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Protester testifies he didn't hear request to leave bank property

An anti-war protester on trial in Buffalo City Court testified Monday that he didn't hear initial requests for the group to leave M&T Bank property at Fountain Plaza, where he and two others were arrested April 8, 2011.

Nate Buckley, 27, of Buffalo, took the stand as the defense opened its case before City Judge Joseph A. Fiorella. Buckley opted for a jury trial on misdemeanor counts of trespass, obstructing governmental administration and resisting arrest.

Co-defendants Jason A. Wilson and Elliot Zyglis, also in their 20s and from Buffalo, are on trial for trespass violations. The judge will decide their verdicts.

The three were arrested after a protest that started elsewhere downtown ended up outside the bank. Buckley got into a scuffle with officers from the Niagara Frontier Transportation Authority's Police Department, who were called by a bank security officer who previously asked protesters to leave.

Both the prosecution and defense are relying on videos taken at the scene by the bank's security camera and individuals.

Immediately after court resumed Monday, prosecutor Susan H. Sadinsky submitted the deed for bank property into evidence. Defense attorneys have repeatedly challenged the boundary lines described by security personnel who testified Thursday for the prosecution.

Fiorella then denied motions by all three defense attorneys to dismiss the charges against their clients.

Buckley was the first witness called by his attorney, Leigh E. Anderson, who referred to the bank security video and one that was posted on YouTube, as well as still photographs.

When asked about his location when he first arrived, Buckley indicated he was near a light standard between the sidewalk and the train tracks. He also was asked about the noise level, which he described as "pretty loud."

He said he saw -- but didn't hear -- the security officer who approached protesters on a retaining wall that has been described as bank property.

Buckley testified that he didn't see NFTA Officer Richard Russo arrive. Videos show him and Russo standing on the ledge of the retaining wall, but Buckley said the officer was talking to other people.

"It looks like we're on top of each other, but there's more space," said Buckley, who testified that Russo never spoke directly to him.

A video turned over to the prosecutor by attorney Jon Ross Wilson, who is representing his brother, has audio of Russo explaining that the property was private and trying to get protesters to leave.

Russo testified last week that after he asked the protesters to leave, Buckley led a chant of "Hell, no, we won't go.' "

Buckley said Monday that he got off the ledge after hearing the officer's directive seconds earlier. Once on the sidewalk, Buckley said he asked the officer to leave.

While the officer testified last week that Buckley repeatedly blocked his attempts to arrest another protester, Buckley denied it and said Russo initiated contact. Videos show both moving through the crowd on the sidewalk, heading north on Main Street.

Describing one face-to-face contact, Buckley said: "He's got a hold on me. I'm just standing there, trying to get out of his way."

Buckley said he followed Russo because "I wanted to talk to him."

The officer said that he decided to arrest Buckley after they clashed a third time.

"He never told me I was under arrest my Miranda rights," Buckley said. Russo was pushing him, said Buckley, who added that when the officer released his grip he went for his Taser.

"I began to run," Buckley said. "I was extremely afraid of what he was going to do."

Buckley drew fire from the prosecutor -- and the judge when he claimed he was "tackled" by NFTA Officer Adam Brodsky, who arrived as Buckley was running south on Main Street.

"I don't see him [Buckley] on the ground," Fiorella said. "What does tackle mean?"

Buckley also denied grabbing Russo's body armor vest. The officer had testified that Brodsky hit Buckley once in the arm with his collapsible baton to break Buckley's grip.

Buckley said nothing was said as the struggle went up the stairs and onto the bank's red brick courtyard area, where Brodsky sprayed him with pepper spray.

After being taken to a patrol car, "I asked them what I was being charged with. They didn't tell me," Buckley said, adding that the officers threatened him and made derogatory comments once he was in the car.