Schoolcraft v. The City Of New York et al

Filing 401

FILING ERROR - DUPLICATE DOCKET ENTRY - DECLARATION of NATHANIEL B. SMITH in Opposition re: 297 MOTION for Summary Judgment .. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit POX 40, # 2 Exhibit POX 41, # 3 Exhibit POX 42, # 4 Exhibit POX 45, # 5 Exhibit POX 46, # 6 Exhibit POX 47, # 7 Exhibit POX 48, # 8 Exhibit POX 49)(Smith, Nathaniel) Modified on 2/17/2015 (db).

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 1 of 219
03J8FL01
1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

2

------------------------------x

3

DAVID FLOYD, et al.,

4

Plaintiffs,

6

CITY OF NEW YORK 1 et al.,

7
8

08 CV 1034 (SAS)

v.

5

Defendants.

------------------------------x
New York, N.Y.
March 19, 2013
10:05 a.m.

9
10

Before:
ll

HON. SHIRA A. SCHEINDLIN,
12
District Judge
13
APPEARANCES
14

15
16
17
18
19

BELDOCK LEVINE & HOFFMAN, LLP
Attorneys for Plaintiffs
gy,
JENN ROLNICK BORCHETTA
JONATHAN MOORE
COVINGTON & BURLING, LLP
Attorneys for Plaintiffs
gy,
KASEY MARTINI
GRETCHEN HOFF VARNER
ERIC HELLERMAN
BRUCE COREY

20
CENTER FOR CONSTITUTIONAL RIGHTS

21

Attorneys for Plaintiffs
gy,

22

DARIUS CHARNEY
SUNITA PATEL
BAHER AZMY

23
24
25

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

218

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 192 of 219
Peart - redirect
D3J8FL05

409

1

Q.

On that day, April 13, 2011, was every person coming out of

2

your building getting stopped?

3

A.

No.

4

Q.

Nicholas, do you believe the reasons the officers gave you

5

for stopping you?

6

A.

No.

7

MS. PATEL:

One moment.

8

That's it, your Honor.

9

THE COURT:

Thank you.

10

Any recross?

11

MS. PUBLICKER:

12

THE COURT:

13

THE WITNESS:

14

THE COURT:

15

MR. CHARNEY:

16

No, your Honor.

OK.

Thank you, Mr. Peart.

You're done.

Thank you.
Who is your next witness?
Officer Polanco.

ADHYL POLANCO,

17

called as a witness by the plaintiffs,

18

having been duly sworn, testified as follows:
THE COURT:

19

20

State your full name, first and last,

spelling both for the record.
THE WITNESS:

21

Adhyl Polanco, A-0-H-Y-L, P-0-L-A-N-C-0.

22

DIRECT EXAMINATION

23

BY MR. CHARNEY:

24

Q.

Good afternoon, Officer Polanco.

25

A.

Good afternoon.
SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 193 of 219
D3J8FL05
Polanco - direct

410

1

Q.

Officer Polanco, by whom are you currently employed?

2

A.

New York City Police Department.

3

Q.

How long have you worked for the NYPD?

4

A.

About eight years.

5

Q.

So what year did you start working for them?

6

A.

2005.

7

Q.

What was your first assignment after you finished the

8

police academy?

9

A.

I went to the 46th precinct in the Bronx.

10

Q.

How long did you work there?

11

A.

About six months.

12

Q.

Can you explain what an impact assignment is?

13

A.

Impact is when they send officers straight out of the

14

academy to a high-crime area.

15

Q.

How long did you work this impact assignment?

16

A.

About five to six months.

17

Q.

After those five to six months, did your assignment change?

18

A.

Yes.

19

Q.

How did it change?

20

A.

I got permanently assigned to the 41st precinct in the

21

Bronx.

22

Q.

23

did you work in a particular unit?

24

A.

I was patrol most of the time.

25

Q.

So you were a patrol officer in the 41st precinct for how

It was an impact assignment.

When you were assigned to the 41st precinct in the Bronx,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 194 of 219
Polanco - direct
D3J8FL05

411

1

long?

2

A.

From the beginning of 2006 to about December 2009.

3

Q.

As a patrol officer 1 were you assigned to a particular

4

unit, or how would you describe the group of officers you

5

worked with?

6

A.

7

assigned-- a permanent assignment.

8

nev1,

9

the only one new so some day I would have one sector, some day

It varies depending on the day.

You don't get an
Basically, when you're

you have the most busy sector they call it.

But I was not

10

I would have the other.

11

Q.

12

yourself?

13

A.

With other officers.

14

Q.

How many?

15

A.

At least one.

16

Q.

Did you work a particular tour of duty when you were in the

17

41st precinct?

18

A.

It was called the 4 to 12.

19

Q.

How many tours of duty are there in a 24-hour period for

20

NYPD officers?

21

A.

22

the three main ones for patrol will be day tours,

23

midnight.

24

Q.

25

were your duties and responsibilities as a patrol officer in

Did you typically patrol with other officers or by

There's three main ones.

It•s 3:00 by 11:35 p.m.

There can be a bunch of them, but
4 to 12 and

If you can tell us to the best of your recollection, what

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document282 Filed 05/30/13 Page 195 of219
Polanco - direct
D3J8FL05

412

1

the 41st precinct?

2

A.

3

needs.

4

Q.

How would you do that, if you can remember?

5

A.

It's many ways to do it.

6

radio run that come over brings something different.

Sometime

7

you be called to assist somebody to go up the steps.

Sometime

8

somebody is stabbed.

9

Somebody is fighting the daughter or the daughter is fighting

Basically, look out for the community, help with their

When you're on patrol, every

Most of the time we are referees,

10

the mother, and we are in between basically.

11

Q.

12

355.

I want to show what has been marked as Plaintiffs' Exhibit
I am going to put it on the elmo.

13

MR. CHARNEY:

14

Can I show it to the witness or do you want me to move

15
16

17
18

Can I have a copy for the witness?

it into evidence first?
THE COURT:

Either way.

Did you want to use it to

refresh his recollection?
MR. CHARNEY:

I was going to ask him about some of the

19

information in the document.

20

THE COURT:

21
22

23
24

25

Is there going to be objection to it?

Is

anybody going to object to this exhibit?
MS. COOKE:

It was not provided as one of the initial

exhibits so I need to pull a copy.
THE COURT:

He has it for you.

you're going to object to it.

Then just tell me if

If it's from the patrol guide, I

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 196 of 219
D3J8FL05
Polanco - direct

1

wouldn't think there would be an objection.
MS. COOKE:

2

3

413

I just can't tell if it's complete.

No

objection.
MR. CHARNEY:

4

This is what was produced to us as the

5

patrol guide section setting forth the duties and

6

responsibilities of a police officer.

7

THE COURT:

8

MR. CHARNEY:

9

This is the most current one we were

provided.
THE COURT:

10

11

Current?

That is the most current one the

plaintiffs were given.

I will take it for what it's worth.

12

What we are calling this?

13

MR. MOORE:

355.

14

THE COURT:

355 is received.

15

MR. CHARNEY:

16

MS. COOKE:

17

I am going to make an objection.

18

document.

We are going to need a minute to pull it.
This is three-page

Mr. Charney has only provided one page.
THE COURT:

19

I am going to hand this to the witness.

20

I will substitute it.

21

MR. CHARNEY:

If you have the whole three-page document,

The second page is a different patrol

22

guide section.

23

separate patrol guide section.

24
25

We can put it in, but it's a completely

THE COURT:
section.

I think he only wants to offer this

It does say page 1 of 1.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13
Polanco - direct
D3J8FL05
MS. COOKE:

1

2

Page 197 of 219

414

For the record, 355 was provided on the

plaintiffs' exhibit list as a three-page document.
THE COURT:

3

This says page 1 of 1 in the upper

4

right-hand corner, and this is the section of the patrol guide

5

he wishes to offer.

6

is this section.

So I will take this one page exhibit which

7

Do you have a section number?

8

MR. CHARNEY:

9

THE COURT:

I believe it says 202-21.

So I am accepting 202-21, that's the

10

section, it's 1 of 1 page document, in evidence as 355.

11

Despite the fact that when you listed it on your exhibit list,

12

you called it a three-page document.

13

14

(Plaintiffs' Exhibit 355, Section 202-21, received in

evidence)
THE COURT:

15

Now that we have got past that.

16

BY MR. CHARNEY:

17

Q.

18

document, Exhibit 355?

19

A.

Yes.

20

Q.

Do you recognize this document?

21

A.

Yes.

22

Q.

Can you tell me what this document is based on your review?

23

A.

It's on paper what we supposed

24

paper.

25

Q.

Officer Polanco, have you had a chance to review this

~o

do in the streets, on

When you say what you're supposed to do on the streets,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 198 of 219
Polanco - direct
D3J8FL05

415

1

what do you mean by that?

2

A.

3

difference between written policies and what actually goes on

4

out there.

5

Q.

6

that this document includes the duties and responsibilities of

7

a police officer at least as they exist on paper in the police

8

department?

9

A.

Yes.

10

Q.

I want to draw your attention to number 8 on this list.

11

you see number 8?

12

A.

Yes, I do.

13

Q.

Can you read for us what number 8 says?

14

A.

11

15

as otherwise directed."

16

Q.

17

service in assigned area" includes?

18

A.

19

cop.

20

word productivity here anywhere.

21

somebody, to giving advice to somebody, from preventing a

22

fight.

23

Q.

So does it include more than simply making arrests?

24

A.

Of course.

25

Q.

Does it include more than simply writing tickets?

The police department have written policies and there's a

Based on your review of this document,

is it fair to say

I.

I
Do

Render all necessary police service in assigned area and

What is your understanding of what "all necessary police

It means helping people.

It's the reason why I became a

It doesn't necessarily mean to produce.

I don't see the

It can be from helping

It can go from various things.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 199 of 219
Polanco - direct
D3J8FL05

416

1

A.

Yes.

2

Q.

Does it include more than simply conducting stop, question

3

and frisk?

4

A.

Yes.

5

Q.

What other services

6

other services that, based on your training and experience,

7

police officers are supposed to perform as part of their job?

8

A.

9

Sometime we have to bring a bad car accident to the hospital,

Those are the easy part of the job.
you mentioned a couple.

Are there

Sometime we have to sit on a dead body the whole day.

10

where people actually die on the way or die at the hospital.

11

Sometime we get rapes with minors, kids, rapes with female.

12

Sometime we get domestic dispute where sometime turn deadly.

13

It's very, very varied amount of police duty.

14

Q.

15

you have a direct supervisor?

16

A.

Yes, I did.

17

Q.

Who was that person?

18

A.

Sergeant Edgar Padilla.

19

Q.

What was his rank?

20

A.

He was a sergeant.

21

Q.

Were there any other sergeants that supervised you while

22

you were a patrol officer in the 41st precinct?

23

A.

24

Bennett, Sergeant Rodriguez, and occasionally we get one here

25

and there, but those were the three main sergeants.

When you were a patrol officer in the 41st precinct, did

Yes.

In the 4 to 12, it was Sergeant Padilla, Sergeant

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 200 of 219
D3JBFL05
Polanco - direct
1

Q.

2

person in the precinct who was their direct supervisor?

3

A.

4

speaking about?

5

Q.

That's a good question.

6

A.

Yes.

7

Q.

During that year, who was the platoon commander that the

8

sergeants that supervised you reported to,

9

A.

It was Lieutenant Andrew Valenzano.

10

Q.

Can you spell the last name?

11

A.

V-A-L-E-N-Z-A-N-0.

12

13

Do you know who those sergeants reported to?

417

They had a platoon commander.

MR. CHARNEY:

Was there a

What time frame are we

Let's focus on the year 2009.

if you know?

I want to show another exhibit.

This is

marked as Plaintiffs' Exhibit 419.

14

THE COURT:

Any objection to 419?

15

MS. COOKE:

All 12 pages?

16

MR. CHARNEY:

We were going to offer pages 2 through

17

12, but I have no objection to the whole thing coming in if

18

defendants think i t needs to be complete.

19

MS. COOKE:

For completeness, yes.

20

THE COURT:

So now there is no objection?

21

MS. COOKE:

No.

22

THE COURT:

What is the exhibit number again?

23

MR.

24

THE COURT:

25

(Plaintiff's Exhibit 419 received in evidence)

CHARNEY:

419.
419 is received.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 201 of 219
Polanco - direct
D3J8FL05
1

MR. CHARNEY:

2

THE COURT:
Officer Polanco,

418

May I show it to the witness?

Sure.

3

Q.

4

second page of Exhibit 419, which is marked NYC underscore

5

18924.

6

I want to draw your attention to the

Do you recognize that document on the second page?

7

A.

Yes.

8

Q.

Can you tell me what that document is?

9

A.

This 1s my monthly activity report for the month of January

10

2009.

11

Q.

Can you tell me what a monthly activity report is?

12

A.

It's where officers basically put down what they had done

13

for the month.

14

Q.

15

that you worked in the 41st precinct?

16

A.

I would say yes.

17

Q.

You said that officers on this form will write down what

18

they did during the month, is that right?

19

A.

Yes.

20

Q.

What kind of information did you typically include on this

21

form when you filled it out?

22

A.

23

that is there.

24

Q.

25

included in this form?

Did you complete a monthly activity report for every month

Maybe when I was on patrol, yes.

You supposed to include everything, basically, everything
You marked off whatever you did.

What kinds of activities that you did in a month are

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 202 of 219
Polanco - direct
D3J8FL05

Domestic incident, complaint reports,

419

1

A.

juvenile reports,

2

summonses,

3

patrols.

4

Q.

5

earlier of having to go to the hospital with an injured person.

6

Would that information be included on this form?

7

A.

It will be included, yes.

8

Q.

Where would you include that on this form?

9

A.

If we did an aided card, what is called an aided card, it

complaint reports, parking, radio runs, vertical

What about, for example, I think you gave an example

10

will be included.

11

Q.

12

domestic dispute, would that be on this form?

13

A.

14

took a domestic report.

15

Q.

16

earlier that a police officer would do that are not reflected

17

on this form?

18

A.

19

doing your paperwork for missing.

20

paperwork, a couple of hours later you might run into the

21

person, and then the report will be destroyed.

22

won,t be listed anywhere.

23

Q.

24

somebody else in the police department?

25

A.

What if you had to, as you mentioned, mediate like a

If we took a domestic report, yes, we will mark that v1e

Are there any activities amongst the ones you mentioned

Sometime you do job like missing.

Basically, you start

As you 1 re doing your

So, no, it

After you completed this form, did you typically give it to

The sergeant, your immediate supervisor will be the one to
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 203 of 219
D3J8FL05
Polanco - direct

420

1

collect it.

2

Q.

3

41st precinct to hand this in once a month to your sergeant?

4

A.

Yes.

5

Q.

Did you typically discuss the information on the form with

6

your sergeant?

7

A.

8

wouldn't.

9

Q.

Was it your practice when you were a patrol officer in the

Not the whole thing.

Did your sergeant,

They will discuss it with us.

We

in fact, discuss your monthly activity

10

reports with you?

11

A.

Sometime, yes.

12

Q.

Were there particular topics that your sergeant discussed

13

with you?

14

A.

15

and one thing only.

16

summons you wrote, and how many 250s you have for that night.

17

Basically, that's all they care for.

18

Q.

You said for that night?

19

A.

For that month.

20

Q.

Did your sergeant ever ask you about the number of radio

21

runs that were listed on your monthly activity report?

22

A.

They don't care about that.

23

Q.

Did they ever ask you about the number of domestic

24

incidents that you responded to in a month?

25

A.

When it comes to activity, they only care about one thing,

No.

It's how many arrests you had, how many

I'm sorry.

They don't care about that.
SOUTHERN DISTRICT REPORTERS,
(2121 805-0300

P.C.

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 204 of 219
Polanco - direct
03JBFL05
1

Q.

2

that you assisted in a given month?

3

A.

No.

4

Q.

So other than asking you about the number of arrests or

5

summonses or stops and frisks in a given month, did your

6

sergeant ever ask you about any of the other activity you

7

performed in a month?

8

A.

No.

9

Q.

4 21

Did they ever ask you about the number of injured persons

What about your activity on a daily or weekly basis, did

They don't care.

10

your sergeant ever discuss that with you?

11

A.

12

hard with the quotas.

13

it is.

14

back from patrol, we had to see the platoon commander and

15

specifically tell him what we had done for that night.

16

explain myself, what we have done in terms of summonses, 250,

17

or arrests.

18

Q.

You said this was something that was done every tour?

19

A.

Yes.

20

Q.

Was there a form you had to fill out at the end of the tour

21

with this information on it?

22

A.

23

what we tell him or whatever he collects from us.

24

Q.

25

have to turn in any paperwork to the platoon commander?

There came a point in time in 2009 where they came very

No.

They call it productivity.

And they had a daily sheet.

It lS what

Every day, after we came

If I

On a daily recap they call it.

The platoon commander would fill it out according to

So when you would come back at the end of the tour, did you

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 205 of 219
Polanco - direct
D3J8FL05

1

A.

2

what have you got for me?

3

many 250s, how many arrests you have got for me?

4

Q.

5

arrests or summonses or 250s you did?

6

A.

7

anyway; he will check the box at the end of the night.

8

not like I can lie to him and say I got this, because at the

9

end of the night he going to go to the box and check it.

422

He will be waiting for us one by one and he will ask us,
Basically, how many summonses, how

Did you have to provide him with paperwork showing how many

Sometime you will tell him verbally, but he will check
So it's

So

10

sometime we don't give him the physical evidence right away.

11

Maybe we have to sign off on it or something like that, but we

12

will tell him what we did for the night 1 what we got for the

13

night.

14

Q.

15

Lieutenant Valenzano?

16

A.

Yes.

17

Q.

Other than Lieutenant Valenzano,

18

supervisors ask you about your daily or weekly activity when

19

you were a patrol officer in the 41st precinct?

20

A.

Yes.

21

Q.

Who?

22

A.

Our own unit delegates used to ask.

23

Rodriguez used to ask.

24

was the commanding officer, he used to ask about activity very

25

often.

When you say platoon commander 1 are you referring to

did any of your other

Sergeant Bennett.

The sergeant, Sergeant
Inspector McHugh, he

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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D3J8FL05
Polanco - direct
1

Q.

2

activity, did he ever ask you about whether or not an

3

individual arrest that you had done was based on probable

4

cause?

5

A.

6

the quantity.

7

checking the summonses.

8

them.

9

Q.

423

Now, when Lieutenant Valenzano asked for your daily

They will never question the quality.

They will question

They are not checking the 250.

They are not

They just want to make sure we have

How we got them, they don't really care about.

So were you ever asked by Lieutenant Valenzano, after you

10

had finished a tour and done a OF-250, whether or not the stop

11

and frisk that you recorded was based on reasonable suspicion?

12

A.

Never.

13

Q.

Were you ever asked by Lieutenant Valenzano at the end of a

14

tour, when you handed in a summons, a criminal summons, whether

15

or not the summons was based on probable cause?

16

A.

Never.

17

Q.

Officer Polanco, did there come a point in time during your

18

assignment to the 41st precinct when one or more of your

19

supervisors communicated to you a specific number of arrests

20

that they said you were required to do in a single month?

21

A.

Yes.

22

Q.

When did that happen?

23

A.

It happened several times.

24

of 2009.

25

what I was hearing, and I thought nobody will believe me unless

It started maybe in the summer

I started recording it because I couldn't believe

SOUTHERN DISTRICT REPORTERS,
(2121 805-0300

P.C.

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 207 of 219
Polanco - direct
D3J8FL05

424

1

I record it.

2

November, early December 2009.

3

Q.

4

I wanted to first find out from you, how many of your

5

supervisors communicated specific numbers of arrests that they

6

said you were required to do in a month?

7

A.

8

Lieutenant Valenzano, PBA delegate -- all of them -- Mansi, PBA

9

delegate Herran, PBA delegate Fundaro.

I started recording maybe late August to

We are going to get to those recordings in a little while.

Sergeant Bennett, Sergeant Rodriguez, Inspector McHugh,

10

Q.

When you say PBA delegate, what do you mean by that?

11

A.

The union representative for us.

12

Q.

I think you may have already answered this, but Inspector

13

McHugh, what was his position in the 41st precinct?

14

A.

He was a commanding officer.

15

Q.

Do you know when he became the commanding officer?

16

A.

I'm sorry?

17

Q.

When did he become the commanding officer?

18

A.

I believe it was late 2008, 2009.

19

exactly when.

20

Q.

21

2009 until you left the 41st precinct?

22

A.

Yes, he was.

23

Q.

And you left in December 2010?

24

A.

Yes.

25

Q.

So you mentioned that they did communicate -- your

I'm not 100 percent sure

Was he the commanding officer from either late 2008, early

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 208 of 219
Polanco - direct
D3JBFL05
1

supervisors communicated to you a specific number of arrests

2

they said you v1ere required to do in a month.

3

number?

4

A.

They wanted 20 and one.

5

Q.

What does 20 and one mean?

6

A.

20 summonses and one arrest per month, per officer, at

7

least.

8

Q.

9

425

you?

What was that

How did they communicate the to 20 and one requirement to

10

A.

They were very clear about it.

They will say, it's either

11

you do it, it's non-negotiable, or you're going to become a

12

Pizza Hut delivery man.

13

Q.

So it was communicated to you verbally?

14

A.

Most of the time it was communicated as a group.

15

recording later you're going to hear, they are addressing the

16

whole group, the whole roll call, not only one individual.

17

Q.

The whole group at roll call you said?

18

A.

Yes.

19

Q.

What is a roll call?

20

A.

Roll call is a platoon usually have about 14, 15 officer.

21

Five, ten minutes before tour everybody get together, get their

22

assignment, get their training, or whatever the department have

23

to say for that day, before you go out.

24

Q.

25

tour you worked in the 41st precinct?

The

Is it fair to say that you attended a roll call for every

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

r

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 209 of 219
D3J8FL05
Polanco - direct

It will be fair to say that.

426

1

A.

There might be sometime that

2

I missed it.

3

most part, yes,

4

Q.

Who typically attended roll calls in the 41st precinct?

5

A.

Sometime the training officers will come by, the training

6

officer, the commanding officer, the XO, the platoon commander,

7

the sergeants in charge of each different platoon.

8

Q.

9

you attended?

Maybe I was in another precinct.

But for the

I was there.

Who typically addressed the officers at the roll calls that

10

A.

All of them.

11

Q.

Were there particular topics that were commonly discussed

12

at these roll calls?

l3

A.

14

the end of the month, that was the most they repeat it.

15

Q.

16

in time-- I 1 m sorry.

17

summonses?

18

A.

Yes.

19

Q.

The one is one arrest per month?

20

A.

Yes.

21

Q.

The 20 was 20 summonses?

22

A.

20 summons, yes.

23

Q.

Did there come a point in time during your assignment in

24

the 41st precinct when one or more of your supervisors

25

communicated to you a specific number of stop, question and

It could be any one of them on any given day.

The quarter was a basic one.

What we need to bring back at

Now, you mentioned the one and 20.

Did there come a point

The one and 20 refers to arrests and

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805~0300

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03J8FL05

427

1

frisks that they expected you to conduct in a month?

2

A.

Yes.

3

Q.

When did that happen?

4

A.

Throughout the roll call, different roll calls, they say

5

that they want at least five.

6

Q.

7

or only part of the time?

8

A.

Part of it.

9

Q.

Which supervisors do you recall communicated this numerical

Was that true the entire time you were in the 41st precinct

I would say after 2009.

10

requirement for the stop and frisk to you?

11

A.

12

time, Sergeant Rodriguez,

13

mention it.

14

Q.

You said it was five?

15

A.

At least five 250s a month.

16

Q.

Per month?

17

A.

Per month.

18

Q.

Did there come a point in time when you worked in the 41st

19

precinct that one or more of your supervisors communicated to

20

you a specific number of arrests, summonses, or stop and frisks

21

that they expected you to conduct in a single tour?

22

A.

23

That in order for us to be productive out there, we have to at

24

least show one for the day.

25

Q.

Captain McHugh at the time, Lieutenant Valenzano at the
Sergeant Bennett.

They all used to

They said-- sometimes they said we needed at least one.

One stop and frisk?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Polanco - direct
D3JBFL05

One of either.

428

1

A.

Our job was not successful out there unless

2

we came back with one of the above.

3

Q.

4

your supervisors ever communicate to you a specific number of,

5

for example, radio runs they wanted you to answer?

6

A.

No.

7

Q.

Or domestic incidents they wanted you to mediate?

8

A.

They don't care about those.

9

Q.

So the answer is no?

10

A.

No.

11

Q.

Or emotionally disturbed persons they wanted you to assist?

12

A.

No.

13

Q.

Or juvenile crime victims that they wanted you to assist?

14

A.

No.

15

Q.

When they communicated-- when I say "they," your

16

supervisors communicated these numerical requirements to you,

17

you said that was during roll call?

18

A.

19

it was in the roll call.

20

Q.

21

roll call, did they at any point tell you what the consequences

22

would be for not meeting these numerical requirements?

23

A.

Absolutely, yes.

24

Q.

What did they say those consequences would be?

25

A.

They said, if we were willing to keep working with our

At any point during your work in the 41st precinct, did

Yes.

I'm sorry.

Sometime it will be individual, but most of the time

So when they communicated these requirements to you during

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05130/13 Page 212 of 219
03J8FL05
Polanco - direct

429

1

partners, we better come up with the numbers; that if we want

2

to ask for days off,

3

if we wanted overtime, the chiefs control the overtime, and

4

that if we don't do our numbers, we are not going to get it.

5

We were told that it was non-negotiable, that they are going to

6

force us to do it if we didn't do it.

7

particularly told us that unless we want to become a Pizza Hut

8

delivery man, we better do what they say.

9

Q.

Which sergeant was that?

10

A.

Sergeant Bennett.

11

Q.

Were there any other consequences that they expressed to

12

you would occur if you didn't meet these numerical

13

requirements?

14

A.

15

for some reason you were doing the tour, they will shift your

16

tour.

17

in performance monitoring.

18

They can make your life very miserable.

19

Q.

20

meet the numerical requirements that you described earlier?

21

A.

22

many.

23

Q.

24

numerical requirements?

25

A.

1r1e

better come up with the numbers; that

They will change different tour.

One sergeant

If you have a family and

They will give you low evaluations.

They will put you

They can send you for retraining.

Were there any months in 2009 where you yourself did not

There might have been a few.

I don't know exactly how

There might have been a few.

Did you suffer any consequences for not meeting those

Most of the time, if I didn't meet it, for example, in
SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

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Polanco - direct
D3J8FL05

430

1

January,

in February I have to make sure or they will make sure

2

that I have the numbers.

3

Q.

How did they make sure that you would have the numbers?

4

A.

