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

DAY TWO

May 18th, 2001

CZAJKA: Good morning. You were both kind enough to accommodate my schedule, and I'm the person that's late this morning, please excuse me for that. Are we -- do we have to do anything before the next witness is called?

TORNCELLO: The only thing is I want to renew my request, on the letters, People's number one through four for identification. It's our position that they contain admissions of the defendant, to the specific charges in this indictment.

CZAJKA: I haven't read them yet.

TORNCELLO: The only reason is I want to make a point, as I'm close to resting, and I don't think I can rest unless a decision is made on that, that's all, at some point.

CZAJKA: I'll deal with it before you rest.

TORNCELLO: Great. Thank you. Other than that—

GRAY: I'll reserve my objection.

CZAJKA: I'll give you both an opportunity to argue after I've read the materials and before I rule.

GRAY: Your Honor, with respect to the reading materials, I believe they were handed up to the Court, four letters, I was provided with but one letter, so, three of the letters that the Court is going to have I never --

TORNCELLO: Let me say that there were four envelopes, there is one letter. The other envelopes contain photographs, with notations on the back of the photographs, that’s what we are referring to. I think you've had an opportunity anyway to see them though, haven't you?

GRAY: That I have, I thought maybe four envelopes were handed up and four letters.

TORNCELLO: Four envelopes.

GRAY: And Your Honor, before -- as to the joint capacity of the Court in this trial as both the trier of the law and the facts, of course these were the kinds of the -- the things that we were very careful of with respect to a jury, so again, we would like to ask the Court to, you know, use its discretion.

CZAJKA: I appreciate that, I'm confident that I can disregard that which is inadmissible. Certainly including, the things that we discussed in pre-trial.

GRAY: Thank you, sir.

CZAJKA: Call your next witness.

TORNCEI.LO: We call [alleged victim "C"].

CLERK: Good morning. Tell me your full name?

["C"]: I know my middle name.

CZAJKA: Great.

[“C"]: Okay: ["C”].

CZAJKA: What do you want me to call you?

[“C"]: Either [ ] or [ ], I don't really care.

CZAJKA: All right. How do you spell that?

["C”]: Which one? [ ] or [ ]?

CZAJKA: All of them.

["C"]: [ ] is [ ] and [ ] is [ ] or [ ],

CZAJKA: What about your last name?

["C"]: My last name is spelled [ ].

CZAJKA: All right. How old are you now ["C”]?

["C"]: I am 11 and 3/4.

CZAJKA: Whoa. What's your date of birth?

["C"]: I was born on [ ], 1989.

CZAJKA: 1989. Where were you born?

["C"]: I don't know.

CZAJKA: And where are you living now?

["C"]: I'm living in [ ].

CZAJKA: Okay. Whereabouts?

["C"]: [ ]

CZAJKA: Who are you living there with?

["C”]: I am living with -- with my mother, stepfather, my brother and my little sister.

CZAJKA: What's your little sister's name?

["C"]: [ ] .

CZAJKA: How old is she?

[“C"]: She is 8.

CZAJKA: Okay. And are you in school?

["C”]: Uh-huh.

CZAJKA: Yes?

["C”]: (Nod nod.)

CZAJKA: You have to say yes or no ["C”].

["C"]: Yes.

CZAJKA: What school are you in?

["C"] [ ] .

CZAJKA: What grade are you in?

["C"]: 6th.

CZAJKA: What classes do you take? What subjects?

["C"]: Math, science, social studies, reading, library, same things, and I think that's it.

CZAJKA: Okay. What is your favorite subject?

["C"]: Math.

CZAJKA: And what are you learning about in math these days?

["C"]: Measuring.

CZAJKA: What? How so?

["C"]: (No response.)

CZAJKA: What are you measuring?

["C"]: Right now the centimeter part.

CZAJKA: Uh-huh. How do you measure the volume of a rectangle, the area of a rectangle? Is that what it is you're doing, things you’re learning about?

["C"]: Yes.

CZAJKA: How would you determine what the area of a rectangle is?

["C”]: I don't know.

CZAJKA: Tell me what you've learned in math in measuring.

["C”]: We have learned about inches, centimeters, and right now I'm learning about cubic stuff, observing an area.

CZAJKA: What does that mean?

["C"]: I don't know yet.

CZAJKA: You are going to start learning, that's why they're teaching you?

["C"]: Right.

CZAJKA: If you knew that already they wouldn't have to teach you, right?

["C"]: Right.

CZAJKA: What are you learning about in reading in English class?

[“C”]: I think in English right now I'm learning about -- I don't remember.

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 helps 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: Do you go to church at all?

["C"]: Uh-huh.

CZAJKA: What church do you go to?

[“C”]: [ ] in [ ].

CZAJKA: And do you have any religious instruction when you go to that church?

["C"]: I don't know.

CZAJKA: Well, do you just attend services or do you also have a teacher that teaches you about religion?

["C"]: We don't get taught about religion, I don't really know how to explain what we get taught about.

CZAJKA: Do you go every week?

["C"]: Uh-huh.

CZAJKA: What day of the week do you go?

["C"]: Well, I guess Sundays, Saturday and Wednesday.

CZAJKA: Three days a week?

["C"]: But Saturday is just for kids.

CZAJKA: Okay.

["C"]: Sundays is for kids and adults, so is Wednesday.

CZAJKA: For kids and adults?

["C"]: Uh-huh.

CZAJKA: What's that shirt you have on?

["C"]: A [ ] 's shirt.

CZAJKA: Okay. Do you know who I am?

["C"]: Uh-huh.

CZAJKA: Do you know what my job is?

[ "C"]: The judge.

CZAJKA: Okay. Do you know who the other people in the courtroom are?

["C"]: No idea.

CZAJKA: How about that lady over there?

["C"]: She's the typist.

CZAJKA: Do you know what she's doing?

["C"]: Typing up what I said.

CZAJKA: Very good. How about this man behind me?

["C"]: (Nod nod.)

CZAJKA: He's the first person you talked to when you came up here, right?

["C"]: Uh-huh.

CZAJKA: You and he talked?

["C"]: Right.

CZAJKA: What did you talk about?

["C"]: Telling the whole truth.

CZAJKA: And did you?

["C"]: Uh-huh.

CZAJKA: Remember to say yes or no.

["C"]: Yes.

CZAJKA: What does that mean to you?

["C"]: It means that if you tell the truth you're correct, if you tell a lie, you're not.

CZAJKA: You're getting it correct?

["C"]: Yes, and correct.

CZAJKA: Give me an example of something that's true.

["C"]: If I broke the window, but I didn't want to say I broke it, I still said it, that way I wouldn't get into much trouble as I would if I lied and said my brother broke the window.

CZAJKA: If you broke the window and I asked you if you broke the window, would that be truthful?

["C"]: If I broke the window?

CZAJKA: If you broke the window and I asked you, if you broke the window, what would a lie be?

["C”]: I didn't, my brother did it.

CZAJKA: Okay. And if that was a lie that you told to your brother, about your sister, you told your sister that your brother broke the window, that would be a lie, would that be good or bad?

["C"]: Bad.

CZAJKA: And if you told a lie like that to your teacher, would that be good or bad?

["C"]: Bad.

CZAJKA: And if you told a lie like that to your mom, what would that be?

["C"]: Bad.

CZAJKA: How about if you told a lie like that here in court, in the courtroom to me.

["C"]: Really bad.

CZAJKA: What would be worse, what would be the worst of all these?

[“C"]: Telling a lie in here.

CZAJKA: Why is that?

["C"]: Because you can get arrested.

CZAJKA: You can get arrested?

["C"]: Uh-huh.

CZAJKA: I couldn't hear.

["C"]: You'd get arrested if you told a lie in court.

CZAJKA: Okay. And did you learn about telling lies when you go to church?

["C"]: Uh-uh, yes.

CZAJKA: And what have you learned about in church about lying?

["C"]: That lying --

CZAJKA: Speak up.

["C"]: That lying isn't right, but telling the truth is better and instead of lying. And no lying is also in the commandments.

CZAJKA: In the commandments, and what are the commandments?

["C"]: You can have no other God --

CZAJKA: No, no, no, don't tell me what they are, what are they about?

["C"]: About the rules for God, rules for us.

CZAJKA: Okay. And what if you break one of those rules of God?

["C"]: God will punish us.

CZAJKA: Okay. ["C”]?

["C"]: Yes.

CZAJKA: What I'd like for you to do is to step out in the hallway with Lieutenant Stoudt, okay?

["C"]: Yes.

(Whereupon, the witness was excused.)

CZAJKA: All right. Mr. Torncello, do you wish to be heard with respect to the issue before the Court?

TORNCELLO: Judge, no. I have no exceptions or additional requests for any further questioning of the witness.

CZAJKA: Mr. Gray?

GRAY: Your Honor, my request would be the same as having -- that I made with all the children called here.

CZAJKA: Okay. I'm satisfied that this child, like the others, is an intelligent child, and in fact, more mature or beyond his years, very bright, like the two other children, and fully capable of understanding the nature of the oath, and in fact, may testify under oath.

TORNCELLO: Thank you.

CZAJKA: Bring him back in.

GRAY: Respectfully take exception.

CZAJKA: Come back up here ["C"].

["C"]: Okay.

(Whereupon, the witness resumed the witness stand.)

CZAJKA: Now, you swear and promise that you will tell the truth?

["C"]: Yes.

CZAJKA: Okay go ahead.

TORNCELLO: Thank you, Your Honor. Good morning ["C"].

["C"]: Good morning.

CZAJKA: Remember ["C"], you have to speak up.

["C"]: Okay.

CZAJKA: So that even the people in the back of the room can hear.

["C"]: All right.

TORNCELLO: I guess so everyone knows, can you state your name for us again?

["C"]: I am [ ].

TORNCELLO: Okay. And ["C"], when is your birthday?

["C"]: [ ].

TORNCELLO: Do you recall what year you were born in?

["C"]: '89.

CZAJKA: 1989?

TORNCELLO: Is that --

["C"]: Well, I am going to be twelve this year.

GRAY: Object to the statement of age, by this witness.

CZAJKA: Well, I suppose age is something that would require -- none of us have personal knowledge of our own age.

GRAY: That's correct.

CZAJKA: So this witness is no different from the rest of us I suppose, in that regard. Objection overruled.

TORNCELLO: Thank you.

["C"], do you go to school?

[ "C"]: Yes.

CZAJKA: And where do you go to school?

["C"]: [ ] in [ ].

TORNCELLO: What grade are you in?

["C"]: Sixth.

TORNCELLO: Where do you live? What town or community do you live in?

["C"]: I live in [ ].

TORNCELLO: And you live --

CZAJKA: Remember to speak up; you live in [ ]?

TORNCELLO: And who do you live with in [ ]?

["C"]: My mother, my stepfather, my brother, my little sister.

TORNCELLO: Okay. Now, for how long have you gone to [ ] school?

["C”]: (No response.)

TORNCELLO: Do you recall?

["C"]: No, I don't.

TORNCELLO: Okay. Have you been there for a few years?

["C"]: Yes.
TORNCELLO: Okay. And you're in what grade now?

["C"]: Sixth.

TORNCELLO: Okay. I want to bring your attention back to last year, back to 1999, so I'm assuming you're in fourth grade, is that right?

["C”]: Yes.

TORNCELLO: And I want you to focus on the month of about July, of 1999, okay? During that time did you meet a person or do you know a person by the name of Jeff Nickel?

["C"]: Yes.

TORNCELLO: And where did you meet Jeff Nickel?

["C"]: My school.

TORNCELLO: Okay. What was -- do you know what was his job, at [ ]?

["C"]: A teacher assistant.

TORNCELLO: Okay. He was a teacher's assistant?

["C"]: Uh-huh.

TORNCELLO: Was he assigned to the fourth grade or to your grade?

["C"]: I believe so.

TORNCELLO: Okay. Or was he assigned to every grade? Did he work with all the grades do you know?

["C"]: I don't know.

TORNCELLO: Okay. Now, well I guess incidentally, do you see Jeff Nickel in the courtroom today?

[“C”I]: uh-huh.

CZAJKA: Say yes or no.

["C"]: Yes.

TORNCELLLO: Can you point to him, please?

["C"]: Right there (indicating).

TORNCELLO: What color jacket does he have on?

["C"]: Vanilla-colored.

TORNCELLO: Judge, I'd ask the record to reflect that the witness identified the defendant.

CZAJKA: Yes.

TORNCELLO: Okay. Back in July of 1999, where would you see Jeff Nickel? Where would you see him?

["C"]: In the classroom.

TORNCELLO: All right. And did you talk to him?

["C"]: Uh-huh, yes.

TORNCELLO: Did he help you with your subjects and with your class work?

["C"]: Yes.

TORNCELLO: Did you become friends with him?

["C"]: Yes.

TORNCELLO: All right. Did you ever have any contact with him? I mean physical contact with him?

["C"]: Yes.

TORNCELLO: And what type, if you remember, what type of physical contact did you have with him?

["C"]: All I can remember is being restrained once, being restrained by him once.

TORNCELLO: Being restrained by him once?

["C"]: Yes.

TORNCELLO: Could you have -- when you say restrained, did his hands come in contact with you?

["C"]: Yes.

TORNCELLO: And where were his hands, when they were in contact with your body?

["C”]: I personally don't remember.

TORNCELLO: Okay. Now, did you ever have any -- do you recall any sexual contact?

["C"]: No.

TORNCELLO: With Jeff Nickel?

["C"]: No.

TORNCELLO: Okay. During that period at all do you recall anything like that?

["C"]: No.

TORNCELLO: Okay. Do you recall having any conversation with Jeff Nickel, concerning sexual touching?

["C"]: I don't remember.

TORNCELLO: You don't remember? Okay. Could I have just a minute judge? Okay. You said earlier that Jeffrey Nickel was your friend, right?

["C"]: Yes.

TORNCELLO: Okay. Did there come a time when things changed, when he really wasn't? That you didn't think of him as your friend anymore?

GRAY: Objection, immaterial and irrelevant.

CZAJKA: Overruled.

["C"]: Can you say that again?

TORNCELLO: Yes. Did there come a time when things changed and that he wasn't really -- that you didn't consider him your friend anymore?

["C"]: Yes. [Well, this contradicts the so-called “Victim Impact Statement” in the Pre-Sentence Report, which states that : [“C”]’s mother says he was quite upset that the defendant was in trouble as he considered himself to be a good friend of the defendant.”]

TORNCELLO: Okay. And was that because, did he make you feel uncomfortable?

GRAY: Objection.

["C"]: Yes.

GRAY: Move to strike.

CZAJKA: I'm going to give the DA a little latitude here. Overruled.

TORNCELLO: Thank you. Did something happen that changed your feeling for Jeffrey Nickel that made it, like you said, it changed, that at first you were comfortable and later you were uncomfortable?

GRAY: Objection.

TORNCELLO: Did something happen? [Once again, Czajka simply ignored Gray’s objection immediately above.]

["C"]: Not that I remember.

TORNCELLO: Okay. Judge, I have no further questions.

CZAJKA: You have no questions Mr. Gray?

GRAY: May I have just a moment? Your Honor, we have no questions of ["C"].

CZAJKA: ["C"], you're all done. Thank you.

(Whereupon, the witness was excused.)

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

DEFRANCESCO: Mark DeFrancesco.

TORNCELLO: And what is your occupation?

DEFRANCESCO: I am an inspector with the Albany County Sheriff's Department.

TORNCELLO: How long have you been an inspector with the Sheriff's Department?

DEFRANCESCO: Since September. [So, DeFrancesco was promoted to Inspector just a month after Nickel’s arrest.]

TORNCELLO: Okay. September, 2000?

DEFRANCESCO: 2000, correct.

TORNCELLO: Okay. And how long have you been employed in total, by the Albany County Sheriff's Department?

DEFRANCESCO: Since April of 1991.

TORNCELLO: Okay. Can you give us an idea of some of your duties and responsibilities, I guess as an inspector?

DEFRANCESCO: As an inspector I am in command of the Office of Professional Standards which encompasses internal affairs and inspections. [This is not a good job for someone like him, as will become apparent.]

TORNCELLO: Back in August of 2000 what was your title?

DEFRANCESCO: Senior Investigator.

TORNCELLO: Give us an idea then, in August of 2000, what were your duties and responsibilities then?

DEFRANCESCO: I was a supervisor of the Criminal Investigations Unit within the Sheriff's Department.

TORNCELLO: Okay. And I guess, what's the Criminal Investigations Unit?

DEFRANCESCO: It's a unit in the Sheriff's Department which investigates crimes, major felonies, actually all felony investigations, crimes against children, computer crimes, everything with the exception of narcotics and vice.

TORNCELLO: Okay. Narcotics and vice is a separate unit?

DEFRANCESCO: Correct.

TORNCELLO: Do you have staff that works for you or below you?

DEFRANCESCO: Yes. [Keep in mind that DeFrancesco acknowledges that he was the boss - - and was kept apprised - - of the investigation. This is and will become extremely important in terms of 1) the medical exam of [“A”] that was not turned over to the defense in a timely manner, and 2) the police-taken interior photos of Nickel’s house that were also not turned over until very late in the game.]

TORNCELLO: How many people are involved with that staff, if you remember?

DEFRANCESCO: It varies, usually four investigators.

TORNCELLO: Okay. I want to bring your attention again back to August of 2000; at some point did you become involved in an investigation, of alleged child abuse?

DEFRANCESCO: Yes.

TORNCELLO: And if you recall, when did you -- did you become involved with that investigation?

DEFRANCESCO: I believe it was August 3rd of 2000.

TORNCELLO: And how did you become involved, do you recall?

DEFRANCESCO: I received a call from my superior, that a mail clerk at the Correctional Facility, the Albany County Correctional Facility, had received letters in the mail and contained in the letters were some pictures.

TORNCELLO: What did you do? Did you respond to the jail?

DEFRANCESCO: No, I didn't. I sent an investigator over.

TORNCELLO: Who was?

DEFRANCESCO: I believe Investigator Ron Bates.

TORNCELLO: Okay. And I'm assuming you’re the boss and were you kept apprised of the investigation?

DEFRANCESCO: Yes.

TORNCELLO: Okay. Did you get a chance to see the letters?

DEFRANCESCO: At some point, but not that day.

TORNCELLO: Right. Do you recall, what did you do that day on August 3rd? Did you have any part really in the investigation?

DEFRANCESCO: Not on that day, no.

TORNCELLO: What’s your first – what’s the first real action that you took with respect to this investigation? Strike that, that's not so great. Did you identify any individuals that you wanted to interview?

DEFRANCESCO: An individual was identified, a young boy needed to be interviewed. [He doesn’t say how he identified him. The letter gave no last name. [“A”] was actually identified via the report of the alleged ‘slapping’ incident.]

TORNCELLO: Who was?

DEFRANCESCO: ["A"]

TORNCELLO: And did you do that? Did you interview ["A"]?

DEFRANCESCO: Yes, I did.

TORNCELLO: Do you recall when you interviewed ["A"]?

DEFRANCESCO: I believe it was August 7th.

TORNCELLO: And do you recall where you interviewed ["A"]?

DEFRANCESCO: At [ ] in the City of Albany.

TORNCELLO: Okay. Without I guess -- with respect to the contents, did you get some information from ["A"]?

DEFRANCESCO: Yes, I did.

TORNCELLO: After you received that information, from ["A"], what did you do?

DEFRANCESCO: I completed an affidavit, based on my interview.

TORNCELLO: And then what was the next action that you took?

DEFRANCESCO: I directed some people, some of my investigators, to locate Jeff Nickel.

TORNCELLO: Okay. I want to show you an item, People's number 2A, 2A, which is, let me show you that and ask you what that is?

DEFRANCESCO: This is a picture of Jeff Nickel and ["A"].

TORNCEUD: Okay. Do you know - -

GRAY: Hold it up inspector, please? Thank you.

TORNCELLO: And on the back of that photograph there are some initials, is that correct?

DEFRANCESCO: Yes, sir.

TORNCELLO: What those initials?

DEFRANCESCO: My initials, the date and time.

TORNCELLO: Did you initial that?

DEFRANCESCO: Yes, I did.

TORNCELLO: What role did that photo play in your investigation?

DEFRANCESCO: Well, pardon?

TORNCELLO: If any?

DEFRANCESCO: When I was interviewing --

GRAY: This is not in evidence. Any testimony now relating to this is beyond its identification.

CZAJKA: Well, I have no idea what you mean. It's a bad question. The objection is sustained.

TORNCELLO: Where did you get that photo?

DEFRANCESCO: This is one of the photos that was secured from the Correctional Facility that came in the mail.

TORNCELLO: Okay. And did you use that photo in some way?

DEFRANCESCO: Yes, I did.

TORNCELLO: How did you use it?

DEFRANCESCO: I showed it to ["A"] during my interview with him.

TORNCELLO: Did you ask him who was in that picture?

DEFRANCESCO: Yes.

TORNCELLO: Did he tell you?

DEFRANCESCO: Yes.

TORNCELLO: Did he tell you it was Jeff Nickel?

DEFRANCESCO: Yes.

TORNCELLO: Incidentally I guess just for -- does that photo, does this appear to be in the similar condition or same condition as when you received it on August 7, 2000?

DEFRANCESCO: Yes, sir.

TORNCELLO: Thanks. I'll offer that. I'll offer it again.

CZAJKA: This will all be grist for the mill.

TORNCELLO: Thank you. Now, after the interview with ["A"] you said you instructed some of your investigators to go, visit Mr. Nickel, is that correct?

DEFRANCESCO: Yes.

TORNCELLO: Do you know where he lived?

DEFRANCESCO: Yes.

TORNCELLO: Where was that?

DEFRANCESCO: I believe 46 Lansing Drive. [sic]

TORNCELLO: How do you know where he lived?

DEFRANCESCO: From the return address on the mail envelopes.

TORNCELLO: Okay. And did they do that? Did they go out to 46 Lansing Drive in Delmar? [Torncello doesn’t know correct address either.]

DEFRANCESCO: Yes.

TORNCELLO: Do you recall who went out there?

DEFRANCESCO: I believe it was Investigator Bates and Investigator Thompson.

TORNCELLO: Okay. And you didn't go, did you?

DEFRANCESCO: No.

TORNCELLO: What was the result of their visit out to Lansing Drive in Delmar?

DEFRANCESCO: Mr. Nickel came back to the Albany County Courthouse.

TORNCELLO: Now, where -- on August 7, 2000, did you meet Jeff Nickel?

DEFRANCESCO: Yes.

TORNCELLO: Do you see him in the courtroom today

DEFRANCESCO: Yes, I do.

TORNCELLO: Point to him please.

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

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

CZAJKA: Yes.

TORNCELLO: Thank you. Now where did you first see Jeff Nickel?

DEFRANCESCO: Here at the Courthouse.

TORNCELLO: Okay. And if you know, how did he arrive at the Courthouse?

DEFRANCESCO: He drove his car here.

TORNCELLO: Was another member of the Albany County Sheriff's Department in the car with him?

DEFRANCESCO: No.

GRAY: Objection.

CZAJKA: If you know?

GRAY: Unless he was physically there and saw it?

DEFRANCESCO: I was told he did not--

GRAY: Objection, hearsay.

CZAJKA: It's stricken.

TORNCELLO: Okay. At some point did he find his way in the county -- into the building?

GRAY: Objection.

CZAJKA: Well, he got into the building?

DEFRANCESCO: Correct.

CZAJKA: Whether he found his way or was lead. He got in here?

DEFRANCESCO: Correct.

TORNCELLO: Did he get to your office somehow?

DEFRANCESCO: An office, not mine.

TORNCELLLO: Whose office did he go to?

DEFRANCESCO: It was the complex of the chief and deputy command office.

TORNCELLO: Where is that office?

DEFRANCESCO: Down in the basement floor of the courthouse here.

TORNCELLO: Okay. Were you there?

DEFRANCESCO: Yes.

TORNCELLO: And Jeffrey Nickel was there, right?

DEFRANCESCO: Correct.

TORNCELLO: Anybody else?

DEFRANCESCO: In and out of the office during the time were Investigator Bates, Montaleone, Reilly and Chief Apel and Investigator Thompson.

TORNCELLO: Somebody showed him where your office was, right?

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: They brought him into your office?

DEFRANCESCO: Correct.

TORNCELLO: And what happened when he arrived?

DEFRANCESCO: (No response.)

