Please note that the comments in red itallic are by knowledgeable observers.

DAY ONE

May 17th, 2001

Albany County Courthouse Albany, New York

Prosecutor: Peter Torncello

Defense Attorney: William Gray

Judge: Paul Czajka

COURT CLERK: County Court is now in session, Paul Czajka presiding.

CZAJKA: Good morning. Note your appearances, please?

TORNCELLO: For the People Peter Torncello.

GRAY: William Gray, appearing for the defendant, Jeffrey R. Nickel.

CZAJKA: Who is personally present? People ready?

TORNCELLO: Yes, we are.

GRAY: Yes, Your Honor, with one preliminary.

CZAJKA: Detective, would you get that door? Or investigator. Lieutenant.

GRAY: I'd ask the Court if I may be heard? Your Honor, if it please the Court, Jeffrey Nickel was arrested on the 7th of August, year 2000, and charged at that time with a felony in violation of Section 130.80 of the Penal Law, a felony of course of sexual conduct against a child. Thereafter, it was almost a year after he was arraigned on that charge, preliminary hearings were set on that charge, bail applications made on that charge, and then on the 18th of August, I believe, he was indicted. Now, that 18th of August indictment is the one before the Court now and contains 7 counts, I believe five of those counts, Your Honor, involve a complainant by the name of ["A"]. Your Honor, as I would read section 130.80 of the Penal Law, and more particularly, with respect to subdivision (b) of that statute, it says a person may not be subsequently prosecuted for any other sexual offense involving a same victim, unless the other charges or offense occurred outside the time period, charged under this section.

CZAJKA: You're reading from the course of conduct section?

GRAY: Yes.

CZAJKA: That statute.

GRAY: Yes, sir. I would therefore, respectfully suggest to this Court that the prosecution cannot proceed on any of the counts of this indictment, involving ["A"] against Mr. Nickel at this time because they are prohibited by law from doing so.

CZAJKA: Mr. Torncello, so you wish to respond?

TORNCELLO: I think that the indictment supersedes any charge that the police may have filed in the local court. He's not been or being charged with that in this indictment so --

CZAJKA: I don't know that that -- strike that. That section of that statute is not applicable to the circumstances; your motion is denied.

GRAY: Respectfully, I'll take an exception, Your Honor.

CZAJKA: Absolutely.

GRAY: One other preliminary statement, Your Honor, before commencing. If I may, I noticed when you deal with the Penal Law, with the section sex offenses, when you take this 130.80, which is a class D felony, and involves repeated acts of sexual contact, and then you look at Section 130.65, sexual abuse and you find that it apparently requires only one act, and also --

CZAJKA: Well, he's not indicted at least in this indictment for a course of sexual conduct.

GRAY: That's correct, Your Honor, I guess the point I was trying to make –

CZAJKA: There's another indictment charging him with that?

GRAY: No, sir. There isn't. The Legislature, Your Honor, has I think there might be an equal protection issue in that. The charge with which the defendant is standing trial today IS 130.65, requires apparently a single sexual contact. In the same statute this 130.80, which is (d) required several so that the Legislature in its wisdom or whatever, has equated the same penalty, for a singular act, as opposed to multiple, so as I think it might be an equal protection issue that I would like to raise at this time in that regard. That was it.

TORNCELLO: Nothing, Your Honor.

CZAJKA: That motion too is denied.

GRAY: Respectfully, I'll take exception.

CZAJKA: Is defendant otherwise ready?

GRAY: Yes, sir. Your Honor, except that I would like to move that any and all witnesses that are going to be called in the case I would like to respectfully ask that they remain outside during the testimony of any of the other witnesses. And--

CZAJKA: So ordered.

GRAY: And I do have the mother of the defendant is here, with family members, and she might be a witness so with the Court's permission, I'll ask that she step out. I don't see any other witnesses on behalf of the defense here, Your Honor.

CZAJKA: You're both responsible for your own witnesses; make sure they're out.

TORNCELLO: Your Honor, I don’t think that notice is applicable in a case involving an indictment that alleges a sexual crime, that's incumbent upon my making a -- 60.42 of the Rules of Evidence CPL, talks about the admissibility of the victim's prior sexual conduct and we'd make the appropriate motion that this be included.

CZAJKA: I don't know that that's necessary, but I can't imagine that that would be an issue for Mr. Gray, but obviously I'll rule on the motions and objections as they're made. On my own motion, I'm directing the People before they file this indictment, in the Clerk's office, to file the indictment without an indication of the identity of the alleged victim.

TORNCELLO: Okay.

CZAJKA: Come up for a minute, please.

(Bench conference)

GRAY: Your Honor, if I can address one more thing? Forgive me.

CZAJKA: Certainly.

GRAY: Count two of the indictment, Your Honor, which alleges a class C felony, of aggravated sexual abuse, second degree, I see a violation of Section 130.61, and then no further subdivisions. I have nothing but a blank, I would like to move --

CZAJKA: 130.67 subdivision (1).

GRAY: Yes, brackets and a blank without any further identification beyond that.

CZAJKA: Those second set of brackets shouldn't be there, should they? Isn't it simply --

TORNCELLO: No, it should be sub (C).

CZAJKA: C?

TORNCELLO: That's correct.

CZAJKA: Can I see someone' s Penal Law? When the other person is less than eleven years old.

TORNCELLO: That's correct.

CZAJKA: You're moving to dismiss because, Mr. Gray, the (C) is left out?

GRAY: That's correct, Your Honor, we would.

CZAJKA: What do you say Mr. Torncello?

TORNCELLO: I think that the body of the count is appropriate. I think that for instance right after the to wit clause adequately explains the charges. I would move to amend that typographical error. I think that the gist or the body of the indictment is appropriate. It does discuss the appropriate charge.

CZAJKA: Mr. Gray do you wish to respond?

GRAY: Yes, Your Honor. As we stand here now we have no idea what the Grand Jury intended when they returned that second count of the indictment. There's no way for me to second guess what they had determined, and so, we would urge that you dismiss that count.

CZAJKA: Judge Breslin reviewed the transcript of the Grand Jury, dismissed or denied a motion to dismiss all of the counts, including Count two, and at this time, I grant the People's motion to amend to include the letter (C), and deny defendant's motion to dismiss.

GRAY: Respectfully take exception.

CZAJKA: Yes. Anything else Mr. Gray?

GRAY: No, sir, Your Honor, thank you.

CZAJKA: Do you wish to make an opening statement Mr. Torncello?

TORNCELLO: Yes, Your Honor. May I?

CZAJKA: Go ahead.

TORNCELLO: Judge where would you like me?

CZAJKA: Actually, maybe during the break we can get someone to move the tables up. I'm having trouble hearing both attorneys.

GRAY: Maybe we can move them, Your Honor. It's difficult to hear in here. Go ahead Mr. Torncello.

TORNCELLO: Thank you, Your Honor. May it please the Court.

CZAJKA: Do you want your book back?

TORNCELLO: Yes. Judge, by his own admission, and in his own words, Jeffrey Nickel is a boy lover. And over the next few hours, over the next day or so, we are going to learn to what extent a boy lover goes to satisfy – [From the very first sentence of his opening statement, the prosecutor is attempting to win a conviction based not on the facts of what Nickel allegedly did, but on who he supposedly is. This is pure prejudice, and an attempt to distract the judge from the actual facts of this case.]

GRAY: I hate to interrupt you, but I have to object, your Honor to that term right from the outset here, as having, no legal significance.

CZAJKA: It implies a course of conduct outside of that charge, so, refrain from use of that term. [Although this is a good ruling on Czajka’s part, he soon reneges on it.]

TORNCELLO: Over the course of the next few hours, we're going to learn to what extent Jeffrey Nickel went to satisfy --

CZAJKA: I forgot to tell you about something. Come up a minute please.

(Side bar)

CZAJKA: So we will take witnesses out of order if need be; there's no jury.

TORNCELLO: Sure.

CZAJKA: Excuse the interruption, why don't you go ahead Mr. Torncello.

TORNCELLO: Over the next few hours, over the next day, Your Honor, we will learn to what extent Jeff Nickel went to, to satisfy and gratify his sexual desire for young boys. [Torncello seems to already know this will be a very short trial. How? He had earlier told Gray that he expected it to take a week or so just to present the prosecution’s case. What changed?] Judge, on August 3, 2000, Claudette Scostak was working at the Albany County jail in her capacity as a receptionist and a clerk and as part of her responsibilities and her duties, are to open mail and check for contraband in letters that come in to the inmates at the Albany County Jail. On August 3, 2000 she opened four letters addressed to an inmate at the jail whose name was Matthew Peters and those letters were from, Jeffrey Nickel. They contained a return address that indicated J. Nickel, 36 Lansing Drive, Delmar, New York, 12054. They contained a signature of Jeffrey Nickel at the conclusion of it and they contained information, that is particular to Jeffrey Nickel and to only Jeff Nickel, about the children involved, who are the subject of this indictment, and about his love for the young boys, his romantic involvement with young boys. Judge, it also contained photographs, a number of photographs, of young boys, that Jeff Nickel sent to Matthew Peters in the Albany County Correctional Facility. A light bulb went off in Claudette Scostak's head and said something is not right here. Something's fishy. She called her superior and told him that the envelopes may contain contraband [Baloney. The letter did not contain any “contraband” and she knew it, as does Torncello now.] and through the proper channels, the Albany County Sheriff's Department contacted investigator Ronald Bates. Ronald Bates arrived, he examined the four letters, he noticed that the contents of the letters were sexual in nature, that they identified at least three individuals, a young boy by the name of [alleged victim "B"], a young boy by the name of [alleged victim "C"] and a young boy by the name of ["A”]. [False - - the letter did not give any last names, which Torncello in fact uses here.] He also recognized that Matthew Peters was an inmate in the Albany County Correctional Facility who had been convicted of sodomy in the second degree, for sexually abusing young boys. Judge, Investigator Bates examined the letters, he examined the photographs, he noticed the writing on the back of the photographs which were sexual in nature, [This is false. There was no writing “of a sexual nature” on the back of any of the photographs. In pre-trial hearings, only one single word was alleged to be so. This word, written on the back of a single photograph, was “wootie”. Investigator Bates, apparently a rather poor speller with something of a dirty mind, interpreted this to mean “woody”; i.e., a slang term for an erection.] and he began his investigation. What he did was he contacted first of all of the three young boys and he interviewed [“A”], the Sheriff's Department interviewed [alleged victim "C"]. and they interviewed [alleged victim "B"] and they found out that they all had contact with Jeffrey Nickel. Jeff Nickel at one time or another was a teacher's aide at [ ], he was also a teacher's aide at [ ]. Also a "mentor", for lack of a better term, or a big brother, for a boy named [“A"], at [ ], first in [ ] and then ultimately at [ ]. He found out that [ “A” ] had developed a relationship with this defendant, Jeff Nickel. Judge, all three children at that time of their contact with Jeff Nickel, were under the age of eleven. The contents of those letters, and the interviews with the young boys lead the Albany County Sheriff Department to seek an interview with Jeff Nickel. In August, about three or four days later, they interviewed Jeff Nickel. Judge, they invited him to come down into this building at their office, they sat down, he sat down with an inspector named Mark DeFrancesco and over the course of several hours gave a thoughtful, eloquent, six-page statement, outlining his contact with the three young boys in question, and his life beginning at age twelve through the present as a boy lover. [Torncello was already instructed by the judge not to use this term; but with Czajka’s aquiescence, the prosecution will continue to use it over and over again.] The term boy lover is a term, Judge, that Jeffrey Nickel uses, not a term that the People use.

CZAJKA: Okay. [Now the judge reverses himself and okays the use of this word. This is an early sign that he is quite open to considering this pure propensity ‘evidence,’ which is supposed to be absolutely inadmissible in our legal system.]

TORNCELLO: He uses and he describes and he discusses and he defines what a boy lover is, in that letter. [Again and again, Torncello emphasizes Nickel’s alleged sexual orientation to the exclusion of the actual facts of the case, which he seems to already know are weak at best.] Judge, at the conclusion of that statement, he was asked to sign a consent to search for his home at 36 Lansing Drive, Delmar, New York, which he did, voluntarily. [This is to say the least, misleading. Nickel signed the consent to search only after being shown a search warrant allowing the search to be conducted anyway, an action which itself, by the way, nullifies any voluntary consent. Moreover, he signed it only after being told that otherwise the house would be really torn apart etc. Otherwise, which might cause his elderly mother to have a stroke; something which she had already suffered previously.] He also signed his statement after being duly warned of all his Miranda warnings and voluntarily signed that statement. [At NO time were the Miranda warnings ever read to Nickel. He only read them himself at the top of the statement form, after the latter had already been ‘taken’ from him and printed out.] At the conclusion of the statement, together with the Albany County Sheriff's Department, Mr. Nickel went to his home at 36 Lansing Drive in Delmar and a search was conducted. Judge, what was found in that search, was like the Fort Knox of deviate sexual material, judge. I mean there are pages and pages and pages of erotica, there were hundreds and hundreds and stacks and stacks of photographs of young boys. [This is purely prejudicial ‘evidence,’ having no bearing on any of the actual crimes charged in the indictment. None of the material that Torncello refers to here is illegal, as he well knows.] They are …

GRAY: Objection, Your Honor, that's not part --

CZAJKA: You're not introducing that, right? You're not -- you're just talking about that which you seek to introduce?

TORNCELLO: Photographs and photocopies which are the subject of this indictment.

CZAJKA: We talked about it, you said there were some six or eight cartons. You're not bringing them all in?

TORNCELLO: I was going to or I intended to.

CZAJKA: How many weeks are we going to be here? There's -- he's only charged with six or seven counts.

TORNCELLO: That's right, that's right.

CZAJKA: So just refer to that which you hope to introduce.

TORNCELLO: Okay. Well, there are photographs which were taken on a 35 millimeter camera that depict young boys. [All of these photos depict people who are fully clothed, as he well knows.] Also magazines, that depict erotica and young boys. There's cartons and – [Again, this is misleading in the extreme: none of this is illegal, as he knows.]

CZAJKA: Give me -- excuse me for a minute. Count, count three, refers to one discrete photograph, correct?

TORNCELLO: That's correct.

CZAJKA: All right. It's not all of these others?

TORNCELLO: Correct.

CZAJKA: Go ahead.

TORNCELLO: I lost my train of thought. There are stacks of material which are -- which are described and annotated as research material, judge, that discuss all sorts of sexual conduct and contact between adult males, sexual contact between adult males and young boys. [So what? Once again, none of this is illegal. There is a saying among lawyers: When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on your side, pound the table. And that’s what he’s doing here. In American law, there is a requirement to weigh the potential prejudicial impact of a given piece of evidence against its probative value; i.e. its tendency to prove a particular crime charged. And when the prejudicial impact of a given piece of evidence outweighs its probative value, it cannot be introduced. What we have here is pure prejudice, with no probative value whatsoever.] That is among many, many other things that were recovered as evidence. The Albany County Sheriff's department also recovered a computer, in fact, two computers were recovered, a lap top computer and a regular personal computer. Those computers were turned over to the Colonie Town Police, their computer force department, and the contents of the computer, and the discs and the zip drives, were examined. We’re going to hear from Officer or- Investigator Steve Tanski from the Colonie Police who examined the contents of the computer, and the contents of the discs. One of the things that he found in the discs is the subject of count three. There’s also further proof, of counts one and two, Your Honor, it's a photograph of this defendant engaged in an act of oral sodomy with ["A"], a young boy who was under eleven at that time. [It is difficult to see how Torncello could actually believe this to be true. The eye color of the boy in the photo is brown; [“A"]’s eye color is blue. Moreover, the room depicted in the photo is obviously not Nickel’s bedroom - - where [“A”] alleged the photo was taken - - as is demonstrated by photos the police took themselves.] Judge, the indictment alleges acts that occurred for the most part, between June and July, of 2000. In addition, the indictment contains an allegation of sexual conduct from the summer before, of 1999 with a young boy named• [alleged victim "C"], that talks about sexual touching, and sexual conduct, for the defendant's sexual gratification. You're going to hear from the three young boys as well Judge from ["A"], who is going to describe the touching that took place and the time that he was touched over the summer of 2000, by Jeffrey Nickel. He's going to describe the act of oral sodomy, that he engaged in with this defendant, Jeff Nickel and himself. You're also going to hear from [alleged victim "B"] to describe sexual touching and [alleged victim "C”] to talk about his sexual touching. Judge at the conclusion of the proof, we believe that it will show overwhelmingly that the defendant is guilty beyond a reasonable doubt, of each and every count of this indictment. Thank you very much.

GRAY: If it please the Court, Mr. Torncello. Your Honor, if I may be permitted a few moments to open and respectfully point out to the Court, that obviously the Court is aware that anything that I say now is not evidence in the case. My opening cannot be regarded as evidence, as cannot that of my learned opponent in this case. If I can be permitted, I would respectfully point out to the Court, what I believe the proof will show in the case when the trial commences with the calling of witnesses. I believe the proof will be that this case originated and had its birth on August the 3rd at about 1:30 in the afternoon on that date, out at the Albany County Jail and there was a lady by the name of Claudette Scostak who I believe will testify that she is employed as a switchboard operator, and as a receptionist in addition to those primary duties, she does open mail that's coming into the jail. And that on that date about that time, she would say she opened letters that contained photographs. The letters were addressed to an inmate in the jail by the name of Peters. I think the proof will be, Your Honor, that in all of those photographs, that depicted boys, they were all clothed, there were no what might be called obvious scenes, photographs as we all know of them, disrobed or anything like that. There was nothing of any sexual nature written on the back of any photographs. I believe on one the word wide [wookie?] or something like that, whatever that means, was a character in a movie I think one of the kids’ movies, but it was nothing of a sexual nature reported there. There was no contraband obtained. I think she will testify that she turned the photographs over to see if there might be anything attached to them and she found no contraband. There was absolutely nothing illegal about what was before her. She then took those photographs, and letters, and went to her superior, with instructions as to what to do. I think the proof will probably be that, an investigator by the name of DeFrancesco was called, he talked to this Miss Scostak and obtained a statement from her which sets forth exactly what I just said, and armed with that statement, he went before a judge here in Albany, and secured a search warrant. A search warrant was secured and after the search had been conducted, and there was no -- no showing to that Court, that anything illegal had taken place or should not even been an issuing of a search warrant. Your Honor, as a result of Mr. DeFrancesco's investigation, I believe the proof will show that he approached one or more of the boys mentioned in this indictment, and unfortunately, the interviews that took place of these three boys that are mentioned in this indictment were respectfully conducted very poorly. The young children were subjected to all sorts of intimidation and things of that nature, were not interviewed with any social worker present, or any medical people there, or anyone that had really an understanding about children, and what they're prone to say, and their ability to deal with their imagination, but rather, interviewed by this investigator from the Sheriff’s Department and maybe one of the other Sheriff's Department employees. Judge, the proof is going to show we don It know what questions they asked the boys. We don't know how they even began it. There will be sought to be introduced into the record of this Court of various notations that describe answers, but unfortunately we are never given the questions that were asked of the boys before these alleged answers were given. And this was done in each and every circumstance with the three here involved. As a matter of fact, at one point, this photograph which is the issue, I believe, of the third count of this indictment, was shown by the officer to this boy and presumably, said is that he, is that the defendant in it? And that is the kind of interview, Your Honor, that was run. And we can -- I think the proof will be it's highly suspect. There will be proof, Your Honor, that some computers were taken from the residence as a result of another search warrant. And that on one of those computers, they pulled this photograph that we're talking about which, Your Honor, the proof is going to show, show it depicts a sexual act. It is a sexual act that is not with my client, it is not his photograph, in that picture, and we hope to bring in expert testimony, Your Honor, with regard to show it is not and cannot be he. Your Honor, I respectfully think that at the end of the case when all the actual witnesses have testified, and the Court is able to examine and look into just how the birth of this case occurred, and just how this whole matter was conducted, that the Court will find that certainly one, if not or all of these counts should be dismissed. Thank you, Your Honor.

CZAJKA: Go ahead.

TORNCELLO: The People call Claudette Scostak.

TORNCELLO: Good morning. Can you state your name for the record, please?

SCOSTAK: Good morning. My name is Claudette Scostak.

TORNCELLO: Okay. And what is your occupation?

SCOSTAK: I am a switchboard operator at the Albany County Correctional Facility.

TORNCELLO: Okay. And Mrs. Scostak, how long have you worked with the Albany Correctional Facility?

SCOSTAK: Since August 7, 1998.

TORNCELLO: Okay. Can you give us an idea of some of your duties and responsibilities, at the correctional facility?

SCOSTAK: Uh-huh. I am also a mail clerk at the facility; I'm responsible for tearing the mail and searching inmate mail.

TORNCELLO: Okay. That’s the incoming mail to the inmates?

SCOSTAK: Yes.

TORNCELLO: All right. And do you have any training in that or?

SCOSTAK: Yes.

TORNCELLO: Did someone teach you how to do that?

SCOSTAK: Yes.

TORNCELLO: Who? Who taught you how to do that? Do you recall?

SCOSTAK: A person by the name of Margaret, I don't recall her last name. She is no longer employed there. [Crucial]

TORNCELLO: Why do you look at incoming mail?

SCOSTAK: For contraband.

TORNCELLO: When you say contraband, what do you mean by contraband?

CZAJKA: I think I know what contraband is. Go ahead. [Czajka would not permit the witness to explain what contraband is in this context, which was crucial to showing why she in fact did not have probable cause to read it, start a whole investigation based upon it, etc. Czajka is therefore, aiding the prosecution, whether consciously or not. Items that are not allowed to be mailed into the jail include nude photos, drugs, weapons, etc. None of these were present in the letter.]

TORNCELLO: Okay. Let me direct your attention now to August 3, 2000, were you working that day?

SCOSTAK: Yes, I was.

TORNCELLO: Did you open mail that day?

SCOSTAK: Yes, I did.

TORNCELLO: Okay. Did you have a chance to open mail for an inmate by the name of Matthew Peters?

SCOSTAK: Yes, I did.

(whereupon, People's Exhibits "1" - "4" were marked for identification.)

TORNCELLO: Okay. I want to show you something that has been marked as People's Exhibits "1" through "4", marked for identification. Okay. I’ll hand you what's been marked as People's one for identification; can you tell us what that is?

CZAJKA: Show her all four.

TORNCELLO: Here's one through four, and I'll ask you to look inside of them?

SCOSTAK: Okay.

TORNCELLO: Can you tell me what they are?

CZAJKA: Keep them separate.

SCOSTAK: These are incoming mail, envelopes addressed to Matthew Peters, at the Albany County Correctional Facility.

TORNCELLO: Okay. Do they look familiar to you?

SCOSTAK: Yes.

TORNCELLO: Have you seen them before?

SCOSTAK: Yes.

TORNCELLO: Right. Did you see them on August 3, 2000?

SCOSTAK: Uh-huh.

TORNCELLO: Are those --

CZAJKA: Say yes or no in words.

SCOSTAK: Yes, I have, seen these before.

TORNCELLO: And are those the letters that you opened?

SCOSTAK: Yes, they are.

TORNCELLO: Okay. Do they appear to be in the same condition or a similar condition, as to when you opened them on August 3, 2000?

SCOSTAK: Yes, they do.

GRAY: Object, unless there's a foundation that can be laid that they have been continually in her possession, for the purpose of answering that.

CZAJKA: Overruled. Give the witness a minute to look through all four. Those are the originals, though, they aren't photocopies of anything?

SCOSTAK: No, they are not.

TORNCELLO: At this time I would offer People's Exhibits one through four and show them to Mr. Gray.

CZAJKA: While Mr. Gray is looking at those, do you have other exhibits to mark Mr. Torncello?

TORNCELLO: 'Well yes, one.

('Whereupon, People's Exhibit "5" was marked for identification, photograph.)

GRAY: Your Honor, if it please the Court, I am going to object to the introduction of these letters. On the basis that there has been no proper foundation laid for the receipt of these letters in this case, involving this defendant at this time. Foundation to the extent --

CZAJKA: That it connects up with the defendant you mean?

GRAY: That's correct.

CZAJKA: Okay. Sustained.

