1 1 NEW YORK STATE SENATE 2 ------------------------------------------ SELECT COMMITTEE TO INVESTIGATE THE FACTS 3 AND CIRCUMSTANCES SURROUNDING THE CONVICTION OF SENATOR MONSERRATE 4 ----------------------------------------- 5 Senate Hearing Room 250 Broadway - 19th Floor 6 New York, N.Y. 7 December 14, 2009 Monday 8 10:30 a.m. 9 PRESIDING: 10 Senator Eric Schneiderman Chair, Senate Select Committee 11 12 MEMBERS PRESENT: 13 Senator Andrew J. Lanza 14 Senator Andrea Stewart-Cousins 15 Senator Toby Ann Stavinsky 16 Senator James S. Alesi 17 Senator Ruth Hassell-Thompson 18 Senator John Flanagan 19 Senator Diane Savino 20 ALSO PRESENT: 21 Daniel Alonso, Esq. Special Counsel 22 David Lewis, Esq. 23 Counsel 24 2 1 P R O C E E D I N G S 2 SENATOR SCHNEIDERMAN: Thank you 3 ladies and gentlemen, we have everyone here 4 today. And we have -- except for Senator 5 Young, who has been in communication and we 6 will get all the information to her that we 7 deal with today, and of course we are 8 keeping transcripts of this, so the members 9 of the Committee can always review anything 10 that they need to, once we get to the final 11 stages of our work. 12 Before we go into executive session, I 13 just want to note that the -- our requests 14 to Senator Monserrate through his counsel 15 have not been successful, we have given them 16 notice of all the meetings and they have 17 indicated that they do not want to 18 participate in any way in our proceedings. 19 And we also, as per the committee's 20 suggestion, made efforts to contact Ms. 21 Giraldo, through her counsel, maybe Mr. 22 Alonso can report on that. 23 MR. ALONSO: As the committee will 24 recall, on Tuesday you folks authorized 3 1 counsel to reach out to Ms. Giraldo's 2 lawyer and I did that Wednesday, first thing 3 Wednesday morning. 4 And he informed me by message on 5 Wednesday that he had reached out to her and 6 was trying to communicate our request. 7 By Thursday morning he had not heard 8 back from her, so I sent a letter to Mr. 9 Marshal, who is counsel, confirming our 10 request, giving the date of this meeting 11 today and also offering that if she didn't 12 wish to appear at the meeting, that we could 13 make arrangements to have her appear with 14 counsel and we could interview her in some 15 mutually agreeable way. 16 That letter is part of your materials. 17 Since then I have spoken to Mr. Marshal 18 two more times, on Friday and this morning, 19 and he says that she is not returning his 20 calls. 21 So he does not know where she is, he 22 thinks that she may be out of the country, 23 but he has no information on that, in that 24 respect. 4 1 I have asked him whether his -- there 2 is anyone else who he can reach out to see 3 if they are in contact with Ms. Giraldo, 4 and he said that there might be someone. He 5 tried to call that person then called me 6 back and said he can't get in touch with 7 anybody. 8 And so I don't know that if her own 9 lawyer can't get in touch with her, I'm not 10 sure that she is going to be able to avail 11 herself of the opportunity that we are 12 giving her. 13 But I will keep trying, but I don't -- 14 I'm not optimistic given that her lawyer has 15 been leaving voicemails and has not gotten 16 any response. 17 But in this day and age even if you are 18 in a foreign country you can check your 19 messages. 20 MR. LEWIS: We should note Mr. 21 Marshal indicated at the sentencing he was 22 continuing to represent her with regard to 23 the issuing the order of protection, so the 24 relationship as far as we understood is 5 1 still continuing. 2 MR. ALONSO: And he has made every 3 indication to me that that's the case, that 4 he still represents her on this matter, and 5 the rest is as I said. 6 SENATOR SCHNEIDERMAN: Okay, and so 7 we are going to go into executive session 8 now as we have, to go over the evidence that 9 we can consider, and as we have in the past 10 three meetings I would move that we go into 11 executive session as authorized by Public 12 Officers Law Section 105, as we will be 13 discussing matters relating to the potential 14 discipline of Senator Monserrate. 15 SENATOR LANZA: I second that. 16 SENATOR SCHNEIDERMAN: All in favor 17 say aye. 18 SENATOR STEWART-COUSINS: Aye. 19 SENATOR FLANAGAN: Aye. 20 SENATOR STAVINSKY: Aye. 21 SENATOR HASSELL-THOMPSON: Aye. 22 SENATOR. ALESI: Aye. 23 SENATOR LANZA: Aye. 24 SENATOR SAVINO: Aye. 6 1 SENATOR SCHNEIDERMAN: Nays? Then we 2 will now go into executive session along 3 with the staff members that have been 4 designated by members of the committee. 5 We would like to request that anyone 6 else present who is not on that list leave 7 at this time. 8 So, Senator Lanza and Senator Flanagan 9 are outside they will be back in a moment, 10 but Mr. Alonso will walk us through this, 11 but we want to spend as much time as we can 12 after going through the outstanding issues 13 talking about the final item in the binder, 14 which is the draft outline for the final 15 report, fleshing out what we are in 16 agreement on and where we have issues to 17 resolve, and then the thinking was we would 18 break at some point, caucus and discuss any 19 other issues that we wanted to discuss in 20 that form, and then come back together and 21 I'm hoping by the end of today we can reach 22 a pretty general agreement, if not specific 23 agreement on most of the format for the 24 report, and what we want to say in it, then 7 1 the counsels can be busily drafting away and 2 we will obviously have a chance, the members 3 of the Committee, to view everything and 4 provide their comments before we finalize it 5 and vote on it, vote on submitting the 6 report. 7 But we are making every effort, as per 8 our mandate, to finish this by the end of 9 the year. 10 SENATOR HASSELL-THOMPSON: When you 11 say end of the day, what time does that 12 portend? 13 SENATOR SCHNEIDERMAN: No, no, I 14 didn't mean we are staying here all day, the 15 end of the meeting. 16 SENATOR HASSELL-THOMPSON: Thank you. 17 SENATOR STAVINSKY: That was a 18 phrase. 19 SENATOR SCHNEIDERMAN: It was a 20 rhetorical flourish. With the end of this 21 meeting before the end of the day. 22 (Discussion off the record.) 23 SENATOR SCHNEIDERMAN: So, Mr. 24 Alonso, do you want to report to the 8 1 committee on what's -- well, is there 2 anything else you have to update us on as 3 far as the procedural goings on? 4 I think we are pretty much up to speed. 5 MR. ALONSO: Sure. Let me take that 6 out of order because we have that on the 7 agenda a little bit later on, but before we 8 discuss -- what I want to do is at the 9 request of a good number of you, talk a 10 little bit about sanctions that are possible 11 other than expulsion. 12 We have that memo that I have -- 13 confidential memo that we passed around last 14 week about the authority to expel under 15 various standards or reasons for 16 determination that various legislators and 17 the Supreme Court and the Congress had used 18 in the past. 19 Some members asked for very brief 20 outline on sanctions short of expulsion, so 21 I want to do that. 22 But before I do, it's worth talking 23 about the state of the evidence and where we 24 are on that. 9 1 The sort of overview on the evidence is 2 I think that you have been presented with an 3 extraordinary amount of materials for a 4 relatively simple set of facts. 5 The trial was very, very thorough, it 6 was litigated a lot between both parties, 7 there was -- it was heavily investigated by 8 the D.A.'s office, so you have received, 9 actually, a great deal of evidence and I was 10 very glad that the judge was amenable to 11 giving the committee the Grand Jury 12 testimony of Karla Giraldo because I think 13 that significantly advanced the ball as well 14 in terms of the committee's understanding. 15 And so that's all by way of saying we 16 really do have quite a bit of information 17 upon which to base recommendations and 18 findings. 19 And I just wanted to tell you the 20 couple of things we don't have, and I think 21 that we might get it, we might not, but I 22 don't believe -- my own advice to the 23 committee is that it's not necessarily 24 something that should hang up your decision 10 1 making. 2 And that's the materials that were 3 obtained by subpoena by the Grand Jury 4 things like phone records and cell site 5 information. 6 It would be great to have that, it 7 would be nice to have it, I'm hopeful that 8 we will have it, the problem is that the 9 judge invoked a procedure under the CPLR to 10 obtain that material which is to settle an 11 order on notice, and that just basically 12 means that it's a two to three week process 13 to actually get the judge to agree on an 14 order with both sides having input, so it's 15 something that I think is probably not worth 16 the delay in the committee's proceedings to 17 wait it out, although we are doing it, we 18 are going to be submitting that order on 19 notice today, and you may have noticed in 20 the letter that I wrote to Senator 21 Monserrate's lawyers, which is tab 3 of your 22 materials, the purpose of the letter was 23 just to confirm that he's not going to take 24 part, but I also said let me know if you're 11 1 willing to stipulate to an order, in other 2 words to agree on what the contours are of 3 this order so that we don't have to wait 4 this two or three week CPLR period, and not 5 surprisingly since they don't want to 6 participate, they haven't responded to me. 7 So we are going to have to do that a 8 little bit the old-fashioned way, which I'm 9 going to do, but which I don't -- I want to 10 sort of suggest that it's not something that 11 is so crucial, given the other evidence that 12 you have. 13 SENATOR STAVINSKY: May I ask a 14 question along those lanes? 15 MR. ALONSO: Of course, Senator. 16 SENATOR STAVINSKY: Does this 17 committee have the power to subpoena those 18 records? 19 MR. ALONSO: Yes, as a technical 20 matter. The problem is that they are 21 unlikely to still exist given how long phone 22 companies keep them, and also there is a 23 delay in getting materials under -- pursuant 24 to a subpoena in the first place. 12 1 So we could recreate the wheel by doing 2 that, but I think it's probably not that 3 likely to be fruitful. 4 I can try, if you would like me to, but 5 I think that we have been focusing our 6 energies on other areas, and since the D.A. 7 not only has the materials, but also has it 8 analyzed, remember if you get a set of phone 9 records you get a dozen, couple of dozen 10 phone calls in a few hour period, and then 11 you've to track down who those numbers are 12 and that might require more subpoenas and 13 more subpoenas, and so the D.A. has that in 14 summary form. 15 So that seems -- 16 SENATOR STAVINSKY: You have not 17 subpoenaed that the committee, could not 18 subpoena that material from the D.A.? 19 MR. LEWIS: Technically we could do 20 that, but what you would end up doing is 21 testing the parameters of the subpoena power 22 in the Senate, which we have never actually 23 had to do. 24 And it would create a tremendous crisis 13 1 between the branches when the legislature 2 seeks confidential District Attorney 3 prosecutorial material from the executive 4 branch, and having litigated a couple, I 5 can't tell you that necessarily I'm 6 confident that in that situation we would 7 win. 8 MR. ALONSO: We also would be right 9 back where we are now, in other words we 10 would be in front of a court, either on our 11 motion to compel compliance with our 12 subpoena, or on their motion to quash, and 13 we would be in the same place, except maybe 14 not in Queens, we may be in Manhattan, but 15 so I have thought of those issues, and taken 16 into account the practicalities of it, I 17 think this is the best way to proceed. 18 MR. LEWIS: The other danger is that 19 sometimes in my experience the phone records 20 that you get are not the same phone records 21 someone else got, because of the nature of 22 mass storage of that type of data, so 23 sometimes you don't even get the same phone 24 calls on the same records, so we would not 14 1 be assured we would be seeing even what the 2 D.A. saw. 3 MR. ALONSO: I will note we would 4 have had these two weeks ago if Senator 5 Monserrate's lawyers had agreed to it. 6 So it's not -- this is a little bit of 7 a frustrating exercise, but we need to 8 remember it's not a criminal proceeding. 9 One would expect there to be a level of 10 cooperation when a committee is doing an 11 investigation of this nature, particularly 12 when that was announced at the beginning of 13 the Committee's existence. 14 SENATOR SCHNEIDERMAN: Yes, that's 15 something that we will discuss how we deal 16 with it in the report, but clearly it's 17 something that we have to note that Senator 18 Monserrate publicly stated that they would 19 be cooperating with the committee, and has 20 essentially stonewalled us all the way 21 through. 22 SENATOR STAVINSKY: That's why I 23 asked my question. That's exactly the 24 reason that I asked my question. 15 1 SENATOR ALESI: Would we be able to 2 ask directly, rather than with David's 3 concerns about the different branches of 4 government, would we be able to ask Senator 5 Monserrate directly without going through 6 the court? 7 MR. ALONSO: Let me clarify two 8 things, one is that we have subpoenaed the 9 D.A., but not in the way David was referring 10 to. 11 In other words the D.A. before they 12 were willing to go to the court for a court 13 order, they asked for a subpoena to be able 14 to tell the court we have a subpoena. 15 So it's not a hostile subpoena, so to 16 speak, it's a subpoena they asked for. 17 So we have issued a subpoena to the 18 D.A., and based on that the D.A. asked for 19 an order, the court said no, the Senate 20 committee should ask for an order, so we 21 did, and we are where we are. 22 In terms of asking Senator Monserrate 23 for the materials, there were some materials 24 he had, i.e., the testimony of Karla Giraldo 16 1 which he refused to give us, and those that 2 he doesn't have, he doesn't have the phone 3 records, his lawyers were never given that. 4 As we understand as part of the 5 pretrial discovery, that was something that 6 the D.A. had, decided not to use as evidence 7 in chief, and still has. 8 SENATOR SAVINO: So we only have 9 received what was presented at trial? 10 MR. LEWIS: Yes. 11 MR. ALONSO: That plus the Grand Jury 12 material, and there was an Affidavit that is 13 in the materials from last time that were 14 presented. 15 SENATOR SCHNEIDERMAN: And we have a 16 request in for some more materials, but I 17 think the view is that we have enough 18 information now to -- 19 MR. LEWIS: We also asked for the 20 defense exhibits from the defense, we asked 21 for basically whatever they put in. 22 We got nothing from them. Whatever we 23 got from the defense side we actually got 24 D.A.'s copies of from them. 17 1 So not only have they not -- not only 2 have they stonewalled us on our requests 3 that could go beyond the trial, they 4 stonewalled us on requests for stuff that 5 were part of the trial. 6 MR. ALONSO: It's a significant 7 point. And we could have pushed this as 8 well. 9 Look, we could have done a lot of 10 things, we could have issued a subpoena to 11 the defense lawyers, but you don't want to 12 do that, obviously there are a lot of good 13 systemic reasons why you don't want to do 14 that. 15 But the fact that they wouldn't give us 16 even materials that are supposedly part of 17 the public record, is a significant fact. 18 You might think you can go to the court 19 file and get things in a public record in 20 Queens, they have a practice where each 21 lawyer who introduces evidence keeps the 22 exhibits as a custodian of the court. 23 SENATOR SAVINO: Hold on. Tania has 24 to drop off something. 18 1 MR. ALONSO: So even something that 2 they have as a custodian of the court they 3 are not willing to provide us. 4 Now, the judge ought to order them on 5 our request, but we were asking the judge 6 for something very specific, I didn't want 7 to push my luck on that. 8 SENATOR SAVINO: So in spite of their 9 original assertion that they would cooperate 10 with the committee to the fullest extent, 11 they have, in fact, not cooperated at all? 12 MR. ALONSO: Let me just make sure 13 that the short answer is sort of. Let me 14 make sure that everyone is on the same page. 15 SENATOR SAVINO: Hold on. 16 MR. ALONSO: I just want to make sure 17 everyone is on the same page on what they 18 said and what they didn't. 19 Right after the announcement of the 20 intention to form the committee, Senator 21 Monserrate's spokesperson said that Senator 22 Monserrate's lawyers expect or Senator 23 Monserrate expects his lawyers to cooperate 24 fully. 19 1 So when I wrote a letter early on, 2 which you have, saying thank you for saying 3 you would cooperate fully, could you please 4 do A, B and C for us, they wrote back and 5 said we didn't say we would cooperate fully, 6 we said we expect to and since this is an 7 illegitimate process, we are not going to do 8 that. 9 That's essentially paraphrasing what 10 they said to us. 11 The actual words are in the 12 correspondence, but it was -- and I wrote 13 back saying guys, I hope we are not going to 14 parse words like that, I hope we are not 15 going to split hairs of that sort. 16 Nevertheless, they have less than 17 cooperated, they have not cooperated at all, 18 let alone fully. 19 SENATOR SCHNEIDERMAN: As a practical 20 -- 21 MR. LEWIS: The judge at the 22 sentencing said you guys work it out, and 23 basically they haven't responded to us at 24 all, even on the order on notice. 20 1 So even the conversation that would 2 form the order to give an agreed upon order 3 to give the judge to release this material, 4 they haven't participated. 5 MR. ALONSO: I don't want to go too 6 far, they are perfectly professional and 7 courteous when we speak, they are not 8 telling me to buzz off, but they are. 9 SENATOR SCHNEIDERMAN: But they are 10 telling you no. 11 MR. ALONSO: But they are telling me 12 no. 13 SENATOR SAVINO: Not literally, but 14 figuratively. 15 SENATOR LANZA: And as Dan mentioned, 16 it's consistent with their approach which we 17 can all question whether or not it's the 18 right approach for them, that's their 19 decision, but they have questioned the 20 legitimacy of this panel, and therefore to 21 cooperate would undermine what has become 22 their defense, really, and it's also worth 23 noting, not to defend, but they don't have 24 any -- there is no requirement that they 21 1 cooperate either. 