1 1 BEFORE THE NEW YORK STATE SENATE SELECT COMMITTEE TO INVESTIGATE FACTS AND 2 CIRCUMSTANCES SURROUNDING THE CONVICTION OF SENATOR HIRAM MONSERRATE 3 4 ------------------------------------------------- 5 Meeting Held in Executive Session 6 ------------------------------------------------- 7 Room 124 The Capitol 8 Albany, NY 9 November 23, 2009 5:17 p.m. 10 11 PRESIDING: 12 Senator Eric Schneiderman Chair, Senate Select Committee 13 PRESENT: 14 Senator Andrew J. Lanza 15 Senator Diane Savino 16 Senator James S. Alesi 17 Senator Andrea Stewart-Cousins 18 Senator Catharine M. Young 19 Senator John Flanagan 20 Senator Toby Stavisky 21 Senator Ruth Hassell-Thompson 22 Special Counsel Daniel Alonso 23 Minority Counsel David Lewis 24 2 1 CHAIRMAN SCHNEIDERMAN: Ladies and 2 gentlemen, welcome to the second meeting of 3 our special committee. 4 We are going to, as we discussed at the 5 last committee meeting, go into executive 6 session for this portion of the meeting. 7 And we are, however, keeping the reporter so 8 that we will have a transcript that can be 9 released after the committee's work is done 10 so that all of this ultimately will be 11 reviewable by the public. 12 And it was the sense of the committee, 13 however, that we should conduct the sessions 14 where we're going be working our way through 15 evidence in an executive session, just to 16 enable things to go more smoothly. 17 So at this time I would like to move 18 the select committee go into executive 19 session, as authorized by Public Officers 20 Law Section 105, and ask that all in favor 21 of that motion please say aye. 22 (Response of "aye.") 23 CHAIRMAN SCHNEIDERMAN: No? 24 (No response.) 3 1 CHAIRMAN SCHNEIDERMAN: The select 2 committee will now go into executive 3 session. 4 Under the Open Meetings Law, that means 5 the members of the committee and those 6 designated by the committee are permitted to 7 stay for the executive session. We asked 8 members to designate staff members who we 9 could include here, and we have Simone 10 Levine, Justin Berhaupt, Maureen DeRosa 11 here, Jerry Williams and Gerry Savage. Our 12 counsels, obviously, are included in. 13 Jessica and Kimberly, both here. And that, 14 I think, is -- oh, James. And then I think 15 that's it. That's all anyone designated. 16 John Turoski is not here, okay, but was 17 designated. 18 And then the counsel staff. We are 19 joined by Dan Alonso and David Lewis as well 20 as several other counsels from Mr. Alonso's 21 office. 22 Okay, this is going to take, we 23 estimate, about two hours. But this is 24 going to be the only real treatment that we 4 1 hope you're going to need of the evidence in 2 the trial, and it's going to be quite 3 thorough. We are hoping -- and counsel 4 spoke to Senator Monserrate's counsel today 5 and have been in communication with them. 6 The next stage of the proceeding is we have 7 offered to them and we'll try and come up 8 with a date, working with all of you -- 9 probably the week of December 7th -- for a 10 time for them to come in and present what 11 they want to present. 12 At the very least, they probably will 13 come in for some oral argument. They may 14 choose just to make some issues in writing; 15 we don't know. So that meeting may or may 16 not be taking place, but we'll be working 17 with you to try to meet and the week of the 18 7th. 19 After that, depending on what they 20 offer, we will convene again, decide if the 21 members of the committee feel that we need 22 to go out after any more evidence. And if 23 we do, we will do that. If not, we will 24 discuss the report and the conclusions. 5 1 And we requested of counsel that they 2 provide us with some information to help 3 guide us -- discussions of the standards 4 that have been used, the considerations that 5 have been brought to bear when other 6 legislative bodies have had similar cases 7 before them to inform our judgment. 8 Senator Lanza. 9 SENATOR LANZA: We're in executive 10 session? 11 CHAIRMAN SCHNEIDERMAN: We are. 12 SENATOR LANZA: Well, we have 13 evidence to see, let's go to it. 14 CHAIRMAN SCHNEIDERMAN: Any other 15 committee members have points, 16 counterpoints, complaints about the 17 governor? 18 SENATOR SAVINO: Are we taking him up 19 here too? 20 CHAIRMAN SCHNEIDERMAN: No. 21 So we're ready to go, Mr. Alonso. 22 SPECIAL COUNSEL ALONSO: Thanks, 23 Mr. Chairman. I'm going to try to do a lot 24 in our limited time tonight. 6 1 Good evening, everybody. It's good to 2 be back. We are -- what we're trying to do 3 tonight is to present to you -- what I've 4 tried to do in presenting this PowerPoint is 5 to present a dispassionate and balanced view 6 of the evidence presented at Senator 7 Monserrate's criminal trial that concluded 8 last month. 9 You all have the entire record in your 10 possessions, and now my associate is going 11 to hand out to you the last piece that we've 12 that we have. We sent each of you, I don't 13 know if it was a CD or DVD containing all 14 the transcripts and all of the prosecution 15 exhibits. The defense exhibits, 16 unfortunately, that Senator Monserrate's 17 lawyers are -- they have made it very clear 18 they are not cooperating with us in the 19 slightest, including they are not giving us 20 the public record defense exhibits which are 21 in their custody. The court puts them in 22 their custody. 23 So what we have is the not-as-good 24 copies that the district attorney's office 7 1 gave us, which you have that's being handed 2 out to each of the Senators. Those are hard 3 copies of the best we could do with the 4 defense exhibits. 5 Now, in the interests of time, I don't 6 plan to go to the court to ask for an order 7 ordering defense counsel to turn over the 8 defense exhibits to us. I think we would 9 win that motion, but I think we don't need 10 the time or expense. If they want to 11 present something to us here, they'll have 12 the opportunity to do that. 13 So what I'd like to just caution you is 14 that everything I'm going to say tonight, 15 which is being recorded by the stenographer, 16 is of course just a summary. I'm doing my 17 best to be balanced here. I really want to 18 present to you the evidence as it was 19 presented to Judge Erlbaum, who was the 20 trier of fact. But at the end of the day, 21 I'm just giving you my best summary. 22 You have the actual record, and I urge 23 each of you to read the actual record 24 yourselves so that you can evaluate the 8 1 testimony. 2 We've also handed out the exact pages 3 of the testimony of each of the witnesses 4 and a brief description of who each of the 5 witnesses is. At the end I'll tell you who 6 I think the four or five must-read witnesses 7 are, and I think you'll get a picture of 8 that from this presentation. 9 Before I get to the presentation, I 10 just want to say one last thing. Remember 11 that this was a criminal trial with a burden 12 of proof beyond a reasonable doubt, which 13 was very different from what we're doing 14 here. This is no longer -- this is obvious, 15 I apologize -- but no longer a criminal 16 proceeding and none of this applies to us, 17 but it will inform the presentation today. 18 Judge Erlbaum was deciding whether the 19 evidence met the very high criminal burden 20 of proof beyond a reasonable doubt. 21 We'll have plenty of time for the 22 committee to discuss the standards by which 23 it wants to proceed here, but suffice it to 24 say that the criminal standards are very, 9 1 very different. 2 So what I'd like to do is I'm going to 3 actually put up on the screen so that each 4 and every one of you can be sure to read the 5 words of Judge Erlbaum when he found Senator 6 Monserrate guilty of misdemeanor assault. 7 And I think it's important for us all to be 8 on the same page. 9 I'm not a big fan of long slides with 10 lots of text on them. The first four or 11 five slides are going to be exactly that, 12 because they're going to tell you all of the 13 words Judge Erlbaum used when he convicted 14 Senator Monserrate. 15 I'm going to tell you about our 16 investigative steps we've taken, summarize 17 the criminal proceeding, give you a 18 timeline, summarize the trial evidence, and 19 then give you a brief analysis of the 20 verdict. 21 So I believe you all know this, but so 22 we're on the same page, the conviction was 23 October 15th. It was a misdemeanor, not a 24 felony. It was based on the allegation that 10 1 he forcibly dragged Ms. Giraldo through the 2 apartment building. 3 And the physical actions that form the 4 basis of the assault misdemeanor, the 5 misdemeanor conviction, are largely recorded 6 on video surveillance from the buildings. 7 You'll be seeing that tonight. In fact, 8 you'll be seeing that right now. Lee, can 9 you play that? 10 (Video shown.) 11 SPECIAL COUNSEL ALONSO: Now, that 12 went by very fast. It's going to become 13 very clear, as we see this again, that 14 context is going to be very important. I'll 15 talk about that in a minute, but first I 16 want to show you the first-floor-hallway 17 video in slow motion so you can see exactly 18 what happened a little bit better. 19 Lee? 20 (Video shown.) 21 SPECIAL COUNSEL ALONSO: Just to give 22 you some context of what you're looking at, 23 Senator Monserrate lives on the second floor 24 of the building. At the foot of the steps 11 1 is Carolyn Louden's apartment. She is the 2 neighbor who testified. I'll go over that 3 later. Ms. Giraldo, the evidence showed, 4 rang on her doorbell when she hurried down 5 the stairs there at the end. 6 And the white object that is left at 7 the foot of the stairs is a bloody towel she 8 had next to her face which dropped when she 9 was led out into the vestibule. And in the 10 vestibule there's also some more video, 11 which you can see happens there. 12 (Video shown.) 13 SPECIAL COUNSEL ALONSO: We have that 14 in slow motion as well. 15 (Video shown.) 16 SPECIAL COUNSEL ALONSO: And just to 17 preview real briefly, the holding on that 18 she's doing, the prosecution theory was that 19 she wanted to stay and have 911 called so an 20 ambulance could come. And the defense 21 theory was that she was afraid to go to the 22 hospital because she was afraid of needles. 23 And so the senator was using force, though 24 not violence, appropriate force to take her 12 1 to the hospital for her own good. 2 So as I said, we're going to read the 3 verdict. I hope you'll bear with me. It's 4 very important to understand what, after a 5 relatively long trial for a case of relative 6 simplicity, a judge who heard all the 7 evidence found beyond a reasonable doubt. 8 One note. He's not required to do any 9 of this. All he could have done was say 10 guilty or not guilty, but he decided to make 11 these findings on the record. I'm going to 12 read them. 13 He quotes from the indictment, and he 14 then says that "Karla Giraldo was called as 15 a witness by the state. And I have 16 complimented both lawyers, both sets of 17 lawyers, for the very able way they 18 presented the case, very effective and 19 zealous advocates. I adhere to that. I 20 especially want to make reference to the 21 fact that the District Attorney Brown, I 22 thought, took the high ground by calling 23 Ms. Giraldo as a witness. And I found her 24 testimony very helpful. 13 1 "For example, she testified that when 2 she got to the premises that night -- that 3 is, to the defendant's apartment -- she was 4 not physically injured. She had no physical 5 injuries. It appears, although this is not 6 dispositive, that after she suffered 7 injuries in the apartment, not proven to be 8 assaultive beyond a reasonable doubt, but 9 suffered injuries nonetheless, very serious 10 ones, that she wanted to go by ambulance." 11 Let me stop for a minute. He is 12 referring to the fact that he has just 13 acquitted Senator Monserrate of the injuries 14 that happened in the apartment, the felony 15 injuries that happened in the apartment. 16 "And she acceded to the defendant's 17 decision that, no, I'll take you to a 18 hospital. 19 "I also note that the defendant took 20 her to a hospital in a very remote location, 21 one abutting a different county, Nassau 22 County, at the very outer limits of Queens 23 County. The injuries here, due to that in 24 my view, the state has clearly proven the 14 1 defendant's guilt beyond a reasonable doubt 2 as to the sixth count that the defendant did 3 indeed cause reckless injury to Karla 4 Giraldo. 5 "I examined the law very carefully, and 6 I think the elements are clearly made out 7 and beyond a reasonable doubt. Having come 8 to the apartment without physical injury, 9 the surveillance tape indicates not a 10 friendly nonviolent interaction, but a 11 violent and very forceful dragging of the 12 complainant -- of the, I'll call her the 13 injured person, Karla Giraldo. Pulling her, 14 pushing her, she is fighting to stay in the 15 premises. And she is a woman of slight 16 frame compared to that of the defendant. 17 And forcefully taking her from the premises 18 where 911 could have readily been called. 19 "Elmhurst Hospital was just down the 20 block and on Baxter, a few blocks further. 21 One could have walked there in seven or 22 eight minutes. An ambulance could have been 23 there in a minute or two, and she could have 24 been given care right away. 15 1 "In my view she was very -- she was 2 indeed injured, palpably so." 3 Let me stop there. The injury that the 4 state proved, that the People proved in this 5 case is not the face injury, it is the 6 injury on her arm. There were contusions, 7 there was a slight skin tear on her arm. 8 That's the injury we're talking about here. 9 "She is screaming, apparently in pain, 10 and crying and fighting to stay in the 11 premises, and that one can physically see 12 from the surveillance tape. As one can see 13 from the video surveillance, that she is 14 forcefully being pulled and pushed. She is 15 injured. There is bruising, there is 16 discoloration, black and blue marks. She 17 seems to be in substantial pain. There is 18 skin tearing. She is already in a weakened 19 state due to severe facial injuries right up 20 in the area of the eye, a horizontal injury 21 and a vertical injury, and a lot of blood. 22 One can see the bloody towels and other 23 blood areas in the apartment itself, a lot 24 of bleeding. As she is leaving, on the 16 1 surveillance tape she is holding a towel to 2 her head. 3 "She is dragged, and so forcefully that 4 the towel flies from her hand, as her leg 5 flies upward, and ends up in that hallway, 6 that she is using to try to stanch the 7 blood. She is emotionally fragile at the 8 time. She is vulnerable. She is panicky. 9 She is scared for her looks. She is scared 10 for her well-being. And indeed, she is 11 taken quite a distance over several minutes 12 to the vehicle, and over quite a distance 13 from the apartment. She is pulled away from 14 a neighbor's apartment. And she rang a bell 15 several times apparently seeking help. All 16 of the signs are that she wished to -- that 17 she wished to remain at the premises and not 18 to accompany the defendant. 19 "She was also -- injury was further 20 inflicted by an exacerbation of what had 21 happened earlier, because bleeding, for a 22 37-minute trip to a hospital abutting 23 another county, in a very sensitive area of 24 the head where perhaps sight was at risk, 17 1 whether she could know that or not -- she is 2 not a medical person, it was right by the 3 eye with lots and lots of bleeding. And 4 signs of the bleeding, that could have been 5 stanched within just a few minutes, for 37 6 minutes continued while she is taken to a 7 hospital abutting Nassau County. 8 "And accordingly, the defendant is 9 found guilty under Count 6." 10 I just wanted to make sure that we all 11 knew exactly what the judge had found. 12 Context is everything. We can see what's on 13 the videotape, and different people can draw 14 different conclusions. So it's going to be 15 important to take a look at the events that 16 happened before and after events depicted in 17 the video, including things the senator was 18 acquitted of. 19 That doesn't mean we're relitigating 20 charges of criminal conduct. We're not. 21 This is not a courtroom. But you can't 22 understand what was in the senator's mind, 23 what was in Ms. Giraldo's mind, what was 24 motivating these actions without knowing 18 1 what happened before and after. 2 So just to tell you very briefly what 3 we have done so far, we've reviewed all the 4 transcripts and all the evidence. We've met 5 with the DA's office. And I've had several 6 additional telephone calls, when I had 7 follow-up questions, with the district 8 attorney. We have met with Judge Brown 9 himself and his chief assistant and the 10 trial team. We reviewed the materials the 11 DA provided. 12 We have met with counsel for Senator 13 Monserrate, who were very open in speaking 14 to us for an hour and a half or so. They 15 are very experienced criminal defense 16 lawyers. I've known them for many years. 17 They are, as I said, absolutely not 18 cooperating with us. Nevertheless, they did 19 meet with me and give me their view 20 preliminarily of the evidence in the case 21 and also of these proceedings, which you've 22 got some flavor of from the letters I've 23 been sending you. 24 But I'll -- at the end, when we talk 19 1 about next steps, I will relay to you what 2 they have asked me to tell the committee 3 today about what they see the next steps as 4 being. 5 SENATOR FLANAGAN: Can I ask a 6 question? 7 SPECIAL COUNSEL ALONSO: Yes, 8 Senator. 9 SENATOR FLANAGAN: You said they're 10 absolutely not cooperating. I think I'm 11 understanding the distinction: They've met 12 with you and spoken with you verbally, but 13 they have been recalcitrant, to say the 14 least, in supplying documents. 15 SPECIAL COUNSEL ALONSO: Yes, 16 absolutely. 17 And I think cooperation, in the 18 criminal defense/prosecution world, is a 19 term of art. Cooperation means more than 20 just what the law requires you to do. You 21 have to actually give information when 22 asked, and they have not done that. They've 23 been very professional, and they did sit and 24 meet with us, but that's it. 20 1 MR. LEWIS: You just spoke to them a 2 little while ago, both of us did, in an 3 attempt to try to get some sense of what 4 they will participate in and how, and pretty 5 much we were stonewalled, is how I would put 6 it. 7 SPECIAL COUNSEL ALONSO: They believe 8 two things. One, this committee should 9 immediately disband. And second, if it's 10 going to continue to exist anyway, you 11 should only limit your conclusions to the 12 trial record and nothing else. 13 And I'm going to suggest that perhaps 14 there might be some other areas of evidence 15 we might want to seek. 16 I did mention in our first meeting the 17 grand jury minutes. I didn't send it 18 around, but I did send it to counsel for the 19 minority about issuing a subpoena to the 20 district attorney's office. I'm sorry, I 21 haven't been able to tell the whole 22 committee till now, but Senator Schneiderman 23 issued a subpoena, I was in a consultation 24 with Mr. Lewis to the DA's office for the 21 1 grand jury materials. 2 And we are looking for testimony, and 3 we're looking for materials that they 4 subpoenaed in the grand jury that did not 5 make it into the public record. We are -- 6 the judge is not willing to turn those over 7 just on the DA's application, so we have 8 made a motion to get those minutes and 9 materials, and that is going to be heard. 10 Unfortunately, on the same day as Senator 11 Monserrate's sentencing before the same 12 judge. That was our distant second choice. 13 We asked for a different day. 14 CHAIRMAN SCHNEIDERMAN: Let me just 15 note that there is a good written record of 16 the correspondence that you've all received 17 of our counsel's efforts to obtain documents 18 from Senator Monserrate's lawyers. And we 19 will continue to try and get -- we've issued 20 them a formal request to participate, an 21 offer to participate. I anticipate they 22 will respond in writing. 