TORNCELLO: Okay. Now, when you opened, when you opened the four letters, right, was there anything of note or anything remarkable, that you noticed?

GRAY: I am going to object.

CZAJKA: Sustained, they speak for themselves and they're not in evidence. Sustained.

TORNCELLO: What did you do after you opened the mail?

GRAY: Objection, irrelevant, and immaterial because we're not speaking about something -- it's not in evidence and it's conduct performed which has nothing to do with the evidence in this case.

CZAJKA: Overruled.

TORNCELLO: What did you do?

SCOSTAK: After those envelopes were opened I then had to search them, as I do, all of the other incoming inmate mail, and as I was going through them, I felt very uncomfortable.

CZAJKA: You've answered the question. Go ahead Mr. Torncello.

TORNCELLO: Yes. Now, after you opened them, did you look at them?

SCOSTAK: Yes.

TORNCELLO: Okay. After you looked at them what did you do?

SCOSTAK: I just -- went through the envelopes searching them, and as I stated earlier I felt uncomfortable. [Uncomfortability is not probable cause.]

GRAY: Objection as to the sense.

CZAJKA: It's not responsive.

TORNCELLO: Did you notify anybody?

SCOSTAK: Yes, I contacted the Lieutenant and the Captain at the facility. [Even assuming there was probable cause to read the letter, under the law, the only person authorized to do so would be the superintendent.]

TORNCELLO: Okay. And you told them that -- did you show them these letters?

SCOSTAK: Yes, I did.

TORNCELLO: Okay. And at some point later on, did you meet Investigator Ron Bates?

SCOSTAK: Yes, I did.

TORNCELLO: And did you give a statement to Ron Bates?

CZAJKA: Mr. Torncello, I don't mean to try your case for you, but what does any of this have to do with anything?

TORNCELLO: Did you meet?

CZAJKA: Why are you even calling this witness?

TORNCELLO: I want her to put this letter in; I also want her to tell the story how the case started, judge.

CZAJKA: But there's not, those letters are not the subject of any count of the indictment.

TORNCELLO: Well judge, they're proof of crimes that are committed that are subject of the indictment. The contents of the letter -- I have a motion to make as soon as this witness leaves the stand on why they should be allowed into evidence but that's --

CZAJKA: Okay. Anyway, did you turn them over to a superior?

SCOSTAK: Yes, I had.

TORNCELLO: Thank you. No further questions, Your Honor.

CZAJKA: Mr. Gray?

GRAY: I have just a few questions. Good morning, ma'am.

SCOSTAK: Good morning.

GRAY: You described some pictures that were contained in these letters?

SCOSTAK: That's correct.

GRAY: And all of those pictures, is it not a fact that everyone was fully clothed?

SCOSTAK: That's correct.

GRAY: There was no depiction of any sexual content in the pictures?

SCOSTAK: No, there was not.

GRAY: I have no further questions.

TORNCEILLO: Mr. Gray just asked you about the photographs contained in the letter, correct?

SCOSTAK: Yes, he did.

TORNCELLO: There was something about the photographs contained in the letter, that is remarkable to you, so that you called your superior?

GRAY: Objection as to --

CZAJKA: Sustained.

TORNCELLO: Did you notice anything about the pictures that Mr. Gray was talking about?

SCOSTAK: Yes ~ what I found unusual, was that all of the photos

GRAY: Objection. [Gray should not have objected here, because the answer to that question would have revealed that the supposed “slapping” incident (see below, and [“A”]) was the source of his knowledge as to this boy’s last - - and therefore full- - name. ([“A”] was located and interviewed prior to Nickel being interviewed.)]

CZAJKA: Sustained.

TORNCELLO: Not unusual, what did you see, in the pictures.

SCOSTAK: I saw pictures of little boys; they were all of young boys.

TORNCELLO: Okay. Mr. Gray also asked you about anything sexual in nature, in the pictures, on the back of the pictures, was there anything of note that was sexual?

SCOSTAK: In my opinion, yes.

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: Well, without your opinion, what do you think?

SCOSTAK: Yes.

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: You know what judge, no further questions.

CZAJKA: Okay. Step down.

(Witness excused.)

TORNCEUO: Can I make my motion now. I have something that normally if there was a jury I would have done in limine, but I want to talk about the admissibility and the authenticity.

CZAJKA: Within the document is there anything, is there anything within the document that deals with Mr. Gray's objection?

TORNCELLO: Yes.

CZAJKA: Then I'll reserve and I'll look at them later. Call another witness.

TORNCELLO: Okay. That's my point, thank you very much.

CZAJKA: I'll give you both an opportunity to argue in support of your respective positions after I look at the evidence.

TORNCELLO: Just so I am sure, I want -- I was going to put them in through Ron Bates. Do you want me to hold off on that until we have a break and argue about it?

CZAJKA: Do whatever you want.

TORNCELLO: Okay.

CZAJKA: It's your case.

GRAY: Could I respectfully request that that witness be available in case for further questions of her.

CZAJKA: That witness that was just here?

TORNCELLO: Do you want her to stay around for the day?

CZAJKA: She's at the jail.

TORNCELLO: Yes.

CZAJKA: Okay.

TORNCELLO: Good morning. Can you state your name for the Court, please?

BATES: Ronald J. Bates.

TORNCELLO: What's your occupation?

BATES: Law enforcement.

TORNCELLO: Who do you work for?

BATES: Albany County Sheriff's Department.

TORNCELLO: How long have you worked for the Albany County Sheriff's Department?

BATES: 11 years.

TORNCELLO: Can you give us an idea of some of your duties and responsibilities, as an investigator with the Sheriff's Department?

BATES: I am currently assigned to the Criminal Investigations Unit as an investigator which we oversee and handle most felony cases that we respond to.

TORNCELLO: Okay. And I take it you have some training in that field?

BATES: Yes.

TORNCELLO: Now, I want to bring your attention back to August 3, 2000, did you become involved in an investigation, of Jeffrey Nickel?

BATES: Yes.

TORNCELLO: How did you become involved in that investigation?

BATES: I was notified through the chain of command, that there was approximately four letters received.

GRAY: I'm going to object to this, there has been no identification.

CZAJKA: What was the question? You were assigned?

BATES: Yes.

TORNCELLO: Okay. What did you do, when you became involved in the investigation?

BATES: I conducted an interview, of Claudette Scostak at the Albany County Correctional Facility.

TORNCELLO: Did she turn over to you any items of evidence?

BATES: Not at that time, no.

TORNCELLO: Okay. Did you see any items of evidence at that time?

BATES: Yes.

TORNCELLO: What did you see?

BATES: I saw four letters.

TORNCELLO: Okay. Did you look in the envelopes? Did you see them?

BATES: No.

TORNCELLO: Okay. Did you look at any of the photographs?

BATES: No.

TORNCELLO: Okay. At any time, did you look at envelopes or see any photographs?

BATES: Yes.

TORNCELLO: All right. Now, when you read those, did you identify some children, that were mentioned in the letters?

BATES: Yes.

GRAY: Objection.

CZAJKA: I don't know what you mean by that. I don't know -- did you identify?

TORNCELLO: Did you learn the names or identity of the people that were talked about or written about in the letters?

GRAY: Your Honor, he just said that he didn't read the letters at that time.

CZAJKA: Sustained .

TORNCELLO: I am asking him, I don't know.

CZAJKA: The objection is sustained. Go ahead.

TORNCELLO: Okay. At some point in time did you identify, or did you locate, some young boys?

BATES: Yes.

TORNCELLO: How did you do that?

BATES: Through an investigation based upon those letters.

GRAY: Objection.

CZAJKA: Sustained.

BATES: Names in the letters.

CZAJKA: Sustained.

TORNCELLO: You located some young boys, right?

BATES: Yes.

TORNCELLO: Did you interview the young boys?

BATES: Yes.

TORNCELLO: Who did you interview?

BATES: The first boy I interviewed was a boy by the name of ["A"].

TORNCELLO: At [ ].

TORNCELLO: What 's [ ] ?

BATES: It's a group home for children, I believe.

TORNCELLO: And do you recall the day you met ["A"]?

BATES: August 7th.

TORNCELLO: How did you learn, ["A"]'s name?

GRAY: Objection.

CZAJKA: Sustained, hearsay. Objection sustained.

TORNCELLO: Without regard to how, you learned ["A"]'s name, right?

BATES: Yes.

TORNCELLO: You found out where he lived?

BATES: Yes.

TORNCELLO: And you went to interview him?

BATES: Yes.

TORNCELLO: Okay. Did you get some information from [“A”]?

BATES: Yes.

TORNCELLO: Now, what information did you get from ["A"]?

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLLO: Was there any other individuals, any other boys, that you interviewed?

BATES: I was present during one other interview of a boy.

TORNCELLO: Who was that?

BATES: [Alleged victim "C".]

TORNCELLO: [Alleged victim "C"]? And where and when did you meet [alleged victim "C"]?

BATES: It was after August 7th; I don't recall the contact date. I t was at the patrol station in Voorheesville.

TORNCELLO: You were present for that interview?

BATES: Yes, I was present.

TORNCELLO: Do you know how old [alleged victim "C"] is?

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: Do you know how old ["A"] is?

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: Do you know how old Jeffrey Nickel is?

BATES: Not exactly.

GRAY: Objection.

TORNCELLO: Okay. At some point in time—I’ve got to show he’s over eighteen judge.

CZAJKA: All right. Is there stipulation to that effect?

GRAY: No, sir.

CZAJKA: In any event, your witness already answered the question. He didn't know anyway. Go ahead.

TORNCELLO: All right. Did you ever know how old Mr. Nickel was?

BATES: Yes.

TORNCELLO: Will looking at some notes refresh your memory about the age of Jeff Nickel?

BATES: An arrest report would.

TORNCELLO: Okay.

(Whereupon, People's Exhibit "6" was marked for identification, arrest report)

TORNCELLO: Okay. I will hand you what's been marked as People's "6" for identification. Does looking at that document help refresh your memory, about the age of Jeff Nickel?

BATES: Yes.

TORNCELLO: Okay. How old is Jeff Nickel?

BATES: Thirty-two.

TORNCELLO: Now?

CZAJKA: What was the source of your information, Investigator?

BATES: The arrest report.

CZAJKA: Well, the arrest report helped you remember what it is, what's the source of your information as to how old defendant is?

BATES: Based upon independent information.

CZAJKA: Who told you?

BATES: I don't recall.

TORNCELLO: Did the defendant tell you?

GRAY: Move to strike, leading.

CZAJKA: It is stricken.

TORNCELLO: You don't remember?

BATES: No.

TORNCELLO: Okay. Now, did you ever meet, excuse me, when did you meet Jeff Nickel?

BATES: August 7th.

TORNCELLO: All right. 2000?

BATES: Yes.

TORNCELLO: And where did you first see Jeffrey Nickel?

BATES: At his residence in the Town of Bethlehem.

TORNCELLO: What's the address, do you recall?

BATES: I believe 26 Lansing Drive. [No - - it’s actually 36.]

TORNCELLO: Okay. And that's in the Town of Bethlehem, correct?

BATES: Yes.

TORNCELLO: Is that also Delmar?

BATES: Yes.

TORNCELLO: That's in Albany County, New York State?

BATES: Yes.

TORNCELLO: Now, about when did you see him? What time of day?

BATES: Late afternoon. [This is misleading, but Bates leaves it vague. He and his partner actually arrived at Nickel’s house just after 2:00 p.m. He and the lead investigator in this case, Mark DeFrancesco, will claim this all began about two hours later. The reason they do this is that in order to make Nickel’s alleged statement appear more ‘voluntary’, a total interrogation period of four hours (4:30-8:30pm) looks a lot more palatable than one lasting a full six hours (2:30pm-8:30pm).]

TORNCELLO: And what was the purpose of going there to see him?

BATES: I wanted to speak with him about the investigation, of possible abuse of children.

TORNCELLO: Okay. What happened? Did you talk to him there?

BATES: Yes.

TORNCELLO: What if anything did he say?

BATES: I asked him if he could accompany us and meet us at one of our stations, and talk about a complaint that had been made against him concerning children. [“Accompany” is quite a euphemism here; Bates is attempting to obscure the fact that if Nickel had not ‘voluntarily’ gone with him, Nickel would have simply been arrested. Again, this is important for trying to make Nickel’s alleged statement appear ‘voluntary’. And the second part of this sentence is simply false; Bates did not tell Nickel that a complaint had been made against him concerning children. Bates had indicated that what he wanted to talk about was an alleged slapping incident that had allegedly been perpetrated by a different person - - see below.]

TORNCELLO: Okay. Did he agree to do that?

BATES: Yes.

TORNCELLO: And?

GRAY: Objection.

CZAJKA: Leading, leading.

TORNCELLO: Leading. What happened next?

BATES: He agreed to follow us down to the Albany County Courthouse, here, where we have a station, where we can discuss the complaint.

TORNCELLO: Was he under arrest at that time?

BATES: No. [Bates is playing linguistic games, in order to paint a picture of Nickel not actually being in custody at that time. This is important because if Nickel were in custody, he would have to already have been read his Miranda rights, which, in fact, did not occur at any time.]

GRAY: Objection.

CZAJKA: Are you withdrawing the question? Well, Mr. Gray made an objection, you started asking a new question so I don't know if you want me to rule or--

TORNCELLO: You can rule.

CZAJKA: Sustained.

TORNCELLO: How did he get from his home to your office here in this building?

BATES: He drove himself.

TORNCELLO: In whose car?

BATES: I believe it was his own car.

TORNCELLO: How did you get from his house to your office here?

BATES: In my car.

TORNCELLO: Did anyone accompany Mr. Nickel?

BATES: No.

TORNCELLO: Okay. Now, when you arrived here, what happened?

BATES: We arrived here, met with at that time the Senior Investigator, Mark DeFrancesco.

TORNCELLO: Who is he?

BATES: He's an Inspector currently with our department. At that time he was a Senior Investigator with the Criminal Investigations Unit and the supervisor, who I work for.

TORNCELLO: Okay. Where did you meet?

BATES: Downstairs on the basement level, chief's office.

TORNCELLO: Did Mr. Nickel, did he show up that day?

BATES: Yes.

TORNCELLO: Okay. And was he introduced to Investigator DeFrancesco?

BATES: Yes. [Nickel was hardly “introduced” to DeFrancesco. He was simply sat down in front of him. For a long time, Nickel did not even know the first name of this person, much less what his title was. He thought he might be from child welfare or something, again, to discuss the supposed slapping incident.]

TORNCELLO: Inspector. And did they -- where did they go?

BATES: The chief's office.

TORNCELLO: Okay. And can you describe the chief's office, what is that?

BATES: It's on the basement level, you walk in and there's currently three secretaries' desks, as you walk in the main door of the chief's office within that, through two doors to the chief's office outside and then there's the three secretaries' desks.

TORNCELLO: And did he sit down? Do you know what happened between the defendant, and Inspector DeFrancesco?

BATES: Yes.

TORNCELLO: What happened?

BATES: (No response.)

TORNCELLO: What happened, if you know?

BATES: They introduced themselves, sat down, next to one of the desks, Senior Investigator DeFrancesco and himself, Mr. Nickel, they began a conversation, and at that time, I believe I may have stepped out.

TORNCELLO: Were you present, the entire time that they were together?

BATES: No.

TORNCELLO: Were you present some of the time that they were together?

BATES: Yes.

TORNCELLO: And what role did you play, if any, in that I guess interview?

BATES: I wasn't asking any questions. I was basically coming in and out. If the Senior Investigator had a question about one of the children, he would come and ask me for things of that nature.

TORNCELLO: Do you recall what day this was?

BATES: August 7th.

TORNCELLO: Okay. Now, let me mark something else judge.

(Whereupon, People's Exhibit "7" was marked for identification, search and seizure waiver.)

TORNCELLO: Investigator Bates, I am handing you People’s number “7”, can you tell us, tell the Court what that is?

BATES: It’s a standardized form that we use; it’s a search and seizure waiver.

TORNCELLO: Is that an original or is this a photocopy?

BATES: It appears to be the original.

TORNCELLO: Okay. And tell me what that—what did that contain?

BATES: It contains the name Jeff Nickel, consenting to the search of his residence.

GRAY: Objection

CZAJKA: Sustained.

TORNCELLO: Okay. Was that document signed by Jeff Nickel?

BATES: Yes.

TORNCELLO: All right. And do you recognize any other signatures signed by you or another member of the Albany County Sheriff's Department?

BATES: It's signed by two other members of our department, Mark J. DeFrancesco and William Riley.

TORNCELLO: And pursuant to that document, did you search his house?

BATES: Yes.

TORNCELLO: When did you do that?

BATES: August 7th.

TORNCELLO: Let me just interrupt and say that‘s the original, right?

BATES: Yes.

TORNCELLO: Does it appear to be in similar condition as when it was completed in August of 2000?

BATES: Yes.

TORNCELLO: I'd offer it, judge.

GRAY: Objection, no proper foundation laid.

CZAJKA: What's the relevance of it?

TORNCELLO: Judge, I just want to make a record, that there was a consent to search, and that, there was --

CZAJKA: That's for the tier of fact as well.

TORNCELLO: I want to do it just for the record so that -- that shows that the People didn't barge into his house and start taking things all --

CZAJKA: Okay. Sustained.

TORNCELLO: Now, at some point in time did you leave this building, and go to Mr. Nickel's home?

BATES: Yes.

TORNCELLO: You said that was 36 Lansing Drive?

BATES: Yes.

TORNCELLO: When you got there, what did you do and what did other members of the department do?

BATES: We conducted a search of the residence.

TORNCELLO: Okay. Did you find anything!

BATES: Yes.

TORNCELLO: All right. Let me judge if I can have a second? There's some evidence out in the hallway and if the investigator can step down for a minute, please?

CZAJKA: Attorneys come see me up in 201 and we’ll take a break for a few minutes.

(Whereupon, a brief recess was had.)

(Whereupon, the witness resumed the witness stand.)

TORNCELLO: Inspector were you present, when the search was executed at Jeffrey Nickel's home?

BATES: Yes.

TORNCELLO: Okay. And were some items recovered at that place?

BATES: Yes.

TORNCELLO: And were they, well where were they kept? What did you do with the evidence that you recovered?

GRAY: Objection to the term recovered.

CZAJKA: Overruled.

BATES: We secured it and we have a large area patrol station which is designated for evidence, a majority of that -- they have a small safe which we keep in the CIU office that was kept locked.

TORNCELLO: Were you in contact with the Colonie Police Department?

BATES: Yes.

TORNCELLO: And with whom were you in contact at the Colonie Police Department?

BATES: Detective Steve Tanski.

TORNCELLO: Why were you in contact with Steve Tanski?

BATES: For an examination to be conducted on a -- for examination of a personal computer.

TORNCELLO: Was a computer one of the items that was seized as evidence?

BATES: Yes.

TORNCELLO: Okay. Was that turned over to Detective Tanski?

BATES: Yes, that as well as several computer discs, and all the components attached to the computer.

(Whereupon, People's Exhibit "8" was marked for identification.)

TORNCELLO: Thanks. I'll show you some items that I had previously marked and tell us what they are? This is People's number "8" for identification, can you tell us what that is please?

BATES: These are several magazines, titled, YX magazine. [These are actually XY magazines, which are gay magazines.]

TORNCELLO: Okay. Where were they found?

BATES: At the residence of Jeff Nickel.

TORNCELLO: Okay. Judge, do you want to sort all at once or one at a time?

GRAY: I would like to object to this, on the basis the item itself has not even been admitted into evidence yet. The material offered here, item number "8", as I would understand it, would not have any bearing, on any of the counts in this indictment.

CZAJKA: Well, he hasn't moved them into evidence yet, he's just identifying them now. Why don't we show the witness, the group of exhibits, collectively, if he could identify them collectively and then make your motion, and I'll hear from both of you.

(Whereupon, People's Exhibit "9" was marked for identification.)

TORNCELLO: Okay. That's People's "8", put it on the floor. This is People's number "9", can you tell me just generally what that?

BATES: Black and white photographs.

CZAJKA: As I said, without telling me what they are, 8, 9, whatever.

(Whereupon, People's Exhibit "10" was marked for identification.)

TORNCELLO: Ten.

CZAJKA: Where if anywhere did the exhibits come from?

BATES: The residence of Jeff Nickel, as well item ten.

TORNCELLO: Okay?

CZAJKA: As I said collectively, show them all. Hand them allover to him to identify them by number.

(Whereupon, People's Exhibits "11"-"18" were marked for identification.)

BATES: Item 11 as well, twelve item twelve, item 13, fourteen, fifteen, 17, eighteen, and sixteen.

CZAJKA: These all were seized from the home of the defendant?

BATES: Yes, sir.

CZAIKA: Go ahead Mr. Torncello.

TORNCELLO: Thank you. They were secured as evidence?

BATES: Yes.

TORNCELLO: And I guess they were kept at your barracks in Voorheesville, is that right?

BATES: Right.

TORNCELLO: Judge, I would offer those items, into evidence.

CZAJKA: You're going to offer them now?

TORNCELLO: I am going to offer them now.

CZAJKA: I misunderstood. I thought you were going to put them all in later. Well, for the record, we'll have him identify what exhibit one is and I'll hear your respective arguments.

TORNCELLO: Go forward and identify what each of those items is.

BATES: Item sixteen.

CZAJKA: Start with 8 for chronological order. Item 8 is the XY magazines.

GRAY: Your Honor, I would object to those being offered into evidence.

CZAJKA: I'll hear your objections all together, or all at once if you have different arguments or different exhibit, you can make the arguments one after another. Go ahead.

BATES: Item 9 is photographs and pictures depicting young boys, item ten is photographs and white envelopes, item 11 is a photo collage of young boys on the back of a large map, item twelve is a green camera case, 35 millimeter camera inside, as well as a telephoto lens, 13 are personal letters, several about the topic of a sexual preference. [With the possible exception of the reference to the camera, none of these items have anything to do with the specific crimes Nickel was charged with. None of these items are illegal in any way. The sole purpose for discussing them, and seeking to introduce them into evidence, is to attempt to prove that Nickel is sexually attracted to boys. This is ‘pure propensity’ evidence. It may be permitted in countries with inquisitorial systems of justice; it is not supposed to be permitted in the United States.]

TORNCELLO: Identify the -- can you identify the letters, or not?

GRAY: Object to any testimony being given about the letters; they are not in evidence.

TORNCELLO: Just so we know what --

GRAY: He only identified them as letters.

CZAJKA: Letters are enough for purposes of the record so we can tell what they are. That -- was that was 13?

BATES: Yes.

CZAJKA: What's fourteen investigator?

BATES: Fourteen is, three male pornographic magazines. [Here, there is not even the pretense of attempting to prove that Nickel has an interest in underage males, for this is simply and clearly (adult) gay male erotica.]

CZAJKA: Without -- I don't want you to describe the different items, just tell me what they are, please?

BATES: Fifteen is several papers and pamphlets.

CZAJKA: In a grocery bag?

BATES: Yes.

CZAJKA: All right.

BATES: Item sixteen is a book entitled curiosity book, 17 are several photographs and photographic copies of young boys of a sexual nature swimming. [How in the world can swimming photos be “of a sexual nature”? In any event, this is yet more absolutely inadmissible, ‘pure propensity’ evidence.]

GRAY: Objection.

CZAJKA: Investigator, please do what I asked.

BATES: Item eighteen, two NAMBLA magazines and E-mail. [What people read and what organizations they may associate with cannot be used to convict them of crimes which are, at best, only tangentially related to that reading material or those organizations. Perhaps in countries like China. But not here. See the Bagarozy case in the website’s Propensity/Who Cares? section.]

CZAJKA: Okay.

BATES: And two written letters.

CZAJKA: Go ahead Mr. Torncello.

TORNCELLO: Thank you. Well under several theories, judge, at this time I would offer those, into evidence, for the People if you would like me to make argument on each and everyone, I will. If not, just on a whole, I'd offer those as evidence.

CZAJKA: Mr. Gray?

GRAY: Objection, Your Honor, to anyone and certainly to all of them Within the 7 counts of this indictment, none of this would have any relevance to the charges of which the defendant is accused here. There is, by separate indictment in another Court, by separate count, an issue where -

CZAJKA: None of these exhibits are contraband or the subject of another indictment, are they?

