THE NEW YORK TIMES – Tale of Glass in Burger Lingers

By Michael Wilson | July 22, 2011

The police officer, recalling that night, sounds like an actor in a fast-food commercial: “At some point, something told me, grab a Big Mac.” And so on a freezing January night in 2005, the officer, John Florio, then 39, stopped at the drive-through window of a McDonald’s in the Hunts Point section of the Bronx. He ordered the combo, a Big Mac with fries and a Coke.
“Have a nice night,” a young man in the cashier’s window said, according to Officer Florio.

“You, too,” the officer replied.

He drove away, with his dog, Dodger, a member of the Police Department’s canine unit, in the back seat. Officer Florio was heading toward Randalls Island to give Dodger a bathroom break and a run. As he drove, he bit into the burger. Top-row teeth met bottom-row teeth, and the course of two lives changed.

“I felt something hard and sharp on the left-hand side of my face,” he said on a witness stand five years later. Something had cracked: “My tooth.”

Inside the Big Mac were several shards of broken glass.

It is impossible to overstate the seriousness with which the police take any attempt to harm one of their own. To the passer-by that night, it must have looked as if an officer had been drawn and quartered in the McDonald’s: there were two inspectors, two captains, three sergeants and five detectives among other officers at 875 Garrison Avenue.

They combed the kitchen for glass and questioned employees and a manager, and they took the young man assembling sandwiches that night, Albert Garcia, then 18, into a back room, where he was questioned for about three hours. He confessed.

“I started to make the sandwich and I was about to finish it,” he wrote in a statement for detectives. “I put the little pieces of glass into the burger as a joke.” He wrote, “I didn’t know it was going to be sold to a cop.”

Then the case that seemed so open and shut just kept opening.

Five years passed before Mr. Garcia’s trial began in the Bronx, and by then he had not only renounced his confession, but his lawyer, Raymond J. Aab, had accused Officer Florio of planting the glass in his own burger to make a quick buck from McDonald’s.

The officer guessed that he bought the Big Mac around 11:30 that Saturday night, Jan. 29, 2005, but he had no receipt. He said Mr. Garcia had handed him the bag. He bit into the glass a couple of minutes later, he testified, but he did not call his sergeant until 12:07 a.m., after stopping at Randalls Island for his dog. He followed the sergeant’s command to get checked out at Long Island Jewish Medical Center, and he told doctors that he thought he had swallowed glass.

One doctor said, five months later, that he had had three foreign-objects-in-McDonald’s-food cases that week, all from different locations. Doctors found no sign of cuts to Officer Florio’s throat, and X-ray tests came back negative. But Officer Florio said he monitored his stool for several days after, going to the bathroom in a bucket and examining its contents, and he found five shards of glass that had apparently passed through him without causing injury.

Inside of two weeks, Officer Florio sued McDonald’s for $6 million. This would prove to be a tactical mistake, for the civil action allowed the defense team to question him and other police officers in depositions, a luxury unknown to most lawyers defending criminal cases. The depositions contradicted one another in various places, and a defense theory emerged: Officer Florio planted the glass and never laid eyes on Mr. Garcia that night; nor did Mr. Garcia see the officer. The cashier, a young woman, served him the burger.

But when detectives, believing Officer Florio’s story, interviewed Mr. Garcia and he appeared nervous, they pushed harder, and he confessed.

Officer Florio, the defense claimed, had learned of Mr. Garcia’s existence only many hours later, in a precinct station house, and, quite likely shocked that anyone had confessed to something that did not happen, said yes, that’s the guy.

The defense theory worked. A jury acquitted Mr. Garcia in March 2010.

Officer Florio, since retired, settled his lawsuit against the owners of that Bronx franchise restaurant for $15,000, his lawyer, Richard M. Kenny, said. It was a fraction of what he had sought.

Officer Florio declined to comment, but Mr. Kenny said: “I’ve kicked a lot of people out of my office who I believe are trying to perpetrate fraud. This guy is as legitimate a guy as I’ve ever met.”

