Sworn Testimony of Sgt. Jones in NY v. Premo

7/29/2019 Sworn Testimony of Sgt. Jones in NY v. Premo

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DIRECT-PEOPLE-SGT. JONES1 CRIMINAL COURT OF THE CITY OF NEW YORKCOUNTY OF NEW YORK: PART JURY-4

2 X3 THE PEOPLE OF THE STATE OF NEW YORK : DOCKET NO.4

5 against : 2011NY0916056 MICHAEL PREMO,

Defendant.7 X

100 Centre Street8 New York, N.Y. 10013

February 25, 2013910 HONORABLE:11 ROBERT MANDELBAUM,12 Judge.13 APPEARANCES:

14 FOR THE PEOPLE:15 CYRUS VANCE, JR., ESQ.

DISTRICT ATTORNEY16 NEW YORK COUNTY

BY: JORGE CAMACHO, ESQ.1718 FOR THE DEFENDANT:19 MEGHAN MAURUS, ESQ.

299 BROADWAY20 NEW YORK, NEW YORK2122 YVONNE OVIEDO

OFFICIAL COURT REPORTER232425


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DIRECT-PEOPLE-SGT. JONES1 THE COURT: Call your first witness.2 MR. CAMACHO: The People call Sergeant Richard3 Jones.4 COURT OFFICER: Witness entering. Remain5 standing. Race your right hand.6 Do you solemnly swear or affirm that th e testimony yo7 are about to give is the truth, the whole truth, and8 nothing but the truth?9 THE WITNESS: Yes.

10 COURT OFFICER: Officer, please state your name,11 shield number and command, for the record.12 THE WITNESS: Sergeant Richard Jones, Manhattan13 South Task Force, Shield %4142.14 DIRECT EXAMINATION15 BY MR. CAMACHO:16 Q. Sergeant, were you working on December 17, 2011, in17 th e vicinity of West 29th Street and 7th Avenue, here in18 Manhattan, at approximately 6:00 p.m.?19 A. Yes.20 Q. Did you make an arrest that day?21 A. Yes. I didnt make an arrest. I ordered someone to22 make an arrest.23 Q. Do you recall the name of the person whose arrest you24 were in vo lv ed in ?25 A. Yes.


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DIRECT-PEOPLE-SGT. JONES1 Q. What name is that?2 A. Michael Premo.3 Q. Can you take a look around the courtroom. Do you see4 that individual?5 A. Yes.6 Q. Please point to him or her and identify a piece of7 clothing they are wearing?8 A. Hes at th e table in the middle, wearing th e sweater9 with the red, gray and black.

10 MR. CAMACIIO: Indicating th e d efe nd an t.11 Q. Can you please briefly describe what led to12 Mr. Premos arrest that day?13 A. There was an Occupy Wall Street demonstration that w14 occurring at that locat ion. The defendant was with a group of15 people , app rox ima te ly 50 people. They were told to leave th e16 location several t imes, they were in th e middle of the street o17 29th Street and 7th Avenue. After several orders to move, they18 refused to move. They were placed in pens between orange mesh19 from the east side of 29th Street and th e West side of 29th20 Street and 7th Avenue.21 Q. When youre referring to th e locat ion, thats here in22 New York county?23 A. Thats correct , yes.24 Q. What happened after those mesh barriers were up?25 A. Approximately five minutes after the mesh was put up


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DIRECT-PEOPLE-SGT. JONES1 a c o u p l e o f i n d i v i d u a l s we r e t r y i n g to b r e a k t h r o u g h th e mesh a2 th e p o l i c e officers were h o l d i n g on b o t h s i d e s .3 Q. Were you i n v o l v e d in h o l d i n g up th e mesh?4 A. No.5 Q. Were y o u r s u p e r v i s i n g officers who we r e i n v o l v e d in6 t h a t ?7 A. A c t u a l l y h o l d i n g th e me s h, n o .8 Q. What was y o u r r o l e that da y?9 A. We we r e th e s u p p o r t team o f th e arrest team t a s k