TORNCELLO: No.

CZAJKA: I'm going to reserve; you want them in evidence to prove sexual gratification? [Czajka is wrongfully aiding the prosecution here; such items cannot be used to prove sexual gratification vis-a-vis the charges here; again, see Bagarozy case in Propensity/Who Cares?.]

TORNCELLO: Yes.

CZAJKA: I'm going to reserve.

TORNCELLO: Okay. Not entirely. There's a camera, that is in there, Your Honor, that's the subject of count one and count three, which is a photograph.

CZAJKA: That's exhibit number twelve?

TORNCELLO: In addition there are letters from Matthew Peters to Jeff Nickel, and that is sort of a tie up.

CZAJKA: Who is Matthew Peters?

TORNCELLO: The inmate at the Albany County Jail.

CZAJKA: All right.

TORNCELLO: To tie up and authenticate one through four which has been identified, those letters.

CZAJKA: All right.

TORNCELLO: Other than that the sexual gratification.

CZAJKA: Did you wish to be heard further Mr. Gray?

GRAY: No, I don't believe so Your Honor.

CZAJKA: Okay. I reserve.

(Whereupon, People’s Exhibits "19", "20" and "21" were marked for identification.)

TORNCELLO: Okay. I have a few more items, are they marked yet or not? I'm showing you what's been marked as People's 19, 20 and 21, can you just identify each of those please?

BATES: Item 19 is a Canon printer fax, and scanner combination, all in one.

TORNCELLO: Can you tell the Court where you found that?

BATES: At the residence of Jeff Nickel.

TORNCELLO: Okay. 20?

BATES: Is a CPU home computer, which is taken from the residence of Jeffrey Nickel.

TORNCELLO: 21?

BATES: 21 is a box of diskettes, keyboard, a security device hook up to that computer fingerprinting thing, and a computer camera mount to your computer.

TORNCELLO: Okay. Thank you very much. I'll offer those as evidence.

CZAJKA: Mr. Gray?

GRAY: Again a similar objection, Your Honor, that I had to the other items marked for identification. Items 8 through eighteen, same objection to these three items.

CZAJKA: Why is it that you think these are relevant?

TORNCEILO: Again judge, to sort of paint the story, there are computer images.

CZAJKA: It's apparent from the indictment; but why are they relevant? Explain? For the record?

TORNCELLO: Count three, in this indictment, and count 1 of this indictment, alleges a photo and image of the defendant engaged in the act of sodomy, that was found on his computer. I wanted to inform the Court, that he has a computer, that he has a scanner, that he has discs, that he has the technology and capability of taking such a photo with the camera, that's why I put the camera in, scanning it on to his computer and saving it on a disk, that's my point judge. [Torncell is claiming that Nickel took this sex photo with his 35 mm film camera. If so, where is the negative? Absolutely all of Nickel’s photos and negatives were seized in the police search of his home. And where and how would Nickel have been able to get the photo developed? If he sent it out anywhere, he would, as many others have, immediately been reported to the police. He has no darkroom or even any skills to do this on his own. Assuming he got it developed, if he scanned it into his computer, a special file known as a “.xif” file would have been created; even if Nickel had deleted it, it still would have been recoverable (see Photograph).]

CZAJKA: You say in the indictment, number 3?

TORNCELLO: I believe it's count three.

CZAJKA: The photograph that came from the computer was that photograph, which is marked?

TORNCELLO: As People's number five for identification, only.

CZAJKA: was that photograph -- will there be a witness that testifies that that photograph was actually seized in the form it is now or some other form?

TORNCELLO: Seized in some other form on a disc or the hard drive and then printed out on a piece of paper.

CZAJKA: Well, no witness testified to that as of yet.

TORNCELLO: That is correct.

CZAJKA: I'll reserve on those exhibits as well.

TORNCELLO: Okay. Judge I don't think I have any further questions; can I check my notes for a second?

CZAJKA: Yes.

TORNCELLO: At some point in time that day, was Mr. Nickel arrested?

BATES: Yes.

TORNCELLO: Okay. Was he handcuffed?

BATES: No.

TORNCELLO: Why?

BATES: He had a cast on.

TORNCELLO: Do you see Jeffrey Nickel in the courtroom today?

BATES: Yes.

TORNCELLO: Could you point to Jeff Nickel?

BATES: Sitting next to Mr. Gray. (Indicating.)

TORNCELLO: Your Honor, if the record could reflect that the witness identified the defendant?

BATES: Yes.

TORNCELLO: Thank you. No further questions. Thank you.

GRAY: Good morning Investigator Bates.

BATES: Good morning.

GRAY: I would like to take you back in time, if I may, to the 3rd of August, of last year, and ask you if there came a time when you met on that day with a Miss Scostak of the Albany County Jail?

BATES: Yes.

GRAY: And she advised you that she had four letters, I believe you said, and some photographs at that time?

BATES: Yes.

GRAY: And I believe you testified that you did not look at the photographs and did you not look at the letters, is that correct?

BATES: Correct.

GRAY: And after she made that advisement of you that she had that, did you inquire with her, whether she had looked at the letters or the photographs?

BATES: Yes.

GRAY: Did you ask her as to whether or not there was anything in the photographs, that were, illegal?

BATES: Yes.

GRAY: And did she respond to you?

BATES: Yes.

GRAY: What did she say?

TORNCELLO: Objection.

CZAJKA: Sustained:

GRAY: You chose not to look at them yourself?

BATES: Correct.

GRAY: Either at the letters or the photographs?

BATES: Correct.

GRAY: Did there come a time then that you proceeded to secure a search warrant?

BATES: Yes.

TORNCELLO: And did you go before a judge requesting a search warrant?

BATES: Yes.

TORNCELLO: Objection to this line judge.

CZAJKA: Sustained, well, unless I can imagine there might be some reference to some inconsistent statement in the application or I’ll allow it subject to connection. Objection overruled. Did you apply for a search warrant investigator?

BATES: Yes.

GRAY: At the time you applied for the search warrant, had you looked at letters or the photographs?

BATES: No.

GRAY: When did you apply for the search warrant?

BATES: August 4th.

GRAY: And in that search warrant did you secure an affidavit from Mrs. Scostak?

BATES: Yes.

GRAY: Well, would you like to look at them maybe to review those notes?

BATES: If I can?

CZAJKA: Is that your only copy?

TORNCELLO: (Nod).

GRAY: Excuse me, the notes that were taken on the interview of ["A"], they were taken by you, weren't they?

BATES: I believe so. [Bates had just answered this question with an unequivocal “yes.” Now it’s “I believe so”.]

GRAY: I'd just like to mark these for identification.

(Whereupon, Defendant's Exhibit A was marked for identification.)

GRAY: Mr. Bates, I am going to hand to you Defendant's "A", and just ask you to examine that for the purpose of refreshing your recollection. Have you had enough time to look at that, have you?

BATES: Yes.

GRAY: I would like to ask you in that notation of that interview with ["A"], there were no questions posed in your notes, are there? They're just a ¬scattering of answers or presumed answers, is that correct?

BATES: Correct.

GRAY: Now, when you went up there to visit with this ["A"], was there another investigator with you?

BATES: Yes.

GRAY: From the Sheriff's Department?

BATES: Yes.

GRAY: Did you have any social worker, any staff members from the school, any medical personnel, anyone like that with you?

BATES: Not during the interview itself, no.

GRAY: All right. Now when you got there for the interview, you identified yourselves, I'm sure to this ["A"]?

BATES: Yes.

GRAY: And did he respond to you when you got there that he believed that you were there because of a slapping incident?

TORNCELLO: Objection.

GRAY: That was his early and first response to you?

TORNCELLO: Objection.

CZAJKA: Overruled.

BATES: I don't remember.

GRAY: Do you remember that at all coming up in that interview?

BATES: It may have.

GRAY: Do you recall it?

BATES: No.

GRAY: Nothing about a slap?

BATES: It may have come up; I just don't remember any particulars about it.

GRAY: Well, isn't it a fact, that when you got there, and you first started to speak to ["A"], that he thought you were there because of a slapping incident that he had reported?

TORNCELLO: Objection.

GRAY: Isn't that correct?

CZAJKA: Overruled.

BATES: It could be, I simply just don't remember.

GRAY: Wouldn't that be something that you should have made some memory or note about?

BATES: Well, if it's not in the notes, I didn't make a note of it. [That’s non-responsive: Gray asked if he should have some memory or note about it.]

GRAY: Did you have a picture with you that day?

BATES: I believe so, I believe so.

GRAY: And is that a picture, the one that is or has been marked for identification, here, as number five?

TORNCELLO: Five is not in evidence, I have not introduced it. I just pre-marked it. Would you like me to show it?

CZAJKA: Give it to Mr. Bates please.

GRAY: I'm just going to show you number five, marked for identification, but by the People, and ask you if that’s refreshing your recollection, as to the photographs that you had with you?

BATES: No, I didn't have this photograph with me.

GRAY: At any time, Officer Bates, did you or did anyone else any other officer in your presence, ever show this photograph, to ["A"], that's been identified as number five?

BATES: Yes.

GRAY: And when and where did you show this photograph to ["A"]?

TORNCELLO: Objection

CZAJKA: Overruled.

BATES: It was here at the Albany County Court House, myself, Assistant D.A. Ronnie Dumas, the day of Grand Jury, the first Grand Jury.

GRAY: The photograph that you showed to ["A"] back on the 6th of August what was that photograph if you recall?

CZAJKA: I don't understand. What's the date of the Grand Jury presentation?

GRAY: The 18th, I believe.

CZAJKA: You're talking about a different date?

BATES: Yes, sir.

CZAJKA: Well, did you show a photograph to the boy on the 7th?

BATES: Not that I can remember, Your Honor.

CZAJKA: All right.

GRAY: Now, had you had any specialized training, Mr. Bates, in conducting an interview of a young child?

BATES: Yes.

GRAY: Where did you receive that training?

BATES: It was a brief overview of a training seminar conducted at the New York State Police Academy, titled sex offense seminar.

GRAY: It was a brief one did you say?

BATES: It covered several topics. It didn't focus in on conducting an interview. It touched on several topics. [In other words, Bates has virtually no training at all on how to properly conduct interviews with children. See Suggestibility.]

GRAY: Did they alert you at that session, not to ask, for example, direct questions of the child?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did they talk about blind interviews?

BATES: No.

GRAY: Are you familiar with the term, blind interview, in dealing with a young child?

BATES: No.

TORNCELLO: Objection Judge. I don't know what that -- I don't know.

CZAJKA: I didn't hear the question.

(The preceding question was read back.)

TORNCELLO: Thank you.

GRAY: Are you familiar with that term?

BATES: No.

GRAY: By the time –isn’t it a fact that by the time you went to visit with this ["A"] at [ ] or [ ], you had already been on this investigation, at least four days, had you not?

BATES: Correct .

GRAY: And can I assume that within that four day period you had developed a mindset, one way or the other, with respect to the investigation, hadn't you?

BATES: No, not really.

GRAY: Did you when you interviewed ["A"], did you think it may be wise to have it videotaped?

BATES: We don’t have that capability.

GRAY: Does the Sheriff's Department of Albany County -- it doesn't have a video or tape --

BATES: They're available tapes; it's not common practice. [First Bates says they “don’t have that capability”; then he says that tapes are, in fact, available.]

GRAY: Well, wouldn't it have seemed to be at that time, and didn't they educate you, that it -- that it is a wise tool in interviews of children, particularly the initial interview?

BATES: I have heard opinions, I haven't heard fact or anyone advised me.

GRAY: Could we agree if we had a live individual or interview, it would express fully and truthfully, just how that interview was conducted, wouldn't it?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did you make any attempt to tape the interview, to use some sort of tape recording to preserve what if any questions were asked, how they were asked, what if any answers were given and how it was given?

TORNCELLO: Objection.

CZAJKA: Overruled.

BATES: No.

GRAY: Again in your courses that you've taken with these young complainants, haven't you heard this method suggested?

BATES: Yes.

GRAY: Wouldn't this be a way of keeping it in the open, out in the open, so that there could never be any criticism of what went on or how it went on?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did you ever, Investigator Bates, ask for a medical examination of ["A"]?

BATES: Yes. [Keep in mind that Bates says he asked for this medical exam to be conducted - - this becomes very important later on.]

GRAY: And was such a medical examination conducted?

BATES: Yes.

GRAY: Your Honor, if it please the Court, I was never provided and never made aware of any medical exam of this boy before, and this comes quite honestly, as a complete shock to me. [The prosecution was required to turn this - - as well as other potentially exculpatory - - evidence (that is, evidence tending to show one’s innocence) over to the defense before the trial ever began.]

TORNCELLO: I'm not aware of it either.

GRAY: I would certainly find it helpful, Your Honor, to be able to review, any medical reports.

CZAJKA: Do you have any reports?

TORNCELLO: I'm sorry?

CZAJKA: Do you have any reports, any notes from the doctors?

TORNCELLO: I don't think that one was completed.

CZAJKA: All right. I'll give you an opportunity to make whatever motions are appropriate. Continue your cross-examination. [What does this mean? When? Gray really should have immediately asked for a mistrial, simply because of the prosecution’s failure to turn over this piece of critical evidence in a timely manner.]

GRAY: Do you recall the name of that doctor?

BATES: No.

GRAY: Investigator Bates?

BATES: No.

GRAY: Do you recall when that examination was conducted?

BATES: No.

GRAY: Do you recall where it was conducted?

BATES: It was, I believe, set up by [ ].

GRAY: And were you present or -- strike that. Have you talked to the people from [ ] throughout its investigation, from time to time throughout this investigation?

BATES: Yes.

GRAY: To keep yourself abreast and updated on it?

BATES: Yes.

GRAY: Did they report to you, the results of that examination in conversation?

BATES: Yes. [But Bates apparently elected not to tell the prosecutor about any of this. Could that be because the exam showed no signs of sexual abuse?]

GRAY: And in reporting to you the results of that conversation, did they indicate to you, the particulars of that examination. Did they get into any particulars with you?

BATES: No.

GRAY: Did they tell you and I'll hopefully pronounce this correctly, did they tell you whether a culdoscope was used in any diagnosis?

BATES: Not that I recall.

GRAY: Did you see any notes or records from the time that you got there at [ ] as to the questions and the order of the questions that you used for ["A"]?

BATES: No, I don't believe I asked ["A"] any questions, if I had a question for ["A"]. --

CZAJKA: Well, the question was, did you keep a record of any questions that you asked. If you didn't keep any was the question, you didn't keep a record.

BATES: Right.

GRAY: Did you ask any questions of ["A"] on the 7th of August, 2000?

BATES: Not that I remember, no. --

GRAY: But your name appears on top of the notes. It refers to -- that notes were taken by you, is that correct?

BATES: Correct.

GRAY: So who was asking -- who if anyone was asking questions of ["A"] on that day?

BATES: Senior Investigator Mark DeFrancesco.

GRAY: Did you make any observations as to whether or not Senior Investigator Mark DeFrancesco, was keeping any notes, of the questions he was asking ["A"]?

BATES: No.

GRAY: Did you make any observations as to whether investigator DeFrancesco was keeping any notes of any answers that were given?

BATES: No.

GRAY: To the best of your knowledge, Investigator, did Investigator DeFrancesco have a note pad or pencil in his hands?

BATES: Correct. [This is non-responsive.]

GRAY: That was your -- what you were doing, correct?

BATES: Correct.

GRAY: But you only took down answers and no questions?

BATES: Correct.

GRAY: Did it -- did you happen to think at that time, officer, that without the video or without the tape, without the questions that were asked of ["A"], that one day, that this might be looked upon with some suspicion by some --

TORNCELLO: Objection as to --

CZAJKA: Sustained.

GRAY: The picture for identification that I showed you as number five, had you before the day of the Grand Jury, had you seen that picture before?

BATES: Yes.

GRAY: When did you first see that picture as you best recall?

BATES: At the Colonie Police Department.

GRAY: And when would that be?

BATES: I don't recall the exact date.

GRAY: And who brought that to your attention that particular picture?

BATES: Detective Tanski.

GRAY: Now, he's a member of the Colonie Police Department, is he not?

BATES: Correct.

GRAY: And did Detective Tanski isolate this one photograph and bring it to your attention? Is that what you're telling us?

BATES: I remember looking at one image on the computer monitor, okay? His lab, I guess you would call it, so it would be yes. [This too is non-responsive.]

GRAY: But he, I mean Tanski, to your knowledge, had he ever seen the defendant?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Well, Tanski is with a completely different Police Department, isn't he?

BATES: Yes.

GRAY: And he was given the job of pulling images off a computer because it's thought he has some expertise in that field, is that right?

BATES: Yes.

GRAY: All right. Now, you were physically present as he's pulling these off? Are you the one that stopped him and said let me look at this one?

BATES: No.

GRAY: Was someone else from your department with you at that time?

BATES: Yes, I believe there was someone with me; I don't remember who it was.

GRAY: Was it that person who said here, let me look at this one?

CZAJKA: Well, I don't understand what that you mean by that? How do you know what to look at without looking? How could he ask that question without looking at it in the first place?

GRAY: Well, Your Honor --

CZAJKA: How could he refer to a particular image, without having seen it? If you've seen it, why would he say let me look at it? Rephrase your question.

GRAY: Thank you, Your Honor. So we are clear, we are talking about People's number five here throughout these questions, okay? And all I'm trying to learn from you officer, is how this particular image, ID'd as number five, popped to the forefront? Tell us how that happened?

TORNCELLO: Objection judge.

CZAJKA: If you know? If you know? When you say popped to the forefront, came up on the screen?

GRAY: Well, no. I thought he answered one of my earlier questions, Your Honor, I thought he said he wanted to look at that. I thought that was one of his answers to me, so, I kind of pre-supposed it may, and he was the one that said, hey, let me look at that. There was some, Your Honor, I think--

CZAJKA: I don't remember that testimony. It may have been, but I don’t remember.

TORNCELLO: Does Mr. Gray want to put it into evidence?

CZAJKA: Make your objection. The last objection was sustained; go ahead and ask another question, Mr. Gray.

GRAY: You're out at the Colonie Police Department, you and another officer whose name you can’t remember, and Officer Tanski, as I understand it, is running through a series of pictures that are coming up on the computer screen that you’re looking at with him, is that correct?

BATES: Correct.

GRAY: Is that what was going on? All right. And there were hundreds, were there not, of these images?

BATES: (No response.)

GRAY: Let me say a great number, would that be fair to say?

BATES: There were a number of pictures, but –

CZAJKA: How many pictures were actually on the screen?

BATES: Not very many.

GRAY: So each time you would go to a different field of pictures, is that what you mean?

CZAJKA: A filed of pictures? Was each image, was it a single picture on the screen one time or were there -

BATES: I believe it was just one at a time, but we had to narrow it down to maybe a couple dozen out of a vast amount. [Why did he have to “narrow it down”? Based on what - - which of these hundreds of pictures could possibly be Nickel and one of the alleged victims? Gray failed to ask any of these crucial questions.]

GRAY: So a couple of dozen. So a couple dozen that were brought up on the computer screen, and it was one picture at a time on the screen?

BATES: I believe so.

CZAJKA: Go ahead Mr. Gray.

GRAY: All right. Now again with regard to People’s ID number five, what if anything did you say or what if anything Detective Tanski say, when that picture came up on the screen?

BATES: I recognized the people in the photo. [This is impossible, not least because the eye color of the boy in the photo and [“A”]’s eye color do not match. Not only is [“A”] not in the photo; Nickel is not in it either - - see Photograph.]

GRAY: All right. And your claim to this recognition would be, you had previously met Mr. Nickel, hadn’t you?

BATES: Yes.

GRAY: And you had previously me [“A”]?

BATES: Correct.

GRAY: And did you tell us the date that this was done officer?

BATES: I don’t recall the exact date; it was prior to the Grand Jury actually.

GRAY: Okay. A few days after, a week before?

BATES: (No response.)

GRAY: Sometime after the 7th, but before the 18th, would that be fair to say?

BATES: Yes.

GRAY: All right. Then was it you, because of what you believed to be this recognition, that you more or less singled out this photograph?

BATES: I’m sorry?

GRAY: Was it you, because of what you perceived to be this recognition, that you singled out this photograph?

BATES: Yes.

GRAY: And can we assume safely further that you probably brought that information forward to the DA’s office, in some fashion?

BATES: Yes.

GRAY: All right. And now comes the day for the Grand Jury presentment, is that correct?

BATES: That’s correct.

GRAY: The 18th of August, 2000?

BATES: Now you got [“A”] in one of the rooms here in this building, prepping him for Grand Jury, I assume?

BATES: Correct.

GRAY: Were you present during that preparation with Ms. Dumas I think you said?

BATES: Not during the preparation, no.

GRAY: Had you given the picture to Miss Dumas before that preparation?

BATES: Yes.

GRAY: But that day for Grand Jury?

BATES: I believe so. I don't remember the exact date that I gave it to her.

GRAY: So we know that sometime between the 7th of August and the 18th, the date of arrest, and the date of presentment to he Grand Jury, without knowing the exact date, you 'were the one who selected that particular photo because of your belief that you recognize the people in it, and that on the 18th before the child goes into the Grand Jury, this is exhibited to him, correct?

BATES: Correct.

GRAY: And you are the one that exhibited it to him?

BATES: No.

GRAY: Who did, if you know?

BATES: Miss Dumas.

TORNCELLO: Judge, I believe that this was the subject of a suppression hearing held and this entire --

CZAJKA: Well, there's no question outstanding.

TORNCELLO: I think I guess I would object to the line of questioning that is -- would be my request.

CZAJKA: I’ll consider your objections as you make them. What -- was there some kind of weight determination for trial?

GRAY: I don't recall there ever having been.

CZAJKA: Whatever. I was just wondering. Go ahead. Miss Dumas is no longer with the DA's office, is that correct?

BATES: To the best of my knowledge.

GRAY: Now, again during this preparation, if you know, of this complaining ["A"], complainant, ["A"], was there anyone present when Miss Dumas was talking to him, to your knowledge?

BATES: Myself. [Bates just contradicted himself yet again. Above, where Gray asked Bates, “were you present during that preparation with Ms. Dumas I think you said?”, Bates answered, “not during the preparation, no.”]

GRAY: Any other members of your department or anyone else?

BATES: I don't remember other members being there. There may have been ["A"] 's -- I believe she would be a social worker or counselor whose name escapes me. She may have been there. I don't remember if she was.

GRAY: [Gives name of social worker]?

BATES: I think that's how you pronounce it; I don't recall. I don't know if she was in the room or not. I know this was around that day. [When the social worker gets on the stand, Gray fails to ask the social worker if she was in fact present that day; she might have been able to fill in some critical details regarding how that interview/prep was conducted.]

GRAY: Before you interviewed ["A"] at [ ], did you make any inquiry of the staff there, regarding concerns for his maybe stability or truthfulness? Did you make any sort of background check before you sat down and interviewed this ["A"]?

BATES: I am sure I would have. [Bates is hedging quite a bit here; doesn’t seem to want to provide many details.]

GRAY: All right. And who would you have made that inquiry of?

BATES: It would have been one of two people I spoke with, which was either [ ] or I believe she is the administrator.

GRAY: [Gives name]?

BATES: I don't recall the last name; I recall a first name of [ ] as an administrative --

GRAY: All right. And did the -- did they share this information with you? Did they share information with you?

TORNCELLO: Objection, withdrawn judge as to that question. I withdraw, apologize.

GRAY: Did they share information with you?

BATES: Yes.

GRAY: I would assume that one of your concerns would be, the truthfulness or imagination in dealing with a young child, would it not?

BATES: Yes.

GRAY: Did you make inquiries along those lines?

BATES: I am sure I would have.

GRAY: Tell, it would be kind of important; did you take any notes as to what you said or what they said to you?

BATES: No.

GRAY: Do you recall anything you said to them or anything they said to you?

TORNCELLO: Objection.

CZAJKA: Overruled.

BATES: I don't recall. I recall speaking with - - and I don't recall the content of the conversation or their answers. [How can Bates be “sure I would have” made such inquiries, yet have no idea as to the content of having done so?]

