Schenectady police officers cleared

PHOTOGRAPHER: Steven Cook

All criminal charges against three Schenectady police officers related to a December 2007 drunken driving arrest were dismissed on Monday.

Schenectady County Court Judge Karen Drago made the ruling as a gallery populated by friends and families of the officers briefly clapped in approval.

The decision meant that officers Eric Reyell, 29, Gregory Hafensteiner, 30, and Andrew Karaskiewicz, 38, no longer face criminal charges in the Dec. 7, 2007, arrest of Donald Randolph.

All three had faced misdemeanor official misconduct counts. They were charged with either failing to fill out the proper form related to the arrest or failure to turn on a camera in a police patrol car.

Internal disciplinary charges, however, continue to be investigated by the police department.

The three, along with two others who weren’t indicted, have been on leave since late December 2007. By September, the city had paid the five nearly $200,000 to stay home. That will continue until the internal discipline review is completed.

Meanwhile, a spokesman for the state attorney general said Monday the state intends to appeal Drago’s decision. That could extend the process. The state brought the case after District Attorney Robert Carney recused his office because of a potential conflict of interest.

Drago based her decision on an 18-year-old modification to the state official misconduct statute. The modification, she wrote, was intended to prevent prosecutors from charging official misconduct when their original intent was to seek assault charges.

The crux of the prosecutor’s grand jury case, she wrote, was an alleged assault. The case was also peppered with testimony regarding department policy.

“The court was left with an impression that when it became clear that there was insufficient proof to indict for assault charges, the people then focused their efforts to indict for official misconduct,” Drago wrote. Failure to comply with administrative regulations does not rise to a crime, Drago said, citing the 1990 statute.

Outside the courtroom, family members hugged.

Hafensteiner attorney Michael McDermott noted the legislative intent was not to prosecute crimes for failing to follow administrative policies.

“We always felt that it was overreaching to try and fit these facts into a criminal prosecution,” McDermott said. “We’re glad the judge agreed.”

Reyell was represented by attorney Cheryl Coleman, while attorney Andrew Safranko represented Karaskiewicz.

Safranko said the ruling now puts the case back inside the Schenectady Police Department. He said he expects Karaskiewicz to continue to oppose any internal disciplinary actions.

Coleman said her client Reyell is looking forward to getting back on the job. She said they always felt the charges were overreaching. “Not everything you do wrong at your job is a crime,” she said.

Hafensteiner, Karaskiewicz, and Reyell, who remain out on paid leave, were suspended without pay for a month after their September indictments. Through police department spokesman Officer Kevin Green, public safety Commissioner Wayne Bennett declined to comment on the developments Monday, other than to say the internal investigation would now be expedited.

The two other officers who were not indicted but remain on paid leave are Daryl Mallard and Kevin Derkowski.

They were suspended after Randolph alleged that one or more officers used excessive force and he was injured as they were arresting him for allegedly driving while intoxicated. Randolph’s family alleged that a half-dozen officers beat him while arresting him, and after Randolph tried to use a cellphone to call his girlfriend for help. Randolph was not seriously injured.

Reyell was the only officer charged with failing to turn on his camera. There were at least three police cars involved in the incident. None of the others were accused of failing to have their video running, including Reyell‘s partner Derkowski, and Karaskiewicz, the initial arresting officer.

But all three were accused of failing to complete a “use of force” form regarding the arrest of Randolph.

The dismissals mean the only charge to stand up in the incident was a misdemeanor aggravated unlicensed operation count against Randolph.

Randolph, 37, was initially charged with felony drunk driving and unlicensed operation, but those were reduced to one misdemeanor count of aggravated unlicensed operation, based on a case called weak by District Attorney Carney. Carney’s office prosecuted Randolph, but not the officers.

Drago noted the state prosecutors did not present the grand jury with assault charges to consider, after it became clear there was insufficient evidence of an assault.

“Without disclosing the contents of the grand jury minutes,” Drago wrote, “the court concurs with the people’s decision not to submit such charges to the grand jury.”

Police union president Lt. Robert Hamilton said Monday they are waiting to hear from the city about the internal investigation. He believed it was nearing completion.

Regarding the judge’s decision, Hamilton called it the right one. “It was obvious to us from day one,” Hamilton said. “You don’t get charged with official misconduct on a mistake of forgetting to fill out an interdepartmental statistics-gathering form.

“You just don’t get charged with a crime.”