TORNCELLO: Well strike that. Have you ever seen Jeff Nickel before?

DEFRANCESCO: No.

TORNCELLO: Had you ever met Jeffrey Nickel before?

DEFRANCESCO: No.

TORNCELLO: How were you dressed?

DEFRANCESCO: In civilian clothes. [Once again, there has been absolutely nothing to indicate to Nickel that these people are policemen.]

TORNCELLO: Okay. Did you identify yourself?

DEFRANCESCO: Yes. [Torncello is lying; he refused to identify himself, and did not even give a first name for quite a while.]

TORNCELLO: I guess you identified -- did you introduce yourself?

DEFRANCESCO: I told him my name, who I was, the fact that I was a supervisor and that he had met an investigator earlier.

TORNCELLO: What kind of room did you -- describe the room that you were in, on that day, August 7th?

DEFRANCESCO: It s a office with three or four desks in this office, they're three or four doors that have an office, one person in an office, one field commander's office, and another just a filing room.

TORNCELLO: Okay. What was your initial observation of Mr. Nickel? What was his demeanor like?

GRAY: Objection, irrelevant.

CZAJKA: Sustained, not for that reason, although that fact mayor may not be accurate. Firstly, it's two questions. Ask one question at a time. I'll consider the objections as they're made.

TORNCELLO: Thank you. Did you make any observations of him?

DEFRANCESCO: Yes.

TORNCELLO: And what were they?

DEFRANCESCO: That he was very calm, relaxed and composed. [Sure, because Nickel thought he had been lead there to discuss the supposed ‘slapping’ incident.]

TORNCELLO: Did you invite him to sit down and talk with you?

DEFRANCESCO: Yes.

TORNCELLO: Okay. Where did you sit?

DEFRANCESCO: I was seated behind a desk.

TORNCELLO: Where did Mr. Nickel sit?

DEFRANCESCO: Right beside me.

TORNCELLO: Okay. So you sat at whose desk, do you recall?

DEFRANCESCO: It was one of the secretary's desks, I believe Kim Shaw.

TORNCELLO: Is there a computer on the desk?

DEFRANCESCO: Right behind it.

TORNCELLO: All right. And Mr. Nickel sat next to you?

DEFRANCESCO: Correct, behind the desk, right next to me.

TORNCELLO: Could you see the computer screen?

DEFRANCESCO: Yes.

TORNCELLO: Could -- was Mr. Nickel's vision blocked in any way from seeing the computer screen?

GRAY: Objection.

CZAJKA: Overruled.

DEFRANCESCO: No. [Though this is technically true, it is also highly misleading. DeFrancesco was right in front of the computer, and Nickel was sitting to DeFrancesco’s right . Therefore, Nickel would have seen the computer screen, but from an angle of about 45’(degrees). Nobody can read what’s on a computer screen that way.]

TORNCELLO: Now, what's the first thing, the first thing that you talked about with Jeff Nickel, when you sat down at that desk?

DEFRANCESCO: I advised him of his Miranda rights. [Again, he is lying. DeFrancesco never advised Nickel of his Miranda rights. Nickel only saw those rights printed at the top of the statement form, after it had already been ‘taken’ and printed out.]

TORNCELLO: How did you do that?

DEFRANCESCO: We have a disk, that I placed into the computer and I pulled up a form. It's a standardized form on that and the form is--

GRAY: Objection to the characterization standardized.

CZAJKA: Overruled, continue your answer.

DEFRANCESCO: It's a standardized form and on the form it's captioned the Miranda warnings. I read the Miranda warning from the computer screen which were on that form. [DeFrancesco did not even turn the computer on until Nickel had been there for at least 45 minutes.]

(Whereupon, People's Exhibit "22" was marked for identification.)

TORNCELLO: Let me show you what's been marked as People's number 22, for identification, is that the standard form that you're referring to?

DEFRANCESCO: Yes, it is.

CZAJKA: Well, the printed portion?

DEFRANCESCO: Correct.

CZAJKA: I mean?

TORNCELLO: The top?

CZAJKA: All right. Go ahead.

TORNCELLO: I guess do us all a favor and read to the Court the Miranda warnings, in the same manner that you read them to Jeff Nickel, on August 7, 2000.

GRAY: I'm going to object, as what's being called for here is a reenactment. There would be no way to truthfully be able to determine how they were read on that day at that point in time, unless there was some recording or visual for the -- for the trier of fact to determine.

TORNCELLO: Your Honor --

CZAJKA: Don't interrupt.

GRAY: That would be the basis of my objection.

CZAJKA: Overruled. Go ahead.

DEFRANCESCO: I stated that you have the right to remain silent, anything you say can and will be used against you in a court of law. [These Miranda warnings are printed in the first person; i.e., I have right to remain silent, I have the right to an attorney, etc. Therefore, if DeFrancesco were to be believed that he read Nickel his rights from that form, he would have had to constantly be interposing “you” for “I”, etc. That makes absolutely no sense. The police always have a little Miranda card that they use for this, which is printed in the third person: “You have the right to remain silent, etc.” DeFrancesco’s testimony is simply not credible.]

CZAJKA: I want to amend Mr. Torncello's question, I want you to answer the following question, instead read it in the manner in which you read it to Mr. Nickel on that day, interpose what if anything he said as you read it. Go ahead.

DEFRANCESCO: Yes, sir. I stated to him one that you have the right to remain silent, and I said two, anything you say can and will be used against you in a court of law. That you have the right to talk to a lawyer, to have him present, while you are being questioned, that if you cannot afford a lawyer, one will be appointed to represent you before any questions. At this point I asked him if he understood what I just explained to him.

GRAY: Your Honor, I believe he's reading from the printed form here; he read it incorrectly.

CZAJKA: Well, that would be grist for cross-examination then. Go ahead.

DEFRANCESCO: And he told me he understood. And I asked him if he wanted to continue and speak with me and he said yes. [He’s lying again; because he never read the Miranda rights at all, he certainly did not ask Nickel if the latter would allow him to continue to speak with him.]

TORNCELLO: Now, after you read those warnings, did the interview or the conversation continue?

DEFRANCESCO: Yes.

TORNCELLO: And how did it -- describe the interview. Describe what you did and what he did, and tell us all what happened.

DEFRANCESCO: We sat and talked, Mr. Nickel told me it would be best if we started right from the very beginning, which he meant from the beginning of his life.

CZAJKA: Well, you don’t know what he meant. Just answer the question. Tell us what you said and what he said.

DEFRANCESCO: He told me it would be better if we started from the beginning, I said fine. He started to explain to me his life experiences, starting around six or seven years of age, to the present time.

TORNCELLO: Okay. And if you remember, what did he say and what did you say?

DEFRANCESCO: He told me--

GRAY: Objection.

CZAJKA: Overruled.

DEFRANCESCO: He told me that, how he first realized that he was gay, he had attended gay groups, he explained to me how he had partners, male partners, and the break-ups with the male partners. [Why is DeFrancesco even discussing this? It has nothing whatsoever to do with the charges. Apparently, he thinks the fact that Nickel is gay is somehow relevant.]

TORNCELLO: Continue.

GRAY: Your Honor, I'm going to object to the introduction of this line of conversation, as not relating to or being definitive of a statement, but is being offered for the purpose of prejudicing the trier of fact here against the accused.

CZAJKA: How so?

GRAY: If I heard his statement to this point, he was recounting, that Mr. Nickel told him he was gay.

CZAJKA: Well, I can tell you that I have no bias against the defendant because of sexual orientation if that is the implication, and even were the trier of fact to have such a bias, as I said, I don't, but were I to do so, I am confident that I can consider that which is relevant and admissible.

GRAY: I think the only purpose, Your Honor, for which this is being offered though, is an attempt to influence or prejudice against Mr. Nickel. It has no relevancy to the charges at issue here.

CZAJKA: Mr. Torncello?

TORNCELLO: It's part of the defendant's statement judge. [Well, that’s not good enough. In order for any evidence to be admitted, the judge must weigh its probative value against its potential for prejudice. It has none of the former at all. Yet, Czajka overrules the objection anyway.]

CZAJKA: Overruled. Go ahead Inspector, continue.

TORNCELLO: I will tell you what?

CZAJKA: Is there an outstanding question?

TORNCELLO: The inspector was in the middle of an answer, as I recall.

TORNCELLO: Can you just tell us, what he said, what you said?

DEFRANCESCO: As we spoke, I was -- correction, as I spoke to him, he spoke to me, he was saying so much that --

CZAJKA: I want to amend something that I said earlier when I referred to the defendant's sexual orientation. The defendant's sexual orientation is not remotely relevant, and so, as trier of fact, it will not be up to me to determine whether he is or is not gay. That is not an issue before the Court. I want to make that clear. I didn’t want to leave the impression that that might somehow affect the verdict because it won't. Go ahead.

DEFRANCESCO: As we spoke to each other I would type some of what he had said, what I was typing what he was saying to me, if I typed something on the computer screen that was not as the way he wanted it to read or say, he would say no, no, no I meant this and I would go back and correct it to what he wanted it to say. [No - - DeFrancesco merely read back portions of what he had typed.]

TORNCELLO: Did the defendant make corrections?

DEFRANCESCO: As we were going along.

CZAJKA: So he was looking at the screen?

DEFRANCESCO: He was. [But Nickel could not possibly read the screen at such an angle.]

GRAY: Objection as to the conclusion whether he was looking at the screen meaning thereby he was reading it as opposed to merely seeing a screen. I object to the testimony of even seeing a screen; only the accused would know what he was looking at.

CZAJKA: He was making corrections as you typed?

DEFRANCESCO: Yes, sir.

CZAJKA: Overruled. Go ahead Mr. Torncello.

TORNCELLO: Thank you. And I take it, your conversation was reduced to writing, is that correct?

DEFRANCESCO: Correct.

TORNCELLO: And that’s what I want to get at, how was it reduced to writing. Would the defendant talk and then you -- you would write or did you type it, or did you type it? What actually happened?

DEFRANCESCO: I would type it. We would talk both of us like you and I are talking now, then he talked and I typed on the computer and as we went along, then he would stop and when I caught up to where we were in the conversation and continue our conversation.

TORNCELLO: Okay. And you said that defendant would make some changes, is that correct?

DEFRANCESCO: Yes.

TORNCELLO: Did he tell you how he wanted things phrased for instance?

DEFRANCESCO: Yes.

TORNCELLO: Now, how long did this take, approximately?

CZAJKA: How long did what take?

TORNCELLO: The taking of the statement?

DEFRANCESCO: Two-and-a-half hours or so. [He’s lying. Nickel was in that office with him for a total of about six hours. The first 90 minutes or so were in the nature of ‘pre-interview.’ Thus the ‘taking’ of the ‘statement’ itself lasted about four-and-a half hours.]

TORNCELLO: Were you at the computer the whole time?

DEFRANCESCO: No.

TORNCELLO: Okay. Did you have anything to eat?

DEFRANCESCO: We ordered outside for pizza; we had soda I believe and we also had coffee.

CZAJKA: Did defendant eat?

DEFRANCESCO: Yes, sir.

CZAJKA: And drink? [As if that makes all the difference.]

DEFRANCESCO: Yes, sir.

TORNCELLO: Okay. And then I guess would you go back and continue writing the statement?

DEFRANCESCO: Yes.

TORNCELLO: Preparing that statement. Okay. Now, at some point in time, let me ask you, were you comfortable that the defendant could read?

GRAY: Objection.

CZAJKA: Overruled.

DEFRANCESCO: Yes.

CZAJKA: Well, the defendant's -- the witness is comfortable, is irrelevant. Go ahead.

TORNCELLO: Could the defendant read?

DEFRANCESCO: Yes.

GRAY: Objection.

CZAJKA: How do you know that he could read?

DEFRANCESCO: He told me he went to college.

TORNCELLO: Okay. Did he tell you where he went to college?

DEFRANCESCO: In Boston.

TORNCELLO: Okay. Now, at some point in time did you print out the statement?

DEFRANCESCO: Yes, I did.

TORNCELLO: And after you printed it out, what did you do?

DEFRANCESCO: I handed it over to Mr. Nickel and asked him to read it over.

TORNCELLO: Okay. And where was he sitting when you asked him to do this?

DEFRANCESCO: Again, right next to me.

TORNCELLO: Okay. Did he read it?

DEFRANCESCO: Yes, meticulously.

GRAY: Objection as to that characterization.

CZAJKA: Sustained.

TORNCELLO: Did he -- tell me did he glance at it, did he take a while to look?

DEFRANCESCO: He took a while with each page. He would read that page over and go on to the next page.

TORNCELLO: And at the conclusion, do you know how many pages the statement is?

DEFRANCESCO: I believe six pages.

TORNCELLO: At the bottom of the statement there's a little line for signatures?

DEFRANCESCO: Yes.

TORNCELLO: And did you ask the defendant to sign it?

DEFRANCESCO: Yes. [A signature appears only on the last page of this six-page ‘statement.’ Standard professional practice when taking a statement is to have the person making it sign, or at least initial, all pages. This is a safeguard against the person taking the statement being able to subsequently go back and alter any or all of the preceding pages. In fact, when a statement was taken for this case from Matthew Peters, each and every page was initialed by him. The truth is that alterations were in fact made to the preceding pages of Nickel’s so-called ‘statement.’]

TORNCELLO: What did you say to him? What did you say? Did you say you have to sign that or sign that now? What did you do?

DEFRANCESCO: I asked him if he would sign the statement.

TORNCELLO: Did he sign the statement?

DEFRANCESCO: Yes.

TORNCELLO: Did he sign it in front of you?

DEFRANCESCO: Yes.

TORNCELLO: Did you make him sign it?

DEFRANCESCO: No.

GRAY: Objection.

CZAJKA: Overruled.

TORNCELLO: Did you sign it?

DEFRANCESCO: Yes.

TORNCELLO: Did you sign it in his presence?

DEFRANCESCO: Yes.

TORNCELLO: Was there anybody else present when he signed that document?

DEFRANCESCO: I believe there was.

TORNCELLO: Who was that, do you recall?

DEFRANCESCO: I believe Investigator Reilly.

TORNCELLO: Okay. Was Investigator Reilly in the room the whole time?

DEFRANCESCO: The whole time the statement was taken, sir?

TORNCELLO: Yes?

DEFRANCESCO: No.

TORNCELLO: Were other members of your department in the room?

DEFRANCESCO: In and out of the room.

TORNCELLO: Okay. Basically were you in the room with the defendant the entire time?

DEFRANCESCO: Yes, sir.

TORNCELLO: Okay. Let me do this, I have some questions I want to ask you specifically about that, but I'll offer it. Let's look at People's number 22 for identification, and if you can tell the Court what that is?

DEFRANCESCO: This is the statement of Jeffrey Nickel taken August 7, 2000.

TORNCELLO: Is that a photocopy or is that the original? Look at it?

DEFRANCESCO: This is the original.

TORNCELLO: Okay. If you can -- take your time, did you look at it and see if it's in the same condition or similar condition as when it was created on August 7, 2000?

DEFRANCESCO: It appears to be in the same condition.

TORNCELLO: Okay. Judge, I would offer People's number 22 in evidence.

GRAY: Your Honor, would I be able to ask some preliminary questions?

CZAJKA: Go ahead.

GRAY: Beforehand, in the nature of voir dire.

CZAJKA: I would assume so.

GRAY: Yes, sir. Good morning Mr. DeFrancesco. I am going to ask you a few questions, if I may this morning. I believe you testified with respect to People's number 22?

CZAJKA: Inspector, would you step down for a minute, please? Attorneys come up.

(Side bar.)

CZAJKA: Come back inspector please.

GRAY: Inspector, referring now to People's for identification, number 22. I'll hand this back to you for a moment, if I may? At the very top of item 22, there appears what we commonly refer to as the Miranda warnings, do they not?

DEFRANCESCO: Yes, sir.

GRAY: And is it your testimony that as they appear there was as you gave them, that afternoon or evening?

DEFRANCESCO: I don't think I understand.

GRAY: Well, you're holding a document in your hands?

DEFRANCESCO: Correct.

GRAY: At the top of which are Miranda warnings?

DEFRANCESCO: Yes, sir.

GRAY: Are those -- are the Miranda warnings that you say that you gave to Mr. Nickel that afternoon?

DEFRANCESCO: These are the Miranda warnings I gave with the exceptions.

CZAJKA: With what?

DEFRANCESCO: With exception.

GRAY: Well, let me ask you this, let's look at the Miranda warnings number one.

TORNCELLO: Objection.

CZAJKA: Sustained. This should be voir dire, this mayor may not be appropriate cross-examination, but it's not appropriate for voir dire.

GRAY: Then I have no further questions.

CZAJKA: What do you say to the People's offer of number 22?

GRAY: Object to it, Your Honor, on the following grounds: That the Miranda warnings listed at the top of this document are not the proper Miranda warnings that must be provided to a defendant. If the Court will look at this document, you'll notice that number one, it says that I have the right to remain silent, not that you have. He’s the typer of it. That anything I say can and will be used against me in a court of law, he's the typer, he’s the speaker. It's not whatever you say can be used against you in a court of law. Three, that I have the right to talk to a lawyer, that the investigator would have the -- such a right. It's -- there's a very important difference here, Your Honor. He should have been advised that you have the right as you sit here, to talk to a lawyer, no what his rights might be, and to have him with me, while I am being questioned. Well he's being questioned, it should be while you are being questioned you have the right to have that lawyer there. He's got that, if I cannot afford a lawyer; it should be if you can't afford a lawyer, one will be appointed to represent you before any questioning, if you want one. It's continually used in the singular with the word 'I'. I submit, Your Honor, that this is not the proper Miranda warning. It was not intelligently given or understood to be given. It was not advising this defendant of his rights, nor was there any answer elicited as to whether or not even in this confused state, that the accused understood any of these answers. He wasn't stopped and asked after each one of them, did you understand what I said, and gotten a response, and for that reason I'm going to object to it, Your Honor.

CZAJKA: Wish to be heard?

TORNCELLO: No, I think I'll rest on the testimony of the witness.

CZAJKA: All right. Certainly at the conclusion of the trial, the defendant may wish to argue to the trier of fact that it should disregard the statement for those very reasons, as the jury would disregard statements for those very reasons, consistent with the applicable CJI charge, but that does not go to the admissibility of the statement in the first place. The objection is overruled, and Exhibit 22 is received.

(Whereupon, People's Exhibit 22 was received into evidence.)

GRAY: Your Honor, could I make an additional objection to the witness?

CZAJKA: One minute. Go ahead.

GRAY: Your Honor, I believe that pages, physically counting, the first two¬ and-a-half, to three-quarter pages.

CZAJKA: Yes.

GRAY: Which are taken in the nature of a sort of a background or whatever one wants to characterize them, should not be regarded or admitted because they are not relevant to the charges in the indictment against this defendant. I would object on that basis and I'm also asking for, I suppose, a redaction, if you will, although I appreciate it’s the Court that –-

CZAJKA: Well, as I indicated earlier, I'm confident that I can disregard that which is irrelevant, and I will do so, subject to whatever arguments both of you have. Certainly if there was a jury here, we'd consider that in greater detail, and I'll consider each of your requests and for a redaction and what if anything should be redacted, but I'm going to have to read it anyway, and you tell me at the appropriate time what you want me to disregard, and the reason for it, and I'll consider the request before I render a verdict. Make sense? [That’s all very nice. The problem is that there is absolutely no evidence that Czajka actually did any of this. Therefore this represents yet another broken promise on his part.]

TORNCELLO: Thank you. Judge, I wanted to ask for the purpose of a clean record, if I publish that document now. I'll read it very quickly, as quickly as is --

CZAJKA: Read it to me?

TORNCELLO: I do.

CZAJKA: No, no, no.

TORNCELLO: I would like to put it on the record.

CZAJKA: The exhibit is in the record, it's marked and received. I can read it myself.

TORNCELLO: I do have to ask particular questions with respect to the document.

CZAJKA: I'll consider the objections as they're made. Do you want me to read it first?

TORNCELLO: Yes. Thanks judge.

CZAJKA: While I'm doing this, why don't we take a few minutes?

(Whereupon, a brief recess was had.) [Therefore, Czajka is, for the first time, reading the ‘statement’ late in the very same day the he will render his verdicts.]

CZAJKA: Go ahead Mr. Torncello.

TORNCELLO: I want to ask you a couple of questions about People's number 22 which is in evidence, okay? They're some terms there, that I would like you to explain to me, okay? The first one is. its called B/L, and later referred to as boy lover; did you have a conversation with Jeff Nickel, about the term boy lover and what it means? [This is more pure propensity ‘evidence’, having nothing to do with the actual, particular crimes which Nickel was charged with.]

GRAY: Objection, the document speaks for itself.

CZAJKA: You're referring to a conversation separate and apart from that which was reduced?

TORNCELLO: I wonder if he could explain to the Court what the term boy lover means and what about that means --

CZAJKA: That's in the statement? Unless you're talking about some separate conversation?

TORNCELLO: No.

CZAJKA: The objection is sustained.

TORNCELLO: And if you'd refer to page two, it says in the first paragraph it starts picking up the NAMBIA journal, is that -- what does that mean? [Despite Gray’s objection being sustained immediately above, Torncello plows ahead, in a similar vein, anyway.]

GRAY: Objection again, Your Honor. These were the same pages that I was addressing earlier.

CZAJKA: All right. Let me clear one thing up, inspector, did it -- did you have any discussions with the defendant, that were not reduced to that document?

TORNCELLO: Do you mean other days or times or just that interview?

CZAJKA: Well, during this period of time on this day?

DEFRANCESCO: It's hard for me --

CZAJKA: Did he say anything to you that was not reduced, that was not transcribed?

DEFRANCESCO: No. [This contradicts what DeFrancesco will later tell Gray on cross-examination. In any event, DeFrancesco is simply lying here. The ‘slapping’ incident, in addition to many other things, were discussed and yet not transcribed as part of the ‘statement.’ Not least of which, DeFrancesco asked Nickel if he had ever inserted his finger into [“A”]’s rectum; Nickel adamantly, vociferously said that he had not. Thus, as is typical of ‘statements’ from suspects, the police make sure to eliminate any trace of exculpatory evidence, while emphasizing, enhancing, and perhaps even simply making up an and all inculpatory evidence.]

CZAJKA: The objection is sustained.

TORNCELLO: I'm asking you, do you have any experience in or some education, in sex crimes?

DEFRANCESCO: Yes.

TORNCELLO: Okay. And what kind of experience or where did you receive that training?

DEFRANCESCO: I attended --

GRAY: Again if I could just be heard on this issue? If the attorney would be kind enough to identify whether it was prior to or after his involvement in this case?

TORNCELLO: Prior to your involvement in this case, did you have any experience in investigating or working on sex crimes?

DEFRANCESCO: Yes, yes.

TORNCELLO: And where did you get that training and where did you get that experience?

DEFRANCESCO: I attended numerous training seminars and conferences, including one which was the New York State Police Sexual Offender Seminar, interviewing and interrogation schools, Cornell Henry Seminar for Missing and Exploited Children, and other seminars that I don't recall off the top of my head.

TORNCELLO: Is it fair to say some of them dealt with children?

DEFRANCESCO: Yes.

TORNCELLO: Okay. Did the topic or did the term, NAMBLA, ever come up?

DEFRANCESCO: Yes.

TORNCELLO: Do you know what that term means?

DEFRANCESCO: Yes.

GRAY: Objection again, whether that's before he was talking about this, August 7th of 2000, or after it.

TORNCELLO: Thank you, Your Honor. The North American Man-Boy Love Association, do you know anything about them or the tenets or any -- what their beliefs are?

CZAJKA: Overruled. Go ahead.

DEFRANCESCO: NAMBLA stands for the North American --

CZAJKA: For the -- did you know what it meant before this statement?

DEFRANCESCO: Yes.

CZAJKA: All right. Go ahead.

