There's no question that Lockport Police Officer Thomas J. Venne punched Frank A. D'Angelo. Venne's own report says so.
The question raised in a federal court lawsuit is whether Venne went on to administer a brutal beating to D'Angelo, a four-time felon who was found asleep at the wheel of a car stopped with its engine on, with crack cocaine in his pocket.
Court papers say the body camera Venne was wearing, which might have settled the issue, didn't record most of his Oct. 17, 2017, encounter with D'Angelo on Tudor Lane in Lockport.
Court papers say the recording shows Venne knocking on the car window to wake up D'Angelo, Venne asking him to turn off the engine, and D'Angelo doing so.
After that, the recording stops.
"Whether it was shut off or the battery died, I don't know," said D'Angelo's attorney, Michael T. Benz. He hopes to learn the answer during pretrial exchanges of evidence, which have yet to begin.
During that four minutes, the lawsuit contends, D'Angelo sustained several jaw fractures, a broken nose and two fractured eye sockets from being punched repeatedly and struck with an object D'Angelo believed to be Venne's police flashlight.
Another officer's camera starts up four minutes later and shows Venne and two other people standing over D'Angelo, who is handcuffed on the ground.
Venne's own incident report says D'Angelo restarted the vehicle and tried to drive away, but was told to stop. Venne wrote that he then opened the car door.
"D'Angelo exited the vehicle and squared up to patrol in a threatening manner," Venne wrote. "D'Angelo reached out to patrol with two hands in an attempt to physically harm patrol. Patrol struck D'Angelo with a closed fist in an attempt to defend himself."
The lawsuit contends that D'Angelo had his hands up "in a surrender posture."
Venne wrote that after the punch, D'Angelo ran away, refused to stop and was dropped to the ground with a Taser round to the back.
After being handcuffed, D'Angelo ran again, the officer's report said, but a pedestrian who happened by grabbed D'Angelo as Venne "used a leg sweep to take D'Angelo to the ground."
After another officer searched D'Angelo and found the crack, an ambulance took D'Angelo to Eastern Niagara Hospital, but the report didn't list his injuries. Benz said he was later treated in Erie County Medical Center.
City Court records say D'Angelo pleaded guilty to misdemeanor drug possession in connection with this arrest and was sentenced to 179 days in jail.
Interim Lockport Police Chief Steven C. Preisch was not working for the city at the time of the incident.
"I did review the file and I do feel that when all the facts are laid out that the use of force was justified based on the circumstances known to the officer at the time of the incident," Preisch said. "It was the defendant's actions that necessitated the use of any force."
If the case goes to trial – at the moment, the court schedule shows the sides won't even be asking for a trial date until August 2020 – D'Angelo's credibility may be challenged because of a lengthy criminal record.
D'Angelo, 38, of Chestnut Ridge Road, Lockport, has been to state prison three times.
"I don't think that means he didn't get beaten up," said Benz, his attorney. "I don't think that makes him incredible."
D'Angelo's criminal resume includes four years in state prison for two house burglaries in 2001 in Royalton and Hartland; 10 months in prison in 2007 and 2008 on an assault charge for beating up his parole officer; and a 2016 stint in the state's secure drug facility, followed by four months for a parole violation, for selling heroin in Niagara Falls.
He is expected to go to prison again June 19, when Niagara County Judge Sara Sheldon could sentence him to up to 15 years for selling crack as a repeat felon.
Wednesday, Sheldon sent D'Angelo to the County Jail without bail because a probation officer wasn't able to contact him to compile a presentencing report on the drug sale case.
He sold $40 worth of cocaine Sept. 1, 2017, and $20 each worth of cocaine and amphetamines Sept. 15, 2017, both in the City of Lockport.
On Nov. 5, County Judge Sara Sheldon admitted him to the judicial diversion program of court-supervised drug treatment.
But D'Angelo was ejected from the program March 27 for failing to report to Drug Court, leaving a treatment facility and missing various counseling appointments, Assistant District Attorney Peter M. Wydysh said.