Saturday, February 15, 2014

THE VERDICT: ASSAULT ON 116th ST

The Verdict in People of the State of New York v. Michael Thomas
By Hon. Kevin McGrath, Judge
                              THE COURT:  Good morning, everyone.  Just so everybody knows, I looked at all the evidence.  I also listened to the 911 tape, and I actually watched the video from about--you mentioned 27:30.  I went back ten minutes, and I watched till one hour and twenty minutes.  So I watched the whole video again, just so you know what--you had asked me to view something.  I just want to let you know that I did in fact view that in my deliberations.
                Can you stand, sir.  On the charge of Attempted Assault in the Third Degree, I find the defendant not guilty.
                On the charge of Harassment in the Second Degree, I find the defendant guilty.
                I'm prepared to sentence the defendant today.  People, do you have any recommendations?
                              MS. ANDERSON:  Yes, your Honor.  We are recommending a long Anger Management Program, as well as a full and final order of protection for Mr. Jimenez.  We would like it to include that the defendant stay away from his place of business, which is the Manhattan Center for Science and Mathematics.
                              THE COURT:  Anything else?  Mr. Kenniff, any recommendations?
                              MR. KENNIFF:  The People's offer in this case pretrial had been, I believe, a violation at one point.  I believe there was a recommendation on a plea to the charge involving an Anger Management Program.
                I certainly think that the Court's verdict should be respected.  The Court heard the evidence.  They, the Court, has found that this is not, certainly not the Assault 3 that was originally charged in the complaint, not even the lesser B Misdemeanor, Attempted Assault in the Third Degree.
                I think, in light of that, the Court's finding that this was merely a violation, I'm sure my client does not agree with the Court's verdict, but I know he and I respect it.  I think imposing the same sentencing conditions that the District Attorney was asking for on a plea to the charge would be somewhat dismissive of the Court's verdict.
                I don't think that there is anything in Mr. Thomas' history that indicates that he's prone to violence, or to angry outbursts, for that matter, certainly nothing heard during the course of this trial.  I said in the opening, and once again in the closing, he's a muckraker.  He's a guy who fights the system.
                Reasonable minds can certainly differ whether his approach is appropriate, or whether, you know, the system that he thinks is broken is in fact broken is not the subject of this trial.  But that is quite different from someone who has an anger problem.  
                If the Court did find that he may have harassed the complaining witness, whether he did harass the complaining witness, but I think if the Court would refer itself to the video that's in evidence, and see how he at least interacted with the assistant principals on the street, there is no indication of an angry person or a violent person at that point.  There is no indication of someone who cannot control their anger.
                The Court has found, and again, we respect that, that something happened subsequent to that that equaled harassment.  Again, that appears to be an isolated incident.  I ask, in light of that, that the Court consider sentencing my client to a mandatory surcharge.  Certainly, he's had to absorb the cost of retained counsel, the uncertainty, time and stress of a criminal case, a criminal trial.  I think that would certainly be sufficient to deter his conduct in the future.
                I have no objection to the order of protection.  The only thing is that I would ask that the Court might consider putting specificity as to the condition of where, how far my client is required to stay away from Mr. Jimenez' place of business.  I have no indication that he wants to go back to the school, particularly after this or anywhere near it, but I would ask the Court consider putting something in there as to how far away he must remain.  In other words, if he's on 113th and 3rd--
                              THE COURT:  I'm going to put--it's not on the old one, but I'm putting in the safe corridor area he has to remain away from.  That's where Mr. Jimenez has to patrol and go to.  So it's going to include the safe corridor and the school.
                People, I want you to add the safe corridor.  I think that's 116th Street from Lexington Avenue to the school.  Anything else?
                              MR. KENNIFF:  That's it.  With respect to the safe corridor provision, we don't have any objection to that per se.  I frankly don't know what that entails.
                              THE COURT:  He can't go on 116th Street.
                              MR. KENNIFF:  That's fine.  I just ask that we put that in the order, 116th Street from Lexington to Pleasant Avenue.
                              THE COURT:  Sir, do you have anything to say before I sentence you?
                              THE DEFENDANT:  No, your Honor.
                              THE COURT:  The defendant is sentenced to a conditional discharge.  The condition being ten days of community service, a final order of protection, $120 mandatory surcharge.  There is a 15-day jail alternative.
      
This is a true and accurate transcript of the above proceedings.