DEFRANCESCO: NAMBLA stood for or stands for the North American Men Boy Lover Association. [sic]

TORNCELLO: Okay. And--

GRAY: I'm going to object to this, Your Honor again, as being highly prejudicial to the case. Again, if a jury were here, I would be moving for a mistrial, because this does not deal with the accusations contained in the indictment. It's merely offered to prejudice the accused, and its only purpose is for that to be --

CZAJKA: Overruled. It goes to, well number one, it's part and parcel of exhibit 22, which the People allege is a statement given by the defendant. Number two, it is relevant for the purpose of the People's attempt to prove sexual gratification. You may proceed. Objection overruled. [Czajka is wrong on both counts; his ruling here alone is sufficient grounds for reversal of Nickel’s convictions and granting him a new trial. 1) The allegation that this is part of Nickel’s statement is not enough to admit this sort of testimony into evidence (in this case, none) against its potentially prejudicial effect (in this case, huge). 2) Such ‘evidence’ cannot be used to prove sexual gratification vis-vis the actual, discrete crimes Nickel was charged with. See Bagarozy case in Propensity/Who Cares?.]

GRAY: Again objection.

CZAJKA: That calls for hearsay. Have you learned that through your experience as an investigator? [Once again, this is the least of the problems with this whole line of inquiry.]

GRAY: Objection.

CZAJKA: I'll allow you to voir dire before he answers the ultimate question; have you learned about the organization?

DEFRANCESCO: Yes, to some degree.

CZAJKA: Go ahead.

TORNCELLO: And what are, if you can, if you know, what are their tenets, some of their beliefs through your training?

GRAY: Objection.

CZAJKA: What -- explain the source of your information first.

DEFRANCESCO: From working with other investigators who have dealt with crimes or investigations where NAMBLA comes up.

CZAJKA: Actually, wait. The reference in the statement, Mr. Torncello, is that or are -- is that defendant read a magazine, or looked at a magazine, not that he was a member of the organization. So for that reason the objection is sustained. [Even if the prosecution were able to prove that Nickel was a member of that organization, that would still not be a legitimate line of inquiry.]

TORNCELLO: Okay. Now, do you know if -- do you know if this defendant is a member of NAMBLA?

GRAY: Objection.

CZAJKA: Well, before you answer the question, tell me what the source is of your information?

DEFRANCESCO: Regarding his belonging?

CZAJKA: Yes.

DEFRANCESCO: I don't know.

TORNCELLO: Okay. You don't know?

DEFRANCESCO: No.

TORNCELIO: Okay. Have you had a chance to review some of the items that were seized as evidence?

DEFRANCESCO: Yes.

TORNCELLO: Okay. Do they contain a number of NAMBLA magazines, and mailings? [Once again, no probative value at all; pure prejudice.]

DEFRANCESCO: Yes.

GRAY: Objection.

CZAJKA: These are the exhibits that are being reserved on?

TORNCELLO: Yes.

CZAJKA: Sustained. If I receive them, they speak for themselves. If I don't, they're not in evidence. Go ahead.

TORNCELLO: Okay. Let me go back a little ways to August 3, 2000, you said that you were made aware of letters that arrived at the jail?

DEFRANCESCO: Correct.

TORNCELLO: Are you aware that the letters -- do you know who the letters were mailed to?

DEFRANCESCO: Mr. Peters.

GRAY: Objection, hearsay.

CZAJKA: Sustained. Once again, talking about exhibits one through four that I reserved on? Sustained.

TORNCELLO: Well, as part of your investigation did you learn, who those letters were mailed to?

GRAY: Objection.

CZAJKA: Sustained.

TORNCEUO: Do you know who Matthew Peters is?

DEFRANCESCO: Yes.

TORNCEUO: Who is Matthew Peters?

GRAY: Objection, irrelevant as to who is Matthew Peters.

CZAJKA: I'll allow it subject to connection.

TORNCELLO: Who is Matthew Peters?

DEFRANCESCO: Matthew Peters -- he was confined to the Albany County Correctional Facility. He was there in charges related to a conviction for a sexual offense involving children.

TORNCELLO: On August 3, 2000, was he an inmate at the Albany County Correctional Facility?

DEFRANCESCO: Yes, he was, he was.

CZAJKA: So what's the purpose of that evidence?

TORNCELLO: That's the tie-up of People's one through four, that's all.

CZAJKA: Well, other than to prove that the defendant was associating with those convicted of sex crimes, what's the relevance?

TORNCELLO: Again, I think it goes to the intent issue that I have to prove with respect to several other counts of this indictment. It is also further proof, in order to authenticate the letters, that are the letters that is in People's one through four.

CZAJKA: Mr. Gray?

GRAY: I object to it, Your Honor.

CZAJKA: Objection sustained. The question and answer are stricken.

TORNCELLO: Okay. Now, on August 7th, did you ever go to 36 Lansing Drive?

DEFRANCESCO: yes.

TORNCELLO: As part of the search?

DEFRANCESCO: Yes.

TORNCELLO: You did. And did you, pursuant to that -- pursuant to the search did you go through that area? Did you go through the house?

DEFRANCESCO: Yes.

TORNCELLO: Okay. Were you pretty much throughout the entire house?

DEFRANCESCO: I walked in several different rooms in the house.

TORNCELLO: Okay.

CZAJKA: What are you looking for?

TORNCELLO: People's 7. I want to show you People's number 7 marked for identification, if you can, can you tell the Court what that document is please?

DEFRANCESCO: This is a Search and Seizure waiver, that was executed on that date.

TORNCELLO: Now, did you prepare that document?

DEFRANCESCO: Yes, I did.

TORNCELLO: Did you assist in preparing that document?

DEFRANCESCO: Yes.

TORNCELLO: And when was that document prepared?

DEFRANCESCO: Shortly after Jeffrey Nickel had signed the statement that he had given me.

TORNCELLO: So on August 7th at the conclusion of him giving his written statement, that document was created, is that correct?

DEFRANCESCO: That's correct.

TORNCELLO: Okay. And why was it created?

CZAJKA: Mr. Torncello, I made a mistake, but unlike suppression of a statement, where the defendant would get two bites, to where the Court in a pre-trial matter be suppressed and the trier of fact that is, it not consider the statement for 60.45 reasons, that's not the case with a search, is it? That's purely legal, is it not?

TORNCELLO: You are correct. Mr. Gray talked about it the other day and it seems like he's making an issue of the search, and I just want to explain to the Court that a search consent was signed and that the defendant signed it and a voluntary search commenced. [In order to get Nickel to sign the consent to search, DeFrancesco showed Nickel the search warrant that would have authorized a search anyhow. (Ha also indicated that if Nickel declined to sign, they would ‘really tear the place apart;’ perhaps cause Nickel’s mother to have a stroke, etc.) It is well-settled law that when a suspect is shown a search warrant, that automatically nullifies any subsequent “consent’ to a “voluntary” search. Moreover, one of the problems the police had to deal with is that the search warrant mandated that the search be conducted no later than 8:30 p.m. In fact, the search was conducted after that time.]

CZAJKA: That may or may not be the case. What's your position? Is it a legal issue or that -- is it a legal and factual issue both for the pretrial Court and trier of fact or is it --

TORNCELLO: A legal issue that's previously been determined.

CZAJKA: All right. Then move on.

TORNCELLO: You went to his house, right?

DEFRANCESCO: Correct.

TORNCELLO: And did you notice anything?

CZAJKA: I'm not ruling, Mr. Gray, if you have a position that's contrary that you want to discuss at some point at the relevant time, I would be glad to hear it, but right now move on Mr. Torncello.

TORNCELLO: You went to his house, right?

DEFRANCESCO: Correct.

TORNCELLO: And did you go down to the basement?

DEFRANCESCO: Yes.

TORNCELLO: What if anything did you notice down in the basement?

DEFRANCESCO: A computer, a printer, a scanner, fax, copier. [Note that these were not found in Nickel’s bedroom, as [“A”] testified.]

TORNCELLO: And how were things stored down in the basement?

DEFRANCESCO: There was a second couple of rooms with a second room off the basement main room where the computer had been located. There was numerous boxes.

TORNCELLO: Okay. And what were the boxes doing there?

DEFRANCESCO: Jeffrey Nickel told me that he was packing to go to college.

TORNCELLO: Okay. So, his -- were his belongings packed together?

DEFRANCESCO: Yes.

TORNCELLO: Okay. And is it fair to say that the room had been broken down and picked up and ready to leave? [This is true. Note that Nickel was just about to leave the area where these kids lived.]

DEFRANCESCO: Right, some of it, yes.

GRAY: Objection.

CZAJKA: Sustained.

(Whereupon, People's Exhibit "23" was marked for identification.)

TORNCELLO: I am handing you what's been marked as People's twenty-three for identification; tell me what that is?

DEFRANCESCO: It's a picture of Jeffrey Nickel.

TORNCELLO: Do you know when that was taken?

DEFRANCESCO: It must have been after his arrest.

TORNCELLO: Okay. On August 7, 2000?

DEFRANCESCO: August 7, 2000.

TORNCELLO: Do you know where it was taken?

DEFRANCESCO: Albany County Correctional Facility.

TORNCELLO: Do you know by whom it was taken?

DEFRANCESCO: No, I do not.

TORNCELLO: Does that picture fairly and accurately depict the way Jeff Nickel looked on August 7, 2000?

DEFRANCESCO: Yes, it does.

TORNCELLO: At this point, I would offer twenty-three in evidence judge.

GRAY: May I see it judge? I have to object on the basis that this is apparently in common parlance, a mug shot, if you will, wherein a sign is held in front of the --

CZAJKA: What's the relevancy Mr. Torncello?

TORNCELLO: His appearance on the day of, his appearance at the time. I think his appearance has changed, that's all.

CZAJKA: Somehow relating to Exhibit 5? What are you getting at?

TORNCELLO: It may, it may, yes.

CZAJKA: Well, it's your evidence.

TORNCELLO: Yes, well, it may, I think it would help the trier of fact.

CZAJKA: Objection sustained.

TORNCELLO: Thank you. I don't think I have any more questions, Your Honor. Can I check my notes for a second? Judge, no thank you. No further questions.

GRAY: If it please the Court, Your Honor? Good morning Mr. DeFrancesco; how are you?

DEFRANCESCO: Good morning sir.

GRAY: I'm going to bring you back in time, if I may, to, I believe the 7th of August, but you correct me if that's an incorrect date. Did you have occasion on that day, to sit and talk with a person by the name of ["A"]?

DEFRANCESCO: Yes.

GRAY: And who was there present with you?

DEFRANCESCO: Yes.

CZAJKA: What's the reference date Mr. Gray?

GRAY: August 7th, sir. About what time of day was that taking place?

DEFRANCESCO: I would like to say ten o'clockish.

GRAY: In the morning, sir?

DEFRANCESCO: Yes.

GRAY: Is it not a fact that another officer accompanied you, for that purpose?

DEFRANCESCO: Yes.

GRAY: And who was that other officer?

DEFRANCESCO: Investigator Bates.

GRAY: Okay. Is that Ronald Bates of your department?

DEFRANCESCO: I couldn't hear you.

GRAY: Was that Ronald Bates of your department?

DEFRANCESCO: Yes.

GRAY: And when -- did you in advance of this interview, did you have -- did you have a chance to set it up as far as what location it was going to take place?

DEFRANCESCO: With specifics, no, no.

GRAY: With respect to just a general location?

DEFRANCESCO: Yes.

GRAY: All right. And was that going to be at the [ ] Home, was it?

DEFRANCESCO: Yes.

GRAY: And that was the place you knew to be where the boy went to school?

DEFRANCESCO: Correct.

GRAY: Where his counselors would be and other people of that nature, correct?

DEFRANCESCO: Yes.

GRAY: All right. And you chose to interview the boy alone, did you not? And by alone I mean you and Investigator Bates?

DEFRANCESCO: Yes.

GRAY: No one else was present?

DEFRANCESCO: No, no one else was present.

GRAY: Okay. Now, in your course of study that you have taken, or let me just ask you this, would you have found it an aid or beneficial, in chatting with a young person of tender years or age, to have it recorded in some way?

DEFRANCESCO: No. [Then he is clearly poorly trained. The prevailing, professional norm is to record such interviews. See Suggestibility.]

GRAY: You don't think that would be a wise thing to do?

DEFRANCESCO: No.

GRAY: All right. Could we agree that it would, if it were recorded, it would give us the benefit today, wouldn't it, of knowing every question that was asked and every question that was answered, wouldn't it?

DEFRANCESCO: Certainly.

GRAY: Would you have found it a useful tool to video tape such an interview again when you're dealing with someone of tender years?

DEFRANCESCO: No, it would be more of a hindrance. [To this railroad perhaps.]

GRAY: Well again, with a television or a review, again, wouldn't we know exactly the questions that were asked, the answers -- answers that were given?

DEFRANCESCO: Certainly.

GRAY: But you consider that to be a hindrance did you say?

DEFRANCESCO: The fact of the cameras would and video taping, yes.

GRAY: All right. Before you sat down to interview ["A"], did you make any investigation with respect to his background?

DEFRANCESCO: As far as, sir?

GRAY: Anything.

TORNCELLO: Objection.

CZAJKA: Overruled.

DEFRANCESCO: I would have to say yes to some degree.

GRAY: Some degree? And tell us, who did you get information from or what did you know?

DEFRANCESCO: I don't remember her name, it was one I believe an administrator of [ ]’s, to the degree when ["A"] came there, and where he was previous. [DeFrancesco admits this was, at best, a ‘bare-bones’ inquiry.]

GRAY: All right. Did you make any inquiry as to him of anyone else if the boy is on any medication?

DEFRANCESCO: I don't believe I did.

GRAY: Would that have been important in investigating when you're going to interview someone and hoping to record the truth or the facts about the situation, to find out whether they're on medication?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Did you make any investigation to find out whether or not the boy, ["A"], was on medication?

DEFRANCESCO: No.

GRAY: Would that have been a factor, would you consider that an important factor to know?

DEFRANCESCO: No.

GRAY: Would you consider it an important factor to know, whether or not medications were given that day?

DEFRANCESCO: No.

GRAY: Would you consider it an important factor to know, the type, if any, of medications, that were given?

DEFRANCESCO: No. [This is simply incredible. This is the central witness in this case - - and DeFrancesco thinks it’s not important to know whether the kid is on any psychiatric medications?]

GRAY: Would you have considered it an important factor, for this interview, to determine whether ["A"] had told untruths in the past?

TORNCELLO: Objection. -

CZAJKA: Whether or not the witness believed or heard that he told untruths in the past, his position, as to whether or not it was an important factor, is not relevant, the witness' position.

GRAY: Did you make any inquiry as to whether or not he had told untruths in the past?

DEFRANCESCO: No. [This simply reflects a reckless disregard for the truth. See no evil, hear no evil.]

GRAY: Did you make any inquiry as to whether or not he has been punished in the past for untruths?

DEFRANCESCO: No.

GRAY: Did you make -- did you ask any questions to ascertain whether or not he has been punished on more than one occasion, for the untruths?

DEFRANCESCO: No.

GRAY: Only you and Officer Bates were present during this so-called, or this interview, isn't that correct?

DEFRANCESCO: That's correct.

GRAY: And was any of that interview reduced to writing?

DEFRANCESCO: I made out an affidavit after my interview.

GRAY: No, at the interview were you making

CZAJKA: Contemporaneously?

DEFRANCESCO: I was not taking any notes.

GRAY: If you knew at that time of the interview that the boy had told untruths in the past, strike that. I believe you said you went to 36 Lansing Drive, on the 7th of August, 2000, is that correct?

DEFRANCESCO: Yes, sir.

GRAY: And could we safely assume that besides yourself there were other Sheriff's Department personnel that went there?

DEFRANCESCO: Yes.

GRAY: You went there to conduct a search, didn't you?

DEFRANCESCO: Yes.

GRAY: Sure. Now, did you take any camera man with you or anyone to take photographs of that?

DEFRANCESCO: There would have been an investigator there to take photographs, yes.

GRAY: And did they take photographs?

DEFRANCESCO: Yes.

TORNCELLO: You have them; they have been supplied.

GRAY: I'll have to check. Were there photographs taken of the bedroom of Jeff Nickel?

DEFRANCESCO: I believe there was.

GRAY: Did you go into the bedroom of Jeffrey Nickel?

DEFRANCESCO: Yes.

GRAY: Did you see any water bed in the bedroom of Jeff Nickel?

DEFRANCESCO: No. [Again, contrary to what [“A”] testified to.]

GRAY: Did you make an observation as to the color of the walls in the bedroom of Jeff Nickel?

DEFRANCESCO: Yes.

GRAY: What color were they, officer?

DEFRANCESCO: I don't remember.

GRAY: Did you make any observation as to any --

CZAJKA: Well, if you don't remember the color, how is it that you remember that you made an observation of the color? [Even Czajka realizes that DeFrancesco is being less than honest here.]

DEFRANCESCO: ["A"] had said they were blue and they weren't blue. [Again, contrary to [“A”]’s testimony.]

CZAJKA: All right.

GRAY: Did you see any computer in that room?

DEFRANCESCO: No. [Again, contrary to [“A”]’s testimony.]

GRAY: May I have a moment please to look at my file? Thank you for permitting the delay, Your Honor.

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

GRAY: I would -- could I show you Defendant's marked for identification, B, which I believe contain a packet of ten photographs, if you just take for a moment and examine those please, and then I'll ask you some questions about them.

DEFRANCESCO: Yes, sir.

GRAY: First, can you identify what those ten photographs depict?

DEFRANCESCO: Pictures of 36 Lansing Drive, Delmar, New York.

GRAY: And was that the home that you went to, to conduct this search?

DEFRANCESCO: Yes.

GRAY: And were these photographs taken by your department, of that home, at the time of that search?

DEFRANCESCO: Yes, no, not at that time of the search, no.

GRAY: Where [when?] were these taken investigator?

DEFRANCESCO: I don't know.

GRAY: Do they fairly and accurately depict the residence as you recalled the residence on August 7th of 2000?

DEFRANCESCO: Yes.

GRAY: And are those photographs in color?

DEFRANCESCO: Yes.

GRAY: Did those ten photographs depict the color of the house?

DEFRANCESCO: Yes, sir.

GRAY: Would you be kind enough to tell the Court what color is depicted in those photographs?

CZAJKA: What color the house is?

GRAY: Yes.

DEFRANCESCO: Light blue. [Again, contrary to [“A”]’s testimony.]

GRAY: Now, your department had brought ["A"] even by that house, hadn't they?

TORNCELLO: Objection, time frame?

GRAY: Some time.

CZAJKA: Ever?

DEFRANCESCO: I believe they did.

CZAJKA: Did you?

DEFRANCESCO: No, sir. I did not.

GRAY: Did he indicate, did ["A"] indicate to you the color of the house was white?

DEFRANCESCO: Honestly, I don't remember if he did or not. He very well may have though. [DeFrancesco continues to hedge here, only grudgingly admitting, when forced to, that [“A”] is wrong about absolutely every interior and exterior detail about the house which that he testified to.]

GRAY: I would like to offer these, if I may?

CZAJKA: On consent.

TORNCELLO: Yes. Can I have a look? No objection.

(Whereupon, Defendant's Exhibit "B" was received in evidence.)

GRAY: Officer, we talked before about photos being taken the night of the search after August 7th, and those pictures you showed us were not of that event? [This is where Gray begins to ask DeFrancesco about the police-taken interior photos of the house, which they failed to turn over to the defense.]

DEFRANCESCO: That's correct.

GRAY: All right. I don't recall ever seeing any pictures of the search.

TORNCELLO: I don't think I have any other pictures.

GRAY: Well, your department, whether they took pictures the evening of August 7th, would have preserved those, would they not?

DEFRANCESCO: Yes.

GRAY: All right. And your office is right here in this building, is it?

DEFRANCESCO: Not my office, but we do have an office here, yes.

GRAY: Would they be fairly easily retrieved?

DEFRANCESCO: They very well may be. [DeFrancesco is still being quite coy.]

CZAJKA: Is this your last witness?

TORNCELLO: No.

CZAJKA: How about if Inspector DeFrancesco goes to look and you call your next witness?

TORNCELLO: He will be here in ten or fifteen minutes.

CZAJKA: Go ahead. Well, is there an investigator or officer that's outside -- would you go get him Lieutenant?

DEFRANCESCO: He's not testifying so he can get it for me. [This is already way too late for the defense to be able to effectively use the photos. [“A”] had already finished testifying the previous day and was no longer even in the courtroom; Bates had testified the previous day as well.]

GRAY: I would appreciate looking at those photographs before continuing, if I may? In the nature of conserving time Your Honor, maybe I can jump to a different area while we're waiting. Okay. Now, this investigation, you were the supervisor of this investigation, were you not?

DEFRANCESCO: Yes.

GRAY: And you were aware that some people working under your command had been to the home of Jeff Nickel prior to August 7th, were you not?

DEFRANCESCO: Yes, I was.

GRAY: And you were aware also that they went there, and spoke with the mother of Jeff Nickel, were you not?

DEFRANCESCO: Yes.

GRAY: And you were aware, were you not, that they gave a fictitious story to her, about wanting to see Jeffrey Nickel because of a V&T accident, in a shopping center?

DEFRANCESCO: Yes.

GRAY: And that was not the truth, was it?

DEFRANCESCO: No.

GRAY: Are you the one that authorized that non-truth to be uttered?

DEFRANCESCO: I don't believe I was.

GRAY: As a matter of fact, you were aware they made more than one visit to the home prior to August the 7th, again pursuing that non-truth, isn't that correct?

DEFRANCESCO: Yes.

TORNCELLO: Objection.

CZAJKA: That it's a policy?

TORNCELLO: On the grounds of relevancy.

CZAJKA: That he authorized it?

TORNCELLO: Or that it even --

CZAJKA: Overruled, I'll allow it. Go ahead Mr. Gray.

GRAY: Is it the policy of your department to instruct or permit officers, to tell non-truths?

TORNCELLO: Objection.

CZAJKA: What was the question?

(The preceding question was read back.)

CZAJKA: So what's the difference? What's wrong with it? I don't understand the point.

GRAY: Well, officers went to the home of Mr. Nickel and lied about it.

CZAJKA: I understand that, but I mean is there some legal prohibition against officers lying to suspects that I don't know about? [No, but this has impeachment value in terms of their general honesty.]

GRAY: I would hope there would be, but --

CZAJKA: All right. Well, I don't know of any. Objection sustained.

GRAY: You were aware, I think you told us

CZAJKA: Do you have the pictures?

TORNCELLO: I sure do. [This is three pages later in the trial transcript, after DeFrancesco said the non-testifying officer could go get them. Because it takes about one minute to read through/aloud each transcript page at a normal pace, that means it took approximately three minutes for the police to come up with these photos, something they failed to do in the nine months previous to that.]

CZAJKA: Did you ever see those before?

TORNCELLO: No.

GRAY: I'm sorry, sir.

CZAJKA: I asked the Assistant DA, did he ever see those before and he shook his head no. Why don't we have them marked at your convenience Mr. Gray? [That’s not good enough. Under the law, the DA is regarded as having constructive possession of them. This is a Brady violation, as well as prosecutorial and police misconduct.]

GRAY: There came a time on the evening of August 7th officer, when you were in the bedroom area of Jeffrey Nickel's home and Jeffrey Nickel's bedroom?

DEFRANCESCO: Yes.

GRAY: And there was no water bed in the room? Can we safely assume there would have been a bed in the bedroom?

DEFRANCESCO: Yes.

GRAY: All right. And did you make an observation as to the -- the bed covers and colors of bed covers in that room?

DEFRANCESCO: I would have noticed them; I don't recall them. [DeFrancesco is still hedging.]

GRAY: If I asked you if the bedspread were a solid white, would that refresh your recollection?

DEFRANCESCO: No, because I don't recall.

GRAY: If I asked you, that the sheets or pillows was a light blue, would that refresh your recollection?

DEFRANCESCO: No, sir.

GRAY: If I can show you People's for identification purposes, these two photographs, in the hopes of refreshing your recollection?

(Whereupon, Defendant's Exhibits "C" and “D" were marked for identification.)

CZAJKA: Go ahead.

GRAY: Officer, I am going to show you Defendant's "C" and "D" for the very limited purpose of seeing if it might refresh your recollection, as to the color of the bedspread or sheets or pillow cases that you found in that room on that night of August 7, 2000?

DEFRANCESCO: In the picture the bedspread is white, solid white. [Correct, and that is in contrast to what the sex photo shows.]

GRAY: Does that refresh your recollection as --

DEFRANCESCO: Honestly, I don't remember them. The picture didn't help me remember them.

GRAY: Okay. Now, I would like to ask you, if I may officer, did there come a time on the day on August 7, that under your instruction you would have sent officers and directed them to go to the home of Jeff Nickel?

DEFRANCESCO: Yes.

