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A15Ø Ø N
WEDNESDAY, APRIL 4, 2012
The day began as a first step into the
marvelous: a 25-year-old woman, who
had moved to New York to become a
teacher, was leaving home early on an
August morning to get her classroom
ready for the second-grad-
ers she would be teaching
when school started. She
had been hired just that
week, after a long hunt for a
job. And her principal, it
turned out, lived nearby in
the same quiet neighborhood of Upper
Manhattan, and had offered the new
teacher a ride to work. A few minutes
after 6 a.m., the rookie was waiting.
“I’m downstairs,” she texted.
“On my way,” the principal respond-
ed.
When the principal came out, there
was no sign of the young teacher.
“That was how the case started for
us,” said a member of the jury that tried
a man named Michael Pena for what he
did to the young teacher when she van-
ished from outside her boss’s home.
There is no mystery and little dispute
about what happened: Mr. Pena, an off-
duty police officer, approached and
asked for directions to the subway, then
displayed a gun and led her across the
street. In a courtyard, he attacked her
sexually.
Spotted by two witnesses, then
caught at the scene by two police offi-
cers, and finally implicated by a victim
who had strong credibility, Mr. Pena
was convicted last week of three counts
of predatory sexual assault, a felony
that carries a minimum sentence of 10
years. These convictions related to
three separate acts of oral and anal con-
tact with Mr. Pena’s penis.
The jury was not able to reach a ver-
dict on one of the accusations of preda-
tory sexual assault: rape, which New
York law defines as any forcible “pene-
tration, however slight” of the vagina by
a penis. Mr. Pena was not cleared of that
count. In fact, the jury was split nine to
three in favor of conviction, according to
the man who served on it.
That indecision will do little to lighten
Mr. Pena’s load: depending on how the
judge views the convictions, Mr. Pena’s
sentences could run consecutively,
meaning he would face a minimum sen-
tence of 30 years, 10 years on each
count.
Arithmetic has little to do with the
heart. When the failure to reach a ver-
dict on the rape charge was announced,
the teacher wept.
“I think she came away from this
thinking, ‘How could people not believe
me?’” the juror said. “I wish she could
know that there were people in the jury
room who absolutely believed her,
about the whole story.”
The teacher had testified that during
the assault, she knew that Mr. Pena had
penetrated her, because “it hurt.” Other
evidence came from a woman who lives
over the courtyard and called 911 sev-
eral times, first reporting what seemed
to be “joyless sex,” then later, with in-
creasing alarm, that she had spotted
Mr. Pena’s gun. Another neighbor said
he saw the man pushing into the woman
but did not realize it was an attack.
The physical evidence, which the law
does not require for proof of rape, was
ambiguous on the question of penetra-
tion. No sperm from Mr. Pena was re-
covered from inside the teacher, but his
ejaculate was found on part of her un-
derwear; her epithelial cells were found
on his penis. Such cells line the vagina,
the mouth and the skin, so their pres-
ence does not necessarily establish pen-
etration.
T
HE nine jurors who favored con-
viction on rape did not regard the
physical evidence as a necessity,
the juror said: “My argument, and the
argument of others was, ‘We’ve got
clear, detailed testimony from a witness
we believe, that we find credible, with
no testimony disputing it — what is
keeping you from voting guilty?’”
He said that one holdout, a woman,
had doubts about the victim’s memory
for several reasons, including her fail-
ure to recall the presence of a car in a
driveway that Mr. Pena led her across.
Also, when a male and female police of-
ficer arrived, the teacher ran to the
male officer. “This juror thought that a
woman who had just been raped would
be more likely to run to a female offi-
cer,” he said.
Among all 12 jurors, he said, there
was great empathy for the teacher.
“When she was testifying, you really
wanted to walk up in the witness box
and put your arms around her,” the ju-
ror said.
And more than sympathy, he said,
there was admiration.
“A few weeks later,’’ he said, “she
went back to school and started teach-
ing.”
Jurors’ Doubts
Outweighed
Their Empathy
‘There were people in the
jury room who absolutely
believed her,’ says one.
E-mail: dwyer@nytimes.com
Twitter: @jimdwyernyt
JIM
DWYER
ABOUT
NEW YORK
By CHARLES V. BAGLI
A bill quietly surfaced in Albany last
week that would overrule regulators
and grant a liquor license to an un-
named establishment on Park Avenue.
It was the latest maneuver in a nasty,
six-year-old fight that has bounced from
one of Manhattan’s most exclusive
neighborhoods to the State Liquor Au-
thority and the courts. Now it has
caused an unusual rift among Demo-
cratic lawmakers because the bill’s
sponsor is from Brooklyn and is being
accused of meddling.
The dispute has pitted local residents
against the Third Church of Christ Sci-
entist, which leases much of its stately
neo-Georgian building at the northeast
corner of Park Avenue and 63rd Street
to a caterer, who hosts lavish weddings,
bar mitzvahs, fashion shows and char-
ity events that draw traffic, noise and
hundreds of guests.
The caterer wants a liquor license as
a matter of course. Residents want
peace and quiet. Both sides seem to
have the stamina and the wherewithal
to carry on for years.
State law prohibits the issuance of a
liquor license to a business that is with-
in 200 feet of a school or place of wor-
ship, like Central Presbyterian Church,
two doors to the north of the Third
Church. But the proposed legislation —
introduced by Assemblyman Joseph R.
Lentol of Brooklyn — would carve out
an exception for the caterer, Rose
Group Park Avenue, allowing it to serve
liquor to patrons.
Mr. Lentol listed Dan Quart, the as-
semblyman who represents the Upper
East Side, as a co-sponsor of the bill, but
shortly after it was submitted, Mr.
Quart asked Mr. Lentol to remove his
name. State Senator Liz Krueger, who
also represents the district, told Mr.
Lentol that she was “not interested in
any shape or form” in providing Rose
with an exemption from liquor laws. All
three lawmakers are Democrats.
Mr. Lentol said he met Louis Rose,
owner of the Rose Group, at the Jan. 29
wedding of Assemblyman Daniel
O’Donnell at Guastavino’s, an Upper
East Side catering hall also operated by
the Rose Group. He said Mr. Rose had
asked for help.
