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Jul 21, 2010 10:10 AMPublication: The Southampton Press

Kabot hearing concludes with no decision on arrest tape

Jul 21, 2010 10:10 AM

RIVERHEAD—A pretrial hearing concluded on Monday afternoon without a decision on whether the videotape of former Southampton Town Supervisor Linda Kabot’s arrest can be submitted as evidence during her upcoming DWI trial, which is now set to start in the fall.

Also on Monday, the third and final day of pretrial hearings, a sergeant with the Westhampton Beach Police Department—which Ms. Kabot’s attorney is alleging conspired to arrest her before last year’s election—testified that one of the arresting officers did not brag about Ms. Kabot’s arrest during the early morning hours of Labor Day 2009.

Sergeant Nicholas Fusco, whose shift ended at midnight on September 7, 2009, minutes before Ms. Kabot was arrested for DWI, testified that Westhampton Beach Police Officer Steven McManus told him, “Look who we’ve got.” Sgt. Fusco also told the court that Officer McManus never said, “We got her, we got her,” as has been argued by Ms. Kabot’s defense attorney, William Keahon.

Outside the courtroom on Monday afternoon, Mr. Keahon said that Sgt. Fusco’s testimony does not undermine the attorney’s argument that police conspired to set up his client.

“I’m not sure there is really a difference,” Mr. Keahon said, referring to what Officer McManus reportedly told Sgt. Fusco before Ms. Kabot was arrested after being pulled over in Westhampton Beach.

Mr. Keahon also tried to call Officer McManus to the stand on Monday, but that request was denied by Riverhead Town Justice Allen Smith. Mr. Keahon said that the justice thought it would be more appropriate for Officer McManus to testify at the upcoming trial, which could start in late October.

On Monday, Justice Smith delayed a decision on the admissibility of the tape of Ms. Kabot’s arrest, which was shot from the dashboard of a Westhampton Beach Village Police cruiser between the time she was pulled over on Main Street, just before midnight on September 6, 2009, and the time she was placed into handcuffs and driven back to police headquarters on Mill Road, at around 12:15 a.m. Roberta Morrissey, the director of the justice court, said after the hearing that Justice Smith does not know when he will issue a decision on the tape.

There is a gap of more than three minutes of videotape. Westhampton Beach Police Officer Ryan Lucas, who made the arrest with the assistance of Officer McManus, testified two weeks ago that he had shut off the camera to review the tape.

Mr. Keahon has previously stated that he thinks that Westhampton Beach Police deliberately deleted portions of the tape. He also said that Ms. Kabot, who was at odds with the Southampton Town Police Benevolent Association at the time of her arrest, was targeted by police and not drunk when stopped by officers. Ms. Kabot, who has stated that she drank one or two glasses of wine at her sister’s home in East Moriches a few hours before her arrest, was defeated in November by Town Supervisor Anna Throne-Holst.

Joshua Shapiro and Anthony Baron, the assistant district attorneys who are arguing the case, have countered that there was no conspiracy to target Ms. Kabot.

On Monday, Justice Smith gave the attorneys two sets of dates for the upcoming DWI trial. Jury selection can take place on October 21 and 22, with the trial starting on October 25, or jury selection can take place on November 4 and 5, with the trial beginning on November 8.

Mr. Keahon said that such a delay between pretrial hearings and a trial is not unusual.

While making his argument on Monday, Mr. Keahon charged that Officer McManus went up to Sgt. Fusco, who was driving past the scene in his car after finishing his shift, and Officer McManus, while carrying Ms. Kabot’s driver’s license in his hand, said, “We got her, we got her.” But Sgt. Fusco testified that Officer McManus walked up to his car and handed him and Westhampton Beach Police Sergeant Thomas Hubbard, who was also in the car, Ms. Kabot’s license and said, “Look who we’ve got.”

Mr. Shapiro then asked Sgt. Fusco if it is normal for a police officer to state to his or her supervisor, “Look who we got,” if they happen to pull over a celebrity or politician. Sgt. Fusco testified that it was not unusual to do that.

Westhampton Beach Detective Edwin Hamor also testified on Monday regarding the two affidavits that Lieutenant Trevor Gonce—the only Westhampton Beach police officer who has the authority to download videos shot by the village’s police cruisers—signed in October. The affidavits gave different accounts of whom Lt. Gonce spoke to on the night of Ms. Kabot’s arrest. Det. Hamor and his partner, Detective Stephen Cunneen, were instructed by Westhampton Beach Police Chief Ray Dean to deliver the affidavits to officers in the department.