They will come and check on me every day, and if in fact I

5

don 1 t

6

something at me.

7

something at me, they will go out there, stop anybody, anybody,

8

and call me over to the scene and either issue a summons or

9

arrest them.

have it, by the middle of the month, they will throw

What I mean when I say they will throw

10

Q.

Let 1 s break that down.

11

to the scene.

12

A.

13

McHugh.

14

Q.

They would call you over to what scene?

15

A.

Sometime it could be that they have male stops against the

16

wall.

17

call for us to-- obviously, we were not there-- to come

18

either issue the summons, issue the 250, or even arrest the

19

person.

20

Q.

21

that you didn't observe?

22

A.

All the time, yes.

23

Q.

How many times did that happen in 2009?

24

A.

Very often.

25

Q.

More than ten?

Who is

11

You said they would call you over

they 11 ?

Most of the time it was Lieutenant Valenzano and Captain

Sometimes they have male in handcuffs, and they will

So they would ask you to write a summons for an incident

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13
D3J8FL05
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Page 214 of 219

431

1

A.

I say between ten.

2

Q.

Did they ever ask you to write a UF-250 for a stop and

3

frisk that you did not conduct?

4

A.

Yes.

5

Q.

Did they ever ask you to write a UF-250 for a stop and

6

frisk where the underlying facts you didn't observe?

7

A.

Yes.

8

Q.

How many times did that happen?

9

A.

Very often.

10

Q.

More than ten?

11

A.

More than 20 I would say.

12

Q.

So other than that kind of activity -- when I say activity,

13

other than being required to write summonses and 250s for

14

things you didn't see, were there any other consequences that

15

you suffered when you didn't meet the monthly activity

16

requirements that we have talked about earlier?

17

A.

18

your partner away.

They will deny you days off.

19

deny you overtime.

They can even ship you out of command and

20

send to another precinct.

21

Q.

Were you ever denied days off?

22

A.

A few times.

23

Q.

How many times?

24

A.

I don't recall exactly.

25

an exact number.

Like I said, it's a lot.

They can switch your tour, take
They will

I wouldn't be able to come up with

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 215 of 219
Polanco - direct
D3J8FL05

432

1

Q.

What year did this happen?

2

A.

2009.

3

Q.

Were you ever denied overtime when you requested it because

4

you didn't meet the numerical requirements?

5

A.

I wasn't too big on overtime.

6

Q.

Are you familiar with the term driving a sergeant or

7

driving a supervisor?

8

A.

Yes.

9

Q.

What does that mean?

10

A.

That means that whatever it seems like, it's going to be.

11

You have no discretion whatsoever.

12

supervisor, if you're driving the sergeant in the 41st precinct

13

at that time, that means that they are going to drive around

14

and they are going to stop people for you, or tell you to go

15

250 this guy, go summons this guy, go arrest this guy.

16

have absolutely no discretion.

17

Q.

18

sounds like, in other words, that you're driving around with

19

one of your supervisors on patrol?

20

A.

Yes.

21

Q.

Is this something that you were ever required to do when

22

you worked as a patrol officer in the 41st precinct?

23

A.

A few times.

24

Q.

How many times?

25

A.

Between three and five.

If you're driving the

You

Is it correct that driving a supervisor means what it

I don't know the exact number of

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05130/13 Page 216 of 219
Polanco - direct
D3J8FL05
1

times.

2

Q.

3

drive with a supervisor why they were making you drive with a

4

supervisor?

5

A.

Yes.

6

Q.

What was the reason they gave you?

7

A.

Because the prior month you did not have your numbers.

8

Q.

When you say numbers, you mean the one and 20 we referred

9

433

to earlier?

Maybe more, maybe less.

Were you ever told on those occasions when you did have to

10

A.

Yes.

11

Q.

Do you also mean the five stop and frisks that you referred

12

to earlier?

13

A.

Yes.

THE COURT:

14

It's 4:30.

We are going to stop for the

15

day.

Of course, that means you have to come back first thing

16

tomorrow morning to start at 10:00.

17

Everybody is excused for the day.

18

MR. KUNZ:

Thank you.

There was an outstanding issue with regard

19

to the Silverman data, the additional Silverman data.

20

address it first thing tomorrow.

21
22
23

24
25

THE COURT:

I can try to be here.

I suggest you make

it here at quarter of 10, but I can't promise I will.
MR. CHARNEY:

We can

On that issue, can I hand you a

declaration of Professor Silverman?
Defendants have a copy.
SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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D3JBFL05
Polanco - direct
1

MR. KUNZ:

We can address it now.

2

THE COURT:

3

(Adjourned to March 20, 2013, at 10:00 a.m.)

No.

I have got many matters.

4

5
6
7

8
9

10
11
12

13

14
15
16

17
18
19

20
21

22

23
24
25

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

434

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 218 of 219

INDEX OF EXAMINATION

1

Page

2

Examination of:

3

DAVID FLOYD

4

Cross By Mr. Kunz

221

5

Redirect By Ms. Patel

248

6

Recross By Mr. Kunz

262

7

DEON DENNIS

8

Direct By Ms. Varner .

262

9

Cross By Mr. Marutollo

278

10

Redirect By Ms. Varner

296

11

Recross By Mr. Marutollo

299

12

NICHOLAS PEART

13

Direct By Ms. Patel

300

14

Cross By Ms. Publicker

347

15

Redirect By Ms. Patel

407

16

ADHYL POLANCO

17

Direct By Mr. Charney

.

. 409

PLAINTIFF EXHIBITS

18
19

.

Received

Exhibit No.

20

355, Section 202-21,

414

21

419

417
DEFENDANT EXHIBITS

22
23
24
25

Received

Exhibit No.

287

Q-10
NYC_2_00025272

299

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

435

Case 1:08-cv-01034-AT-HBP Document 282 Filed 05/30/13 Page 219 of 219

.

. . . . . . . .

. . . . . . . . . 350

1

I-7

2

Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360

3
4
5
6
7
8
9
10
11

12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

436

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 1 of 225
D3k9flo1
1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

2

------------------------------X

3

DAVID FLOYD, et al.,

4

Plaintiffs,

6

CITY OF NEW YORK, et al.,

7
8

08 CV 1034 (SAS)

v.

5

Defendants.

------------------------------x

9

New York, N.Y.
March 20, 2013
10:00 a.m.

10

Before:
11

HON. SHIRA A. SCHEINDLIN,
12

District Judge
13
APPEARANCES
14
BELDOCK LEVINE & HOFFMAN, LLP

15

Attorneys for Plaintiffs
BY:

16

17
18

JENN ROLNICK BORCHETTA
JONATHAN MOORE

COVINGTON & BURLING, LLP
BY:

19

Attorneys for Plaintiffs
KASEY MARTINI
GRETCHEN HOFF VARNER
ERIC HELLERMAN
BRUCE COREY

20
CENTER FOR CONSTITUTIONAL RIGHTS

21

Attorneys for Plaintiffs
BY:

22

DARIUS CHARNEY
SUNITA PATEL
BAHER AZMY

23
24
25

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

437

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 2 of 225
D3k9flo1
1

438

-

APPEARANCES (Cont'd)

2

3
4
5
6
7

MICHAEL A. CARDOZO
Corporation Counsel for the City of New York
Attorney for Defendants
BY'
HEIDI GROSSMAN
BRENDA E. COOKE
JOSEPH MARUTOLLO
MORGAN D. KUNZ
SUZANNA PUBLICKER
LINDA DONAHUE
LISA M. RICHARDSON
JUDSON VICKERS

8
I

9

I
i

10
ll

12
13
14
15

16
17
18

19
20

21
22

23
24
25
SOUTHERN DISTRICT REPORTERS 1 P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13
D3k9flo1

Page 3 of 225

439

1

(In open court)

2

THE COURT:

What's the problem with the audiotapes?

3

MS. COOKE:

The plaintiffs have provided to us just a

I·

4

few minutes ago transcripts of audiotapes that they had

5

prepared and available as, according to them, this past

6

weekend.

7

going to be used with the witness who had began testifying

8

yesterday, Officer Polanco.

9

Some of the transcripts are for audiotapes that are

We haven't had an opportunity to review the accuracy

10

of these transcripts.

11

audio.

12

transcribe inaudibles or not.

There were inaudible portions of the

I'm not sure how the transcript has been able to

I

So that the defendants' position is that these are

13

14

belated.

15

cross-examination of the witness who is testifying.

It's prejudiced us at this point with respect to the

THE COURT:

17

I'll take them after you've had a chance to verify

Then don't use them.

them.

19

We'll hear the tape without the transcript.

20

no jury.

21

There is

the transcript after you compare it to the tape.

22
23

I won't have the benefit of the transcript.

MR. MOORE:

I'll get

Just so you understand, we had a court

reporter sit down and transcribe them.

24

THE COURT:

25

I would have loved it.

That's good but she just got it.
But I can't do it because they

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

I
I
I

i

16

18

I

Case 1:08-cv-01034-AT-HBP
D3k9flol

1

Document 284 Filed 05/30113 Page 4 of 225

haven't had the chance to compare it.

It's that simple.

As soon as you've had the chance,

2

440

3

if you find it accurate.

4

I'd like to use it

have difficulty understanding the tape.

5

It will make it easier for me.

I

Now I came in hoping to talk about Professor

6

Silverman.

I read the affidavit declaration that he wrote

7

yesterday dated March 18.

8

offensive.

9

He doesn't like my rulings.

I foung it, generally speaking,

Essentially he was trying to tell me what to do.

10

reason.

11

not a lawyer.

12

They're wrong for this reason that

was offensive.

13

That's really not his place.
Not a judge.

Not his business.

He's

And the whole tone of the thing

The bottomline, however, is I asked you -- I found the

14

transcript of the last conference and I asked you to explain

15

the burden.

16

what to do, what's relevant and what's not relevant.

17

wanted for you to tell me the burden.

18
19
20

That's all.

I didn't really want him to tell me

I looked at the transcript.

I just

Remember that.
I said get back to me and

tell me what's so burdensome.
I received an e-mail that you sent to my clerk last

21

night which said:

Just to be clear the only outstanding data

22

issue between the parties is the Ross survey response data for

23

the responses to questions lC, 0 and F in the 2008 survey, and

24

questions 20 and E in the 2012 survey.

25

remember that.

And that's right.

I

There was five questions that I said at the end
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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D3k9flo1

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1

of Thursday's conference that the defense could have the raw

2

data.

3

I really found his arguments not persuasive.

The

4

notion that nobody is going to publish this raw data that's

5

turned over to the defense under a confidentiality order is

6

nonsense.

7

it's going to be testified to at a high profile trial.

8

everybody is going to want his article.

9

going to prevent his getting an academic publication.

I

This is going to make it more publishable because

I

10

So

That's nonsense.

Not

I don't

believe it for a minute.

11

Now,

I asked you about burden.

12

MR. CHARNEY:

Tell me about burden.

Your Honor, I think the declaration

13

refers to the fact that the data is actually in the possession

14

of Professor

15

THE COURT:

16

MR. CHARNEY:

That's true.

It did mention that.

And Professor Eterno, it's our

17

understanding 1

18

Professor Silverman doesn't have the data.

19

bottomline.

20
21
22

is away this week at a conference in Texas.
That's just the

We can make efforts when Professor Eterno returns,
obviously, to get it as soon as possible.
But, again, we're still at a little bit of a loss as

23

to why that can prevent defendants from deposing him or

24

cross-examining him to the fullest extent on all of his methods

25

and all of his results and all his

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

I

I

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 6 of 225
D3k9flo1

THE COURT:

1

2

442

I don't think it should prevent the

deposition.

3

Did you talk to Silverman?

4

MR. CHARNEY:

We spoke to defendants.

We're good to

5

go on Monday morning for the deposition so that can-- we're

6

ready to proceed.
THE COURT:

7

I think you have to.

I think this request

I allowed it.

8

is a bit of a collateral matter.

9

like in his declaration was his telling me I don't intend to
He doesn't get a choice.

What I didn't

10

testify about that.

Once he's on the

11

stand, if something is relevant and the subject of

12

cross-examination 1 he has to testify about it.

13

bottomline.

That's the

He doesn't get to choose what he testifies to.

So he may indeed end up testifying to it because he

14
15

may be asked about it.

16

It has to go forward Monday.

17
18

But I can't postpone his deposition.

As far as getting this raw data to the defendant, it
is under a confidentiality order, is it not?

19

MR. CHARNEY:

20

THE COURT:

Yes.
So you can't give it away to anybody else.

21

You can't give it to other academics or journals or anybody.

22

Right.

23

And it may never be admitted at a public trial.

So

24

I'm not concerned about that.

You may use it to do your own

25

analyses or run your own regressions or whatever, but I doubt

SOUTHERN DISTRICT REPORTERS, P.C.
{212)

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that it's going to be an exhibit.

2

is going to be an exhibit that's going to somehow leak the

3

article before it's printed.

4

443

in any event.

5

I don't believe his raw data

So I'm not concerned about that

So the order stands, or at least you have to still

6

explain to me the burden, which you haven't, but maybe because

7

you haven't had a chance to talk to Dr. Eterno.

8

This may, in fact, when Silverman testifies, I don't

9

know when you plan, but since I've ordered it turned over, it

10

has to be turned over.

11

So when is he supposed to testify?

12

MR. CHARNEY:

We were hoping to put him on next week,

13

Wednesday, Thursday, or Friday.

14

out when Professor Eterno is going to return.

15

THE COURT:

But I guess we have to find

I don't know that it requires him.

He may

16

be able to instruct an assistant or Dr. Silverman as to how to

17

retrieve this stuff.

18

oral argument

19

wouldn't be hard to gather.

20

him coming back.

21

ordered it, and I don't change my mind.

22

I still thought it sounded from the last

I did review this transcript -- that it
So I don't know that it requires

But you need to look into it.

The deposition has to go forward.

Because I've

I didn't find

23

anything in his declaration particularly persuasive other than

24

his views as to what's relevant or not, what he's going to

25

testify to or not, the ruling he would make if he were a judge,
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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D3k9flo1
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444

etc.

2

Are we ready for --

3

MR. CHARNEY:

4

examination.
MR. MOORE:

No.

the 29th?

7
8

Judge, did you decide what we're doing on

THE COURT:

5

6

Yes, Officer Polanco, on direct

I wanted to play it by ear, see where

v1e're up to.

9

MR. MOORE:

How long were you going to play it by ear?

10

THE COURT:

We're finding out who can't be here, and

11

what witnesses it affects.

12

people can't be here, no problem.

It may be a particular witness that

13

MR. MOORE:

Just about scheduling.

14

THE COURT:

That's right.

15

might help.

16

here that day.

17
18

Because those who can't be here may not need to be

I don't know.

You've got big teams.

teams.

So talking to each other

Both sides have big teams.

Big

It may be that, to use the day or half the day --

19

MR. MOORE:

Okay.

20

THE COURT:

You can adjust who i t is.

21

MR. MOORE:

It's no shorter than a half day, right?

22

THE COURT:

No shorter than a half day.

23

MR. MOORE:

No longer than a half day?

24

THE COURT:

Correct.

25

The worst case, we would stop at

1:00 for everybody's sake.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 9 of 225
D3k9flol
But check it out.

1

445

If you can't get a witness for whom

if you

2

certain people are willing to miss something like that,

3

can't get that kind of witness, then we can't go.

4

hoping we can because I have so many down days coming.

5

It's a long trial.

6

said, I'm not going to interfere with anybody's religious

7

practices.

8
9

I'm still trying to use it.

But I'm
I know.

But, as I

ADHYL POLANCO, resumed.
DIRECT EXAMINATION CONTINUED

10

BY MR. CHARNEY:

11

Q.

Good morning again, Officer Polanco.

12

A.

Good morning.

13

Q.

I

14

A.

I understand.

just want to remind you that you're still under oath.

THE COURT:

15

Would you all speak up.

Everybody.

16

Everybody.

17

Q.

18

page of Exhibit 419 and it was Bates number NYC_218924.

Officer Polanco yesterday you were looking at the second

19

Can I approach the witness and give him a copy?

20

THE COURT:

21

MR. CHARNEY:

22

Q.

You don 1 t need to ask.
Thank you.

Looking at the second page of this.
Do you see the categories of information on this

23

24

document.

25

form,

I believe yesterday you testified that you hand this

the monthly officer activity form in to your supervisor

SOUTHERN DISTRICT REPORTERS, P.C.
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1

every month; 2s that right?

2

A.

Into the immediate supervisor, yes.

3

Q.

And what information, again, if you can tell us do you

4

record on this form?

5

A.

6

criminal.

7

Q.

8

form?

9

A.

How many, whether it 1 S a felony or it's a misdemeanor.

10

Q.

Does this form include any information about the underlying

11

circumstances of an arrest that you do?

12

A.

No.

13

Q.

Does this form include any information about the underlying

14

circumstances of a stop and frisk that you conduct?

15

A.

No.

16

Q.

So -- I think you testified yesterday that you -- your

17

supervisor does discuss this information on this form with you

18

from time to time?

19

A.

Yes.

20

Q.

When he or she discusses the information on this form with

21

you, does he discuss with you the underlying circumstances of

22

any of the arrests that are notated on this form?

23

A.

No.

24

Q.

Does he or she discuss with you the underlying

25

circumstances of any stops and frisks that are notated on this

Arrests, radio runs, violation, can be parking, moving,

What information about an arrest would you put on this

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

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44 7

1

form?

2

A.

No.

3

Q.

Officer Polanco are you familiar with the term checkpoint?

4

A.

Yes.

5

Q.

What does that term mean to you?

6

A.

Checkpoint is-- I'm sorry.

7

Q.

Go ahead.

8

A.

Checkpoint is a -- they will assign supposedly -- like I

9

say, what's in writing and what we do is two very different

10

things.

11

Supposedly, supposed to have a van with constant

12

flares.

You're supposed to have a spot car or a escape car.

13

You're supposed to have a spotter.

14

three or four officers.
That's how it's written.

15

And I believe at least

How we do it is very

16

different.

17

Q.

18

talking about when you were in the 41st precinct?

19

A.

Yes.

20

Q.

How did you do it when you were in the 41st precinct?

21

A.

One of -- going back to the last question.

22

supposed to set out a pattern on which vehicle you're stopping.

23

To prevent profiling or anything like that, you're supposed to,

24

for example, stop every third car or every fourth car.

25

way you're not stopping individual based on what they look.

How do you do it?

When you say how you do it, are you

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

You also

That

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1

You're just stopping every second or third car.

2

448

it's written.

3

That's how

How we do it, basically we get told by the lieutenant

4

or the sergeant:

5

how you get them, get them.

You need X amount of numbers.

6

THE COURT:

7

THE WITNESS:

8

I don't care

Go ahead.
Sometime they put two cops.

Sometime

they put three.

9

I don't remember ever seeing constant flares that

10

they're supposed to be.

11

we don't.

12

stopping every third vehicle.

13

want.

14

that they want.

15

Q.

So are these checkpoints vehicle checkpoints?

16

A.

Vehicle checkpoint, yes.

17

Q.

And what is the-- according to how you did it in the 41st

18

precinct, what was the purpose of the checkpoint according to

19

your supervisors?

20

A.

21

Sometime we have escape car.

Sometime

And definitely we almost never follow the pattern of
We are free to stop whoever we

And summons whoever we want.

Just to get the numbers

According to them would be to high incident area.
MS. COOKE:

Objection, your Honor.

The witness

~s

22

referring to speculative testimony about what the supervisor's

23

purpose was.

24

25

THE COURT:

No.

He said what was the purpose of the

checkpoint according to your supervisor.
SOUTHERN DISTRICT REPORTERS, P.C.
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1

Were you fold?

2

THE WITNESS:

3

THE COURT:

4

THE WITNESS:

449

Yes.
Go ahead.
We were told that they needed the

5

numbers.

That's what they said.

6

Q.

Did they tell you what they meant by numbers?

7

A.

Summonses or arrests.

8

Q.

So -- summonses or arrest.

Okay.

And how often did you --- did you wor:k or did you

9

10

perform any checkpoints during the time that you were a patrol

11

officer in the 41st precinct?

12

A.

Yes, I did.

13

Q.

How often did you do it,

14

A.

At the beginning almost never did i.t for the first two or

15

three years.

16

affairs, it was a daily thing.

17

Q.

18

reported what you reported to internal af\airs.

19

report to internal affairs?

20

A.

21

seeing out there.

22

for no reason, being called to scenes that \did not observe a

23

violation and being forced to write a summed, that I didn't

24

observe.

if you :recall?

After I reported what I nported to internal

So let's break that down a little

bi~

You said after you
WhaL. did you

\
\

25

Back in 2009 I was extremely bothered ~th what I was
The racial profiling, th\ arresting people
',

\

Complaint reports manipulation.

Bas'·~ally

I
SOUTHERN DISTRICT REPORTERS,
[phone]

P .·

a robbery

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 14 of 225
D3k9flo1
Polanco

450

1

would come in and we would be told not to take it for robbery

2

because the numbers for the week will be too high in order to

3

keep crime as low as they say it is.

4

us.

5

Q.

6

so you reported something to internal affairs?

7

A.

Yes, I did.

8

Q.

When did you do that?

9

A.

I first did it informally.

And that's what they told

I

So you said that you were bothered by these problems.

And

It was about September 2009.

10
ll

ICO, door.

12

you guys have a copy of

13

about minorities in the community and how we treating them.

14

How I grew up in Washington Heights.

15

I

wrote a letter and I put it in the integrity control officer,

grow up in the hood.

16

I don't know if

And the letter I believe we have

basically expressing my concern

I know what it's like to

Basically that not everybody who lives in a high crime

17

area is a criminal.

18

reason.

And we were handcuffing kids for no

They would just tell us handcuff them.

19

And boss, why are we handcuffing them?

20

Just handcuff them.

21

Some of those kids were not doing anything.

We'll make up the charge later.

22

those kids were just walking home.

23

Some of

just walking from school.

24
25

I
I
I
I

Some of those kids were

I remember one incident where one kid -- and I
reported this -- they stopped his brother.

He was 13.

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

And he

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1

was waiting for him from school at the corner to bring him

2

451

home.

3
4

When he came to us, the officer-- Officer, what's

wrong with my little brother?

Was he acting out?

He wind up with handcuffs too.

5

For simply asking what

6

was going on with his brother.

7

Q.

Do you remember approximately when this incident occurred?

8

A.

2009.

9

Q.

Know what part of the year it was?

10

A.

No.

11

Q.

And you said you observed this incident.

12

A.

I was called to the scene, yes.

13

that transported a group of the kids back to the precinct.

14

Q.

15

incident?

16

A.

17

me exactly what he did and what happened.

18

Q.

So you reported this incident to internal affairs?

19

A.

That and many others, yes.

20

Q.

What ot.her incidents did you report to internal affairs?

21

A.

I reported that I was being forced to write summonses by

22

the commanding officer and Lieutenant Valenzano.

23

I did report it to internal affairs.

I don't recall.

I was actually the one

And are you the one that spoke to the brother about this

Yes.

He was in the back of my car when he -- when he told

I reported to them specifically that on one occasion I

24

was called to a scene by the captain and I was instructed to

25

write a summons for a person for no dog license.
SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

I reported to

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1

internal affairs that under intimidation we have to write these

2

summonses.

3

was bothered by it.

4

Q.

5

write the summons?

6

A.

I had to.

7

Q.

Why do you say you had no choice?

8

A.

He was the commanding officer.

9

call, as we're going to hear the audios, on what to do when our

10

But my problem was I did not observe a dog.

And I

And I reported it.

Now you said you were bothered by it.

Did you actually

I had no choice.

We had been spoken in roll

supervisor comes and tells us when to do something.
'
He knows that I'm not supposed to

He is the captain.

11

12

be writing a summons for something I didn't observe.

13

calling me to the scene?

14

telling me to write a summons?

15

Q.

16

concerns to internal affairs?

17

A.

Why is he

And why when I get to the scene he's

When did you report these concerns -- first report these

It was in September of 2009.

Informally.

Then I make a phonecall in November, I believe.

18

I

19

made a call to internal affairs with the same allegations,

20

telling that the way we are being treated in the 41st precinct,

21

the way they were manipulating the crime statistics, the way

22

they were treating youth and minorities in the 41st precinct.

23

And that was in November.

24

Q.

25

you contact them?

And-- yes.

I'm sorry.

So the first time you contacted them in September how did

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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D3k9flo1
Polanco

It was a letter.

1

A.

2

afraid.

3

precinct -- this police department is not as black and white as

4

they paint it.

5

Q.

Why do you say it's not that easy?

6

A.

You seen what happened to Agent Schoolcraft.

It's not that easy to report corruption.

I was

This

It's not that easy to report corruption.

MS. COOKE:

7

An anonymous letter that I wrote.

453

Objection, your Honor.

The witness is

8

going to be testifying about information that's been precluded

9

from this case by order of the court with respect to Officer

10

Schoolcraft.
THE COURT:

11

12

I don't know what he meant by what

happened to him.

13

Is he fired?

14

THE WITNESS:

15

Officer Schoolcraft was put in a psych

ward for three days.
THE COURT:

16

17

in.

18

The discipline that was imposed can come

learn what happened.

19

20

I'm not trying the case as to why it happened, but I can

So I'll take that evidence.
sidewalk for three days.

He was put on the

Go ahead.

21

THE WITNESS:

Psych ward.

22

THE COURT:

23

THE WITNESS:

24

MR. MOORE:

Psych ward, Judge.

25

THE COURT:

Psych ward.

Side what?
In the hospital,

a mental --

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 18 of 225
D3k9flo1
Polanco
1

MR. CHARNEY:

2

THE COURT:

3

MR. CHARNEY:

4

THE COURT:

454

A psychiatric ward.
I'm sorry.

He was assigned to work there?

He was corrunitted to one.
Then I'm not taking it.

5

Vlhy he was committed to a psychiatric ward.

6

that from the record.

7

MS. COOKE:

So I'm striking

were talking about.

8

I have no idea

9

10

Q.

!

1

m sorry.

I thought it was a reassignment that you

Thank you, your Honor.

Other than-- let 1 S put Officer Schoolcraft to

the side.

11

Is there any other reason why you were afraid to

12

report these concerns that you had to IAB?

13

A.

14

to back me up.

15

Q.

Retaliation.

I definitely knew that my union was not going

And so that -- you sent an anonymous letter.

16

Now the second time you contacted them you said was

17

November 2009?

18

A.

Yeah, I believe in November 2009.

19

Q.

And actually going back in September on the letter, did you

20

address the letter to anyone, any specific person?

21

A.

22

anything.

23

they were going to retaliate against me.

24

Q.

25

No.

I -- it was a letter with no date,

no name, no

I was afraid that if they found out it was me that

So you didn't identify yourself in the letter.
Did you identify what precinct you worked in 1n the

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 19 of 225
D3k9flol
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1

letter?

