0001
 1               NEW YORK STATE SENATE
 2   
 3   
 4   Select Committee to Investigate the Facts and
 5    Circumstances Surrounding the Conviction of
 6                 Senator Monserrate
 7   
 8                     3:00 p.m.
 9                  December 8, 2009
10   
11                    250 Broadway
12                 New York, New York
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0002
 1   
 2   B E F O R E:
 3   
 4   SENATOR ERIC T. SCHNERIDERMAN, CHAIR
 5   
 6   SENATOR ANDREW J. LANZA
 7   
 8   SENATOR ANDREA STEWART-COUSINS
 9   
10   SENATOR CATHARINE YOUNG
11   
12   SENATOR TOBY ANN STAVINSKY
13   
14   SENATOR RUTH HASSELL-THOMPSON
15   
16   SENATOR JAMES S. ALESI
17   
18   A P P E A R A N C E S:
19   
20   DANIEL ALONSO, ESQ.
21   Special Counsel
22   
23   DAVID LEWIS, ESQ.
24   Counsel
25   
0003
 1                 P R O C E E D I N G S
 2   
 3                  SENATOR SCHNEIDERMAN:  Ladies and
 4           gentlemen, we are going to begin the
 5           meeting of the Select Committee to
 6           Investigate the Facts and Circumstances
 7           Surrounding the Conviction of Senator
 8           Monserrate.
 9                  We are going to follow the same
10           procedure we did in the last meeting, we
11           will have some brief opening remarks and
12           then a report from our counsel on the
13           status of the motion, the application that
14           was made last week for us to get some
15           portion of the Grand Jury materials, and
16           then we are going to vote, as we did last
17           time pursuant to the open meetings law, to
18           go into executive session, at which time
19           only the committee members and the staff
20           explicitly designated by the committee
21           will stay here.
22                  However, I do want to note that the
23           committee has taken the extraordinary step
24           of ensuring that all of its proceedings,
25           whether in open session or executive
0004
 1           session, are transcribed, so the public
 2           and the press and the rest of the Senate
 3           will have access to all the information at
 4           the conclusion of the committee's work.
 5                  We are joined here today by most of
 6           our members, Senator Hassell-Thompson is
 7           on her way, Senator Alesi and Young
 8           traveled far, welcome, I hope your trips
 9           were safe.
10                  Senator Stavisky took just as long
11           to get here, but that was because of
12           traffic, and and Senator Andrea
13           Stewart-Cousins, and my partner, the
14           ranking member on the committee, Senator
15           Andrew Lanza.
16                  I just want to say that we have
17           been -- we have a lot to hear from our
18           counsel about.
19                  Both Dan Alonso and David Lewis,
20           counsel for the minority, were at the
21           court for the sentencing and for the
22           application, our application for the Grand
23           Jury materials, and we have more material
24           to review today, and then we are going to
25           have a discussion about past case law and
0005
 1           standards for expulsion, things that have
 2           happened in other states or for other
 3           sanctions and then talk a little bit about
 4           the possible contours of the final report.
 5                  We have another hearing scheduled
 6           for next week.
 7                  We have, as you know, invited
 8           Senator Monserrate's counsel to attend to
 9           submit information whether through live
10           witnesses or in documentary form, they
11           advised us they would not attend today's
12           meeting, and we do not know if they will
13           attend next week's meeting.
14                  We are hoping our counsel will be
15           able to confirm with them what they intend
16           to do as soon as possible.
17                  And we are obviously, as we head
18           into the holiday season, cognizant of
19           everyone's schedule, we are going to try,
20           as we have been charged to do, to finish
21           up our report as soon as possible, we are
22           hoping by the end of the year, but that's
23           going to require at least the counsels to
24           work very diligently for the next couple
25           of weeks.
0006
 1                  So with that, maybe we can get a
 2           brief status report on the motion from Mr.
 3           Alonso and Mr. Lewis and then we will go
 4           into executive session.
 5                  MR. ALONSO:  Thank you, Senator.
 6                  As the committee knows, we were
 7           authorized, we, counsel, were authorized
 8           to make an application to the trial judge,
 9           Justice Earlbaum under the criminal
10           procedure law to -- for a court order
11           allowing us access to the Grand Jury
12           minutes and materials that have been
13           obtained by Grand Jury process.
14                  You may remember that much of the
15           Grand Jury minutes were and are in the
16           possession of Senator Monserrate's
17           counsel.
18                  We, in the hopes of cooperation, we
19           asked informally for that to be turned
20           over to us and we were declined.
21                  So the District Attorney was
22           prohibited by law from providing it to us
23           without a court order, so we applied to
24           Justice Earlbaum.
25                  He put the -- our motion he
0007
 1           calendared it for the same day as Senator
 2           Monserrate's sentencing, so we were there,
 3           Mr. Lewis and I were there on Friday, this
 4           past Friday and we sat through the
 5           sentencing, and I will have a chance to
 6           report on that later.
 7                  But we also argued the motion to
 8           release the Grand Jury minutes, and what
 9           the judge did was he granted it in part
10           and denied it in part.
11                  He allowed us immediate access to
12           Ms. Geraldo's Grand Jury testimony, and we
13           have that and we have provided it to the
14           Senate members only today.
15                  It is stamped confidential and we
16           intended pursuant to the spirit in which
17           Justice Earlbaum gave us access, we intend
18           to keep it confidential, but we have the
19           minutes of Ms. Geraldo's testimony and the
20           judge asked us to get together with
21           Senator Monserrate's counsel to work out
22           the details of the additional materials
23           that we, I believe, are entitled to under
24           the order, which are things like telephone
25           records for the operative period between
0008
 1           the time in the apartment building and the
 2           time in the hospital, and I have already
 3           started the dialog with Senator
 4           Monserrate's counsel to try to agree,
 5           hopefully, on an order which we have to
 6           settle on notice, but that process is
 7           ongoing.
 8                  The only thing I can guarantee you
 9           that we can have immediate access to is
10           the minutes themselves.
11                  SENATOR SCHNEIDERMAN:  Okay, and
12           everyone I think has received those
13           today.
14                  So, we will now, my colleagues, I
15           would like now to move the Select
16           Committee go into executive session as
17           authorized by public officers law Section
18           105.
19                  At the committee we will be
20           discussing matters that relate to the
21           potential discipline of Senator
22           Monserrate.
23                  Pursuant to that section of the law
24           it can and should be done in executive
25           session.
0009
 1                  All in favor of the motion, please
 2           signify by saying aye.
 3                  SENATOR STEWART-COUSINS:  Aye.
 4                  SENATOR YOUNG:  Aye.
 5                  SENATOR STAVINSKY:  Aye.
 6                  SENATOR HASSELL-THOMPSON:  Aye.
 7                  SENATOR. ALESI:  Aye.
 8                  SENATOR LANZA:  Aye.
 9                  SENATOR SCHNEIDERMAN:  So we will
10           begin the executive session.
11                  The executive session will have a
12           group of staff members as required by the
13           law that have been designated to remain
14           here with the committee, the committee
15           staff, Mr. Diaz, Ms. Levine, Jessica, John
16           Amodia, and you've got James Dan Dino on
17           the list, and Senator Hassell-Thompson has
18           two people designated who hopefully will
19           be maybe one or both of them should be
20           with her, at this time we will take a
21           short break and we would like to ask
22           everyone else to leave the hearing room at
23           this time then we will begin.
24   
25   
0010
 1   
 2         E X E C U T I V E        S E S S I O N
 3   
 4                  SENATOR SCHNEIDERMAN:  Thank you
 5           ladies and gentlemen.
 6                  We have another presentation
 7           from -- before we start the presentation,
 8           the binder that our counsel has given out
 9           to you has in Tab 1 the proposed agenda
10           for today's meeting.
11                  Obviously any input from any member
12           of the Committee is in order, pretty much
13           at any time, but this is our proposal for
14           how to proceed as efficiently as possible.
15                  We do have a presentation, it's not
16           nearly as long as the last time, and then
17           my hope is that we will at least get to a
18           very preliminary discussion of the
19           contours of the final report and
20           recommendation, not necessarily to discuss
21           the conclusion, but just the format that
22           the report would take, because counsels
23           have to start drafting it up now if we are
24           going to have any chance of getting it
25           done by the end of the year.
0011
 1                  These are numbered because as noted
 2           by counsel, while we are not under a
 3           direct court order to maintain the secrecy
 4           of these documents, it is very clear that
 5           the judge hoped to keep the Grand Jury
 6           testimony secret, so the portion of this
 7           that is the testimony of Ms. Geraldo we
 8           hope everyone will keep confidential, and
 9           that's why the reports are numbered.
10                  MR. LEWIS:  The court required a
11           representation of who's going to have
12           access to it, so we have to hold it to
13           the members and to Mr. Alonso and
14           myself.
15                  We said there is some staff
16           involved, but this is fairly sensitive
17           material and we made that representation
18           and as we have a pending order, so we
19           certainly don't want to have it released,
20           even though the defense did release some
21           of it as soon as they got their hands on
22           it much earlier.
23                  MR. ALONSO:  You may recall,
24           defense or at least somebody working
25           apparently for the defense released this
0012
 1           to the press before the trial, so it's
 2           not, you know, some of the protestations
 3           of secrecy rang a little hollow, but in
 4           any event, the judge gave it to us
 5           pursuant to a court order, and Mr. Lewis
 6           is right.
 7                  SENATOR SCHNEIDERMAN:  So with
 8           that we will go to Item 3 on the agenda,
 9           which is the report on the status of our
10           discussions with counsel for Senator
11           Monserrate.
12                  MR. ALONSO:  So, as Senator
13           Schneiderman said in the public session,
14           obviously they told us relatively early
15           on they weren't coming today, I asked
16           well, what are you planning?
17                  And the answer was that it's highly
18           likely that they will not participate at
19           all in our proceedings.
20                  No testimony by Senator Monserrate,
21           no presentation by counsel, no other
22           evidence.  Perhaps a letter written in
23           telling us why they don't want to
24           participate.
25                  That's preliminary, nobody should
0013
 1           hold them to that, but I'm in a constant
 2           dialogue with them, I have reached out to
 3           them today, was not able to reach them, so
 4           as soon as I know I will report back.
 5                  I think whether they present to us
 6           next week or not, we should have plenty to
 7           do that day.
 8                  So I'll leave that up to the chair.
 9                  But I would, if I had to bet, I
10           would say we are not going to hear from
11           counsel for Senator Monserrate; or Senator
12           Monserrate himself.
13                  SENATOR SCHNEIDERMAN:  So, we
14           will.
15                  SENATOR STAVISKY:  I think the
16           record should reflect he did have a
17           member of his staff here, who has since
18           left the room.
19                  SENATOR SCHNEIDERMAN:  We will
20           let you know, obviously, as soon as his
21           counsel let's us know.
22                  We are currently scheduled for our
23           next meeting next week, which is very
24           important because at that point we will
25           hopefully be able to -- we will either be
0014
 1           hearing from Senator Monserrate or we will
 2           be discussing what we are going to do with
 3           the report, and we hope -- we are very
 4           hopeful everyone can attend.
 5                  So, Mr. Alonso, maybe you could
 6           start the Power Point presentation.
 7                  MR. ALONSO:  Sure.
 8                  Today will be, as Senator
 9           Schneiderman mentioned, a lot briefer,
10           although there were some very interesting
11           things in the sentencing minutes that I
12           think -- that were certainly not reported
13           in the press that I think you folks should
14           all be on the same page on, plus there are
15           some very interesting highlights of the
16           Grand Jury testimony of Ms. Geraldo.
17                  So I'm going to endeavor to present
18           to you the interesting tidbits, but again,
19           I urge you to read the minutes for
20           yourself, since you have them in your
21           materials.
22                  So I'm also going to go over a
23           statement that Ms. Geraldo gave to Senator
24           Monserrate's attorneys the night of the
25           incident, remember the incident happened
0015
 1           in the very early morning hours of
 2           December 19th, later that night she gave
 3           an Affidavit which the D.A. calls the
 4           recantation Affidavit.
 5                  I think it's fair to say it's an
 6           Affidavit that says that it's an accident
 7           and gives some detail.
 8                  So I will present that to you as
 9           well and you have that, should have that
10           in the materials as well.
11                  If you have it in your materials
12           under tab 4.
13                  MR. LEWIS:  I should point out it
14           was given not to Mr. Tacopina but to
15           prior counsel.
16                  MR. ALONSO:  MonserrateCorrect,
17           different lawyers for Senator
18           Monserrate.
19                  Also two or three of you were very
20           interested in the time frame of the travel
21           from Senator Monserrate's apartment to
22           North Shore LIJ, so we have used Google
23           Maps to give us estimated times for the
24           variety of routes, so I will present that
25           as well.
0016
 1                  And some more detail, again, as per
 2           request from last time, about the photos
 3           of the entrances to the hospital.
 4                  So, you have all, I'm sure, read
 5           what the actual sentence was, so I'm not
 6           going to spend much time on that, unless
 7           you have any questions.
 8                  The judge, this was the ultimate
 9           result of the four hour sentencing
10           proceeding, as you see up there on the
11           slide.
12                  So, there was a motion to set aside
13           the verdict by counsel for Senator
14           Monserrate.
15                  I ordinarily wouldn't bore you with
16           something that's purely a legal motion,
17           but I think that there is an important --
18           there was an important aspect of this that
19           had to do with an issue that came up last
20           time which had to do with the physical
21           injury required for the misdemeanor
22           assault conviction.
23                  And what the defense did at the
24           sentencing was they told -- they asked the
25           judge to throw out the conviction because
0017
 1           the bruising and the slight skin tear on
 2           her arm was not sufficient, they claimed,
 3           to make out the legal argument for -- the
 4           legal standard for physical injury.
 5                  And -- so they are talking about on
 6           line 16 there that it would be amounting
 7           to speculation, not proof beyond a
 8           reasonable doubt, and so what they are
 9           essentially saying is no reasonable finder
10           of fact could have convicted Senator
11           Monserrate under these facts.
12                  And that's kind of an odd argument
13           to make to the person who, in fact, did
14           convict them, but that's the way these
15           legal arguments go.
16                  MR. LEWIS:  They had to preserve
17           it.
18                  MR. ALONSO:  There is nothing
19           wrong or right or really significant
20           about the fact they made the motion for
21           our purposes.
22                  What is significant since the
23           question of physical injury and their
24           possible appeal came up at our last
25           meeting, is the judge's statements in
0018
 1           responding to the motion about physical
 2           injury.
 3                  He says the woman wanted 911, she
 4           was actively bleeding in a region very
 5           close to the eye, she's trying to staunch
 6           the continuous flow of blood with a towel
 7           to her head, she is screaming in pains in
 8           the hallway, it's taken 37 minutes to
 9           reach a hospital, maybe he doesn't get to
10           that hospital for the better part of an
11           hour, still bleeding in the hospital,
12           still in pain from the earlier episode.
13                  You put that all together, plus the
14           court's observations of your client's
15           demeanor and her demeanor on the tape,
16           this is not going to be based on a single
17           nanosecond of an episode that lasted
18           almost an hour.
19                  So what the judge is saying there
20           is that there is a continuing course of
21           facts that led him to conclude that there
22           was physical injury, which you may
23           remember from last time the law defines as
24           impairment of physical condition or
25           substantial pain.