Mr. Lentol said he submitted the bill
to prod the liquor authority into being
“more reasonable” about a decision that
would force the cancellation of events
booked before the court’s decision, not
imagining that the bill might be adopt-
ed. Until recently, the Rose Group ap-
peared to be on the road to obtaining a
liquor license, winning court decisions
against the State Liquor Authority.
But in January, the Appellate Divi-
sion of the State Supreme Court ruled
unanimously that the liquor authority
had properly denied Rose a liquor li-
cense. Both the Rose Group and the
Third Church of Christ Scientist, which
was not a party to the lawsuit, insisted
that they shared the building and de-
served special consideration. (One
more indication of how tangled the dis-
pute has gotten: Christian Scientists do
not drink, yet the church is supporting
the Rose Group’s bid for the liquor li-
cense.)
Mr. Rose, who says he has spent $6
million repairing the church and creat-
ing the catering hall, did not return calls
seeking comment.
Under certain circumstances, reli-
gious institutions are exempt from liq-
uor restrictions: while state law prohib-
its liquor licenses for businesses that
are within 200 feet of a church, the
church itself might be able to serve liq-
uor at some functions.
But the court said the Rose Group
had clearly turned the building into a
catering hall by removing all the church
pews and installing kitchen equipment
and a V.I.P. room.
Last week, two days after Mr. Lentol
submitted his bill, the state’s highest
court, the Court of Appeals, declined to
hear the Rose Group’s appeal.
But this battle on the East Side is far
from over. “We plan to stay in business,”
said the Rose Group’s lawyer, Victor A.
Kovner. “Our client plans to apply for a
wine and beer license. The 200-foot rule
applies only to a liquor license.”
That brought no comfort to Adele Ho-
gan, a longtime opponent who lives
nearby with her husband and two chil-
dren. “It’s a very disruptive presence in
an already congested area that’s zoned
residential,” said Ms. Hogan, a member
of the Preservation Coalition, formed to
oppose the catering hall. “I don’t un-
derstand how an assemblyman from
Brooklyn proposes legislation affecting
a Manhattan community.”
On Monday night, unhappy residents
watched black cars blocking a traffic
lane as guests dismounted to attend the
“Save Venice” charity event at the
building, at 583 Park Avenue.
Thomas Draper, chairman of the trus-
tees overseeing the church, also ex-
pressed disappointment over the turn of
events.
The church had turned to Mr. Rose in
2006 because its dwindling congrega-
tion could not handle the cost of main-
taining and restoring its 88-year-old,
four-story building. Under the long-
term lease, Rose Group pays the church
more than $250,000 a year in rent as
well as 10 percent of sales.
For now, the fate of Assemblyman
Lentol’s bill remains unclear. But he in-
dicated some regret at getting involved.
“I didn’t realize there was so much
adverse feeling about it,” he said. “I was
told there was a small group that ob-
jected, but the community at large was
not against it.”
Liquor-License Fight Moves From Park Ave. to Albany
PHOTOGRAPHS BY RUBY WASHINGTON/THE NEW YORK TIMES
A charity event, “Save Venice,” was held Monday in space leased by a caterer
from the Third Church of Christ Scientist on Park Avenue in Manhattan.
A church favors letting
the drinks flow, but
neighbors object.
By CHANNING JOSEPH
A 170-foot crane at a construction site
for the extension of the No. 7 subway
line collapsed on Tuesday night in Man-
hattan, killing one worker and injuring
four other people in an eerie reminder
of two fatal crane accidents in the city
four years ago.
It appeared that the accident oc-
curred when the upper section of the
crane broke off just before 7:30 p.m.,
during work on the extension at 34th
Street, between 10th and 11th Avenues.
A Fire Department spokesman said an
80-foot section and a 40-foot section
from the crane fell.
It came down “like a dinosaur,” said a
worker from the construction site who
was waiting at Bellevue Hospital Cen-
ter, where at least one victim was being
treated.
One city official said there was some
speculation among investigators at the
scene that something in the back of the
crane had snapped, causing it to be-
come unbalanced.
“They’re looking at some kind of fail-
ure in the rear of the crane,” said the of-
ficial, who spoke only on the condition of
anonymity.
Paul J. Browne, the Police Depart-
ment’s chief spokesman, said a 30-year-
old man had died and a 48-year-old man
had been injured in the leg.
The three other victims were a crane
operator, a flag man and a relative of
one of the victims, said Jackie Sullivan,
deputy chief of the city’s Emergency
Medical Services.
A man at Bellevue who said he knew
and had worked with the man who died
said the victim was a hard worker and
“good-natured.” That man, who was
with another man who said he was the
victim’s father, refused to provide his
name. “It was a freak accident,” he add-
ed.
The damage from the accident ap-
peared to be limited to the construction
site, Mr. Browne said, with no reports of
damage from nearby buildings and no
debris on the street.
It was unclear where the victims had
been when the accident occurred,
though the city official said two work-
ers, including the man who died, were
trapped in the collapse. Some were res-
cued from about 60 feet below ground,
another official said. The Fire Depart-
ment and the police said they had used
ropes to lift them.
“It was a complicated job,” said Chief
William Seelig of the Fire Department.
Mr. Seelig said that members of the
FRANK FRANKLIN II/ASSOCIATED PRESS
Emergency workers removed an injured man on Tuesday after a crane collapsed at the construction site for the extension of the No. 7 subway line.
Man Is Killed and 4 Are Hurt in West Side Crane Collapse
YANA PASKOVA FOR THE NEW YORK TIMES
The crane collapsed on West 34th Street between 10th and 11th Avenues.
The damage seemed to be confined to the site, a police spokesman said.
Continued on Page A16
It came down ‘like a
dinosaur,’ said a
construction worker.
C M Y K Nxxx,2012-04-04,A,015,Bs-BK,E3
A16 Ø Ø N NEW YORKTHE NEW YORK TIMES WEDNESDAY, APRIL 4, 2012
By DAVID M. HALBFINGER
and KATE TAYLOR
Mayor Michael R. Bloomberg’s
administration came under at-
tack on Tuesday for keeping se-
cret what is said to be a sharply
critical report on New York City’s
much-delayed, wildly over-budg-
et 911 emergency dispatch sys-
tem, as elected officials accused
it of trying to portray a techno-
logical debacle in the rosiest pos-
sible terms.
