One Police Plaza

Two Tales of the City

February 18, 2013

Two startling verdicts in cop-related fatal shootings came down last week.

In one, a Brooklyn jury acquitted the getaway driver of a botched robbery that resulted in the killing of NYPD officer Peter Figoski.

The driver, 23-year-old Michael Velez, maintained he had known nothing of the robbery and had merely given his friends a ride to where the robbery occurred.

In the second, grand jurors in Queens voted not to indict an NYPD detective for shooting an unarmed reservist who had been driving erratically on the Grand Central Parkway.

The detective, Hassan Hamdy, a 14-year veteran assigned to the elite Emergency Service Unit, maintained he had fired a single shot at Noel Polanco, a 22-year-old National Guardsman, because he feared Polanco was reaching for a gun.

If there is commonality to these verdicts, it is that both Velez and Hamdy took the unusual step of testifying in their defense. Velez testified before a jury; Hamdy before a grand jury.

Here’s how their lawyers explained it:

“You never know with a client but I believed his story. There were different things I was weighing. O.K., he’s not a clean kid. He had some stuff in his background. But while he did have a prior arrest, it was his only arrest. With people I find to be of the so-called criminal element, by the time they are above 20, they’ve had more than one or two brushes with the law.

“There was also nothing in his background that said he was a robber. And there was something totally unrelated. He had a daughter.

“He always maintained the same thing. That he was simply asked to give four guys a ride to the uncle of Nelson Morales. He [Velez] knew Morales, who was the mastermind of the robbery, and he knew the second robber, Morales’s friend Ariel Tejada. But the other two guys he didn’t know.” [One of them Lamont Pride, fired the fatal shot at Figoski. A separate jury convicted him last week of second-degree murder, acquitting him of the top count, sparing him a possible life sentence without parole.]

“He [Velez] fled after he heard the shot. As the case progressed, I kept waiting for the District Attorney to produce more than a video of his running away. On the surface that makes it look like he is guilty. But he says he sees car lights behind him, then sees cop cars driving the wrong way, boxing him in, and then he hears a shot and he runs. He gets scared. He wants to get away from the area. That all makes sense to me.

“At first, the D.A. said Velez knew about the robbery when he drove to Morales’s uncle’s home, where they robbed a drug dealer. Then, the D.A. came back and said, ‘We concede he wasn’t told about robbery when they asked him to give them a ride.’ That told me that my client was telling me the truth. That corroborated 90 per cent of my client’s story.

“I kept waiting for the D.A. to give me something to suggest my client may be lying. He [the D.A.] acted like he had more, but then a month before trial he makes a deal with Ariel Tejada, who was Nelson’s right hand man and one of the four robbers. It’s the deal of a lifetime. Eighteen years in prison flat. As opposed to spending his life in jail for killing a cop.

“Then Ariel testifies that at the last second they told my client we are doing a robbery and that he wants a percentage of the cut. There’s no further discussion about the robbery. Ariel’s story is extremely farfetched.

“Most guys who are guilty when faced with heavy charges like killing a cop will confess. They brought him [Velez] to a precinct for questioning, where he was alone with angry cops. My client said there were four or five detectives in the room. One started to talk. He had his gun on the table. Then he put his gun away, saying, ‘I don’t want an accident.’ That’s about the scariest, most isolated you’d ever feel.

“And he never confessed.

“Honestly I don’t always believe my clients. That’s o.k., I can still do my job. I don’t over-represent my clients. If they are telling the truth, they just need to say the truth.

“The night before his testimony I went out to Rikers. I brought a colleague with me who crossed [questioned] him. He seemed to be able to tell the truth. He seemed able to handle himself. He only has an l1th-grade education and the prosecutor came right at him but he withstood it. If it’s the truth, there’s not much to worry about.

“I think the District Attorney, Charles Hynes, was over-reaching to appease the NYPD, the PBA and the Figoski family. The family was set up for disappointment.”

“There is a difference in testifying at trial and testifying before a grand jury. Testifying before a grand jury poses a far greater risk to a potential defendant.

“In Criminal Law 101, you are taught never to let your client testify before a grand jury. The reason is he waives his immunity. There is also no judge. The prosecutor controls all the evidence the grand jury hears. He has sole discretion in determining what evidence and what witnesses will testify, except for a potential defendant, who has the right to testify if he chooses.

“But his attorney has no opportunity to object to any question the prosecutor may ask.

“The worst part is that, if your client is indicted, you have given the prosecutor a road map to your defense. So that if the defendant testifies at his trial, the prosecutor already has a detailed prior statement he can use to cross-examine him.

“But when a police officer is involved in a shooting, grand jurors don’t want to hear legalistic formalities. They want to hear from the officer. They think they are entitled to hear from the officer.

“The crucial thing for grand jurors to understand is the Law of Justification. It states that a police officer has the right to protect himself, to discharge his weapon if he reasonably believes another person is about to use deadly physical force against him or someone else.

“You have to make jurors understand through the testimony how a police officer was reasonable in reaching the conclusion that he was about to be met by deadly physical force. In Hamdy’s case, there is a series of escalating threats.

“Hamdy was a highly trained, disciplined ESU guy. He and his team, in two unmarked police vans, had been out that night, executing search warrants for guns and drugs. The warrants had gone off routinely. No one was keyed up.

“Then, the victim [Polanco] speeds by the two unmarked police vehicles on the Grand Central Parkway. Hamdy is not driving. A sergeant is driving. The sergeant makes the decision to chase him. Both police vehicles put on their red lights and sirens.

“He [Polanco] doesn’t pull over. In fact he goes faster. They pull alongside him, roll down the window so he can see their police uniforms and order him to pull over. Instead, he keeps going.

“Now there is a danger. They decide to box him in, to physically slow him down. Hamdy is in the first vehicle. Polanco’s car is directly behind him. They slow him down and pull him over to the left side of road. Hamdy comes out of the passenger side of the van. He is a big guy. He is wearing a vest with “POLICE” written in big white letters. He has his gun out because Polanco’s actions have raised his threat level. He approaches Polanco’s car on the passenger side and yells, ‘Show me your hands.’

“A woman in the passenger seat puts her hands up. He [Polanco] doesn’t show his hands. Hamdy says again, loudly, in an attempt to convey to Polanco the seriousness of the situation, “Police! Show me your fucking hands!”

“Instead, he [Polanco] lunges forward and reaches to floorboards of his car.

“The question to the grand jurors then becomes: Based on the evens that had just unfolded, up to and including the moment that Polanco lunges forward with his hands to car’s floorboard, was it reasonable for a cop to believe in that split second that that he [Polanco] was reaching for a gun? If so, then his [Hamdy’s] actions were justified.

Sum total: Two guns — two shots— two deaths— two lawyers.

With editing by Don Forst


Copyright © 2013 Leonard Levitt