Next Posting: The Prisoner's Dilemma

Friday, February 14, 2014

PEOPLE'S CLOSING ARGUMENT: ASSAULT ON 116th ST

People's Closing Argument in People of the State of New York v. Michael Thomas
By Ms. Anderson, Assistant District Attorney
                              MS. ANDERSON:  When the defendant, Mr. Thomas, left the Manhattan Center for Science and Mathematics, Mr. Jimenez, the complainant in this case, gave him flowers.  Despite the contentious relationship that Mr. Thomas testified existed from the moment Mr. Jimenez started at the school, Mr. Jimenez still bore no ill will towards Mr. Thomas when he retired.
                He was merely doing his job when he took disciplinary actions against Mr. Thomas.  He couldn't turn a blind eye when he saw Mr. Thomas accessing student files that were confidential.  He couldn't turn a blind eye to the other accusations that he testified about that were leveled against Mr. Thomas.
                So Mr. Jimenez did his job as principal, and took steps to notify the appropriate department, and to discipline Mr. Thomas.  But he bore no ill will towards him.  When he left the school, he gave him flowers.
                The defendant, Mr. Thomas, would have you believe that Mr. Jimenez, and three other administrators, and staff in the school, who all worked in education for at least ten years each, are making everything up.
                Mr. Thomas testified that Mr. Jimenez grabbed his hand and then flung himself to the ground on First Avenue and 116th Street.  Mr. Thomas testified that he doesn't know what the other three people perceived Mr. Jimenez' actions to be.  But the People submit that there is a very big difference between a person grabbing someone's hand and flinging themselves to the ground, and someone being forcibly jerked towards them and struck.
                Mr. Thomas would like you to believe that these members of the New York City Department of Education, who have careers and futures to think about, would come into this courtroom and perjure themselves.  That Mr. Albetta would make a phone call to the police.  That they would commit these crimes, because that's what these actions are, crimes, because they are actors, and Mr. Jimenez' desire to take revenge on Mr. Thomas for the cartoons and blogs.
                Mr. Thomas would like you to believe that these four men would risk their characters and careers to be part of this fabrication.
                Now, undoubtedly these blogs were upsetting and humiliating, but would they risk their careers as a response?  He'd like you to believe all that.  But your Honor, that's unbelievable.
                If we have any example that a school system is not a place where some people will blindly follow what the Principal tells them to do is Mr. Thomas.  It's unbelievable that three educators would blindly go along with Mr. Jimenez to commit crimes, perjury, just because Mr. Jimenez told them to.
                To what end would all of these people be lying?  To get Mr. Thomas fired?  He already retired.  To get him to stop filing administrative grievances?  It doesn't appear to have happened.
                In fact, I would argue that the very thing you would not want to do to someone who has exercised so much control over how you're viewed by your colleagues, by your students, by your family members, is to anger that person.  As Mr. Bradley testified, the People subpoenaed him just to get him to come here and testify.
                Now, what is believable, your Honor, is that on January 10, 2013, Mr. Thomas attempted to assault Mr. Jimenez by acting as if he was going to shake his hand, jerking him hard enough to get him to lose his balance, and then striking him.
                Not only do we have the testimony of the police officer who showed up within approximately ten minutes of the attempted assault, and who testified it appears that Mr. Jimenez was in pain.  That he was grimacing, holding his shoulder.  We also have multiple eyewitnesses, and we have medical reports that are in evidence, which demonstrate that Mr. Jimenez suffered pain to his knee, his back, and his left shoulder.
                Now, defense counsel pointed out a number of what he's characterized as inconsistencies.  One person saw Mr. Thomas jerked Mr. Jimenez downward.  Another person saw Mr. Thomas jerk Mr. Jimenez upwards.  Multiple strikes, five, three, two, different characterizations, were they shoulder to shoulder, in a semicircle.
                This incident took place on January 10, 2013, and it is now September 10, 2013.  Minor inconsistencies do not mean that the attempted assault and harassment did not occur.  What it does mean is that if you ask four different people about one incident, nine months after the incident, you may get some slight differences.
                Actually, it's a mark of truth.  It's real memories of something that happened within a matter of seconds, as opposed to some plot that a bunch of people got into an office and contrived together.
                Defense counsel also spoke extensively about Mr. Thomas' credentials.  His long tenure as a teacher, and his decorated background.  The people argue that all of the eyewitnesses who testified here, people he used to work with, all of whom he said he had good relationships with, also have long careers.
                We further submit that they are credible, and if anyone has animus here, it's the defendant who was making cartoons with buttocks for heads.  It's the defendant who was directing students, not adults, to these cartoons.  Cartoons that alleged things such as adultery, sociopathic tendencies--
                              MR. KENNIFF:  Objection.  Not in evidence.
                              THE COURT:  This is summation.  I heard the evidence.
                              MS. ANDERSON:  --in these cartoons, your Honor, just because he didn't agree with these people's educational policies.  The People submit that it was the defendant, and not the eyewitnesses, and not the complainant who had the animus.
                This case is not about a principal and three witnesses making up an attempted assault to get back at a retired teacher who published demeaning blogs and cartoons.  This case is about a retired teacher who felt he was one of the power holders in the school, a man who grew to strongly dislike the administration and anyone even remotely connected to it merely because of their position in educational policies.  A retired teacher who simply could not agree to disagree with his colleagues, who had to resort to humiliating and embarrassing as Mr. Hernandez testified today.
                It's about a retired teacher who attempted to assault a Principal.  That's what this case is about.  Your Honor, the evidence proves, beyond a reasonable doubt, that on January 10, 2013, here, in the County of New York, the defendant committed the crime of Attempted Assault in the Third Degree, Harassment in the Second Degree, and that he, with intent to cause physical injury to Mr. Jimenez, attempted to cause such injury, and with intent to harass, annoy and alarm Mr. Jimenez, struck him.
                There are consequences for such actions.  The People respectfully request the Court find the defendant guilty of both charges.

Next Posting:  The Verdict

Thursday, February 13, 2014

DEFENSE'S CLOSING ARGUMENT, PART 2 OF 2: ASSAULT ON 116th ST

Part 2 of 2
Defense's Closing Argument in People of the State of New York v. Michael Thomas
By Mr. Kenniff, Attorney for the Defendant
                              MR. KENNIFF:  I think, Judge, another thing that I want to highlight for the Court, obviously the Court said it's going to review the portion of the video, the time which I directed the Court to concerning--and that time, for the record, is 27:30--showing my client handing out these cards.
                The Court will see on Defendant's B in evidence, that my client is doing this passively.  He's not accosting any of the students.  None of the students appear to be running away from him.  He has a backpack on, has glasses.  Essentially, Judge, he looks like, you know, a member of--he looks like a protester.  He doesn't look like any sort of person predisposed to violence.
                More importantly, your Honor, I ask the Court to consider what was played here in court, what's in evidence, the confrontation itself.  Consider the inconsistencies of the witnesses who didn't want to admit at first that they got within, I would submit, less than an arm's length.  Indeed, at points it looks like less than a foot length of my client.
                Think of Mr. Hernandez, who does not want to admit, while we're watching it on the screen, that they are, to some degree, surrounding my client in a semicircle.
                Look at my client's demeanor during the interaction.  There is no audio, but it doesn't look like he is screaming or yelling.  He doesn't look like someone who is sick and possessed, as Mr. Hernandez would have had us believe.  He's not gesturing with his hands.  He's not stepping in towards the individuals.
                I would submit that twice during the clip--not just once--twice my client turns to leave.  When he turns to leave the first time, Mr. Albetta steps in front of him.  When he turns to leave the second time, his path isn't obstructed, but all three individuals follow him.  Again, there is nothing on that video, no body language that can be interpreted as any way hostile by my client.
                Your Honor, that brings me to the point which I submit is the biggest defect in this case, and which lends tremendous credibility to the defense theory that this was a pre-orchestrated frame-up job.
                We have the testimony of Mr. Bradley saying that he had this ten to fifteen meeting in Mr. Albetta's office, immediately prior to beginning this investigation.  Flat out contradicted, unambiguously by Mr. Albetta, who says he encountered him, by chance, in the hallway.  He encountered Hernandez by chance.
                I would submit, that, in and of itself, is quite a coincidence, the fact that they, along with Jimenez, happen to be the subjects of this derogatory blog.  However, utterly inconsistent, irreconcilable with the testimony of Mr. Bradley regarding the meeting in the office, which never occurred.
                Again, it may not change the facts of this case, but it goes directly to the credibility of these administrators.  It shows that at least one of them was willing to invent facts while on the witness stand.
                Your Honor, I sibmit the absolute illogical testimony of Principal Jimenez, that he approached the school, goes to his designated parking spot, is advised in some form not that anybody has a gun, not that anybody has a bomb, but a teacher, who he assumed was Mr. Thomas, that he was familar with, who all witnesses essentially testified did not exhibit violence before.
                He, instead of doing the reasonable thing, leaving the car in the parking lot where he claims to be, and walking to the vicinity, in the direction of First Avenue, what does he do, your Honor, he drives his car past First Avenue.  He parks it between First and Second Avenue, where, I submit, your Honor, the evidence is consistent with him knowing exactly where my client would be, and where his three deputies would be interacting with my client.
                I would submit that the logical inferences from the testimony, from the evidence, indicate that Mr. Jimenez was lying in wait on the other side of First Avenue, the westerly side of First Avenue, watching this interaction, this discussion, this confrontation, whatever you want to call it, unfold between my client and the three subordinates who report to him, who evaluate him, whose professional careers is somewhat holding power over him.
                He's watching them, and when he sees them ushering him towards the westerly side of First Avenue and 116th Street, which is exactly where Mr. Jimenez would have been before he crossed the street, given where he said he parked his car, Mr. Jimenez made his move.  He made his move against the individual, who was frankly probably making his life miserable, in some ways, but not in a criminal way.
                He proceeded to cross the street.  He caught my client, just as my client testified, with his head down, looking at the street, put out his hand, at that point, just as Mr. Thomas testified, and I submit to you that his testimony is credible, he throws himself to the ground to fabricate this assault.  Why?  As a way of silencing Mr. Thomas.  As a way of getting back at Mr. Thomas for the problems he had caused.
                Whether they discussed it and planned it out, the three in the office, or outside the office, we know Jimenez is on the phone at some point, whether this was a situation that took on a life of its own, and the three eyewitnesses decided to fall in line with their boss, because they too have no love lost, as they told you on the witness stand, for Mr. Thomas, we will never know.
                Your Honor, I certainly am going to rap up, I know I said it was going to be short.  It's longer than I expected.
                I certainly don't want to put this Court in a position where, in order to acquit my client, the Court has to find some vast conspiracy among three or four highly ranking educators.  I have made my opinion on the evidence known to the Court, but this Court is sitting as the finder of fact.  What I would say, your Honor, there is another theory of what could have happened here.  It's also a theory inconsistent with guilt.
                Is it possible that Mr. Jimenez, crossing the street, extending his hand to my client, my client extending his hand to him, my client possibly being somewhat startled by him, may have withdrawn his hand, may have accidentally caused Mr. Jimenez to fall, and possibly during the course of the fall could Mr. Jimenez have impacted my client in some way, his elbow, his knee, or what have you?  There may be a view of the evidence that suggests that.  That's a view of the evidence that is equally inconsistent with guilt.  It's inconsistent with any intent to assault, it's inconsistent with any intent to harass.
                There is simply nothing in the facts of this case, nothing in the credible evidence and credible testimony, and in the tangible evidence, in the video and so forth, your Honor, of demonstrative evidence that would indicate that my client would have any reason, or any intention to have committed any type, or attempted to commit any type of assault on the day in question, or to harass anyone.
                Based on that, your Honor, I'm respectfully asking that my client be found not guilty as to both counts charged in the Prosecutor's Information.  Thank you.