The Manhattan borough presi-
dent, Scott M. Stringer, praised
the mayor for seeking an outside
review of the revised 911 system,
but he demanded that Mr. Bloom-
berg abandon a legal fight to
block the release of that review.
The changes to the 911 system
have become controversial be-
cause the cost has ballooned by
as much as $1 billion, thanks in
part to contractors who were lat-
er fired, feuding police and fire
officials, and revolving-door
overseers at City Hall.
“City Hall has kept us in the
dark for too long,” said Mr.
Stringer, a possible candidate for
mayor next year, who likened the
911 system’s problems to those of
CityTime, the scandal-marred
payroll project. But Mr. Stringer
said the 911 system had much
higher stakes: life and death.
“The safety and security of our
city demands swift action,” he
said. “Whatever you have, come
and tell us.”
Mr. Bloomberg did not budge,
saying the report was prelimi-
nary and would be released when
it was complete. But he suggest-
ed that doubts about the 911 sys-
tem were unfounded.
“Response times are better
than they’ve ever been,” the
mayor told reporters at a news
conference in Queens. “Deaths
from fires and accidents are the
lowest they’ve ever been.”
“Obviously,” he added, “things
are working.”
The performance of the 911 sys-
tem has become an issue in a dis-
pute between the Bloomberg ad-
ministration and firefighters over
the city’s proposal to close some
firehouses. The firefighters say
the city has claimed lower re-
sponse times to justify the pro-
posed closings.
An audit by John C. Liu, the
city comptroller, found in October
that the time it took operators to
obtain vital information from 911
callers — around two minutes —
had been subtracted from re-
sponse-time calculations since
2010, when the city shifted some
911 responsibilities from opera-
tors at the Fire Department to
operators for the Police Depart-
ment.
“Nobody really cares how they
break the response time down,”
said Stephen J. Cassidy, presi-
dent of the Uniformed Firefight-
ers Association. “But if I dial 911
because somebody in my family’s
having a heart attack, or there’s a
car crash, or a helicopter goes
down in the East River, and
somebody shows up in six min-
utes, don’t tell me you don’t
count the first two minutes and
you were there in four.”
The city says that it never cal-
culated the response time begin-
ning with the call to the 911 opera-
tor. Under the old system, it be-
gan tracking the time from the
moment the call was transferred
from 911 to the Fire Department.
The city further insists that a de-
cline in serious fires and fire-
related deaths is proof that re-
sponse times have improved.
The outside review of the 911
system, formally called the
Emergency Communications
Transformation Project, was per-
formed by Winbourne Consult-
ing, a technology firm based in
Arlington, Va., that has been in-
volved in the project since 2004.
Jeffrey Winbourne, its chief exec-
utive officer, declined to com-
ment on Tuesday, referring in-
quiries to the mayor’s office.
The argument this week over
the review of the 911 system, first
reported by The New York Post
on Monday, was not the first time
the administration’s praise for
the project was at odds with re-
views of the system’s perform-
ance.
On Jan. 5, Mr. Bloomberg and
Cas Holloway, his deputy mayor
for operations, announced that
the new 911 system was up and
running, and that police, fire and
emergency medical dispatchers
were all working “in one place
and on the same system,” as the
mayor put it.
Two weeks later, however, a
confidential briefing book pre-
pared for Mr. Holloway warned
of potential risks and problems,
including indications that the po-
lice and fire bureaucracies had
not worked out their differences.
For example, each department
was still working from separate
geographic-information files,
meaning a fire truck might be
sent to a crash on an elevated
highway while a police car was
sent to the service road beneath
it.
But Mr. Holloway, in an in-
terview, called the briefing book
a routine status update, and said
that while the system was in use,
it was not finished, and much
work remained to be done.
More to the point, he said, the
system had handled more than 4
million calls since the Jan. 5 an-
nouncement without a single
glitch that affected operations.
CASEY KELBAUGH FOR THE NEW YORK TIMES
Stephen J. Cassidy, president of the Uniformed Firefighters Association, said at a news confer-
ence on Tuesday that City Hall was understating 911 response times to justify closing firehouses.
Bloomberg Critics Push
To Get 911 System Report
An assistant principal at a
Bronx elementary school was ar-
rested on Tuesday on charges of
sexually abusing two girls, the
police said.
The New York police and the
Education Department said the
man, Joseph Ponzo, 59, touched
the chests of a 10-year-old and an
11-year-old last Tuesday inside
Public School 106, where he has
been assistant principal since
2008.
Mr. Ponzo, of Bayside, Queens,
who has worked as a teacher and
an administrator in Bronx public
schools since 1996, has been
charged with felony sexual abuse
and endangering the welfare of a
child, a misdemeanor. He is ex-
pected to be arraigned on
Wednesday, the authorities said.
He is the latest in a string of at
least seven city school workers
charged in two months with a
sexual offense against a student,
and the first administrator to be
charged. Mr. Ponzo earns
$118,000 a year and has been re-
assigned pending the outcome of
his case, the Education Depart-
ment said.
Assistant Principal
Is Accused of Abuse
establishment does not charge
anything: he won a recent court
decision allowing him to avoid
paying for broadcast feeds of
games shown free in Ireland.
He uses technology to have
sporting events streamed online
to the bar from a television at a
friend’s apartment in Dublin.
“As far as I know, I’m the first
bar owner in New York to do
this,” Mr. Rooney said. “You can
see I don’t have a big crowd — I
need a cover charge here like I
need a hole in the head. People
don’t want to pay to watch a
game that they know is on free
TV in Ireland.”
Mr. Rooney’s practice is lauded
by his patrons, but not by Pre-
mium Sports, a company based
in San Francisco that offers a
broadcast package including
overseas matches in sports like
soccer and Gaelic football. Pre-
mium buys the United States
broadcast rights for overseas
games, which it feeds on closed
circuit, mostly to bars. Premium
says it also has the right to
charge patrons for games in its
packages that are broadcast free
overseas.
Two years ago, Mr. Rooney be-
came something of a test case,
fighting Premium in federal court
in New York. His victory in the
suit meant he could continue to
receive his friend’s feed free and
avoid having to pay Premium.
Shane O’Rourke, one of the
owners of Premium Sports,
would not comment on legal as-
pects of the case, but said he
planned to appeal.
“We’re not going to walk away
and lie down,” he said. “If this
case stood, you’re talking about
billions of dollars of business be-
ing given away.”
