OFFICER TESTIFIES HE USED BATON TO SUBDUE, NOT ABUSE

Sitting forward in his chair, his face untroubled as he gave
matter-of-fact answers, Officer Richard Kern spoke publicly for the
first time on Thursday about his 2008 confrontation with Michael Mineo
in a Brooklyn subway station. He testified that he had placed his
expandable baton on Mr. Mineo's legs to help subdue him, but had never
put it between Mr. Mineo's buttocks, as prosecutors have charged.

"I was holding his legs down on the ground so he couldn't kick
nobody," Officer Kern said in State Supreme Court in Brooklyn. Asked
by his own lawyer whether he "at any time" stuck the baton "in Mr.
Mineo's rear end," Officer Kern replied without hesitation, "No, I did
not."

Testifying in his own defense in the trial's third week, Officer Kern
held his poise through nearly two hours on the witness stand,
struggling only during cross-examination when a prosecutor asked why
he had offered to call an ambulance if, as he had said, Mr. Mineo was
not injured. "Pretty much to cover myself, so I wouldn't get in
trouble," Officer Kern said.

As the central figure in a case with a muddy narrative and conflicting
medical evidence, Officer Kern provided a critical counterpoint to Mr.
Mineo's own dramatic testimony laying out the allegations early in the
trial. Mr. Mineo, a 26-year-old body piercer, had not been seen in the
courtroom since he had been on the stand, but entered as Officer Kern
was testifying. He sat between the two lawyers representing him in a
multimillion-dollar lawsuit against the city, shaking his head at
times and muttering to himself at others.

The much-anticipated testimony of Officer Kern and his partner,
Officer Andrew Morales, concluded the defense's case.

Officer Kern, 26, faces two counts of aggravated sexual abuse that
could bring up to 25 years in prison; Mr. Morales and a third officer,
Alex Cruz, are charged with hindering prosecution by covering up the
abuse, though the judge, Alan D. Marrus, pointed out on Thursday that
those charges would only be relevant if Mr. Kern is convicted.

Closing arguments in the case are scheduled to be heard on
Tuesday.

Prosecutors contend that Officer Cruz saw Officer Kern sodomize Mr.
Mineo with the baton in the Prospect Park subway station, and that
Officer Cruz taunted Mr. Mineo afterward and then did not call for an
ambulance.

Officer Morales, they said, helped Officer Kern as he tried to hush up
the abuse by letting Mr. Mineo go with a summons, rather than
arresting him.

Officer Morales, 28, who did not enter the subway station on that day,
took the stand after Officer Kern, who had been his partner at
Brooklyn's 71st Precinct for about six months before the confrontation
with Mr. Mineo. He talked about his Catholic upbringing on Staten
Island, as the son and brother of detectives, and he testified about
what he saw of the episode, mostly from the margins.

When Mr. Mineo, who had been smoking marijuana on Flatbush Avenue,
fled from officers into the subway station, Officer Morales testified,
he stayed behind with a friend of Mr. Mineo's, who told him that Mr.
Mineo was out on bail and trying to avoid jail.

When the other officers emerged from the station and placed Mr. Mineo
in a police car, Officer Morales said, he stood 10 or 15 feet away.
"He was moving around a whole lot," Officer Morales testified. "The
car was rocking back and forth."

Later, Officers Morales and Kern took Mr. Mineo to their own unmarked
car, Officer Morales said. As Officer Kern wrote out a summons,
Officer Morales checked for outstanding warrants on a laptop computer.
Two results came back, he said: a sex offense for someone else who
shared a birthday with Mr. Mineo, and a notice of "transit
recidivism," which he said he did not fully understand.

"Based on the messages I received back, none of them told me there was
an open warrant," Officer Morales said.

Charles Guria, the lead prosecutor, showed him a printout of what he
said should have appeared on Officer Morales's computer that day.
Officer Morales acknowledged that there was an open warrant, but said,
"It didn't appear on that screen that day."

Little of what Officer Morales said contradicted the testimony given
by Officer Kern, a thin 26-year-old who said he was married, owned his
own home and had three children.

Wearing a gray suit, Officer Kern took the stand at about 10:45 a.m.
His lawyer, John D. Patten, asked Officer Kern to demonstrate how the
expandable baton worked. Expertly, with a flip of his hand, he snapped
the telescoping segments out, and then slammed the rod onto the floor,
to show how it retracted.

He had taken the baton out of its holster that day as he ran into the
subway station, he testified. "I didn't know what I was getting into,"
he said. "It was just for my safety."

He said that he kept the baton closed and held it in his right hand.
When he saw two other officers subdue Mr. Mineo -- who was "flailing,"
he said -- he knelt down to help them, using the baton, also called an
asp, to hold down Mr. Mineo's legs.

Someone yelled "cuffs, cuffs, cuffs," Officer Kern recalled. "I
reached to my belt, put away my asp, and pulled out my cuffs," he
said. As Mr. Mineo was led from the station, "he started yelling out
accusatory stuff," Officer Kern said. "He was acting kind of crazy at
this point. I thought he was emotionally disturbed."

He said he heard Mr. Mineo ranting about having been "Tasered" and
that a walkie-talkie had been shoved into his buttocks, but dismissed
it as "mainly an act."

Officer Kern testified that when he told Mr. Mineo that he might be
let go with a summons, "he did a complete 180," and stopped yelling.
"He was happy, I guess you would say."

During cross examination, Officer Kern said that he saw something
"brown" on the tip of one of Mr. Mineo's fingers at one point, but
assumed it was feces or a burn, and not blood, as Mr. Mineo testified.

Mr. Guria asked, "He didn't say he was injured?"

Officer Kern replied, "It was never said."

Even so, Officer Kern said, he offered to call an ambulance. (Mr.
Mineo testified earlier that Officer Kern warned him not to go to a
police station or hospital.)

"Do you offer every prisoner an ambulance?" Mr. Guria
asked.

"If I think he might need one," Officer Kern replied.