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Cop accused of chokehold in Eric Garner's death to decide on testifying in NYPD proceeding

Protesters gather outside police headquarters in Manhattan on

Protesters gather outside police headquarters in Manhattan on Tuesday during the police disciplinary hearing for Officer Daniel Pantaleo. Photo Credit: Getty Images/Spencer Platt

Officer Daniel Pantaleo, the NYPD cop accused of using a banned chokehold in 2014 that led to Eric Garner's death, will decide Wednesday whether to testify in the department’s disciplinary proceeding against him, his attorney said.

The officer's attorney, Stuart London, also said he'll call two witnesses to testify Wednesday on his client's behalf — a St. Louis city medical examiner who disagrees with a New York City counterpart's findings that the chokehold caused a “lethal cascade” of medical events that killed Garner, and Pantaleo’s instructor from his time in the police academy about 13 years ago.

Pantaleo, who has been on paid, non-enforcement duty since soon after Garner’s death, has not spoken publicly in any detail about the case.

“At this point, it’s up in the air,” London said Tuesday about whether Pantaleo will testify. “It will be a game-time decision for tomorrow.”

Pantaleo’s disciplinary hearing, being held at NYPD headquarters in Lower Manhattan, began in May.

A bystander’s cellphone captured the July 17, 2014 encounter between the 43-year-old Garner and police officers during his arrest for selling untaxed cigarettes on a Staten Island sidewalk. Garner's last words —  “I can’t breathe” —  became an early rallying cry for the Black Lives Matter movement

The police commissioner will ultimately decide how and whether Pantaleo is punished. He could be fired.

Pantaleo was not criminally charged in state court. A long-running criminal investigation by the U.S. Justice Department is pending.

At Wednesday’s hearing, London said, St. Louis medical examiner Dr. Michael Graham plans to testify that Garner did not die of a chokehold but of poor health. Garner was obese and had other medical problems, such as asthma and high blood pressure. London's position is that Garner's death occurred while he resisted arrest.

A city medical examiner, Dr. Floriana Persechino, concluded that those factors contributed to his death, but the alleged chokehold set off the “lethal cascade.” 

Graham did not examine Garner’s body but reviewed the autopsy report, witness statements, medical files and video, London said.

The academy instructor, Sgt. Russell Jung, will testify Wednesday that no chokehold was used on Garner.

“He’s going to talk about various techniques utilized and taught in the academy, and then I’m going to show him still photos and videos on the day in question,” London said.

Earlier in the proceeding, a top NYPD instructor, Inspector Richard Dee, testified that Pantaleo was repeatedly instructed not to use the chokehold shown on the video.

"We're going right after Dee big-time," London said.

Shortly after Garner's death, the now-former police commissioner, William Bratton, said the officer appeared to have used the banned chokehold maneuver.

Chokeholds have been banned by the NYPD for more than two decades.

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