0019
 1                  That's the issue they would appeal
 2           on, and interestingly they said on the
 3           record that they are not sure if they are
 4           going to appeal, which is contrary to what
 5           I told you last time.
 6                  Off the record they told me they
 7           are definitely appealing, so I don't know
 8           why they said that to the judge on the
 9           record.
10                  So, again, the judge continues here
11           on this slide, EMS people could have done
12           that in minutes, could have come there and
13           comforted her, could have seen whether or
14           not there would be some complication of
15           the eye, very close to the eye.
16                  Putting it all together the
17           requirement of physical injury was clearly
18           met.
19                  So, that's why I bring that up.
20                  Now, the judge asked Ms. Geraldo to
21           make a victim impact statement if she
22           wanted.
23                  She had submitted her intent to
24           make a victim impact statement, which is
25           the right of every victim, although here
0020
 1           obviously she doesn't consider herself a
 2           victim, but nevertheless she had that
 3           right, she wanted to make a statement by
 4           counsel, she wanted her lawyer to make a
 5           statement for her.
 6                  The judge said no, if you want to
 7           make a statement, you make it yourself.
 8                  So, he actually did some tough
 9           questioning of her, a little bit of it.
10                  So the highlights we have selected
11           out for you, she again reiterated that it
12           was an accident, she said she didn't want
13           an order of protection.
14                  She said she wants to be with the
15           Senator and continue her life and that she
16           would like to get married.  He said the
17           same thing when he spoke.
18                  She asked him to remove the order
19           of protection, and she wants things to go
20           back to normal.
21                  The judge, as you saw, denied the
22           removal of the order of protection.
23                  He then went in with a few
24           questions, a few sort of follow-ups, she
25           actually said that the nurses had not
0021
 1           really treated her or attended her at the
 2           hospital.
 3                  So he asked the question, I don't
 4           understand, this is the good hospital that
 5           was selected because of its superior
 6           facilities, did they suddenly become less
 7           than capable?
 8                  And she said that they never saw
 9           me, they were never -- they never gave me
10           any kind of treatment or anything.
11                  It wasn't until the plastic surgeon
12           arrived and two other people that my
13           wounds were attended to.
14                  Now that's contrary to the trial
15           record.  The plastic surgeon got there at
16           6:30, she had been seen by the triage
17           nurse, seen by Dr. Cort and seen by
18           Dr. Froegel before then.
19                  So, again, the inference that
20           arises out of here, you can choose to make
21           whatever inference you want, but you have
22           to start asking yourself the question if
23           she's saying things that are contrary to
24           fact or contrary to the record, why might
25           she do that?
0022
 1                  And I'm sure that there will be
 2           time for the committee to discuss the
 3           possibility of conclusions you can draw if
 4           you conclude that she's, in fact, not
 5           telling the truth.
 6                  MR. LEWIS:  You should point out
 7           this was done through an interpreter,
 8           the judge asked -- the interpreter
 9           revealed her mother was Ecuadorian, so
10           the Ecuadorian issue of translation came
11           up during the trial which was removed
12           from this discussion and she seemed to
13           have no problems with the interpreting
14           some of these questions and answers in
15           her statement.
16                  MR. ALONSO:  Further even her
17           lawyer said she basically speaks
18           English, but she just sometimes can use
19           an interpreter, but the Ecuadorian thing
20           I agree with Mr. Lewis, I thought it was
21           a red herring at trial, and the judge
22           eliminated that issue by making the
23           interpreter say she speaks "Ecuadorian
24           Spanish."
25                  All right, so the judge then,
0023
 1           again, brings up the point that she's here
 2           sitting there trashing the doctors and the
 3           nurses and saying how they never treated
 4           her.
 5                  He says, well, wait a minute,
 6           Elmhurst Hospital got bypassed, now you
 7           are making reference to Long Island
 8           Jewish, this was the place Mr. Monserrate
 9           selected for you, and you say they failed.
10                  Now, there is more back and forth
11           on that, which I am skipping here and
12           turning to the theme that she continues
13           the theme that she started at the trial,
14           which is that the reason that they didn't
15           treat her and the reason that they
16           arrested him and the reason that they
17           weren't nice to her is because he was a
18           political figure.
19                  And it's also the reason that they
20           called the police from the hospital.
21                  And the judge wasn't buying that at
22           all.
23                  What does that have to do with
24           calling the police?
25                  Seriously bleeding woman, et
0024
 1           cetera, you think that they cared one whit
 2           whether he was the sweeper or the
 3           President?
 4                  I mean the judge clearly believed
 5           that the doctors and the nurses just did
 6           their job.
 7                  They saw a circumstance where they
 8           had this woman who had been -- who had
 9           been cut with a glass in the circumstances
10           that caused a lot of bleeding, there was
11           some suspicion and she said it wasn't an
12           accident, he's crazy, and so that's why
13           they called the police.
14                  The judge wasn't buying anything
15           that she was saying about the political
16           retribution.
17                  This segment, if you look at the
18           very, very bottom of the screen, it says
19           which Karla Giraldo are you?
20                  If you read the press coverage of
21           the sentencing or the press release from
22           the National Organization for Women, this
23           was misquoted.
24                  It was quoted as what, Karla
25           Giraldo, are you?
0025
 1                  Kind of saying what kind of person
 2           are you, what are you?
 3                  That's not what he said at all,
 4           what he was saying was that on the one
 5           hand people have suggested by words or
 6           implication that you act act at the
 7           bidding of Mr. Monserrate, and that your
 8           professed wishes shouldn't be called at
 9           face value because of a domination over
10           you, some people have suggested that, and
11           then you suggest that you're a rational,
12           thoughtful person making your own
13           decision, not acting in a self destructive
14           way, which Karla Giraldo are you?
15                  That's what he meant, he meant to
16           ask her which are you, and then she
17           answers, this is the next page.
18                  She says he doesn't dominate me, I
19           act with my own -- he doesn't have any
20           control or dominion of my life.
21                  Again, it's a relationship, it's
22           just the two of us, she was unequivocal as
23           she's been since the point of later in the
24           day of the incident that it was an
25           accident and there was no domination by
0026
 1           him.
 2                  This is the judge, this page slide
 3           12 is the judge showing that he believes a
 4           theme of Senator Monserrate's control over
 5           her.
 6                  That a normal reaction would be to
 7           call 911, can he just decide for you like
 8           a parent or guardian can decide for a
 9           minor child?
10                  He's, you know, basically saying
11           that in the judge's view it didn't make
12           sense that she would be bleeding this much
13           and somebody not call an ambulance
14           workers, EMTs who could immediately do
15           something, like put a butterfly on, as
16           opposed to waiting 40, 45 minutes on the
17           way until you actually see somebody who
18           could help in that way.
19                  So the judge clearly, he amplified
20           at the sentencing on what he said at the
21           trial, which was that he definitely
22           believes that Senator Monserrate was not
23           acting -- hard to say what word --
24           appropriately, wasn't the right thing for
25           him to have done to drive her, he should
0027
 1           have called 911.
 2                  MR. LEWIS:  More fruitful.
 3                  MR. ALONSO:  Yes, more fruitful,
 4           thank you.
 5                  Again, he says it was an accident,
 6           he says not calling 911 was an accident.
 7                  He said well, if we had the car it
 8           was better to go in the car.  She didn't
 9           really have an answer, she just said it
10           was better to go in the car because she
11           wanted to be with him.
12                  Again, she threw in the theme about
13           how she acted under a lot of alcohol, and
14           you will see when you see the Grand Jury
15           minutes she was categorical that she
16           really had only had two drinks the whole
17           night, and as Senator Hassell-Thompson has
18           pointed out last time, the video from the
19           hospital seems to show somebody who is not
20           drunk.
21                  This is the prosecutor, this is not
22           the judge now, so obviously take it with a
23           grain of salt from the side that it comes
24           from.
25                  The prosecutor pointed out this
0028
 1           theme, which is not an unreasonable
 2           inference for you to draw, that she was
 3           doing anything possible to assist the
 4           Defendant in this case in terms of the
 5           trial.
 6                  If you see her answers at the trial
 7           they are laiden with gratuitous references
 8           to it was an accident, they only did this
 9           because he's a politician, that kind of
10           stuff.
11                  So this is the theme that the
12           prosecutor is hoping that the judge will
13           accept.
14                  This segment, I thought it would be
15           useful for us to focus on because of the
16           question came up very briefly at the
17           sentencing about Senator's Monserrate's
18           psychological state.
19                  Now we don't have any information
20           on this really, and I caution you that I'm
21           not asking you to draw any kind of
22           inference about his psychological state,
23           but I can't think it would be right not to
24           show you this portion.
25                  There is a presentence
0029
 1           investigation report that was prepared in
 2           this case by the probation department.
 3                  The prosecution made submissions,
 4           the defense made submissions, all of it,
 5           it is not available to us.  It's under
 6           seal.
 7                  And it is something that is
 8           supposed to be.  If you go to the question
 9           of what should his sentence be.
10                  So what obviously they alluded,
11           they danced around it a little bit in the
12           public record and they are talking about
13           how the judge is now asking if
14           psychologically he's not optimal, and the
15           prosecutor says that that's his belief, if
16           you look at the probation report in the
17           case.
18                  I suppose the probation report must
19           have commented on his psychological state.
20           I understand that his discharge from the
21           police department had something to do with
22           that.
23                  But we just don't know because we
24           don't have the police report -- the
25           probation report.
0030
 1                  MR. LEWIS:  And we don't know
 2           whether the potential psychological
 3           state in the probation report is the
 4           cause.
 5                  MR. LEWIS:  We don't know if
 6           there is a link between whatever was in
 7           the probation report about psychological
 8           elements and whatever went on with the
 9           police department, whatever that is.
10                  So even if we were to find out
11           about one, we wouldn't know anything about
12           the other, so that's a second level of
13           caution that we are not really, we really
14           can't legitimately use it for anything.
15                  The judge went out of his way to
16           talk about not maligning this man's
17           reputation by disclosing this, he really
18           forced the Genie back into the bottle.
19                  MR. ALONSO:  He did, but the
20           reason why it's important for you to
21           focus is that he also made a conclusion
22           on the record, he apparently has this
23           term, the judge on line 10 there on
24           slide 15, EDS, which is not a DSM 4
25           term, this is his term, he says that --
0031
 1           he calls it empathy deficiency syndrome.
 2                  And he calls it my term, but it
 3           embraces a lot of things, that's your view
 4           and the prosecutor takes the bait and says
 5           that's to say the least, judge.
 6                  So the judge has his own sort of
 7           lay view of the psychiatric question.
 8                  Again, I don't know how much value
 9           anyone should give it here, but I think
10           that it was said by the judge and singled
11           out by the judge, so I thought it would be
12           important for you to hear.
13                  SENATOR STAVISKY:  Did the
14           probation department have access to his
15           police records?
16                  MR. ALONSO:  I don't know, but
17           the ordinary practice would be that they
18           would.
19                  The ordinary practice would be that
20           he would be asked to sign a release to
21           release all of his private records.
22                  So likely they would.
23                  MR. LEWIS:  We don't know if he
24           cooperated with them, because there was
25           some discussion during the -- sorry,
0032
 1           sentencing, about whether he fully
 2           cooperated.
 3                  So we don't really know enough.
 4                  MR. ALONSO:  More than that, the
 5           prosecutor said outright he did not
 6           cooperate with probation, he refused to
 7           give contact information of co-workers,
 8           he didn't give enough information in a
 9           required follow-up visits.
10                  The judge didn't really care about
11           that much, frankly, he basically said
12           look, probation was able to write a very
13           thick report, which is much bigger than
14           most cases, so leave it alone.
15                  But the poor prosecutor clearly
16           complained that Senator Monserrate did not
17           cooperate with probation.
18                  So, here, this is the prosecutor
19           talking about how the Senator, he doesn't
20           believe understands the serious nature of
21           what he committed, hasn't taken
22           responsibility, and that his idea is that
23           it's all political retribution.
24                  SENATOR SCHNEIDERMAN:  This is
25           the prosecutor?
0033
 1                  MR. ALONSO:  The prosecutor
 2           saying this, it's very important to
 3           focus on it now because later Senator
 4           Monserrate and his lawyer both say A, he
 5           takes full responsibility for what
 6           happened, and B, we are not claiming
 7           it's political retribution by the
 8           District Attorney.
 9                  So, we will get to that in a
10           minute, but I wanted to set that up for
11           you.
12                  So this is the defense now, this is
13           Mr. Tacopina who spoke to the defense,
14           this is the part about the politically
15           motivated prosecution.
16                  As I think I told you, Mr. Tacopina
17           is an excellent lawyer and he has a fine
18           way with words.
19                  He rejects this idea of politically
20           motivated prosecution and he says it never
21           came out of the defense's mouth throughout
22           this trial.
23                  I think that's true as far as it
24           goes, but I think that there have been
25           public statements by others acting on
0034
 1           Senator Monserrate's behalf saying that
 2           this was a politically motivated
 3           prosecution.
 4                  But in any event, Mr. Tacopina
 5           stayed away from that as far as he could.
 6           He said it's not something we support or
 7           believe, and it's not something that
 8           Senator Monserrate -- and then the judge
 9           just asks flat out, you are not claiming
10           this is -- the arrest was in any way
11           politically motivated?
12                  He says absolutely not.
13                  In direct contravention of what Ms.
14           Giraldo says when she says the arrest was
15           politically motivated.
16                  This is Mr. Tacopina, further where
17           he tries to make clear that it's not like
18           he took her out of the apartment to a what
19           he called a fixer, to go to some doctor
20           and have her stitched up, he took her to a
21           hospital, so whatever you believe about
22           the remote hospital, he at least went to a
23           hospital, and it was the same hospital
24           that he had been to in the past, so he's
25           trying to show, perhaps, there are other
0035
 1           things he could have done, but he doesn't
 2           didn't do them, he took her to a hospital.
 3                  SENATOR STAVISKY:  The question
 4           came up at the last meeting that he had
 5           a soda can and yet it says here that
 6           there were no stops in between.
 7                  MR. ALONSO:  We tried to use that
 8           in our later argument on the Grand Jury
 9           materials, he says there there are no
10           stops in between, that's it.
11                  As far as I'm aware, that's the one
12           and only piece of information about
13           whether or not there were any stops in
14           between.
15                  I don't know that there were stops
16           in between, I know that Mr. Tacopina says
17           there were no stops in between, but it's
18           perfectly consistent with his own
19           professional responsibility as a lawyer to
20           say there were no stops in between, when
21           what he means is there is no evidence of
22           stops in between.
23                  So I don't know if there were stops
24           in between, I know he says that.
25                  MR. LEWIS:  It's one of the
0036
 1           reasons why we are looking for the Grand
 2           Jury materials to try and explain why it
 3           took that period of time to go that
 4           distance when it would seem that it
 5           would be an unusually long period of
 6           time.
 7                  MR. ALONSO:  All right, again,
 8           this is more by way of explanation from
 9           Mr. Tacopina.
10                  Panic overtook him and he accepts
11           responsibility for it.
12                  It's not an intentional act, it's
13           reckless, he was in a state of panic, he
14           was fearful, he was concerned for her.  On
15           line 9, he was concerned for him.
16                  He was concerned, panic overtook
17           him.
18                  So when I say he accepts
19           responsibility, he accepts responsibility
20           for the fact that Karla Giraldo was hurt,
21           not intentionally hurt.