2 SENATOR FLANAGAN: Can I ask two 3 questions, first paying very close attention 4 to this, I know everybody is, but at some 5 point what we are discussing will be some 6 type of public record. 7 You mentioned that Senator Monserrate 8 would not have access to his own phone 9 records. Just as an average person I think 10 that's just absolutely ludicrous. 11 If I were to call up right now if I 12 want to check on what my kids are doing, who 13 they are calling, I want to look at a bill 14 from nine months ago, phone company should 15 be able to provide that for you instantly. 16 MR. ALONSO: You are quite right. Do 17 you want an answer or do you want me to 18 wait? 19 SENATOR FLANAGAN: Answer that, then 20 I have something else. 21 MR. ALONSO: You are quite right. 22 What I was referring to is that the phone 23 records as evidence in the Grand Jury 24 investigation were never turned over to the 22 1 defense. 2 You are right, Senator Monserrate ought 3 to either have his phone bill, which 4 presumably has his cell phone calls, or 5 should be able to get it. 6 I haven't asked for it because they 7 have told us we are not participating in 8 anything, so they are going to say no. 9 But if you want me to I would be happy 10 to. 11 SENATOR FLANAGAN: I just want to 12 clarify that. 13 MR. ALONSO: You are right, he ought 14 to have them, they are his. 15 Well, there are two cell phones, one is 16 hers, one is his, so he has his, I don't 17 know whether he has hers or not; I don't 18 know. 19 MR. LEWIS: One other thing, the data 20 you get when you serve a subpoena for phone 21 records is greater than what is on your 22 phone bill. There is more information. 23 MR. ALONSO: Calling information is 24 the same, but the cell site information is 23 1 not ordinarily on somebody's phone records, 2 so you would know, to the extent that it 3 informs the pathway that he took to the 4 hospital, we wouldn't have that. 5 Now, Senator Flanagan, Senator 6 Stavinsky, you weren't here last time, the 7 Power Point that we sent you contains the 8 requested analysis of various routes you 9 could take and how much time Google tells us 10 it should take. 11 SENATOR ALESI: That was the point of 12 my question, was just to see if calls were 13 made and from his personal bills rather than 14 go through the process, that's why I 15 mentioned without regard to David's 16 concerns, it would give us some help, as 17 Senator Flanagan is saying maybe not, but 18 the point is, another way of looking at it, 19 it might be to his advantage if he gave us 20 that information so we could see whether or 21 not he was conspiring along the way or if he 22 was not. 23 MR. ALONSO: I think that's worth a 24 formal request, actually. 24 1 SENATOR SCHNEIDERMAN: Yes, to the 2 extent -- we did make a request for 3 information, we were told they will provide 4 us with no information, so we could go back 5 and make a slightly different request for 6 information, but I think it does not appear 7 that they are changing their minds, and are 8 going to start providing us with things. 9 So the view of our view was the most 10 likely way to get the records was to go to 11 the D.A.'s office, and that still appears to 12 be the case, but Senator Monserrate through 13 his counsel has been -- could not be clearer 14 that he intends not to provide us with no 15 information of any kind. 16 So that's the situation we are left 17 with, although he's not talking to the 18 committee, although I do note that he has 19 been appearing on TV to talk about the case. 20 And I think that we, to the extent 21 people have not seen him, I think we have a 22 copy of some of that that we can make 23 available if anyone is interested. 24 MR. ALONSO: I was going to raise 25 1 that as the next piece of evidence, that 2 maybe the last piece of evidence that we 3 have, which is that he has not availed 4 himself of the opportunity to be heard by 5 this committee directly, and a corollary of 6 being heard is being questioned, obviously 7 you would all have questions for him. 8 What he has done is he has availed 9 himself of the public airwaves and has 10 given, to my knowledge, one interview to 11 N.Y. One and one interview to News 4 to 12 Chuck Scarborough, and I have viewed both of 13 those, I think they are fair game for the 14 committee to view, and I think we should 15 send those around, there are links on the 16 internet, so they are easy to look at. 17 I think the committee should look at 18 them, they are both statements made by him 19 which you can consider for what they are, 20 for whatever weight you want to give them. 21 And they also stand in stark contrast 22 to his silence before the committee. 23 SENATOR FLANAGAN: I have a second 24 point/question. 26 1 You mention about practice of the court 2 in Queens that each side, they become the 3 custodian of the records. 4 MR. ALONSO: Yes. 5 SENATOR FLANAGAN: Can you explain 6 that in a little bit more detail, because 7 part of my initial reaction is how does 8 Queens get to be different from Brooklyn? 9 MR. LEWIS: Can I answer that? Every 10 county in the City, and I know all the way 11 up to at least Orange County, if you have a 12 trial, especially if you have a criminal 13 trial as an example, whoever puts in the 14 exhibits, keeps the exhibits. 15 If they are needed on appeal then the 16 Appeals Court either asks for them or you 17 reproduce them, but you are the custodian of 18 the exhibit. 19 SENATOR FLANAGAN: But as a matter of 20 course, if the judge were to say I want 21 something -- 22 MR. LEWIS: The judge will look at 23 it, but he won't retain it for the file, it 24 won't be retained in the court file, it is 27 1 returned to counsel. 2 MR. ALONSO: I think Senator 3 Flanagan's point is they have a duty to give 4 it up if the judge asks for it, of course, 5 and from my point of view triage after the 6 judge has now essentially given us a pretty 7 hard time in terms of getting what we asked 8 for, but granted us important stuff, do we 9 now say can you please have them give the 10 defense exhibits? 11 I mean if they don't want to just give 12 us the exhibits that they thought were 13 relevant at the trial, then we are not going 14 to consider the exhibits they thought were 15 relevant at the trial. 16 We have some of them, the D.A. kept 17 some copies of some, so we have given them 18 to you, but we just don't have them all, and 19 I agree, they should, and frankly they must 20 turn them over, but they haven't. 21 SENATOR FLANAGAN: Thank you. 22 MR. ALONSO: So I think that the 23 committee should review the interviews of 24 Senator Monserrate. 28 1 Did you have a comment on that, Mr. 2 Lewis? 3 MR. LEWIS: I watched the interviews, 4 I think they are useful as admissions 5 against his interest in the strict 6 evidentiary sense that these are the 7 statements, he's making them, he's making 8 them, they are self-serving, but they are 9 certainly of value to us and it's clear that 10 in a nonstructured, nonconfrontational sense 11 of legal standards he's been able to say 12 whatever he wants. 13 His election to not participate in this 14 committee is a decision and apparently is 15 also not just his lawyers' but his, because 16 he went out of his way to speak about what 17 he saw were the effects of the committee on 18 the television appearance with Chuck 19 Scarborough which I want to be very clear, 20 should not be part of what we use in regard 21 to considering this, but we should consider 22 only what he says about the events that we 23 are charged with looking at and in the 24 resolution. 29 1 MR. ALONSO: The decision not to 2 appear in front of this committee is not his 3 lawyers', I don't want anyone to think oh, 4 he would only appear but for his lawyers. 5 It would be unethical for a lawyer to 6 make that decision on behalf of a client. 7 MR. LEWIS: Or prevent. 8 MR. ALONSO: The best a lawyer can do 9 is give his best advice and the decision 10 whether or not to appear before a committee 11 investigating the facts and circumstances 12 surrounding his conviction is his and his 13 alone. 14 So if that surfaces later, that is not 15 a valid argument, in my view. 16 SENATOR HASSELL-THOMPSON: I need to 17 come back to it. 18 SENATOR STAVINSKY: I actually saw 19 one of the interviews that he did, I didn't 20 see the second one on NBC yet, which as you 21 pointed out you can see it on the internet. 22 And discounting the comments he made 23 about the committee and the validity of the 24 committee and motivation of the committee, 30 1 what I think we should focus on if you 2 haven't seen it, take a look at it, is the 3 comments he made with respect to the 4 original incident and the conviction. 5 And in his comments he takes absolutely 6 no responsibility for even his conviction. 7 The actions that occurred that led to 8 his conviction he maintains in the video 9 that the original act was an accident and, 10 in fact, he was acquitted for that. 11 But it's the circumstances that led to 12 his conviction, he takes zero responsibility 13 for anything that happened during that 14 period of time, and states more than once in 15 the interview that she was -- it was her 16 behavior that led to the actual conviction, 17 it was her erratic behavior, it was her 18 drunken behavior, it was her refusing to be 19 allowed to go to the hospital. 20 So I think if you haven't seen it, you 21 should really watch it. 22 SENATOR ALESI: For those of us who 23 are media challenged is there a way for us 24 to get access to that? 31 1 MR. ALONSO: We will send a link 2 around to you today. 3 SENATOR SAVINO: It's a 23 minute 4 interview. 5 SENATOR ALESI: That's pretty -- 6 MR. ALONSO: The N.Y. One, yes, the 7 News 4 is shorter. 8 SENATOR HASSELL-THOMPSON: I wanted 9 to come back for one minute to something 10 that is still puzzling me, because we are -- 11 a lot of what we are deciding is predicated 12 on this time lapse. 13 How did you determine that the clocks 14 were off? 15 MR. ALONSO: That's established in 16 the trial record, in other words the 17 witnesses -- 18 SENATOR HASSELL-THOMPSON: Based on 19 what? 20 MR. ALONSO: Based on the witnesses 21 who authenticated those tapes. 22 There is a superintendent at the 23 building and somebody at the hospital who 24 testified about how the video systems are 32 1 kept and how these tapes were reproduced and 2 brought into court. 3 It was not a controversial issue at 4 trial, it was something that everyone agreed 5 on, so the question of the time shift 6 between the stamp on the video and the real 7 time is established. 8 Off the top of my head I don't 9 remember, I think it 13 minutes for the 10 first one and 4 minutes for the second one, 11 but it's not something that was contested at 12 trial, it's something that everyone assumed 13 to be the case. 14 And I'll tell you from my own 15 experience, Senator, that you never have a 16 surveillance case with a surveillance tape 17 where there is not at least a few minute 18 lapse, that is explained early on. 19 SENATOR HASSELL-THOMPSON: All that 20 may be true, but our contention is that when 21 we looked at the videos the maximum amount 22 of time in all the routes that we looked at 23 should have been 34 minutes, in traffic. 24 As we looked at the videos -- one route 33 1 that took the most time, assuming there was 2 traffic, was 34 minutes. 3 SENATOR LANZA: That's what Google 4 tells us. That's where we get that number. 5 SENATOR HASSELL-THOMPSON: I know how 6 that number comes about. 7 What I'm curious about, though, is that 8 17 minutes, we are giving so much credence 9 to this time, and I am just -- I am just 10 very curious that there is an inaccuracy in 11 the clocks and I'm not -- I'm just not 12 comfortable that the time is real. 13 Help me with this. 14 MR. LEWIS: Let me see if I can help 15 you with this. 16 First of all, there is a tremendous 17 amount of painful reading of testimony about 18 these clocks. 19 SENATOR HASSELL-THOMPSON: I'm sure. 20 MR. LEWIS: That I would send you to 21 if I had some depth of cruelty to me, but -- 22 SENATOR HASSELL-THOMPSON: If you 23 have some depth of cruelty to you. 24 MR. LEWIS: Yes, I would send it to 34 1 you. 2 SENATOR HASSELL-THOMPSON: Remember 3 that. 4 MR. LEWIS: They take the time from 5 the event around the house, around the 6 building and they layout what those times 7 are, as you read them. 8 The witness testifies, two witnesses 9 actually, one, the guy who keeps the tapes, 10 and second the police officer who took down 11 the information, says I matched my clock 12 with this clock and it's X minutes off and 13 everybody agrees okay, it X minutes off. 14 SENATOR HASSELL-THOMPSON: Okay. 15 MR. LEWIS: That starts the clock 16 running though from the time until he gets 17 to the hospital. 18 That tape then, we can count the 19 minutes by the clock running because we now 20 know what the real time in the hospital is, 21 but that tape is wrong, so we now adjust the 22 hospital time to real time setting that 23 particular gap. 24 In other words, you adjust each of the 35 1 two times for a fixed time period as between 2 the two places. 3 That's how we get that time. We don't 4 know what happens between those minutes, we 5 just know how long it is. 6 Because we can time it by virtue of the 7 technician's ability to tell us how off each 8 of the tapes are. 9 SENATOR HASSELL-THOMPSON: Okay. 10 MR. LEWIS: Does that help? 11 SENATOR SCHNEIDERMAN: And, Ruth, the 12 defense did not contest this. 13 SENATOR HASSELL-THOMPSON: Don't 14 confuse me. 15 SENATOR SCHNEIDERMAN: The defense 16 used the times, too, it wasn't like they are 17 saying the times were off, everyone agreed 18 this time is accurate. 19 SENATOR HASSELL-THOMPSON: It's okay, 20 but we are giving so much credence to it in 21 this committee is what I'm saying, because 22 everybody is saying well it took 47 minutes 23 and that's a horrendous amount of time, and 24 based on that that's undue cruelty. 36 1 So my comfort level says, to me, I'm 2 still trying to figure out what you're 3 really telling me. 4 If that clock is 15 minutes fast, it 5 still doesn't matter what time the clock 6 says, what you're telling me is that 47 7 minutes from whatever time that clock says 8 that's where all the action took place. 9 MR. LEWIS: That's the elapsed time, 10 yes. 11 SENATOR HASSELL-THOMPSON: That's all 12 I want to know. 13 MR. ALONSO: By the way, it's 37 just 14 to be clear, it's 37. 15 SENATOR HASSELL-THOMPSON: Okay, 37, 16 because that's why I was uncomfortable 17 because I'm saying wait a minute, now if 18 there had been a little bit of traffic it 19 was 34 minutes if we took one of the routes. 20 MR. LEWIS: Right. 21 SENATOR HASSELL-THOMPSON: So the 22 difference between -- well, you didn't -- 23 SENATOR STAVINSKY: Union Turnpike 24 route. 37 1 SENATOR HASSELL-THOMPSON: Union 2 Turnpike takes 34 minutes, I'm saying but 3 that's only a three minute difference, I 4 mean that bugged me the whole weekend, so I 5 couldn't wrap my head around that. 6 MR. LEWIS: If you think of it as 7 elapsed time. 8 SENATOR HASSELL-THOMPSON: It just 9 lapsed, no matter what the times. 10 MR. LEWIS: Elapsed. 11 SENATOR HASSELL-THOMPSON: That's 12 what time I'm saying, the amount of time 13 that elapsed doesn't matter what time the 14 clocks say, that's what elapsed regardless. 15 MR. ALONSO: Right. 16 SENATOR HASSELL-THOMPSON: That's 17 where I needed to be, okay. 18 MR. ALONSO: So we have the two 19 statements that Senator Monserrate made, 20 plus the statement that he made at the 21 sentencing, which we went over last time and 22 you have in your materials. 23 By the way, he did at the sentencing we 24 talked about last time, he did purport to 38 1 take responsibility for what happened. 2 SENATOR SAVINO: That's why I thought 3 it was so odd. 4 MR. ALONSO: He didn't say he was 5 guilty of a crime, he said he wasn't, but he 6 said, I'm paraphrasing, I take full 7 responsibility for the actions that happened 8 that night, something like that. 9 SENATOR HASSELL-THOMPSON: Right. 10 SENATOR SCHNEIDERMAN: And he 11 expressed remorse in the sentencing, but not 12 particularly. 13 SENATOR SAVINO: Was that 14 presentence? 15 SENATOR SCHNEIDERMAN: Yes. 16 MR. ALONSO: Yes. 17 SENATOR SAVINO: So his comments post 18 sentencing, which then appeared on a news -- 19 in the news interview are in conflict with 20 his presentencing hearing. 21 MR. ALONSO: It's also worth 22 reminding the committee respectfully that 23 his comments on his interviews about this 24 process being illegitimate, that's his 39 1 defense. 2 But my advice to you, and I think Mr. 3 Lewis agrees, is that what we are doing here 4 is incontrovertably legal. 5 All that's happened is by resolution 6 the Senate has formed a committee to report 7 and recommend. 8 There is nothing illegitimate about 9 this, it's well worn, well-established, this 10 is what legislators do. 11 And so what he's arguing is that the 12 Senate doesn't have the power to expel. 13 Well, he's arguing about something that 14 hasn't happened yet. 15 Now I have advised you on whether my 16 best legal advice is that you do have the 17 power to expel. 18 SENATOR SCHNEIDERMAN: The Senate has 19 the power. 20 MR. ALONSO: Thank you, that's 21 correct, that the Senate has the power to 22 expel upon a report by a committee like this 23 one. 24 But that's not what is before them 40 1 right now. 2 So, it's an argument that I submit to 3 you is protest too much, it's not really 4 what's preventing him from appearing here, 5 that's a tactical decision not to appear. 6 MR. LEWIS: It's actually unusually 7 premature. 8 SENATOR STAVINSKY: Dan, are you 9 suggesting they are claiming that the 10 committee, or the Senate, because the 11 distinction must be made, on the punishment 12 powers -- 13 SENATOR SCHNEIDERMAN: Who's. 14 MR. LEWIS: Can I make a suggestion, 15 it's probably not fruitful for us to engage 16 in discussion about their legal defenses and 17 their reaction to us. 18 SENATOR STAVINSKY: My question is 19 the committee, are they questioning the 20 committee or the body of the Senate? 21 MR. LEWIS: The answer is both. 22 SENATOR SAVINO: Both. 23 MR. LEWIS: I caution you, it's 24 really something we should not consider and 41 1 we should put out of our minds, because it's 2 not relevant to what we are supposed to be 3 doing, and my suggestion is that the only 4 reason I raised it with you is it is on 5 these interviews, and I suggest to you that 6 it's not for your consideration as this 7 committee. 