23 So we're not relying just on phone 24 calls, we want to make sure that everything 22 1 is carefully documented. The committee will 2 get all of that. 3 We discussed at the last meeting that 4 we wanted to get the grand jury testimony. 5 One of the things that I hope we will be 6 able to do at the conclusion of today's 7 meeting, and certainly in more detail after 8 we've heard from Senator Monserrate, is to 9 have a discussion amongst ourselves of what 10 other evidence the committee thinks we might 11 want to pursue, whether there would be a 12 need for counsel to talk to any of the 13 witnesses, whether there would be a need for 14 the committee to issue any other subpoenas. 15 So other than the grand jury testimony, 16 which really is necessary just to evaluate 17 what happened at the trial, and our request 18 to Senator Monserrate's attorneys to provide 19 us with information, we have not really 20 pursued any other documents or evidence at 21 this time. 22 I think that our thinking was that 23 we'll go through the trial materials today, 24 Senator Monserrate has his opportunity, and 23 1 then the committee will decide what else 2 we're going to do. 3 SENATOR LANZA: I'm just wondering 4 how we wanted to proceed today as we go 5 through this presentation. Do you want to 6 discuss each piece of evidence as we are 7 presented, or do we want to wait to the end 8 of this presentation and then discuss it? 9 SPECIAL COUNSEL ALONSO: Senator, I 10 recommend that you hear out the whole 11 presentation and maybe not even discuss the 12 actual evidence today, but have a chance to 13 reflect on it and read the portions of the 14 record that each senator believes to be 15 necessary, and then discuss whatever we need 16 to discuss at our next meeting or two 17 meetings from now. 18 SENATOR LANZA: How long is this 19 presentation? 20 SPECIAL COUNSEL ALONSO: We 21 anticipate it taking the allotted time, 22 which is we have budgeted 5:00 to 7:00. 23 SENATOR LANZA: So we've got to be 24 very copious with our notes when we see 24 1 video, as has just been presented, for us to 2 be able to discuss it in substance, given 3 that the more time that goes by, the more 4 difficult it becomes. 5 CHAIRMAN SCHNEIDERMAN: This is an 6 initial review. We're going to request that 7 certainly the verdict and other things that 8 are written out be distributed to the 9 members of the committee, and we will have 10 an opportunity to look at this again when 11 we're actually doing our consideration of 12 what to issue in our report. 13 This is not the last time we'll get a 14 chance to see the evidence and discuss it. 15 This is just the preliminary presentation of 16 evidence followed by Senator Monserrate's 17 presentation to the committee. But we're 18 certainly going to have a lengthy session to 19 discuss what we all think of the evidence, 20 and we'll have a chance to look at any 21 evidence we care to. 22 SENATOR LANZA: Any member could call 23 for a piece of evidence to be presented? 24 CHAIRMAN SCHNEIDERMAN: Absolutely. 25 1 SENATOR LANZA: That works very well. 2 MR. LEWIS: Just for your own 3 information, on the CD there is some of the 4 written evidence -- there are People's 5 exhibits in there, including crime-scene 6 photos in color, which are much easier to 7 read than what we've just seen. There is 8 also the video, although I had trouble 9 opening it. Maybe you'll be able to have 10 more success with the video than I did. 11 It may be helpful also for this 12 presentation to be given to us so that, 13 rather than writing notes as we go from 14 what's already on the screen, we can have 15 this at hand and take our notes from there. 16 I don't see any reason not to give that out 17 to members. 18 CHAIRMAN SCHNEIDERMAN: I think 19 that's fair. 20 We will also discuss our strong desire 21 for all of this to remain within the 22 committee until we are releasing all of the 23 information. And we will provide, 24 obviously, Senator Monserrate's counsel -- 26 1 we'll give them the opportunity to respond. 2 But just as we're requesting that the 3 members of the committee direct press 4 inquiries about the substance of what we're 5 discussing -- not necessarily the procedures 6 or the context, but the substance of what 7 we're discussing today, those inquiries 8 should go to Mr. Alonso -- we are going to 9 request that we keep these materials that 10 are prepared by counsel just within the 11 committee for now until we complete our 12 work. 13 SENATOR LANZA: That's a very 14 important point. Thank you. 15 MR. LEWIS: And they would be covered 16 by your senatorial privileges, so that you 17 can refuse to give them over as protection 18 as well. 19 CHAIRMAN SCHNEIDERMAN: Yes, but you 20 will be careful not to waive the privileges 21 for all the rest of us by releasing the 22 information. 23 MR. LEWIS: Please. 24 SPECIAL COUNSEL ALONSO: All right. 27 1 So the criminal proceedings. 2 He was indicted in March of this year 3 on three felony and three misdemeanor 4 assault counts. The allegation was that he 5 intentionally and recklessly caused physical 6 injuries to both the eye and the arm, as I 7 mentioned. Counts 1 through 5 related to 8 the apartment, and Count 6 related to the 9 vestibule and the hallways. 10 The trial lasted about three weeks. 11 You know about the conviction. 12 So the charge is assault in the third 13 degree. It basically says that you're 14 guilty of it if you recklessly cause 15 physical injury to another person. 16 And there's the indictment. And the 17 theory was that he forcibly dragged her by 18 the arm. That's the snippet of the 19 indictment that he was charged on. 20 The judge dismissed two of the counts 21 for not enough evidence. And just very, 22 very briefly, they were reckless assaults 23 relating to the glass in the face. 24 The ones that survived all the way to 28 1 what would have been the jury, but in this 2 case was the judge, were intentional. The 3 judge said there wasn't enough evidence for 4 someone to reasonably conclude that he 5 recklessly caused her injuries with the 6 glass, only enough that he intentionally 7 caused her injuries with the glass. And 8 then he found that it wasn't proved beyond a 9 reasonable doubt. 10 He was acquitted on those counts; two 11 were felonies, one was a misdemeanor. The 12 judge found that there was not evidence to 13 convince him beyond a reasonable doubt of 14 all the elements. 15 Basically, the issue was intent. And 16 Senator Monserrate never denied that he had 17 actually been in the apartment and the glass 18 that he brought her caused her injuries. 19 The issue was, was it an accident or was it 20 an intentional act by Senator Monserrate. 21 Sentencing is scheduled for 22 December 4th. The judge's options are 23 prison for no -- jail, rather; it says 24 "prison" incorrectly -- no more than a year. 29 1 The judge may impose a three-year 2 probationary period, or he could impose 3 something less, like a conditional 4 discharge, community service, things like 5 that. We've been told -- 6 MR. LEWIS: He could give him a split 7 sentence on the misdemeanor. 8 SPECIAL COUNSEL ALONSO: That's true, 9 he could give him some period of time in a 10 local jail and a three-year probationary 11 period. 12 MR. LEWIS: Three months. 13 SPECIAL COUNSEL ALONSO: They have 14 told us in no uncertain terms that they 15 intend to appeal promptly. And the main 16 argument is that the injuries on 17 Ms. Giraldo's arm, the bruises and the skin 18 tear, are not sufficient under the law to 19 rise to the level of the definition of 20 physical injury, which under penal law means 21 impairment of physical condition or 22 substantial pain. That's the definition. 23 And it's a legal question whether there 24 was enough evidence presented. The judge, 30 1 as you saw in the verdict, believed that 2 there was enough. The defense is going to 3 argue to the appellate court that there 4 wasn't. 5 CHAIRMAN SCHNEIDERMAN: And the judge 6 had the second theory of the extra time 7 taken. It appeared that he was -- in 8 addition to the arm, he was making a point 9 about the extra travel time with her face 10 bleeding. I don't know that that has 11 explicitly been identified as another 12 finding of injury. 13 SPECIAL COUNSEL ALONSO: He did make 14 that point. It's a good question whether he 15 has an appellate issue on that. 16 MR. LEWIS: It's received substantial 17 talk about the length of time until he got 18 to the hospital, she continued to bleed, and 19 the nature of the injury. So I read the 20 verdict and understood that to go into a 21 substantial, because that's really what the 22 challenge -- because the theory into trial 23 and summation argued that the skin tear 24 wasn't and the bruise weren't substantial, 31 1 and so the pain goes from the moment of, 2 until. 3 SPECIAL COUNSEL ALONSO: Right. She 4 never testified she was in substantial pain. 5 What the judge was referring to 6 substantially was from all these facts and 7 circumstances -- you saw her face in the 8 vestibule -- he is saying she is, at some 9 point in that, in substantial pain beyond a 10 reasonable doubt. 11 And what Mr. Lewis I think is saying is 12 that the fact that he's sort of waiting to 13 go to the further hospital may well have 14 added to that pain. 15 MR. LEWIS: Another argument they 16 made at trial was that the pain on her face 17 was from the cut near her eye, not from the 18 grabbing of her arm. 19 SPECIAL COUNSEL ALONSO: It's an 20 issue, It's something to be argued for the 21 appellate court. 22 So let me draw your attention to the 23 timeline of the events. As I said, it's a 24 relatively simple case, but it's well worth 32 1 understanding the -- 2 SENATOR STEWART-COUSINS: It's 2008. 3 SENATOR STAVISKY: It's 2008, not 4 2009. 5 SPECIAL COUNSEL ALONSO: That's 6 correct, it's wrong. It's 2008. Appreciate 7 it. Sorry about that. 8 So 2008, December 18. The incident of 9 course takes place from December 18th to 10 December 19th. Starting at 9 o'clock, 11 Ms. Giraldo had been to a party at her 12 friend's, Jesus Pena, who is an attorney. 13 She was driven there by her cousin, Jasmina 14 Rojas. 15 Between 11:30 and 12:00, Mr. Pena tells 16 us that he told her not to drive home 17 because she was too inebriated. Now, 18 Ms. Giraldo had not driven there to begin 19 with, so she wasn't going to drive home. 20 But nevertheless, that's the timeline. 21 As midnight turns, we now have the 22 cousin driving Ms. Giraldo directly to 23 Senator Monserrate's apartment. And they 24 arrive shortly after 1 a.m. 33 1 Now, the reason that we have -- I'm 2 going to talk to you about the PBA card in a 3 second. But the reason that we have an 4 exact time, 12:54 a.m., for the disposal of 5 the PBA card, but we only have shortly after 6 1 a.m. for the arrival at Monserrate's 7 apartment is because the police did not ask 8 the superintendent to preserve that portion 9 of the video. 10 And the defense actually made quite a 11 big argument about that at the trial, saying 12 if we only had that piece of the video we 13 would have been able to see just how drunk 14 she was, because she was stumbling. 15 And the superintendent said he saw that 16 piece of the video and she was in fact 17 stumbling into the building and that the 18 police officer did not ask him to record 19 that part. He didn't say he told him not 20 to, but he didn't ask him to record it. 21 SENATOR SAVINO: She couldn't have 22 gotten there after 1 a.m., though, if the 23 video of him disposing of her card says -- 24 unless she wasn't there when he found the 34 1 card? It has to be shortly before 1 a.m. 2 MR. CORTES: That's the cousin's 3 recollection. 4 SPECIAL COUNSEL ALONSO: The cousin's 5 recollection, yeah. 6 So what we're doing here -- you're 7 right. Logically, that's correct. What 8 we're doing here is we're basing it only on 9 the trial evidence. Okay? So the cousin 10 says "We got there just after 1 a.m." 11 The numbers in the brackets represent 12 the page of the transcript where that piece 13 of evidence is located. 14 MR. LEWIS: We know it's 12:54 with 15 the PBA card because there is a surveillance 16 video of him doing it, and that's 17 time-stamped. But to confuse matters, the 18 time-stamp is off about four or five 19 minutes. 20 SPECIAL COUNSEL ALONSO: It's off 13 21 minutes. So the video, the uncropped 22 version -- this is cropped just to make it 23 easier to see -- did say 12:41 a.m., but the 24 reality is it was 12:54 a.m. 35 1 MR. LEWIS: And the significant thing 2 is the testimony is approximation by the 3 witness. The video is actual time, so -- 4 SENATOR STAVISKY: So the witness is 5 incorrect. 6 MR. LEWIS: They just don't match. 7 It's not incorrect; they just don't -- 8 SENATOR STAVISKY: The witness is 9 incorrect. 10 MR. LEWIS: It's the witness's 11 estimate. 12 SENATOR SAVINO: It's the witness's 13 recollection that it was sometime after 14 1:00, but it couldn't have been. 15 SPECIAL COUNSEL ALONSO: That's 16 right. That's exactly correct. 17 And just very quickly, the PBA card was 18 the district attorney's theory of motive, 19 that the senator found -- and I'll show you 20 a picture of it -- the senator found a PBA 21 card belonging to a different officer inside 22 Ms. Giraldo's purse and he became jealous 23 and threw it away down the garbage chute. 24 SENATOR SAVINO: Was it ever 36 1 discussed how he found it? 2 SPECIAL COUNSEL ALONSO: It was in 3 her purse. I think she said it was in her 4 purse. 5 SENATOR SAVINO: But what prompted 6 him to look in her purse? 7 SPECIAL COUNSEL ALONSO: There was 8 argument by the defense, I don't remember if 9 it was evidence, but he had -- it was the 10 time of year when the new PBA cards are 11 issued, and he was trying to replace the old 12 one that he had given to her with a new one. 13 SENATOR SAVINO: And he went into her 14 purse. 15 CHAIRMAN SCHNEIDERMAN: We have to be 16 very careful here, because we are proceeding 17 to review the record of the trial. And when 18 Mr. Alonso says this was a defense argument, 19 or when we show that a witness testified to 20 something, we're not -- no one here is 21 making a judgement on whether it is true or 22 false. 23 There are going to be inconsistencies. 24 And just because the defense makes an 37 1 argument, it may or may not be true. What 2 we're doing today is reviewing the evidence 3 at the trial. And as with any trial, there 4 are inconsistencies and arguments that 5 conflict. 6 SENATOR LANZA: These are points that 7 we may again want to revisit when we go 8 into, for lack of a better term, 9 deliberation. 10 SPECIAL COUNSEL ALONSO: Absolutely. 11 So to understand the events as they 12 will be described in later slides, this is 13 the senator's apartment. The bedroom is on 14 the right. The bedroom is on the right, 15 right there. The kitchen is over there, the 16 sink is right there, the doorway is right 17 there (indicating). And there is the door 18 to the bedroom from the hall. 19 Now, if you will quickly look, the 20 doorway right there is not visible on the 21 video, right there (indicating). The 22 bottom -- it's indicated on the bottom of 23 the screen as Slide 34. 24 SENATOR STAVISKY: Is there an 38 1 elevator, or is this a walkup? 2 SPECIAL COUNSEL ALONSO: I think it's 3 an elevator building. There's what looks 4 like an elevator door (indicating). But 5 it's not relevant to the trial. It wasn't 6 part of the evidence. 7 Go ahead, Lee. 8 (Video shown.) 9 SPECIAL COUNSEL ALONSO: So this is 10 the PBA card incident we're watching. 11 There's a trash chute right there on the 12 right. 13 So we just saw the fast-motion version. 14 I'm asking my associate to turn the lights 15 down a little bit so we can see, because 16 I'll ask you to take a good look at the 17 senator, who in the next version of this, he 18 takes two things and throws them down the 19 chute. And both are going to be relevant to 20 the trial evidence. The first is a plastic 21 trash liner, and the second is the PBA card. 22 Slow motion, go ahead. 23 (Video shown.) 24 SPECIAL COUNSEL ALONSO: And it was 39 1 pretty well agreed at the trial that what 2 happened there was he threw the PBA card 3 down the chute after showing it to her 4 briefly, and that she pushed him on her way 5 to the chute, looked in the chute, and then 6 came running back into the apartment. 7 That's the card. It's not -- what it 8 looks like is not particularly relevant to 9 our issues, but it has her name on it and 10 the name of the officer who gave it to her. 11 Who is not Senator Monserrate, of course. 12 MR. LEWIS: And the phone number is 13 on the side. There are written phone 14 numbers that seem to be the officer's 15 numbers. 16 SPECIAL COUNSEL ALONSO: Right. 17 Right. 18 Okay, so after the -- we're still doing 19 the timeline. We're not delving deeply into 20 the evidence yet of the disposal of the PBA 21 card. 22 The next event that sort of can be 23 pinpointed to some reasonable accuracy is 24 that the neighbor testifies, Ms. Loudon, 40 1 that shortly before 3 a.m. she heard a body 2 hit the floor and then a scream, and then 3 she heard Senator Monserrate say something 4 to Ms. Giraldo, which was "Listen to me. 5 Listen to me." 6 So here's the sink in the kitchen. 7 Here's what the kitchen looks like in the 8 crime-scene photo. That is an intact glass 9 from the set that everyone agrees that the 10 glass that broke came from. 11 Now, the defense, one thing that they 12 did that was cooperative is when I was in 13 their office they had one of them, and they 14 let me hold it. 15 The prosecution was not able to release 16 it to us because of court rulings, but I 17 wanted to actually bring it with me today. 18 I asked if I could do that, and the DA was 19 perfectly willing, but they're not allowed 20 to do that. 21 So I held it in my hand. It's a very 22 solid, heavy liquor glass. 23 That's the path from the sink to the 24 bed, which becomes relevant because of some 41 1 versions of statements attributed to the 2 senator and to Ms. Giraldo, as the committee 3 will see. 4 This is as the police found the bed, 5 the bloody towel. The broken glass was 6 mostly on the bed except for one piece. The 7 bathroom was quite bloody, full of more 8 bloody towels, and blood on the sink and 9 blood on the toilet. 10 And then we have another pinpointed 11 time: 2:50 a.m. real time is when they left 12 the apartment, ten to 3:00. So the neighbor 13 testifies that it's sometime before -- 14 shortly before 3:00 a.m. she hears the body 15 hit the floor, and then they leave at around 16 ten to 3:00. Roughly the same time, maybe 17 10 minutes before. 18 CHAIRMAN SCHNEIDERMAN: Is this the 19 same neighbor whose doorbell was rung? 20 SPECIAL COUNSEL ALONSO: Yes. 21 CHAIRMAN SCHNEIDERMAN: So did the 22 neighbor testify or estimate how much time 23 went by between hearing the scream and the 24 body hit the floor and then the time the 42 1 doorbell rang? 2 SPECIAL COUNSEL ALONSO: About 3 10 minutes. 4 SENATOR ALESI: Could you quickly go 5 back to the diagram of the apartment and the 6 pathway following through there? 7 SPECIAL COUNSEL ALONSO: Sure. 8 SENATOR ALESI: Theoretically, she's 9 on the left side of the bed. 10 SPECIAL COUNSEL ALONSO: I mean, we 11 don't have -- remember, she was not 12 questioned about -- well, I'll point out 13 that she was not questioned about what 14 happened inside the apartment when the DA 15 called her at trial. 16 SENATOR ALESI: Is that diagram 17 showing broken glass -- or is the diagram 18 the same as the ensuing picture showing 19 that? 20 SPECIAL COUNSEL ALONSO: The diagram 21 was made by the police. The red lines are 22 made by us just to show the relevant parts. 23 MR. LEWIS: You want to know what the 24 items in the circle are, what the circles 43 1 represent? 