22                  So the judge now asks the question
23           which may be in your head, well, he's
24           panicky, which road do you want to go
25           down, that he acted out of panic or he
0037
 1           made a studied, reflective decision that
 2           she'll get better medical care if I don't
 3           call 911 and if I go closer to Nassau
 4           County, which road are we riding there?
 5                  And Tacopina says his actions in
 6           the hallway, I think those actions were
 7           panic.
 8                  I don't think he remained in a
 9           state of panic for the entire 37 minutes,
10           at some point he has to take care of her,
11           he has to get her medical attention.
12                  That's inconsistent with what she
13           said at trial happened in the apartment,
14           which is that they were going to the
15           hospital from the time they left the
16           apartment.
17                  MR. LEWIS:  The cold record
18           doesn't reflect it, but this was the
19           moment I think the judge actually
20           confronted Tacopina on, you can't have
21           it both ways, you cannot say it's both.
22                  Tacopina said well, for some it's
23           one and for some it's the other, and it
24           wasn't very clear that the judge was
25           satisfied with that explanation.
0038
 1                  MR. ALONSO:  By the way, it is
 2           clear that, satisfied or not, whether he
 3           got answers that satisfied him or made
 4           him think that their version of the
 5           defense was reasonable or wasn't
 6           reasonable, that the judge was very
 7           satisfied with his sentence because he
 8           went out of his way to say, and I think
 9           this is likely true, and the judge has
10           more experience than I do in these
11           areas, but from my own experience I can
12           tell you the sentence is in line with
13           what one might get as a "first arrest"
14           in a domestic violence misdemeanor case,
15           it's not -- it's not out of whack one
16           way are another.
17                  MR. LEWIS:  It actually in my
18           experience is a little more than you
19           usually see.
20                  MR. ALONSO:  After trial.  You
21           don't see too many after trial.
22                  MR. LEWIS:  When you see both
23           probation and community service, it
24           looks like the case has been tried.
25                  The unusual part is not, although
0039
 1           they pretend that it was, the continuing
 2           of the order of protection is not unusual
 3           at all.
 4                  Can you say for that period of
 5           time, for five years.
 6                  MR. ALONSO:  That's the statute.
 7                  MR. LEWIS:  For the term of the
 8           probation, but it's without prejudice to
 9           come back and ask for that to be lifted
10           or dropped or modified, it was
11           clearly --
12                  MR. ALONSO:  It's very clear the
13           judge is very open to dropping that
14           order of protection upon an appropriate
15           application, and he signaled what that
16           would be, which is that she go to a
17           domestic violence counselor by herself
18           so that she can be educated on these
19           issues.
20                  He doesn't have the power to make
21           her do that, but he said, all but said
22           that it would be a carrot for them to get
23           the order of protection lifted if she did
24           that.
25                  So this is sort of a summation of
0040
 1           the defense here on slide 21, where Mr.
 2           Tacopina reiterates some of the issues
 3           that I mentioned to you folks last time,
 4           no history of violence, no contact with
 5           the criminal justice system, background of
 6           community service, honorably serving in
 7           the Armed Forces, and again he talks about
 8           how the injury was not so bad.
 9                  SENATOR SCHNEIDERMAN:  Let me
10           just ask a question that seemed to me
11           the defense was really focusing more on
12           the bruise on her arm and sort of trying
13           to address that as the injury, but there
14           are two separate issues, one is the
15           grabbing of the arm, but the other seems
16           to be what the judge focused on, which
17           is the additional harm to her face from
18           the pain of keeping her away from the
19           hospital.
20                  Are these two separate injuries in
21           connection with the misdemeanor?
22                  MR. ALONSO:  It's not harm to the
23           face, it's the facial expression that
24           leads him to the reasonable inference
25           that she was in substantial pain, that's
0041
 1           the -- but he also -- it's true that the
 2           defense focuses on the bruise and the
 3           judge focuses on a much broader array of
 4           facts.
 5                  But even the defense focuses on
 6           what happened in the hallway and they
 7           haven't really adequately addressed the
 8           question of whether she was in pain or
 9           not.
10                  MR. LEWIS:  Right, and they
11           argued facial contortion that we see on
12           the video was panic, not pain.
13                  MR. ALONSO:  Right.
14                  So Mr. Tacopina mentioned this
15           committee and he says even though the
16           conviction predated his oath, even though
17           no member of the New York State
18           legislature was ever expelled in its
19           history -- by the way that's not true, our
20           research has found, but we can talk about
21           that at the appropriate time.
22                  He says to the judge basically that
23           the collateral punishment outside of this
24           forum is substantial, in other words he's
25           saying don't send him to jail because bad
0042
 1           things could happen to him in the Senate.
 2                  Now, obviously I don't know that we
 3           ever, the committee ever issued an
 4           official statement, but we were asked by
 5           the press in opening comment and I don't
 6           think anyone here thought for a minute
 7           that it would be more or less likely that
 8           you would recommend one thing or another
 9           depending on what the sentence is.
10                  But that was an argument they were
11           making.  They asked me, by the way, they
12           just called me up and said what's the
13           committee's position on whether he's
14           incarcerated what that means for its
15           activities, and I told them we have no
16           position on that, whatever happens,
17           happens.
18                  So Senator Monserrate spoke, you
19           have his entire words in your materials,
20           I'm sure you'll want to read them, but I
21           tried to excerpt some of the parts I
22           thought would be most relevant.
23                  First thing he says is he denies
24           the politically motivated prosecution
25           accusation.
0043
 1                  Now, the background to this is
 2           Judge Brown -- the District Attorney wrote
 3           a long letter to Judge Earlbaum, which was
 4           not available to us, but it was obvious
 5           what was in it, which was he was blasting
 6           the idea that his prosecution was in any
 7           way politically motivated.
 8                  MR. LEWIS:  And the judge
 9           questioned the prosecutor at the time of
10           Ms. Giraldo's statement about because
11           she suggested that the D.A. was at the
12           hospital.
13                  And he, the judge made it very
14           clear he didn't believe that, and also
15           obtained information from the D.A. about
16           when they got involved, which was
17           consistent with a domestic violence report
18           which the D.A. would really not go down
19           to -- necessarily down to the hospital,
20           they have services, they have a justice
21           center, they have trained individuals, the
22           D.A. doesn't do that.
23                  So all of that was established
24           during the course of Ms. Giraldo's
25           statement.
0044
 1                  MR. ALONSO:  And it's smart
 2           strategy, it doesn't pass the laugh test
 3           that this was some politically motivated
 4           arrest because the D.A. had nothing to
 5           do with it, with the arrest.
 6                  But it was smart strategy for them
 7           to reject that.
 8                  I cannot stress enough to you, Your
 9           Honor, how sorry I am.  I'm so sorry for
10           the harm that Karla endured and has
11           suffered, I love her very much.  And then
12           he continues.
13                  So he did say he's sorry, he did
14           say he accepts responsibility, he never
15           said he committed a crime, but again, he's
16           not required to.
17                  I mean he didn't have to say
18           anything at all, and there are good
19           reasons why his lawyer would advise him
20           not to confess guilt given that they have
21           an appeal that's going to be pending.
22                  So --
23                  MR. LEWIS:  And he clearly he did
24           not confess guilt.
25                  MR. ALONSO:  No.
0045
 1                  MR. LEWIS:  He trod the line that
 2           a good defense counsel explains to a
 3           Defendant that you can accept
 4           responsibility without admission itself,
 5           and he said very clearly that he
 6           accepted responsibility for what
 7           happened to her, as opposed to some, for
 8           example he did it.
 9                  Now, what happened to her would be
10           consistent with an accident as well, but
11           it's a very carefully crafted statement
12           and probably so, given the stakes for the
13           Defendant, and the fact that this court is
14           capable of asking any question at all of
15           anybody.
16                  MR. ALONSO:  Right.
17                  Right.  The judge made the
18           statement, which I thought was relevant to
19           our inquiry, which we talked about last
20           time, which is that his sense at the time
21           of the verdict was that in the period --
22           in the period after the glass incident but
23           before they got to the hospital he wanted
24           time to think to think, to think, to
25           think, meaning that that could have
0046
 1           accounted for a substantial delay.
 2                  He talked about the controlling
 3           personality stuff that I mentioned before,
 4           going through your bag, checking the
 5           contents, checking the wallets, that was a
 6           theme the judge came back to several
 7           times.
 8                  This is in considering the order of
 9           protection.
10                  This is what he denies or grants
11           the people's request for an order of
12           protection, denies the Giraldo request to
13           lift it.
14                  And in doing so he just talks about
15           the facts.  Again, since he was the trial
16           judge, I thought it would be useful for
17           you folks to be on the same page on this.
18                  Nobody stops to pick up the towel,
19           you make it to the hospital in the better
20           part of an hour, God knows how many
21           additional minutes until you go to the
22           emergency room and you say an order of
23           protection isn't necessary?
24                  Or you simply don't care about your
25           own safety?
0047
 1                  So he was very strong on the order
 2           of protection question and Mr. Lewis is
 3           right that it's not unusual for a judge to
 4           deny -- to grant an order of protection,
 5           in spite of what the victim says.
 6                  This is during the sentencing when
 7           he's giving him probation.
 8                  The judge says to Senator
 9           Monserrate, curb your anger, curb your
10           anger.
11                  I seem to recall him saying sir in
12           there, the reporter may not have gotten it
13           down, you should have zero tolerance
14           towards abusive behavior, Ms. Giraldo, and
15           then he mentions you folks again, whether
16           or not -- however, these good folks at the
17           Senate, whether they were able to stand up
18           to the great pressures or decide they have
19           to be punitive.
20                  I hope it does not depend on this
21           man being the big guy on the street, but
22           you love him for his own inherent traits,
23           I'm not really sure what he meant by that,
24           and there were a lot of times when the
25           judge kind of pontificated, so I throw it
0048
 1           out there.
 2                  You have the full words that he
 3           said, but he did a couple of times mention
 4           community pressures, said that they did
 5           not in any way affect him, which is
 6           proper, of course, and then he mentioned
 7           the committee and made one or two
 8           statements like this one.
 9                  Okay, so that's it for the
10           sentencing.
11                  Are there any sentencing
12           proceeding, are there any questions on
13           that before I move on to the highlights of
14           the Grand Jury testimony that was released
15           to us?
16                  SENATOR SCHNEIDERMAN:  No.
17                  MR. ALONSO:  Okay.
18                  So the first part I wanted to focus
19           you on was the question of whether she was
20           drunk or not, and she said did you have
21           anything to drink at the party?
22                  I had two glasses of wine.
23                  And then question, is that the
24           extent of the drinks you had that evening?
25                  Answer, yes.
0049
 1                  Now at the trial she tried to
 2           backtrack and say I thought you were
 3           asking me about the party only.
 4                  Now, I think the question is
 5           relatively clear, but a little further
 6           down, did you feel you were drunk at all
 7           due to the drinks you had or were you
 8           okay?
 9                  Answer, no.
10                  Question, you were okay?
11                  Answer, yes.
12                  So she didn't feel she was drunk at
13           the time of the Grand Jury.
14                  Let me backup a minute here and
15           just say a couple of words about why this
16           is -- why I think this is significant.
17                  As you know, a Grand Jury
18           proceeding is secret.  The reason that's
19           really significant is during the highly
20           charged time when a prosecutor or a Grand
21           Jury is considering whether to file felony
22           charges, maybe the only time that a
23           witness is outside the reach or influence
24           of the Defendant or anyone working for the
25           Defendant, and I'm not saying anything
0050
 1           untoward happened here, I'm just saying
 2           the reason Grand Jury testimony is
 3           significant is because in the Grand Jury
 4           no one else is allowed to be there with
 5           that witness, so it's the only time they
 6           can have a one on one discussion with the
 7           District Attorney with the Grand Jury
 8           there, of course.
 9                  But there is no one else there,
10           there are no external influences, and the
11           testimony is under oath, and so
12           technically, given the rules that require
13           a D.A. to be relatively open-ended in his
14           questioning and to be -- and this D.A. was
15           quite open-ended in his questioning, you
16           like to think there is at least some level
17           of credibility to a statement made
18           relatively early on and under oath.
19                  The flip side of that is no one was
20           there to cross-examine her, so that's
21           obviously right, but there is a reason for
22           Grand Jury secrecy, there are several
23           reasons for it, and one of them is to give
24           witnesses comfort that they can actually
25           tell it like it is without worrying about
0051
 1           who is going to hear it.
 2                  So she was here asked if she was
 3           drunk and she said she was okay.
 4                  Senator Lanza, was that description
 5           in your experience?
 6                  SENATOR LANZA:  That was perfect.
 7                  I will add despite the fact she is
 8           not a Defendant here, though, for what
 9           it's worth, it's also been my experience
10           that no matter how many drinks people have
11           they never claim to have more than two,
12           and no one readily admits that they are
13           not okay.
14                  MR. ALONSO:  In the Grand Jury
15           when she's asked about the PBA card
16           incident, you may remember the video on
17           that where we saw the garbage being
18           thrown out and her coming out in her
19           dress and would appear to be pushing him
20           and he appeared to be holding it up.
21                  She said that he took my purse and
22           he put a new card inside my billfold when
23           he saw another card that was there from a
24           policemen who was a friend of mine.
25                  He tells me you don't need that,
0052
 1           because that's why you have me.
 2                  He took it out of my wallet, he
 3           went and he threw it into the garbage.
 4                  So that seems consistent with all
 5           the rest of the evidence, but let's see
 6           the next question.
 7                  Did he seem angry at all to you?
 8                  No.
 9                  Did he seem mad at all.
10                  No.
11                  He was calm?
12                  Answer, yes.
13                  Depends on the interpretation of
14           what's on the video, but he did go out and
15           throw it out and show it to her
16           beforehand, so.
17                  SENATOR HASSELL-THOMPSON:  She
18           disclaimed all of this, she claimed that
19           she was undressed, she said she never
20           went in the hall, she never left the
21           doorway.
22                  The whole thing was -- if we hadn't
23           seen the video it might be consistent, but
24           it was very clear, she was in the hall,
25           she had clothes on in the hall, but she
0053
 1           said she was undressed, she said he wasn't
 2           angry.
 3                  I mean we had no audio, but it
 4           certainly didn't seem the calm exchange
 5           that the testimony had -- you know,
 6           consistently.
 7                  MR. ALONSO:  It would be
 8           reasonable to find many or several
 9           glaring inconsistencies between her
10           Grand Jury testimony and her trial
11           testimony.
12                  I forgot to mention one thing about
13           why the Grand Jury is important.  At the
14           Grand Jury the Defendant hasn't been told
15           what the evidence is against him, and so
16           the witnesses don't have the ability to
17           shape their testimony based on other
18           evidence.
19                  SENATOR HASSELL-THOMPSON:  That's
20           right.
21                  MR. ALONSO:  What you just
22           brought up, Senator Hassell-Thompson, is
23           exactly right, she clearly hasn't seen
24           the video at this point, and we will get
25           further into it, it will be coming even
0054
 1           more clear.
 2                  So were you upset at all at him
 3           taking the PBA card, taking from your
 4           purse and throwing it out?
 5                  Answer, answer, under oath, no.
 6           She ran out, she opened up the garbage
 7           shoot to look down it.
 8                  I guess my question is when he was
 9           outside throwing out the card, did you
10           ever leave the apartment while he was
11           doing that?
12                  Answer, no.
13                  That was only seconds and you never
14           went in the hallway at all?
