Kabot hearing concludes with no decision on arrest tape

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.

Det. Hamor testified that when he and Det. Cunneen arrived at Lt. Gonce’s house in October, his wife answered the door and Lt. Gonce later opened the garage door. Lt. Gonce told the detectives that he had just woken up, but Det. Hamor said he thought that Lt. Gonce was in a good state of mind. The detectives then explained the document to Lt. Gonce, who signed a form stating that he didn’t talk to anyone.

“He looked it over. He was holding it,” Det. Hamor told Mr. Keahon. “I assumed he read it.”

“Less than five minutes” after the detectives left, Lt. Gonce called them back to his home so he could correct his statement, Det. Hamor testified.

Lt. Gonce gave a similar account of what happened last week. On Thursday, July 8, Justice Smith cleared the courtroom after Lt. Gonce testified that he had signed the two affidavits. That was the first time that the district attorney’s office learned about the first sworn statement.