2 SENATOR ALESI: No, I don't. I'm 3 looking to see if the diagram was 4 corresponding with the picture in terms of 5 where she is supposedly laying when -- 6 SPECIAL COUNSEL ALONSO: I think that 7 the picture is hard to see. It looks a 8 little bit skewed. 9 I see your point. But you see the 10 radiator right there; I think it corresponds 11 to what you see in the picture. So the door 12 would be right off to the side. 13 SENATOR ALESI: To me, the diagram is 14 showing something different from what the 15 photo is showing. 16 MR. LEWIS: The position -- 17 CHAIRMAN SCHNEIDERMAN: In terms of 18 what side of the bed? 19 SENATOR ALESI: Yes. To me, all of 20 the activity is happening on the radiator 21 side of the bed. And if you go to the 22 photo -- 23 CHAIRMAN SCHNEIDERMAN: It's the 24 other side of the bed. 44 1 SENATOR STAVISKY: It's the other 2 side of the bed. 3 SPECIAL COUNSEL ALONSO: Yeah, I 4 think that's misleading. Because if you 5 look, there are three pieces of evidence 6 that were recovered on the other side of the 7 bed -- 8 SENATOR ALESI: Could you go to the 9 photo, please? 10 SPECIAL COUNSEL ALONSO: Yeah. 11 SENATOR ALESI: So on the radiator 12 side of the bed it doesn't look like anybody 13 even could -- 14 SENATOR SAVINO: Look, the glass, the 15 broken glass is on that side of the bed, 16 right there. You see it? Right there, on 17 the radiator side. See the broken glass? 18 Right there, alongside the pillow, that's on 19 the radiator side of the bed. The only 20 thing on the other side is the towel. 21 SENATOR ALESI: Satisfy my curiosity, 22 what is -- 23 SPECIAL COUNSEL ALONSO: Senator, we 24 have not presented every crime-scene photo. 45 1 You have them all. But I will be happy to 2 give them all a real good look and give you 3 the answer. 4 SENATOR ALESI: It just appears that 5 the diagram at least indicates that she 6 would be laying on one side, and the photo 7 indicates that she would be on the opposite 8 side. And obviously the photo is the real 9 live version. 10 SPECIAL COUNSEL ALONSO: That's the 11 glass right there (indicating). 12 CHAIRMAN SCHNEIDERMAN: Let me just 13 ask you a question. Was there testimony or 14 agreement or stipulation as to which side of 15 the bed she was on, or does that issue come 16 up? 17 MR. LEWIS: There was -- he said he 18 brought the glass to her and she sat up. 19 And he didn't say whichever side of the bed 20 she was on. 21 SPECIAL COUNSEL ALONSO: Also -- 22 also, the only evidence that he went to the 23 kitchen to get a glass is his statement to a 24 doctor at the hospital. So he never 46 1 testified -- which he's not required to, 2 obviously. But the statement is the only -- 3 MR. LEWIS: Kort, she tells Dr. Kort 4 that he comes with a glass and says "Here's 5 your water. Here's your water." 6 SPECIAL COUNSEL ALONSO: But that's a 7 different story. That's a different story. 8 But we're going to get to both of them. 9 SENATOR STAVISKY: Can I ask 10 something? Is there room between the 11 radiator and the wall? Is the perspective 12 off on that? 13 SPECIAL COUNSEL ALONSO: The 14 perspective is off on that. There is room. 15 SENATOR SAVINO: That's what I was 16 going to ask. Does the diagram that the 17 police drew, does it reflect all the 18 furniture that's in there? Like I see 19 that's obviously the dresser. And there's 20 no other obstructions coming around, so it 21 would be a straight walk around from the 22 kitchen to the bedroom? 23 SPECIAL COUNSEL ALONSO: Except for 24 what it doesn't reflect is what she talks 47 1 about with her shoes being on the floor, 2 which he tripped over. She says he tripped 3 over her shoes. 4 MR. LEWIS: There are other 5 crime-scene photos that are more helpful for 6 the questions you're asking. There's 26 of 7 them, I believe, or 24 of them. Including 8 one from the perspective Senator Alesi is 9 asking about, and another one from the 10 perspective Senator Stavisky is asking 11 about. 12 SENATOR ALESI: Just one more time on 13 that bed, if you don't mind. 14 SPECIAL COUNSEL ALONSO: Not at all. 15 SENATOR ALESI: That right there, 16 right there. And the reason I was asking is 17 what Senator Stavisky asked. It does not 18 seem, from this photo, that there's a lot of 19 room for anybody to walk through. 20 SPECIAL COUNSEL ALONSO: Remember, 21 also, the perspective is off. This is an 22 illusion. The diagram is accurate. 23 Remember, also, there's nothing to say 24 that those pillows were piled that way when 48 1 she was sleeping or that the comforter was 2 in that position when she was sleeping. 3 This may well give us the illusion that 4 somebody popped out of the right side of the 5 bed, but that may not be the case. 6 MR. LEWIS: She could have been on 7 either side when the towels landed where 8 they are. 9 SENATOR ALESI: Mm-hmm. Thank you. 10 SPECIAL COUNSEL ALONSO: So this is 11 the next -- the exact time we have is 2:50 12 of when they leave the apartment, and here's 13 the video of when they leave. 14 (Video shown.) 15 SPECIAL COUNSEL ALONSO: Now she has 16 changed her clothes, obviously, she's got a 17 towel to her face, and he is behind her. 18 I'm not going to show that in slow 19 motion, but I'll show the first floor -- as 20 they get down the stairs, I'll show that one 21 in slow motion again. 22 She's got the towel. There's where she 23 is at the neighbor's. Then the towel stays 24 behind. She holds the banister. Then they 49 1 go into the vestibule. 2 SENATOR STAVISKY: What is he 3 carrying in his hand? 4 SPECIAL COUNSEL ALONSO: Her bag. 5 MR. LEWIS: You also see her hold 6 onto the door frame at the top of that. 7 SENATOR STAVISKY: Yes. 8 SENATOR LANZA: Does she drop another 9 white object by the vestibule? 10 SPECIAL COUNSEL ALONSO: She only 11 drops the towel. 12 SENATOR LANZA: So it's a light 13 effect? 14 MR. LEWIS: It's a light effect. 15 SPECIAL COUNSEL ALONSO: There were 16 two witnesses who testified to recovering 17 the towel. 18 SENATOR STAVISKY: She's got the 19 towel right here. 20 SENATOR SAVINO: No, it's a bag. 21 SPECIAL COUNSEL ALONSO: It's a 22 plastic bag. Want to see that again, 23 Senator? 24 Play that one again, Lee. 50 1 (Video shown.) 2 SENATOR LANZA: Can you go back to 3 the one before that one, as they're leaving? 4 Oh, there it is. So it's a light effect. 5 I'm sorry. 6 SPECIAL COUNSEL ALONSO: The towel 7 ends up here, and one cop and one neighbor 8 testified that they saw it there. 9 So here's outside the apartment. We 10 haven't seen this one yet. There is the 11 next available camera on 6. 12 (Video shown.) 13 SPECIAL COUNSEL ALONSO: Now we'll 14 see that in slow motion. And here's the 15 next available one. 16 (Video shown.) 17 SPECIAL COUNSEL ALONSO: Then again 18 in slow motion. Slide 47. 19 SENATOR HASSELL-THOMPSON: That's the 20 walkway from the door to the front steps? 21 SPECIAL COUNSEL ALONSO: That's the 22 walkway to the sidewalk. You'll see in the 23 next one. 24 CHAIRMAN SCHNEIDERMAN: That's 51 1 outside. 2 SENATOR HASSELL-THOMPSON: I 3 understand outside. 4 SPECIAL COUNSEL ALONSO: Yes, outside 5 the building. They took a left there, and 6 they're coming out here. And there's the 7 street. 8 SENATOR HASSELL-THOMPSON: Something 9 seemed to be wrong with the sequence. The 10 first one looked like they were already 11 outside. 12 SPECIAL COUNSEL ALONSO: The very 13 first one? Let's make sure we're on the 14 same page. So that's the first outside. 15 SENATOR HASSELL-THOMPSON: Right. 16 Now, what is that? 17 SPECIAL COUNSEL ALONSO: That's the 18 entrance to the building. Right here is 19 where the steps are (indicating). You go 20 right here, that's the front door. They 21 take a right, I believe. 22 Play that, Lee. 23 (Video shown.) 24 SENATOR HASSELL-THOMPSON: That's 52 1 immediately outside the door? 2 SPECIAL COUNSEL ALONSO: Correct. 3 SENATOR HASSELL-THOMPSON: And what 4 we see in this one -- 5 SPECIAL COUNSEL ALONSO: And that was 6 the next available piece that we see. I 7 believe it's the same walk. I haven't 8 actually been out there, but it looks like 9 the same walk. 10 And then they walk down that walk and 11 take a left, and there is where they're 12 walking down. And you notice he puts his 13 arm around her here. 14 SENATOR SAVINO: It looks like she's 15 trying to get -- like she was trying to 16 break away and then he pulled her in again. 17 SPECIAL COUNSEL ALONSO: You 18 definitely see movement, lateral movement. 19 You see him put his arm around her. The 20 defense characterized it as a loving gesture 21 to take her to the hospital. The 22 prosecution characterized it as a 23 half-nelson. 24 SENATOR SAVINO: Could you back up to 53 1 that again? 2 SPECIAL COUNSEL ALONSO: Sure. 3 Lee, do that again. 4 (Video shown.) 5 SENATOR SAVINO: See, like right 6 there, like she starts to pull away and then 7 he grabs her. 8 SPECIAL COUNSEL ALONSO: And they 9 walk a little faster. 10 SENATOR SAVINO: He grabs her by the 11 one arm and then wraps the other arm around 12 her. 13 SPECIAL COUNSEL ALONSO: That's it 14 for the video at the apartment. 15 Now, at 3 o'clock Ms. Giraldo 16 telephones her -- aesthetologist? 17 CHAIRMAN SCHNEIDERMAN: Aesthetician. 18 SPECIAL COUNSEL ALONSO: Aesthetician 19 .And we'll get into what they talked about, 20 but that is just timeline evidence. 21 Ms. Toro testified there was a 3:00 a.m. 22 phone call. 23 So the events continue. They arrived 24 at LIJ 37 minutes after they left. And you 54 1 saw in the verdict that the judge considered 2 that significant. The distance is about a 3 little more than 12 miles, at 3:00 in the 4 morning. 5 SENATOR HASSELL-THOMPSON: Okay, now 6 slow down a minute. At 2:50 they leave the 7 apartment. Ten minutes later, she calls 8 Ms. Toro. 9 SPECIAL COUNSEL ALONSO: Roughly 10 10 minutes later. Because Ms. Toro was 11 approximate. 12 SENATOR HASSELL-THOMPSON: Where are 13 they when she makes that call? 14 SPECIAL COUNSEL ALONSO: Presumably 15 in the car. Ms. Toro testifies -- it's 16 here, you'll see it, but Ms. Toro 17 essentially testifies that Ms. Giraldo 18 called her asking what could be done to 19 prevent scarring from a facial cut, and told 20 her that there had been an accident. So 21 Ms. Toro was called as a defense witness. 22 SENATOR HASSELL-THOMPSON: And she 23 told her there had been an accident? 24 SPECIAL COUNSEL ALONSO: Yes, that 55 1 there had been an accident. And you'll see 2 the quote from her testimony. 3 CHAIRMAN SCHNEIDERMAN: I take it we 4 do not have the phone records yet. Is that 5 something that's possible to obtain? Does 6 the prosecution have them? 7 SPECIAL COUNSEL ALONSO: The 8 prosecution I believe has them, but they 9 can't tell me because it's grand jury 10 material. 11 CHAIRMAN SCHNEIDERMAN: So if you get 12 that, that would enable you to get the 13 records of whatever phone calls were made? 14 SPECIAL COUNSEL ALONSO: I believe 15 so, but I can't tell until -- 16 SENATOR SAVINO: Ms. Toro was a 17 witness for the defense? 18 SPECIAL COUNSEL ALONSO: Yes. 19 SENATOR SAVINO: She was not called 20 by the prosecution? 21 SPECIAL COUNSEL ALONSO: Oh, I'm 22 sorry, she was called by the prosecution. 23 SENATOR SAVINO: Yes. 24 SENATOR ALESI: I'm sorry, I want to 56 1 be clear on who she is. 2 SPECIAL COUNSEL ALONSO: An 3 aesthetician. 4 SENATOR SAVINO: Beauty consultant. 5 SENATOR ALESI: So she has to have 6 had a fairly close relationship with her to 7 be able to reach her at 3:00 in the morning. 8 MR. LEWIS: The evidence is she had 9 her card and called her at 3:00 in the 10 morning. It was an unusual call. And they 11 maintain they weren't friends at all. She 12 was just calling, reaching out for 13 information about how to protect, keep her 14 face from scarring. 15 SENATOR HASSELL-THOMPSON: She took a 16 3 o'clock call from a stranger? 17 SPECIAL COUNSEL ALONSO: They weren't 18 strangers, but they weren't friends. The 19 testimony was that she had only done her 20 face a couple of times. 21 MR. LEWIS: When you say she had 22 "done" her face -- 23 SPECIAL COUNSEL ALONSO: She had 24 worked on her face. 57 1 SENATOR SAVINO: A facial. 2 MR. LEWIS: She was a facialist, 3 whatever that is. The male members of the 4 team can -- that's all I know. I was told, 5 by asking further, that it's sort of like 6 you get facials and it youthens your skin 7 and things like that. 8 SENATOR SAVINO: Chemical peels, like 9 glycolic peels. There's a whole host of 10 things you can do. 11 SPECIAL COUNSEL ALONSO: All right, 12 so 37 minutes later -- 13 SENATOR HASSELL-THOMPSON: This is a 14 professional person that she was not friends 15 with, but the woman took a 3 o'clock call? 16 SPECIAL COUNSEL ALONSO: Yes. 17 MR. LEWIS: That's what the evidence 18 says, yes. 19 SENATOR HASSELL-THOMPSON: Okay. All 20 right. 21 SPECIAL COUNSEL ALONSO: So 37 22 minutes later they arrive at Long Island 23 Jewish, which is right near Nassau County. 24 SENATOR STAVISKY: Technically, it's 58 1 in Queens County, but it's right on the 2 border. 3 SPECIAL COUNSEL ALONSO: Right 4 near -- as close as you can get to Nassau 5 County without -- 6 SENATOR SAVINO: Did anybody question 7 them? Because LIJ is not that far. It 8 shouldn't have taken 37 minutes to get 9 12 miles in the middle of the night. 10 SENATOR STAVISKY: That's right. 11 MR. LEWIS: That's one of the reasons 12 why we're interested in the phone records. 13 SPECIAL COUNSEL ALONSO: I'm going to 14 recommend to the committee that one of the 15 very few things that we should look at in 16 addition is what happened in those 37 17 minutes, what phone calls were they making. 18 And if we question at some point 19 Ms. Giraldo, we would want to ask her what 20 happened during these 37 minutes. 21 SENATOR SAVINO: Right. I mean, did 22 they discuss the route that they took? 23 MR. LEWIS: Yes, they also -- there's 24 evidence about how they got there. It isn't 59 1 evidence from either him or her, it's just 2 discussions about means to go from his 3 apartment to LIJ. 4 There's also an exhibit in the packet 5 somewhere that you have that shows all the 6 hospitals between his apartment and LIJ. 7 SPECIAL COUNSEL ALONSO: We're going 8 to see that now. 9 SENATOR SAVINO: But so did they say 10 the route that they took? 11 MR. LEWIS: No. Because neither one 12 of them testified. 13 SPECIAL COUNSEL ALONSO: Neither of 14 them testified. 15 Now, I believe that further evidence 16 could tell us which route that they took. I 17 also can tell you that you'll see a video 18 that he's holding a can of soda as they walk 19 into LIJ which he didn't have when -- 20 SENATOR SAVINO: Meaning they stopped 21 somewhere. 22 SPECIAL COUNSEL ALONSO: Well, it 23 either means they stopped somewhere or that 24 the can of soda was somewhere other than in 60 1 his hands when he walked out of the 2 apartment. 3 CHAIRMAN SCHNEIDERMAN: Or in the 4 car. 5 SPECIAL COUNSEL ALONSO: Or it was in 6 the car. 7 SENATOR SAVINO: Let's assume he took 8 the longest way there. Which would be, say, 9 Northern Boulevard, 25A, which goes straight 10 out to LIJ. 11 SENATOR STAVISKY: It's quite a -- 12 SENATOR SAVINO: But that would have 13 been the longest possible way. Because then 14 he could have jumped on the Grand Central 15 within blocks of his apartment, he could 16 have gone down and gotten on the Van Wyck in 17 another 10 blocks, he could have gotten onto 18 the Long Island Expressway relatively 19 quickly, There are several ways to get 20 there. 21 If it took 37 minutes, he had to have 22 driven locally or stopped. And if he drove 23 locally, he went past Memorial Hospital, 24 which is in Queens, New York; he went past 61 1 Flushing Hospital -- I mean, there's any 2 number of places that he could have stopped. 3 He didn't have to go all the way to LIJ. 4 SENATOR HASSELL-THOMPSON: What was 5 his explanation for taking her to that 6 particular hospital? 7 MR. LEWIS: The defense put in as 8 part of their case Senator Monserrate's 9 medical records from LIJ from an admission 10 of about a year before. And the argument 11 was that having been treated there in the 12 emergency room, he felt that he was -- 13 SENATOR HASSELL-THOMPSON: Hospital 14 of choice? 15 MR. LEWIS: Right. Although there 16 are some problems in that argument, inherent 17 in it, including the fact that he doesn't go 18 to the emergency room, he drives up -- I'm 19 stealing Mr. Alonso's thunder, so I'll stop. 20 CHAIRMAN SCHNEIDERMAN: We do have an 21 exhibit which shows the location of the 22 hospital in relation to -- 23 SPECIAL COUNSEL ALONSO: Yes, we have 24 that. And I'll show it to you shortly. 62 1 So here's the video from the hospital. 2 Which I think is not as crucial as the other 3 video, but it's somewhat informative. 4 Before I play it -- 5 SENATOR HASSELL-THOMPSON: Look at 6 the timeline. 7 SPECIAL COUNSEL ALONSO: The hospital 8 video is also off by -- 9 SENATOR HASSELL-THOMPSON: Yeah, it's 10 3:27. 11 SPECIAL COUNSEL ALONSO: But that's 12 established at the trial that it was 3:27, 13 not 3:23. So all these videos -- Mr. Lewis 14 and I are both familiar, and I know some of 15 you others are as well, like Senator Lanza, 16 that the videos are never correctly stamped 17 when you use them as evidence, so the first 18 thing you establish at trial is what was the 19 real time, how far off on it. So this one 20 was four minutes off. 21 You should know that there is an 22 emergency entrance for Long Island Jewish, 23 as everyone knows all hospitals have. They 24 did not go to that emergency entrance or to 63 1 the emergency dropoff, but instead Senator 2 Monserrate parked on the street near the 3 main entrance of the hospital. As you're 4 going to see in this next series of videos, 5 they travel through the length of the 6 hospital to get to the emergency room in the 7 company of a security guard who's escorting 8 them. 9 SENATOR HASSELL-THOMPSON: All right. 10 You're showing this entrance -- 11 SPECIAL COUNSEL ALONSO: I'm showing 12 it partly for timeline, which is what I'm 13 doing here, but also to show you the 14 evidence that was presented at trial. 15 SENATOR HASSELL-THOMPSON: Okay. 16 Now, is this -- what is this entrance? It 17 says first floor. 18 SPECIAL COUNSEL ALONSO: This is the 19 main entrance. Or the near entrance to -- 20 SENATOR HASSELL-THOMPSON: Through 21 which they will appear in a moment. 22 SPECIAL COUNSEL ALONSO: Correct. 23 SENATOR HASSELL-THOMPSON: Okay. As 24 opposed to the emergency room. 64 1 SPECIAL COUNSEL ALONSO: It's 2 definitely not the emergency room. 3 SENATOR HASSELL-THOMPSON: Okay. I'm 4 sorry. Please continue. 5 SENATOR STAVISKY: One of the 6 problems is parking, they charge for parking 7 in the parking lot. And it is a ways away 8 from the emergency and from the main 9 entrance as well. 10 SPECIAL COUNSEL ALONSO: Right. 11 Okay, you can play it, Lee. 12 (Video shown.) 13 SPECIAL COUNSEL ALONSO: That's the 14 guard, and then the two of them. 15 SENATOR STEWART-COUSINS: Do they 16 know the security guard? 17 SPECIAL COUNSEL ALONSO: He's 18 escorting them. 19 SENATOR HASSELL-THOMPSON: Because of 20 the hour? 21 SPECIAL COUNSEL ALONSO: I believe 22 so. I don't think there's anything sinister 23 about it. 24 MR. LEWIS: He didn't testify. 65 1 SPECIAL COUNSEL ALONSO: He did not 2 testify. 3 SENATOR ALESI: At this point, no arm 4 around her or contact. 5 SPECIAL COUNSEL ALONSO: Right. 6 SENATOR STAVISKY: Where is her 7 towel? 8 SENATOR SAVINO: She dropped it in 9 the hallway. 10 SENATOR HASSELL-THOMPSON: She's 11 carrying a plastic bag. 12 SPECIAL COUNSEL ALONSO: She may be 13 holding something else against her eye. 14 SENATOR HASSELL-THOMPSON: She's 15 carrying the bag. 16 I have a question. There was something 17 about her being drunk and weaving and 18 whatever. And in none of these -- I've seen 19 no evidence of that. 20 SPECIAL COUNSEL ALONSO: The issue of 21 whether she was intoxicated at the time that 22 she was speaking to the doctors, which is 23 where a lot of the evidence came from, 24 became a very big issue at the trial. She 66 1 testified at the trial that she was drunk, 2 she was stumbling, and -- 3 SENATOR HASSELL-THOMPSON: Do you see 4 any evidence of that on the tape? 5 SPECIAL COUNSEL ALONSO: -- and so 6 did the cousin. 