I was arrested on 7/28 based on unconfirmed allegations by 3 non-English-speaking Mexican immigrants who did not come forward independently of each other and were interviewed collectively by the A.D.A. with the aid of a Spanish interpreter.
“No less than 5 assistant DAs appeared before the judge as they smiled and he gleefully laughed while accepting my lawyer’s agreement to an ACD [adjournment in contemplation of dismissal]. At least I was able to remain silent.
“The judge had fun making jokes about paying for the would be jurors’ bus trip to court. Then he said the ACD is acceptable without any order of protection stating the case will be dismissed and sealed in 6 months.
“Humiliation. Not fighting back to defend myself. I am damaged. I am bitter.
“I will get over this day. But, I will never be able to forget.
“I was wrongfully abused for doing a great job.
“No one ever told me life was fair. Hazard of my trade.
“Thanks for all your help and advice.
“I think I'll spend a few hours feeling sorry for myself.
“I look forward to tomorrow. At least it will be a day away from the mistreatment.
What do you do when you are in court for the fifteenth time on bogus misdemeanor charges on which the prosecution has been offering an adjournment in contemplation of dismissal for months when trial is set for that afternoon, your key witness was arrested a couple of days ago and is in jail and your lawyer comes back and says that the judge said he will sentence you to the max if you don't take the deal and he decides to convict and this is the same judge who refused your request to represent yourself?
You take the deal, instead of risk wrongful conviction and incarceration during an appeal you can't afford, the State is spared a suit for wrongful arrest and malicious prosecution and the folks whose conduct would be at issue in that suit are spared embarrassment and examination.
Durham, North Carolina?
No. Staten Island, New York.
A Democrat D.A.?
No, a Republican.
My cousin (also named Michael J. Gaynor) retired from the New York City Police Department as one of the most decorated detectives in its history. He received more than 60 medals, awards and certificates for acts of honesty, integrity, bravery, lifesaving, academic achievement and community service. He was honored to serve the City of New York and The United States of America again on September 11, 2001 when he was activated by the NYPD.
His academic achievements include: Federal Bureau of Investigation School of Applied Criminal Psychology, John Jay College of Criminal Justice, Military & Police Specialized & Academy Training, Criminal Investigator, Sex Crime Investigator and Homicide Investigator Courses with the NYPD Detective Bureau.
During his career, he was named "Cop Of The Year" (72nd Precinct) and inducted in to The Police Honor Legion. A number of his cases have been profiled in books, newspapers and on television and he is a frequent guest commentator on MSNBC TV News.
Alas, former Durham County, North Carolina Michael Nifong is not the only Nifonger and, gasp, even a Michael Gaynor can be Nifonged.
That’s NOT tolerable!
My cousin went back to court on September 17th for the 15th time. The D.A. had been offering him a conditional discharge for more than a year and he had vehemently refused anything but a complete dismissal in the interest of justice.
A conditional discharge protects the City of New York from civil recourse.
My cousin wanted to bring a civil suit after his vindication, in part because news articles in the Staten Island, New York newspaper attributable to the prosecution adversely impacted his business “on this small island where most people consider the local newspaper a sort of bible.”
But my cousin, his trial attorney (who would have handled the civil suit) and I all agreed that the risk that he would be railroaded if he did not accept the conditional discharge was too great. (The Duke Three were fortunate to finally get Judge Osmond Smith instead of Judge Ronald Stephens or Judge Kenneth Titus.)
“The prosecution has no case against me and clearly knows that. My lawyer was told they wanted to teach me a lesson. You see, I destroyed yet another one of their high profile, headline cases. They charged a government official with 110 felony rapes. He took a plea to 1 in order to be released from prison after 8 months without bail.
“They realize I have good civil case against them for a variety of reasons which may well include unethical and even criminal conduct on their part in order to stop me from conducting another one of my pro bono cases for a minority.”
The North Carolina State Bar’s decision in the Nifong case included these noteworthy findings of facts regarding discipline:
“5. Nifong's misconduct resulted in significant actual harm to the legal profession. Nifong's conduct has created a perception among the public within and outside North Carolina that lawyers in general and prosecutors in particular cannot be trusted and can be expected to lie to the court and to opposing counsel. Nifong's dishonesty to the court and to his opposing counsel, fellow attorneys, harmed the profession. Attorneys have a duty to communicate honestly with the court and with each other. When attorneys do not do so, they engender distrust among fellow lawyers and from the public, thereby harming the profession as a whole.
“6. Nifong's misconduct resulted in prejudice to and significant actual harm to the justice system. Nifong has caused a perception among the public within and outside North Carolina that there is a systemic problem in the North Carolina justice system and that a criminal defendant can only get justice if he or she can afford to hire an expensive lawyer with unlimited resources to figure out what is being withheld by the prosecutor.”
The North Carolina State Bar apparently prefers the public perception that all North Carolina prosecutors except Mr. Nifong are trustworthy and Mr. Nifong’s egregious misconduct in the so-called Duke lacrosse case was an aberration instead of a symptom of a systemic problem and not evidence that the ability to “afford to hire an expensive lawyer with unlimited resources” is necessary to avoid wrongful conviction.