Next Posting:  People's Closing Argument

Wednesday, February 12, 2014

DEFENSE'S CLOSING ARGUMENT, PART 1 OF 2: ASSAULT ON 116th ST

Part 1 of 2
Defense's Closing Argument in People of the State of New York v. Michael Thomas
By Mr. Keniff, Attorney for the Defendant
                              MR. KENNIFF:  I understand, your Honor, that the Court is sitting as the trier of law in this case.  In light of that, I certainly don't want to give an overly lengthy summation.
                As I indicated during the course of my opening statement, I submitted to the Court that I thought the evidence would show that each of the witnesses, with respect to the responding police officer who actually did observe the crime, would each have an interest in this case, an interest in seeing my client convicted for the alleged crimes, and would each present to the Court as having issues or biases, which I submit affected their credibility.
                I would say, your Honor, that each and every one of the four witnesses that testified as witnesses for the crime, including the complaining witness, bore that out quite clearly.
                In fact, the People elicited from their witnesses, each of their witnesses, that they were all, in varying degrees, upset.  Some said humiliated, angry about the blog which Mr. Thomas maintained.
                The defense does not deny that Mr. Thomas has been litigious towards the school, and towards, to varying degrees, the witnesses that testified in this case.  So certainly, with respect to Mr. Jimenez, we don't deny that he maintained a blog, which Mr. Jimenez and his three assistants might, quite accurately, look as disparaging, bad taste, humiliating, offensive.
                Obviously Mr. Thomas' methods for protesting what he sees is injustice at the school weren't at trial here.  What's at trial here is whether the sixty-two year old defendant, who the evidence indicates has no prior contact with the criminal justice system, would have perpetrated an assault against someone fifteen years his junior.
                While as the evidence also bore out in this case, suffering from an injury himself, and while he was essentially outnumbered, out-manned by not just Mr. Jimenez, his relative youth, but by his three deputies, all of which, the Court saw, all of which appear to be men younger than my client, who by all outward appearances seem to be in very good physical shape.
                We heard the testimony of the officer, who I submit is the only uninterested witness in this case, the only one who doesn't have an axe to grind with Mr. Thomas.
                She indicates, other than the conduct on the part of Mr. Jimenez, the sort of self-reporting of the injuries, either verbally, or grimacing, or grabbing parts of his body, that she didn't notice any visible injury on Mr. Jimenez.
                Now, that might otherwise be plausible, but when that is juxtaposed with the testimony of Mr. Jimenez, who talks about this awful blow to the head that had him seeing stars, that had him lying on the floor, that had him, along with the other injuries he mentioned, out of work for almost a month, logic would dictate that some physical manifestation of those injuries would have appeared on Mr. Jimenez and visible to, what I submit again, is the only objective witness who testified in this case.
                Even one of the People's witnesses, I believe it was Mr. Albetta testified that he also didn't notice any facial injuries.  The testimony of Mr. Hernandez, I would say was ambiguous, at best, as to whether he noticed facial injuries.  He talked about redness in the face.  I think he made a comment that he normally has a reddish complexion to begin with, words to that effect.  That is a major defect in the People's evidence, I would submit.
                There are medical records.  There is no question that the complaining witness went to the hospital.  It's interesting to note in the 911 call when, Mr. Albetta is observing these injuries, he says that the complaining witness does not need an ambulance.
                That may have been his perception at the time, a perception that might not have been accurate.  But again, coupled with the inconsistencies and direct testimony from the people and the officer that there was no visible injury, coupled further with the fact that the testimony was Mr. Jimenez, not late at the scene waiting for an ambulance to come, but him, along with his three deputies, pursued my client, at least two avenues away.
                There was testimony that my client was walking at a brisk pace.  All indications are that Mr. Jimenez was able to keep up.  So, again, it's just another reason to question the injuries.
                We have the medical reports in evidence, your Honor.  Your Honor has reviewed probably far more medical reports than I have.  I ask that you review them before delivering your verdict in this case and you will see there is nothing in those medical reports that are based on any sort of objective visible findings of the treating physicians in the emergency room.  They're all self-reported soft tissue injuries.  They can happen, but they're inconsistent with what alleged to have happened in this case.
                If you believe Mr. Bradley, you know, it's multiple blows.  It's a pull up, lifting him off the ground, essentially dropping him like a wrestling move of some sort, and then pounding over him, at least multiple times.  First it was five.  I'm sure it was, I think focused on at least three towards the end.  So those, if they occurred, would be consistent with unambiguous, open and obvious facial injury.
                I ask the Court to look at the inconsistencies,  We had four witnesses, four eyewitnesses.  No two eyewitnesses could agree on how it was that my client allegedly struck Mr. Jimenez.  According to Mr. Jimenez, it was a single blow.  He's not sure how.  According to Mr. Albetta, it was, I believe, an elbow.  According to Mr. Bradley, I believe it was five blows.  Mr. Hernandez talks about one blow, but he's not sure where, or what contacted him.
                He testified that he got in between somehow.  In a matter of seconds that this all encountered, but that he's certain that my client somewhere impacted Mr. Jimenez.  Again, inconsistencies on the actions that occurred, and inconsistencies, your Honor, that I would argue amount to reasonable doubt.
                Judge, I ask you to consider the demeanor of several of the witnesses.  Certainly, Mr. Bradley.  He was extremely animated, confrontational with defense counsel.  I submit that my questions weren't argumentative.  Several witnesses consistently answering, I don't know, I don't recall.
                Mr. Hernandez testified in an extremely jocular, animated way.  Indeed, his anger towards my client, I would submit, at certain points during cross-examination boarded on visceral, saying that my client has no right to pass out literature to this inflammatory blog.
                Judge, these are witnesses that all impress as individuals that have a bone to pick with my client.  When it's juxtaposed with my client's demeanor on the stand, which I submit is his forthrightness, who he is.
                He may be a gadfly, he may be a muckraker, but I submit to you that gadflies and muckrakers are generally disdained, not because they go and provoke physical confrontation with people, but because they are adept, adroit, indeed, some may argue sinister, in how they use the legal and administrative systems in this case.
                That's what the evidence indicates my client did.  That's who the evidence indicates my client is.  He is not a brawler.  It doesn't indicate that he is violent.  It doesn't indicate that someone at sixty-two years old is going to provoke a physical confrontation with men fifteen, twenty years his junior, all who appear outwardly to be in good health, while he's still suffering two weeks before this incident, has an MRI in his left shoulder.