Lt. Gonce testified last week that he signed the first affidavit stating that he didn’t speak to anyone on the night of the arrest because he had just woken up and was confused. He then called the detectives back to correct his affidavit, adding that he been in contact with two people: Officer McManus, who called him, and Southampton Town Police Benevolent Association President Pat Aube, who sent him a text message after Ms. Kabot’s arrest and later called him. Lt. Gonce said Mr. Aube was already aware of Ms. Kabot’s arrest when he called.

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Whoa you guys, are you continuing a conversation from another article?

Sincerely yours,

Miriam Webster

Merriam Webster !!!
By PBR (4956), Southampton on Jul 19, 10 8:01 PM
"she refused to take Breathalyzer".

I thought that was equivalent to automatic conviction?
By davidf (325), hampton bays on Jul 19, 10 10:04 PM
I think the "automatic" part is the license suspension.
By Frank Wheeler (1826), Northampton on Jul 19, 10 11:27 PM
right, my point, refuse to take breathalyzer = admission of guilt. why the trial? she's already admitted that she was drunk because she refused the breathalyzer. this country has too many hair splitters. if you're sober, take the breathalyzer, if you're drunk, don't, and lose your license for a while and have it on your record.
By davidf (325), hampton bays on Jul 20, 10 9:54 AM
1 member liked this comment
you thought wrong
By banjack (45), port jeff on Jul 20, 10 10:12 AM
Maybe if I thought I were being "set up", I would refuse a breathalyzer too. Who's to say someone couldn't/wouldn't fiddle around with it? Even if it turns out there's no way at all anyone could ever falsify the results, as long as I thought maybe they could in the pressure of the moment, that would justify refusing. At least in my mind.
By baywoman (165), southampton on Jul 20, 10 5:59 PM
1 member liked this comment
If the tape showed that she was fine - her attorney wouldn't be challenging the admission of it in court, he would be welcoming its use to exhonerate her. The issue here in the end, is whether the person was driving drunk. The purpose of throwing out the physical evidence is that the trial then relies only on officer testimony, and if the officers involved have done something foolish in the past or done something that questions their honesty (not motivation) then their testimony can be discredited. ...more
By johnnytax (29), new york on Jul 20, 10 8:34 AM
1 member liked this comment
Well said johnnytax IMO, regarding the evidentiary issue about the admissibility of the video of the arrest.

The video could actually HELP Ms. Kabot's case, but Mr. Keahon may have made the tactical decision to ask for its exclusion, in order to raise at trial "reasonable doubt" about the actions of the arresting officer.

Nice call, and yes this will likely go to trial. Hard to imagine either side accepting a plea bargain now.
By PBR (4956), Southampton on Jul 20, 10 1:00 PM
WRONG-WAY KEAHON is still trying to convince the world that it wasn't his fault he was on the wrong side of RTE 347 that fateful night.
By uncleronk (136), southold on Jul 20, 10 8:47 AM
Whoooa! No one died in the Kabot case. Why bring up old, unrelated news?
By Frank Wheeler (1826), Northampton on Jul 20, 10 9:51 AM
delay some more, let her go allready they got nothing, stop wasting our tax dollars.
By banjack (45), port jeff on Jul 20, 10 9:56 AM
Johnnytax makes a good point...why would Kabot's attorney fight the use of a tape that would exhonerate his client?

Clearly the tape is damaging to Kabot's defense. That's what happens when "good cops" do a "good job"; the defense challenges the evidence that is incriminating and everyone pretends it never happened just because their arguement was better than another or the judge had a particular slant in making his decision.

Right now Kabot just wants to be able to say "I told ...more
By Dodger (161), Southampton Village on Jul 20, 10 10:02 AM
1 member liked this comment
Were these Good Cops doing a good job?
Also, these retired police officers who had connections within their old dept that spyed on citizens, pulling phone records illegally. Were they good cops when they were on the job? What about the police officers helping them with illegally gaining access to phone records are they good cops too? Should we not rid ourselves of these types of cops you speak about?
By reg rep (408), Southampton on Jul 20, 10 5:40 PM
In any civil action the attorneys get to examine witnesses under oath before trial (EBT).

A criminal defendant in New York does NOT have the right to such EBTs. SO, a good lawyer seeks pretrial hearings so that he can get to examine witnesses and prepare the defense. Once witnesses testify and it becomes more difficult for the story to change once they have been committed to it under oath (Lt. Gonce notwithstanding).