7 We do not see any evidence of stumbling 8 here. But the testimony of the cousin that 9 we talked about was earlier in the evening. 10 The defense theory on drunkenness is 11 essentially threefold. You know, one is 12 that she was so drunk she didn't know what 13 she was doing down in the apartment, so she 14 didn't realize that it was for her own good 15 to go to the hospital; that's why she fought 16 against him. 17 Also that she was so drunk that she was 18 unable to really accurately perceive what 19 happened, which is why she made the 20 statements to the doctors that I will tell 21 you in a few minutes she did. 22 And the third is that she was still 23 drunk at the hospital and didn't really know 24 what she was saying. 67 1 SENATOR HASSELL-THOMPSON: Okay. All 2 of that may be true, but we've seen her 3 follow him in the hall for the PBA card -- 4 there's no evidence of staggering or 5 anything there when she goes behind him or 6 goes back into the apartment. She has 7 walked down this entire corridor unassisted. 8 There's nothing that indicates that she's 9 even slightly inebriated; certainly not 10 drunk. 11 SPECIAL COUNSEL ALONSO: She also 12 testified before the grand jury -- and this 13 is in evidence in the trial -- that she 14 wasn't drunk, that she was okay, and that 15 she only had two drinks the whole evening. 16 It was only at trial that she said that 17 she was very drunk and some of the things I 18 just said. You'll see that in a minute. 19 SENATOR LANZA: Can we see this last 20 one again? 21 SPECIAL COUNSEL ALONSO: We're going 22 to back up. Lee, are you able to back up 23 just the last two? Are you able to 24 fast-forward? 68 1 MR. CORTES: No. 2 SPECIAL COUNSEL ALONSO: Okay, we've 3 got to watch it all again. Sorry about 4 that. 5 SENATOR LANZA: Because a lot went on 6 during that discussion. 7 (Video shown.) 8 SPECIAL COUNSEL ALONSO: Is this one 9 slowed down, Lee, or is it just the same one 10 we just saw? 11 MR. CORTES: The same. 12 SENATOR STAVISKY: She's walking a 13 straight line. 14 MR. LEWIS: She also walked a 15 straight line down the steps in the 16 apartment when they left. 17 SENATOR STAVISKY: Yeah, that's what 18 I saw. 19 SENATOR ALESI: Was it the host of 20 the party that said "You shouldn't drive 21 home"? 22 SPECIAL COUNSEL ALONSO: Yes. But 23 remember, she hadn't driven there. 24 SENATOR ALESI: Why would he suggest 69 1 that she shouldn't drive? 2 SPECIAL COUNSEL ALONSO: That was his 3 way of adding color to -- I don't want to 4 put motivation into his head, but during his 5 testimony he's asked whether she was drunk 6 or not, and he says, "Yes, in fact I told 7 her she shouldn't drive home," something 8 like that. 9 MR. LEWIS: They claim that she was 10 dancing with a lot of different people and 11 acting rowdy so she had to go home. 12 CHAIRMAN SCHNEIDERMAN: She does have 13 something she's placing on her eye. 14 And just for the members of the 15 committee, counsel is presenting evidence. 16 And when we talk in day-to-day speech, 17 evidence is usually treated as something 18 that is a fact. Evidence just means 19 something somebody said. It doesn't mean 20 it's a fact. So evidence at the trial, what 21 this person said he told her, that may or 22 may not be true. 23 SENATOR STAVISKY: She's walking 24 straight. 70 1 SPECIAL COUNSEL ALONSO: Right. 2 SENATOR SAVINO: It's pretty amazing. 3 She should have been in shock with the 4 amount of blood loss. 5 SENATOR HASSELL-THOMPSON: That's 6 what I'm saying. I'm really confused, 7 because -- 8 SPECIAL COUNSEL ALONSO: Okay. So 9 there's a little bit more surveillance video 10 of the senator in the waiting room at LIJ, 11 which is 23 minutes after they arrive, when 12 she's presumably being treated. 13 Go ahead, Lee. 14 MR. CORTES: These are all slides. 15 SPECIAL COUNSEL ALONSO: Right. They 16 were 20-minute-long snippets, so we've just 17 got a few slides. 18 MR. LEWIS: This is 24 minutes after 19 they arrived. 20 SPECIAL COUNSEL ALONSO: Right. So 21 you can see he's on the phone. 22 SENATOR STAVISKY: Who's he calling? 23 SPECIAL COUNSEL ALONSO: I don't 24 know. 71 1 That's Dr. Frogel, who is escorting the 2 senator, as far as we can tell from the 3 record, to see Ms. Giraldo during her 4 treatment. And I believe she asked for -- 5 MR. LEWIS: It was at her request. 6 SPECIAL COUNSEL ALONSO: There he is 7 a little bit later, two minutes later. 8 SENATOR STAVISKY: Is that her 9 pocketbook in his hand? 10 SPECIAL COUNSEL ALONSO: It's hard to 11 tell. 12 He's on the phone again. He must have 13 made several phone calls, but I'm sort of 14 speculating just because the phone is in his 15 hand. So I'd like to see what the records 16 are. 17 SENATOR SAVINO: But he also is 18 making a pay-phone call. And he has a 19 cellphone to his ear. 20 SPECIAL COUNSEL ALONSO: Yup. Yup. 21 SENATOR ALESI: At some point doesn't 22 he have her cellphone? Did he have 23 possession of her cellphone? 24 SPECIAL COUNSEL ALONSO: If he had 72 1 her purse, he must have. 2 And ordinary practice would indicate 3 that the DA would have subpoenaed the 4 records of all the phones. But again, since 5 it's grand jury material, they haven't been 6 able to tell me. 7 MR. LEWIS: Most emergency rooms 8 won't let you bring a cellphone in when 9 you're treated. 10 SPECIAL COUNSEL ALONSO: So that's 11 what we just saw. At 4:21, Dr. Frogel 12 brings the senator to see Ms. Giraldo. 13 (Video shown.) 14 SPECIAL COUNSEL ALONSO: Now, this I 15 believe is not in evidence. And I meant to 16 take it out, because I really wanted to keep 17 this to just the evidence. But apparently 18 NYPD was called at 4:50. And the testimony 19 is who called them was Dr. Kort, who was the 20 Spanish-speaking doctor who treated 21 Ms. Giraldo, as you'll see from the 22 evidence. 23 But in any event, this was in a police 24 report. It was never actually put into 73 1 evidence. 2 SENATOR HASSELL-THOMPSON: She was 3 treated by two doctors? 4 SPECIAL COUNSEL ALONSO: She was 5 treated by an initial emergency room doctor, 6 somebody who didn't speak Spanish, and later 7 on she was sewn up by a plastic surgeon, 8 Dr. Sasson. He testified. 9 MR. LEWIS: There's an initial 10 discussion with a triage nurse who takes a 11 statement from her. And then there's 12 another doctor who tries to talk to her but 13 who clearly doesn't understand Spanish, who 14 brings in Dr. Kort, who has a Spanish 15 background and talks to her and takes 16 statements. 17 Dr. Frogel talks to her briefly but 18 really deals with the senator. 19 And then Sasson is the plastic surgeon 20 who comes in and does the actual fixing of 21 her face. 22 SPECIAL COUNSEL ALONSO: So it's 23 really two doctors and one nurse. And Dr. 24 Frogel, who you've seen in the video, mainly 74 1 dealt with the senator. 2 SENATOR SAVINO: Was it the triage 3 nurse who first saw her? 4 SPECIAL COUNSEL ALONSO: Yes. 5 SENATOR SAVINO: And in her statement 6 she said that the patient speaks English 7 well. Do you remember that? 8 SPECIAL COUNSEL ALONSO: She actually 9 wrote in her triage notes that there was -- 10 that they spoke in English but there was a 11 language issue. You'll see that. 12 SENATOR LANZA: What was Dr. Kort's 13 involvement vis-a-vis the complaining 14 witness? 15 MR. LEWIS: Dr. Kort is the doctor 16 that speaks Spanish. 17 SENATOR LANZA: But does he treat her 18 at all? 19 SPECIAL COUNSEL ALONSO: She treated 20 her. She's the one who does the initial 21 what you would think of as ER record, and 22 also what the -- 23 SENATOR LANZA: She cleans the 24 injuries? 75 1 SPECIAL COUNSEL ALONSO: Right. But 2 doesn't sew her up. 3 MR. LEWIS: She calls the plastic 4 surgeon. 5 SPECIAL COUNSEL ALONSO: Right. 6 CHAIRMAN SCHNEIDERMAN: Where is 7 this? 8 SPECIAL COUNSEL ALONSO: This is in 9 the ER, outside the room where she's being 10 treated. 11 The point of these videos -- and I 12 believe they're representative -- is that 13 there is a lot of time that he spends on the 14 phone. Now, there's nothing wrong with that 15 by itself. We just don't know who he 16 called. 17 SENATOR ALESI: Could you just back 18 it up halfway? 19 SPECIAL COUNSEL ALONSO: We're 20 talking about Slide 66. 21 SENATOR ALESI: Does he have two 22 cellphones? 23 SPECIAL COUNSEL ALONSO: Sorry, Lee. 24 SENATOR ALESI: It looks like he has 76 1 a cellphone and pulls one out of his pocket. 2 SPECIAL COUNSEL ALONSO: Could be. 3 But it's not conclusive. It could easily 4 be, Senator, that there are two phones, 5 because he's looking at both of them in a 6 way that suggests that they might be phones. 7 But it's impossible to tell for sure. 8 SENATOR SAVINO: It could be a 9 Blackberry and a regular phone. 10 SENATOR ALESI: Or he had her phone 11 and was checking her phone also. Who knows? 12 SPECIAL COUNSEL ALONSO: Okay, so 13 that was the timeline. 14 SENATOR HASSELL-THOMPSON: The triage 15 nurse said that she requested that the phone 16 be given back to her. 17 MR. LEWIS: There's some evidence in 18 the record that she had a red cellphone, and 19 he's holding something red. And I don't 20 know if that's her cellphone. 21 SENATOR HASSELL-THOMPSON: Well, the 22 triage nurse says that she requested -- "I 23 overheard her requesting someone to retrieve 24 her phone from her male companion." 77 1 CHAIRMAN SCHNEIDERMAN: Where are 2 you, Senator Hassell-Thompson? 3 SENATOR HASSELL-THOMPSON: Section G. 4 SPECIAL COUNSEL ALONSO: Defense 5 Exhibit G, which is the written statement of 6 Nurse Cabibbo, who is the triage nurse. 7 SENATOR SAVINO: And that's where she 8 says he wanted to translate. The patient 9 spoke English well, so she asked him to 10 leave the area. 11 SPECIAL COUNSEL ALONSO: That's 12 right. 13 SENATOR SAVINO: And in the statement 14 she says "I began the triage, and I recall 15 her stating, 'He's crazy, he's crazy.'" And 16 then she talks about the abrasions. 17 SPECIAL COUNSEL ALONSO: I haven't 18 gotten to that point yet, but it's worth 19 mentioning, since you brought it up, that 20 the language barrier was an issue that the 21 defense raised at the trial. They're 22 claiming that Cabibbo got it partially wrong 23 because she doesn't speak Spanish and that 24 Dr. Kort, who is fluent in Spanish, got it 78 1 wrong because she doesn't speak Ecuadorian 2 Spanish. So that's too oversimplified, but 3 that's part of the claim. 4 By the way, I'm presenting the 5 prosecution evidence first and then the 6 defense. Please don't read anything into 7 the fact that I've taken the prosecution 8 first. That's just who went first. And the 9 defense makes more sense if you know what 10 happened before. 11 So the key points that the prosecution 12 made is that because of jealousy over the 13 PBA issue, Senator Monserrate intentionally 14 assaulted Ms. Giraldo. And the evidence of 15 her injuries are -- come from the triage 16 note that Nurse Cabibbo wrote, which is that 17 she was stating 'this is essentially what 18 happened to her. If you want to know how 19 was she injured, here it is.' 20 She sustained -- this is Prosecution 21 Exhibit 9. She sustained multiple 22 lacerations to her lateral eye area -- a 23 1-inch vertical cut, another one above the 24 left eyebrow, left maxillary area, with 79 1 three smaller cuts, and then brownish 2 ecchymosis, which is bruising. 3 This is on the arm, a circular 1-inch 4 noted on left forearm and also a skin tear 5 on the left inner forearm. 6 So this is the triage nurse writing 7 down in the hospital records exactly what 8 she saw and got from the patient in terms of 9 the injuries. Now, she will be criticized 10 and the defense will criticize that some of 11 the statements that Ms. Giraldo supposedly 12 made to Ms. Cabibbo are not in these 13 records. They don't appear until a couple 14 of weeks later when Ms. Cabibbo memorializes 15 her recollection of what happened. 16 Now, remember that there was the PBA 17 incident and then they leave at around ten 18 to 3:00 in the morning. That's about a 19 two-hour period where the prosecution opines 20 or argues that it was a two-hour continuous 21 argument. And they have some support for 22 this in the record, as you'll see. 23 This is a single slide. This is her 24 coming out of the apartment right after he's 80 1 thrown out the PBA card. She pushes him, 2 she goes right to the side. The defense 3 says, look, he's being very calm, he's not 4 hitting her, he's not pushing her. 5 And this is the testimony of the 6 downstairs neighbor where she says what 7 she's hearing. She wasn't able to sleep, 8 and she says "There was obviously something 9 that was going on above me, a lot of chaos. 10 I would describe it as just mad energy, just 11 absolutely impossible to sleep." 12 And when asked to describe the noise 13 level coming from the apartment, she said it 14 was a high noise level. She also said she'd 15 been after Senator Monserrate for a while to 16 get carpeting in his apartment. 17 Now, a piece of evidence that was 18 recovered which in my view has some 19 importance -- recovered from the 20 apartment -- is this ripped shirt, a tank 21 top t-shirt, a man's tank top t-shirt with 22 no blood on it recovered from a trash can 23 that had no liner in it. 24 Now, you remember that he threw out the 81 1 liner, and so the trash can was presumably 2 empty. So the inference is that the shirt, 3 which was ripped and not bloody, must have 4 been ripped after the PBA card incident but 5 before the blood and glass incident. Which 6 the prosecution uses to argue that was there 7 was a continuous argument and this is solid 8 evidence of that. 9 The neighbor testifies she heard a body 10 hit the floor, just boom, right after she 11 heard crying from a female. And then she 12 heard Monserrate say "Listen to me." And 13 then, with a lot of authority in his voice, 14 "Listen to me." 15 The prosecution also said that he 16 attempted to control the situation, which is 17 what led to the second downstairs reckless 18 misdemeanor assault that he was convicted 19 of. 20 This is the downstairs neighbor talking 21 about the noise again. She says she has a 22 yardstick and she bumped on the ceiling one, 23 two, three. And what the prosecution argued 24 here -- this is not evidence, this is their 82 1 argument -- is that the defendant knows that 2 somebody is awake and he needs to control 3 the situation. 4 He says that -- I'm sorry, I lost my 5 place. David, are you following this? 6 MR. LEWIS: I don't know what you're 7 doing, so I'm a little -- 8 SPECIAL COUNSEL ALONSO: This was 9 their argument about control. And what the 10 prosecutor argues is that once he heard the 11 thump, she took the yardstick, at that point 12 the senator knows that somebody is aware of 13 what's going on and so he -- you know, what 14 he says, according to Loudon, is "Listen to 15 me. Listen to me." 16 I'm actually forgetting why I put this 17 in, so let's ignore it until I remember it. 18 Sorry about that. 19 Go ahead, Senator. 20 SENATOR HASSELL-THOMPSON: What the 21 language says is -- or seems to infer to me 22 is that because he recognizes that somebody 23 is listening or is aware or awake, that he's 24 saying "Oh, I slipped, are you okay?" Which 83 1 may or may not be a fabrication. 2 SPECIAL COUNSEL ALONSO: He didn't -- 3 SENATOR STEWART-COUSINS: He didn't 4 say that. That was the point, that he 5 didn't. 6 CHAIRMAN SCHNEIDERMAN: Everyone 7 with -- 8 SENATOR HASSELL-THOMPSON: I'm 9 talking about what's written. 10 CHAIRMAN SCHNEIDERMAN: Excuse me. 11 The stenographer can't record if we talk 12 over each other. So let's just try to do it 13 one at a time. 14 MR. LEWIS: The transcript says the 15 argument is -- when he says "Listen to me, 16 listen to me," it shows more of his dominion 17 and control. That's why I understood this 18 section was up. 19 SPECIAL COUNSEL ALONSO: He would 20 have said -- this is right after the thump 21 on the floor. And she hears him say "Listen 22 to me, listen to me." Not "Oh, my God, are 23 you okay? I slipped," the kind of thing 24 which the prosecution argues a reasonable 84 1 person would say. 2 I think it's not the strongest argument 3 in the world, but it is the prosecution's 4 argument of control. 5 MR. LEWIS: And all through the 6 prosecution argument, summation especially, 7 he says what Monserrate should have said if 8 what he said is true was true. But as Dan 9 says, it's sort of a weak argument now 10 you're saying "which is what you should have 11 said." 12 CHAIRMAN SCHNEIDERMAN: Again, this 13 is just evidence and argument, and we'll 14 have a chance to see -- 15 SENATOR SAVINO: I have a question, 16 though. The downstairs neighbor who heard 17 the noise, she heard the continuous arguing 18 or mad energy, as she described it, for 19 about two hours prior to this loud thump, a 20 body hitting the floor, and then she heard 21 him say "Listen to me. Listen to me." Now, 22 he had -- she said she heard him say those 23 words. 24 SPECIAL COUNSEL ALONSO: Like he was 85 1 reasoning with her, yes. 2 SENATOR SAVINO: Okay, so now -- 3 stop. This is downstairs, in a building 4 with concrete between the two floors. It 5 must have been fairly loud for her to have 6 heard him audibly enough. I mean, it's 7 not -- you know, these old prewar buildings, 8 you can't hear your next-door neighbors 9 having a conversation. 10 SPECIAL COUNSEL ALONSO: I don't 11 think we can necessarily make that 12 inference, just because of the fact she said 13 she's been after him to get rugs. So she 14 can hear noise upstairs. 15 Now, whether you can hear words through 16 the walls, you know, there was no evidence 17 from anyone other than her about that, so -- 18 SENATOR STAVISKY: Was that all she 19 heard? 20 SPECIAL COUNSEL ALONSO: It's the 21 only words she heard. 22 SENATOR STAVISKY: It's the only 23 words, Even though she's testified that an 24 argument -- 86 1 SPECIAL COUNSEL ALONSO: Earlier she 2 heard -- 3 MR. LEWIS: She heard what she called 4 mad energy during that two-hour period of 5 time. She heard noises; she thought it was 6 the television. But those were the only 7 words she heard after the thump that she 8 could identify. 9 SENATOR SAVINO: Does she speak 10 Spanish? 11 SPECIAL COUNSEL ALONSO: No. 12 MR. LEWIS: No. 13 SENATOR SAVINO: So in a moment of 14 crisis, he spoke to Karla in English, not in 15 Spanish. 16 MR. LEWIS: There's evidence in the 17 record that at various times Karla spoke 18 English in what would probably be 19 demonstrating a bilingual capacity, let's 20 say. 21 SENATOR STAVISKY: But Senator 22 Monserrate spoke in English. At a time of 23 stress when you would assume he would revert 24 to his first language. 87 1 SENATOR SAVINO: Particularly if her 2 English wasn't -- they're saying her English 3 was not as good as -- 4 MR. LEWIS: Only she says her English 5 was not that good. 6 CHAIRMAN SCHNEIDERMAN: But the 7 evidence is that the downstairs neighbor 8 said she heard him say "Listen to me. 9 Listen to me." And Senator Savino's point 10 is it must have been said fairly forcibly 11 for her to make it out. 12 SENATOR SAVINO: Right, for it to be 13 audible. 14 CHAIRMAN SCHNEIDERMAN: Was there any 15 attack on her credibility as far as -- 16 SPECIAL COUNSEL ALONSO: Yes. Only 17 in the sense that she was exaggerating, that 18 she was a bit odd, a bit of an odd duck. As 19 comes through through the testimony when she 20 talked about the scream that she heard, and 21 she apparently screamed so loud that it just 22 seemed ridiculous it would have been that 23 loud. 24 MR. LEWIS: They asked her to do it, 88 1 and she screamed, and apparently court 2 officers came running from other parts of 3 the building. 4 SENATOR ALESI: But this is the same 5 neighbor that Ms. Giraldo went to or tried 6 to go to for help? 7 SPECIAL COUNSEL ALONSO: Yes. 8 SENATOR LANZA: Is there evidence 9 that the complainant and the neighbor knew 10 each other before this night? 