8 You may when you sit in Senate have a 9 different view and consider it as you wish, 10 but in terms of what we are doing, and the 11 charge in this resolution, which is fairly 12 narrow, we need to make sure that we stay 13 within the parameters of what we have been 14 asked to do and not either react to or be 15 involved in any way with those statements 16 that are really outside our purview and 17 whether they are even appropriate for them 18 or not. 19 MR. ALONSO: I mention it because 20 it's part of his admission, it's part of 21 what he said, so that's what he said. 22 He talked about how he was taking her 23 to the hospital and then he talked about the 24 illegitimate situate of the process. 42 1 SENATOR SCHNEIDERMAN: I do think it 2 important to note that there is a legal 3 distinction between what the committee's 4 powers and mandate are and what the Senate 5 can do. 6 And we actually met, had a few people 7 ask about this and we asked for a memo which 8 we will distribute to everyone, very simple 9 two pages explaining this. 10 We are operating, and as Mr. Alonso 11 indicated, unquestionably lawfully to make 12 an inquiry and issue a report to the Senate 13 and we report and recommend and the 14 resolution that created our committee 15 identifies exactly what we are supposed to 16 do, we are supposed to make an inquiry on a 17 specific area of facts and make 18 recommendations; that's it. 19 The actual -- if he wants to challenge 20 at some point the issue of whether he can be 21 expelled or not, that's not a challenge to 22 this committee, we do our job, the Senate 23 votes under legislative law and that's not 24 something that is really anything we have to 43 1 address now and will never have to address 2 as a committee. 3 I think the only issue for us is what 4 we consider in our work as a committee in 5 making -- in coming to our conclusions and 6 making our recommendations. 7 SENATOR FLANAGAN: Senator 8 Schneiderman, on that point, we are talking 9 about the interviews, I think it will be 10 useful and beneficial to get the links, and 11 I certainly will look at the interviews and 12 I'm sure everyone else will, whoever hasn't 13 seen it already. 14 But frankly I would use a word of 15 caution in terms of how we would interpret 16 these things, because looking at material 17 provided at the sentencing, we have the 18 benefit of the whole transcript and part of 19 that transcript is the judge making a 20 decision on the motion by the media to 21 provide that coverage. 22 My only caution would be N.Y. One, if 23 it's 23 minutes it's probably the whole 24 interview, but if it's NBC, we may be 44 1 getting little vignettes that are salacious 2 and juicy for their benefit, but for all we 3 know, and I don't need to defend him, 4 Senator Monserrate may have used words of 5 contrition as part of that interview that we 6 are not privy to. 7 SENATOR STAVINSKY: I think they 8 interviewed him live, John, on Channel 4, 9 with Chuck Scarborough. 10 SENATOR FLANAGAN: Even live can 11 ultimately get edited. 12 MR. LEWIS: You should know if you 13 watch the Channel 4 version while he's 14 speaking about what happened, they are 15 showing a clip of her being dragged through 16 the vestibule, so I think your caution is 17 extremely appropriate. 18 SENATOR SCHNEIDERMAN: Yes. 19 SENATOR SAVINO: Same thing with N.Y. 20 One. 21 SENATOR SCHNEIDERMAN: I think that's 22 a fair point, and this is worth looking at, 23 but we should consider it only for what it's 24 worth, we all have our experience with the 45 1 media that guides that thought process. 2 SENATOR ALESI: I think if we were 3 going to apply that rationale, which I don't 4 disagree with, then the videos that we saw 5 in the stairway and the hallway are taken 6 out of context with a lot of what occurred, 7 too, so. 8 MR. ALONSO: Except that those 9 videos, at least, show everything that there 10 is to show in that time frame. 11 There is no, as far as we know, from 12 the evidence at trial, there are no other 13 images from the time of the PBA card to the 14 time of going to the hospital that are in 15 that building. 16 MR. LEWIS: The evidence in trial, 17 the only claim that's viable is her coming 18 up the stairs supposedly intoxicated is not 19 -- was not -- 20 SENATOR HASSELL-THOMPSON: Yeah, I 21 wanted to ask about that. 22 MR. LEWIS: Was not copied because 23 the cops told them they didn't need that. 24 Everything else is, according to the 46 1 testimony, any image of her or him during 2 that entire period of time from all the 3 cameras, so what we have got is, and it 4 seems the defense agreed to this, too, that 5 everything, every image that was available 6 was provided for that period of time. 7 SENATOR SAVINO: And -- go ahead, I 8 am trying to remember something about that 9 intoxication. 10 SENATOR HASSELL-THOMPSON: I am 11 listening to you, and it is just a little 12 bit amazing that if the tape of her coming 13 into the building, I can't understand why 14 that wasn't part of the testimony. 15 MR. LEWIS: The testimony is that the 16 police officers told the super, who actually 17 showed them the tape, we don't need that, we 18 need it beginning at this point. 19 MR. ALONSO: When he was asked why, 20 the explanation of the officer at trial was 21 that he was investigating an assault, and he 22 saw at the time of the PBA card vignette 23 from the video she was okay, she wasn't yet 24 cut, so he just took the first moment when 47 1 he saw she was okay, or the last moment when 2 he saw she was okay, through the part where 3 they left for the hospital. 4 He thought that that was what was 5 relevant for the assault. Should he have 6 been more expansive? It would have been 7 great, but that's what he said. 8 SENATOR HASSELL-THOMPSON: I remember 9 hearing in the very beginning that there 10 were -- there was some question about 11 whether the tapes would even be used because 12 of the footage that they had chosen to 13 present. 14 MR. LEWIS: Be careful, you are 15 talking about the motions they made and you 16 are talking about their argument in the 17 motion, and the judge's comment at the 18 motion hearing. 19 So you all know, he said the images are 20 horrific, you are talking about emotions 21 here that was argued about whether they 22 would be admitted at all. 23 SENATOR HASSELL-THOMPSON: No, 24 originally before he actually saw the clips 48 1 there was some discussion that the tapes 2 were not going to be used because they did 3 not represent the entirety of everything and 4 they couldn't -- he could not be sure. 5 MR. ALONSO: That's what happens in 6 pretrial motions a lot, is that arguments 7 like that get made and then they get really, 8 really hashed out, both sides, and the judge 9 ultimately makes a decision. 10 So the defense may well have claimed 11 that, but in the end of the day at the trial 12 where all the facts came out, the only 13 remaining defense claim was that her entry 14 into the building should have been what was 15 recorded. 16 The rest of it the defense did not 17 argue, in fact they used it in their 18 summation that what was happening on the 19 tape, was the entirety of what was available 20 for that time period, they were okay with 21 that. 22 They just said geez, you should have 23 shown us the part where she came into the 24 building, because the judge would have then 49 1 been able to see how drunk she was at 2 midnight; that's the only thing. 3 SENATOR HASSELL-THOMPSON: That was 4 my contention, because he says that her 5 behavior was what precipitated his behavior 6 towards her, because she was drunk and out 7 of control. 8 MR. ALONSO: Correct. 9 MR. LEWIS: The two things that 10 happened here, first of all as a defense 11 lawyer you make a motion to exclude 12 everything because that's the best you can 13 ask for, you ask for everything. 14 SENATOR HASSELL-THOMPSON: True. 15 MR. LEWIS: The judge's response in 16 one form or another which is the usual 17 response is great, counselor, that goes to 18 weight, not admissibility, so it comes in. 19 You could have a field day on whatever you 20 complain about that. 21 So that's the part you heard. With 22 regard to her physical condition and 23 intoxication, we have the image of the PBA 24 card, we have that interaction with them, so 50 1 we have roughly about 15 minutes after she 2 -- ten minutes after she walks into the 3 apartment, we now have a tape of her that we 4 can see her moving around and dealing with 5 him. 6 So what's lost -- 7 SENATOR HASSELL-THOMPSON: And you 8 see evidence of intoxication? 9 MR. LEWIS: If you notice I very 10 carefully didn't say anything like that. 11 SENATOR HASSELL-THOMPSON: I know you 12 didn't. 13 MR. LEWIS: Nor would you get me to. 14 SENATOR HASSELL-THOMPSON: Nor would 15 I try. 16 MR. LEWIS: That's really the 17 committee's decision, but you see them, you 18 see the two of them and it would have been 19 able better if we had that image, it would 20 have been better if we were able to show 21 that. 22 But there is no perfect way to 23 investigate a case, and good defense lawyers 24 use that. 51 1 SENATOR HASSELL-THOMPSON: I want too 2 much damn closure, what can I tell you. 3 SENATOR SAVINO: Also in the Grand 4 Jury and in the jury there is conflicting 5 statements from both Karla Giraldo with 6 respect to how much she had to drink that 7 night, and her cousin who was with her and 8 other people who were there. 9 So in some testimony she said she only 10 had one or two drinks, and then later in the 11 trial she stated that she drank so much, but 12 that she wasn't drunk, she was tipsy. 13 And then someone else said something to 14 the effect that -- 15 MR. LEWIS: Happy. 16 SENATOR SAVINO: Happy, so there is a 17 lot of conflicting testimony with respect to 18 whether or not she really was so inebriated 19 that had she couldn't walk, and certainly I 20 did not see anybody in that condition in the 21 videos that we were able to see. 22 MR. ALONSO: She's pretty clear in 23 the Grand Jury, Senator, that she was not -- 24 she was okay, she was not drunk and she had 52 1 two drinks the whole evening. 2 It's the trial defense, she supported 3 in her trial testimony which was that she 4 was so drunk, which fits into the defense 5 that the defense was putting forward. 6 The part you say about you didn't see 7 somebody drunk, that was, I thought, an 8 excellent point that Senator 9 Hassell-Thompson made on day one, which I 10 hadn't focused on, you see her walk 100, 200 11 yards through that hospital and she's 12 walking in a straight line, that's 37 13 minutes after they left the building. 14 MR. LEWIS: You see her come down the 15 steps without having to hold on or anything 16 like that. 17 SENATOR SAVINO: Later on. 18 SENATOR HASSELL-THOMPSON: But there 19 is a question, she says she got home at 20 12:00. 21 MR. ALONSO: Around midnight. 22 MR. LEWIS: Around 12:00. 23 SENATOR HASSELL-THOMPSON: This was 24 3:00? 53 1 MR. ALONSO: When they left the 2 building or got to the hospital. 3 SENATOR HASSELL-THOMPSON: She says 4 she took a nap. 5 MR. ALONSO: Said she was lying down. 6 SENATOR HASSELL-THOMPSON: I thought 7 took a nap. 8 MR. LEWIS: She sort of claimed she 9 was asleep, although somehow also asked for 10 a glass of water. 11 MR. ALONSO: And felt the water 12 enough to pop up, except on the Affidavit 13 where she was careless around the glass. 14 It's hard to -- you have to ask which 15 statement are we talking about, she said 16 several things. 17 SENATOR HASSELL-THOMPSON: I thought 18 I remembered reading in here that she had 19 taken a nap and so if she did take a nap, 20 the inebriation we might have seen earlier 21 didn't appear to be evidence when we see 22 her, even the activity with the PBA card, 23 none of that. 24 MR. LEWIS: The PBA card is before 54 1 the nap. 2 SENATOR STAVINSKY: Yeah. 3 MR. ALONSO: Two hours before. 4 MR. LEWIS: PBA. 5 SENATOR HASSELL-THOMPSON: After she 6 gets to the apartment. 7 MR. LEWIS: Ten minutes or so. 8 SENATOR HASSELL-THOMPSON: There it 9 is, that puts the time frame, it just 10 doesn't look right to me. 11 SENATOR SAVINO: The neighbor 12 downstairs, her testimony about the frenzy 13 of activity. 14 MR. LEWIS: Chaos. 15 SENATOR SAVINO: I don't remember, 16 what time did they say that this noise or 17 fighting? 18 MR. LEWIS: Neighbor said it was 19 going on continuously. 20 SENATOR HASSELL-THOMPSON: Continuous 21 ly. 22 SENATOR SCHNEIDERMAN: There was 23 testimony as to one particular thump and he 24 could hear -- 55 1 MR. ALONSO: The thump was about ten 2 minutes before the ringing of the doorbell. 3 SENATOR HASSELL-THOMPSON: They all 4 started running out. 5 SENATOR STAVINSKY: The other point 6 about walking, you notice when they are 7 walking both in the building toward the exit 8 and in the street and at Long Island Jewish, 9 on only one occasion does he put his arm 10 around her, and that's when they are out in 11 the street in front of their apartment house 12 walking towards the car, and if she were 13 staggering, I think he would have had, or if 14 he was trying to comfort her, but they are 15 walking apart from each other. 16 MR. LEWIS: Just you need to remember 17 one thing, Dr. Kort in her testimony said 18 there was a smell of alcohol on her breath. 19 So there was a smell of alcohol. 20 SENATOR HASSELL-THOMPSON: Right. 21 SENATOR STAVINSKY: It could have 22 been on her clothes. 23 MR. LEWIS: Just saying when we look 24 -- 56 1 SENATOR ALESI: Doesn't matter, they 2 already know she was drinking, she went to a 3 party. 4 SENATOR SAVINO: Exactly, she never 5 said she didn't have anything, she said she 6 had a couple of drinks but that she was not 7 drunk, that she was happy in one testimony, 8 or tipsy, and so I think the question is not 9 whether or not she had something to drink, 10 that's already been established. 11 It's whether or not she was so drunk. 12 SENATOR STAVINSKY: So drunk. 13 MR. ALONSO: And -- 14 SENATOR SAVINO: There is nothing to 15 support that. 16 MR. ALONSO: And remember again, the 17 significance of a statement before the Grand 18 Jury, which is that that's at a time when 19 she doesn't know and he doesn't know what 20 the theory of the prosecutor is going to be 21 down the road. 22 So she's asked a question which she may 23 or may not have anticipated were you drunk 24 and she answered it, and there is a school 57 1 of thought which defense lawyers use a lot, 2 that you give a little bit more credence to 3 the statement somebody makes in front of a 4 Grand Jury early on before they know what 5 all the issues are in private, closer in 6 time to the incident; than you do later on 7 when maybe they might not be, when they 8 might have some additional motives that 9 weren't present at the Grand Jury. 10 MR. LEWIS: Giving a lot of credence 11 is what helps us. 12 SENATOR SCHNEIDERMAN: Yes, it's an 13 argument. 14 MR. LEWIS: The other thing the 15 committee may want to look at is his 16 statements that night, the conflicts between 17 his statements and her statements. 18 Because at some point there was some 19 focus on activity between the two of them in 20 which he went out of his way to tell one of 21 the doctors that they had sex, she was 22 interviewed she said at the Grand Jury she 23 said they didn't. 24 Whether that's relevant or not, it's 58 1 just odd that -- 2 MR. ALONSO: I saw that and I didn't 3 bring it up. 4 It's true, apparently she says that 5 they didn't have sex and he said to Dr. 6 Froegel that they did have sex. 7 And I'm not sure which way that cuts, 8 myself. 9 SENATOR STAVINSKY: I found that odd 10 myself when I read it, because I didn't 11 understand why it would be relevant. 12 MR. ALONSO: Well, I guess he was 13 asked what happened, so he told the story of 14 what happened that evening, but -- 15 SENATOR STEWART-COUSINS: As he saw 16 it. 17 MR. ALONSO: I wonder why one of them 18 would not tell the truth about it. 19 SENATOR STEWART-COUSINS: Maybe one 20 was napping. 21 SENATOR STAVINSKY: She was asleep. 22 SENATOR HASSELL-THOMPSON: Toby, we 23 are on the record here. 24 MR. ALONSO: For the record, that was 59 1 not a serious statement. 2 SENATOR STEWART-COUSINS: No. 3 SENATOR ALESI: Maybe it wasn't that 4 memorable. 5 SENATOR HASSELL-THOMPSON: No, the 6 issue I was raising was I think he was 7 trying to establish that there was really a 8 -- that the arguing that everybody is 9 alluding to really just didn't happen, 10 because they were, you know -- 11 SENATOR STEWART-COUSINS: Or it 12 wasn't that serious. 13 SENATOR HASSELL-THOMPSON: Or wasn't 14 that serious, right. 15 SENATOR STEWART-COUSINS: It was a 16 normal -- 17 SENATOR HASSELL-THOMPSON: Maybe the 18 thumping was not what they thought it was. 19 SENATOR STEWART-COUSINS: It was just 20 one thump. 21 SENATOR HASSELL-THOMPSON: She said 22 noise, she had to knock on the ceiling. 23 SENATOR SCHNEIDERMAN: I think we 24 should move along here, I think for 60 1 purposes, our purposes and the committee, 2 keep in mind our mandate is to focus on the 3 circumstances relating to the misdemeanor 4 conviction, and for those purposes, in my 5 view, the video is tremendously important 6 because as discussed at an earlier meeting 7 of the committee, it really anchors us in 8 our view of all the other statements that 9 were made, we at least, and it's a very 10 unusual situation to have this significant 11 portion of the conduct that we have been 12 directed to look at available on a video, so 13 we can look at it and look at it over and 14 over, and I think most of what we have to 15 include as far as the facts comes out of 16 that. 17 We certainly can consider in 18 determining what our view is of the conduct 19 and what are the inferences we draw from it, 20 we can consider the fact that there were 21 inconsistent statements made and statements, 22 frankly, that we may not believe made in 23 Karla's statements on the night of the 24 incident, Hiram's statements on the night of 61 1 the incident, Karla's statements in the 2 Grand Jury and then any of the testimony at 3 the trial. 4 But our job is not to re-evaluate the 5 entire situation, our job is to look at 6 circumstances of the misdemeanor conviction, 7 which does bring us into the question of 8 whether we buy the story that is the final 9 version of the story that emerged, which 10 Senator Monserrate has continued to repeat, 11 that they had -- they had an accident, he 12 was helping her, she was in fear going to 13 the hospital, then he was helping her in 14 trying to get her to care as best he could. 