Updated April 30, 2002, 6:05 p.m. ET
Cop testifies he drank a dozen beers, but claims he was not impaired  
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Ex-NYPD Officer Joseph Gray testified Tuesday that he found the 4-year-old victim, Andy Herrera, pinned underneath his car.

NEW YORK — A former Brooklyn cop testified in his own manslaughter trial that after hitting a family with his minivan he found a gravely injured child pinned underneath the car, but did nothing to assist him.

"You've got a 4-year-old boy under your car and you're a trained police officer and you do nothing to help?" Assistant District Attorney Joseph Petrosino asked in his cross-examination Tuesday.

"No," said Joseph Gray, 41, shaking his head. "When I saw the condition, I knew there was nothing else I could do," adding that his CPR training was limited to three hours 15 years ago. At this, one juror raised his eyebrows, another scribbled on a notepad.

Andy Herrera, 4, was pinned underneath Officer Joseph Gray's minivan.

Gray, who is facing 15 years on four charges of manslaughter in what prosecutors say was an alcohol-fueled crash, took the stand as the first witness in his defense.

His lawyer might have hoped Gray's testimony would soften the "party cop" image portrayed during the prosecution's six days of witnesses.

This was not the case. Gray, who admitted to his own lawyer's question that he drank at least 12 beers before the fatal collision on Aug. 4, 2001, could not evade the gruesome reality of his role in the deaths. Add to that the seeming inability of the defense's only eyewitness to recall basic, crucial details about the crash, and the defense's case literally imploded the same day it began.

In 80 minutes on the stand, the former police officer remained steadfast in his claim that the collison was not his fault and that even though he had been drinking, he was in full control of his 1996 Ford Windstar minivan when he hit the victims — who he said dashed out in front of his car.

Maria Herrera, 23, her 16-year-old sister, Dilcia Pena, Herrera's son, Andy, and a second son who was delivered by emergency caesarian section that night all died from injuries they suffered in the Sunset Park, Brooklyn crash. The infant lived for less than a day. The tragedy received national attention and raised questions about the problems of police officers and alcohol abuse.

On direct examination, Gray also testified that he did not run a red light, as prosecutors claim, and that the victims darted in front of his car from behind construction barrels in the roadway.

"As I went through the intersection, I just saw this person come from the left side. I didn't even know if it was a man or a woman," he testified, looking down and shaking his head from side to side. "The last thing I remember is the air bag exploded in my face."

But on a rigorous cross-examination, Assistant District Attorney Joseph Petrosino asked sarcastically: "She just kind of hurdled over the barrels into the path of your car?"

"She didn't have to hurdle over the barrels, there were spaces," Gray responded during the sharp exchange.

During his time on the stand Tuesday, Gray locked his gaze on his lawyer and the prosecutor, seldom looking at the jury seated to his right. His voice only wavered once, as he described finding little Andy Herrera.

Gray's lawyer, Harold Levy, began his examination by detailing his client's personal life and moving through the officer's career in the department, which began in January 1986 and ended in August 2001, when Gray resigned following the collision. Gray, who has a 16-year-old stepdaughter, and two daughters, ages 11 and 6, with his wife, Denise, testified he received a number of citations in his years with the force.

Gray detailed one "collar" for which he recieved an award, in which he and a partner apprehended a murder suspect who had just attempted to kill someone else. Another arrest he was lauded for, Gray testified, was when he captured six armed gang members who were headed to Manhattan to retaliate against another gang.

Levy and Petrosino dealt with Gray's actions the night of the collision. But while Levy tried to make the focus on how his client was in control, the prosecutor emphasized Gray's excesses.

Gray testified that he and fellow officers began drinking the day of the crash by pounding Budweisers in the parking lot of their 72nd Precinct station house. Gray and a number of the others had just finished the midnight to 8 a.m. shift and were eager to celebrate the impending wedding of a colleague.

It wasn't the first time Gray drank in the parking lot with other officers, he testified. In fact, the parking lot was a frequent informal watering hole for the officers, who even used a fence on one side of the lot as a makeshift urinal. Gray admitted that on the day in question he had a "couple" of beers before heading to a local strip club that was off-limits to the officers.