GRAY: And the decision to send officers to that home, was made by you?

DEFRANCESCO: Yes.

GRAY: And could you recall the time of day that you made that decision?

DEFRANCESCO: No.

GRAY: Well, you had interviewed ["A"] that morning, hadn't you, like around ten o'clock?

DEFRANCESCO: Yes, sir.

GRAY: And you and Bates, now I assume after you left ["A"], were driving back in your car, probably discussing the case, weren't you?

DEFRANCESCO: Probably, I don't recall.

GRAY: Well, was that the time that -- does that refresh your recollection as to the time when you decided you were going to send officers to the Nickel residence?

DEFRANCESCO: No, sir. It doesn't.

GRAY: Where did you go after you left [the group home]?

DEFRANCESCO: Here to the Courthouse, I came here to the Courthouse.

GRAY: Did you send Bates somewhere else?

DEFRANCESCO: I don't recall.

GRAY: And what time of day did you make a decision to send officers to the Nickel residence?

DEFRANCESCO: I honestly don't remember when I directed people to go there. [Okay, so he interviews [“A”] from about 10 a.m. -11:00 a.m. So what happened between 11:30 and 4:00 or so? He can’t remember?]

GRAY: Who did you direct to go there?

DEFRANCESCO: Ultimately Investigator Bates and I believe Investigator Thompson.

GRAY: Now, through your interview with ["A"], were you made aware or did ["A"] indicate or were you made aware of some slapping incident of hitting incident?

DEFRANCESCO: Yes.

GRAY: And was also Bates made aware of that?

DEFRANCESCO: He would have.

CZAJKA: If you know?

DEFRANCESCO: He would have been in the interview and heard the questions and answers.

GRAY: Okay. Before you left well, when you were dispatching your officers to the Nickel residence, did you give them any instruction as to what they were to say, or what they were to do when they got there?

DEFRANCESCO: I would have told them to see if Jeffrey Nickel—

CZAJKA: The question calls for a yes or no.

DEFRANCESCO: Yes.

GRAY: Did you indicate to them, or either one of them, that they were to indicate they were from [the group home/agency]?

DEFRANCESCO: No.

GRAY: If they did this, this would have been done on their own.

DEFRANCESCO: Obviously.

GRAY: Were they to bring Mr. Nickel back to your office?

DEFRANCESCO: Yes.

GRAY: And can we assume that the purpose of bringing Mr. Nickel back to your office would have been to see, if you can get a statement from him?

DEFRANCESCO: I would say it would be fair to say it was to see if he would be willing to be interviewed regarding the allegations made.

GRAY: Isn’t that what I just said, to get a statement from him? Are we talking about the same thing in a different language?

DEFRANCESCO: Different language.

GRAY: You wanted to get a statement if you can, right?

DEFRANCESCO: Surely.

GRAY: All right. You wanted to get him in there for that purpose, didn't you? I mean that was the purpose of bringing him there, wasn't it?

DEFRANCESCO: I believe so.

GRAY: And with that purpose in mind, the longer a period of time that he may be in custody or with your personnel, as opposed to the shorter period of time, might have some bearing on the statement, would you agree to that?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Would you agree, that a statement could be -- strike that. Would you agree that it would be beneficial to you and your department, if in the taking of a statement it were shorter in duration?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: What time of day did you dispatch officers, to the Nickel residence?

DEFRANCESCO: I don't recall.

GRAY: Would you not have made some sort of note or log as to the various duties that officers were on?

DEFRANCESCO: No.

GRAY: Would you not have kept some sort of log yourself, some chronology as to when you directed things to be done?

DEFRANCESCO: No.

GRAY: As well do you have any idea what time these officers, pursuant to your direction, arrived at the Nickel residence?

DEFRANCESCO: No, I don't.

GRAY: Do you have any idea as to how long a period of time, they were with Mr. Nickel, before they physically brought him before you?

DEFRANCESCO: No.

GRAY: Do you have any idea as to what conversations they had with Mr. Nickel before they brought him to you?

DEFRANCESCO: No.

GRAY: Do you have any idea of any conversations that these officers would have had with Mrs. Nickel, the mother of Jeff Nickel?

DEFRANCESCO: No. [This is all very dubious.]

GRAY: Was Jeff Nickel's mother present, if you know, when the officers arrived that 7th of August?

DEFRANCESCO: I don't know.

GRAY: Now, what time did Mr. Nickel arrive at your office?

DEFRANCESCO: I'm not quite sure, I think it was after 4:30 or five o'clock. [No, it was, at the latest, 2:45, thus making the entire interrogation a full two hours longer than DeFrancesco claims it to be.]

GRAY: He would have had to travel from Delmar where Lansing Drive is located, to the corner of Columbia and Eagle Streets in the City of Albany, wouldn't he?

DEFRANCESCO: Yes.

GRAY: Now, when your officers were coming or bringing him in, did they radio dispatch you or communicate with you in any way that they were bringing Mr. Nickel down, that they had him and were bringing him to your location?

DEFRANCESCO: I believe they had.

GRAY: And would that be by radio dispatch? How would that communication be made?

DEFRANCESCO: It could have been made any of numerous ways.

GRAY: What way do you recall it being made that day?

DEFRANCESCO: I don't recall.

GRAY: What are the ways it could have been made?

DEFRANCESCO: Radio, telephone.

GRAY: Is your department, if it were done by radio, would your department keep a log of that radio call?

DEFRANCESCO: It may or may not.

GRAY: How so?

DEFRANCESCO: Sometimes frequencies are recorded, some are. If it went car to car or direct to me --

CZAJKA: The question was about recording the call, was there a log entry?

DEFRANCESCO: There is no log entry.

GRAY: So when you are calling?

CZAJKA: Is there a log that they're required to

DEFRANCESCO: No.

CZAJKA: That's used from time to time?

GRAY: Yes, sir.

DEFRANCESCO: If I had spoken with the dispatcher it would have been recorded and probably logged if he spoke with me.

GRAY: If not, there would be no type of record communicating when your officers arrived? They're not required to keep that time, is that correct?

DEFRANCESCO: That's correct.

GRAY: They're not required to log in anywhere?

DEFRANCESCO: That's correct.

GRAY: You're not required to log in with a prisoner that is being brought before you?

DEFRANCESCO: No.

GRAY: So when you talk about times and statements and a guess of time, that is exactly what you're talking about, isn't it an estimate and guesses?

DEFRANCESCO: Estimates.

GRAY: Now, I think during the taking of this statement you had indicated that one of the responses to the DA s questions, that there was some food brought in?

DEFRANCESCO: Yes, sir.

GRAY: You have testified in cases before, haven't you officer?

DEFRANCESCO: Yes.

GRAY: And have you testified about taking statements before, haven't you?

DEFRANCESCO: Yes.

GRAY: All right. Do you find it a beneficial tool for the purpose of making the statement look a little more palatable, to have this sort of party atmosphere or pizza brought in for that purpose?

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Kind of goes a little better? Now, I assume that before you started to take the so-called statement, there was some conversation that took place, wasn't there, between you and Mr. Nickel?

DEFRANCESCO: Yes. [DeFrancesco just contradicted himself. He earlier testified that everything Nickel said was reglected in the ‘statement.’]

GRAY: All right. You just don't start out saying, I have the right to remain silent, do you? I mean, there's some preliminaries to it, isn't there?

DEFRANCESCO: Correct.

GRAY: All right. And there could be preliminaries not only between you, but between other officers, could there not?

DEFRANCESCO: Yes.

GRAY: Are you aware of any other officer to have a preliminary discussion with Mr. Nickel before you say you started your statement?

CZAJKA: Did you mean other than those, other than Bates?

GRAY: Yes, sir.

DEFRANCESCO: Not that I'm aware of.

GRAY: For how long a period of time did you converse with Mr. Nickel before you say you gave him his Miranda warnings?

DEFRANCESCO: I would estimate about a couple of minutes, two or three minutes. [That’s a lie. It was approximately 90 minutes.]

GRAY: Got right into it?

TORNCELLO: Objection.

GRAY: Forgive me. It is fair to say that your statement took approximately three hours?

DEFRANCESCO: Probably, two-and-a-half to three hours, without recalling exact times. [He’s lying; 5-6 hours.]

GRAY: Now, during that period of time, during that three-hour period of time, do you recall saying to Mr. Nickel, at any time, that these were only misdemeanors, and wouldn't be all that big a deal?

DEFRANCESCO: No. [He’s lying.]

GRAY: Do you recall telling Mr. Nickel that, or making reference to, that his mother could suffer from a stroke, if he failed to sign this statement?

DEFRANCESCO: No.

GRAY: Do you recall indicating to Mr. Nickel, that if he signed the statement he could go home, but if he didn’t, the inference would be he would not be going home?

TORNCELLO: Objection.

CZAJKA: I don’t understand the question.

GRAY: Do you recall saying to Mr. Nickel, that night, that if he signed that statement, he would be able to go home?

DEFRANCESCO: No. [Well, he didn’t say that in so many words; but he did, in effect, say that.]

GRAY: Did you speak to Mr. Nickel that evening about coercion or what might be considered coercion?

TORNCELLO: Objection.

CZAJKA: I don't understand.

GRAY: My question of the witness, Your Honor, when he spoke to Mr. Nickel that evening about coercion.

TORNCELLO: Objection.

CZAJKA: The?

GRAY: Use of that word, coercion.

DEFRANCESCO: I don't recall even mentioning the word. [Well, he certainly did mention it.]

GRAY: I'm sorry?

DEFRANCESCO: I don't recall mentioning the word.

GRAY: Could you have?

TORNCEUO: Objection, asked and answered.

CZAJKA: Sustained.

GRAY: Well, that word coercion didn't come up with respect to any accusations against Mr. Nickel that evening, did it?

TORNCELLO: Objection.

CZAJKA: Overruled.

DEFRANCESCO: I don’t remember. [Though he’s still hedging, he seems rather less sure now.]

GRAY: During the taking of this so-called statement from Mr. Nickel, no one else was continually present in the room besides yourself and Mr. Nickel, were there?

DEFRANCESCO: No.

GRAY: Did you have any recording device taking this conversation down?

TORNCELLO: Objection.

CZAJKA: Asked and answered.

GRAY: Again, did you have any video camera, recording the event of this evening with Mr. Nickel?

TORNCELLO: Objection.

CZAJKA: Well, wasn't that in fact the other witness? Objection overruled.

TORNCELLO: I apologize.

CZAJKA: Did you?

DEFRANCESCO: No.

GRAY: So the only two people in this world that know what was said, in that room, with respect to this statement, would be you, and Mr. Nickel, isn't that a fact?

TORNCELLO: Objection.

CZAJKA: Overruled.

DEFRANCESCO: I don't believe so.

CZAJKA: You mean in its entirety?

GRAY: Yes, sir.

CZAJKA: Well, if only two people are present, in effect that's been asked and answered.

GRAY: The pictures officer, that you took the evening of August the 7th, 2000, while conducting a search of 36 Lansing Drive, you had never turned those over to the DA’s office, had you? [But Gray never asks him why he failed to turn them over.]

DEFRANCESCO: I didn’t take any pictures on that date, sir.

GRAY: Your department?

DEFRANCESCO: I don't know.

GRAY: Right here and now is the first time, to your knowledge, your department ever turned those photographs over to the DA's office, isn't that a fact?

TORNCELLO: Objection.

CZAJKA: To your knowledge?

DEFRANCESCO: I have no idea. [This is simply incredible. How could they have failed to turn them over? Forgot? Come on.]

GRAY: Do you have the ability to find out?

DEFRANCESCO: No. [That’s absurd.]

GRAY: Would you keep a record of when documents are turned over to the DA’s office?

DEFRANCESCO: I don't know if there's any such document.

GRAY: Is there anything in your file, when these pictures were retrieved, that indicated, by date or time or any manner at all, no matter how informal, that they were turned over to the DA?

CZAJKA: Well, regardless, if the -- if the pictures should have been disclosed to defense counsel, it doesn't matter whether it was this witness, the Assistant District Attorney or anyone else's fault personally; the People were required to provide the information, and it’s as simple as that. It doesn't matter whether it was the office of the DA or the office of the sheriff that was at fault, whether or not the People ever had these photographs to turn them over to you, whether or not it was personally Mr. Torncello or his predecessor it doesn't matter, he's responsible, the People of the State of New York are responsible. [Well that’s very nice, but Czajka imposes no penalty for this whatsoever. Moreover, he cut off this rather uncomfortable questioning of DeFrancesco at this point, thus putting him out of his misery and thereby aiding the prosecution.]

GRAY: Okay. I have no further questions.

CZAJKA: Any redirect?

TORNCELLO: Your Honor --

CZAJKA: Whether or not there's a remedy or there's a specific remedy to -- for the Court to issue, is another question, but the People are responsible anyway. Redirect? [But he never addresses this issue.]

TORNCELLO: No thank you.

CZAJKA: Step down, inspector.

(Whereupon, the witness was excused.)

DEFRANCESCO: Thank you sir.

TORNCELLO: Call Steve Tanski.

CZAJKA: Before the next witness is called Mr. Gray, is there anything that you want to do with respect to these pictures?

GRAY: Not at this time, your honor, no. Just so it's clear, I'm only marking them as a Court's exhibit. [Gray really should have asked for a mistrial at that point. (In any event, he never does attempt to do anything further with those photos.)]

CZAJKA: Attorneys, as I understand it, the pictures, in question, are 22 in number, twenty in number, defendant's C and D are two of them, the remaining 18 have been marked as Court's exhibit number one.

TORNCELLO: Yes.

(Whereupon, Court's Exhibit "1"was marked for identification.)

CZAJKA: Steve Tanski?

(Whereupon, People's Exhibit "24" was marked for identification.)

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

TANSKI: My name is Steve Tanski.

TORNCELLO: What is your occupation?

TANSKI: I'm a police officer, investigator, with the Colonie Police Department .

TORNCELLO: How long have you been employed in total with the Colonie Police Department?

TANSKI: A little over twenty years.

TORNCELLO: And what's your current assignment with that department?

TANSKI: My primary assignment as an investigator assigned to the juvenile unit and secondary responsibility is in the department's unit for computer crime unit.

TORNCELLO: And if we can, take each of those one at a time, tell us some of your duties and responsibilities, as a member of the juvenile unit?

CZAJKA: Skip to that which is relevant to this case.

TORNCELLO: Thank you. Did you -- were you asked to become involved in an investigation, of a man by the name of Jeff Nickel?

TANSKI: Yes.

TORNCELLO: Who asked you to become involved?

TANSKI: I received a call from Investigator Ron Bates from the Sheriff's Department, Albany County, and he explained to me that he had a computer that was seized pursuant to a search warrant that he would like to have thoroughly analyzed.

TORNCELLO: I take it you have some expertise in that area?

TANSKI: Yes.

TORNCELLO: Judge, would you like me to ask him about his background and training for that training? What do you have in that area?

TANSKI: Our department became.

CZAJKA: If all we're talking about is taking pictures off the computer, I don't know that you need any particular expertise in that area.

TORNCELLO: It might be a little more in-depth.

TANSKI: Our department became interested in and involved in the computer a few years ago, and in March of last year, I attended a specialty training school, for a specific sort of --

GRAY: I object, that would have been after the fact.

CZAJKA: March of what year?

TANSKI: March of 2000.

CZAJKA: Continue.

TANSKI: It was a specialized school that pertained to specific computer software and it was put on by the administrator of this particular software, Guidance Software, out of California. The name of the particular support application is called ENCASE, that's the particular computer software that we in the Colonie Police Department use to analyze computers. Subsequent to that, I attended training conferences, particularly to --

CZAJKA: What does the software do?

TANSKI: The software enables one to analyze computer information, without altering any of the contents of it, such as the dates, and times, files that are created and the access, so without altering any of that information, It’s an application that allows you to look at and copy out, and analyze, if you will, files, contained on a computer medium.

TORNCELLO: Okay. Thank you. Now, do you recall the date when Ron Bates asked you to become involved?

TANSKI: I believe it was August the eighteenth.

TORNCELLO: Okay. And what did you do? Did you set up a meeting with him or?

TANSKI: Yes, Investigator Bates came over to our station with the computer and some peripherals, some other related materials and dropped that off to me. I issued a receipt and he explained what the fundamental facts of the case were.

TORNCELLO: Okay. I want to show you, I guess an item marked as People's number 20, in evidence, and let me just show you this. Is it -- have you seen this before?

TANSKI: Yes.

TORNCELLO: Where have you seen People's number 20?

TANSKI: That would be the CPU an Investigator delivered to me on the 18th and the one that I analyzed.

TORNCELLO: Okay. In addition to analyzing that computer, or the contents of that computer, did you perform any other analysis?

TANSKI: Yes. After.

GRAY: Your Honor, excuse me, objection. Could I -- would I be able to voir dire on a chain of custody of this before he's allowed to testify? I'm assuming they would ask questions, about information or whatever from that computer, and we have here both on the record that Ron Bates dropped it off to him on the 18th of August and we have it being seized on the 7th of August, with no change of custody or control introduced.

CZAJKA: So what is it that you would like to do?

GRAY: Voir dire him at this point.

CZAJKA: This witness?

GRAY: Yes, sir.

TORNCELLO: Do you want me to offer it first?

CZAJKA: I thought you offered it yesterday.

TORNGELLO: I did offer and the Court reserved.

CZAJKA: Correct. 20?

TORNCELLO: Maybe you didn't.

CZAJKA: I have up to 19 that I reserved on.

TORNCELLO: Well, let me ask you this.

CZAJKA: Let's clear it up. Well, in any event, we agree it's not received, whether you moved it in evidence or not is another -- it's not received.

TORNCELLO: To protect myself, I would like to ask a couple of foundational questions, then offer it, subject to -- you have seen that computer before?

TANSKI: Yes, I have.

TORNCELLO: At a glance, does that appear to be in a similar condition or the same condition?

CZAJKA: Did you receive -- does it appear to be in the same condition or similar condition?

TANSKI: That I left it in, yes.

TORNCELLO: Okay. I'll offer People's number 20, Your Honor.

CZAJKA: Do you want to voir dire now?

GRAY: May I please, Your Honor? Yes. Good morning Mr. Tanski, how are you? With respect to People's for identification, number 20, that was brought to you by Investigator Bates, on August the 18th, is that your recall as to when that was?

TANSKI: Yes.

GRAY: Were you provided with any information as to when that piece of evidence was seized?

TANSKI: Yes.

GRAY: Was that the 7th of August?

TANSKI: I believe it was.

GRAY: And do you know where it was, between the 7th and the 18th of August? Do you have any personal knowledge as to where that was?

TANSKI: No, no direct knowledge.

GRAY: I am going to object Your Honor; no proper foundation.

CZAJKA: Correct me if I'm wrong, but Bates testified that you seized this, from the house?

TORNCELLO: Yes.

CZAJKA: I know he had a bunch of boxes up here and that was one of them. It is clear on the record that this Bates testified that about this?

TORNCELLO: Yes.

CZAJKA: Mr. Gray? I am trying to recall his testimony.

GRAY: Your Honor, with respect to that, because there was a marking of a lot of things.

CZAJKA: I believe he did, but honestly specifically I don't recall. Let's find it.

CLERK: Our notes indicate that he did.

CZAJKA: Take your time. Let's find it.

(Whereupon, a portion of Ronald Bates' testimony was re-read to the Court.)

CZAJKA: Okay. It's clear that Mr. or Investigator Bates did testify about Exhibit 20, and Bates did identify it as being one of the items seized from the house. Do you wish to be heard further with respect to the admissibility?

GRAY: Yes, I would, Your Honor. Because we--this officer now is going to be asked to testify about anything with respect to that, I would believe it would have to be a showing of a continuity of possession, that nothing was, you know, done with it or whose hands it was in. I have an understanding it may have been with the State Police for a while too for a time, so that's the reason for it.

CZAJKA: All right. In a sense, at least part of the exhibit has already been received inasmuch as I understand it, Exhibit 5 came from Exhibit 20, but in any event, your argument goes to weight, not admissibility, and it's received.

(Whereupon, People's Exhibit "20" was received in evidence.)

TORNCELLO: Just so we're clear, Ron Bates also identified number 21.

TORNCELLO: I would like to ask you, Investigator Tanski to identify, what's been previously marked as People's number 21 for identification.

TANSKI: It's a box containing, computer peripherals and cords, several floppy disks.

TORNCELLO: Okay.

TANSKI: Three ZIP drives and disks.

TORNCELLO: Now, was that also, in addition to People's number 20 in evidence, given to you, and examined or looked at by you.

TANSKI: Yes.

TORNCELLO: Okay. Does that appear to be in the similar or same condition or similar condition as when you looked at it?

TANSKI: Yes, it does

TORNCELLO: I will offer it.

CZAJKA: What’s in there? You say peripherals, what does that mean?

TANSKI: Keyboard, computer keyboard, camera, this is a computer mouse, and a fingerprint ID scan for -- it's just a device that's connected to the computer, and calls for a fingerprint ID in order to turn the computer on. So really it's an on/off switch.

CZAJKA: What else is in there?

TANSKI: Cords, power cords, external ZIP drive.

CZAJKA: Numerous diskettes?

TANSKI: That and ZIP disks.

CZAJKA: Okay. ZIP diskettes hold more? Is that it?

TANSKI: Yes, that's it.

TORNCELLO: I'll offer that as People's number 21.

GRAY: Objection.

CZAJKA: What's the nature of your objection?

GRAY: Relevancy, Your Honor, what is the relevance of these items?

TORNCELLO: Just items seized, judge, in the case. There's a photograph taken from the computer, and --

CZAJKA: Let's clear that up; that wasn't clear. Show him Exhibit 5.

TORNCELLO: Investigator, I'm going to show you People's number five in evidence, and ask you, have you seen that before?

TANSKI: Yes sir, I have.

TORNCELLO: Where have you seen that item?

TANSKI: I recovered this image from the slack space of one of the ZIP disks that I forensically analyzed.

CZAJKA: What does that mean, slack space?

TANSKI: What that is, Your Honor, is, the best analogy I can give you would be two boxes containing paper files, of one case, and the files merely fill up a box-and-a-half, but yet you still have two boxes. The space left over in box number two would be the slack space in the computer.

CZAJKA: So it's not in a folder?

TANSKI: No, this would be recovered from what is known as slack space, on a -- on one of the ZIP disks. That was an area of the disk that has been that is set to be written to, in other words, this was an image that was once there, it had been deleted, remains in the slack space until such time as it's overwritten by another file.

CZAJKA: Oh, all right. So that didn’t come from exhibit 20?

TANSKI: No, this particular [one] came from one of the ZIP disks.

CZAJKA: Which one?

TANSKI: The ZIP?

CZAJKA: In the box?

TANSKI: In the box.

CZAJKA: Dig that out. Let's have that marked.

TORNCELLO: 21A, B & C?

(Whereupon, People' s Exhibits 21A, B&C, ZIP drives, marked for identification.)

TORNCELLO: Okay. Investigator Tanski, I am handing you what's been marked as People's number 21, A, B, and C, for identification, can you tell me what they are, please?

TANSKI: These are the three ZIP disks that I analyzed that were given to me by Investigator Bates as part of the contents of a box.

TORNCELLO: Okay. You analyzed these items, right?

TANSKI: Yes, sir. I did.

TORNCELLO: Do they appear to be in the same or similar condition as when you first looked at them when you made your observations back in August of 2000?

TANSKI: Yes, they do.

TORNCELLO: I'll offer them now, 21A, B& C, and offer them collectively.

GRAY: Objection.

CZAJKA: Which of those did five come from?

TANSKI: My number twelve.

CZAJKA: What's the --

TANSKI: People's 21A.

CZAJKA: All right. Take them one at a time. Mr. Gray, what do you say to 21A?

GRAY: Your Honor, my objection would be, what I understood of what the officer had said, he recovered from some slack space off the ZIP disk which he marked as number three. I thought he said his numbering --

CZAJKA: Does that correspond with A? Number twelve, as I understand it, Investigator Tanski, your twelve is People's 21A?

TANSKI: Yes, sir. Your Honor, it is. Where that image was recovered from.

GRAY: All right. I had three for some reason.

TANSKI: They correspond, the three disks that I report, it lifted as one, two and three.

CZAJKA: So what is it you want me to do with this if it's received in evidence? I have five in evidence.

TORNCELLO: Right, I thought it was important for the Court to know where five came from. That's all.

