Unjustified: Behind the scenes of a police cover up
An off-duty Nassau County police officer unlawfully shot and beat an unarmed cabdriver in Huntington Station after a night of drinking in 2011, according to an NCPD Internal Affairs Unit report.
The report, obtained by Newsday, found that officer Anthony DiLeonardo recklessly escalated a roadside verbal dispute when he shot at cabdriver Thomas Moroughan five times with a .38-caliber Smith & Wesson, striking him once in the left arm and once in the chest, as the cabdriver's girlfriend sat beside him in the front passenger seat.
The Internal Affairs Unit report said a doctor who treated DiLeonardo at Huntington Hospital after the Feb. 27, 2011 shooting noted that he was slurring his words, smelled of alcohol and was hostile. However, fellow officers did not perform a sobriety test on DiLeonardo, who refused the doctor's request for blood and urine tests.
Officer Anthony DiLeonardo
The off-duty Nassau officer fired at Moroughan as the cabbie tried to retreat, the Internal Affairs report found.
Officer Edward Bienz
Also off-duty, Bienz accompanied DiLeonardo on a night of bar-hopping before the incident, the report said.
Cabdriver Thomas Moroughan
Officer DiLeonardo shot him twice and broke his nose with blows from the gun butt, Nassau Internal Affairs report found.
Despite the Internal Affairs investigators finding a year ago that DiLeonardo committed unlawful acts including assault, criminal use of a firearm and driving while ability impaired, he has not been criminally charged and remains a Nassau County police officer.
The Internal Affairs Unit reported its findings on July 31, 2012 to Police Commissioner Thomas Dale. It recommended 19 departmental charges for what it found to be 11 unlawful acts and eight departmental rules violations by DiLeonardo.
The Internal Affairs Unit recommended five departmental charges be brought against Nassau police Officer Edward Bienz, DiLeonardo's barhopping companion that evening, based on the investigation's findings of two unlawful acts and three counts of violating department rules.
Both off-duty officers were found to have engaged in conduct unbecoming an officer and were unfit for duty by reason of intoxicants, among other violations of department rules. Like DiLeonardo, Bienz remains a Nassau County police officer.
The report does not address whether the officers should be charged criminally for their conduct, and it does not indicate whether the recommended departmental charges were ever brought.
Payroll records reviewed by Newsday show that DiLeonardo was paid $110,316 in 2012, the year after the shooting, after making just over $118,000 in each of the previous two years. Bienz was paid $145,877 in 2012, an increase from the $139,903 he made in 2011 and $133,025 in 2010.
The more than 350 pages of Internal Affairs Unit investigative findings and evidence contradicts the story DiLeonardo told investigators that he emptied his gun to prevent Moroughan from running him down with a Toyota Prius cab.
Suffolk County police arrested Moroughan the day of the incident on charges of felony assault and misdemeanor reckless endangerment. Three months later, a judge granted a motion by the Suffolk district attorney's office to drop the charges, citing evidence that the officers had been drinking, and the disputed version of events.
But law enforcement officials have never publicly disclosed that a Suffolk County crime scene analyst had raised doubts that the altercation happened the way DiLeonardo said it did.
New York's powerful police unions have secured for their members one of the toughest officer privacy laws in the nation. Known as the 50-a law, it allows law enforcement agencies to keep hidden from the public any record used to judge an officer's performance, including officer misconduct investigations.
Newsday found the Internal Affairs investigation into the Moroughan shooting in court records from a $30 million civil lawsuit Moroughan filed in U.S. District Court in Central Islip against the Nassau and Suffolk police departments, both counties and 18 named officers and supervisors. The Nassau Police Department Internal Affairs report is the result of a yearlong investigation, ordered by Acting Commissioner Thomas Krumpter, and includes materials from the Suffolk County district attorney's office and the Suffolk County Police Department.
The investigation is a rare window into how Long Island's two biggest law enforcement agencies confidentially handle officer misconduct investigations.
Confrontation took place on Oakwood Road near corner of Tippin Drive.