Unfortunately, the truth is that prosecutorial abuse is not limited to Mr. Nifong, or North Carolina, or elected district attorneys, or Democrats. It’s a problem about which everyone concerned about due process, the presumption of innocence and the rule of law needs to be concerned.
Ironically, while I was safely in New York condemning Mr. Nifong as a contemptible prosecutor abusing his power for personal and political purposes and enthusiastically supporting the members of the 2005-2006 Duke University Men’s Lacrosse Team against bogus rape charges and unmerited opprobrium, pro bono, my cousin, then a retired New York City detective and a private investigator based in Staten Island, New York, was working, pro bono, to defend a Hispanic federal employee against rape charges. (Each of us married a Hispanic female and we occasionally do pro bono work for Hispanics as well as others, without publicizing it, but when one of us is actually prosecuted for doing it, it’s time to publicly protest and set the record straight!)
Understandably, my cousin was dubious about the fantastic charges from the start, as these notes of his suggest:
Accused: 60 year old Federal employee in good standing. Additional Info: Accused never before arrested. He is a colostomy patient in poor health. Vehemently denies charges. Significant information exists that demonstrates the mathematical impossibly of the charges. Defense investigation indicates that no realistic prosecutorial investigation was even conducted to substantiate the charges.
In accordance with the adage that no good deed goes unpunished, the Staten Island District Attorney’s Office sent a message to my cousin in particular and private investigators in general that uncovering evidence harmful to the prosecution’s case is perilous: it had him arrested on bogus charges of impersonating a police officer and tampering with witnesses. He was ordered arrested by the D. A. and an Assistant D. A. BEFORE either of them asked him a single question, or tried to identify exculpatory witnesses, or spoke to his interpreter, or even asked who his interpreter was.
AND MY COUSIN NEVER PLAYED LACROSSE!
Set forth below are more pertinent information about my cousin and how he came to be Nifonged in New York.
Michael J. Gaynor: Retired New York City Police Department detective turned private investigator and frequent MSNBC TV News Commentator
As a teenager in 1968, Mr. Gaynor enlisted in the United States Navy. During his four years of service in the states and abroad he was promoted to the rank of petty officer and assigned as a military policeman. He was decorated 5 times for excellence including The National Defense Service and Good Conduct medals before being honorably discharged in 1972.
Mr. Gaynor continued government service as a Federal Protective Service police officer in New York upon separation from the Navy until his appointment as a police officer with the NYPD. During his career with the department he was promoted to the rank of detective.
After retiring from the police department in 1990 and meeting all of the strict New York State requirements, including background investigation and testing, Mr. Gaynor became a licensed private investigator. His practice includes pro bono and court appointed cases for indigent persons.
Mr. Gaynor provides free consultations to all. He discusses criminal and civil matters with potential clients in great detail before deciding whether to take on a case. He does not guarantee results and charges nominal fees to those who cannot afford to pay more. He will not accept a case unless he believes he may be able to offer a solution in the interest of justice.
During his 17 years of conducting private investigations, Mr. Gaynor has been responsible for identifying many wrongdoers and exonerating many persons falsely accused of such crimes as rape, robbery and murder.
Mr. Gaynor was recalled by the NYPD on 9/11/01 and voluntarily served at Ground Zero after the attack on the World Trade Center. He has assisted police as a technical advisor over the years and provided valuable intelligence information relative to national security.
Mr. Gaynor’s goals: promoting justice and championing underdogs. He had an unblemished record of accomplishments, until his reputation was wrongly besmirched by the Staten Island District Attorney’s Office and he is determined to establish his innocence, no merely avoid conviction of misdemeanor charges that the Staten Island District Attorney’s Office already offered to have adjourned in contemplation of dismissal (an offer he refused because it would bar him from pursuing a malicious prosecution claim).
In July of 2006 the Staten Island District Attorney’s Office saw fit to target Mr. Gaynor when he destroyed their case against Angel Nazario.
Mr. Nazario was the Chief Ranger at Gateway National Park with more than a quarter of a century of honorable service when he was charged with rape in a 110 count felony indictment.
Mr. Gaynor had attended high school with Mr. Nazario’s brother 40 years earlier. He was called upon to investigate the accusations (pro bono) for the defense. Mr. Nazario maintained his innocence and supplied Mr. Gaynor with convincing information worthy of an in-depth investigation. The information proved credible and finally caused the prosecutor to reluctantly reduce the charges from 110 felonies to one. Mr. Nazario, by then deathly ill, having exhausted all his limited resources, having been jailed for 8 months without bail, finally succumbed to the prosecutor’s offer to be released immediately if he pled to one count. (Note: Sometimes a person who is not guilty pleads guilty.)
Hours after Mr. Gaynor gathered enough evidence to demonstrate the absurdity of the bogus charges against Mr. Nazario, the Staten Island District Attorney and his assistant in charge of the Nazario case ordered Mr. Gaynor’s arrest.
The D. A.’s office apparently also furnished false information to the local newspaper, the Staten Island Advance, which then published the following front page article and follow ups.
“Private eye arrested for trying to pay off the parent of 13-year-old girl and help rape suspect”
Tuesday, August 01, 2006
By FRANK DONNELLY
The case of a former National Park Service supervisor accused of raping and pimping out a 13-year-old Port Richmond girl has taken another strange twist with the arrest of his private-eye pal for allegedly trying to bribe the teen's mother and tamper with witnesses.