Mr. Garcia said that he had gone on, improbably, to work at a White Castle restaurant a few months after his arrest, and that his new employer did not know it had hired “Burger Boy,” as people in Hunts Point called him. He now works for Walgreens, has two children, and has a lawsuit pending against the city and Officer Florio. A scheduling conference in that case is set for next month.

“The reason I made a false confession is because I was scared,” he said this week. “I’ve never been in that type of position before. I gave up mentally. I was exhausted. I was hungry. I was thirsty. The only thing I was thinking about was going home.”

A police spokesman, Paul J. Browne, shrugged off Mr. Garcia’s lawsuit.

“It’s no surprise that the plaintiffs’ bar seeks remuneration for clients, regardless of how dubious their claims,” he said.

The Big Mac remains in evidence six years later, in a city freezer. The case of the broken glass is not even its only mystery. Investigators found a strand of hair in the burger box, but forensic tests showed that it belonged to neither the young man who was accused in the case nor the officer who paid for a meal and drove away.

THE CHIEF – Union: Westchester Resists Awards from Arbitrators

By Mark Toor | July 11, 2011

The Westchester County Department of Correction is resisting arbitration awards and forcing the county Correction Officers’ Benevolent Association into court to enforce them, according to an attorney for the union.“In Westchester County, the m.o. is for the department to just not honor any arbitration agreement,” the attorney, Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP, said in an interview last week about a decision reinstating a separation between Correction Officers who work at the main jail and those assigned to the Women’s Unit.

‘Fairly Intransigent’

Arbitration awards do not come with an enforcement mechanism, she said, so the union must go to court, sometimes even seeking a contempt citation, before DOC honors the rulings. In the meantime, she said, the department can continue old practices discredited by the arbitrator for several months or perhaps a year.

The department is “fairly intransigent,” she said. She blamed department management, not County Executive Robert P. Astorino, who was elected in November 2009.

“We have to keep litigating and re-litigating,” said WCOBA president Alonzo West. “It gets frustrating.” He added, “When we lose something, we lose. We don’t go back and try to reinvent the wheel.”

County: We Haven’t Stalled

The charge that the county is delaying arbitration orders “is certainly an irresponsible statement,” said Justin Pine of the DOC. He said his department wins most of the cases that go to arbitration but has gone to court in a case involving time off because “we didn’t agree with the way the arbitrator did the numbers.” The county, he said, is “seeking to confirm the arbitrator’s decision.”

Had Separate Schedules

The union and the county are still negotiating how to implement a decision in favor of the union made at the end of May. The case involved the reopening of the Women’s Unit at the county jail. Before it was closed in 2004, the Women’s Unit had been a separate division with its own procedures for equally distributing overtime, allowing vacation picks and scheduling personal leave. When it was closed, its staff was merged with that of the Jail Division for the purposes of overtime, vacation and leave.

When the unit was reopened last year, WCOBA asked that the DOC reinstate the former policy separating the staffs of the unit and the main jail as specified in the contract. The department declined to do so, saying that would cause scheduling problems and increase overtime costs. The arbitrator ruled that the contract and previous arbitration decisions required that the separate Women’s Unit be reinstated.

Mr. Pine and Mr. West said the union and the county are still discussing how to handle the 26 union members who work part of the time in the Women’s Unit and the rest of the time in the main jail. Under the contract, union members bid for specific posts, and the arbitration award contained no provisions for splitting bids between two units.

Problems for Split-Post COs

“We have to figure out what to do with their bids,” Mr. Pine said. The arbitration decision, he said, had created problems for those 26 union members who work split posts.

Mr. West said agreements already exist that allow members to work in assignments other than the post they bid on, such as training and special-tactics teams. He also noted that the prison ward at Westchester Medical Center is a separate unit like the Women’s Jail. Officers in the prison ward who work in both the jail and the ward are allowed to bid for two assignments, one in each place, and divide their vacation picks between the two assignments, he said.

“They don’t want to make those exceptions in this situation,” Mr. West said of DOC officials. He said he hopes the arbitrator can clarify the issues, because going to court will only create delays.

Mr. Pine said the county has no plans to delay the Women’s Unit decision. Mr. West said the bidding issue was the only sticking point resulting from the ruling.

