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Judicial Incompetence and Indifference: A Personal Story

By Damion Cocchi

The basics:

On the evening of Monday 5-Apr-2010, I needed to be home on either a LIRR (Long Island Rail Road) 5:22/5:41/5:53 to Ronkonkoma (all get me home at about 7PM), as my in-laws were sitting my two younger daughters, while my oldest daughter and wife were at a Girl Scout function.  I left work late and was attempting to make the 5:41, knowing that I may meet up with a fellow commuter, I grabbed his Girl Scout Cookie order (2 boxes Thin Mints) and from my desk and rushed out.

At about 5:20, I attempted to enter the Grove St PATH station, operated by the Public Authority NYNJPA at the Marin Blvd/Christopher Columbus Dr Entrance, and was asked by 2 PAPD (Port Authority Police Department) Officers to submit my bag for bag search.

The PAPD approached me to try to get me to submit to a search to which I refused after the following queries, and verified that the PAPD was in fact attempting to initiate and investigatory encounter, to which I ultimately did not give consent to the search.

  • Whether I was under arrest?
    • To which the officers responded “No”
  • Whether I was under suspicion of having done something criminal?
    • To which the officers responded “No”
  • Can I refuse the search?
    • To which the officers responded “Yes”

I was then notified by the officers that if I refused the search, then I was not permitted entry in.  When I queried what regulation or law permitted such action, I got the response that if I attempted to reenter the system I would be subject to arrest.  As I left, I told them good-luck on their future endeavor of illegal searches much like the Nazi’s did.

In every other case leading up to the evening of Monday 5-Apr-2010 that I have been stopped either by MTA, NYPD or NY State Troopers, I received answers from no response (stony silence) to none of your business, to you’ll see when we arrest you.  And in each of those cases, which since these Terry Stops were enacted I have always left the entrance I entered in and proceeded to the next closest entrance and re-entered the public transportation system and went on my merry way, giving them the feel good notion that they did something.

Aside:

This was the second time that a police force had someone sent to look for specifically for me for a re-entry into the system and on the platform with the intention of confronting me.  The 1st time I was chased down on the Number 7 Subway Platform, at the 5th Ave/42nd St entrance by an NYPD Lieutenant who when confronted me, after I refused his teams bag search and left for another entrance; I asked him again, what regulation or law gave him the authority to prevent me from entering the system, when I had a valid metro card ticket and used it to enter which gave me authorized permission to use and travel within the public transportation system.  To which he made his disdain known but left in huff with no further words by either of us; nothing further came of that incident.  But as he left he was still extremely irate with me and spoke loudly enough to his team so that I heard, but seemed to have grudgingly accepted/allowed my position.

 

As I proceeded to the leave the station through the entrance that I had originally entered through, I began my search for the alternate entrance (I had never before used or seen this other entrance and was unsure of its whereabouts). I also realized I was not going to make the 5:41, by wasting time searching for the entrance, so as I walked I put the Girl Scout Cookies in my book bag.

I discovered the Christopher Columbus Dr/Grove St. Entrance after having walked one block north and one block west and entered to await on the Platform to catch the 33rd St PATH back to Herald Square so that I could get to Penn Station and ultimately home.

Once within the station while walking down the platform back towards the Marin Blvd/Christopher Columbus Dr Entrance of the platform I passed a PAPD officer, who was apparently sent to verify if I had re-entered the public transportation systm, at which point while waiting for the PATH to 33rd St to arrive, several other PAPD officers arrived and surrounded me and asked me to step towards a support beam(on the Newark.JSQ side of the platform), and place my bag down, and proceeded to handcuff me.  I was then walked/escorted to the Christopher Columbus Dr/Grove St. Entrance end of the platform where I was asked some identification questions, and patted down.  They then asked where my ID was located and retrieved it and began making initial query calls to verify ID, and my status regarding warrants, etc…