It details the effort to find out what really happened in Huntington Station, across the street from Henry L. Stimson Middle School, in a tense few minutes around the time that Saturday night becomes Sunday morning. Investigators knew the incident left in its wake two injured off-duty officers, a wounded cabbie with no known criminal history and a windshield dotted by three bullet holes. But with different stories emerging, why an argument turned into a shooting was difficult to determine.
The Internal Affairs report concludes that:
Finding
...the investigation determined that the shooting was unjustified causing the Suffolk County District Attorney's Office to dismiss all charges against Mr. Moroughan. - Nassau County Police IAU
Professor Maria Haberfeld, chair of the Department of Law, Police Science and Criminal Justice Administration at the John Jay College of Criminal Justice in Manhattan, said the fact that DiLeonardo and Bienz kept their badges, given what investigators found, means there is "something profoundly wrong."
Haberfeld said, "This is very strange to me. A person who is armed and behaves in a way that is not responsible should not be kept on the job."
Commissioner Dale, in a statement emailed to Newsday, wrote of the shooting, in part:
"No criminal wrongdoing was found. However, I have an active internal affairs investigation open regarding this incident, and there is a pending civil trial in Suffolk County. These two factors prevent me from commenting further about this issue at this time. It is important to note that departmental sanctions can be as punitive as criminal proceedings."
Dale declined to answer questions about the shooting.
Nassau Police Department spokesman Kenneth Lack, after being informed that Newsday had obtained the Internal Affairs report, and that it indicated it had been completed on July 31, 2012, said: "Commissioner Dale became aware of the civil trial and wanted Internal Affairs to monitor the court proceedings in case additional facts and circumstances presented themselves in order to bring this case to conclusion."
Dale, who joined the NCPD in January 2012, is battling the police union for the authority to discipline department employees, rather than have police trials go to a mediator.
Officials with Nassau and Suffolk Counties, and from the Suffolk Police Department, declined to comment citing the pending litigation. Bienz declined to comment and DiLeonardo did not return multiple calls seeking comment.
Thomas Moroughan with his wife Kristie Mondo, son Dominic and attorney Anthony Grandinette
Moroughan declined to be interviewed on the advice of his attorney.
Moroughan's lawsuit alleges police officials "manipulated facts and ignored and fabricated evidence" to avoid charging DiLeonardo with "attempted murder, assault with a deadly weapon, assault, DWI, and other crimes." The suit claims both the Nassau and Suffolk police departments "condoned and preserved the code of silence" in painting the cabdriver as an "attempted cop killer."
Both counties have denied the lawsuit's allegations in court filings that say any damages Moroughan suffered were due to his own negligence.
However, the Internal Affairs report refers to a March 2012 decision by Nassau County's Indemnification Board that DiLeonardo's alleged actions "were not committed while in the proper discharge of said officer(s)' duties and within the scope of his/her employment." The same board ruled that Bienz's actions were within the scope of his duties.
The Nassau Internal Affairs investigation does not explicitly address the allegations in Moroughan's lawsuit that officers "conspired" to protect DiLeonardo and Bienz at Moroughan's expense, though two Suffolk detectives did state that they were not pressured by their Nassau counterparts to arrest the cabdriver.
Suffolk County District Attorney Thomas Spota said criminal charges have not been filed against any of the involved officers because Moroughan and his girlfriend "refused to speak" to his investigators. "There were significant deficiencies in our ability to present this case to a grand jury and, if an indictment was rendered against the police officer, prove his guilt of any crime beyond a reasonable doubt," Spota said.
Spota said his office contacted the Nassau County Police Department and suggested its Internal Affairs Unit conduct its own "independent investigation in order to determine whether discipline was appropriate."
Anthony Grandinette, Moroughan's civil attorney, said in an interview the only reason criminal charges haven't been filed is because the people who committed the alleged offenses are police officers.
"Attempted murder, reckless endangerment, assault first degree," Grandinette said. "Do you think, for a second, that you or I wouldn't be under arrest for all those things? That's why this case is disturbing."
Police response
Nassau's Internal Affairs investigators found that DiLeonardo's call to 911 at 1:15 a.m. on Feb. 27, 2011, followed a roadside confrontation that he had recklessly escalated into an unlawful shooting.