10 f o r c e . We come up to l o c a t i o n s . We g o t to th e l o c a t i o n , th e11 mesh was p u t u p . We s u p p l y th e mesh, b u t th e p o l i c e officers12 h o l d i n g th e mesh we r e n o t e x a c t l y a s s i g n e d to me.13 Q. Can you d e s c r i b e w h a t if a n y t h i n g you o b s e r v e d th e14 d e f e n d a n t d o i n g at th e t i m e that you r e s p o n d e d to th e s c e n e ?15 A. The d e f e n d a n t was o b s e r v e d by m y s e l f p u s h i n g h i s way16 t h r o u g h th e mesh to g e t o u t o f b e i n g d e t a i n e d .17 Q. What h a p p e n e d after he started to p u sh h is way t h r o u g18 th e m e a s u r e ?19 A. He p u s h e d h is way t h r o u g h th e me s h, t h e n w h a t I reca20 was he bumped i n t o a lieutenant. A u n i f o r m e d l i e u t e n a n t was21 s t a n d i n g t h e r e . The lieutenant w e n t to g r a b him to d e t a i n him,22 him a nd th e lieutenant w e n t down to th e floor. I w e n t to th e23 a s s i s t a n c e o f th e lieutenant. At that t i m e he r e f u s e d to be24 d e t a i n e d . He g o t b a c k up a nd started p u s h i n g h is way w e s t b o u n d25 on 2 9 t h Street. I fell down on him th e first t i m e . T h i s was,


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DIRECT-PEOPLE-SGT. JONES1 believe, th e second time that he fell. He was still refusing t2 be detained by stiffing his arms, pushing his way, west on to3 29th Street, and we fell a second time on to th e street.4 Q. What happened after you fell the second time?5 A. There were several cops over there. He was detained6 enough to where they placed him under arrest.7 Q. You previously testified that you ordered him to be8 arrested?9 A. Yes.10 Q. Who did you issue that order to ?11 A. One of my police officers, Ronnie Vincent.12 Q. Do you still work with Officer Vincent?13 A. Yes.14 Q. Had officer Vincent spoken with you about the15 defendant prior to your ident i fying him as someone to be16 arrested?17 A. Say that again.18 Q. Did you two speak about Mr. Premo before you issued19 th e order for Mr. Premos arrest?20 A. Absolutely not.21 Q. What happened after you told Officer Vincent to place22 Mr. Premo under arrest?23 A. He was already in handcuffs . I assisted in the24 handcuffs . He was brought by me to Officer Vincent, who at the25 t ime, I believe, had several collars. Im not sure how many.


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DIRECT-PEOPLE-SGT. JONES1 e xp la in ed to him the story briefly right a t the scene. Then I2 handed him over to O fficer Vincent who put him in the patrol3 wagon.4 Q. What happened to you after Mr. Premo was arrested?5 A. I sustained an injury to my right hand.6 Q. Where did you go after he was arrested?7 A. St. Lukes Roosevelt Hospital .8 Q. Did you seek tre atmen t th ere?9 A. Yes.

10 MR. CAMACHO: No further quest ions.11 CROSS-EXAMINATION12 BY MS. MAURUS:13 Q. Good afternoon, Sergean t Jones .14 A. Hi, how are you?15 Q. Good. How long have you been in the police force?16 A. Thirteen and a half years, plus.17 Q. Where have you been assigned?18 A. I was assigned as police officer at the 120th Precin19 in Staten Island for seven years. I got promoted with seven an

20 a half years on. I spent fourteen months in th e 5th Precinct ,21 here in Manhattan. For the last four years and approximately22 ten months in the Manhattan Sou th Task Force.23 Q. What do you do as par t of your duties at th e Manhatta24 South Task Force?25 A. Patrol supervisor .


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CROSS-DEFENSE-SGT. JONES1 Q. What is that?2 A. I am in charge of th e cops in my squad.3 Q. What type of activities does th Manhattan South do i4 particular?5 A. Manhattan South Task Force is a supplement to patrol.6 Were called for level ones, missings, crowd control . We7 specialize in any types of demonstrations, stuff like that.8 Q. Have you responded to a number -- do you respond to a9 lot of protests?

10 A. Can you define, a lot of protests.11 Q. Is that a common duty for you, to head out to do12 parades, protests?13 A. Yes.14 Q. Directing your attention to December 17th, what time15 did you arrive for duty?16 A. Can I look at my memo book?17 THE COURT: Yes.18 A. On 12/17 of 2011, I started my tour at 7:00 a.m.19 Q. Where did you report for duty?

20 A. Manhattan South Task Base.21 Q. First thing you did was roll call, close to th e first22 thing?23 A. Yes.24 Q. What were you told your days activities were going t25 be?


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CROSS-DEFENSE-SGT. JONES1 A. We were scheduled off so we were called in , ordered i2 for a Occupy Wall Street Demonstration.3 Q. Were you told anything in addition to that, or just4 youre going to go to the protest?5 A. Like I said, we are a supplement. So were on6 standby. At that particular -- during Occupy Wall Street,7 Manhattan South Task Force, is for th e most part, th e arrest8 teams.9 Q. What does that mean, to be an arrest team?