GRAY: Well, when you went into this room alone, with ["A"], and the other investigator, DeFrancesco, now there's just the three of you there alone, was it you that, or your partner, that asked for that sort of an interview?

BATES: I don't understand what you mean by that sort of an interview?

GRAY: All right. You're at [ ], you talk with the social workers, this [ ] or [ ], someone by the name of [ ], now you and your partner go into a room alone with ["A"]. Who if anyone made that decision to do that alone?

BATES: It would have been either myself or my supervisor.

GRAY: Did your supervisor have any independent, to your knowledge, have any independent information, with that staff at [ ] before the interview started with ["A"]?

BATES: Not that I can remember.

GRAY: You were both present and together all the time while you were there as far as you recall, you and DeFrancesco?

BATES: Yes, as far as I can recall, we were together.

GRAY: Now, do you recall any conversation by a staff member at [ ] wherein, they indicated to you in words or substance, that this ["A"], in the past, has made some things up?

TORNCELLO: Objection.

GRAY: Do you recall --

TORNCELLO: That calls for hearsay, judge.

CZAJKA: Sustained.

GRAY: In your experience do children sometimes imagine

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Do you feel you have any expertise at all, Mr. Bates, in interviewing, a child complaint?

BATES: I'm sorry?

TORNCELLO: Objection, asked and answered. He answered where he went to classes.

CZAJKA: Well, whether -- the question, the question wasn't asked, nor was it answered, but what difference does it make what his opinion of his own expertise is? It's sustained for that reason.

GRAY: The day that [“A"] went before the Grand Jury, did you also talk with him on that day in addition to Mrs. Dumas?

BATES: I am sure I would have talked to him, yes.

GRAY: Did you keep any notes or record of that interview?

BATES: No.

GRAY: Do you know on the day of the Grand Jury was that Miss Dumas the first interview with ["A"]?

BATES: I'm not sure.

GRAY: Are you aware as the investigating officer in this case, as to whether she or any other DA's representative ever interviewed ["A"] before the day of the Grand Jury presentment?

BATES: Not that I'm aware of or, or can remember, no.

GRAY: Did you ever -- did you ever or did any member of your department, ever put ["A"], in a -- in a motor vehicle and drive him anywhere?

BATES: Yes.

GRAY: First was it on more than one occasion or just that one occasion?

BATES: I recall one.

GRAY: All right. Do you recall a date?

BATES: The day of the Grand Jury.

GRAY: And where did you drive him to?

BATES: The Town of Bethlehem.

GRAY: Did you drive him to Lansing Drive?

BATES: Yes.

GRAY: Who else was in the vehicle besides you and ["A"] on the day of Grand Jury when you drove him to Lansing Drive?

BATES: Investigator Montaleone.

GRAY: Was this the first that your department had driven him to that location?

BATES: Yes.

GRAY: And was the purpose of that driving, to reinforce or have him, identify a residence?

BATES: Yes.

GRAY: What time of day was that done, officer?

BATES: I believe it was - it was in the afternoon. I don't recall the exact time.

GRAY: Well, do you recall what time the Grand Jury met that day?

BATES: No, I seem to recall being a morning Grand Jury, but I'm not positive.

GRAY: Before you drove him, by the Lansing Road address, number 36, had you previously quizzed him, as far as the identification of that residence?

BATES: Yes.

GRAY: Now, how long after you drove him by the Lansing Drive address, was it before he testified before the Grand Jury in terms of, was it minutes or hours, whatever it might be?

BATES: That was after the Grand Jury. [Bates says he only drove the boy by Nickel’s house once, which was right after the Grand Jury presentation. This contradicts the boy’s own testimony, which is that drive-by took place a few days before the Grand Jury. In any event, if the boy really was driven by the house right after the Grand Jury, it would appear that the only reason for the police doing so is they realized he was wrong about the color of Nickel’s house, and were trying to ‘refresh’ (i.e., correct) his memory.]

GRAY: Was Ms. Dumas with you?

BATES: No.

GRAY: Just you and the other investigator?

BATES: Yes.

GRAY: Did you make any inquiry after the Grand Jury, of maybe the way that ["A"] had testified to some questions or answers given before the Grand Jury?

BATES: I'm sorry?

GRAY: Did you make any inquiry or talk with ["A"] after the Grand Jury? Did you familiarize yourself with how he testified before the Grand Jury?

TORNCELLO: Objection.

CZAJKA: I don't understand what you're asking.

GRAY: Do you know whether or not before the Grand Jury there was any description of the house, given by ["A"]?

BATES: Yes.

GRAY: Do you know, if you know, if that description -- did he say the house was white?

TORNCELLO: Objection, he's asking what ["A"] said in the Grand Jury.

CZAJKA: Is that 14th that you're asking Mr. Gray? What ["A"] said to him with respect to the description of the house?

TORNCELLO: Objection.

CZAJKA: Well, ask a question again and I'll hear you both.

GRAY: All right. In a conversation after the Grand Jury that you had?

CZAJKA: In a conversation?

GRAY: In a conversation that Officer Bates had after the Grand Jury, with ["A"], was there inquiry made, as to a description he gave of the house?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: At any time during the course of your questioning of -- let me withdraw that. Outside of the first day, August 7th, that you met with ["A"], when's the next time you physically see him or talk to him?

BATES: I believe it was just a couple of days later; I don't recall the exact date.

GRAY: Where did that meeting take place?

BATES: [ ]

GRAY: Who was present for that?

BATES: Myself and I believe it was Investigator Thompson.

GRAY: Now, was that the second interview of ["A"], again conducted with just the two of you, the two officers?

BATES: The two of us were there, I don't recall if there was a social worker in the room or not. I don't recall.

GRAY: Did you or your partner make any notes of that second interview, with ["A"]?

BATES: No.

GRAY: If there had been anyone else in the room did you make any observations as to whether they may have any notes of that?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Now on this first interview that you had with [“A”] on the 7th of August, how long did that take?

BATES: Maybe an hour, roughly.

GRAY: And the second interview took how long?

BATES: The second interview was the best I can remember much less than the first, so somewhere in the area of a half hour, possibly.

GRAY: When was the next time that you saw ["A"] or anyone from your department, if you know?

BATES: After the second time?

GRAY: Yes, sir?

BATES: I believe I would have seen him next at the Grand Jury. I don't recall seeing him between that day and the Grand Jury.

GRAY: On the second interview, did you make a determination, to either video or tape record that interview?

BATES: No.

GRAY: And you did not even find it necessary, to take any notes?

BATES: No.

GRAY: In the grand jury preparation, which would now be the third time you met with him, correct?

BATES: Correct.

GRAY: That was in the District Attorney's office here?

BATES: I remember seeing him in the DA' s office, but we also met in there's another room off the District Attorney's office, it's like a living room type setting, a part of it.

GRAY: To your knowledge, does the DA's office have recording devices, tape recording devices?

BATES: Not to my knowledge.

GRAY: Video cameras? Was anything videoed or recorded of that interview?

BATES: Not that I'm aware of. [Therefore, there were really three interviews of [“A”], none of which were electronically recorded in any way, and two of which don’t even have any notes to indicate what transpired during them.]

GRAY: On the several times that you met with ["A"]' let me ask you this, with interview number one, did you talk with any parent?

BATES: No, not that I remember.

GRAY: With interview number two, did you talk with any parent or?

BATES: I did meet with a parent now that you mention it. I don't remember who it was though, but it was at [ ].

GRAY: Did you make any inquiry, officer, of that parent, as to the reliability of ["A"] in statements that he made or did not make?

BATES: Not that I can recall. [Bates cannot recall any details of supposed conversations where he inquired about the boy’s veracity, etc. This would appear to be because he made no such inquiries, and only indicated that he did make them because otherwise it would be extremely obvious that he simply did not care whether the boy had a poor reputation for telling the truth etc.]

GRAY: Did that parent alert you to any difficulties along these lines?

BATES: No, not that I remember.

GRAY: Did you make any inquiry as to whether or not in the past, [“A”] had ever told a -- I guess a kid would call it a fib?

BATES: No.

GRAY: Did you check with anyone at [ ] where ["A"] had been a student before going to [ ]?

BATES: No, not that I can remember. [So really, now he admits that he made no such inquiries.]

GRAY: Did you ever make any inquiry of [ ] as to his reputation for telling or not telling fibs?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: The picture that you showed to ["A"], did you ask him to initial it or did anyone in your presence ask him to do that?

BATES: What picture are you referring to?

GRAY: Well, People's for identification number five?

TORNCEUO: Judge, can we put it into evidence please? If we have been referring to it for about an hour now and I'll be glad to.

CZAJKA: Answer the question, did he initial it?

BATES: Not, no, I don't think so.

GRAY: May I have just a moment please, Your Honor? Now, I would like to bring you back, if I may Mr. Bates, to the 7th of August, and more particularly to the Town of Bethlehem Lansing Drive, there came a time on that day, when you and another officer, arrived at what you believed to be the residence of Jeff Nickel, did you not?

BATES: Correct.

GRAY: And when you arrived at that residence, I think the DA asked you about what time that occurred?

BATES: Correct.

GRAY: Do you recall what answer you gave to the DA here this morning?

BATES: Late afternoon.

GRAY: Now, was there something that made you believe it to be later afternoon as opposed to, earlier, middle afternoon?

BATES: No. [So, it could have been earlier in the afternoon. Why, then, does Bates say late?]

TORNCELLO: Objection.

GRAY: Did you keep any notes or memoranda, as to what time you arrived there?

BATES: No.

GRAY: So when you say late afternoon, as you sit here today, I have to assume it's a guess on your part?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did the other officer that accompanied you, did he -- did he, to your knowledge, keep any record as to time after your arrival?

TORNCELLO: Objection.

GRAY: If you know?

CZAJKA: I sustained the objection -- I'll speak up. I thought I said it.

GRAY: Now when you arrived at the Lansing Drive address, whatever time that was, did you have an occasion to meet someone?

BATES: Yes.

GRAY: Your Honor, could I impose upon the Court, I have an injury to my leg, would it be acceptable if I sat? Thank you.

CZAJKA: Let's take a break for a few minutes.

(Whereupon, a recess was had.)

TORNCELLO: Can I put one thing on the record? During the cross-examination there was an issue that came up about medical treatment, of a boy, named ["A"]. We contacted [ ] and they faxed over whatever information they had, it looks like it contains about three pages of medical handwriting judge and I've given a copy to Mr. Gray.

CZAJKA: You didn't have it before?

TORNCELLO: I did not know of its existence until this morning. Thank you. [“Thank you” seems like a very odd thing to say at this juncture - - he appears to be quite nervous. In any event, assuming it is true that Torncello did not know about the existence of the medical exam until that morning, that’s simply no excuse. He is required to have inquired about such things; if he did not, one can only wonder why.]

CZAJKA: Okay. Do you need time to review that before you resume your cross¬ examination, Mr. Gray?

GRAY: No, sir. I would like to resume my cross-examination with the officer, if I may, Your Honor, and we are referring to August 7th. [So, Gray rejects an adjournment in order to study the medical exam. It may have made sense for Gray to finish up cross-examining Bates before any adjournment, but he certainly should have asked or an adjournment before the next witness - - the boy himself - - was called. Gray fails to do so then, or any other time. Thus he never has a chance to really examine the medical report, which would actually require a great deal of time because it was extremely hard to read, given that it was in a doctor’s handwriting and had been faxed over.]

BATES: Okay.

GRAY: That's the question did you have occasion to meet with someone?

CZAJKA: August 7th, August 7th the date of the search warrant that you executed or August 7th the day you seized that property?

BATES: Yes.

CZAJKA: Okay. It was the 18th that you went with the boy to Grand Jury?

GRAY: Yes.

BATES: Yes.

CZAJKA: Anyway, the question was -- what was the question?

GRAY: Did there come a time on August 7th, when you arrived at the residence of Jeff Nickel?

BATES: Yes.

GRAY: And when you arrived there, what if any person did you first come upon?

BATES: A lady who I believed to be Jeff's mother, during the initial contact.

GRAY: All right. And she was at the residence on that day, and made the initial meeting with you?

BATES: Yes.

GRAY: Now, how did you gain her attention? Did you ring the bell, knock on the door or was she out on the lawn or what?

BATES: I either rang the doorbell or knocked on the door, I don't remember. I remember going to the front door and knocking or ringing the doorbell.

GRAY: Were either you or your partner in a uniform that day or in civilian clothes?

BATES: Civilian clothes.

GRAY: And the vehicle that you used to go there, was that marked with any emblazonment on it identifying it as a Sheriff's Department car or was it what we might call an unmarked car?

BATES: Unmarked car. [Therefore, everything was designed to conceal the fact that they were, in fact, police.]

GRAY: So that when you approached and did you approach Mrs. Nickel on that day?

BATES: Yes.

GRAY: You and your partner -- and who was that partner?

BATES: Investigator Thompson.

GRAY: All right. Now, if her recollection as far as time, was near or early afternoon would you disagree with that?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Now when you approached Mrs. Nickel, was that the first you had seen her?

BATES: I believe so.

GRAY: Now, members of your department had been there before though, hadn't they?

BATES: Correct.

GRAY: As a matter of fact, they made a couple of visits there before this August 7th, didn't they?

BATES: Yes.

GRAY: And do you know who was involved a couple of days before in going to that residence?

BATES: Yes.

GRAY: What was that person's name?

BATES: Investigator Montaleone.

GRAY: Was Investigator Montaleone -- do you know whether or not he spoke with Mrs. Nickel?

BATES: I believe he did.

GRAY: And was there not a plan or a scheme devised by your department, a few days before the 7th, wherein Investigator Montaleone would go to the Nickel residence, and pretend to inquire about a vehicle and photograph an accident?

TORNCELLO: Objection, relevance.

CZAJKA: When you make an objection don't give me a reason unless I ask for it. Let's start over.

GRAY: You were aware of that, weren't you?

BATES: Yes.

GRAY: And there was no accident, that was a complete fiction, wasn't it? There was no accident. It was a complete fiction?

BATES: Correct.

GRAY: And this was a few days before the 7th that Montaleone went there, and what kind of an inquiry was he making, if you1re aware?

TORNCELLO: Objection.

CZAJKA: Sustained. You weren't present with this other investigator, when he went?

BATES: No.

GRAY: Did you go back a second time?

BATES: I believe so, yes.

GRAY: Again under this pretext of some V&T accident that never occurred?

TORNCELLO: Objection.

CZAJKA: What's the source of your information about this?

BATES: Well, as far as I know, it wasn't a plan.

CZAJKA: Whatever it was, what was the source of your information, with respect to Investigator Montaleone?

BATES: It came from Investigator Montaleone himself.

CZAJKA: He told you this?

BATES: Yes.

CZAJKA: So you weren't -- did you not watch it happen? You didn't listen to it?

BATES: Correct.

CZAJKA: Sustained.

GRAY: To your knowledge, did Investigator -- if you know, did Investigator Montaleone tell Ms. Nickel, that a car believed to belong to Jeffrey had been in an accident at one of the Shopping centers in Delmar?

TORNCELLO: Objection.

CZAJKA: If you know? Just so I understand, were you with Investigator Montaleone at any time that he spoke with the defendant's mother?

BATES: No. [This is false; he knew he would be arresting Nickel. And it contradicts what he said just a few lines earlier, when Gray asked: “When you went there on the afternoon of the 7th, there was no doubt in your mind when you went there, but that you were going to arrest Mr. Nickel?”, Bates answered, “Yes.”]

CZAJKA: All right. Objection sustained.

GRAY: Now, you know that this was a falsehood don't you?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Were you aware that Mr. Nickel, had been under some serious investigation, prior to your arrival on the 7th?

BATES: No.

CZAJKA: Well, Investigator, you find out on the 3rd, that this guy is doing something with kids; he wasn't under investigation?

BATES: I misunderstood the question.

CZAJKA: All right. Read it back.

(The preceding question was read back.)

CZAJKA: Go ahead.

BATES: Yes I'm sorry, I thought you were referring to the accident here. I'm sorry.

GRAY: And would it be fair to certainly describe him as a suspect before the 7th, wouldn't it?

BATES: Yes.

GRAY: When you went there on the afternoon of the 7th, there was no doubt in your mind when you went there, but that you were going to arrest Mr. Nickel, was there?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Had there been a discussion within your department, as to when you were going to arrest Mr. Nickel?

TORNCELLO: Objection.

CZAJKA: Well, to the extent that may be relevant for a determination as to what a person, a reasonable person, innocent of any crime may have believed, at that time of the statement that was allegedly made by the defendant, and the investigator's actions with respect to that issue, I will allow it.

BATES: Yes.

GRAY: And that discussion about arresting Mr. Nickel, involved what? What was that discussion?

TORNCEILO: Objection.

CZAJKA: I don't understand, a discussion between the Investigator and some third police officer?

GRAY: No, no, within their own department, Your Honor. I was trying to inquire as to --

CZAJKA: Rephrase the question, if you would.

GRAY: All right. When you went to Jeffrey Nickel's house on the 7th of August, he was a suspect, and you knew you were going to arrest him, isn't that a fact?

TORNCELLO: Objection.

CZAJKA: Well, it's two questions.

GRAY: I'm sorry for the compound question. When you went to Jeffrey Nickel's house on the 7th of August, you knew, did you not, you were going to be arresting Jeff Nickel?

BATES: No.

GRAY: When you arrived at Jeffrey Nickel's --

CZAJKA: Investigator, whether you did it that day or some other day, whether it was going to be done by you, or someone else in your Department, he was going to be arrested one way or the other, right?

BATES: That was our goal, yes.

CZAJKA: All right.

GRAY: So that when you arrived at his house the fact that you didn't handcuff him at that moment, had no bearing on the fact that as to whether you were or were not going to arrest him, did it?

CZAJKA: I don't understand what you mean.

GRAY: Well, I believe he testified, Your Honor, that he followed this officer, in his vehicle, down to their station, and --

CZAJKA: You started to say -- explain what it was that you're getting at?

GRAY: Lack of use of handcuffs at the time that you arrive at the Nickel residence, was not because he was not going to be, strike that. I'll strike that question, Your Honor.

CZAJKA: All right.

GRAY: Mr. Nickel was going to be arrested by you and another officer to your facility, one way or the other, was he not, when --- when you arrived there on August 7th?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did you officer, or your partner, identify yourselves to Mrs. Nickel, the defendant's mother, as people from [the group home where ["A"] lived?

BATES: No.

GRAY: Did you ask her or tell her that you wanted to speak with Jeffrey?

BATES: Yes.

GRAY: And of course you did want to speak with him, didn't you?

BATES: Yes.

GRAY: You also were going to arrest him, weren't you?

BATES: There was a very good potential. [First Bates says yes, then no, then yes again, and now, that it “was a very good potential.”]

TORNCELLO: Objection, because I want him to clarify. They were there twice, one time, I think, to invite him back to here, and then another time, later on.

CZAJKA: Your objection is as to time and place or?

TORNCELLO: As to form would be my objection. I just want to know when he's talking about.

GRAY: I am talking about

CZAJKA: The 7th?

GRAY: Early afternoon of the 7th, Your Honor, he's right, that was the time he returned to the home.

CZAJKA: On the same day you went there twice the same day?

BATES: Yes,

CZAJKA: You are talking about the first trip?

GRAY: The first trip, yes, sir. All of these questions deal with the first trip. Did you understand that to be what I was speaking about?

BATES: Yes.

GRAY: Did you indicate to Mr. Nickel -- there came a time that you met Mr. Nickel, did there not?

BATES: Yes.

GRAY: On the 7th again on this first visit to his house by you?

BATES: Yes.

GRAY: And did you indicate to him that you wanted to discuss with him, this slapping incident?

BATES: Yes.

GRAY: And this slapping incident involved one ["A"], did it not?

BATES: Yes.

GRAY: Now, Mr. Nickel was not accused of slapping ["A"] though, was he?

BATES: No.

GRAY: But it was someone else?

BATES: Correct.

GRAY: And Mr. Nickel would have been a witness to that?

BATES: Yes.

GRAY: So you asked him to come with you to the station, to discuss that, did you not?

BATES: Yes.

GRAY: Or you asked him to go with you to discuss that?

BATES: Yes.

GRAY: So would it be proper to conclude as Mr. Nickel I believe you said he drove his vehicle behind your vehicle down here to the Courthouse building?

BATES: Yes.

GRAY: And would it not have been reasonable for him to believe at that time, that he was coming to the Courthouse building, to discuss that slapping incident?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Now, did you say that his arm was in a cast at that time?

BATES: Yes.

GRAY: So you would not have been able to secure a handcuff around the arm or hand that the cast was on?

BATES: Correct.

GRAY: Now, when you got here to this building, the Courthouse, the building on the corner of Columbia and Eagle Streets in the City of Albany on the 7th of August, 2000; what time did you arrive?

BATES: We came directly down here from 36 Lansing Drive and again it was, late in the afternoon, late in the afternoon, being four, 4:30, somewhere in that area. [This is false - - it was actually around 2:30 - - see above.]

GRAY: What makes you remember that?

BATES: That's just what -- late afternoon, late afternoon, nothing in particular makes me remember it.

GRAY: So if he arrives here at four o'clock, he arrives here at four o'clock. Okay. What does it take, a half hour down here from Delmar from his house?

BATES: A half hour or less.

GRAY: Assuming you move a little bit slower if you've got somebody following you. He didn’t know where he was going except to be following your vehicle?

BATES: Correct.

GRAY: And has it been your experience when people are following you when you're leading the way it takes longer than it ordinarily would take if you're just driving yourself?

BATES: It could.

GRAY: Yes. So, if you left there let's say around 3:30, and by there I'm referring to Lansing Drive in Delmar, you would have arrived at the home sometime prior to that, wouldn't you?

BATES: Yes.

GRAY: You would have had the conversation with the mother because Jeff wasn't physically on the scene when you first arrived, was he?

BATES: Right.

GRAY: Did you inform the mother that it was about slapping a student at [ ]?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Do you when you are out in your unit

CZAJKA: Excuse me for a minute. Was any of your conversation with the defendant's mother, in the presence of the defendant?

BATES: I don't think so.

CZAJKA: Then I'm losing my mind; did you inform her about the slapping business?

BATES: No.

CZAJKA: All right. Go ahead.

GRAY: Now, when you go down to this building, the courthouse building, the Sheriff's Department, has an office here, several offices in this building, don't they?

BATES: Yes.

GRAY: And some are emblazoned, I would take it, or identified by remarks on it of the Albany County Sheriff or such a fashion as to identify who was inside that office?

BATES: Correct.

GRAY: Now the office to which you lead Mr. Nickel, that you described as the chiefs’ office, that does not have any emblazonment on the door, does it?

BATES: Not the exterior door, no. [Or, in fact any door. Again, there was still nothing to indicate that these were police.]

GRAY: So if any of us were to walk through that door and open that door up, we would not know that we were going through that or that we were in the chief's office by markings on the door?

BATES: Not that door, no.

GRAY: And the chief is -- was the chief there that day?

BATES: Yes.

GRAY: Was he dressed in civilian clothes like you and your partner?

BATES: He commonly is, but I don't remember, sometimes he does wear a uniform.

GRAY: Apparently he's in civilian clothes here today?

TORNCELLO: When you say chief, I believe I think it is Chief Apel, he's here.

CZAJKA: That's who you’re talking about?

GRAY: He's here today in civilian clothes, wasn't he?

BATES: Yes.

GRAY: And I assume you have secretaries or personnel ladies or something that work or?

BATES: Yes.

GRAY: And men secretaries, whatever the case may be, and they're in civilian clothes, are they not?

BATES: Yes.

GRAY: So it takes on the demeanor and the appearance of something of a business office, does it?

BATES: It could, yes.

GRAY: Now, you did not advise Mr. Nickel of any Miranda warnings, did you?

TORNCELLO: Objection.

CZAJKA: Why?

TORNCEI.ID: Relevance. This is just -- we never talked about a statement. We never talked about anything with this witness and it’s outside the scope.

CZAJKA: Overruled.

BATES: No.

CZAJKA: I mean the fact that there's no jury here does not mean that the defendant doesn't have an opportunity to contest the voluntariness of the statement. He still does. He still gets two bites at the apple. Overruled.

GRAY: I believe you indicated that you were in and out of that room, much of the time, weren't you?

