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Hillary seeks to limit information provided to Potsdam police through civil suit

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POTSDAM — Oral “Nick” Hillary is seeking a court order to prevent village police from using information he provides in a coming deposition for a civil suit against the village as possible evidence against him in an unsolved murder investigation.

Mr. Hillary, through his attorney, Mani C. Tafari, Queens, filed a request for a protective order Monday in U.S. District Court, Syracuse, claiming the village is trying to glean information obtained during discovery in his federal defamation suit “to use it against Mr. Hillary in the criminal context” as police continue to investigate the Oct. 24, 2011, strangulation death of 12-year-old Garrett J. Phillips.

Mr. Hillary filed state Supreme Court action in Canton in September 2012, claiming police detained him illegally and damaged his reputation by making statements implicating him in the death of the youth, who was killed in his upstairs apartment at North Country Manor Apartments, 100 Market St. The lawsuit was moved to U.S. District Court, Syracuse, in November 2012 because Mr. Hillary also is claiming that his federal constitutional rights were violated.

Mr. Hillary is scheduled to be deposed in the civil action Jan. 20 in Albany, but Mr. Tafari contends that testimony provided by Mr. Hillary on April 30, 2012, in a pre-action hearing has since been used “in an attempt to again falsely implicate Mr. Hillary in the homicide of a twelve-year-old child.”

Mr. Tafari points to a “lead worksheet” prepared in May 2012 by Officer Theodore J. Levison that concluded, upon a review of a videotape of the testimony, that Mr. Hillary allegedly had provided 29 “deceptive” responses during six hours of questioning in the pre-action hearing.

Among the claimed deceptions, according to Officer Levison’s worksheet, is that an acquaintance of Mr. Hillary had phoned him to tell him “there appears to be something wrong,” referring to Garrett. According to Officer Levison, “Hillary did not know what that meant and did not ask (the acquaintance) what that meant, but thanked him for the heads up.” The officer wrote that Mr. Hillary never spoke to anyone about Garrett after receiving the message, testifying that he first learned of the boy’s death when village police officers “showed up at his door” two days later.

When officers arrived, according to the worksheet, Mr. Hillary, who is the men’s soccer coach at Clarkson University, had a sprained right ankle and an unspecified scrape that he testified he had suffered the week before while rearranging furniture in his new apartment.

“Hillary never sought treatment for his ankle injury. And never told anyone about it,” Officer Levison wrote.

The officer also concluded that several of Mr. Hillary’s responses were deceptive based partly on “the way he was verbalizing them.”

Mr. Tafari counters that the officer made this conclusion “while pointing to no objective fact” and that Mr. Hillary had answered the questions “openly and honestly.”

He is seeking a protective order preventing village attorneys from asking Mr. Hillary questions at his deposition “that are designed to implicate Mr. Hillary in the unsolved crime.” The request includes, but is not limited to, questions regarding Mr. Hillary’s whereabouts prior to the date of his questioning by police and “his relationships with individuals unrelated to the causes of actions alleged in the complaint.”

He is also asking that the protective order preclude videotaping of the deposition, which village attorneys have indicated they intend to do.

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