2

A.

3

did, yes.

4

Q.

5

November, did anyone from IAB contact you?

6

A.

7

No.

8

Q.

9

time.

455

The South Bronx, yes.

Yes, I did.

The 41st precinct.

I

Between September and the second time you contacted them in

Not necessarily.

I don't recall anybody contacting me.

And then in November you said you contacted them a second
How did you contact them?

10

A.

I made a phonecall actually.

11

Q.

Did you call someone specific?

12

A.

I called the IAB number they gave us.

13

Q.

Did you speak to anybody?

14

A.

I spoke to an investigator, yes.

15

Q.

Do you remember the investigator's name?

16

A.

No, I don't.

17

Q.

After that phonecall in November did you ever communicate

18

with IAB again about these concerns?

19

A.

After my suspension on December 12, yes.

20

Q.

We'll come back to that.

21

Now, in September when you raised concerns with IAB in

22

your letter did you mention UF 250s at all in that letter?

23

A.

Yes.

24

Q.

What is a UF 250 again?

25

A.

Stop, question, and frisk.
SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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D3k9flol
Polanco

456

1

Q.

2

UF 250s?

3

A.

4

searching young Blacks and Hispanic for no reason.

5

Q.

6

happening?

7

A.

Yes.

8

Q.

What did you say specifically?

9

A.

It was CompStat.

10

Q.

What do you mean by that?

11

A.

It's the numeric system that the police department have to

12

hold police officers and supervisors accountable.

13

Q.

14

that CompStat is causing police officers to stop young Black

15

and Latino people illegally?

16

A.

17

They want to look good.

18

They want to arrest -- they have arrested more people than ever

19

but at the same time crime is more than ever.

20

Q.

21

41st precinct officer make a stop, question, and frisk that you

22

believed did not -- was not based on reasonable suspicion?

23

A.

Many times.

24

Q.

How many times do you think?

25

A.

Many times.

What specifically did you say in the letter about the

That we are illegally stopping and we are illegally

Did you give any specifics as to why you believed that was

In your view, based on your experience why do you think

Because they want numbers.

They want numbers at all costs.

Which is hard for me to understand.

When you worked in the 41st precinct did you ever observe a

More than 10.

I would say more than 20 times.

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 21 of 225
D3k9flo1
PolanCo
1

Q.

Yesterday we talked about driving with a supervisor.

45 7

Do

;

I

2

you remember that?

3

A.

Yes.

4

Q.

And I believe you testified -- let me just make sure I

5

don't misstate that.

6

transcript, your Honor, if your Honor will permit me.

7

I can just read this is from yesterday's

This is page 432, line 6.

8

"Q.

Are you familiar with the term driving a sergeant or

9

driving a supervisor?

10

"A.

Yes.

11

"Q.

What does that mean?

12

"A.

That means that whatever it seems like it's going to be.

13

You have no discretion whatsoever.

14

supervisor,

15

at that time, that means that they are going to drive around

16

and they are going to stop people for you, or tell you to go

17

250 this guy, go summons this guy, go arrest this guy.

18

have absolutely no discretion.

19

If you're driving a

if you're driving the sergeant in the 41st precinct

You

11

Do you recall testifying to that?

20

A.

Yes, I do.

21

Q.

So, when you mentioned "or tell you to go 250 this guy," is

22

your recollection that when you drove a supervisor in the 41st

23

precinct a supervisor directed you to conduct a stop and frisk

24

on one or more occasions?

25

A.

Yes.
SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 22 of 225
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1

Q.

And how many times do you recall that happening?

2

A.

Many times.

3

Q.

More than five?

4

A.

458

More than five, yes, definitely.
THE COURT:

5

6

I don't have a number on the top of my--

Would the supervisor just point to

somebody on the street and say go stop that guy?
THE WITNESS:

7

Any group of black kids or Hispanic kids

8

on the corner, in the park, or anywhere,

9

just go grab, go 250

them, go summons them.
Sometimes they will ask me to summons them.

10
11

ask the supervisor why.

12

We will

something like that.

13

THE COURT:

14

THE WITNESS:

And they will say unlawful assembly or

What?
Unlawful assembly.

Because there's more

15

than three of them on the corner.

And we will write a

16

summonses at the direction of the supervisor.

17

Q.

18

these instructions?

19

A.

20

McHugh, that was his special, that was what he did almost

21

everyday.

22

Q.

23

an frisks in the 41st precinct that you did not personally

24

believe you had a reasonable articulable suspicion for?

25

A.

Do you recall which supervisor or supervisors gave you

Sergeant Rodriguez, Lieutenant Valenzano, and Captain

So, did you, 2n fact,

Yes.

yourself conduct any stop, question,

But I did not have the discretion not to do it.

SOUTHERN DISTRICT REPORTERS, P.C.
1212) 805-0300

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459

So were the only times you did it when-- I'm sorry.

1

Q.

2

Strike that.

3

Why did you believe you didn't have the discretion?

4

A.

5

choice.

6

Q.

7

affairs bureau?

8

A.

Yes, I did.

9

Q.

When did you do that?

10

A.

I did it in the letter in September and I did it in

11

November, again.

12

Q.

Over the phone?

13

A.

Over the phone.

14

Q.

What specifically did you say in the letter about this

15

practice of a supervisor instructing you to conduct a stop,

16

question, and frisk?

17

A.

18

were just walking up and down the street or coming home, coming

19

home from school or going to school.

20

whatsoever, they will direct us to stop them.

21
22

23
24
25

Because I had the supervisor next to me.

It wasn't a

Did you report any of these incidents to the internal

I told them that they had no basis to stop kids, that kids

I also pointed out a summons.

With no reason

Sometimes they will ask

to even summons them.
THE COURT:
was no basis?

What did you do with the UF 250 if there

What was checked off?

THE WITNESS:

They would tell us what to do basically.

SOUTHERN DISTRICT REPORTERS, P.C.
[212) 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 24 of 225
D3k9flo1
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1

THE COURT:

2

THE WITNESS:

3

460

you do and then you articulate.

THE COURT:

4

5

Right.

THE WITNESS:

THE COURT:

9

THE WITNESS:

Burglary pattern.

Furtive movement?
Furtive movement was the special of the

Anything that can be justified after the stop.

before.

Not

After the stop.
I remember one of the recordings that I heard of

13
14

High crime area.

day.

11

12

So did you check off things like

Robbery pattern.

8

10

In the police department, your Honor,

high crime area?

6

7

Check off what?

another precinct.

And I heard this, but I didn't record it.

15

MS. COOKE:

Objection, your Honor.

16

THE COURT:

Objection sustained as to what was said.

17

MR. CHARNEY:

You can't talk about

let's just talk

18

about your precinct and your experience.

19

Q.

20

told to write 250s to lAB, did you give any specific examples

21

that you can recall?

22

A.

Yes.

23

Q.

Can you remember any of those specific examples'today?

24

A.

Yes.

25

check on his brother.

Did you -- when you complained about this practice of being

I believe I did.

Like the kids with the brother, that came out to
I gave him the address,

the date, even

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 25 of 225
D3k9flo1
Polanco

l

461

the person who issued the summonses.
One of those kids was actually 13.

2

And the commanding

3

officer was upset that he couldn't give him a summons.

So he

4

held him in the squad and told the squad to hold him for a few

5

hours to see if he had any information on guns or any drug

6

activity in the community.

7

Q.

8

summons?

9

A.

The commanding officer.

10

Q.

Was that Inspector McHugh?

11

A.

Inspector McHugh.

12

Q.

And why couldn't he give him the summons,

13

A.

Because he was 13.

14

Q.

So why -- can you tell

15

A.

The law don't allow you to give a summons to somebody under

16

16, I believe.

17

Q.

So what did the commanding officer do instead?

18

A.

He asked the squad, the detective squad to bring him

19

upstairs and hold him there until he give him information about

20

guns or drugs.

21

Q.

22

difference?

23

A.

24

information.

25

Q.

So you said who was upset that they couldn't give him the

if you recall?

And what would that information -- how would that make a

He wanted -- basically wanted him to snitch or to give them
That's what he wanted.

Now, you mentioned I think yesterday that, when we were
SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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03k9flol
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462

1

talking about roll calls, that you had recorded some of the

2

roll calls you attended in the 41st precinct?

3

A.

Yes, I did.

4

Q.

Approximately when did you do that?

5

A.

I believe I started in August, September.

6

maybe December of 2009.

7

Q.

And how did you record those roll calls?

8

A.

With a digital recorder, small digital recorder.

9

Q.

Do you know what kind of digital recorder it was?

10

A.

I got it at Radio Shack.

11

Q.

Did you know how to operate it when you used it to record

12

the roll calls?

13

A.

Yes, I did.

14

Q.

After you recorded the roll calls, what did you do with the

15

recordings?

16

A.

I kept them in my locker for a while.

17

Q.

You kept them in your locker?

18

A.

For a while, yes.

19

Q.

And how did you store them?

20

A.

I just put it on the shelf on top of my locker.

21

Q.

By -- you mean the recording device?

22

A.

Yes.

23

Q.

At any point in time did you provide copies of the

24

recordings to the police department?

25

A.

Went through

It's one of those smaller ones.

Yes, I did.
SOUTHERN DISTRICT REPORTERS, P.C.
(212} 805-0300

I

Case 1:08-cv-01034-AT-HBP
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Document 284 Filed 05/30/13

Page 27 of 225

463

Polanco

1

Q.

When did you do that?

2

A.

I believe i t was in December.

3

December.

4

Q.

Of what year?

5

A.

Of 2009.

6

Q.

And who in the police department did you provide them to?

7

A.

Internal affairs.

8

Carter.

9

name.

I believe it was in

There was -- at the time it was Sergeant

And there was another female sergeant.

I forgot her

10

Q.

And in what form did you provide them to the New York

11

police department?

12

A.

13

recorder.

14

Q.

So you gave them the actual recorder?

15

A.

Yes.

16

Q.

Did you alter the recordings in any way before you gave

17

them to lAB?

18

A.

No.

19

Q.

I want to show the witness -- show the witness physically

20

the CD that we have marked as Exhibit 284 and I believe

21

defendants have a copy of it.

22

to look at it.

They took the actual -- they took an actual recording, the

Can I show the witness?

THE COURT:

23

24

Q.

25

Exhibit 284.

I have an extra copy if you want

Of course.

Officer Polanco, you have a CD in front of you marked
Have you ever seen this CD before?

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 28 of 225
Polanco
D3k9flo1
1

A.

Yes.

2

Q.

When did you see it?

3

A.

A couple of days ago we reviewed it.

4

Q.

Did you open -- in other words did you listen to the

5

contents of that CD?

6

A.

Yes, I did.

7

Q.

What was on the CD, if you can recall?

8

A.

It was the recording I made on roll call.

9

464

three or four of them.

It was about

10

Q.

And you listened to the entirety of those?

11

A.

Yes,

12

Q.

Are those recordings true, accurate and complete copies of

13

the recordings that you gave to the internal affairs bureau?

14

A.

I did.

Absolutely, yes.

15

MR. CHARNEY:

16

One minute, your Honor.

(Pause)

17

Q.

18

affairs bureau, did you provide any other person access to that

19

recorder that you know of?

20

A.

Maybe my partner.

21

Q.

When you say you provided him access, how did you provide

22

him access?

23

A.

I played it for him by the locker.

24

Q.

Other than that, did you provide access to anybody else?

25

A.

Maybe my lawyer.

Prior to giving your recording device to the internal

I had a lawyer back then.

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Yes, maybe.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 29 of 225
D3k9flo1
Polanco
1

Q.

How did you provide access to your lawyer?

2

A.

We actually review it together.

3

Q.

I think I've already asked you this.

4

465

sure.

5

I

just want to make

Did you alter these recordings in any way before you

6

gave them to internal affairs?

7

A.

No.

8

MR. CHARNEY:

9

(Pause)

10
11

One more minute, your Honor.

Sorry.

Your Honor we would move for the admission of this
exhibit into evidence.

12

THE COURT:

Yes.

Any --

13

MS. COOKE:

No objection, your Honor.

14

THE COURT:

Right.

15

(Plaintiffs' Exhibit 284 received in evidence)

16

MR. CHARNEY:

Received.

We would like to play portions of these

17

recordings.

We've provided the list of the portions to the

18

defendant.

19

portion, which track number and which portion.

We will obviously announce it before we play each

So I believe we're going to start with track 1.

20

And

21

we're going to start at 3 minutes and 3 seconds and play it

22

to --

23

(Audio recording played)

24

Not yet.

25

We're going to start at 3 minutes and 3

seconds and play to 8 minutes and 1 second.

SOUTHERN DISTRICT REPORTERS, P.C.
{212) 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 30 of 225
D3k9flo1
Polanco
I apologize, your Honor.

1

2

466

Hopefully this will work

better than yesterday.

3

(Audio recording played)

4

MR. CHARNEY:

Your Honor, we think it might be easier

5

if we play portions, stop it.

6

it.

And then ask some questions and continue.

7

THE COURT:

8

MR. CHARNEY:

9

We'll tell you where we stopped

That's fine.
So we just played from 3:03 to-- where

did we stop it -- I'm sorry, 3:03 to I guess 4:26.

10

Q.

Officer Polanco did you hear the recording we just played?

11

A.

Yes, I did.

12

Q.

Do you know who the speaker on that recording is?

13

A.

That is a union delegate from my squad.

14

Q.

Do you know that delegate's name?

15

A.

Officer Herran.

16

Q.

Do you recall being present at that -- first of all, was

17

that a roll call that you recorded?

18

A.

Yes.

19

Q.

Do you recall being present at that roll call?

20

A.

Yes.

21

Q.

Do you -- did you hear Officer Herran mention the term

22

twenty and one in that recording?

23

A.

Yes.

24

Q.

Again, what is your understanding of twenty and one?

25

A.

Twenty summonses and one arrest per month.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 31 of 225
D3k9flol
Polanco

46 7

1

Q.

Did you hear Officer Herran say anything about what the

2

union -- in that recording about what the union's position was?

3

A.

4

were backing it up.

He said that the union was backing it up and the trustees

MR. CHARNEY:

5

I'm sorry, your Honor.

(Pause)

6

7

Q.

So we're actually going to go back 10 seconds to 4:16 and

8

then play it through.

9

(Audio recording played)

10

Q.

You heard that portion?

11

A.

Yes.

12

Q.

Did you hear Officer Herran say:

13

adjudicate -- and I apologize, your Honor -- fucking COs on

14

your activity?

15

A.

Yes.

16

Q.

Do you know what that means?

17

A.

That he got to go adjudicate command discipline 1 if I may

18

explain?

19

Q.

Yes.

20

A.

Command discipline is when an officer get in trouble 1n the

21

precinct level, not wearing black socks, being late, not

22

showing up to court, any minor little infraction that a cop

23

does, you get basically the command -- your supervisor can

24

write you up for a CD, command discipline, where you can lose

25

vacation days.

I got to go in there and

Tell us what command discipline is.

SOUTHERN DISTRICT REPORTERS, P.C.
I 2121 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 32 of 225
Polanco
D3k9flo1

468

1

Q.

And do you -- what did you understand Officer Herran to

2

mean when he said:

3

your activity?

4

A.

5

to depend on what activity we have.

6

Q.

What do you mean by that?

7

A.

That if we don't have the twenty and one, for example, and

8

I get a CD for X reason, I didn't have black socks on, the

9

penalty can be one and admonish, or it can be three or four

I got to go in there and adjudicate CDs on

Basically the penalty that they're going to take 1s going

10

for the past basically three months.

12

Q.

13

than what Officer Herran said?

14

A.

15

!

vacation days, depending on my activity, how my activity was

11

I

they do it.

how they do it, other

And how do you know that's, in fact,

That's how the supervisor, that's how all the cops told us

16

MR. CHARNEY:

Continue.

17

(Audio recording played)

18

Q.

Did you -- that was still Officer Herran?

19

A.

Yes.

20

Q.

Did you hear him referring to a sheet that a platoon

21

commander has?

22

A.

Yes.

23

Q.

Do you know what he was referring to?

24

A.

It's called the daily recap sheet.

25

lieutenant most of the time, he will, after every tour or in

The platoon commander,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

r

Case 1:08-cv-01034-AT-HBP
D3k9flol

Document 284 Filed 05/30/13
Polanco

Page 33 of 225

4 69

1

the middle of the tour he will call us or he will come up to us

2

and ask us what we have done for the day and he will write it

3

down.

4

Q.

5

mean by that?

6

A.

7

summonses, how many B summonses we have written or how many

8

people we have arrested.

When you say what you had done for the day, what do you

Specifically he wanted to know how many 250s 1 how many C

MS. COOKE:

9

Can you just announce the time.

10

MR. CHARNEY:

11

So now we 1 re going to start at 5:06 and keep going.

12

So that was 4:23 to 5:06.

Thank you.

13

(Audio recording played)

14

MR. CHARNEY:

We stopped at 6:30.

So that was 5:06 to

15

6:30.

16

Q.

Officer Polanco you heard that portion?

17

A.

Unfortunately, yes.

18

Q.

And you heard mention of I believe was it a collar, your

19

collar is one collar.

20

A.

Yeah, that you have to make one arrest.

21

Q.

And then I believe he said something about crush the -- and

22

again pardon my language -- fucking city.

23

that means?

24

A.

25

city.

What -- do you know what that means?

What he said was make it on your ROO.

Do you know what

Crush the fucking

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 34 of 225
D3k9flo1
Polanco
1

Q.

What does that mean to you?

2

A.

470

This is shameful that a cop is saying this.
When he's saying make it ROO.

3

If I work Monday to

4

Friday and Saturday will be my next day off, he's asking me to

5

make an arrest on Friday night so whoever I arrest on Friday

6

night for whatever reason 1

7

and the city will have to pay me time-and-a-half to come in.

8

That's when my daily gets done, yes.
MR. CHARNEY:

9

I'm guaranteed overtime the next day

Continue now from 6:30.

(Audio recording played)

10
11

Q.

Did you on that portion -- you heard that portion?

12

A.

Yes.

13

Q.

Did you hear a reference again to a daily recap?

14

A.

Yes.

15

MS. COOKE:

Can I get the end of that.

16

MR. CHARNEY:

7:26.

17

Q.

And what is the daily recap again?

18

A.

This is the -- a sheet that a platoon commander has that he

19

will go around to every officer under his platoon and ask him

20

what he had done for the day.

21

Q.

So we're at what -- where are we starting.

22

MR. AZMY:

23

MR. CHARNEY:

24
25

7:26.
So we got about 30 seconds left.

from 7:26.
(Audio recording played)

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Start

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 35 of 225
D3k9flo1
Polanco
1

Q.

2

roll call took place?

3

A.

I would say between September and November of 2009.

4

Q.

I think the next --we're going to play another portion

5

from-- we stopped at 8 minutes and one second, I think.

6

We're going to play another portion on track 1.

4 71

7

Do you remember, Officer Polanco, approximately when this

is at 9:47 to 13:17.

8
9

This

{Audio recording played)
Q.

Can you just tell us first of all, Officer Polanco, who is

10

speaking on this portion of the recording?

11

A.

It's another union delegate.

12

Q.

Can you spell that.

13

A.

F-U-N-D-A-R-0.

14

Q.

Okay.

Thank you.

It's Officer Fundaro.

We're starting at v;hat point?

15

MR. AZMY:

11:11.

16

MR. CHARNEY:

17

{Audio recording played)

Go ahead.

18

Q.

Did you hear mention of somebody named Mandy or Maney and

19

Angel?

20

A.

Maney.

21

Q.

Who is Maney?

22

A.

Maney is the third union delegate.

23

Q.

Who is Angel?

24

A.

Angel Herran is the person that spoke previously.

25

Q.

Is that the other union delegate?

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 36 of 225
D3k9flo1
Polanco
1

A.

Yes.

2

3

472

MR. CHARNEY:

We're going to start again at -- we're

at 10:34 now.

4

(Audio recording played)

5

Q.

Did you just hear Officer Fundaro talk about the one and

6

twenty?

7

A.

Yes.

8

Q.

And did you hear him say that it was going to get a lot

9

worse?

10

A.

Yes.

11

Q.

Did you know what he meant by that?

12

A.

That today it's one and twenty.

13

later.

14

expected from us.

15

Q.

And then did you hear him refer to DVA?

16

A.

PBA.

17

Q.

PBA?

18

A.

The Patrolmen's Benevolent Association.

19

Q.

I think he said that's why the-- again pardon my

20

language -- the fucking PBA, he spoke to them in regards to

21

activity.

22

That it's going to be more

It's going to be more activity that's going to be

Did you hear him say that?

23

A.

Yes.

24

Q.

Based on your experience when you were in the 41st precinct

25

and do you know what, if any, conversations the PBA had with
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I
I

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 37 of 225
Polanco
D3k9flo1
1

4 73

NYPD management about these issues around activity?
MS. COOKE:

2

Object, your Honor.

I'm going to object.

To the extent it's

3

hearsay.

Conversations about the PBA.

4

That's certainly not an admission from the city.

5

THE COURT:

Sustained.

6

MS. COOKE:

Thank you, your Honor.

7

MR. CHARNEY:

8

So let's continue.

What time are we

starting at?
MR. AZMY:

9

MR.

10

10:58.

CHARNEY:

10:58.

Okay.

11

(Audio recording played)

12

MR. CHARNEY:

13

Well, we'll tell you.

Where did we stop?

14

Q.

Did you hear Officer Fundaro say there at the end you're

15

fighting against the current?

16

A.

Yes.

17

Q.

Do you know what that means?

18

A.

He's-- I believe he's indirectly talking to me because at

19

that time it was known around the precinct that I called

20

internal affairs protesting about the numbers and the

21

profiling.

22

Q.

23

track 1, was a roll call that took place after you had

24

contacted internal affairs?

25

A.

So is it your testimony that this particular recording,

Yes, either by the letter or by phone, yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 38 of 225
D3k9flo1
Polanco

47 4

1

Q.

2

that he was referring indirectly to you?

3

A.

4

Basically I'm a single officerr minority officer going against

5

the whole department.

6

Q.

7

that he or anyone else in the 41st precinct knew that you had

8

contacted internal affairs?

9

A.

10

And how do you know -- what is your basis for believing

My belief is that he said that you fighting the current.

Well let me ask you this.

What is your basis for believing

Because they in the precinct roster in the cafeteria next

to my name they wrote the name rat.

11

THE COURT:

They wrote what?

12

THE WITNESS:

Rat.

l3

MR. CHARNEY:

We're starting at.

14

MR. AZMY:

15

(Audio recording played)

16

MR. CHARNEY:

11:31.

So we ended at I guess 13:17.

17

Q.

Officer Polanco, did you ever yourself go to your union

18

either delegate or somebody else in the PBA with these

19

concerns?

20

A.

Yes.

21

Q.

When did you do that?

22

A.

Several times.

23

went to Herran.

24

Q.

Do you know what period of time this was that you did that?

25

A.

Throughout 2009.

In the precinct.

I went to Fundaro.

I

I went to Maney.

SOUTHERN DISTRICT REPORTERS,
1212) 805-0300

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 39 of 225

Polanco

D3k9flo1

1

Q.

And at any point-- I'm sorry.

2

specifically?

3

A.

4

What's up with this quota?

What's going on here?

What did you tell them

What's up with these numbers?

5

And I basically was told everything was dealt in the

6

last contract, that it was part of the contract, and that the

7

union was backing it up.
MR. CHARNEY:

8

9

now.

I want to listen to track number two

And we're going to go to -- those first two portions we

10

played were both from track one.

11

track two from the beginning to 2:29.

12
13

We're golng to play from

(Audio recording played)
Q.

Can you just first of all tell us --

14

MS. COOKE:

Time.

15

MR. CHARNEY:

16

MR. AZMY:

I'm sorry.

The time?

Eleven seconds.

17

Q.

Do you recognize this as-- I'm sorry.

Do you recognize

18

the speaker on the recording?

19

A.

Yes,

20

Q.

Who is that speaker?

21

A.

Sergeant Mervin Bennett.

22

Q.

How do you spell the last name?

23

A.

B-E-N-N-E-T-T.

24

Q.

I think you told us this yesterday, but who is Sergeant

25

Bennett?

I do.

Bennett.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

475

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 40 of 225
D3k9flo1
Polanco

He was one of the sergeants assigned to the platoon.

476

1

A.

Not

2

directly my sergeant but he's a platoon sergeant also.

3

Q.

4

did supervise patrol officers in the 41st precinct in 2009?

5

A.

Yes.

6

Q.

And this recording that we're listening to, is this one of

7

the roll call recordings, to your recollection, that you made?

8

A.

Yes, it is.

9

Q.

And do you recall being present at this roll call?

10

A.

Yes,

So it's correct that he does supervise patrol officers or

I do.

11

MR. CHARNEY:

Okay.

Let's continue at eleven seconds.

12

(Audio recording played)

13

MR. CHARNEY:

14

38 seconds, okay.

What time did we stop at.

15

Q.

16

Bennett referring to the twenty and one?

17

A.

Yes.

18

Q.

Did you hear him refer to any other numbers in that part?

19

A.

Yes.

20

Q.

What other numbers did you hear him refer to?

21

A.

He said it could be thirty-five and one.

22

forty-five and one.

23

Q.

Did you hear him say anything else on that portion?

24

A.

He said that unless we want to become a Pizza Hut

25

deliveryman we better do as they say.

In the portion we just listened to did you hear Sergeant

SOUTHERN DISTRICT REPORTERS,
[phone]

i

It could be

P.C.

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D3k9flo1
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1

MR. CHARNEY:

2

4 77

Let's continue playing at 38 seconds.

(Audio recording played)

3

Q.

4

being a zero?

5

A.

Yes.

6

Q.

Do you know what he meant by that?

7

A.

Being a guy who doesn't do as he said, that doesn't meet

8

the quota.

9

Q.

How do you know that's what he meant?

10

A.

He said it before that if you want to fight the power and

11

fight the quota and want to be a zero, basically if you don't

12

do what they ask the one and twenty, you're a zero.

13

they consider you.

In that section did you hear Sergeant Bennett refer to

14

MR. CHARNEY:

We stopped at what time?

15

1:35.

Let's continue at 1:35.

16

That's how

(Audio recording played)

Okay.

17

Q.

18

if you're a solid cop he will fight for you but if you're a

19

zero I'm not fighting?

20

A.

21

He will stick his head out for you, which he didn't anyway.

22

But if you don't, then he won't back you up.

23

recommend you for anything.

24

Q.

25

by that?

So did you hear Sergeant Bennett on that portion say that

Once again, if you meet his numbers, he will talk for you.