CZAJKA: So you told us.

TORNCELLO: All right. I’m offering it into evidence.

CZAJKA: For what reason?

TORNCELLO: As proof from where People's number 25 came from. It came from a ZIP disk found in the defendant's possession. It was seized pursuant to the Albany County Sheriff's Department seizure.

CZAJKA: Mr. Gray?

GRAY: Well, it wasn't found in the defendant's possession per se. It was this wasn't even found - it had been found, as I understand it, by a device, isn't that so?

TORNCELLO: Objection.

CZAJKA: Overruled. Was it?

TANSKI: Yes, it needs to be recovered using software.

GRAY: My understanding would be, Your Honor, that this number five in evidence here would not have been seen by this individual, as he went through this, until he used a recovery device to try to find out anything that had once been there and no longer [is] there. I believe that's what he's saying.

CZAJKA: That's what it sounds like.

GRAY: And I would object to its relevancy. Five is already in evidence.

CZAJKA: Well, I'm not going to look through on a computer or otherwise, five has been received, the remaining I see little relevance to or no relevance to it at this point, except to the extent as identified it's the source of five.

TORNCELLO: Okay. Thank you. Investigator, I am handing you a packet of photographs, which have been marked as People's number 24 for identification; can you tell us what those images are?

TANSKI: These are images that were printed from the hard drive of People's 20.

TORNCELLO: Okay. Did you recover those images?

TANSKI: Yes sir, I did.

TORNCELLO: And did you print out those images?

TANSKI: Yes, sir.

TORNCELLO: And?

CZAJKA: When you say the hard drive, do you mean that part of 20, exhibit 20, the Exhibit 20?

TANSKI: Yes, Your Honor. The tower.

TORNCELLO: All right. And after you printed out those, incidentally, do they fairly and accurately depict the way the images appeared I guess on the computer screen when you first discovered them?

TANSKI: Yes, they do.

GRAY: I'm going to object.

CZAJKA: To what?

GRAY: He's not calling for testimony relative to something marked for identification, it's been identified.

CZAJKA: Well, I think your objection is premature. Go ahead.

TORNCELLO: Okay. Do they appear to be in the same condition or similar condition as to what -- when you created them?

TANSKI: Yes, they do.

TORNCELLO: When you created them by printing them?

TANSKI: Yes.

TORNCELLO: Okay. And thank you. I’ll offer People's number 24, en masse, in evidence.

GRAY: Your Honor, I'm going to object that the pictures are completely irrelevant to the case at bar.

CZAJKA: Let me see them please.

GRAY: Yes, sir.

CZAJKA: What's the relevance Mr. Torncello?

TORNCELLO: I believe they're relevant on several issues, Your Honor. Number one, they’re photographs of the defendant with one of the victims in this case.

CZAJKA: Which one is that?

TORNCELLO: One of the later ones, number two, I think is very relevant, for the -- under the theory that this defendant is capable of taking photographs of himself. He's capable of taking photographs of himself and other children, and he's capable of transferring those photographs.

CZAJKA: How do you know he took these pictures?

TORNCELLO: I don't know either.

CZAJKA: Objection is sustained.

TORNCELLO: Can I be heard? And that he's capable of transferring those photographs, to his computer, and storing those photographs, either in a ZIP drive, on a floppy or on his computer. And it's consistent with the evidence that's People's number five, already in evidence.

CZAJKA: Objection sustained.

TORNCELLO: Investigator Tanski, did you note anything, about the security system, attached to this computer and these items?

GRAY: Objection, irrelevant.

CZAJKA: Sustained.

TORNCELLO: Have you heard of a program called PGP?

TANSKI: Yes.

TORNCELLO: What's -- what is a PGP?

TANSKI: PGP is software, the acronym stands for Pretty Good Privacy, and a software encryption type of protection, it allows for written files to be coded and then decoded using special keys.

TORNCELLO: Did this computer that you analyzed contain the computer program PGP?

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: In your area of expertise is it remarkable or of note that a computer contain the program, PGP?

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: Judge, can I have just a minute please?

CZAJKA: Yes.

TORNCELLO: Nothing further judge. Thank you.

CZAJKA: Go ahead.

GRAY: Good afternoon again Mr. Tanski, just a few very brief questions of you, for some more clarity, I think. When you took control of this computer, and you looked at the computer, you cannot pull up, what has been marked as People's number five in evidence, isn't this a fact?

TANSKI: I didn't try.

GRAY: Well, you had to go to try to recover a missing portion, did you not? Did I understand your testimony correctly in that regard?

TANSKI: During the forensic analysis of the computer, the picture just comes up.

GRAY: You talked, did you not, about a –

CZAJKA: By operation of software?

TANSKI: By operation of the software, yes, Your Honor.

GRAY: This was the software that you had to use to regain, isn't that correct?

TANSKI: Yes, sir.

GRAY: All right. So, in order to recapture People's “5" in evidence, you had to use special software to recapture that?

TANSKI: Yes, sir.

GRAY: All right. Now, in recapturing it, is there any way to indicate, in other words, without the capability to recapture it, it wouldn't have been there, it wouldn't have been seen?

CZAJKA: I don't know what it is you're asking.

GRAY: I guess what we are asking here, without the software that you used, if someone put that disk in the computer, they wouldn't have seen number five, would they, in evidence?

TANSKI: No, number five was deleted.

GRAY: That's correct. And this software was, you bringing back that image of something that had been deleted?

TANSKI: Yes, sir.

GRAY: And would you be able to tell, well, you wouldn't have been able to tell when it was deleted, or would you?

TANSKI: No, I would not.

GRAY: You wouldn't have been able to tell, who if anyone had used that computer before, who had deleted or who put that on, would you?

TANSKI: No, that information would not be available.

GRAY: No further questions.

TORNCELLO: Could anyone other than the defendant, access that computer, without the defendant's fingerprint?

GRAY: Objection, if it's not from the computer, it's from the disk.

CZAJKA: Well, the witness did --

TORNCELLO: Let me reword that. Prior to your forensic examination, did you have to have, in order to access the computer, was it required that the defendant put his finger and use his fingerprint to access the computer?

GRAY: Objection.

CZAJKA: Investigator Tanski, you described in that box, a switch that was activated by a fingerprint?

TANSKI: Yes, sir.

CZAJKA: That's what you're referring to Mr. Torncello?

TORNCELLO: Yes.

CZAJKA: You didn't need to turn the computer on?

TANSKI: I didn't turn this computer on, Your Honor.

CZAJKA: You didn't need that to examine the computer?

TANSKI: No, I did not.

CZAJKA: The contents of the computer?

TANSKI: No, sir.

CZAJKA: You didn't turn the computer on?

TANSKI: No, sir. The process is, is not to turn on the target of the computer at all, because in doing so, it would alter a number of files automatically without any goal.

CZAJKA: So you somehow examined -- how did you examine the computer without

TANSKI: What I do, Your Honor, is I removed the hard drive, excuse me, I removed the hard drive, completely from that machine. I place it into our forensic machine, and then I analyze it, using forensic software.

CZAJKA: All right.

TANSKI: Without turning on the target computer, I'll be able to analyze.

CZAJKA: Do you remember what your question was?

TORNCELLO: Talking about the security system, and could -- did you need the defendant's fingerprint to access that computer, and turn it on?

GRAY: Objection, it's not the computer, it's a disk that he's using.

TORNCEILO: My question was?

TANSKI: You've got there --

TORNCELLO: Did you need a security code?

CZAJKA: Well, if I can access it without the disk in question without using --

TORNCELLO: He’s got the computer lab, a computer crime lab.

CZAJKA: I think the objection is sustained.

TORNCELLO: No further questions.

GRAY: No further questions.

CZAJKA: Thank you.

(Whereupon, the witness was excused.)

CZAJKA: Any more evidence Mr. Torncello?

TORNCELLO: I may have one that I would ask about four or five questions.

CZAJKA: Who is that?

TORNCELLO: ["A”]’s social worker]. I want to—

CZAJKA: Mr. Gray?

GRAY: Yes, sir.

TORNCELLO: I don't remember if I asked ["A"] the dates when his unsupervised visits began and ended, I'll ask her two dates, unless Mr. Gray would stipulate. That's all. [He’s lying. Torncello’s ulterior motive is to ask whether [ “A”] is color-blind.]

GRAY: My recall is there was something in the record about that.

TORNCELLO: She is here.

GRAY: I thought he asked ["A"]. If it's on the record we can—

TORNCELLO: I have five questions judge. [Actually, he asks 23.]

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

SW: [ ].

TORNCELLO: What is your occupation?

SW: Social worker.

TORNCELLO: Where do you work?

SW: [ ]

TORNCELLO: How long have you worked at [ ]'s?

SW: Five-and-a-half years.

TORNCELLO: Okay. Do you know a boy by the name of ["A"]?

SW: Yes.

TORNCELLO: Do you know a man named Jeffrey Nickel?

SW: Yes.

TORNCELLO: Do you see Jeff Nickel in the courtroom?

SW: Yes.

TORNCELLO Can you point to him, please?

SW: (Pointing.)

TORNCELLO: What’s he wearing?

SW: A blue tie, brown colored jacket.

TORNCELLO: Thank you. If the record could reflect that the witness identified the defendant?

CZAJKA: Yes.

TORNCELLO: At some point in time, was Jeff Nickel allowed to visit ["A"]?

SW: Yes.

TORNCELLO: And ["A”] goes to your school or lives at [ ]'s?

SW: Yes.

TORNCELLO: At some point in time did unsupervised visits, between Jeffrey Nickel and ["A"], begin?

SW: Yes.

TORNCELLO: Do you know when they began?

SW: Somewhere around June 10th.

TORNCELLO: 20007

SW: Yes.

GRAY: I'm going to object.

CZAJKA: What's the source of your information, [SW]?

SW: I had come back from maternity leave, in May, and it was toward the end of May. It happened a couple of weeks after I came back, so approximately --

CZAJKA: Mr. Gray?

GRAY: Withdraw that objection.

TORNCELLO: Okay. Do you know when the unsupervised visits ended?

SW: I don't know the exact date.

TORNCELLO: What's your best guess?

CZAJKA: Well, there came a time that they ended?

SW: Yes, and it was, when the investigation started.

CZAJKA: So prior to that.

TORNCELLO: When the investigation began?

SW: Yes.

TORNCELLO: Okay. Are you familiar with ["A"]?

SW: Yes.

TORNCELLO: Okay. And you're just, have you been in contact this morning with [ ]'s concerning either medical records or some treatment that ["A"] has?

SW: Yes.

TORNCELLO: And what is that -- what is that for?

SW: A physical form.

TORNCELLO: Okay. And is there anything of note or importance on that physical concerning his eye care?

SW: Yes.

TORNCELLO: Okay?

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: May I ask a question?

CZAJKA: Is he color blind? [Czajka asks this seemingly out of the blue. How did he know to ask?]

SW: Yes. [Well, this information is nowhere to be found on the three-page medical report which was (eventually) provided to the defense. In any event, why would [“A”] never have mentioned to the investigators, or on the stand, that he was color-blind? And why would a color-blind person call a blue house white and white walls blue anyway? Moreover, even assuming he really is color-blind, this would not explain why ["A”] said there was a waterbed when there wasn’t, why he said Nickel had to duck to walk in when he didn’t, why he said there was a very wide window sill in the bedroom when there wasn’t, why he said there was a computer in the bedroom when there wasn’t, and why he said there was a non-existent “long hall” upon entering the house.]

GRAY: Objection.

CZAJKA: Sustained. [The fact that Czajka sustained Gray’s objection here means that Czajka was not permitted to consider [ “A”]’s alleged color-blindness when rendering his verdicts.]

TORNCELLO: Do you know if he's color blind?

GRAY: Objection.

CZAJKA: Without answering whether he is or not, do you know? Don’t tell me -- do you know the state of his color-blindness?

SW: Yes.

CZAJKA: What's the source of your information?

SW: A physical form.

GRAY: Objection.

CZAJKA: Sustained.

TORNCELLO: All right. I have no further questions.

CZAJKA: Any questions?

GRAY: No, sir.

(Whereupon, the witness was excused.)

CZAJKA: Do you have any other evidence than to your -- you're awaiting my decision on that which I have reserved?

TORNCELLO: Subject to the reservation you made concerning the four envelopes and the balance of the evidence that I offered subject to that, we will rest.

CZAJKA: All right.

TORNCELLO: I do want, I guess, I do want the record to record, to reflect as [the SW] came into the courtroom today, they provided the DA's office with a fax copy of a physical examination; I received it when she walked into the courtroom. I have handed it to Mr. Gray. [Therefore, the defense only received a copy of this exam late on the last day of this two-day trial. This was far too late for the defense to be able to effectively utilize because “A” had already completed testifying the previous day and was no longer even in the courtroom to be called back.]

GRAY: I'm objecting to it.

CZAJKA: Well you are not --

TORNCELLO: I'm not moving it into evidence, judge.

CZAJKA: Let's take a break in this matter.

(Whereupon, a recess was had.)

CZAJKA: Ready. You may be seated. Thank you very much. Mr. Torncello, do you wish to be heard further with respect to the exhibit?

TORNCELLO: Judge, I would like to renew my --

CZAJKA: What's the number of that one? The letters? One, consisting of four envelopes with the contents.

TORNCELLO: For one through four each identified.

CZAJKA: All right. Do you wish to be heard further?

TORNCELLO: Well, the only thing I would like to state that I believe that's relevant for the case, judge, because they identify the victims in this case, and there are admissions in many respects of the conduct that is the subject of the indictment before the Court, and with respect to the authenticity and authenticating letters judge, there's a number of reasons. I could tick off half a dozen right now if you would like me to for the record, which could authenticate the records, the return address which is on the outside of the envelope, the signature of the defendant, the fact that the defendant is writing to Matthew Peters and that the seizure at his home, he received mail from Matthew Peters, it identified the camp where he worked, he identified the victims [“A”], [alleged victim B] and [alleged victim C], it also indicated that he had a cut on his hands and I believe there's more judge, but I will just for the record, I think those are indications. And anyone of those could be used to authenticate the letter.

CZAJKA: Mr. Gray?

GRAY: Yes, Your Honor. I renew my objection to the introduction of the four envelopes containing one letter, in this trial, on the basis that there was absolutely no authenticating proof in this record, no direct proof that there was letters, that originated or did come from, Mr. Nickel. They, I believe, bear a signature, first the same signature of the other one bearing an address somewhere, but it would have been a simple matter for the DA if he wished to introduce them, to call in the handwriting expert or something of that nature to authenticate that yes, this indeed was written by this person. There has been no direct testimony on the record of this court, that they were so written. Secondly, the relevancy of those letters, Your Honor, I have felt from the beginning that the efforts of the DA to have those introduced into evidence, was merely to be prejudicial in the nature against the accused. And offered primarily for that purpose, not for any secondary purpose, but for that purpose. So I object to them, Your Honor.

CZAJKA: The objection with respect to Exhibit two, one, three is sustained, the objection with respect to exhibit four is overruled. And exhibit four is received.

(Whereupon, People's Exhibit "4" was received in evidence.)

GRAY: Exhibit four would be?

CZAJKA: The letter.

TORNCELLO: May I say something again? That they're offered with respect to the intent aspect of this indictment; they are not offered to show that the defendant has an inclination or any proclivity to have sexual relations with boys. [Oh, please. Not even Torncello believes that. In any event, this is a distinction without a difference.]

CZAJKA: To that extent certainly the People are entitled under People v. Molineux to prove intent, by referring to prior acts of misconduct or prior convictions, but in this case, where certainly the trier of fact could infer such intent or such sexual gratification from the conduct itself, the probative value, is not outweighed by the danger of prejudice, notwithstanding that no jury is here. Notwithstanding the fact that I disregard it as continually do, and would in any trial. But for the record, those are, that one is received and others are not. With respect to the remaining exhibits, wish to be heard further Mr. Torncello? [See Bagarozy case in Propensity/Who Cares?. Czajka’s words here, “where certainly the trier of fact could infer such intent or such sexual gratification from the conduct itself, the probative value, is not outweighed by the danger of prejudice…”, is self-contradictory gibberish. He appears to simply be parroting legal phrases here, as if wishing to appear to ‘act’ like a judge.]

TORNCELLO: Judge, they were the subject of the search warrants, they were items that were taken, I think, for various reasons, they're relevant, they too, many of them go to the intent of the defendant. In addition to that, they go to the opportunity of the defendant, for instance, the camera is one item, there's one item that's a book that its content is the sexual abuse of children. I think that item goes to the intent of the defendant. Thank you. [Torncello’s allusion to “the intent of the defendant” here is nothing more than a proclivity or propensity argument hiding behind a figleaf of ‘intent’. In any event, intent only comes into play in a child sexual abuse case when the defendant admits that some touching took place, but it argues it was not of a sexual nature. That is not the case here. See Bagarozy case in Propensity/Who Cares?.]

CZAJKA: Mr. Gray?

GRAY: Your Honor, I would object to those items, being offered on the basis that, I do not recall any evidence in this trial, that the, that the camera which is part of this was ever used. There was no testimony to that.

CZAJKA: For the same reasons that I sustained the objection with respect to exhibits three, two and 1, I sustain the objection with respect to those exhibits. Do you have a motion you would like to make at this time?

GRAY: Your Honor?

CZAJKA: You rest?

TORNCELLO: Yes, we do. The People rest.

GRAY: Your Honor, with respect to the last witness that we only asked a few questions here from the stand, I note, [the social worker], that was called by the People, that I objected to the introduction of the medical report and that the Court, as I recall sustained --

CZAJKA: In fact, I didn't have to look at it.

GRAY: Sustained that. So I would like --

CZAJKA: In f act, Mr. Torncello didn't even move it into evidence.

GRAY: Okay. With respect to some allegations in that report of colorblindness, I'm moving to strike all of that from the record too.

CZAJKA: It was sustained.

GRAY: Thank you, sir. Your Honor, with respect to the now resting of the People's case, I would like to renew that which I offered to the Court before the trial started, first with respect to the 7th count of the indictment, five of these counts in this indictment Your Honor --

CZAJKA: Could I interrupt you for a second Mr. Gray? Mr. Torncello, what was the name of the child witness, the last child witness that testified?

TORNCELLO: [Alleged victim C], Your Honor.

CZAJKA: That was indictment 7?

GRAY: Yes, sir.

TORNCELLO: Count 7, yes.

CZAJKA: There was evidence on the record, in both I believe either in the exhibit that I just received four and/or the admission to the inspector, then Senior Investigator DeFrancesco, regarding the defendant's contact with that child, is there any evidence in the record to corroborate that?

TORNCELLO: Well judge, it's our position that the defendant had the opportunity. The witness identified him, he showed he stated that he was a teacher's assistant at school, that he had -- he was a friend of his, that there had been some touching in which I think he used the word restraint, that he has been restrained by Jeffrey Nickel. [So what? That was part of Nickel’s job -- they even trained him on how to do so.] He also testified that at first he was friendly with him, that they thought they were friends and then later something happened, that changed his opinion of Jeffrey Nickel, and I don't know whether I think he may have used the word uncomfortable, that made him uncomfortable or something like that. I think his testimony coupled with the statement given by the defendant, which is in evidence, which judge admittedly --

CZAJKA: There's some evidence in the record to corroborate the fact that a crime was committed? That particular crime was committed? That corroborated the defendant's admission whatever the section is, 60-

TORNCELLO: Judge, I think in the letter that was just submitted, that would be further proof of it.

CZAJKA: The admission to corroborate one another?

TORNCELLO: One statement and another and the testimony of the witness that he had the opportunity and he was available for that. [This is absurd legalese nonsense.]

CZAJKA: Do you have anything to support that admission, that may corroborate another --

TORNCELLO: Not at present, Your Honor.

CZAJKA: All right. I interrupted you Mr. Gray. Continue please.

GRAY: Your Honor, with respect to five of the counts of the indictment, they were brought on the complaint of an individual by the name of ["A”]. I respectfully pointed out to the Court before this trial began that initially there was a criminal felony information filed against Mr. Nickel, in which ["A"], alleged a violation of Section 130.80, a course of sexual conduct. And that subdivision two or (b) of that section, says that no other subsequent prosecution can be had for other sexual, alleged sexual acts, that occurred within that time frame. I would respectfully submit to this Court when -- that all of these allegations brought by ["A”] occurred within that time frame, and that therefore, that the People, since they had begun a prosecution under Section 130.80, they were precluded from proceeding with these other five counts in this indictment, and I would move at this time that they be stricken.

CZAJKA: And you?

TORNCELLO: Same argument as last time.

CZAJKA: My decision continues to be the same.

GRAY: Your Honor, if it please the Court, with respect to Count 7 of the indictment which the Court just made some inquiry, my recollection of the testimony, of the alleged complaining witness, was that there was no sexual contact that existed, and there would have to have been, some corroboration other than corroboration -- an admission by the defendant and there's none, not on the record.

CZAJKA: My recollection is consistent with yours; however, I would give the People an opportunity to bring something to my attention that perhaps I'm not able to recall at this time. Failing that, your motion to dismiss count 7 will be granted.

GRAY: With respect to that count and the other six counts, I would respectfully move at this time, that the People have failed to prove as a matter of law, beyond a reasonable doubt, all of the necessary elements of those charges, to sustain those charges and move for their dismissal at this point.

TORNCELLO: We believe that there is credible evidence on each and every element of the crime charged.

CZAJKA: I so find. Mr. Gray, do you wish to present a case?

GRAY: Yes, sir.

CZAJKA: Call your first witness.

GRAY: Thank you sir.

CZAJKA: So Mr. Gray can adequately plan his defense, do you foresee coming up with anything beyond that which you told me?

TORNCELLO: No, Judge.

CZAJKA: All right.

GRAY: Your Honor, the defense would like to call Mr. Richard McEvoy as its first witness.

TORNCELLO: May I approach, judge?

CZAJKA: Mr. McEvoy is the witness we discussed pre-trial?

GRAY: That is correct, Your Honor.

CZAJKA.: And just briefly to summarize what the testimony -- his testimony is to be, he will testify, regarding Exhibit 5, and his opinion that the adult male pictured in that photograph, is not the defendant.

GRAY: That's correct, Your Honor, yes.

CZAJKA: Mr. Torncello?

TORNCELLO: Judge, I think I'll have to just continue my objection. Under the -- first of all, I'm not aware of anything, that the --

CZAJKA: You made an objection, yet so the record is clear, Mr. Gray asked for an order or some ruling from the Court before the trial began as to whether or not I would allow the testimony. I declined to rule prospectively in that regard.

TORNCELLO: Right. It's our position, then that there was nothing that this witness can testify to, that is scientific in nature or that has been seen by the scientific community, as to be an acceptable scientific principle judge.

CZAJKA: Well, whether or not the witness can testify and offer an expert opinion, you called a witness, namely Bates, Ron Bates, who testified without objection, that in his opinion, the person or persons in Exhibit 5 were the defendant, and the child ["A"].

TORNCELLO: Correct. There's a big difference and difference is that, this witness has never met ["A"], okay?

CZAJKA: He's going to talk about ["A"] or just the defendant?

GRAY: Primarily the defendant, Your Honor.

CZAJKA: So let's take one at a time.

TORNCELLO: The second difference is that I didn't offer mine as an expert, he's just a lay person, just like when I look at you --

CZAJKA: Your objection now goes to his testifying at all?

TORNCELLO: Correct. [Torncello is desperate that this guy not testify, especially as an expert. He knows that his entire case is sunk if he does.]

CZAJKA: Let's deal with that without regard to whether he does so as an expert,

TORNCELLO: Well, I could have taken any --

CZAJKA: If you presented evidence in this form, certainly the defendant can, right? I mean, you opened the door at least to that extent, correct? Whether or not he does so as an expert or otherwise. [This is a ‘floor’; i.e., the minimum that McEvoy should be able to testify as or about. Later on, Czajka will magically convert that into a ‘ceiling’. Even if Bates said nothing at all about his ‘identification’ of the sex photo, the defense should still have been permitted to have McEvoy testify as an expert.]

TORNCELLO: My position would be if he didn't do so as an expert, then his testimony is irrelevant.

CZAJKA: How so? How was Bates' testimony in that regard relevant?

TORNCELLO: He was an investigator who met Jeff Nickel, he has photos. [This is ridiculous. McEvoy also met Nickel, and also “has photos.” Torncello is clutching at straws.]

