“It was more of a statement. ‘Hey, I got to go to the bathroom.’ ‘All right, go to the bathroom. Who’s stopping you?’ ‘I want a cigarette.’ ‘Sure. Have a cigarette.’ It wasn’t like I gave her permission to do it, no. If she wanted to do it, she was free to do it. I don’t think she was looking for my approval for that. She’s a grown woman; she needs to go to the bathroom, she goes to the bathroom. It wasn’t like I was stopping her from going to the bathroom. I wasn’t stopping her from having a cigarette.”
They talked about the friendship that had grown between Moscato and Angelika in the ten days after the incident and then went through the details of the time before Angelika went off alone with Investigator DeQuarto—mild topics, but still the tone remained contentious.
When Portale accused him and the other investigators of asking Angelika pointed questions, Moscato responded, “I wanted it in her own words. It wasn’t like an interrogation thing where we’re asking her questions. I wanted her to tell us so that we could better get the picture of what actually happened, so that we had a better idea of where we could concentrate our efforts in looking for Vincent Viafore’s body. Remember, at that time, we still had not found Vincent Viafore. So, that was one of our main concerns as law enforcement.”
“Did you just testify that it was not like an interrogation; is that what you said?”
“I don’t believe it was, not on my part. Now when—”
Portale interrupted, challenging Moscato’s depiction of the conversations on the island. They bantered through several questions and then Portale asked, “Do you recall asking Miss Graswald, ‘Angelika, what you are holding inside of you is burning a hole. If you don’t let it out, it’s gonna eat away at you from the inside out.’ Do you recall asking her that?”
“I may have said something to that effect, yes.’
“That’s exactly what you said to her, right?”
“I don’t know my exact words, but something to that effect, yes.”
“Because you didn’t believe what happened on the river was an accident, you thought she killed Vincent Viafore, true?”
“No,” Moscato said firmly. “The reason I said that to her was because of the way she was acting on the dock. She had a hard time telling me exactly where they docked the kayaks. So, she was holding back something. Did I know at that point that she, in your words, had murdered Vincent Viafore? No, I did not know that. But, obviously, something was bothering her. And I kind of sensed that. That’s why I said, ‘Hey, you got to let us know what is going on.’”
“Well, no, what you said was ‘what you’re holding inside is burning a hole in you’; is that right?”
“Okay. If that’s what I said, that’s what I said. You’re telling me that’s what I said, right?”
Portale asked several questions about Susan McCardell approaching to check in on Angelika and then said, “At no time upon Bannerman’s Island on April 29, 2015, did you ever advise Miss Graswald that she was not a suspect, true?”
“Can you just say that again, please?”
“I didn’t understand that either,” the judge added.
“At no time—”
“At no time. It was a double negative,” Moscato commented.
“Let him say it, please,” the judge said, trying to ease some of the tension in the courtroom. “Let’s all just take it in and hear the question.”
“Why don’t we phrase it in a different way, if that will help you,” Portale said.
“Thank you.”
“On April 29, 2015, on Bannerman’s Island, did you advise Miss Graswald that she was not a suspect?”
“I didn’t tell her that she was a suspect, no.”
“Did you tell her that she was not a suspect?”
“Did I say: ‘You are not a suspect’?”
Portale confirmed.
“No. I don’t think that subject came up. Again, I hate to harp on the last nine or ten days, but we had very similar conversations for the past nine or ten days. You know, up until the point where she started opening up to the three of us, and I decided it was best, in fairness to Angelika, to have her speak solely to one investigator, which was Investigator DeQuarto.”
The defense attorney turned the questioning to Angelika’s missing cell phone and beat on that topic for a while before switching back to her status as a suspect.
Moscato said, “She had the most information that we were trying to glean from her. To characterize her as a suspect, that’s going too far, in my opinion, at that point.”
“Was there someone else that you were focusing on?”
“No. Like you said, she was the one that was last seen with him. She had the most information that would be of interest to us in pursuing any viable leads in order for us to try to figure out where Vincent Viafore’s body could have either drifted to, drowned at, or got caught up on.”
“Without the statement that Miss Graswald allegedly made to Investigator DeQuarto, she wouldn’t have been placed under arrest at that time, correct?”
“Objection. Calls for speculation, Your Honor,” ADA Mohl said.
“Speculation?” Portale exclaimed. “He’s the senior investigator.”
“He can answer. Overruled,” the judge answered.
Moscato responded, “As senior investigator out there making a decision, no, she would not have been immediately placed under arrest if she hadn’t made the further statements to Investigator DeQuarto. However, we would have continued our investigation. But, no, she would not have been placed under arrest prior to her admissions.”
“When you say ‘we would have continued our investigation,’ you mean of Miss Graswald?”
“No. I mean locating Vincent Viafore and trying to determine exactly what happened.”
