A Suffolk judge ruled Thursday that the county's top uniformed police official must testify if called by the defense in a pretrial hearing for the man charged with stealing his gun belt and other items from his police vehicle.
State Supreme Court Justice Martin Efman denied Suffolk County's attempt to quash a subpoena calling Chief of Department James Burke to the stand, and county officials said Thursday that they would not appeal the decision. They declined to comment further.
But Daniel Barker of Riverhead, defense attorney for Christopher Loeb, 27, said he has not decided whether to call Burke to the stand when the hearing resumes Nov. 8.
Loeb is charged with stealing items from numerous cars in the St. James area, including from Burke's unlocked, police-issued GMC Yukon. During the hearing, officers testified that on Dec. 14, 2012, Burke showed up at Loeb's house in Smithtown and, during a police search, took the duffel bag that had been stolen from the SUV, and that Burke later spent one or two minutes with Loeb in a Fourth Precinct interrogation room.
Loeb told family members that Burke punched him in the stomach, his mother has said. The FBI and the U.S. attorney's office for the Eastern District are investigating whether Burke assaulted Loeb, law enforcement sources have said. Loeb is being held as a material witness in federal custody. Throughout the hearing, he has been kept separate from other inmates and has had no contact with any Suffolk law enforcement officials.
Efman said that during the hearing so far, special prosecutor Peter Crusco -- appointed because of Burke's long-standing ties to Suffolk District Attorney Thomas Spota's office -- has presented evidence that Burke was present both at the crime scene and with Loeb.
"Mr. Burke is more than a victim in this case," Efman said, ruling from the bench. "His testimony is relevant and probative. The subpoena will stand."
Although Barker can now call Burke as a witness, he said he's not sure if he will.
"I have to decide if strategically it's in the defendant's interest," he said. One issue that may make calling Burke less attractive is that as a defense witness, Barker may not be able to question Burke as aggressively about his actions as if he were a prosecution witness being cross-examined. Efman also said Thursday that he will rule next week on whether Crusco must turn over notes of his interviews with Burke.
Crusco said afterward that he respects the court's rulings.
Burke's meeting with Loeb is relevant to whether Loeb's confession was voluntary, Barker has said. He confessed only after that meeting, witnesses have testified.
On Tuesday, Assistant County Attorney Brian Mitchell, speaking on behalf of Burke, said Burke's testimony would add nothing. Burke's testimony would be relevant only if Loeb first testifies that Burke hit him, Mitchell said, but Barker has not said whether he would put his client on the witness stand.
"The chief has denied any wrongdoing," Mitchell said then. "It can't be forgotten, first and foremost, the chief is a victim in this case."