CZAJKA: Let's see if the defendant can lay a foundation and you can renew your objection at that time. Go ahead Mr. Gray.

TORNCELLO: Can I ask one other question with respect --

CZAJKA: Lay a foundation as to whether or not he knows the defendant, at least to the extent that Bates did.

TORNCELLO: Well, I guess on re-cross, on redirect, I'm going to line up five hundred witnesses who are all going to come in here and say I looked at that picture. [This reflects sarcastic desperation on Torncello’s part. (One can only wonder how Czajka would have reacted if Gray had been that disrespectful.)]

CZAJKA: I've got to tell you, I was disinclined to allow this, but you're the one that asked Bates in the first place. I looked at Mr. Gray, he happily declined to object – [Czjaka is now converting the aforementioned ‘floor’ into a ‘ceiling.’ Moreover, he admits that he basically never intended to allow McEvoy to testify as an expert.]

TORNCELLO: I also had --

CZAJKA: You made your bed. Go ahead Mr. Gray.

GRAY: If you please, state to this Court your name?

MCEVOY: Richard McEvoy, Jr.

GRAY: Where do you reside Mr. McEvoy?

MCEVOY: Victor, New York.

GRAY: And your occupation Mr. McEvoy is what?

MCEVOY: I consult and train law enforcement personnel, in the use of photography and digital imaging.

GRAY: And how long have you been involved in training law enforcement personnel, in photography, and imaging training?

MCEVOY: Since 1974 in the photography, and the digital, I would make an estimate 1990 to the present. Eleven, eleven years, it's a new field.

GRAY: And are you a lecturer and do you conduct courses in those fields?

CZAJKA: Well actually, Mr. Gray, what I preliminarily want to do is to find out, whether or not there exists a foundation to the same extent there was one for Bates.

GRAY: I'd be happy to do that, Your Honor, yes.

CZAJKA: We'll talk about it and deal with the expertise later, if at all.

GRAY: Did there come a time in November of the year 2000, that you and Mr. Nickel and myself met?

MCEVOY: Yes.

GRAY: And did you have occasion on that meeting to physically look at Mr. Nickel?

MCEVOY: I did.

GRAY: And on that meeting in November did you also have occasion, to spend a period of time within his presence?

MCEVOY: I did.

GRAY: And did you learn to recognize from that meeting and experience his features and his profile and his looks?

TORNCELLO: Objection.

CZAJKA: Overruled.

MCEVOY: I did.

GRAY: And were you provided at that meeting a photograph which I'm going to show you, People's five in evidence, if I may? I'm going to show you People's five in evidence and ask you whether or not, you were physically shown that photograph?

CZAJKA: Well, that would be the next question. Do you wish to inquire as to foundation with respect to that foundation?

TORNCELLO: With respect to whether or not he saw Jeff Nickel? No.

CZAJKA: Go ahead.

MCEVOY: I have seen an image.

CZAJKA: There's no question. Ask it again Mr. Gray, I think there's one outstanding.

GRAY: Did there come a time, Mr. McEvoy, when People's five in evidence, that that was provided to you for examination and review?

MCEVOY: Yes.

GRAY: Okay. Now, again in November of the year 2000, in your meeting with Mr. Nickel, did you in your capacity as a photographer take certain pictures of Mr. Nickel?

MCEVOY: I did.

TORNCELLO: Objection.

CZAJKA: Let's divide it up and do one thing at a time. Sustained for now.

GRAY: Your Honor, I'm not sure on the division, I'm not sure.

CZAJKA: Well, whether or not the witness or any witness for that matter can testify regarding his or her expert opinion on this particular issue, I want to leave alone for now. As I indicated earlier, the People may indeed have opened the door to some kind of testimony regarding at least in a lay person's perspective, as to whether or not the person in Exhibit 5 is indeed the defendant. That as Mr. Torncello correctly argued does not require any expertise. And the pictures -- the act of photographing the defendant, by the witness, delves into that area. Let's leave that for now.

GRAY: Your Honor, my course of inquiry with this witness, was going to be, a, ultimately of course, in his opinion is that Jeffrey Nickel in People's 5?

CZAJKA: Well, see if you can do that without regard to the photographs that he took.

GRAY: Your Honor I think –

CZAJKA: That's your intent?

GRAY: I was doing both, both, Your Honor.

CZAJKA: Well, as to the first one then we'll cross that other bridge if and when we get to it.

GRAY: With respect to People's five in evidence Mr. McEvoy, with respect to one of the individuals depicted in that picture, the one who appears from the photograph to possibly be an adult in that photograph, as you examine it and look at that photograph, is that Jeff Nickel who sits here in this courtroom on trial today?

TORNCELLO: Objection.

CZAJKA: Overruled, again, I say so, based upon the People's own case, and their having opened the door to this type of testimony.

MCEVOY: I believe it not to be.

CZAJKA: Is that based, Mr. McEvoy, on your having viewed the defendant, face-to-face?

MCEVOY: It is. If I may qualify it further, among other things, yes.

CZAJKA: Well, can you separate --

TORNCELLO: Objection.

CZAJKA: Can you separate your opinion?

MCEVOY: Yes.

CZAJKA: Eliminate and disregard everything and anything, other than your personally looking at defendant. [This is ridiculous hamstringing; virtually impossible to do. Moreover, for all of the ‘pure propensity’ stuff. Czajka was and is sure that he could ‘disregard that which is irrelevant ‘, etc. But here, Czajka appears to be extremely unwilling to hear evidence from a defense witness - -obviously an expert - - which clearly is extremely probative.]

MCEVOY: Okay.

GRAY: What is your opinion with respect to --

MCEVOY: I believe that this photograph here is not Jeff Nickel.

GRAY: Okay. Now, with respect -- I would like to ask you about your background. You're a lecturer -- Your Honor, I'd like to qualify him as an expert in the field for consideration by the Court.

TORNCEI.LO: Objection.

CZAJKA: Before he's qualified as an expert, let's figure out whether or not there's such a field and what is the field?

GRAY: Your Honor, I think that in his comparative between actually having seen Mr. Nickel, the photographs that he took of Mr. Nickel, and then matching that to People's five in evidence, I feel I would be able to provide this Court, with a detailed explanation, as to why this could not be Mr. Nickel. And if a jury were here it would be my hope that this would aid that jury.

CZAJKA: So presumably this would be done outside the presence of the jury or at least preliminarily?

GRAY: Yes, sir.

CZAJKA: Let's do that. I'll give you an opportunity to make argument. Go ahead.

GRAY: Would you be kind enough, sir, to give this Court, your background in the field of photography and imaging? Credentials, resume, if you will?

MCEVOY: I began with photography at age 11 as a hobby, of course, was trained in the military, and did precision photography for the military. I then got into the news work again through photography, and ran the photo lab for the Georgia Bureau of Investigations as an --

GRAY: Georgia Bureau of Investigations?

MCEVOY: It s a police bureau in the State of Georgia. Depending on one's definition, it's a bureau of investigation and it has powers of arrest, it has powers of investigation. There are other states that have this same or similar unit, not uniformed.

GRAY: How long did you -- were you employed?

MCEVOY: Approximately a little over six-and-a-half years.

GRAY: And can you tell me in what capacity you were so employed by the Georgia Bureau of Investigation?

MCEVOY: When I left I was in charge of their photography division there, which was a part of the homicide investigation team, and fire and arson investigation teams, and whatever else they would come up with if they needed --

GRAY: Have you in the past worked on photo identification for other police agencies and assisted other agencies?

MCEVOY: Yes, I have.

GRAY: And among those would the Federal Bureau of -- of Investigation, that would be one?

MCEVOY: Yes.

GRAY: And other agencies?

MCEVOY: Yes.

GRAY: Have you worked on and identified photographs taken, for example, in identifications of people depicted on bank teller machines and bank robbery cases and things of that nature?

MCEVOY: I have.

GRAY: And have you had occasion, sir, to testify, in Court before, with respect to this field of expertise?

MCEVOY: My function --

TORNCELLO: Objection as to the characterization, field of expertise. There's no --

CZAJKA: Rephrase.

GRAY: Excuse me, I apologize. In the field of identification from image or photo, have you had occasion to assist police agencies?

MCEVOY: I have.

GRAY: And have you had occasion to testify with respect to your findings?

MCEVOY: Testimony to the findings and identification, no, testify as to the quality of the work and what I have observed, yes.

GRAY: Your observations you're able to testify to?

MCEVOY: Right.

GRAY: Those were observations of photographs?

MCEVOY: Images, yes.

CZAJKA: Image quality?

MCEVOY: Of photographs, yes.

CZAJKA: But you never said that's so-and-so after looking at the picture?

MCEVOY: Others have of the work that I worked on.

CZAJKA: Have you?

MCEVOY: No. [Though he himself has not directly testified about such things, he has ‘said that’s so-and-so’ in his law enforcement analyses. But this also reflects poor witness prep on Gray’s part. Gray clearly did not know how McEvoy would answer some of these questions. It is an aphorism among lawyers that in court, one should never ask a question that one does not already know the answer to.]

GRAY: Is your --

TORNCELLO: Objection judge. I move right now for --

CZAJKA: Well, whatever that's got to do with it, I guess there's a first time for everything, right? Not to say this will be, but that alone is not dispositive. I'll give you an opportunity --

TORNCELLO: Judge, I think we have to have a full Frye hearing and determine

CZAJKA: That sounds like that's what Mr. Gray wants.

TORNCELLO: To accept in the community as scientific --

CZAJKA: Go ahead. It sounds like that's what we are doing.

GRAY: Have you assisted other police agencies, in identification from photographs?

MCEVOY: I have.

GRAY: On many occasions, sir?

MCEVOY: I have.

GRAY: And are you now and have you in the recent past been, conducting educational courses, and instructions for police agencies and police officers?

MCEVOY: Yes.

GRAY: Is it not a fact that almost exclusively you work for and with police agencies and not the defense?

MCEVOY: That's true.

GRAY: And you're so employed, at the present time, are you not, by police agencies?

MCEVOY: I am.

GRAY: Is it not a fact that one of your well -- strike that. Now, in the course of your meeting with Mr. Nickel, did you take certain photographs of him?

TORNCELLO: Objection, leading.

CZAJKA: Overruled.

MCEVOY: I took photographs of him.

CZAJKA: Whether you have any other objection, we don't even want to get there yet. Let's figure out whether this is --

TORNCELLO: Objection.

GRAY: Have you found, sir, from your experience, in the law enforcement field, that identification from photographs, that there are techniques and abilities that are not possessed by the general public?

TORNCELLO: Objection.

CZAJKA: Well, that's one of the things I'll have to decide, objection sustained. [Well, precluding an expert from explaining the basis of/for his expertise virtually ensures that he will not be allowed to eventually provide expert testimony.]

GRAY: Would you be kind enough to explain to us, as an example, whether or not as you viewed the ear portion, the ear on the body shown in that photograph, what discernible differences you were able to make with respect to it, as opposed to the ear examined on the photograph that you took of Jeff Nickel?

TORNCELLO: Objection.

CZAJKA: Sustained. At this stage of the proceeding, I'm not receiving in evidence for the purpose of determining the guilt or innocence of the defendant; rather, this would be in the nature of a hearing outside the presence of the jury, if there were a jury, to determine whether or not this testimony is even admissible. So let's skip for the moment the witness's work with respect to this case and determine whether or not this is even admissible. Did you have any other questions with respect to that issue? [More catch-22.]

GRAY: Have you in the past, Mr. McEvoy, in examining photographs, and images, made comparisons of ear style or design?

TORNCELLO: Objection.

CZAJKA: Overruled.

MCEVOY: If I can expand on this?

CZAJKA: No. [More ham-stringing.]

MCEVOY: Yes.

GRAY: Have you on other occasions made examinations of images of characteristics of the nose and nostril areas?

TORNCELLO: Objection.

CZAJKA: Overruled.

MCEVOY: Yes. [McEvoy has now gotten the message that he is limited to giving yes/no answers, again, making it virtually impossible for him to explain how and why this is a field which requires expertise.]

GRAY: Have you made examination and comparisons dealing with hairline?

MCEVOY: Yes.

TORNCELLO: Objection.

CZAJKA: Overruled.

GRAY: Have you made in the past comparisons dealing with body hair, on one's body?

MCEVOY: Yes.

GRAY: And on one's face?

MCEVOY: Yes.

GRAY: Have you made comparative photographs or inspections before, dealing with the construction of one's forehead?

MCEVOY: yes.

GRAY: Have you in the past made comparisons with respect to the cheekbone and eye socket view of an individual?

MCEVOY: Yes.

TORNCELLO: Objection.

CZAJKA: Overruled.

GRAY: Have you made in the past --

TORNCELLO: Judge, can I -- my objection now is just as to leading. Can we ask him what he does, instead of?

CZAJKA: Well, for that reason, for that reason your objection is sustained.

GRAY: Could you explain for us what you do in making these comparisons?

MCEVOY: In this specific case or in general?

GRAY: Just in general for now, sir.

MCEVOY: You look for the geometric nature and patterning defects, if you will.

GRAY: What do you mean by geometric? Explain what you mean by geometric patterns.

MCEVOY: The shape. If you’re going to do comparisons, the shape of one's nose, the shape of one's ear, teeth, nostrils, hair pattern within a body, on a body, on a head, or on the face. This amounts to a great deal of observance, and mental notation, between one or several images that are put forward to you. As an example, those things that you identify with and people do this intuitively without realizing it, and when I say intuitively, people in general, the general population, when they look at someone, say, I know him, or her, or I know that object, they're doing pattern recognition. [Again, this answer reflects poor witness prep on Gray’s part. Torncello as well as Czajka will later seize on this as a pretext for preventing McEvoy from being qualified as an expert. Another crucial mistake Gray makes here is his failure to ask McEvoy what he does, in his professional practice, that is beyond what the average layman may do.]

GRAY: What does that mean?

MCEVOY: Pattern recognition is unique features of a person or an object. My job in doing a recognition or comparison between images is to see if there are unique features that will either eliminate, or positively identify, the object in question or the person in question. When doing comparisons within imagery that is a slide, sometimes you have to come back to as close as you can to the original source. If you're dealing with film, it's a negative. If you are dealing with digital imaging, you try to get as close to the original comport, what we call it, of the image. The print that is here --

TORNCELLO: Objection.

CZAJKA: Sustained. Go ahead Mr. Gray.

GRAY: I think as you started to explain to us, your work, I think I interrupted you. And then as to what other characteristics you would look at in comparison?

MCEVOY: Ears is one, there's a method in the past, called Bertoullian, and I would have to check on the spelling on that, Bertoullian, it was there at the turn of the century, and part of the Bertoullian method was ear shape and the like. Also a fingerprint and that fell out of favor because it was where you have a little more objective as -- you could put measurements to these at that time. I don't know how far you want me to go with this, but they have made – [McEvoy is starting to ramble a bit at this point, again reflecting not only poor prep on Gray’s part, but also Gray’s failure to now help get McEvoy back on track.]

CZAJKA: I'll let you know.

MCEVOY: Others made identifications of ear prints where someone is listening for the --

CZAJKA: I mean, that is not relevant to this case.

MCEVOY: All right.

CZAJKA: Go ahead Mr. Gray.

GRAY: Your Honor, I would like to be able to offer now Mr. McEvoy's examination, as an expert in this field.

TORNCELLO: Objection.

CZAJKA: Wish to be heard or inquire of the witness?

TORNCELLO: I think I wish only to be heard in two parts that I understand judge, that number one is that he has never testified to his finding of identification of photographs. He has never testified before to the findings of his identification of photographs. And number two, I think most importantly, when he talked about some of the qualifications he has, he said that, people do it intuitively without realizing it. And I thought that's important. I think that this is something that is outside of the scientific community. I don't believe it's an accepted practice among the scientific community or anything that a jury could understand or a finder of fact could understand. [That doesn’t logically follow at all; just because lay people do this subjectively, that doesn’t mean that someone couldn’t be an expert if they do this objectively. The same could be said of handwriting analysis/recognition. Experts are routinely permitted to testify on that. See Photography expert.]

CZAJKA: Mr. Gray?

GRAY: Your Honor, I respectfully disagree. I mean we can all concede in the past couple of days, you, the Court, the People and myself all looked at one another. And but I would dare say are you an expert? We have not looked at the features and looked at it in the detail that this gentleman is prepared to testify in, and because of the importance of this identification in this case, I thought it important that we get -- call an expert in here to be able to do nothing more than aid the jury or Court, and maybe draw the Court's attention to certain areas and to particularize those areas as an aid, if you will, in the decision-making the Court has to do. And I don't sit around as laymen and measure or look at curves in ears or nostrils or things of this nature, I don’t think any of us do. And as a layman we just don’t perform that way. I think it certainly is an aid to have someone come in who does this as their life’s work and show and instruct us what they did in a particular case. And that was why I was offering Mr. McEvoy. [Right - - is Czajka even interested in facts? And again, how can he say he can disregard that which is immaterial/prejudicial when it’s prosecution evidence, yet when it’s defense evidence - - and material - - it must be precluded?]

CZAJKA: Although Mr. McEvoy certainly seems qualified in his field, this particular portion of his field does not seem to be such that it requires any expertise, much less, an example of the kind Mr. Gray suggests is appropriate. Indeed, although it's outside of the record of this particular hearing, this separate, discrete hearing, Mr. MCEvoy's own testimony at the trial portion a few minutes ago, where he testified that based upon his own opinion, by looking at the defendant face-to-face, he is not the person in Exhibit 5, belies or suggests there's not even any need for such expertise, whether or not there is a field, whether or not it is recognized generally in the scientific community. So, he may not testify beyond that which he is allowed to testify by virtue of the People having opened the door. Do you have any other questions with respect to his going back in the trial portion now, do you have any questions of Mr. McEvoy, with respect to observations he made of the defendant, face-to-face? [This is just baloney. Clearly there is such a field - - other courts routinely allow expert testimony regarding bank surveillance camera photos, etc. If McEvoy isn’t so qualified, who is? Moreover, it is extremely disingenuous for Czajka to argue that “McEvoy’s own testimony . . .where he testified that based upon his own opnion, by looking at the defendant face-to-face, he is not the person in Exhibit 5, belies or suggests there’s not even any need for such expertise…” McEvoy being limited to “looking at the defendant face-to-face” was a restriction placed on his testimony by Czajka himself. What utter, self-serving hypocrisy. (Anyway, McEvoy still would use his expertise even in making a bare face-to-face assessment; he couldn’t help but do so. But that does not render this a mere lay opinion.]

GRAY: Well, yes, Your Honor. And some further - - I'm assuming the Court's ruling is I'm not permitted to call Mr. McEvoy as an expert?

CZAJKA: That's correct.

GRAY: All right.

CZAJKA: I don't have to determine whether he is -- whether or not he's an expert. I'm making a determination this is not the kind of testimony or evidence that is beyond the cannon of a lay person.

GRAY: Respectfully take exception.

CZAJKA: Or a trier of fact.

GRAY: I'd take exception, Your Honor. I would then like to ask Mr. McEvoy, with respect to being a photographer, whether or not in that capacity, he took some pictures of my client and offered those?

CZAJKA: Mr. Torncello?

TORNCELLO: I haven't seen the photographs yet; oh, did -- you showed them to me?

CZAJKA: Well, to protect the record, do you want them marked?

GRAY: Certainly.

CZAJKA: Before you do that Mr. Torncello, let me ask you this, People's five, that's the contraband for which the defendant has been charged in count three? [This is where Czajka’s judcial misconduct vis-avis the sex photo begins. He knows he’s on very shaky ground for excluding McEvoy as an expert. Therefore, he’s already angling to (cynically) protect himself by getting rid of the photo charge (“Use of a Child in a Sexual Performance”) itself; i.e., acquitting Nickel of it. However, he’s worried that he can’t safely do so and still convict Nickel of it. However, he’s worried that he can’t safely do so and still convict Nickel of the top charge, the oral sex itself, which the photo is inextricably linked to because that is what it is alleged to depict. To acquit on the photo but convict on the sex would constitute what is called ‘repugnance’. This means that, because two crimes are inextricably tied to one another, there is no way that a person could logically be found guilty of one, yet not guilty of the other. So, Czajka must do all he can to try to separate the photo from the sex charge.]

TORNCELLO: Correct.

CZAJKA: Do you want me to consider it for any other purpose?

TORNCELLO: I think it's -- yes, I do. I think it's some proof of Count one. [The photo is a ‘material element’ of the oral sex charge.]

CZAJKA: Well? [Torncello just answered him; but apparently, it wasn’t the answer Czajka wanted.]

TORNCEI.LO: It's some proof.

CZAJKA: I mean on your own to introduce it for that purpose, then the rest of this evidence is irrelevant. If you want me to consider it as proof of some other crime, mainly count one? [(Count one is the sex charge, by far the most serious charge in the indictment, carrying up to 25 years.) For Czajka to use the phrase “on your own’ here is deeply dishonest; over and over again throughout the trial, Torncello has indicated that he wishes the sex photo to also be considered as evidence of the sex charge itself. Czajka is doing everything he can to get McEvoy off the stand ASAP.]

TORNCELLO: I think it's proof of count one and count six, that's the endangering charge?

CZAJKA: Come up please.

(Side bar.) [Gray was, inexplicably, mysteriously excluded from this sidebar, immediately following which Torncello does an about-face on this crucial issue.]

TORNCELLO: On second thought, Your Honor, let me say that People's number five in evidence, would be offered as proof of -- as some' proof of count number three, in that indictment judge that the contraband that we believe is addressed, in count three. [This isn’t second thought, but more like seventh. (Count three refers to the photo charge.) Also note that Torncello now uses Czajka’s word for this - -“contraband” - - which he had never used previously. He is now doing Czajka’s bidding.]

CZAJKA: And Mr. Gray, in view of the fact therefore, I will not consider, Exhibit 5, as having any relevance or connected with the remaining counts, it would seem to me therefore, that this testimony, would serve no purpose? [Again, Czajka is trying to get McEvoy off the stand ASAP.]

GRAY: I think quite the contrary. The position taken by the DA, initially, is exactly the position that he has proven or is attempting to prove through the witness ["A"], is that those two counts are wrapped up in this, in this imagery shown in People's five. [Right - - Gray is refusing to go along with Czajka’s re-routing of the prosecution’s case.]

CZAJKA: Well, I mean it's his case. [Not really - - Czajka’s now re-directed it.]

GRAY: Yes, sir.

CZAJKA: And if he tells me, not to consider it, beyond count three, I will not and cannot. [It is you who told him!]

GRAY: Your Honor, I think this Court now can consider whatever was put before it as evidence in this trial, not what the DA --

CZAJKA: I mean, certainly the defendant or the People couldn't do that. Strike that. Certainly that might have led -- strike that. The People, having withdrawn that particular purpose for Exhibit 5, they're stuck with it. So, in essence, you would be using this witness to prove something that -- you don't need to prove or disprove something that the People are not attempting to prove anymore. Namely that, this picture is a picture of the defendant. [Czajka is tripping all over himself now, trying to get Gray to go along, but without making his own misconduct too obvious on the record. It is not the prosecution that Czajka is attempting to have “stuck with it”, but the defense. Besides trying to get McEvoy off the stand ASAP, Czajka is denying the defense the immense impeachment value of being able to prove definitively that the sex photo does not depict Nickel, which would clearly cause the entire case against him to crumble in one fell swoop, as Czajka knows all too well.]

GRAY: Your Honor, the dispute of that picture, is vital to our defense; we are saying that's not --

CZAJKA: Exhibit 3, strike that. Count three, alleges this is contraband. Whether or not -- without regard to the identity of the people within that picture, whether or not this is the defendant, ["A"], or anyone else, they are allegations that this is contraband, just simply by the nature of that which is pictured. Now, if that's the only reason that they're going to use it, to prove that he possessed this contraband, and they do not want me to consider it as proof of the remaining counts, then it would seem to me all of this evidence is irrelevant. [Czajka continues to stumble over his own words (“strike that”), obviously quite nervous about how things are going here, And when he says that it does not matter who is depicted in that photo, he is simply dead wrong. This charge is not about possessing the photo - - the charge alleges that Nickel took this photo, and that it depicts himself and [“A”]. Moreover, under Czajka’s theory, he should not, then, have acquitted Nickel of this charge, which he subsequently does. The fact that he did shows that he was trying to cover up his misconduct, thereby rendering, as they say in legalese, “harmless error.”]