Portale then asked a long series of questions about the kayak paddles. He gave Moscato a hard time when the investigator said that he had not noticed the plug was missing from the kayak, and then battered him over semantics about the condition of the paddles.
Without warning, Portale shifted gears. “You testified that you had gone to Bannerman’s on April 29, 2015, to search for clues on the island, correct?”
“That is right.”
“What tools did you have with you to collect those clues, if any?”
“My eyes,” Moscato retorted.
“Okay. Besides your eyes, what else did you have?”
“Tools?”
“Yeah, tools.”
“None.”
“No forensic tools?”
“No.”
Portale asked about specific tools, naming them one by one: camera, measuring tape, rulers, notepads. Moscato said he had none of the above but knew that there was a camera since some photographs were taken. He didn’t know if anyone had any of the other items.
“Well, of the three of you, none of you took notes when you were having this discussion with Miss Graswald on the trail, right?”
“No, I didn’t take any notes.”
“Nobody did, right?”
“Well, if that’s what you’re saying, nobody. I didn’t take any notes.”
“You were sitting on the trail?”
“Right.”
“Miss Graswald was there?”
“Yes.”
“She didn’t have any notes, right. She wasn’t taking notes, right?”
“Right.”
“Investigator DeQuarto was there. He wasn’t taking notes, right?”
“Right.”
“Investigator DaSilva was there, and you saw him, and he wasn’t taking notes, right?’
“Right.”
“So as far as you know, neither yourself, DaSilva, [nor] DeQuarto had a notepad with them on Bannerman’s Island?”
“That’s correct. As far as I know, no one had any notes, that’s right.”
“Did you have any evidence bags with you?”
“No. Not me personally.”
“Did DaSilva have any evidence bags with him? No?�
�
“I don’t believe so.”
“And Investigator DeQuarto didn’t have any evidence bags with him?”
“I don’t believe so.”
At the request of the defense, the court took a five-minute break.
CHAPTER TWENTY-FOUR
When Aniello Moscato returned to the witness stand, the defense attorney assured him that he only had a few more questions. Portale first wanted to know who shot the photographs on the island, but Moscato was not certain. He then took the investigator through another explanation of the difference between the Bannerman boat and the police boat.
Portale seemed intent on making Moscato erupt in anger. He’d gotten close on several occasions, but he eventually hit gold with the evidence tags, known in state police lingo as “general 40 tags.” The defense attorney feigned ignorance about the writing on those forms. He refused to accept that the word “defendant” could have been added after the case turned from a missing persons category to homicide. He insisted, despite Moscato’s attempt to educate him, that the incident date on the tag proved that Angelika was a suspect on the day of Vince’s death. Moscato’s frustration escalated with every accusatory question.
The defense once again requested a break. When they returned, Portale went on a different attack. “So, during the break, we saw each other in the hallway?”
“Yes.”
“You were with some individuals, speaking to them. Who were those individuals?”
“I spoke to everybody. I spoke to three law students. I spoke to another attorney. I spoke to the Viafore family. I spoke to almost everyone,” Moscato said defensively.
“I think you know what I’m talking about. When you and I saw each other, remember that?”
“Yeah.”
“Who were you with at that time?”
“Who was I with?”
“I’m asking you.”
“I was with a number of different people out there, was it the three law students?”
“At the time that you and I looked at each other, we did like a salute to each other.”
“You saluted me. I don’t think I saluted you back,” Moscato snarked.
“I thought I saw you do it?”
“I might have winked at you.”
“Careful of that,” the judge warned.
“I wouldn’t doubt it,” Portale grumbled.
“If you knew who it was, why don’t you help the investigator?” Freehill told Moscato.
“Right. Can you describe the person?” Moscato asked.
“I don’t know who it was,” Portale said.
“I told you, I spoke to a couple of lawyers.”
“There were two females.”
“Two females?”
“They were blond.”
“Young?” Moscato asked.
“No, about middle age.”
“Where are we going here?” the judge asked.
“I can answer it now,” Moscato cut in. “That was Laura Rice. That’s Vincent Viafore’s sister. And if—her mother was here, Mrs. Viafore. And I was also speaking to two younger—that’s why I asked you if they were younger ones—I was talking to two younger interns that are doing an internship with the DA’s office. They’re law students.”
“Okay. Thank you. No further questions,” Portale said, not visibly perturbed that he’d demonstrated his lack of concern for the victim’s family members by not even recognizing them.
ADA Julie Mohl approached the witness and began redirect. First, she took Moscato through a careful explanation of how evidence tags are created. She followed that by eliciting a description of a missing person investigation and the necessary contact with family members and the last known person to have seen the missing individual.
On recross, Portale dove back into the evidence tags as if he’d not heard a word of the redirect testimony. He kept making the same point again and again as if he couldn’t grasp the simple facts of the process. He repeatedly misstated Moscato’s testimony and twisted his words until Moscato had had enough.
