Cop testifies he inflated charge against Eric Garner

NEW YORK (AP) - After Eric Garner died following a confrontation with New York City police five years ago, one officer involved in the struggle wrote up paperwork that exaggerated the seriousness of the dead man's suspected crime, according to testimony Tuesday.

Officer Justin Damico testified that after riding in an ambulance with the dying Garner, he went ahead on his own and filled out arrest papers listing a felony tax charge that would have required prosecutors to prove Garner, a small-time street hustler, had sold 10,000 untaxed cigarettes.

Damico spoke at the police department disciplinary trial for Daniel Pantaleo, the officer accused of placing Garner in a banned chokehold as they attempted to arrest him for selling loose, untaxed cigarettes near a Staten Island park in July 2014.

"You initiated this on your own, writing up the arrest of a dead man?" asked Suzanne O'Hare, a lawyer for the police watchdog agency bringing the disciplinary case.

Damico acknowledged that the felony charge was incorrect because Garner actually had with him five packs of Newports that contained a total of fewer than 100 cigarettes. The cigarettes were marked for sale in Virginia, a telltale sign that they were being resold illegally in New York.

Garner was ultimately charged with two misdemeanors, which alleged that he resisted arrest and sold untaxed cigarettes. The case was not prosecuted because Garner died.

The confrontation with Garner was partially caught on a bystander's cellphone video, ending with Pantaleo grabbing Garner and pulling him to the ground. Garner's dying pleas of "I can't breathe" became a rallying cry against police brutality.

Pantaleo, 33, denies wrongdoing. He has been on desk duty since Garner's death.

Testifying for more than an hour Tuesday, Damico told a nearly full hearing room at police headquarters that he'd given an agitated Garner a warning two weeks before the confrontation.

Damico said he and Pantaleo allowed Garner to vent for about 10 minutes before moving to arrest him because they were reluctant to use physical force.

And he testified that he did see Pantaleo's arm around Garner's neck as the two men struggled — but he didn't say if he thought the move was a chokehold.

Until Tuesday, Damico had never spoken publicly about the case.

Damico testified that he and Pantaleo tried to be patient as Garner screamed that he was tired of continually being harassed by police. They stayed calm even as Garner swatted Damico's hands away and refused to be arrested.

Damico and Pantaleo "utilized textbook de-escalation techniques to limit the use of force against a much larger and irate individual," said Pat Lynch, the president of the union representing officers, the Police Benevolent Association.

"We are convinced that if the politics of the streets are removed from this process and the case is decided on a dispassionate hearing of the facts, that Police Officer Pantaleo will be exonerated," Lynch said.

The NYPD's disciplinary process plays out like a trial in front of an administrative judge.

Normally the purpose is to determine whether an officer violated department rules, but that's only if disciplinary charges are filed within 18 months of an incident.

Because Pantaleo's case languished, the watchdog Civilian Complaint Review Board must show that his actions rose to the level of criminal conduct, even though he faces no criminal charges and is being tried in a department tribunal, not a criminal court.

The final decision on any punishment lies with the police commissioner. Penalties range from the loss of vacation days to firing.

The disciplinary hearing is scheduled to resume June 5.

Pantaleo's lawyers say they will call a medical examiner from St. Louis to rebut the New York medical examiner's finding that a chokehold set into motion "a lethal sequence of events" for Garner.

Garner's family said it's tired of the delays.