Any testimony from Suffolk Police Chief of Department James Burke in the trial of the man charged with stealing his gun belt and duffel bag should be limited because a federal investigation of Burke is closed, a special prosecutor said in a motion filed Wednesday.
The pretrial motion also argued that Burke should not be allowed to be questioned about his conduct in 1993, when an internal affairs report said allegations were made that he lost his gun to a prostitute and repeat felon with whom he had sex in his patrol car.
In the motion filed Wednesday with state Supreme Court Justice Martin Efman, special state prosecutor Peter Crusco said Suffolk Chief of Detectives William Madigan told him that Assistant FBI Director April Brooks said on Dec. 18 "that their investigation of Chief James Burke was closed."
Federal authorities declined to say Wednesday if whether the investigation was closed.
The FBI had been investigating Burke, 49, the department's top uniformed officer, concerning claims that he had beaten Christopher Loeb, 27, the Smithtown man charged with stealing his duffel bag and gun belt from his unlocked, police-issued GMC Yukon in December 2012. During a pretrial hearing last year, Loeb testified that Burke and detectives punched him while interrogating him in the Fourth Precinct station house after he was arrested in December 2012. Police witnesses testified Burke came to Loeb's house while it was being searched and took his bag, which Loeb testified contained "nasty pornography."
Crusco is handling the grand larceny and probation violation cases against Loeb because of Burke's close ties to Suffolk District Attorney Thomas Spota.
Burke's attorney, Joseph Conway of Mineola, said the FBI told Burke on Dec. 18 that its investigation was "inactive." Conway said he confirmed that with the U.S. attorney's office about a week later.
"It was certainly a relief for the chief," Conway said.
Crusco said that if Burke testifies at Loeb's trial defense attorney Daniel Barker shouldn't be allowed to question him about that investigation because it "would be collateral, misleading, confusing, speculative and calling for hearsay." Crusco added that the 1993 events are "too remote and irrelevant to the issues at this trial."
Barker disagreed. "The credibility of a witness, no matter who it is, is always relevant on cross-examination," he said.
Several criminal defense attorneys not on the case agreed. One, Bruce Barket of Garden City, said, usually almost anything is fair game when cross-examining a witness.
"If Burke gets on the stand and testifies, the defense can stand up and say, 'Didn't you beat the hell out of my client?' " Barket said. "He could even go into the pornography."
Barker noted that he tried to limit Crusco's cross-examination of Loeb during the pretrial hearing using a similar argument and lost.
With Robert E. Kessler