updated 6/28/2007 4:54:13 PM ET 2007-06-28T20:54:13

An officer denied wedging a nightstick into the mouth of a handcuffed man suspected of hiding crack cocaine, his lawyer said.

The man, Michael Payne, who was released after the Nov. 2 encounter, filed a complaint against Officer Anthony Melkowski later that night.

Melkowski was suspended with pay in May, but that suspension was changed to unpaid leave Tuesday when Chief Jim Corwin recommended firing him.

The nightstick allegation was not included in the termination papers. Instead, Corwin cited seven other policy violations, including a 2005 excessive-force allegation against Melkowski.

Melkowski’s attorney, Steve Bukaty, said Wednesday that his client denied putting the nightstick into Payne’s mouth and denied choking Payne.

“Where’s the proof?” Bukaty said. Regarding the choking allegation, Bukaty said: “The man was clearly able to breathe.”

A police videotape shows Melkowski struggling with Payne to get him to open his mouth. Payne was not facing the patrol car camera when he claimed Melkowski forced the nightstick into his mouth, but Payne is heard moaning.

The encounter ended when officers were unable to find any drugs. Payne said he had none in his possession.

Bukaty said Melkowski’s actions were intended to prevent the man “from ingesting a dangerous substance” and were within Police Department guidelines.

Department lawyers have said most courts find it reasonable for officers to place their hands on a suspect’s neck or around the suspect’s throat to prevent the Adam’s apple from moving.

The Board of Police Commissioners will decide whether to fire Melkowski.

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