The case is an important one
for Irish bars in New York, which
do some of their best business on
weekend mornings with live si-
mulcasts of matches abroad.
Bar owners often pay consider-
ably for the broadcasts, usually
from providers who own the
American rights to the games.
By COREY KILGANNON
The hard-core fans of Gaelic
football were already there by
noon on Saturday, hoisting pints
and watching Crossmaglen play
Garrycastle in the All-Ireland
club final on multiple screens at
the Irish Pub.
“This game is on network TV
in Ireland now, and we’re getting
the signal on a 90-second delay,”
said Eugene Rooney, 64, who has
been an owner of the bar, on
West 54th Street in Manhattan,
since 1980.
Unlike other Irish bars where
patrons must pay to watch this
type of broadcast, Mr. Rooney’s
Then they either set a door
charge or sometimes the broad-
cast provider offers bar owners
games free and sends its owns
workers to collect a fee from cus-
tomers.
This went on for years at Mr.
Rooney’s bars — he is part-own-
er of the Old Castle bar on Sev-
enth Avenue, which also shows
Irish games — but two years ago,
he grew tired of Premium’s
charging his customers for
games available free in Ireland,
he said.
Mr. Rooney spent $3,000 to set
up his friend in Dublin and his
bars in New York with the equip-
ment to stream television signals
online. The technology is not per-
fect — the picture in bars is not
crystal clear and can freeze.
In February 2010, before a rug-
by match between Ireland and
England, Mr. Rooney told Pre-
mium not to bother trying to col-
lect a door charge for a game that
was free on Irish television. By
the time Premium learned that
Mr. Rooney was continuing the
practice with another match later
that month, the company filed a
lawsuit against Mr. Rooney for
theft of signal.
Premium pulled its service
from his bars, and Mr. Rooney
countersued for breach of con-
tract. He hired a lawyer, Joel
Cristoph, and an expert to testify
that there was a delay between
the game in his bar and the live
broadcast in Ireland.
That delay figured strongly in
the decision announced on March
1 by Judge Katherine B. Forrest
of United States District Court in
Manhattan. She ruled that be-
cause Mr. Rooney did not inter-
cept a signal illegally, but instead
used a broadcast sent to him
from Dublin and then showed it
at his bar with a delay of a minute
or two, the bar version was tech-
nically a rebroadcast, and not an
interception or a violation of com-
munications law.
Mr. O’Rourke, who owns Pre-
mium Sports with his brother Mi-
chael O’Rourke, said that the de-
cision was a blow, but added that
other clients have not followed
Mr. Rooney’s lead.
Of Mr. Rooney, he said: “He’s
acting like the hero — and I’m
sure he is, to people who don’t
think you have to pay for any-
thing — but if no one ever paid
for these games, no one could af-
ford to broadcast them anymore.”
ÁNGEL FRANCO/THE NEW YORK TIMES
Eugene Rooney, an owner of the Irish Pub, won a recent court
decision allowing him to show sports from Ireland free.
Owner of Irish Bar Won’t Pay to See Plays
News and
conversa-
tion from the
five boroughs:
nytimes.com/cityroom
City Room
The state court system put
changes in its hiring practices
into effect on Tuesday, one day
after the State Commission on Ju-
dicial Conduct reported that the
protocol at an appellate court
promoted a culture of nepotism.
Beginning immediately, the
state’s chief administrative
judge, A. Gail Prudenti, said, job
openings in the state’s four appel-
late divisions will be publicly ad-
vertised.
Judge Prudenti also said that
applicants for all vacancies
would be vetted by hiring panels,
court employees would be re-
quired to disqualify themselves
from the hiring process when rel-
atives apply for jobs and court
employees would not be allowed
to supervise relatives or their
spouses’ relatives.
On Monday, the commission is-
sued a report in the case of Luis
A. Gonzalez, the top judge in the
appellate division that covers
Manhattan and the Bronx, who
had been accused of giving jobs
to friends and relatives.
While the report cleared Jus-
tice Gonzalez of wrongdoing, it
found that hiring at the court had
mostly “been a closed process for
decades,” one that required “an
acquaintance, friend, relative or
some other connection to the
court in order to know about and
apply for an open position,”
thereby diminishing “public con-
fidence in the fairness and impar-
tiality of the courts.”
The commission recommended
the changes that were adopted.
Similar safeguards were already
in place in the rest of the court
system, outside the appellate di-
visions, said David Bookstaver, a
court spokesman.
State Courts Change Hiring Practices
department were told that a ca-
ble had snapped.
Mr. Sullivan said that the res-
cue scene was a “very precarious
area with a lot of construction
material.”
Thomas Ruskin, a retired city
police detective, said that shortly
after the accident, he peered over
a wall separating the construc-
tion site from the street and saw
two victims being removed from
the scene. One of them seemed to
be in serious condition, and the
other appeared to be in critical
condition, he said.
Emergency workers were
“performing C.P.R. on one vic-
tim,” he said.
Another man on the scene
seemed to be receiving treatment
for emotional distress or hyper-
ventilation, Mr. Ruskin said. “The
top part of the crane was lying on
the upper part of the construction
project,” he said. “Something
cracked that steel arm,” he add-
ed.
Joseph F. Bruno, the commis-
sioner of the city’s Office of
Emergency Management, said it
was unclear who owned the
crane. Deputy Police Chief James
McNamara said that detectives
were interviewing workers and
that there was no indication of
criminality.
Delia Shumway, the Depart-
ment of Buildings executive di-
rector of cranes and derricks,
said: “We understand a 170-foot
boom collapsed. We don’t know
the cause.”
“On behalf of the entire M.T.A.,
we pray for the recovery of the
workers injured as a result of this
tragic accident tonight,” the Met-
ropolitan Transportation Author-
ity said in a statement. “We will
work together with all proper au-
thorities to conduct a thorough
investigation.”
Tuesday’s accident came on
the same day that the head of the
M.T.A. raised doubts that the
Bloomberg administration’s plan
to extend the No. 7 subway line
into New Jersey would material-
ize “in our lifetime.” The authori-
ty’s chairman, Joseph J. Lhota,
said the proposal was too expen-
sive.
