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Officer says he tried to help fellow cop beat manslaughter rap

By Matt Bean
Court TV

NEW YORK -- A highway patrol officer charged with measuring the blood-alcohol level of a fellow cop who killed four with his minivan admitted on the stand in the officer's manslaughter trial Thursday that he had sought to help him beat the tests.

"Thinking back to the time, my intention was to give the subject a benefit," said now-retired NYPD Officer Martin Finkelstein.

Court TV's complete coverage of the Gray trial 

The admission prompted cries of a cover-up from victims' relatives, who have attended in large numbers since the trial began in Supreme Court in Brooklyn on Monday.

"There is something going on with them," said Ramona Hernandez, the aunt of the victim, Maria Herrera, 23, whose unborn son was delivered by emergency caesarian section after the deadly crash last August. "Everyday, there is something new."

Elvis Pena, Herrera's cousin, who is an auxiliary officer with the defendant's former precinct, said he felt the police were trying to help each other out at the expense of justice.

"It's shocking to everybody," Pena said.

Two hours and 40 minutes after the accident, on Aug. 4, 2001, Finkelstein testified, he met with Joseph Gray, 41, the defendant in this trial, and "two or four members" of the Patrolmen's Benevolent Association, the police officers' union which sometimes helps to represent officers in trouble.

In a room in the 78th Precinct stationhouse, also in Brooklyn, set aside for investigating drunken drivers, Finkelstein admitted that he and the PBA members discussed ways in which Gray, who admitted he had spent that day drinking, could beat the tests.

Three hours earlier, Gray had plowed his 1996 Ford Winstar minivan into Maria Herrera, 23, her son, Andy, 4, and her sister, Dilcia Pena, 16. Another son born to Herrera on her deathbed died the following day. Gray is facing 15 years in prison on four charges of manslaughter.

Prosecutors say Gray had been drinking and was speeding at the time of the crash at the intersection of 46th Street and Third Avenue in Sunset Park, a largely immigrant neighborhood in central Brooklyn. Gray admitted he had been drinking with other officers in the parking lot of the 72nd Precinct, where he worked, and later at a nearby strip club.

Despite any discussions Finkelstein might have had with the PBA, Gray eventually decided not to take any of the tests that night.

In a videotape shown to the jury Thursday, Gray is heard refusing to take a Breathalyzer exam as well as a hand-eye coordination test. In a colorful striped polo shirt and faded jeans, he stands stock-still with his arms crossed and says only 'no' as Finkelstein reads from a script prepared for DWI situations.

It is difficult to tell in the minute-long tape whether Gray appears to be intoxicated.

Finkelstein testified that when he first arrived at the 70th Precinct he immediately recognized Gray as a fellow police officer.

"I was disheartened," Finkelstein said. "For lack of a better word, I was touched emotionally. I felt bad about the situation."

No amount of sympathy, however, could help Gray beat a blood test that a Brooklyn judge ordered he be given later that evening. The test, administered at Long Island College Hospital four hours after the accident, measured Gray's blood-alcohol level at 0.16 percent.

A level of 0.16 means Gray's blood alcohol level at the time of the crash was around 0.23 percent, testified Dr. Jessie Bidanset, an expert in forensic toxicology.

The expert said that Gray would have had to have consumed 10 beers immediately before the collision, or 18 throughout the day -- if the steady "burn off" of alcohol with time was considered.

With more than double the legal limit (in New York) of alcohol "on board," Bidanset told the court, Gray's coordination and vision would have been severely hampered.

Defense lawyer Harold Levy has, throughout the prosecution's case, solicited details of Gray's behavior after the crash to suggest that, despite his drinking that day, Gray was in control.

But Bidanset offered a physiological explanation for Gray's composure when Levy posed this argument on cross-examination: The release of the natural stimulant, adrenaline, following the crash could have countered the effects of alcohol, a depressant, in Gray's system.

His secondary argument defused, Levy then reverted to his central contention, which figures to be a large part of his defense -- that, drunk or not, Gray could not have avoided the collision.

"Would you agree with me that if one or more persons ran out from a very dark area ... that a drunk might hit them and a sober person might hit them?" he asked the expert.

"Yes," Bidanset replied.

The state's case continues tomorrow with testimony from an accident reconstruction expert expected to calculate how fast Joseph Gray was traveling when he hit the victims.




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