Next Posting:  Defense's Closing Argument, Part 2 of 2    

Tuesday, February 11, 2014

THOMAS' CROSS-EXAMINATION, PART 2 OF 2: ASSAULT ON 116th ST

Part 2 of 2
Cross-Examination of Michael Thomas in People of the State of New York v. Michael Thomas
By Ms. Anderson, Assistant District Attorney
          Q.  You have been a teacher for a very long time, correct, Mr. Thomas?
          A.  Yes.
          Q.  As a teacher, is it part of your duty to teach students to at least have a respect for authority?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Overruled.
          A.  Yes.
          Q.  When you were in the safe corridor, you were handing out these cards about your blog, correct?
          A.  I was on 116th Street, yes.
          Q.  And when you were handing out these cards, they were directing them to your blog, correct?
          A.  Yes.
          Q.  That blog featured cartoons of all these people with buttocks as their head, correct?
          A.  At the time, yes.
          Q.  You wanted the children to go to this blog, why?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Sustained.
          Q.  Those blogs that contained derogatory images and words of other teachers, this is the blog you're directing them to, correct?
          A.  At the time, yes.
          Q.  Isn't it a fact that you made a number of allegations against Mr. Jimenez?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Overruled.
          A.  I filed numerous allegations against him with the Office of Special Investigations and with the Special Commissioner of Investigation, yes.
          Q.  And civil lawsuits, correct?
          A.  Civil lawsuits were not against him, no.  He was named as a necessary party.
          Q.  What was the result of all these filings?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Sustained.
          Q.  To your knowledge, was Mr. Jimenez ever disciplined?
                              MR. KENNIFF:  Objection
                              THE COURT:  Sustained.
          Q.  Mr. Thomas, your testimony today is basically that these four different people made up this assault, correct?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Overruled.
                              MR. KENNIFF:  Your Honor, my client hasn't testified to who made up what.  He testified to what occurred.
                              THE COURT:  He may answer the question.  Ask the question again.
          Q.  It's your testimony today that these four different persons who said they saw you assault Mr. Jimenez made that up?
          A.  To the extent that they disagree with what I said, yes.
          Q.  You testified that you specifically heard Mr. Jimenez saying, you assaulted me.  You assaulted me.  And you responded, why would you make that up; isn't that correct?
          A.  I said, are you really going to do this?
          Q.  What did you mean by that?
          A.  I guess I meant, are you really going to fake an assault?
          Q.  So you believe they were all faking an assault taking place, correct?
          A.  Yes.
          Q.  And you testified just now that you had a good relationship with three of those four people before you left, correct?
          A.  The personal relationship was good, but there is a personal and there is a business relationship.  I disagree with their policies, but there was no personal animus.
          Q.  But you testified that you had a cordial relationship with three of the four people who were at that incident, correct?
          A.  I would say a cordial relationship with all four of the people, yes.
          Q.  But you did testify earlier that you had a contentious relationship with Mr. Jimenez right from the beginning, correct?
          A.  That was in the year 2007-2008.  I was reassigned.  I came back to the school in, I believe, September 2009.  After that, I taught at Manhattan Center for two and a half years.  We had a very personal and friendly relationship.
          Q.  At that time you were on good terms when you came back?
          A.  Yes.
          Q.  Why did you leave again?
          A.  I was reassigned.
          Q.  Why were you reassigned?
          A.  I'm not really sure.  I think there were allegations against me.  It's difficult to say why.
          Q.  You were reassigned, but they didn't tell you why you were reassigned?
                              THE COURT:  Sustained.
          Q.  When you came back to the school, now your relationship is fine, and you and Mr. Jimenez get along great, correct?
                              MR. KENNIFF:  Objection.  We've been over this.
                              THE COURT:  Sustained.
          Q.  At what point did it change again that led you to want to do the blogs?
                              MR. KENNIFF:  Objection.  Asked and answered.
                              THE COURT:  Overruled.
          A.  There was no personal animus between us, but basically I was against the policies of the administration.
          Q.  This is my last question concerning this.  When you came back, for some reason you were for his policies at this point?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Sustained.
                              MS. ANDERSON:  No further questions.
                              THE COURT:  Redirect?
Redirect Examination of Michael Thomas in People of the State of New York v. Michael Thomas
By Mr. Kenniff, Attorney for the Defendant
          Q.  Mr. Thomas, is it fair to say that through the years you've instituted numerous proceedings and complaints against the administration at the MCSM school?
          A.  Against the administration and against the Department of Education, yes.
          Q.  In your opinion, Mr. Jimenez is part of the administration?
          A.  Yes.
          Q.  In your opinion, so are the assistant principals?
          A.  Yes.
          Q.  Those prior actions that you've taken concerned formal administrative complaints?
          A.  Yes.
          Q.  Lawsuits which you filed or were filed on your behalf?
          A.  Yes.
          Q.  And also maintaining a blog in which you, among other things, voiced your discontent with the way the school is being run?
          A.  Yes.
          Q.  Did any of those prior instances involve you ever initiating a physical altercation with any members of the administration at MCSM?
          A.  No.
                              MR. KENNIFF:  No further questions.
                              THE COURT:  People, recross?
Recross-Examination of Michael Thomas in People of the State of New York v. Michael Thomas
By Ms. Anderson, Assistant District Attorney
          Q.  How many people are a part of the administration, as you characterize them, Mr. Thomas?
          A.  Probably six or seven assistant principals, the principal, and then probably Mr. Hernandez is kind of part of it also.
          Q.  Were all those people subjects of your blog?
          A.  They were all mentioned in the blog, not all negatively.
          Q.  As far as the formal administrative complaints, were those ever substantiated?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Sustained.
                              MS. ANDERSON:  No further questions.