In 2008, nine people died in two
separate crane accidents in Man-
hattan. The first, which occurred
in March, killed seven people and
led to the resignation of Patricia
J. Lancaster, the chief of the city’s
Department of Buildings, who
was criticized for approving the
project, which did not conform to
zoning rules.
In May of that year, two more
people were killed in a crane acci-
dent on East 91st Street, which
led to tougher regulations for
crane projects. The new rules re-
quired that plans be filed before
any crane was erected or dis-
mantled and that crane operators
complete 30 hours of training
with an eight-hour refresher
course every three years.
The collapses led to a number
of criminal trials, including a
manslaughter case now under
way against the owner of the
crane at the 91st Street site.
Man Killed
In Collapse
Of a Crane;
4 Are Hurt
From Page A15
Christine Haughney, Randy Leon-
ard, Colin Moynihan and William
K. Rashbaum contributed report-
ing.
SUBWAY PLAN IN DOUBT
Questions about a plan to extend
the No. 7 line to New Jersey.
nytimes.com/nyregion
Nxxx,2012-04-04,A,016,Bs-BW,E3

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Jurors' Empathy for Teacher Outweighed by Doubt in Rape Conviction

  • 1. A15Ø Ø N WEDNESDAY, APRIL 4, 2012 The day began as a first step into the marvelous: a 25-year-old woman, who had moved to New York to become a teacher, was leaving home early on an August morning to get her classroom ready for the second-grad- ers she would be teaching when school started. She had been hired just that week, after a long hunt for a job. And her principal, it turned out, lived nearby in the same quiet neighborhood of Upper Manhattan, and had offered the new teacher a ride to work. A few minutes after 6 a.m., the rookie was waiting. “I’m downstairs,” she texted. “On my way,” the principal respond- ed. When the principal came out, there was no sign of the young teacher. “That was how the case started for us,” said a member of the jury that tried a man named Michael Pena for what he did to the young teacher when she van- ished from outside her boss’s home. There is no mystery and little dispute about what happened: Mr. Pena, an off- duty police officer, approached and asked for directions to the subway, then displayed a gun and led her across the street. In a courtyard, he attacked her sexually. Spotted by two witnesses, then caught at the scene by two police offi- cers, and finally implicated by a victim who had strong credibility, Mr. Pena was convicted last week of three counts of predatory sexual assault, a felony that carries a minimum sentence of 10 years. These convictions related to three separate acts of oral and anal con- tact with Mr. Pena’s penis. The jury was not able to reach a ver- dict on one of the accusations of preda- tory sexual assault: rape, which New York law defines as any forcible “pene- tration, however slight” of the vagina by a penis. Mr. Pena was not cleared of that count. In fact, the jury was split nine to three in favor of conviction, according to the man who served on it. That indecision will do little to lighten Mr. Pena’s load: depending on how the judge views the convictions, Mr. Pena’s sentences could run consecutively, meaning he would face a minimum sen- tence of 30 years, 10 years on each count. Arithmetic has little to do with the heart. When the failure to reach a ver- dict on the rape charge was announced, the teacher wept. “I think she came away from this thinking, ‘How could people not believe me?’” the juror said. “I wish she could know that there were people in the jury room who absolutely believed her, about the whole story.” The teacher had testified that during the assault, she knew that Mr. Pena had penetrated her, because “it hurt.” Other evidence came from a woman who lives over the courtyard and called 911 sev- eral times, first reporting what seemed to be “joyless sex,” then later, with in- creasing alarm, that she had spotted Mr. Pena’s gun. Another neighbor said he saw the man pushing into the woman but did not realize it was an attack. The physical evidence, which the law does not require for proof of rape, was ambiguous on the question of penetra- tion. No sperm from Mr. Pena was re- covered from inside the teacher, but his ejaculate was found on part of her un- derwear; her epithelial cells were found on his penis. Such cells line the vagina, the mouth and the skin, so their pres- ence does not necessarily establish pen- etration. T HE nine jurors who favored con- viction on rape did not regard the physical evidence as a necessity, the juror said: “My argument, and the argument of others was, ‘We’ve got clear, detailed testimony from a witness we believe, that we find credible, with no testimony disputing it — what is keeping you from voting guilty?’” He said that one holdout, a woman, had doubts about the victim’s memory for several reasons, including her fail- ure to recall the presence of a car in a driveway that Mr. Pena led her across. Also, when a male and female police of- ficer arrived, the teacher ran to the male officer. “This juror thought that a woman who had just been raped would be more likely to run to a female offi- cer,” he said. Among all 12 jurors, he said, there was great empathy for the teacher. “When she was testifying, you really wanted to walk up in the witness box and put your arms around her,” the ju- ror said. And more than sympathy, he said, there was admiration. “A few weeks later,’’ he said, “she went back to school and started teach- ing.” Jurors’ Doubts Outweighed Their Empathy ‘There were people in the jury room who absolutely believed her,’ says one. E-mail: dwyer@nytimes.com Twitter: @jimdwyernyt JIM DWYER ABOUT NEW YORK By CHARLES V. BAGLI A bill quietly surfaced in Albany last week that would overrule regulators and grant a liquor license to an un- named establishment on Park Avenue. It was the latest maneuver in a nasty, six-year-old fight that has bounced from one of Manhattan’s most exclusive neighborhoods to the State Liquor Au- thority and the courts. Now it has caused an unusual rift among Demo- cratic lawmakers because the bill’s sponsor is from Brooklyn and is being accused of meddling. The dispute has pitted local residents against the Third Church of Christ Sci- entist, which leases much of its stately neo-Georgian building at the northeast corner of Park Avenue and 63rd Street to a caterer, who hosts lavish weddings, bar mitzvahs, fashion shows and char- ity events that draw traffic, noise and hundreds of guests. The caterer wants a liquor license as a matter of course. Residents want peace and quiet. Both sides seem to have the stamina and the wherewithal to carry on for years. State law prohibits the issuance of a liquor license to a business that is with- in 200 feet of a school or place of wor- ship, like Central Presbyterian Church, two doors to the north of the Third Church. But the proposed legislation — introduced by Assemblyman Joseph R. Lentol of Brooklyn — would carve out an exception for the caterer, Rose Group Park Avenue, allowing it to serve liquor to patrons. Mr. Lentol listed Dan Quart, the as- semblyman who represents the Upper East Side, as a co-sponsor of the bill, but shortly after it was