GRAY: Your Honor, it does deal with contraband. It deals with the sexual performance and it deals with the -- [Now Czajka even has Gray using his characterization “contraband.” But Gray still refuses to go along with Czajka’s re-direction of the prosecution’s case.]

CZAJKA: Sexual performance is the contraband. The picture itself –

TORNCELLO: Correct, Your Honor. [Torncello is so eager to agree with Czajka here that he cuts him off in mid-sentence.]

CZAJKA: I would suggest therefore the fact it was the defendant himself, who was allegedly engaging in deviate sexual intercourse as alleged in count three, is surplussage. The fact that because by law it could be anyone – [Wrong. It was alleged that Nickel took this photo, and moreover, that it depicted himself and [“A”]. What Czajka is basically trying to do here is to change the nature of the indictment itself. Under our system of justice, this represents a direct violation of the right to due process of law. A central purpose of an indictment is to inform the accused of the particular charges against him, in detail, so that he may adequately mount a defense. Czajka is attempting to pull the rug right out from under that.]

GRAY: If it were anyone, Your Honor, that's the subject matter of a different indictment, not of this indictment. [Right, but this is not probing enough. (By way of some further explanation here, Nickel was charged with possession of pornography in a separate indictment. They only charged him with that because he refused to take their plea offer of 12 years. In any event, that possession charge was not part of this trial.)]

CZAJKA: Well, this -- I thought this picture was only in this indictment, not the other.

TORNCELLO: I'm not sure whether that picture is in the other one or not.

CZAJKA: The fact that defendant is alleged in the 'to wit' clause, that clause, that the defendant is alleged to be in that contraband, in that photograph, is surplussage. The People don't have to prove that's the defendant for the contraband in fact to be contraband.

GRAY: Your Honor, that's what the People offered those as proof of in this case. That's exactly what they were proving through their witnesses. ["A"], as it applied to two counts, as it is applied to the sexual act depicted. [That is exactly right. Throughout this trial, until Czajka got it to agree to change its theory of the case vis-à-vis the sex photo, the prosecution had taken the clear and unequivocal position that the sex photo was offered not only as proof of count three (the photo or “Use” charge,) but also as proof of count one (the sex charge):

(Torncello): “We’re going to hear from Officer or Investigator Steve Tanski…who examined the contents of the [defendant’s] computer, and the contents of the disks. One of the things that he found in the disks 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”]…

(Torncello) “There’s a camera, this is in there, your Honor, that’s the subject of count one and count three, which is a photograph.”

(Torncello) “Count three, in this indictment, and count 1 of this indictment, alleges a photo and image of the defendant engaged in an act of sodomy, that was found on his computer.”

As of that point, Torncello had stated three times that they were offering the sex photo as proof of the sex charge itself. Starting with Torncello saying “Correct.”, and ending with “I think it is proof of count one…”, Torncello repeats this position three more times, for a total of six times. Nevertheless, Gray still refuses to go along.]

CZAJKA: Well, go ahead, do what you like. It's taking more time than it would just to introduce the evidence. Just so the record is complete in view of the fact that the defendant does not seem to accept that stipulation, do you now want me to consider it for all purposes? [So, Czajka is just trying to go home? He finally gives up on getting McEvoy off the stand. But he still tries to limit the damage, of what he knows to be his wrongful exclusion of McEvoy as an expert, by cynically acquitting Nickel of the photo charge, while still - - repugnantly - - convicting him of the sex charge.]

TORNCELLO: Please.

CZAJKA: Okay.

(Whereupon Defendant's Exhibit "E" was marked for identification.)

GRAY: I would like to show you, Defendant's "E" for identification, and ask you to examine in totality the packet of sixteen photographs.

MCEVOY: I have.

GRAY: Okay. Are these, sir, the sixteen photographs that you took in November of 2000, of Mr. Jeff Nickel?

MCEVOY: They are.

GRAY: I would like to offer these.

TORNCELLO: May I voir dire very briefly?

CZAJKA: Did you already see the pictures?

TORNCELLO: Some, yes. Mr. McEvoy, when did you take these pictures? MCEVOY: I did.

TORNCELLO: When did you take the pictures?

MCEVOY: May I refer to my notes to be exact? I'd say the beginning of April or beginning of November 2000. That's okay.

TORNCELLO: Fair enough. Beginning of November, 2000?

MCEVOY: Yes.

TORNCELLO: Okay. Now, you already looked at People's number five?

MCEVOY: Yes.

TORNCELLO: Do you know when this picture was taken?

MCEVOY: I have no idea.

TORNCELLO: Okay. So, would you have any idea, first of all, of who this is in this picture? [Apparently meaning one of the McEvoy-taken pictures of Nickel; probably holding it up.]

MCEVOY: The defendant.

TORNCELLO: Right. Would you have any idea, if this is the way Jeff Nickel looked, when this was created? [Apparently now holding up the sex photo. Anyway, this is a red herring. Torncello appears to be deliberately trying to confuse McEvoy with this nonsensical question. The indictment itself alleges that the photo was taken in 2000; McEvoy took his own photos of Nickel later that same year. (Now, in fact, since we really don’t know when the sex pic was taken, for all we know, Nickel might have been a child himself at that time, or not even born yet.) Czajka latches on to and runs with this confusion, as if the question were a relevant one that makes sense, in order to obfuscate his own misconduct.]

MCEVOY: I would.

TORNCELLO: Can you describe the way it looked to me, please?

CZAJKA: Well, you know what 'look' means, Mr. McEvoy? [Czajka’s barely concealed contempt for McEvoy leaks out with this rather sarcastic comment.]

MCEVOY: His ears I would assume to be different, or would not be different, I'm sorry.

CZAJKA: That's the way he looked, when that picture was taken?

MCEVOY: His physical features would -- I would expect to be the same.

TORNCELLO: All right.

CZAJKA: Well, that is not responsive.

MCEVOY: Okay, yes. Yes.

TORNCELLO: You're saying that these pictures fairly and accurately describe the way he looked in November of 2000, right? [Now apparently referring again to the McEvoy-taken pictures of Nickel.]

MCEVOY: Yes.

TORNCELLO: Are these -- do these pictures fairly and accurately depict the way Jeff Nickel looked when that document was created, do you know? [Apparently referring again to the sex photo.]

CZAJKA: Whether that day or --

TORNCELLO: Do you know that answer? You can't say, can you?

CZAJKA: Go ahead.

MCEVOY: I am still thinking on this.

CZAJKA: Just so you understand the question Mr. McEvoy, this photograph Exhibit 5.

MCEVOY: Yes.

CZAJKA: Or this image, Exhibit 5, was generated on some day, whatever that day was.

MCEVOY: Okay.

CZAJKA: And assuming for the sake of argument, that it was a day in the life of the defendant.

MCEVOY: Yes.

CZAJKA: Assuming -- not assuming that this is the defendant.

MCEVOY: True.

CZAJKA: Fix in your mind that particular day, whatever it was, do you understand that there was some day in time when that image was generated?

MCEVOY: I do.

CZAJKA: All right. That's the day in time to which Mr. Torncello refers.

TORNCELLO: Can you say for sure, whether this is the way, fairly and accurately, it depicts the way Jeff Nickel looked at that other time? [This is a meaningless and confusing question. The prosecution itself alleged that the sex photo was taken in 2000; if it really is Nickel in the photo, he would not have changed significantly in a matter of just a few months. If it is not Nickel in the photo, it wouldn’t matter how he looked at the time the sex photo was taken.]

MCEVOY: Yes.

TORNCELLO: You can say that?

MCEVOY: Yes.

TORNCELLO: Do you know when that photograph was created?

CZAJKA: Mr. McEvoy, how could you possibly say that if that picture could be -- that could have been a picture of something that happened 50 years ago?

GRAY: As to the construction of the nose, ears, face, facial bones.

CZAJKA: That is not what I'm getting at.

GRAY: Wasn't that answer, is that things wouldn't change?

CZAJKA: Maybe I misunderstood the question then. Go ahead Mr. Torncello.

TORNCELLO: Judge?

CZAJKA: I shouldn't have said 50 years ago, 50 years was beyond or before Mr. Nickel, the defendant was born, but anyway. Go ahead.

TORNCELLO: I find the answer incredible.

GRAY: Object to those remarks of counsel.

CZAJKA: It's stricken.

TORNCELLO: I am going to object, on the basis of foundation, more importantly, relevance. Thank you judge.

CZAJKA: Well certainly the defendant or perhaps the People, I remember doing it myself once, the People could have requested an order of the Court, directing that the defendant -- to take his shirt off or look in a certain way or something. I don't see anything wrong, therefore, with receiving these pictures for that same purpose. And the objection is overruled. Any other questions? [Yes, it is indeed very telling that neither the police nor the prosecution ever did ask Nickel to take his shirt off so they could take such photos.]

GRAY: Just a few. Mr. McEvoy, so that there's no misunderstanding of the questions posed by the Court and the DA, you cannot compare the pictures marked Defendant's "E", against number five, because in number five, you already indicated that that is not, Mr. Nickel in number five. [Well, McEvoy still could, and did compare them. Now, Gray too is confused.]

TORNCELLO: Objection.

CZAJKA: That's what my decision was, sustained.

GRAY: The photographs that were shown to you as defense Exhibit "E", would the ear structure have remained the same in that individual over the years? [That’s not even the point - - see above comments.]

TORNCELLO: Objection.

CZAJKA: Sustained.

GRAY: Your Honor, I would run through the other various parts, but if there's going to be the same objection, I'll shorten it then.

CZAJKA: Okay. [Indeed - -that’s just fine with him.]

GRAY: Your Honor, in light of the fact that the Court has ruled, that we cannot pursue this witness as an expert, then there would be nothing further, no further inquiry that I can make at this time. [Gray is so hamstrung, that he finally just throws in the towel.]

CZAJKA: Do you have any questions?

TORNCELLO: No thank you.

CZAJKA: Call your next witness, if you have any?

(Witness excused.)

GRAY: Your Honor, the defense would like to call as its second witness, Doug Nickel. Would you state for this court please your full name?

NICKEL: Douglas Nickel.

GRAY: And how old are you Mr. Nickel?

NICKEL: 42.

GRAY: And whereabouts do you reside?

NICKEL: 36 Lansing Drive, Delmar, New York.

GRAY: And who do you reside there with?

NICKEL: My mother, and my brother.

GRAY: The brother that you speak of, is that Jeff Nickel?

NICKEL: Yes, sir.

GRAY: And is that Jeff Nickel who's seated here with me at counsel table?

NICKEL: Yes, it is.

GRAY: How old are you, Douglas?

NICKEL: Forty-two.

GRAY: And how old is Jeff?

NICKEL: Thirty-two, thirty-three.

GRAY: So you're ten years apart?

NICKEL: Right.

GRAY: Now, this address of 36 Lansing Drive in Delmar, for how many years have you lived there?

NICKEL: Twenty-three years in July.

GRAY: So you were only about ten when you moved in and your brother was just an infant, I take it?

NICKEL: Correct.

GRAY: And did your brother live there and has that been his residence except for schooling, all his life?

NICKEL: Yes. [That’s actually not quite true. Nickel lived in Washington, D.C. for two years, then in Boston (again) for 4, then the city of Albany for two.]

GRAY: All right. And except for your early years, that's been your residence all of your lives?

NICKEL: Yes.

GRAY: Are you familiar with that house, having lived there for some thirty¬ two years?

NICKEL: Yes, sir.

GRAY: Are you familiar with the color of the house?

NICKEL: Yes.

GRAY: And what color is the house?

NICKEL: Interior?

GRAY: Exterior of the house?

NICKEL: The exterior is blue. [Right - - consistent with DeFrancesco’s own testimony, and contrary to [“A”]’s.]

GRAY: Is it sided in some way or is it just painted through or is it sided?

NICKEL: Vinyl siding.

GRAY: Do you recall about when that siding was added to that home?

NICKEL: Seven to ten years ago.

GRAY: Has that siding always maintained that same color or has it been, to your knowledge, ever repainted or anything done with the color?

NICKEL: No, it's never been repainted.

GRAY: Was there a place in that residence at 36 Lansing Drive, which was your brother Jeff's bedroom?

NICKEL: Yes.

GRAY: And are you familiar with that room?

NICKEL: Yes, I am.

GRAY: And the color of the walls in that room are what color?

NICKEL: Off-White. [Right - - consistent with Bates’ own testimony, and contrary to [“A”]’s]

GRAY: How many windows are in that room?

NICKEL: Three.

GRAY: Is there a window sill in that room?

NICKEL: No, no, just the molding of the window. [Right - - consistent with photos taken by the police themselves, and contrary to [“A”]’s testimony.]

GRAY: At any time in the thirty-two years that you've lived in that house, was there ever a waterbed in that room?

NICKEL: Never.

GRAY: In the thirty-two years that you lived in that house, was the doorway such that, Jeff had to duck to enter it?

NICKEL: No.

CZAJKA: Had to do what?

GRAY: Duck or stoop to enter it?

NICKEL: No, sir. [Right - - again, contrary to [“A”]’s testimony.]

GRAY: Your mom has resided there with you that length of time also?

NICKEL: Yes.

GRAY: May I have one moment please, Your Honor?

CZAJKA: Yes.

GRAY: Was there ever in that bedroom, that you identified as Jeff's bedroom, a computer in that bedroom?

NICKEL: No. [Right - - consistent with police’s own testimony and photos, and in contrast to [“A”]’s testimony.]

GRAY: Was there ever a waterbed anywhere in the house?

NICKEL: No.

GRAY: I have no further questions. Thank you.

CZAJKA: Wait a moment.

TORNCELLO: Thank you. Mr. Nickel, have you lived at 36 Lansing Drive continuously for thirty-some years?

NICKEL: I moved out for a period of one year.

TORNCELLO: And when was that?

NICKEL: 1976, '77.

TORNCELLO: Okay. Where did you move then?

NICKEL: The south end of Albany.

TORNCELLO: Are you employed?

NICKEL: Yes.

TORNCELLO: What do you do?

NICKEL: I work for a property management firm.

TORNCELLO: Okay. Are you married?

NICKEL: No.

TORNCELLO: You're single. Do you have any children?

NICKEL: No.

TORNCELLO: Did you reside at that address in July and August of 2000?

NICKEL: Yes.

TORNCELLO: Okay. And was it just you and Jeff and your mom?

NICKEL: Yes, sir.

TORNCELLO: Had you ever been in Jeffrey's room?

NICKEL: Yes.

TORNCELLO: Okay. Had you ever been in the basement?

NICKEL: Yes.

TORNCELLO: Where is your room?

NICKEL: On the same second floor, where all the bedrooms are.

TORNCEILO: Okay. Have you ever seen any sexually suggestive material, in or around Jeffrey's bedroom? [Under the rules of evidence, when cross-examining a witness, one is only permitted to ask questions which relate to matters that were addressed during direct examination. “Sexually suggestive material” was not a subject addressed when Gray questioned him. Therefore, Gray should now have immediately objected which he did not.]

NICKEL: No.

TORNCELLO: Were you aware, or had he ever confided in you, that he's a pedophile? [Same as above - - not covered on direct. Moreover, this reflects Torncello’s desperation: He knows that this testimony about the house’s physical features is 100% correct, because the police’s own testimony as well as photos demonstrate that. Therefore, he must do all he can to divert attention from that. Also, this reflects poor preparation on Gray’s part, yet again. He failed to properly prep this witness as to how to handle questions of this nature.]

GRAY: Objection.

TORNCELLO: It's part of the evidence, judge; it's in the statement. [That’s irrelevant - - because this issue wasn’t covered on direct examination, it is an impermissible question.]

CZAJKA: Use a different term. [Well, Czajka still permits the question. He either does not understand the rules of evidence, or simply wishes to ignore them. Perhaps he is already blinded by hatred.]

TORNCELLO: Okay. Were you aware, or had he ever confided in you, that he was sexually attracted to young boys? [Same as above.]

GRAY: Objection.

CZAJKA: Overruled. [This is judicial misconduct. This alone is sufficient grounds for Nickel to be granted a new trial.]

NICKEL: Restate the question again?

TORNCELLO: What don't you understand about it?

CZAJKA: That's two questions. Ask one question at a time. [Once again, this is the least of the problems with this inquiry.]

TORNCELLO: Yes. Had he ever confided in you, that he was sexually attracted to young boys? [This was not remotely covered on direct; Nickel only spoke about the layout of the house.]

GRAY: Objection.

NICKEL: No. [Yet again, Czajka simply ignores Gray’s objection. Moreover, Nickel answers the question before the objection is even ruled on, again, reflecting poor witness prep on Gray’s part.]

TORNCELLO: Were you aware that he was sexually attracted to young boys? [This is yet another impermissible question.]

NICKEL: No, I was not.

GRAY: Objection. [Now, Gray objects after the question has already been answered.]

CZAJKA: Sustained.

TORNCELLO: You were not?

CZAJKA: Well, I sustained the objection without some source of -- without indicating the source of his information. [Again, this is the least of the problems with this question. Even if the “source” were indicated it would still be impermissible because 1) this was not covered on direct, and, 2) there is zero probative value and a huge prejudicial impact of such ‘evidence.’]

TORNCELLO: The question was were you aware; he already said that he hadn't confided in him. The next question was, were you aware?

CZAJKA: I said the objection is sustained.

TORNCELLO: Somebody else could have told him, or he could have –-

CZAJKA: If someone else told him, it's not admissible. [That much is true, as Torncello well knows. But once again, this is the least of the problems with this line of inquiry.]

TORNCELLO: That's why I asked were you aware. [This is absolutely nonsensical. Even Czajka just told him he wasn’t right.]

CZAJKA: I got you, you're right.

TORNCELLO: Did you ever see -- did your brother have a computer?

NICKEL: Yes.

TORNCELLO: And did you ever see the computer?

NICKEL: Yes

TORNCELLO: It wasn't in his bedroom, right?

NICKEL: Yes.

CZAJKA: I didn't understand.

TORNCELLO: Was it in his bedroom?

NICKEL: No.

TORNCELLO: Where was his computer?

NICKEL: In the basement.

TORNCELLO: Does this look like People's number 20 in evidence, does that look like his computer? [This is more poor prep on Gray’s part. Clearly, Nickel had never looked at it closely enough to even know whether this really was his brother’s computer.]

NICKEL: Yes.

TORNCELLO: Is that his computer?

NICKEL: Yes.

TORNCELLO: Okay. And on the side of that computer is taped a picture of [a] young boy, and the words, NAMBLA, was that on his computer? [Yet another impermissible question. “NAMBLA” was not addressed at all on direct, and as to the computer, only its physical location was addressed. This is pure prejudice and desperation on Torncello’s part. He knows that Nickel is right about all house-related testimony. Moreover, once again, Gray fails to object.]

NICKEL: I honestly did not look that close. I wouldn't know.

TORNCELLO: Okay. Have you ever heard of NAMBLA? [Yet, again, Gray fails to object to yet another impermissible question.]

NICKEL: Yes, I have heard of it, yes

TORNCELLO: And where did you hear it?

GRAY: Objection.

CZAJKA: Overruled.

NICKEL: In the media.

TORNCELLO: In the media. Okay.

CZAJKA: I'm receiving it for purposes of impeachment, not to prove – [Impeachment of whom? The defendant never testified. Anyway, how could this possibly impeach the defendant’s brother relative to the layout of the house?]

TORNCELLO: Correct. Did you ever find or have you seen any NAMBLA magazines or bulletins around the house?

NICKEL: No. [Yet again, Gray fails to object to another impermissible question.]

TORNCELLO: In Jeffrey's room?

GRAY: Objection, that has been asked and answered.

CZAJKA: Sustained.

TORNCELLO: Okay. Are you aware if anyone in your family, are you aware, if anyone in your family, knew that Jeffrey, was sexually attracted to young boys? [This is yet another impermissible, purely prejudicial question.]

GRAY: Objection.

TORNCELLO: It's in the statement. [That’s irrelevant, as he knows.]

CZAJKA: I know that, but you're asking the witness whether he was aware if anyone else knew. Do you want me to rule on that?

TORNCELLO: I'll withdraw that. Do you know a boy by the name ["A"]?

NICKEL: No.

TORNCELLO: So you never saw a boy ["A"] at your home?

NICKEL: No. [Again, not covered on direct. And again, Gray fails to object, twice.]

TORNCELLO: Let me show you what's been marked as People's number five in evidence, and ask you to look at that, okay? Do you recognize the boy in that picture? [Again, not covered on direct, and again, Gray fails to object. (And boy in photo isn’t [“A”] anyway.]

NICKEL: No.

TORNCELLO: Okay. No further questions judge.

GRAY: No further questions.

CZAJKA: Step down.

(Witness excused.)

CZAJKA: Any other witness Mr. Gray?

GRAY: May I have just a moment, Your Honor?

CZAJKA: Certainly.

GRAY: Defendant is not going to call any other witnesses at this time.

CZAJKA: Okay. How much time would you like to think about your summation Mr. Gray? Length of time for summation? How much time would you like! When will you be ready to sum up?

GRAY: Well, could the Court allow me forty minutes or so, or 45 minutes?

CZAJKA: How much time do you want?

TORNCELLO: Half an hour or so, forty minutes, that's fine. Or a half hour.

CZAJKA: Could I see you up at the bench for a minute?

GRAY: All right.

(Bench conference.)

CZAJKA: Mr. Torncello, I take it you have nothing more with respect to count seven?

TORNCELLO: That's correct, Your Honor.

CZAJKA: Count 7 is dismissed. [This is the one involving alleged victim [“C”] who did not testify as to any sexual touching.]

GRAY: That's the right count? Right? Yes. Your Honor --

CZAJKA: Based upon my determination that notwithstanding the fact that there's admissions, by the defendant, of that, of the facts underlying that allegation, there's insufficient corroboration, as a matter of law, to prove that the crime was committed. Keeping in mind that it doesn't have to be a lot, but there is, as I recall the record, there's no evidence beyond the admission, so count 7 is dismissed. Go ahead Mr. Gray.

GRAY: Your Honor, we would like to now, at the close, renew all the motions made at the end of the People's case, renew all those motions now, fully set forth at this time, and we would also like to respectfully request of the Court, if the Court feels this would be the appropriate time, that the admonitions with respect to the Court reminding itself about the defendant's right that one does not have to – -

CZAJKA: Keeping that in mind, is there anything either of you want me to consider, in addition to the allegations, any legal issues, that you want me to consider? I mean, it's silly to have a charge conference, but do the People want me to consider any lesser-included offense?

TORNCELLO: No, Your Honor.

CZAJKA: Do you Mr. Gray?

GRAY: Your Honor?

CZAJKA: I don't know that there are any. But does your client wish me to?

GRAY: Your Honor, I hadn't given that a thought.

CZAJKA: Let me know when we come back. Also from your cross-examination of the People's witnesses, I understand you want me to disregard the admissions allegedly made by the defendant on the grounds that they were not given voluntarily?

GRAY: That's correct, Your Honor, yes.

CZAJKA: Anything else in that regard?

GRAY: The defendant not testifying.

CZAJKA: Absolutely.

GRAY: I think that's all.

CZAJKA: Your motions to dismiss, are denied once again. And as I say, I'll consider that which you wish me to consider, immediately prior to opening statements, when we reconvene. The People, just for the record, the People are directed to keep all the evidence it submitted. Defendant will keep all the evidence that it submitted.

(Whereupon, a recess was had.)

CZAJKA: All set Mr. Gray?

GRAY: Yes, Your Honor.

CZAJKA: Go ahead.

GRAY: May it please the Court, Your Honor.

CZAJKA: Before you sum up, first, is there anything else you would like me to consider in terms of the ultimate verdict, Mr. Torncello?

TORNCELLO: No thank you.

GRAY: I don't believe so, Your Honor.

CZAJKA: Go ahead.