Next Posting:  Defense's Closing Argument, Part 1 of 2

Monday, February 10, 2014

THOMAS' CROSS-EXAMINATION, PART 1 OF 2: ASSAULT ON 116th ST

Part 1 of 2
Cross-Examination of Michael Thomas in People of the State of New York v. Michael Thomas
By Ms. Anderson, Assistant District Attorney
          Q.  Good afternoon, Mr. Thomas.  You used to work with Mr. Jose Jimenez, correct?
          A.  Yes.
          Q.  Can you describe what your relationship was like when you first met him?
          A.  It became contentious very early, I would say.
          Q.  When you first met him when he was a new principal, was it contentious at that point?
          A.  I think our first interaction wasn't favorable, yes.
          Q.  Why is that?
          A.  I had filed a complaint regarding Title I with the previous administration because our students at our school were not being identified as being at-risk, as required by Title I.  After about one year of proceedings, I finally got the DOE to admit that at-risk students should be identified.  I wrote a letter to Mr. Jimenez informing him of that, and that the DOE was aware of the situation at Manhattan Center.  I think he believed that I was threatening him with an audit, so we got off to a bad start.
          Q.  What was the outcome of the letter that you filed?
          A.  The DOE agreed that the at-risk students should be identified.
          Q.  So from the very beginning you felt the relationship was contentious?
          A.  Yes.
          Q.  Was there anything else that took place that you felt led to the breakdown of your relationship?
          A.  There was a time, I think it was in October of 2007, when my assistant principal of mathematics told me that he was ordered to give one of our teachers, a math teacher, an unsatisfactory observation, and he was upset about it.
                He did go ahead and proceeded to give that teacher an unsatisfactory rating.  I kind of thought to myself, as being a leader of the math department, she was a very respected colleague.  There was about thirteen of us, we wrote a letter, signed it, and gave it to the principal.
          Q.  At any time, were you disciplined while you worked at the school?
                              MR. KENNIFF:  Objection
                              THE COURT:  Overruled
          A.  There were several allegations filed against me, yes, that were substantiated by the administration.
          Q.  Were they also substantiated by the Special Commissioner of Investigation outside of the school?
          A.  One, yes.
          Q.  Which one was that?
          A.  I think the allegation was that I accessed confidential student records.  There was an Integrated Algebra course where some students were doing poorly in.  It was a two-term course.  The administration wanted to change it to a four-term course.  I had been observing the teacher of that class, and I felt the difficulty was not with the students themselves, but with the instruction.
                So before they broke it down to a four-term class and gave the students an extra year of instruction that I didn't think they needed, I thought it would be advisable to look at their math records previous to that to see if they were struggling in math or if there might have been some instructional problems.
          Q.  Were there any people who were in place, whose job it was to look at these kinds of things?
                              THE COURT:  Sustained.
          Q.  How did you access these confidential files?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Sustained.  A complaint was filed against you.  What happened?  Were you suspended?
                              THE WITNESS:  No, they substantiated the allegations, but no disciplinary action.
          Q.  You also worked with Mr. Daniel Albetta, correct?
          A.  Yes.
          Q.  What was your relationship like with him while you were at the school?
          A.  It was friendly, cordial.
          Q.  You did start, in fact, start to write a blog about Mr. Albetta; is that correct?
          A.  After I retired, yes.
          Q.  Even though you say you had a friendly relationship while you were at the school, correct?
          A.  Yes.
          Q.  Why did you include him in those blogs?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Overruled.
          A.  I think there were problems with the administration of the school.  He was part of the administration of the school, and so I included him in the blog.
          Q.  And what specifically did he do wrong in the administration that prompted you to write the blog?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Sustained.
          Q.  When you say you had a problem with the administration, particularly with Mr. Albetta, is it because he worked closely to Mr. Jimenez?
                              MR. KENNIFF:  Objection:
                              THE COURT:  Overruled.
          A.  I would say that he furthered a lot of Principal Jimenez' policies, yes.
          Q.  That you didn't agree with, correct?
          A.  Yes.
          Q.  And you also worked with Mr. Brian Bradley, correct?
          A.  Yes.
          Q.  How would you describe your relationship with Mr. Bradley while you worked with him at the school?
          A.  Cordial, friendly.
          Q.  But you, again after you retired, decided to include him in your cartoons and blogs?
          A.  Yes.
          Q.  Why did you include him?
          A.  Same thing as with Mr. Albetta.  He basically furthered the policies of the administration which I didn't agree with.
          Q.  But he'd never done anything personal to you, correct?
          A.  No.
          Q.  He merely just practiced some educational policies that you didn't agree with, correct?
          A.  Yes.
          Q.  As to Mr. Dennis Hernandez, you also worked with him while you were at the school?
          A.  Yes.
          Q.  What was your relationship like with him?
          A.  Cordial, friendly.
          Q.  Did you know him very well?
          A.  No.
          Q.  Did you have conversations with him while you worked at the school?
          A.  Not so much.  I just knew from UFT meetings that he was very pro-administration, more or less a protege being mentored by Mr. Albetta.
          Q.  But you never had any negative encounters with him, right?
          A.  No.
          Q.  He'd never done anything to you, correct?
          A.  No.
          Q.  But yet you included him in your blogs and cartoons because he was close to the administration that you didn't agree with, correct?
          A.  Yes.
          Q.  What did you think about the future of the school after you left?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Sustained.
          Q.  Mr. Thomas, you have expressed here some concerns that you had about the school and its direction, correct?
          A.  Yes.
          Q.  What were those concerns?
                              MR. KENNIFF:  Objection.
                              THE COURT:  Sustained.
          Q.  You had some pain with your left shoulder, correct?
          A.  Yes.
          Q.  Were you incapable of using it on January 10, 2013?
          A.  Not incapable of using it, just limited strength, limited range of motion.
          Q.  Are you left-handed or right-handed?
          A.  Right-handed.
          Q.  What hand do you generally shake with?
          A.  Right hand.
          Q.  And that day when you saw Mr. Jimenez crossing the street, you shook with your right hand, correct?
          A.  I extended my right hand, yes.
          Q.  Did you in fact shake his hand?
          A.  We didn't really shake.  Like I said, he grabbed my hand and then he fell to the ground.
          Q.  What did you do after he fell to the ground?
          A.  Initially, after he spoke and the assistant principals spoke, I said, are you really going to do this?  They didn't respond.  There was a gentleman standing off to the side.  I asked him if he had seen anything, and he just shrugged his shoulders.  Then I started walking west on 116th Street.
          Q.  Would you describe your walking as brisk?
          A.  I was trying to walk slow, but I think I was probably walking my normal rate of speed.
          Q.  So you weren't walking briskly then?
                              THE COURT:  What is your normal rate of speed?
                              THE WITNESS:  Three miles per hour.