10 A. What does it mean?11 Q. I can presume, but what exactly in terms of your12 duties?13 A. If people are stepping out of line, arrests need to b14 made, someone higher up orders us to come in .15 Q. What do you do after roll call, if you remember?16 A. As far as what?17 Q. You leave roll call, youre told youre going to go t18 a protest, what did you do?19 A. We went down to Canal Street and 6th Avenue.

20 Q. How did you get there? You go in patrol cars, vans?21 A. Vans.22 Q. How many people were in your unit?23 A. How many people were in my van?24 Q. Yes.25 A. Looks like seven police officers.


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CROSS-DEFENSE-SGT. JONES1 Q. Did you take any kind of special equipment to police2 th e protest with you?3 A. Personally , no. Other than helmet, baton and flex4 cuffs.5 Q. Did you have flex cuffs with you throughout the day?6 A. I believe I did, yes.7 Q. And did you take steel barricades?8 A. No, we dont carry steel barricades.9 MR. CAMACHO: Objection.

10 THE COURT: Sustained.11 Q. Eventually, you ended up at 29th Street and 7th12 Avenue?13 A. Thats correct, yes.14 Q. And what time did you arriv e?15 A. I would say approximately 17:50, give or take.16 Q. 17:50 being 5:50 p.m.?17 A. Thats correct, 5:50 p.m.18 Q. Did you arrive before or after Occupy Wall S tree t19 protestors arrived?

20 A. I arrived they were there already, yes.21 Q. And what units or divisions were present there with22 you?23 A. Other than my unit, I cannot recall. Oh, I believe24 there were Scooter Task Force there , Manhattan South Scooter25 Task Force. At some point TARU Unit showed up.


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CROSS-DEFENSE-SGT. JONES1 Q. How many TARU officers do you remember?2 A. I dont recall seeing more than one or two.3 MR. CAMACHO: Objection.4 THE COURT: Overruled. The answer stands.5 Q. Where exactly did you position yourself? Where did6 you go when you got there?7 A. I stepped out of the van -- - there was a call fo r8 assis tance at that locat ion. We stepped out of th e van. There9 were approximately 50 plus people in th e middle of th e

10 intersection. We got out to maintain order.11 Q. When you say they were in the m iddle of th e12 intersection, they were standing right in the intersection?13 A. there were standing in th e intersection of 29th Stree14 and 7th Avenue, in th e street.15 Q. How long were they standing there?16 A. When I got there -- I would say less than five17 minutes. When I got there, they were already in th e street.18 Q. When you got there, th ere were 50 plus people on th e19 street, and the stood there fo r about five minutes?20 A. They were chanting and yelling, yes.21 Q. In th e middle of 7th Avenue?22 A. Yes.23 Q. And then what did you do?24 A. We were ordered to dispense the orange mesh, and to25 detain them on 29th Street.


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CROSS-DEFENSE-SGT. JONES

1 Q. How did you go about doing that?2 A. I did not dispense it. I could nt tell you who did3 that.

4 Q. So its your testimony that there is 50 plus people o5 7th Avenue, an orange netting was dispensed?6 A. By Manhattan South Task Force, but not by me7 personally , no.8 Q. Taking them all to a corner?9 A. No, co rra lling them in to where th ey were. If you

10 pic tu re the street, we were ordered to take the mesh. There11 were several orders issued for them to move. People refused to12 leave. Somebody, a higher ranking officer than myself ordered13 them to take the orange mesh, deta in th e people that refused to14 leave. The o fficers walked the mesh behind them on the East15 sid e of 29th Stree t, another group of officers walked them to16 the other corner of 29th Street, detaining them between on th e17 east side of 29th Stree t, north to south.18 Q. How long did all of th a t take?19 A. As far as what?20 Q. How long would you say it to ok th e police officers to21 coral all of those people?22 A. Id say several minutes.23 Q. Did you see Mr. Premo during th a t time?24 A. Yes.25 Q. Where was he?


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CROSS-DEFENSE-SGT. JONES1 A. He was standing in th e location with th e protestors.2 Q. Where?3 A. He was on -- when I observed him he was on the4 northeast corner of 29th Street .5 Q. On the sidewalk?6 A. I believe it was on the street.7 Q. So you saw him in the street before th e orange8 netting?9 A. Yes.10 Q. How long was he stan ding in th e m iddle of 7th Avenue?11 A. When I got th ere , th ere was a group of people there.12 Like I said, it was 50 of them. They were there for a few13 minutes. They were ordered several times to get off th e14 location.15 Q. You saw Mr. Premo at that time in th e m iddle of th e16 street?17 A. I saw Mr. Premo and approximately 50 other people18 standing there, yes.19 Q. Did you arrest any of them?20 A. Yes.21 Q. In the middle of th e street at that time?22 A. No.23 Q. No one got arrested at that time?24 A. At that particular t ime, no .25 Q. So you then netted everybody off, putting them on th e


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CROSSDEFENSE-SGT. JONES

1 corners. How long would you say that you put them in th e2 netting? Im sorry, Im misunderstanding. You netted them -3 A. A group of police officers took orange mesh. They4 went on the east side of 29th Street , north and west. A group5 of them went up behind them on the east side, and another group6 came up in front of them on th e west side.7 Q. On 29th Street?8 A. All on 29th Street between - north and south on the9 east side.