submitted, Mr. Quart asked Mr. Lentol to remove his name. State Senator Liz Krueger, who also represents the district, told Mr. Lentol that she was “not interested in any shape or form” in providing Rose with an exemption from liquor laws. All three lawmakers are Democrats. Mr. Lentol said he met Louis Rose, owner of the Rose Group, at the Jan. 29 wedding of Assemblyman Daniel O’Donnell at Guastavino’s, an Upper East Side catering hall also operated by the Rose Group. He said Mr. Rose had asked for help. Mr. Lentol said he submitted the bill to prod the liquor authority into being “more reasonable” about a decision that would force the cancellation of events booked before the court’s decision, not imagining that the bill might be adopt- ed. Until recently, the Rose Group ap- peared to be on the road to obtaining a liquor license, winning court decisions against the State Liquor Authority. But in January, the Appellate Divi- sion of the State Supreme Court ruled unanimously that the liquor authority had properly denied Rose a liquor li- cense. Both the Rose Group and the Third Church of Christ Scientist, which was not a party to the lawsuit, insisted that they shared the building and de- served special consideration. (One more indication of how tangled the dis- pute has gotten: Christian Scientists do not drink, yet the church is supporting the Rose Group’s bid for the liquor li- cense.) Mr. Rose, who says he has spent $6 million repairing the church and creat- ing the catering hall, did not return calls seeking comment. Under certain circumstances, reli- gious institutions are exempt from liq- uor restrictions: while state law prohib- its liquor licenses for businesses that are within 200 feet of a church, the church itself might be able to serve liq- uor at some functions. But the court said the Rose Group had clearly turned the building into a catering hall by removing all the church pews and installing kitchen equipment and a V.I.P. room. Last week, two days after Mr. Lentol submitted his bill, the state’s highest court, the Court of Appeals, declined to hear the Rose Group’s appeal. But this battle on the East Side is far from over. “We plan to stay in business,” said the Rose Group’s lawyer, Victor A. Kovner. “Our client plans to apply for a wine and beer license. The 200-foot rule applies only to a liquor license.” That brought no comfort to Adele Ho- gan, a longtime opponent who lives nearby with her husband and two chil- dren. “It’s a very disruptive presence in an already congested area that’s zoned residential,” said Ms. Hogan, a member of the Preservation Coalition, formed to oppose the catering hall. “I don’t un- derstand how an assemblyman from Brooklyn proposes legislation affecting a Manhattan community.” On Monday night, unhappy residents watched black cars blocking a traffic lane as guests dismounted to attend the “Save Venice” charity event at the building, at 583 Park Avenue. Thomas Draper, chairman of the trus- tees overseeing the church, also ex- pressed disappointment over the turn of events. The church had turned to Mr. Rose in 2006 because its dwindling congrega- tion could not handle the cost of main- taining and restoring its 88-year-old, four-story building. Under the long- term lease, Rose Group pays the church more than $250,000 a year in rent as well as 10 percent of sales. For now, the fate of Assemblyman Lentol’s bill remains unclear. But he in- dicated some regret at getting involved. “I didn’t realize there was so much adverse feeling about it,” he said. “I was told there was a small group that ob- jected, but the community at large was not against it.” Liquor-License Fight Moves From Park Ave. to Albany PHOTOGRAPHS BY RUBY WASHINGTON/THE NEW YORK TIMES A charity event, “Save Venice,” was held Monday in space leased by a caterer from the Third Church of Christ Scientist on Park Avenue in Manhattan. A church favors letting the drinks flow, but neighbors object. By CHANNING JOSEPH A 170-foot crane at a construction site for the extension of the No. 7 subway line collapsed on Tuesday night in Man- hattan, killing one worker and injuring four other people in an eerie reminder of two fatal crane accidents in the city four years ago. It appeared that the accident oc- curred when the upper section of the crane broke off just before 7:30 p.m., during work on the extension at 34th Street, between 10th and 11th Avenues. A Fire Department spokesman said an 80-foot section and a 40-foot section from the crane fell. It came down “like a dinosaur,” said a worker from the construction site who was waiting at Bellevue Hospital Cen- ter, where at least one victim was being treated. One city official said there was some speculation among investigators at the scene that something in the back of the crane had snapped, causing it to be- come unbalanced. “They’re looking at some kind of fail- ure in the rear of the crane,” said the of- ficial, who spoke only on the condition of anonymity. Paul J. Browne, the Police Depart- ment’s chief spokesman, said a 30-year- old man had died and a 48-year-old man had been injured in the leg. The three other victims were a crane operator, a flag man and a relative of one of the victims, said Jackie Sullivan, deputy chief of the city’s Emergency Medical Services. A man at Bellevue who said he knew and had worked with the man who died said the victim was a hard worker and “good-natured.” That man, who was with another man who said he was the victim’s father, refused to provide his name. “It was a freak accident,” he add- ed. The damage from the accident ap- peared to be limited to the construction site, Mr. Browne said, with no reports of damage from nearby buildings and no debris on the street. It was unclear where the victims had been when the accident occurred, though the city official said two work- ers, including the man who died, were trapped in the collapse. Some were res- cued from about 60 feet below ground, another official said. The Fire Depart- ment and the police said they had used ropes to lift them. “It was a complicated job,” said Chief William Seelig of the Fire Department. Mr. Seelig said that members of the FRANK FRANKLIN II/ASSOCIATED PRESS Emergency workers removed an injured man on Tuesday after a crane collapsed at the construction site for the extension of the No. 7 subway line. Man Is Killed and 4 Are Hurt in West Side Crane Collapse YANA PASKOVA FOR THE NEW YORK TIMES The crane collapsed on West 34th Street between 10th and 11th Avenues. The damage seemed to be confined to the site, a police spokesman said. Continued on Page A16 It came down ‘like a dinosaur,’ said a construction worker. C M Y K Nxxx,2012-04-04,A,015,Bs-BK,E3