15 The prosecution obviously contends that 16 was obviously not what was going on, so 17 there is another way to interpret the 18 events, that she was afraid of him, that he 19 was forcing her to be with him when she 20 wanted to get away from him and that he was 21 either, because he was concerned about 22 misconduct that had taken place before, he 23 was just so self-obsessed that he was 24 worried about his reputation, rather than 62 1 her. 2 SENATOR HASSELL-THOMPSON: So, is 3 that why he never called 911? 4 SENATOR SCHNEIDERMAN: That's the 5 prosecutor's contention. 6 SENATOR HASSELL-THOMPSON: Because a 7 lot of times in here throughout the 8 testimony she talks about how many times she 9 requested that he call 911. 10 She had her own cell phone, I was 11 curious as to why she didn't call 911 12 herself. 13 SENATOR LANZA: Called the -- 14 SENATOR STAVINSKY: He had possession 15 of it. 16 SENATOR HASSELL-THOMPSON: She called 17 her facialist. 18 MR. ALONSO: That's once they were 19 already on the way to the hospital. 20 MR. LEWIS: And in the car together. 21 SENATOR HASSELL-THOMPSON: But the 22 assumption is that he did not have 23 possession of her cell phone until they got 24 to the hospital, and we saw him possibly 63 1 using both cell phones in the video as we 2 watched the videos. 3 But prior to that, she had access to 4 her phone, and I'm curious as to why she 5 didn't call 911. 6 MR. ALONSO: I think -- we don't 7 know, that wasn't asked of her directly, but 8 I think that it's probably reasonable to 9 expect that she's got this very deep gash in 10 her eye and is worried about her health, it 11 would have been more reasonable to expect 12 somebody else to call the hospital than her, 13 since she is -- I mean the towels in those 14 pictures, there was towel after towel. 15 SENATOR HASSELL-THOMPSON: She's 16 saying in the testimony he was refusing. 17 MR. ALONSO: I think that goes a bit 18 far in the testimony, I think it was more 19 that she said to him call an ambulance if 20 you want, go ahead, call an ambulance. 21 She thought that the neighbor might 22 help her get to the hospital, those are the 23 statements that she made in her testimony. 24 MR. LEWIS: You can put together -- 64 1 SENATOR HASSELL-THOMPSON: While you 2 were in the apartment did you ask him to 3 call for an ambulance? 4 I said if you want an ambulance, and he 5 said I want to drive you over, then she kept 6 saying that she was asking for an ambulance 7 and he -- several times she asked for 911. 8 MR. ALONSO: I think it's a 9 reasonable inference what you are making, 10 just not in those words is what the 11 testimony is. 12 SENATOR LANZA: I think the judge's 13 reliance on this 911 call that never 14 happened, to me it cuts both ways, and I'm 15 not sure what importance, I mean everyone 16 can make their own decisions here, but if he 17 wanted to help himself out, Senator 18 Monserrate could have called 911 and looked 19 like the good guy. 20 SENATOR HASSELL-THOMPSON: That's my 21 point. That's the only reason I'm raising 22 it. 23 SENATOR LANZA: From my own personal 24 experience, I have three kids, they have 65 1 been injured along the way, mishaps in the 2 yards, and I have never called 911, thank 3 God, because I've never been confronted with 4 a situation that serious that I thought I 5 needed somebody there, as opposed to me 6 getting in the car, and for me, thinking 7 that the best way to deal with the situation 8 is get to the hospital the quickest route 9 possible, which is not to wait for somebody 10 else to come pick them up and bring them to 11 the hospital. 12 Now, other people would handle their 13 parental duties different, that's worked for 14 me and it has been the sound course of 15 action as opposed to waiting a half hour for 16 an ambulance to get there. 17 SENATOR HASSELL-THOMPSON: My 18 grandson, four and a half years old, just 19 fell down November 12th, we were all 20 dressing to go to an event, community event, 21 he's playing with his Wii, he's not supposed 22 to sit on the radiator, but he does, and all 23 this action and movement, he falls off the 24 radiator, hits his head he goes -- his 66 1 mother grabs him, takes him to the hospital 2 in the car, he has four staples. 3 You're right, that's -- that tends to 4 be what people do. 5 SENATOR LANZA: If you want to get 6 them there quick, you get them there 7 yourself, if, God forbid, it's something 8 worse -- 9 SENATOR HASSELL-THOMPSON: Because 10 there are some community -- 11 That's why I'm trying to figure out 12 what was the judge's thinking, because 13 sometimes neighborhoods, certain 14 neighborhoods, if you call the ambulance you 15 do yourself a bigger service getting in that 16 car and if you have access and getting there 17 yourself, because ambulances don't respond 18 in some communities the same way they do 19 with others, we all know that. 20 SENATOR LANZA: I can tell you on 21 Staten Island -- 22 SENATOR SAVINO: But it's not his 23 child. 24 SENATOR LANZA: Can I finish? If the 67 1 point is that he didn't call 911 because he 2 didn't care about her, I would suggest to 3 you that no one cares, there is no 4 relationship where there is more care and 5 love than a parent and a child. 6 And so I'm telling you if you talk to 7 parents, when you go through it and you've 8 had these situations that occur and then you 9 then talk to other parents and friends and 10 you say this is what happened to my son and 11 they tell you a story, I can tell you just 12 my personal experience almost invariably 13 everyone will tell you they didn't call 911, 14 and it's probably the right -- without 15 giving other people advice, but if you want 16 to get them to the hospital, where I live on 17 Staten Island, you get in the car and you 18 get them there. 19 SENATOR SAVINO: All that may be 20 true, however there are two things, one, 21 this was not his child, this is a grown 22 woman. 23 SENATOR LANZA: Who could have called 24 911 herself. 68 1 SENATOR SAVINO: Or he could have 2 done what she asked him to do, which was 3 call 911. 4 He chose not to, and then in an effort 5 to get her to the hospital as quickly as 6 possible, he drove past five other 7 hospitals. 8 So if it was really about trying to 9 avoid waiting for an ambulance, because he 10 didn't want to depend on EMS, or he wanted 11 to get her to the hospital as expeditiously 12 as possible to get her help, he could have 13 taken her to Elmhurst General, which they 14 could have walked to. 15 SENATOR STAVINSKY: Could have walked 16 to. 17 SENATOR SAVINO: Or he could have 18 taken her to Booth Memorial Hospital, he 19 could have taken her to Queens General 20 Hospital, he could have taken her to 21 Flushing Hospital, he could have taken her 22 to Wykoff Hospital. 23 MR. ALONSO: By the way, New York 24 Hospital was closer. 69 1 SENATOR STAVINSKY: That's true. 2 SENATOR SAVINO: That's Booth 3 Memorial. 4 MR. ALONSO: New York Hospital in 5 Manhattan was closer. 6 SENATOR SAVINO: He chose not to do 7 any of those things, he chose however to 8 take her to LIJ and not call 911 as she 9 asked for. 10 SENATOR STEWART-COUSINS: And it took 11 what looks like for a 3:00 a.m. Time frame 12 an inordinately long period of time, and 13 even where one parks, again, if you're 14 trying to -- I know most haven't been out to 15 this hospital, but I know most of the times 16 you can at least park somewhere in the 17 proximity of the emergency room, even -- 18 it's for a limited amount of time, get in 19 there with your person, go through whatever 20 the triage or whatever it is to at least 21 establish this is a person who is in need of 22 some help. 23 We don't park so many blocks away and 24 then take another long walk to the emergency 70 1 room. 2 I mean it's just unfortunately what we 3 have here is just so many inconsistencies. 4 SENATOR LANZA: There are a lot -- 5 remember, this is the hospital he took 6 himself to. 7 So, when it was him -- 8 SENATOR STEWART-COUSINS: Yes. 9 SENATOR LANZA: He passed all those 10 hospitals, too, so people do make choices. 11 SENATOR SAVINO: You can assume risk 12 for yourself, but not for somebody else. 13 SENATOR LANZA: Wait a minute, no, 14 but if the argument that he was going to 15 this hospital to somehow avoid being 16 recognized, which is absurd, as a person who 17 is on the City Council for the years that he 18 was, he didn't go to Iowa, he went a half 19 hour away, so that's an absurd argument, the 20 judge I think was whatever, wrong, 21 inconsistent with logic to me, and it's a 22 hospital that he went to when he made the 23 choice for himself. 24 So you can talk about whether or not he 71 1 has the right or not, but I'm just saying it 2 is inconsistent with what he did before, so 3 perhaps, and again everyone is free to feel 4 -- draw their own conclusions, perhaps it is 5 because he thought, perhaps, that was the 6 best place for her to go, could be. 7 SENATOR STEWART-COUSINS: Could be. 8 SENATOR HASSELL-THOMPSON: Better 9 care, it's all about care. 10 SENATOR LANZA: Again, using my 11 experience, I drove right past the hospital 12 when my son -- I will give you the 13 specifics, he had an accident and he cut his 14 finger severely, it was a partial 15 amputation, and we drove right -- we decided 16 to go to the hospital that was further away 17 because I knew that that was the place he 18 needed to be. 19 SENATOR STEWART-COUSINS: Absolutely. 20 SENATOR STAVINSKY: To add to that, 21 if he had called 911, 911 would not have 22 taken him to Long Island Jewish, they would 23 have taken him to Elmhurst. 24 MR. ALONSO: But what they would have 72 1 done is immediately treat her, put a 2 butterfly on it. 3 SENATOR STAVINSKY: Yes, they would 4 have treated and stemmed the bleeding. 5 SENATOR SAVINO: She could have got 6 what she wanted after that. 7 SENATOR STAVINSKY: She might not 8 have had to go to the hospital. 9 MR. ALONSO: Everybody's statements 10 are obviously well taken, the couple of 11 things I would just throw out is that as 12 he's rushing to take her to the hospital 13 without having anyone having stemmed the 14 bleeding, she's got a towel over her eye and 15 that towel when he pulls her drops, and I 16 think it's reasonable since she's screaming, 17 it's reasonable to assume she was saying 18 something like my towel, my towel. 19 And yet the pulling continues and you 20 saw that look on her face in the vestibule 21 right after she had dropped the towel. 22 So that's one thing that I think is not 23 consistent with taking her best interests 24 into heart. 73 1 And the other thing is the point 2 Senator Stewart-Cousins just made, which is 3 the parking on the street and that long 4 distance from the emergency room, when you 5 have signs showing you where the emergency 6 room is, you've got a well-defined emergency 7 area where you can drop off or she's 8 bleeding, double park the car, run in with 9 her, that's what people do, and to sort of 10 do it in this far away way does suggest to 11 me that at least that it's reasonable to 12 infer, and it's for the committee to infer, 13 that something else is going on, like let's 14 fly under the radar, and it's possible, much 15 more possible near the Nassau County border 16 than it is right in his district to be at 17 least a little bit incognito. 18 SENATOR STAVINSKY: Was she carrying 19 a towel when she exited the car, when she 20 entered the Long Island Jewish? 21 SENATOR SAVINO: She had something in 22 her hand. 23 MR. ALONSO: Her plastic bag. 24 SENATOR STAVINSKY: So she had no 74 1 towel? 2 SENATOR STEWART-COUSINS: No, the 3 towel she lost in the hall. 4 SENATOR STAVINSKY: Presumably the 5 bleeding stopped. 6 MR. ALONSO: Or didn't -- we don't 7 know. 8 SENATOR STAVINSKY: It didn't, so she 9 must have. 10 SENATOR SCHNEIDERMAN: She was trying 11 to get back inside and maybe to get the 12 towel. 13 MR. LEWIS: There is one other thing, 14 a 911 call generates a tremendous amount of 15 paper, generates police attention, and once 16 a public official is part of that police 17 attention it generates, for example, a night 18 watch report, it goes through the -- goes up 19 through the ranks to have attention brought 20 to it. 21 SENATOR LANZA: It cuts in his favor 22 because he knows all this and so I think it 23 would have been exculpatory for him to have 24 called 911 to be the person that was looking 75 1 for help. 2 I'm just saying the 911, I know we are 3 taking a lot of time on it, but it cuts both 4 ways. 5 SENATOR ALESI: The best anybody 6 could really conclude here is it's both, 7 that he made a choice, I'm saying, my view, 8 that she would get better treatment based on 9 some previous experience, maybe, and at the 10 same time let's fly under the radar while we 11 are doing it. 12 SENATOR STEWART-COUSINS: Right. 13 SENATOR STAVINSKY: Did he make any 14 attempt to stem the bleeding, because he's a 15 police officer who, presumably, had first 16 aid training. 17 SENATOR LANZA: There is no evidence. 18 SENATOR STAVINSKY: There is no 19 evidence that he tried to stop the bleeding. 20 MR. LEWIS: We don't know why he was 21 treated at the hospital, because we didn't 22 get the record that went into evidence that 23 they used to show he was treated previously 24 at the hospital, we have no idea why he was 76 1 treated. 2 MR. ALONSO: Could have been tertiary 3 care, for all we know. 4 SENATOR STAVINSKY: Could have gone 5 for a flu shot. 6 SENATOR ALESI: She wasn't bleeding 7 when she got to the hospital as I remember, 8 the doctor said there wasn't that much blood 9 loss. 10 SENATOR STEWART-COUSINS: She also 11 said they never cleaned off her face, she 12 was never treated. 13 So whatever it looked like, according 14 to her, which was different than what the 15 doctor said, nothing happened, her blood, 16 the blood was still on her face. 17 But the only thing that, it seems to 18 me, is regardless of how we all handle 19 personal emergencies, I don't think anyone 20 around this table wouldn't say that having a 21 gash under your eye, bleeding profusely was 22 not an emergency. 23 So how you handle that emergency, 24 whether it's 911 or driving yourself, is, 77 1 again, personal, but then if it's still an 2 emergency, what I am missing in after how we 3 determine we get to the hospital, the look 4 of an emergency, at least on his part or her 5 part as they did what they did, they just -- 6 nobody looked like how most people feel when 7 there is, indeed, an emergency. 8 So, again, there is just so much -- 9 SENATOR SAVINO: She was probably in 10 shock. 11 SENATOR STEWART-COUSINS: She might 12 have been in shock, but he is the guy that 13 is the responsible adult here who is taking 14 this person in an emergency room, face 15 bleeding, gash, all she is saying she's 16 nervous throughout the whole thing, he's the 17 responsible person, and I'm not seeing that 18 urgency or emergency in anything that 19 happened, whether it's the time frame of 37 20 minutes, or whatever, whether it's the walk 21 from the street, whether it's the meandering 22 through the hospital corridors. 23 MR. ALONSO: It's an interesting 24 point that I hadn't focused on, you see 78 1 urgency getting out of the building, you see 2 no urgency getting to the triage nurse. 3 SENATOR HASSELL-THOMPSON: None and 4 no wheelchair, no wheelchair. 5 MR. ALONSO: I suggest that the 6 urgency, the emergency only began after she 7 rang the neighbor's doorbell, that's when 8 the urgency in the building -- 9 MR. LEWIS: She does walk down the 10 steps on their own, and they seem to be in 11 that situation, then things change when she 12 disappears from that video. 13 SENATOR HASSELL-THOMPSON: We don't 14 see blood flowing in those tapes, and if I 15 missed it -- 16 SENATOR LANZA: In the hospital. 17 SENATOR SCHNEIDERMAN: In the 18 hospital. 19 SENATOR HASSELL-THOMPSON: In the 20 hospital? 21 MR. ALONSO: You don't see it. 22 SENATOR HASSELL-THOMPSON: You don't. 23 SENATOR SAVINO: Was she treated for 24 shock? 79 1 SENATOR STEWART-COUSINS: No. 2 SENATOR SAVINO: Do the medical 3 records -- 4 SENATOR HASSELL-THOMPSON: None of 5 the testimony speaks to that. 6 SENATOR SAVINO: Do the medical 7 records say that beyond the suturing? 8 MR. ALONSO: No. 9 SENATOR HASSELL-THOMPSON: She seemed 10 to be coherent when they got the 11 interpreter. 12 MR. LEWIS: And the triage nurse. 13 SENATOR SAVINO: In the apartment 14 there was -- we saw the photos in the 15 apartment. 16 SENATOR LANZA: Medical records said 17 there was not a lot of blood loss. 18 SENATOR SCHNEIDERMAN: Not like 19 pints. 20 MR. LEWIS: Talking about two 21 different things, there was a lot of blood, 22 there was not a significant blood loss so as 23 to cause shock. 24 When you are talking about shock you 80 1 are talking about pints of blood, this is 2 just the cut, generally there is all this 3 blood all over the place as almost any head 4 injury would. 5 SENATOR HASSELL-THOMPSON: Head 6 wounds do. 7 SENATOR STEWART-COUSINS: Sure. 8 MR. LEWIS: The triage nurse in those 9 notes indicates she wasn't in shock at all, 10 in fact she was answering questions, she 11 later said nobody asked her. 12 SENATOR STAVINSKY: Did they examine 13 her? 14 SENATOR HASSELL-THOMPSON: They did, 15 but she said they didn't. 16 SENATOR STAVINSKY: Did they examine 17 her in the emergency room to see if she was 18 -- 19 MR. LEWIS: Triage nurse does the 20 preliminary evaluation. 21 SENATOR STAVINSKY: Presumably she 22 was examined. 23 SENATOR SCHNEIDERMAN: Sure. 24 SENATOR HASSELL-THOMPSON: Yes. 81 1 MR. LEWIS: I didn't know what you 2 meant by examined. 3 SENATOR STAVINSKY: To see if she was 4 in shock. 5 SENATOR SCHNEIDERMAN: Yes. I think 6 -- 7 SENATOR HASSELL-THOMPSON: And the 8 fluency with which she answered the 9 questions, whether she lied or didn't lie is 10 not relevant, the fluency with which she 11 answered the questions indicated that she 12 was not in shock, there is nothing in the 13 testimony that speaks to that. 14 SENATOR STEWART-COUSINS: And quite 15 sober. 16 SENATOR HASSELL-THOMPSON: Quite 17 sober, all of that is the quite sober part. 18 SENATOR SCHNEIDERMAN: I think that 19 for the purposes of assessing what we think 20 about the misdemeanor conviction, what we 21 think about the assault, him pulling her -- 22 and the judge, really, put two issues on the 23 table, him pulling her through the hall and 24 the aggressive way he's doing that and 82 1 pulling her and her screaming and clinging 2 on and losing the towel and trying to get 3 away, what we think of that set of 4 circumstances, then the judge added in 5 addition to whatever harm she was caused 6 there, the whole question of the 7 unreasonable delay, the extra pain she 8 suffered, the extra risk to her from that 9 which starts with not calling 911 and goes 10 through the route to the hospital, skipping 11 the hospital, not going to the emergency 12 room, that whole combination of 13 circumstances. 