Michael Gaynor, 57, was accused of attempting to pay off the girl's Mexican immigrant mother to ensure the teen wouldn't testify against his friend, Angel Nazario, the former site supervisor at Gateway National Recreation Area at Great Kills.
Gaynor, a retired NYPD detective who runs East Coast Detectives Ltd., a New Dorp investigation agency, also allegedly tried to make a witness sign a false statement, and passed himself off as a cop to another person.
At his arraignment Friday in Stapleton Criminal Court, Gaynor pleaded not guilty to a felony charge of criminal impersonation and two misdemeanor counts of witness tampering. He was released on his own recognizance and is due back in court on Sept. 25.
"This is a malicious prosecution," Gaynor said yesterday in a telephone interview. "This is a grudge by the district attorney's office. I have no doubt I will be completely exonerated."
WANT TO SILENCE HIM
Gaynor claims prosecutors want to silence him because he has uncovered evidence that could absolve Nazario. A key piece of information, he said, is the verbal statement of a male relative of the girl, who alleges she made similar false accusations against him.
A spokesman for District Attorney Daniel Donovan declined comment.
Nazario is accused of raping the girl, then 13, in his apartment in Fort Wadsworth more than 90 times over the course of nearly two years, beginning in September 2004 and ending last month.
He also allegedly arranged for at least 10 different men to have oral sex with her on separate occasions at the Victory Motor Inn, a Willowbrook motel, and the Swan Motel in Linden, N.J.
Nazario had befriended the girl's mother, a Mexican immigrant, in his old Port Richmond neighborhood while she was collecting cans for deposit money, and offered the girl a job cleaning his apartment, said prosecutors.
Nazario has vehemently denied the allegations and is slated to appear Friday in state Supreme Court, St. George, for a bail hearing. He currently is being held and suspended without pay from his post in Fort Wadsworth as a management assistant for the Staten Island unit of Gateway, a Park Service spokesman said.
Gaynor's problems with authorities started on July 25.
According to court papers and prosecutors, he cut off the car of a relative of the alleged victim's on a Graniteville street around 9 p.m. Gaynor allegedly got out, flashed a detective shield and claimed to be a police officer.
Gaynor said he retired from the NYPD in 1990 after 20 years on the job. He is licensed as a private investigator and there are no complaints on file against him or his company, a spokesman for the state Department of State said yesterday.
Gaynor denied flashing tin and said he merely gave the man a business card. He said he was trying to contact the man's brother because he had heard the girl allegedly had made false sex-abuse allegations against him.
CHANGED HIS MIND
Gaynor said he ultimately spoke on the phone to the man he was seeking and tried to meet him the next day, July 26, in Mariners Harbor. He said he had prepared a statement for the man to sign regarding the victim's alleged fabricated allegations against him. The man initially was going to sign it, but then refused, he said.
Gaynor said he never threatened the man, whom he and prosecutors declined to identify, but did tell him, through an interpreter, that he would try to have him subpoenaed.
Cops: Friend tried to bribe accuser's mom
Prosecutors claim the affidavit Gaynor prepared was false and that he threatened the man with arrest if he didn't sign it.
"He was trying to get the victim's relatives to discredit her story," said a law-enforcement source.
Later that afternoon, Gaynor met with the girl's mother in Elm Park and allegedly offered her cash to silence her and her daughter, although prosecutors could not state an amount.
Gaynor denied offering anyone hush money.
He said he inquired through a Spanish interpreter about the alleged victim and was told she was depressed and did not want Nazario to go to jail. He said he then asked why the girl had leveled the accusations against Nazario and if she had done so for money -- asking, in essence, if she was extorting him.
"When a case like this comes up, it's not unheard of for people to make claims like this to make money," he said.
Gaynor could face a maximum of one and one-third to four years in prison if ultimately convicted at trial of the felony charge.
He vows that won't happen.
"I'm telling the truth," he said.
Frank Donnelly is a news reporter for the Advance. He may be reached at email@example.com.
The Associated Press State & Local Wire
July 15, 2006 Saturday 12:22 AM GMT
”National Park Service employee charged with having sex with teen “
SECTION: STATE AND REGIONAL
LENGTH: 181 words
DATELINE: NEW YORK
A National Park Service employee allegedly lured a 13-year-old Mexican immigrant into having sex with him, then arranged for her to perform sex acts with another 10 men at a Staten Island motor lodge, prosecutors said Friday.
Angel Nazario, 60, who works at Fort Wadsworth in the Gateway National Recreation Area, was ordered held without bail following his arraignment last week on multiple counts of second-degree rape.
New York City police arrested Nazario July 5, said William J. Smith, a spokesman for the Staten Island district attorney.
A call to Nazario's attorney was not immediately returned. The park service had no immediate comment.
Nazario knew the 13-year-old's mother, who believed he had hired her daughter to clean his apartment, prosecutors said.
Instead, Nazario allegedly had sex with the girl almost every Saturday at his apartment between September 2004 and this past May. He also was accused of arranging for the victim to engage in sex acts with 10 other men, in his presence, at the motor lodge.