10 Q. At that point you re say ing theyre in th e middle of11 street?12 A. The group of people that were corral led, they refused13 to leave. They were all in the street.14 Q. No one is on th e sidewalk?15 A. They were all in the street. They were eventually16 pushed on to the sidewalk by the mesh.17 Q. At that point theyre on each corner; is tha t correct18 A. On the each corner and still on the street.19 Q. Where was Mr. Premo when you first saw him?

20 A. Mr. Premo was with a group of people that were in th e21 middle of the intersection on 7th Avenue and 29th Street .22 Q. And he stayed there? Like he stayed in th e street?23 A. When the officers came up , I couldnt tell you24 exactly that we zoomed in on him 100 percent of th e time, no.25 Q. And so how long would you say that people were in a


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1 mesh, inside the mesh?2 A. At least five minutes.3 Q. So from within th e mesh you testified that eventually4 people tried to b re ak thro ug h th e mesh?5 A. I observed people break through th e mesh.6 Q. Where did that tak e p lace ?7 A. On th e north corner of 29th Street and 7th Avenue.8 Q. Where?9 A. On th e northeast corner of 29th Street and 7th Avenue

10 on th e sidewalk.11 Q. Let me back up. Youre discussing like upwards of 5012 people corralled into a corner. So Im asking you, on the 29th13 s ide, on the 7th Avenue side, up along th e wall? Do you recall14 where?15 A. Youre mistaking what Im saying. They were not16 corralled up into a corner. The length of the mesh going from17 th e northeast corner of 29th Street, to th e southeast corner of18 29th Street. East side and west side. It went the whole lengt19 of th e City corner.

20 Q. There was mesh on both sides of that?21 A. Yes.22 Q. So there is mesh into 29th Street running th e entire23 width of 29th Street, and there is mesh along 29th Street24 bordering 7th Avenue?25 A. Thats correct.


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1 Q. Where, a lo n g that line, d id th e protestors a tte m p t to2 b re a k o u t o f th e mesh?3 A. The n o r th e a s t c o rn e r . Excuse me, th e -- y e s, thats4 c o r r e c t, th e n o r t h e a s t c o r n e r .5 Q. You have no more specificity th a n th a t? How wide6 would you sa y th e s id e w a lk is, tw e n ty f e e t?7 A. At least, y e a h .8 Q. So a lo n g that tw e n ty feet, you c a n t sa y it was9 a lo n g -- was it n e x t to where th e w a ll was, where th e end o f th

10 mesh was?11 A. Some p e o p le were b r e a k in g o u t right a g a in s t th e w a ll

12 b e lie v e th e r e is a Duane Reade right th e r e . There was some ty p

13 o f store. The initial group o f p e o p le b ro k e o u t, I b e lie v e

14 th e r e was a Duane Reade th e r e .15 Q. So a lo n g th e w a ll n e x t to th e s to r e p e o p le were16 b r e a k in g o u t?17 A. S e v e r a l p e o p le b ro k e o u t first, y e s .

18 Q. Anywhere e l s e a lo n g th a t?19 A. Yes.20 Q. Where?21 A. A p p ro x im a te ly te n to fifteen p e o p le .

22 THE COURT: B re a k in g o u t mean ing g o in g b a c k in to

23 th e street --24 THE WITNESS: Yes, p o lic e officers were h o ld in g

25 th e mesh. They were p u s h in g their way o u t o f th e mesh o n


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CR05 S-DEFENSE-SGT. JONES1 the street.2 Q. Did people successful ly break out of th e mesh at th e

3 point you said that people broke out next to th e store there?4 A. Yes.5 Q. Did peop le break out from that ten to fifteen feet in6 location?7 A. Did people successful ly break out? Define what you8 mean by successful ly break out.9 Q. Meaning they are no longer inside th e orange netting?

