A judge Monday ordered a suspended Buffalo police officer, who was working off-duty security outside Molly’s Pub on the night a bar patron was attacked, to give authorities a DNA sample.
Prosecutors want Officer Robert E. Eloff’s DNA to determine whether he had any role in an attempt to throw away a bar surveillance video after the May 11 attack on William C. Sager Jr. in the University Heights bar.
Authorities charged bar manager Jeffrey J. Basil with first-degree assault for allegedly pushing Sager down the stairs, leaving the 28-year-old Air National Guardsman in critical condition with a severe brain injury.
Eloff was seen alongside Basil on a digital recording entering the office where the bar’s surveillance hardware was 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.
At Monday’s hearing, State Supreme Court Justice John L. Michalski granted Assistant District Attorney Christopher J. Belling’s request for an order directing Eloff to give a DNA sample.
Belling told the judge that the bar’s video equipment was tampered with the night of the attack.
He cited testimony by another suspended Buffalo police officer, Adam E. O’Shei, who also worked off-duty security with Eloff that night outside the bar. Belling also cited the digital recording showing Eloff with Basil when they entered the office.
The prosecutor said investigators checked the equipment for DNA and need Eloff’s DNA for comparison.
He said Eloff had previously consented to give a DNA sample. He questioned why the officer was not in court.
Herbert L. Greenman, Eloff’s attorney, said his client would give the sample if the judge ordered him to do so, but he added that his client did not need to be in court for legal arguments on the prosecutor’s motion.
Greenman opposed the motion, saying prosecutors had not presented any lab report indicating that anything had been found on the video equipment after investigators swabbed it for DNA.
“They must show probable cause” that DNA is on the equipment, he said. “None has been shown.”
Greenman said the only evidence presented is that his client was in the area where something might have happened after the attack.
“Mere presence in an area is not sufficient proof of probable cause,” he said.
After the judge signed the order, Greenman said Eloff will provide the DNA sample.
Prosecutors said the sample would be sent to the lab for analysis and then compared with the video equipment.
In the meantime, Eloff, 39, and O’Shei, 41, remain suspended without pay and face a hearing on departmental charges of acting in a manner unbecoming a police officer in connection with their conduct that night at the Main Street bar.
Eloff 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.
The questions Eloff refused to answer included whether he was familiar with Molly’s, 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 that it was unlikely that Eloff would be disciplined for asserting his constitutional right against self-incrimination.
Basil, 36, of Amherst, who had been held on $250,000 bail after his arraignment last month in City Court, was released on $35,000 bail Friday after Michalski granted a defense motion for reduced bail.