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Buffalo cop admitted shooting teen with BB gun, witness says

In late 2012, while training at a vacant lot not far from the Buffalo Niagara Medical Campus, Thomas Breski crossed paths with a police officer he knew from their days together in the National Guard.

Breski, a Buffalo firefighter, says he was talking with Joseph Wendel about work when the conversation turned to a BB gun shooting involving four teenagers.

"We took the gun, we laughed at them and we shot them," Wendel told him, according to the firefighter.

Now a battalion chief, Breski recounted that story for a federal court jury deciding the fate of Wendel and Raymond Krug. The two police officers are accused of using excessive force against the four teens in late May of 2009.

Breski said he didn't say anything about Wendel's comments until a longtime friend, also a Buffalo police officer, mentioned Wendel and Krug and the allegations of excessive force three years later.

"I just said, 'He did it,' " Breski told the jury.

When his friend, Capt. David Stabler, asked him what he meant, Breski said he told him about Wendel's admissions three years earlier.

Joseph Wendel. (Sharon Cantillon/Buffalo News)

Stabler, according to Breski, was later subpoenaed by the U.S. Attorney's Office and forced to give up Breski's name. That in turn led to Breski's testimony on Friday.

On cross-examination, defense attorney Rodney O. Personius asked the firefighter if it was possible Wendel was referring to the BB gun incident as an allegation, instead of an admission of guilt.

"No," Breski said.

"You're certain?" Personius asked.

"Yes," said Breski.

Personius also wanted to know why Breski waited three years to tell Stabler about his encounter with Wendel.

"You didn't think this was a big deal?" he asked him.

"Correct," said Breski.

The firefighter also acknowledged that no one else was party to his conversation with Wendel. He said the two men happened to meet at a vacant lot where Breski and three other firefighters were training.

When he ended his much-anticipated testimony, prosecutors rested their case against the two officers.

Investigated by the FBI and indicted in 2014, Krug is accused of shooting Donald J. Silmon, one of the four teens arrested that night, with a BB gun he seized from the suspects. Wendel is charged with encouraging him to shoot again and punching Silmon twice in the stomach.

The two officers are currently suspended with pay.

For the second day in a row, retired police Lt. Gregory Kwiatkowski, another key government witness, took the stand Friday to testify against his fellow officers.

Retired Lt. Gregory Kwiatkowski. (Sharon Cantillon/Buffalo News)

Kwiatkowski, who has already admitted his use of excessive force that night, acknowledged that he was on suspension when he retired in 2011.

He also confirmed for the jury that he suffers from depression and post traumatic stress disorder and has sought treatment for anger management. At one point, he asked to be put on disability leave but withdrew the request and instead chose to retire.

"I didn't want to retire with a stigma," he said of his mental health problems.

When asked about his conduct on that May night nine years ago, Kwiatkowski admitted he was enraged and that he slammed each of the teens head-first into a police car.

Personius asked him about his admissions and how they contrast with his plea agreement with the government.

"Do you see the word 'slamming' anywhere in there," Personius asked while showing him the agreement.

"No, I do not," he said.

The plea agreement says Kwiatkowski "pushed" the four teens onto a car.

The former cop also found himself trying to explain why, on two occasions while under oath, he denied assaulting the four teens, then 17 and 18 years old.

"That was a lie, wasn't it?" defense attorney Terrence M. Connors asked him at one point.

"It was," Kwiatkowski said.

Connors also asked the former cop about the time – he claims it was 16 minutes – that he spent in a patrol car with two of the suspects, and said, "That's plenty of time to shoot someone."

Kwiatkowski, who the defense has repeatedly portrayed as the real villain that night, denied firing the BB gun and insists he gave it to either Wendel or Krug.

"Would you let Ray Krug take the fall for something you did?" Assistant U.S. Attorney Aaron J. Mango asked him at one point.

"No, I would not," he said.

For his role in the BB gun incident, Kwiatkowski pleaded guilty to a misdemeanor charge of deprivation of rights under color of law.

Connors and Personius began their defense on Friday and one of their first witnesses, a former prosecutor, was quick to draw contrasts between Krug and Kwiatkowski.

"He was one of the officers you wanted to work with, a model police officer," Kristin St. Mary said of Krug. "He's an officer with integrity."

St. Mary, a former assistant district attorney and now a law clerk for State Supreme Court Justice Frank A. Sedita III, said she worked with Krug on several cases and always found him honest.

She was also asked about her dealings with Kwiatkowski.

"He does not have a good reputation for being honest at all," she told the jury.

The teenagers' arrests on Treehaven Road followed a drive-by BB gun shooting in which one of the teens fired into a crowd at Main and Custer streets and struck at least one person.

The four teens, all residents of University Heights, were charged with felony assault, reckless endangerment and criminal possession of a weapon. They eventually pleaded guilty to a lesser charge of harassment. They were each sentenced to a conditional discharge and community service.

The trial resumes Monday.

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