Next Posting:  Cross-Examination of Mr. Thomas, Part 2 of 2

Sunday, February 9, 2014

THOMAS' DIRECT EXAMINATION, PART 2 OF 2: ASSAULT ON 116th ST

Part 2 of 2
Direct Examination of Michael Thomas in People of the State of New York v. Michael Thomas
By Mr. Kenniff, Attorney for the Defendant
          Q.  As you started to cross the street at First Avenue, what direction were you heading?
          A.  I was heading west.
          Q.  What, if anything, occurred as you started to cross the street?
          A.  I was actually looking more down on the ground rather than straight ahead, and I saw a hand extended towards me.  I assumed it was either a former colleague or possibly a student, so reflex action, I raised my hand up to shake the person's hand.  I noticed it was Principal Jimenez.  I didn't withdraw my hand, but I just kind of left it there.
                He grabbed it and kind of flung himself to the ground, to the right of me, and he started saying, why did you assault me?  Why did you assault me?  And the other assistant principals who had been following me started saying, why did you assault the principal?  Why did you assault the principal?
          Q.  When you say the other assistant principals, you're including--
          A.  I'm including Mr. Hernandez as a teacher.
          Q.  What if anything did you say in response?
          A.  I was in kind of shock myself.  I just looked at him.  I said, are you really going to do this?  Then I looked around to see if there were any witnesses.  I saw only one Latino gentleman standing on First Avenue.  I asked, did you see what happened, and he just kind of shrugged.  I was standing in the middle of the street.  I didn't want to stay there, didn't want to be around those four individuals, so I just started walking west on 116th Street towards the train station.
          Q.  When you say you said to Mr. Jimenez, are you really going to do this, what did you mean?
          A.  I didn't really say it just to him, I guess I said it to the whole group of them, are you really going to do this?  Are you really going to fake an assault, I guess is what I was saying.
          Q.  Then you proceeded to walk in a westerly direction?
          A.  Yes.
          Q.  Did you have a destination in mind?
          A.  I was walking towards the train station, but I did not want to reach the train station.  I wanted not to be standing there.  I knew they were going to call the police, or I saw them call the police, assumed that was going to happen.  It did not seem promising to just be standing there.  I thought it would be better moving in a different direction, and I stopped when the police came.
          Q.  When you came in contact with Mr. Jimenez' hand, did you pull your arm away in any sort of abrupt motion?
          A.  No.  He grabbed it with both hands and kind of flung it off to the side.
          Q.  Did you ever punch Mr. Jimenez?
          A.  No, sir.
          Q.  Did you ever elbow Mr. Jimenez?
          A.  No.
          Q.  Did you ever knee him?
          A.  No.
          Q.  Did any part of his body, perhaps inadvertently, come in contact--
          A.  Actually, when he threw himself to the ground, he was at least five to ten feet away from me by the time he hit the ground.
          Q.  At any point during this encounter, did you notice any visible injuries on Mr. Jimenez?
          A.  No.
                              MR. KENNIFF:  No further questions.  Actually, one other question.
                              THE COURT:  Take your time.
          Q.  You mentioned that you are 62.  When is your birthday?
          A.  October 6, 1951.
          Q.  This incident occurred January 10, 2013?
          A.  Yes.
          Q.  So you would have been 62 at the time of this incident?
          A.  Yes.
          Q.  Prior to this incident, did you have any health issues?
          A.  Approximately a year before, I think it was in February of 2012 or so, I had a large tear in a rotator cuff in my left shoulder.  I had surgery for it, and rehabilitation was very slow.
          Q.  In the weeks preceding this incident, were you continuing to treat with respect to that rotator cuff injury?
          A.  I was regularly going to physical therapy.  My physical therapist didn't think that it was going well so we scheduled an MRI.  We had another MRI in December of 2012.
          Q.  Would that have been on December 28, 2012?
          A.  I believe so.
          Q.  And was that MRI conducted at Mount Sinai Radiology Associates?
          A.  I believe so, yes.
          Q.  Pursuant to that MRI, did you receive medical reports regarding that treatment?
          A.  I did receive an MRI report, yes.
          Q.  If I showed you a copy of that MRI report, would you recognize it?
                              COURT OFFICER:  Defense C, marked for identification being shown to the witness.
          Q.  I'm showing you Defendant's C.  What do you recognize that to be, sir?
          A.  It's the MRI of my left shoulder from December 28, 2012.  I think it's also the report of my physical therapist.
          Q.  Are those the reports that you received as part of the treatment which you referred to on December 28, 2012?
          A.  Yes.
          Q.  How did you come into possession of those reports?
          A.  I received one copy from my physical therapist, then I also went to the MRI clinic and got one from them.
          Q.  Just to be clear, the treatment that's reflected in the diagnosis that's reflected in those reports were made and occurred prior to this incident on January 10, 2013?
          A.  Yes.
                              MR. KENNIFF:  I ask that those reports be received in evidence.
                              THE COURT:  People?
                              MS. ANDERSON:  No objection.
                              THE COURT:  In evidence as Defense C.
          Q.  Mr. Thomas, just briefly, did the medical condition which you described, did that effect your physical ability in any way on January 10, 2013, when this incident allegedly occurred?
          A.  I had limited strength in my left arm.  I certainly didn't have the range of motion.  I couldn't raise it above 90 degrees in front of me at all.  Very limited strength.
                              MR. KENNIFF:  Thank you.  I have no further questions.
   
Defense's Exhibit C: MRI (12/28/2012) of Mr. Thomas from Mount Sinai Radiology Associates
MRI evidence for prior left shoulder rotator cuff repair.  Interstitial signal abnormality with the supraspinatus tendon.  There is an accompanying focal full-thickness insertional tear of the anterior lateral supraspinatus tendon with 0.9 cm medial retraction of torn tendon fibers.
  
Defense's Exhibit C: Physical Therapy Report (12/17/2012) for Mr. Thomas from Mount Sinai Hospital
Patient with significant restrictions in left shoulder mobility inhibiting ability to normalize performance of activities of daily living.  Patient will highly benefit from continued physical therapy.