If convicted, Nazario faces up to seven years in prison on each rape count.
”Ex-park chief gets 1 year in teen rape
Bulk of case against Angel Nazario falls through due to unsubstantiated claims”
Saturday, February 24, 2007
By JEFF HARRELL STATEN ISLAND ADVANCE
STATEN ISLAND, N.Y. -- Rape. Pimping. Older men. A young girl.
It had all the makings of some serious prison time.
But the case of a former National Park Service supervisor and his teenage victim ended yesterday with a light jail term amid a flood of unsubstantiated allegations.
Angel Nazario, 61, was sentenced to a year behind bars after pleading guilty to second-degree rape. He had been accused of raping a 13-year-old Port Richmond girl in his apartment in Fort Wadsworth more than 90 times over the course of nearly two years -- from September 2004 through June 2006.
Prosecutors had claimed that Nazario also arranged for the girl to sexually service 10 men on several occasions at the Victory Motor Inn in Willowbrook and at the Swan Motel in Linden, N.J.
The case took a strange twist when police arrested a private detective for allegedly helping Nazario by trying to coerce a relative of the teen into signing a false statement against her.
The investigator, retired NYPD Detective Michael Gaynor of East Coast Detectives Ltd., also allegedly tried to bribe the victim's mother to prevent her and the girl from testifying.
Gaynor later was charged with criminal impersonation and witness tampering.
But law enforcement sources, speaking on condition of anonymity, said the case had "significant problems." Too much "lag in time" with the allegations only added to the difficulties for prosecutors who wanted to pursue more severe prison time for Nazario.
Although all of the allegations were investigated, sources said the bulk of the case fell through because "they were never substantiated."
William Smith, a spokesman for District Attorney Daniel Donovan, declined comment on the disposition of the case.
During a bail hearing last year, Nazario's attorney, Paul A. Lemole, vehemently proclaimed his client's innocence.
The defense attorney contended that the 13-year-old's accusations were uncorroborated, and that she had previously -- and falsely -- accused another man of abducting and raping her.
Lemole would not comment following yesterday's sentencing before Justice Leonard P. Rienzi in state Supreme Court, St. George.
In addition to the one-year jail term, an order of protection was issued to protect the teenage girl for eight years and four months.
Rienzi said he would classify Nazario's sex-offender registrant's level when he returns to court April 30.
Jeff Harrell is a news reporter for the Advance. He may be reached at firstname.lastname@example.org.
HERE IS WHAT REALLY HAPPENED
On July 15th, 2006 I spoke via telephone to Mr. Fernando Nazario, brother of Angel Nazario. He is a New Jersey resident and long time acquaintance of mine. I have known members of the Nazario family approximately 40 years. We met in high school and meet to this day periodically (approximately once every year or two without regularity). I consider Fernando Nazario a friend. Angel and I have no particular relationship beyond him being the big brother of my friend and, as such, my friend. I had seen him over the years at various events such as a wedding or funeral, perhaps 5 to 10 times. I believed him to be the Chief Ranger at Gateway National Park Service and a highly respected member of the community. Fernando asked me to investigate the allegations against his brother. I agreed to look into the matter. I told him that I would not promise anything other than to speak with Angel and his attorney. The extent of my involvement in the case would depend on my interview with Angel and his attorney and their willigness to accept me as the investigator.
On the same day I received a telephone call from Cheryl Nazario, Angel‘s former wife. I had seen her on several occasions over the years. She also asked that I look into this case. I reiterated my understanding with Fernando. Cheryl explained that she had the most recent contact with Angel via telephone from Rikers Island. She was unaware of who was representing Angel other than a published newspaper report naming a Paul L. Batiste. Mr. Batiste could not be found. Cheryl said that Angel asked her to have a lawyer present for his July 19th court appearance. She also asked that I be present. I agreed. In a subsequent conversation she informed me that Paul Lemole, Esq. would represent Angel.
On July 19th at approximately 2PM I met with Attorney Lemole in the courthouse. I identified myself to Mr. Lemole and handed him a business card. I reminded Mr. Lemole that I had investigated a rape case for him years earlier. I told Mr. Lemole that I would investigate this case Pro Bono. He accepted my offer. I told him I would first speak to Angel Nazario and then contact him to discuss further strategy before the next court date of 7/31.
The same day, upon exiting the courthouse, I was confronted by the media. Basically, I identified myself as a friend and private investigator. I said that we would mount a good campaign on Angel Nazario’s behalf because he is a good man with long standing roots in the community and there were already reasons to believe the allegations were not true.
On July 21st I applied for and received a legal pass from the New York City Department of Correction to visit Angel Nazario on Rikers Island. After several hours on Rikers Island that day, I was told that he was in the clinic and unavailable for a visit. I returned the next day (7/22) at 8AM. I interviewed Angel Nazario. He denied the charges against him. He gave me considerable information that would aid in his defense. I emphatically informed him that his honesty with me would dictate my involvement in the case. I advised him to speak only with his attorney about the case. I told him that I make no promises other than to do my best to have the truth prevail.
On July 23rd and 24th I met with Cheryl Nazario and Judith Smith, former wife and former girlfriend respectively. Both women remain friends and supporters of Angel Nazario. I spoke to and met with them several times, both separately and together. Each had considerable information valuable to a defense investigation. Each knew the accuser and her family for many years.