THE CHIEF – Isaacs, Devasia, Castro & Wien LLP Attorney Mercedes Maldonado Featured in the Chief-Leader for Major Victory in Employment Case

Westchester Wrongly Denied CO Time Off, Arbitrator Decides
By Mark Toor

June 7, 2011 – The Westchester County Department of Correction must come up with a better system for ensuring that Correction Officers can take their time off, an arbitrator ruled last month.

The May 12 ruling by Dennis J. Campagna came in the case of Patrick Garrett, a member of the Westchester Correction Officers Benevolent Association who requested a day off during Memorial Day weekend in 2009. A Captain denied his request, noting that outside of those on vacation for the entire week, only one Correction Officer was allowed to take the day off and someone else had already signed up.

New Rule on Vacation Leave
The union charged that the county had violated the contract, which allows at least 8.33 percent of a unit’s workforce to take off at the same time. The contract calls for this rule to be followed in the case of personal leave or supplemental time off, said Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP, who represented the union. However, she said, it does not cover holiday or vacation leave.

“Correction work is one of the most stressful jobs out there,” Alonzo West, president of WCOBA, said in an interview. “People need their time off so they can come to work with a clear head and have some kind of normality in their lives.”

“You had people who couldn’t use their time under a contract that said time off was guaranteed if you had it,” he said. “We gave up things years ago to get these provisions in the contract.”

Until recently, Ms. Maldonado said, the county had followed the 8.33-percent rule for holiday and vacation leave, but then instituted its one-at-a-time rule for such leave. “This reduced the opportunity to take time off,” she said an interview. Under its own guidelines, the county could have had nine COs off, and when Mr. Garrett asked for a day it had only six taking off.

The union reasoned that because the contract required that holiday time be used before the end of the next calendar quarter, the county was obligated to make all efforts to allow an employee to use that time.

The county responded that staffing was a management prerogative and that no one would lose a day off, since COs who do not use their accrued time by the end of the quarter are paid for it in cash.

Must Make ‘Reasonable Efforts’
The arbitrator agreed with the union’s contention that the county must do everything it can to ensure that COs can use their time off. Mr. Campagna also found that “there is no logical reason” why the county should deny a CO’s request for the day off when the maximum number allowed off had not been reached.

The decision ordered the county to stop denying days off when that maximum was not reached, and to make “reasonable efforts” to ensure holidays or time off outside of a full week could be taken.

“It balances the interests involved,” Ms. Maldonado said, meaning both the county’s desire not to go below minimum staffing and the union’s desire that members can take time off.

“We’re still reviewing the decision and drafting a memorandum as to how it would be implemented,” said Justin Pine of the Westchester Department of Correction.

Mr. West said the time-off dispute was further evidence that the Correction Department “doesn’t want to honor the collective-bargaining agreement. What they can’t take away in contract negotiations, they try to litigate away or legislate away.”

Westchester Wrongly Denied CO Time Off, Arbitrator Decides

By Mark Toor


June 7, 2011 – The Westchester County Department of Correction must come up with a better system for ensuring that Correction Officers can take their time off, an arbitrator ruled last month.

The May 12 ruling by Dennis J. Campagna came in the case of Patrick Garrett, a member of the Westchester Correction Officers Benevolent Association who requested a day off during Memorial Day weekend in 2009. A Captain denied his request, noting that outside of those on vacation for the entire week, only one Correction Officer was allowed to take the day off and someone else had already signed up.

New Rule on Vacation Leave
The union charged that the county had violated the contract, which allows at least 8.33 percent of a unit’s workforce to take off at the same time. The contract calls for this rule to be followed in the case of personal leave or supplemental time off, said Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP, who represented the union. However, she said, it does not cover holiday or vacation leave.

“Correction work is one of the most stressful jobs out there,” Alonzo West, president of WCOBA, said in an interview. “People need their time off so they can come to work with a clear head and have some kind of normality in their lives.”

“You had people who couldn’t use their time under a contract that said time off was guaranteed if you had it,” he said. “We gave up things years ago to get these provisions in the contract.”

