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Eric Garner Case: Pantaleo Trial On Hold, Witness Says Records Exaggerated Crime

NEW YORK (CBSNewYork/AP) - The departmental trial of the officer accused in the death of Eric Garner has entered a two-week delay since the defense wants to call an expert medical witness who's currently unavailable.

On Tuesday, another defense witness testified in the trial of Daniel Pantaleo, accused in Garner's 2014 choking death.

Officer Justin D'Amico said he wrote paperwork exaggerating the seriousness of Garner's crimes.

D'Amico said that after riding in an ambulance with the dying Garner, he filled out arrest papers listing a felony tax charge that would have required prosecutors to prove Garner, a small-time street hustler, had sold 10,000 untaxed cigarettes. Gardner only had about 100 cigarettes on him.

D'Amico was questioned about the posthumous arrest papers while testifying at the disciplinary trial of Officer Daniel Pantaleo, a one-time partner accused of restraining Garner with a banned chokehold as they tried to arrest him for selling loose, untaxed cigarettes on Staten Island in July 2014.

"You initiated this on your own, writing up the arrest of a dead man?" asked Suzanne O'Hare, a lawyer for the police watchdog agency bringing the disciplinary case against Pantaleo.

D'Amico acknowledged that the felony charge was incorrect because Garner actually had with him five packs of Newports that contained a total of less than 100 cigarettes. The cigarettes were marked for sale in Virginia, a sign they were being resold illegally in New York.

Garner was ultimately posthumously charged with two misdemeanors, which alleged he resisted arrest and sold untaxed cigarettes. The case was not prosecuted because Garner is dead.

D'Amico's testimony was often revealing, giving the never-before-heard perspective of the one officer who had been with Pantaleo throughout the confrontation. Pantaleo, 33, denies wrongdoing. He has been on desk duty since Garner's death.

Speaking for more than an hour in a nearly full hearing room at police headquarters, D'Amico recounted how he'd given an agitated Garner a warning two weeks earlier, instead of arresting him, for selling loose cigarettes because he felt that approach was "the right thing to do."

Once Pantaleo grabbed Garner and pulled him to the ground, D'Amico said he just assumed that Garner was faking unresponsiveness — "playing possum" — to get out of being arrested. An officer who arrived as Garner was being restrained testified that he had the same thought.

Garner's dying pleas of "I can't breathe," captured on a bystander's cellphone video, became a rallying cry against police brutality targeting black people.

D'Amico testified he saw Pantaleo's arm around Garner's neck as the two men struggled — but he didn't say if he thought the move was a chokehold.

At one point in his testimony, D'Amico said he recalled Pantaleo's arm being around Garner's "upper body." That description prompted Garner's widow, Esaw, to mutter: "Oh, come on."

D'Amico, then in charge of combating graffiti and quality of life issues in a neighborhood near the Staten Island Ferry terminal, said he was paired with Pantaleo to watch for loose cigarette sales when he saw Garner completing such a transaction.

D'Amico, who hasn't faced disciplinary action, testified that he and Pantaleo didn't rush to arrest Garner because they were "trying to avoid a physical fight." They stayed calm as Garner screamed for around 10 minutes about feeling targeted by police and swatted D'Amico's hands away while refusing to be arrested, D'Amico said.

Pat Lynch, the president of the Police Benevolent Association officers' union, said D'Amico and Pantaleo "utilized textbook de-escalation techniques to limit the use of force against a much larger and irate individual."

"We are convinced that if the politics of the streets are removed from this process and the case is decided on a dispassionate hearing of the facts, that Police Officer Pantaleo will be exonerated," he said.

The NYPD's disciplinary process plays out like a trial in front of an administrative judge.

Normally the purpose is to determine whether an officer violated department rules, but that's only if disciplinary charges are filed within 18 months of an incident.

Because Pantaleo's case languished, the watchdog Civilian Complaint Review Board must show that his actions rose to the level of criminal conduct, even though he faces no criminal charges and is being tried in a department tribunal, not a criminal court.

The final decision on any punishment lies with the police commissioner. Penalties range from the loss of vacation days to firing.

The disciplinary hearing is scheduled to resume June 5.

Pantaleo's lawyers say they will call a medical examiner from St. Louis, Missouri, to rebut the New York medical examiner's finding that a chokehold set into motion "a lethal sequence of events" for Garner.

Garner's mother, Gwen Carr, said she's "tired of the disruptions."

(© Copyright 2019 CBS Broadcasting Inc. All Rights Reserved. The Associated Press contributed to this report.)

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