Wednesday, October 21, 2015
TWO WEEKS TO GO
It is now time to take down our 911 Countdown Clock. With just two weeks to go the citizens of Troy now have access to the Gordon 911 call. If you recall, on July 16, 2015, Troy Police responded to a 911 call from the home of GOP mayoral candidate and District 1 Councilman Jim Gordon. The call was placed by the councilman's wife. Police responded and no arrests were made.
Gordon's response one day after the event was: "It was just an argument," said Gordon, a council member who represents the 1st District on the City Council. "It wasn't anything serious," Gordon said. Gordon said his wife called police, then regretted it. She could not be reached."
A copy of the recording can be heard here, in the Brendan Lyons story. We will leave it to the readers to decide if the recording comports with Mr. Gordon's version of events and what, if any, relevance it has for someone that seeks elective office. We asked Mr. Gordon to consent to the release of the tape. We felt that was the only way it would ever be heard. Unfortunately, Mr. Gordon did not seek to have the tape released. Someone took matters into their own hands.
This afternoon, the Gordon's met with District Attorney Joel Abelove. He referred them to the Sheriff's Office who, in turn, sent them to the Troy Police Department.
WAS A CRIME COMMITTED?
There are a number of questions that come to mind after reading the various articles. First, should Gordon have been charged with a crime? Specifically, Penal Law 135.05: Unlawful Imprisonment in the 2nd Degree.
1. The defendant restricted victim's movements in such manner as to interfere
substantially with his/ her liberty by moving him/ her from one place to another, or by confining him/her either in the place where the restriction commenced or in a place to which he/she had been moved;
2. That the defendant did so with out consent of the victim;
3. That the defendant did so intentionally; and
4. That the restriction of movements was unlawful, and the defendant knew that the restriction
A violation of this statute is a misdemeanor.
Just saying. Perhaps there is enough there for a charge.
The audio of the 911 call. Does it looks as if someone used the video feature of their phone with the phone placed up against a speaker to capture the audio? Just our surmise.
Third, when asked if there was any orders of protection filed, Mrs. Gordon replied, "Not at this time." Odd choice of words, that.
Where was the original recording? At the County? With the TPD? Did the Troy Police have a copy? Is it more likely that a county worker accessed the recording or a Troy police officer?
Why is Abelove sending the Gordon's to the Sheriff's Department and not the Troy Police? Telling, no?
WAS ANY OTHER CRIME COMMITTED? A HYPOTHETICAL*
Times Union reporter Brendan Lyons says he received the audio from a "democratic operative." Lyons is not revealing his source. However, lets use a hypothetical. Let us say a "democratic operative", we'll call him - lets see - we'll call him 'Tom', is sent the 911 recording. 'Tom' forwards the recording to Lyons. Has a crime been committed?
Possibly. The individual accessing the recording might be subject to Penal Law 156.05, Unauthorized Use of a Computer. The elements of that misdemeanor are as follows:
1. The defendant used, caused to be used, or accessed a computer, computer service, or
computer network without authorization; [and]
2. That the defendant did so knowingly; [and]
Add if applicable:
3. That the defendant did not have reasonable grounds to believe that he/she had authorization to use the computer.
It sure seems like the person that sent the recording to 'Tom" might have some worries. But, does 'Tom" have any worries?
Has 'Tom' committed a crime? The only possible crime is Penal Law (love saying that) 156.35, also known as Criminal Possession of Computer Related Material.
The elements of this Felony are:
1. The defendant having no right to do so, knowingly possessed in any form, any copy,
reproduction or duplicate of any computer data or computer program which was copied, reproduced or duplicated in violation of law; and
2. That the defendant did so with intent to benefit himself/herself or a person other than an owner thereof.
Damn, that sounds bad. Anybody find the problem? Well, what is possessed has to deprive the owner of a value or economic benefit in excess of $2,500 or, that which appropriated must be used to further a crime. If the 'benefit' portion of the crime was removed then technically, everyone who downloaded the recording would be violating the law. Including Brendan Lyons and the Times Union and anyone who posts the recording on facebook.
1. Was this fair game?
2. What, if any, impact will it have on the race?
3. Should we create another 911 Commission to study what happened and how to prevent it from happening in the future?
4. Was it a good move on Gordon's part to respond or should they have let the story alone?
Have at it!
*The law cited by the County, County Law 308(4), is not applicable to this situation. That law allows the County to withhold certain information when a FOIL request is made and can form the basis of an Article 78 petition if the requesting party believe the municipality violates FOIL.