BATES: Yes.

GRAY: Now, if we were talking about four, taking your figure, we are talking about four o'clock?

CZAJKA: I think the witness said between four and 4:30, if I remember correctly.

GRAY: Within that time frame, your estimate as to what the time was, to your knowledge, when does Mr. Nickel leave that office?

BATES: Between 8 and 8:30.

GRAY: And then is he instructed to follow you back to the Delmar residence?

BATES: Yes, follow or meet. I believe it was follow.

GRAY: He did that?

BATES: Yes.

GRAY: Now during this period of time, from four or 4:30 to 8 or 8:30, Mr. Nickel has been continually in the presence of some officer of your department.

BATES: Yes.

GRAY: Now, I assume at Lansing Drive no one did or no one advised him of any rights while you were still there before you left to come down, did you?

BATES: No.

GRAY: Since you didn't drive down together, can we assume that no one advised him of his rights as you respectively motored to this building?

BATES: Yes.

GRAY: Now, after Mrs. Nickel introduced you to Jeffrey or the two of you met one another, and you tell him this is about that you want to talk to him about this slapping incident, that was a slapping incident of ["A"], wasn't it?

BATES: Yes.

GRAY: What if anything did he say to you?

TORNCELLO: Objection.

CZAJKA: Sustained.

TORNCELLO: Wait, wait what was the question? What did the defendant say to him?

CZAJKA: Yes.

TORNCELLO: Withdraw.

CZAJKA: Answer the question.

BATES: Repeat the question.

(The preceding question was read back.)

GRAY: What if anything did the defendant say to you before -- after you talked to him or broached the subject of the slapping incident?

BATES: He acknowledged that he know ["A"], and he was aware of the slapping incident. He mentioned something about a weather man.

GRAY: A what?

BATES: A weather man, that he didn't physically slap ["A"].

GRAY: When you said aware of a slapping incident, aware that a report had been made of one or that one actually happened?

BATES: I don't recall or if it went to that much detail at that particular time.

GRAY: All right. Had you satisfied yourself at that point, when you asked him about this, had you already satisfied yourself that no such incident had happened?

BATES: I wasn't sure if the incident had happened or not, to be honest.

GRAY: And that reason for your confusion was because ["A"], recanted that?

TORNCELLO: Objection.

CZAJKA: What confusion?

GRAY: Confusion about whether the slapping incident, did or did not ever occur?

CZAJKA: Sustained.

GRAY: Now, were you ever present in the room when any Miranda warnings were ever given, to Mr. Nickel?

BATES: No.

GRAY: When Mr. Nickel arrived here, at your office, did you enter the office with him?

BATES: I believe so, yes.

GRAY: All right. Could we safely assume that someone should have started some conversation with Mr. Nickel when he arrived at the office?

BATES: Yes.

GRAY: Who started a conversation with Mr. Nickel?

BATES: It would have been Senior Investigator Mark DeFrancesco in the office.

GRAY: All right. Could we assume then if he told Mr. Nickel he was coming down to discuss this alleged slapping incident, that he would have begun with that?

TORNCELLO: Objection.

CZAJKA: Sustained as to form.

GRAY: What if anything did you hear the Investigator say with respect to this slap?

TORNCELLO: Objection.

CZAJKA: Overruled.

BATES: I don't remember anything about that topic initially.

GRAY: Well, what did you hear him say to him?

TORNCELLO: Objection.

CZAJKA: Overruled.

BATES: I left shortly right after he went in, I didn't go over to listen to the conversation, the desk is maybe fifteen feet roughly, inside that door. I really wasn't listening.

GRAY: An investigation that you had been on since the 3rd of August, realizing a suspect was going to be interviewed that was the purpose of bringing him down, wasn't it, or having him come down?

BATES: Yes.

GRAY: You didn't remain to hear any of that interview?

BATES: No.

GRAY: Besides the officer who allegedly conducted the interview, were any other officers listening to it, to your knowledge?

BATES: Not to my knowledge, no.

GRAY: Now again, in your chief's office here, these interviews, are they recorded?

BATES: No.

GRAY: Are they video taped?

BATES: No.

GRAY: Would it be fair to say then that the only information we have, with respect to whether or not Miranda warnings were ever given, would be through this other investigator, is that correct?

BATES: As far as I know.

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Were you aware that questioning was going on of Mr. Nickel?

BATES: Yes.

GRAY: Was there -- were you aware of any questioning, of Mr. Nickel, about the alleged slapping incident?

BATES: No, not that I can remember.

GRAY: Did there come a time during the course of Mr. Nickel's presence in your office, that handcuffs were brought in and thrown on the desk in front of him?

BATES: Not that I know of. [Baloney. He did this himself.]

GRAY: Were you present during this interview, or strike that. In your presence did you hear anyone say to Mr. Nickel, these are only misdemeanors, let's get out of here and you would be going home?

TORNCELLO: Objection.

CZAJKA: Overruled.

BATES: No.

GRAY: Were you present or did you hear anyone say that gee, your mother might suffer a stroke if you don't go ahead, and tell us something?

TORNCELLO: Objection.

CZAJKA: Overruled.

BATES: No.

GRAY: Now, I think you talked about an instrument that you called a consent to search; now you were, I believe, it was your testimony, if I recall it correctly, Mr. Bates, that talked with Mr. Nickel, about a -- what you commonly call a consent search, is that correct?

BATES: Correct.

GRAY: Now, did you hear or were you present and did hear Mr. Nickel ask for an attorney?

BATES: No.

GRAY: Was he ever permitted, to your knowledge, to call an attorney?

BATES: No.

GRAY: When you spoke to Mr. Nickel about a search and seizure waiver, did you advise him, you know, in words or substance, look, if you would like the advice of counsel, you’re free to call or, call one before you sign it?

BATES: I wasn't present during this signing and reading of the search and seizure waiver.

GRAY: I'm sorry sir, I didn't realize that. Well, I have no further questions. There's no information you would have about this document other

BATES: Other than being familiar with the document. It's a standard document in our department. I understand having seen it afterward, but it would be after the fact. Yes.

GRAY: Okay. Now, Mr. Bates I think you told us that beside these several visits that you had with ["A"'], you were also present when another child was interviewed?

BATES: Yes.

GRAY: Do you recall who that other child was?

BATES: After ["A"], [alleged victim "C"].

GRAY: All right. Now, is [alleged victim "C"] the boy from [ ], is he?

BATES: He may be, I'm not positive. I'm not sure of his address.

GRAY: But you were present during that conversation between your partner and [alleged victim "C"]?

BATES: Yes.

GRAY: Is it not a fact that during that interview [alleged victim "C"] told you that there was no sexual abuse? Isn't this a factor --

TORNCELLO: Objection.

CZAJKA: Overruled.

BATES: He may have, I don't have the affidavit or statement to refresh my memory on it.

GRAY: But you don't deny that?

BATES: No. [This is interesting because later in the trial, when alleged victim actually testifies, he in fact does not say anything about any sexual abuse, resulting in that count being dismissed.]

GRAY: Was this interview of [alleged victim "C"], recorded, televised or in any manner preserved so that we can review it or look at it today?

BATES: No.

CZAJKA: Somebody took notes?

BATES: Yes, I thought he meant video tape.

CZAJKA: Electronically recorded in any way?

BATES: No.

GRAY: But again those notes, never reflected what questions were asked, did they?

BATES: They may not have, no.

GRAY: May I have just a moment please, Your Honor? Now with respect to this [alleged victim "C"], was Mr. Nickel's contact with him according to your interview, done in class? Was that the relationship?

BATES: Yes, it was a summer classroom camp type of thing at --

GRAY: And other children were always present?

BATES: They are other children, yes.

GRAY: And other teachers and assistants also present?

BATES: I believe so.

GRAY: And this [alleged victim "C"] that indicated to you he never or to you and your partner he never wanted Mr. Nickel to get in any trouble?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did he say that to you in your interview?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did [alleged victim "C"] tell you that in that interview –

TORNCELLO: Objection.

CZAJKA: Let him finish the question.

GRAY: By the way, do you know the date of that interview?

BATES: After August 7th, possibly August 14th, I don't recall off the top of my head without looking at it.

GRAY: May I? I'll just ask you to look at the top of these notes if you don't mind? I'll mark it first for identification. If that refreshes your recollection, would you look at the top?

BATES: August 16th?

GRAY: Where did this interview take place?

BATES: At our patrol station in Voorheesville.

GRAY: And again just you two officers there?

BATES: Yes.

GRAY: Was there any medical examination of [alleged victim "C”] to your knowledge?

BATES: No.

GRAY: Did you interview [alleged victim "C"] after that date of August 16th?

BATES: Did I interview him again after that?

GRAY: Yes, sir?

BATES: Not that I can remember, no. [This is interesting, because Bates said that he “would have done that” with regard to [“A”].]

GRAY: Were you here when he was present to testify before the Grand Jury?

BATES: Yes.

GRAY: Was that on the 18th, two days later?

BATES: Yes.

GRAY: Did you interview [alleged victim "C"] that day in preparation for his Grand Jury testimony?

BATES: No.

GRAY: Before you interviewed [alleged victim "C"], officer, did you make any sort of background check as far as his reliability or unreliability might be concerned?

BATES: No, not that I can remember.

GRAY: Now, did [alleged victim "C"] during this interview, indicate to you that he would get "whacked" on, to get started to --

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did this interview with [alleged victim "C") develop, that any relationship or exposure of Mr. Nickel and Mr. -- and [alleged victim "C"], would have been with other people present?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Just a short bit more Mr. Bates. You agree that your arrival at the Nickel's residence, on August the 7th, the first arrival there, in the afternoon hours that you previously described, in establishing that time, you're not relying on any notes, are you?

BATES: Correct.

GRAY: And you're talking about an event which was almost a year ago, are you not?

BATES: Correct.

GRAY: Could you state with absolute certainty, that it would not have been, could not have been, 2:30 that you arrived there?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Your estimate of your time of arrival is just that, isn't it? An estimate, I guess, if you will?

TORNCELLO: Objection.

CZAJKA: Well, is it an estimate?

BATES: Yes.

GRAY: Thank you. No further questions.

TORNCELLO: Just a couple of questions, Mr. Bates. You talked about when you first arrived at the 46 Lansing Drive, and there was some conversation about a slapping incident with the defendant, right?

BATES: Right.

TORNCELLO: Do you recall who initiated the term "slapping incident", or who talked about it?

BATES: Mr. Nickel initiated that. [That’s false. Nickel never said “slapping” etc.; he said he thought he knew what it was about; Bates said slapping/hitting incident.]

TORNCELLO: So, is it fair to say that you didn't say you're coming with us about the slapping incident?

GRAY: Objection, he's leading the witness. [Czajka simply ignores Gray’s objection.]

TORNCELLO: What did he say?

BATES: He mentioned to him there was a complaint made against him concerning a child, stemming from [the group home]. [Bates is contradicting himself again; he earlier testified that the complaint was not against Nickel, but rather, that he was merely a witness.]

TORNCELLO: Okay.

BATES: Stemming from [the group home], he responded this must be the incident where ["A"] got slapped and he began to build on that, he said yes, that's what it is – [This is false. Because Nickel knew that [“A”] never was slapped, he certainly did not say that “[“A”] got slapped.”]

TORNCELLO: Did you know about a slapping incident, before you arrived, at Jeff Nickel's house?

BATES: I believe so, I think I did know about that.

TORNCELLO: Okay. Now, when you arrived down here that afternoon, into this building?

BATES: Right.

TORNCELLO: You said you went to the chief's office, right?

BATES: Right.

TORNCELLO: Were the secretaries present when you arrived?

BATES: No.

TORNCELLO: Did you have any idea what time they usually leave in the afternoon?

BATES: I believe they leave, 4:30, four, five, some I believe work eight to four, some nine to five.

TORNCELLO: So they weren't here when you arrived; it was after the secretaries anyway had gone home?

BATES: Right. [In fact, there were no secretaries there when Nickel arrived at around 2:30.]

TORNCELLO: Okay. Thanks. Now, over the course of your investigation, you had a chance to meet ["A"], right?

BATES: Yes, right.

TORNCELLO: Have you also had the chance or the opportunity to look at the photos of ["A"]?

BATES: Yes.

TORNCELLO: Have you had the opportunity to meet Jeff Nickel?

BATES: Yes.

TORNCELLO: Have you also had the opportunity to see photographs of Jeffrey Nickel?

BATES: Yes.

TORNCELLO: Now as with that, with that in mind, I would like to show you People's number five for identification, have you seen that image of that photograph before?

BATES: Yes.

TORNCELLO: Where have you seen that image?

BATES: First the Colonie Police down here, Colonie Police, I've seen them during the interview with myself and Dumas.

TORNCELLO: Do you recognize any of the individuals, in that image?

BATES: Yes.

TORNCELLO: Who did you recognize?

BATES: I recognize [“A”] and Jeffrey Nickel. [Nonesense. See above and Photograph.]

TORNCELLO: Okay. Now, you first saw that on the computer with Investigator Tanski, right?

BATES: Right.

TORNCELLO: That that’s a printout, right?

BATES: Right.

TORNCELLO: Does that printout fairly and accurately represent what you initially saw on the computer, with Investigator Tanski?

BATES: Yes. [Therefore, no one can claim that the eye color mismatch is some sort of artifact of the way that photo printed out. See Photograph.]

TORNCELLO: I would like to offer People’s number five.

GRAY: Objection.

CZAJKA: What’s the basis of your objection, Mr. Gray?

GRAY: That it’s being offered, Your Honor, for this witness to make an identification of certain people. And I think that’s a question of fact really for this court to determine, not this witness.

CZAJKA: Sounds like your roles are reversed. Didn’t you tell me the other day Mr. Gray, he couldn’t call a witness for that purpose, whether this is admissible?

GRAY: Well, I don’t think, I would respectfully suggest, your Honor, that this witness not pretend to be an expert in this field of identification.

CZAJKA: Of course not. Anyway, as to the admissibility of the evidence, what did you wish to –what’s your position?

GRAY: That it not be admitted into evidence.

CZAJKA: That reason being?

GRAY: As I stated, because of the identification issue.

CZAJKA: All right. The objection is overruled.

(Whereupon, People's Exhibit “5" was received in evidence.)

TORNCEILO: Nothing further. Thank you.

CZAJKA: Any recross Mr. Gray?

GRAY: Yes, sir. Have you now looked at People's “5" that's been marked in evidence Officer Bates, and this is the same depiction of a picture, that you saw in the Colonie Police Station, which you initiated it being pulled as identifying the defendant, and ["A"], is it not?

BATES: (No response.)

GRAY: This is one and the same photograph?

CZAJKA: I don't know what you mean by being pulled?

GRAY: Selected out of all of the photographs that you viewed?

CZAJKA: To be printed?

GRAY: Yes, sir.

CZAJKA: You directed the investigator from Colonie to print this?

BATES: Yes.

CZAJKA: Or asked him anyway. You caused him to push the print button?

BATES: Yes, I did.

GRAY: That was because not of what ["A"] told you at that time, not what the defendant told you at that time, or not what anyone else told you at that time, it was your own singular decision?

BATES: Correct.

GRAY: Based on your opinion, that that picture depicted the defendant, isn't that correct?

BATES: Yes.

GRAY: No that picture that you are looking at, number five, does it show but a profile, of the defendant?

BATES: I'm sorry, does it show?

GRAY: But a profile, not a full face, is it?

BATES: Correct.

GRAY: It would be one side of the face?

BATES: Correct.

GRAY: When you pulled that off the computer did you ask this Tanski how long can something like that be on the computer? Can you tell the age of that or did you ask him anything like that?

BATES: No.

GRAY: Ask him whether or not there would be any way he or any other photographic expert could tell, whether this had been circulated around for years and years or was brand new?

BATES: No, I didn't ask that. [Why? Because Bates already has ‘the answer’ and is not interested in any information that might challenge it.]

GRAY: I think you said that one of the items marked for identification here was a 35 millimeter camera; did you ever check to see if that camera, were capable of taking that picture?

BATES: No. [Again, Bates is not interested in obtaining any information which might call his conclusion into question.]

GRAY: Did you ever make any determination, you or through Tanski, whether that image, was initially created on the computer or was one brought into that computer from some other system?

TORNCELLO: Objection as to form. I just don't understand it.

CZAJKA: I don t know either. Rephrase the question Mr. Gray. Read it back.

(The preceding question was read back.)

CZAJKA: Having had it read back, do you understand the question, do you?

TORNCELLO: I think I do, yes I think so. Go ahead.

CZAJKA: Do you understand the question?

BATES: I don't believe I understand it.

CZAJKA: Actually, it's two questions. Do you know if -- that -- if that came from that computer originally or some other computer?

BATES: It was retrieved directly from that computer. [It was allegedly retrieved from a ZIP disk.]

CZAJKA: I mean was it originally produced on that computer?

BATES: Oh, I don't know where it was originally produced.

GRAY: May I see that? For the purpose of identification you did -- People's five now in evidence, with respect to the individual that you identified as Jeff Nickel in that photograph, were you able to do so by the color of the eyes?

BATES: No.

GRAY: What color are the eyes in that photograph?

BATES: Of Jeffrey Nickel?

GRAY: Yes, sir?

BATES: I don't recall.

GRAY: Well, were they open or closed?

BATES: I don't remember.

GRAY: With respect to the hair line of the individual depicted, the adult individual depicted, in People's "5", did you make any examination of the hair line?

BATES: Did I make any examination of it, no.

GRAY: All right. Well, when you pulled this photograph, were there any bed clothing or anything like that shown in the photograph?

BATES: Clothing?

GRAY: I mean like, sheets or?

BATES: Sheets, yes.

GRAY: All right. And you conducted a search of Jeff Nickel's house, didn't you?

BATES: Yes.

GRAY: Did you see a sheet like that in his house?

BATES: No.

GRAY: Anything on the wall in that picture that would have told you that was Jeffrey Nickel's house?

BATES: No.

GRAY: What were the color of the walls?

BATES: In the picture or?

GRAY: In the picture?

BATES: I believe it was light blue. [Yes, that is indeed the color of the walls in that photo, as opposed to the color of the walls in Nickel’s actual bedroom (off-white). But interestingly, [“A”] says that the color of the walls in Nickel’s bedroom is blue, matching the photo.]

GRAY: Now, you obviously would have asked ["A"] about the color of the walls in the room in which the picture was taken, wouldn't you?

BATES: Yes.

GRAY: And he told you blue also, didn't he?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: You have been in Jeffrey Nickel's bedroom, haven't you?

BATES: No.

GRAY: Other members of your department have, right?

BATES: Right.

GRAY: In the course of your investigation, did you ask the other members of the department what are the colors of the walls in his bedroom?

BATES: Yes.

GRAY: What did they tell you?

BATES: It wasn't blue. I believe it may have been off-white or something to that effect.

GRAY: In reviewing this picture number five in evidence, it only shows the extreme right portion of the male torso, isn't that correct?

BATES: Yes.

GRAY: Did you examine the hair pattern on that photograph with any hair pattern on Mr. Nickel?

BATES: No. [So then, what is Bates purported ‘identification’ of the people in the photo based on?]

GRAY: Did anyone to your knowledge?

BATES: Not to my knowledge.

GRAY: During the course of your investigation, did you ever ask Mr. Nickel, to strip to the waist or to pose so that you can make an observation?

BATES: No.

GRAY: Before August 3rd of 2000, had you ever met Mr. Nickel to your knowledge?

BATES: No.

GRAY: Was your first encounter with Mr. Nickel on the 7th of August?

BATES: Yes.

GRAY: Even during that period of time that is the time that all this time that he was at your station here or your office, you were in and out not really there when the -- when he was talking to the other officers, isn't that a fact?

BATES: Yes.

GRAY: Did you say you also identified the boy in this picture as ["A"]?

BATES: Yes.

GRAY: And what color are the eyes of the boy in this picture?

TORNCELLO: Objection, show him the picture.

CZAJKA: I sustained the objection. The exhibit speaks for itself.

GRAY: May I be permitted to ask him what the exhibit shows, Your Honor?

CZAJKA: Testing?

GRAY: Yes.

CZAJKA: I'll allow it for that reason, yes.

BATES: And you asked me?

GRAY: The color of his eyes in the picture?

BATES: I believe blue. [Bates just looked at that photo, which clearly shows the boy’s eyes to be brown. And still, Bates claims the photo boy has blue eyes, which would - - were it true - - match [“A”]’s actual eye color.]

GRAY: What color are his eyes?

BATES: I'm not sure. [Well, how could Bates ever have been able to confirm - - even for himself - - that it was in fact [“A”] in that photo without even being sure of that?]

CZAJKA: The eyes?

GRAY: Yes, sir.

BATES: I'm not sure.

GRAY: I believe the photo in evidence number five also shows what I would call like a pillow, do you recall that in the photograph?

BATES: Yes.

GRAY: And was it multi-colored?

BATES: I believe so.

GRAY: And did you check in your search of the residence of Jeff Nickel, did you check for any multi-color pillow?

BATES: Not specifically, we didn't have that picture until after we were searching his house. We didn't specifically search for a pillow to fit that picture.

GRAY: At any time prior to any search warrant, did you go back or at any time check to see if there was anything like that there?

BATES: No. [Again, Bates and the police have absolutely no interest in finding any evidence which might contradict their hypothesis.]

GRAY: Nothing further. Thank you. Could I just have one moment judge? Thank you, Your Honor. No further questions.

TORNCELLO: May I? Okay. I want to go back a 1ittIe while. The People have no more questions.

CZAJKA: Call your next witness. Step down Investigator.

(Whereupon, the witness was excused.)

GRAY: May we approach please, Your Honor?

(Side bar)

GRAY: As the Court is aware, sometime during the examination of Mr. Bates, it was learned that a medical examination was run on ["A"]. And again, during that period --

CZAJKA: Step back so we can talk. Start again Mr. Gray please?

GRAY: Yes, Your Honor. If it please the Court? Sometime during the examination of Mr. Bates, it was revealed that, to the defense for the first time, that there had been a medical examination of, a physical examination conducted of one ["A"]. And again, during that period of time, Mr. Torncello was kind enough to have a faxed copy of that report provided to me, with a copy, which I had a chance to do a review. Your Honor, it puts me in a bit of a problem with this, had I known of a medical examination, I probably would have requested one myself or I would have at the very least, at this very minute, been able to have a chance to digest some of the writings. As brief as this is in all honesty, I can make out some of the words.

CZAJKA: May I see it?

GRAY: Yes. There's present, the taking of several different kinds of drugs, one of the drugs, I remember is, one I'm only familiar with, I think they had a program on it maybe last night on television on how devastating this one particular drug was. In all honesty, I haven't prepared myself, medically enough to know. And there's some words there, that I'm going to have someone interpret for me and to be honest, I can't read them or properly interpret them. I'm not even sure that I can tell from that document what the conclusionary result is; I could guess at it, but I'm not positive.

CZAJKA: All right.

GRAY: If the prosecution, you know, this puts me, under the circumstances, in a bit of a -- a bit of a problem here, I would say.

CZAJKA: So what do you want me to do I should say?

GRAY: Well, at least I would like to have the opportunity to be able to decipher and know what the devil it says.

CZAJKA: Before you cross-examine the child?

GRAY: Yes, I think so. [Well, Gray in fact does not get any time to "decipher" the medical exam before ["A"] is - - without even a break - - the very next witness.]

CZAJKA: Mr. Torncello?

TORNCELLO: Yes?

CZAJKA: As I understand it, this was not a medical exam ordered by your department by any means, correct? [Wrong. Earlier, during Bates’ cross-examination, when Gray asks “Did you ever, Investigator Bates, ask for a medical examination of [“A”]?”, Bates answered: “Yes.” Czajka is simply making up testimony in order to help the prosecution get out from under the mess they put themselves in by failing to turn the results of the medical exam over to the defense in a timely manner.]

TORNCELLO: That's correct.

CZAJKA: Do you know -- do you know the circumstances in which the medical exam was requested?

TORNCELLO: I do not. I didn't know about the medical exam at all. I'm assuming, and I don't know, but that it was something that perhaps [the group home] does as a matter of course. [Torncello eagerly grabs the (false) lifeline which Czajka just threw him.]