On July 25th at about 8:45AM I emailed a report to Attorney Paul Lemole outlining my strategy based on the information I had received from Angel, Cheryl and Judith. This strategy included locating a person identified as Fernando Alfaro, brother in-law of the accuser. My information was that Angel’s accuser also had accused him of raping her in his van. My information was that although the incident was not reported to the police, it created a problem in the family and with Angel Nazario (who reportyedly had threatened Fernando if he abused the girl ever again). I was also told that the accuser discussed similar incidents in her school with her teachers.
I planned to visit the mother of the accuser and, in her presence and with her permission, speak with the accuser herself. I expected to eventually locate several other persons of great value to the defense based on my information. I told attorney Lemole that I would have a Spanish speaking notary with me in the event I could get an affidavit.
On July 25th I also revisited LaRocca’s Pizza Place at 489 Midland Avenue. I first spoke briefly with Mr. LaRocca on 7/24. I gave him my business card. I told him I was working for the defense in the Angel Nazario case. I asked for information to help me locate Fernando (the brother-in-law), his former employee. He supplied me with the name and approximate location of a restaurant wherehe believed Fernando to be working then.
In the early afternoon of July 25th, I asked Judith Smith to meet me at the restaurant. She believed she could identify Fernando. We ate lunch and looked at many employees. She did not see Fernando. When I saw a young man of similar description, I approached him and called him Fernando. The young man looked at me and in broken English said, “No, my brother.” I asked, in broken Spanish, if his brother also worked there. He seemed to indicate that he did. Before leaving the Better Food Corp at 4085 Victory Boulevard, I asked another employee what time they closed. I returned at 8PM in an effort to identify and speak with Fernando. Only the man that told me he was his brother came close to Fernando’s description at closing. Therefore I followed the young man when he drove away. The man took the highway to Port Richmond. When he got off the highway and stopped his vehicle, I pulled up next to him. He seemed to recognize me when I told him I needed to speak with him. I pulled over to the curb, got out of my car and walked over to him. I gave him my business card and asked him to sit with me in my air conditioned car. He complied freely. Realizing that there was a serious language barrier, I telephoned my Spanish speaking notary and asked that he interpret my message. My message to the young man who identified himself as Augustine Moran was that I needed to speak with Fernando. I wanted him to know that I was not there to make trouble for him or his brother and that is why I wanted to speak to him outside his place of employment. I wanted him to know that I was working for Angel Nazario‘s defense. I wanted to ask Fernando if the accuser made similar and false allegations against Fernando.
Augustine put my card in his wallet, drew a map of where Fernando lived and informed my interpreter that Fernando worked at Gino’s Pizza Place on Forest Avenue. I thanked him, we shook hands and both went our separate ways. I immediately drove to Gino’s at the Pathmark Shopping Center on Forest Avenue. I approached another similar looking man and asked if he was Fernando. He said no, Fernando is the guy with all the tattoos. I asked when Fernando would be working next. He said Friday.
I followed the map drawn by Augustine to scout out the area for the next day. I went home and at 11:17 PM I received a telephone call from Fernando. He was calling from a second Gino’s located at 2040 Forest Avenue. I identified myself and my purpose to Fernando. His English was considerably better. He informed me that he understood me. I asked if the accuser in the Angel Nazario case (his wife Rosa’s sister) ever accused him of rape. He denied it. I told him I heard that he was accused and that the mother and his wife refused to believe the girl. He reluctantly admitted that it was true. He denied ever raping the girl and said there was a problem but his wife and mother in-law did not believe her. He said she was a liar and that she lied about other men. He said that Angel threatened to kill him. I asked if I could meet with him and he agreed. He freely gave me his cell phone number and asked that I see him the next day, 7/26 at his job. I agreed.
In the afternoon of July 26th I visited Gino’s Café, 2040 Forest Avenue. I met Fernando and subsequently his boss (later identified as Phil). Fernando, my Spanish interpreter/notary, and I sat down to talk privately at a table in the dining area. I gave Fernando my business card and reminded him that I was working for the defense of Angel Nazario. I told him I typed out a statement that reflected the conversation we had on the phone the night before. I read it to him in English, my interpreter translated in Spanish and I gave it to Fernando to read. Upon completion he said I had the wrong number for his address and asked that I correct 29 to 27 Mitchell Lane. I did. Fernando expressed fear and wanted to make sure I understood that he did not rape the girl. He also asked that his boss (Phil) read the statement. I welcomed Phil to the table. I gave Phil my card. I told him I was working for the defense of Angel Nazario pro bono. I explained why I was present. I wanted to prove that the accuser made similar allegations of rape against Fernando and others. And, if these allegations were made before and were considered to be untrue, it would obviously aid in the Nazario defense. Phil advised Fernando to speak with an attorney. I agreed wholeheartedly. I told him of the urgency of such a statement for a bail hearing and that Fernando likely did not have an attorney. Phil offered to provide his own. I thanked him and he asked that I come back in a half hour after he made the phone call to his attorney. I agreed. I returned about an hour later. I was advised that the attorney did not respond. I was asked to visit Fernando the following day on his day off. I agreed.
