The alleged victim of a reported Nov. 1 harassment incident told police five Syracuse University men’s basketball players were involved, including junior starting guard Eric Devendorf, her lawyer said.

Identification by the alleged victim of other people involved was not in the police report, said Sgt. Tom Connellan of the Syracuse Police Department.

Kimberly Smith, a junior in the College of Arts and Sciences, told police she was parked on the 900 block of Walnut Avenue at approximately 3 a.m., when five people approached her car and began kicking it and yelling at her, Connellan said.

Smith’s lawyer, Richard Kesnig, said his client was parked in front of a fraternity house on Walnut Avenue, waiting to pick up her younger sister.

Kesnig said Smith identified five men as members of the SU men’s basketball team to the responding SPD officers when they met her at the corner of University Place and Comstock Avenue, and found dents in both the passenger and driver sides of the car.

‘She absolutely identified five people by name, and gave them to the police department,’ Kesnig said. He would not provide the names.

Connellan said he could not comment on whether Smith named five men to the responding officers because the information was not in the police report.

‘She said she didn’t know who the people were that damaged her car. That’s what she told the officer on the scene,’ Connellan said. ‘If there were other people there, I don’t know. I don’t have that information.’

SPD submitted an application Nov. 1 for the arrest of Devendorf, Connellan said.

Smith told SPD that Devendorf approached her and punched her in the face with a closed fist, Connellan said.

Devendorf has not been arrested, as of Wednesday afternoon, and the case has been deferred to SU’s Office of Judicial Affairs, Connellan said.

Any further decision by the District Attorney’s office won’t be made until the university completes proceedings, according to a news release from the office of District Attorney William Fitzpatrick.

Devendorf has not been charged with what Connellan said would be harassment in the second degree.

Under New York state penal law, harassment in the second degree is defined as striking, shoving or kicking another person, or threatening to do the same. It’s classified as a violation, which is a step below misdemeanor. Connellan placed it on the level of a traffic ticket.

Because the incident is an alleged violation, police take a statement signed by the victim and submit it to the DA’s office for review, Connellan said. In this incident, Connellan said Smith told police she wanted Devendorf arrested.

University decision

Domenic Trunfio, the first chief assistant district attorney, said his office investigated the case and decided the situation would be better served being heard by SU’s Judicial Affairs.

The DA’s office always works with university Judicial Affairs and SPD when there are parallel investigations in the departments, Trunfio said.

‘The process happened exactly the way it was supposed to happen,’ Trunfio said. ‘The police aren’t allowed to arrest someone for a violation that occurs outside their presence. They have to apply for a summons through the DA’s office.’

Kesnig, Smith’s lawyer, said he hadn’t been made aware that the DA’s office had stopped investigation and handed the case over to SU’s Judicial Affairs. He said he was told he would be notified, but didn’t find out until News Channel 9 faxed him the news release published by the DA’s office.

‘No one seems to be able to come forth and say that there is (an investigation) pending,’ Kesnig said.

Outside perspective

Thomas Ryan served as the defense attorney of former SU student Brian Shaw in a trial following the death of the mother of Shaw’s child. Shaw was arrested on March 23, 2005. He was convicted of first-degree manslaughter almost a year later.

Ryan said he doesn’t think it’s unusual for the district attorney to pass the case to Judicial Affairs, considering it’s an alleged violation without injury.

The DA’s office can still file criminal charges after the university makes a judicial decision, but Ryan said he finds that highly unlikely.

‘I would expect that would probably be the final decision,’ Ryan said.

Despite Devendorf’s student-athlete status and the attention that it might attract, Ryan said the university could impose harsher punishment than the legal system.

‘The university sanctions could be significantly more for an individual of the university than prosecution as a criminal matter through a criminal court, because someone could be expelled from school or suspended or placed on probation,’ Ryan said.

Kesnig said he has no reason to believe preferential treatment is being given.

‘In speaking with Ms. Smith, her position on this whole thing is that something was done to her that she believed was illegal and wrong,’ Kesnig said. ‘(She’s) seeking only to have those individuals who are accused be treated like anyone else would be treated. That’s what she is seeking. No more, no less.’

shmelike@syr.edu

Published on November 19, 2008 at 12:00 pm