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Search in Phallen probe cited as urgent

LOCKPORT – It’s well known that minutes count in police work, and the time of the search of accused sex torturer Iver J. Phallen’s home is a key factor in the defense effort to invalidate the search warrant and suppress the evidence.

State Police seized a wide assortment of restraint and lifting devices, including an electric winch, that Phallen, 67, allegedly used on three women whom he is charged with sexually assaulting last year in his Lewiston condominium.

Phallen, a retired businessman and inventor, has pleaded not guilty to two indictments totaling 209 counts, which would put him in prison for the rest of his life if he is convicted.

Testimony on Thursday in an evidence-suppression hearing focused on the timing of the Sept. 27 search, which is important because the search warrant said it was supposed to be executed before 9 p.m.

State Police Investigator John A. DiPasquale testified that’s not what he wanted. “When the search warrant application left my hand, there was a possibility we would be asking for the execution of a warrant after 9 p.m.,” DiPasquale said.

But DiPasquale didn’t go to court to obtain the warrant. Investigator Kelly J. Remington made that trip. DiPasquale said he told Remington to cross out the post-9 p.m. provision if it was unneeded.

“She crossed off the line asking for execution after 9 p.m.,” defense attorney James W. Grable Jr. said.

“She did,” DiPasquale agreed.

Wednesday, Investigator Darren C. Bialek testified about receiving word by cellphone that Cambria Town Justice Amel S. Howdy Jr. had signed the warrant. Also on Wednesday, DiPasquale testified that the search began at 8:57 p.m.

However, when he filled out a request later that night for Jowdy to amend the warrant to include more items, DiPasquale wrote on the form that the original search began at 9:02. That would be two minutes too late.

On Thursday, DiPasquale said that was the time he personally began searching. Grable didn’t buy it, noting that DiPasquale’s amended application said “a search began at 9:02 p.m.,” not “my search.”

“What does he mean by search? That’s the question for this court,” Deputy District Attorney Holly E. Sloma said.

Also, DiPasquale dated the original warrant application Sept. 29, when the search actually was sought on Sept. 27. DiPasquale said he misdated the form, and also used the wrong date on the deposition signed by one of the female victims that day.

It was dated Sept. 29, 2010, because the drop-down menu on DiPasquale’s State Police computer offered no choices more current for the year.

Niagara County Judge Sara Sheldon smiled and shook her head when she heard that testimony.

DiPasquale said it’s not unheard of to intentionally misdate a statement to see how closely the witness is reviewing it before signing it. In this case, neither the alleged victim nor Jowdy caught the error, although the judge did correct the Sept. 29 date when DiPasquale reused it on his application for the amended warrant.

The suppression hearing will continue May 14. Phallen’s trial is to begin Sept. 8.