14 That's what we have to assess and 15 really deal with in the factual section of 16 the report, and I think it's important for 17 the members of the committee to think about 18 how we come out on that. 19 Whatever our experiences, and I have 20 had times I have called 911 and times I have 21 not called 911, but what do we think of the 22 whole overall pattern as far as our 23 assessment of, and how does our view of her 24 credibility feed into it, because it's very 83 1 clear that Senator Monserrate, and it's 2 supported by her later testimony, not her 3 earlier testimony, is saying that this was 4 -- it was an accident, they are friendly, 5 they are a loving couple and he was trying 6 to help her get care as quickly as possible. 7 And she was scared, but that basically 8 they were together. 9 That is their story, and we have to 10 take into account -- we have to make some 11 determination of what we think about that. 12 Do we think this was, as the judge 13 obviously thought, a fairly serious assault 14 and didn't think much of his treatment of 15 her, or do we think this is something that 16 is completely understandable and that their 17 version of the events are credible, because 18 I think that does lean into our conclusion 19 which we are going to have to come to as to 20 whether or not we recommend that the Senate 21 take some action. 22 So that I would just like to frame up 23 where we are going with all these questions 24 about all of these issues, and I think the 84 1 credibility, his conduct, her inebriation, 2 or lack thereof, the choice of the routes, 3 the choice of where to park, all fits into 4 our determination on that, but that's really 5 how -- what we have to determine, how 6 serious we think this is, and because I 7 think quite honestly we don't have -- we 8 don't have a huge body of facts to assess. 9 We have a lot of information about a 10 very small set of facts, but I think we all 11 have to sort of -- at some point we are 12 going to have to go around and decide 13 whether we think this is conduct that 14 requires us to recommend some sanction, 15 without getting into the issue of what the 16 sanction is, or not. 17 MR. ALONSO: I think the chair 18 correctly framed the issues and I just want 19 to say that some of you have already 20 expressed some views on those issues in the 21 last 45 minutes or so, and I just want to be 22 clear for the record that no one has made a 23 final determination of what their view is or 24 what the consensus of the committee is or 85 1 what the vote is, so anything we have all 2 said previously, please tell me if you 3 disagree, is all just you folks hashing it 4 out as members of the committee. 5 Because you may -- it's a process, and 6 we may well come to an ultimate resolution 7 that is not exactly where you folks just 8 said, and that's just the nature of 9 committee work. 10 SENATOR SCHNEIDERMAN: Right, that's 11 fair. 12 Since we are sort of moving into the 13 last item on agenda anyway, what we wanted 14 to spend the bulk of our time on today 15 before you actually started that and this is 16 the final -- sorry, we skipped over 17 standards for censure, sanctions, so why 18 don't we do that first. 19 MR. ALONSO: Okay, so as I said I had 20 been asked by several members about 21 recommendation of sanctions short of 22 expulsion, we have already talked about 23 expulsion. 24 Obviously one possibility is to 86 1 recommend no action at all, that is 2 uncontroversial, doesn't require any legal 3 advice from me, you can do that. 4 You can also recommend, and I think 5 this is also relatively uncontroversial, you 6 can recommend a censure which is a public -- 7 that the Senate issue a public resolution of 8 condemnation of conduct, that's a censure. 9 And you could also issue or recommend 10 that the Senate issue a censure plus some 11 other consequences, like, for example, 12 stripping somebody of their Chairmanships, 13 stripping somebody of the additional 14 compensation that comes with that. 15 MR. LEWIS: Senator. 16 MR. ALONSO: Some other legislators 17 have stripped people of seniority, the 18 Senate doesn't really have a seniority based 19 system, does it? 20 SENATOR SCHNEIDERMAN: Not in a 21 formal sense. 22 MR. ALONSO: So there is precedent in 23 both the New York State Senate and the New 24 York State Assembly for the censure of 87 1 members, most recently in 2007 the Assembly 2 censured Assemblyman Mike Cole by letter for 3 fraternizing with an intern, and that was a 4 public statement of disapproval of his 5 actions. 6 The Senate censured Senator Richard 7 Schemerhorn in 1973, that was, I believe, 8 ultimately withdrawn, is that correct? 9 Yes, ultimately it was withdrawn 10 because they were acting on misconception of 11 the facts, but that was the last time the 12 Senate censured a Senator. 13 The court that dealt with the 14 defamation action that followed incorrectly 15 said that that was the first time in the 16 Senate's history that it had ever censured a 17 Senator. 18 In fact, we found a New York Times 19 report in 1892 that the Senate censured 20 three separate New York State Senators for 21 refusing to vote on a particular matter. 22 Whether that's a grounds for censure or 23 not is not an issue for you folks, but at 24 least since the 19th century Senators have 88 1 been censured, and most recently in 1973. 2 MR. LEWIS: Actually in the Senate 3 rules the power to do that is in the Senate 4 rules, because you cannot not vote. 5 MR. ALONSO: Finally you may remember 6 the Lipschitz report in the Assembly the 7 Gerty Lipshitz report and you may recall 8 that counsel at least disagrees with the 9 conclusion that the Assembly was without 10 power to expel Assemblywoman Lipshitz, we 11 believe that they were, and I have explained 12 the reasons why previously. 13 However, even that body which believed 14 itself or at least the Ethics Committee of 15 the Assembly which believed the Assembly was 16 without power to expel did recommend 17 Assemblywoman Lipshitz's censure and 18 stripping her of all sorts of perks of her 19 tenure in the Assembly. 20 MR. LEWIS: Which was passed. 21 MR. ALONSO: No, no, it wasn't 22 passed, she resigned. 23 SENATOR STAVINSKY: She resigned and 24 she is alive and well living in Florida. 89 1 MR. LEWIS: The committee also 2 drafted a resolution of censure as part of 3 its report. 4 MR. ALONSO: So, I think it's 5 noncontroversial to make a statement of 6 censure, to take away privileges of 7 membership and you have that as an option, 8 and I think that one, it could be an option 9 that you provide two options to the full 10 Senate in your report, but that's getting a 11 little bit ahead of myself. 12 SENATOR SCHNEIDERMAN: Okay, thank 13 you. 14 MR. LEWIS: Just one thing you need 15 to know, the Lipshitz report claims to not 16 have the power of expulsion, in no way or 17 ever addresses the section of legislative 18 law that accords the legislature the power 19 of expulsion, doesn't even refer to it. 20 MR. ALONSO: We have gone over that 21 before. 22 MR. LEWIS: Not everyone might 23 remember. 24 SENATOR SCHNEIDERMAN: I think this 90 1 will not be a matter for the committee, but 2 to the extent there is a challenge to the 3 Senate's ability to expel in this or any 4 other case, it's going to really go to the 5 Constitutionality of the Legislative Law 6 Section 3. 7 The law couldn't be clearer, that's an 8 issue for another body and another day. 9 MR. ALONSO: But I would advise that 10 we include in the report to the Senate the 11 basis for the authority, if that's what the 12 full Senate wants to do. 13 SENATOR SCHNEIDERMAN: Correct. 14 MR. LEWIS: And also the inherent 15 power of the body to protect itself, which 16 -- 17 SENATOR SCHNEIDERMAN: So, maybe we 18 can take a -- what I want to do next is 19 really go through the last section or the 20 last attachment in the handout from counsel 21 for today's session, walk through the draft 22 outline for the final report, and hopefully 23 at least come to the agreement amongst 24 ourselves as to the agreement as to the 91 1 draft outline, discuss a little bit what we 2 think is going to go into the -- our 3 recommendation, and then counsel can get to 4 work drafting up the report so that we have 5 time to review it and edit it and everything 6 else before the end of the year. 7 Before we do that, though, there has 8 been a request made for everyone to -- I'm 9 sort of surprised at the results, for 10 everyone to check their availability for a 11 meeting on December 29th, and apparently 12 everyone says they are available. 13 SENATOR STAVINSKY: Asked me. 14 SENATOR HASSELL-THOMPSON: I'm not. 15 I'm not. I'm going to be in Virginia. 16 SENATOR ALESI: It's unlikely I would 17 be available. 18 SENATOR SAVINO: I have a meeting at 19 1:00. 20 SENATOR SCHNEIDERMAN: 29th. 21 SENATOR HASSELL-THOMPSON: I'm not 22 here. 23 SENATOR SCHNEIDERMAN: So Toby, yes. 24 SENATOR STAVINSKY: I'm not available 92 1 on the 30th or 31st. 2 SENATOR HASSELL-THOMPSON: I have a 3 95 year old aunt I have not seen in a year 4 and every time I planned the trip we have 5 been called back to Albany, so I am -- at 95 6 I'm not taking any chances, thank you. 7 SENATOR SCHNEIDERMAN: All right. 8 Well, if pretty much everyone is available, 9 we may try to convene something here, just 10 to finish this up. 11 We also do have the ability to have a 12 meeting where some of the people are in 13 Albany and some of the people in the City 14 with our video conferencing system, we 15 actually have a very good one now. 16 MR. ALONSO: We are also available 17 if, say, one or two Senators were to be 18 absent that day, and I understand there is 19 at least one concern, we have the ability 20 separately to brief that Senator and make 21 sure she or he is fully up to speed, and we 22 will make ourselves available for that. 23 SENATOR SCHNEIDERMAN: Let's make to 24 the extent prior meetings, we will let you 93 1 all know, I think it would be a good idea 2 for us to have a meeting, if we can, after 3 the report has been circulated, and we have 4 had comments for us to finalize it. 5 If we are satisfied with where we are, 6 to vote on passing the report along, if not, 7 to identify what very hopefully very narrow 8 outstanding issues remain. 9 So we are going to do what we can to 10 try to organize that with regard to the 11 holiday season and everyone's schedule. 12 I am going to suggest now that we break 13 for a moment and then come back to discuss 14 the outline of the report, and one or two 15 other things we have to address and 16 hopefully get out of here before much longer 17 today. 18 (At this point in the proceedings 19 there was a recess, after which the 20 proceedings continued as follows:) 21 SENATOR SCHNEIDERMAN: So, going back 22 on the record reconvening. 23 So reconvening with a view towards 24 giving some direction to our counsel's, the 94 1 draft outline for the final report is 2 attached here, and I just wanted to make 3 sure we get -- we are able to give our 4 counsels guidance as to what -- that we 5 agree on the draft outline and what -- and 6 flesh out a little bit of what we would like 7 them to draft for the report. 8 They could start drafting, obviously we 9 will get a chance to review the draft and 10 give our comments and probably best 11 directed, although anyone can talk to -- 12 committee members are all welcome to talk to 13 me or Senator Lanza any time, but comments 14 directed through us and to counsel probably 15 if you have specific questions are 16 appropriate. 17 I don't think that the first part of 18 the draft outline is particularly 19 controversial, but I want to give everyone a 20 chance to speak up. 21 We have an Executive Committee, it is 22 just what it says, overview of the 23 investigation, which I think starts with the 24 resolution just sort of laying out, again, 95 1 we are telling the story of what this 2 committee has done, what our scope of our 3 mandate is, what investigative steps we 4 took, and the drafting of the report. 5 The procedural history is really the 6 history of the underlying incident. 7 I'm not sure, I'm not sure that the 8 formation of the committee and scope of the 9 investigation needs to be in there, since 10 it's really, I would view it as being the 11 first part of the -- first dot under number 12 2. 13 MR. ALONSO: Agreed. 14 SENATOR SCHNEIDERMAN: And then the 15 Section 4 is really the evidence, and this 16 is the part where we do need to make some 17 decisions, obviously counsel will list what 18 evidence we looked at, I guess there is a 19 question as to what decisions we need to 20 make about inferences that we as a committee 21 draw from the evidence or conclusions we 22 come to. 23 SENATOR SAVINO: Wouldn't that come 24 after? 96 1 SENATOR SCHNEIDERMAN: Well, it 2 could. 3 SENATOR SAVINO: Investigation, 4 review of the evidence, review of the other 5 evidence, then review of any fact finding 6 and conclusions drawn by the committee, 7 wouldn't that make sense, to put it in that 8 order? 9 MR. ALONSO: I think that's how it 10 would ultimately be drafted. 11 I mean I think review of other 12 evidence, Grand Jury should probably be just 13 before review of fact finding, you are 14 right. 15 SENATOR SAVINO: Yeah. 16 SENATOR SCHNEIDERMAN: You are saying 17 the review of any fact finding and 18 conclusions drawn by the committee. 19 MR. ALONSO: After the other 20 evidence. 21 SENATOR SCHNEIDERMAN: That is the 22 last one, and that's where we have whatever 23 our conclusions are about the facts. 24 This is the fact finding, this is not 97 1 the recommendation, but this is -- and 2 frankly a lot of -- most of the members of 3 the committee have expressed at one point or 4 another that we have to draft this in a way 5 so that it's very clear that we are just 6 making -- we are explaining what we found, 7 we are making a recommendation in this very 8 specific case, and only for the purposes of 9 this specific case, we are not purporting to 10 set standards for anything else. 11 The conclusion that we draw about the 12 facts, I think we should talk about at least 13 briefly now and then I think the legal 14 authority is -- 15 SENATOR HASSELL-THOMPSON: In the 16 wrong place. 17 SENATOR SCHNEIDERMAN: Excuse me? 18 SENATOR HASSELL-THOMPSON: The legal 19 authority to investigate should be separated 20 from the sanction, and it should be right up 21 under the procedural history, because how do 22 you do the investigation? 23 How do an investigation without 24 establishing the authority for the 98 1 investigation? 2 MR. LEWIS: Should be two separate 3 topics. 4 SENATOR HASSELL-THOMPSON: And it 5 should be two separate topics. 6 SENATOR SCHNEIDERMAN: To investigate 7 and legal authority sanction. 8 MR. LEWIS: Our investigation comes 9 from one source, and our power. 10 SENATOR SCHNEIDERMAN: Yes, that 11 makes sense. 12 SENATOR HASSELL-THOMPSON: Of course 13 it does. 14 SENATOR SCHNEIDERMAN: So the legal 15 authority to investigate comes up at the 16 beginning. 17 SENATOR HASSELL-THOMPSON: Yes. 18 SENATOR LANZA: The sanctions stays 19 there. 20 SENATOR SCHNEIDERMAN: Okay, good. 21 And then the recommendation. 22 So in my view the two things that we 23 really have to discuss, because I think a 24 lot of this we have gone through and counsel 99 1 has presented to us, we have the authority, 2 we understand the time line that we have 3 gone through to get here, what the 4 investigative steps were that we took, the 5 legal authority to investigate I think is 6 very straightforward, the legal authority to 7 sanction is also fairly straightforward. 8 Really what the rest of the work of the 9 committee is for us to try to agree, or if 10 we can't agree, provide and I think it's 11 certainly preferred to have a consensus on 12 the report, again what we think about the -- 13 what conclusions we draw from the facts that 14 we reviewed about the conduct and the 15 circumstances that were included in the 16 misdemeanor conviction, the reckless assault 17 conviction and do we, essentially do we 18 think that that rises to the level of being 19 sanctionable conduct. 20 That really is what our threshold 21 decision is. 22 And again, Senator Monserrate has told 23 a story that there was an accident, they 24 were a loving couple, he was trying to take 100 1 her to the hospital and was very concerned 2 for her well-being and the judge, obviously, 3 did not find that was what was going on. 4 He found fairly explicitly that, 5 whether it was because there was an assault 6 rather than an accident, or not, that the 7 conduct, the way he treated her in the hall, 8 pulling her and dropping the towel, her 9 screaming was just inconsistent with that 10 story, and that the extra time it took for 11 him to get to the hospital and parking far 12 away and not calling 911, the whole totality 13 of the circumstances and facts led the judge 14 to conclude to reject Senator Monserrate and 15 Ms. Giraldo at least at trial's version of 16 the events. 17 So I think we have to make a 18 determination as to what we think about 19 that, because really the threshold question 20 for us is do we think this should be 21 sanctionable or not, and if we disagree with 22 the judge and we think this was someone 23 trying to get his girlfriend to the hospital 24 and acting in good faith, then I don't 101 1 really think that that would rise to the 2 level of sanctionable conduct. 3 So we do have to make that 4 determination about what we think about all 5 the facts that we have reviewed, and then 6 after that, if we think the conduct is 7 sanctionable, we have a decision to make 8 about what we recommend, how we recommend 9 the Senate take this up. 10 SENATOR FLANAGAN: Can I offer a 11 couple of quick observations, first, based 12 on some of what was discussed today I will 13 just speak for myself. 14 I would like to see those news 15 interviews before, and I know we are going 16 to go through a draft process, but before we 17 reach anything final, because in a way even 18 indirectly it's the only real opportunity 19 that we have to hear from Senator 20 Monserrate. 21 So, I think having the ability to 22 review that would be important. 23 And I would hope at some juncture, I'm 24 not sure where probably, but in the 102 1 investigation part that we delineate, even 2 if it's just on a chart of some sort, things 3 that were asked for that were not received. 