By Steven Cook
NISKAYUNA — A Schenectady man is claiming Niskayuna police used excessive force — breaking his arm in three places — when they arrested him on drunken driving-related charges a year ago.
Erick Rosenberg, 43, of State Street, alleges in a notice of claim filed with the town that officers pulled him from his car through the driver’s side window without allowing him to exit through the door, even as he complied with their directions.
Rosenberg’s attorney, Kevin Luibrand, called the injury one of the worst he’s seen.
“He was compliant from the moment he stopped his car,” Luibrand said.
Rosenberg’s notice of claim was referenced this week during a court appearance related to the subsequent criminal case. He originally filed the notice in August through his criminal defense attorney, Thomas O’Malley.
Niskayuna Town Supervisor Joe Landry declined to comment on the case Wednesday.
Rosenberg was charged after the May 30, 2016, incident with felony driving while intoxicated, two counts of felony assault on an officer, resisting arrest and unlawfully fleeing an officer. The assault counts were dismissed after a defense motion, according to the prosecutor in the case.
Rosenberg pleaded guilty to the felony DWI count earlier this year in exchange for a sentence of up to six months in jail. The drunken driving count was a felony, due to his 2011 DWI conviction, also after a Niskayuna arrest.
Rosenberg was to be sentenced this week, but the proceedings were delayed. During the court appearance, though, O’Malley disputed a police account included in a pre-sentence report, citing the ongoing civil proceedings.
A police in-car camera captured the arrest on video, attorneys said. Luibrand said Wednesday he couldn’t release the video. Prosecutors in the criminal case also said they couldn’t release it, citing Rosenberg’s pending sentencing.
The notice of claim is the precursor to a possible lawsuit. A required hearing was held last week, and Rosenberg’s attorneys now must decide what to do next.
According to court documents, Rosenberg was driving home with a friend that evening when he heard sirens behind him and realized they were for him. He continued a block to his home.
He felt secure there because he had been stopped by police in the 2011 case, and police used a Taser on him then, O’Malley wrote. Rosenberg pleaded guilty in that case to DWI and obstructing governmental administration, for which he received 60 days in jail and probation, according to court documents.
Rosenberg tried to get out of his car with his arms up and noticed officers with guns drawn, O’Malley wrote. When told to get back in his car, he did. The officers then told him to roll down his window and stick his arms out.
Officers Jeff Relation and Nicholas Pardi then grabbed him by the arms and dragged him out the window, all while Rosenberg’s passenger and friend screamed to officers that Rosenberg had a bad arm due to a childhood accident, O’Malley wrote.
“Defendant at NO TIME offered ANY RESISTANCE to the arresting officers,” O’Malley wrote in the October criminal defense filing. “There was absolutely no need for officers to drag defendant through the open window. They could have easily instructed him to keep his arms through the window while they opened the door for him to get out.”
O’Malley alleged the officers were upset that Rosenberg hadn’t pulled over immediately and made him pay for it, O’Malley wrote.
In a February filing by the criminal prosecutor, Nicolaus Brooks-McDonald, ahead of what was to be Rosenberg’s trial, the prosecutor wrote that officers first spotted Rosenberg because of a license plate reader alert. The alert indicated Rosenberg’s registration was suspended or revoked, leading to the attempted traffic stop.
Rosenberg then “fled the officers and led them on a police chase,” the prosecutor wrote. When they caught up with him, the officers parked in such a way as to prevent Rosenberg from opening his door.
“They did this because they knew that the defendant had run from the police in the past and did not want to give him an opportunity to do so again,” Brooks-McDonald wrote. “The defendant was then forcefully taken out of his car, through his window and attempted to be placed under arrest and not allow the defendant to continue to evade police.”