DELHI — Sullivan County Court Judge Frank LaBuda found himself on the other side of the bench Friday.

Testifying in the case brought against him by his brother Peter, Frank spent two-and-a-half hours in the witness chair giving his side of the September 25 confrontation that left Peter in the hospital - and apparently injured Frank too.

“Did you run him over?” Peter's attorney, Barbara Strauss, dramatically inquired inside Delaware County Family Court in Delhi, where what is known as a family offense case is proceeding due to obvious conflicts of interest in Sullivan County courtrooms.

“I assume I did,” Frank replied.

But he repeatedly asserted that he was not in control of his ATV when he ran over Peter.

“Would you agree the two of you were kind of playing ‘chicken' with each other?” Strauss later asked.

“No,” Frank responded.

As part of an order of protection request filed with the court, Strauss strove to make a case to charge Frank with criminal negligence and assault in the third degree, while Frank and his attorney, Benjamin Ostrer, strove to convince Judge Gary Rosa that the runover was an accident caused by Peter.

Adding to the dramatic tension, both attorneys repeatedly and vigorously objected to one another's questions, often requiring Judge Rosa to halt Frank's testimony so he could rule on the objection in question.

Frank's account

Frank told the court that on the afternoon of September 25, he traveled up Moss Rock Lane in Wurtsboro to check on several hunting stands and a logging road where he cuts wood.

The private lane functions as the driveway to both his and Peter's homes and traverses Frank's property before crossing into Peter's. Both men maintain the lane, and the acreage it serves was originally owned and developed by the brothers' late father.

Frank and Peter live next door to one another, though their relationship is strained. The two even spell their last names differently - Frank as “LaBuda,” Peter as “Labuda.”

According to Frank's testimony, while he was headed to the stands on his four-wheeler, he encountered Peter near Peter's house. He circled the spot on a map provided to Judge Rosa.

“It is in the middle of the lane,” he explained.

Frank said Peter was waving at him, demonstrating such to the court by waving his right hand with the forefinger and middle fingers raised.

When Frank stopped, he said Peter told him, “You can't come on my property. You don't want to speak with me? You can't be on my property.”

(Though it was not detailed at Friday's hearing, Frank came across Peter elsewhere earlier - reportedly a local coffeeshop - and did not greet or address him.)

What did he say back to Peter?

“To the best of my recollection,” Frank told the court, “[I replied] ‘What? Are you kidding?'”

Peter previously alleged that Frank sideswiped or brushed past him at that point (which is when Peter then called the police), while Frank denied such on the witness stand, contending he backed away from Peter and continued up the road on his ATV for about 50 yards to what the family knows as the Great Moss Rock, namesake of the lane.

After checking for signs of deer and other hunters, Frank said he put the ATV in four-wheel-drive, turned around and headed back down toward his and Peter's homes.

“I was about 20 yards up the road, looking down, and I see a person standing [there],” he recalled, subsequently realizing it was his brother, who was holding an iPhone in his right hand, attempting to record the incident.

Frank said he waved but continued past, stopping at a fallen tree that was partially in the lane.

“It wasn't an obstacle … [but] I figured on the way back down I'd move it out of the way so in hunting season it would be easier to get up the lane in the dark,” he told the court.

He dismounted the ATV and turned it off. While he was moving the tree, Peter approached.

“'Don't touch my tree. You have no authority to touch my tree … you're damaging my tree,'” Frank paraphrased Peter as allegedly saying.

Frank recalled Peter telling him he was trespassing, but according to Frank, he got back on his ATV, restarted it and shifted it to Forward (akin to Drive). As he prepared to continue down the lane, Frank said Peter moved to within a foot of the vehicle.

“He was square in front,” Frank stated.

He did not recall further words being spoken, instead alleging that Peter - with the iPhone still raised in his right hand - used his left hand to grab the cables leading to the thumb-operated throttle, tugging them twice.

“That's when it lurched forward,” Frank told the court, adding that his own hand was not on the throttle. “... I had no control of the vehicle.”

Did the ATV hit Peter? asked Ostrer.

“It certainly did,” Frank affirmed.

After rolling over Peter, the four-wheeler - with Frank still on board - veered off the path, down toward a stream and into some bushes. It soon struck a stone fireplace the brothers' father had built, then turned over on its side, according to his testimony.

“My right foot was severely sprained, black-and-blue, swollen … for a couple months,” Frank related. “The left side of my face was bruised and scraped, leaving a little nodule, a scar, on my eyelid.”

He added that his left arm was bruised, his right arm cut, and a rib fractured.

Meanwhile, Peter was about 20-30 feet away, suffering from multiple broken bones, which subsequently required hospitalization. Frank disentangled himself from the ATV and said he returned to his brother, asking him if he was alright. He also acknowledged saying to Peter's daughter Staci, who by that time was on scene, “Look what your father did!”

Ostrer and Strauss argued over whether Frank's injuries bolstered his claim that the incident was an accident.

“It is not a defense,” Strauss insisted. “… The fact he was injured does not prove he was not reckless.”

Ostrer told Judge Rosa that establishing the ATV was out of control “undermines the claim this was an intentional act.” (Peter claims Frank deliberately hit the throttle, while Peter stretched out his arms in a futile attempt to stop the ATV.)

Judge Rosa ultimately allowed pictures of Frank's injuries into the court record, directing Strauss and Ostrer to save their debate for closing arguments.

Cross-examined

Strauss then questioned Frank at length, attempting to discern discrepancies in his testimony and make the case that he aggravated the situation.

