Transit officer Kevin Maloney took the stand Monday in the assault trial of officers accused of sodomizing Michael Mineo in a Brooklyn subway station, saying he witnessed the attack occurring.
Maloney said he saw New York City Police Department Officer Richard Kern stick his police baton into Mineo's butt crack at the Prospect Park subway station.
The retractable baton was also entered into evidence Monday.
It was closed during the alleged incident.
On the stand, Maloney testified that he was working in the subway station in October 2008 when he saw two uniformed police officers chasing a suspect, identified as Mineo, and that he then helped in that chase.
He testified that when Mineo was handcuffed, face down, his pants fell down below his buttocks. He said he then saw Kern take his baton in his right hand and press it against Mineo's buttocks and then move it left to right and sticking it in.
The transit officer testified that a half an inch to an inch was inserted.
"He didn't have three or four jabbings. And a half an inch, half an inch is next to nothing. And that disappears into his underwear. Now that's not sufficient I submit to you that you cause an injury of any kind to Mr. Mineo," said Kern's attorney, John Patton.
He said his reaction was to get Mineo back on his feet. And once he was standing, Maloney said he heard Mineo say "why did you stick a Walkie-Talkie up there?"
Moreover, Maloney testified that he saw blood on Mineo's hands when he was in the patrol car.
"[My client] acted pursuant to his duties," said Maloney's attorney Paul Martin. "There were questions regarding whether he should have notified a supervisor in light of the injuries but at the time he made the observation, there was no reason to believe that Mr. Mineo was suffering from anything other than being arrested. And it wasn't until subsequent that he found out about the investigation that he came forward."
Maloney said he came forward because as he was hearing that the investigation was centering around the wrong officer, Alex Cruz, instead of Officer Kern.
"Officer Cruz was never in a position to make any observations. There was no testimony that he was facing the cuffing process when it was going on," said Cruz' lawyer, Stuart London.
Kern is facing aggravated sexual abuse and assault charges. He faces up to 25 years in jail if convicted.
Officers Cruz and Andrew Morales face reckless endangerment and hindering prosecution charges.