He won't

When you say stick his neck out for you, what do you mean

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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D3k9flo1
Polanco

4 78

1

A.

Basically if somebody else comes in with a complaint about

2

any officer.

And he sees that that officer have his numbers,

3

he will say:

No, no, this is one of my best cops.

4

numbers.

5

he can say:

6

v1hatever you want with him.

7

Can you please leave him alone.

Look at his

Or on the contrary,

Yeah, this cop doesn't meet my numbers.

Do

He doesn't have that power.

8

Q.

I'm sorry?

9

A.

He doesn't have that power, as you say.

10

Q.

How do you know he doesn't have that power?

11

A.

Because what happens at the precinct level is beyond the

12

sergeant.

13

decide what's going to happen.

14

Q.

15

let's play the last ten seconds.

16

He's a sergeant.

It's lieutenant and captains and inspector who

Let's-- we're starting at 2:19.

We're almost done.

So

(Audio recording played)

17

Q.

Move through this.

We're golng to play

18

starting at 4:50 and going to 8:33.

19

MR. CHARNEY:

track three

(Audio recording played)

20

nov1

21

the beginning.

Can we stop a second.

Can we go back to

Start at 4:50.

22

(Audio recording played)

23

(Continued on next page)

24
25

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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4 79

1

Q.

First of all, do you recognize the volce on this recording?

2

A.

Yes.

3

Q.

Who is this person?

4

A.

At the time it was Captain McHugh.

5

Q.

Who is Captain McHugh?

6

A.

He was the commanding officer at the 41st Precinct.
MR. CHARNEY:

7

8

I apologize, your Honor.

Can we go back

and just start it again at 4:50?

9

(Audiotape played)

10

Q.

Did you hear Inspector McHugh there say,

11

coming full circle again.

12

it says

13

Do you understand what he said on that portion?

14

A.

11

"The surmnonses are

The Bronx came in and" -- actually,

broadest to the city," but that's not what I heard.

Yes.

He said that the Bronx came lower in the city.

15

THE COURT:

16

THE WITNESS:

The Bronx came what?
Lower.

17

Q.

Do you know what he meant by "the summonses are going full

18

circle again''?

19

A.

20

the more summonses were issued, the more money the city

21

generates.

22

Q.

Is that what you understood him to mean by that?

23

A.

That was my understanding.

24

Q.

Do you know what he meant by the Bronx came in worse or was

25

worse than the city?

A summons is a money generating machine for the city.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

So

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 44 of 225
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480

1

A.

They compare all the boroughs, like all the summonses from

2

the Bronx, from Manhattan, and see which borough is having more

3

than others.

4

Q.

How do you know

5

A.

I used to do crime analysis.

6

of how they operate.

7

Q.

When you say "they," who are you speaking about?

8

A.

The chiefs.

9

Q.

Chiefs of?

10

A.

Borough, chief of personnel, chief of patrol.

11

Q.

Now, you said you did crime analysis.

12

that?

13

A.

14

for the complaint reports.

15

summonses.

16

the system, putting the 250s in the system.

17

Q.

This was in the 41st Precinct?

18

A.

Yes.

19

Q.

What period of time did you do that?

20

A.

It was for a short period of time in 2009, about four,

21

months.

22

Q.

Apparently, the Bronx came out lower.
th~t

they do that comparison?

I have a little understanding

What did you mean by

I used to be in the precinct where I used to do the audits
In that office, they also did the

I was also in charge of putting the summonses in

We are going to continue at 4:57.
(Audiotape played)

23

24

Q.

Did you hear that portion?

25

A.

Yes,

I did.

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

five

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 45 of 225
Polanco - direct
03K8FL02

481

1

Q.

2

although he is now an inspector, correct?

3

A.

Something like that.

4

Q.

We will call him Inspector McHugh.

5

Inspector McHugh say on that portion?

6

A.

7

department, together with Chief Purtell, Chief Purtell used to

8

be the chief of the Bronx, that he basically screamed at him.

9

That's what I understand.

What did you hear Inspector McHugh -- Chief McHugh,

Yeah.
What did you hear

Chief Giannelli, who used to be the chief of the

10

Q.

Just to clarify the record, you said Chief Giannelli was

11

the chief of the department?

12

A.

13

one on top of Purtell, and Purtell was basically the chief of

14

the Bronx.

15

Q.

Do you know who Inspector McHugh would report to directly?

16

A.

I think borough chief Purtell.

17

Q.

Let's continue at 5:11.

I'm not sure.

18

He was not the borough chief.

He was the

(Audiotape played)

19

Q.

20

say,

21

given the business"?

22

A.

Yes.

23

Q.

Do you know what Inspector McHugh meant by that?

24

A.

Headquarters is the one that control CompStat and the

25

numbers.

Did you hear at the end of that portion Inspector McHugh
"Headquarters is now yelling at Chief Purtell and he is

So when they don't like the number for certain

SOUTHERN DISTRICT REPORTERS, P.C.
I 212 I 805-0300

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D3K8FL02

482

1

borough, they will call that chief and scream at him, whatever

2

he said.

3

Q.

Let's continue at 6:05.
(Audiotape played)

4

5

Q.

6

don't do it now,

7

make sure it happens"?

8

A.

Yes.

9

Q.

Do you know what he meant by that?

10

A.

He also said it was nonnegotiable.

11

Q.

Yes.

12

A.

We didn't have a choice.

13

he will have us drive a supervisor, and when you do that, your

14

discretion is out the door; you have to do what they say.

15

Q.

When you say "do what they say,

16

A.

If they see a group of kids on the corner, they are going

17

to go summons them, to go 250 them, to go pat them down, to do

18

everything that I would normally not do if they weren't around,

19

if I didn't have reason to do it.

20

Q.

21

though, to get some of our people that aren't chipping in to go

22

to some of the locations we are having problems and give them

23

the business, rightfully when they should."

24

them the businessu mean to your understanding?

25

A.

Did you hear at the end there Inspector McHugh say, "If you
I am going to have you work with the boss to

Basically, like I explain before,

11

what are you referring to?

Did you also hear Inspector McHugh say,

My understanding is again the summonses.

"What we can do,

What does

11

give

The business that

SOUTHERN DISTRICT REPORTERS, P.C.
1212) 805-0300

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D3KBFL02

1

the city have, and it's a shame they call it a business, is

2

generate money through summonses.

3

the business.

4

Q.

483

We are supposed to hand them

We are going to start at 6:43.
(Audiotape played)

5
6

Q.

On that portion, did you hear Inspector McHugh say,

7

"Because you know what, they control the overtime too guys.

8

they think we are a bad borough, they won't give us overtime."

9

Do you know what he meant by that?

If

Basically, if we don't come up with the numbers, we are not

10

A.

11

going to get overtime.

MS. COOKE:

12

13

Q.

What is the time?

We are going to start at 7:11.
{Audiotape played)

14
15

Q.

16

you hear Inspector McHugh saying,

17

it helps us, they know that we are going to get our fair share

18

of some resources like they have."

19

A.

20

_"Q.

21

A.

22

overtime.

23

Q.

Sure.

24

A.

Overtime is one of the biggest thing for most of the

25

officers.

On that last portion, and we stopped at the end 8:33, did
11

But what it does help us is

Did you hear him say that?

Yes.
Do you know what he meant by that?
I think,

I believe he probably is referring to the

If I might explain?

A lot of officers have family, have kids, multiple

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

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484

1

families, and a lot of officers depends on the overtime.

2

will be embarrassing to say that most of the officers that get

3

a lot of arrests, they make a lot of arrests, they make it for

4

the overtime.
MS. COOKE:

5

6

A.

Objection.

It

The answer is speculative.

Based on my experience --

7

THE COURT:

8

Only the sentence will be stricken where he mentions

9

One moment.

being embarrassing to say those that get a lot of arrests, they

10

make it for the overtime.

11

previous portion I will allow.

12

sentence that the people need overtime for their families.

13

Q.

14

testimony that you are not a fan of overtime.

15

at the 41st Precinct, did you ever work any overtime tours?

16

A.

Occasionally, yes.

17

Q.

Can you explain what you meant by I am not a fan of it?

18

A.

There are certain types of overtime.

19

have three kids.

20

home.

21

came most handy was the impact overtime.

22

where they will assign officers that were supposed to be off

23

their day to high-crime areas.

24
25

That part I will strike, but the
Basically, the previous

Officer Polanco, yesterday you made a comment in your
When you worked

I am a father and

Any time I can spend with my kids, I am going

But there's different type of overtime.

The one that

The impact overtime

When you assigned to impact overtime, the integrity
control officer will be in charge of it most of the time, and
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 49 of 225
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485

1

there will be a requirement for you to be assigned, to be given

2

the overtime.

3

summonses, five 250s, or an arrest in order to get the

4

overtime.

5

Q.

6

that that was the requirement?

7

A.

8

need to do if you want the overtime.

9

Q.

By !CO, you mean integrity control officer?

10

A.

Yes, a lieutenant.

11

Q.

That person is a lieutenant in the 41st Precinct?

12

A.

Yes.

13

Q.

Is it your testimony that your integrity control officer in

14

the 41st Precinct, in fact, told you that if you want to work

15

impact overtime, you have to either make five summonses, five

16

250s, or one arrest?

17

A.

Yes.

18

Q.

Do you recall when he or she said that to you?

19

A.

Throughout 2009.

20

Q.

What is that integrity control officer's name?

21

A.

Lieutenant Dominguez at the time.

22

Q.

Did you ever actually work an impact overtime tour?

23

A.

I did a few times, yes.

24

Q.

Did you comply with these requirements that Lieutenant

25

Dominguez communicated to you?

Most of the time you have to agree to write five

What is your basis for that statement?

This is what the ICO used to call it.

How do you know

This is what you

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 50 of 225
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Sometime I did, sometime I didn't.

486

1

A.

Because sometime they

2

assign you the overtime based on whoever wants to do it.

3

Sometime they didn't have the resources so they will force you

4

to do the overtime.

5

Q.

When you say forced you, what do you mean?

6

A.

They will give you a notification you have to show up

7

tomorrow, that you have no choice but to come in.

8

Q.

9

requirement of five summonses or five 250s or one arrest?

So you said that there were times when you did fulfill the

,.
'

10

A.

Yes.

11

Q.

In any of those occasions, do you recall whether any of the

12

stops you made were without reasonable suspicion?

13

A.

14

impact overtime,

15

usually go from 6 to 2,

16

was like 11, 11:30, and we didn 1 t

17

will hop in a van or go in a car with a supervisor, and he will

18

just do the same, grab those kids, summons those kids, write

19

this one,

20

not warranted.

21

Q.

22

tours, did you have to provide documentation of your activity

23

to anybody?

24

A.

Yes.

25

Q.

Who did you provide it to?

Some of them were not because some of them -- like in
I will be driving the sergeant, and you
6 p.m. to 2 in the morning.

So if it

have the four or five,

250 this one, and in some of those occasions it

we

~1as

Then when you had finished the tours, impact overtime

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 51 of 225
D3K8FL02
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1

A.

2

platoon that was doing the overtime.

3

Q.

4

487

If the ICO was there or the superv1sor in charge of the

from the beginning tO 1 minute and 9 seconds.

Let's play track 5 on Exhibit 284.

5

6

We are going to play it

(Audiotape played)
Q.

We stopped at 13 seconds.
Do you recognize the voice on that recording?

7

8

A.

Yes, I do.

9

Q.

Who is that?

10

A.

Lieutenant Andrew Valenzano.

11

Q.

At the time, this recording was made in the fall of 2009?

12

A.

Yes.

13

Q.

What was his position in 2009, if you recall?

14

A.

He was a platoon commander of the 41st Precinct.

15

Q.

Let's continue from 13 seconds.

16

Now he is a captain.

(Audiotape played)
MR. CHARNEY:

l7

Where did we stop?

44 seconds.

18

Q.

That was Lieutenant Valenzano still?

19

A.

Yes.

20

Q.

Did you hear him say,

21

the bikes carrying the bags, you know, that's what we need,

22

good stops"?

23

A.

Yes.

24

Q.

Do you know what he meant by that?

25

A.

To stop them and frisk them,

11

But if you see people over there on

if they were simply on a bike

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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488

1

carrying a bag.

2

Q.

3

area, Pine Avenue, "those are the areas, we want you guys over

4

there for that reason"?

5

A.

Yeah.

6

Q.

Do you know what he meant by that?

7

A.

No.

8

Q.

So the portion where he said, stop the guys on the bikes

9

carrying the bags, what did you understand him to mean by that?

Earlier did you hear him refer to certain locations, 165

10

A.

Simple as that.

11

carrying a bag.

12

Q.

13

tell you why they wanted you to stop people on bikes or people

14

carrying bags?

15

A.

No.

16

Q.

Let's continue from 44 seconds.

Did he ever tell you or did any of your supervisors ever

(Audiotape played)

17
18

Stop and frisk anybody who is on a bike

Q.

We stopped at the end, which was 1:09.
Can you tell me who that voice was?

19

20

A.

At the end, it was at the beginning of McHugh's track.

21

Q.

Did you hear him say,

22

know, making sure we get everyone on board towards depressing

23

conditions"?

24

A.

Yes.

25

Q.

Do you know what he meant by that?

"Thank you for cooperating with, you

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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D3K8FL02
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489

1

A.

By meeting the quota, by writing the amount of summons that

2

he wanted.

3

Q.

Is that what he meant by conditions?

4

A.

Yeah.

5

Q.

So now we are going to play from track 6 on this CD, from 1

6

minute to 2 minutes and 29 seconds.

7

(Audiotape played)

8

Q.

Do you recognize that voice?

9

A.

Yes.

10

Q.

Who is that?

11

A.

Delegate Angel Herran.

12

Q.

Who is Herran again?

13

A.

A union delegate.

14

Q.

You were present for this roll call,

15

A.

Yes, I was.
MR. CHARNEY:

16
17

Q.

We stopped at 1:39.

18

if you recall?

We stopped at what point in time?
So we are going to continue from

there.

19

(Audiotape played)

20

MR. CHARNEY:

I apologize, your Honor.

I want to play

21

it from the beginning because I think we need to hear the whole

22

thing.

So we are going to start again from 1 minute.
(Audiotape played)

23

24

Q.

Did you hear Officer Herran say there,

25

the car.

So I pull over the car.

11

We will pull over

What do you want me to do?

SOUTHERN DISTRICT REPORTERS,
1212) 805-0300

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13
Polanco - direct
D3KBFL02
1

Give him a surrunons.

2

A.

3

Q.

Do you know what he was talking about there?

4

A.

He was giving an example of one day that he was driving

5

with Valenzano.

6

Q.

How do you know that's the example he was giving?

7

A.

I was there.

8

and he asked him to pull the car that made a left, and Herran

9

490

Yes.

told him that he didn't see it, and he tell him to write a

10

Q.

I didn't observe it."

He said one time he was in the car with him,

summons.

11

Well,

Page 54 of 225

Let's continue from 1:13.
(Audiotape played)

12

13

Q.

Did you hear Officer Herran on that portion?

14

A.

Yes.

15

Q.

What did you hear him say?

16

A.

According to Officer Herran, this is how I got in trouble

17

again, when the supervisor do that, when they ask you to write

18

a summons for something they didn 1 t

19

scratch off the part they didn 1 t

20

what he is referring to, that the supervisor is supposed to

21

scratch off the part that say I did observe, and they will sign

22

it.

23

Q.

In other words, the supervisor will sign it?

24

A.

He supposed to do it.

25

Q.

We are going to start at 1:21.

observe, they supposed to

observe and sign it.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

That 1 s

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 55 of 225
D3K8FL02
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1

491

(Audiotape played)

2

Q.

3

something, you have to show something to your police officer"?

4

A.

Yes.

5

Q.

Do you knov; vrhat he meant by .that?

6

A.

Numbers, you have to show numbers.

7

Q.

And we stopped at 1:38.

Did you hear Officer Herran there say,

We are going to start again.

{Audiotape played)

8

9

"You have to show

Q.

We stopped at 1:55.
So did you hear Officer Herran in that section say,

10

11

"You meant to tell me for 30 fucking days" -- sorry -- "you

12

haven't seen any violations on parking, any violations and any

13

kind of arrests?

14

impossible.

15

A.

Yes.

16

Q.

What did you understand him to mean?

17

A.

He was talking that maybe some officers were not doing

18

absolutely anything.

19

in a blank activity log, and he said that it's not possible,

20

you have to show something.

21

the 1 and 20.

22

of patrol.

23

of patrol, and I am still required to bring the 1 and 20.

24

Q.

25

you worked in a given month, the numbers were the same?

If you have 25 to 26 days on patrol, it's

Show something."

Did you hear him say that?

That's not possible.

Like somebody turn

But he is not making reference to

They want 1 and 20.

30 days of patrol, 25 days

For example, in January of 2009, I have five days

Was it your experience that, regardless of how many days

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 56 of 225
Polanco - direct
D3KBFL02

1

A.

Exactly, 20 and one.

2

Q.

How do you know that?

3

A.

That's what they said.

4

you have ten days of patrol, if you have 15 days of patrol.

5

They basically say you have to get 20 and one.

6

Q.

492

They didn't say get 20 and one if

Let's continue at 1:55.

7

(Audiotape played)

8

MR. CHARNEY:

9

Q.

Where did we stop?

2:06.

Did you hear Officer Herran in that portion refer to a

10

bible you have?

11

A.

Yes.

12

Q.

Do you know what he is referring to there?

13

A.

As I said before, the bible is the book with every officer

14

individual activity that a commanding officer holds in his

15

office.

16

adjudicate a command discipline.

17

Q.

18

you have, do you know what he meant by that?

19

A.

20

book looks.

21

Q.

What do you mean by according to how the book looks?

22

A.

If you have been doing your numbers, you will be all right.

23

If you haven't, then you're going to have a problem.

24

Q.

Did you hear him say it's coming from iR?

25

A.

Higher up.

It usually go back three months when you have to

When Officer Herran said they are going back to the bible

Your CD is going to be adjudicated according to how the

SOUTHERN DISTRICT REPORTERS, P.C.
(2121

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 57 of 225
Polanco - direct
D3KBFLOZ
1

Q.

Higher up?

2

A.

493

Yes.
MR. CHARNEY:

3
4

can hear it.

5

Can we play that portion again just so I

played.

We are going to play the same portion we just

6

(Audiotape played)

7

MR. CHARNEY:

8

Q.

9

not com1ng from me,

That's the end at 2:29.

So did you hear on that portion Officer Herr an say, "It's
it's coming from higher up"?

10

A.

Yes.

11

Q.

Then he mentioned the unions agreeing to it?

12

A.

Yes.

13

Q.

Do you know v;hat he meant by that?

14

A.

That the union trustees and the union president all

15

acknowledge what is going on and they agree with it.

16

Q.

17

referring to?

18

A.

The quota.

19

Q.

I want to ask you again about some of the timing of when

20

you went to lAB.

21

Just so we are clear, when you say "it," what are you

You said you first went to them or you wrote to them

22

in September of 2009, is that right?

23

A.

Yes, around September.

24

Q.

When did you provide the recordings to them?

25

A.

I believe it was in December after my suspension.

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 58 of 225
D3K8FL02
Polanco - direct
1

Q.

2

to them?

3

A.

4

trust them.

5

Q.

Why didn't you trust them?

6

A.

They have no independency.

7

They have no independency.

8

me.

9

Q.

494

Why did you wait until December to provide the recordings

I wasn't sure if I wanted to give it to lAB.

I didn't

They are a police department.

I didn't think they wanted to hear

Then how come after your suspension you did decide to turn

10

over the tapes?

11

A.

12

like I had to explain to them why I got suspended and listening

13

to the recording would help them understand what happened.

14

Q.

They came to my lawyer's office, and for some reason I felt

Let's talk about why you got suspended.
Can you tell me when you got suspended?

15

16

A.

It was December 12, 2009.

17

Q.

What happened on December 12, 2009?

18

A.

On that date I was assigned to a checkpoint again because

19

they knew that I had reported it.
MS. COOKE:

20

21

11

they knew.

23

Q.

25

Sustained as to that part.

doing it.

That is

stricken.

24

The witness said

11

THE COURT:

22

Objection, your Honor.

Let's just talk about what you were doing, not why you were

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 59 of 225
Polanco - direct
D3KBFL02

1

A.

2

They wanted numbers.

3

me and my partner each.

4

Once again, no cones, no flares, no safeguard, no pattern to be

5

followed, nothing.

6

want ten summonses from you guys, let's get them and get out of

7

here.

8

Q.

Which sergeant was it?

9

A.

Rodriguez.

10

Q.

Which lieutenant was he referring to, if you remember?

11

A.

Andrew Valenzano.

12

Q.

So you were doing the checkpoint.

13

needed ten summonses.

14

A.

15

few.

16

check on what we had, and he wasn't satisfied with what we had.

17

So he started putting his driver to stop everybody that came

18

down the street, any car that came he asked for license and

19

registration.

20

I was assigned to a checkpoint again.

495

It was about 6:00.

The lieutenant wanted ten summonses from
So he assigned us to a checkpoint.

The sergeant just told us the lieutenant

They told you that you

What happened?

It was a cold night and nothing was coming by.

We had a

But then the lieutenant came like 40 minutes later to

While we were doing that, I notice that my partner,

21

Officer Pete Rodriguez, who I had been working for the past

22

five years, was pale.

23

am not feeling well.

I immediately called the sergeant.

24

took his jacket off.

He told me that his chest was killing

25

him, that he had very strong chest pain.

He called me over and said, Polanco, I

I was concerned

SOUTHERN DISTRICT REPORTERS, P.C.
{212) 805-0300

I

Case 1:08-cv-01034-AT-HBP
D3K8FL02

Document 284 Filed 05/30/13 Page 60 of 225
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1

because about a month or two before that an officer dropped

2

dead in the Bronx from a heart attack.

3

496

months prior to that.

I lost my father four

I proceeded -- we call an ambulance.

4

5

the ambulance.

6

I went in the ambulance.

7

ambulance.

8

to get out, and I did.

9

wasn't verbal or confrontational.

I proceeded to

At no point was I told to go with my partner.
When the ambulance came, I got in the

About two minutes in, Lieutenant Valenzano asked me
I wasn't too happy about it, but I
I asked the lieutenant,

10

there any reason why I can't go with my partner?

11

keep writing summonses, I will have the sector go.

12

walked out of the ambulance.

13

no point I say racial slurs or anything like that.

14

lS

walked out.

15

He told me,

OK.

I

At no point I scream to him.

About five minutes later,

At

I just

I looked into the back of

16

the ambulance, between three and five minutes, and I saw my

17

partner on an oxygen mask.

18

looked before.

19

his uncle.

20

his wife or his five daughters yet.

He look even worse than what he

He was really out of color.

I couldn't get in touch.

I tried to call

He told me not to call

21

MS. COOKE:

Objection.

22

THE COURT:

It doesn't matter.

23

It's really time for the break so I am going to

24

interrupt him anyhow.

25

It's 11:30.

We will reconvene at 20 to

12.

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 61 of 225
D3K8FL02
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1

497

(Recess)

2

BY MR. CHARNEY:

3

Q.

4

incident on December 12, 2009, involving you and your partner,

5

and I guess Lieutenant Valenzano.

6

that discussion.

7

the back of the ambulance?

8

A.

9

outside.

Officer Polanco, before the break we were discussing an

Yes.

I wanted to continue with

I believe you left off with your partner in

I approached the back of the ambulance on the
I saw his condition.

10

mask.

11

He was worse.

He was turning a little blue.

He had an oxygen

I was extremely worried.

12

When I saw his condition,

At that point, I approached the lieutenant and I told

13

him,

lieutenant, you can do as you please,

14

partner.

15

you please,

16

lieutenant grabbed me by the chest, twist me around, asked me

17

for my gun and shield and suspended me on the spot.

18

Q.

Did you in fact give him your gun and shield?

19

A.

Later on, yes.

20

Q.

Did you at any point in time say any derogatory remarks to

21

him?

22

A.

No,

23

Q.

Did you threaten him?

24

A.

No.

25

Q.

Did you physically assault him?

And he asked me again, what?
I am going with my partner.

I am going with my

I said, you can do what
At that time, the

not at all.

SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

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D3K8FL02
Polanco - direct
No.

498

I simply, when he grabbed me, after he grabbed me, I

1

A.

2

simply push his hands off my chest.

3

Q.

4

him?

5

A.

Not at all, no.

6

Q.

This incident was December 12, 2009?

7

A.

Yes.

8

Q.

Earlier you testified about how you had seen the word rat

9

next to your name in the precinct cafeteria?

After that, did you make any other physical contact with

10

A.

Yes.

11

Q.

Do you know approximately what point in time you saw that?

12

A.

Mid-November, mid to late November 2009.

13

Q.

So is it correct that you saw that word written next to

14

your name before this incident with Lieutenant Valenzano?

15

A.

Yes.

16

Q.

Do you know whether or not any of your supervisors in the

17

41st Precinct were aware you had gone to Internal Affairs with

18

your complaints prior to this incident on December 12, 2009?

19

A.

Yes.

20

Q.

How do you know that?

21

A.

Sergeant Rodriguez told me to look out, that they were

22

looking to hurt me, that they know that I reported it, that I

23

went to IAB.

24

Q.

When did he tell you that?

25

A.

This was

he told me a few time.

He told me I think a

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

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D3K8FL02
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499

1

couple of hours before the checkpoint.

But also in the month

2

of November he told me the same thing.

3

Q.

4

ever been disciplined by the NYPD when you worked as a patrol

5

officer in the 41st Precinct?

6

A.

7

modified for four months.

8

somebody made allegations.

9

were unsubstantiated.

Now, prior to this incident on December 12, 2009, had you

Disciplined, I was in an off duty incident where I was
It was a domestic incident where
The allegations went nowhere.

I did not get any time taken off.

They
I did

10

not get -- I didn't even have to see the -- anything.

11

unsubstantiated.

12

investigation was being conducted.

13

Q.

During that modification, what were you doing?

A.

I was doing crime analysis.

15

Q.

Where?

16

A.

In the 41st Precinct.

17

Q.

So you were not reassigned to a different precinct during

18

that time?

19

A.

20

keep me in the precinct.

21

Q.

Which inspector was that?

22

A.

McHugh.

23

Q.

Other than that four-month modification, did you receive

24

any other discipline prior to December 2009?

25

A.

No.

It was

But I was modified for four months until the

The inspector actually wrote a letter to personnel to

The only thing I remember, again, I went to court because
SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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D3K8FL02
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500

1

after they put me back on the four months,

I was doing the job

2

of two officers.

3

so I used to do the crime analysis job and then jump on patrol.

4

I used to do both.

5

crime analysis administrative, you don't have to wear your vest

6

or your uniform to court.

7

My lieutenant told me that it was OK.