11 MR. LEWIS: No, there's no evidence 12 they knew each other at all. 13 SENATOR LANZA: If you think back to 14 the first video, they exit the apartment 15 seemingly in a calm way together. And then 16 as soon as she breaks from that apartment 17 door, that's when he grabs her. So I'm just 18 wondering if she was knocking at the first 19 door she saw or whether or not, based on 20 some prior -- 21 SPECIAL COUNSEL ALONSO: Ms. Giraldo 22 testified that -- and she said "he" -- "I 23 thought he could help me." 24 SENATOR LANZA: So it's just 89 1 coincidental that it's the same neighbor 2 that heard all the -- 3 SPECIAL COUNSEL ALONSO: Yes. 4 MR. LEWIS: It's the first apartment 5 that she gets to. 6 SENATOR HASSELL-THOMPSON: It seems 7 like the same apartment below her. 8 SPECIAL COUNSEL ALONSO: Another key 9 prosecution point is that nobody called 911. 10 And this argument that the prosecutor makes 11 was relatively central in the trial, and the 12 judge picks up on it, as I'll show you 13 later. 14 He says the problem is that with 911 a 15 lot of things can happen, because they start 16 bringing in officers, possibly forms that 17 the police may fill out. And obviously 911 18 would mean that he has concern for her and 19 not for himself, because clearly at this 20 point in time he doesn't call 911 for a 21 reason. 22 The inference that the DA is asking the 23 judge to draw is that he is driving her to 24 the hospital not primarily out of concern 90 1 for her well-being but out of concern for 2 keeping this incident quiet. 3 SENATOR SAVINO: And driving her to a 4 hospital outside of the City of New York. 5 SPECIAL COUNSEL ALONSO: Walking her 6 into a hospital in some other neighborhood 7 where he can claim it's an accident, he can 8 interpret for her, she can be treated, and 9 they can go home. That's the inference that 10 the prosecutor is asking the judge to draw. 11 MR. LEWIS: With 911 also it's in 12 police documents, EMT documents, all of this 13 information. That doesn't happen when you 14 just walk into a hospital. A hospital has a 15 reporting obligation, but only under certain 16 circumstances, depending upon what their 17 perception is. 18 SENATOR ALESI: At this point or some 19 other relevant point about 911 did they 20 mention or discuss his training as a police 21 officer? 22 SPECIAL COUNSEL ALONSO: It's in the 23 record that he was a police officer. That's 24 about as far as it went. 91 1 SENATOR ALESI: So it's in the record 2 but the prosecution never emphasized it? 3 MR. LEWIS: They didn't argue it at 4 all. 5 SPECIAL COUNSEL ALONSO: Right. 6 Although I think that certainly if you're 7 asking me if that's something that you're 8 able to consider, I can't imagine why not 9 here. Sure, he's a police officer. He 10 presumably would know the kind of things 11 that happen when you have an incident. 12 I mean, look, we -- you can take notice 13 of the fact that when you call 911, a tape 14 recording is made. Then police and EMS are 15 dispatched. Then the police have to fill 16 out a report and the ambulance driver has to 17 fill out a report. The police talk to each 18 other over the radio. That is 19 tape-recorded. And then, you know, the 20 police would have arrived to a place full of 21 blood and bloody towels and a gash on 22 someone's face. 23 And so that's the point I think that 24 the DA was trying to make there. 92 1 SENATOR ALESI: But the point that I 2 was making is that they didn't drive home 3 the fact that you have former police 4 officer, whose first instinct should have to 5 call 911, aside from an average citizen 6 would probably call 911. 7 SENATOR LANZA: I think the 8 prosecution's inference is that it's 9 reasonable to assume in New York City that 10 any police officer, criminal defense 11 attorney or prosecutor would know that 12 calling 911 triggers this series of events 13 that are recorded and documented. 14 SENATOR ALESI: Okay. As a law 15 person, because we have a judge rather than 16 a judge and a jury. I mean, I'm assuming 17 that's why they didn't drive it home. Okay. 18 MR. LEWIS: The other thing is the 19 only way it got into evidence actually was 20 through a witness that gave it to the 21 prosecution rather than the defense. So it 22 just sort of came out, and that was the end 23 of it. 24 SPECIAL COUNSEL ALONSO: Okay. The 93 1 prosecution's key point is that she tried to 2 escape from him. And of course that's the 3 point in the video where that happens. And 4 Loudon testifies that the ringings of the 5 doorbell "were frantic, it was absolutely a 6 frantic, bonkers, somebody ringing my 7 doorbell bonkers." 8 And the question is "After the three 9 bells that were rung, what was the very next 10 thing you heard? Answer: "A scream." And 11 he asked about the audibility, and she 12 says: "It was very loud. I got the sense 13 she was being pulled out of the building." 14 She says she went to the peephole and saw a 15 bloody towel. So she didn't see what we saw 16 on the video. 17 Giraldo testifies -- she's asked if she 18 recalls why she went to the neighbor's door, 19 and she says "Not because the neighbor could 20 help me get to the hospital, but I was 21 nervous, I was panicky." 22 Now, here the prosecutor impeaches her 23 with her prior grand jury testimony. What 24 he -- I mean, impeachment is a term of art. 94 1 It's not technically allowed. What he's 2 trying to do is to refresh her recollection. 3 What he says is "Well, didn't you tell the 4 grand jury 'I thought maybe he could help me 5 get to the hospital'?" And she says, "As I 6 remember it today, I don't remember if I 7 knocked." 8 And this went on for several pages of 9 the transcript, which I'm not going to put 10 up here. But it was very clear that today's 11 testimony, or last month's, was "I don't 12 remember even ringing the doorbell, let 13 alone why I was ringing the doorbell," yet 14 in the grand jury she said "I thought maybe 15 he could help me get to the hospital." 16 SENATOR SAVINO: But what I'm curious 17 is did anybody ask her, either in the grand 18 jury or during the trial itself, why she 19 thought she needed somebody else to get her 20 to the hospital if it was obvious he was 21 taking her to the hospital? 22 SPECIAL COUNSEL ALONSO: Well, 23 remember, the grand jury, we don't have the 24 testimony. We just have this part. So at 95 1 the trial they were very circumscribed in 2 what they asked. 3 She repeatedly says at the trial, 4 whether she's asked or not, several things. 5 She says "it was an accident, it was an 6 accident, it was an accident," "At the 7 hospital they called the police because my 8 boyfriend's a politician," and "thank God he 9 took me to the hospital, because I didn't 10 want to go because I'm afraid of needles." 11 That's my very quick summary of her 12 testimony. 13 CHAIRMAN SCHNEIDERMAN: Dan, could 14 you just explain -- because this is some 15 strange stuff to laymen -- about the issue 16 of the prosecution calling her as a witness 17 but then limiting her inquiry because -- 18 SPECIAL COUNSEL ALONSO: It's worth 19 talking about for 30 seconds at least. 20 The DA doesn't believe her, what she's 21 saying today. But the law doesn't allow the 22 DA to call a witness just to impeach them. 23 They didn't want to call her at all, but the 24 judge kind of pressured them. And so they 96 1 called her. 2 As long as they were calling her, they 3 weren't going to go anywhere near what 4 happened in the apartment, because they 5 don't believe her. They don't want the 6 evidence in the record. And they don't want 7 to be accused of suborning perjury, because 8 they think she's lying. 9 So they didn't even ask her what 10 happened in the apartment. They asked a few 11 circumscribed things that had to do with 12 testimony they already had her on in the 13 grand jury, which is that she thought the 14 neighbor could help get her to the hospital, 15 that she only had two drinks that night, 16 that she wasn't drunk. Things that she had 17 already said to the grand jury that were 18 under oath, so they were allowed to bring 19 that up. 20 But they didn't want to call her at 21 all. But as long as they did, they asked 22 her those questions. But it was not unusual 23 at all that they didn't sit and have a long, 24 full set of questions -- like, for example, 97 1 we might do if that's what the committee 2 wants to do. 3 MR. LEWIS: As a consequence, we do 4 not have either her version of what happened 5 in the apartment or his in front of us. And 6 neither did the judge. Which prevented him, 7 really, from rendering a guilty verdict 8 beyond a reasonable doubt, because he didn't 9 have enough. 10 There's tremendous colloquy in the 11 transcript all over the place in which they 12 are discussing how careful they are not to 13 open the door. And so even when they get 14 close to the events in the apartment, they 15 back off. Because the prosecution can't 16 propound her testimony, and the defense 17 can't use her either for their witness 18 without running the risk that she can then 19 be cross-examined by the prosecution. So 20 that chunk of information is missing from 21 the record. 22 SPECIAL COUNSEL ALONSO: It's a very 23 important point. The record does not have a 24 full account from either of the two people 98 1 who know the most about this. 2 SENATOR SAVINO: I don't remember, 3 but when she testified before the grand 4 jury -- and hopefully we'll get the minutes 5 of the grand jury and we can find this 6 out -- did she take the position then that 7 this was an accident? 8 SPECIAL COUNSEL ALONSO: Yes. 9 SENATOR SAVINO: So she always held 10 that position. 11 SPECIAL COUNSEL ALONSO: Well, not 12 always. I mean, it depends if you believe 13 the doctor and the nurse. 14 SENATOR SAVINO: But I just find that 15 comment that she made to the grand jury that 16 they reference -- and then what she says in 17 the trial about why she knocked on the 18 neighbor's door. 19 SPECIAL COUNSEL ALONSO: At the trial 20 she claimed not to remember knocking at all. 21 So she doesn't say why or why not. 22 In the grand jury she says yeah, I 23 knocked on the neighbor's door, I thought he 24 could take me to the hospital. 99 1 SENATOR SAVINO: Why would she need 2 someone else to take her? Unless she wanted 3 to get away from him. 4 MR. LEWIS: Well, I think, with all 5 due respect, we may be jumping the gun, 6 because there's an awful lot else you still 7 have to see and digest before you get to see 8 those two as the only two alternatives. 9 SPECIAL COUNSEL ALONSO: I agree. 10 And I do caution you against jumping the gun 11 until you've seen everything that we have -- 12 CHAIRMAN SCHNEIDERMAN: And we still 13 haven't seen the defense evidence, keep that 14 in mind, and reviewed all the evidence 15 carefully. We will have another opportunity 16 to review this and discuss this at our later 17 meeting. 18 SENATOR STAVISKY: Are you going to 19 give us this PowerPoint presentation in 20 written form? 21 SPECIAL COUNSEL ALONSO: Yes. Yes, 22 on a disc, so you can play the video if you 23 want. 24 So here are a couple of slides right 100 1 after the ringing the doorbell. These are 2 stills. 3 And again, this is more of the 4 prosecution's summation about what a 5 reasonable person would have done. A 6 reasonable person in the senator's position 7 would have called 911, would have talked to 8 her for a few seconds when she was at the 9 door, would have consoled her for a second 10 and not just kept going. In other words, 11 the idea is she's ringing the doorbell, you 12 stop, console her: "Honey, what are you 13 doing?" That's the argument the prosecution 14 is making. Not grab her by the arm and pull 15 her out of the building. 16 Here's the point about not going to the 17 closest hospital. Here are the maps we told 18 you about. This is a localized map of the 19 neighborhood. There is where Elmhurst 20 General Hospital is, in Queens. And there 21 is Senator Monserrate's apartment just a few 22 blocks away indicating). It's, you know, 23 minutes away, less than a 10-minute walk and 24 a two-minute car ride. 101 1 Here the prosecution -- it's a terrible 2 map, I apologize for it, but it's -- they 3 highlighted all the other hospitals that 4 were closer to Senator Monserrate's 5 apartment than Elmhurst. And so here is 6 Elmhurst Hospital Center, right there in 7 Queens. Just for perspective, there's 8 Manhattan. Here's Elmhurst. And I'm going 9 to light up the hospitals one by one. 10 Lee, can you read those off for us? 11 So the second one that lights up over 12 on the far right is Long Island Jewish. 13 MR. CORTES: Right. 14 SPECIAL COUNSEL ALONSO: And you see 15 how far that is. They're about 12 miles 16 apart. 17 MR. CORTES: Mt. Sinai Hospital of 18 Queens. 19 SPECIAL COUNSEL ALONSO: Okay. The 20 fourth one is? 21 MR. CORTES: Forest Hills Hospital. 22 SPECIAL COUNSEL ALONSO: And the 23 fifth one? 24 MR. CORTES: Wyckoff Heights Medical 102 1 Center. 2 SPECIAL COUNSEL ALONSO: And again, 3 remember, here's Elmhurst. Then? 4 MR. CORTES: Flushing Hospital 5 Medical Center. New York Hospital Medical 6 Center of Queens. Queens Hospital Center. 7 Jamaica Hospital Center. 8 SPECIAL COUNSEL ALONSO: And I 9 ignored these two outliers down at the 10 bottom, just because arguably they're far. 11 But there are -- by this count, there 12 are seven hospitals in Queens that are 13 closer to the senator's apartment than Long 14 Island Jewish. 15 SENATOR YOUNG: Eight hospitals. 16 SPECIAL COUNSEL ALONSO: Here's the 17 point about the emergency room. Lee, could 18 you do these over? I don't know one which 19 one is a better picture. 20 This is what happens when they get to 21 the hospital. And we know this because of 22 both her testimony and where the senator's 23 car was parked. But what I can show you is 24 the emergency room entrance -- is it there, 103 1 Lee, or there? Which one says ER? It's 2 right there. So on the slide, the emergency 3 room is right there (indicating). 4 So you've got to come in through the 5 entrance sign, and you've got to drive 6 around here, this building, through the 7 security booth, and here's the ER drop-off. 8 There's a parking garage near the entrance. 9 And this is where Senator Monserrate 10 parked (indicating). He parked on the 11 street. And they had to walk up these 12 stairs to go to the main entrance of the 13 hospital. And then they walked through the 14 hospital, as you saw in the video, to where 15 the ER is. 16 And there are parking lots -- they're 17 hard to see on the pictures, but there are 18 parking lots here and here (indicating), 19 near the ER, or at least a lot closer to the 20 ER than there. Plus there's a drop-off, 21 there's a place where cars drop off people 22 in the ER. 23 And the inference the prosecution 24 asks -- here's where the car was parked, 104 1 approximately. Just right on the street, 2 regular parking. And the inference the 3 prosecution asks the judge to draw is it's 4 3:30 in the morning, there's parking lots, 5 there's an emergency room where you can 6 drive right up with this person who is 7 bleeding. Instead, you park 200, 300 yards 8 away on the street. The inference he's 9 trying to draw is he's trying to draw 10 attention away from himself and he's trying 11 to control the situation by not letting the 12 patient go to the emergency room by herself. 13 That's the inference the prosecution asks 14 the judge to draw. 15 And the prosecution says that the 16 medical records are inconsistent with it 17 having been just an accident. This, again, 18 being the incident with the glass. And 19 remember, that's acquitted conduct. We're 20 not relitigating it, but for context it's 21 important to know what the prosecution 22 theories are. 23 So here are the medical records. What 24 the triage note from Nurse Cabibbo says is 105 1 that about 40 minutes ago -- so just before 2 they left -- she was involved in an 3 altercation. A very vague word, but it 4 generally means some sort of a fight. Forty 5 minutes ago, not two hours ago, is what the 6 prosecution points out. And the patient 7 refused the police to be called is the other 8 significant point there. 9 So Dr. Kort, who is the doctor who 10 treats her before the plastic surgeon -- 11 this is the one that speaks Spanish. Dr. 12 Kort, by the way, is -- Spanish is not her 13 first language, but she has one parent who's 14 Panamanian and one who's Puerto Rican, and 15 she lived abroad in Spain. So she does 16 speak Spanish fluently. 17 What she writes is "As per she was 18 involved in an altercation with boyfriend. 19 During the altercation, the patient struck 20 in face with broken glass." Those are 21 bracketed words. 22 Again, the defense, as you'll see, 23 makes much of the fact that all this other 24 stuff about how he took the glass and shoved 106 1 it in her face isn't there in the initial 2 notes, just that it was an altercation with 3 the boyfriend. But significantly, the 4 prosecution says, during the altercation. 5 So they were fighting. It wasn't an 6 accident, it was during the altercation the 7 patient was struck in the face with the 8 glass. 9 MR. LEWIS: Just one thing about the 10 slides, I'm sorry. In the slide the word 11 "with" is actually the nurse's symbol for 12 the word "with." The word itself is not 13 there, it's an abbreviation. 14 SPECIAL COUNSEL ALONSO: It's an 15 abbreviated "with." 16 MR. LEWIS: What nurses sign for the 17 word. 18 SPECIAL COUNSEL ALONSO: That's 19 right. And also they made much of the fact 20 that it's "as per." As per who? The 21 defense tried to imply that maybe somebody 22 else said that this is what happened, that 23 maybe Nurse Cabibbo was -- that it was 24 related to her but that's not what Ms. 107 1 Giraldo told her. 2 SENATOR LANZA: Now, as a reminder, 3 she prepared this statement 4 contemporaneously with her interview with 5 the patient, as opposed to it being done 6 later. 7 SPECIAL COUNSEL ALONSO: That's 8 right. And when we get to the defense case, 9 they make a very big point about the fact 10 that there are all sorts of things not said 11 here, and this is a contemporaneous record 12 while meeting with the patient. 13 We have more records. Post altercation 14 with boyfriend, 30 minutes to an hour, NYPD 15 was called -- and this is by Dr. Kort -- for 16 a suspicious wound. 17 This is -- I believe this is Sasson's. 18 Yeah, this is the plastic surgeon. He says 19 "status post severe assault with broken 20 glass," but that's misleading. I would not 21 read too much into that, because he 22 testifies that he didn't really get to 23 interview her about what happened, he just 24 got this from the other doctors. So he's 108 1 not an independent witness to her 2 statements. 3 MR. LEWIS: But he also thought that 4 it was severe. His opinion was it was 5 severe because one of the cuts went down 6 right to the ligament and the bone. So he 7 wasn't quoting her, he was saying what he 8 believed. 9 SPECIAL COUNSEL ALONSO: I think 10 that's accurate. 11 I also will caution you, and you'll see 12 this later, that he agrees with the defense, 13 that he can't say that the injuries were 14 inconsistent with it being an accident. The 15 injuries are equally consistent with it 16 being an accident or being an intentional 17 assault. 18 Now, this is Nurse Cabibbo. You've got 19 these in your materials. This is a defense 20 exhibit. And she says: "I began the 21 triage, and I recall her stating 'He's 22 crazy, he's crazy.'" 