  • 2. A16 Ø Ø N NEW YORKTHE NEW YORK TIMES WEDNESDAY, APRIL 4, 2012 By DAVID M. HALBFINGER and KATE TAYLOR Mayor Michael R. Bloomberg’s administration came under at- tack on Tuesday for keeping se- cret what is said to be a sharply critical report on New York City’s much-delayed, wildly over-budg- et 911 emergency dispatch sys- tem, as elected officials accused it of trying to portray a techno- logical debacle in the rosiest pos- sible terms. The Manhattan borough presi- dent, Scott M. Stringer, praised the mayor for seeking an outside review of the revised 911 system, but he demanded that Mr. Bloom- berg abandon a legal fight to block the release of that review. The changes to the 911 system have become controversial be- cause the cost has ballooned by as much as $1 billion, thanks in part to contractors who were lat- er fired, feuding police and fire officials, and revolving-door overseers at City Hall. “City Hall has kept us in the dark for too long,” said Mr. Stringer, a possible candidate for mayor next year, who likened the 911 system’s problems to those of CityTime, the scandal-marred payroll project. But Mr. Stringer said the 911 system had much higher stakes: life and death. “The safety and security of our city demands swift action,” he said. “Whatever you have, come and tell us.” Mr. Bloomberg did not budge, saying the report was prelimi- nary and would be released when it was complete. But he suggest- ed that doubts about the 911 sys- tem were unfounded. “Response times are better than they’ve ever been,” the mayor told reporters at a news conference in Queens. “Deaths from fires and accidents are the lowest they’ve ever been.” “Obviously,” he added, “things are working.” The performance of the 911 sys- tem has become an issue in a dis- pute between the Bloomberg ad- ministration and firefighters over the city’s proposal to close some firehouses. The firefighters say the city has claimed lower re- sponse times to justify the pro- posed closings. An audit by John C. Liu, the city comptroller, found in October that the time it took operators to obtain vital information from 911 callers — around two minutes — had been subtracted from re- sponse-time calculations since 2010, when the city shifted some 911 responsibilities from opera- tors at the Fire Department to operators for the Police Depart- ment. “Nobody really cares how they break the response time down,” said Stephen J. Cassidy, presi- dent of the Uniformed Firefight- ers Association. “But if I dial 911 because somebody in my family’s having a heart attack, or there’s a car crash, or a helicopter goes down in the East River, and somebody shows up in six min- utes, don’t tell me you don’t count the first two minutes and you were there in four.” The city says that it never cal- culated the response time begin- ning with the call to the 911 opera- tor. Under the old system, it be- gan tracking the time from the moment the call was transferred from 911 to the Fire Department. The city further insists that a de- cline in serious fires and fire- related deaths is proof that re- sponse times have improved. The outside review of the 911 system, formally called the Emergency Communications Transformation Project, was per- formed by Winbourne Consult- ing, a technology firm based in Arlington, Va., that has been in- volved in the project since 2004. Jeffrey Winbourne, its chief exec- utive officer, declined to com- ment on Tuesday, referring in- quiries to the mayor’s office. The argument this week over the review of the 911 system, first reported by The New York Post on Monday, was not the first time the administration’s praise for the project was at odds with re- views of the system’s perform- ance. On Jan. 5, Mr. Bloomberg and Cas Holloway, his deputy mayor for operations, announced that the new 911 system was up and running, and that police, fire and emergency medical dispatchers were all working “in one place and on the same system,” as the mayor put it. Two weeks later, however, a confidential briefing book pre- pared for Mr. Holloway warned of potential risks and problems, including indications that the po- lice and fire bureaucracies had not worked out their differences. For example, each department was still working from separate geographic-information files, meaning a fire truck might be sent to a crash on an elevated highway while a police car was sent to the service road beneath it. But Mr. Holloway, in an in- terview, called the briefing book a routine status update, and said that while the system was in use, it was not finished, and much work remained to be done. More to the point, he said, the system had handled more than 4 million calls since the Jan. 5 an- nouncement without a single glitch that affected operations. CASEY KELBAUGH FOR THE NEW YORK TIMES Stephen J. Cassidy, president of the Uniformed Firefighters Association, said at a news confer- ence on Tuesday that City Hall was understating 911 response times to justify closing firehouses. Bloomberg Critics Push To Get 911 System Report An assistant principal at a Bronx elementary school was ar- rested on Tuesday on charges of sexually abusing two girls, the police said. The New York police and the Education Department said the man, Joseph Ponzo, 59, touched the chests of a 10-year-old and an 11-year-old last Tuesday inside Public School 106, where he has been assistant principal since 2008. Mr. Ponzo, of Bayside, Queens, who has worked as a teacher and an administrator in Bronx public schools since 1996, has been charged with felony sexual abuse and endangering the welfare of a child, a misdemeanor. He is ex- pected to be arraigned on Wednesday, the authorities said. He is the latest in a string of at least seven city school workers charged in two months with a sexual offense against a student, and the first administrator to be charged. Mr. Ponzo earns $118,000 a year and has been re- assigned pending the outcome of his case, the Education Depart- ment said. Assistant Principal Is Accused of Abuse establishment does not charge anything: he won a recent court decision allowing him to avoid paying for broadcast feeds of games shown free in Ireland. He uses technology to have sporting events streamed online to the bar from a television at a friend’s apartment in Dublin. “As far as I know, I’m the first bar owner in New York to do this,” Mr. Rooney said. “You can see I don’t have a big crowd — I need a cover charge here like I need a hole in the head. People don’t want to pay to watch a game that they know is on free TV in Ireland.” Mr. Rooney’s practice is lauded by his patrons, but not by Pre- mium Sports, a company based in San Francisco that offers a broadcast package including overseas matches in sports like soccer and Gaelic football. Pre- mium buys the United States broadcast rights for overseas games, which it feeds on closed circuit, mostly to bars. Premium says it also has the right to charge patrons for games in its packages that are broadcast free overseas. Two years ago, Mr. Rooney be- came something of a test case, fighting Premium in federal court in New York. His victory in the suit meant he could continue to receive his friend’s feed free and avoid having to pay Premium. Shane O’Rourke, one of the owners of Premium Sports, would not comment on legal as- pects of the case, but said he planned to appeal. “We’re not going to walk away and lie down,” he said. “If this case stood, you’re talking about billions of dollars of business be- ing given away.” The case is an important one for Irish bars in New York, which do some of their best business on weekend mornings with live si- mulcasts of matches abroad. Bar owners often pay consider- ably for the broadcasts, usually from providers who own the American rights to the games. By COREY KILGANNON The hard-core fans of Gaelic