10 A. Yes.11 Q. How many people?12 A. That I remember, approximately, that I could recall,13 four or five.14 Q. Flow many of those people were detained, that you know15 of?16 A. The only one I know is your client. That I know17 guaranteed to be detained, yes.18 Q. When you say they tried to push their way out, how19 many people tried to push -- how many people pushed to20 successful ly overcome th e police officers?21 A. To break out of th e mesh?22 Q. Yes.23 A. About four or five that I observed. It could have24 been more.25 Q. So four or five people pushed against th e mesh,


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CROSS-DEFENSE-SGT. JONES1 o v e r c o m i n g th e p o l i c e o f f i c e r s ?2 A. T h a t I recall, y e s .3 Q. Its y o u r t e s t i m o n y t h a t one o f t h o s e p e o p l e was4 M ichael Premo?5 A. I o b s e r v e d M i c h a e l Premo, y e s .6 Q. You o b s e r v e d him p u s h i n g a g a i n s t th e mesh?7 A. Yes.8 Q. And e x p l a i n -- what h a p p e n e d , he just went head to9 head w i t h one officer, p u s h in g o v e r th e o f f i c e r ?

10 A. No, as th e o f f i c e r s a re h o l d i n g th e mesh, t h e r e is a11 little b re a k in b e t w e e n . The d e f e n d a n t p u s h e d h is way12 u nd ern ea th th e mesh, g o t l o o s e , and bumped r i g h t i n t o th e13 l i e u t e n a n t .14 Q. In o t h e r words, y ou re s a y in g he g o t down on th e15 g r o u n d and c r a w l e d from u n d e r n e a t h ?16 A. No, t h e y p u s h e d their way t h r o u g h th e mesh. You c o u l17 push th e mesh. He d i d n t go on to th e g ro u n d .18 Q. So he was p u s h i n g from th e bottom?19 A. I d o n t know w h i c h way he was p u s h i n g f r om.20 Q. You saw him come o u t from th e b o t t o m ?21 A. Yes.22 Q. So you d o n t a c t u a l l y know w h e t h e r o r n o t he was23 p u s h i n g ?24 A. Do I know he was p u s h i n g - n o, b u t he was one o f th e25 first p e o p l e to g e t o u t .


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CROSS-DEFENSE-SGT. JONES1 Q. Backing up, you didnt actually see Mr. Premo pushing2 against the netting?

3 A. I saw him break through th e netting.4 Q. I believe you testified that you saw him pushing?5 A. I said he was one of th e four or five people that got6 loose.7 Q. Its your testimony that Mr. Premo came from8 underneath th e netting; is that correct? Thats how he got out9 by crawling underneath th e netting?

10 A. Im not saying crawling undern ea th th e netting. He11 got loose from underneath th e netting. He was not on th e12 sidewalk.13 Q. How far from th e ground was th e netting? Normally it14 sits on the ground, correct?15 A. It does sit on th e ground, but a group of people are16 pushing it, and th e police officers are t rying to hold it, ther17 is some give and take.18 Q. The nett ing came up off the ground?19 A. Obviously, yes.20 Q. Mr. Premo came up from underneath that?21 A. Yes.22 Q. You dont actually know whether or not he was pushing23 A. The exact pushing, no, but if he were one of th e firs24 people out of th e netting, its safe to assume he did.25 Q. Youre presuming?


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CROSS-DEFENSE-SGT. JONES1 A. Im not presuming anything.2 Q. Did you see him push?

3 A. Im telling you I saw him break through th e nett ing.4 Q. Did you see him push?5 A. Did I see him push? I cannot recall if you seen him6 push.7 Q. You saw him crawl from underneath th e netting, thats8 what you saw?9 A. Again, I dont know your definition of crawl.

10 Q. You saw him come from underneath th e nett ing, thats11 fair to say?12 A. Yes.13 Q. At that time, when he came from underneath th e14 netting, presumably, hes crouched down a bit, right? I mean,15 he didnt come standing straight up, hes six feet tall.16 A. What do you mean?17 Q. You said wasnt crawling, what was he doing? How did18 he get from underneath th e netting? Was he on his stomach,19 standing up r ight and he walked underneath?20 A. He pushed his way, like youre on a line for footbal21 you push your way through. He bumped r ight into th e l ieutenan22 Him and th e l ieutenant went down on the ground.23 Q. So let me back you up. You said you saw him crawling24 underneath the netting?25 A. Pm not saying that -


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CROSS-DEFENSE-SGT. JONES1 THE COURT: Sustained, the officer never said2 that.