When DiLeonardo identified himself as an off-duty Nassau County cop to the 911 operator, he said a white Toyota Prius taxi had tried to run him down and that "they stole his gun."
In fact, investigators later found DiLeonardo had accidentally dropped his weapon on the backseat floorboard of the cab after smashing it through the driver's side window and then using the butt of the gun to break the cabbie's nose.
On the 911 call, DiLeonardo — then 27 and in his fourth year with the department — used police code 10-78, which means "officer in danger."
The dispatched code brought a cavalcade of emergency vehicles to the intersection of Tippin Drive and Oakwood Road in Huntington Station. Ambulances raced in from as far away as Commack, and at least 21 Suffolk and Nassau County police officers swarmed a scene that one Suffolk detective described later to investigators as "very chaotic."
The report states that DiLeonardo's arm was bleeding and that he was teary-eyed, walking in circles and thought he had been shot. He told paramedics that he had been in "an exchange of gunfire."
DiLeonardo's then-25-year-old fellow officer, Bienz, who was in his fourth year with the department, said he was also struck by the taxi and was reported to be "shaken up," according to a statement by Suffolk police Det. Nicholas Favatta. The two cops "appeared to be in shock," Favatta reported.
The officers had been in two civilian cars and were accompanied by DiLeonardo's girlfriend and Bienz's wife.
Because the incident occurred in Huntington Station, the Suffolk County Police Department handled the initial investigation. Even though two nearby residents had called 911 on the night of the shooting, including an eyewitness, a Suffolk County detective said he canvassed the neighborhood that night in an ultimately unsuccessful search for witnesses.
At the hospital, more than 30 Nassau and Suffolk County police personnel, including four representatives of the Nassau police officers union, crowded the emergency room.
The Nassau Internal Affairs report shows Bienz acknowledged that he had been drinking and notes that he was cooperative.
Detective Ronald Tavares
Dr. Beverly Kraszewski's medical reports, which are included in the investigation, show that DiLeonardo was"slurring words at times with smell of alcohol on breath," and that he was sweating and had bloodshot eyes. Kraszewski referred to him as "hostile" and noted his "psychiatric insight and judgment to be impaired."
The medical reports note that DiLeonardo, who was "dizzy and lightheaded and emotional," stated he thought he was shot and that "he may have passed out." He ranked the level of pain he was experiencing as a 10 out of 10.
But he wasn't shot, just cut. A doctor, taking account of DiLeonardo's injuries, adjusted his pain number to a 4 out of 10.
Moroughan, DiLeonardo's accused attacker, lay in an emergency room bed at the same hospital, undergoing treatment for two gunshot wounds. He ranked his level of pain as a 9 out of 10. Moroughan submitted blood and urine samples and tested clean for drugs and alcohol.
The Nassau Internal Affairs report shows that Suffolk detectives Ronald Tavares and Charles Leser interviewed Moroughan at the hospital. One of the detectives wrote a sworn statement for Moroughan and asked him to sign it. The statement indicated that Moroughan had been read, and waived, his rights.
Cabdriver's statement
Moroughan would later tell the Internal Affairs investigators that he asked to see a lawyer but was prevented from seeing one by Suffolk detectives.
Deputy Commissioner
Risco Mention-Lewis
Moroughan's godmother is Risco Mention-Lewis, who at the time was a Nassau County assistant district attorney and has since become deputy commissioner of the Suffolk County Police Department. She arrived at the hospital to visit Moroughan and was interviewed after the incident by Internal Affairs investigators for both Nassau and Suffolk Counties.
In an interview with Suffolk County Internal Affairs investigators, she recalled hearing her godson loudly ask for an attorney.
She said when Moroughan saw her, he said, "That's my lawyer. That's my lawyer. I want my lawyer."
Mention-Lewis told officers at the hospital she could not act as Moroughan's attorney, "based on their relationship." A Suffolk County police officer stopped her from speaking with Moroughan, she later told investigators.
Mention-Lewis also told Nassau County investigators that she overheard a nurse and a doctor "discussing that the officer was drunk," though she didn't specify which officer.
