on June 13, 2014 - 10:28 AM
, updated June 13, 2014 at 12:06 PM
The attorney for a Buffalo bar manager accused of pushing a patron down the stairs asked a judge to lower his $250,000 bail, saying prosecutors didn’t have enough evidence to support the assault charge.
The prosecutor asked the judge to double the bail, citing his criminal record and calling him a scourge on society who doesn’t respect the law.
In the end, the judge cut the bail to $35,000, and Jeffrey J. Basil was released Friday after posting the reduced amount.
State Supreme Court Justice John L. Michalski ordered Basil not to drink or go to places where alcohol is served, avoid contact with the victim, William C. Sager Jr., and witnesses, surrender his passport and stay in Erie County.
District Attorney Frank A. Sedita III said he thought higher bail was justified.
“We believe that the defendant’s bail should have been increased, not decreased,” he said, noting that Assistant District Attorney Christopher J. Belling laid out the reasons for higher bail in court.
Sedita also said prosecutors will be in court Monday seeking an order to compel suspended Buffalo Police Officer Robert E. Eloff, who was working off-duty security that night outside Molly’s Pub, to give a blood sample so that his DNA can be compared with DNA found on a bar surveillance video to determine if he had any role in attempts to throw it away.
The officer was seen alongside Basil on a digital recording entering the office where the bar’s surveillance hardware is kept.
Basil, according to police sources, removed a key device and disposed of it in a garbage can outside, away from Molly’s. The device and digital images have been recovered, police sources say.
Sedita noted that Eloff had refused to answer Belling’s questions about the Molly’s assault at Basil’s felony hearing last month in City Court, citing his Fifth Amendment right against self-incrimination.
“That was the first time in my 26 years as a prosecutor that I have heard of a police officer taking the Fifth,” Sedita said.
The questions Eloff refused to answer included whether he was familiar with Molly’s Pub, whether he saw Sager thrown down the stairs, whether he handcuffed an unconscious Sager after the attack and whether he went to the basement office with Basil and removed the surveillance video.
Police sources said last month it was unlikely that Eloff would be disciplined for asserting his constitutional right against self-incrimination.
Eloff, 39, and Officer Adam E. O’Shei, 41, who also was working off-duty security that night outside the bar, were suspended without pay last month for 30 days and face a hearing on departmental charges of acting in a manner unbecoming a police officer.
Basil, 35, of Amherst, had been held on $250,000 bail since it was set last month by City Court Judge Joseph A. Fiorella at his arraignment on first-degree assault.
He is charged in the May 11 attack on Sager, 28, an Air National Guardsman, while Sager was inside Molly’s Pub on Main Street in the University Heights neighborhood.
Sager suffered a brain injury and remained in critical condition Friday in the Trauma Intensive Care Unit at Erie County Medical Center.
After Basil’s May 23 felony hearing, Fiorella ordered him held for grand jury action. Basil has not been indicted.
Fiorella also continued to detain Basil on $250,000 bail and refused defense attorney Joel L. Daniel’s request to reduce the charge to second-degree assault.
At Friday’s hearing on Daniels’ motion for reduced bail, the defense attorney told the judge that O’Shei testified at the City Court hearing that he saw Basil drunk and drinking double shots of whiskey.
Daniels said O’Shei indicated Sager was drinking, stumbling, swaying and pushing his way through the bar crowd in an aggressive manner.
“Nothing good happens in a bar after midnight,” Daniels told the judge, noting that this incident occurred at 2 a.m. in the busy bar.
The defense attorney said Capt. Carmen Menza in a police report wrote that O’Shei told him Sager was very intoxicated and was causing trouble. But Daniels said O’Shei at the felony hearing denied making that statement.
O’Shei also testified at that hearing that he saw Basil give Sager a two-handed shove down the stairs without any provocation from Sager.
Daniels said the evidence does not support the first-degree assault charge, because there is not sufficient proof of depraved indifference to human life, a requirement for the felony charge. He said depraved indifference requires proving that the attack involved prolonged brutality and wanton cruelty.
He said there wasn’t even enough proof to charge his client with second-degree assault, which requires showing intent to cause serious physical injury. He said Basil was drunk and did not act intentionally if he did push Sager.
At best, he told the judge, the alleged attack involves third-degree assault or reckless endangerment, both misdemeanors.
Daniels said his client is not a flight risk, noting that he surrendered to police after he was charged.
He asked the judge to reduce the bail to a reasonable amount.
Belling opposed the motion and asked the judge to raise bail to $500,000, saying Basil has no respect for the law.
Belling cited Basil’s criminal record, which includes convictions for harassment, disorderly conduct, driving while impaired, criminal contempt and drug possession. Some of the convictions involve criminal acts at bars.
“Nothing happens around Jeffrey Basil that’s good,” he said.
The prosecutor told the judge that when Basil was a 16-year-old student at Maryvale High School, he tried to throw another student out of a window and later threatened to get the student if he showed up at graduation.
He cited a 2002 case in which Basil harassed a West Seneca woman who had stood up for his girlfriend in an abuse case and his stalking of a former girlfriend to whom he sent a text message saying he had a gun.
Belling said that after Basil was fired from a job at another bar in 2005, he threatened his boss. He said Basil also was involved in an attack at a Depew bar and harassed the owner of a Niagara Falls restaurant next to a bar where Basil worked.
He called Basil a scourge who has no respect for society or the law.