Next Posting:  Cross-Examination of Mr. Thomas, Part 1 of 2

Saturday, February 8, 2014

THOMAS' DIRECT EXAMINATION, PART 1 OF 2: ASSAULT ON 116th ST

Part 1 of 2
Direct Examination of Michael Thomas in People of the State of New York v. Michael Thomas
By Mr. Kenniff, Attorney for the Defendant
          Q.  Good morning, Mr. Thomas.  Where in New York County do you reside?
          A.  XXX East XX Street, upper east side.
          Q.  That's between what avenues?
          A.  First and Second Avenue.
          Q.  What do you do for a living?
          A.  I'm a retired schoolteacher.
          Q.  What was your last position as a teacher?
          A.  I was a mathematics teacher at Manhattan Center for Science and Mathematics.
          Q.  How long was your teaching career?
          A.  Teaching career, all in total, 30 years.  25 years with the New York City Department of Education and 23 years at Manhattan Center.
          Q.  Prior to the New York City Department of Education, what if any teaching positions did you hold?
          A.  I joined the Peace Corps in 1982.  I taught from 1982 to 1985 in Cameroon, West Africa.  I returned from the Peace Corps and taught at a community college in Cincinnati for approximately a year and a half.
          Q.  I want to direct your attention to the early morning hours, approximately 7:30 a.m. of January 10, 2013.  Do you recall where you were and what you were doing on that morning?
          A.  Yes, I do.
          Q.  Can you please testify to that to the Court?
          A.  I arrived in the area at approximately 7:30 on the northeast corner of 116th Street and First Avenue.  I took a bus.  After I arrived I kind of walked east on 116th Street until I got to Pleasant Avenue, which is close to Manhattan Center.  I crossed the street.  I guess it was the northwest corner.  I crossed the street over to the other side of 116th Street, across from the school, and then started walking west on 116th Street.  I had some cards with my blog address that I was going to hand out to students at the time.
          Q.  And did you in fact distribute any of those cards?
          A.  Initially not so many because it was very early in the morning.  There were very few students around.  Maybe, walking west on 116th Street, I encountered about five or six students, I guess.  I, you know, asked them to take a card.
          Q.  Other than asking them to take the card, did you say anything else to them?
          A.  No, I just--basically, if they were walking by themselves and weren't occupied doing something else, like listening to music or something, I would introduce myself.  I said, my name is Mr. Thomas.  I'm a retired teacher.  I don't think the administration is acting in the best interest of the students.  I have a blog.  I'd like you to take a card.  I stood off to the side so I wasn't blocking their path.  If they were willing to take it, I handed them the card.  I said, you don't have to keep it, but if you throw it away, please throw it in the can and not on the ground.
          Q.  Did at some point during the course of that morning, did you encounter three individuals that you knew from the time of your employment at the MCSM school?
          A.  Yes, I was handing out some of my cards at the southeast corner of 116th Street and First Avenue.  I just handed out eighty cards, I had 160.  I was debating whether to hand out more.  I looked in my pocket and I looked down towards the east and I saw Mr. Albetta, Mr. Bradley and Mr. Hernandez walking towards me from where the school was from Pleasant Avenue.
          Q.  You knew who all three individuals were?
          A.  Yes.
          Q.  And you knew them to be--what were there positions at the school?
          A.  Two were assistant principals, the other was the former Dean, but I think now he's just a regular teacher.
          Q.  How old are you, Mr. Thomas?
          A.  I'm sixty-two now.
          Q.  At the time of the incident you were--
          A.  Probably sixty-one.
          Q.  What, if anything, occurred as the three individuals approached you?
          A.  I kind of approached them also.  When they first approached, Mr. Albetta came right up close to me and he just said, go the fuck away, go the fuck away, go the fuck away.  And I said, nice language, and I turned back to him.  Again he said, go the fuck away, go the fuck away, go the fuck away.
                I looked at Mr. Bradley and I asked him, are you hearing this?  He asked me if I was handing out cards about the blog.  I said, yes.  He said he thought they were defamatory and slander.  I basically disagreed.  I thought they were factually true, and we had a conversation ongoing for a while.
          Q.  Did you raise your voice during the course of the conversation?
          A.  Not at all.  I tried to stay as calm as possible.
          Q.  Did you use any profanity during the course of the conversation?
          A.  No.
          Q.  Did you ever become physically aggressive towards any of those individuals?
          A.  No.
          Q.  How long would you estimate that that encounter or conversation with those three individuals lasted?
          A.  Approximately two to three minutes.
          Q.  Did there come a point where you attempted to leave?
          A.  We were having a conversation, and it kept going on for approximately two minutes.  I said, well, regardless this is a public street.  I have the right to be here.  I believe Mr. Bradley said, we also have the right to be there.  At that point they kind of surrounded me, or I felt like I was being surrounded.  I didn't think it was going to be fruitful to stay there, so I said, okay, I'll see you tomorrow, and I started to cross the street at First Avenue.

Next Posting:  Direct Examination of Mr. Thomas, Part 2 of 2

Friday, February 7, 2014

DEFENSE'S APPLICATION FOR DISMISSAL: ASSAULT ON 116th ST

Application for a Trial Order of Dismissal by the Defense in People of the State of New York v. Michael Thomas
By Mr. Kenniff, Attorney for the Defendant
                              MR. KENNIFF:  Judge, at this time, I would move for a trial order of dismissal.  I do not believe the People have established, by credible evidence, that an assault or, I should say, attempted assault occurred in this case.
                I think what we heard was four wildly inconsistent versions of what occurred.  We have the complaining witness who is not sure where or how he got hit.  We had three different accounts from the eyewitnesses concerning whether this was a punch, whether this was an elbow, whether it was multiple punches.
                We have contradictory evidence concerning whether there was a meeting.  We have clear motivation on the part of every witness, with the exception of perhaps the police officer, to fabricate.
                I understand that those, in and of themselves may impress as factual issues, but when they rise to this level, I believe that allowing this case to go to verdict would be an injustice, and I would move to dismiss for the People failing to make out a prima facie case, even in the light most favorable to the People.
                              THE COURT:  People
                              MS. ANDERSON:  Your Honor, considering the testimony and the evidence and the people we've heard--we have four different complainants, as well as the police officer who testified here, the minor inconsistencies that Mr. Kenniff has brought up here do not rise to the level of this case being dismissed at this point.
                They were all consistent in the fact that they saw Mr. Thomas reach out his hand, jerk Mr. Jimenez to the ground, and strike Mr. Jimenez.  These inconsistencies as to whether or not which part of his body he used, whether or not he fell directly to his back, or fell to his knees first, it doesn't matter your Honor.  What does matter is the People have made out a prima facie case of Attempted Assault and Harassment in the Second.
                              THE COURT:  In the light mist favorable to the People, looking at the evidence, I'm denying the defense motions.
                Are you prepared to put on a case, counsel?
                              MR. KENNIFF:  Yes.
                              THE COURT:  Do you need a second just to talk to your client before we proceed?  Let's take a five-minute break.

