Do you recognize him particularly? 2 A. No, ma'am. 3 THE COURT: Okay. Thank you. 4 That's it for now. 5 If you would just remain in the area, though, I'd 6 appreciate it. 7 THE WITNESS: No problem, ma'am. 8 THE COURT: Thank you. 9 (Witness excused) 10 THE COURT: I'm sorry. What was the stipulation, 11 Ms. Patel, that you wanted to tell me? 12 MS. PATEL: Yes, your Honor. 13 The defendants raised on Wednesday that there was 14 potentially an error with Plaintiffs' Exhibit 166 which was 15 submitted for notice purposes through Joan Thompson. And so 16 I've looked at it and we would have no problem -- we discussed 17 just adding these pages to Plaintiffs' 166. I can provide the 18 court with the corrected copy. 19 So just for the record we're adding NYC-2-00025145 20 through NYC-2-25172 to Plaintiffs' Exhibit 166. 21 THE COURT: Okay. Thank you. 22 JAMES MAHONEY, resumed. 23 BY THE COURT: 24 Q. Please be seated. You're Sergeant Mahoney, right? 25 A. Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4337 D4M9FLO1 1 Q. Where are you assigned now? 2 A. 72nd precinct. 3 Q. Which borough is the 72nd precinct? 4 A. In Brooklyn. 5 Q. Which part of the Brooklyn? 6 A. Sunset Park. 7 Q. How long have you been at that particular precinct? 8 A. Since September. September of 2012. 9 Q. Where were you assigned before that? 10 A. Brooklyn South gang squad. 11 Q. Is that out of a particular area? 12 A. It's our office was in Brooklyn Army Terminal, which is 13 also in Sunset Park. But we covered mainly Brooklyn South, 14 South of Eastern Parkway basically. 15 Q. Just one other question for you. 16 THE COURT: I'd like Mr. Downs to stand. 17 Q. Seeing him in person, ask if that refreshes your 18 recollection at all. 19 THE COURT: Would you mind standing for a moment 20 Mr. Downs. Thank you. 21 Q. Do you think you recognize this gentleman? 22 THE WITNESS: No, I'm sorry, your Honor. 23 THE COURT: No. Okay. Thank you. I don't have any 24 further questions right now but I'd like you to stay in the 25 area for a little bit if you could. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4338 D4M9FLO1 1 THE WITNESS: Thank you very much. 2 THE COURT: Thank you. 3 (Witness excused) 4 THE COURT: Well, Mr. Downs, would you like to come up 5 or just answer a couple questions from there? It's up to you. 6 Thank you. 7 LEROY DOWNS, resumed. 8 BY THE COURT: 9 Q. Please be seated. Good morning. 10 So you've had an opportunity to see these two 11 individuals and hopefully hear them speak a little bit. Can 12 you tell us honestly do you think you recognize one or both of 13 them? 14 A. Yes. Both of them. 15 Q. You do? Do you say those are the two gentlemen who did 16 stop you? 17 A. Yes. 18 THE COURT: That's really all -- I think all I needed 19 to ask Mr. Downs. 20 Anybody else think they had any others questions? No. 21 Thank you so much for coming back to court. 22 Appreciate it. 23 (Witness excused) 24 THE COURT: You're free to go. 25 Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4339 D4M9FLO1 1 Given the in-court identification I don't think I have 2 any further questions of -- unless there's something you would 3 like. 4 MR. QUINN: No, your Honor. 5 MR. MOSCHELLA: Not at this time. Thank you, your 6 Honor. 7 THE COURT: Is that fair for the lawyers too? Is 8 there anything particular that wanted to do before I let them 9 go? 10 MS. GROSSMAN: Your Honor, we just reserve the right 11 after this to give consideration to what the witnesses may have 12 looked like before. So we may want to provide further 13 information at a later time, but not right now.

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