3 Q. So you say him come from underneath th e netting?4 A. Yes.5 Q. You d idn t see him pushing?6 A. I cannot recall if he was pushing or not.7 Q. When he came from underneath the netting, was he8 squatting down?9 A. No, he was try ing to flee, he was running. He was10 forcing h is way through.11 Q. And you indicated he bumped in to who?12 A. A uniformed lieutenant.13 Q. Do you know who th e lieutenant is?14 A. Lieutenant Walsh, I believe h is name is.15 Q. Describe how he ran into th e lieutenant.16 A. He pushed into th e lieutenant.17 Q. Pushed, like hands out pushed?18 A. Yes, from what I observed the lieutenant grabbed him19 and they both went down to th e ground.20 Q. So he came from underneath the netting, pushed the21 lieutenant, the lieutenant and he both fall?22 THE COURT: Sustained. Asked and answered.23 Q. Then he ran away? You testified he ran away?24 A. I never said he ran away. I observed him the whole25 t ime. He went down the first t ime, him and the lieutenant.


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1 went to go a id th e L i e u t e n a n t . As I was going to a id th e2 lieu tenan t, th e d e f e n d a n t p r o c e e d e d to a t t e m p t to g e t up a g a i n

3 and c o n t i n u e to go w e s t b o u n d on 29th S treet. Me, him and th e4 lieu tenant go down a s e c o n d t i m e . He r e f u s e d to be h a n d c u f f e d .5 We tell him to s t op resisting, h e s u n d e r arrest. He refuses.6 He g e t s up a third t i m e . Me and th e d e f e n d a n t go down on to th7 street on 29th S tree t.8 Q. How far down 29th S treet d id he ge t ?9 A. To th e c u r b , 29th S treet, w e s t b o u n d .

10 Q. And when you say he tried to flee , was he w a l k i n g ,11 r u n n i n g , j o g g i n g ?12 A. He was a t t e m p t i n g to ru n , and a l s o a t t e m p t e d to be13 d e t a i n e d by me an d th e lieu tenan t.14 Q. So you guys were basically like righ t b e h i n d him?15 A. I was on to p o f him a t two po in ts, y e s .16 Q. You i n d i c a t e d tha t you s a i d to him, s t op resisting?17 A. Yes.18 Q. Did you ind icate a n y t h i n g like , you a r e u n d e r arrest,19 o r s t o p ?

20 A. Yeah.21 Q. So you s a i d , s t o p , and he d i d n t ?22 A. I d o n t recall e x a c t l y what I s a i d .23 Q. You recall i s s u i n g words o f some kind?24 A. Yes.25 Q. So th e lieu tenan t goes down once, you go assist th e


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CROSS-DEFENSE-SGT. JONES1 l ieutenant, then he flees down 29th, and you said that you went2 down with him again. When you say you went down with him again3 what do you mean?4 A. He never fled, he never got away. This is all within5 ten feet . He goes down once, I go on top of him, we try to6 detain him, hes under arrest, he pushes his way back up. When7 I fell down the first time, he pushed his way back up, continue8 to go westbound on 29th Street , where we fell back on to 29th9 Street for th e second t ime.10 Q. When you say he resisted arrest, what did he do to tr11 to resist your arrest, that first time?12 A. As we were on top of him, he was a ttempting to get up13 and push his way to continue to go westbound.14 Q. Did he flail his arms?15 A. Yes.16 Q. Did he stiff on you, push you?17 A. He didnt push me. He flailed his arms and he stiffe18 on me.19 Q. When you fell down you said you fell down twice?

20 A. Yes.21 Q. The first time being - so Lieutenant Welsh goes down22 then you go down. Describe that? What do you mean by you go23 down?24 A. I go to assist him in detaining Mr. Premo, he gets up25 as somebody would get up off th e floor to continue to flee, and


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CROSS-DEFENSE-SGT. JONES1 as we are attempting to arrest him, we go down a second t ime.2 We detain him a second t ime.3 Q. How did you fall?4 A. Im attempting to arrest him. I fell straight down,5 hands first.6 Q. Forward?7 A. Yes.8 Q. And then you come back up and fall a second t ime.9 When you fell a second time, what did he do?

10 A. At that point there were enough police officers there11 He was detained.12 Q. How many police officers took to arrest Mr. Premo?13 A. I would say approximately three or four, that I14 remember. There could have been more there .15 Q. Office Vincent was not involved until later on?16 A. Officer Vincent was ordered to take th e arrest by me.17 Q. If you know, where was Officer Vincent during this18 whole arrest process of Mr. Premo, from when you initially saw19 Mr. Premo till when he is in handcuffs , where, if you know, is

20 Officer Vincent?21 A. I walked th e defendant to th e patrol wagon where22 Officer Vincent was. He was handed from me to Officer Vincent.23 Q. There was no interruption between that, no one else24 took control?25 A. Absolutely not .