8

court, the sergeant send me back to put my vest on.

9

came back to the court section 1 he issued me a command

They didn't have nobody to do crime analysis

So one day I had court, and when you do

I show up to court without the vest.

And when I show up to
When I

10

discipline for not having the vest.

That's the only thing

11

other than that.

12

Q.

13

modification, did you receive any other discipline prior to

14

December 2009 when you worked in the 41st Precinct?

15

A.

No.

16

Q.

During your work as a patrol officer in the 41st Precinct,

17

did you ever receive a negative quarterly performance

18

evaluation?

19

A.

No.

20

Q.

Did you ever receive a negative annual performance

21

evaluation?

22

A.

No.

23

Q.

Officer Polanco, at any point in time, did you provide

24

copies of those recordings we listened to earlier to anybody

25

outside of the police department other than your lawyer?

So other than that command discipline and the four-month

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 65 of 225
Polanco - direct
D3K8FL02

501

1

A.

I don't recall.

2

Q.

Did you ever provide it, for example, to any members of the

3

media?

4

A.

5

He provided them to Channel 7.

6

Q.

Do you know when that was?

7

A.

Actually, we were talking to Channel 7 in September of that

8

year.

9

expose everything.

I think I did.

or my lawyer did.

I think

I'm not sure.

Three months before my suspension we were looking to
We were just waiting for the right moment

10

and the right time to do it.

11

Q.

Why did you want to go to the press with these issues?

12

A.

Because the department is not willing to listen to me.

13

They are still not willing to listen to me.

14

hear it.

15

Q.

16

waited until you did to actually report a lot of this stuff is

17

you were worried about retaliation?

18

A.

Yes.

19

Q.

Are you worried about retaliation today?

20

A.

I cannot say I don't.

21

about what they are going to do next.

22

Q.

Why did you decide to testify as a witness in this case?

23

A.

The reason I decided to testify and come forward when I

24

did,

25

Heights.

They don't want to

You mentioned earlier that one of the reasons why you

I'm a father,

I'm not in fear,

I have three kids.

I grew up in the hood.

but I do worry

I grew up in the

I come from a very poor

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 66 of 225
Polanco - direct
03K8FL02

502

I know what it's like when it's 95 degrees in an

1

country.

2

apartment on the fifth floor and you go downstairs because you

3

had a fight with your sister because it's simply too hot.

4

for you to go downstairs and get arrested in your own building

5

for trespassing, as we have seen, get summons, get pat down,

6

get harassed by police, I don't believe that's why I joined the

7

police department.

8

Q.

Why did you join the police department?

9

A.

I joined the police department to help.

And

I was a baseball

10

coach in high school for about four years.

11

youths.

12

interact with my community.

13

not abundant in the department.

14

80s that they decided that it would be a good thing to

15

integrate the police department so we can help our own

16

community.

17

I worked with

I joined the police department because I wanted to
Before the 90s, minority cops were
It was in the early 90s, late

What was happening before that is my question.

So, unfortunately, a lot of us that come into the

18

police department forget where we come from.

I don't want my

19

kids to be harassed by anybody.

20

shot by any cop who was chasing him to fill out a 250.

21

problem that we have is a lot of us, when we think of a male

22

black, a male Hispanic, we think of a third person.

23

When I see an unarmed man get shot, I think of my kid.

24

scenario is coming home to my kid and finding my kid with a

25

bullet to the chest.

I don't need my kid to get

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

And the

I don't.
My

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 67 of 225

D3K8FL02

503

Polanco - direct

1

Unfortunately, a lot of us have the luxury to live in

2

different communities, and when we hear of a male shot because

3

he was running from police, the law allows him to run from

4

police, but not when you're black or Hispanic, unfortunately.

5

When you hear of teenagers that get beaten by police.

6

hear a cop testify that he
MS. COOKE:

7

8

Objection.

When you

I don't think this is any

longer responsive to the question.
I

THE COURT:

9

It's responsive, but it's a long speech,

10

and a courtroom is not a place for a long speech.

I think you

11

have made the point.

12

Q.

13

frisk is an appropriate tool for police officers to use?

14

A.

I

I think that's probably sufficient.

Officer Polanco, do you believe that stop, question and

Absolutely, yes.

15

THE COURT:

16

THE WITNESS:

Absolutely.

It's a great tool.

Sorry?
It is a great tool.

17

A.

We need it because I have no problem harassing criminals.

18

I have no problem harassing those that are committing the crime

19

or about to commit the crime.

20

and blacks are the ones that are committing the crime.

21

not in denial.

22

help.

23

can we make them not carry the gun?

How can we help them?

24

am not in denial that we need help.

But my understanding is

25

that when somebody commit a crime, you don't bring the whole

I am not in denial that Hispanic

And we need help.

I am

And I am here asking for

How can we help this minority people drop the gun?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I
'

How
I

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 68 of 225
Polanco - direct
D3K8FL02

1

family to court.

2

504

So why should we bring the whole culture and

hold the whole culture accountable for --

3

MS. COOKE:

Objection.

4

THE COURT:

That's responsive to the question because

5

this one, I think, Mr. Charney would argue goes to the remedies

6

question.

7

A.

8

a family, you don't bring the whole family to court.

9

the criminal.

He is explaining his point of view.

What I was saying was that when somebody commit a crime in
You bring

So if some black or the majority of blacks are

10

committing the crime, we cannot hold the whole culture

11

responsible for what some of them are doing.
MR. CHARNEY:

12

One minute, your Honor.

13

Q.

Officer Polanco, you said you were suspended on December

14

12, 2009, correct?

15

A.

Yes.

16

Q.

Are you currently still suspended?

17

A.

I am on modified assignment still, three and a half years

18

later.

19

Q.

Where is your modified assignment?

20

A.

I'm in the VIPER unit in the 77th precinct on Utica Avenue.

21

Q.

Do you know whether or not any formal disciplinary charges

22

were filed against you?

23

A.

Yes, they did.

24

Q.

Do you know what the status of those charges are?

25

A.

My trial was done about two weeks ago.

Several people came

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05130/13 Page 69 of 225
03K8FL02
Polanco - direct
1

505

to testify contrary of what the lieutenant allege I did.

2

MS. COOKE:

Objection.

3

THE COURT:

He is testifying to hearsay.

Sustained.

4

Q.

Has there been a finding or a ruling in that trial yet?

5

A.

No.

6

Q.

Do you have any idea why it has taken three and a half

7

years since the incident to finish the trial in your

8

disciplinary case?

9

A.

Three and a half years later, no.

It's very contradictory.

For example, the lieutenant gave

10

a story about what happened, not knowing that I had a recording

11

in my pocket.

When he gave the story, he say X1 Y and Z.

12

MS. COOKE:

Objection.

13

THE COURT:

Sustained as to what he said.

14

Q.

15

know why it has taken three and a half years to finish the

16

disciplinary trial in your case?

17

A.

They know I am innocent.

18

Q.

I want to show another exhibit.

19

Plaintiffs• 98.

20

21

Let me ask the question a little more narrowly.

MR. CHARNEY:

Do you

That's my belief.
This has been marked as

Is there any objection to this exhibit,

the patrol guide section?

22

MS . COOKE:

23

MR. CHARNEY:

No.

This is the NYPD patrol guide section on

24

stop, question and frisk.

25

in evidence.

We would move for it to be admitted

We can pull it up on the screen so your Honor can
SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 70 of 225
Polanco - direct
D3K8FL02
1

see it.
THE COURT:

2

3

506

Is there any objection before you put it

on the screen?

4

MS. COOKE:

No objection.

5

THE COURT:

What is the exhibit number?

6

MR. CHARNEY:

7

THE COURT:

8

(Plaintiff's Exhibit 98 received in evidence)

9

MR. CHARNEY:

THE COURT:

10

Plaintiffs' 98.

98 is received.

Can I give a copy to the witness?

Yes.

Sure.

11

Q.

Officer Polanco, do you recognize this document Exhibit 98?

12

A.

Yes,

13

Q.

What is this document?

14

A.

This 1s the patrol guide referring to stop, question and

15

frisk.

16

Q.

17

paragraph number 9, you see where it says, "Submit stop,

18

question and frisk report work sheet to desk officer, precinct

19

of occurrence.

20

A.

Yes.

21

Q.

Was that your practice when you worked as a patrol officer

22

in the 41st Precinct?

23

A.

No, not all the time.

24

Q.

Who, if anyone, did you submit the stop, question and frisk

25

report work sheet to when you completed it?

I seen it.

If you can look at the bottom of the first page.

11

Next to

Do you see that?

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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Polanco - direct
D3K8FL02

507

1

A.

2

commander when he is doing his recap sheet, and sometime our

3

immediate supervisors.

4

analysis person who was in charge of putting it in, we hand it

5

directly to that person.

6

Q.

7

putting it into what?

8

A.

The system.

9

Q.

What do you mean by the system?

10

A.

Type it into the system.

11

Q.

Moving to the second page, see at the top it says,

12

paragraph number 10 next to

13

each stop, question and frisk report work sheet and (a)

14

instruct member preparing work sheet if necessary.

15

Sometime the desk officer, most of the time the platoon

I'm sorry.

At some point, even to the crime

The crime analysis person was in charge of

11

desk officer" it says,

11

Review

11

We already know the desk officer was not always the

16

person you handed it in to, but as a general matter, whether it

17

was the desk officer or a sergeant or a crime analysis person,

18

in your experience, did that person instruct you on what was on

19

the work sheet?

20

A.

21

is that your name, your tax number, the address is legible,

22

that they can read what was in it, the name is legible.

23

what they will care about.

24

Q.

25

ever asked by a supervisor to explain the factual basis for a

Never, no.

If I might, the only thing they will make sure

That's

At any point when you worked in the 41st Precinct, were you

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

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508

1

stop, question and frisk that you had conducted?

2

A.

Never.

3

Q.

Officer Polanco, do you keep in touch with any officers in

4

the 41st Precinct?

5

A.

Not really.

6

Q.

You said that your supervising sergeant was -- who was your

7

supervising sergeant?

8

A.

Sergeant Padilla, Edgar Padilla.

9

Q.

I can't remember, but you testified earlier about several

Not really.

10

supervisors who had talked about the numbers.

11

those?

12

A.

13

mention it that much.

14

MR. CHARNEY:

15

No further questions, your Honor.

16

THE COURT:

All right.

17

MS. COOKE:

Yes.

Not really.

He would rarely mention it.

Was he one of

He wouldn't

One minute, your Honor.

Ms. Cooke.

Thank you.

18

CROSS-EXAMINATION

19

BY MS. COOKE:

20

Q.

Good afternoon, Officer Polanco.

21

A.

Good afternoon.

22

Q.

Prior to your report to lAB the first time, I believe you

23

said it happened in September 2009, is that correct?

24

A.

Yes.

25

Q.

Let me clarify first.

The report to IAB in September 2009,

SOUTHERN DISTRICT REPORTERS, P.C.
{212) 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 73 of 225
D3K8FL02
Polanco - cross

reo

509

1

that was the anonymous letter you posted on the

2

41st precinct?

3

A.

Yes.

4

Q.

So it was the

5

A.

Because it's my understanding that he have no choice but to

6

forward it to Internal affairs.

7

Q.

8

posted the anonymous letter?

9

A.

No.

10

Q.

And then the second time you contacted IAB was in November

11

of 2009?

12

A.

I believe, yes.

13

Q.

That was a telephone call?

14

A.

Yes.

15

Q.

It was an anonymous call, you didn't provide your name or

16

information of who you were, correct?

17

A.

I believe.

18

Q.

You believe it was anonymous?

19

A.

Yes.

20

Q.

So as of your second contact with IAB in 2009, you were

21

still remaining anonymous, as far as you were concerned,

22

correct?

23

A.

Yes.

24

Q.

But your call that you made to IAB on September 14, 2009,

25

after your incident with Lieutenant Valenzano on September 12,

reo

tour at the

of the precinct, not to Internal Affairs?

But you yourself didn't contact Internal Affairs when you

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 74 of 225
D3KBFL02
Polanco - cross
1

you identified yourself to IAB in that call?

2

A.

Yes, I did.

3

Q.

In addition to repeating claims that you had made 1n your

4

anonymous letter, in your anonymous call in September and

5

November of 2009,

6

and improper stops, you also added claims of retaliation by

7

Lieutenant Valenzano against you, correct?

8

A.

Yes.

9

Q.

510

That was because of the incident that had happened on

in addition to repeating claims about quotas

10

December 12?

11

A.

I'm sorry?

12

Q.

That was because of the incident that happened on December

13

12,

2009?

14

A.

Yes, and other stuff.

15

Q.

It's fair to say what prompted your call on September 14

16

was the incident on December 12?

17

A.

Yeah.

18

Q.

Let's talk a minute about that incident on December 12.

19

You were upset about your partner having chest pains

20

on December 12, 2009, right?

21

A.

Did I use the word upset?

22

Q.

I am asking, were you upset?

23

A.

No.

24

Q.

Were you worried?

25

A.

I was worried, yes.

I wasn't upset.

SOUTHERN DISTRICT REPORTERS,
(212)

805-0300

P.C.

,.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 75 of 225
Polanco - cross
D3K8FL02
1

Q.

2

asked you to step out of the ambulance?

3

A.

511

You were upset with the lieutenant when the lieutenant

I did not use the word upset.

4

THE COURT:

5

THE WITNESS:

6

THE COURT:

7

out of the vehicle?

Q.

No.
How did you feel when he asked you to step

THE WITNESS:

8

9

Were you upset?

I was confused.

You testified on direct that you were asked to surrender

10

your gun and your badge while on the scene on December 12,

11

correct?

12

A.

13

evidence.

14

Q.

15

while at the scene to surrender your gun and your badge?

16

A.

Yes.

17

Q.

And you said you didn't do it at that time?

18

A.

Yes.

19

Q.

But you surrendered it later?

20

A.

Yes.

21

Q.

In fact,

22

and badge at the scene, weren't you?

23

A.

No.

24

Q.

You in fact were angry with Lieutenant Valenzano when you

25

were at the scene,

Which time frame is this?

There's two versions of the

I am asking if you testified on direct that you were asked

you were asked several times to surrender your gun

correct?

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 76 of 225
Polanco - cross
D3KBFL02

1

A.

At one point I was.

2

Q.

You were yelling?

3

A.

At one point I was.

4

Q.

You were yelling at Lieutenant Valenzano?

5

A.

At one point, yes.

6

Q.

You shoved Lieutenant Valenzano with your hands onto his

7

chest?

8

A.

9

512

yelling --

I think you're skipping a point.

The reason I was

If you can answer my questions as I ask them.

10

Q.

11

Lieutenant Valenzano with your hands onto his chest?

12

A.

I push him away from me, yes.

13

Q.

Your hands onto his chest?

14

A.

Yes, to take his hands away from me.

15

THE COURT:

16

THE WITNESS:

17

THE COURT:

18

Why did you do that?
Because he had his hands on me.
Did he have his hands on you before you

pushed him away?
THE WITNESS:

19
20

You shoved

The only reason I push him was to take

his hands away from me.

21

THE COURT:

22

THE WITNESS:

So he put his hands on you first?
Yes.

23

Q.

The reason that Lieutenant Valenzano put his hands on you

24

was to stop you from getting back into the ambulance he ordered

25

you out of,

isn't that right?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 77 of 225
D3K8FL02
Polanco - cross
1

A.

2

513

I want to make sure I understand this question before I

answer it.
THE COURT:

3

The question is, this occurred after he

4

told you to get out of the ambulance, but you tried to get back

5

in,

6

back into the ambulance.

so he put his hands on your chest to stop you from going

THE WITNESS:

7

8

what I testified to.

THE COURT:

9

THE COURT:

13

I tried to get back in the ambulance.

THE WITNESS:

THE COURT:

Did you try to?
I made an attempt to go back in the

Is that when he put his hands on your

chest?

17

THE WITNESS:

18

THE COURT:

19

I
I

ambulance.

15

16

'

Did you try to?

wasn't allowed to.

12

14

iI

I never went back in the ambulance.

THE WITNESS:

10
11

That's not correct because that's not

Yes.
To stop you from going back in the

ambulance?
THE WITNESS:

20

Yes.

21

Q.

22

ambulance is when you shoved him with your hands on his chest?

23

A.

Yes.

24

Q.

And it was after that time you were asked to surrender your

25

gun and badge,

After he attempted to stop you from getting back in the

correct?

SOUTHERN DISTRICT REPORTERS, P.C.
{212) 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 78 of 225
D3K8FL02
Polanco - cross

514

It was while he have his hands on me that he was asking me

1

A.

2

for my firearm.

3

Q.

And you didn't give it to him at that time?

4

A.

Why should I?

5

Q.

In fact,

6

that?

7

A.

He didn't have the authority to have his hands on me.

8

Q.

Then you were asked by additional officers at the scene to

9

surrender your gun and badge, correct?

you told him he didn't have the authority to do

10

A.

By who?

No.

11

Q.

By other officers at the scene you were not asked to

12

surrender your gun and badge?

13

A.

Can you give me the name of which officer?

14

Q.

I am asking you if other officers at the scene asked you to

15

surrender your gun and badge?

16

A.

17

give them the firearm, yes.

18

Q.

19

scene?

20

A.

21

lieutenant gave the ESU officer an order to treat me as an

22

emotionally disturbed person and remove my firearm,

23

Q.

24

to his ethnicity, isn't that correct?

25

A.

The only person that asked me at the end was ESU, and I did

So there were other officers who made the request at the

They were carrying an order through the lieutenant.

The

yes.

You also shouted slurs at Lieutenant Valenzano with respect

That's not correct.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

i

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 79 of 225
Polanco - cross
D3KBFL02
1

Q.

2

several minutes, correct?

3

A.

You were shouting at Lieutenant Valenzano at the scene for

Shouting what?
THE COURT:

4

5

515

Shouting anything.

Excuse me.

Were you

shouting at all?
THE WITNESS:

6

I was shouting, why do you have your

7

hands on me?

Why the F are you touching me?

8

Q.

Why the what?

9

A.

Why the F are you touching me.

10

Q.

You were using foul language, curse words?

11

A.

He touched me, yes.

12

Q.

You testified on direct examination that you had been 2n

13

contact with the television, the news, Channel 7 I think?

14

A.

Yes.

15

Q.

Beginning in September, early September 2009?

16

A.

Yes.

17

Q.

Before your suspension.

18

the story out, is that right?

19

A.

Yes.

20

Q.

so that was before you contacted the reo with your

21

anonymous letter 1 is that right?

22

A.

It was actually after.

23

Q.

I thought you contacted the reo in October of 2009?

24

A.

No.

25

Q.

So you issued an anonymous letter and then you contacted

It was because you wanted to get

The letter went out in September.

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05130/13 Page 80 of 225
Polanco - cross
D3KBFL02

516

1

the television?

2

A.

Yes.

3

Q.

And ultimately you spoke with a reporter Jim Hoffer from

4

Channel 7, ABC News?

5

A.

Yes.

6

Q.

You spoke to him several times between September and when

7

the television interview aired in March 2010?

8

A.

A few times, yes.

9

Q.

The television interview aired in March of 2010 on Channel

10

7, correct?

11

A.

Yes.

12

Q.

In that interview, you discussed your allegations of quotas

13

and unlawful stops, is that correct?

14

A.

Yes.

15

Q.

And Channel 7 played audio of roll calls from the 41st

16

Precinct during that interview, isn't that correct?

17

A.

Yes.

18

Q.

Those were the audios that you had recorded at the 41st

19

Precinct?

20

A.

That I recorded, yes.

21

Q.

Some of the ones we heard today?

22

A.

Yes, I believe.

23

Q.

Because you had provided those audio recordings to Channel

24

7, correct?

25

A.

It might have been my lawyer.

I don't remember doing it

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05130/13 Page 81 of 225

517

Polanco - cross

D3K8FL02

1

myself.

2

Q.

You provided them to your lawyer, correct?

3

A.

Yes.

4

Q.

Then your lawyer provided them to Channel 7?

5

A.

I would be speculating if I said.

6

did.

7

Q.

8

were played with your interview on Channel 7?

9

A.

No.

10

Q.

So they were your recordings?

11

A.

The best of my belief, yes.

12

Q.

Is it fair to say that at the time you contacted Channel 7

13

in September 2009, you were dissatisfied with several of your

14

supervisors at the 41st precinct?

15

A.

16

the whole system itself.

17

Q.

18

dissatisfied with several people at the 41st Precinct?

19

A.

20

towards the system, the way the whole precinct was operating.

21

Q.

22

2008, isn't that correct?

23

A.

I believe, yes.

24

Q.

Do you recall when?

25

A.

No, I don't.

I don't know what he

He might have.

Are you aware that anyone else made those recordings that

The system, not only the supervisors.

It was the system,

Specifically, the supervisors, individual people, you were

It wasn't particularly towards people once again.

It was

Inspector McHugh came to the 41st Precinct sometime in

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 82 of 225

518

Polanco - cross

D3K8FL02

1

Q.

2

Inspector McHugh arrived, that's when the quotas were imposed

3

at the 41st precinct?

4

A.

5

arrived, later after his arrival.

6

Q.

The 1 and 20, meaning one arrest, 20 summonses?

7

A.

Yes.

8

Q.

Was the quota ever something lower, 1 and 10, 1 and 15?

9

A.

They used to -- it was not mandatory before.

I believe your testimony at your deposition was, when

They had numbers, but the 1 and 20 came when McHugh

It was with

10

McHugh.

11

Q.

12

also quotas?

13

A.

14

wouldn't call them quotas.

15

Q.

You actually knew Inspector McHugh from the 46th precinct,

17

A.

Not that I knew him.

18

Q.

You had worked at the 46th precinct prior to the 41st?

19

A.

Yes.

20

Q.

And Inspector McHugh was the commanding officer at the 46th

21

precinct?

22

A.

No.

23

Q.

You aren't making any complaints that Inspector McHugh had

24

quotas while he was the executive officer at the 46th precinct

25

for impact?

So prior to Inspector McHugh, you're saying that there were

There were numbers, but they were not mandatory.

So I

I seen him.

He was executive officer for impact.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05130/13 Page 83 of 225
Polanco - cross
D3K8FL02

519

1

A.

That was not his precinct.

2

Q.

You testified earlier today that actually Inspector McHugh

3

wrote a letter for you on your behalf when you had had the

4

domestic dispute incident?

5

A.

Yes.

6

Q.

To keep you at the command?

7

A.

Yes.

8

Q.

Because, in fact,

9

the command at that point?

you could have been transferred out of

10

A.

Yes.

11

Q.

You testified that the supervisor of the 41st Precinct,

12

including the commanding officer, which would be Inspector

13

McHugh, would come to roll call and address the officers and

14

speak about quotas, is that right?

15

A.

Yes.

16

Q.

But none of the audio recordings that we heard today had

17

Inspector McHugh discussing numbers and quotas on the

18

recordings, did they?

19

A.

Did you listen to the recording?

20

Q.

I am asking you.

21

A.

When he spoke about the summonses and how we are not going

22

to get overtime if we don't do the summons, he is talking about

23

quotas.

24

Q.

25

saying one and twenty, or one and five, or one and ten, or

We heard it, yes.

Did you hear Inspector McHugh on those audio recordings

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 84 of 225
Polanco - cross
D3K8FL02

1

issuing a quota in the form of a number on those audio

2

recordings?

3

A.

520

No.

THE COURT:

4

5

Now, that's the audio recordings.

hear him do it at all?

6

THE WITNESS:

Did you

Forget the audio.

The inspector and the captain washed

7

their hands in the police department and they send a message

8

through channels.

9

it to the lieutenant.

10

They will say

The lieutenant will tell it to the

sergeant and the sergeant will come to us.
THE COURT:

11

12

They don't say it themselves.

So you never heard McHugh use the actual

numbers?
THE WITNESS:

13

No.

But if I may explain?

The delegate

14

said that he met with the CO and this is what he wanted.

15

That's how they communicated it.

16

THE COURT:

Thank you.

17

Q.

18

McHugh making a statement with respect to numbers being a quota

19

that the officers were supposed to achieve, correct?

20

A.

I wouldn't agree with that, no.

21

Q.

Inspector McHugh wasn't on the audios discussing a number,

22

was he?

23

A.

Yes.

24

Q.

Did he use a number?

25

So none of the recordings we listened to included Inspector

Indirectly he was, yes.

THE COURT:

We have already covered that.

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

He didn't

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 85 of 225
D3K8FL02
Polanco - cross

1

use a number, and he didn't use a number even if it wasn't

2

recorded.

3

He said that.

He didn't use numbers.

(Continued on next page)

4

5
6
7

8
9

10
11

12

13
14
15

16
17

18
19
20
21
22
23
24
25

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

521

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 86 of 225
Polanco - cross
D3k9flo3

1

Q.

2

you have other recordings where Inspector McHugh does use a

3

number?

4

A.

522

Other than the recordings we've listened here to today, do

No.

5

THE COURT:

And he told you McHugh never used numbers.

6

MS. COOKE:

Thank you, your Honor.

7

THE COURT:

Okay.

8

Q.

9

imposed sometime in late 2009?

You also stated that there was a quota for UF 250s that was

10

A.

Yes.

11

Q.

And that quota was five per month, right?

12

A.

Five per month.

13

Q.

You testified that Lieutenant Valenzano told you about that

14

quota?

15

A.

16

not directly.

17

Bennett, the PBA delegates.

18

Q.

19

audio recordings we listened to this morning?

Many of them.

Lieutenant Valenzano, McHugh.

I said McHugh

Through the -- Sergeant Rodriguez, Sergeant

Yes.

So Lieutenant Valenzano, we didn't hear him on any of the

20

MR. CHARNEY:

21

THE COURT:

That's not true.

We did.

Let me hear the question.

22

Q.

You did not hear Lieutenant Valenzano on any of the audio

23

recordings we heard this morning?

24

MR. CHARNEY:

25

THE COURT:

That's not
Please, please.

Now we're going to do it

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 87 of 225
Polanco - cross
D3k9flo3

523

1

a third time because I didn't hear the question.

2

Q.

3

recordings this morning discussing a quota of five UF 250s, did

4

we?

5

A.

No.

6

Q.

You testified that on several occasions a supervisor would

7

direct you to write aUF 250 for a stop that you didn't

8

observe; is that correct?

9

A.

Yes.

10

Q.

And in those situations you didn't observe the

11

circumstances leading up to the stop, correct?

12

A.

Yes.

13

Q.

But you didn't ask the supervisor what happened leading up

14

to the stop, did you?

15

A.

We're not allowed to do that.

16

Q.

So you didn't?

17

A.

No.

18

what they told us.

19

Q.

Did you ever try asking the question?

20

A.

I remember sometime in October Lieutenant Valenzano came up

21

to me

22

whenever we call you to a scene to give you numbers it's

23

because you're not taking care of your own.

