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Aug 11, 2010 11:11 AMPublication: The Southampton Press

Judge: Tape of Linda Kabot’s DWI arrest will be admissible during her October trial

Aug 11, 2010 11:11 AM

A Riverhead Town justice on Friday sided with prosecutors in the DWI case against former Southampton Town Supervisor Linda Kabot, ruling that a video of her 2009 arrest and statements she made that night are admissible as evidence in her upcoming trial, which will begin in October.

Ms. Kabot’s attorney, William Keahon of Hauppauge, spent three days last month during his client’s pre-trial hearing arguing that the video, taken from the dashboard of a Westhampton Beach Village Police cruiser, along with statements Ms. Kabot made to police that night and her refusal to submit to a breath test, should not be admitted.

But Justice Allen Smith ruled Friday that the video may be presented to a jury as evidence, even though gaps exist in the video and audio because the arresting officer, Ryan Lucas, previously testified that he had turned off the camera at one point to review the tape and, at another point, shut off his microphone.

Justice Smith also decided that statements Ms. Kabot made after she was pulled over by Westhampton Beach Village Police shortly before midnight on September 6, 2009, may be admitted as evidence—including a statement that she drank one or two glasses of wine that evening. He also ruled that Ms. Kabot’s refusal to take a breath test may be presented to a jury as evidence.

Even though Judge Smith’s decision states the defense sought “the preclusion of the videotape,” Mr. Keahon said this week that he has no qualms about the video being shown as evidence—in fact, he said he was pleased with Justice Smith’s ruling.

“Well, I’m very happy that the video will be going into evidence, because I think it clearly demonstrates that she was not intoxicated,” he said of his client.

Ms. Kabot did not return a call seeking comment.

Mr. Keahon said he requested the hearing in order to determine what happened to the missing audio and video. During the pre-trial hearing, Mr. Keahon argued that police conspired to set up his client, who was at odds with the Southampton Town Police Benevolent Association at the time and running for reelection, and deliberately deleted portions of the recording.

In his decision, Justice Smith indicated that the questions surrounding the video may be addressed at trial.

“It is uncontroverted that the arresting officer turned off the audio capacity of the recording device contrary to rules of the Westhampton Beach Police Department,” he wrote.

At the upcoming trial, Officer Lucas may be called to testify about the recording, and Westhampton Beach Police Lieutenant Trevor Gonce may be called, or subpoenaed, to testify about the police cruiser’s hard drive, where the recording was stored, and subsequent copies that were made, according to the decision.

“The testimony will prove whether the loss of the audio was intentional or inadvertent,” Justice Smith wrote.

The arrest video itself shows Ms. Kabot driving south on Sunset Avenue in Westhampton Beach and, at one point, her driver’s side tires cross over the double yellow line. Then, the tape shows her failing to fully stop at a stop sign before making a left turn onto Main Street. She then proceeds to drive around pedestrians who are crossing the street before drifting from her lane a second time.

The video also shows Officer Lucas and his partner, Officer Steven McManus, pulling over Ms. Kabot near Library Avenue and administering three field sobriety tests, of which officers later said she failed two. The video captured an irate Ms. Kabot later repeatedly telling the officers that she won’t take a Breathalyzer test at the scene. She also said she “had, like, two drinks,” did not feel intoxicated, and did not think that she swerved when she was driving.

Justice Smith chronicled the timeline of the traffic stop, the investigation and arrest in his decision and wrote that the traffic stop was “warranted” and a probable cause for the arrest was established.

On Monday, Mr. Keahon described the gaps in the video and audio as “suspicious.”

“They claimed they shut it off intentionally in order to review the tape to note the time of the stop,” he said of the officers. “But during the hearing I confronted them with a directive from the police chief in June of ’09, which directed all members of the police department never, for any reason, to shut off the video or audio during a traffic stop and they did it. They were aware of that directive.”

Bob Clifford, a spokesman for Suffolk County District Attorney Thomas Spota, said the prosecution’s only comment was: “We’re ready for trial.”

Jury selection will take place on October 21 and 22, and the trial will begin on October 25, Justice Smith wrote in his decision.

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Time to make the plea that she should have made 11 months ago!
By Frank Wheeler (1826), Northampton on Aug 6, 10 6:11 PM
3 members liked this comment
Frank Wheeler : You must be pretty proud of yourself for your voluminous post count ! Get out and enjoy the Summer and REAL life ! LOL !
By PrivateerMatt (390), Weesuck Creek , EQ on Aug 6, 10 7:05 PM
2 members liked this comment
PrivateerMatt: Not too shabby yourself there Matt. You both need to find a hobby.
By Good Ground (24), Hampton Bays on Aug 6, 10 11:17 PM
1 member liked this comment
One relevant post and two digs = par for the course!