4 SENATOR SCHNEIDERMAN: Yes. 5 SENATOR FLANAGAN: The facts at trial 6 are different, I would like if you are going 7 to have people look at this, these were the 8 17 or 22 things that we asked for, these 9 were the results. 10 MR. LEWIS: And the report should 11 reflect that we have given him the 12 opportunity two separate times to appear, 13 and also that we have asked for Ms. Giraldo. 14 SENATOR LANZA: Together. 15 SENATOR STAVINSKY: No cooperation. 16 SENATOR LANZA: Together with the 17 information that can be drawn that neither 18 he nor she decided to come before this 19 committee. 20 SENATOR HASSELL-THOMPSON: Right. 21 SENATOR LANZA: Given all the 22 unanswered questions and inconsistencies, 23 certainly something that could have been of 24 value to this committee, and I think there 103 1 is an inference that could be drawn in the 2 negative. 3 SENATOR SCHNEIDERMAN: Okay. So we 4 will get the TV clips out to you 5 immediately. 6 MR. ALONSO: Right away. There may 7 actually be transcripts of that, I will see 8 if I can get that. 9 SENATOR SCHNEIDERMAN: Although it's 10 worth it to watch. 11 MR. ALONSO: Yes. 12 SENATOR SCHNEIDERMAN: So, any other 13 agreements, disagreements, does this sound 14 like a good outline? 15 SENATOR STAVINSKY: I think it does. 16 SENATOR ALESI: Is there any previous 17 not directly related to this, is there any 18 previous behavior patterns that occurred, 19 and I know that they can't be brought into 20 the court, but we have broader parameters 21 here that we are unaware of that we could be 22 made aware of? 23 SENATOR SAVINO: There is a prior 24 assault charge, but -- 104 1 MR. LEWIS: We should be very careful 2 what we do. The parameters of the committee 3 is confined to this case and the facts 4 around the misdemeanor conviction. 5 Anything else from the record, Tacopina 6 said in sentencing that he has no other 7 criminal record, even if there was an arrest 8 it won't be fair game to consider it for 9 lots of reasons, but I think we should stick 10 with -- 11 SENATOR ALESI: I don't disagree with 12 that, but I think again we don't have to 13 follow the same rules as the court, and this 14 is about conduct of a member of the Senate. 15 Any conduct of a member of the Senate 16 in my view is at least worth knowing about 17 and discussing. 18 MR. ALONSO: I have to agree with Mr. 19 Lewis. 20 It's not that I disagree, Senator, and 21 there are, of course these things that are 22 kind of out there, had the Senator come 23 before the committee, perhaps we might have 24 asked him about his background, is it true 105 1 what your lawyer says that you've never been 2 arrested, that you don't have any issues 3 with -- no history of violence, I don't know 4 the answer to those questions, and I think 5 Mr. Lewis is right, that it's the better 6 part of caution not to consider those, since 7 that would be a whole ancillary 8 investigation that we haven't done, nor do 9 we have a mandate to do. 10 Likewise, that reminds me that I 11 mentioned a psychiatric issue last time when 12 I was presenting. 13 I want to make clear that I only did 14 that because it came up in the record of the 15 sentencing brought up by the District 16 Attorney, that was just by way of 17 explanation, I am in no way suggesting that 18 you consider the circumstances of which he 19 left the police department when you make 20 your recommendations here. 21 SENATOR STAVINSKY: Wouldn't that 22 have been included in any probation report? 23 MR. ALONSO: It apparently was 24 included, which is why it was mentioned on 106 1 the record, we don't have the probation 2 report, nor do we have the right to get it, 3 so that's probably why it came up and that's 4 why I raised it last time. 5 For no other reason. 6 SENATOR SCHNEIDERMAN: So, I think 7 that he again we have -- the good news and 8 the bad news is we have a narrow mandate, we 9 are supposed to inquire into the facts and 10 circumstances relating to the misdemeanor 11 conviction and make a recommendation. 12 We will be distributing the memo to all 13 the members, brief memo because we had a 14 request for this to clarify the relationship 15 between what the committee does and what the 16 Senate does as far as legal authority, which 17 is important for us to make clear to our 18 colleagues and anyone else who is asking, 19 because there is a lot of confusion out 20 there and a lot of folks may be lobbying, 21 you saying your committee should expel him, 22 our committee doesn't have the power to 23 expel, we will not expel, we are making an 24 inquiry into the facts and circumstances of 107 1 the conviction and we make a report and 2 recommendation and then the Senate has to 3 vote, and the Senate under the law has the 4 power to expel, but that's not an issue, 5 that's really not an issue for this 6 committee how that vote, when and how, if 7 that vote takes place. 8 So if the rest of this seems to be 9 sensible enough, subject to the editing and 10 suggestions of counsel which I have kind of 11 tried to mark up and counsel we can go over 12 after we are finished, in my view the only 13 two areas where we really need substantial 14 input are some guidance as to the review of 15 fact finding and conclusions drawn by the 16 committee and then the recommendations. 17 As far as the review of fact finding, 18 it really has to do very simply put do we 19 accept the story of what was happening, what 20 the context was for this conduct that led to 21 the misdemeanor conviction that Senator 22 Monserrate has put forward, or do we find 23 ourselves essentially agreeing with the 24 judge and taking the view that this was not 108 1 a good faith conduct of someone after an 2 accident concerned with -- who's primary 3 concern was an injured loved one. 4 So that really is, from my point of 5 view, the threshold question as to -- and 6 the answer to that question really tells us 7 whether or not we would recommend if this is 8 sanctionable conduct. 9 I would urge that our standard for this 10 or our rationale for this is not tied to and 11 the resolution does not tie it to the fact 12 of a misdemeanor conviction. 13 There is no way the resolution should 14 be interpreted as indicating that 15 misdemeanor convictions in and of themselves 16 are the basis for a sanction. 17 Because otherwise we wouldn't need a 18 special committee to inquire. 19 It's the conduct and the nature of the 20 conduct and the circumstances surrounding it 21 and the fact that they have presented a 22 story, which for me I don't find credible, 23 and I think that the issue about her 24 credibility I think is for me pretty 109 1 straightforward. 2 I don't think, it does not appear that 3 she was telling the truth, that's something 4 that I take into account in assessing this. 5 But I want to make sure, see if we have 6 any sort of agreement or if there is a 7 suggestion for what we might think about our 8 view of those events. 9 Do we think this is sanctionable 10 conduct or not, and that's really the most 11 essential fact finding we have to make. 12 Different people may have different 13 facts that influence them more strongly than 14 others, but that's really sort of the heart 15 of the committee's work. 16 So -- 17 SENATOR FLANAGAN: On that point, it 18 would seem to me you almost want to 19 bifurcate this in a way, that you start off 20 with, at least in my own head, here is 21 everything that we looked at, and it seems 22 to me that is mostly what the investigation 23 section should come down to. 24 I don't know that in that part that we 110 1 need to make qualitative differentiations 2 other than to say we had available at our 3 disposal Grand Jury minutes, correspondence 4 back and forth between and amongst the 5 counsels, that seems to me it should be more 6 recitation of what we had a chance to look 7 at, either simply or in great detail. 8 And that if there is going to be the 9 meat, that should probably be more in the 10 recommendations, whatever they may be. 11 SENATOR SCHNEIDERMAN: But when we 12 recite the evidence, should we note the 13 inconsistencies or should we discuss what 14 our conclusions were about the evidence, or 15 just list sort of what we reviewed? 16 At some point we are going to have to 17 discuss the evidence, and say something 18 about it. 19 MR. ALONSO: I suggest the review of 20 the evidence be sort of like the first time 21 I presented the evidence to the committee, 22 very sort of neutral, dispassionate, this is 23 what one side says, this is what the other 24 side said, and the fact finding and 111 1 conclusions drawn should be a subsequent 2 section which would be more like last 3 meeting, where we started to come to the 4 tentative conclusion, and I don't want to 5 speak out of turn, but the tentative 6 conclusion that what Senator Schneiderman 7 just said, that her version of events is not 8 credible and his story, such as it is, also 9 does not tell the whole story, and if that's 10 what we get, a consensus on that, would be 11 in the next section, then there would still 12 be a later section which says okay, that's 13 the evidence, that's the fact finding, here 14 is our recommendation or recommendations as 15 the sanctions -- as the resolution says we 16 should do. 17 SENATOR HASSELL-THOMPSON: I am 18 concerned now. 19 If we are saying that her testimony is 20 not credible, what bearing does that have on 21 whatever conclusion we come to? 22 What's the correlation? 23 SENATOR SCHNEIDERMAN: Well, 24 essentially it's the decision of what we 112 1 think was happening on this videotape, what 2 we think happened in the conduct that forms 3 the basis for the conviction for misdemeanor 4 assault. 5 Do we think this is -- that the judge 6 was wrong and this was just a guy trying to 7 help someone get to the hospital, and then 8 as she said in the first Grand Jury 9 statement, we weren't fighting, we weren't 10 arguing, it was okay, or do we think this is 11 something that's more like someone who 12 people who are not getting along and that 13 she was in fear and she's trying to get away 14 from him. 15 It's really that question, the 16 credibility. 17 If we credit her testimony it's very 18 hard to find that anything untoward was 19 going on. 20 So in my view I think either explicitly 21 or implicitly we either buy what she had to 22 say, or we don't. 23 SENATOR LANZA: Which, said another 24 way, if you don't believe the Senator, then 113 1 you can't believe her. 2 MR. ALONSO: And if you don't believe 3 her, there is a conclusion that flows from 4 that. 5 SENATOR STEWART-COUSINS: So your 6 first question was whether or not we agree 7 with the judge who actually calls into 8 question the credibility or not, which is 9 what you -- 10 SENATOR SCHNEIDERMAN: Right, I am 11 just saying it a little bit obliquely, 12 because, again, I don't think the standard 13 for this committee is to say oh, we agree 14 with the judge, we don't agree with the 15 judge. We are making our own assessment, 16 but the fact that the judge found this is 17 something we can note. 18 But I'm just using that for shorthand, 19 that the judge had a view of what happened, 20 they had a different story and the 21 prosecution essentially supported that they 22 had a different story, and we have to make a 23 decision of what we think happened. 24 SENATOR ALESI: I don't think -- my 114 1 view, I don't think we really can ever say 2 that we don't agree with the judge, because 3 he was working on a different playing field 4 with different rules. 5 I think it would be dangerous for us to 6 say that we don't agree with the judge, I 7 think we are just simply taking it from an 8 in-house approach. 9 MR. ALONSO: Just so long as you 10 understand you have the authority to 11 disagree with the judge, there is no 12 requirement that you do. 13 SENATOR ALESI: Right, but I don't 14 think we have to exercise that as far as 15 stating a public opinion. 16 SENATOR STEWART-COUSINS: No. 17 SENATOR ALESI: I think that it would 18 be best for us if we didn't state that we 19 disagree with the judge, because then that 20 might compel us to take a more aggressive or 21 less aggressive actions and the possibility 22 exists that we could just really -- this 23 goes back to what you were saying before 24 about two houses or two branches. 115 1 My view, I just avoid saying we don't 2 agree with the judge. 3 SENATOR SAVINO: I don't think that's 4 going to happen. 5 SENATOR ALESI: Pretty much a 6 foregone conclusion. 7 MR. LEWIS: An observation, I think 8 we should take from what the judge said 9 those things that are of -- that we can find 10 ourselves, we should also be clear that we 11 are using that, as well as opposed to 12 agreeing or disagreeing with him, because 13 the standard is reasonable doubt, there is 14 no reason for us to agree with him, that's 15 not our standard, but we can certainly take 16 from that the facts and some of the 17 conclusions because we can come to the same 18 conclusions. 19 Senator Hassell-Thompson, your question 20 has the core of something very important in 21 it and that is if you find her not credible 22 what's left, which is what I think the 23 nature of the question is. 24 SENATOR HASSELL-THOMPSON: Yes. 116 1 MR. LEWIS: When you line up all the 2 versions, if you can not be comfortable with 3 what she says as being true, you can 4 basically find that she has not been 5 truthful about the surrounding 6 circumstances. 7 What that means is that it leaves you 8 with your own ability to judge what you see, 9 because you have no evidence in which to 10 rely on from one of the participants. 11 So the videotape and all the material, 12 the documents, all of that are available for 13 you to come to your own conclusion, you can 14 reject her testimony without being left with 15 nothing. 16 It just sounded like you were asking 17 what's left. 18 SENATOR HASSELL-THOMPSON: I was 19 asking what's left, because -- 20 MR. LEWIS: There is a lot left, it's 21 just -- 22 SENATOR HASSELL-THOMPSON: Tell me 23 what's left, Lewis. 24 MR. LEWIS: What's left is the 117 1 videotape, the videotapes, what's left is 2 the testimony of the doctors and the 3 hospital records about the surrounding 4 circumstances of how she got hurt and the 5 nature of the wound, which shows how deep it 6 was and how much blood there was. 7 The physical photographs in the 8 apartment, the torn T-shirt in the garbage 9 that has no blood on it, that may be 10 evidence of some sort of fight. 11 The clothing, other clothing around the 12 room, the placement of the glass, the broken 13 glass, all those events, that's one. 14 The neighbor who hears the commotion, 15 or whatever she calls it, chaos, that same 16 neighbor who gets the ringing -- the 17 multiple rings on the bell when we see her 18 go there away from him. 19 That's all I can do off the top of my 20 head. 21 SENATOR LANZA: The Grand Jury 22 testimony, the videos. 23 MR. LEWIS: The Senator asked what's 24 left if you take out her testimony. 118 1 SENATOR HASSELL-THOMPSON: Because 2 the testimonies are so conflicting how can 3 you accept any of her testimony? 4 MR. LEWIS: If you don't -- 5 SENATOR SCHNEIDERMAN: We don't have 6 to. 7 MR. LEWIS: You don't have to. 8 SENATOR HASSELL-THOMPSON: That's the 9 whole point, because there is nothing 10 credible. She tells the triage nurse that 11 he took a piece of glass and cut her. 12 Not cut her with the glass, took a 13 piece of glass and cut her. 14 That's what she says. 15 MR. LEWIS: That's what the triage 16 nurse reports herself. 17 SENATOR HASSELL-THOMPSON: That's 18 what the triage nurse reports her saying. 19 She then denies it. She denies that. 20 SENATOR STAVINSKY: At the time when 21 she says he was acting crazy. 22 SENATOR STEWART-COUSINS: He's crazy. 23 SENATOR HASSELL-THOMPSON: I want to 24 go back to the crazy, because the crazy says 119 1 to me, she pretended that she was not upset 2 about what he did with the PBA card. 3 I submit to you that her body language, 4 now you want to go to the tapes, I am good 5 at tapes, and her body language in the tapes 6 says to me she was pissed. 7 She was absolutely pissed. But she 8 says they were calm, they had this 9 discussion. 10 SENATOR STEWART-COUSINS: A little 11 sad. 12 SENATOR HASSELL-THOMPSON: This 13 exchange, exchange, I mean, you know, there 14 was no hostility, there was no anger. 15 Bull diddley. She was pissed. 16 SENATOR STEWART-COUSINS: Of course. 17 SENATOR HASSELL-THOMPSON: And in 18 that anger she -- if she was angry about 19 that, when you're angry, what do you say? 20 He was crazy. 21 His behavior, which she described, was 22 his behavior which identified his being 23 crazy. 24 Yet she turns around and totally 120 1 contradicts that and says but I told you 2 from the beginning it was an accident. 3 I don't know why you keep asking me 4 these questions, you are trying to put words 5 in my mouth, this was an accident, I told 6 you it was an accident. 7 SENATOR LANZA: When someone presents 8 different stories that have facts which are 9 mutually exclusive, then one thing is for 10 certain, which is that you conclude there is 11 at least one story that's not true. 12 Whether or not there are any stories 13 that are true here or anything that she's 14 saying is true, you know, is the subject of 15 this debate. 16 But we know that there is at least one 17 story that's not true that she's given. 18 SENATOR HASSELL-THOMPSON: But you 19 said fight, now how are you defining fight? 20 Because we have been describing what 21 possibly took place as she got beat down, in 22 my neighborhood it's called beat down. 23 Torn T-shirt stuff, there was a fight 24 in there, and I'm not clear who got -- 121 1 MR. LEWIS: The worst of it. 2 SENATOR HASSELL-THOMPSON: Well, she 3 did, obviously, because she came out 4 bleeding. 5 MR. LEWIS: We see that. 6 SENATOR HASSELL-THOMPSON: She came 7 out with cuts and whatever. 8 But there was definitely a lot of 9 hostility, and I'm just trying to figure out 10 at what point who prompted, because there 11 was some prompting and that's the part 12 that's really disturbing me. 13 MR. LEWIS: It's clear that they want 14 to get married, they both want to get 15 married. 16 SENATOR HASSELL-THOMPSON: A man cuts 17 me in the face and I tell you he's crazy and 18 I want to marry him? 19 MR. LEWIS: I'm not responsible for 20 her decisions, I'm merely reporting what 21 they have both said and she has said in open 22 court. 23 SENATOR HASSELL-THOMPSON: Yes. 24 MR. LEWIS: That may give her a 122 1 motive to fabricate a new story at the time 2 she testifies. 