24

inform by because if we give you a summons we are not going to

25

go testify on your behalf.

We didn't hear Lieutenant Valenzano on any of the audio

We're not allowed to question the supervisor.

I

That's

Don't question us.

was in the car with him.

And he said Polanco

SOUTHERN DISTRICT REPORTERS,
[phone]

So don't put

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 88 of 225
D3k9flo3
Polanco - cross
1

Q.

I'm asking you about 250s here.

2

A.

Or 250s.

3

Q.

It's the same?

4

A.

Not the same because you don't testify for a 250.

5

said don't question us.

6

Q.

7

be on the 250 you wrote for a stop you didn't observe?

8

A.

524

It's the same, yes.

Just do what we said.

You never asked the supervisor what the crime suspected to

Sometime he say put anything.
THE COURT:

9

But they

Sometime what?

He will say put anything.

I'm sorry.

10

A.

11

burglary pattern.

12

Q.

But the question was you never asked.

13

A.

Maybe a few times.

14

Q.

And you don't have copies of these 250s that you were

15

directed to write by a supervisor for a stop you didn't

16

observe, do you?

17

A.

We don't keep copies of 250s.

18

Q.

Are you not allowed to keep copies?

19

A.

It's not our policy to keep copies.

20

Q.

But you don't have copies?

21

A.

No, I don't.

22

Q.

So you can't tell us the dates that these stops occurred or

23

the locations?

24

A.

25

know what they did with them up to this date.

Whatever.

Fit the description.

Or

He say just put something in.

Basically we were told what to put.

I did give a few of them to internal affairs.

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

And I don't

!.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 89 of 225
Polanco - cross
D3k9flo3
1

Q.

2

don't keep them?

3

A.

4

copies for summonses that

5

Q.

525

You gave them copies of UF 250s?

I thought you said you

I gave them locations and times of 250s.

I also gave them

We'll get to the summonses in just a minute.
You also -- during

6

do you recall giving a

7

deposition in this case?

8

A.

Yes.

9

Q.

And in that deposition you testified that there were also

10

quotas for anticrime cops; is that correct?

11

A.

Yes.

12

Q.

And the anticrime cop quota was what?

13

A.

How many pages was the deposition?

14

Q.

Several.

15

A.

How many questions?

16

remember everything.

17

Q.

18

cops was higher than patrol officers, would you agree with

19

that?

20

A.

Yes.

21

Q.

You also had claimed the conditions teams cops had had

22

higher quotas; is that correct?

23

A.

Yes.

24

Q.

You never worked on anticrime or conditions at the 41, did

25

you?

It would be impossible for me to

If I told you that you said that the quota for anticrime

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

f

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 90 of 225
D3k9flo3
Polanco - cross

526

1

A.

No.

2

Q.

I believe you also at your deposition identified the school

3

unit had quotas; is that correct?

4

A.

Yes.

5

Q.

And their quota, you identified, was arresting five people

6

a month or summonsing 25?

7

A.

Yes.

8

Q.

You never worked in the school unit, did you?

9

A.

No.

10

Q.

You never looked at the monthly activity reports for any of

11

those units, did you?

12

A.

No.

13

Q.

So you wouldn't actually know the activity of the

14

anticrime, conditions or school units?

15

A.

16

talk to each other, yes.

17

Q.

You didn't review their monthly activity reports, did you?

18

A.

It's not my job to review any officer's activity report.

19

Q.

You didn't review the monthly activity reports of officers

20

in your own unit, did you?

21

A.

It's not my job to do that, no.

22

Q.

So but you didn't review it?

23

A.

It's not-- no,

24

Q.

So you only know about your activity when you were at the

25

41st precinct; is that correct?

In a precinct like at 41 that would have a hundred cops, we

I didn't.

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 91 of 225
Polanco - cross
D3k9flo3
I only know about my activity,

I only review my ovm

1

A.

2

activity.

3

people -- yes,

4

officers in anticrime.

5

conditions unit.

6

times.

7

they wanted.

8

Q.

9

an anticrime officer who told you what the quota is; isn't that

But is,

no.

527

as cops, we speak.

And yes,

I know

I know officers in the school unit.
And yes,

Yes, I know

I know officers in the

And I was offered these positions a couple of

And one of the supervisors told me that that's what

But at your deposition you couldn't recall a single name of

10

correct?

11

A.

Up to today, I can't recall it.

12

Q.

At the time of your deposition you couldn't recall it

13

either, correct?

14

A.

Yeah.

15

Q.

You couldn't -- likewise, you couldn't recall the name of a

16

conditions officer who told you of a quota, correct?

17

A.

No.

18

Q.

And you couldn't recall the name of a school unit officer

19

who told of a quota, correct?

20

A.

There was a few of them.

21

Q.

You couldn't recall a name though, correct?

22

A.

No.

23

Q.

You couldn't recall the name of a supervisor from any of

24

those units who told you about quotas, correct?

25

A.

Like I said,

it's a long deposition with a lot of answers.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 92 of 225
Polanco - cross
D3k9flo3
MS. COOKE:

1

528

I'm handing the witness a copy of his

2

deposition from March 29, 2010.

3

Q.

4

the following questions and answers.

5

"Q.

So when did they tell you about their quotas?

6

"A.

Did they tell me -- they offered me conditions.

7

offered me crime.

8

the numbers are.

9

"Q.

Who told you the numbers?

10

"A.

Supervisors.

11

"Q.

Which supervisors?

12

''A.

I don't recall.

13

"Q.

Who is the supervisor of conditions?

14

"A.

Sergeant Rafter R-A-F-T-E-R.

15

"Q.

Did Sergeant Rafter tell you what the quotas are for

16

conditions?

17

"A.

No.

18

"Q.

A different supervisor did?

19

"A.

No.

20

"Q.

Did a supervisor tell you what the quotas were for

21

conditions?

22

"A.

No.

23

,.Q,

I'm not trying to be difficult.

24

how you came to learn if a supervisor didn't tell you and none

25

of the officers on conditions team told you, who told you?

Directing your attention to page 144, line 16.

I'll read

They

In order for you to go there, you know what

I

just don't understand

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 93 of 225
03k9flo3
Polanco - cross

A.

529

Why is it so hard for you to believe that there's a quota.

1

11

2

I don't understand."

3

Did you give those answers to those questions at your

4

deposition?

5

A.

Yes, I did.

6

Q.

So you didn't provide the name of a supervisor who

7

identified the quotas for the conditions team at your

8

deposition in March of 2010?

9

A.

No.

10

Q.

When you were an officer at the 41st precinct

11

consider it to have been a busy precinct?

12

A.

Busy as of what?

13

Q.

In terms of numbers of jobs, 911 calls?

14

A.

On and off.

15

Q.

And you worked four to twelve the entire time you were

16

there?

17

A.

Yes.

18

Q.

Is four to twelve a busy tour?

19

A.

Yeah, can be considered busy.

20

Q.

More busy than a day tour?

21

A.

It depends.

22

schedule.

23

day.

24

Q.

25

you worked there?

Everyday.

~mulct

you

Crime don't have happen on a

Sometime it happen at night.

Sometime it happen at

It depends.
Were you aware of gang activity in the 41st precinct when

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05130/13 Page 94 of 225
Polanco - cross
D3k9flo3

530

1

A.

There might have been, yes.

2

Q.

Do you recognize gang names MOB, a Block, Avenue St. John's

3

Boys, Moneymakers.

4

Do you recognize any of those gang names?

5

A.

It's been three-and-a-half years later.

I do not recall

6

any of those.

7

Q.

Were there drug dealing conditions in the 41st precinct?

8

A.

Probably yes.

9

Q.

Probably?

10

A.

Yeah, there were.

11

Q.

Did you ever make a drug arrest?

12

A.

Yes, I did.

13

Q.

Were there chop shops in the 41st precinct?

14

A.

What are chop shops?

15

Q.

Illegal car -- selling car parts?

16

A.

As a patrol officer, for me to know this illegal activity,

17

it's almost impossible.

18

Q.

19

as a patrol officer?

20

A.

21

Where I'm answering radio runs, it's hard to find out.

22

Q.

23

precinct?

24

A.

No,

25

Q.

What about burglaries and robberies?

You don't know about illegal activity in the 41st precinct

Not illegal activity.

About they're selling car parts.
Yes.

So you weren't aware of that as a condition in the 41st

I wasn't.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 95 of 225
Polanco - cross
D3k9flo3

1

A.

There is plenty of those.

2

Q.

What about domestic violence incidents?

3

A.

A lot of those, yes.

4

Q.

Shootings?

5

A.

Yeah, there were shootings.

6

Q.

What about problems with prostitution and pimps?

7

A.

We did the three to eleven.

8

it is, it's not much.

9

531

to be.

From where I started to what

It's not much of a problem like it used

10

Q.

What do you mean "like it used to be?"

11

to time period?

12

A.

13

prostitutes.

14

or whatever, but it's not the same.

15

Q.

16

attendant with strip clubs?

17

A.

18

I don't know.

19

Q.

20

speeding?

21

A.

22

up to the highway to see the trucks, yes.

23

about that.

24

Q.

25

Are you referring

the 41st precinct for your tour, correct?

When I was there in 2007, 2006 there was a lot of
With time going by,

I don't know whether they die

Were there problems with strip clubs and the violence

I do three to eleven.

The clubs usually open after eleven.

What about commercial truck violations?

Trucks speeding.

As a patrol officer,

Speeding?

Trucks

I would have to look
I wouldn't know

And you were expected to do work each day that you came to

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 96 of 225
D3k9flo3
Polanco - cross

532

1

A.

What is your definition of work?

2

Q.

I'm asking you.

3

A.

What work are we talking about?

4

Q.

A police officer.

5

A.

A police officer's job starts when they leave their house.

6

Q.

So you worked then for, during your tour, while you were at

7

the 41st precinct?

8

A.

Yes.

9

Q.

Because you weren't getting paid for doing nothing; isn't

Were you expected to do work?

Law enforcement?

10

that right?

11

A.

12

understand.

13

Q.

14

correct?

15

A.

Yes,

16

Q.

I believe we looked at an exhibit yesterday.

17

showed you an exhibit.

18

police officer; is that correct?

19

A.

Yes.

20

Q.

Would you like to look at that exhibit again?

21

A.

I remember it.

22

Q.

So those are some of your duties and responsibilities,

23

right?

24

A.

Yes.

25

Q.

Because you said, in fact,

What is your definition of nothing?

That's what I want to

You have duties and responsibilities as a police officer,

I do.

Counsel

The duties and responsibilities of a

that list wasn•t entirely

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 97 of 225
D3k9flo3
Polanco - cross
1

complete,

2

would do?

3

A.

Yes.

4

Q.

And those were the kinds of things you were getting paid

5

for when you came to work to perform your job as a police

6

officer, right?

7

A.

533

I believe -- there was other things as an officer you

I don't understand your question at all.

8

Let me just clarify to you.

9

THE COURT:

10

question,

Wait.

Wait.

The definition of work --

If you don't understand the

let her rephrase it.

11

What are you asking, Ms. Cooke?

12

THE WITNESS:

13

THE COURT:

I'm sorry.
Would you rephrase.

14·

Q.

You received a paycheck while you were an officer at the

15

41st precinct, correct?

16

A.

Yes.

17

Q.

And that paycheck was for the time you worked as an officer

18

in the 41st precinct, correct?

19

A.

Yes.

20

Q.

And you were expected to perform certain job duties and

21

responsibilities when you were working as an officer in the

22

41st precinct; is that correct?

23

A.

Yes.

24

Q.

And your tour was 8 hours and 35 minutes; is that correct?

25

A.

Yes.

SOUTHERN DISTRICT REPORTERS, P.C.
1212) 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 98 of 225
03k9flo3
Polanco - cross
1

Q.

534

And would you work approximately 20 days a month?

''
'

2

A.

Sometime, yes.

3

Q.

Not all the times because you would have vacation days or

4

sick days?

5

A.

6

details.

7

Q.

8

another precinct, you were working those days?

9

A.

Not necessarily.

10

Q.

You were getting paid?

11

A.

If, for example, I have to go to court, that day I don't go

12

on patrol.

13

Q.

14

or sick days and days on patrol, days on assignment outside of

15

the command, days in court.

Court.

But not all the times.

Vacation.

Sent to another borough for other

There was many reasons, yes.

But on the days when you are in court or you get sent to

I'm distinguishing I suppose between RDOs, vacation days,

So the total number of days you would be on patrol, or

16
17

on assignment in another command 1 or in court would be an

18

average of about 20 days a month?

19

A.

Yes.

20

Q.

Would you say that more often than not you were on patrol

21

those 20 days?

22

A.

Yes.

23

Q.

In fact,

24

months where you had no 250 activity or no arrest activity for

25

the month, correct?

in 2009 there were days where -- or there were

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 99 of 225
Polanco - cross
D3k9flo3
1

A.

Yes.

2

Q.

And some days you wouldn't issue any summonses when you

3

were on patrol, correct?

4

A.

Yes.

5

Q.

You each day you arrived at work you would receive an

6

assignment as patrol officer; isn't that right?

7

A.

I'm sorry?

8

Q.

Each day you arrived at work you would receive an

9

assignment as patrol officer, right?

10

A.

A sector, yes.

11

Q.

Well not necessarily a sector, correct?

12

A.

Most

13

Q.

Might be the telephone switchboard operator in the

14

precinct?

15

A.

Sometime, yes.

16

Q.

Or you might guard a prisoner at the hospital?

17

A.

Sometime, yes.

18

Q.

Guard a prisoner in the cells?

19

A.

Yeah, sometimes.

20

Q.

Or you might be driving a supervisor?

21

A.

In my case I didn't -- I did not do that much.

22

Q.

But you did sometimes drive a supervisor?

23

A.

But -- sometime but not too often.

24

Q.

But that's an assignment that an officer can receive?

25

A.

I'm sorry?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

535

Case 1:08-cv-01034-AT-HBP
D3k9flo3

Document 284 Filed 05/30/13
Polanco - cross

Page 100 of 225

1

Q.

2

drive a supervisor?

3

A.

Yes.

4

Q.

You could also work a footpost; isn't that correct?

5

A.

Yes.

6

Q.

And,

7

command on some special assignment, correct?

8

A.

Yes.

9

Q.

Like CRV?

10

A.

Yes.

11

Q.

Critical vehicle

12

A.

Yes.

13

Q.

Critical response vehicle.

536

That's an assignment an officer can receive for their tour,

14

Yes.

as you mentioned, you could be sent outside of the

~esponse?

,.
I'm sorry.

Or parade?

15

A.

Yes.

Details.

16

Q.

Some special detail.

17

A.

Yes.

18

Q.

All and all these things we've just discussed, these are

19

assignments that need to be covered by a police officer; isn't

20

that correct?

21

A.

22

90 percent of the time that you come to the precinct you be on

23

patrol.

24

Q.

25

yourself as a police officer, correct?

Yes.

Yeah, but if I might explain when you're on patrol,

But these are all other assignments that you conducted

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805~0300

Case 1:08-cv-01034-AT-HBP Document284 Filed 05/30/13 Page 101 of225

537

Polanco - cross

D3k9flo3
1

A.

Yes.

2

Q.

But you consider several of these assignments punishments;

3

isn't that right?

4

A.

Yes.

5

Q.

Particular footpost.

6

A.

Yes.

7

Q.

You consider it a punishment?

8

A.

Many officers consider it a punishment.

9

Q.

Well we're just talking about you.

10

A.

Okay.

11

Q.

You consider driving a supervisor a punishment?

12

A.

Depends.

13

Q.

Depends on which supervisor?

14

A.

No.

15

They choose who drive them permanently.

16

You consider that a punishment?

It's considered a punishment yes.

Depends on every supervisor have their own drivers.

If you are driving a supervisor for one day and one

17

purpose, yes, it's a punishment.

18

Q.

The supervisor needs a driver; isn't that correct?

19

A.

Yes.

20

Q.

You also consider working a checkpoint a punishment; isn't

21

that correct?

22

A.

Yes.

23

Q.

As a police officer is one of your responsibilities

24

enforcing the law?

25

A.

Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(2121

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 102 of 225
Polanco - cross
D3k9flo3
1

Q.

2

isn't that correct?

3

A.

Sometime, yes.

4

Q.

Sometimes.

5

enforcing the law?

6

A.

7

enforcing the law.

8

Q.

9

538

probable cause; isn't that correct?

And issuing summonses is a means of enforcing the law;

Is there a time when issuing a summons isn't

When you break the law to issue a summons it's not

But -- and you've, in fact,

issued summonses without

10

A.

I might have.

11

Q.

You might have?

12

A.

I was called to scenes to write summons by supervisors

13

other supervisors, yes.

14

Q.

15

summonses you wrote lacked probable cause and the charges for

16

false statements?

17

A.

Didn't you just have a department trial in which two

Would you like the details of that?

18

MR. CHARNEY:

19

THE COURT:

20

THE WITNESS:

21

Objection, your Honor.
Would you like what did you say?
The details.

I can give her the details

of those two summonses.

22

THE COURT:

23

MR. CHARNEY:

24

THE COURT:

25

MR. CHARNEY:

You object to that?
Because we tried -If you do, that's that.
-- to ask questions about the details of

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 103 of 225
D3k9flo3
Polanco - cross
1

the trial.
THE COURT:

2
3

MR. CHARNEY:

5

THE COURT:

MR. CHARNEY:

We do.
If you don't object, he wants to provide

I object.

I think the question should

be stricken.
THE COURT:

9

10

if you object, I'm going to

the details.

7

8

Mr. Charney,

sustain it.

4

6

539

Nevermind.

Do you want the details or

not?

11

MR. CHARNEY:

I don't.

12

THE COURT:

13

Objection sustained.

14

MS. COOKE:

If I may,

15

THE COURT:

You made the point already.

You don't.

All right.

it goes to false statements.
You said did

16

you participate in a trial for writing false summonses.

17

thought you said, and you were found to write false summonses.

18

Then he said yes, but would you like the details.

19

objection to the details.

20

MR. CHARNEY:

No.

And I

There was an

I sustained it.
My objection is to the question.

21

If you're going to allow the question, then I want the witness

22

to have the right to explain.

23

THE COURT:

24

MR. CHARNEY:

25

That's what I thought.
So you're not going to sustain the

objection to the question?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 104 of 225
D3k9flo3
Polanco - cross
THE COURT:

1

2

Correct.

540

I'm not going to sustain the

objection to the question.

3

MR. CHARNEY:

4

THE COURT:

5

Go ahead.

6

THE WITNESS:

Well then I would like him to answer.
He can explain what happened.

Early when I started testifying, when I

7

report to internal affairs with a letter,

8

there's an incident of the no dog license that was I was forced

9

to write that I provided to internal affairs.

in that letter

10

When I anonymously called internal affairs, I provided

11

the same sample of the same no dog license that I was forced to

12

write and for them to please do something about it.

13

When I got interviewed with them in December I gave

14

them the copy of those two summonses saying yes, I wrote them

15

under intimidation because the boss called me over.

16

there.

17

I was not

I did not observe a dog.
A year later they took care of the investigation by

18

charging me with perjury for writing the summons and promoting

19

the supervisor.

20

THE COURT:

21

THE WITNESS:

22

THE COURT:

23

THE WITNESS:

And promoting the supervisor?
Promoting the supervisor.
Oh, and they promoted.
And they promoted, and charged me with

24

perjury, yes, the summons that I reported, yes.

25

Q.

So the first summons, the one for the lack of a dog
SOUTHERN DISTRICT REPORTERS,
(2121 805-0300

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05130113
D3k9flo3
Polanco - cross

Page 105 of 225

541

1

license, you testified about that on your direct examination as

2

well; is that correct?

3

A.

Yes.

4

Q.

And you identified Inspector McHugh, the individual who

5

stopped and called you to the scene?

6

A.

Yes.

7

Q.

And when you arrived Inspector McHugh asked you to write a

8

summons for someone not having a dog license?

9

A.

Yes.

10

Q.

But he didn't give you anymore specifics about how to write

11

that summons up?

12

A.

Nope.

13

Q.

And you claim you did not see a dog, right?

14

A.

I did not see a dog.

15

Q.

But you wrote the summons for the person not having a dog

16

license?

17

A.

18

dog license, yes.

19

Q.

20

carefully, and you knew that it indicated that if you did not

21

observe what you were recording you observed, you shouldn't

22

sign that summons; isn't that correct?

23

A.

And when you wrote that summons, you read the summons

I'm an officer.

Yes.

I knew that.

He was a captain.

24

25

I was instructed by McHugh to write them a summons for no

Q.

He should have known better.

But you signed the summons; is that correct?

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 106 of 225
D3k9flo3
Polanco - cross

1

A.

He asked me to write it, yes.

2

Q.

Did you ask the person where their dog was?

3

A.

I told the person to fight it and bring it to court and I

4

542

will see him there.
No,

5

I didn't.

6

Q.

Officer Polanco my question is:

7

v1ere writing a summons for lack of a dog license where their

8

dog was?

9

A.

He said he didn't have no dog.

10

Q.

Did you ask him where his dog was?

11

A.

I

12

Q.

Did you ask Inspector McHugh where the dog was?

13

A.

Nope.

14

Q.

For the second summons that's the subject of your

15

department trial 1 that's what Inspector McHugh also called you

16

to the scene when he had individuals stopped?

17

A.

It was the same scenario.

18

Q.

It's not the same scenario.

asked him about the dog.

Did you ask the person you

He said he didn't have one.

It's not a dog license.

Isn't that correct?

19
20

A.

But it's the same scenario.

21

Q.

It's not a dog license, correct?

22

A.

No,

it's not.

23

THE COURT:

24

THE WITNESS:

25

What do you mean by the same scenario?
It's the same incident.

individuals in the same incident.

There was two

That's what I'm trying to

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 107 of 225
D3k9flo3
Polanco - cross

543

1

say.

2

Q.

This one was a disorderly conduct summons; is that correct?

3

A.

Yes.

4

Q.

You claim the only reason that Inspector McHugh stopped

5

these people was because they were black?

6

A.

Yes.

7

Q.

But you weren't there at the time of the stop, were you?

8

A.

But I was there after, yes.

9

Q.

But you weren't there at the time of the stop, right?

10

A.

No, I wasn't.

11

Q.

And you don't know what the circumstances Inspector McHugh

12

observed leading to the stop, do you?

13

A.

14

stopped him.

15

Q.

16

right?

17

A.

No.

18

Q.

You don't know if the person fit the description of a

19

perpetrator for crime, do you?

20

A.

That's not how they put it out over the radio, no.

21

Q.

You don't know that, do you?

22

A.

If, in fact, it would be a description of somebody of a

23

crime or anything like that, then he would have asked me to

24

write a 250 or something for it.

25

Q.

Absolutely, yes.

He told me he saw a dog with no license.

That's why he

Supposedly.

You didn't know if there had been a radio run; is that

Because that was my sector.

No radio runs.

You don't know that those individuals that were stopped

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 108 of 225
Polanco - cross
D3k9flo3

544

1

didn't fit the description of perpetrators of a crime, do you?

2

A.

3

officer, no.

4

Q.

5

identified by victims of a crime, do you?

6

A.

No.

7

Q.

And you wrote and signed that summons as well, correct?

8

A.

Yes.

9

Q.

You're aware that pursuant to department policy, summonses

I don't know it.

And I was not told by the commanding

You don't know if the people that were stopped were

10

are to be recorded in your memo book; isn't that correct?

11

A.

Yes.

12

Q.

But you don't always record the fact you've issued a

13

summons in your memo book, do you?

14

A.

Sometime I did.

15

Q.

You were trained on how to issue a summons when you were at

16

the police academy, correct?

17

A.

I'm sorry?

18

Q.

You were trained on how to issue a summons at the police

19

academy?

20

A.

Maybe.

21

Q.

Trained on memo book entries?

22

A.

Probably, yes.

23

Q.

That would include memo book entries for the summons?

24

A.

Probably, yes.

25

Q.

And you understand, as we discussed, the summons has a

Sometime I didn't.

I don't recall.

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 109 of 225
Polanco - cross
D3k9flo3

545

I personally observed the

1

statement at the bottom that says:

2

commission of the offense charged; is that correct?

3

A.

Yes.

4

Q.

And then you, as the officer, would sign as the

5

complainant, as the person who observed the offense, correct?

6

A.

Yes.

If I may, do you have a copy of those summonses?

7

8

Q.

I don't have a copy of summonses.

9

There are instances in which the officer who fills out

10

the summons is not the complainant who signs the summons; isn't

11

that right?

12

A.

Yes.

13

Q.

In those instances the patrol guide instructs the officer

14

to draw a line through the phrase "I personally observed."

15

Isn't that correct?

16

A.

No.

17

Q.

No?

18

A.

No.

19

Q.

You're not familiar with the patrol guide section which

20

instructs an officer to do that?

21

A.

22

document, no.

23

Q.

So you've never reviewed patrol guide section 209-11?

24

A.

What I was told

25

Q.

My question is if you've ever reviewed patrol guide section

I'm not familiar with putting a line through an official

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 110 of 225
D3k9flo3
Polanco - cross
1

209-11?

2

A.

I don't remember reviewing it.

3

Q.

Signing the summons as the complainant when you don't

4

personally observe the violation is considered a false

5

statement under the law; isn't that right?

6

A.

Yes.

7

Q.

And only uniformed members of service below the rank of

8

captain are required to carry books of summonses; isn't that

9

546

correct?

10

A.

To carry the books of summonses.

11

Q.

To carry.

12

A.

Not to issue them.

13

Q.

Yes.

To carry them.

Yes.

So then if a captain or a deputy inspector or an

14
15

inspector or someone of higher rank wanted to issue a summons,

16

they would need to find an officer who does carry a book of

17

summonses; isn't that correct?

18

A.

Yes.

19

Q.

No supervisor at the 41st precinct ever told you to sign

20

the summons when you didn't personally observe it, did they?

21

A.

Lieutenant Valenzano a week before, yes.

22

Q.

Did a supervisor ever refuse to sign a summons that you

23

completed that you had not personally observed?

24

A.

They never asked for it.

25

Q.

My question is did a supervisor ever refuse to sign a

SOUTHERN DISTRICT REPORTERS, P.C.
{212) 805-0300

case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 111 of 225
Polanco - cross
D3k9flo3

54 7

1

summons that you wrote out for a summonable offense you did not

2

observe?

3

A.

No.

4

Q.

You testified that you have observed officers making stops

5

in the 41st precinct that lacked reasonable suspicion; is that

6

correct?

7

A.

Yes.

8

Q.

But you never raised this issue with supervisors at the

9

41st precinct?

10

A.

Yes, I did.

11

Q.

Which supervisor?

12

A.