23 Dr. Kort tells us that the statement 24 that she makes is: "I can't believe he did 109 1 this to me. My face, my face. I can't 2 believe my face." 3 And then she's asked to elaborate, and 4 Dr. Kort says that Ms. Giraldo said "We were 5 fighting, I asked for a glass of water, and 6 he said, 'You want the water? You want the 7 water? Here's the water.'" While saying 8 this, the patient reenacted the scene 9 holding her hand out as if she was holding a 10 glass and shoving the glass against her 11 face. 12 So the claim is that when Ms. Giraldo 13 was being treated by a doctor for the very 14 first time that night, that morning, and 15 she's asked what happened, she says "We were 16 in the middle of a fight, he had a glass in 17 his hand, he shoved it against my face." 18 Which is inconsistent with what he and she 19 later said. 20 And again, Dr. Kort tells us that on 21 that night the patient became very upset and 22 repeated many times "It wasn't an accident, 23 we were fighting and he cut my face." Now, 24 this is, significantly, a statement that she 110 1 makes in response when Dr. Frogel, who had 2 spoken to Senator Monserrate, walked in and 3 said "The boyfriend says it was an 4 accident." This is me paraphrasing, but 5 that's roughly what it was. 6 And then Dr. Kort says that's when she 7 became very upset and repeated many times 8 "It wasn't an accident, we were fighting and 9 he cut my face. We were fighting, we were 10 fighting and he broke the glass, took a 11 piece and cut my face." 12 Now, note that Dr. Kort's statement 13 about what Ms. Giraldo said is internally 14 inconsistent. There were two different 15 versions of what happened stated by the 16 complainant. She agrees with that when she 17 testifies at the trial, and she chalks it up 18 to Ms. Giraldo was actually giving multiple 19 versions of what happened. 20 The defense says -- and you'll see more 21 of this -- you know, that means that neither 22 of these happened and you can't trust 23 anything Dr. Kort says. 24 CHAIRMAN SCHNEIDERMAN: This was a 111 1 contemporaneous record? 2 SPECIAL COUNSEL ALONSO: No. You 3 hear that in the defense case. The defense 4 makes much of the fact that two weeks passed 5 before Dr. Kort memorialized this statement. 6 MR. LEWIS: And what the defense 7 does, as you can see, is to blend the 8 January 6th statement with the earlier 9 statement to try and make it seem that they 10 were all not contemporaneous, when there are 11 contemporaneous statements by Dr. Kort. 12 So in thinking about this, you have to 13 keep at least aware of what was said when, 14 because Dr. Kort did in fact say that 15 Giraldo's statements that night to her were 16 themselves inconsistent. So that would 17 support, in part, what we're looking at as 18 actually what may have happened. 19 SPECIAL COUNSEL ALONSO: And by the 20 way, the district attorney does not today 21 believe that he broke a glass, took a piece 22 and slashed her face. That's not the theory 23 that the DA has put forward at the trial. 24 The DA believes the shoving the glass in the 112 1 face, that the breaking of it was possibly 2 in his hand just before, possibly in the 3 face. 4 SENATOR SAVINO: Did he have any cuts 5 on him? 6 SPECIAL COUNSEL ALONSO: Yes, he had 7 one cut on his hand. 8 MR. LEWIS: One cut on his hand. 9 SENATOR YOUNG: Can you go back to 10 the previous slide? 11 SPECIAL COUNSEL ALONSO: Sure. 12 This is Dr. Kort telling us about when 13 she wanted to call the police, Dr. Kort 14 wanted to call the police. She was telling 15 the patient she needed to hear the truth. 16 "What's the truth? Unless I know the truth, 17 we're going to call the police." That's 18 when Ms. Giraldo became hysterical. She 19 says, "You can't call the police. He's a 20 senator, and I don't want to cause any 21 trouble." 22 Now, the prosecution, the position 23 about that statement is the answer is not 24 "don't call the police, it was an accident"; 113 1 she's more concerned about getting her 2 boyfriend in trouble. He then says, look, 3 these statements are corroborated by all the 4 other evidence, and that's how you know it's 5 credible. 6 I don't think they're corroborated by 7 all the other evidence. It's very much an 8 arguable question whether this was an 9 intentional act or not. There's enough 10 evidence for a reasonable fact finder to 11 conclude that it was intentional, but it's 12 certainly not unreasonable for the judge to 13 conclude that the People did not prove the 14 case beyond a reasonable doubt. 15 MR. LEWIS: And this argument, like a 16 lot of other arguments, it's easy to see why 17 juries are charged over and over again that 18 lawyers' arguments aren't evidence, because 19 they're usually stronger than one would 20 necessarily conclude. 21 SPECIAL COUNSEL ALONSO: The 22 prosecution comes out and says she wasn't 23 being truthful with the court, she lacks 24 credibility. When she says it's an 114 1 accident, she also says in her testimony 2 that either she didn't recall saying those 3 statements to the doctor or she didn't make 4 those statements to the doctor. So she 5 contradicts the doctors. 6 And the prosecution says that's just 7 not credible. There's no reason why these 8 doctors would make up such detailed 9 statements and come into court. 10 The defense theory on that is 11 essentially that the doctor is predisposed 12 to believe in a domestic violence situation. 13 And there's some evidence they put forward 14 on that. 15 The location of the wounds. You know, 16 I think this is a weak argument. The 17 prosecution makes much of the fact that he 18 hits her in the eye and it was intentional. 19 I think that's a weak argument. He could 20 have hit her in the chin, hit her in the 21 nose. It doesn't mean one thing or another. 22 MR. LEWIS: He doesn't have any 23 evidence to support it at all. 24 SPECIAL COUNSEL ALONSO: Correct. 115 1 They're just guessing. 2 And by the way, there's no requirement 3 that every argument you put forward be 4 strong. I'm just pointing out what the 5 arguments are. 6 Okay, so the defense case -- 7 SENATOR LANZA: Can we go back for a 8 second? Dr. Kort calls the police while the 9 complainant is still in the emergency room. 10 SPECIAL COUNSEL ALONSO: Yes. 11 SENATOR LANZA: And she claims she 12 was concerned about her safety. 13 SPECIAL COUNSEL ALONSO: A doctor in 14 that case has a requirement to call the 15 police. 16 SENATOR LANZA: When a person is 17 arguably safe while they're still in the 18 hospital, was she suggesting she wanted to 19 sort of call the police right away because 20 she was concerned about her future safety? 21 And that's not really clear from the record. 22 It's something we'll have to talk about 23 later. 24 MR. LEWIS: There's evidence in the 116 1 record of the issue of a safety discharge. 2 And that is often in domestic violence cases 3 and in other cases, when someone brings 4 someone into a hospital who they believe 5 caused the injury or actually caused the 6 problem, they can't safely discharge them. 7 SENATOR LANZA: It's kind of early, 8 according to normal practice -- 9 SPECIAL COUNSEL ALONSO: She 10 testified she didn't think this was a safe 11 discharge, that it was a possible stabbing. 12 MR. LEWIS: Also, the problem is 13 everything is inconsistent. Her statements 14 are inconsistent, and the senator and the 15 victim's statements are inconsistent. So 16 for purposes of a safety discharge, once 17 those statements are all over the place, 18 they've got to make a decision. 19 And the other thing is there are 20 reporting requirements for a stabbing. So 21 once someone is stabbed, it has to be 22 reported. Eventually this was going to be a 23 police call; it's just a matter of when. 24 SPECIAL COUNSEL ALONSO: Okay. So 117 1 the incident in the apartment was an 2 accident is obviously the key point of the 3 defense. They both said it, and both those 4 statements are in the record. She testified 5 to it, and Senator Monserrate told Dr. 6 Frogel and that's in evidence. 7 Here's her testimony. "This was an 8 accident, and I am only telling the truth." 9 She repeated that many, many times during 10 the testimony, things like this. "I'm only 11 telling the truth," she says a lot. 12 "Did you tell the doctor who maybe you 13 thought was a nurse and spoke about that 'it 14 wasn't an accident, we were fighting'?" "I 15 don't recall saying that. But that my beau 16 was involved in an accident with me, yes." 17 SENATOR SAVINO: She used the word 18 "beau"? 19 SPECIAL COUNSEL ALONSO: Yes. She's 20 speaking through an interpreter, so it's 21 stilted English. 22 "Did you tell her it wasn't an 23 accident?" "I said that it was an 24 accident." So she's directly putting the 118 1 lie to Dr. Kort's testimony. 2 So this is Dr. Frogel. He testified by 3 stipulation. That just means an agreement 4 by both sides that we don't need to actually 5 call this man and inconvenience him. If he 6 were called to testify, this is what he 7 would have said. 8 And this is Dr. Frogel telling us what 9 Senator Monserrate told him. He went to get 10 her something to drink. As he was handing 11 her the glass, he tripped, or he said he 12 slipped, and consequently the glass 13 shattered. There was glass everywhere, he 14 said. It cut the patient. And he said the 15 glass cut him, as he was pointing toward his 16 palm. 17 By the way, Dr. Frogel did not 18 memorialize the previous statement until 19 January 2, 2009. You'll see they make much 20 of the fact that Nurse Cabibbo and Dr. Kort 21 didn't memorialize them either until early 22 January. That, they say, is a reason to 23 believe they're not telling the truth. 24 However, they rely heavily on Dr. Frogel's 119 1 stipulation, despite the fact that he does 2 the same thing. 3 At the end of the day, just because you 4 wrote it down two weeks later doesn't mean 5 necessarily that you're not telling the 6 truth. 7 SENATOR SAVINO: Isn't it odd, 8 though, that he would report they had sex 9 before they had an argument? You didn't 10 highlight that part, but -- 11 SPECIAL COUNSEL ALONSO: I didn't 12 highlight the sex part. 13 SENATOR SAVINO: Why would somebody 14 report that? 15 MR. LEWIS: To try to remove motive. 16 The idea being "we weren't fighting." 17 SENATOR SAVINO: No, he admits they 18 had an argument and then the accident 19 occurred. But why the need to reveal 20 something that doesn't appear to really be 21 related? 22 MR. LEWIS: Because it may not be 23 true. 24 SPECIAL COUNSEL ALONSO: Here's the 120 1 aesthetician. She's called to relay the 2 same statements, or at least she's asked to 3 relay the same statements. "She said she 4 had an accident," "she said she had an 5 accident," "she had an accident." So the 6 aesthetician definitely made that clear, 7 that that's what Ms. Giraldo told her. 8 The language issue is here. Nurse 9 Cabibbo was asked "You're not fluent in 10 Spanish, are you?" Answer: "No." 11 Nurse Cabibbo wrote down -- somebody 12 asked about this earlier -- she wrote down 13 "competent in English but reinforced by 14 Spanish." So she's saying she could 15 understand and be understood but, you know, 16 it had to be reinforced by a Spanish 17 speaker. I'm not sure who that was. 18 "We didn't understand each other 19 because of the language" is what Giraldo 20 says. She says the nurse and she could not 21 understand each other because of the 22 language. So Ms. Giraldo is basically 23 saying there that she doesn't understand 24 English well enough to be able to speak to 121 1 the nurse. 2 The stipulation, there was a language 3 barrier between Dr. Frogel and Karla Giraldo 4 which prompted him to get Dr. Kort. "Karla 5 Giraldo spoke broken English." This is 6 Dr. Kort -- 7 SENATOR FLANAGAN: With Dr. Frogel, 8 you keep referencing this as a stipulation. 9 SPECIAL COUNSEL ALONSO: Yes. 10 CHAIRMAN SCHNEIDERMAN: It just means 11 the prosecution and the defense stipulated 12 to his admission. 13 MR. LEWIS: Dr. Frogel -- 14 CHAIRMAN SCHNEIDERMAN: Just for that 15 one. 16 MR. LEWIS: Dr. Frogel testified not 17 in person but by stipulation. 18 SENATOR FLANAGAN: Thank you. 19 SPECIAL COUNSEL ALONSO: It just 20 means they both agreed as to what he would 21 say if he were called. It's so as to do 22 away with the inconvenience of having him 23 appear in person. 24 This is Dr. Kort. "You switched 122 1 between English and Spanish as you spoke 2 with her?" Dr. Kort says: "As she did, 3 yes." "You went back and forth?" "Yes." 4 "Spanish isn't your first language, is it, 5 Dr. Kort?" Answer: "No, that's true." 6 Except as I told you, Dr. Kort spoke 7 Spanish at home with her Panamanian and her 8 Puerto Rican parent and studied in Spain, 9 but she did not in fact study Spanish in 10 Ecuador. And also she conceded that European 11 Spanish is a little different than 12 Ecuadorian Spanish. 13 SENATOR SAVINO: It's a lot closer 14 than Puerto Rican Spanish. 15 MR. LEWIS: By the way, the facialist 16 is not Ecuadorian, but she was able to 17 understand her Spanish. And there's some 18 evidence about some of the party-goers who 19 also understood Ms. Giraldo's Spanish 20 weren't Ecuadorian. That's in the record 21 buried in other places, but it's there. 22 SPECIAL COUNSEL ALONSO: "Giraldo 23 said she had difficulty speaking to a doctor 24 who was a female doctor who spoke Spanish, 123 1 yes or no?" Yes, she had difficulty 2 speaking to Dr. Kort. 3 Okay, so that's the language issue. 4 Here's the part about Dr. Kort was 5 predisposed to conclude that this was a 6 domestic violence issue. 7 Dr. Frogel told Dr. Kort before Dr. 8 Kort spoke to Ms. Giraldo that there was 9 potential domestic violence. And that is a 10 defense exhibit from the trial -- not an 11 exhibit, it's a slide and a summation that 12 they used. It's hard to read, but -- Lee, 13 can you read that? 14 "Patient was then continuously pressed. 15 'He broke the glass, then took a piece and 16 cut my face.'" 17 Now, what happens here is Dr. Kort sits 18 down on January 6th and she writes down her 19 recollection of what happened over four 20 pages. She then inserts two additional 21 pages. She also crosses things out. So, 22 for example, there she crossed out the word 23 "threatened." It says "I then threatened 24 the patient." Instead, she writes: "I then 124 1 was honest with the patient." And she 2 explains that she didn't agree with her 3 original choice of words. This is her 4 sitting there by herself writing her own 5 statement; she didn't agree with her 6 original choice of words. She crossed it 7 out, she then wrote "I was honest with the 8 patient." 9 The reason this was typed and this was 10 handwritten is that it was later typed up. 11 But both of them were in evidence. And this 12 is the defense side on summation saying, 13 hey, she didn't say "threatened." And of 14 course the inference is she threatened 15 Ms. Giraldo, which caused Ms. Giraldo maybe 16 to say something that wasn't true. 17 CHAIRMAN SCHNEIDERMAN: I'm sorry. 18 What was the theory of what she was 19 threatening her with? She was treating a 20 patient. 21 SPECIAL COUNSEL ALONSO: It doesn't 22 say. She just used the word "threatened," 23 and the defense latched onto that word. You 24 know, what Dr. Kort actually in fact says is 125 1 she told her that she could be honest with 2 her. 3 SENATOR STAVISKY: When Ms. Giraldo 4 testified in court, did she speak in English 5 or in Spanish? 6 SPECIAL COUNSEL ALONSO: Spanish. 7 And Ms. Giraldo testifies here that she 8 was pressuring her. And I think she had 9 already even called the police. So the 10 defense latches onto the "threatened" that 11 was crossed out and Ms. Giraldo's testimony 12 that she was pressured and makes the 13 argument that, you know, nothing she said, 14 supposedly, to Dr. Kort is reliable because 15 it was the result of coercion. 16 MR. LEWIS: If you read the next 17 sentence on that exhibit, there's a 18 reference to calling the police. So you can 19 infer that she threatened to call the police 20 and then thought better about it and didn't 21 actually threaten to call the police. If 22 you read the exhibit line by line. 23 SENATOR FLANAGAN: How old is 24 Ms. Giraldo? 126 1 SPECIAL COUNSEL ALONSO: 31. 2 SENATOR FLANAGAN: How long has she 3 been in New York? 4 SPECIAL COUNSEL ALONSO: Seven years. 5 MR. LEWIS: She'd been writing for a 6 Spanish and English newspaper as part of her 7 job. That's in the record as well. 8 SPECIAL COUNSEL ALONSO: Her job was 9 sales and marketing for a newspaper called 10 El Mensajero {sp}, in Queens, and she was 11 paid off the books to do sales. 12 SENATOR FLANAGAN: So she came from 13 Ecuador at age 24, or did she come from 14 somewhere else? 15 SPECIAL COUNSEL ALONSO: As far as we 16 can tell from the record, she came here from 17 Ecuador from age 24. 18 SENATOR STAVISKY: There's a lot of 19 Ecuadorians in the Jackson Heights area. 20 SENATOR ALESI: How long did she work 21 for the paper, or has she worked for the 22 paper? 23 SPECIAL COUNSEL ALONSO: She didn't 24 say. She said she'd been unemployed for 127 1 four or five months at the time she 2 testified. 3 MR. LEWIS: The prosecution tried to 4 suggest that she and one of the other 5 witnesses had worked together at the 6 newspaper. But there's no timeline at all 7 for that. 8 SPECIAL COUNSEL ALONSO: And when the 9 prosecution asked her -- I don't know why -- 10 if she got paid in cash, she said yes. 11 SENATOR SAVINO: Did she have 12 problems speaking with Senator Monserrate? 13 SPECIAL COUNSEL ALONSO: I don't 14 think that's in the record. 15 MR. LEWIS: There's nothing about 16 that in the record. 17 SENATOR SAVINO: He's not Ecuadorian, 18 he's Puerto Rican. 19 SPECIAL COUNSEL ALONSO: He wanted to 20 interpret for her, so the inference is they 21 speak Spanish together. As I understand it, 22 he's Puerto Rican. 23 SENATOR SAVINO: Yes. And the 24 translator in court, do we know where that 128 1 translator comes from, which Latin American 2 country? 3 SPECIAL COUNSEL ALONSO: No. 4 MR. LEWIS: There was some colloquy, 5 when they got to the business about "the 6 beau," about the use of different words in 7 Ecuador and different Spanish-speaking 8 countries. But there wasn't any evidence 9 about where she had come from, and the judge 10 said she'd been in his court all the time 11 and there had never been a problem no matter 12 who the witness was. 13 SPECIAL COUNSEL ALONSO: So here's 14 the part about delay in preparation of the 15 statements. This is an exhibit prepared by 16 the defense. The incident happened on 17 December 19th, and Dr. Kort didn't write her 18 statement until January 6th. Now, of course 19 this is during the Christmas and New Year's 20 holiday. But nevertheless, that's the 21 timeline. 22 She also is pressed on 23 cross-examination, and she says doesn't 24 recall exact statements but she's doing her 129 1 best to recollect what was said back in 2 December of '08. 3 SENATOR ALESI: Did they ever ask how 4 many situations like this she would 5 encounter in the course of a week or a 6 month? 7 SPECIAL COUNSEL ALONSO: Yes, they 8 went through how many patients she had seen 9 between December 19th and January 6th, and 10 the answer was something like 75 to 100. 11 Then the prosecution came back and said how 12 many of those led you to call the police, 13 and the answer was one. 14 SENATOR ALESI: So only in one 15 instance would she have to make a 16 memorializing report. 17 SPECIAL COUNSEL ALONSO: That's 18 probably right. But the point is not that 19 she only had to memorialize it once, the 20 point is how could she possibly remember 21 after two weeks or two and a half weeks, 22 when she saw a hundred other patients 23 between Giraldo and then. And, you know -- 24 SENATOR ALESI: Those other patients 130 1 weren't necessarily suspected domestic 2 violence situations. 3 MR. LEWIS: No, they would be ER 4 patients. 5 SPECIAL COUNSEL ALONSO: They were ER 6 patients. 7 CHAIRMAN SCHNEIDERMAN: Was there any 8 testimony or suggestion that someone 9 suggested they write it down at a later 10 date, or was it just in the -- 11 SPECIAL COUNSEL ALONSO: It wasn't. 12 I feel comfortable going outside the record 13 and telling you that the DA said to write 14 down these statements. The DA said write 15 down everything you remember. But that's 16 not the record. 