CZAJKA: That would be my guess, but I mean do you have any information with respect to that?

TORNCELLO: I have a witness who is a social worker for [ ] that I intend to call today; she is right outside the door, if you want to?

CZAJKA: Bring her in, okay.

CZAJKA: Ms. [SW], do you know anything about a medical exam of ["A"], performed by a doctor, back in August of 2000?

SW: I know that he had an exam.

CZAJKA: Do you know who caused the exam to be conducted?

SW: It is routine at [ ] if allegations are made by a child, that the child is seen by a doctor.

CZAJKA: It's a decision by [the group home]'s personnel at [the group home]?

SW: Yes. [This directly contradicts Bates’ earlier testimony.]

CZAJKA: Any questions, Mr. Torncello, with respect to that limited issue?

TORNCELLO: I do not.

GRAY: No, sir.

CZAJKA: You can step out please.

(Whereupon, the witness was excused.)

CZAJKA: It's certainly not unreasonable for Mr. Gray to have an opportunity to review this, to prepare for cross-examination; however, I don't want to have to bring the child in and out of the Courthouse, so do either of you have any ideas?

TORNCELLO: The only thing I guess we can go forward, and –

CZAJKA: I think it would be hard for the child. I am not --

TORNCELLO: Subject to, I mean, maybe Mr. Gray will look at it and think there's no need to cross-examine him. I can have him always available to come back another day. Would you prefer -- would the Court prefer that I put him on for tomorrow? Would the Court prefer?

CZAJKA: I'm not going to try your case for you.

TORNCELLO: No, I don t care.

CZAJKA: And again, don't misunderstand me, I'm not making any determinations, as to whether or not there's any validity to the allegations or not, just keeping in mind that the witness is a child, would you prefer to call another witness at this time, rather than calling him now, only to have him called back again? I'll leave it up to you because Mr. Gray does have a valid concern, and legitimate request.

TORNCELLO: Here's my preference is to call him now, have direct and cross, and Mr. Gray can call --

CZAJKA: Do you want to talk to the social worker first before you decide?

TORNCELLO: Yes.

CZAJKA: I'm not directing you to, but I think it's a good idea.

TORNCELLO: I'll do that.

(Whereupon, a recess was had.)

TORNCELLO: Yes, I've spoken with [ ], social worker for ["A"], and it's her suggestion and my request, that we -- given the testimony today, get as much as we can today and if need be, if he has to come back tomorrow, and talk about some medical issues, he will be available and she would be available. [But this never happens. Gray never requests it.]

CZAJKA: Then that's what we will do, right? Make sense Mr. Gray? So that way you have an opportunity to consult with someone about the report? Make sense?

GRAY: Yes, Your Honor. I'm hoping that I will, as I say, my first problem with this document is one of unscrambling the written portion.

CZAJKA: I can't read much of it either. [Even Czajka acknowledges that this is largely illegible.]

GRAY: For example, I have heard of this one drug.

CZAJKA: You don't have to explain your request; I already said it’s a valid one. Bring the boy back.

CZAJKA: What's your name?

["A"]: ["A"]

CZAJKA: And how do you spell your first name?

["A"]: [ ]

CZAJKA: Is it [ ]?

["A"]: Yes.

CZAJKA: How do you spell that?

["A"]: [ ]

CZAJKA: Do you have a middle name?

["A"]: [ ]

CZAJKA: What do you want me to call you?

["A"]: [ ]

CZAJKA: And do you know who I am?

["A"]: The judge.

CZAJKA: All right. And that man behind me, he just asked you a question, what was that about?

["A"]: To tell the truth.

CZAJKA: All right. How old are you?

["A"]: Ten.

CZAJKA: And what day were you born?

["A"]: [ ]

CZAJKA: And where are you living now?

["A"]: With [ ].

CZAJKA: Okay. And how long have you been there?

["A"]: I have no clue.

CZAJKA: Okay. Is that the only place you remember living [ ]?

["A"]: And l.

CZAJKA: And where did you live on [ ]?

["A"]: [ ].

CZAJKA: Do you recall living any other places?

["A"]: No.

CZAJKA: Okay. And are you in school now?

["A"]: Yes.

CZAJKA: What grade?

["A"]: Fourth.

CZAJKA: And what subjects are you taking these days?

["A"]: Everything.

CZAJKA: Tell me what they are?

["A"]: Health, science, social studies, language and art, history.

CZAJKA: What is your favorite subject?

["A"]: History class.

CZAJKA: Yeah? What did you learn about in history class these days?

["A"]: The Civil War. [This is nonsensical. A book that covers all history subjects obviously would not be entitled “The Civil War.”]

CZAJKA: Do you have books on the Civil War?

["A"]: Yes. [Well, there is nothing to indicate he has read this, or anything else.]

CZAJKA: Or is it the same history book for all history subjects?

["A"]: All history subjects.

CZAJKA: That's the same book?

["A"]: Yes.

CZAJKA: What's the name of that book?

["A"]: The Civil War.

CZAJKA: Do you read it?

["A"]: Yes.

CZAJKA: How's your reading these days?

["A"]: Good.

CZAJKA: Good. Do you have other books you read as well?

["A"]: Yes.

CZAJKA: What are the names of those books?

["A"]: Harry Potter. [According to Investigator DeFrancesco’s deposition based on the first interview of [“A”] in August of 2000, [“A”] was asked if he could read and he said “No.” Therefore, at trial, which was less than ten months after that, [“A”] claims to have read “four or five” Harry Potter books totaling several thousand pages of rather challenging reading.]

CZAJKA: That sounds familiar. Which Harry Potter books have you read?

["A"]: Four or five. [This is non-responsive: Czajka asked which Potter books he’d read, not how many.]

CZAJKA: Yes. Tell me some of the characters that are in Harry Potter?

["A"]: Mr. Harry Potter, Mrs. -- the two kids, I forget, the cat, the cat's name. I forget his name. [It is simply unbelievable that, if indeed he had read these books, he would only be able to name the title character. Moreover, the one character he does name, a 12-year-old boy, does not have the title, “Mr.” (And the cat, whom he refers to as male, is, in fact, female.]

CZAJKA: How about do you recall any of the people's names at the school?

["A"]: School?

CZAJKA: What's the name of the school?

["A"]: The Academy.

CZAJKA: Harry Potter's, what's the name of the school in --

["A"]: The Brook(*) School. [He actually named his own school here; *name of school changed to protect identity.] [“The Academy” is incorrect - - the answer is “Hogwarts.” The Brook(*) School is actually the name of the school that [“A”] himself attended. But what is most revealing about this exchange is that when the same question is asked a second time, [“A”] changes his answer, in an obvious effort to tell his questioner what [“A”] thinks he wants to hear. One can only imagine how many times [“A”]’s answers to investigators’ questions changed before he finally provided the ‘right’ ones.]

CZAJKA: What are the names of the characters in that book, other than Harry Potter? Do you recall?

["A"]: No. [Contrast the above confused and incoherent answers to what the other two boys had to say about their reading habits:
"B"
CZAJKA: Good. How's your reading?
[“B”]: Great.
CZAJKA: Yes. Do you read any books?
[“B”]: Yes.
CZAJKA: What?
["B"]: "Everlasting," right now what I'm reading is “The Fix-Up Place of Frank Wyler," "The Fighting Grounds," and one other thing I don't remember.
"C"
CZAJKA: That's okay. How's your reading?
["C"]: Pretty good.
CZAJKA: Are you able to read pretty well?
["C"]: Uh-huh.
CZAJKA: Write pretty well? Say yes or no.
["C"]: Yes.
CZAJKA: Are you reading any books?
["C"]: In reading.
CZAJKA: What was -- what is your favorite book that you have read?
["C"]: The one like I'm reading in the classroom is “A Dog Called Kitty."
CZAJKA: Is that a good book?
["C"]: Yup.
CZAJKA: What's it about?
["C"]: It's a dog that a girl keeps, that a girl is afraid of, but then when she -- when they realize the dog is so kind and it's starving to death, that's when she is not afraid and she helbrs the dog.
CZAJKA: Okay.
["C"]: It keeps coming when the mother says, come kitties.
CZAJKA: The dog comes?
["C"]: Yes.
CZAJKA: That's a silly book!
["C"]: Yeah.]

CZAJKA: Okay. Who are your teachers?

["A"]: Laurie, Anne, and Mary. [Names changed for confidentiality.]

CZAJKA: You call them by their first names?

["A"]: Yes.

CZAJKA: Do they teach you all the subjects or does each have a special subject to teach?

["A"]: They all teach us one, they all teach us the one subject.

CZAJKA: At the same time?

[“A”]: Yes. [This doesn’t make any sense either. No elementary school has three teachers all teaching the same subject. Clearly, [“A”] did not understand this question either. But rather than say he didn’t understand it, he simply blurted out what he thought was the desired answer.]

CZAJKA: How are you doing in school?

["A"]: Good.

CZAJKA: What kind of grades are you getting?

[“A”]: All A plus. [In a letter written just two months later, [“A”]’s social worker claims that he “would rather sleep through school.” Something doesn’t gibe here.
Contrast the above “desired“ (but probably incorrect) answers with those provided by “B“:
CZAJKA: What are your grades?
[“B”]: Passing grades, I don't know exactly what they are.
CZAJKA: What's the last report card you got?
[“B”]: I got a 91 quarterly average.]

TORNCELLO: And where does your mom live?

["A"]: In [ ].

TORNCELLO: Do you see her times?

["A"]: Yes.

TORNCELLO: You see your mom and you visit her?

["A"]: Yes.

TORNCELLO: She visits you?

["A"]: Yes.

TORNCELLO: Okay. The Judge asked you about a school a little while ago, right?

["A"]: Yes.

TORNCELLO: How about sports, do you like sports?

["A"]: Yes.

TORNCELLO: And what kinds of sports did you play?

["A"]: Baseball.

TORNCELLO: You like baseball?

GRAY: Objection please, I am not sure I understand the purpose of these questions.

CZAJKA: Sustained.

TORNCELLO: Okay. ["A"]' did you use to live at [ ]?

["A"]: Right.

TORNCELLO: Is that what you told the Judge?

["A"]: Yes.

TORNCELLO: And can you tell us do you know a man by the name of Jeff Nickel?

["A"]: Yes.

TORNCELLO: Okay. And where did you meet Jeff Nickel?

["A"]: [ ]

TORNCELLO: And is [ ], is that [ ]?

["A"]: Yes.

TORNCELLO: And is that a home also?

["A"]: Yes.

TORNCELLO: Did you -- you lived there, right?

["A"]: Yes.

TORNCELLO: Okay. Do you recall when you met Jeff there?

["A"]: No.

TORNCELLO: You don't remember. So at some point in time I guess you went from [ ] and you moved to [ ]?

["A"]: Yes.

TORNCELLO: All right. And when you moved, did you still see Jeffrey Nickel?

["A"]: Yes.

TORNCELLO: Okay. Was he a worker at [ ]?

["A"]: No, he was a volunteer.

TORNCELLO: He was a volunteer -- was he specifically a volunteer for you or for all of the kids?

["A"]: All of the kids.

TORNCELLO: When you moved to [ ], was he a worker at [ ]?

["A"]: No.

TORNCELLO: Okay. What was his job at [ ]?

["A"]: To volunteer.

TORNCELLO: A volunteer a [ ], was he a volunteer for all the kids or just you?

["A"]: For just me.

TORNCELLO: Now, did you ever have a chance to go places with Jeffrey Nickel?

["A"]: Yes

CZAJKA: You already told me what would happen if you don't?

["A"]: Yes. [Czajka thereby refuses to ask any of the questions that Gray asked him to pose to the boy, thereby breaking his earlier promise.]

CZAJKA: Before I make a ruling do either of you wish to be heard? Mr. Torncello?

TORNCELLO: No.

CZAJKA: You indicated to me that you don't wish any further inquiry; you're satisfied, I take it?

TORNCELLO: Absolutely satisfied.

CZAJKA: Do you wish to be heard before I rule as to whether the child can testify under oath, Mr. Gray?

GRAY: Your Honor, I already presented my questions to the Court.

CZAJKA: You protected the record in that regard.

GRAY: I don't find anything further, Your Honor, except, no, sir. I don't find anything further, no.

CZAJKA: I find that the child, does understand the nature of the oath, the consequence of testifying falsely, and may testify under oath. You may proceed, Mr. Torncello. [Despite all of the above, Czajka finds [“A”] competent to testify under oath. Moreover, Czajka’s questions did not in any way address the child’s ability to accurately recollect and relate past events. Czajka’s questions only related to knowing, deliberately lying on the child’s part, which is not the problem here. Suggestibility is.]

TORNCELLO: Thank you, Your Honor. Good afternoon.

["A"]: Good afternoon.

TORNCELLO: How are you today ["A"]?

["A"]: Good.

TORNCELLO: I'm going to ask you some of the questions that the Judge just did, can I ask you how old you are?

["A"]: Yes.

TORNCELLO: How old are you?

["A"]: Ten.

TORNCELLO: And when's your birthday?

["A"]: [ ]

CZAJKA: Excuse me, so the record is clear with respect to those requests, that does not -- I'm not ruling prospectively with respect to any cross-examination on that issue.

GRAY: I understand that, Your Honor.

CZAJKA: Excuse me ["A"].

["A"]: Yes.

CZAJKA: Go ahead.

TORNCELLO: May I? Okay. You're ten, right?

["A"]: Yes.

TORNCELLO: And where do you live?

["A"]: A group residence.

TORNCELLO: And where is that group residence?

["A"]: [ ]

TORNCELLO: Okay. And that is here in Albany is it?

["A"]: Yes.

TORNCELLO: Do -- okay. Do you have any brothers or sisters?

["A"]: Yes.

TORNCELLO: Who do you have?

["A"]: Two brothers and two sisters.

TORNCELLO: Are they older brothers and sisters or younger?

[“A”]: One younger, and a younger sister and an older brother, and an older sister.

TORNCELLO: Okay. And do they live with you at the group residence?

["A"]: No.

TORNCELLO: They don't, right? How about mom, do you have a mom?

["A"]: Yes.

["A"]: Bad.

CZAJKA: Now, what would be the worst of these three lies?

["A"]: To tell the lie in the courtroom.

CZAJKA: What would be the next worse?

["A"]: To tell a lie to a teacher.

CZAJKA: The next?

["A"]: To tell a lie to your friends.

CZAJKA: Okay. What will happen to you if you tell a lie to your friends?

["A"]: He will not like you very much.

CZAJKA: What would happen if you tell a lie to your teacher?

["A"]: They would send you to the principal's office.

CZAJKA: What would happen if you tell a lie in this courtroom to this judge, me?

["A"]: They would send me to prison. [Actually, they would send Nickel to prison. In any event, if he truly believes he would be sent to prison - - which is obviously not the case - -how might that distort his testimony?]

CZAJKA: That's what you heard?

["A"]: (Nod nod).

CZAJKA: You have to say yes or no. Remember she has to get everything down.

["A"]: Yes.

CZAJKA: You say you go to church?

["A"]: Yes.

CZAJKA: What did you learn in church about lying?

["A"]: That it's not so good.

CZAJKA: Okay. Either or both of you wish or want me to inquire further? Mr. Torncello?

TORNCELLO: No thank you.

CZAJKA: Mr. Gray?

GRAY: Could I be allowed to inquire?

CZAJKA: Not with respect to this issue, but I'll ask any questions that you would like me to ask of the witness, if you want to. [Note that Czajka promises Gray that the latter will be able to have any competency-related questions posed to [“A”] that he wishes. He will soon break that promise.]

GRAY: Could I ask the Court to maybe -- to pose some issues to the Court, outside the hearing of the witness?

CZAJKA: You know what ["A"]? I'll ask you to step down over there for one minute, all right? Don't go too far though. Lieutenant Stoudt?

(Side bar)

GRAY: Your Honor, if the Court would inquire, as to whether or not in preparing to come in here today, and answering the Court's questions, did anyone prepare him for the kind of questions, and the suggested or recommended answers that he would give. Did they also do that at the Grand Jury level, and maybe along the lines has he known children that told lies in the past, has -- do children tell lies, has he ever told a lie, has he ever told a lie and met no punishment as a result of that lie, or even where he was told nothing would happen to him. I would like to find out further, if he's on his, currently on any medications, if he knows the kinds of medication, whether he took any medication today, before coming here. I don't know, as I say unfortunately, I don't know what effect the various medications could have, on him and what they are, but so that we would be sure that -- have children told lies to him before, did anything bad happen to them when they told lies to him, I guess along that would be about it, Your Honor.

TORNCELLO: Absolutely opposed to anything further.

CZAJKA: I'm satisfied that the -- step back. The Court is satisfied that the child understands. Come back up here ["A"], and I'll ask you one or two more questions. Let me ask you in my words, do you promise and swear that you will tell the truth in here?

["A"]: Good.

CZAJKA: Did you have a report card recently?

["A"]: Yes.

CZAJKA: What were your grades?

["A"]: All A plus.
[In a letter written just two months later, "A"'s social worker claims that he "would rather sleep through school." Something doesn't jibe here.]

CZAJKA: Excellent. Good job. Now, do you know who this man is standing right over there?

["A"]: Yes.

CZAJKA: Who is he?

["A"]: Peter.

CZAJKA: And did you see the lady over to your left?

["A"]: Yes.

CZAJKA: See that gadget she has right there?

["A"]: Yes.

CZAJKA: Do you know what that is?

["A"]: No.

CZAJKA: Do you know what she is doing?

["A"]: Typing.

CZAJKA: And do you know why?

["A"]: So they have information.

CZAJKA: That's right. She's putting down everything you and I say. So you have to answer all our questions, so she can get it clearly, right?

["A"]: Yes.

CZAJKA: All right. And do you know why you're here today?

["A"]: Yes.

CZAJKA: Why is that?

["A"]: Because of the Jeffrey Nickel case.
[This is not the spontaneous response of a child. It clearly reflects a great deal of coaching as well as time spent with people on the prosecution side.]

CZAJKA: All right. And you told this man behind me, something earlier, you told me, what was that?

["A"]: To tell the truth.

CZAJKA: And what does that mean, to tell the truth?

["A"]: It means like if I say, you’re' a girl, this is part of a lie, if you if -- I say you're a girl, it's a lie. If I say you're a boy, it's the truth.

CZAJKA: All right. What if I told you that this dress I'm wearing is pink?

["A"]: It's a lie.
[This tells us nothing about this child’s Suggestibility. If he believes something to be true which simply is not true, that, to him, would not be “a lie.” None of this tells us anything about the extent to which this boy may have been made to believe things which are simply not so.]

CZAJKA: And what if I told you that Mr. -- Attorney Torncello has lots of hair what would that be?

["A"]: A lie.
[This kind of inquiry is precisely what experts say is absolutely meaningless for assessing a child’s competency to provide accurate information about events which occurred in the past.]

CZAJKA: Do you got to church?

["A"]: Yes.

CZAJKA: Do you, what kind of a church do you go to? Do you have any religious upbringing or instruction when you go to church?

["A"]: No.

CZAJKA: When you're playing with your friends, on the playground, is there a playground at your school?

["A"]: Yes.

CZAJKA: And you're fooling around playing baseball or on the swings or something, and you lie to one of your friends, would that be good or bad?

["A"]: Bad.

CZAJKA: All right. When you lie to one of your teachers, would that be good or bad?

["A"]: Bad.

CZAJKA: When you lie in this courtroom, would that be good or bad?

["A"]: Bad.

CAAJKA: Now, what would be the worst of these three lies?

["A"]: To tell the lie in the courtroom.

CZAJKA: What would be the next worse?

["A"]: To tell a lie to a teacher.

CZAJKA: The next?

["A"]: To tell a lie to your friends.

CZAJKA: Okay. What will happen to you if you tell a lie to your friends?

["A"]: He will not like you very much.

CZAJKA: What would happen if you tell a lie to your teacher?

["A"]: They would send you to the principal's office.

CZAJKA: What would happen if you tell a lie in this courtroom to this judge, to me?

["A"]: They would send me to prison.
[Actually, they would send Nickel to prison. In any event, if he truly believes he would be sent to prison -- which is obviously not the case -- how might that distort his testimony?]

CZAJKA: That's what you heard?

["A"]: (Nod nod).

CZAJKA: You have to say yes or no. Remember she has to get everything down.

["A"]: Yes.

CZAJKA: You say you go to church?

["A"]: Yes.

CZAJKA: What did you learn in church about lying?

["A"]: That it's not so good.

CZAJKA: Oaky. Either of both of you wish or want me to inquire further? Mr. Torncello?

TORNCELLO: No thank you.

GRAY: Could I be allowed to inquire?

CZAJKA: Not with respect to this issue, but I'll ask any questions that you would like me to ask of the witness, if you want to.
[Note that Czajka promises Gray that the latter will be able to have any competency-related questions posed to "A" that he wishes. He will soon break that promise.]

 

TORNCELLO: Okay. And was that when you were, before when you were at [ ]?

["A"]: No.

TORNCELLO: But when you moved to [ ]?

["A"]: Yes.

TORNCELLO: All right. And were there other people from [ ], would they go along with you for some of the visits?

["A"]: Yes.

TORNCELLO: Okay. All of the time or some of the time?

["A"]: Some of the time.

TORNCELLO: Okay. For instance at first when you went with Jeffrey Nickel, would they be alone visits or were there other people that would go?

["A"]: (No response.)

TORNCELLO: Do you know what I mean or not?

["A"]: No.

TORNCELLO: Okay. Is it sometimes people from [ ]'s went, right?

["A"]: Yes.

TORNCELLO: And sometimes you went alone with Jeff?

["A"]: Yes.

TORNCELLO: Is that what you called him? What did you call him?

["A"]: Jeff.

TORNCELLO: You called him Jeff? Okay. Now, I want to take your memory and try to go back a little bit and take your memory back to around June or July of 2000, last summer okay? Do you recall last summer?

["A"]: Yes.

TORNCELLO: Around June 10th or so, or from June and July, did you ever have a chance to go and play with Jeff?

["A"]: Yes.

TORNCELLO: Okay. And where would you go, what kinds of things would you do?

["A"]: Go to the swimming pool, go to the movies.

TORNCELLO: Okay. Like when you say the swimming pool what, where is the swimming pool there -- strike that. Well never mind, I won't ask that one. Do you know where Jeffrey Nickel lived?

["A"]: Yes.

TORNCELLO: Did you ever go to his house?

["A"]: Yes. [The fact is, [“A”] has never been “to” Nickel’s house, in the sense of going inside it. He has gone by the house, when police drove him over there.]

TORNCELLO: Okay. And do you know what city it's in or town or no?

["A"]: It's in Delmar.

TORNCELLO: Delmar? And how would you get to Jeff's house from [ ]?

["A"]: He would drive me there to his house. [This is absolutely false; Nickel never took [“A”] to his house, not least because the volunteer-agreement form Nickel signed prohibited it. If the boy really had been to Nickel’s house, wouldn’t he have mentioned it to someone at the group home at the time?]

TORNCELLO: Okay. What kind -- did he have a car?

["A"]: Yes.

TORNCELLO: What kind of car did he have?

["A"]: A red car.

TORNCELLO: A red car? And when he would drive would it be just you and Jeff?

["A"]: Yes.

TORNCELLO: You have been to his house, right?

["A"]: Yes.

TORNCELLO: One time or more than one time?

["A"]: More than one time. [No, not even one time.]

TORNCEI.LO: Okay. And can you describe his house? Is it big or little or what color is it, any of that?

["A"]: It's big; it's white on the outside. [No, it’s blue on the outside. See Nickel’s home.]

TORNCELLO: Okay. You have been inside?

["A"]: Yes. [False.]

TORNCELLO: Was anyone else with you when you went with him?

["A"]: No. [Well, the boy never mentions anyone else being in the house when he supposedly went there - - e.g., Nickel’s mother or brother. Nor does he ever mention Nickel’s dachshund “Max”.]

TORNCELLO: Okay. You said you went to the pool, you went to the movies, and things like that?

["A"]: Yes.

TORNCELLO: Was there a pool near to his house?

["A"]: Yes.

TORNCELLO: And was that the Park -- was there a town park or a something like that?

["A"]: Yes.