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CROSS-DEFENSE-SGT. JONES1 Q. Youre absolutely sure that it was Mr. Premo that was2 behind the netting? There wasnt any break in that when you go

3 help Lieutenant Welsh, it wasnt somebody else?4 A. Absolutely not.5 Q. How much time would you say, total, it took you to6 place Mr. Premo under arrest, two minutes, thirty seconds?7 A. From when he fled from the nett ing until he was in8 handcuffs? I would say probably a m inute or so, give or take.9 Dont hold me to it, though.10 Q. Fair enough.11 MS. MAURUS: No further questions .12 MR. CAMACHO: Nothing further.13 THE COURT: Thank you. You may step down.14 (At this t ime, the w itn ess is exit ing th e courtroom.)15 THE COURT: Do the People wish to call any16 addit ional witnesses?17 MR. CAMACHO: We rest.18 THE COURT: Any w itn esses fo r th e h earin g, Ms.19 Morris?

20 MS. MAURUS: I do not.21 THE COURT: You rest?22 MS. MAURUS: Yes.23 THE COURT: Ill hear you.24 MS. MAURUS: With respect to the Wade issue, Im25 a little - I understand there is a chain of custody issue


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1 I dont think there is a Constitu tional issue here with2 regard to any kind of unduly suggestive identification.

3 THE COURT: Youre withdraw ing your motion, are4 you resting on the record?5 MS. MAURUS: Im resting.6 THE COURT: You want to be heard?7 MR. CAMACHO: Yes, your Honor. I accept8 counsels waiv er of the Wade issue. That does leave the9 Dunaway unadressed. However, I th ink , again, in the light

10 most favorable to the People , Sergeant Jones testim ony11 clearly estab lished his probable cause to make an arrest,12 that, namely, the fact that th e defendant had tried to13 break away from the barrier, a mesh barrier set up by NYPD14 for people refusing to disburse from the streets.15 Additionally , that he pushed at least passed , or attem pted16 to push passed the lieutenant, also giving rise to probabl17 cause for an arrest.18 THE COURT: I make the follow in g findings of19 fact, Sergeant Richard Jones works with the Manhattan Sou

20 Task Force, and began his tour on December 17 , 2011 a t 7:021 in the morning. At around 5:50 in the afternoon he arrive22 in the vicinity of West 29th Street and 7th Avenue where23 demonstration was occurring in which he observed the24 defendant, along with approximately 50 people, sta ndin g in25 the middle of th e intersection at 29th S treet and 7th


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CROSSDEFENSE--SGT. JONES

1 Avenue.2 The police ordered the crowd to leave th e middle of3 th e street several times. The crowd refused. The officer4 specifically observed th e d efendan t near th e northeast5 corner of 29th Street and 7th Avenue, in that location.6 The police th en brought out orange mesh to corral the7 demonstrators, get them on to th e sidewalks and out of th e8 roadway, and attempted to get them into th e east and west9 side of 29th Street at 7th Avenue, all of which was in New

10 York County.11 After about five minutes of the people having been12 moved behind th e orange mesh, on to th e sidewalks,13 approxima te ly four or five people attempted to break14 through th e orange mesh as the police officers were trying15 to hold them back on both sides.16 The defendant successfully pushed his way through th e17 measure by causing it to give way on th e bottom and18 slipping out underneath it so as to remove himself from th19 detention area. In coming out, he bumped into a uniformed20 l ieutenant, Lieutenant Welsh, who attempted to grab him,21 and th e defendant and l ieutenant went down on to th e22 ground.23 Serg eant Jones, having observed all of that , responde24 in an attempt to assist th e l ieutenant. The defendant25 refused to be detained and continued to attempt to try to


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CROSS-DEFENSE-SGT. JONES1 run westbound down 29th Street . Sergeant Jones fell down2 on th e d efendan t, as a result of th e defendants actions,3 and the defendant continued to flail and stiffen his arms,4 and the defendant got back to his feet . The sergeant told5 him to stop resisting, but the flailing and stiffing of th6 arms continued, such that Sergeant Jones again fell with7 th e d efendan t, and finally three or four police officers8 were able to subdue th e d efendan t and place him under9 arrest.