17 SENATOR STEWART-COUSINS: So in other 18 words, they wouldn't normally have written 19 anything other than what the normal course 20 of treatment was. So it's not like this was 21 late or whatever, it was just for -- 22 SPECIAL COUNSEL ALONSO: Absolutely. 23 CHAIRMAN SCHNEIDERMAN: So there's no 24 issue of suspicion as to why they waited so 131 1 long, the question is just the challenge of 2 recollecting it a few weeks later, so that 3 maybe the recollection was -- 4 SPECIAL COUNSEL ALONSO: I can tell 5 you it's good practice for a prosecutor to 6 ask witnesses to write down their 7 recollection so that they avoid the argument 8 at trial "it never happened, because you 9 never wrote it down." 10 MR. LEWIS: And for a defense lawyer, 11 this gap is sometimes all you've got. 12 SPECIAL COUNSEL ALONSO: Right. 13 SENATOR STAVISKY: Is Dr. Kort a 14 resident, or is she on staff? 15 SPECIAL COUNSEL ALONSO: Dr. Kort was 16 a resident. For the record, Dr. Frogel was 17 the chief of ER. 18 This is the Long Island Jewish domestic 19 violence policy, which the defense put into 20 evidence. You've got it in your packet. 21 And it requires doctors and nurses in 22 domestic violence incidents to quote the 23 informant, slash, patient as much as 24 possible. 132 1 And the argument of the defense was you 2 didn't do that, there's all sorts of areas 3 where you violated policy and you didn't 4 quote the patient. 5 MR. LEWIS: And the interesting thing 6 is once they called the police, the policy 7 falls out of the conversation. Because the 8 whole idea of the policy is to memorialize 9 that information for the cops. And she 10 called the police at the same time that they 11 were present in the ER. 12 So when you look at the policy, you 13 need to look at it in light of what else is 14 going on. 15 SPECIAL COUNSEL ALONSO: And one last 16 thing to remember is that the argument is in 17 that two-week period, it wasn't just 18 Christmas and New Year's, it was a time when 19 the newspapers were all writing stories 20 about how Senator Monserrate had assaulted 21 his girlfriend. So there is, you know, an 22 issue there at least. 23 SENATOR FLANAGAN: I don't want to 24 split hairs, but since we are creating a 133 1 transcript here, you did just say it's the 2 Long Island Jewish domestic violence policy. 3 I just want to clarify that. It's the North 4 Shore LIJ Health System. 5 SPECIAL COUNSEL ALONSO: Okay. I 6 stand corrected. 7 SENATOR FLANAGAN: It could be just 8 termed a different way. 9 SPECIAL COUNSEL ALONSO: Yeah, okay, 10 right. It's the corporation's policy as 11 opposed to -- all right. 12 SENATOR STAVISKY: They have a 13 network of, you know, how many -- 14 SENATOR FLANAGAN: I know, but if 15 someone is not familiar with that, they 16 could misread that. 17 SPECIAL COUNSEL ALONSO: Oh, that it 18 referred to the religion as opposed to the 19 name of the hospital? 20 SENATOR FLANAGAN: Yes. 21 SPECIAL COUNSEL ALONSO: I was 22 referring to the hospital. Thank you, 23 Senator. 24 Nurse Cabibbo also took three weeks to 134 1 write her statement. And that's a defense 2 slide. "Three weeks later you decided to 3 start quoting?" "Yes." 4 Dr. Frogel does not remember hearing 5 Ms. Giraldo say it was not an accident. He 6 doesn't say it didn't happen, he just didn't 7 hear it. 8 At no point did he hear her say "He's 9 crazy, he's crazy," like Nurse Cabibbo did. 10 And the point about the room being dark 11 is an important one. The defense believes 12 that there's forensic evidence, and they 13 have a good argument, that the lights were 14 off in the room at the time of -- at least 15 at the time the police arrived. Now -- I'm 16 sorry, no, no. At the time of the incident. 17 Because there's blood on the light switch in 18 a position that would indicate that it was 19 off at the time of the incident, and 20 somebody turned it on. So there was blood 21 on the top of the light switch. 22 And here is the testimony of the 23 detective: Blood on their hands, bloody 24 print on the light, consistent with the room 135 1 being dark. The prosecution did not rebut 2 this evidence, so it's a reasonable 3 inference that the room was dark. 4 MR. LEWIS: It's hard to tell what 5 position the dimmer was in. 6 SENATOR STAVISKY: Was it a switch or 7 a dimmer? 8 MR. LEWIS: The prosecutor said it 9 was a dimmer without objection. And 10 honestly, you can't really tell. 11 SPECIAL COUNSEL ALONSO: I thought it 12 was a real switch, but . . . 13 This is testimony about intoxication 14 from Mr. Pena, the guy that had the party. 15 The super I told you earlier saw the video 16 and said she was stumbling when she walked 17 in. So there is testimony about some level 18 of intoxication. The medical record shows 19 that she had alcohol on her breath, that's 20 clear. 21 And this is the superintendent saying 22 that the police officer suggested that maybe 23 he'd sell the video for $500. 24 SENATOR HASSELL-THOMPSON: What? 136 1 SPECIAL COUNSEL ALONSO: The defense 2 is trying to bloody up the police officers, 3 saying that they didn't ask the super to 4 record the part where Ms. Giraldo is 5 stumbling in drunk, but they did suggest to 6 the super that maybe he could make $500 by 7 selling the tape. So they don't really care 8 about justice, they care about publicity. 9 MR. LEWIS: Both cops testified, and 10 they didn't confront them with that. 11 CHAIRMAN SCHNEIDERMAN: The 12 suggestion, though, was it was covering up 13 evidence, really. 14 SPECIAL COUNSEL ALONSO: The 15 suggestion of covering up is not recording. 16 The $500 is gratuitous. 17 CHAIRMAN SCHNEIDERMAN: Right. 18 SPECIAL COUNSEL ALONSO: So I'm going 19 to try to speed through this, because we are 20 getting a little bit late. 21 This is a medical record showing that 22 there is alcohol on her breath. That's what 23 ETOH signifies. 24 This is in terms of "I didn't feel she 137 1 was intoxicated." That's what Dr. Kort 2 testified. And she says that that's her lay 3 opinion that she was not drunk; she didn't 4 analyze her blood for alcohol content. 5 The same thing with the cousin here 6 says that she did appear to become drunk at 7 the party. She couldn't go upstairs by 8 herself, she was in no position -- this is 9 the cousin's testimony. And in the grand 10 jury, though, as I mentioned before, she's 11 asked: "At the time you entered the 12 apartment, did you feel you were drunk at 13 all due to the drinks you had, or were you 14 okay?" Answer: "No." Question: "You were 15 okay?" Answer: "Yes." 16 She's also asked: "Did you have 17 anything to drink at the party?" Answer: 18 "I had two glasses of wine." Question: "Is 19 that the extent of the drinks you had that 20 evening?" Answer: "Yes, sir." 21 So the defense also makes something 22 about the two-hour period between the PBA 23 card and the glass, that shows there were -- 24 they say there was a cool-off period, that 138 1 there's really no good evidence of a 2 continuous argument, that it was really two 3 hours later. 4 SENATOR SAVINO: That's why he made 5 the comment about that they had sex. 6 SPECIAL COUNSEL ALONSO: They were 7 not fighting, they were having sex. 8 SENATOR SAVINO: Now I understand. 9 SPECIAL COUNSEL ALONSO: Yes, I think 10 that's the idea. 11 She said that the noise -- that she 12 didn't hear any screaming at all before the 13 thump, that there was not a lot in between 14 that two-hour period. This is the neighbor. 15 The injuries they say are not 16 conclusive. Again, Dr. Sasson couldn't say 17 whether it was consistent with an accident 18 or an intentional act. 19 They stipulated, by the way, and the DA 20 told me this as well, that they actually 21 tested the glass by a glass expert to 22 determine the circumstances surrounding its 23 breakage to see whether you could actually 24 break a glass in somebody's face 139 1 accidentally or it had to be the product of 2 enough force. 3 And the problem was -- this was only 4 the stipulation; the DA gave me a little 5 more flavor -- without knowing the angle, 6 the acceleration, the velocity, the force 7 that was used, you just can't tell. I mean, 8 I think the answer is you can break a glass 9 in somebody's face on purpose or 10 accidentally. 11 SENATOR LANZA: I don't remember from 12 the medical evidence, was there any evidence 13 of contusions? 14 SENATOR SAVINO: That's what I was 15 going to ask. 16 SENATOR YOUNG: Yes. 17 MR. LEWIS: No. 18 SENATOR YOUNG: Wasn't there? 19 MR. LEWIS: On her face one of the 20 lacerations goes into her face down to the 21 bone and one touches the ligament just above 22 the bone. 23 CHAIRMAN SCHNEIDERMAN: I think that 24 suggests that it was just a piece of glass 140 1 going in. 2 SENATOR YOUNG: It suggests that 3 there was -- 4 MR. LEWIS: -- I'm loath to suggest 5 anything. 6 SPECIAL COUNSEL ALONSO: And finally, 7 their point was that the senator has no 8 history of domestic violence. 9 Now, none of this is in evidence; they 10 just said it. But that's very common in 11 criminal cases where a defense lawyer will 12 just say things about their client and it's 13 not necessarily evidence. 14 All of this is public record anyway. 15 Honors graduate of CUNY, two years of 16 service with the NYPD. Is that right? I 17 thought it was longer than that. So that's 18 a mistake. 19 He was a founding member of the Latino 20 Officers Association of the Police 21 Department and the first and only police 22 officer in New York City to serve on the 23 board of directors of the New York Civil 24 Liberties Union. 141 1 It's 12 years with the NYPD, not two. 2 Sorry about that. 3 He was also the first Hispanic elected 4 to government office in Queens. 5 SENATOR YOUNG: Do we know, when he 6 served as a police officer, what his beat 7 was? 8 SPECIAL COUNSEL ALONSO: I know 9 that -- outside of the record -- it was in 10 Queens, a relatively low-crime area. 11 SENATOR SAVINO: It wasn't Jackson 12 Heights, in the 113? 13 SPECIAL COUNSEL ALONSO: I don't 14 think so. The DA and I had a discussion 15 about where it was. I don't believe it was 16 there. It was a low-crime area, that's what 17 I was -- 18 SENATOR SAVINO: The 112? 19 SPECIAL COUNSEL ALONSO: I can find 20 out if you want. 21 SENATOR FLANAGAN: Going back to the 22 prior slide, you reference points made by 23 defense counsel. 24 SPECIAL COUNSEL ALONSO: Yes. 142 1 SENATOR FLANAGAN: So these are 2 offered into the record? 3 SPECIAL COUNSEL ALONSO: They're not 4 evidence, they're simply things that they 5 said about him. 6 MR. LEWIS: Things from the opening 7 usually indicate you're not going to call 8 the client. You get them in front of the 9 fact finder, and you just never back them 10 up. 11 SPECIAL COUNSEL ALONSO: It would not 12 be proper for the fact finder to even 13 consider any of these things. However, it's 14 public record, this is a colleague from the 15 Senate. And since it is what it is, I 16 thought I would let you know what I -- 17 SENATOR FLANAGAN: In relation to a 18 prior incident, I thought I recall reading 19 that Senator Monserrate was arrested but not 20 charged. 21 SPECIAL COUNSEL ALONSO: That 22 definitely was not part of the record in the 23 trial. And I don't believe -- to the extent 24 that it may or may not have happened, I 143 1 don't believe it to be part of the Senate 2 resolution that created this committee, 3 although I can just advise you. 4 CHAIRMAN SCHNEIDERMAN: Well, we are 5 supposed to be inquiring into the facts and 6 circumstances relating to the conviction. 7 So to the extent -- if that's something 8 that, Senator Flanagan, you think is 9 important -- 10 SENATOR FLANAGAN: I don't know -- I 11 hope I'm not the only one who recalls seeing 12 something to that effect. I'm only asking 13 it in relation to seeing it asserted. 14 MR. LEWIS: You're not the only one 15 who recalls seeing it. I can say that from 16 my own perception. 17 CHAIRMAN SCHNEIDERMAN: Oh, I'm 18 sorry, you mean arrested but not charged in 19 a different incident. 20 SENATOR FLANAGAN: Yes. 21 MR. LEWIS: Right. And I think when 22 they took the position there's no history of 23 violence, they really took the position of 24 no history of domestic violence. And they 144 1 seemed to confine it also to Ms. Giraldo. 2 So I think we probably ought to leave it 3 there until we come to some other -- 4 CHAIRMAN SCHNEIDERMAN: This does 5 raise another interesting point. What 6 information will we have access to produced 7 in connection with the sentencing? 8 SPECIAL COUNSEL ALONSO: Unfortunate 9 ly, the sentencing memoranda are under seal 10 by operation of the CPL, so we're -- unless 11 something was said on the record on the day 12 of sentencing, we will not have access to 13 it. 14 MR. LEWIS: And were we to apply for 15 it, we would likely not get access to that. 16 As opposed to the grand jury minutes, which 17 we have a standing request for that. But if 18 the committee wants to ask for the 19 application, you can try and decide that 20 now. 21 It should just be noted that that may 22 not necessarily be in a New York State 23 presentence report. In presentence reports, 24 not everything goes in. If something was 145 1 sealed somewhere along the line, it won't be 2 available in that presentencing report. 3 SENATOR STAVISKY: May I ask two 4 questions? Go back one second. What do you 5 mean by no criminal record or history of 6 violence? 7 SPECIAL COUNSEL ALONSO: That really 8 should be no history of domestic violence, 9 as Mr. Lewis pointed out. And that's just, 10 again, statements made by his lawyers to the 11 judge, not evidence. 12 CHAIRMAN SCHNEIDERMAN: Argument, not 13 evidence. This is what his lawyer said. 14 SENATOR STAVISKY: There were 15 newspaper accounts of an Election Day 16 incident a number of years ago. 17 SPECIAL COUNSEL ALONSO: And I 18 believe that's what Senator Flanagan was 19 referring to. I believe it actually -- the 20 incident happened, you know, on September 21 11th of 2001 -- 22 MR. LEWIS: Primary Day. 23 SENATOR LANZA: Keep in mind, 24 everyone, that in the context of a criminal 146 1 trial that would not be evidence of 2 anything. And so I think, you know, they 3 could arguably say that. 4 SPECIAL COUNSEL ALONSO: And in fact, 5 it happens all the time in criminal cases 6 that a defense lawyer will say "This is my 7 client's first arrest," when in fact it's 8 happened half a dozen times but it's just 9 been sealed. 10 MR. LEWIS: Not all of us do that. 11 SPECIAL COUNSEL ALONSO: All right. 12 But in any event, I would ask you not to 13 infer anything from that, because we don't 14 know anything about it. 15 CHAIRMAN SCHNEIDERMAN: And again, 16 we're going to have a chance to discuss all 17 this when we're considering our report. And 18 at that time we'll be careful to draw the 19 distinction between evidence and argument. 20 SENATOR STAVISKY: That's why I asked 21 you the question. 22 SENATOR ALESI: Senator Schneiderman, 23 before we get to that point or it looks like 24 we're starting to close here, I still would 147 1 like to know if there is a way that we could 2 pursue more information on their whereabouts 3 during that 37 minutes. Not knowing the 4 geography as well as some of my colleagues 5 here, if there's something other than 6 checking with OnStar or something like that 7 that we could find out what might have 8 occurred, or at least inquire or surmise. 9 CHAIRMAN SCHNEIDERMAN: Certainly the 10 phone records are going to tell us something 11 about what they were doing during that 12 period as far as who they were calling. 13 Does the prosecution have a theory as 14 far as the route taken? 15 SPECIAL COUNSEL ALONSO: They have a 16 theory, but every time I ask the question 17 they say it's grand jury information. So I 18 have high hopes that there will be some 19 useful evidence in the grand jury materials 20 other than the testimony. 21 SENATOR STAVISKY: Will the telephone 22 records show where the calls were made from 23 precisely? 24 MR. LEWIS: No. 148 1 SPECIAL COUNSEL ALONSO: If they have 2 a cell site location, then they show 3 approximate location. So I don't know if 4 those records have -- if they do, they could 5 tell you the tower that that was radiating 6 from. The cellphone -- you can't pinpoint, 7 but you can tell which tower. So if the car 8 is moving, you can tell which tower it's 9 moving from. So in theory, we can do that. 10 I can also just use -- I mean, Senator 11 Alesi, you were joking about OnStar, but I 12 would be happy to use Google Maps or 13 MapQuest and figure out a few alternate 14 routes and how long it's supposed to take in 15 a car driving the speed limit. 16 SENATOR STAVISKY: At 3 a.m., Google 17 will not tell you. 18 SPECIAL COUNSEL ALONSO: But it will 19 tell you with traffic and without. So I 20 will be happy to -- 21 CHAIRMAN SCHNEIDERMAN: I would 22 request that counsel do whatever they can do 23 to get us all the information about what 24 happened during that 37 minutes and the 149 1 possible route they took. It is an 2 interesting question, and I think it is 3 significant in terms of what we -- 4 SENATOR STEWART-COUSINS: If I 5 remember, you were mentioning something 6 about a soda can. Did he have one when he 7 left the building and then came in the 8 hospital with a can, is that it? 9 SPECIAL COUNSEL ALONSO: There's no 10 visual evidence of a soda can when he left 11 the building. It doesn't mean it wasn't in 12 the car with his jacket, but it wasn't in 13 his hand. 14 SENATOR SAVINO: He had a plastic bag 15 in his hand along with -- so maybe in the 16 shopping bag. Maybe he took it with him 17 thinking it was going to be a long ride. I 18 don't know. 19 SENATOR STEWART-COUSINS: And in the 20 phone call to the aesthetician, Ms. Toro 21 told her about what to do with this scar? 22 MR. LEWIS: The testimony is that she 23 basically said "Go to the hospital." 24 The bag is her bag that he's carrying. 150 1 SENATOR SAVINO: But there's also a 2 shopping bag. 3 MR. LEWIS: According to the 4 testimony, that's hers too. 5 SENATOR SAVINO: And her handbag too. 6 CHAIRMAN SCHNEIDERMAN: There's two 7 bags. 8 MR. LEWIS: The evidence is that 9 there's a shopping bag as well. 10 SPECIAL COUNSEL ALONSO: Okay. So 11 continuing, at the end the defense argument 12 is that Giraldo did not want to call the 13 police. Now, I suggest we just accept that 14 she asked the police not to be called. But 15 that doesn't necessarily mean one thing or 16 another about what really happened. 17 And this is a very key point in the 18 defense summation, which is force, not 19 violence. In other words, it was he was 20 using force to take somebody who was 21 refusing to go to the hospital who clearly 22 needed medical attention. He was using 23 force to get her there, because that was the 24 appropriate thing to do. But it was not 151 1 violent and it was not a crime, it was not 2 reckless, et cetera. 3 So here is what Giraldo says: "He was 4 not dragging me, he never hurt me or do 5 anything to me, he was just pulling me to 6 take me to the hospital for my own good. 7 And thanks to him, I am all right and my 8 face is all right." 9 CHAIRMAN SCHNEIDERMAN: Was there 10 ever any discussion of what the theory is 11 what she wanted to do? She just wanted to 12 sit in the apartment with the blood? 13 SPECIAL COUNSEL ALONSO: The theory 14 is that she was afraid of needles and afraid 15 of hospitals and was hysterical and 16 irrational and didn't want to go to the 17 hospital. 18 SENATOR STEWART-COUSINS: But she 19 knocked on the door of a neighbor who might 20 take her there. 21 SPECIAL COUNSEL ALONSO: She doesn't 22 remember doing that. 23 MR. LEWIS: Or she says she was 24 panicking and called the facialist 152 1 supposedly to avoid going to the hospital, 2 to try to get some alternative treatment. 