New York Daily News

February 4, 2008 

PBA faces trial over drunk cop

BY JOHN MARZULLI
DAILY NEWS STAFF WRITER

The Patrolmen's Benevolent Association and two former delegates must stand trial on charges of obstructing the investigation of a drunken cop who mowed down four people, a judge has ruled.

Federal Judge Nina Gershon said a civil court jury will decide whether union delegates Louis Gallo and Michael Immitt engaged in a coverup to protect off-duty cop Joseph Gray after he killed the victims on Aug. 4, 2001.

"This trial is going to expose what the PBA does to protect officers from criminal and civil liability," said Alan Shapey, the lawyer for Victor Herrera, whose eight-months-pregnant wife, Maria, 23, died in the accident in Sunset Park, Brooklyn.

Their son, Anthony, 4; the child she was carrying, delivered by emergency c-section, and her sister, Delcia Pena, 16, also were killed.

Several years ago, the PBA was accused of obstructing the probe into the torture of immigrant Abner Louima at the 70th Precinct. The union settled the case for $1.6 million.

Shapey said the PBA had better be prepared to fork over "similar damages, if not more" in the pending case. Herrera and his mother-in-law received a $1.5 million payout from the city two years ago.

Shapey said the award might have been higher if the PBA had not succeeded in suppressing evidence of Gray's drunkenness.

The suit accuses Gallo and Immitt of counseling Gray not to take Breathalyzer and coordination tests after learning the confidential results of a field sobriety test.

A court-ordered blood sample taken four hours after the accident showed Gray had a 0.16 blood-alcohol level - twice the legal limit of 0.08.

Gallo also cut off questioning of Gray by a captain and was allowed to ride with him in a radio car to the stationhouse, the suit charges.

The PBA argued that Gallo and Immitt were not acting as cops or investigators but as union representatives.

"While this was an unfortunate and tragic incident, we don't believe there is any basis to hold the PBA liable for the act of an off-duty police officer in his private vehicle," PBA president Patrick Lynch said in a statement.

"The judge has decided that there are issues of fact that must be resolved, and the PBA will fight this case to its conclusion and through appeal, if necessary."

Gray admitted guzzling 13 beers in the stationhouse parking lot and at a strip bar before getting behind the wheel.

Gray was convicted of manslaughter and DWI and is serving five to 15 years. He is eligible for parole next year. Gallo and Immitt have retired.

jmarzulli@nydailynews.com