Mention-Lewis, Tavares and Leser did not return calls seeking comment.
Nassau County's investigators would later note that when Suffolk detectives asked Moroughan to sign the statement, he "was under the influence of Morphine as a pain medication and after he was shot twice and had one bullet still in his chest and one in his left arm."
Moroughan told Internal Affairs investigators he did not read the statement before signing it because the Suffolk detectives told him to hurry so they could let him rest.
The statement described Moroughan revving his Prius engine and driving toward DiLeonardo.
"I felt he fired at me to protect himself because I drove at him," it says.
Thomas Moroughan and criminal defense attorney William Petrillo in 2011
According to the Nassau Internal Affairs investigators, "Mr. Moroughan stated he has since read the statement and the majority of it is not true."
Moroughan was arrested and charged with second-degree assault and second-degree reckless endangerment. Det. Leser and Suffolk police Det. Sgt. William Lamb, who supervised the case, both told investigators later that they had not been pressured by Nassau police to arrest Moroughan.
It was only after he was officially arrested that Suffolk County cops allowed Moroughan to meet with Mention-Lewis, according to her interview with Nassau investigators.
"I don't know why he shot me," a crying Moroughan told Mention-Lewis, according to her Nassau County Internal Affairs interview. "He shot me for no reason."
Officer said he feared for his life
The report shows that DiLeonardo left Huntington Hospital roughly five hours after he'd arrived. By 7 a.m., he was at Suffolk's Second Precinct in Huntington to write a statement describing how he shot Moroughan only to stop the cabdriver from running him over.
"I was in fear of my life," DiLeonardo wrote.
DiLeonardo described the situation to investigators in March 2012, a year after the incident, with more detail than in his initial statement on the day of the shooting. In that later interview, DiLeonardo said Moroughan erupted into a murderous rage for no apparent reason.
DiLeonardo said he and Bienz had pulled their cars to the side of Oakwood Road after Bienz got lost. That's when Moroughan, with girlfriend Kristie Mondo sitting in the front passenger seat, drove up to the off-duty cops and yelled, "I'm going to teach you how to {expletive} drive right now," DiLeonardo said.
As the cabdriver continued yelling, DiLeonardo said he rolled up his window to ignore him.
Moroughan then stepped out of his cab, DiLeonardo said, and approached his vehicle, holding his left hand in a way that suggested that he might have had a weapon. DiLeonardo said Moroughan yelled, "I'm going to smash your car and I'm going to kill you."
Finding
Most troubling is the fact that PO DiLeonardo appeared to have unholstered his gun before he started to approach the cab, and possibly when he was in his own car. - Nassau County Police IAU
After DiLeonardo's March 2012 interview with investigators, Nassau Internal Affairs detectives noted that he had not included in his February 2011 statement that Moroughan threatened to kill him or smash his car, and neither had any other witness.
In the later interview, DiLeonardo said he stepped out of his vehicle to protect himself and his girlfriend. Then Moroughan, ranting that he was "going to kill" DiLeonardo, climbed back into his cab, "revved his engine" twice and then accelerated toward him, DiLeonardo said.
DiLeonardo said he unholstered the firearm strapped to his ankle and yelled, "Stop, police, don't move!"
He reported that he positioned his body for maximum precision. He was "confident in his accuracy and that he would be able to hit the driver and not harm anyone else," including Mondo in the passenger seat.
DiLeonardo said he fired the five rounds in his gun and continued pulling the trigger even after the gun was empty.
Two of the shots hit Moroughan. A third went through the windshield on the passenger side, into the folded armrest in the backseat, and was never found. Two other shots missed the cab entirely, including one bullet that was not found.
With the cab now stopped, DiLeonardo said he pulled the badge from his shirt, again verbally identified himself as a cop and smashed the cab's driver side window with the butt of his gun when Moroughan refused to unlock the door. As he tried to pull Moroughan out of the cab, DiLeonardo said he was met with more curses and the cabdriver's threat, "I'm going to kill you."