Sergeant Bennett.

13

Q.

Did you report the misconduct to lAB?

14

A.

Excuse me?

15

Q.

Did you report that misconduct to lAB?

16

A.

Yes.

17

Q.

Prior to September of 2009 in-- you joined the police

18

department in 2005, correct?

19

A.

Yes.

20

Q.

Between 2005 and 2009 you observed officers make stops

21

without reasonable suspicion; is that correct?

22

A.

Yes.

23

Q.

And you never reported that conduct until 2009; is that

24

correct?

25

A.

In September and November and December.

Yes.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 112 ol225
Polanco - cross
D3k9flo3

548

1

Q.

2

without reasonable suspicion, were you there at the time of the

3

stop?

4

A.

Some of them, yes.

5

Q.

So some of them you were not?

6

A.

Some of them I wasn't.

7

Q.

So some of them you weren't aware of the circumstances that

8

led to the stop?

9

A.

In these stops that you observed officers making stops

Some of them, no.

But I will hear.

I will listen to both

10

sides.

11

Q.

12

stops, were you?

13

A.

Maybe at some point, yeah.

14

Q.

You didn't record these suspicionless stops in your memo

15

books, did you?

16

A.

No.

17

Q.

The stops thank you weren't present for the circumstances

18

leading up to the stop, you weren't aware that there wasn't a

19

radio run prompting the stop, were you?

20

A.

You weren't the partner of the officer making each of those

I don't know.

Some of them.
Not some of them, no.

21

Maybe.

I'm sorry.

22

Q.

For the stops that you weren't present leading to the

23

circumstances, you weren't aware if there was a radio run?

24

A.

Some -- no.

25

Q.

You weren't aware whether or not the person stopped fit a

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 113 of 225
D3k9flo3
Polanco - cross

1

description, were you?

2

A.

No.

3

Q.

You weren't aware of whether the person stopped was

4

suspected of carrying a weapon?

5

A.

No.

6

Q.

You weren't aware of whether the person stopped was

7

identified by a victim of a crime?

8

A.

No.

9

Q.

549

So your belief that these persons were stopped,

I
'
'
'

10

suspicionless stopped in the 41st precinct is because the

11

communities in which these stops took place are largely black

12

and Hispanic; isn't that right?

13

A.

Yes.

Absolutely.

l4

MR. CHARNEY:

15

THE COURT:

16

Objection.
And it was also your own experience, is

that not right?
THE WITNESS:

17

Yes.

And I work in all the communities

18

where we don't interact with people that way.

19

the Bronx.
THE COURT:

20

21

THE WITNESS:

23

THE COURT:

25

You've made those stops and filled out

those forms yourself

22

24

We interact in

Some of them.
-- like you're supposed to do; is that

right?
THE WITNESS:

Yes, some of them.

SOUTHERN DISTRICT REPORTERS, P.C.
(2121

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 114 of 225
D3k9flo3
Polanco - cross
THE COURT:

1
2

So that's part of your experience also,

right?
THE WITNESS:

3

i

Yes, your Honor.

4

Q.

5

aware that the residents of the 41st precinct were largely

6

black and Hispanic; is that correct?

7

A.

Yes.

8

Q.

And you would agree that at the same time the majority of

9

complainants of crime in the 412 precinct were also black and

During your time you worked in the 41st precinct, you were

10

Hispanic?

11

A.

The majority.

12

Q.

The majority?

13

A.

Yes.

Not all of them.

The majority I agree.

14

THE COURT:

15

I'm going to stop now for the luncheon recess and

16

550

reconvene at 2:00.

Let me interrupt now.

It's 12:45.

But I have a request.

17

Off the record.

18

(Discussion off the record)

19

(Luncheon recess)

20
21
22

23
24

25

SOUTHERN DISTRICT REPORTERS 1 P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 115 of 225
D3k9flo3
Polanco - cross

1

AFTERNOON SESSION

2

551

2:05p.m.

3

(Trial resumed)

4

THE COURT:

5

Ms. Cooke.

Please be seated.

6

BY MS. COOKE:

7

Q.

Officer Polanco?

8

A.

Yes.

9

Q.

Unlike the summons paperwork, there is no place on a UF 250

10

for an officer to sign that they personally observed the stop;

11

is that correct?

12

A.

I believe not.

13

THE COURT:

14

THE WITNESS:

I can't hear you.
I believe not.

15

Q.

16

evidence as Plaintiffs' Exhibit 19 -- 419 into evidence and

17

marked for identification Plaintiffs' Exhibit 420 and

18

Defendants' Exhibit X-11.

19

using.

I'm handing the witness what has been introduced into

Your Honor, paper copies for you.

20

THE COURT:

21

MR. CHARNEY:

22

THE COURT:

23

Three documents we're going to be

Is there any objection to receiving these?
No.
They're all received; 419, 420.

What's

the other one.

24

MS. COOKE:

Defendants' X-11.

25

THE COURT:

All right.

Those are the three that are

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 116 of 225
D3k9flo3
Polanco - cross

1

received.

2
3

552

{Plaintiffs' Exhibits 419 and 420 received in
evidence)

4

(Defendants' Exhibit X-llreceived in evidence)

5

Q.

Officer Polanco, do you recognize these documents?

6

A.

The top one, it's not one that I usually see because that

7

one is done by a supervisor.

8

Q.

9

saying the top one?

Are you looking at Plaintiffs' Exhibit 419 when you're

10

A.

The top one is 923?

11

Q.

Yes.

12

A.

419, yes.

13

Q.

Then if you turn the page.

14

exhibit, Plaintiffs' 419, the Bates stamp ending 924, that's

15

your monthly performance report for January 2009.

16

discussed yesterday with your counsel.

17

A.

I believe so, yes.

18

Q.

And the other documents that I've handed you that have been

19

admitted into evidence, Defendants• X-11, are these similar

20

documents for different months?

21

A.

Yes.

22

Q.

And Plaintiffs' 420, the third document, are those again

23

similar documents for different months?

24

A.

420?

25

Q.

Yes.

That's filled out by a supervisor.
On the second page of this

The one that says Bates stamp ending 944?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I think we

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 117 of 225
Polanco - cross
D3k9flo3

1

A.

Y~s,

2

Q.

We're going to start with Plaintiffs' Exhibit 419 and the

3

Bates stamp the second page that begins -- that ends Bates

4

553

stamp 924.

5

I believe so.

That's your January 2009 monthly performance report,

6

correct?

7

A.

Yes.

8

Q.

And in January of 2009 what were the quotas for arrests,

9

summonses, and 250s at the 41st precinct?

10

A.

I don't recall -- for that particular -- I don't recall

11

exactly.

12

Q.

You don't recall?

13

A.

For that month.

14

Q.

Were there quotas for arrests, summons, and 250s in January

15

of 2009?

16

A.

Yes, I believe so.

17

Q.

What's the first month that you do recall in 2009 that

18

there was a number for a quota?

19

A.

20

February, March, maybe.

21

Q.

Okay.

22

A.

To the best of my recollection.

23

Q.

Okay.

24

Bates stamp 18926 which is your February 2009 monthly

25

performance report; is that correct?

For that particular month, no.

I don't recall a specific month.

But I will probably guess

You think February?

Let's turn to the Bates stamp in the same document

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 118 of 225
Polanco - cross
D3k9flo3
1

A.

Yes.

2

Q.

And what lS it you recall were the quotas in February of

3

2009 at the 41 5 t precinct?

4

A.

I believe it's 21.

5

Q.

Twenty-one?

6

A.

I believe.

I'm not

7

Q.

All right.

And how

8

for the month, correct?

9

A.

Yes.

10

Q.

And looking at this NYC_2_0018926 Bates stamped page of

11

Plaintiffs' Exhibit 419.

12

the month; is that correct?

13

A.

Yes.

14

Q.

And you issued zero summonses?

15

A.

According to this paper -- this is not a paper I've been

16

holding so I don't know what's been done to this paper.

17

Q.

18

this document?

19

A.

I couldn't even attest to that.

20

Q.

You don't believe you completed this paper?

21

A.

I might have.

22

department for almost four years.

23

Q.

Do you recognize your name at the top?

24

A.

It's definitely my name, yes.

25

Q.

Do you not believe you wrote this piece of paper?

554

I'm not sure.

20 was for the number of summonses

I see that you make zero arrests for

You haven't been holding it but is this your handwriting on

I'm sorry.

I might have not.

I've been out of the

I don't know who wrote this.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 119 of 225
Polanco - cross
D3k9flo3
1

A.

I'm not saying I didn't.

555

I'm not say I did.

I'm saying this document was out of my hands for more

2

3

than four years.

So I don't know what's been done to it.

I

4

cannot testify to it.

5

Q.

6

handwriting?

7

A.

No.

8

Q.

Turning to Bates stamped page 8929 which is the March 2009

9

monthly performance report for Officer Polanco.

Is there a document in here that you do recognize your

10

Not really.

Do you see that page?

11

A.

Yes.

12

Q.

And you see for March 2009 you recorded one arrest?

13

A.

Like I said, I cannot testify to what's here.

14

document been out of my hands for almost four years.

15

know whether, through a warrant, if they did

16

Q.

17

March?

18

A.

(No

19

Q.

As you look at i t here?

20

A.

Yes, it does.

21

Q.

Does it reflect four surrunonses?

22

A.

Yes.

23

Q.

Turning to Bates stamped page 18931 -- I'm sorry.

24

which is the April 2009 officer monthly performance report.

25

A.

This
I don't

Does the document reflect one arrest for the month of

response) .

I

believe that's what it reflects.

Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
( 212 I 805-0300

18932

I

I
I
I
'

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 120 of 225
D3k9flo3
Polanco - cross

556

1

Q.

Do you see that page?

2

A.

Yes.

3

Q.

Is this your handwriting?

4

A.

I cannot secure whether it is my handwriting.

5

sure.

6

Q.

Is your name at the top?

7

A.

That's my name, yes.

8

Q.

Does this document reflect one arrest on a warrant for the

9

month?

I'm not

10

MR. CHARNEY:

11

MS. COOKE:

The Bates stamp is cut off but it's

THE COURT:

Well it says April 2009 on the upper

12

Which page is this?

189350.

13

14

right-hand corner.

April 2009.

15

Q.

16

Officer Polanco, reflect one arrest made on a warrant?

17

A.

It reflects that, yes.

18

Q.

And it reflects 14 summonses?

19

A.

Where?

20

Q.

If you total, in the summons column, I see parking

21

violation, there's a total of one.

Does this April 2009 monthly performance report for you,

22

That's a summons, correct?

23

A.

Yes.

Like I said

24

Q.

Moving violation.

25

A.

Yes.

There's a three?

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 121 of 225
Polanco - cross
D3k9flo3

557

1

Q.

And criminal court, you see summonses, there's a 10?

2

A.

That's what the paper says.

3

Q.

So that would total 14, correct?

4

A.

Yes.

5

Q.

And OF 250s for the month of April 2009 on the performance

6

report for Officer Polanco 1 it's four, correct?

7

A.

According to this paper, yes.

8

Q.

Do you have any reason to believe you had more activity for

9

the month of April 2009 than is reflected on this report?

10

A.

I know how capable this department is of doing wrong stuff

11

that I don't honestly put it past them that they just threw

12

numbers in here.

13

Q.

14

each month you were at the 41 5t precinct?

15

A.

Yes.

16

Q.

Finally,

17

The Bates stamp is 18934.

18

A.

Yes.

19

Q.

Do you see that there are two arrests reflected on this

20

performance report for you, Officer Polanco, for May of 2009?

21

A.

According to this paper, yes.

22

Q.

Do you see there are ten

23

is hard to read.

24

A.

According to the paper, yes.

25

Q.

And three UF 250s for the month of May 2009?

It's a possibility.

Do you recall filling out a monthly performance report for

the last page of this document,

from May of 2009.

a total of ten summonses and it

I apologize.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13
D3k9flo3
Polanco - cross

Page 122 of 225

558

1

A.

Yes.

2

Q.

So for none of those months we just reviewed, January,

3

February, March, April, or May of 2009 did you have 20

4

summonses; is that correct?

5

A.

According to this paper, no.

6

Q.

Turning to Defendants' Exhibit X-11, Officer Polanco?

7

A.

Yes.

8

Q.

And the second page of the document which is Bates stamped

9

18936.

It's a monthly performance report for you for June 2009

10

with your name at the top.

Do you see that?

11

A.

Yes.

12

Q.

Do you recognize this handwriting?

13

A.

No.

14

Q.

On this document do you see that it reflects one arrest for

15

you for the month of June 2009?

16

A.

Yes.

17

Q.

And do you see five summonses for the month?

18

A.

Yes.

19

Q.

And do you see one UF 250?

20

A.

Yes.

21

Q.

And that month you had eight days on patrol, correct?

22

A.

I'm going to speak according to the paper.

23

Q.

The document reflects that this is monthly activity for

24

Officer Polanco and it indicates eight days on patrol.

25

what the document reflects, correct?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Yes.

That's

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 123 of 225
Polanco - cross
D3k9flo3

1

A.

That's what the document reflects, yes.

2

Q.

Turning to the fourth page of this document or fifth page

3

Bates stamp 18938.

559

18939.

4

I'm sorry.

I'm sorry.

Wait.

Hold on.

18939.

August 2009.

5

A.

Yes.

6

Q.

Just one second.

7

top, Officer Polanco?

8

A.

Which one are we talking about?

9

Q.

August 2009.

10

A.

Yes.

11

Q.

Do you recognize this handwriting?

12

A.

No.

13

Q.

You don't believe it's your handwriting?

14

A.

It can be.

15

it is.

16

Q.

17

August 2009 at the 41st precinct?

18

A.

Possible, yes.

19

Q.

Do you see that this document reflects had you seven days

20

on patrol this month?

21

A.

Yes.

22

Q.

And one arrest?

23

A.

Yes.

24

Q.

And four summonses?

25

Do you see that this has your name at the

Yes.

It could be.

I'm not-- I cannot affirm that

No.

Do you recall filling out a monthly performance report for

They were all criminal court summonses?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 124 of 225
Polanco - cross
D3k9flo3
1

A.

Yes.

2

Q.

And zero UF 250s?

3

A.

That's what the paper says.

4

Q.

So you didn't satisfy a summons quota of twenty in the

5

month of August 2009 according to this paperwork?

6

A.

560

According to this paper.

7

THE COURT:

8

THE WITNESS:

9

Q.

What?
According to the paper, no.

You didn't have any 250s.

So you didn't reach a quota for

10

the 250s for August 2009?

11

A.

According to this paperwork.

12

Q.

If I could direct your attention to Bates stamped page

13

18938 which is the squad supervisor's recapitulation for August

14

of 2009.

15

Was Sergeant Edgar Padilla your squad supervisor?

16

A.

Yes, he was.

17

Q.

Is that his name at the top of this document?

18

A.

I believer yes.

19

Q.

And at the bottom of the document do you see a comment in

20

the section it says comments by squad supervisor?

21

A.

I can roughly see it.

22

Q.

Do you see the handwriting appears to read, and I'll read

23

it out loud, 7 MOS.

24

A.

Member of service.

25

Q.

So members of service in squad.

Yes.

What is MOS?

No SQFs.

Impossible with

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

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D3k9flo3
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1

561

a car break pattern.

2

Do you see that?
I cannot make it out just by seeing it.

3

A.

4

Q.

6

11

It's not

legible.

5

I can't.

Okay.

Do you have a reason to think it doesn't read

irnpossible with a car break pattern 11 ?

7

A.

I cannot make it out.

8

Q.

So the comment indicates that there was seven members of

9

service in this squad this month who had no UF 250s; is that

I don't know how you can, but.

10

correct?

11

A.

Yes.

12

Q.

And you were one of those seven members of the squad with

13

no 250s this month,

14

A.

According to the paperr yes.

15

Q.

I'd like to play track five of your audio recording roll

16

call.

17

play the entire track.

correct?

It's one minute and nine seconds in total.

18

MR. KUNZ:

19

{Audio recording played)

20

MS. COOKE:

21

MR. KUNZ:

I'm going to

I'll hit play right now.

What time did we stop that?
We stopped at 48 seconds.

22

Q.

The speaker you identified this morning that was Lieutenant

23

Valenzano, correct?

24

A.

Yes.

25

Q.

Did you hear Lieutenant Valenzano in that recording say:

SOUTHERN DISTRICT REPORTERS, P.C.
[212) 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05130/13 Page 126 of 225
D3k9flo3
Polanco - cross

562

1

We're still having problems with car break-ins, guys.

2

see people over there on bikes carrying bags, you know, good

3

stops?

4

A.

Yeah.

5

Q.

Did you hear that?

6

A.

Yeah.

7

Q.

Do you believe this recording was made -- you believe these

8

recordings were made after September of 2009, correct?

9

A.

Yes.

10

Q.

Do you recall a car break-in pattern in the 41 5 t

11

in the fall of 2009?

12

A.

It's been a long time.

13

Q.

Do you ever recall that there was a car break-in pattern in

14

the 41st precinct when you were there?

15

A.

Not to my recollection, no.

16

Q.

You don't recall a car break-in pattern focused in sectors

17

Frank and Charlie in late 2009?

18

A.

I don't recall.

19

Q.

Did you ever patrol in sectors Frank and Charlie?

20

A.

Frank and Charlie are not two sectors.

21

know what he's talking about.

22

THE COURT:

23

THE WITNESS:

24
25

precinct

I don't recall, no.

He doesn't even

Say that again.
In the 41, sector Frank and Charlie

doesn't exist.
THE COURT:

If you

Doesn't exist?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 127 of 225
Polanco - cross
D3k9flo3
THE WITNESS:

1

Nope.

563

He's talking out of I don't know

2

where.

It doesn't exist.

3

Q.

I said Frank and Charlie.

4

A.

He said Frank and Charlie also.

5

Because it doesn't exist.

6

Q.

7

41st precinct?

8

A.

9

and Charlie.

He did.

He's wrong.

So there is no sector F and there is no sector C in the

No F and C.

There's Eddie, Frank, Ida.

And there's Boy

There's no Frank -- F and C.

10

Q.

11

they form a sector.

12

A.

Yes.

13

Q.

F and C geographically are not adjacent to each other?

14

A.

No.

15

Q.

But they exist.

16

then B and C.

17

A.

Yes.

18

Q.

You testified that one of the punishments for failing to

19

meet a quota would be driving a supervisor; is that right?

20

A.

There's two terms of driving a supervisor, yes.

21

Q.

But one of them you considered a punishment, correct?

22

A.

The one where you driving for that day, for one solely

23

purpose, yes, it's a punishment.

24

Q.

25

18926, which is your February 2009 -- well the February 2009

You mean that multiple alphabet letters are combined and

Is that what you're telling us?

And he combined F and C, which they don't.

They just are grouped E, F and G.

And

Correct?

Looking at Plaintiffs' Exhibit 419, Bates stamped page

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I

!

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 128 of 225
D3k9flo3
Polanco - cross

1

564

monthly performance report for Officer Adhyl Polanco.

2

Do you see the assignments listed down the left-hand

!

3

column of the page?

4

A.

I'm still looking for it.

5

Q.

I'm sorry.

6

A.

Yes.

7

Q.

Do you see on the twenty -- am I correct that the numerical

8

column on the far left represents each day of the month.

9

one would indicate the first day; two the second day of the

I

February 2009.

So
'

10

month.

Correct?

11

A.

Yes.

12

Q.

And so down on 24 that would be the 24th day of February,

13

2009?

14

A.

Yes.

15

Q.

And it says there's SGT OP is that sergeant's operator?

16

A.

Yeah.

17

Q.

Is that your assignment for the day?

18

A.

According to this paper, yes.

19

Q.

And according to this paperwork on this day as sergeant's

20

operator you made ten radio runs?

21

A.

What was the date?

22

Q.

The 24th.

23

A.

Yes.

24

Q.

And no

25

A.

According to the paper, no.

I'm sorry.

you issued -- you made no arrests?

SOUTHERN DISTRICT REPORTERS,
(2121 805-0300

P.C.

'
I
•

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 129 of 225
D3k9flo3
Polanco - cross
1

Q.

And issued no summonses, according to the paper?

2

A.

According to the paper.

3

Q.

And you conducted three stop and frisks,

4

A.

Yes.

5

Q.

In fact,

6

stamped page 18929, the monthly performance report for

7

Professor Polanco -- sorry, Officer Polanco.

8

A.

I wish.

9

Q.

March 2009?

10

A.

Yes.

11

Q.

Do you see on the fourth day of the month you have

12

assignment for sergeant operator?

13

A.

Yes.

14

Q.

And also on the 25th day of the month you were a

15

sergeant's operator; is that correct?

16

A.

Yes.

17

Q.

And looking at the fourth day of the month.

18

radio runs conducted as the sergeant's operator?

19

A.

According to this paper.

20

Q.

565

According to this paper.

correct?

turning to March 2009 in the same document Bates

There were six

And no other activity under any column on this report.

21

22

i.

So that would be no arrests, no summons, and no UF 250s.
Is that correct?

23
24

A.

According to this paper, again, yes.

25

Q.

And down on the 25th day of the month, you were also the

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I
I

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 130 of 225
Polanco - cross
D3k9flo3
1

566

sergeant's operator.

2

There was no radio runs, correct?

3

A.

No.

4

Q.

No arrests?

5

A.

Nope.

6

Q.

One summons.

And no UF 250s.

7

Is that correct?

8

A.

According to this paper, again.

9

Q.

Officer Polanco, you were never denied a day off for

10

failure to meet a quota, were you?

11

A.

Very often.

12

Q.

Very often?

13

A.

Mm-hmm.

14

Q.

How many times?

15

A.

Plenty of times.

16

day if we didn't have the numbers.

17

Q.

Did you make a request for a day off that was denied?

18

A.

I asked the supervisor.

19

have the numbers, don't even bother.

20

Q.

21

paper?

22

A.

23

for it.

24

Q.

25

submit?

We were told simply not to put in for the

And he said don't -- if you don't

To receive a day off, you have to complete a piece of

Most of the time we'll ask the supervisor if we can put in

But to put in for a day off, there's a document you have to

SOUTHERN DISTRICT REPORTERS, P.C.
(2121 805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05130/13 Page 131 of 225
Polanco - cross
D3k9flo3

1

A.

2

with the paper we will ask the supervisor first.

3

Q.

4

day off and were denied because --

5

A.

I might have.

6

Q.

You've never had a shift change because failure to meet a

7

quota, have you?

8

A.

Myself, no.

9

Q.

You do claim, though,

56 7

Sometime, most of the time, in patrol before we even bother

But did you ever submit a piece of paper completed for a

I might have.

that other officers were transferred

10

from the 41st precinct because of failure to meet quotas; is

11

that correct?

12

A.

I know of at least one, yes.

13

Q.

And the one you're referring to is Officer Velazquez?

14

A.

Yes.

15

Q.

In fact,

16

section because he failed to meet quotes; isn't that right?

17

A.

Yes.

18

Q.

But, 2n fact,

19

of failure to meet quotas; isn't that right?

20

A.

How would I know?

21

Q.

Well Officer Velazquez was transferred because he was on

22

restricted due to a line-of-duty injury; isn't that right?

23
24

25

I

you claim that he was sent to the firearms tactic

Officer Velazquez wasn't transferred because

MR. CHARNEY:

Objection, your Honor.

She's

testifying.
THE COURT:

Sustained.

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

I
'

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 132 of 225

568

Polanco - cross

D3k9flo3

While you were at the 41st precinct, you never put ~n for

1

Q.

2

a recommendation and were denied, did you?

3

A.

4

recommendation?

5

Q.

6

March 2010, correct?

7

A.

Yes.

8

Q.

So directing -- do you still have your deposition, correct?

9

A.

Yes,

10

Q.

Directing your attention to page 156 of the deposition

11

transcript.

12

A.

What page are we looking at?

13

Q.

156.

14

A.

Yes.

15

Q.

Line 12.

16

"Q.

17

understand what you

18

earlier, whether you were saying that you need to show your

19

commanding officer your activity when you need a recommendation

20

signed or did you say an accommodation?

21

"A.

22

applying for a unit, if you're applying to go to another

23

precinct, or if you're applying to get an off-duty job, if

24

you're applying to pay detail, those things he has to sign in

25

order for you to get.

Recommendation as of --that's a poor question.

What is a

Well you've testified in this case in a deposition in

I do.

Was there ever an occasion where -- actually I couldn't

I wasn't sure what you were saying

Accommodation -- or accommodation, if anything, if you're

SOUTHERN DISTRICT REPORTERS, P.C.
(2121

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 133 of 225
D3k9flo3
Polanco - cross

569

Have you ever put in for a recommendation and been denied

1

"Q.

2

the recommendation?

3

nA.

No.

4

"Q.

Have you ever put in for an accommodation and been denied

5

the accommodation?
"No.

6
7

no.

8

paid deal.

Have you ever put in for paid detail and been denied the

"No.

9

Have you ever put in for off duty work and been denied off

10

"Q.

11

duty work?

12

"A.

No. "

13

Were you asked those questions and did you provide

14

those answers during your deposition?

15

A.

Yes.

16

Q.

I believe you testified this morning that you never

17

received a low performance evaluation at the 41 5 t precinct;

18

is that correct?

19

A.

Not to my knowledge, no.

20

Q.

That was either on quarterly evaluation or an annual

21

evaluation?

22

A.

Not to my knowledge, no.

23

Q.

And you testified yesterday that you didn't ever seek

24

overtime and were denied because of failure to meet quotas?

25

A.

Seek?

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 134 of 225
Polanco - cross
D3k9flo3
1

Q.

Request?

2

A.

I don't remember giving those exact words, no.

3

Q.

You said you weren't much of an overtime person?

4

A.

That I said.

5

(Continued on next page)

6
7

8
9

10
11

12

13
14
15
16
17

18

19
20

21
22

23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

570

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 135 of 225
D3KBFL04
Polanco - cross

571

1

Q.

2

because of low activity?

3

A.

4

you're not willing to do it, don't ask for it.

5

Q.

Did you ever ask for overtime and get denied?

6

A.

I didn't bother to ask for it.

7

Q.

So you never asked?

8

A.

Sometime, but like I said, they told me this is the

9

numbers, and if you don't agree to do these numbers, you don't

Do you recall requesting overtime and getting denied

They basically told us, this is what you have to do, and if

10

get it, simple as that.

11

Q.

12

denied the opportunity to work overtime?

13

A.

No.

14

Q.

I understand.

15

requested to work overtime and you were denied?

16

A.

No.

17

Q.

You did work impact overtime tours occasionally?

18

A.

Yes,

19

Q.

During those tours, you dictn•t necessarily always meet the

20

quota for the tour,

21

A.

I believe in some of them I didn • t.

22

Q.

Some of them you did not?