Before I left I tried once again to remind Phil that the statement (of which I left a copy) did not incriminate Fernando in any way. I reminded him of the import of a possibly innocent man going to prison for the rest of his life. I reminded him that Fernando only wanted him to assure him that the statement said what I and my interpreter claimed it said. I asked Phil for his surname in the event I needed to return with a subpoena for him as well as Fernando. He refused to supply me with the name and I assured him that his last name would not be necessary.
Phil asked why I would have him subpoenaed. I informed him that he was present when Fernando spoke of the false allegations against himself and threats from Angel Nazario. Then Phil said, “I don’t know nothing, why would you call me?” Another man (employee or friend, a male, white in his 40s, approximately 5’10” 230 pounds with a crew cut who looked like a Marine) seated with Phil, shouted, Fernando put you right in the middle of this by asking you to sit in.” I agreed, shook hands, waited for his response (which was negative) and left.
On the same day (7/26 while waiting for Phil’s lawyer’s advice for Fernando) along with my interpreter, I visited the residence of Laoura Pavia, mother of the accuser. I was greeted by another daughter and her husband. I identified myself as a private investigator by way of my interpreter.
I was directed to 62 Morningstar Road. I met Laoura Pavia in front of that location. I had my interpreter ask her if she would like to sit in my air conditioned car. She requested that we speak in the street. We approached her. I handed her a business card. I shook her hand and asked my interpreter to tell her that I was a private investigator working for the defense of Angel Nazario.
I sat on the steps of 62 Morningstar Road with her on my right and the railing between us. My interpreter stood face to face with her. I directed all of my questions through my interpreter. My interpreter was instructed (in advance of all interviews) to repeat my questions as accurately as possible and in turn to translate responses the same way. I asked that he let the potential (defense) witnesses do most of the talking. I wanted to observe body language, tone of voice, quickness of response, consistency and interest in the case.
I believe my interpreter followed my instructions well. Laoura greeted us, spoke freely and gave us her blessings when we left. My first question was, “How is your daughter?”
Paraphrasing, she said that her daughter was very depressed. She said the girl cried every day. The daughter was in search of a counselor to help her deal with the situation. I asked her how she was, and she replied, “Well.” I asked her if there was ever a similar problem before. She said no. I asked if she knew Angel Nazario. She said she did and the conversation went on to her many years of friendship with Angel and his wife, how much they have both helped her and her children and why that is what makes this difficult for her to believe. He was a friend. I asked if any of her other daughters ever worked for Angel. She said yes. I asked if there was a problem or any thought that he bothered her other young daughters. She said no, never. I told her I heard that there was a problem in the family over her daughter claiming Fernando (brother in-law) raped her in his van. She hesitated, looked at me, and said no. I asked how her daughter was doing in school. She said good. I asked if she got left back and was supposed to go to summer school. Again, she hesitated, looked at me, and said, well yes, but she couldn’t go to summer school. I asked if her daughter ever lied to her. She immediately said, no. I asked if she believed her daughter about Angel. She said, she may not always tell the truth, like many teenagers about little things, but I trust her. I asked if her daughter wanted Angel to go to prison. She said no. I asked if she wanted Angel to go to prison. She said, I don’t know, maybe yes. I asked why she had him arrested, did she want him to go to prison or was she looking for money. She hesitated in her reply, said that the prison part was up to her attorney (prosecutor) and that she would think about money later. She smiled ever so slightly when she spoke of money. I asked where her daughter was now. She said she was in the back yard.
I asked if I could speak with her daughter. She said she would rather I did not. I thanked her, shook her hand and said goodbye. She gave me her blessings and said goodbye. We left.
On July 27th along with my interpreter, I visited 540 Jersey Street and spoke with Mr. Pifas Villegas. I visited his home on 7/26 and left my business card on his door. This visit was in response to my message that he call. He informed me that he was the cousin of both the accuser’s mother and father.left.
He said he had high regard for Angel Nazario and not much regard for that part of his family. He said he spoke with Angel many times and that the Pavia’s are not to be trusted. Mr. Villegas agreed to see me again and sign an affidavit. He requested that I come back when his daughter was present to read the statement to him. I agreed. Mr. Villegas told me (through my interpreter) that he had discussed with Angel Nazario allegations that Adriana was raped before by Fernando (her brother in-law).
Later on the 27th at approximately 4 PM I received a call from a man who identified himself as a Civilian Investigator, Detective (Staten Island District Attorney’s Office) Robert Keating. He asked to speak with me about the Nazario case. I told him I was a licensed P. I. working for the defense and asked what he wanted to speak about. He said that I was running an unethical investigation. I assured him that I was conducting a legal, lawful and ethical investigation and that I was licensed and privileged to do so. He told me that it was unethical to be involved in this case since (according to the newspaper) I was a friend of Nazario. I disagreed. Detective Investigator Keating insisted he must see me. I asked what the purpose of this meeting was since I was quite busy on the Nazario case.
He said he was going to arrest me for tampering with a witness. I directed all further questions to attorney Lemole and told Keating I would present myself at 9 AM on the 28th (the following day). He agreed.
