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Flying the biased skies

A Brooklyn federal judge refused to throw out a civil rights suit against two air marshals this week, claiming she believed that the plaintiffs, who are of Egyptian descent, were victims of racial profiling.

Last year, plaintiffs Tarik Farag, a retired NYPD officer, and Amro Elmasry, an executive for General Electric, were detained for several hours at JFK airport for “acting suspicious” on their American Airlines flight back from California.

The air marshals contended that, while on the plane, the two men switched seats and talked in Arabic to each other, according to published reports.

One of the men was also seen looking at his watch on a number of occasions, according to the complaint.

Air marshals believed that the two men may have been conducting a dry run for a future terrorist attack and took the men in for questioning.

After being detained and then let go, Farag and Elmasry filed the civil rights suit which attorneys for the FBI-NYPD Joint Terrorism Task Force tried to quash last week.

But after mulling over the complaints, as well as the law backing up the charges, Judge Frederick Block sided with the plaintiffs.

He questioned the reasoning for FBI agent William Plunkett and Detective Thomas Smith, who detained the plaintiffs and stated that in his mind the two men did nothing wrong.

“There is no doubt that the specter of 9/11 looms large over this case,” Block said in his decision. “But fear cannot be a factor to allow for the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed.”

Convict puts up shoe defense

A man cooling his heels in prison after being convicted of a 2003 robbery has applied for a new trial, claiming that he lost the last one because he had an ineffective Legal Aid lawyer.

In recent released court papers, plaintiff James Whiting claims that his attorney “failed to properly investigate his alibi claim” that he was shopping for shoes with his girlfriend — something men aren’t known to do willingly -- when the robbery took place.

He also claims that his attorney decided not to call his former girlfriend, Cheryl Foster, as an alibi witness, leaving no one to speak in his defense.

Officials said that victim Alex Negron was robbed on February 4, 2003.

About a week later, Whiting was taken into custody when the victim pointed him out to police officers, claiming that he was wearing the same coat that he had worn during the robbery.

At the time, Whiting was hanging out with Joseph Grajales. Both were taken into custody and charged with robbery. The two men were tried separately and found guilty.

Whiting is currently in prison waiting out an 11-year sentence.

Although he claims that the shoe store alibi was never investigated, his attorney, Wadeedah Sheeheed, claimed that in interviews Whiting said that he and his girlfriend had pulled money out of an ATM at Mother Gaston Boulevard and Pitkin Avenue — a block away from the robbery -- and then parted ways.

He never told Sheeheed that the two had remained together, she said in her affidavit.

It wasn’t until sometime later when Whiting suddenly claimed that he was with his girlfriend at a shoe store at the time of the robbery.

The store was in Canarsie — roughly two miles away.

When questioned, Sheeheed said that she did not immediately look into the alibi claim because she didn’t believe it.

Her suspicions were confirmed when Whiting decided not to show up for a polygraph test that could have confirmed his innocence.

Whiting never pressed her to take another test, she said.

The alibi was never pursued because of Whiting’s behavior as well as, after several interviews with Foster, it was determined that she would not be a credible witness.

After hearing testimony from Sheehed, her supervisor and other sin the investigation, Judge Joel M Goldberg denied the motion to have Whiting’s case dismissed.

“Neither the belated investigation of the shoe store alibi nor the failure to call Foster as a witness, assuming any of them constitute deficient professional conduct, has been shown to have either resulted in prejudice to the defendant or deprived him of meaningful representa­tion,” he wrote.

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