Staten Island cops already accused of planting marijuana in a car in 2018 were also filmed weeks later with what defense attorneys say is weed on the floorboard of their own NYPD vehicle, according to a police body camera clip released by the Legal Aid Society on Wednesday.
The man arrested for having weed in that incident—Jason Serrano—alleges that the officers planted weed on him and arrested him in an unlawful search. His attorneys are now moving to clear his conviction.
On March 13th, 2018, NYPD Officers Kyle Erickson and Elmer Pastran pulled over a woman driving a car in which Serrano was a passenger, allegedly for a broken tail light.
During the encounter, officers cuffed Serrano for resisting arrest, obstructing governmental administration, possession of marijuana, and possession of another controlled substance, his lawyers' motion reads.
Serrano, who was recovering from an abdominal wound, explained to the officer that he could "barely move," in a video first published by The Intercept earlier this year.
"I'm not getting searched for no reason," he argued in the video. During his detainment, Erickson cuffs him as he's taken down to the ground, where he remains laying down. He's later taken to a hospital, where his lawyers say he spent five days.
In the video, Officer Erickson can be heard saying, "We gotta find something," and later, can be seen placing loose weed in the cup holder. At the end of the 25-minute clip, the cop's body camera records what the Legal Aid Society contends are additional chunks of weed on the floorboard of the NYPD vehicle.
Three months after the arrest—without knowing there was video footage—Serrano took a plea deal for resisting arrest to avoid pre-trial detention because he couldn't afford the $500 bail, according to the motion. The other charges were dismissed. There was no lab confirmation of the second controlled substance he was arrested for, and in the video footage, it is not mentioned or seen.
The full record and videos show Serrano is innocent, the lawyers argued. His conviction of resisting arrest "requires proof that the police conduct was lawful" and "authorized under the circumstances."
Additionally, Serrano was a passenger in the car; when he was arrested, handcuffed, and forced onto the ground, officers "had not alleged or observed any infraction, violation, or crime committed by" him.
Officers alleged that they had smelled marijuana—though found no burning marijuana—and saw ashes on his coat, which Serrano explained was from cigarettes.
"What is clear from this additional footage is that Mr. Serrano never committed any crime and that this conviction should be vacated at once," said the attorney-in-charge of the Staten Island Criminal Defense Practice, Christopher Pisciotta. "What is also clear is that officers like Erickson and Pastran, who commit acts of misconduct that betray public trust, must be removed from the NYPD immediately."
"These officers violated my rights and I was forced to take this plea," Serrano said in a statement to Gothamist. "I never knew they had video proving that I was innocent."
"I'm looking forward to clearing my name, and the NYPD should fire Officers Erickson and Pastran for continuing to frame innocent New Yorkers," Serrano said, adding that he had only resisted an unlawful search by the NYPD officers and that they "have the backing of the District Attorney."
In February 2018, two weeks before Serrano's arrest, police bodycam video showed the same two officers allegedly planting a joint in a Black teenager's car. The 19-year-old spent two weeks in jail for the small amount of weed, but the NYPD found no evidence of wrongdoing on the part of the officers in that case.
90 percent of the people Erickson and Elmer had arrested were people of color, according to the Legal Aid Society's report released late last year—even though just about half the population in the precinct they work, the 120th, are Black or Latinx.
The Staten Island District Attorney's spokesperson says the office has not been served the motion to vacate the conviction and instead referenced an earlier statement.
District Attorney Michael McMahon said in March 2020 his office "takes all accusations of police misconduct seriously and in response to Legal Aid’s assertions at that time, formed an independent committee last year to conduct a review" of cases involving Erickson from February 2018 onwards.
A team of five prosecutors in the district attorney's office did a "thorough review of Officer Erickson's cases" and concluded that nothing in the body cam footage showed he had "acted criminally."
"However, the committee also unanimously reached the conclusion that Officer Erickson did not follow the NYPD’s guidelines, and other best practices, regarding the use of body worn cameras. As a result, RCDA made a series of recommendations in an April 2019 letter to the NYPD that Officer Erickson receive additional training in these areas," McMahon said.
McMahon wrote in that letter to Staten Island commanding officers, "the review found on multiple occasions Officer Erickson turned on his [body cam] late, or on occasion, not at all." He also wrote narration comments like Erickson saying "we have to find something" could be "taken out of context" and "misconstrued."
McMahon added in the statement that Serrano pleaded guilty to resisting arrest and "all other charges were dismissed."
Erickson hasn't made arrests between then and March 2020 on Staten Island nor has he been an arresting officer for cases prosecuted by his office, according to McMahon.
An unattributed NYPD statement said an internal review found no police misconduct in Serrano's case or others.