15                  Answer, no.
16                  SENATOR STAVISKY:  Was she
17           deliberately -- why would she not be
18           truthful, if she doesn't know what the
19           charges are and yet there are
20           discrepancies here --
21                  MR. LEWIS:  What she could be
22           doing is that she could be trying to
23           minimize what occurred.
24                  She could be trying to create a
25           scenario without knowing that there are
0055
 1           videotapes that shapes the Grand Jury's
 2           understanding of this.
 3                  She did not want him prosecuted,
 4           this was all against her will.
 5                  So she may have been trying to lay
 6           out a version of events that she believed
 7           would not require her to testify against
 8           him.
 9                  Forgetting whatever anybody else's
10           motives might be, and without seeing the
11           video and knowing there is a video.
12                  It's a very dangerous game to play,
13           and you will see in the video.
14                  SENATOR STAVISKY:  Had she been
15           coached ahead of the Grand Jury
16           testimony?
17                  MR. LEWIS:  I don't think we have
18           any basis for that determination, but I
19           think if you just stay with us you may
20           see some things that may lead you to ask
21           further questions, or come to some other
22           conclusions.
23                  But again, it's all of a piece,
24           this first version that we got, it's in an
25           Affidavit at a later point, which is
0056
 1           similar, but also a different version from
 2           her, and now we are going to see the
 3           capture in the video, but without the
 4           video this would stand as the only version
 5           of the "victim" that we would have and the
 6           Grand Jury would have.
 7                  SENATOR STAVISKY:  Exactly.
 8                  MR. LEWIS:  Would probably
 9           necessitate a no true bill, which means
10           they couldn't indict him for anything
11           because without the episode of the
12           confrontation, without the video you
13           wouldn't see that.
14                  Just so you know in the Grand Jury
15           the prosecutor is entitled to confront a
16           witness with, who say they made different
17           statements at different times, by law
18           under New York criminal procedure law, at
19           trial the prosecutor may not do that, no
20           one could can confront their witness and
21           say you told me something different at a
22           different time, unless you are actually
23           surprised.
24                  So the rules in the Grand Jury are
25           far more flexible which enables the D.A.
0057
 1           to confront her, which is what you are
 2           going to see next, and then you will see
 3           another piece of the information.
 4                  You are really going to have to
 5           weigh on the issue of do you think
 6           something untoward may have been going on.
 7                  SENATOR LANZA:  I think with all
 8           the evidence before us, I think one can
 9           reasonably infer that throughout the
10           process she was -- her posture was one
11           of a protective, one of protective of
12           Senator Monserrate's interest.
13                  MR. ALONSO:  It's not uncommon
14           for, in my experience, and I will defer
15           to others from the criminal justice
16           system as well, but in my experience
17           it's not uncommon for witnesses who want
18           things to go away to simply believe that
19           by denying it or by giving their
20           preferred version that will be it and
21           prosecutors will say oh, I guess I can't
22           prove it.
23                  But the reality is that
24           prosecutors, particularly in cases of some
25           importance, are going to not just accept
0058
 1           what people say at face value, but are
 2           going to look at corroborating or
 3           contradictory evidence.
 4                  And so she's in the Grand Jury, one
 5           possible explanation might be if I say
 6           this they will go away, without realizing
 7           the prosecutor is not just going to accept
 8           that.
 9                  If that were the rule, obviously
10           this case would have never gotten started
11           after day one.
12                  MR. LEWIS:  But you need some
13           objective evidence.  If she went and
14           told the story there was no video, it
15           would be very hard, even under the Grand
16           Jury could indict a ham sandwich rule,
17           for a prosecutor to get an indictment
18           based on her testimony alone, especially
19           since she doesn't make out certain of
20           the elements in this testimony that
21           would be required to be proven and that
22           the video does make out.
23                  SENATOR STAVISKY:  But they had
24           already seen the video, the prosecutor?
25                  MR. LEWIS:  They had, but she
0059
 1           hasn't.
 2                  Remember, at this stage two things
 3           have happened, Defendant has been
 4           arrested, that's all he knows.
 5                  She's already given a contrary
 6           sworn statement, statement to the version
 7           that we understood was being given at
 8           first to the medical personnel.
 9                  She's given a statement and you
10           will see in short order I expect, and now
11           this is her next appearance to try and get
12           this case thrown out.
13                  MR. ALONSO:  And there has been
14           no obligation for the prosecutor to give
15           the videotape to the defense at this
16           point in time, so the prosecutor has it
17           closely held.
18                  So here he plays it for her and she
19           says that's me, exiting the apartment, I
20           didn't remember that.
21                  And then she's asked what was your
22           demeanor at the time Mr. Monserrate was at
23           the garbage chute?
24                  Remember her demeanor is somebody
25           running out and pushing him.
0060
 1                  She said I was a little sad because
 2           I never really thought he was going to
 3           throw it in the garbage.
 4                  So she a little bit changes once
 5           she sees the video.
 6                  Question from the Grand Jury, at
 7           the moment the PBA card was found, was
 8           there any argument, struggle or fighting
 9           going on between you and Mr. Monserrate?
10                  There was an argument, but normal,
11           without any fighting.
12                  And remember the inferences from
13           the torn T-shirt and other stuff.
14                  MR. LEWIS:  Be careful, because
15           we don't know when that torn T-shirt is
16           from.
17                  MR. ALONSO:  You are right.
18                  MR. LEWIS:  This question seems
19           to place it around the PBA card, but we
20           do have her pushing him away when she
21           walks by.
22                  MR. ALONSO:  In the hallway.
23                  MR. LEWIS:  Right, in the
24           hallway.
25                  MR. ALONSO:  So here the
0061
 1           prosecutor is asking whether he
 2           remembered -- whether she remembers what
 3           she told the female Spanish speaking
 4           A.D.A. that she met with at the justice
 5           center on day 1, and she said she didn't
 6           remember.
 7                  The prosecutor then showed
 8           something, presumably notes or a report,
 9           and said does that refresh your
10           recollection and she says, essentially,
11           yes, it was like the devil got inside of
12           him, because he threw away the card, and
13           he had never done this before.
14                  So this is her agreeing that she
15           told the A.D.A. that he got very upset
16           like the devil got inside of him when he
17           saw the PBA card, different from what she
18           testified a few minutes earlier.
19                  In terms of the glass incident,
20           this is not very different from what I
21           told you last time was the defense
22           position of what happened.
23                  He bumped into something, maybe
24           with my shoe, because there is a wall,
25           there is not a lot of space in between,
0062
 1           and he almost didn't fit, and so she is
 2           sort of making it into why he might have
 3           tripped and splashed the water, and then
 4           she tells the version that we talked about
 5           last time, that she felt the water, her
 6           reaction was trying to get up, that's when
 7           they bumped into each other.
 8                  When she says it was not this side
 9           it was on this side, remember last time
10           there was a question as to what side of
11           the bed they were on, so I was able to
12           clarify it for you this time.
13                  So if you take a look here, the map
14           be that we had last time was correct,
15           that's that little gap between the dresser
16           and the bed, that's where, according to
17           her description, he would have walked with
18           the water, and she was sleeping on the
19           side of the bed closer to the red line,
20           just to the right of the red line.
21                  Right there.
22                  And there is a different angle of
23           the bed, you can see the white part, this
24           is slide 37 which is Exhibit 14 from the
25           trial, the part that does not have the
0063
 1           blanket on it, that's where according to
 2           her she was lying and that's where the
 3           evidence that was recovered you can see 2,
 4           7, 8, 9 and 10 at the top pointing right
 5           at the pillow, that's where it was
 6           recovered.
 7                  So that's the side of the bed and
 8           just off to the right off the photo,
 9           that's according to her where he would
10           have been when he gave her the glass of
11           water.
12                  Now, she's asked further in the
13           Grand Jury testimony about the decision to
14           go to the hospital.
15                  This is in the apartment, according
16           to her, he said let's go to the hospital.
17                  She said I did not want to go
18           because she was nervous, I'm afraid of
19           needles.  This is a theme you might
20           remember from the trial.
21                  He said let's go, it's for your own
22           good.  That's when we decided to go to a
23           hospital.
24                  Here is the part about calling the
25           ambulance.
0064
 1                  The D.A. asks, did you ask him to
 2           call for an ambulance?
 3                  She said, I said if you want, call
 4           an ambulance.
 5                  He said I want to drive you over.
 6                  And further down, did you ask him
 7           to call for an ambulance?
 8                  Answer, because he was also
 9           nervous.  I said if you want call an
10           ambulance, but he said no.
11                  And he drove and he said let's go.
12                  So this confirms that he decided
13           not to call for an ambulance and it was
14           his decision to drive her.
15                  She says she agreed with the
16           decision wholeheartedly, but at the trial
17           she couldn't remember if he had asked --
18           she had asked him to call an ambulance.
19                  So, she says a little bit later
20           that about the hospital, that the closest
21           one was Elmhurst, but she didn't want to
22           go there, she says she's the one who told
23           him to take her to Long Island to see a
24           surgeon.
25                  A little bit odd, given she's
0065
 1           afraid of needles she would have said take
 2           me to see a surgeon, but who knows, that
 3           could just be a language issue.
 4                  She said she wanted to go to Long
 5           Island and she did not want to go to
 6           Elmhurst.
 7                  And she's -- again, she's asked
 8           have you ever been to that hospital
 9           before?
10                  No, but members of his family had
11           received treatment there.
12                  At the sentencing Mr. Tacopina said
13           and at the trial that it was
14           Mr. Monserrate himself that had received
15           treatment there.
16                  Okay, so now they are describing
17           what's going on as they are leaving the
18           apartment, this is before she sees the
19           DVD, the video.
20                  She was crying, he grabbed me by my
21           arms, my shoulder and told me we are going
22           to the hospital for your own good.  So she
23           does say that.
24                  And he asks, you didn't struggle
25           with him after he said let's go to the
0066
 1           hospital?
 2                  There was no time for any struggle.
 3                  So after he said to you let's go to
 4           the hospital, did that calm you down and
 5           did you then go with him willingly?
 6                  Answer, yes.
 7                  From the time you were at the door
 8           to the time you exited the apartment, was
 9           there any struggle between you and
10           Mr. Monserrate at all after he said let's
11           go to the hospital?
12                  Answer, no.
13                  Question, none at all?
14                  Answer, no.  There was never any
15           struggle.
16                  SENATOR SCHNEIDERMAN:  So when he
17           says at your time at the door, is that
18           referring to the time knocking on the
19           neighbor's door, or is that referring to
20           them leaving her apartment?
21                  MR. ALONSO:  Refers to leaving
22           his apartment on the second floor.
23                  That's what it means, she never --
24           the neighbor part is coming up.
25                  SENATOR SCHNEIDERMAN:  Okay, got
0067
 1           it.
 2                  MR. ALONSO:  At any point in time
 3           from the time you were at the door to
 4           the time you exited the front door, did
 5           you ever try not to go with
 6           Mr. Monserrate?
 7                  Nope, nope, we were together, the
 8           two of us.
 9                  And again, did you go anywhere
10           before you went to the door at the bottom
11           of the first floor?
12                  Answer, I was nervous, I stopped
13           for a moment, nervous.  I didn't know what
14           to do.
15                  Question, what to do do?
16                  Answer, well, I knocked on some
17           neighbor's door.  Suddenly I thought maybe
18           he could help me to get to the hospital.
19                  Remember at the trial she said she
20           didn't remember stopping or knocking on
21           the neighbor's door.
22                  Did you say anything?
23                  Answer, someone help us.
24                  Did you say the word help when you
25           were at the door?
0068
 1                  Answer, I did not say help, I said
 2           I don't remember, but I did want to see
 3           someone.
 4                  Why did you want to see someone?
 5                  Answer, I don't know, I was
 6           nervous.
 7                  This is after watching the DVD.
 8                  Do you remember what you said when
 9           you got to the bottom of the steps?
10                  Answer, I know at that moment we
11           were going to the hospital, I was very
12           nervous?
13                  Question, do you remember what you
14           said?
15                  Answer, no.
16                  And again, at the time you were
17           exiting the lobby do you know where you
18           were going to?
19                  So, at the bottom here, she's asked
20           are you going willingly with
21           Mr. Monserrate?
22                  And she answers yes, both of us
23           were going to the hospital.
24                  Okay, so now that's it for the
25           apartment, now we are at the hospital.
0069
 1                  Any questions on the apartment
 2           building.
 3                  SENATOR SCHNEIDERMAN:  I think
 4           obviously there is a lot of material
 5           here, I think when we get to the point
 6           of discussing what we are going to be
 7           putting in the report we will have a
 8           chance to review our impressions of the
 9           relationship between this testimony and
10           what we saw in the video.
11                  MR. ALONSO:  This is the last
12           slide from the Grand Jury testimony.
13                  She's asked what happened at the
14           hospital?
15                  I told them Hiram was with me, I
16           had an accident, and then a little bit
17           further down the important thing at that
18           moment was that I wanted to be seen by a
19           doctor, but when they realized that he's a
20           politician, then this nightmare began.
21                  Did you speak with a doctor?
22                  After the nurse, they gave me the
23           gown, when they realized who I was, they
24           did not clean the blood from my face.
25                  They started to gossip and to make
0070
 1           problems by calling the police and that's
 2           when this whole thing started.
 3                  Question for you, I guess, is for
 4           the committee is whether that's -- if that
 5           sounds reasonable, or that sounds like
 6           somebody who is trying to, perhaps, shade
 7           what's going on.
 8                  It's contrary to the testimony that
 9           they didn't clean the blood from her face
10           and we already have from Senator
11           Monserrate and his lawyer their view on
12           whether this was a politically motivated
13           arrest and prosecution.
14                  MR. LEWIS:  And if you go back
15           and look at the trial testimony by the
16           medical personnel, it's clear that the
17           triage nurse interviews her and everyone
18           else drives forward to try and take care
19           of her, but at the end of the day it's a
20           plastic surgeon who has to do the actual
21           work.
22                  We haven't talked about this, but
23           there were multiple -- the two main wounds
24           and other wounds that were smaller.
25                  She refused treatment on those
0071
 1           smaller wounds, she didn't want anything
 2           done on the smaller cuts on her face.
 3                  In the scheme of things, given that
 4           answer you might want to look back and
 5           read the medical doctor's testimony,
 6           especially about her refusal to accept the
 7           recommendation, even of the plastic
 8           surgeon.
 9                  MR. ALONSO:  Is there an
10           inference you think they can draw from
11           that?
12                  MR. LEWIS:  I think so, yeah, I
13           was the one who raised it.
14                  MR. ALONSO:  On the refusal, on
15           her refusal to have the rest of the
16           stuff treated, what inference do you
17           suggest might be made?
18                  MR. LEWIS:  I think the inference
19           is that they were treating her and that
20           she was resisting much of what was going
21           to be done, except what had to be done
22           by the plastic surgeon to save her face.
23                  MR. ALONSO:  That they were
24           treating her, contrary to her saying
25           constantly they weren't treating her?
0072
 1                  MR. LEWIS:  That and the other
 2           thing is being hit in the face by the
 3           glass, however that happened, whatever
 4           the episode or not, the multiple sites
 5           are not just in two sites going in two
 6           different directions, but there are
 7           other injuries and that's something that
 8           the committee should be aware of looking
 9           at.
10                  MR. ALONSO:  This theme they were
11           not taking care of her continued until
12           this past Friday, I mean she said that
13           you saw it already and she said that to
14           the judge, the judge didn't believe her.
15                  All right, so that's it for the
16           Grand Jury testimony, you have it all and
17           I urge you to read it, it's not very long,
18           actually.