10 Sergeant Jones, who had maintained physical custody,11 or physical contact, rather, with th e d efendan t th roughout12 that incident , then walked th e d efendan t over to a patrol13 wagon, where Police Officer Vincent was, and told Officer14 Vincent to - handed th e d efendan t off to Officer Vincent,15 and instructed Officer Vincent to arrest th e defendant,16 telling Officer Vincent what he had observed occurring.17 As a result of th e incident just described, Sergeant18 Jones sustained injury to his hand, which necessitated his19 going to St. Lukes Hospital.20 I reach th e fo llowing conc lusion of law: There is no21 identification procedure at all here, let alone even a22 confirmatory identification. This is not a si tuation whe23 th e d efendan t was involved in some sort of incident, or24 altercation, or offense with the sergeant, after which th e25 interaction between the sergeant and th e defendant stopped


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CROSS-DEFENSE--SGT. JONES1 and th e d efe n da n t was a r r e s t e d by someone e l s e and th e2 s e r g e a n t re s p o n d e d to confirm to th e a r r e s t i n g o f f i c e r tha3 th e d efe n da n t who was in c u s t o d y was in f a c t th e d e f e n d a n t4 who h ad been th e s u b j e c t o f th e a lle g e d o ff en se . T h a t5 would b e a c o n f i r m a t o r y identification, b u t th a t is n o t a t6 all w h a t o c c u r r e d h e r e .7 Here, th e s er g ea n t h im s elf a r r e s t e d th e d e f e n d a n t and8 s i m p l y , w i t h o u t e v e r l o s i n g even p h y s i c a l c o n t a c t w i t h him9 let a l o n e s i g h t o f him, w a l k e d him o v e r to P o l i c e O f f i c e r

10 V i n c e n t and handed him o f f to P o l i c e O f f i c e r V i n c e n t . T h a11 d o e s n o t c o n s t i t u t e any identification wh ere he had to mak12 s u r e t h a t th e p e r s o n O f f i c e r V i n c e n t had now a r r e s t e d , o r13 d e t a i n e d was th e p e r s o n t h a t th e s e r g e a n t had o b s e r v e d14 g o i n g t h r o u g h th e mesh.15 H e r e , th e s e r g e a n t o b s e r v e d th e d e f e n d a n t g o i n g16 t h r o u g h th e mesh h i m s e l f , a r r e s t e d and t o o k c u s t o d y o f th e17 d e f e n d a n t and handed him o v e r to P o lic e O f f i c e r V i n c e n t .18 T h a t d o e s n o t c o n s t i t u t e any identification p r o c e d u r e a t19 all.20 It d id c o n s t i t u t e an identification, c e r t a i n l y was n o21 a c o n f i r m a t o r y o n e . In any e v e n t , th e s e r g e a n t was th e on22 who b r o u g h t th e d e f e n d a n t o v e r to P o l i c e O f f i c e r V i n c e n t ,23 handed him o v e r to him, an d t h e r e was, t h e r e f o r e , n o t h i n g24 u n n e c e s s a r i l y s u g g e s t i v e in any o f t h a t i n t e r a c t i o n in any25 e v e n t .


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1 With respect to th e Fourth Jmendment ground, Sergeant2 Jones, having observed th e defendant in the middle of th e3 street, refusing to leave after being ordered several time4 to do so, at that point had probable cause to arrest the5 defendant for violating Subdivision 5 of th e Disorderly6 Conduct statute as well as Subdivision 6.7 He was not arrested at that point , but rather was,8 with th e other people, corralled into the area behind the9 orange mesh, and th e defendants actions in refusing to10 remain in the area at that point designated and attempting11 to flee under th e mesh, trying to escape, in fact escaping12 from the mesh, further gave the sergeant probable cause to13 arrest th e defendant for at least Obstructing Governmental

14 Administration in th e Second Degree.15 In any event, th e defendants actions in pushing his16 way through and into th e l ieutenant , knocking him to th e17 ground, and continuing to flail his arms while trying to18 be, or while Sergeant Jones attempted to assist Lieutenant19 Walsh, also gave th e police further probable cause to20 arrest of the defendant for addit ional Disorderly Conduct21 actions at that point, not precluding by tumultuous22 conduct.23 For all those reasons, and for any one of those24 reasons, the police had probable cause to arrest th e25 defendant at the time. The arrest was authorized.


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CROSS-DEFENSE-SGT. JONES1 Therefore, they had probable cause to arrest him for2 resisting arrest, since they were authorized to arrest him3 at the time he flailed and stiffened h is arms, refused to4 be arrested. So th e arrest was lawful in all respects .5 Any identification procedures that may have taken place,6 although, as I said, I find that there was none. Any that7 there was not th e fruit of any unlawful arrest in8 violation. The motion to suppress is denied in all9 respects.

1011 This is certified to be a true and accurate transcript12 of th e above p roceed ings reco rded by me.13

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YVONNE OVIEDOOFFICIAL COURT REPORTER

Documents

Sworn Testimony of Sgt. Jones in NY v. Premo