Anatomy of a Traffic Stop
By Frank Parlato
Sometimes things get interesting not because of the importance of events, but the curious nature of the conflict between the people involved.
Take the case of Town of Niagara Police officer, Russell DeFranco and Town of Niagara resident, Michael Joseph Bergey II.
If ever two men agreed on the words that were spoken, and disagreed on the context or the tone of those words, it is these two.
The result is of this disagreement was the arrest of one, and the allegation of improper police behavior for the other.
It may take a jury to decide.
It was on the early afternoon of Halloween, October 31, 2013, when Bergey, 34, of Isherwood Dr., drove from the North Tonawanda home of his friend, Elena Panysuk in a 2000 white Chevy pickup truck.
On the doors of the Chevy truck were magnet signs advertising Empire Floors and Construction, a company Bergey owns. The bed of the truck was loaded with various items.
When Bergey pulled into the Military Road parking lot of the Niagara Square Plaza to the Key Bank drive through window, he was being watched.
"I observed (the pickup enter) into the parking lot from roadway with insecure load in back of pickup loaded three feet above the side walls of pickup bed," Officer DeFranco said. "The equipment was hanging outside of the truck with nothing tied down."
According to Bergey, the load was Panysuk's household possessions.
"He was moving stuff for me," Panysuk said. "The night before we were at my house because it was closing the next day. We picked up garden tools, a wheelbarrow, garden hoses, some flower pots and miscellaneous, regular utility shed material."
DeFranco pulled Bergey over in the parking lot.
He got out of his patrol car and came up to Bergey's window and explained to him that he had an unsafe load.
Bergey claims he told the officer he would "promptly adjust it if it pleased him."
DeFranco, who once owned an insurance business, explained to Bergey that "he was using passenger or private insurance to conduct commercial business... All the equipment in the back of the vehicle would indicate that he was doing commercial work. He's got contractor work tools... It was totality of circumstances, not just putting a magnet sign on the side."
Bergey explained he was moving a friend.
"He kept asking me, 'Why am I conducting commercial business out of this vehicle? It was almost like he wanted me to get upset. Then he would ask, 'are you cooperating with me? What I would say is, 'yes, I am cooperating with you.'"
DeFranco asked for his license and registration.
"I handed him these in two steps so his camera should reflect me immediately obeying his commands," Bergey said.
According to DeFranco, Bergey's demeanor was anything but polite. Bergey "started going off on me unprovoked. ...I told him you need to settle down,"
After receiving the license and registration, DeFranco said he "called dispatch and (there was a) 'caution from past reports' and the hazards tie into the system and notifies dispatch of previous encounters."
Bergey had problems in the past.
As Bergey tells it, back in 2006-07, he was arrested and convicted for two DUIs and an obstruction of justice charge, where he admits he struck a Village of Lewiston police officer, while, allegedly, defending himself from a brutal police attack, and, once again, for theft of services from National Grid in Niagara Falls where he lived. He spent two months in the Niagara County jail for striking the officer.
Bergey admits that during this period of his life he was using drugs, which he says he has quit ever since. Since that troubled time, he started a home improvement business and bought his own house on Isherwood Drive. He also bought 10 "dilapidated residential properties" and renovated them.
According to his resume, he can install and repair furnace and boiler systems, do electrical, plumbing, carpentry, siding, roofing, framing, drywall, pipe fitting and flooring.
He is not, he claims, the man who once punched a cop.
After hearing from dispatch, DeFranco walked around the truck and took photos on his phone.
According to Bergey, DeFranco asked again, "Why are you doing commercial work in a vehicle with passenger plates?"
Bergey said he responded, "I am not doing commercial work, sir." DeFranco pointed to the magnets on the vehicle that say Empire Floors.
Bergey said the magnet on the side of the truck was advertising. Then, according to Bergey, DeFranco called dispatch and asked for a tow truck.
Bergey realized he might be getting arrested.
Bergey claims, "I looked at him and said, 'What are you gonna do, arrest me?' And (DeFranco) said, 'Yes, yes I am, what are you gonna do about it? Are you being uncooperative?' I said, 'No I am doing everything you say. You asked me for license and registration and I gave it right to you. You asked me about commercial work and I answered your question. I'm doing everything you say. Is it really necessary to tow my car though?' He said 'yes, because you're going to jail' and made mention of my past history of arrest."
In his supporting deposition, DeFranco swore, under penalty of perjury, that Bergey was not polite at all, but angry and uncooperative and said in a "very angry and aggressive attitude towards (DeFranco). 'Write me as many tickets as you want... What are you going to do arrest me? Then arrest me.'"
"The defendants actions caused alarm to writer,' DeFranco wrote in his complaint against Bergey. He called for assistance via police radio.