I was then walked/escorted back to the Marin Blvd/Christopher Columbus Dr Entrance and put into a marked PAPD sedan (parked on Marin Blvd) and brought to Journal Sq for further processing.  I was then subjected to a more invasive search, asked about identifying scars and tattoo’s and had my shoelaces & belt removed along with my other personal items.  Additionally my bag was also subject to further search, the officers and a supervisor asked if my bag contained anything that the officer may hurt himself with while searching the bag, to which I responded that I did have a multi-tool and that I worked in IT so was a necessary item for me in the bag, which had a pocket-knife and screwdriver, which should be/and were in the closed positions, when they had finished searching my bag, the officer asked what I had done with the Girl Scout Cookies that I had been carrying, to which I responded that they were in the bag, they were unable to find it, and I needed to point out the location of the compartment (it was missed during the search).  I was then escorted into a holding cell, and while there I was asked mainly questions about my identity if I had ever been arrested before (never prior to this incident).  At sometime around 7PM, I was read my Miranda Rights and signed that I acknowledgment that I was read/understood them, and at around 8PM I was offered a phone call, and some food.  As a guess at around 8:30 or so, another PAPD officer asked, he just stated that he was curious, nothing was to come of it, if I also wore glasses and then when I responded that I do he then reaffirmed his statement that nothing was to come of it, and asked if I was the person that did the same thing at a “Random Bag Search” that occurred the prior week on 1-April, to which I responded that I most likely was, not sure how many other people do not consent to voluntary searches.  This occurred at the 33rd St Entrance and asked to submit to a bag search, to which I responded similarly the same way on that day as I did for this incident:

  • Whether I was under arrest? To which the officers responded “No”
  • Whether I was under suspicion of having done something criminal? To which the officers responded “No”
  • Can I refuse the search?  To which the officers responded “Yes”

I was not told during this incident that I would be arrested if I attempted to enter the system in this case and left with out further questions from me, but still gave them my common retort good-luck on the future endeavor of illegal searches much like the Nazi’s did; I then proceeded to exit through the 33rd / JC Penny entrance and at street level crossed 6th Ave and proceeded back down into the PATH station from the opposite side of the Bag Check, and entered the PATH Platform.  He said that they were sent to look for me at the 32nd St Entrance, and I told him I always enter back through the closest entrance, I just crossed 6th Ave. (all of which I imagine was supported when they ran the turnstile checks on my PATH-Link card, thusly not answering or lying I viewed was to cause more trouble).

The Charges:

The complaint alleges that Mr. Damion M. Cocchi is charged with defiant trespass NJSA 2C:18-3B(1) did “…….” – the complaint does have my address incorrectly as NJ – not sure if that means anything.

The Court Appearances:

I had to represent myself (Pro Se) as no lawyer wanted to actually defend me, they all wanted to plea out.

1st Court Date

12-Apr-2010 @ 9AM, Jersey City Municipal Court; before Judge Cynthia Jackson

  • The DA, asked if I had an attorney, I said no that I was going to ask for court appointed, he offered a plea agreement to misdemeanor – I asked to discuss it with my wife.  He said it was a limited time offer (until the judge entered the room), I left the court room to call Steph and discuss.  I wasn’t comfortable with the deal as it would not resolve the issue of the false arrest, and that this could happen again in the future.  I work in the Financial Services Sector, can’t be having that I was arrested (need to have the case expunged, to claim that I haven’t been arrested).
  • Judge/Court refused legal aid, due to that I make to much money apparently.
  • Ultimately pleaded not guilty, and got a return court date of 14-June-2010 @ 1PM.

2nd Court Date

14-June-2010 @ 1PM, Jersey City Municipal Court; before Judge Cynthia Jackson

  • DA, asked if I had an attorney, I said no and went through the process before as if I had never had the original 12-Apr Court Date.  I asked about my “Request for Discovery” Materials that I had requested earlier, and was told to speak with the judge about it.
  • Entered my plea of Not Guilty again, with a new return court date of 24-Aug @ 1PM.
    • I followed-up with Judge Jackson with regards to my Discovery Materials, and was directed to speak with the Office of the Municipal Prosecutor.
  • I spoke with the Office of the Municipal Prosecutors Office, and was directed to re-fill out my request for materials, and send a $25 Check to the office and not to the PAPD (As I have heard nothing from the original request from the PAPD).  And to mail it to the Office along with a required Coversheet: it was sent on 14-July.