19                  So this was provided to us by the
20           District Attorney who got it from --
21                  SENATOR SCHNEIDERMAN:  This
22           being?
23                  MR. ALONSO:  This is slide 46, it
24           is a letter that attaches an Affidavit
25           and it is from a law firm that was at
0073
 1           the time representing Senator
 2           Monserrate, the letter is dated January
 3           3 of '09 and the letter attaches this
 4           Affidavit, a sworn statement of Karla
 5           Giraldo and the statement has her
 6           signature on it, and it is notarized by
 7           someone named Michael Nieves who I
 8           understand works for Senator Monserrate.
 9                  And the date of it is the 19th of
10           December, you can see right above Mr.
11           Nieves' signature the 19th day of December
12           which is that night, according to the D.A.
13                  MR. LEWIS:  So you understand how
14           this might fit in, in anticipation of a
15           Grand Jury a defense lawyer may if they
16           know who the players are, will reach out
17           and try and collect statements to put
18           before the D.A., the D.A. then has to
19           decide whether that goes in front of the
20           Grand Jury or not, whether that
21           document, and also what it does is
22           create a Brady obligation, disclosure
23           obligation possibly to the Grand Jury,
24           but most certainly to the defense, even
25           though ironically it's coming in a sense
0074
 1           from the defense.
 2                  So what it does is it begins the
 3           process of defending the case and trying
 4           to undermine the prosecutor's case before
 5           it even gets into what is totally
 6           presented to the Grand Jury.
 7                  MR. ALONSO:  The first thing to
 8           notice about this Affidavit is that it's
 9           in English, there is no Spanish
10           translation or any mention of whether it
11           was read to her in Spanish.
12                  It -- I don't believe it's her
13           handwriting, to the extent that I can do
14           my lay analysis, it looks like one of Mr.
15           Nieves, in the same hand as what's written
16           under Mr. Nieves' signature.
17                  So first thing she says is I was
18           never assaulted or hit in any way by Hiram
19           Monserrate.
20                  The next thing is what occurred on
21           December 19th, 2008 was an accident.
22                  Hiram was instrumental in getting
23           me to the hospital after I was
24           accidentally cut by a glass containing
25           water after we argued in the bedroom.
0075
 1                  The word accident appears many
 2           times in this Affidavit.
 3                  This is a very interesting part of
 4           it, the part I'm highlighting right now
 5           this is slide 48 at the bottom.
 6                  That evening I was very upset and
 7           moving around frantically and therefore
 8           careless around the glass.
 9                  Which is fine, as far as it goes,
10           but it's completely inconsistent with the
11           version of events that she tells in the
12           Grand Jury.
13                  Remember, she's not asked about
14           that at trial, because that was part of
15           the walking on eggshells part about
16           calling her.
17                  But in the Grand Jury she gives
18           this version of events about lying down
19           and having the glass come up and she comes
20           up and the glass comes down and it hits
21           her and that, remember, is what the
22           defense told me the first time I met with
23           them, when I said what's your best theory
24           of what happened in that room?
25                  Was that they met when she was in
0076
 1           the bed.  Here she says she was upset
 2           moving around frantically and therefore
 3           careless around the glass.
 4                  Remember, obviously, it's not for
 5           this committee to decide whether the event
 6           with the glass was an accident or was
 7           intentional, because that's not part of
 8           your charge under the resolution, but
 9           Karla Giraldo's credibility of why she
10           might not be telling the truth is very
11           much part of what this committee is
12           looking at, and so that was a particularly
13           significant part of this Affidavit.
14                  I'm very concerned with my
15           appearance and when I saw the scar above
16           my eye I became very frantic and angry.
17                  This does not change the fact that
18           the injury was because of an accident
19           after two adults argued and after I was
20           not careful as I moved frantically.
21                  Again, the theme of moving
22           frantically and not being careful.
23                  At first I refused to go to the
24           hospital, but Hiram insisted that I go as
25           the accidental injury was in need of
0077
 1           medical treatment.
 2                  This is now she's talking about
 3           what happened in the building, as I walked
 4           down the hallway of the apartment building
 5           with Hiram I refused to go to the hospital
 6           but Hiram insisted that I go for my own
 7           good, and thankfully forced me to go for
 8           my own good.
 9                  I refused to go to Elmhurst
10           Hospital and I asked Hiram to take me to
11           Long Island Jewish Hospital because I felt
12           that Elmhurst was not a good hospital for
13           the treatment that I needed.
14                  Any questions on the Affidavit?
15                  You have that as tab 4 of your
16           materials.
17                  SENATOR HASSELL-THOMPSON:  Go
18           back to the very last statement you
19           made, we were questioning why he passed
20           so many hospitals and this is the first
21           time that, for me, anyway, that it was
22           at her request that they went there as
23           opposed to some other hospital that was
24           closer.
25                  MR. LEWIS:  It's interesting,
0078
 1           because in another version of that she
 2           says she didn't want to go to Elmhurst
 3           because of discrimination, whatever that
 4           means.
 5                  No explanation, it's just something
 6           that she says.
 7                  SENATOR STAVISKY:  That's the one
 8           place she wouldn't.
 9                  MR. LEWIS:  I'm just putting it
10           out.  I think you are asking a
11           legitimate question.
12                  MR. ALONSO:  She says that in the
13           Affidavit, Senator, and in the Grand
14           Jury that it was her idea.
15                  SENATOR HASSELL-THOMPSON:  Yes.
16                  MR. ALONSO:  Now, at the trial,
17           remember, Senator Monserrate's lawyers
18           introduced his records of having been to
19           Long Island Jewish himself as a patient
20           and that was what they argued to the
21           judge was why they would pick a hospital
22           of such stature compared to this not so
23           good Elmhurst that they argued.
24                  MR. LEWIS:  Which then led to the
25           whole issue of where the emergency room
0079
 1           was and where he parked, the signs and
 2           all of that.
 3                  MR. ALONSO:  We are about to do
 4           that.
 5                  SENATOR STAVISKY:  May I ask you
 6           a question about the letter.
 7                  MR. ALONSO:  Of course.
 8                  SENATOR STAVISKY:  Who wrote the
 9           letter?  She signed it.
10                  MR. LEWIS:  The Affidavit?
11                  SENATOR STAVISKY:  The Affidavit.
12                  MR. ALONSO:  This is not
13           evidence, but my indication from the
14           D.A. is that Mr. Nieves wrote it.
15                  SENATOR ALESI:  I didn't hear
16           that.
17                  MR. ALONSO:  I understand Mr.
18           Nieves wrote it.  If it's something you
19           consider a crucial fact, I can find out.
20                  MR. LEWIS:  The committee might
21           want to think about whether or not it
22           wants to know whether by that time,
23           although Senator Monserrate was not then
24           Senator, whether any staff requests or
25           anything had already been made.
0080
 1                  SENATOR STAVISKY:  Say that
 2           again?
 3                  MR. LEWIS:  Any staff requests or
 4           staff, the indication of who staff was
 5           going to be had already been made
 6           because that would be a significant fact
 7           setting to learn that this was done by
 8           staff to be or something like that, you
 9           just need to think about whether you
10           want to know about that.
11                  MR. ALONSO:  It hasn't been part
12           of our charge up to now to sort of
13           examine all the various circumstances
14           about who might have talked to her,
15           there is evidence there, but I think
16           that there is a value, I think, in
17           probably keeping our eye on the ball and
18           not going off on too many tangents.
19                  This was a significant piece of
20           evidence that was provided to the District
21           Attorney by the defense, so I wanted to
22           make sure the committee had it.
23                  SENATOR LANZA:  Again, one
24           question we know it's dated December
25           19th, when do we know for sure that it
0081
 1           existed?
 2                  MR. ALONSO:  January 3rd is when
 3           the D.A. gets it, that's the cover
 4           letter.
 5                  And on the top of the cover letter
 6           the D.A. says, as discussed with you
 7           earlier today, I'm enclosing a copy of the
 8           sworn statement of Ms. Karla Giraldo for
 9           your review, statement is a total of three
10           pages.
11                  So sometime between the 19th and
12           January 3rd there must have been
13           discussions between the D.A. and defense.
14                  Because of the holidays, I guess it
15           happened right after the new year.
16                  Okay, so I was requested by two or
17           three of you to examine the various routes
18           between where Senator Monserrate lives and
19           North Shore LIJ to figure out
20           approximately how long it should take, and
21           remember this was 3:00 in the morning so
22           one would expect there was no traffic,
23           although we can never know for sure in New
24           York.
25                  So the first one I think we looked
0082
 1           at four or five, the first one is taking
 2           the Cross Island Parkway which is slide
 3           537, and Google tells us that that's a 19
 4           minute trip and could be up to 40 minutes
 5           in traffic.
 6                  It seems a bit roundabout,
 7           actually.
 8                  SENATOR ALESI:  May I ask, would
 9           it normally be heavy traffic that time
10           of early morning?
11                  MR. ALONSO:  98 percent no.  If
12           you drive around in New York routinely
13           you know that sometimes there is some
14           crazy construction going on on the road,
15           so you can't say no categorically, but
16           it is 3:00 in the morning.
17                  MR. LEWIS:  You can call it
18           random construction.
19                  SENATOR STAVISKY:  This was prior
20           to the accident on the Throgs Neck
21           Bridge, so that there should be no
22           traffic at all.
23                  MR. LEWIS:  Prior to the truck
24           that caught fire and burned the bridge.
25                  SENATOR STAVISKY:  Yes, I live
0083
 1           right there.
 2                  MR. LEWIS:  Not everybody knows
 3           what that means.
 4                  SENATOR STAVISKY:  There was a
 5           truck that caught fire, one fatality and
 6           the bridge was closed for -- an entrance
 7           for trucks has just been restored
 8           recently.
 9                  MR. LEWIS:  And cars.
10                  MR. ALONSO:  Which backs up.
11                  SENATOR STAVISKY:  Which backs up
12           the Cross Island Parkway.
13                  MR. ALONSO:  So that's the Cross
14           Island, slide 54 shows going on Northern
15           Boulevard which is not a highway but
16           it's a main, more direct route and that
17           should take 26 minutes.
18                  If you take a the Long Island
19           Expressway, which again is always a big if
20           whether it's backed up, although 3:00 in
21           the morning it's usually pretty good,
22           that's an 18 minute trip, up to half an
23           hour in traffic.
24                  Grand Central Parkway which is
25           south instead of north is 19 minutes, up
0084
 1           to 45 in traffic, and this one is the
 2           longest one going through Union Turnpike,
 3           I'm not from Queens, but I think this
 4           would be kind of -- you would have to
 5           really be looking for tis one to go out of
 6           your way.
 7                  MR. LEWIS:  No reason, there is
 8           absolutely no reason.
 9                  SENATOR STAVISKY:  No reason.
10           For the record, Union Turnpike crosses
11           the Grand Central Parkway in a number of
12           locations, it's easy to get confused.
13                  MR. ALONSO:  That's the longest
14           one, is the one that nobody would take.
15                  So that's it for the routes, any
16           questions on that?
17                  SENATOR STAVISKY:  Do we know how
18           he went?
19                  MR. ALONSO:  We don't, because we
20           don't have the cell site information,
21           assuming that it exists.
22                  SENATOR HASSELL-THOMPSON:  And we
23           are presuming that the time is -- the
24           time that we are assuming it took is
25           predicated on the clock that was on the
0085
 1           tapes when he left the building and the
 2           clock that we saw on the tapes entering
 3           the hospital?
 4                  MR. ALONSO:  Not just the clocks,
 5           but the clocks corrected for their true
 6           time.  In other words both of them.
 7                  SENATOR HASSELL-THOMPSON:  Even
 8           corrected, if it's -- if that clock is
 9           20 minutes slow or fast, whatever the
10           amount of time it takes me it doesn't
11           matter, the time would be the same.
12                  MR. ALONSO:  Correct, but it's
13           got to be corrected first.  We know that
14           one of them is 13 minutes fast, so once
15           they -- at the moment.
16                  SENATOR HASSELL-THOMPSON:  Which
17           one was 13 minutes fast?
18                  MR. ALONSO:  The one at the
19           apartment building.
20                  SENATOR HASSELL-THOMPSON:  The
21           apartment?
22                  MR. ALONSO:  The one at the
23           apartment was 4 minutes off, so once
24           they correct for the time, that's when
25           they get 37 minutes, and by the way,
0086
 1           both sides agree it's 37 minutes, there
 2           is no controversy over how much time it
 3           was.
 4                  But that's how they get it, they
 5           get it from the clocks, the digital clocks
 6           corrected for the real time.
 7                  SENATOR HASSELL-THOMPSON:  Okay.
 8                  SENATOR STAVISKY:  And none of
 9           these routes took 37 minutes.
10                  MR. ALONSO:  Correct, unless
11           there was traffic.
12                  So we wanted a little bit more
13           explanation on where he dropped her at the
14           hospital, the inference that the
15           prosecution tried to suggest is that he
16           was trying to stay away from any kind of
17           publicity and parked far away, the defense
18           basically said so what, he parked near an
19           entrance to the hospital.
20                  So this was the picture you saw, in
21           slide 58 you saw it already and the
22           entrance sign is off to the far right, the
23           security booth where it's indicated and
24           the ER at the top left of the photo,
25           whereas there is a parking garage the
0087
 1           entire right side of the picture and
 2           Senator Monserrate parked in the lower
 3           middle of the picture.
 4                  So it wasn't that clear when we saw
 5           it last week, or two weeks ago, so I
 6           wanted to make it a little bit more clear
 7           looking at the actual maps of the hospital
 8           off of the web.
 9                  SENATOR LANZA:  I have a
10           question, Senator Stavisky, given your
11           familiarity with the location, the
12           location that he parked, does that allow
13           you to better speculate, if you will,
14           with respect to which route he may have
15           taken?
16                  MR. ALONSO:  Parked on 76th
17           Avenue, do you see down there at the
18           bottom, Senator?
19                  SENATOR STAVISKY:  Where is Union
20           Turnpike in relation to --
21                  MR. LEWIS:  Go back to Union
22           Turnpike map?
23                  SENATOR STAVISKY:  Yes, let me
24           answer that question.
25                  If he took the highway, the chances
0088
 1           are -- if he took the Parkway he would get
 2           off at the Lakeville Road Exit, which
 3           would put him on Lakeville Road, and you
 4           would enter the hospital at that area.
 5                  MR. ALONSO:  Of the area that --
 6                  MR. LEWIS:  Not at 76th Avenue?
 7                  SENATOR STAVISKY:  Not at 76th
 8           Avenue.
 9                  MR. LEWIS:  Really more towards
10           the Nassau side?
11                  SENATOR STAVISKY:  That's
12           correct.  You would be on the Nassau
13           County side.
14                  MR. LEWIS:  The longest.
15                  SENATOR STAVISKY:  Every time I
16           have been there I have taken usually the
17           Long Island Expressway to Lakeville
18           Road, I made a right turn then you pull
19           right into their complex.
20                  MR. ALONSO:  Okay, so we have
21           this overhead map.
22                  SENATOR HASSELL-THOMPSON:  Which
23           is not the longest route.
24                  MR. LEWIS:  If he took the
25           longest route he still wouldn't end up
0089
 1           where he ended up.
 2                  SENATOR HASSELL-THOMPSON:  That's
 3           what I'm saying, he would not end up
 4           there?
 5                  MR. LEWIS:  Unless you extended
 6           the longest route, yeah.
