Depew officials are citing two investigations of State Supreme Court Justice John L. Michalski as reasons for the village refusing a Buffalo News appeal to release videos of him being struck by a freight train on Feb. 28.
A portion of one of the videos shows the judge approaching the train. This video was aired Monday by WIVB-TV after it obtained a copy of it from the man who shot it on his cellphone.
Depew Village Attorney Samuel A. Alba said Tuesday that Michalski, who survived, is the subject of two ongoing investigations. He declined to disclose who is investigating Michalski but said he believes the investigations are not criminal.
Alba said that the investigations and state privacy laws prohibit the village from releasing the videos to the public. He declined to further explain the justifications, but said the reasoning for the decision would be released later this week.
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The Buffalo News had filed a Freedom of Information Law request for the videos.
The state Freedom of Information Law allows government agencies to withhold records that are compiled for law enforcement purposes and which, if disclosed, would interfere with law enforcement investigations or judicial proceedings.
Erie County District Attorney John Flynn has said no criminal charges can be brought related to the train incident because no crime was committed. He made that determination after his office reviewed video from the incident.
The Buffalo News has reported that about a week before Michalski was struck by the freight train, federal agents contacted the judge to question him about his relationship with Peter G. Gerace Jr., a Cheektowaga strip club owner who has been indicted on charges of bribing a DEA agent, sex trafficking and narcotics trafficking.
Last week, The News reported that the New York State Commission on Judicial Conduct was investigating allegations that Michalski received $5,000 from Gerace, the owner of Pharaoh's Gentlemen's Club, for officiating at his wedding to Katrina Nigro in 2014, according to two sources. Under state law, judges are not allowed to receive more than $100 for performing marriages. Nigro told The News that she saw Gerace give Michalski an envelope containing the cash the day after the wedding. Gerace denied paying $5,000 to the judge for performing the ceremony.
Nigro also told The News she has testified before a federal grand jury investigating organized crime in Buffalo.
The News had appealed Depew's decision to deny the release of any videos or images Depew Police had from the investigation of the train incident. The village released only a highly redacted police report confirming Michalski was struck by a slow moving CSX freight train at 11:43 a.m. near the Amtrak Station in Depew.
“Since our initial disclosure, we have become aware of two ongoing investigations and to the best of my knowledge, neither are criminal investigations,” Alba said. “There is also a personal privacy exemption.”
WIVB airs video
Alba’s decision comes one day after WIVB aired a portion of a video showing the judge approaching the freight train. The video was shot by a train enthusiast who provided Depew Police with a copy of the video.
In describing the incident, the enthusiast, Alex, whose last name was withheld by WIVB, said it happened over 10 seconds.
“I thought he might have been a rail fan like us, but I had a little bit of concern when he walked out onto the tracks and when he lay on the tracks, I was like, ‘oh, no, this isn’t good,’ ” Alex told the television station.
His video showed the 60-year-old judge jogging across sets of train tracks and, according to Alex, lying on his stomach as the train approaches.
His video was one of two that recorded the incident. The second was from a camera on the engine of the freight train, according to the police report, which listed the incident as a pedestrian struck by a train.
Michalski out of hospital
The judge suffered a serious leg injury and was hospitalized at Erie County Medical Center but has since been released.
“Our information is that he has been released from the hospital and continues his convalescence,” Lucian Chalfen, a state court system spokesman, said Tuesday. “His case inventory is currently being handled by other judges.”
Gerace, 53, was arrested hours after the train hit Michalski and charged with bribing U.S Drug Enforcement Administration Agent Joseph Bongiovanni, sex trafficking and narcotics trafficking. Bongiovanni, who is now retired, is charged with accepting $250,000 in bribes to protect drug dealers with ties to organized crime.
Gerace is the nephew of Joseph A. Todaro, whom prosecutors and federal agents say runs the Buffalo mafia. Todaro has described that claim as “nonsense.” Gerace has also denied any connection to organized crime. He and Bongiovanni have pleaded not guilty.
