Family in blue abandons cop

May 27, 1997

Last fall, scores of cops showed up in the Bronx courtroom where ex-Police Officer Francis X. Livoti was on trial for the murder of Anthony Baez.

The president of the Patrolmen's Benevolent Association, Lou Matarazzo, spent a couple of days as a spectator. His predecessor, Phil Caruso, came out of retirement, greeting Livoti outside the courtroom by hugging and kissing him on the cheek.

For the past week, Police Officer Paolo Colecchia has been on trial for fatally shooting Nathaniel Levi Gaines in the back on a subway platform. The courtroom is just down the hall from Livoti's. But not one cop has turned up to offer support.

Neither Matarazzo nor his spokesman, Joe Mancini, would talk about the reasons for that last week. Neither would the PBA's transit coordinator, Mubarak Abdul-Jabbar, nor Colecchia's transit delegate, Fred Campion.

"We discussed it," says a transit cop in the same Bronx command as Colecchia, his voice trailing off.

Besides his parents, the only person from the so-called police family to appear in court for Colecchia has been the mother of former Police Officer Anthony Venditti, slain in 1986, allegedly by an organized crime figure who, despite three trials, was never convicted of his murder.

"I read in the newspaper that no one came here for them," said Venditti's mother, Anna, of Colecchio's parents. "It's an outrage. We treat our animals better."

According to the trial's testimony, Colecchia was on a Bronx D train at 10:30 p.m. July 4 when an off-duty cop told him Gaines - a Persian Gulf Navy veteran with no criminal record - was stalking a woman on the train. Colecchia stopped the train and frisked Gaines, finding no weapon.

The off-duty cop then persuaded Colecchia to separate Gaines and the woman, so Colecchia stopped the train again. He planned to detain the woman while the train continued on with Gaines. But the conductor persuaded Colecchia to detain Gaines, saying that if he remained on the train, he might wait for the woman at the next stop. So Colecchia - 5-foot-9, 160 pounds - pulled Gaines - 6-foot-1, 210 pounds - off the train.

What happened next is unclear. The sole witness to the shooting says he saw Gaines and Colecchia "wrestling," holding each other and pushing back and forth near the platform wall. In fact, Colecchia made two frantic calls on his police radio for assistance.

He then fired two shots at Gaines at close - perhaps even point-blank - range, striking the edges of Gaines' clothing. He fired a third and fatal shot that struck Gaines in the back at least two feet away as he fled.

Now here's the tricky part. According to New York State statute, a civilian can use deadly physical force against another only if the first civilian has used deadly physical force himself. But the state's penal law is more lenient toward police officers. According to Section 35.30, an officer can use deadly force on a fleeing felon, even if no deadly force has been used against him, if he reasonably believes that a person has committed "a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person . . ."

Was Gaines' "wrestling" with Colecchia a felony? Again, a different standard applies to civilians and police officers. According to a judge familiar with deadly force cases involving police officers, if during a fight a civilian inflicts a not-serious injury on another civilian, this is merely a violation or misdemeanor. But if a civilian inflicts or attempts to inflict the same injury on a police officer, it is a felony.

New York's statutes are also less stringent on police officers than the NYPD's own rules. Although Livoti was acquitted by a Bronx judge of killing Baez, the police department ruled he had used a department-banned chokehold that led to Baez' death. It dismissed him.

Even if Colecchia is acquitted by Judge Ira Globerman, a prim and very bright acting Bronx State Supreme Court judge who is hearing the case instead of a jury, Colecchia's days in the NYPD appear numbered. Unlike Section 35.30, department rules forbid an officer to shoot a fleeing unarmed felon unless the officer's life or that of another person is endangered.

Colecchia's attorney, Marvyn Kornberg, says he is "personally shocked" that no police officer has shown support for Colecchia at the trial. "They may think that this case doesn't apply to them, but if the judge should rule that Section 35.30 doesn't apply any longer to the police department, then its 38,000 cops will think twice before they draw their weapons and you may be going to more than one cop funeral."