Bergey said he was upset, but not angry. "He was not saying what I said in context. What I said to (DeFranco) was 'go ahead and arrest me. I'm not being difficult.' I was trying to express to him that 'yes, I am cooperating with you. I'm not going to resist arrest or try to argue with you.' He puts it in the report that it was 'arrest me, please.'
"I know what it takes to be a smart ass and get arrested," Bergey continued. "I was not trying to go down that road. Honestly, on my mother's grave, I did nothing. I was cooperative as anybody could possibly be."
For his part, DeFranco told the Reporter that the last thing he wanted to do was arrest Bergey. DeFranco said he writes about 60 tickets a month, and since he is assigned exclusively to traffic enforcement, he said it is a rare event for him to arrest anyone and bring them to jail.
"It takes an hour and a half of paperwork," DeFranco said. "There are a lot more productive things I can do. It is not something I intended or wanted to do."
"The defendants actions interfered with the writer's roadside investigation exposing him to the dangers of passing motor vehicle traffic unnecessarily," DeFranco wrote explaining the reason for the arrest.
DeFranco, since 2010, works part time as a Town of Niagara police officer. He was, prior to that, a 20 year veteran with the Niagara Falls Police Department, where he also worked in traffic.
He was also once owner of the Allstate Insurance agency on Niagara Falls Boulevard in Wheatfield.
As Bergey was waiting to be arrested, Panysuk, not knowing what was going on, texted Bergey about the location of certain boxes. While waiting in the car.
Bergey texted her: "I'm getting arrested right now. Got pulled over and the cop is being a prick."
Se texted back: "Well calm down. Don't be a hard ass. R U ok?"
He does not respond. By that time back up arrived.
It was the Chief of Police, James Suitor, who was near the scene at the time.
DeFranco ordered Bergey to get out of the truck and leave his cell phone in the car.
While Suitor did not witness the previous behavior, he watched Bergey get out of the pickup truck.
"I got the sense that Mr. Bergey was aggravated when he stepped out of the truck," Suitor said. "I thought it was an uneventful arrest. There was no use of force by the police department, he complied, and was placed in the police car and taken off for processing."
"I did as (DeFranco) asked and he handcuffed and frisked me," Bergey said, "I asked him why he was arresting me, and he said, 'because you weren't being cooperative with me' and I told him I was sorry for whatever I did and he said, 'it's too late now.' I said, 'well, not really, that's entirely up to you, and he said 'get in the car and watch your head.'"
At the station, Bergey was chained to a bench.
"An hour and a half past while I was handcuffed to the bench," Bergey said. "During that time, I observed (DeFranco) paging through a motor vehicle violation booklet as if he were searching for violations he could charge me with after the initial arrest...I asked for a phone call and he said in a little bit. Then when he finally allowed me a phone call, he said, if I could not be bailed out in 15 minutes or less he was going to take me out to Lockport holding center because he was leaving and there wasn't going to be any other officers to watch me. I called Elena."
Panysuk said she got Bergey's call, "Mike told me I had to get there in 15 minutes or he was going to have to go to county jail. Fortunately, I made it just in time."
Before Bergey left police custody, even though Bergey had produced insurance and a registration for the Chevy truck, DeFranco issued tickets for Operating without insurance, and Unregistered Motor Vehicle, as well No Safety Chain.
DeFranco said, "The vehicle was registered and insured as a private passenger vehicle while signage indicating commercial activity was posted on three sides of the vehicle stating 'Empire Floors & Construction."
Before Bergey left, there was one more charge: Obstructing governmental administration in the second degree.
According to New York penal law, section 195.05, "a person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law ... by means of intimidation, physical force or interference, or by means of any independently unlawful act..."
The maximum sentence for this Class A misdemeanor offense is imprisonment for one year.
Bergey posted $250 bail and paid a towing and impound fee of $151.
Bergey is ordered to appear before Judge John P/ Teixeira town justice on 11/21 at 6 p.m.
Bergey's lawyers, of the law firm of Roscetti and DeCastro, made a written request for police to preserve any videos that may exist.
"There no video of this stop," Town of Niagara Chief of Police James Suitor told the Reporter. Suitor explained that the town's patrol cars are not equipped with video although town patrol cars soon will have video monitoring.
Funding was approved recently by the town board.
But for Bergey and DeFranco, it will be one man's word against the other. Two men basically saying the same thing, but ascribing entirely different demeanor, intention, motives.
It is a curious conflict. One man faces the possible deprivation of his liberty. The other, the possible besmirching of reputation.
The appearance in this case of high profile attorney like James Roscetti insures this matter will not be treated lightly.
A jury of regular citizens, in the end, may have to decide, judging of both men, not as they appeared in the day of conflict, but now, how they appear, in the cool light of time and truth, on the witness stand.
|Niagara Falls Reporter - Publisher Frank Parlato Jr.||www.niagarafallsreporter.com||
Nov 12, 2013