23

A.

Yes.

24

Q.

But you still were able to work an overtime tour again

25

after that,

Do you recall a time where you requested overtime and were

Overtime is not usually requested.
But my question is, do you recall a time you

I did.

correct?

correct?

SOUTHERN DISTRICT REPORTERS,
(2121

805-0300

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 136 of 225
D3K8FL04
Polanco - cross

5 72

1

A.

After I don•t do the five I have to wait till they forget

2

about it to get it again.

3

Q.

4

where you failed to meet a quota?

5

A.

6

that.

7

Q.

8

quota on overtime and then were never allowed to work overtime

9

again?

But you did work overtime again after you worked a tour

I can't knowledgeably respond to that.

I don't recall

Do you recall that there was a time you failed to meet a

10

A.

Never?

No.

11

Q.

Every time that you worked an overtime tour you were

12

compensated for the overtime, correct?

13

A.

There is a law for that, yes.

14

Q.

Officer Polanco, you testified yesterday that you didn't

15

think supervisors at the 41st Precinct cared about your

16

activities as an officer unless they involved a UF0-250, a

17

summons, or an arrest,

18

A.

Of course, yes.

19

Q.

You said supervisors don't care about how many radio runs

20

you conduct?

21

A.

They don't.

22

Q.

Or domestic violence calls you would go on?

23

A.

They don't.

24

Q.

But radio runs and domestic violence incidents are counted

25

on all those monthly activity reports we just reviewed,

is that right?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 137 of 225
Polanco - cross
D3KBFL04

573

1

correct?

2

A.

They are posted.

3

Q.

They are counted.

4

and they are totaled for the month?

5

A.

Yes.

6

Q.

You don't know what kind of review takes place of this

7

monthly activity report after you submit it to your supervisor,

8

do you?

9

A.

They only want to know of one thing and one thing only.

10

Q.

My question, Officer Polanco, is, you don't know what

11

review takes place of this document after you submit it to your

12

supervisor, do you?

13

A.

14

place is about the quantity of arrests, summonses, and 250s

15

that you write.

16

Q.

17

purpose, do you?

18

A.

The sergeant and the platoon commander and the CO.

19

Q.

In fact,

20

some domestic violence situations where you can't, in fact,

21

mediate the incident, you must arrest?

22

A.

Yes, of course.

23

Q.

So,

24

not take law enforcement action in a situation, you would be

25

required to take law enforcement action, isn't that correct?

There is a box and a line and a column

To my knowledge and my experience, the review that takes

You don't know who looks at this document and for what

isn't it true, Officer Polanco, that there are

in fact, even if you wanted to use your discretion and

SOUTHERN DISTRICT REPORTERS,
(212)

805-0300

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 138 of 225
D3K8FL04
Polanco - cross

1

A.

574

Yes.

2

MS. COOKE:

I have no further questions at this time.

3

THE COURT:

Mr. Charney.

4

MS. COOKE:

One moment.

5

A couple of more questions

6

Q.

Looking at Defendants' Exhibit Xll, Officer Polanco.
This is the August 2009 monthly performance report?

7
8

A.

Yes.

MS. COOKE:

9

18939.

10

Q.

Looking at the column on the far left, which has your

11

assignments or absences for the month,

12

on August 9, you were ROO, which means regular day off,

13

correct?

14

A.

Yes.

15

Q.

ROO means you're not working?

16

A.

Yes.

17

Q.

So you were ROO the 9th 1

18

A.

Yes.

19

Q.

And then it says VAC, that's vacation?

20

A.

Yes.

21

Q.

You had vacation the 12th, the 13th, the 14th, the 15th,

22

the 16th, correct?

23

A.

Yes.

24

Q.

And then on the 17th, I believe that says ROO again?

25

A.

Yes.

the lOth,

do you see the beginning

and the 11th, correct?

SOUTHERN DISTRICT REPORTERS,
{212) 805-0300

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 139 of 225
D3KBFL04
Polanco - cross

575

1

Q.

And the 18th, ROO?

2

A.

Yes.

3

Q.

Then the 19th, it says VAC,

4

A.

Yes.

5

Q.

The 19th, the 20th, the 21st, the 22nd, the 23rd, correct?

6

A.

Yes.

7

Q.

Then the 24th and 25th say RDO, is that correct?

8

A.

Yes.

9

Q.

So according to this document, from the 9th to the 25th of

so it's vacation again?

10

August 2009, you were out of the command and not working either

11

because of ROO or vacation day, correct?

12

A.

Yes.

13

Q.

So you weren't denied those days off in the month of August

14

2009?

15

A.

Those days cannot be denied.

16

Q.

Thank you.

THE COURT:

17

That's my annual vacation.

Mr. Charney, redirect.

18

REDIRECT EXAMINATION

19

BY MR. CHARNEY:

20

Q.

21

getting foot post to be a punishment.

22

A.

Yes.

23

Q.

Why do you consider it to be a punishment?

24

A.

If you're a patrol officer who is used to a car for so many

25

yearsr and all of a sudden they want you to do a foot postr

Officer Polanco, you testified earlier that you considered
Do you remember that?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 140 of 225
D3KBFL04
Polanco - redirect
1

when you have people with less seniority than you on the

2

command, it's because something is not right.

3

Q.

4

considered to be a punishment.

5

A.

6

They were checkpoints solely to get numbers and following

7

absolutely no legal pattern.

8

Q.

9

5 76

the supervisors when you're doing it just on an assigned day,

You also testified earlier that doing checkpoints you

Why is that?

Because the checkpoints that we were doing were not legal.

You also testified earlier that you believe that driving

10

that that was a punishment.

Why do you consider that to be a

11

punishment?

12

A.

13

you're driving just because you're driving.

14

twice a month.

15

McHugh said that he will have you drive a supervisor, when he

16

does it under those terms,

17

Q.

18

Officer McHugh referred to any specific numbers on the

19

recording that we heard him speak on.

20

A.

Yeah.

21

Q.

And you said he did not, right?

22

A.

Directly,

23

Q.

Did you hear him use any language on that recording that

24

made you think that the numbers that you had heard from other

25

supervisors were mandatory?

Because if you are driving him-- there's occasion where
It happens once or

But there is occasion when you're driving him,

it's solely to get numbers.

We also heard defense counsel ask you whether or not

Do you recall that?

I don't think he mentioned 20/1 directly, no.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 141 of 225

577

Polanco - redirect

D3KBFL04

1

A.

Of course.

2

Q.

What language was that?

3

A.

When he said it was nonnegotiable.

4

Q.

You also testified,

5

waited until September 2009 to report your concerns to Internal

6

Affairs?

7

A.

Yes.

8

Q.

Can you tell us why you waited till September 2009 to

9

report your concerns?

I think on cross-examination, that you

10

A.

I fear retaliation, and up to this day I do.

11

Q.

Why do you fear retaliation?

12

A.

Today or then?

13

Q.

Then.

14

A.

Then because every time a cop step out of the blue wall, as

15

they call it, we are considered rats.

16

around the precinct.

17

don't want you to open your mouth.

18

Q.

19

times you spoke to lAB you did not identify your name, you

20

spoke to them anonymously.

21

A.

Yes.

22

Q.

At any point in time, did you speak to lAB and actually

23

give them your name?

24

A.

Yes.

25

Q.

Did you speak to them at any point after that?

That's what they call us

They want you to see and be quiet; they

You also testified on cross-examination that the first two

Do you recall that?

In December 2009.

SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30113 Page 142 of 225
Polanco - redirect
D3K8FL04

57 8

1

A.

I believe it was the day after the Channel 7 stuff aired.

2

All of a sudden IAB group one show up to my house, supposedly

3

they needed to help me.

4

Q.

You had a meeting with them then?

5

A.

Yeah.

6

Q.

Do you remember what you discussed with them in that

7

meeting?

8

A.

9

I told them that I was suspended based on an allegation that I

10

called racial slurs to our lieutenant, that I refused to leave

11

an ambulance.

12

incidentr and they listened for themselves that such accusation

13

never happen.

14

Q.

15

referring to?

16

A.

17

believe I got suspended for.

18

Q.

What was on the recording that you provided IAB?

19

A.

It was the actual incident I had, the incident when the

20

ambulance happened, the lieutenant did not know that I had a

21

recorder in my pocket.

22

happened without knowing it was recorded.

23

Q.

24

and your recollection indicate about that incident?

25

A.

It was the day after the news aired.

They came to my lawyer's office.

I discussed with them all the evidence that I had provided.

And I provided them with an audio of the

I gave that to Internal Affairs also.

When you say that accusation, which accusation are you

The retaliation for me reporting corruption.

That's what I

So he went and gave his version of what

In your recollection, what did that recording in your view

Basically -SOUTHERN DISTRICT REPORTERS, P.C.
(212)

805-0300

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 143 of 225
03K8FL04
Polanco - redirect

MS. COOKE:

1

Objection, your Honor.

5 79

To the extent that

2

he is going to be testifying about hearsay about a recording,

3

about statements from people.
MR. CHARNEY:

4

I am not asking what was said on the

5

recording.

6

depicted.

7

contradicted what the lieutenant told IAB, and I am trying to

8

get an understanding of why he believes that.
Doesn't that inevitably call for him to

say what the lieutenant said on the recording?

MR. CHARNEY:

11

12

He testified that what was on the recording

THE COURT:

9

10

I am asking for his recollection of what was

There were things that were said and

things that were done during that incident by various people.
THE COURT:

13

Things that were done he can describe.

14

It's not a statement.

15

Q.

16

was this that you provided IAB with this recording?

17

A.

18

it was right after the media.

19

been a long time.

20

It might have been before.

21

Q.

Is it fair to say it was in March of 2010?

22

A.

Around that time, yes.

23

Q.

After March of 2010, did IAB ever speak to you about again

24

about the allegations you had made?

25

A.

So you provided them with this recording you said -- when

With that particular recording, they came in-- I believe

They did.

It might have been before.

It's

I don't want to give you false information.

And what they did was they brought me to ask me

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 144 of 225
D3K8FL04
Polanco - redirect

1

about the summonses that I reported; they asked me for a copy

2

of them.

3

perjury.

4

Q.

5

cross-examination?

6

A.

Yes.

7

Q.

So,

8

have a copy of the audio that you say was taken during the

9

580

incident between you and Lieutenant Valenzano?

And that's when a year later IAB charged me with

These are the two summons you testified about on

to your knowledge, does the Internal Affairs Bureau

10

A.

Yes, they do.

11

Q.

Is it your testimony that there are statements made by

12

Lieutenant Valenzano on that recording?

13

A.

Yes.

14

MR. CHARNEY:

15

admission of a party opponent.

16

NYPD official making statements on a recording.

17

me that we should be allowed to ask what those statements are.

18

19
20

21

MS. COOKE:

Your Honor, we believe that that's an
He is a pretty high-ranking

So it seems to

That has to do with an incident involving

a partner in an ambulance.
THE COURT:
party opponent.

That's the point.

It's a statement of a

The question is, is that sufficient?

22

One minute.

23

801 (d) (2), "A statement is offered against a party and

24

was made by the party in an individual or representative

25

capacity."

So it doesn't have to be an issue raised in this
SOUTHERN DISTRICT REPORTERS, P.C.
1212) 805-0300

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D3K8FL04
Polanco - redirect

1

lawsuit.

2

but I think this has become relevant because we have heard a

3

lot of testimony about this incident.

4

pushed who first.

5

ambulance.

6

qualification under 801 (d) (2) {A), it has to be about an issue

7

in the suit, then I can turn to 403, and under 403 it is

8

581

relevant, or 401.

You brought out who

He stopped him from getting into the

I think it's relevant.

And since there is no

MS. COOKE:

I still object.

THE COURT:

9

10

Of course, all evidence has to be relevant under 403,

It can't be.

I do believe it is

hearsay.

ll

Wait.

It's not hearsay.

I

12

just read you the rule.

13

article.

14

that are not hearsay.

15

statement is offered against an opposing party and was made by

16

the party in an individual or representative capacity."

17

being questioned about incident.

18

Definitions that apply to this

Exclusions from hearsay, right?

80l(d), statements

{d) {2) {A), opposing party statement.

"A

He was

Then one just has to look at that point at 401.

It

"Evidence is relevant if it

19

says test for relevant evidence.

20

has a tendency to make a fact more or less probable than it

21

would be without the evidence."

22
23
24
25

MS. COOKE:

Respectfully,

I disagree that it's an

admission by a party.
THE COURT:

It doesn't say the word admission.

Do you

want to hear it for a third time or do you want to pull out

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 146 of 225
D3K8FL04

582

Polanco - redirect

1

your copy?

2

party, and it is,

3

representative capacity.

4

That's all.

5

I am allowing it.

and was made by the party in an individual or

And that's true.

Of course it's not hearsay.

Mr. Charney,

6

A statement is offered against opposing

801 {d) (2).

He is a lieutenant.

Bring it out because

let's go.

7

BY MR. CHARNEY:

8

Q.

9

contradicts his version of the events?

On that recording 1 what did Lieutenant Valenzano say that

MS. COOKE:

10

At this point is he testifying about a

11

document that is not in evidence or a recording that is not

12

before the Court?
THE COURT:

13

It's what the lieutenant said.

It happens

14

that it is also on a recording, but he probably remembers it

15

because he was there when he said it and he recorded it.

16

testifying to what the lieutenant said.

17

it happens to be on a recording, but he also knows what he

18

said.

19

THE WITNESS:

21

THE COURT:

22

THE WITNESS:

It's just helpful that

Do you remember what he said?

20

23

Absolutely.
What did he say?
When I was in the ambulance, the

lieutenant said, Polanco, I have the sector going.

24

THE COURT:

25

THE WITNESS:

Polanco what?
I have the sector going.

SOUTHERN DISTRICT REPORTERS, P.C.
{212) 805-0300

He is

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13
D3K8FL04
Polanco - redirect
l

THE COURT:

2

THE WITNESS:

3

THE COURT:

4

THE WITNESS:

5

understand.

583

I have the sector going?
Meaning the sector car.

Sector car?
I have the sector.

That's how we

He has the sector car going.

He was outside the ambulance.

6

Page 147 of 225

I was inside.

So as I

7

was com1ng out he said, Polanco,

I have the sector going.

8

said, What was that, lieutenant?

I got the sector going.

9

Lieutenant, is there any reason why I can't go with my partner?

10

He said, No, I told you I have the sector going.

11

summons.

13

pushing, there was no racial.

14

if I have a recorder in my pocket?

15

OK.

He wrote the

So I walk away.
At that point there was no interaction,

12

I

there was no

How am I going to scream racial
That was what happened.

Five minutes later is when I came back to him and I

16

ask him, you can do as you please, I am going with my partner.

17

I am outside the ambulance.

18

criminal charge.

19

push him.

20

him.

21

He gave me a reason for me to strike him.

22

Q.

23

concluded a couple of weeks ago?

24

A.

Yes.

25

Q.

I want to ask you about Defendants' Exhibit Xll.

This is when he assaulted me, a

He put his hands on me.

And that's why I

I didn't punch him as I should have.

I didn't kick

I push his hands off my chest because he assaulted me.

Was this recording played at the disciplinary hearing you

Absolutely.

SOUTHERN DISTRICT REPORTERS,
(2121 805-0300

P.C.

Is that

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13
Polanco - redirect
D3K8FL04

Page 148 of 225

584

1

still on the screen?

2

monthly report?

3

A.

Yes, I do.

4

Q.

I want to turn to page 18939, which was the August 2009 one

5

that we were looking at?

6

A.

Yes.

7

Q.

Do you see on the second page -THE COURT:

8

9

Q.

Do you have that in front of you Xll, the

What do you mean second page?

The page after that, where it says 18940.
THE COURT:

10

OK.

11

A.

Yes.

12

Q.

Can you read what it says under number 7, additional

13

supervisory comments?

14

A.

15

assignment in crime analysis."

16

Q.

Do you know what that means?

17

A.

I was doing crime analysis work and that's why my--

18

administrative work.

19

Q.

Was that as opposed to doing something else?

20

A.

Opposed to going on patrol.

21

Q.

How many days on patrol do you have for August according to

22

page 18939?

23

A.

I had seven.

24

Q.

In your experience as a patrol officer in the 41st

25

Precinct, if an officer is working full time as a patrol

11

The last page.

PO Polanco activity was low due to his administrative

I was working inside.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 149 of 225
D3K8FL04
Polanco - redirect

585

1

officer and not doing administrative duties, typically how many

2

days on patrol would he have?

3

A.

4

doubt the legibility of this paperwork, because nowhere here it

5

says I do crime analysis.

6

Q.

7

under number 3 on that page?

8

A.

Yes.

9

Q.

What is written under that?

10

A.

"PO Polanco activity was low due to his administrative

11

assignment in crime analysis."

20, 25.

I'm sorry, if I could explain.

What about again on page 18940, do you see what is written

THE COURT:

12

This is what I

That was number 7.

He said number 3.

13

A.

"PO Polanco is always courteous and respectful."

14

Q.

Earlier I think you were asked on cross-examination whether

15

or not you recorded how many radio runs you did in a month on

16

your monthly activity report, and I think you said yes.

17

My question is, when your supervisors would review

18

these monthly activity reports with you, did they ever discuss

19

with you your radio run activity for a month?

20

A.

21

22

23
24
25

No, absolutely not.
MS. COOKE:

Objection.

I don't believe the witness

ever testified he reviewed these reports with the supervisor.
MR. CHARNEY:

He did on direct, and I have the

transcript which I can read from.
THE COURT:

Did your supervisors review the monthly

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 150 of 225
D3K8FL04
Polanco - redirect
1

586

activity reports with you?

2

THE WITNESS:

3

THE COURT:

4

So when they did, did they ever discuss with your

5

Yes.
Go ahead.

radio run activity for a month?
THE WITNESS:

6

Yes.

7

Q.

They did discuss your radio run activity?

8

A.

Repeat the question.

9

Q.

When your supervisors would review your monthly activity

10

reports with you, when you were in the 41st Precinct, did they

11

ever discuss your radio run activity that was on those forms?

12

A.

No.

13

Q.

Did they ever discuss the number of domestic incidents you

14

responded to?

15

A.

No.

16

Q.

Did they ever discuss the number of crime victims you

17

assisted during a tour or a month?

18

A.

No.

19

Q.

Which, if any, categories of activity on the monthly

20

activity report did your supervisor discuss with you when he

21

would review this form with you?

22

A.

23

not include radio runs.

24

us to fill out.

25

250, and activity on arrests solely.

Specifically, the daily recap did not include domestic, did
The daily recap is what they ask for

It include activity on summonses, activity on

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 151 of 225
Polanco - redirect
D3K8FL04
That's daily.

587

1

Q.

2

report.

3

A.

4

They would be looking for summonses, arrests, 250.

5

Q.

6

the monthly activity reports, other than arrests, summonses and

7

stop and frisks, did they discuss any other activity categories

8

from those monthly reports?

9

A.

No.

10

Q.

On cross you were asked about the patrol guide section on

11

summonses.

12

A.

Yes.

13

Q.

I believe there is a provision in there that says you are

14

not to sign the summons saying you observed the incident if in

15

fact you didn't observe it?

16

A.

Yes.

17

Q.

But you also testified, right, that there were cases where

18

you did sign summonses for things you didn't observe?

19

A.

Yes.

20

Q.

Why did you do that?

21

A.

Because they trying to say that the reason captains don't

22

carry -- don't write them is because they don't carry them.

23

when McHugh called me to the scene, he should have asked me for

24

a blank summons for him to write it.

25

write the summons.

It's the same.

I am talking about the monthly activity

That's what they would be looking for.

Just to be clear, when your supervisors discussed with you

Do you remember that?

So

He shouldn't have told me

That's what he told me,

write the summons.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 152 of 225
D3K8FL04
Polanco - redirect

1

Q.

2

from actually signing a summons saying you observed something

3

if you didn't observe it, right?

4

A.

Yes.

5

Q.

Why did you do it if you knew that it was in fact against

6

patrol guide procedure?

7

A.

8

officer.

9

588

promise you I probably will drown.

You would agree that patrol guide procedure prohibits you

That's why I report it.

It's intimidation.

I had nowhere to go.

He is a captain.

I am a police

If I go against his words, I can

10

Q.

What do you mean by that?

11

A.

They are going to look for any reason to get me in trouble.

12

They are going to look for any reason to suspend me, like they

13

did, or for any reason to even suspend me with pay.

14

suspended me with pay for three years.
MR. CHARNEY:

15

16

Q.

They

One minute, your Honor.

A couple of more questions.
Turning to Exhibit Xll.

17

Do you see that again?

18

A.

Give me one second, please.

Yes.

It's in front of me.

19

Q.

If you turn to the second page, 18936.

20

A.

Yes.

21

Q.

If you go to the bottom of the page, can you tell me,

22

according to this document, how many patrol tours you did in

23

that month?

24

A.

According to them, eight.

25

Q.

How many radio runs did you conduct in that month?

Do you see that?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 153 of 225
Polanco - redirect
D3K8FL04
1

A.

589

54.

MR. CHARNEY:

2

One more second.

3

Q.

4

the second page.

5

A.

419.

6

Q.

The second page of the document, which is Bates stamp

7

18926.

8

A.

Is this February?

9

Q.

Yes.

10

A.

I have it in front of me.

11

Q.

According to this document, how many patrol tours did you

12

work that month?

13

A.

Four.

14

Q.

How many radio runs did you do?

15

A.

36.

16

Q.

How many stop and frisks did you conduct?

17

A.

Five.

Turning back to Plaintiffs' Exhibit 419.

If you look at

Again, it's 18926.

What month is that?

18

MR. CHARNEY:

One more minute, your Honor.

19

No further questions.

20

THE COURT:

21

Any recross?

22

MS. COOKE:

23

RECROSS-EXAMINATION

24

BY MS. COOKE:

25

Q.

Thank you, Mr. Charney.

Just one minute, your Honor.

Officer Polanco, you don•t think a checkpoint is punishment

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 154 of 225
Polanco - recross
D3K8FL04
1

if it's a legal checkpoint, correct?

2

A.

3

checkpoint, it's absolutely OK to do it.

4

Q.

5

it's not a punishment, correct?

6

A.

7

reason for the checkpoint?

8

are we accumulating numbers?

9

590

depends.

At least, yes.

It depends.

If there 1s a need for the

If it's conducted in the manner as you described as legal,

It could be a punishment.

But like I said, what is the

Are we addressing a situation or
Which one are we doing?

It

10

Q.

11

are issued at the checkpoint, the summonses are legal, correct?

12

A.

Like I said, it depends.

13

Q.

Based on my question,

14

just need

15

16

If the checkpoint is conducted legally and the summonses

THE COURT:

if you can't answer my question, you

He said it depends.

You could ask, it

depends on what?

17

MS. COOKE:

No further questions.

18

THE COURT:

I guess we are done with this witness?

19

OK.

20

Your next witness, Mr. Charney.

21

MS. BORCHETTA:

Thank you.

We are next going to have some

22

deposition designations, and as per the Court 1 s stated

23

preferences, we are going to have an attorney from the

24

plaintiffs reading the questions from the transcript and an

25

attorney from the defendants representing the witness.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13
D3K8FL04
"Marrero 11

1

Page 155 of 225

591

The first witness we will be doing in this matter is

2

Victor Marrero, and we have transcripts that are marked with

3

plaintiffs' designations in pink and defendants' designations

4

in yellow.

5

have objected to and one of defendants' attorneys will object

6

when that question is posed to address to that objection.

7

There are some designations that the defendants

MR. CHARNEY:

8

to Officer Polanco.

9

THE COURT:

For the context, this witness is related
He worked in the same precinct.

Why can't he be here live?

MS. BORCHETTA:

10

Pursuant to our request to the Court,

11

we are seeking to do some testimony through deposition

12

designations in the hopes of --

13

THE COURT:

14

MS. BORCHETTA:

15

THE COURT:

16

Yes.

Thank you.

Remind me of the color code, Ms.

Borchetta.
MS. COOKE:

17

18

Taking less time?

The pink is plaintiffs and the yellow is

defendants' designations.
THE COURT:

19

Ms. Martini.

20

"Q.

You said you joined the NYPD in 2007,

21

"A.

Yes.

22

"Q.

Why did you decide to join the New York Police Department?

23

"A.

I wanted to continue my professional law enforcement.

24

11

What was your first -- "

25

"Q.

Q.

is that right?

Could you please state your name for the record?

SOUTHERN DISTRICT REPORTERS,
[phone]

P.C.

Case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 156 of 225
11
D3K8FL04
Marrero"
l

MS. RICHARDON:

2

THE COURT:

3

MS. RICHARDON:

4

592

My real name or the witness's name?

This is Victor Marrero.
This is from Victor Marrero's

transcript.

MS. MARTINI:

5

Thank you.

6

"Q.

What was your first assignment when you joined the NYPD?

7

"A.

Besides the academy, impact.

8

"Q.

Were you assigned to a particular precinct?

9

"A.

Yes.

10

"Q.

Which one?

11

"A.

52.

12

"Q.

How long did you work in the 52?

13

11

14

"Q.

Then what was your next assignment after that?

15

"A.

I was transferred to the 41.

16

"Q.

Do you remember the month and the year of that transfer?

17

''A.

July 2008.

18

"Q.

July 2008?

19

"A.

Yes.

20

"Q.

Are you still assigned to the 41st Precinct?

21

"A.

Yes.

22

"Q.

What was your position when you were first assigned to the

23

41st Precinct?

24

"A.

Patrol.

25

"Q.

What is your position now?

A.

Six months.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

case 1:08-cv-01034-AT-HBP Document 284 Filed 05/30/13 Page 157 of 225
11

03KBFL04

593

Marrero 11

1

''A.

Still in patrol.

2

"Q.

So have you had the same job title and position since you

3

have been in the 41st Precinct?

4

"A.

5

11

6

time you have been in the 41st Precinct?

7

"A.

Yes.

8

11

So, Officer Marrero, I assume you know an officer by the

9

name of Adhyl Polanco?

Q.

Q.

Yes.

Have you been assigned to the same patrol squad the entire

10

"A.

Yes.

11

"Q.

Did he at one point work with you in the 41st Precinct?

12

"A.

Once.

13

"Q.

Was he in a patrol squad?

14

"A.

Not the same squad, but we rotate days, yes.

15

"Q.

When you say that you rotate days, what do you mean by

16

that?

17

"A.

He's in a different squad.

18

"Q.

But are you guys in the same platoon, I guess?

19

"A.

Yes.

20

"Q.

So you guys usually work the same tour?

21

"A.

Yes.

22

"Q.

So then would it be fair to say that you were usually at

23

the same roll calls as Officer Polanco?

24

"A.

Yes.

25

"Q.

Who was your squad supervisor in the fall of 2009?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]