The investigator leaned forward in the witness chair. “You’re wrong. You’re wrong. You are absolutely wrong.” His voice boomed through the courtroom, his angry tone underlining every word.
“Investigator,” the judge requested, “a little bit away from the microphone.”
Even after that, Portale kept reiterating accusations until Freehill interrupted.
“These questions have been asked over and over again,” the judge said.
“Withdrawn. No further questions.” Portale surrendered the floor, seemingly unconcerned that he had just made himself appear remarkably stupid to some observers.
Senior Investigator Aniello Moscato descended from the witness box, the unwelcome specter of possibly being recalled by the defense hanging over his head.
The day in court ended with a squabble between defense and prosecution. Attorney Chartier accused the state of withholding information that should have been provided in discovery and slammed the state police and the state with being dishonest. Julie Mohl insisted that much of the material that he had requested had already been provided and called the accusations “offensive.”
Judge Freehill requested some of the materials be provided and asked for another witness to clarify the details surrounding the requisition of the boat. He then dismissed the court.
CHAPTER TWENTY-FIVE
Before the court was back in session on June 9 at 11:00 am, ADA Mohl provided the defense a copy of the interrogation video with enhanced audio, as well as two photographs.
Judge Freehill brought the court to order, but he had a hard time keeping it that way. The defense team had a litany of complaints about the materials they’d just received. Portale made an insincere expression of gratitude over the photographs, before lambasting the prosecutors for not providing them sooner. He was angrier, though, about the audio-enhanced videotape of Angelika’s interrogation. He wanted the judge to force the state to explain why it had taken so long to deliver.
Mohl had issues of her own. She told the judge that the defense had refused to acknowledge receipt of items and instead threw papers from her desk and a paper clip at her. She further explained that the state planned to enter the original version of the videotape, not the enhanced version, in trial, allowing the defense plenty of time to review it beforehand. Portale fired back, saying that he’d requested those materials nearly eleven months ago and accusing ADA Mohl of being dishonest.
The squabbling continued until the judge ordered everyone, including the court reporter, into his chambers. Behind closed doors, the judge made it clear that he was troubled by the 371 inaudible words in the original tape. “Do you really think that, if we render a decision that down the road is part of an appeal, and we base that decision on a tape that was not as enhanced as a later tape, we’re not going to be back doing this in a couple of years, if by chance the defendant is convicted?”
After a volley of questions from the judge and arguments from both sides, the judge decided that the video with the enhanced audio needed to be presented as evidence. He offered the defense more than a week after that day’s proceedings to review the enhanced video.
After lengthy discussion about conflicts, the judge set two days to finish up the proceedings, and after lunch testimony began anew.
* * *
The state called Kevin Gardner, a trooper stationed at the Kingston barracks in Ulster County. He’d been employed with the New York State Police for nearly twenty years. For the past thirteen and one-half years, he’d been a team leader for the Troop F segment of the dive team.
On April 28, 2015, he was in the middle of conducting a two-month dive school. On that crystal-clear day, they were performing strikes on the USS Slater, a historic battleship up in the port of Albany. Around midday, he received a call from Senior Investigator Aniello Moscato, asking if a boat was available the following morning to transport him and a couple of other investigators to Bannerman Island, down the
Hudson River. He contacted two members of his team, Trooper Lance Rell and Zone Sergeant James Whittle, to see if they could assist.
ADA Julie Mohl asked, “After making those arrangements, or while making those arrangements, did you document that request for transport in any way?”
“I did not,” Gardner said. “It was just a general request to bring some members across the river. It was not involving a search or a dive operation. So, I had no need to write it down.”
“Is that, generally speaking, common practice not to document something like that, where a member is requesting transport?”
“Yes. For something like that, there is no protocol to have to do up an entire report for a brief ride on a boat. If there was something more extensive where we were diving or doing a sonar search, something along those lines that was more extensive, then I would do a dive report.
“My boss was up there with us for the training, my boss in Albany. So most likely, I believe I probably told him, ‘Hey, we’re just putting the boat out.’ That was it.”
Julie Mohl turned over the witness to the defense, and attorney Jeffrey Chartier did the cross-examination. He asked Gardner first for his personal cell number and then for the name of his carrier, causing Mohl to object. The judge sustained, after arguments from the defense.
Then he attempted to get Moscato’s phone number from Gardner but failed. In response to questions, Gardner told the court that he’d spoken directly to Rell and Whittle and they’d agreed to transport the trailered nineteen-foot Boston Whaler, one of three boats they had available, down to Newburgh for the crossing.
Chartier then went into a line of questioning about repairs to the boat on the day in question and gassing up the boat. Gardner did not recall any repairs made to the boat after the trip to Bannerman Island and said the fueling was done at local gas stations since the state police no longer had gas pumps at their barracks.
ADA Mohl objected. “As to the relevance of this line of questioning.”
“I’m hoping that Mr. Chartier is going to make that clear in a moment,” Judge Freehill said.
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