football were already there by noon on Saturday, hoisting pints and watching Crossmaglen play Garrycastle in the All-Ireland club final on multiple screens at the Irish Pub. “This game is on network TV in Ireland now, and we’re getting the signal on a 90-second delay,” said Eugene Rooney, 64, who has been an owner of the bar, on West 54th Street in Manhattan, since 1980. Unlike other Irish bars where patrons must pay to watch this type of broadcast, Mr. Rooney’s Then they either set a door charge or sometimes the broad- cast provider offers bar owners games free and sends its owns workers to collect a fee from cus- tomers. This went on for years at Mr. Rooney’s bars — he is part-own- er of the Old Castle bar on Sev- enth Avenue, which also shows Irish games — but two years ago, he grew tired of Premium’s charging his customers for games available free in Ireland, he said. Mr. Rooney spent $3,000 to set up his friend in Dublin and his bars in New York with the equip- ment to stream television signals online. The technology is not per- fect — the picture in bars is not crystal clear and can freeze. In February 2010, before a rug- by match between Ireland and England, Mr. Rooney told Pre- mium not to bother trying to col- lect a door charge for a game that was free on Irish television. By the time Premium learned that Mr. Rooney was continuing the practice with another match later that month, the company filed a lawsuit against Mr. Rooney for theft of signal. Premium pulled its service from his bars, and Mr. Rooney countersued for breach of con- tract. He hired a lawyer, Joel Cristoph, and an expert to testify that there was a delay between the game in his bar and the live broadcast in Ireland. That delay figured strongly in the decision announced on March 1 by Judge Katherine B. Forrest of United States District Court in Manhattan. She ruled that be- cause Mr. Rooney did not inter- cept a signal illegally, but instead used a broadcast sent to him from Dublin and then showed it at his bar with a delay of a minute or two, the bar version was tech- nically a rebroadcast, and not an interception or a violation of com- munications law. Mr. O’Rourke, who owns Pre- mium Sports with his brother Mi- chael O’Rourke, said that the de- cision was a blow, but added that other clients have not followed Mr. Rooney’s lead. Of Mr. Rooney, he said: “He’s acting like the hero — and I’m sure he is, to people who don’t think you have to pay for any- thing — but if no one ever paid for these games, no one could af- ford to broadcast them anymore.” ÁNGEL FRANCO/THE NEW YORK TIMES Eugene Rooney, an owner of the Irish Pub, won a recent court decision allowing him to show sports from Ireland free. Owner of Irish Bar Won’t Pay to See Plays News and conversa- tion from the five boroughs: nytimes.com/cityroom City Room The state court system put changes in its hiring practices into effect on Tuesday, one day after the State Commission on Ju- dicial Conduct reported that the protocol at an appellate court promoted a culture of nepotism. Beginning immediately, the state’s chief administrative judge, A. Gail Prudenti, said, job openings in the state’s four appel- late divisions will be publicly ad- vertised. Judge Prudenti also said that applicants for all vacancies would be vetted by hiring panels, court employees would be re- quired to disqualify themselves from the hiring process when rel- atives apply for jobs and court employees would not be allowed to supervise relatives or their spouses’ relatives. On Monday, the commission is- sued a report in the case of Luis A. Gonzalez, the top judge in the appellate division that covers Manhattan and the Bronx, who had been accused of giving jobs to friends and relatives. While the report cleared Jus- tice Gonzalez of wrongdoing, it found that hiring at the court had mostly “been a closed process for decades,” one that required “an acquaintance, friend, relative or some other connection to the court in order to know about and apply for an open position,” thereby diminishing “public con- fidence in the fairness and impar- tiality of the courts.” The commission recommended the changes that were adopted. Similar safeguards were already in place in the rest of the court system, outside the appellate di- visions, said David Bookstaver, a court spokesman. State Courts Change Hiring Practices department were told that a ca- ble had snapped. Mr. Sullivan said that the res- cue scene was a “very precarious area with a lot of construction material.” Thomas Ruskin, a retired city police detective, said that shortly after the accident, he peered over a wall separating the construc- tion site from the street and saw two victims being removed from the scene. One of them seemed to be in serious condition, and the other appeared to be in critical condition, he said. Emergency workers were “performing C.P.R. on one vic- tim,” he said. Another man on the scene seemed to be receiving treatment for emotional distress or hyper- ventilation, Mr. Ruskin said. “The top part of the crane was lying on the upper part of the construction project,” he said. “Something cracked that steel arm,” he add- ed. Joseph F. Bruno, the commis- sioner of the city’s Office of Emergency Management, said it was unclear who owned the crane. Deputy Police Chief James McNamara said that detectives were interviewing workers and that there was no indication of criminality. Delia Shumway, the Depart- ment of Buildings executive di- rector of cranes and derricks, said: “We understand a 170-foot boom collapsed. We don’t know the cause.” “On behalf of the entire M.T.A., we pray for the recovery of the workers injured as a result of this tragic accident tonight,” the Met- ropolitan Transportation Author- ity said in a statement. “We will work together with all proper au- thorities to conduct a thorough investigation.” Tuesday’s accident came on the same day that the head of the M.T.A. raised doubts that the Bloomberg administration’s plan to extend the No. 7 subway line into New Jersey would material- ize “in our lifetime.” The authori- ty’s chairman, Joseph J. Lhota, said the proposal was too expen- sive. In 2008, nine people died in two separate crane accidents in Man- hattan. The first, which occurred in March, killed seven people and led to the resignation of Patricia J. Lancaster, the chief of the city’s Department of Buildings, who was criticized for approving the project, which did not conform to zoning rules. In May of that year, two more people were killed in a crane acci- dent on East 91st Street, which led to tougher regulations for crane projects. The new rules re- quired that plans be filed before any crane was erected or dis- mantled and that crane operators complete 30 hours of training with an eight-hour refresher course every three years. The collapses led to a number of criminal trials, including a manslaughter case now under way against the owner of the crane at the 91st Street site. Man Killed In Collapse Of a Crane; 4 Are Hurt From Page A15 Christine Haughney, Randy Leon- ard, Colin Moynihan and William K. Rashbaum contributed report- ing. SUBWAY PLAN IN DOUBT Questions about a plan to extend the No. 7 line to New Jersey. nytimes.com/nyregion Nxxx,2012-04-04,A,016,Bs-BW,E3