 7                  MR. ALONSO:  So we are at the
 8           point you see 7th --
 9                  SENATOR STAVISKY:  Excuse me, you
10           can see Lakeville Road in the lower
11           right-hand corner.
12                  MR. ALONSO:  There it is, in the
13           lower right-hand corner.
14                  SENATOR STAVISKY:  Lower
15           right-hand corner.
16                  MR. ALONSO:  So you would go in
17           exactly where the photo that we saw last
18           week tells us the entrance sign is.
19                  That's exactly where you would go
20           in, and there is a sign there that the
21           D.A. put into evidence which points to
22           where the emergency room is supposed to be
23           and that's off to the right, not off to
24           the left.
25                  So here is the point of entry where
0090
 1           it's indicated on slide 62 and the
 2           emergency room where the drop off is is
 3           there at the top.
 4                  And the building in between is what
 5           you saw them walking through in video
 6           after video to get to the emergency room.
 7                  And at the bottom, just below where
 8           it says L 2 or so is where approximately
 9           where he parked on 76th Avenue.
10                  And you can see a picture of
11           just -- it's hard to tell exactly what
12           you're looking at, but it's -- you see to
13           the left of the M on slide 62 there is a
14           road, that's the road in slide 63.
15                  So that road leads right up to the
16           point of entry, that's where he went in.
17                  So 76th Avenue is what we are
18           seeing at the forefront of that picture
19           and if you walked maybe a block to the
20           right, that's where he parked.
21                  And you can see that on the map
22           there.
23                  Here is an overhead shot which is a
24           slightly better picture than what we have
25           seen, you can see the parking garage, the
0091
 1           big structure on the right upper
 2           right-hand side just under the word room,
 3           you can see that large rectangular garage,
 4           that's where we just determined would be
 5           the likeliest point of entry, just above
 6           it, and if you see the emergency room
 7           there at the top you see the point of
 8           entry there at the bottom and you see the
 9           approximate location of the car.
10                  So they walked -- the D.A. made a
11           big deal out of this at trial -- they
12           walked 150, 200 yards from the point of
13           entry from the car to the point of entry
14           and then another whatever amount you saw
15           them walking in the video to get to the
16           emergency room, when you could have gone
17           in by the parking garage, taken a right,
18           driven around, pulled right up and dropped
19           your patient at the emergency room.
20                  That's the inference the D.A. asked
21           to draw, and it's one that clearly the
22           judge agrees with.
23                  MR. LEWIS:  And it's fair to say
24           we didn't get an alternative explanation
25           out of anything in the course of the
0092
 1           trial.
 2                  MR. ALONSO:  That's absolutely
 3           fair to say.
 4                  MR. LEWIS:  Everybody should
 5           realize --
 6                  MR. ALONSO:  I think I have
 7           answered the questions that were raised
 8           last time by the senators to the best of
 9           my ability, and I appreciate Mr. Lewis'
10           help in a variety of different parts of
11           our work.
12                  So, Senator Lanza.
13                  SENATOR LANZA:  What is next on
14           our agenda?
15                  MR. ALONSO:  The report on the
16           memorandum regarding possible standards
17           for expulsion.
18                  SENATOR LANZA:  Which is tab 5.
19                  MR. ALONSO:  Should be tab 5,
20           yes.
21                  SENATOR LANZA:  If I could
22           summarize, I suppose here, I think there
23           has been a very good and exhaustive
24           review with respect to what precedent
25           exists on the matter and there are
0093
 1           some -- there are various cases dating
 2           all the way back to the early part of
 3           the last century, I believe, with
 4           respect to those instances which might
 5           be analogous or at least provide some
 6           guidance with respect to what the
 7           options are here.
 8                  I think everyone can draw their own
 9           conclusion, but for me it just seems as
10           though there really is no real framework
11           with respect to what the options are, in
12           fact it seems to be pretty wide open.
13                  Dan, would you agree with that?
14                  MR. ALONSO:  I would agree.  I
15           think that the -- first of all, about
16           this memorandum, it's among the more
17           confidential materials in the materials,
18           so I just ask that everybody preserve
19           the attorney-client confidentiality of
20           this, it contains our current thinking
21           and obviously some of it will be
22           incorporated into our final report.
23                  In terms of standards, it's true, I
24           mean there are a lot of different
25           standards that can be used and have been
0094
 1           used by legislators in considering whether
 2           or not to expel.
 3                  Remember, as I said in this
 4           memorandum, nobody is prejudging what
 5           possible discipline you may or may not
 6           mete out, even short of expulsion, but
 7           here the purpose is we have been asked
 8           what standards should we consider in
 9           deciding whether to expel a member.
10                  The legislative law does not give
11           you guidance.
12                  The statute legislative law Section
13           3 is very old, I mean its predecessor
14           statute could date back to as far as the
15           18th century, as far as we are able to
16           tell right now, and there is virtually no
17           legislative history, and and it just says
18           that you have -- that the House has the
19           power to expel a member.
20                  The constitutional history of New
21           York tells us that the power is
22           discretionary.
23                  You have the sound discretion to
24           vote your conscience as you do or the
25           Senate does to vote it's conscious as it
0095
 1           does on any other matter.
 2                  Some of the frameworks that we
 3           found that have been used are set out
 4           there and they are things like conduct
 5           unfitting and unbecoming a member, failure
 6           to work conscientiously for the general
 7           good, mistreatment of those less powerful.
 8                  Bringing dishonor and disrepute to
 9           the House.
10                  Improper conduct that may reflect
11           upon the Senate.
12                  Just a variety of different, I
13           think, purposefully vague standards
14           because nobody can ever come across --
15           nobody can ever set forth all the possible
16           ways in which somebody might be no longer
17           fit to serve as a member of the
18           legislature.
19                  But it is clearly within the sound
20           discretion of this body or the Senate as a
21           whole to expel its members by majority
22           vote.
23                  And in terms of your actual
24           standard that you use to vote your
25           conscience, I need to defer to the Acting
0096
 1           Chair.
 2                  SENATOR LANZA:  I will say that
 3           the purpose of this, Senator
 4           Schneiderman and I have discussed this,
 5           the purpose of this memorandum is not to
 6           presuppose or any predetermined outcome
 7           or desire of this committee toward
 8           expulsion.
 9                  One of the things, about the most
10           important question about this committee is
11           what are the options available to us, what
12           are the powers of the Senate with regard
13           to if, in fact, this committee recommends
14           or that the body decides that sanctions
15           are appropriate, what are the possible
16           sanctions available.
17                  So this is obviously the most
18           extreme and so it needed to be explored
19           with respect to whether or not that
20           authority even exists within the body, and
21           I think the answer is that you know that
22           it does, because there aren't really any
23           clear parameters or precedents which would
24           prohibit that.
25                  But again, not to suggest any way,
0097
 1           shape or form that that is the purpose of
 2           this committee, that is not the purpose,
 3           the purpose of this committee is to
 4           investigate first the facts and then to
 5           make, perhaps, a recommendation as to what
 6           the options are.
 7                  MR. LEWIS:  In looking at the
 8           standards, because Dan and I were
 9           talking, Mr. Alonso and I have been
10           talking about this it for quite some
11           time, the two things that we were most
12           concerned with was whether the committee
13           had the power, recognizing that there is
14           press and other materials saying we
15           didn't, and coupled with the idea that
16           it's never happened, so therefore it
17           can't be done.
18                  An argument clearly rejected by
19           cases such as Skelos versus Patterson.
20                  The problem is that we needed to
21           put together and collect what's been done
22           in the past in other jurisdictions in
23           order to have a working framework for you
24           folks to figure out how to exercise your
25           consciences and that is to just basically
0098
 1           emote is not really what a committee
 2           should do.
 3                  So in weighing the facts and
 4           looking at the circumstances, these are
 5           standards in which you can adopt
 6           intrinsically under fundamental
 7           parliamentary law the Body has the power
 8           to protect itself, and that out of that
 9           power to protect itself emerges the
10           ability to discipline in whatever fashion,
11           from censure to private censure to all the
12           way to expulsion.
13                  Some of the problems also caused by
14           a certain amount of misdirection and that
15           is the Lipshitz case, which is the only
16           thing we really sort of have in hand from
17           the more modern era, doesn't elect in its
18           memo to discuss Legislative Law 3 at all.
19                  Instead reaches back into the
20           Constitution and talks about how something
21           was omitted.
22                  So therefore since it was omitted,
23           there is no way to do this.
24                  You can speculate on why that
25           report was written the way it was, it came
0099
 1           with a resolution of censure, so it seemed
 2           to be one directed, one particular
 3           direction in that report.
 4                  In our conversations among counsel,
 5           we have tried very strongly to avoid
 6           having anything like that in any
 7           direction.
 8                  So the standards from other
 9           jurisdictions became more important to
10           take a look at as we were doing our work
11           in trying to figure out what the committee
12           needed, but in the end it's really a
13           matter of your conscience, using these
14           standards as a guide, applied to the facts
15           that you are going to consider and come to
16           some finding.
17                  MR. ALONSO:  I do want to add one
18           thing or correct one thing in this memo
19           and in what's been bandied about in the
20           public record, my fine associate, Stan
21           Lotkin, who is sitting here, has
22           recently just in the last few days dug
23           up the fact that apparently the
24           legislature has expelled people in the
25           19th and 18th centuries.
0100
 1                  In the 1860's a member of the
 2           assembly was expelled, it doesn't make our
 3           job that much easier because he was
 4           expelled for bribery, but unconvicted
 5           bribery, in other words he received a
 6           bribe, wasn't prosecuted for it, but was
 7           expelled using the expulsion power.
 8                  And even earlier a couple of
 9           members of you think the Senate, right?
10                  MR. LOTKIN:  The Senate, yeah.
11                  MR. ALONSO:  The Senate were
12           expelled.
13                  MR. LOTKIN:  1778, 1781.
14                  MR. ALONSO:  Before the U.S.
15           Constitution but after the U.S.
16           Constitution of 1777.
17                  So certainly that's a long time
18           ago, and I believe those were treasonous
19           activities.
20                  MR. LEWIS:  Tied to the colony's
21           relation with Britain.
22                  MR. ALONSO:  Nevertheless, it's
23           wrong to say no one has ever been
24           expelled from the legislature, and you
25           wouldn't be technically breaking new
0101
 1           ground, even though in the modern era
 2           it's not something that has been done in
 3           modern times.
 4                  MR. LEWIS:  And for our purposes
 5           it's important that if we are going to
 6           do this, that we understand why we are
 7           doing it and what standards we are
 8           using.
 9                  Whether it's been done before or
10           not, we need to know why we are doing it
11           and what our standards are in looking at
12           this, because the danger always is that
13           there is some charge somewhere of
14           political motivation or political
15           elements, so we need to know what's
16           motivating us and what we decide is going
17           to be right.
18                  MR. ALONSO:  I think we need to
19           decide or you folks, the Select
20           Committee needs to decide what to
21           recommend to the full Senate.
22                  First, I think you need to find
23           facts and make inferences from events and
24           I think that's something we can suggest to
25           you, what we recommend and you folks can
0102
 1           debate that.
 2                  And I think from that one possible
 3           way to go would be to make a
 4           recommendation based on the facts that you
 5           find, whether that recommendation be for
 6           some form of discipline short of expulsion
 7           or whether it be expulsion.
 8                  In terms of standards, the way I
 9           have been thinking about it is I wouldn't
10           necessarily pick one of these standards, I
11           would simply make a recommendation and I
12           don't want to speak for Senator
13           Schneiderman, but just should I yield the
14           floor to you?
15                  SENATOR LANZA:  Can I say one
16           thing it.
17                  SENATOR HASSELL-THOMPSON:  Don't
18           yield to him yet.
19                  SENATOR LANZA:  I just want to
20           caution the committee once again from my
21           point of view at least the purpose of
22           this memorandum is just to layout what
23           the possibility is, what the power of
24           the Senate is vis-a-vis sanctions and
25           clearly they range all the way to the
0103
 1           most stream being expulsion, without
 2           saying that that's where we are going to
 3           go, and that I think is a perfect segue
 4           to what Senator Schneiderman is about to
 5           say, now that I know him so well I know
 6           what he's going to say, but we are on
 7           point 6 which is the next question for
 8           us really, the contours of what kind of
 9           report we want to issue, how far we want
10           to go.
11                  SENATOR HASSELL-THOMPSON:  I
12           don't think you are ready for a report.
13                  SENATOR LANZA:  I agree, but we
14           have to talk about at least the, I
15           think, the shape it will take and where
16           we think --
17                  SENATOR SCHNEIDERMAN:  What would
18           go into a report?  What the parts of the
19           report might be, because there is some
20           stuff they can start working on now even
21           if we don't know all of it yet.
22                  SENATOR HASSELL-THOMPSON:  I
23           would like to -- I would not feel
24           comfortable if we did not have a set of
25           standards that whether we develop them
0104
 1           as the modern standards or whether we
 2           adopt something that exists.
 3                  My comfort level says that if I am
 4           going to be criticized for whichever way
 5           we respond, I want it to have a set of
 6           standards that I can say that we agreed
 7           upon and adopted to come to that
 8           conclusion.
 9                  So I agree with Mr. Lewis, I just
10           don't -- I'm not comfortable not having a
11           set of standards by which I know that I
12           reached the point of my decision.
13                  MR. ALONSO:  I can tell you,
14           Senator, that a lot of these standards
15           that I have laid out in this memo are
16           really things that came out of reports.
17                  It wasn't like the right committee
18           decided their standard would be a pattern
19           of conduct unfitting and unbecoming a
20           committee member, it was in discussing
21           what Representative Wright had done and
22           deciding what to recommend to their full
23           body they said what he did was a pattern
24           of conduct unfitting and unbecoming a
25           member.
0105
 1                  So one way to handle it, I think
 2           it's consistent with what you and
 3           Mr. Lewis are saying, is to find the facts
 4           and make the inferences you believe are
 5           reasonable, and then decide what you want
 6           to do using your conscience and we write
 7           it in a way that tells the full Senate
 8           what your reasoning was.
 9                  SENATOR HASSELL-THOMPSON:  Right.
10                  MR. ALONSO:  It's not like
11           writing a statute and saying if you do
12           A, B and C you are expelled.
13                  It's more of a you've done A, B and
14           C, here is what we believe our
15           recommendation is because of it's not
16           appropriate for a Senator, it's not
17           fitting, it's unbecoming, whatever it is
18           you want to call it.
19                  And that's going to be up to you,
20           but I think that that's my sense of what a
21           good report might look like.
22                  MR. LEWIS:  You see, I'm thinking
23           it may be all of them, just so we are
24           clear, because I rarely agree, I want to
25           see it may be all of these are the
0106
 1           appropriate standards, but you can come
 2           to it using different ideas which
 3           incorporate the language of the
 4           standards.
 5                  They are not really different, they
 6           are just things that have been said at
 7           individual times, individual inquiries.
 8                  So we could decide, for example,
 9           that it's conduct unbecoming or we can
10           decide, for example, that it's -- that it
11           is mistreatment of less powerful, they
12           would both exist in the same universe, if
13           that's what you decide you wanted to put
14           forth.
15                  SENATOR SCHNEIDERMAN:  Let me
16           make one point about the committee's
17           functions as distinct from the Senate's
18           function under Legislative Law Section
19           3.
20                  The Senate votes to sanction
21           whether to censure or to expel, that's a
22           vote of each of us as a Senator using
23           whatever standards we use to vote.