Cheers Linda!
By ICE (1214), Southhampton on Aug 7, 10 7:13 AM
1 member liked this comment
And you irrelevant post makes three digs.
By progressnow (556), sag harbor on Aug 8, 10 12:35 PM
1 member liked this comment
Poor Linda-she can't get a break.
By EastEnd68 (888), Westhampton on Aug 8, 10 6:22 AM
Poor Linda? Ha! There's a moral to this story, kiddies: break the law it will eventually come back to bite you in the ashi.
By Tom Selleck (8), Sag Harbor on Aug 9, 10 12:35 PM
1 member liked this comment
how long did it take for the judge to make his decision? is this what we are paying for?if she dont take a plea they will keep her in court for years.let her have her day in court .
By banjack (45), port jeff on Aug 8, 10 11:03 AM
Mr. Keahon may be one step ahead of everyone IMO. He already has an issue for appeal re: admissibility of tape, and can put the officers on the stand during trial to make them explain turning off the tape and turning off the microphone -- to check the time stamp correctness etc.? Give me a break, this is a totally lame explanation, and Mr. Keahon will have a field day with this at trial IMO.

Jury trials are quite unpredictable. We have not heard the end of this IMO.

By PBR (4956), Southampton on Aug 9, 10 12:48 PM
1 member liked this comment
I Agree and Mr Keahon is a very good lawyer.
By 1percent (52), Quogue on Aug 10, 10 10:08 PM
We have heard the end-no trial. Plead this out and get on with your life.
By EastEnd68 (888), Westhampton on Aug 9, 10 4:48 PM
The fact that she refused the breath test is testimony to her guilt! Her admission to having drank alcohol is strike two. Her actions on tape is three stikes, sheees out!
By Walt (292), Southampton on Aug 9, 10 7:08 PM
no its not . she was set up, we all know that
By banjack (45), port jeff on Aug 11, 10 4:16 PM
1 member liked this comment
It has to be said - why is she so committed to that hair-do?
By fcmcmann (417), Hampton Bays on Aug 10, 10 12:14 PM
So now you would have her charged for violating the FCMcMann Grooming and Coiffure Act.
By Frank Wheeler (1826), Northampton on Aug 11, 10 10:19 AM
Hook, line, sinker!
By fcmcmann (417), Hampton Bays on Aug 11, 10 11:30 AM
1 member liked this comment
HAH! Sorry, Wheeler!
By peoplefirst (787), Southampton on Aug 11, 10 2:36 PM
Article updated with Mr. Keahon's comments. The plot thickens.

As stated above, in my personal opinion this tape opens up a "field day" for defense counsel to shred the officer's testimony on the so-called justification (to check the video time-stamp) to turn off the recording.
By PBR (4956), Southampton on Aug 11, 10 11:38 AM
1 member liked this comment
PS -- "Reasonable Doubt" is a cumulative thing.
By PBR (4956), Southampton on Aug 11, 10 11:49 AM
By john o (34), southampton on Aug 11, 10 10:19 PM
1 member liked this comment
The only thing that is astounding about any of this is the number of people who believe that Kabot is the victim of some vast conspiracy rather than her own arrogance and stupidity.
By Noah Way (450), Southampton on Aug 14, 10 12:11 AM
1 member liked this comment
PBR said it: "Reasonable Doubt". Two deactivations of the video and audio recorders by the arresting officer during the course of the arrest. The judge could save Westhampton Village some money by approving Keaton's motion for a directed verdict of "Not Guilty" as soon as the prosecution rests.

By Reggie Washington (3), Quogue on Aug 16, 10 11:03 PM
1 member liked this comment
Its pretty funny. Many people in this town get passes all the time. We are talking about the Mayors, the Village Trustees and such. When they get pulled over most of the time they go on their merry way. But sometimes they are just too drunk to let go, so they get a ride. Political positions in this town get you some favors here, but Linda was not well liked. There is a rat here. Most of us locals could name 6 or 8 people driving around every day loaded to the hilt, but no one does a thing ...more
By davidcHB (11), southampton on Aug 19, 10 1:24 PM
1 member liked this comment
By comman man (3), hampton bays on Aug 19, 10 7:33 PM
The police can ask for a court order to secure a blood test, but this is usually done in only in the case of accident where the breathalyzer is refused. Kabot could have demanded a blood test to prove her innocence but since she wasn't, she couldn't.

Can't wait for the trial. She'll surely appeal if she loses. If she skates I hope Keahon's fee is adequate punishment. One thing's for sure, in this country you get the best justice you can afford.
By Noah Way (450), Southampton on Aug 19, 10 11:28 PM