3 Whatever relationship -- 4 SENATOR HASSELL-THOMPSON: He could 5 buy her a washing machine. 6 SENATOR STEWART-COUSINS: I know. 7 SENATOR SCHNEIDERMAN: I think for 8 our purposes here, though -- I'm sorry, 9 Senator Stewart-Cousins. 10 SENATOR STEWART-COUSINS: I think we 11 were just going around to, again, the 12 beginning, and I repeated what you said, 13 because I think at the end of the day what 14 happened in the courtroom is different in 15 many levels from what's happening here, at 16 the end of the day since you have all these 17 things that are consistent, at the end of 18 the day you have what you have, which is are 19 all the things that counsel has said that we 20 have, and then you have common sense, and I 21 think that we have to reach some 22 conclusions, obviously, based on what we 23 have been given, and all the things that you 24 are talking about, all the things we have 123 1 all been talking about is just the fact that 2 in normal logical sequence a lot of these 3 things wouldn't have happened. 4 SENATOR HASSELL-THOMPSON: That's 5 right. 6 SENATOR STEWART-COUSINS: So 7 therefore we have to draw on our resources, 8 in addition to this report to come to a 9 conclusion and be comfortable enough with 10 what we know having been through a range of 11 experience, what we have in terms of real 12 tangible evidence. 13 Obviously what the court decided, and 14 then decide based on that. 15 So I think that's what we have, we have 16 our common sense and our ability to put that 17 in a document. 18 SENATOR STAVINSKY: I think we also 19 -- we don't have to determine whether or not 20 he's guilty or innocent of the actions that 21 led to his conviction, that's already been 22 determined. 23 It's already been adjudicated in a 24 court of law. 124 1 He's guilty with respect to that 2 assault charge. 3 I think for us, we go through the whole 4 discussion of the analysis of the testimony, 5 the inconsistencies and we can cite all of 6 those things, but at the end of the day it's 7 the action that he was ultimately convicted 8 of, we have to determine whether or not his 9 actions at that time render him fit or 10 unfit, should he be sanctioned or not 11 sanctioned, what that sanction should be. 12 It's already been determined that the 13 evidence was inconsistent, testimony was 14 inconsistent and the judge did not believe 15 that he was, in fact, trying to help her to 16 the hospital. 17 It's already been established, we are 18 not rewriting that or retrying that. 19 SENATOR SCHNEIDERMAN: We -- 20 MR. LEWIS: Except the legal standard 21 is different. 22 SENATOR HASSELL-THOMPSON: You are 23 talking about a legal standard. 24 MR. LEWIS: Legal standard of the 125 1 judge making the decision. 2 SENATOR SCHNEIDERMAN: I think 3 Diane's point is that our job is to review 4 the same sets of circumstances and determine 5 if we think this conduct is egregious enough 6 that we should recommend a sanction. 7 SENATOR SAVINO: Right. 8 SENATOR SCHNEIDERMAN: That's our 9 job. 10 And I think that the issue of the 11 credibility comes into it quite clearly 12 because look, as Senator Lanza said, we know 13 one story is not true. 14 If we see everything and it appears to 15 be there is fighting, there is the thump, 16 there is the videotapes of throwing out the 17 PBA card, the body language of pulling her 18 down the stairs, whatever each of us thinks 19 about the failure of 911, the passing of the 20 other hospitals, not going to the emergency 21 room, whatever that totality of 22 circumstances tells us, she then, we know, 23 started to tell a story, not that night, but 24 started to tell a story thereafter that was 126 1 inconsistent with the idea that he had 2 assaulted her, they were fighting or they 3 had trouble. 4 And I think that if we find that there 5 are inconsistencies so that we don't really 6 credit her, the stories she told the Grand 7 Jury and then even though they were changing 8 that, she told at trial to a certain extent, 9 I think that leaves us with the ability to 10 put that aside and use our common sense to 11 determine, as Senator Stewart-Cousins says, 12 whether we think this conduct, this is what 13 the findings were, is something that we 14 think needs to be sanctioned, and I think 15 that's sort of the threshold decision. 16 I do think we, in the section that 17 reviews the evidence, we should let the 18 counsels, let counsel note the 19 inconsistencies and note this sort of thing, 20 and then I think it's up to us to decide 21 what conclusions we draw from that. 22 Is there a consensus that we don't 23 really credit her later versions of the 24 story, because that's kind of an important 127 1 decision for us to make. 2 SENATOR HASSELL-THOMPSON: It's the 3 crux of it, because -- it's the crux of it 4 to me. 5 Part of what we have established at 6 least -- let me backup, take out the plural. 7 Part of what seemed evident to me was 8 that there was an atmosphere of anger, and 9 whatever, that we bought into, so in that 10 kind of environment anything could have 11 happened. 12 And from that context, from what we -- 13 coming with that context and then looking at 14 the video, we can superimpose some sense on 15 what we saw. 16 His behavior overall does not lend 17 itself to what I would consider to be 18 acceptable behavior of anybody towards 19 someone who is injured. 20 And that's without title. I mean you 21 want to talk about titles, how you are fit 22 to serve, that's not even -- to me that's 23 not where the question really is. 24 And maybe that behavior then may give 128 1 you pause to think that maybe because of 2 that kind of behavior he's not fit to serve. 3 But he's demonstrated, from what we can 4 gather, regardless as to what her testimony 5 is, just take her testimony out of it, just 6 look at the video, if you go to the video 7 only, that we don't see anything that gives 8 us to believe that her health, her condition 9 is his first thought and consideration. 10 And it has nothing to do with whether 11 it took him ten minutes or 30 minutes to get 12 to the hospital, because he chose that 13 hospital. 14 But it has to do with a compilation, I 15 guess, of his whole total lack of affect in 16 this whole thing. 17 SENATOR LANZA: I just -- if I could, 18 a couple of things without being hopefully 19 unnecessarily redundant with respect to the 20 judge and the conviction, I think that it is 21 a source of information for us that can help 22 us together with all the other facts and 23 evidence inform our decisions here. 24 Just to, I think, clarify what exactly 129 1 the judge did say, the judge didn't say that 2 he convicted because the Senator did not 3 want to get her to the hospital. 4 In fact, he did get her to the 5 hospital. 6 What he convicted on was based upon the 7 fact that he recklessly delayed getting her 8 to the hospital, which contributed toward 9 the exacerbation of the pre-existing injury, 10 and perhaps some new injuries, and that's 11 something that I think it helps us inform us 12 of. 13 The issue of fitness to serve, you 14 know, it's a touchy subject for me. 15 I'm of the mind that the only -- that 16 the ultimate arbiter of fitness to serve 17 really are the electorate, the people who 18 vote. 19 SENATOR HASSELL-THOMPSON: That's 20 right, is constituents. 21 SENATOR LANZA: While I, perhaps, 22 second guess that more often than I should 23 with respect to their decisions in other 24 districts, and sometimes in my own, that's a 130 1 touchy subject for me, and when it comes to 2 affects or capacity, people act differently, 3 we all have our own different standards, and 4 to start to get into whether or not -- I 5 just think that's -- I couldn't make a 6 decision based on whether or not he acted 7 the way I would act or expect someone to 8 act. 9 But when you look at the 10 inconsistencies in the stories and the lack 11 of truthfulness, the lack of cooperation, 12 the fact of the conviction, so I do think 13 this committee needs to concern itself with 14 whether or not we believe what happened or 15 didn't happen and try to make a decision 16 based on that as opposed to just this 17 general he didn't seem like he cared about 18 her enough. 19 SENATOR SCHNEIDERMAN: I think it's 20 also -- Senator Lanza raises a very 21 important point, which is you are also 22 allowed to take into account, if you think 23 there was a lack of truthfulness, that in 24 and of itself is another factor. 131 1 SENATOR STAVINSKY: That is part of 2 the pattern, yeah. 3 SENATOR ALESI: But that is the 4 question that you asked, is there consensus 5 here that she was completely contradicting 6 or is completely inconsistent in her 7 answers. 8 SENATOR STEWART-COUSINS: Yes. 9 SENATOR ALESI: I would like to know 10 if the committee wants to answer that 11 question; my answer would be yes. 12 SENATOR STEWART-COUSINS: Yes. 13 SENATOR SAVINO: Does anyone think 14 she's not? 15 SENATOR ALESI: That leads me to a 16 question, which is what is the reason for 17 the inconsistencies or the contributions and 18 when did it begin, did it begin when she was 19 given an Affidavit that was hand-drafted by 20 his staff member? 21 Did it begin at some point where she 22 might have been intimidated or coerced or 23 what? 24 Or is she just confused over the 132 1 issues? 2 In answer to your question I would say 3 yes, that obviously she is contradicting 4 herself left and right, and it's very 5 inconsistent, but that just leads me to ask 6 those questions, what the nature of the 7 inconsistencies were and why, is she 8 intimidated or coerced or what? 9 SENATOR HASSELL-THOMPSON: Because I 10 used the word coached. 11 SENATOR ALESI: Obviously we have no 12 hard evidence. 13 SENATOR HASSELL-THOMPSON: That's why 14 I was hoping she would come. 15 SENATOR STAVINSKY: I think 16 motivation is really the key for us to try 17 and determine for both, what motivated her 18 to change her story, was it her fear of your 19 loss of love, was it her fear that she was 20 going to get him in trouble? 21 What, what was it, and the same thing, 22 I think, holds true for him, we have to 23 determine as we said, it's already been 24 determined by a court of law that he's 133 1 guilty of reckless assault because he took 2 longer than he should have to get her to the 3 hospital. 4 MR. ALONSO: In part because of that. 5 SENATOR SCHNEIDERMAN: In part. 6 MR. LEWIS: There is more to that 7 finding than just that sentence. 8 SENATOR SCHNEIDERMAN: It's also the 9 way he pulled her across. 10 SENATOR SAVINO: But what motivated 11 him to take that action? Was it concern for 12 himself and a lack of concern for her? 13 It's all about motivation. 14 MR. LEWIS: I think you have to make 15 a finding without ever hearing from him, and 16 based on what you can draw from what you see 17 and without hearing from her in any form 18 except where she's given inconsistent 19 statements. 20 SENATOR SAVINO: That's what makes it 21 harder for us, because one, we have no 22 statements from him other than what he's now 23 saying in the news media. 24 MR. LEWIS: There is a statement from 134 1 Dr. Froegel in which he says it was an 2 accident. 3 SENATOR SAVINO: That was hearsay, 4 right, David? 5 MR. LEWIS: But. 6 SENATOR SAVINO: He's never 7 testified. 8 MR. LEWIS: One thing at a time. 9 SENATOR LANZA: What Senator Savino 10 is saying is he didn't come before this 11 committee. 12 SENATOR SAVINO: Did he go before the 13 Grand Jury? 14 MR. ALONSO: No -- yes, but we don't 15 have that testimony. 16 SENATOR STAVINSKY: Did he go before 17 the Grand Jury? 18 SENATOR SAVINO: We don't have any 19 testimony. 20 MR. ALONSO: The conduct of hearsay, 21 Senator, doesn't really apply here, because 22 first of all we are allowed to consider 23 hearsay, second of all it's all hearsay. 24 SENATOR SAVINO: What I'm saying, 135 1 Dan, we don't really have any direct 2 testimony from him that we can read, we have 3 no direct statements from him that we are 4 allowed to see, with the exception of what 5 he's now saying on the news. 6 MR. ALONSO: And what he said at the 7 sentencing. 8 MR. LEWIS: And what he said at the 9 sentencing. 10 SENATOR SCHNEIDERMAN: I think, just 11 -- let's distinguish sort of motive in the 12 sense of, we are never going to get inside 13 her head and figure out if it's more fear or 14 love or whatever. 15 If she made a determination to 16 fabricate a story, from our point of view, I 17 think the significant thing is she certainly 18 doesn't appear to be fabricating a story to 19 make it sound worse than it was, she is 20 trying to -- she's fabricating a story to 21 try and get him out of trouble. 22 SENATOR STEWART-COUSINS: Get him off 23 the hook. 24 SENATOR SCHNEIDERMAN: Whether it's 136 1 more fear, intimidation or true love, it 2 doesn't really matter. 3 SENATOR ALESI: Or this gives her 4 tremendous leverage over him as well, I 5 think it should be considered. 6 SENATOR STEWART-COUSINS: Can I -- 7 let me just, then I will stop. 8 SENATOR ALESI: You are shaking your 9 head. 10 SENATOR SCHNEIDERMAN: I hear you. 11 SENATOR ALESI: It's a possibility, 12 she doesn't appear to be very stable in a 13 lot of ways, I'm not saying that's a case, 14 it's worth considering. 15 SENATOR STEWART-COUSINS: I'm just 16 remembering what brought us here, and what 17 brought us here was this resolution, and the 18 resolution was very clear in terms of why 19 this, above every other, why now, despite 20 any other. 21 And what that was, what I remember of 22 the resolution was about domestic violence. 23 I think it's important that when we 24 reconstruct our lives and we reconstruct it 137 1 with that context because all the kinds of 2 things that we are talking about, I think 3 again we know are really consistent many 4 times in these kinds of cases. 5 The same thing we were just talking 6 about, well maybe you buy me a washing 7 machine, these are not inconsistent with 8 these types of cases, and that's the 9 reality. 10 We are here because according to the 11 resolution it's a very specific thing and 12 domestic violence was part of it. 13 So we cannot suspend everything that we 14 know about behaviors in that context. 15 SENATOR SAVINO: That's true. 16 SENATOR LANZA: And that's a great 17 point, authority, and that should be part 18 of, I suggest, part of the report, the 19 nature of the underlying issue here, I think 20 that needs to be described as part of the 21 concern here, and I think it's also part of 22 the difficulty, at least for me, and I think 23 for everyone, why we are struggling with 24 respect to the victim here is because at the 138 1 end of the day what is suggested is that 2 she's a victim and, you know, you don't want 3 to disbelieve a person who at the end of the 4 day you are ultimately trying to protect. 5 But the fact of the matter is, as 6 Senator Stewart-Cousins said, in these types 7 of cases it is, perhaps, because of the 8 psychological dynamic par for the course. 9 SENATOR FLANAGAN: I want to 10 follow-up and I hope I am going to be 11 consistent. 12 We are speaking a lot about Ms. 13 Giraldo, I'm not particularly comfortable 14 with that on the consensus question, do we 15 think she's telling the truth? 16 I think there is a lot of 17 inconsistencies, but do I think she loves 18 him? Yeah, I do. 19 Do I think she's smart for doing that? 20 That's not really relevant. 21 But there is so much focus on her as it 22 relates to domestic violence that is 23 absolutely something that is worthy of 24 consideration. 139 1 But I want to make sure as we are 2 moving ahead and as we are reporting that 3 this is about Senator Monserrate, not about 4 someone who may be in love with him, but 5 what did he do and what were the actions 6 that he took with much more specificity as 7 opposed to making her the focal point. 8 MR. ALONSO: I can assure you that's 9 how we are going to write it, but I think 10 that the focus on her is more because we 11 have to look at all the facts and 12 circumstances and make an inference as to 13 what's going on with him, what was his 14 motivation, and her statements are much more 15 in evidence than his statements. 16 I mean his statements are measured and 17 few and short and counselled and very late 18 in the day. 19 So I agree with you, absolutely the 20 focus will be in the draft report that we 21 produce to you what are his actions, what 22 are his statements. 23 SENATOR FLANAGAN: Again, I will go 24 back to something I said before, if I'm 140 1 looking at behavior of Senator Monserrate, 2 it's the totality of the circumstances, 3 there are things he did affirmatively, and 4 the things he did by omissions. 5 MR. ALONSO: Yes. 6 SENATOR FLANAGAN: And the lack of 7 cooperation. 8 SENATOR STAVINSKY: I was going to 9 make that very same point, I agree with you 10 completely, that we are trying to determine 11 state of mind of Ms. Giraldo and contrast 12 that with the known actions of Senator 13 Monserrate, far more sophisticated, he's on 14 message, he's doing exactly what he's 15 supposed to be doing in terms of protecting 16 himself. 17 And I think we see a pattern through 18 her testimony, a pattern emerges of somebody 19 who may not have been totally candid with 20 us. 21 But on the other hand, it's not about 22 the girlfriend, it's about the Senator, 23 because if it were only about the 24 girlfriend, about Giraldo, we wouldn't be 141 1 here. 2 But it's about Senator Monserrate. 3 SENATOR SCHNEIDERMAN: I think that's 4 right. 5 SENATOR STAVINSKY: I think that has 6 to be our focus. 7 SENATOR STEWART-COUSINS: Absolutely. 8 SENATOR SCHNEIDERMAN: I think we 9 just have to get over the hurdle of this 10 issue. 11 SENATOR STAVINSKY: She is 12 corroborating. 13 SENATOR SCHNEIDERMAN: She is 14 essentially his whole defense. 