I called Paul Lemole, Esq. and twenty minutes later I was in Mr. Lemole’s office discussing this matter. He had already been in contact with the DAs Office and been informed of the same. I was to be arrested on the orders of the Assistant DA in the Nazario case. Mr. Lemole contacted Detective Investigator Keating and confirmed the arrest and my 9 AM surrender the following day.
On July 28th at 8:45 AM I went to the 6th floor of 130 Stuyvesant Place, the Staten Island District Attorney’s Office. Detective Investigator Keating was not in. I waited with my son (a New York City politice detective currently based in Brooklyn) at the elevator bank. At about 9:10 AM Chief Detective Investigator (Staten Island District Attorney’s Office) Thomas DeFelice, Keating’s boss, entered. He recognized me immediately, having worked with me in the 70 Precinct when both of us were with the NYPD. He informed me that Keating would be in soon.
He invited me into a conference room assuring me that I would have an opportunity to address the charge. I was not yet aware of the specifics of any witness tampering charge. He told me that he himself could not believe this, leading me to believe that I might not be arrested when they finally heard my account of the events in question. At about 9:15 AM, Keating, DeFelice, my son and I were seated in a conference room on the 6th floor. The room was fitted with video cameras. Both Chief DeFelice and Detective Keating expressed their personal dislike for this assignment. I implored them both to consider the disruption and devastation an arrest would mean to me regardless of the outcome. I asked that they speak with witnesses who can verify my account of each situation. I reiterated the above information relative to Laoura Pavia, her son-in-law, Fernando, and his brother Augustine.
I discussed this case with them for more than 2 hours. They said they were ordered to make the arrest by the DA. I asked to speak with DA Donavan. They said no. I asked how I was identified in this case. Detective Keating said I was not identified. I asked then how he determined I was the man he was looking for. He walked away. I told him no less than 10 times I was with a Spanish speaking interpreter. He never once asked his name. I asked how he could make an arrest like this without a complete investigation. I mentioned other persons who were present during the interviews that could also verify my account. Keating refused to investigate anything further that would prove my innocence. He said he had no choice repeating that he was ordered to make this arrest. I told him that he should conduct a complete investigation before making an arrest like this. Everything I said was in vain. Although he questioned me as a suspect in a crime, he never reminded me of my Miranda rights. He only told me of one of the three charges against me.
During the booking process, Detective Keating approached me while I was alone. He leaned over me and said, “I will deny this but, do me one favor, forget that the interview took place. I’ll just say you denied everything.” I told him, “Like hell, I remember every part of it.” I repeated this later (while waiting to be arraigned) to NYPD Sergeant Kim Murray when Keating walked into the room. I quoted him verbatim and added that it was unbelievable that he called me a liar and then asked me to lie for him.
I was released immediately at arraignment and my investigation continues. Now, I must defend myself as well.
I learned that the A.D.A. was interviewing some of the same people I was interviewing. She too used a Spanish speaking interpreter. One family (known to me and mentioned above) father, mother, a 12-year old daughter and two younger children said the following: (Paraphrasing) The A.D.A. and a plainclothes (Spanish speaking) man barged onto their home. They did not call in advance. They did not ring the door bell. They did not knock on the door. They barged in, frightening mother and children. The father was at work and incensed when learning of this and that after entering, they told mother and 12-year old daughter that Angel Nazario confessed to raping children although he did not.
The A.D.A. separated mother and daughter (against their wishes) and questioned the 12-year old privately. She told her that she did not have to tell her mother of the conversation. The 12-year old clearly stated that Angel Nazario never conducted himself in any inappropriate manner.
The family’s account of that encounter was subsequently video tape-recorded by a Spanish speaking, retired law enforcement officer. I met this man for the second time on the time and date of recording. After I provided him with background information, we reached an understanding that he would be prepared to testify in court and he agreed to conduct the interviews.
I have also interviewed (on tape) two persons from each hotel named in the allegation against Angel Nazario. All four stated that they could not identify Angel or the girl who claimed he brought her there for other men (10 times). All four told me there are no video tapes now or in the past. The hotel simply monitors events as they occur via surveillance cameras and never record. None of them were interviewed by the A.D.A., her investigators or the police. None had information helpful to the prosecutor.
On 8/5/06 the ADA objected to any consideration of bail for Angel Nazario. She repeated in court that, “she believed, she thought, she suspected, she surmised” that Angel Nazario is a classic pedophile and that she believed (without any evidence) that the girl mentioned above, was to be his next victim. No bail. Both Angel Nazario and I have the same return to court dates in 2 different courthouses. Both cases continue.
I am a licensed New York State private investigator (16 years) who was exercising my constitutional rights while representing Angel Nazario.
I identified myself with a business card given to EVERY person interviewed.
I spoke through a Spanish interpreter (always).
I conducted 3 separate interviews, one on 7/25, two on 7/26.
I was notified of the decision to arrest me on 7/27. There had not been sufficient time to conduct a proper investigation when the decision was made.
I was arrested on 7/28 based on unconfirmed allegations by 3 non-English-speaking Mexican immigrants who did not come forward independently of each other and were interviewed collectively by the A.D.A. with the aid of a Spanish interpreter.
I subsequently was identified by photo array, by 2 of the 3 complainants, on 7/28 after arrest/booking process, as the result of my asking how I was identified.