24                  We do not have the power as a
25           committee, that would be sort of a
0107
 1           legislative decision to say okay, this
 2           should be the standard for expulsion,
 3           that's not within our power.
 4                  Our power is to issue -- to inquire
 5           into the facts and issue a report and
 6           recommendation to the Senate.
 7                  Now, in that report and
 8           recommendation the language, as the
 9           language in these other things that you
10           have picked out as standards, improper
11           conduct which may reflect upon the Senate,
12           anything repugnant, that comes out of the
13           same kind of discussion we are going to
14           have, we think that the following is
15           appropriate because we find that this
16           conduct was however we choose to describe
17           it, pick the language we choose as a
18           committee.
19                  But we are not empowered to say we
20           are setting the standard for this for
21           expulsion, because that's not within our
22           power, that would be a statutory change.
23                  So we should --
24                  SENATOR HASSELL-THOMPSON:  I
25           don't think I'm suggesting that, I'm
0108
 1           saying that however we -- whether we do
 2           it by discussion and the language of
 3           that discussion becomes how we reach it,
 4           it may be standard is not the correct
 5           terminology, maybe criteria is a better
 6           terminology, but there has to be a
 7           criteria that we use in order to reach
 8           whatever recommendation we are going to
 9           make, and that's all I'm suggesting.
10                  MR. LEWIS:  You want something
11           articulated.
12                  SENATOR HASSELL-THOMPSON:  Very
13           clearly articulated.
14                  SENATOR STEWART-COUSINS:  We have
15           to, obviously, articulate whatever it is
16           that we have included, but I guess
17           where -- at least where I and when you
18           talk about contours, are you talking
19           about what are the elements of the
20           actual report that we are going to give
21           so it would be an opening statement,
22           a --
23                  SENATOR SCHNEIDERMAN:  Yeah, like
24           us figuring out what the outline would
25           look like so there is some stuff they
0109
 1           can start to draft now, there is some
 2           stuff, obviously, they can't.
 3                  SENATOR STEWART-COUSINS:  Okay,
 4           so the meat of this thing has yet to be
 5           concluded, but I guess when you are
 6           talking about doing contours you are
 7           talking about what are the different
 8           sections that we will be filling in with
 9           the meat, so you have an idea of what
10           this contour would look like that you
11           want to share?
12                  Because we are not at the standards
13           part of what we are putting in, but I do
14           want a general idea of what you think the
15           contours should look like.
16                  SENATOR SCHNEIDERMAN:  Right, we
17           are not at the decision making point
18           about conclusion, we are just talking
19           about what would have to go into the
20           report to get everyone's input about
21           what we feel comfortable.
22                  This is -- again, our job is to
23           inquire and issue a report and
24           recommendation under the resolution that
25           created this committee.
0110
 1                  And our suggestion, and Senator
 2           Lanza and our counsel talked about this,
 3           but I wanted to run it by you all to get
 4           your input on this, that we should start
 5           with an overview of the investigation
 6           explaining the resolution and what we were
 7           empowered to do, what the scope of it was,
 8           what steps were taken, you know, what the
 9           counsels did, so the procedural history of
10           the case, talking about this is what
11           happened to get us up to where we are now,
12           the -- just really setting the history in
13           chronological order of what happened, what
14           happened to Senator Monserrate, then what
15           happened with the setting up of the
16           Committee and our convening of the
17           hearings, just to set the record straight
18           so we have that all framed up.
19                  What the evidence was, and this
20           would be the second section after we get
21           just sort of layout the background of how
22           we got here and what we are supposed to be
23           doing, the evidence that we reviewed and
24           that requires us to discuss what we want
25           to put in.
0111
 1                  SENATOR STAVISKY:  Eric, along
 2           those lines one of the problems, as I
 3           see it, is that we cannot divulge any of
 4           the Grand Jury information when we
 5           review the evidence.
 6                  MR. ALONSO:  I think it would be
 7           fair game, I talked about this with
 8           Mr. Lewis, I think it would be fair game
 9           to put -- it would be fair game to put
10           it into the report to the extent we deem
11           it relevant.
12                  In other words, not attach it as an
13           exhibit so that it's -- so that we make it
14           a public record, to the extent we believe
15           there are segments of it relevant, I think
16           it's fair game to put it in the report.
17                  SENATOR STAVISKY:  Which leads me
18           to the second part of that question.  I
19           am just astounded at the discrepancies
20           that we have seen here.
21                  SENATOR HASSELL-THOMPSON:  I am,
22           too, I just --
23                  SENATOR STAVISKY:  I am just
24           astounded at the discrepancies and if
25           you could somehow summarize some of
0112
 1           those discrepancies for us, it might be
 2           helpful.
 3                  For example, the discrepancy
 4           about -- there are so many, but
 5           primarily --
 6                  MR. LEWIS:  Let's do it line by
 7           line through the trial testimony,
 8           literally line by line.
 9                  SENATOR STAVISKY:  But there has
10           to be an outline of some of the
11           discrepancies that we have found, or
12           that are there.
13                  MR. ALONSO:  That would be part
14           of the factual narrative in the proposed
15           report.
16                  SENATOR STAVISKY:  I'm just
17           astounded at that, at her Grand Jury
18           testimony where she said she went
19           willingly and yet you saw the tape.
20                  There are so many instances, I
21           jotted down a number of them.
22                  SENATOR HASSELL-THOMPSON:  I
23           think what Mr. Lewis described earlier
24           when he was talking about what her --
25                  SENATOR STAVISKY:  Good point.
0113
 1                  SENATOR HASSELL-THOMPSON:  What
 2           her -- what it appeared that she was
 3           doing was actually shaping exactly the
 4           way everything was going to go.
 5                  SENATOR STAVISKY:  That's right.
 6                  SENATOR HASSELL-THOMPSON:  And
 7           she seemed to be -- I have worked with
 8           DV victims in the past, and she seems
 9           really bent on shaping and determining
10           the outcome of this.
11                  She worked hard at it, she
12           actually --
13                  SENATOR STAVISKY:  You can see
14           that.
15                  SENATOR HASSELL-THOMPSON:  She
16           actually lies.
17                  She says she doesn't remember when
18           asked, but she outright lies and she's
19           distorted the testimony so much I just --
20                  SENATOR STAVISKY:  I found that
21           to be astounding.
22                  SENATOR HASSELL-THOMPSON:  To be
23           very truthful, outside of the fact that
24           this is a DV case, I am surprised they
25           didn't throw it out of court.
0114
 1                  I really am surprised because there
 2           is nothing consistent in any of this that
 3           helps you to understand the thinking,
 4           because we have to do a lot of supposition
 5           about what everybody is thinking, what
 6           their attempts are, because there is no
 7           consistency.
 8                  He lies and she swears to it.
 9                  MR. LEWIS:  Well, the interesting
10           thing is the videotape doesn't lie.
11                  SENATOR HASSELL-THOMPSON:
12                  Exactly.
13                  MR. LEWIS:  So the videotape --
14                  SENATOR HASSELL-THOMPSON:  That's
15           what makes her the liar.
16                  SENATOR STAVISKY:  That's what
17           verifies the lies.
18                  MR. LEWIS:  The videotape becomes
19           the anchor in the case, everything else
20           sort of hangs on as best it can while
21           that goes forward.
22                  It's why they couldn't come to --
23           why the judge, properly, under reasonable
24           doubt standard, acquitted on the
25           intentional assault, because there
0115
 1           literally was thrown out of court because
 2           there wasn't anything.
 3                  Having said that, we are looking at
 4           underlying events and facts in matching
 5           the video against the statements.
 6                  What we have been talking about, as
 7           counsel in writing a report for you, is to
 8           set out all of this, and you decide what
 9           you want to do, not just with it, but
10           frankly what the Senate will do about it.
11                  SENATOR SCHNEIDERMAN:  Right.
12                  SENATOR HASSELL-THOMPSON:  But
13           the difficulty that we are going to
14           experience is we have had the benefit of
15           the tapes and all the evidence, we make
16           whatever recommendation, our colleagues
17           are not going to have the benefit of any
18           of this to be able to try to figure out
19           how we got to where we are.
20                  And I am not trying to second guess
21           any of my colleagues in terms of where
22           their heads are, but I came into this with
23           a couple of things pretty set.
24                  There ain't nothing set, I mean I
25           am looking at the video, and the woman is
0116
 1           saying oh, well he was calm.
 2                  Well, it was very clear neither one
 3           of them was calm.
 4                  SENATOR STEWART-COUSINS:  She was
 5           sad.
 6                  SENATOR HASSELL-THOMPSON:  No,
 7           no, first can you --
 8                  SENATOR STEWART-COUSINS:  Calm,
 9           then said --
10                  SENATOR HASSELL-THOMPSON:  She
11           was sad later when she was questioned,
12           but she said she didn't care if he threw
13           it away because it had expired anyway,
14           and he was giving her a new one.
15                  And she -- she plots this as though
16           this is -- we are having a normal
17           exchange.
18                  SENATOR STEWART-COUSINS:  Right.
19                  SENATOR HASSELL-THOMPSON:  We are
20           discussing our future.
21                  Well, what does the future mean?
22           Well, Christmas is coming, so we are going
23           to talk about the things we are going to
24           be doing.
25                  I'm like wait a minute, in that
0117
 1           hallway you look like you were about to
 2           tear him a new butt because he threw that
 3           card in the incinerator, and yet, and yet
 4           you want us to believe that none of this,
 5           that none of this happened.
 6                  SENATOR STEWART-COUSINS:  I guess
 7           we have asked Ms. Giraldo to come, I
 8           know that we began saying that the
 9           Senator was not coming, Senator
10           Monserrate was not coming, did we invite
11           Ms. Giraldo?
12                  SENATOR SCHNEIDERMAN:  That's a
13           very good question.
14                  We originally when we invited
15           Senator Monserrate to present witnesses we
16           thought that he should have the first
17           opportunity to present her, because she
18           clearly was a witness aligned with him.
19                  If he is not coming in or
20           presenting any witnesses at all, then the
21           question is does the committee, should we
22           invite her to talk to us or seek anything,
23           but at least we have made the offer and it
24           can't be suggested that we didn't solicit.
25                  SENATOR HASSELL-THOMPSON:  We can
0118
 1           issue an invite, but we should not
 2           expect, if she's not coming, she's not
 3           coming.
 4                  SENATOR STEWART-COUSINS:  You
 5           know, but we are sitting around here
 6           confused why, because of what we have,
 7           which is basically emanating from her,
 8           so our confusion is certainly
 9           surrounding her, and I would want to at
10           least invite her, give her an
11           opportunity to help clarify for us what
12           we are so confused about, and then of
13           course if she is not able to do that or
14           unwilling to do that, at least that's
15           part of the --
16                  SENATOR HASSELL-THOMPSON:  Record.
17                  SENATOR STEWART-COUSINS:  Of the
18           record.
19                  SENATOR SCHNEIDERMAN:  Does
20           anyone disagree that that we should not
21           extend an invitation?
22                  SENATOR STEWART-COUSINS:  You
23           disagree with everyone, are you all
24           right?
25                  MR. LEWIS:  I'm just a lawyer.
0119
 1                  SENATOR HASSELL-THOMPSON:  Lewis
 2           agrees with me.  Trust me, Lewis agrees
 3           with me.
 4                  SENATOR LANZA:  I think this
 5           discussion really points to the dilemma
 6           that we face in the committee that there
 7           is evidence and then there is a certain
 8           lack of evidence.
 9                  But I think that the report can
10           very easily reflect that, I mean we can
11           talk about what we have decided, perhaps,
12           the facts that we have determined or
13           agreed are facts and we can talk about the
14           inconsistencies as well as part of that
15           report.
16                  We can point those out and so
17           it's -- I think you raised the right
18           point, but we can certainly put that into
19           the report and should put that into the
20           report.
21                  MR. LEWIS:  I think we should
22           invite her.  I think you should also as
23           committee members go back and read the
24           entirety of her presentation at the
25           sentencing, because you will get a
0120
 1           flavor of what you will receive, and
 2           frankly speaking only for myself now,
 3           having watched her at the sentencing, if
 4           I weren't confused before, I am
 5           absolutely approbated now because it had
 6           all new facts and all new things and
 7           were contrary to her own statements and
 8           created internal inconsistencies.
 9                  So while I think you certainly
10           should invite her, the expectation that
11           she's going to clarify and clear it up is
12           something that I thought she would do at
13           sentencing, to my mind it didn't happen, I
14           just wanted to venture that for the
15           record.
16                  SENATOR SCHNEIDERMAN:  Let me
17           also, following up on what Mr. Lewis
18           said, our job is not to resolve all
19           these factual issues, our job is to make
20           an inquiry.
21                  We say here is what we found, you
22           know, inconsistencies, you can say there
23           were inconsistencies in your statement, we
24           can make comments on what we think of her
25           credibility, only as it relates to what we
0121
 1           have to determine.
 2                  Now, the issue really before us,
 3           since we have to report and recommend,
 4           related to the facts of the misdemeanor
 5           conviction, is what we think was going on
 6           there, and that really sort of frames our
 7           inquiry.
 8                  There are two versions of what was
 9           going on there.
10                  Senator Monserrate and his lawyers
11           contend he was just trying to help her get
12           to the hospital and that's it, she was
13           upset and he was helping her get to the
14           hospital.
15                  The prosecution contends that he
16           was restraining her, that they were
17           fighting, that she was in fear of him and
18           that he was worrying about himself more
19           than her, so there are just two different
20           versions of the story and we can decide
21           which one we think is true, or we can
22           decide that we can't make a conclusion
23           about that.
24                  But that's really sort of since our
25           focus by our mandate is limited to that
0122
 1           particular issue, we are not going to have
 2           to decide, we don't have to resolve any of
 3           the conflicting four versions of testimony
 4           on this, we have to just draw our
 5           conclusions from the conflicts.
 6                  SENATOR STEWART-COUSINS:  I just
 7           want to be --
 8                  MR. ALONSO:  It does affect her
 9           credibility.
10                  SENATOR SCHNEIDERMAN:  It does
11           affect her credibility, but once we
12           decide she's incredible, we don't have
13           to explain 85 different reasons why.
14                  SENATOR HASSELL-THOMPSON:  No.
15                  SENATOR STEWART-COUSINS:  No, I
16           know, but if we decide she's incredible,
17           like I said, if it were me, if we invite
18           him then we need to invite her.
19                  We all assume around this table I
20           think that she won't come, but, you know,
21           I mean she might.
22                  SENATOR SCHNEIDERMAN:  Or she
23           might choose to -- you can give her
24           another option, if she's afraid of a
25           circus atmosphere, maybe she and her
0123
 1           counsel can meet with our counsel.
 2                  SENATOR STEWART-COUSINS:  Sure.
 3                  SENATOR SCHNEIDERMAN:  Make a
 4           general offer to give her the
 5           opportunity to have input.
 6                  SENATOR STEWART-COUSINS:  Yes.
 7                  SENATOR ALESI:  If I can, would
 8           we just have her make general statements
 9           based on everything that's here, or
10           would we prepare a list of questions
11           that we need to have answered if she
12           were to come, if she were to willingly
13           either come before us or come with
14           counsel to counsel?
15                  SENATOR HASSELL-THOMPSON:
16                  Counsel to counsel won't satisfy
17           me, I'm sorry.
