Lawyers say Spellman’s beer should be canned

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Lawyers battled for more than a week over whether beer cans can be excluded from evidence in the trial of former NYPD detective Kevin Spellman, who is accused of striking and killing 66-year-old Kingsbridge resident Drane Nikac with his car while driving drunk on Oct. 30, 2009.

Police allegedly found beer cans beneath the back seat of Mr. Spellman’s government-issued Chevy sedan. But Peter Brill, Mr. Spellman’s defense attorney, argued the cans should not be allowed as evidence because they were discovered through an illegal search. 

The prosecution argued that the can was in plain sight, which triggered the legal search without a warrant.

First to testify was Sgt. Brian Lopez of the 50th Precinct, who said Mr. Spellman appeared intoxicated and mistook the woman he hit with his car for a man.

Sgt. Lopez said that when he approached Mr. Spellman immediately following the accident, the then off-duty officer said, “Hey Sarge, I didn’t see that dude. He came out of nowhere.” He later slightly changed the wording of his statement. 

Det. Carlos Pantoja, who was a member of the crime scene unit that investigated the interior of Mr. Spellman’s car after it was towed to the Internal Affairs Bureau garage at 3820 Broadway in upper Manhattan, testified that the beer can in question was visible to the public when he first saw Mr. Spellman’s car. 

“We were told at that time, that there was no search warrant needed,” he said. 

When Mr. Brill asked Det. Pantoja, who ordered him to search the car, he said it was his supervisor.

“We have no idea why they think they had the authority to do that,” said Mr. Brill after the Sept. 25 hearing. “You would think that you have an expectation of privacy in the car that you drive.”

Lawyers asked a slew of other witnesses to appear throughout the week, including Lt. Mercedes Fabregas, Deputy Inspector Brandon del Pozo, commander of the 50th Precinct when the incident occurred, and Lt. Leonard Servedio.

Lt. Fabregas, who worked for Internal Affairs in October 2009, testified that she was summoned to the scene of the accident and that she noticed a lot of items when she looked inside the car, but that “in particular, there were two cans of beer.”

Both Lt. Fabregas and Deputy Inspector Del Pozo testified that efforts were made to secure the car after the beer cans were observed.

“I made an effort to exclude anybody from the crime scene who was not part of the investigation,” said Deputy Inspector Del Pozo. 

He said he had to ask police officers who had arrived at the site between West 232nd and West 233rd streets out of concern for Mr. Spellman and Ms. Nikac, to stand aside, because he wanted to maintain the integrity of the crime scene. He testified that Mr. Spellman’s fellow officers kept insisting they be allowed to remove Mr. Spellman’s firearms from the car.

Lt. Servedio led the NYPD Regional Fugitive Task Force to which Mr. Spellman had been assigned before his vehicular mishap. Because Mr. Spellman was driving a car that belonged to the U.S. Marshals, he was required to abide by a set of guidelines that Lt. Servedio testified included not possessing or being under the influence of alcohol while in the vehicle, as well as not using the vehicle for personal use — rules prosecutors argue Mr. Spellman broke.

Judge Steven Barrett is slated to announce his decision regarding what evidence will be allowed into trial on Wednesday, the day he will also announce when jury selection for Mr. Spellman’s trial will begin. 

If Mr. Spellman is convicted of his most serious charge — aggravated vehicular homicide — he faces up to 25 years in prison.

The family of Ms. Nikac, whose members have been present at every one of Mr. Spellman’s hearings thus far, are relieved the wheels of justice are finally in motion. The end of October will mark the third anniversary of their relative’s death and they are hoping for closure, said Lora Juncaj, Ms. Nikac’s granddaughter, who feels Mr. Spellman is receiving special treatment because he used to be a member of the service. 

“If it were me, I’d be sitting in jail right now,” she said.

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