I underwent custodial interrogation for approximately 2 ½ hours in a video equipped room.
Present during my interrogation: Michael Gaynor, Sr. & Jr., Chief Detective Investigator Thomas DeFelice, Detective Investigator Robert Keating.
I received no Miranda warning.
There was no investigation of an exculpatory nature. I was never asked the name of my interpreter or other potential witnesses.
I was repeatedly told that my arrest was ordered by the D.A.
I was refused an opportunity to address the D.A.
Mr. Keating told me that he would deny asking me to forget the 2 ½ hour interrogation and that he would just say I denied everything.
None of the “witnesses” with whom I allegedly tampered were witnesses in the rape case or on any witness list.
A Message From Daniel M. Donovan, Jr.,
Richmond County District Attorney:
"Thank you for visiting our website and learning about our office. As your District Attorney, it is my responsibility to ensure the safety and security of the residents of Staten Island.
"This office is committed to making a difference in the lives of Staten Islanders by investigating crime, fairly and aggressively prosecute those who violate the law, and providing services to those impacted by crime."
IS IT FAIR?
To charge a man with a crime, when the allegation has everything to do with what he may have said, by way of a Spanish-speaking interpreter, without even asking who the interpreter is?
To charge a man with a crime without speaking to his defense witnesses?
Mr. Donavan’s office is not living up to his commitment. A complete and proper investigation was not done in my case. In fact, it was purposely and obviously avoided.
As a New York State licensed private investigator working for the defense, I am certainly authorized to interview any person willing to speak with me as part of an investigation.
During the course of this particular investigation, I conducted three crucial interviews with the aid of a Spanish-speaking interpreter. Only one of these persons were conversational in English. The interpreter spoke to all three. I was totally unable to communicate with two of the three.
I gave each of these persons a business card and identified myself as a private investigator working pro bono for the defense of Angel Nazario.
I encouraged one to seek advice from an attorney with respect to an affidavit I requested he sign. The affidavit reflected a conversation we had the night before on the telephone.
This interview took place in front of several other persons. This person had called me after getting my P. I. business card from his brother.
I never threatened an arrest. I simply said I would return with subpoenas if necessary.
I did not stop a car or ever identify myself with a badge during my investigation. I simply pulled up next to a car when the driver stopped and asked to speak with him. I did not use flashing lights or a siren. I did not follow routine police procedures for a car stop. I was not in uniform. I gave the driver my business card.
The District Attorney’s Investigators informed me and my attorney of my impending arrest on July 27th. I surrendered myself (in the presence of my son) at 8:45 AM on July 28th. I was identified by photo after arraignment by two of the three complaining witnesses against me.
I was not searched for a weapon or a tape recorder.
I was repeatedly told my arrest was ordered by Dan Donavan and Wanda DeOliveira yet denied an opportunity to speak with them.
PROBABLE CAUSE: a reasonable belief that a person has committed a crime.
The test the New York Court of Appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the arrester's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime.
THE FIRST THING (DA) CHIEF DETECTIVE INVESTIGATOR THOMAS DEFELICE SAID TO ME WAS. “I CAN’T BELIEVE IT’S YOU.”
1. Having good sense in dealing with practical matters
2. Carefully considering consequences: using good judgment to consider consequences and to act accordingly
An examination or inquiry into something, especially a detailed one that is undertaken officially.
Telephone records reflect (1) a 20-minute call from me to my interpreter at the time I spoke (VIA INTERPRETER) with Augustine Moran; (2)
Fernando Moran’s call from Gino’s to me; and (3) calls from Investigator Keating to me, me to Attorney Lemole and in turn from Attorney Lemole to Mr. Keating.
I have been publicly critical of police and prosecutor in a 17-year old homicide case that I have been working on for many years for the defense.
I believe D. A. Dan Donavan has personal knowledge of this case and others that I successfully investigated for the defense in Manhattan while he was assigned there as an assistant DA. I also believe that A.D.A. Wanda DeOliveira is aware of homicide cases I investigated in Brooklyn while she was assigned there as an assistant DA where my efforts exonerated innocent persons falsely accused in homicide cases.
After my arrest and release, I was endeavoring to find legal representation when Mr. Lemole stopped me and graciously volunteered to represent me (himself) pro bono.
In fact, he seemed to be somewhat disturbed that I was even looking elsewhere. I apologized and told him I did not expect him to work for free as I often do.
I made it crystal clear to Mr. Lemole that I would accept no less of a disposition on my case than a complete dismissal of the charges in the interest of justice and that, if necessary, I wanted a jury trial to prove my complete innocence.
From July 28, 2006 through July 11, 2007 I appeared in court 12 times. My next court date is July 25.
At the end of each session the Assistant D.A. was asked by the judge if there was a plea offer. On each occasion an offer was made. Disorderly Conduct with 5 days community service was the first insult. Within a few of appearances the 5 days community service was dropped and I was offered Discon. I adamantly refused. During the last few appearances (or so) the offer was reduced to an ACD (Conditional Discharge). Even when Judge Sciarrino practically urged me to take an ACD on June 25 (without a lawyer present to protect my rights) I absolutely refused.
The details are available in the Richmond County, New York Criminal Court under Docket 2006RI006278.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.