TORNCELLO: Okay. And did you ever go to the pool there?

["A"]: Yes.

TORNCELLO: Well, a lot of times or one time or do you recall?

["A"]: Lots of times.

TORNCELLO: And was Jeff the one that took you to that park?

["A"]: Yes.

TORNCELLO: He did, okay, what kinds of things would you do? What would you play with Jeff?

[“A”]: We have a game called bull that we used to --

CZAJKA: Bull?

["A"]: Yes.

TORNCELLO: What's bull? That's the game that you invented?

["A"]: Yes.

TORNCELLO: Okay. Tell me what bull is?

["A"]: Bull is a game that he chases after me and I jump over him.

TORNCELLO: Okay. Where would you play this game?

["A"]: In the swimming pool.

TORNCELLO: Did you have your bathing suit on?

["A"]: Yes.

TORNCELLO: And did Jeff have his bathing suit on?

["A"]: Yes.

TORNCELLO: And what would happen, when you played the game bull? You said there was chasing; was it in the water?

["A"]: Yes.

TORNCELLO: What kinds of things would happen then?

["A"]: He would accidentally slip and put his hands in my pants. [Absolutely false; moreover, there is not anything in Nickel’s alleged ‘statement’ regarding this.]

TORNCELLO: Okay. And would he put his hands in the front of your pants or the back of your pants or?

["A"]: He put in both. [False.]

TORNCELLO: In both? Did that happen, sort of lots of times or?

["A"]: Lots of times.

GRAY: Objection, we have a singular count, Your Honor.

CZAJKA: Which count?

TORNCELLO: That's not true, there's a count of endangering the welfare of a child that goes from January 2000, through August of 2000, Your Honor, which discusses a course of conduct, of a sexual nature.

CZAJKA: Objection overruled.

GRAY: Your Honor, if I could point out to the Court if we are talking about a period of time here, that's going to cover a 7-month period.

CZAJKA: Well now, all he's talking about is the summer of 2000.

TORNCELLO: That's correct. Okay. Now, you talked about that sometimes he will put his hands inside your pants?

["A"]: Yes. [False.]

GRAY': Objection to the recapitulation by the D.A.

CZAJKA: Overruled.

TORNCELLO: Okay. Now, was there ever a time when he put his finger inside of you?

["A"]: Yes.

GRAY: Objection, leading the witness.

CZAJKA: Overruled. There's no reference to the -- overruled. Go ahead. [Czajka overrules this based on what? He starts to give a reason, then seems to realize his reason makes no sense. He appears to be overruling all of the defense’s objections now.]

TORNCELLO: Okay. And where did that happen -- where did that

["A"]: In the pool.

TORNCELLO: In the pool, at that same pool that we are talking about in the park?

[“A"]: Yes.

TORNCELLO: Okay. And how did that feel?

["A"]: It hurt. [Baloney. Nothing happened - -nothing hurt.]

GRAY: Objection, leading.

CZAJKA: Overruled.

TORNCELLO: He can answer, right Judge?

GRAY: He did answer.

TORNCELLO: Well, did you say anything to Jeff when that happened?

["A"]: Yes, I said stop. [Nonesense. Because nothing happened, he didn’t say anything either.]

TORNCELLO: Okay. Did he say anything to you?

["A"]: No.

TORNCELLO: Okay. Now, you went to the pool a few times and were there any other places that you went? Did you visit other places?

["A"]: Yes.

TORNCELLO: Where?

["A"]: The movie theatre.

TORNCELLO: You did? You went to the movies?

["A"]: Yes.

TORNCELLO: And again did you go lots of times or just once or?

["A"]: Just once.

TORNCELLO: Do you recall what movie you saw?

["A"]: X-Men.

TORNCELLO: Was that a good movie? Did you like it?

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: Well, what happened at the movie? Did anything happen at the movies?

["A"]: Yes.

TORNCELLO: What happened?

["A"]: He put his hand on my leg.

TORNCELLO: Okay. Any place else? Did he put his hands --

GRAY: Objection, leading the witness.

CZAJKA: Overruled. Go ahead. You can answer the question.

["A"]: What was you saying again?

TORNCELLO: Well, did he put his hand any place else on you?

["A"]: Yes.

TORNCELLO: Where?

["A"]: On -- his mouth touching my penis. [This is non-responsive; Torncello had asked the boy where Nickel had put his hand. [“A”] seems to simply be parroting the prepared script. Moreover, whereas Torncello was asking him about what happened at the movies, all of a sudden the boy lurches to talking about the supposed oral sex, which (allegedly) happened at Nickel’s home.]

TORNCELLO: Okay. Now, that was at the movies?

["A"]: Nope.

TORNCELLO: Okay. That began at the movies, I'll talk about that later, okay? But, anything else at the movies? Did he touch you any place other than your leg?

["A"]: No.

TORNCELLO: Okay. Now, you said you have been to Jeff's house, right?

["A"]: Yes. [No.]

TORNCELLO: Incidentally, do you see him here in the courtroom today, if you if you look?

[“A"]: Yes.

TORNCELLO: Did you see -- you can just point to him?

["A"]: Right there (pointing).

TORNCELLO: Okay. What color suit does he have on?

["A"]: Black and white.

TORNCELLO: Okay. Judge, if the record could reflect that the witness identified defendant?

CZAJKA: He has.

TORNCELLO: Thank you. Earlier you had just talked about an incident you said where he puts his mouth on your penis, right?

["A"]: Yes.

TORNCELLO: Okay. Where did that happen?

["A"]: His house. [Hogwash - - never happened. Was never there.]

TORNCELLO: Okay. I want to show you a photograph, okay? It's -- we call it People's number "5” for -- in evidence, right? You see that photograph?

["A"]: Yes.

TORNCELLO: Okay. And have you seen that photograph before ["A"]?

CZAJKA: Okay. You were shown that before, right? [Why didn’t Czajka just let [“A”] answer? Was the boy confused?]

["A"]: Yes.

TORNCELLO: Okay. I think you probably met some police officers or sheriffs, right?

["A "]: Yes.

TORNCELLO: She showed you -- Ronnie from our office, did she show you?

["A"]: Yes.

TORNCELLO: Okay. Now, do you recognize anybody in that photograph?

["A"]: Yes.

TORNCELLO: Who do you recognize?

["A"]: Me and Jeff. [False - - it is neither. See Photograph and Photography expert.]

TORNCELLO: Okay. Do you recall that picture being taken ["A"]?

["A"]: Yes. [Hogwash.]

TORNCELLO: How was that taken -- how was that picture taken? Was there another person in the room?

["A"]: No.

TORNCELLO: Okay. How did that picture get taken?

["A"]: He took the flash off and he set it when I -- I was taking a nap. [Therefore this picture was supposedly taken without a flash. That’s impossible, for at least two reasons: 1) the glare from the flash is clearly visible; 2) this picture, taken indoors, would not have come out at all without a flash being used. Now, on at least one occasion, Nickel indeed did use the timer on this camera to take a picture of himself and the boy. This photo was taken outside, in front of the group home. [“A”] appears to be conflating this true memory with the false memory created when the police showed him the sex photo and somehow convinced him that it depicted himself and Nickel.]

TORNCELLO: And there was -- did he have a camera?

["A"]: Yes.

TORNCELLO: Okay. And where was the camera?

["A"]: Sitting on his window sill. [There are no window sills anywhere in Nickel’s home. On the other hand, at the group home where he lives, there were, in fact, some quite deep window sills. It appears that he is, once again, conflating that true memory with a false memory of supposed window sills in Nickel’s house.]

TORNCELLO: Okay. And do you recall you said something about a flash, do you recall a flash going off. Are you -- do you remember the flash?

["A"]: There wasn't no flash.

TORNCELLO: There wasn't no flash; did you hear the camera go off?

["A"]: No.

TORNCELLO: Okay. Now, you said earlier I think something about a timer, is that right?

["A"]: Yes.

TORNCELLO: That s what you re talking about? How does that work, do you know?

["A"]: No clue.

TORNCELLO: Okay. You don't have any clue about that. Did Jeff have a computer?

["A"]: Yes.

TORNCELLO: And where was the computer, do you know?

["A"]: By the window.

TORNCELLO: It was by the window in what room?

["A"]: In his bedroom. [False. Even the police’s own photos show that the computer was in the basement, which, by the way, has no windows.]

TORNCELLO: In his bedroom. And where was the camera? Was the camera also -- well strike that. You tell me, where was the camera?

["A"]: In the window sill in his bedroom.

TORNCELLO: Okay. And how often would you -- would you go with ["A"], do you recall? [Here Torncello mistakenly uses the boy's first name, when he meant to say Nickel's first name. He would do so later as well.]

["A"]: ["A"]?

TORNCELLO: I'm sorry I -- I'm getting silly here. About how often would you go with Jeff?

["A"]: No clue.

TORNCELLO: Okay. Is it sort of, would I be right if I said that your visits with him started in June last year?

["A"]: Yes.

TORNCELLO: And they went through July or so?

["A"]: Yes.

TORNCELLO: Okay. And again, were you living at [ ] during that July, June and July period?

["A"]: Yes.

TORNCELLO: Okay. I think that's it judge. Can I just have a minute to look at my notes?

CZAJKA: Sure. Okay?

TORNCELLO: I am thinking, okay? I'm a slow thinker. The last time you saw ["A"], did you notice, boy, I did it again, didn't I? The last time you saw Jeff ["A"], did you notice anything about his hands?

["A"]: Yes.

TORNCELLO: What did you notice?

["A"]: His hand -- his left hand has a cast.

TORNCELLO: The left hand had a cast?

["A"]: (Nod nod.)

TORNCELLO: Okay. Left hand. I think that's it. That's it well, let me think, okay? I'm looking at photographs. Just a second judge. Okay. Just to be sure it's understood, People’s "2", make that 2A, I hand you now something that has been -- we will call it People's 2A for identification, can you look at that? See that?

["A"]: Yes.

TORNCELLO: What is that? Can you tell us what that is?

["A"]: The recognition dinner at [ ].

TORNCELLO: What’s the recognition dinner?

["A"]: It's a dinner where all of the houses get together, and the people out there say how good you have been doing.

TORNCELLO: Okay. Did you get recognized? Were you part of recognition to say how good you did?

["A"]: Yes.

TORNCELLO: Do you recognize anybody in that photograph?

TORNCELLO: Okay. Who do you recognize?

[“A”]: Jeff and me.

TORNCELLO: Okay. And is that the way Jeff looked at the recognition dinner?

[“A”]:Yes

TORNCELLO: Okay. At this time I’ll offer People’s number 2A, in evidence and show it to Mr. Gray.

GRAY: Objection.

CZAJKA: I'll reserve; go ahead Mr. Torncello, anything else Mr. Torncello?

TORNCELLO: One other thing you told us a little earlier, that when you were at the -- when you were talking about the pool, and you said that [“A"] [third time Torncello uses boy s first name, when he meant to use Nickel's] :put his finger in you, what did he do?

[“A”]: ["A"]?

TORNCELLO: I'm sorry, Jeff put his finger?

GRAY: I'm going to object to that line of questioning as leading and it's already been asked and answered.

CZAJKA: Overruled, but I don't know that I, well -- I didn't hear the full question, so I'm not ruling. I'll give you an opportunity to object again. Ask your question again.

TORNCELLO: Okay.

CZAJKA: Don't answer the question yet ["A"].

["A"]: Okay.

TORNCELLO: Let me ask it first. Well, what I want to say is where did Jeff put his fingers in you when you were in the pool in Bethlehern?

GRAY: Objection.

CZAJKA: Overruled.

TORNCEUO: You can answer.

["A"]: In my butt. [False.]

TORNCELLO: Okay. And you said it hurt, right?

["A"]: Yes.

TORNCELLO: Can you describe how much?

["A"]: It hurt a lot. [Didn’t happen, so it couldn’t hurt at all.]

TORNCELLO: Okay. And did he stop when you asked him to?

["A"]: No. [Baloney. Because it never happened, the boy never asked Nickel to stop.]

TORNCELLO: No further questions. Thank you.

GRAY: Good afternoon.

["A"]: Good afternoon.

GRAY: If you can answer for me please, are you presently receiving any medication, pills or drugs, or things of that nature?

["A"]: Yes.

GRAY: And if you know, is it more than one type of pill and drug or just one type?

CZAJKA: You can answer his questions and I will tell you if you don't have to

["A"]. Go ahead. [Apparently the boy must have looked up to Czajka at that point.]

["A'']: More than one type.

GRAY: How many types of pills or drugs do you take a day?

["A"]: One at one o'clock, and uhm -- one at 11, and four or five at 8 o'clock.

GRAY: Is that 8 o'clock in the evening or 8 o'clock in the morning?

["A"]: 8 o'clock in the evening.

GRAY: Do you take these medications every day?

["A"]: Yes.

GRAY: Have you been taking this medication, for some period of time?

["A"]: Yes.

GRAY: Do you know the name of the medication that you take at 11 o'clock?

["A"]: Adderall.

GRAY: Do you know the medication that you take at one o'clock?

["A"]: Clonidine.

GRAY: Do you know the four or five that you take at 8 o'clock?

["A"]: Ritalin, Zoloft, uhm -- Senokot, and I forget the other one.

GRAY: Before coming here today, or at any time today, did you take any medication?

["A"]: Yes.

GRAY: Would that have been your 11 o'clock medication?

["A"]: No.

GRAY: Would that have been your one o'clock medication?

["A"]: No.

GRAY: Would that have been the 8 o'clock medication?

["A"]: No.

GRAY: What kind of medication did you take today?

["A"]: It's the 7 o'clock medication.

GRAY: Oh, you took another one at 7 o'clock?

["A"]: Yes.

GRAY: In the morning?

["A"]: (Nod nod.)

GRAY: Okay. What did you take at 7 o'clock in the morning?

["A"]: Zoloft.

GRAY: Have you been on that medication for some period of time?

["A"]: Yes.

GRAY: Do you see a doctor regularly?

["A"]: Yes.

GRAY: How regularly do you visit with a doctor?

["A"]: I can’t answer that question because I don't know.

GRAY: Would it be once a week or once a month?

["A"]: Once a month.

GRAY: Do you know that doctor's name?

["A"]: Dr. [ ] and Dr. [ ].

GRAY: Do you know what if any specialty either of those doctors have?

["A"]: No.

GRAY: Have you been seeing each of those doctors for some period of time?

["A"]: Yes.

GRAY: Do you recall giving testimony before a Grand Jury?

["A"]: Yes.

GRAY: On the day that you gave testimony before the Grand Jury, had you taken medication that day?

["A"]: Yes.

GRAY: Do you recall what medication you had taken that day and what time before you testified?

["A"]: No.

GRAY: On the day that you testified before the Grand Jury, did anyone ask you, if you were on any medication?

["A"]: Yes.

GRAY: Was that person -- do you know that person's name?

["A"]: No.

GRAY: Was it a woman or a man?

[“A"]: Woman.

GRAY: Would the name Mrs. Dumas or Ronnie Dumas, would that sound familiar to you?

["A”]: Yes.

GRAY: Did you tell this Ronnie Dumas that yes, you were on medication?

["A"]: Yes.

GRAY: Did she ask you what kind of medication you were on?

["A"]: No. [Once Ms. Dumas heard that [“A”] was on medications, she apparently did not want to probe any further.]

GRAY: To your knowledge did she check with any doctor at that time?

["A"]: I have no clue.

GRAY: Now, I think you told us about a park in the Town of Bethlehem, the town park I think you called it?

["A"]: Yes.

GRAY: And I believe you told us that you went there some time during the months of June and July, of 2000, the summer time?

["A"]: Yes.

GRAY: When the park pool was open?

["A"]: Yes.

GRAY: And that park pool was open to the public, was it not?

["A"]: Yes.

GRAY: And on the hot days there, they get a pretty good crowd, do they not?

["A"]: Yes.

GRAY: And on the times that you went there with Jeff, there was a good crowd was there, was there not?

["A"]: Yes.

GRAY: In the pool swimming and playing?

["A"]: Yes.

GRAY: So when you went to the pool, alone with Jeff, during July and August, there were other people and many of them present?

["A"]: Yes.

GRAY: And they were both adults and children, were they not?

["A"]: Yes.

GRAY: Are there -- strike that. Now, I know you told us you have been by or at Jeff's house, on more than one occasion?

["A"]: Yes.

GRAY: And do you know where that's located?

["A"]: Delmar.

GRAY: Do you know what street?

["A"]: No.

GRAY: What color was his house? Did you tell us white?

["A"]: Yes.

GRAY: And when you were at his house that was the color of his house when you were there?

["A"]: Yes.

GRAY: Did the police also drive you by his house at some time?

["A"]: Yes.

GRAY: Do you recall when that was that the police drove you by his house?

["A"]: No.

GRAY: Do you recall if it was before you testified before the Grand Jury?

["A"]: Yes.

TORNCELLO: Judge, I want him to clarify. I think the question was, do you recall, not when was it. So could we have --

CZAJKA: You're correct.

GRAY: Forgive me, I didn't mean it to be that way. When the police took you by that house, was that before you testified before the Grand Jury or after?

["A"]: Before.

GRAY: Okay. And was it the same day like earlier the same day or a few days before, do you recall?

["A"]: A few days before. [This directly contradicts Bates’ earlier testimony: When Gray asked “Now, how long after you drove him by the Lansing Drive address was it before he testified before the Grand Jury in terms of, was it minutes or hours, whatever it might be, Bates answered: “That was after the Grand Jury.”]

GRAY: Okay. And would you remember the names of the police officers that drove you there?

["A"]: Mr. -- Ronnie, and I forget the other guy's name.

GRAY: Okay. Would Ron Bates, does that sound familiar for Mr. Ronnie?

["A"]: Yes.

GRAY: Did you see him here today?

["A"]: Yes.

GRAY: And that is the same Ronnie we are speaking of?

["A"]: Yes.

GRAY: All right. Now, I think you mentioned being in Mr. Nickel's bedroom, did you not?

["A"]: Yes.

GRAY: And the colors of the walls in Mr. Nickel's bedroom, were what color?

["A"]: Blue.

GRAY: Now, when you went into Mr. Nickel's house, well, is it, do you know what I mean by a one-story and a two-story house?

["A"]: yes.

GRAY: When you entered into the house, what room would you enter into?

["A"]: The hall.

GRAY: Was it a rather long hall? [There are, in fact, no “long halls” anywhere in Nickel’s house. There are three ways to enter the home; the front door, the back door, and the garage door. The back door goes right into the den, the front door, right into the living room. Only the garage door leads to any sort of hall, which is actually a very short one. Immediately to the left is the den. Going to the right, one encounters the door to the bathroom which is about six feet away, with the kitchen beginning just a couple of feet from that. Now, there was, in fact, a rather long hall upon entering the group home where “A” lived.]

["A"]: Yes.

GRAY: And where was Mr. Nickel's bedroom off that hall?

["A"]: In the top room.

GRAY: In the what?

["A"]: Upstairs room.

GRAY: All right. And you were upstairs in that room?

["A"]: Yes.

GRAY: Did there come a time when one of the police officers, showed you a photograph that's been shown to you here this morning as People's "5”?

["A"]: Yes.

GRAY: And did they show you that photograph, before you testified before the Grand Jury or after?

["A"]: Before and after.

GRAY: Both times?

["A"]: Yes.

GRAY: Was it, when you say before you testified before the Grand Jury, was it the same day earlier that same day or before that?

["A"]: Earlier the same day.

GRAY: And was that photograph shown to you by Mr. Ron Bates?

["A"]: Yes.

GRAY: And did they tell you at that time, that you were going to be going into the Grand Jury?

["A"]: No.

GRAY: But you did go in before the Grand Jury, didn't you?

["A"]: Yes.

GRAY: Now, did you tell the Grand Jurors that besides the walls being blue and the house being white, that Mr. Nickel would have to duck his head to go through the door?

["A"]: Yes. [That doorway is about six-and-a-half feet high. Nickel is just under 6’4”; therefore, he never had to duck to enter his bedroom, or any other room in the house for that matter. But once again, the boy appears to be conflating this false memory with another, true one. Nickel had once told [“A”] that where he (Nickel) used to live, in Boston, he did have to duck going in and out of the back door of his apartment.]

GRAY: Did you tell them that?

["A"]: Yes.

GRAY: Now, you described a camera being on the window sill in Mr. Nickel's bedroom?

["A"]: Yes.

GRAY: How many windows were in that room?

["A"]: Two. [False. There are actually three. See Nickel’s home.]

GRAY: And how big was the window sill? Could you show us with your hands or?

["A"]: About this big (indicating).

GRAY: All right.

CZAJKA: Three-and-a-half feet, Mr. Gray?

GRAY: Yes. [Again, there are no window sills in Nickel’s bedroom, or anywhere else in the house, for that matter. See Nickel’s home. However, the group home where [“A”] lived did have window sills about that size.]

TORNCELLO: Are we talking about the window or the window sill?

CZAJKA: Do you know what the window sill is? What's the window sill?

["A"]: It's like the holding like the wall.

CZAJKA: Where is it in the window?

["A"]: Like here's the ground, here's the window sill.

CZAJKA: Where the window --

["A"]: It's right in the side the window sill. [[“A”] demonstrates here that he does in fact understand what a window sill is, despite Torncello’s attempt to ‘assist’ him etc.]

GRAY: Okay. Now, did you tell the Grand Jury that in Mr. Nickel's bedroom, there was a water bed?

["A"]: Yes. [There is no - - and never has been any - - waterbed in Nickel’s bedroom, or anywhere else in the house for that matter. But yet again, [“A”] seems to be conflating this false memory with something completely different. On at least one occasion, Nickel mentioned to him that his sister (who has lived in Virginia for over 14 years) had a waterbed.]

TORNCELLO: I understand the rules of evidence. I'm going to object to the form. If he asked him what he talked about in the Grand Jury. Thanks.

GRAY: Now?

CZAJKA: Object when the question is asked, if you wish to.

TORNCELLO: Your Honor --

CZAJKA: If you wish to make an objection, do so in a timely manner.

GRAY: When you -- did there come a time, that you went to see Dr. [ ] on August the 9th? Do you recall that visit of 2000?

["A"]: Yes.

GRAY: And did Dr. [ ] ask you any questions?

["A"]: Yes.

GRAY: Did he run a physical examination of you at that time?

[“A"]: Yes.

GRAY: When on or about -- let me ask you, do you recall when this Ron Bates first came to see you?

["A"]: No.

GRAY: But without remembering the date, do you recall the event? Do you recall when you first met him?

["A"]: Yes.

GRAY: And did you tell him or did you say to him that you believed he was there because of some slapping incident?

["A"]: Yes. [Therefore, both [“A”] and Nickel believed, when the police initially showed up, that all they wanted to talk about was the alleged ‘slapping’ incident.]

GRAY: Had you reported some slapping incident?

["A"]: No.

GRAY: To the school?

["A"]: Yes.

GRAY: And did there come a time after you reported that slapping incident, that you realized that didn't happen?

["A"]: Yes.

GRAY: And for --

TORNCELLO: Objection.

CZAJKA: Sustained, I don't understand what you're talking about. Sustained. I don't understand the question. The objection is sustained.

GRAY: Well, at first you told the school, that you had been slapped, didn't you?

["A"]: Yes.

CZAJKA: Well, the school is the --did you talk to a person at the school?

["A"]: Yes.

CZAJKA: Who was it?

["A"]: My principal.

CZAJKA: Okay.

GRAY: Her name was what?

["A"]: Oh, Lord.

GRAY: Miss [ ]?

["A"]: No.

GRAY: Ms. [the social worker]?

["A"]: No.

GRAY: That is all right if you don't remember. Did [the social worker] ever talk to you about that --

["A"]: Yes.

GRAY: -- report? And there came a time, did there not, when you told her that that didn't happen?

TORNCELLO: Objection.

CZAJKA: Well, no foundation as of yet. It's not clear that he told her, what if anything he told her.

GRAY: The principal or when you reported this slapping incident at

CZAJKA: Excuse me, what did you tell the principal about slapping

["A"]: I told her that his friend slapped me.

GRAY: Whose friend?

["A"]: Jeffrey Nickel's.

CZAJKA: Okay. And then you went back and indicated to him that that wasn't correct.

