NEW YORK _ A police officer testifying Tuesday in Officer Daniel Pantaleo's departmental trial claimed he could see Eric Garner selling loose cigarettes from more than 300 feet away _ and that after Garner died he processed arrest paperwork charging him with a tax law felony that applies to those in possession at least 10,000 cigarettes, 22,000 cigars or more than 400 pounds of tobacco.
Garner was carrying four sealed packs of untaxed Newports plus a fifth pack that had been opened and had 15 cigarettes in it.
Ultimately, misdemeanor charges were filed against Garner _ apparently with no one ever voiding the arrest by Officer Justin Damico, he testified.
Garner's mother, Gwenn Carr, was enraged.
"Is there a worse word than despicable?" Carr said outside One Police Plaza afterward. "How do you arrest a dead man?"
Damico's testimony capped the fifth day in Pantaleo's trial _ which is now on hold until June 5 because the St. Louis pathologist who will testify that Pantaleo did not use a banned chokehold on Garner, as he has been accused of doing, is not available until then.
The supporters who have attended the trial with Carr called it a delay tactic _ nearly five years after activists called for Mayor Bill de Blasio to have Police Commissioner James O'Neill move to fire Pantaleo.
"No matter what comes out of this hearing," said the Rev. Calvin Butts, the influential pastor of Harlem's Abyssinian Baptist Church, "justice has been denied because it has been delayed."
The first witness Tuesday, Officer William Meems, testified that after driving Sgt. Kizzy Adonis to the scene _ Bay Street in Staten Island _ he was the one who determined Garner still had a pulse after he was handcuffed. Adonis faces her own departmental trial for failure to supervise.
And he agreed when Suzanne O'Hare, the lead prosecutor for the Civilian Complaint Review Board, which is trying Pantaleo, asked if thought was possible Garner was "feigning consciousness" when he collapsed and was struggling to breathe.
"At one point, yes, they tried to stand him up" Meems said. "I never observed his eyes roll in his head.
"Yes, I believe it was a possibility he was feigning unconsciousness."
Damico said much the same thing when he answered with a simple "Yes" when O'Hare asked if he suspected Garner was "playing possum."
Damico also testified that after he and Pantaleo were sent to Bay Street on July 17, 2014, to investigate if any quality of life offenses were being committed he saw Garner selling cigarettes to someone he described as 100 to 200 feet away.
But O'Hare told Damico, who was wearing his glasses that day but did not have binoculars, that the distance was actually 328 feet. Damico did not appear to react to the discrepancy in his estimate, but he raised eyebrows a short time later when, while viewing a photo of Garner being grabbed from behind before hitting the ground, said Pantaleo had his arm not around the 395-pound Garner's neck but "around his body."
"Oh, come on," Eric Garner's widow, Esaw Garner, sitting in a motorized wheelchair, said loud enough to be heard by everyone in the packed courtroom at One Police Plaza.
At that point, one of Pantaleo's lawyers. John Tynan, moved for her to be removed from the trial room _ a request shot down by NYPD Judge Rosemarie Maldonado.
Pantaleo is standing trial attempted reckless assault and strangulation for using a banned chokehold maneuver on Garner. Garner insisted he had just broken up a fight and told police that they were harassing him.
As he tried to avoid arrest, Pantaleo used a chokehold that triggered an asthmatic attack. Garner's pained gasps for air _ he yelled "I can't breathe" 11 times _ were captured on video and helped fuel the nationwide Black Lives Matter movement. The city medical examiner said Garner died of a chokehold and chest compressions and that Garner's obesity and poor health were contributing factors.
A Staten Island grand jury refused to indict Pantaleo and the Department of Justice has functionally dropped its civil rights investigation.
Garner had a history of selling "loosies," with even Ramsey Orta, whose smartphone video thrust Garner's death into the headlines, testifying that he had bought cigarettes from him.
Two weeks prior to Garner's death, Damico testified, he saw Garner selling loosies but decided to let him go with a warning.
"He was irate and yelling at me," Damico said during direct examination by Tynan. "I tried to calm him down and said that I wasn't going to arrest him. I issued him a warning. I was new to the area. I felt it was necessary and the right thing to do.
"I let him know I'll be around the area and to do it someplace else."