3rd Court Date

appearance 24-August-2010, Judge Ana C Moreira, (updated (nov-9) Margaret M Marley – Judge Moreira was incorrectly listed on the door of court room1)) Officer Deprima finally appeared in court, along with Sgt. Gonzales.

  • DA acknowledges that there were deficiencies from the Office of the Municipal Prosecutor’s office, that did not properly complete my Discovery Materials request.
  • PAPD Sgt Gonzales acknowledges that the PAPD, only keeps video evidence (regardless of its use in criminal proceedings for 22 days, against NJ State Procedure Data Retention Requirements).
  • I was queried by Judge Moreira; as to why I did not consent voluntarily and waive my 4th Amendment Rights. I maintained it was US Constitutionally protected right that I was not required nor voluntarily wanted to invalidate. Additionally I was also requested to write a Legal Brief for the Judge with the basis of my arguments.

4th Court Date

scheduled to hand deliver the Legal Brief for the Judge and DA review. On 20-Sep-2010 @ 1PM.

5th Court Date – Scheduled

scheduled for 1-Oct-2010 @ 1PM, DA rebuttal to my Legal Brief.

On 23-Sep, I realized I missed my court Sep 20th court date, and immediately sent an apology the legal brief to Judge Moreira.  I then also had a continuance accepted to 9-Nov. 

6th Court Date – Scheduled

scheduled for 15-Oct, but needed a continuance and reschedule as I was in Florida and unavailable.

5th Court Appearance

Appeared in Court Room 3 on 9-Nov-2010, and identified that the Judge I had was in fact a Judge Margaret M Marley, and not Judge Ana C Moreira.  Based upon the my query and the name plates on the doors to the court rooms.  During this appearance the DA had not had the opportunity to review the Legal Brief, and a new court date was set for Dec 10th at 1PM, the Judge gave the DA more time as I had delivered my Legal Brief late (by three days, but that earned a rebuke from the Judge and the extra time for the DA to review).  But had stated and documented it in the court records that if the DA hadn’t responded than my case would be dismissed.  Though I was once again told I should have waived my 4th Amendment right by Judge Marley.

6th Court Appearance

An emergency requiring all Judges and DA’s from Jersey City Municipal Court to be off-site, I was never notified until my court appearance.  A judge from the Bayonne NJ Courts provided a new court date.  Surprise,, even with the Judges order to dismiss the case of the ADA did not provide a response, and for which there was no record that she had, I was given the new appearance date.

7th Court Appearance

Jan 10th, again Judge Marley unavailable but the DA was there and unprepared again – no response to my brief.  The judge yet again against the court orders to dismiss had set a new date instead.  Additionally he requested that the DA and discuss the “Discovery Materials” issues again, to which the DA was entirely clueless that the PAPD was not a Federal Law Enforcement Agency, we had quite a lengthy discussion that they were in fact a Bi-State Authority with powers granted by NY State laws, and covered by NJ Courts.  She was watched by PAPD Sgt Gonzales, and when questions came up about the PAPD she would hold a conference with him, though he stayed entirely silent when I argued that the PAPD was not a Federal Law Enforcement Agency or a Private Firm, but a Public Authority.  He would only provide guidance to her on the Video evidence that I had requested, when she finally got stonewalled silent because i wouldn’t drop the the PAPD is state police law enforcement agency and eventually replied that she wasn’t going to fulfill my Discovery Materials Requests, meeting adjourned.