TORNCELLO: Objection.

CZAJKA: Overruled.

["A"]: Yes.

GRAY: Okay. And who did you tell that that wasn't correct to?

["A"]: My social worker.

GRAY: That's [ ]?

["A"]: [ ], yes.

GRAY: And did you tell [the SW] that it may have been something that you dreamed or dreamt?

TORNCELLO: Objection.

CZAJKA: Overruled.

["A"]: Yes.

GRAY: Did you sometimes dream about things?

["A"]: Yes.

GRAY: Did you sometimes mistake a dream for what really happened?

TORNCELLO: Objection.

CZAJKA: Overruled.

["A"]: Yes.

GRAY: If you know, the medication that you took, I'll strike that. Have you in the past told things that maybe weren't true?

["A"]: Yes.

GRAY: And how many times have you done that?

TORNCELLO: Objection.

CZAJKA: Overruled, if you know. Do you know the times you said things that aren’t true?

[“A”]: No.

GRAY: What would be your best guess?

TORNCELLO: Objection.

CZAJKA: Sustained.

[“A”]: About two. [Oh…come on.]

GRAY: The first time you told something that wasn’t true, what trouble did you get into?

TORNCELLO: Objection.

CZAJKA: Overruled

[“A”]: Staying in my room all day.

GRAY: And what was that that you said that wasn't true? What was that about?

TORNCELLO: Objection.

CZAJKA: Overruled.

["A"]: That Jeff gave me, a motorcycle. [Therefore [“A”] has now admitted to saying untruth thing, concerning Nickel, twice.]

GRAY: And who did you tell that to?

["A"]: My staff.

GRAY: And then did you later tell them that wasn't true?

["A"]: Yes.

GRAY: And the second time that you remember telling something that wasn't true what if any punishment happened then?

[“A"]: I had to clean up all day and clean every room, and make dinner all day.

GRAY: All right. And what was that untruth that you told about?

["A"]: That Jeff gave me his saxophone. [Now for the third time. So, both things he said he’d ever told an untruth about, and a third he said he was simply wrong about, were all related to Nickel. These are three instances not of lying per se, but of being mistaken, but only realizing this later on.]

GRAY: Okay. Did you think that he had given you those things?

["A"]: Yes.

GRAY: But then later you found out that it wasn't so?

["A"]: Yes.

GRAY: May I have just a moment please? I have no further questions. Thank you, Your Honor. Thank you, young man.

CZAJKA: Okay?

TORNCELLO: Can I ask ["A"] just to clarify something?

CZAJKA: It's your case-.--

TORNCELLO: No further questions. [This is very telling. Though [“A”] is supposed to be the prosecution’s ‘star’ witness, Torncello does not wish to ask him any questions on re-direct. He apparently knows that a great deal of damage has already been done to his case, and simply does not wish to risk any more.]

CZAJKA: ["A"], step down.

(Witness excused.)

GRAY: Your Honor, I would ask if the DA could be admonished to keep him available because of that medical. [Okay, but Gray never does call [“A”] back to the stand. Moreover, Gray should have asked the boy about the eye color of the boy in the sex photo (brown), contrasting it with [“A”]’s own eye color (blue). Had he done so, the entire case might have completely unraveled.]

CZAJKA: He understood that.

GRAY: Okay. I don't think we can get in another witness before two or can we?

TORNCELLO: It's another child, but I imagine we can.

CZAJKA: Spell your name for me.

[''B"]: [ ].

CZAJKA: How old are you?

["B"]: Ten.

CZAJKA: What do you want me to call you?

["B"]: [ ].

CZAJKA: [ ]?

["B"]: Yes.

CZAJKA: ["B"], you hear how loud I'm talking? Think you can match me?

["B"]: Yes.

CZAJKA: All right. What do you want me to call you?

["B"]: ["B"].

CZAJKA: All right. That man behind me.

["B"]: Yes.

CZAJKA: What just happened with him?

["B"]: He was telling me, for the swearing thing.

CZAJKA: For the what?

["B"]: He told me to tell the truth and nothing but the truth.

CZAJKA: What did you tell him?

[''B'']: Yes.

CZAJKA: Yes what?

["B"]: Yes, sir.

CZAJKA: Yes what? I know that's all you said is yes, but what do you mean when you say yes?

["B"]: I wouldn't lie.

CZAJKA: Okay. What does that mean to lie?

["B”]: To say somebody says that you were doing something, but you weren't, that's a lie.

CZAJKA: What grade are you in ["B"]?

["B"]: Fifth.

CZAJKA: Where?

["B"]: [ ].

CZAJKA: [ ]. Who is your teacher?

[“B”]: Mr. [ ].

CZAJKA: What classes do you take? What are your subjects?

["B"]: Reading, math, language arts, social studies, science.

CZAJKA: How are you doing in these classes?

[“B”]: Great.

CZAJKA: What are your grades?

[“B”]: Passing grades, I don't know exactly what they are.

CZAJKA: What's the last report card you got?

[“B”]: I got a 91 quarterly average.

CZAJKA: Good. How's your reading?

[“B”]: Great.

CZAJKA: Yes. Do you read any books?

[“B”]: Yes.

CZAJKA: What?

["B"]: "Everlasting," right now what I'm reading is “The Fix-Up Place of Frank Wyler," "The Fighting Grounds," and one other thing I don't remember.

CZAJKA: Do you go to church?

["B”]: No.

CZAJKA: Did you ever?

["B"]: Yes.

CZAJKA: Did you ever have any kind of religious instruction?

["B”]: No, we just go on a Sunday night with my grandmother, and we would go and play the game.

CZAJKA: And who are you living with now?

["B"]: My mom and my dad.

CZAJKA: Any brothers and sisters?

[“B"]: Yes.

CZAJKA: What are their names?

[“B"]: [ ].

CZAJKA: Older or younger?

[“B"]: Older.

CZAJKA: What grade is he in?

["B"]: Fifth.

CZAJKA: You and he get along?

["B"]: Sometimes.

CZAJKA: Sometimes not?

["B"]: Yes.

CZAJKA: I figured. When you and he play, do you ever lie to him?

["B"]: No.

CZAJKA: You don't?

[“B"]: No.

CZAJKA: How about with your pals? What's your best friend's name? Do you have a best friend?

[“B"]: Yes.

CZAJKA: What's his name?

["B"]: [ ].

CZAJKA: Do you ever lie to him?

["B"]: No. [Oh . . .come on.]

CZAJKA: How about just in fooling around, do you lie to him?

["B"]: Only like turn around, like turn around jokes where you say see the man behind you and he turns around and you say -- I forget the word that you say.

CZAJKA: That would be a lie?

["B"]: Joking lie.

CZAJKA: Yes. Do you know what it means to tell the truth here in this courtroom?

["B"]: Yes.

CZAJKA: What?

[“B"]: To tell what you know, and tell, tell what you know, and what you remember about whatever it's about.

CZAJKA: And what if you tell me something that's not true?

[“B"]: It's a lie.

CZAJKA: And what would happen?

["B"]: I don't know.

CZAJKA: Well, if you were playing with your brother, and you got mad at him, told him a lie, would you get in trouble?

["B"]: Yes.

CZAJKA: If you were playing with your teacher, or you're talking to your teacher about your homework, and you told your teacher you lost your homework when in fact you didn't do it, would you get in trouble for that?

["B"]: Big trouble.

CZAJKA: Now, if you told a lie here in this courtroom, would you get in trouble for telling a lie here?

[“B"]: Yes.

CZAJKA: What would be the most serious trouble you would have of those three lies?

["B"]: Courtroom.

CZAJKA: And why do you think so?

["B"]: Because you were told to put your left hand on the bible, and swear that you would tell the truth that you did it.

CZAJKA: Do you promise and swear that you will tell the truth?

["B"]: Yes.

CZAJKA: All right. Now [“B”], see Lieutenant Stoudt there?

["B"]: Yes.

CZAJKA: Go sit with her for a minute. Attorneys? Mr. Torncello?

TORNCELLO: No concerns, Your Honor.

GRAY: I'd respectfully request the same questions posed as I would have asked the Court to pose to ["A"].

CZAJKA: Okay. And I don't believe it's necessary to inquire further, do the People? What's the People's position?

TORNCELLO: I think that the inquiry was appropriate, in light of 60.20 of the Criminal Procedure Law.

CZAJKA: Mr. Gray?

GRAY: My only exception was to the Court's not asking the questions that I requested.

CZAJKA; And I find, like I did with respect to the first child witness, that the child is fully capable of understanding the nature of the oath, and testifying under oath. Come back up ["B"].

TORNCELLO: Thank you, Your Honor. Good afternoon ["B"], how are you doing?

["B"]: Good.

TORNCEILO: What's your birthday?

["B"]: [ ].

CZAJKA: Remember ["B"], you've got to speak loud.

["B"]: Okay.

CZAJKA: What is your birthday?

["B"]: [ ].

TORNCELLO: Okay. And how old are you now?

["B"]: Ten.

TORNCELLO: And where do you live? Can you tell me that?

["B"]: [ ].

TORNCEILO: You live in [ ]?

["B"]: Yes.

TORNCELLO: Who do you live with there?

["B"]: My mom and dad.

TORNCELLO: How about your brother?

["B"]: He lives with my mom and my dad.

TORNCEILO: Okay. You said he's older, your brother, right?

["B"]: Yes.

TORNCELLO: How much older?

["B"]: I think it's either three seconds or three minutes.

TORNCELLO: So he's your twin brother, right?

["B"]: Yes.

TORNCELLO: He's older, right?

["B"]: Yes.

TORNCEILO: Does he ever let you forget it?

["B"]: Sometimes.

TORNCEILO: Okay. Now, the Judge asked you about grades and all that stuff, right?

["B"]: Yes.

TORNCELLO: I want to direct your memory back to last summer, okay? Did you have a chance to go to summer camp last summer?

["B"]: Yes.

TORNCELLO: Okay. And just so we know, is that -- what was the name of that summer camp?

[“B"]: [ ].

TORNCELLO: Did it start around July 3rd of 2000 and go through July 14th of 2000?

["B"J: You're right.

TORNCELLO: Okay. And tell me about the camp? What did you do at summer camp?

["B"]: We walked to the door.

CZAJKA: Remember talk up ["B"].

["B"J: We walk through the doors and then we go, we meet with our groups and as soon as everyone was there, we go to the bathroom and we change into our swim shorts and go down to [ ] Park and we swim for a while. Then we --

TORNCELLO: I'm going to interrupt you a little bit, where did you go first? Where was the camp located?

["B"]: [ ].

TORNCELLO: Right here in [ ]?

["B"]: Yes.

TORNCEI.LO: Okay. What was the name of that camp? Do you recall?

["B"]: [ ].

TORNCELLO: And did you sleep overnight at camp?

["B"]: No.

TORNCELLO: You just drove there in the morning, is that right?

["B"]: Yes.

TORNCELLO: And then how did you get home?

["B"]: My dad would come and pick me up around five.

TORNCELLO: Okay. Did you go -- how many days did you go to the camp?

["B"]: Either a week or two weeks.

TORNCELLO: But did you go Monday through Friday?

["B"]: Yes.

TORNCELLO: Okay. And at that time, did you meet a man named Jeffrey Nickel?

["B"]: Yes.

TORNCELLO: Okay. And what was his role? What did he do at [ ]?

["B"]: He was one of the counselors.

TORNCELLO: He was a counselor? Was he your counselor?

["B"]: Yes.

TORNCELLO: Okay. And was he sort of in charge of some of the kids?

["B"]: That were in my group.

TORNCELLO: How many kids were in your group, if you remember?

[“B"]: Either six to eight or eight to ten.

TORNCELLO: Boys and girls?

["B"]: Yes.

TORNCELLO: Okay. Do you see Jeff Nickel in the courtroom today?

["B"]: Yes.

TORNCELLO: Okay. Can you point to him?

[“B"]: (Pointing.)

TORNCELLO: Maybe describe a little how his tie -- what color is the tie?

["B"]: A bluish color.

TORNCELLO: Your Honor, if the record could reflect that the witness identified the defendant.

CZAJKA: Yes.

TORNCELLO: Thank you. Now, where was the first time or when was the first time that you met Jeffrey Nickel?

[“B"]: The first day I walked into [ ].

TORNCELLO: You've never seen him before, right?

["B"]: No.

TORNCELLO: Okay. And was he your counselor and did he become your friend?

["B"]: Yes.

TORNCELLO: At first, right, was he your friend?

["B"]: Yes.

TORNCELLO: Okay. And what kinds of things did you do at the camp you said?

["B"]: We'd go to [ ] Park and then we would swim there and come back, and I think we would have a snack or something like that and then we'd go walk around the museum, and then like the last couple of days we would go to a couple of the parks and walk around and play tag and stuff.

TORNCELLO: Okay. When you went swimming did you arrive at camp with your bathing suit on?

["B"]: We'd change there -- we changed

TORNCELLO: Where would you change?

["B"]: In the boys' bathroom.

TORNCELLO: Where would Mr. Nickel be when you changed in the bathroom?

["B"]: He'd normally be changed before us.

TORNCELLO: Okay. He changed first?

["B"]: Yes.

TORNCELLO: Would he go into the bathroom with you?

["B"]: Only to come tell us that you have to hurry up.

TORNCELLO: Okay. And did you change in a big open area or in the stall?

["B"]: In a stall.

TORNCELLO: Did he go into the stalls?

["B"]: No.

TORNCELLO: Okay. You said, did you go swimming pretty much every day?

[“B "]: Yes.

TORNCELLO: And when you went swimming on some occasions, some times, did Jeffrey Nickel go swimming?

["B"]: Yes.

TORNCELLO: And did you play any games with Jeffrey Nickel?

["B"]: yes, and other people from other groups.

TORNCELLO: Okay. What kinds of games did you play with Jeff?

["B"]: We'd play like swim tag, and bull and that would be basically it. [Baloney. This boy never played “Bull” with Nickel. This is a game that [“A”] invented - -he and [“B”] had never met one another. [“B”] saying that he played “Bull” must be a result of his memory being contaminated by police interrogation.]

TORNCELLO: Okay. What's -- you said bull, right?

["B"]: Yes.

TORNCELLO: What's bull?

["B"]: It's like where there's one person, and he like pulls you in, and I don't remember the rest.

TORNCELLO: Okay. Did you make up the game bull?

[“B"]: No, we just played it along.

TORNCELLO: Okay. Did you ever play it with Jeffrey Nickel?

["B"]: Yes, he was like the bull.

TORNCELLO: He was the bull?

["B"]: Yes.

TORNCELLO: Okay. What would you do?

["B"]: He would try to pulls us in and we would have to get away, and when we got away we have to try to stay away and splash him and stay away. [Compare this description of “Bull” with [“A”]’s: “Bull is a game, which he chases after me, and I jump over him.” This is totally different from how [“B”] describes it. Again, the reason for this is that the police must have kept asking [“B”] if he played a game called “Bull”, to the point that [“B”] really came to believe he had played such a game. This is precisely how Suggestibility works.]

TORNCELLO: Did you ever come in contact with Jeffrey Nickel? Did you ever touch him?

["B"]: Yes, when I tried to get away.

TORNCELLO: Did he ever touch you?

["B"]: Yes.

TORNCELLO: Where did he touch you? What kinds of -- what part of his body and what part of yours?

["B"]: He'd like touch - - he would bring us -- his foot up to pull us toward him and stuff.

TORNCELLO: Where would his foot touch? What part of your body?

["B"]: Either the back or he'd push us away and bring us back or something. [[“B”] says nothing about Nickel’s foot supposedly touching his genitals.]

TORNCELLO: And when you say -- when you say the back, what do you mean by that?

[“B"]: The area (indicating) where like the spinal cord is and stuff.

TORNCELLO: Could the record reflect where you just indicated?

CZAJKA: His back from the -- his neck, he pointed at his neck and below his shoulder blade.

TORNCELLO: And in addition to that, did he ever touch you, in a private area? [This clearly a leading question; and yet, Gray fails to object.]

["B"]: Yes.

TORNCELLO: Okay. And tell me about that? Was that in the pool as well?

[“B"]: Yes.

TORNCEI.LO: And what part of his body touched you in your private area?

["B"]: His foot.

TORNCELLO: Okay. Where would the foot touch you?

["B"]: In my private area.

TORNCELLO: Okay. When you say private area, what do you mean? Do you have -- what words do you use for your privates?

[“B"]: Testicles.

TORNCELLO: His foot would touch your testicles?

["B"]: Yes.

TORNCELLO: How did that feel?

["B"]: It hurt. [Baloney.]

TORNCELLO: It hurt. Did you say anything to him?

["B"]: Uhm -- not really.

TORNCELLO: Did he say anything to you?

["B"]: Just sorry throughout the day. [False - - -Nickel said nothing of the kind.]

TORNCELLO: Okay. So?

["B"]: And he apologized throughout the whole day, yes.

TORNCELLO: Okay. More than once, right?

["B"]: Yes.

TORNCELLO: Okay. Did you say anything to him then?

["B"]: Not really.

TORNCELLO: Okay. Did you ever tell your mom and dad that?

[“B"]: No.

TORNCELLO: How come?

["B"]: Because I didn't really know what it was like about when I was nine.

TORNCELLO: Okay! No further questions. Thank you very much.

GRAY: Good afternoon [“B"], again I'm going to bring you back to that time period, of July 3rd to July 14th of the year 2000. If I understand your testimony, you attended a day camp called [ ], and it was a five day a week camp, at the [ ], and there were other boys and girls that attended too, is that all correct?

["B"]: Yes.

GRAY: All right. And your parents would drop you off and pick you up at the end of the day? That was sort of the system, was it?

["B"]: Yes.

GRAY: And I believe that you told the DA, that you were in a group of maybe somewhere between six and ten children?

[“B"]: Yes.

GRAY: Now besides your group, were there also other groups?

[“B"]: Yes.

GRAY: Assigned to this [ ] camp?

["B"]: Yes.

GRAY: How many groups would you say?

["B"]: Other than me about four.

GRAY: Other than your group, four or five. So you would have had 40 or 50 kids total?

["B"]: Yes.

GRAY: And they would break, I assume, the groups up into groups of ten or less?

["B"]: Yes.

GRAY: And you would have some sort of a supervisor guiding each of the groups?

["B"]: Yes.

GRAY: So if we had about five groups you would have at least five supervisors for each group?

["B"]: Yes.

GRAY: And then would the groups of supervisors, would they have like an assistant or someone to help them.

["B"]: No.

GRAY: Was there someone called [ ] who assisted?

["B"]: I think he was the person that would come get us off to -- get out of our cars and go into the things and mark us down.

GRAY: Okay. So when you finished whatever at the [ ] would you go down to the [ ] Park Pool and take a swim in the summer time on hot days I assume?

["B"]: Yes.

GRAY: To give you a chance to, kind of get rid of some energy, right?

["B"]: Yes.

GRAY: Okay. And all of your groups would go at the same time?

["B"]: No, I think only two groups went at one time.

GRAY: So maybe you would have between sixteen and twenty kids?

["B"]: Yes.

GRAY: Going down to the pool?

["B"]: Yes.

GRAY: Okay. And you would get into your bathing suits and come and horse around the pool?

["B"]: Yes.

GRAY: And on one of these days, if I understood your testimony correctly, you were in the pool playing various chase and splash games?

["B"]: Yes.

GRAY: When Mr. Nickel's foot, touched you in the testicular area, is that correct?

[B"]: Yes.

GRAY: And you told him that hurt or you said that hurt?

["B"]: I didn't say it.

GRAY: In any event, he apologized for that?

["B"]: Yes.

GRAY: Was there a lot of rough housing going around in the pool?

["B"]: Not really.

GRAY: Would you pull kids into the pool or?

["B"]: No.

GRAY: Pull them toward you or push them away?

[“B"]: No, only when we were having like making wars and stuff, we'd throw water at him and they moved back.

GRAY: Okay. I thought you said they would push you sometimes?

[“B"]: Yes, well, we were splashing and they would like accidentally hit us in the shoulder or something.

GRAY: Okay. But it was -- were these games, so we can better understand, for those of us that haven't played either, just like horsing around in the water, is that a way to describe it?

["B"]: Yes.

GRAY: And can we agree that, when we horse around in the water, we will sometimes hit someone by accident or by mistake?

["B"]: I don't know.

GRAY: Let me ask you a little bit about this, did some investigator come and talk to you?

["B"]: Yes, they called my mom and then we went down to the police station, and we talked.

GRAY: Okay.

CZAJKA: Thanks.

GRAY: Was your mom present when you talked or just you and the investigator?

["B"]: Just me and the investigators.

GRAY: Okay. And did they tell you that they were investigating a particular individual?

["B"]: Yes, I don't remember.

GRAY: Did they take any notes? Did you see were they writing things down?

["B"]: Yes.

GRAY: Was there anyone else present besides you and the two investigators?

["B"]: No.

GRAY: Do you recall when this was that they talked to you?

["B"]: About a week or two after camp.

GRAY: Sometime, would you say, in July or was it August?

["B"]: I think the end of July or the beginning of August.

GRAY: And were they asking you questions at that time about Jeffrey Nickel?

["B"]: Yes.

GRAY: When they started to question you, how did they begin?

["B"]: I don't remember.

GRAY: Did they ask you, whether or not Jeffrey Nickel's contact with you then to your testicle, whether that was an accident or not?

["B"]: Yes.

GRAY: Did you tell them you didn't know?

["B"]: Yes.

GRAY: What did you tell them then?

["B"]: I don't remember.

TORNCELLO: Objection.

CZAJKA: Overruled.

GRAY: And you finished about within the course of that period of time, from July 3rd to July 14th, the period [the camp] --

CZAJKA: About when in that time frame did this incident occur?

["B"]: I think the last week.

GRAY: But did you ever go back to class after it?

["B"]: After my session was over?

GRAY: No, no.

CZAJKA: After your camp that day.

GRAY: After the day you talked about the foot, in your private area, did you have other --

["B"]: When I was down in the station.

GRAY: No, I'm sorry. I am confused.

CZAJKA: The day you swam and you talked about the foot and going back to the museum, that day?

["B"]: Yes.

GRAY: All right. And did you go to the camp the next day at [ ] camp the next day?

["B"]: Yes.

GRAY: And the next day?

["B"]: Yes.

GRAY: And the next day?

["B"]: Yes.

GRAY: Okay. And then camp ended?

["B"]: I think so.

GRAY: Okay. During that three-day period that went back to camp after this that you recounted for us, did you ever complain about this to any personnel there at the camp?

["B"]: No.

GRAY: To your mom or to your dad or?

["B"]: Because I didn't know what it meant.

GRAY: Okay. May I have just a moment please? I think that's all, Your Honor. Thank you ["B"].

TORNCELLO: Yes, Judge. When you talked about Jeff Nickel's foot being up by your testicles, was that on the outside out your swim trunks or on the inside of your swim trunks?

["B"]: Inside. [Absolutely false. Moreover, it would simply be physically impossible for anyone to get their foot inside another person’s bathing suit while standing, on the other foot, in the water of a rather slippery swimming pool that sloped down at an angle of about 20’ (degrees). As do virtually all boys, [“B”] was wearing a rather long bathing suit with an inner lining. Therefore, Nickel would have had to get his toes past the outer layer and then the inner layer, before being able to touch the boy’s genitals. That’s just incredible; it never happened.]

TORNCELLO: Okay. And?

CZAJKA: Say that again?

["B"]: Inside.

GRAY: Your Honor, I'd object to the question as not being covered on direct or cross.

CZAJKA: What do you say to that?

TORNCELLO: I think it was Judge. We talked about it on cross-examination, the contact that he had between his -- on his testicles.

CZAJKA: Okay. Sustained.

TORNCELLO: Now, I'm not sure, maybe I did ask this, maybe I didn't ask this, did his foot being in contact with your testicles, did that happen one time or more than one time?

[“B"]: One time.

TORNCELLO: Okay. No further questions.

GRAY: No further questions.

CZAJKA: Thank you ["B"].

(Whereupon, the witness was excused.)

CZAJKA: Attorneys, see me in 201--

(Whereupon, the proceedings concluded in the above-entitled matter.)

End of Day 1

See Day 2.