Trial for three officers and one retired officer continues

BLOOMFIELD, NJ — A civil trial pitting four current and retired Bloomfield Police Department officers against the township and former superiors for allegedly creating and sustaining a hostile work environment against them, from 2009 to 2013, entered its second week last week in Newark Superior Court. The trial is expected to take another four to six weeks.

On Thursday, Feb. 28, on the stand was retired Lt. Michael Cofone, a former member of the BPD Internal Affairs Division. Cofone has been providing testimony since the first week. He was again questioned by Kevin Barber, an attorney for the four officers who allege discrimination because they were military reservists or veterans.

The four officers are Michael McCracken, Hector Cartagena, Anthony Argento and Michael Frazzano, who is now retired. McCracken and Cartagena were subjected to Internal Affairs investigations which resulted in an Essex County Prosecutor’s Office investigation, which was dismissed, and departmental suspension in 2013 for “chronic absenteeism.” They were later exonerated from the charge. Among the defendants is retired Police Chief Christopher Goul. Cofone is not a defendant and only a witness.

In Cofone’s testimony, Barber attempted to show the jury that Internal Affairs made discriminatory demands on Cartagena regarding his departmental leaves to fulfill military obligations. Barber asked Cofone if on May 21, 2012, another member of Internal Affairs, retired Sgt. John Sierchio, had told Cartagena he had to submit military pay stubs to Internal Affairs while Cartagena replied that he did not. Sierchio is not a defendant in the trial.

“Did the BPD ever have to have that form from Cartagena?” Barber asked.
Cofone said he had no recollection. But Barber said that on the same day of Sierchio’s request, Argento had filed an Internal Affairs complaint on behalf of McCracken and Cartagena. The complaint alleged discrimination against veterans.

According to court documents, the BPD had in the past paid Cartagena and other reservists, making up the difference between military and police pay. But after Argento’s complaint, Cartagena was asked for his stubs. Court documents also said that in September 2012, McCracken, who was scheduled for an overseas tour, was asked for his military pay stubs. This had never been asked of him, according to the court papers. And although he produced these records, his pay was stopped.

Barber asked Cofone if Sierchio had any reason to collect military information from Cartagena. As he had done in previous testimony, Cofone said it depended on what action a superior office had taken.

“If Goul wanted it,” he said.
“Did he to your knowledge?” Barber asked.
“No,” Cofone said.

Barber wanted to know if any other reservist had been asked for their military pay stubs. Cofone said McCracken.
Barber then asked questions that appeared to show the jury that when Cartagena was questioned about his military leave time, Cofone was less than forthcoming.

Barber asked Cofone if he told Cartagena that the information he was providing was going to be submitted to the ECPO for a possible criminal investigation. Cofone said he had no recollection.
“You did this with McCracken a few months earlier,” Barber said.

Barber wanted to know if Cartagena was read his Miranda rights. Cofone said Cartagena was free to go whenever he wanted, that he was not being held, so there was no need for reading him his Miranda rights. Barber told Cofone that under the circumstances, he had a custodial control over Cartagena. The defense attorney, David Pack, objected and Judge Keith Lynott sustained it.

“He was free to leave?” Barber asked. “Did you tell him?”
“He was not under arrest,” Cofone said. “There was no discussion that he was not free to leave. If he wanted to leave, he could leave.”

Barber said a person does not have to be arrested to be held by the police.
“He was not being interrogated, under custody or under arrest,” Cofone said.
“You told him he was not in trouble,” Barber said. “You asked him if he knew of any other discrimination. And he said he wanted to ‘let it go.’”

Focusing on Cofone’s lack of response to Cartagena’s reticence, Barber’s questions suggested that Cartagena did not want to talk out of fear his words would be used against him.

“Did it occur to you that Cartagena wanted to let it go because McCracken had made a complaint against Chiarello and McCracken was being handled like a criminal matter?” Barber asked.

In previous testimony, it was alleged that retired Lt. Richard Chiarello spread rumors against McCracken and Cartagena. But Lynott instructed the jury that this was not established fact.

Pack objected to Barber’s question. The judge, attorneys and court reporter huddled together to iron out the matter. Cofone meanwhile sat in the witness stand, staring straight ahead, motionless. He took a sip of water and resumed this attitude. He had sat like this in the hallway during a break and in the courtroom while waiting to be called to the stand. His testimony, when compared to earlier testimony, was more combative. Lynott sustained Pack’s objection.

For the next few minutes, Barber asked Cofone questions regarding if Internal Affairs had concluded that Cartagena had “stolen” three days in 2006. Cofone said that was concluded by Internal Affair records. Barber wanted to know if Internal Affairs ever had Cartagena’s military records for the disputed time period.

“I don’t recall,” Cofone said.
The judge called for a break.