15 MR. LEWIS: She's the only one. 16 SENATOR STAVINSKY: The only one we 17 have got. 18 SENATOR STEWART-COUSINS: She's the 19 only reason we are here. 20 If there was no Ms. Giraldo, we 21 wouldn't be here. 22 SENATOR STAVINSKY: We wouldn't be 23 here. 24 SENATOR STEWART-COUSINS: So I mean 142 1 we can't ignore her. 2 SENATOR SCHNEIDERMAN: But I do think 3 that Senator Stewart-Cousins and others have 4 both mentioned this, and I think they are 5 right, the resolution creating this 6 committee does specifically refer to address 7 domestic violence, and the charges that were 8 related to domestic violence, and I think 9 that it is something that we should in our 10 report note that this is a factor in our 11 consideration, there is no secret to the 12 public, but this is part of why this 13 committee is here, and this is something 14 that the law is evolving in this area, but 15 it's clear what people's views on domestic 16 violence issues were 20 years ago are very 17 different than they are today, and hopefully 18 it will continue to evolve, but that's 19 something I think we should note, and I 20 think, Senator Flanagan, your point is well 21 taken, I think we get over the hurdle of her 22 story then we are down to, as what Mr. Lewis 23 said, what we can see in all the other 24 evidence that we have to look at. 143 1 I think that that enables us to make a 2 determination as to whether or not we think 3 the totality of his conduct leads us to 4 recommend to the Senate that there be some 5 sanction, without even getting to the issue 6 of what the sanction is. 7 SENATOR HASSELL-THOMPSON: I think 8 the strength of this too is, as I had 9 recommended to you, that if in our 10 recommendations we write a provision on 11 domestic violence and single out the 12 uniqueness of the facts toward public policy 13 is where we really ought to end up, because 14 that will also help us as we go forward in 15 saying the uniqueness of this case is 16 predicated on this set of facts. 17 SENATOR SAVINO: Um-hum, I agree. 18 SENATOR STEWART-COUSINS: Yes. 19 SENATOR SCHNEIDERMAN: Our counsel 20 then is directed to go through the evidence, 21 note the inconsistencies, it seems that we 22 are not -- we are concluding that, however 23 we couch it, that we are not inclined to 24 believe her later version of events, and the 144 1 totality of all the circumstances leads us 2 to make the following recommendation. 3 So our -- and this doesn't have to be 4 final, final, but I would like to get the 5 sense from the committee as to whether or 6 not there is a consensus as to whether or 7 not we should recommend some form of 8 sanction without getting to the issue of 9 what the sanction would be. 10 SENATOR HASSELL-THOMPSON: Yes. 11 SENATOR SAVINO: Yes. 12 SENATOR STAVINSKY: Yes. 13 SENATOR STEWART-COUSINS: I am 14 waiting for the male voice. 15 SENATOR LANZA: Is the question 16 whether or not we should, whether or not we 17 are at that juncture, or each of us -- 18 SENATOR SCHNEIDERMAN: If people 19 haven't made up their minds, I guess they 20 haven't made up their minds, but we have to 21 for them to write the report have to say -- 22 we can say we don't think the Senate should 23 do anything, that's one of our options, we 24 recommend no action, or we could say -- or 145 1 we recommend something. 2 MR. LEWIS: The question you put to 3 the committee was should there be a sanction 4 or no sanction, is that what you said? 5 SENATOR SCHNEIDERMAN: Yes, that's 6 the threshold thing which at some point we 7 are going to have to decide this so that 8 counsel can write the report. 9 SENATOR ALESI: Did you say we are 10 having another meeting? 11 SENATOR SCHNEIDERMAN: We are 12 attempting to have another meeting, but 13 that's after a lot of the drafting has been 14 done. 15 SENATOR STEWART-COUSINS: That's kind 16 of to review. 17 SENATOR ALESI: What's been drafted. 18 SENATOR STEWART-COUSINS: Is there 19 anybody around the table that thinks there 20 should be no action? 21 Maybe you should ask if there is anyone 22 who thinks there should be no action. 23 MR. ALONSO: To recommendation of 24 sanction. 146 1 SENATOR SCHNEIDERMAN: A 2 recommendation for no sanction. 3 SENATOR STEWART-COUSINS: Yes. 4 SENATOR HASSELL-THOMPSON: Is there 5 anybody who thinks that? 6 SENATOR SCHNEIDERMAN: Again, as I 7 have said, it would be nice to have a 8 consensus report, but it is always possible 9 for us to have a majority and minority 10 report. 11 So -- 12 SENATOR HASSELL-THOMPSON: Unless 13 there is such a wide deviance in the thought 14 processes, I wouldn't see that we would need 15 but one report. 16 SENATOR SAVINO: Why two reports? 17 SENATOR SCHNEIDERMAN: Only if we 18 disagree on this fundamental issue, if some 19 of us think there should be no sanction and 20 some of us think there should be a sanction, 21 I'm just putting that out there as a 22 possibility. 23 MR. ALONSO: Just for the record, 24 when you asked if there was anyone who 147 1 thought there should be a recommendation of 2 no sanction, nobody raised their hand. 3 SENATOR SCHNEIDERMAN: That's true, 4 although we sort of -- 5 MR. ALONSO: We are waiting. 6 SENATOR SCHNEIDERMAN: We are waiting 7 to see. 8 MR. LEWIS: More of a pregnant pause. 9 SENATOR LANZA: We may have a slow 10 roll. 11 SENATOR SAVINO: Do it. 12 SENATOR HASSELL-THOMPSON: Pregnant 13 pause; that's why the women spoke up, right? 14 MR. ALONSO: Senator Alesi, my view 15 would be that we can draft something real 16 quickly, we can try to come up, we can try 17 to incorporate the discussion, try to do it 18 as subtly as possible, and take into 19 consideration the totality and the fact that 20 this has no precedential effect, and all 21 that, and the reasonable inferences that I 22 have heard around the table, and send that 23 around relatively soon so that we can all 24 discuss, you can all send suggestions, 148 1 rejections, whatever you want, and then 2 hopefully if Schneiderman convenes a meeting 3 on the 29th, we can discuss that in detail. 4 SENATOR ALESI: That's fine. Senator 5 Schneiderman, I didn't respond for one 6 simple reason, and this ties in with what 7 Senator Flanagan had asked, I still would 8 like to avail myself of the opportunity to 9 see those public interviews. 10 I could almost say, without speaking 11 for myself, I could almost surmise that the 12 fact we are having this committee put in 13 place to hear this situation almost opened 14 the door from the beginning that there would 15 be some kind of consideration for sanction, 16 regardless of whether they were serious or 17 moderate or whatever. 18 I would just simply like to see that 19 interview. 20 So that if I were to say yes, there 21 should be sanctions, I would feel 22 comfortable in feeling strongly about that, 23 or just saying yes, because oh, we -- all we 24 really have to do is make a recommendation 149 1 to the body, and that's what we have to come 2 back to at the end of the day, to use your 3 term, at the end of the day we are simply 4 here to make a recommendation. 5 We are really not here to say anything 6 beyond that. 7 But I would like to see, if we can get 8 the link, I would like to see that, and -- 9 to me, it seems to me that just the fact 10 that the committee exists without being 11 biased against the Senator, that we already 12 opened the door for some sort of sanction. 13 MR. ALONSO: May I respond? 14 SENATOR LANZA: Let me just first, 15 please. 16 Senator Schneiderman and I have 17 discussed this, and I think everyone, you 18 know, as far as a slow roll and let the 19 chips fall where they may, I think because 20 of the very sensitive and difficult nature 21 of what it is that we have been charged to 22 do here, that while you can't mandate 23 anyone's vote, I think we need to do 24 everything we can to work toward a consensus 150 1 in this committee. 2 SENATOR STEWART-COUSINS: I agree. 3 SENATOR LANZA: That's very 4 important. 5 SENATOR HASSELL-THOMPSON: I think 6 so, too. 7 SENATOR LANZA: Given the nature of 8 the circumstances, I think the point is if 9 anyone has reservations with respect to 10 making a decision today, that we need to do 11 all we can to come together here, if that is 12 possible. 13 I think from everything I have heard 14 that it is and we need to be there, that's 15 what I think. 16 I think there is very great value to 17 that. 18 SENATOR HASSELL-THOMPSON: Senator 19 Lanza, when you were talking before and I 20 said fit to serve, when I came on the 21 committee that's what was given, I wasn't 22 comfortable with it any more than you are, 23 but that was the premise under which I was 24 told we were going to be looking to look at 151 1 was he fit to serve. 2 SENATOR SCHNEIDERMAN: Yes, I think 3 people have said that colloquially, I don't 4 think any of the actual cases that we have 5 cited -- 6 MR. LEWIS: It's not a standard from 7 anywhere. 8 SENATOR HASSELL-THOMPSON: Good, I am 9 glad to hear that. I wasn't any more 10 comfortable than you. 11 SENATOR SCHNEIDERMAN: It's a 12 colloquial expression. I agree with Senator 13 Lanza, I think we should try to work towards 14 a consensus. 15 I think that to the extent there are 16 members who have other questions or want to 17 review anything else, I would suggest that 18 just out of -- and I think I'm comfortable 19 that -- and, look, I think this is the 20 committee has given this very careful 21 consideration, people are obviously very 22 hesitant, as we should be, to impose a 23 sanction, because ultimately this is a 24 matter of -- to suggest -- well, the Senate 152 1 should be reluctant to impose a sanction and 2 therefore the committee should be cautious 3 about recommending one. 4 I do think to me the totality of the 5 circumstances indicate that in my view a 6 sanction is appropriate, but I would like to 7 have a consensus on what we do if it's at 8 all possible. 9 I would like to suggest that we try to 10 get whatever additional information members 11 need to them quickly and then not wait to 12 the next meeting to hear back from people, 13 but get their communication to counsel as to 14 how they feel so counsel can get to work on 15 drafting this. 16 SENATOR LANZA: I would also point 17 out we are short one member. 18 SENATOR SCHNEIDERMAN: Yes, there is 19 another member. 20 SENATOR LANZA: Clearly this should 21 not wait until the next meeting. 22 Senator Flanagan. 23 SENATOR FLANAGAN: I wanted to raise 24 a point about Senator Young, I think her 153 1 input would be valuable and what Senator 2 Alesi said about the newscast. 3 To one degree, I don't think that we 4 have the luxury of just offering a report. 5 I think we are going to be viewed as, 6 to a degree, being a subset of the body as a 7 whole, and it is very unlikely if we move 8 forward, we as the entire Senate and take 9 some action, whatever that may be, that the 10 rest of the membership will be as intimately 11 knowledgeable as the nine members on this 12 committee. 13 SENATOR HASSELL-THOMPSON: I said 14 that, that's what I said to you. 15 SENATOR STEWART-COUSINS: Yes. 16 SENATOR FLANAGAN: And I think, which 17 almost argues for taking another step back 18 to be as judicious as possible. 19 To your specific question, am I 20 comfortable with the idea of a sanction? 21 Yes, but with some reservation, because I 22 think we are going to have a broader 23 discussion about what that may be. 24 And I would hate to have something 154 1 misinterpreted, I think any one of us who 2 says yes, we can embrace the notion of some 3 type of sanction, we all sort of do so with 4 a -- by taking a deep breath first, 5 acknowledging that we are taking a big leap 6 forward, frankly, in an area where none of 7 us have ever been involved. 8 I'm not sure where we are ultimately 9 going to come out on that in terms of what a 10 sanction may be, because it can run the 11 gamut. 12 If you look, look at what happened at 13 the sentencing. 14 Now, some people will focus on the fact 15 that Senator Monserrate got no jail time. 16 Although I think he got three years 17 probation, he got fined, he got 250 hours of 18 community service, he has to go into a 19 program for a year, some type of counseling, 20 there is an order of protection that's 21 continued. 22 So I look at that and think those are 23 sort of the breadth of options that may be 24 part of our own condemnation. 155 1 So to the idea of a sanction, yes, but 2 with a very judicious approach in terms of 3 how we ultimately get there. 4 MR. ALONSO: May I address that. 5 SENATOR LANZA: The details of the 6 report are extremely important, for any 7 member to vote in favor of a sanction I 8 think it's important to make sure that all 9 the reasons that support each individual's 10 decision, because we can all get to the same 11 place but for different reasons, and I think 12 it's important that each -- that everyone is 13 comfortable that the reason why they are in 14 favor of a sanction or not is reflected in 15 the report, too, so I don't want to -- I 16 think that's important to flush out as well. 17 SENATOR SCHNEIDERMAN: I think it is 18 important for us to note all of the 19 different things that we consider as matters 20 of evidence and inconsistencies and 21 omissions, failure to appear all of that. 22 And then, I think, note that different 23 members of the committee place greater 24 weight on different parts of the evidence 156 1 that we have listed. 2 But that we have come to this 3 conclusion. 4 But I think Senator Flanagan's broader 5 point is very important, I think we have to 6 have -- that's why we should have a very 7 thorough review of the evidence and have an 8 explanation of, which is, I think, the point 9 you were making last time, we explain why we 10 look at this evidence in some way, shape or 11 form and say what we think that it is or 12 isn't something that causes us to recommend 13 that the Senate, keep in mind that all we 14 are recommending also is we are recommending 15 that the Senate vote on imposing a sanction, 16 the ultimate authority still rests with the 17 Senate, each of us will have one vote, we do 18 not have the power to impose anything in 19 this committee. 20 So we are making a recommendation for a 21 vote and that's really all we can do. 22 MR. LEWIS: Fundamentally if we 23 decide there should be a sanction, all we 24 are really doing is, in effect, referring a 157 1 resolution or two out of this committee, so 2 it's very -- we have a very limited scope, 3 we have very limited procedural areas under 4 the rules and we have no capacity to do more 5 than that, because even though we are a 6 select special committee, we are still a 7 committee of the house, it's limited. 8 MR. ALONSO: I still need to clarify 9 Senator Alesi' statement about just as your 10 counsel in terms of you should not infer 11 from the fact of the resolution that you 12 have any kind of obligation or requirement 13 to recommend a sanction. 14 The resolution simply created the 15 committee, the decision whether or not to 16 recommend sanction or make a particular 17 finding is obviously the sound discretion of 18 this committee. 19 So I wouldn't want you to infer that 20 just from the fact that there was a 21 resolution that exists. 22 SENATOR ALESI: Let me be clear, I'm 23 not reluctant to recommend a sanction, I am 24 simply saying that there is no one 158 1 significant piece of information that has 2 come to light for me, which is the video, 3 which is our only opportunity to hear 4 anything from him, and that's important to 5 me personally so that if I were to make any 6 kind of recommendation, I can say I have 7 been as diligent as possible, that's all. 8 I would not be reluctant to make any 9 recommendation. 10 SENATOR SAVINO: I have a question 11 that might be silly, I don't know, but after 12 we prepare this report with whatever the 13 recommendation is, who drafts the resolution 14 for the Senate to vote on? 15 SENATOR SCHNEIDERMAN: We could 16 approach it one of two ways, we could have 17 our counsel draft proposed resolution, again 18 it's just proposed. 19 SENATOR LANZA: We could or they 20 could. 21 SENATOR SCHNEIDERMAN: We could draft 22 a proposed resolution, we say we recommend 23 you do A or B, and here are resolutions is 24 what we recommend you should put on them, or 159 1 we can leave it open-ended. 2 MR. LEWIS: In the Lipshitz case they 3 actually, the Ethics Committee actually 4 drafted the resolution and as part of their 5 report drafted the resolution and put the 6 resolution in the report, so there is a 7 prototype for that type of resolution. 8 SENATOR SAVINO: Second silly 9 question, if we make a recommendation for a 10 particular sanction and the Senate votes it 11 down, could somebody substitute a separate 12 resolution with a different sanction, once 13 the work of the committee is done pursuant 14 to the original resolution? 15 MR. LEWIS: Under the current rules 16 -- 17 SENATOR SCHNEIDERMAN: That's an 18 interesting question, I don't see why not. 19 MR. LEWIS: A resolution can come up 20 of any sort any time under the rules, it's a 21 question of privilege and 24 hours notice. 22 SENATOR SCHNEIDERMAN: You have to 23 argue the requirement under legislative law, 24 under Section 3 the committee has met and 160 1 issued a report is met, particularly I think 2 there is no preclusion from introducing an 3 alternative resolution. 4 MR. ALONSO: Legislative Law Number 3 5 recommends if the recommendation is 6 expulsion. 7 SENATOR SCHNEIDERMAN: Someone can 8 always put up a resolution for something 9 else. 10 MR. LEWIS: Or amend or seek to amend 11 an existing resolution. 12 SENATOR ALESI: Doesn't the body 13 always have the opportunity to vote on it? 14 SENATOR SCHNEIDERMAN: Yes. 15 MR. LEWIS: There is no double 16 jeopardy or anything like that in our end of 17 the world that says you can't consider 18 something again. 19 SENATOR SCHNEIDERMAN: So let me 20 suggest this, we will get the information 21 out to the members of the committee, counsel 22 will get in communication with Senator Young 23 and bring her, go over all the details of 24 everything that has happened, we will get 161 1 the links or the DVDs, or however you do it, 2 of Senator Monserrate's appearances, and 3 then to the extent that counsel will start 4 drafting up a report in accordance with the 5 outline, we still have obviously not 6 addressed the issue of what specific 7 recommendation we will make, which we can 8 leave to the end, I wanted to get through 9 some of the factual issues and get over the 10 hurdle of sort of the credibility issue. 11 Which I think we have done. And may I 12 request that anyone who has further 13 thoughts, whether we should -- we have a 14 consensus on imposing a sanction or not 15 imposing a sanction, should communicate to 16 either me or to Senator Lanza as soon as you 17 can in the next week, if you feel 18 comfortable about that, we will try and 19 provide ongoing comments, because we want to 20 be able to get back a draft report in a 21 timely enough manner for us all to have a 22 chance to view it and comment on it in a way 23 that we can certainly meet our deadline. 24 Anything else? 162 1 SENATOR LANZA: No. 2 SENATOR SCHNEIDERMAN: Okay. Thank 3 you all very much, and we will talk between 4 now and then, I would like to move to 5 adjourn the committee at this time. 6 SENATOR HASSELL-THOMPSON: So moved. 7 SENATOR FLANAGAN: So moved. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24