18                  MR. ALONSO:  No, no, I think what
19           Senator Schneiderman is saying, if I
20           may, is not counsel to counsel, but
21           allow counsel a chance to interview her
22           with her lawyer present and even Senator
23           Monserrate's lawyers present.
24                  SENATOR HASSELL-THOMPSON:  I know
25           exactly what he meant and that's not
0124
 1           satisfactory to me.
 2                  SENATOR LANZA:  I agree, it
 3           wouldn't be satisfactory to me either,
 4           except I think all we are saying is
 5           when --
 6                  SENATOR HASSELL-THOMPSON:  If
 7           that's what she'll submit to, I'm not
 8           suggesting --
 9                  SENATOR LANZA:  That's the point.
10                  SENATOR HASSELL-THOMPSON:  If
11           that's what she'll submit to, but that
12           won't help us, I get -- that's all I
13           meant.
14                  SENATOR LANZA:  The point is when
15           the process is concluded we want it to
16           be known that we offered her every
17           opportunity.
18                  SENATOR SCHNEIDERMAN:  That's the
19           point.
20                  SENATOR ALESI:  I would look at
21           it from another angle, just for
22           consideration, and that is if we extend
23           the invitation to her, I don't want it
24           to be done in such a way that I don't
25           have enough credibility without her
0125
 1           speaking to us to make a recommendation
 2           to the legislature, because in extending
 3           that invitation to her, we are asking
 4           for some clarification on issues, and it
 5           would seem to me, and it would be
 6           possible that we just might be saying
 7           that we don't have enough clarification
 8           to make that determination without her
 9           speaking to us, when I believe with
10           what's been prepared here for us, based
11           on the Grand Jury testimony and with
12           what we have seen in her statement that
13           was notarized, that given the framework
14           of what we have to work in, which is
15           extremely broad, that we do have enough
16           information, and I just don't want it to
17           be construed that because we invited her
18           that we don't have enough to make a
19           valid, solid recommendation.
20                  SENATOR SCHNEIDERMAN:  I think
21           that's a fair point.
22                  I think that I guess the point that
23           counsel is making is really more that we
24           don't -- I agree with you, I think we can
25           decide what we need to decide for our
0126
 1           purposes, which are really quite narrow, I
 2           mean the question is how much are we going
 3           to credit her version of the events.
 4                  I think everyone has a pretty clear
 5           sense of that.
 6                  I just think that counsel's point
 7           is we do not want to be -- we want to give
 8           every possible opportunity for the other
 9           side of the story to be presented.
10                  SENATOR ALESI:  And again, if I
11           am sitting in Senator Monserrate's
12           position and she gives a third
13           accounting of this, then I could easily
14           say it was really railroaded because she
15           is so incredible, how could they make a
16           decision based on her Grand Jury
17           testimony, her sworn statement and now
18           what she said before, he could say her
19           testimony is injurious to me in this
20           situation.
21                  MR. ALONSO:  It's not
22           unreasonable for you to believe that he
23           might have some moral situation over her
24           to see, if she's going to come or not
25           come, maybe he might be able to advise
0127
 1           on whether it comes, it's not an
 2           unreasonable inference to believe that
 3           if you're saying he would be upset that
 4           he doesn't have -- that you, Senator
 5           Alesi, haven't heard her version, well
 6           he may have -- he can make it happen, I
 7           would guess.
 8                  MR. LEWIS:  Although he's got a
 9           full order of protection against him
10           contacting her, so let's --
11                  MR. ALONSO:  He personally,
12           perhaps, but not Joe Tacopina.
13                  MR. LEWIS:  Let's be careful in
14           what we ask for and the way we do it.
15                  One of the things to think about is
16           this, we have the authority as the
17           committee to ask anybody to appear in
18           front of us for any reason whatsoever.
19                  We could have enough right now, we
20           could decide any number of things.
21                  Giving the witness or an individual
22           to opportunity to appear to speak is not a
23           concession that we don't have enough.
24                  If we are making a credibility
25           determination about her, then we really
0128
 1           need to see her, it's a little unfair in
 2           some ways for you folks because really
 3           only Mr. Alonso and I have seen her really
 4           speak in open court under the judge's
 5           questioning.
 6                  We didn't --
 7                  MR. ALONSO:  With her back to us.
 8                  MR. LEWIS:  With her back to us.
 9                  SENATOR LANZA:  I agree with
10           Senator Alesi, but I think it cuts both
11           ways.
12                  I think at the end of the day to
13           maintain the integrity of this process,
14           after all she is the one and only and
15           really most important witness, and for us
16           not to even ask her, I mean I understand
17           that it can lead us down this road
18           creating more difficulty for us, but at
19           the end of the day, I think on balance how
20           do you not ask, even invite the most
21           important witness to come.
22                  Because she can always say hey, if
23           they invited me this is what I would have
24           said.
25                  SENATOR STEWART-COUSINS:  That's
0129
 1           exactly right.  The only reason we are
 2           sitting here is because of what happened
 3           to her.
 4                  SENATOR SCHNEIDERMAN:  Then the
 5           consensus seems to be that counsel
 6           should invite her to appear, and just as
 7           we have invited Senator Monserrate and
 8           his attorneys in the broadest possible
 9           terms to submit anything they want, we
10           will invite her to appear and listen to
11           what she has to say.
12                  MR. LEWIS:  We should set a time
13           for at the next meeting for her to
14           appear that doesn't conflict with the
15           time he has to appear so they can't use
16           that as a reason not to both appear.
17                  SENATOR SCHNEIDERMAN:  I think if
18           you can, without -- I mean it sounds as
19           though your communication is at least
20           quite cordial on the scheduling matters
21           with his counsel, the sooner that they
22           can clarify for us whether they intend
23           to appear or submit anything, the better
24           and we can move along to her, because
25           the initial thought was that they may
0130
 1           want to produce her as a part of their
 2           case, but obviously --
 3                  MR. ALONSO:  It's cordial on all
 4           matters, there is just no cooperation.
 5                  MR. LEWIS:  The other thing, she
 6           has her own lawyer, Marshal, who
 7           appeared for her at the sentencing, so
 8           we should direct it probably to Marshal.
 9                  SENATOR SCHNEIDERMAN:  Obviously
10           counsel will communicate with counsel.
11                  SENATOR ALESI:  I have a request,
12           then I know we requested some things
13           earlier.
14                  I'm sorry, Senator, did I cut you
15           short?
16                  SENATOR SCHNEIDERMAN:  No.
17                  SENATOR ALESI:  I would be
18           curious to know, I think that the sworn
19           statement that she made before the
20           senators staff person was -- it seems to
21           me that it was handwritten by the staff
22           person but I have no way of knowing
23           that, could we find that out?
24                  SENATOR STAVISKY:  There are
25           legal words in there that I am sure she
0131
 1           did not write, aforementioned.
 2                  SENATOR LANZA:  Since we are
 3           cutting through, the reason why I asked
 4           about the date was because it just
 5           seemed to me that I can't imagine
 6           anybody was thinking about the hospital
 7           issue, which hospital issue already on
 8           December 19th.
 9                  So it just seemed to me, look,
10           obviously it's more than reasonable to
11           infer that whenever that letter was
12           written it occurred at the height of
13           damage control mode, and that's something
14           that we are going to have to consider
15           here.
16                  The fact that clearly she has bent
17           over backwards to protect Senator
18           Monserrate's interest I think is pretty
19           well-established.
20                  SENATOR ALESI:  I speak out, from
21           my point of view is pretty
22           well-established in all the evidence and
23           it's for each member here and for the
24           body to determine whether or not that's
25           any more evidence of guilt or not guilt,
0132
 1           but clearly that's pretty much
 2           established.
 3                  SENATOR YOUNG:  One of the
 4           questions I had was whether that staff
 5           person who wrote the Affidavit is the
 6           same staff person who allegedly during
 7           the trial was assigned to be her
 8           bodyguard?
 9                  MR. ALONSO:  No, no.
10                  MR. LEWIS:  The answer to that is
11           no.
12                  MR. ALONSO:  Senator Alesi, if
13           it's okay with you, I hesitate to start
14           interviewing Senate staff, what I would
15           like to do is ask the District Attorney
16           if they know the answer, and if they do,
17           if that's okay, we will pass that on.
18                  SENATOR ALESI:  Whatever simple
19           means can be taken to find out, I don't
20           think it's life and death, but it would
21           be beneficial for the committee here to
22           know because I think it's fair that we
23           can suppose anything, we are not really
24           bound by any standards, that we could
25           suppose if it were written by somebody
0133
 1           other than her that it might be helpful
 2           to us.
 3                  SENATOR SCHNEIDERMAN:  I just
 4           would like to urge everyone to remember
 5           that our -- the interest of the Senate
 6           here is not in retrying the case, all we
 7           have to do is make a report and a
 8           recommendation given the circumstances
 9           in the case what we think.
10                  And her credibility, while it's
11           interesting and a complicated issue,
12           really has a fairly narrow bearing on our
13           work.
14                  I mean she has made a bunch of
15           statements defending, essentially saying
16           that it was an accident, he was looking to
17           help her get to the hospital.
18                  If we find that we don't believe --
19           if we find her not to be a credible
20           witness, it has bearing on those
21           statements, it really doesn't go much
22           beyond that.
23                  So that's -- I think that's a
24           little bit helpful as far as how
25           complicated we have to get in the report.
0134
 1                  Let me suggest this, if there are
 2           any other specific suggestions, I think
 3           maybe we could request that counsel do a
 4           little written outline of what we are
 5           suggesting we have just gone over for the
 6           report, and distribute it among the
 7           committee members, get any feedback you
 8           have, please report to Mr. Alonso.
 9                  Obviously the last piece I haven't
10           gotten to after the introduction, the
11           procedural history, the facts and then a
12           section on legal standards, which is
13           really because there is no finding of
14           binding legal standard from any of these
15           cases from other states, it's really a
16           recitation of the kinds of things that
17           have happened similar to what was in the
18           memo.
19                  Obviously the last part is
20           recommendation, and that's something we
21           should all be thinking about but we
22           haven't gotten to yet, given all of the
23           facts we find and all of the whatever
24           wisdom each of us can take from the cases
25           that have gone before us.
0135
 1                  But this is really up to us to make
 2           a recommendation and as Senator
 3           Hassell-Thompson was pointing out, we have
 4           to have an explanation of why we are
 5           making that recommendation, we can't just
 6           be like here is a bunch of facts we think
 7           X, it has to be we conclude that we find
 8           this conduct to be something.
 9                  So I think that's -- is that sort
10           of a consensus?
11                  SENATOR HASSELL-THOMPSON:  Yes.
12                  SENATOR STEWART-COUSINS:  Yeah.
13                  SENATOR HASSELL-THOMPSON:  We are
14           meeting again when?
15                  SENATOR SCHNEIDERMAN:  On Monday.
16                  MR. ALONSO:  Is anyone not
17           getting my e-mails?
18                  SENATOR STEWART-COUSINS:  I am
19           getting them, I just can't open them.
20                  MR. ALONSO:  That I understand,
21           but is anybody not receiving them?
22                  I want to make sure because if we
23           are going to be communicating on this
24           outline question by e-mail, I want to make
25           sure everyone is actually receiving them.
0136
 1                  SENATOR ALESI:  I have just a
 2           simple question, again as a lay person,
 3           but when it says that the -- as long as
 4           we comply with all of the rules of the
 5           legislature, et cetera, et cetera, that
 6           the body, meaning the legislature, a
 7           determination is absolute, that the
 8           power is absolute for the body to make
 9           the determination, whatever
10           determination the body makes the
11           legislature makes.
12                  MR. ALONSO:  You mean final,
13           there is nowhere to appeal it to?
14                  SENATOR ALESI:  That was my
15           question, can this go to --
16                  MR. ALONSO:  It's an interesting
17           question.
18                  There is a strong argument to be
19           made that it is a question for the
20           legislature alone and not reviewable by
21           the judicial branch of government.
22                  However, that's the same argument
23           that was made in the Adam Clayton Powell
24           case in the Supreme Court and that failed,
25           the Supreme Court actually considered the
0137
 1           failure to seat Representative Powell.
 2                  So under New York Law I'm not sure
 3           what the answer ultimately is, there is a
 4           strong argument that the court wouldn't be
 5           able to touch it.
 6                  But that would be decided by the
 7           court itself, so -- and the likely answer,
 8           it would be unlikely it would be
 9           reviewable what your actual decision is.
10                  A much more likely decision would
11           be whether you have the -- that you, the
12           Senate, have the authority to do it,
13           that's where the litigation would probably
14           join issue.
15                  MR. LEWIS:  Process first, and
16           then Constitutional authority.
17                  SENATOR SCHNEIDERMAN:  So the
18           statute conveys this very broad
19           authority and what I think you are
20           saying is that the decision itself is
21           probably not reviewable, but the statute
22           itself the court could strike down and
23           say you can't have authority that's this
24           broad and this vague.
25                  MR. ALONSO:  Once the court
0138
 1           decides that you do have the authority,
 2           I think that it would be virtually
 3           certain that it would be unreviewable
 4           how you exercise it.
 5                  SENATOR ALESI:  Thank you.
 6                  SENATOR ALESI:  What happens in
 7           the meantime?
 8                  SENATOR HASSELL-THOMPSON:  Do you
 9           get this testimony back?
10                  MR. ALONSO:  You can keep it with
11           my request that it not be copied or
12           distributed.
13                  SENATOR SCHNEIDERMAN:  Let me say
14           we have done, I think, everyone has done
15           a very good job of us being circumspect
16           about our dealings and I really
17           appreciate that, and I hope that will
18           continue, particularly with regards to
19           the material that we get from the court.
20                  We are meeting on Monday and what
21           we will do is have Chris and the staff are
22           going to try to figure out what people's
23           schedules are in the next few weeks, and
24           people have vacation plans because even
25           though we may not meet very much, we may
0139
 1           be circulating drafts to get people's
 2           input on that.
 3                  SENATOR YOUNG:  If we have a
 4           meeting after the 14th, I know that it's
 5           more convenient for everyone to be here,
 6           but however it's very inconvenient for
 7           me.
 8                  SENATOR SCHNEIDERMAN:  Is Albany
 9           better?
10                  SENATOR YOUNG:  If you want to
11           come to the casino in Salamanca you are
12           more than welcome.
13                  I am just saying if we could have
14           maybe at least one of the meetings in
15           Albany that would be helpful to me.
16                  SENATOR SCHNEIDERMAN:  I
17           appreciate that.
18                  SENATOR ALESI:  I live in
19           Rochester, it's easier to get to
20           Manhattan.
21                  SENATOR STAVISKY:  Of course, it
22           is JetBlue.
23                  SENATOR HASSELL-THOMPSON:  Monday
24           the 14th.
25                  SENATOR ALESI:  Can't take
0140
 1           JetBlue to Cathy's district.
 2                  SENATOR SCHNEIDERMAN:  Thank you
 3           all very much.
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0141
 1   
 2                 C E R T I F I C A T E
 3   
 4                  I, STEPHEN J. MOORE, a Shorthand
 5           Reporter and Notary Public of the State of
 6           New York, do hereby certify:
 7   
 8                  That the proceedings as
 9           hereinbefore set forth is a true and
10           accurate record of said proceedings.
11   
12                  I further certify that I am not
13           related to any of the parties to this
14           action by blood or marriage; and that I am
15           in no way interested in the outcome of
16           this matter.
17   
18                        _______________________
19                        Stephen J. Moore, RPR,
20                        CRR.
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