Next Posting:  Direct Examination of Mr. Thomas, Part 1 of 2

Thursday, February 6, 2014

HERNANDEZ' CROSS-EXAMINATION, PART 2 OF 2: ASSAULT ON 116th ST

Part 2 of 2
Cross-Examination of Dennis Hernandez in People of the State of New York v. Michael Thomas
By Mr. Kenniff, Attorney for the Defendant
          Q.  You weren't expecting this to be a violent encounter were you?
          A.  No, definitely not expecting that, but I didn't know what to expect.
          Q.  Well you had an opportunity to interact with Mr. Thomas for a couple of minutes before this incident occurred, right?
          A.  I didn't really say anything during that.
          Q.  You were certainly with him and observed his interaction with your colleagues, Mr. Bradley and Mr. Albetta?
          A.  Yes.
          Q.  Was any part of that encounter violent?
          A.  You mean prior to Mr. Jimenez arriving?
          Q.  Yes.
          A.  No, not at all.  It was not at all hostile.  There were students walking around.  We tried everything possible to make it not hostile.  I didn't say a word.
          Q.  Mr. Thomas wasn't becoming violent or aggressive during that encounter?
          A.  Raising his voice.  Definitely raising his voice.
          Q.  Raising his voice how?
          A.  I have a right to be here.  The students have a right to know.
          Q.  Did any of your colleagues raise their voice?
          A.  No.
          Q.  Do you recall Mr. Albetta using any profanity towards Mr. Thomas during that encounter?
          A.  No.
          Q.  Do you recall anyone saying to Mr. Thomas, go the fuck away?
          A.  No.
          Q.  Was Mr. Thomas becoming aggressive with his body language or his hands in any way?
          A.  No, just raising his voice.
          Q.  When you approached Mr. Thomas on the corner, would it be fair to say that the three of you all approached him together?
          A.  That's correct.
          Q.  Would it be fair to say that you all got fairly close to him?
                              MS. ANDERSON:  Objection.  Your Honor, can he specify--
                              THE COURT:  At what point?
          Q.  During the course of the encounter, prior to the incident with Mr. Jimenez, when you were interacting with Mr. Thomas and he was raising his voice, at any point during that encounter, did you feel that you got fairly close to Mr. Thomas?
          A.  No.
          Q.  How close would you say you got?
          A.  A foot or two away from him.
          Q.  That's less than an arm's length, right?
          A.  Yes.
          Q.  Would it be fair to say that Mr. Bradley and Mr. Albetta also at times during that conversation got within a foot or two from my client?
          A.  We were all about the same distance.
          Q.  In fact, at one point, the three of you are almost around him in a semicircle?
          A.  No, that did not take place.
          Q.  What were your position relative to each other?
          A.  As we crossed 116th Street to the southeast corner, there is a check cashing place there.  We were side by side.
          Q.  During the course of this encounter, the whole time you were side by side?
          A.  His back was facing the southwest corner.
          Q.  At some point Mr. Thomas turns and walks away from you; is that correct?
          A.  No.
          Q.  That never happens?
          A.  Not until after he struck Mr. Jimenez.
                              MR. KENNIFF:  Your Honor, at this point, I'm going to ask to replay that portion of the video.
                              THE COURT:  You can do it, just as I mentioned earlier, when you're asking specific questions mention the time on the video.
 Note:  The defense video, Defendant's Exhibit B, is on the video screen and paused at approximately 40:35.
          Q.  Mr. Hernandez, you're able to see this video screen?
          A.  Yes.
          Q.  Would it be fair to say that this video depicts the southeast corner of 116th Street and First Avenue?
          A.  Yes.
          Q.  That's the corner where you and your two colleagues first interacted with Mr. Thomas, correct?
          A.  Yes.
                              THE COURT:  That's in front of the check cashing place you mentioned earlier, right?
                              THE WITNESS:  Yes.
          Q.  This individual you notice in the middle to left portion of the video with the backpack, that appears to be my client, Mr. Thomas, right?
          A.  Definitely him.
                              MR. KENNIFF:  The time frame is at 40:36.
          Q.  The individual who appears to be approaching Mr. Thomas first is who?
          A.  Looks like Mr. Bradley.
                              MR. KENNIFF:  Your Honor, I'm going to now play the tape at 40:36.
          Q.  At this point, at 40:43 there are three individuals standing within about an arm's length of my client, Mr. Thomas; is that correct?
          A.  Yes.
          Q.  And the individual in the foreground who seems to be face-to-face with Mr. Thomas at this point is who?
          A.  Mr. Albetta.
          Q.  And the middle individual?
          A.  That's Mr. Bradley.
          Q.  You are to Mr. Thomas' right?
          A.  That's correct.
          Q.  Would you agree with me now, after seeing this screen of the video, that it appears that the three of you are in a bit of a semicircle around Mr. Thomas?
          A.  I don't think so.
          Q.  You're certainly not standing shoulder to shoulder, the way you described earlier, right?
          A.  I think we're in a straight line, more or less.
          Q.  It's your testimony that this is a straight line?
          A.  Yes.
          Q.  The video is now at 40:45.  I'm stopping the video at 41:22.  Mr. Hernandez, would it be fair to say that at that point in the video Mr. Thomas turns and begins to walk in a northwesterly direction at the corner of 116th Street and First Avenue?
          A.  Yes.
          Q.  He turns away from you and your colleagues, doesn't he?
          A.  Yes.
          Q.  And you and your colleagues then proceed to follow in his direction; is that correct?
          A.  Yes.
          Q.  So when I asked you earlier if Mr. Thomas ever turned and walked away from the three of you, and you said no, would it be fair to say you were mistaken?
          A.  I was mistaken, yes.
          Q.  When you said that you and your two colleagues never followed Mr. Thomas, that was also a mistake?
          A.  Can you repeat that?
          Q.  When I asked you whether you and your colleagues ever followed Mr. Thomas from the corner, you said no.  You were also mistaken at that point, weren't you?
          A.  We did follow him, yes.
          Q.  And it was when you followed him and he began to walk in a westerly direction, towards 116th Street, it was only at that point that you saw Mr. Jimenez coming into the picture, correct?
          A.  Yes.
          Q.  And you didn't know that Mr. Jimenez was going to be coming to the scene?
          A.  No.
          Q.  And neither you nor any of your colleagues that you observed or heard told Mr. Thomas that Mr. Jimenez was about to come by?
          A.  No, I did not hear that.
          Q.  You testified that in the aftermath of the incident you had the opportunity to observe Mr. Jimenez, correct?
          A.  Yes.
          Q.  And you observed redness in his face?
          A.  Yes.
          Q.  Can you be more specific with respect to that?
                              THE COURT:  Redness where on his face?
                              THE WITNESS:  On his cheek.
          Q.  Do you recall which cheek?
          A.  I don't recall.  Right side, left side.  It happened so quick.  His face was red to begin with.
          Q.  Can you elaborate on that, when you say his face is red to begin with?
          A.  His face was red after he got hit.  I don't recall what specific side he was hit, but he did make contact with his face.  I saw the redness around this area.
          Q.  You just motioned to both of your cheeks, correct?
          A.  One or the other, yes.  As far as what side he got hit on.  
          Q.  I'm talking specifically about the redness.  Is it your testimony that his entire face looked red?
          A.  Yes.
          Q.  When you say redness, you mean that differently than swelling, correct?
          A.  It's not going to swell right away.
          Q.  Did you observe any swelling on his face?
          A.  Once we got up to Third Avenue, his face was a lot puffier.  At that point he started looking more paler.
          Q.  So you noticed a puffiness and swelling in the vicinity of Third Avenue?
          A.  Yes.
          Q.  That was very obvious, right?
          A.  Yes.
          Q.  It was something that would be readily apparent to anyone observing Mr. Jimenez?
                              MS. ANDERSON:  Objection.
                              THE COURT:  To your opinion, was it easily observable?
                              THE WITNESS:  That's my opinion, yes.
                              MR. KENNIFF: No further questions.
                              THE COURT:  Any redirect?
                              MS. ANDERSON:  Briefly.
Redirect Examination of Dennis Hernandez in People of the State of New York v. Michael Thomas
By Ms. Anderson, Assistant District Attorney
          Q.  The encounter I'm speaking specifically about, when you observed Mr. Thomas reach out his hand and jerk Mr. Jimenez down to the ground to strike him, lasted approximately how long?
          A.  It was quick.  I would say a minute, maybe less than a minute.  It was quick.
          Q.  Would you characterize it in an amount of seconds?
          A.  Thirty seconds maybe.
                              MS. ANDERSON:  No further questions.
                              THE COURT:  Any recross?
                              MR. KENNIFF:  No, thank you.

Next Posting:  Defense's Application for a Trial Order of Dismissal