NORWICH _ Charges against two men accused of plotting to kill a Norwich patrolman and his father, a former assistant police chief, were dismissed Monday morning in Norwich City Court.

Robert Gallo Jr. 25, of 22 Sheldon St. and Mathew Smith, 27, of Elmira and Norwich, were jailed last week in lieu of $1 million bail each after being accused of second-degree conspiracy. Police said they were plotting to kill patrolman Reuben Roach and his father, Murray Roach.

Monday's court session was a felony hearing to determine if there was enough evidence against Gallo and Smith to hold them in custody until the grand jury examined the case.

While the charges were dismissed, they were done so without prejudice, meaning the case could later be presented to a grand jury if warranted.

The first and only witness to testify, Thendara Hartwell, 33, who lives above Gallo's apartment at 22 Sheldon St., had told police she'd heard Smith and Gallo making murder plans. But shortly after she took the witness stand Monday, she surprised people in the courtroom when she pointed at Smith and said, ``I can't sit here and lie. That's not him.''

Smith's girlfriend and others in the courtroom burst into applause.

City Judge Maureen Byrne quieted the audience. Hartwell then said the man who was plotting with Gallo was sitting in the back of the courtroom.

However, when the spectator stood up so everyone could see him, Hartwell hesitated before saying, ``That's not him, either." The young man sat back down.

In response to questions from Chenango County District Attorney Joseph McBride, Hartwell said that on Sept. 1, the day she moved into her apartment, and Sept. 2, she had heard Gallo and another man, ``someone they called J-man,'' talk about killing the Roaches because Reuben Roach had arrested the other man's ``key players.''

On both days, she heard the incriminating comments at about 11:45 p.m., she said.

In response to questions, Hartwell said Gallo and the other man were involved in selling drugs. She knew this from what she'd heard and because so many people came and went from Gallo's apartment, she said.

``On Labor Day, we counted 44 people in and out of there,'' she said over the objection of Smith's attorney, Peter McBride of Norwich.

``This is just character assassination,'' said McBride, who is Joseph McBride's uncle.

Hartwell said that on Sept. 11, she heard Gallo say he'd killed someone before, although he hadn't shot the victim. She hadn't been able to see Gallo when he said this but recognized his voice, she said.

When cross-examined by Peter McBride, Hartwell said she'd also heard that there is now ``a hit out for my family.''

McBride asked who told her that. Hartwell declined to answer. When McBride pressed her, she said, ``I'm pleading the Fifth (Amendment).'' ``You're pleading the Fifth? If you testify truthfully, it will incriminate you?'' he asked.

``It will put someone else at risk,'' said Hartwell, who faces a charge of violating her probation. She is on probation for petit larceny and has been in court several times before, she said.

Cooperstown lawyer Linden Summers, who represented Smith, said he had no questions for Hartwell, as his client hadn't been involved in the plot by the witness's own admission.

Joseph McBride questioned Hartwell again, although Peter McBride objected, saying, ``He's impeaching his own witness.''

Hartwell then acknowledged having known Smith for ``about seven years'' and having told Joseph McBride that Smith was involved in the plot.

On seeing Smith in court, she said, she realized the plotter was heavier-set than Smith.

Court recessed for 10 minutes. Then, the district attorney said that if there was no case against Smith, charges against Gallo should be dropped, too. Part of the evidence against Gallo was that Smith had recently attempted to buy a gun, an overt act essential to the prosecution's conspiracy case, he noted.

Byrne ordered the suspects be released from the county jail Monday morning.

Outside the courtroom, Gallo's sister, Winnie Donnelly, said, ``I knew he didn't do it.''

Sarah Hunter, who said she was Smith's girlfriend, said, ``This whole thing was ridiculous.''

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