Maria Pena was eight months pregnant with her second son.

There, Gray said he and Sergeant Dennis Healey, who he had driven in his minivan, met three other officers and continued pounding Budweisers. "Three, four, could have been five," Gray testified. Then, after dropping Healey at his car back at the precinct parking lot, Gray testified, he returned to the strip club and continued drinking.

"Would you admit then that you had approximately a dozen beers?" asked Levy, who was attempting to show that no matter how much his client drank he was still in control of his car. Gray answered in agreement.

"On this occasion, you felt comfortable driving?"

"Yes," Gray replied.

"Did you feel affected in any way by the alcohol you consumed?"

"No," Gray said.

Levy also asked his client whether he had any trouble operating the keypads at the ATMs he visited that day. Gray, who visited three separate ATMs, taking out a total of $400, said he had no trouble entering his four-digit PIN code.

Levy is keen to show that his client was in control of his faculties because Gray's actions are not considered "reckless" under New York Law (a requirement for the manslaughter charges) simply because his blood alcohol level was above the legal limit.

The prosecutor bristled at the suggestion that Gray was not intoxicated. He held up a Mothers Against Drunk Driving ribbon that Gray's wife had left in the family minivan. It was found at the accident scene.

"Do you think she put it in there to send you a message?" Petrosino asked, prompting a quick objection from Levy.

The prosecutor also asked Gray about Chastity Jenkins, a woman who says she spoke to the officer at the Wild Wild West strip club that evening.

"You don't remember telling her you were miserable and you hated your wife and you hated being married?" Petrosino asked. "You don't remember her having to wake you up at the bar, two or three times, because you were so intoxicated?" Gray's wife, Denise, who has attended the trial each day, smiled as the prosecutor grilled her husband on his strip-club decorum.

At the end of his direct examination, Gray's lawyer asked him if he had any final words. Gray then made an impassioned apology to the family of the victims.

Victor Herrera's wife and two young sons were killed.

"I know I will never get forgiveness from the Pena and Herrera families," Gray said. "But I hope everyone knows how sorry I feel for this terrible accident."

The apology did not ring true for Victor Herrera, Maria Herrera's widower and the father of their two dead sons.

"He's not sorry," Herrera said, speaking outside the courtroom. "Being sorry is to admit that he did wrong. He is trying to say that my wife is the one who jumped on top of his car."

Gray's claim was backed up somewhat dubiously by the defense's second witness, 73-year-old Puerto Rican taxi driver Israel Perez. In cantankerous testimony, Perez testified that he walking north along Third Avenue after visiting his daughter when the crash occurred.

As he approached the intersection of 46th Street and Third Avenue, Perez said he spotted the victims "running" across the northbound lane of traffic, cross under the overpass, and collide with Gray's car in the street.

But instead of approaching the accident scene, Perez kept on walking. "I didn't care," Perez said. "I saw it hit, and I left."

The animated Perez provided jurors with a number of laughs by cutting off the court-appointed interpreter to answer lawyers' questions in English despite Levy's repeated instructions to remain quiet.

But the diminutive witness became frustrated as prosecuting attorney Maureen McCormick, who is assisting Petrosino, attacked Perez for his malleable account of the crash.

McCormick compared statements Perez made Tuesday with those he made during two interviews with police, one three and a half weeks after the crash when he first came forward, and another taped interview conducted over the phone while he was in Puerto Rico.

When McCormick was finished with the witness, Perez had admitted he was unable to recall what the victims were wearing, whether they were women or men, children or adults, whether any of them were pregnant, and even how many of the victims there were.

"You just don't know, do you Mr. Perez," McCormick concluded, eliciting an instantaneous objection from Levy.

Levy is expected to rest on Wednesday. He may not call his final witness, an accident reconstruction specialist. The witness could dispute the prosecution's expert who calculated Gray was traveling more than 50 miles per hour at the time of the crash.

 
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