It would be a mistake to assume that the goal of the hearing ...more
By StopCorruption (19), Southampton on Jul 20, 10 6:35 PM
This article has just been updated, and the print edition will likely contain some interesting details on Thursday.

Jury selection and trial set for late October or early November.

Unlikely IMO that a plea bargain will occur in this high profile case.
By PBR (4956), Southampton on Jul 20, 10 7:18 PM
A plea bargain kind of depends on whether the video is admitted at trial, doesn't it?

Linda Kabot is feisty, but is she feisty fool?
By Frank Wheeler (1826), Northampton on Jul 21, 10 10:30 AM
This is actually going to a jury trial?

Oh yeah, that happens consistently with DWI cases...
By Mr. Z (11847), North Sea on Jul 20, 10 11:20 PM
and if she drives drunk again and gets caught she'll go to jail. DA, let it go, settle it and move on.
By davidf (325), hampton bays on Jul 20, 10 11:24 PM
next time it could be someone's life she takes.
By CC Barbie (7), Westhampton Beach on Jul 21, 10 11:53 AM
high profile? she had her license suspended for refusing a breathalyzer. let it go and save some taxpayer money. she already lost the election, if she wants to run again let her. the mayor of washington d.c. was caught on tape smoking crack and still got re-elected.
By davidf (325), hampton bays on Jul 20, 10 11:23 PM
Law 101, page 1: You do not fight the admissibility of evidentiary material that would exonerate your client.
By peoplefirst (787), Southampton on Jul 21, 10 9:59 AM
page 2 -- unless one has another purpose in mind.
By PBR (4956), Southampton on Jul 21, 10 5:24 PM
this is why i dont drink
By SirHampton (60), quogue on Jul 21, 10 11:27 AM
Those of you that are stating she was drunk, this is what another local paper stated:
The prosecution, those who have viewed the tape say Kabot does not appear intoxicated at all -- she is talking normally, and looks fine.
If you did not view the video, you cannot and should not be saying she was drunk.
I believe she refused to take the breathalyzer for a reason.
By reg rep (408), Southampton on Jul 21, 10 10:51 PM
> "I believe she refused to take the breathalyzer for a reason."

O, and what might that be? (Assuming ishe was NOT intoxicated at all, was talking normally, and looked fine.)
By Frank Wheeler (1826), Northampton on Jul 22, 10 9:47 AM
That is my opinion, that she must have had a reason. If I were in her shoes knowing the police could not stand me, I would have refused also.
All of us that are blogging about this did not see the video but the prosecution did and they said she looked fine. That is good enough for me to think she was not drunk and that they were targeting her. Has it never happed that someone was set up?
By reg rep (408), Southampton on Jul 22, 10 7:33 PM
Those defending Kabot are laughably illogical.

WH Village police are completely independent from SH Town.

If you are innocent you take the test. The only reason not to take the test is because you are guilty. She didn't take it because she was afraid a clean result would be used against her?! You just can't make this stuff up.

All the BS about a conspiracy is just that. The simplest solution is the most likely one. Keahon is deliberately sowing confusion in a desperate ...more
By Noah Way (450), Southampton on Jul 22, 10 11:46 PM
1 member liked this comment
If the WHB Police are so completely independent, why was Aube of the SHT Police called by one of the arresting officers (who later "forgot" to mention it in his affidavit and then suddenly changed his story)?
I am telling you, I smell a rat. And Linda probably smelled one too. That would make me very wary of a breathalyzer test which maybe could be "fixed." I am not sure if the findings on a breathalyzer can be manipulated (have someone else breathe into it after the subject?). But all LK had ...more
By baywoman (165), southampton on Jul 24, 10 5:18 PM
Noah Way did you see the video? I would have to say no way you could have.
I understand that you are not a Linda supporter, but to say she is guilty is laughably illogical.
The WH Village and SH Town have the same rules regarding the 20 year retirement law. They shared a common goal to not ever have this law enforced. By getting rid of Kabot they knew the law would never be enforced.
BTW it never will, Throne-Holst will not touch it ever.
By reg rep (408), Southampton on Jul 25, 10 12:41 AM
Video proves nothing, unless of course it shows her driving erratically (the reason she was pulled over) or falling down drunk. Watery, bloodshot eyes; the odor of alcohol, etc. are not readily evident or even clearly discernible on dashboard video.

Kabot could have demanded a more accurate blood alcohol test to prove her innocence. She was informed of her chemical test rights - which clearly spells this out - at the time.

Thanks, Linda, for continuing to waste taxpayer dollars ...more
By Noah Way (450), Southampton on Jul 29, 10 6:12 PM