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Lawyer: Decision not to prosecute cop over Garner death may help him in internal trial

NYPD Officer Daniel Pantaleo was cleared Tuesday by

NYPD Officer Daniel Pantaleo was cleared Tuesday by the feds but still faces departmental charges. Photo Credit: AP/Eduardo Munoz Alvarez

The decision by federal prosecutors to forgo bringing civil rights charges against NYPD Officer Daniel Pantaleo in the death of Eric Garner may work in the officer's favor in his ongoing departmental trial, Pantaleo's defense attorney said.

Attorneys for the Civilian Complaint Review Board who handled the administrative trial maintained in summations that Pantaleo recklessly used a barred chokehold on Garner and triggered a fatal asthma attack. He is charged with third-degree assault and first-degree strangulation under the penal law. He could be fired if found guilty but he could no serve jail time.

But Richard P. Donoghue, the U.S. attorney for the Eastern District of New York, while announcing no charges would be brought, still noted Tuesday that there is disagreement among medical experts about the cause of Garner’s death as he struggled with cops on a Staten Island sidewalk on July 17, 2014 — particularly over the issue of whether the chokehold was a primary factor. 

Donoghue also said that federal prosecutors considered Pantaleo’s actions in light of his training and experience and then factored in Garner’s compromised health — which included obesity and cardiovascular issues — and his resisting arrest in an encounter that spun out of control.

For Stuart London, who is defending Pantaleo in the pending NYPD administrative case, the federal prosecutor’s remarks stressed some familiar points.

“I think Donoghue was reading my summation,” London quipped Tuesday in a telephone interview.

During that closing in the administrative trial last month, London stressed to Rosemarie Maldonado, the NYPD’s deputy commissioner for trial, similar factors. These include the seven-second choke hold in the original take down of Garner and the fact that Pantaleo didn’t use a chokehold when Garner was on the ground saying he could not breathe.

Those points, said London, could be taken into consideration by NYPD Commissioner James O’Neill as mitigating factors in Maldonado's decision about Pantaleo's level of responsibility. Maldonado has given no timeline for her decision, which O’Neill will review and either agree with or change. 

“It gives O’Neill cover if he wants to find [Pantaleo] not guilty or not culpable under the circumstances,” said London, although he said the politics of the case could also drive the outcome more than the evidence.

NYPD spokesman Phil Walzak said in a statement after Donoghue’s announcement that the final decision in the Pantaleo case would be up to O’Neill.

“In order to ensure the integrity of the process, the NYPD will not comment further at this time,” said Walzak.

London said that he could appeal through a special court proceeding known as an Article 78 if O’Neill fires Pantaleo but said that the burden of proof would be difficult for him to overcome in such an appeal.

One possibility, said London, was that if O’Neill decided to fire Pantaleo he could order that the officer — who has 12 years on the force and is on modified duty — get a future prorated pension at what would have been his 20th year of service.

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