8th Court Appearance

Prior to this court appearance I went to the Office of the Chief District Attorney’s and filed a letter of compliant with them about the DA with respect to her lack of professionalism for willfully refusing to provide my discovery materials, her lack of knowledge about the laws especially with regards to the Legal Structure of the PAPD and NYNJPA and her incompetence at replying to my legal brief in a timely fashion, as expected she was not held accountable, I just got a thank you for delivering the letter, it will be investigated…If it was I never received any follow-up to indicate that this had indeed happened.

On Jan 13th, Judge Marley was available but a new DA was there and unprepared again – no response to my brief.  The judge yet again against her own court orders, and again she cited that I was late with my Legal Brief (by 3 days) – that the DA earned the right to still respond to my brief.

9th Court Appearance

Feb 22nd, Again the DA was not prepared and had no response to my Legal Brief, but stayed her decision as she wanted the PAPD officers and there Supervisor in Court as well for her decision.

10th Court Appearance

My case was dismissed (though not on the grounds I wanted 4th Amendment violation), she still felt that I should have waived my rights.  But in her ruling she called the PAPD to task on their willful destruction of Videos that may should have been saved as per NJ retention requirements, and that they had violated the law.  She wanted the arresting officer and the supervisor to be aware of it, as a result the PAPD are no required to save all videos for any criminal proceeding to be available for Discovery Requests in the future as per the NJ Retention Requirement Law.  She continued to further berate them for dis-respecting the court for their continued non-appearance as well.

I have attached my Legal Brief that I submitted in Sep, though with a few updates as time progressed for my own documentation.  The court appearance dates and info are the only changes.

Written and submitted by Damion Cocchi

Legal Brief_updated as of Jan2011

(Editor’s Note: This is a typical story where the courts try to wear down the person and inconvenience them as much as possible, forcing the person charged to take time off from work and life to prove they are innocent, instead being presumed innocent until proven guilty. Luckily, Damion didn’t have the thousands of dollars of expense of an attorney, which most people incur. The judge, the DA, and law enforcement are all on the same team, excusing one another’s mistakes and overlooking one another’s incompetency to the detriment of the defendant. The DA’s goal is to get a guilty plea/verdict with the least amount of work in order to teach the defendant obedience and to ring the government cash register with fines and court costs. Remember, the judge, DA and LEOs are all paid to participate in this system, to go to court, to be prepared. The defendant must take time out to fight bogus charges and is usually unschooled in the intricacies of the judicial system.)

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4 Comments : Leave a Reply

  1. Steelhaven says:

    Way to stick it out man, good on you. To bad it took 10 tries. Would have liked to have seen a 4th amendment violation tried for future reference.

  2. Peggy says:

    Your post is a timely cotniurbtion to the debate

  3. williams, Jonathan says:

    Congratulations, & thank you for your story. It is the inspiration I need to keep going & not give in or up in my struggle &/or pursuit of helping my son-in-law, particularly when i get overwhelmed & the questions of who , why or how far to to extend my efforts can make easy excuses for giving up. far to many people accept a fate thrown at them by the illegal & manipulative tactics of judicial system, whether they ae guilty or not, but what they don’t realize is their decisions, often premature & resulting from feelings not valid, has created a magnitude of damage that exceeds far beyond tose it was directly intended. Outnmbered by the majority of people willing to waiver to the freehand of illegality in its misuse of law by the judiciary re-enforced w/ the ability & authority, given by us, they hide & are shielded by, in my opinion, injustice, difficulties, legal & judicial manpulations endured by the few of us wlling to make a stand only strengthen our resolve bc somewhere wile going through the process it becomes about more than us just winning. It becomes about our inalienable right to be protected by the just law for which this contry was founded. You were a winner to me just by your willingness, belief it what right & all that enabled your to endure the challenges to the end. When you walked out the courtroom w/ a dsmissal, you become a hero & inspiraton to me.

  4. C. Giordano says:

    Wow! You did it! They never expected an average citizen to defend themselves. Your obviously no ordinary citizen. Good work. :)

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