Warrant challenged in Schenectady weapons, drug case

PHOTOGRAPHER: Steven Cook

Share on Facebook

Save

The van pulled in near where authorities expected a $40,000 marijuana deal to go down July 23, 2009.

State police investigators, who had tapped the drug target’s phone, were watching that evening on Westside Avenue, looking to identify the alleged buyer that they only knew by the name “Dom.”

Their suspicious were seemingly confirmed when a van pulled up near the target address. It had plates registered to 48-year-old Domenico Cusano Jr. of Patton Drive, Rotterdam, according to testimony at a court hearing this week.

Surveillance then shifted to Patton Drive, where undercover troopers watched as a man identified as Cusano moved a duffle bag from the van to behind a fence.

Investigators believed they had their Dom.

But Cusano’s defense attorney, Steve Kouray, says the Dom on the wiretap and his client were not the same. Cusano was only stopping at a business next door to the target address at the wrong time.

The suspected marijuana shipment was never found in a later search of Cusano’s home.

The investigation’s target, Pablo Cruz, 36, now faces 11 counts, including four counts of third-degree criminal sale of a controlled substance. His arrest was a result of the investigation that drew attention to Cusano.

Another man arrested on charges related to the investigation was Nestor Torres, 40, of Helderberg Avenue. After a raid on Aug. 5 at Torres’ home, investigators reported finding two pounds of marijuana, a stun gun and illegal fireworks.

Members of the state police Community Narcotics Enforcement Team raided Cusano’s home the same day as the Torres raid. But no large stash of marijuana was found at Cusano’s home, only a half dozen marijuana plants, allegedly growing next to Cusano’s house and two unregistered handguns. One handgun was allegedly found in a safe, the other hidden in the basement ceiling.

The raid resulted in two felony counts against Cusano of second-degree criminal possession of a weapon and a misdemeanor marijuana count related to the plants.

Cusano, once a county corrections officer, allegedly told the raiding state police that he had intended to get a license for the weapons after he left the Sheriff’s Department, but never did. It was unclear when Cusano left the department.

Cusano was one of four Schenectady County Jail guards acquitted of federal inmate abuse charges in 1996. The charges related to the reported beatings of seven inmates in 1994.

While the guards were acquitted, the incident and its aftermath resulted in a total of more than $1 million in settlements doled out to the inmates, as well as three other guards who claimed they were victims of harassment after they cooperated with federal investigators.

pretrial hearing

The events that led to Cusano’s 2009 arrest were outlined in a pretrial hearing this week in Schenectady County Court before judicial hearing officer Michael Eidens.

The hearing related to Cusano’s alleged statements to police, as well as the identification made by the undercover trooper that helped lead to the search warrant.

Cusano not only allegedly pointed investigators to the gun in the safe, but also pointed them to the one in the ceiling, according to senior Investigator Samuel Mercado. Cusano pointed out the second gun, Mercado testified, only after being confronted with an empty gun box.

At several points, Mercado described Cusano as “being a gentleman” about the situation. Cusano pointed out the weapons and helped remove two of his dogs from the backyard so investigators could inspect the plants.

Cusano also inquired about his prized motorcycle. Mercado responded they were careful to search around it, but not damage it.

Mercado said Cusano first mentioned his former status as a corrections officer as Mercado read Cusano his rights. Cusano responded that he knew his rights from his former employment. Mercado said he did not know previously Cusano was a former corrections officer.

Eidens is to rule on the hearing issues later.

Prosecutor Matthew Sypniewski said this week that the search warrant was valid, even without finding a large stash of drugs. The warrant was based on probable cause from the wiretaps and surveillance.

But the wiretaps themselves and notice given to the defense attorneys are expected to become an issue. Kouray, who represents both Torres and Cusano, said he intends to press the issue of notice.

Kouray alleges that he wasn’t notified that the wiretaps would be used against his client within the proper time frame. A ruling in his favor would throw out the wiretaps and the search warrants and evidence that followed from them.

Cruz’ attorney, Paul Delorenzo, indicated this week he intends to make a similar motion.

Sypniewski, however, contended that proper notice was given.