Until recently, Ms. Maldonado said, the county had followed the 8.33-percent rule for holiday and vacation leave, but then instituted its one-at-a-time rule for such leave. “This reduced the opportunity to take time off,” she said an interview. Under its own guidelines, the county could have had nine COs off, and when Mr. Garrett asked for a day it had only six taking off.

The union reasoned that because the contract required that holiday time be used before the end of the next calendar quarter, the county was obligated to make all efforts to allow an employee to use that time.

The county responded that staffing was a management prerogative and that no one would lose a day off, since COs who do not use their accrued time by the end of the quarter are paid for it in cash.

Must Make ‘Reasonable Efforts’
The arbitrator agreed with the union’s contention that the county must do everything it can to ensure that COs can use their time off. Mr. Campagna also found that “there is no logical reason” why the county should deny a CO’s request for the day off when the maximum number allowed off had not been reached.

The decision ordered the county to stop denying days off when that maximum was not reached, and to make “reasonable efforts” to ensure holidays or time off outside of a full week could be taken.

“It balances the interests involved,” Ms. Maldonado said, meaning both the county’s desire not to go below minimum staffing and the union’s desire that members can take time off.

“We’re still reviewing the decision and drafting a memorandum as to how it would be implemented,” said Justin Pine of the Westchester Department of Correction.

Mr. West said the time-off dispute was further evidence that the Correction Department “doesn’t want to honor the collective-bargaining agreement. What they can’t take away in contract negotiations, they try to litigate away or legislate away.”

DAILY NEWS – Isaacs, Devasia, Castro & Wien LLP Attorney Mathew Paulose Featured in the Daily News

Manhattan mom sues preschool for damaging 4y/o daughter’s Ivy League Chance
By Jose Martinez

March 15, 2011 – A Manhattan mom is suing a pricey preschool for dumping her “very smart” 4-year-old with tykes half her age and boring her with lessons about shapes and colors.

In court papers, Nicole Imprescia suggests York Avenue Preschool jeopardized little Lucia’s chances of getting into an elite private school or, one day, the Ivy League.

She’s demanding a refund of the $19,000 tuition and class-action status for other toddlers who weren’t properly prepped for the standardized test that can mean the difference between Dalton and – gasp! – public school.

“This is about a theft where a business advertises as one thing and is actually another,” said Mathew Paulose, a lawyer for the outraged mom.

“They’re nabbing $19,000 and making a run for it.”

Impressed by the school’s pledge to ready its young students for the ERB – a test used for admission at top private schools – Imprescia enrolled her daughter at York in 2009.

A month into this school year, she transferred the child out of the Upper East Side center because she was forced to slum with 2-year-olds.

“Indeed, the school proved not to be a school at all, but just one big playroom,” the suit says.

The court papers implied the school could have damaged Lucia’s chances of getting into a top college, citing an article that identifies preschools as the first step to “the Ivy League.”

Fortunately, Imprescia’s lawyer said, the tot’s prospects aren’t doomed.

“Lucia Imprescia, for the record, will get into an Ivy League school – York Avenue Preschool notwithstanding,” said Paulose, of the firm Koehler & Isaacs.

“The child is very smart and will do well in life.”

York’s owner, Michael Branciforte, declined comment on the suit, but his lawyer said the school has a “great reputation, which is richly deserved.”

“They’ve never had a problem like this and they only hope the child has found a school that better suits her needs,” lawyer William Wachtel said.

On its website, York touts its music and physical education programs, weekly library trips, and French classes for four-year-olds.

The York Avenue Preschool Curriculum is designed for the specific age group: “Twos, Threes or Fours,” the site boasts.

Imprescia called that a “complete fraud.”

“They put a bunch of kids of different ages together and gave her some excuse about construction,” Paulose said.

At the York Ave. campus, where many kids were being picked up by nannies pushing luxury strollers, parents were wary of speaking with a reporter yesterday, saying it could endanger their kids’ slots.

But the mother of one 3-year said she’s had nothing but good experiences.

“She’s been happy. We’ve been happy,” the mom said.

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