At one point, she focused on Frank's crossing of Peter's property, positing that Frank ignored Peter's demand that he not come on Peter's land. Frank appeared to argue that Moss Rock Lane is a right-of-way he's entitled to traverse, while Strauss contended that Frank left the confines of the lane when he turned around near the rock.

“At that point,” she stated, “you were driving your vehicle on another person's property.”

“It's inaccurate at one level and accurate at another,” Frank responded, adding that he had never prohibited Peter from his property and had actually told him, “You can drive on my property. Why can't I drive on yours?”

Both he and his brother have hunted the immediate area for decades, he added.

After that first confrontation on his way up the hill, “would you agree that you could have turned around and gone home?” Strauss inquired.

“Yes,” Frank replied, though he later added, “It was my understanding that we were going to have subsequent conversations about that [disagreement] and everything else that was bothering him.”

Strauss tried to establish that he could have found a different way back that avoided Peter's property, though Frank dismissed such as impractical, saying he would have had to trek upwards of seven or eight miles out to Pine Kill Road, Route 17 and Route 209.

At the second confrontation by the tree, “at no time did Peter give you any indication he would move out of the way?” Strauss inquired, to which Frank affirmed.

“You moved a few feet closer to your brother after he had already said, ‘Stop trespassing'?” she followed up.

“OK,” Frank responded.

“Did you understand your brother as directing you to leave his property?” Strauss later asked.

“No,” Frank replied, appearing to draw a distinction between a request to leave the lane where he was vs. Peter's private property off the lane.

Strauss noted that the accident report Frank filed a few days afterwards did not make the allegation that Peter pulled the throttle cable. Instead, it gave the reason for the accident as “mechanical malfunction.”

Though Frank confirmed such, Ostrer objected, “There's lots of things that may not be written on an accident report. That's not a fair question.”

Under further questioning from Strauss, Frank confirmed that prior to the actual runover, he faced no difficulties in shifting between gears or turning the ATV on or off, which Strauss contrasted with a forensic investigator's earlier testimony that there were “all sorts of issues with the mechanism of the vehicle” when it was inspected afterwards.

She asked if Frank remembered hearing the investigator's testimony that “the gears were malfunctioning,” to which Frank replied, “I don't recall.”

Frank confirmed that he had no liability insurance on the 10-year-old ATV (which he bought new), nor was it registered with the Department of Motor Vehicles. Ostrer and Strauss debated whether that was relevant, with Ostrer arguing that insurance is only needed if riding on a public thoroughfare and Strauss contending it's required if the ATV is operated anywhere other than on the owner's property. (An online New York State ATV regulations brochure states that liability insurance is required to operate an ATV beyond one's own property.)

Regardless, responding Sheriff's deputies did not ask for any proof of registration or insurance, Frank affirmed.

However, it was other questions they did not ask which interested Strauss.

Peter's family members asked deputies to assess Frank to see if he was under the influence of alcohol, though Frank told the court he did not hear such being asked of the officers.

“At the scene, did the deputy ask you if you had been drinking?” Strauss wondered.

“No,” Frank replied, answering the same when Strauss asked if officers had requested him to do a variety of other physical, mental and breath tests for alcohol. Neither did Frank volunteer for such.

The actual police interview of Frank occurred approximately two hours after the incident, inside Frank's home for about 15 minutes, after he had left the scene in his son's truck, according to his testimony and a handwritten statement he authored at the time.

Strauss said the police report indicated a deputy had told Frank to wait on scene but that he said he was leaving.

“I had my own issues to attend to,” Frank replied, recalling telling the deputy that he was going home and that officers should be sure to acquire Peter's cellphone for evidence.

Frank then did so, confirming he did not immediately seek medical treatment even though he was injured.

During the police interview, Frank was asked if he had been drinking, and he denied such to officers, subsequently confirming that to the court.

Ostrer then objected to further questioning on this topic, and Rosa sustained it, wearily telling Strauss, “Frankly, I think this horse has been killed, butchered and packaged at this point.” (That was an apparent reference to previous testimony from others that Frank did not appear intoxicated.)

Frank continued to deny any intimation that he deliberately ran over his brother, telling Strauss that “the whole thing was [over] in a flash.”

Replying to her questioning of his intentions, he insisted, “My intent was, ‘What's going on here?' That was my intent!”

With the courtroom needed for other cases, Frank's testimony was ended by Judge Rosa just before noon on Friday.

What happens next?

The parties will return to Delhi tomorrow (Wednesday), with Frank LaBuda's attorney, Benjamin Ostrer, anticipating there will possibly be one but more likely no further witnesses after Frank's questioning is concluded.

Peter Labuda and other family members previously took to the witness stand in four other days of testimony earlier this winter.

When Delaware County Family Court Judge Gary Rosa will make a ruling is unknown, but at least till then, Frank is off the Sullivan County Court bench.

Meanwhile, the NYS Attorney General's Office is investigating the matter, likely waiting to see the conclusion of this case before making their own determination - though they remain tight-lipped.

After court Friday, Frank did confirm to the Democrat that, contrary to rumors, he has not retired and does not plan to do so in the near future, having just been re-elected (unopposed) as County Court Judge in November. He said he still heads to his office daily, though he voluntarily agreed with the NYS Office of Court Administration to not adjudicate cases until this matter is resolved.

Should he officially return to the bench, however, he will have to step down in 2019 when he turns 70, at which age the State Constitution requires retirement of all judges.