3 SPECIAL COUNSEL ALONSO: So here's a 4 series of slides that were created by the 5 defense for their summation PowerPoint. And 6 what they do is they outline in white some 7 still pictures of individuals. And they 8 have their argument written there, and I 9 think it's important for you to have this. 10 Here, at 1:55, this is the -- I don't 11 know why it says 1:55. That's not the right 12 time. Oh, that's the elapsed time on the 13 video. So ignore that. 14 It says that Ms. Giraldo walks ahead of 15 Mr. Monserrate, she walks, she does not run. 16 Then she unexpectedly starts buzzing the 17 door. But no pushing, no violence. And 18 Monserrate then leads Ms. Giraldo toward the 19 exit. His settled determination is to get 20 her to the hospital. He reaches towards 21 her, there's no pushing, no violence. He 22 doesn't hit her. Force, not violence. 23 He pulls her towards the building, no 24 pushing, no violence. He doesn't hit her. 153 1 Force, not violence. She holds the rail. 2 He doesn't push her, there's no violence. 3 He doesn't hit her. Force, not violence. 4 They're at the door now. He's taking 5 her to the hospital. He doesn't hit her. 6 Now they're in the vestibule, he's taking 7 her to the hospital. He doesn't hit her, he 8 uses force, not violence. 9 SENATOR YOUNG: Does Senator 10 Monserrate know that there's a surveillance 11 camera in the building? 12 SPECIAL COUNSEL ALONSO: The record 13 is silent on that, but it would be hard 14 to -- 15 MR. LEWIS: At the time of the 16 events, or now, or at the time of trial? 17 SENATOR YOUNG: At the time of the 18 events. 19 MR. LEWIS: There's no evidence one 20 way or the other that he knows about them, 21 none whatsoever. 22 SENATOR ALESI: Is there any 23 suggestion that he might not have been sober 24 or that he might have been drinking himself? 154 1 SENATOR YOUNG: No. 2 SENATOR ALESI: He was apparently 3 completely lucid at the time? 4 MR. LEWIS: The testimony is -- one 5 of the witnesses suggests that he was 6 working at the computer in his apartment 7 when she got there, when the cousin got 8 there with Giraldo. So that's the only 9 suggestion about what he was doing or 10 engaged in. 11 SPECIAL COUNSEL ALONSO: Same thing 12 when they're outside. She begins to calm 13 down. They walk toward the car. And this 14 is the part where he puts his arm around 15 her. After that part that Senator Savino 16 pointed out earlier, she walks calmly out to 17 the car. He puts his arm on her shoulder to 18 comfort her. That's an inference that the 19 defense is asking the judge to draw. 20 SENATOR ALESI: That is the only 21 place in any of the films that we saw any of 22 what could be considered a comforting 23 contact. 24 SPECIAL COUNSEL ALONSO: And remember 155 1 that there were differing interpretations of 2 that. The defense calls it a comforting 3 contact; the prosecution calls it more 4 evidence of his control of her. 5 SENATOR ALESI: During their walk 6 through the hospital, there's no contact 7 whatsoever. 8 SPECIAL COUNSEL ALONSO: Right. 9 Okay, so I think it's my last piece on 10 the defense case. The reason they want to 11 LIJ, so far away on the other side of the 12 county, is because LIJ is the best hospital 13 in Queens and, you know, he wanted to take 14 her to the best hospital. I'll leave that 15 to the Queens senators to tell me whether 16 that's right or not. 17 But in any event, the prosecution would 18 counter that when somebody is bleeding like 19 that you take them to the nearest hospital, 20 not necessarily the best. 21 This person is the guy who made the 22 map. He was just asked: "Did you determine 23 the ratings of these various hospitals on 24 the big hospital map?" And he says no. 156 1 MR. LEWIS: He was a prosecution 2 witness. 3 SPECIAL COUNSEL ALONSO: So I don't 4 think I need to analyze the verdict any 5 further than we already have. I mean, we've 6 already talked about these. 7 These are the factors supporting 8 acquittal on Slide 183. The reason that he 9 does not convict the senator is because the 10 two eyewitnesses both said it was an 11 accident, and that's the evidence. That the 12 downstairs neighbor, on the issue of whether 13 it was intentional, was equivocal. 14 And the experts couldn't rule out an 15 accident. All the stuff -- and the judge 16 gave less weight to the statements from the 17 hospital personnel because they don't have 18 any personal knowledge of what happened, 19 they were just relaying what she said. 20 So that's why he acquitted the 21 defendant. And I think it's -- my own view 22 of this, and the advice I give you, it's not 23 an unreasonable verdict. I think the 24 evidence supported either verdict, but I 157 1 don't think anyone could say this was an 2 unreasonable verdict. If Mr. Lewis 3 agrees -- 4 MR. LEWIS: I would come out the same 5 way. Having read the record, as opposed to 6 everything I heard. 7 SENATOR LANZA: Clearly, from the 8 prosecution point of view, the only two 9 witnesses who know what happened in the 10 apartment, they both said it happened. 11 MR. LEWIS: Neither one of them 12 actually testified as to events. They 13 merely characterized the episode. And so 14 with that beyond-a-reasonable-doubt 15 statement, you really are stuck, because you 16 can't render a guilty verdict. And if you 17 can't, you have to acquit. 18 SENATOR YOUNG: Senator Schneiderman, 19 I believe Mr. Alonso said at the beginning 20 of today that if there are other areas or 21 evidentiary things that you want to take a 22 look at, you were thinking about trying to 23 get some input from us as to what those 24 ideas may be. 158 1 CHAIRMAN SCHNEIDERMAN: Yes, we do 2 want to. Certainly if the members of the 3 committee -- is this more or less the end of 4 the slides? 5 SPECIAL COUNSEL ALONSO: Just a 6 couple more. 7 CHAIRMAN SCHNEIDERMAN: I was going 8 to ask -- 9 SENATOR YOUNG: Oh, I'm sorry. I'll 10 ask the question then after. 11 CHAIRMAN SCHNEIDERMAN: -- if you 12 feel we should be looking at more 13 information. 14 SENATOR YOUNG: I'll wait until after 15 the conclusion of his presentation and then 16 we can talk about it. 17 SPECIAL COUNSEL ALONSO: This is the 18 analysis of the conviction on Count 6 that 19 we already went through word for word. But 20 he makes a finding that this was a violent 21 and forceful dragging and not a friendly and 22 nonviolent interaction. 23 He talks about all the factors that 24 we've been talking about. And he says, 159 1 interestingly, that her facial injuries were 2 made worse by the 37-minute drive to LIJ. 3 Okay, so this is the part that I wanted 4 to make sure that you saw. This is after 5 the verdict. You haven't seen this yet. 6 Justice Erlbaum said, on the record, "It 7 would certainly appear not unreasonable that 8 there was another concern, and that is to 9 get her away from the house and to get her 10 away from a neighborhood where the defendant 11 had roots and was likely well known in that 12 community, to get her to a place of low 13 visibility and enter in a manner of low 14 visibility." 15 He says Elmhurst would have been hotter 16 than a pistol, and he wanted to keep things 17 under the radar. He doesn't make a finding, 18 but he says circumstances suggest that he 19 was trying to keep things under the radar. 20 And that's the presentation. 21 CHAIRMAN SCHNEIDERMAN: And thank you 22 very much. Thanks to counsel, thanks to 23 Mr. Alonso and his team. 24 And we are -- as I indicated, we are 160 1 planning for our next meeting to be the 2 opportunity for Senator Monserrate's counsel 3 to present whatever they want to present to 4 us. But as Senator Young just raised, I do 5 want to open it up so that if there is any 6 other information which any member of the 7 committee feels is important, that we have a 8 chance to discuss that now and see if 9 there's some information we can get. 10 There's some we can't get. But this is 11 certainly something that everyone should 12 feel free to speak up about. 13 Senator. 14 SENATOR YOUNG: I believe that I read 15 somewhere after the trial was concluded that 16 there was a person who supposedly was close 17 to Senator Monserrate who was escorting 18 Ms. Giraldo back and forth to court. And it 19 would be interesting to look at whether that 20 was true or not, what the relationship was 21 between Senator Monserrate and this person 22 and also Ms. Giraldo and that person. 23 And also it should be considered, I 24 believe, because of the discrepancies 161 1 between the grand jury testimony of 2 Ms. Giraldo and the trial testimony and the 3 fact that the prosecution had to impeach her 4 at least twice, I believe, based on the 5 PowerPoint presentation. 6 So I just think that there seemed to be 7 a changing of the story, quite possibly, 8 between the grand jury -- and we'll have 9 more information when they get that 10 testimony -- and the trial. And I just 11 think that person may be relevant. 12 CHAIRMAN SCHNEIDERMAN: That raises a 13 sort of a broader issue. There's the issue 14 of the order of protection, and maybe 15 counsel could find out and report to the 16 committee on what happened as far as contact 17 between Senator Monserrate and the witness 18 and if we can find anything out about other 19 parties who may have been around. 20 SENATOR YOUNG: That's my point, is 21 whether there was inappropriate contact 22 despite the order of protection. 23 SPECIAL COUNSEL ALONSO: One way to 24 get at that which is kind of economical for 162 1 our time is if the committee wants to 2 authorize us to seek to interview 3 Ms. Giraldo, we can ask her about that and 4 see whether that bears any fruit that might 5 be worth following up on. Because I think 6 that certainly she has many, many things 7 that are germane to your inquiry. So 8 talking to her about where is this fellow, 9 whoever he is, is one. 10 So I'd rather not decide tonight that 11 we're going to go into an investigation of 12 what kind of undue influence might have been 13 placed on a witness before we actually seek 14 to try to talk to the person who has the 15 perhaps the top two of knowledge of about 16 what happened here. 17 So I would suggest that we at least try 18 to speak to her, and there are a variety of 19 procedures we can use to do that. And I 20 will only take my guidance from the 21 committee. But it would be not unhelpful to 22 see what she would say in a setting where 23 nobody is afraid to ask her questions. In 24 the trial, both sides were afraid to ask the 163 1 one question too many that might lead to an 2 answer that hurt their side. We wouldn't 3 be. We'll just ask. 4 CHAIRMAN SCHNEIDERMAN: Let me 5 suggest that -- we have certainly thought 6 about this; Senator Lanza and I have 7 discussed it. I think I'd like to defer 8 that decision until after we see what 9 Senator Monserrate produces. He may come in 10 and talk; he may produce her to talk. We 11 don't know what he's going to produce. 12 At that point I think we can make a 13 determination. And we want to hear from 14 everybody in the committee what other 15 information or evidence we need to get. 16 It is possible for our counsel to 17 interview someone. It's possible to take a 18 deposition of someone. It's possible to 19 invite someone in for a full meeting. So we 20 have a lot of different options. But my 21 suggestion, and Senator Lanza and I concur 22 on this, is we really should see what 23 Senator Monserrate is submitting first and 24 then make a decision about what information, 164 1 if any, we feel that we need and then 2 proceed from there. 3 SENATOR ALESI: Would any of the 4 information we need regarding telephone 5 records take a very long time, with regard 6 to your suggestion that we wait? 7 I ask that because I think it would be 8 probably be helpful in conjunction with 9 understanding not just that night, but 10 perhaps if there's an ongoing series of 11 phone calls between either the senator and 12 Giraldo or some other people and in fact 13 maybe even international phone calls while 14 she was in South America. 15 CHAIRMAN SCHNEIDERMAN: The issue 16 with the phone records is that that's 17 something we will obtain if we get the grand 18 jury information. And we won't know about 19 that until after the judge rules on December 20 4th, so we're at a slight disadvantage. I 21 agree, I think we all agree that that's 22 information we want to get as soon as 23 possible, but we're subject to the court's 24 order on that. 165 1 SENATOR SAVINO: And in the grand 2 jury, is that where they discuss the route 3 that was used to get to the hospital? 4 MR. LEWIS: Possibly. Possibly. 5 SPECIAL COUNSEL ALONSO: Possibly, 6 yeah. 7 I'd like to be able to represent to the 8 judge -- he may ask me why all the material 9 is relevant, and I'd like to be able to 10 represent to the judge that this committee 11 is considering some of the questions that 12 weren't raised in the trial but he raised in 13 his verdict as to whether the senator was 14 putting his own interests -- the possibility 15 of negative publicity and the like -- ahead 16 of the interests of this injured woman. 17 And it strikes me that it's the 18 position of the committee that this is at 19 least part of our inquiry if not the central 20 part of our inquiry. And so, with 21 permission, I will tell that to the judge 22 and hopefully he will then see how really 23 important this material is to that inquiry. 24 CHAIRMAN SCHNEIDERMAN: I think that 166 1 certainly reflects my sense of the 2 committee. 3 Anyone else? 4 MR. LEWIS: The grand jury collects a 5 lot of information that doesn't go into the 6 minutes but is still evidence before the 7 grand jury. So we may end up with a lot of 8 the things we're asking about here actually 9 in our hands. 10 CHAIRMAN SCHNEIDERMAN: So thank you 11 all. This just took longer than we 12 anticipated, but I think you appreciate how 13 important it was. I certainly do. And I 14 thank counsel for their good work. 15 We are going to try and -- subject to 16 what Senator Monserrate's counsel tells us, 17 we are going to try to schedule something 18 for December 7th or 8th. 19 SENATOR SAVINO: I told you guys I'll 20 be in Puerto Rico from the 4th to the 9th. 21 CHAIRMAN SCHNEIDERMAN: So you're not 22 back until the 10th? 23 SENATOR SAVINO: Yes. 24 CHAIRMAN SCHNEIDERMAN: Anyone else 167 1 have anything scheduled -- 2 SENATOR STAVISKY: I was supposed to 3 leave, I think, on the 10th. 4 CHAIRMAN SCHNEIDERMAN: We can't 5 have -- I would like to have everyone 6 present at all times, but if we have a 7 quorum and staff, we can proceed for some of 8 this. And everyone is going to have a full 9 transcript of what happens at each of the 10 meetings. 11 Senator Hassell-Thompson will also be 12 out until the 10th. And you're leaving on 13 the 10th? 14 SENATOR STAVISKY: I'm supposed to 15 leave on the 10th and return on the 13th. 16 CHAIRMAN SCHNEIDERMAN: "Supposed to" 17 is -- okay, well, we'll try and -- obviously 18 we're somewhat -- this is the one meeting 19 that is not completely within our control. 20 We have to work this out with Senator 21 Monserrate and his lawyer, particularly in 22 planning to produce any witness that we have 23 to -- 24 SENATOR SAVINO: Why do you want to 168 1 wait until the 7th of December? Why not 2 beforehand? 3 MR. LEWIS: We don't have the grand 4 jury minutes even if we win the application 5 on the 4th. 6 SPECIAL COUNSEL ALONSO: The judge 7 won't hear us until the 4th, which is also 8 the day of sentencing. 9 SENATOR SAVINO: I understand that. 10 But since Senator Monserrate is going to be 11 the next subject of this committee where he 12 is going to come in -- or not -- why 13 couldn't he come in before we get the grand 14 jury minutes and then we do that afterwards? 15 MR. LEWIS: Because until he's 16 sentenced, he's still protected by the Fifth 17 Amendment and the conviction isn't final. 18 SENATOR SAVINO: So we don't want him 19 to present anything to us until after the 20 sentencing date, and that's December 4th. 21 CHAIRMAN SCHNEIDERMAN: The 22 sentencing date is also when we get the 23 response to our request for the grand jury 24 minutes, and that is next week. 169 1 SENATOR SAVINO: What do we do if for 2 some reason the judge decides to delay 3 sentencing? Which happens often in -- 4 CHAIRMAN SCHNEIDERMAN: We can 5 continue to go forward with our meetings. 6 The only request we've had is that we don't 7 issue a report until after the sentencing. 8 SENATOR SAVINO: Who made that 9 request? 10 CHAIRMAN SCHNEIDERMAN: Is that 11 correct? That was my recollection; it may 12 be incorrect. But I believe that defense 13 counsel did express concern about us taking 14 any action before the sentencing. So we 15 will check on our source on that. 16 But there is no -- we can ask if 17 Senator Monserrate's counsel would produce 18 him prior to the 4th. My sense is that they 19 would not. 20 SENATOR LANZA: And I think it's 21 important to wait until we know what's going 22 to happen with the grand jury minutes. If 23 we were to get them, it would be most 24 helpful to this process to have them before 170 1 any of that occurs. 2 SPECIAL COUNSEL ALONSO: I also am 3 getting the strong sense that this judge is 4 not going to put the sentencing off. He 5 scheduled us, he scheduled NBC -- which has 6 a motion to videotape the proceedings -- and 7 the sentencing for the same morning, despite 8 requests to do it other days. He said no, 9 we're doing everything that morning. 10 SENATOR LANZA: Just a reminder, 11 compliance with the Open Meetings Law would 12 arguably if not certainly require that 13 nothing that occurs here is published or 14 that the DVD or any of the things discussed 15 here are discussed with anyone who was not 16 here during this meeting, any other staff 17 members or anyone. 18 CHAIRMAN SCHNEIDERMAN: I think it's 19 important not to show -- once counsel makes 20 the PowerPoint presentation available to 21 members of the committee, that's for your 22 use alone. You shouldn't be showing it to 23 anyone who is not in this meeting. 24 I also repeat our request that press 171 1 inquiries about the subject of this meeting 2 be directed to Mr. Alonso. About things 3 like the schedule and procedures, certainly 4 everyone can use their own judgment about 5 that. But substance about the evidence 6 discussed here it is strongly, strongly 7 urged not be discussed except with counsel. 8 SENATOR LANZA: And prior to making 9 any response with press, that we talk about 10 that. 11 SPECIAL COUNSEL ALONSO: And I'm 12 going to send you all a copy of the 13 PowerPoint. Of course that's very, very 14 sensitive at this point. Eventually it will 15 be released, but at this point it's very 16 sensitive. 17 Also, I certainly do not have any 18 intention to issue additional subpoenas and 19 wouldn't do so without conferring with both 20 the chair and the ranking member and 21 Mr. Lewis. 22 Oh, and I promised Senator Monserrate's 23 counsel that I will put forth his position 24 as he told us just before, which is that 172 1 this body not consider anything outside of 2 the trial record. So that's their position, 3 and I've put it forward. 4 SENATOR LANZA: Just to clarify my 5 last point, before we make statements to the 6 press, members of this committee ought to 7 consult counsel. 8 MR. LEWIS: I'm also going to go with 9 Dan to the court hearing in Queens, but 10 we're also, under the Open Meetings Law, 11 limited to what we can say about what we've 12 done. But we can certainly indicate the 13 sense of the committee and lay out a factual 14 and legal basis for obtaining those grand 15 jury minutes. So you may see at some point 16 some press coverage from that event. We 17 need to know that we've got to make a 18 showing. 19 We could ask to have the matter held in 20 camera -- in other words, in the chambers 21 with the judge -- without anybody there but 22 Senator Monserrate and his lawyer, in order 23 to protect the grand jury. It's really up 24 to the judge whether he'll do that or not. 173 1 The odds are pretty good he'll make us do it 2 all in public. So just be ready to see 3 something that's not in our control. 4 CHAIRMAN SCHNEIDERMAN: Thank you 5 all. 6 (Whereupon, the proceedings of the 7 Senate select committee concluded at 8 8:00 p.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24