GRAY: May it please the Court, Your Honor, family and friends of Jeff Nickel, Jeff, learned counsel, colleagues, Mr. Peter Torncello and Your Honor, we have come to a point in this trial, though it's been relatively brief, only a couple of days, that I have the opportunity to address you now, Your Honor, as a juror, as a gentleman of the jury. And with Your Honor's permission, I am going to review some of the facts that I thought were important, for you to consider or think about. If I misstate any fact, it's because of a faulty recollection on my part. I will not intentionally refer to anything, that I didn't believe occurred in the course of this trial. When I sit down, as you are well aware, the DA will have an opportunity to get up, and I'm not permitted to answer or add to what I have said. I will try to cover the points that I think important, and the points that I think important for the Court to consider. My not getting up when Mr. Torncello finishes is not because I didn't want or feel I could not answer everything that he might say, but as well recognize, I can't. Sir, under our system, a man is innocent until proven guilty. And under our system, the weight of that proof, must be beyond a reasonable doubt. Beyond a reasonable doubt. Now, we have before us, six charges here. One misdemeanor charge, and five charges that would be felony charges. And if I may review maybe from this indictment, the firstcharge is called sodomy in the first degree, a class B felony. It talks about the commission of deviate sexual intercourse with another person, less than 11 years of age. In the particulars here my client is accused of putting his mouth, on the penis of one ["A"]. Now that's the charge. And now let's look at the testimony that's before this body. First the proof will show that this act, supposedly occurred, at Jeff Nickel's house. That's where it occurred. We know that that's where it's alleged to have occurred because that's where ["A"] says it occurred. [This is quite true. However, Gray fails to point out that [“A”] changed his stories as to where both oral sex and finger incident supposedly occurred. Moreover, Gray fails to bring up the issue of Suggestibility at all, another critical mistake.] Now, let's look at that and let's look at what ["A"] had to say about that. He says I didn't say 36, but the house identified as 36 Lansing Drive is in Delmar. He told you that house was white. I believe there were photographs entered in this trial, that would be clear the color of this house was blue. He told us that it occurred in the bedroom of Jeffrey Nickel. He told us that in that bedroom, the walls were blue. We know from testimony that's not accurate. The walls were white. We know further from his testimony, that I said that Jeff Nickel had to duck his head to get through the doorway. We know from testimony, that that's not correct. We know from ["A"] that he says it occurs on a waterbed, we know that's not correct, Your Honor, a person might be confused about a couple of factors, but that's an awful lot to be confused about. And if one were to say to themselves, well gee now, wait a minute, could it have been that he was confused that maybe it wasn't the house, that maybe it was some other confusion [location?], no, no, that wouldn't be, you see, because the Sheriff's Department took him back there, didn't they,? The testimony in this trial was on the day of. Grand Jury according to ["A"'] that morning before he testified, they drove him by it and showed it to him; according to the Sheriff's Department, they showed it to him that evening, so there's no question here, that he's got the house located [confused?], there's no inference that could be given now, it's somewhere else in that house, in that bedroom. He's wrong on all of those factors. Absolutely and totally wrong. Now, why is he wrong on all those factors? Well, let's look at something else we learned about ["A"] the complaining witness here, in five of the six counts. We know that he has told falsehoods in the past, don't we? We know that because under cross- examination, he admitted that. And we know he's been punished in the past, for making false statements. We know that because under cross-examination, he admitted that. We know that he said, for example, that he was given a motorcycle by Jeffrey Nickel, and was punished for that. He was given a saxophone or something, and he was punished for that, and we know further, that it even goes beyond that, Your Honor, that he told us from the stand that he made a report about being slapped, and then what happened with respect to the slapping incident when I asked him on cross-examination? He said yes, he recanted that, he took that back, that didn't happen. He must have dreamt or was in a dream and he thought it was real. In a dream and he thought it was real. Your Honor, these just can't be mistakes now of recollection or recall. These are things that just can't be explained away. We know that the boy was on medication, my goodness, he mentioned, I don't know, so many different times of day and having to take this drug and that drug, and what not. I'm not a psychiatrist, and I'm not here to analyze or pretend to analyze what the problem was, but I do know what I heard from that witness stand, and it just cannot gibe, that this defendant placed his mouth on the penis of ["A"], at that home, doesn't add up. It can't be. I would respectfully suggest that if someone does make a statement about a material fact, that is untrue, that you might disregard that untruth and you may further disregard the entirety of that person's statement. And isn't it curious too, again with the first count, a B felony, that the po1ice say they took a statement, which we argue shouldn't be considered here because the Miranda warnings were not properly given to this, but even if the Court were to accept that, there is nothing in that statement, involving any sodomy in the first degree, as charged in that B felony. Now isn't that curious, because we know the Sheriff's Department interviewed ["A"] before they interviewed the accused. If they had that knowledge, that a B felony were committed, by the placing of his mouth on the penis of this ["A"], and you're there with him for three hours, wouldn't logic dictate that you might raise that issue and say something about that to the accused, hey, what about this? [Well actually, [“A”] said nothing about oral sex until after being shown sex photograph, which was 11 days after initial interviews with both Nickel and [“A”]. Therefore, Gray’s argument here is really rather weak.] No, no, no, it's not. Except that continually over and over that he never hurt anyone in it. But here's a B felony, if it were to be believed, why wouldn't that be inquired into? But even if the Court were to accept that statement, into its consideration, there's nothing to be found in there, Your Honor, about this sodomy charge. Going to, Your Honor, aggravated sexual abuse, and here again, this same ["A"] is talking about the inserting of a finger in his rectum by the accused. Again if you were to take this statement, there's nothing in there about that action of a C felony. Now where does ["A"] say this occurred? At a public pool, a public park, with other people in the pool and around. But remember too, Your Honor, that this is the same ["A"], the very same one, who told us he reported a slapping incident to the head, that never happened. The same ["A"] that said he gave him a motorcycle, that never happened. The same [“A”] that says he gave him a saxophone, which never happened. The same ["A"] who says the color of the house exterior is white, and it never was. The same ["A"'], who says the color of the walls were blue, and they never were. The same ["A"], who says he had to duck his head to enter the room, and that's not required. The same ["A"] who says that a picture of a sexual performance was taken of him, in this same house. The same ["A"] who says there was a computer in the room that never was. The same [''A"] who says there was a camera on the window sill, except there's no window sill. The same ["A"] who said that this window sill was -- I don't know if he measured it, maybe something like three feet wide or something like that, he measures with his hands on the stand, as I recall, which is fine except the house doesn't have one. How do we know that? A man who lived there for thirty-two years of his forty-two years of life, described to us what that house looks like and that it hasn't changed. Your Honor, as you look at these three counts and ask, on the testimony of this ["A"], has this been proven beyond a reasonable doubt, with respect to this sexual performance, this photograph taken by a camera on a shelf or sill, that doesn't exist? That's really the question here, isn't it? Really, I mean, either this boy is telling us the truth or he isn't. I called them untruths, I can use other language to describe it, but I'll keep it as untruths. But we know these are untruths, we know they're not so. Again throughout these three counts, first three counts, of this indictment, we don't have over three hours of interview by this senior investigator, inspector whatever, he never talks about any of the things you can get to start off that would be good, those are the serious matters here. The case started, Your Honor, the other day, with a lady from the jail coming in here. She told us she was a receptionist, and that as clerk of some sort, and that part of her duties were to open mail that came to the jail. And she opens a letter, and though they find nothing in seeing the photographs or whatever, she brings the letter to the attention of the Sheriff's Department. That brings Deputy Bates or Investigator Bates into the situation, who then proceeds out to interview these various people. And it's interesting, isn't it, because it's Investigator Bates as I recall the testimony, who selected off the computer, an image, that he believes, is that of the accused and that of this ["A"]. He's the one that does this. [Like several other points in this closing, this entire section, beginning “This whole investigation has got no basis.”, is really quite excellent.] He's the one that brings this image forward. He's the one and maybe he did believe, that in that image, that that was the accused. But thank God he's not the final word on that. [Or is he?] There are other people, with their own two eyes, that can look and examine that photograph and can look and examine that adult in that photograph, can look at the other photographs put into evidence by the defense, and make a comparison, and I suggest, Your Honor, when that is done there won't be any doubt that that is not the accused. This whole investigation has got no basis. This whole investigation got started, because of this letter, that was received, and things that were in that letter, that piqued the interest of the investigators, and that piqued its forward direction of accusatory instruments being made against this defendant. Your Honor, if the jurors or the Court in this case, are going to find someone guilty of something, if that requires a finding beyond a reasonable doubt, could one imagine how a finding of guilty could be found of a person, on the testimony of so many untruths? So many of them. The record is full of them. It's as simple as that. The prosecution I know in its case, is going to rely on and has relied on, in my judgment, on prejudice, as opposed to proof. On the fact that they can come in and use this prejudice, to so cloud the mind of the Court and/or jury, that a finding could be found of guilty. But when your witnesses aren't giving it to you straight, nothing's going to help you. It is or it isn't. It's true or it ain't. It's as simple as that. And it can't be true if you sit up there on the stand, and tell a falsehood about a fact pattern as serious as this. We're not talking about now a trumpet, we are not talking about a saxophone, we are not talking about, now about even being hit or slapped, we are accusing someone of a serious, serious matter, forcing that someone to go to trial and to defend themselves, to defend themselves in an atmosphere that one knew would be created. One knew there would be an atmosphere of prejudice. But Your Honor, either our verdicts are founded on the truth or they're founded on the untruths. If this man were in police custody for as many hours that he was, and the police do not interrogate these issues, something -- something doesn't gibe. If the Court were to accept that statement and accept the admissions in it, you won't find any admission to B and C felonies he's charged with, that's for sure. After three hours of professional interrogation, enough said, it’s not there. [Quite true. However, Gray fails to address the fact that even with the “D” felony related [“A”] that Nickel was charged with, [“A”]’s testimony does not even gibe with what Nickel allegedly ‘confessed’ to.] Your Honor I thank the Court, and to use you as a jury and for listening to me. I pray that you'll render the right and fair and just decision here, that you'll give us a fair shake, that I know that -- I know you will do. Thank you, sir.

TORNCELLO: Thank you, Your Honor. Your Honor, the best evidence, that we have heard over the last two days, and most compelling evidence that we heard, over the past two days, might not have come from the witness chair. [Therefore, Torncello is admitting that the prosecution’s own witnesses were useless, or worse. Also, he is conceding that the “best” evidence says nothing about the three top charges.] It might have come, from People's "4", and it might have come from the statement that the defendant voluntarily gave to members of the Albany County Sheriff's Department. This trial began yesterday, with me, uttering the words, that by his own admission, and in his own words, Jeffrey Nickel is a boy lover. [1) This is pure prejudice, reflecting Torncello’s utter desperation caused by the fact he knows his own witnesses were wrong and the defense witnesses were right. 2) He is actually, yet again, in contempt of court for violating Czajka’s admonition not to use that term. (Not that Czajka would actually hold Torncello in contempt.)]

CZAJKA: Mr. Gray objected to that and I sustained his objection at the time of your opening statement. [That’s fine, but the problem is that Torncello continues in this vein anyway, which Czajka then simply acquiesces to.]

TORNCELLO: The statement –

CZAJKA: I understand that it was later referred to, included in one or more of the exhibits, but you referred to your opening statement? [This is a meaningless distinction, which only serves to obfuscate the real problem with this whole line of argument.]

TORNCELLO: Correct.

CZAJKA: You didn’t refer to the evidence, so the truth is that that objection was sustained at that time. So go ahead.

TORNCELLO: The evidence before the Court, for the Court to consider is that, Jeff Nickel is a boy lover. [This is simply incredible. Czajka just told Torncello (again) not to use this term. Nevertheless, he does use it and Czajka does nothing.] And that term doesn’t come from the Albany County Sheriff’s department, it doesn’t come from [“A”], it doesn’t come from [alleged victim B], it comes from the defendant, in his own words. And, Judge, People’s number four, which is, I believe, introduced into evidence, was not the product of some coercive interrogation by the Albany county Sheriff’s department. This was a letter, handwritten, by the defendant, and mailed to an inmate at the Albany County Correctional facility who has been convicted of sodomizing little boys. [So what? This is simply guilt by association, and more purely prejudicial ‘evidence.’]

CZAJKA: Well, that’s not in the record.

TORNCELLO: Now—

CZAJKA: What’s not in the record is the fact that the recipient was convicted. [Again, this is the least of the problems with this.]

TORNCELLO: He used that term to describe himself, he doesn’t use the more accurate term. He didn’t call himself a man who puts his hands inside the pants and grabs the genitals of a nine-year-old boy. [Not only did this never happen; it is not even alleged anywhere in the record.] He didn’t call himself a man, who takes his toes, and places them inside the swimsuit of a ten-year old boy, and touched his testicles and scrotum, [That never happened either. In any event, what Nickel may or may not have called himself is absolutely irrelevant. Only what the admissible, credible evidence shows that Nickel actually did is relevant. (And Torncello uses this proscribed phrase once again.] and calls himself a boy-lover. [Again Torncello uses this term, thus violating the Court’s order, but of course Czajka simply acquiesces, and needless to say, there is no sanction whatsoever.] Your honor, he doesn’t call himself --

GRAY: I got to object to this constant repertory, judge.

TORNCELLO: They aren’t my words, judge.

CZAJKA: The objection is to –what do you object to, Mr. Gray?

GRAY: To the continual comments, your honor, of the prosecutor, with respect to the boy lover business, and all of this. [Like several other points in this closing, this entire section, beginning “This whole investigations has got no basis.”, is really quite excellent.]

CZAJKA: All right.

GRAY: I don’t mean to interrupt him again.

CZAJKA: Come up for a moment, by the way.

(Side bar)

CZAJKA: The objection is sustained.

TORNCELLO: Your honor, the evidence in this case, doesn’t only come from him, [“A”], it doesn’t only come from little [alleged victim B], it comes from the defendant, it comes from the photographs; the decision that is being made by the court and by the jury, comes from the statement that the defendant gives. [Well, that supposed “statement” says nothing about the top three counts in the indictment] Judge, let me read a little of the defendant’s statement for the court, concerning [“A”]. [Early in the trial, when Torncello wanted to read parts of the alleged ‘statement’ aloud in court, Czajka would not allow him to. But now, he does.] At the current time, as we all know, [“A”] was eleven years old and a resident of [ ]. “I spend most Tuesdays and Saturdays with [“A”]. We do everything together, fish, swim, watch movies, go to dinner, the town park in Bethlehem swimming. Yes, I have touched [“A”], the touching gradually became sexual in nature, touching for sexual gratification, and it seemed to be okay. [These words, “touching for sexual gratification,” are legalese words that no one would actually use when discussing any sort of sexual contact in real life.] While at the Bethlehem Town Park, where we were swimming, [“A”] and I were playing a game called bull, it’s an opportunity for me to touch [“A”] during the game. I would feel his bottom with my hand caressing it. I recall touching his groin and recall being stimulated by this. [Once again, “groin” and “stimulated” are not words that a real person would use to describe any sort of sexual contact. These words, like much of the statement, are DeFrancesco’s.] I got hard and had an erection. [This is actually redundant; it simply is not anything that Nickel ever would say, as a person of some education and intellect. Numerous syntax errors in the alleged 'statement' are indicative of its true author:
“I kind of buried my self ...” [as opposed to myself, one word]
“... started coming to the floor again.” [as opposed to the fore]
“... picking up MAMBLA Journal” [as opposed to NAMBLA]
“... like the depression I came to new in 1998.” [as opposed to know]
“... living in the Capitol District Area ...” [as opposed to Capital; 'Capitol' refers to he building itself]
“... pedofile ...” [Misspelled: it's pedophile]
“... on his own accord.” [As opposed to “of” his own accord]
“... it crushed me to know end.” [as opposed to “to no” end]
“... you have no idea how much ...” [as opposed to no idea how much]
“... he was from a poor family in boondox.” [as opposed to [the] boondocks]
“... I may have fell ...” [as opposed to fallen]
“... you can rest sure of ...” [as opposed to assured] ] [“A”] rubbed my groin during this game of bull on at least two separate occasions this summer. [Words like “groin” and phrases like “two separate occasions” are legalese,’ police-speak.’] I thought I was touching him affectionately.” With respect to [alleged victim B], another boy, “his name was [alleged victim B], twelve years old, I like him a lot, he’s cute. Curly brown hair, very tan, a little stocky, he’s attractive. We started a friendship, yes, I touched him. Of course that excited me. I doubt he knew how much though. I recall one specific time he grabbed my leg under the water, my other leg went up into his groin under his suit, the first time it may have been an accident, but the second time I probably stuck my foot into his groin touching his penis and scrotum,” [This also is not a word that Nickel would use.] judge, and he says [alleged victim B] didn’t seem to mind this. “this tells me something. It told me he didn’t mind that it was invasive. [Not only is “invasive” not a word that Nickel would use; if this alleged ‘statement’ is to be believed it seems to be saying that the child was the one who originally used that word, which is even less likely.] I have a theory that he may have been touched sexually before because he wasn’t ticklish, and foot on his penis—it didn’t bother him”. That’s the proof in this case, your honor. That’s the proof. [Proof of what? Assuming that the ‘statement’ is to be believed, it says nothing about the top three charges: oral sex, taking the sex photo, and the ‘finger incident.’ Nowhere in his closing argument does Torncello make any attempt to buttress the claims as to those most serious charges. Instead, what Torncello is saying is that because Nickel is supposedly a ‘boy lover,’ whatever that means, testimony that would otherwise be simply incredible instantly and magically becomes credible. In other words, forget all the prosecution witnesses, all their contradictions and demonstrably false statements, and just go ahead and convict this guy of everything because he supposedly says and thinks certain things. Why have a trial at all? Witnesses are irrelevant, right?] Those are the defendant’s words. Those corroborate the statements from the witness stand, by young boys, [No- - the alleged ‘statement’ does not corroborate the three top charges relating to [“A”] or even any of the less serious “D” felonies, relating to either [“A”] or [“B”]. Though the supposed ‘statement’, if it is to be believed, does mention incidents that might constitute “D” felonies, what is said in the statement regarding them simply does not match what either [“A”] or [“B”] said.] and they serve as a way for the Court to judge credibility of the witnesses and honesty of the witnesses and the truthfulness of the witnesses, who took that stand, who took that stand, and [“A”], who looked at that photograph, People’s number five, and I said, who is that [“A”]? That’s me and that’s Jeff. [Well, the police and prosecutors certainly convinced [“A”] that that was so, when the fact is, it is neither [“A”] nor Nickel.] Do we need more proof? That is enough right there. [Enough for what? [“A”] is wrong about literally every verifiable detail about which he testified.] Everything else is gravy. This was a short trial. I’ll be brief. We heard from Claudette Scostak, we heard from Ron Bates and Steve Tanski about expertise in retrieving and recovering photographs, and in particular, People’s number five which he retrieved and which Ron Bates and [“A”] identified [Yes, Ron Bates was the first person to so ‘identify’ this photo; except that, not least because the boys’ eye colors don’t match, he is simply wrong.] as the defendant and [“A”]. You know, judge, the defendant likes to state in his letter, in his statement, that he never hurt any boys. Is there anyone here, who saw the testimony and saw those young boys, that would believe that they weren’t harmed? [Well, they certainly were by the legal process.] He thinks it was beneficial for [“A”] to have to sit in open court in front of people he’s never seen in his life at the age of nine years old, and have to identify, a photograph of the defendant with his mouth on his, [“A”]’s penis. That’s a benefit? That’s helpful? It’s hurtful. [Torncello knows very well that Nickel thought no such thing this is simply demagoguery designed to steamroll Czajka into convicting Nickel based purely on hatred. It was the prosecution that forced [“A”] to do all of this, not the defense. And last but not least, [“A”] is not even in the photo. The real harm here is that the prosecution convinced him he was, and thus convinced him that acts occurred which, in reality, never did. What Torncello is, in essence, saying here is that Nickel deserves to be convicted simply because he refused to plead out.] [Alleged victim B], who had the misfortune of knowing him less than two weeks, ten days, he saw him because his parents sent him to summer camp. He’s the boy who Jeff Nickel has a theory about, that when he didn’t jump back, when Jeff Nickel put his foot inside the swimsuit—

CZAJKA: Mr. Torncello, will you be much longer? [Again, Czajka appears to be anxious to get this over with so he can go home.]

TORNCELLO: No. That his theory was, it wasn’t invasive. That he had been touched sexually because he wasn’t ticklish and he – it didn’t bother him. Judge, you know, I’m almost done, judge. Every bit of this defendant, every molecule of his being is driven by his sex drive, and his need for sexual gratification involving young boys. [Torncello is attempting to get Nickel convicted for who he supposedly is, not for what he actually did, and it worked.]

GRAY: Objection

CZAJKA: Sustained

TORNCELLO: Judge, read the letters, read his statement. He is driven by that need, judge. You listened to the testimony, you have heard the evidence, you have seen the evidence, you have judged the credibility of the witnesses of the People, you have judged the credibility of the witnesses of the defense, and we will ask you at this time, your honor, and respectfully request that you find the defendant guilty of each and every charge, because there’s credible, compelling evidence, on every element, charged in this indictment. Thank you.

(Whereupon a brief recess was had) [Czajka leaves the courtroom, presumably to deliberate his verdicts. Just two minutes later, he returns to the courtroom, asks a technical question about the sex photo, and then renders his verdicts.]

CZAJKA: Don’t get up. Attorneys with respect to count three?

TORNCELLO: Yes, your honor?

CZAJKA: The definition of performance, means any play, motion picture, photograph, or dance? [This entire inquiry is improper. Closing statements have already been made.]

TORNCELLO: Yes, sir.

CZAJKA: What is it that the People allege Exhibit 5 is?

TORNCELLO: We allege it’s a photograph, judge.

CZAJKA: But it’s not.

TORNCELLO: Under that theory, once it’s printed it is. I think that you can, I think that clearly construed—

CZAJKA: You’re suggesting because it was on the computer disk, it was a photograph? [What Czajka is doing here is attempting to come up with a different reason to acquit on the photo charge; i.e., one that would avoid the obvious ‘repugnance’ issue of convicting Nickel of the sex charge while acquitting of the photo charge. He feels compelled to do the latter because he knows he was on very shaky ground in excluding McEvoy as an expert. So now, he is continuing his cynical maneuvering.]

TORNCELLO: Sure.

CZAJKA: What do you say, Mr. Gray?

GRAY: Your honor, I would argue that no, it was not a photograph, and that it was on a computer disk and was brought back by the use of some software, that the detective from Colonie used to bring it back. I couldn’t even be found there, you know, unless he used that software to resurrect and bring it back.

TORNCELLO: Our point, judge, --

GRAY: Then there was no ability to indicate how long or when it was or who placed it there.

TORNCELLO: At some point it’s got to be a photograph scanned into the computer and put on the disk, that is it. It was a photograph. It’s just, I mean, any—I can give you a photocopy of a photograph and would that not fit the statute? [Even Torncello is bemused by Czaka’s peculiar ‘logic’ here.]

CZAJKA: The court as a trier of fact finds as follows: Under count one, charging sodomy in the first degree, in violation of 130.50 subdivision (3) of the Penal Law [of] the State of New York, the class B violent felony, the Court finds the defendant guilty. Under count two, aggravated sexual abuse in the second degree, under Section 130.67 subdivision (1)(c), the Court finds the defendant guilty. Under count three, use of a child, in a sexual performance, in violation of Section 263.05, the Court finds defendant not guilty. Under count four, sexual abuse in the first degree, in violation of 130.65 subdivision (3), the Court finds the defendant guilty. Under count five, sexual abuse in the first degree, in violation of Section 130.65 subdivision (3), the Court finds defendant guilty. Under count six, endangering the welfare of a child, the Court finds the defendant guilty. Defendant is remanded to the custody of the Albany County Sheriff. Any requests before we adjourn, Mr. Gray? Bail is revoked. Any requests before we stand in adjournment? I’ll set a sentencing date right now. How much time do we need? Don’t take him away yet. I’m not done.

TORNCELLO: Probation likes between six and eight weeks.

CZAJKA: On June 29th alright attorneys? That’s a Friday?

TORNCELLO: Yes; your honor.

GRAY: No, your Honor.

CZAJKA: That’s the last Friday of June; that’s a bad day?

GRAY: I’m not available that week, your honor.

CZAJKA: All right. What’s the next Friday in July? July 6th, is that okay Mr. Gray?

GRAY: Yes.

TORNCELLO: Yes, your honor.

CZAJKA: All right. July 6th.

(Whereupon the proceedings concluded in the above-entitled matter.)

CZAJKA: All right. What’s the next Friday in July? July 6th, is that okay Mr. Gray?

GRAY: Yes.

TORNCELLO: Yes, your honor.

CZAJKA: All right. July 6th.

(Whereupon the proceedings concluded in the above-entitled matter.)