Moroughan then "ripped the gun from his hand" and sped in reverse, dragging the off-duty cop alongside the vehicle. DiLeonardo said he freed himself and tried to run away, but Moroughan struck him and Bienz with the cab as it fled the scene.
Finding
This investigation has determined that PO DiLeonardo cannot allege the use of deadly physical force to affect an arrest or prevent an escape because at the time he fired the first shot Mr. Moroughan was not escaping and had not committed any crime. - Nassau County Police IAU
Taking another look
Nassau County's Deadly Force Response Team classified DiLeonardo's shooting as justified, citing as fact that Moroughan "began to drive his vehicle directly at DiLeonardo."
The report made no mention of the officers drinking that night. It concluded, "All officers involved were fit for duty."
DiLeonardo and Bienz filed workers' compensation claims, each of them writing statements attesting that they were hurt "in the scope of my official duties." The employer's workers' compensation report states DiLeonardo missed 12 work days on paid sick leave for lacerations on his right middle finger and his left forearm. Bienz's workers' compensation report states he received 10 paid sick days with bruising and pain to his legs, pelvis and body.
A Newsday review of state conviction records shows that less than a month after shooting Moroughan, DiLeonardo was back on the road making DWI arrests.
But while he'd been initially cleared by his own agency, Suffolk County officials were taking a more rigorous look at the incident.
On March 4, 2011 — just five days after the shooting — the Suffolk County district attorney's office took over the investigation from the Suffolk Police Department's homicide squad.
The Nassau officers union publicly backed DiLeonardo when Moroughan's criminal defense attorney called on Suffolk's district attorney to release records that would show DiLeonardo and Bienz had been drinking before the shooting.
"Any allegation of any alcohol is intended as a distraction from the defendant's actions," Nassau County Police Benevolent Association president James Carver told Newsday in March 2011.
George Krivosta
Suffolk County Crime Lab analyst
Whether the officers had been drinking became just one of many questions after Suffolk County Crime Lab analyst George Krivosta completed a reconstruction of the shooting the next month
He reported that DiLeonardo "follow[ed] on foot" when Moroughan climbed back into his taxi after the verbal altercation.
Though DiLeonardo and the Deadly Force Response Team described Moroughan "revving" his Prius engine before driving at the officer, Krivosta described the motor system of the hybrid as extremely quiet.
"The unusual operation of the car cast doubt on any witness who reported that 'the taxi revved its engine,' Nassau County police investigators wrote in their own Internal Affairs report after reviewing Krivosta's findings.
Krivosta also found that it would have been difficult for DiLeonardo to have drawn his revolver from an ankle holster in a split-second reaction to an oncoming vehicle, as the officer had stated.
"Most troubling is the fact that PO DiLeonardo appeared to have unholstered his gun before he started to approach the cab, and possibly when he was in his own car," the Nassau County Internal Affairs report states. "There is nothing to suggest that Mr. Moroughan or Ms. Mondo might have been armed or that they posed any risk beyond the use of foul language. Thus, there appears to be no reason for PO DiLeonardo, who unquestionably was consuming alcohol that evening, to have unholstered his weapon before he started to approach the cab."
NCPD Investigation
With the charges dropped against Moroughan on June 6, 2011, the Nassau Police Department began its own investigation.
The police found that before the shooting, DiLeonardo and his girlfriend met Bienz and his wife around 8 p.m. at Black Forest Brew Haus in Farmingdale.
According to a state database of convictions, both officers handled drunken driving arrests. DiLeonardo has made at least 20 DWI arrests since joining the force in November 2007. Bienz has made at least 65 such arrests since starting in January 2007.
Bienz then drove a blue 2008 Acura, and DiLeonardo drove his girlfriend's white 2011 Infiniti, to Huntington. The couples barhopped on foot from Honu to the Huntington Village Tavern to the Artful Dodger.
Bienz recalled having eight beers that evening and said DiLeonardo had at least seven cocktails. DiLeonardo told investigators he drank Jameson Irish Whiskey and pineapple juice, and also had some water.
Around 1 a.m., the couples got into their respective cars to drive home. Because he was unfamiliar with the area, DiLeonardo said he arranged to follow Bienz to Jericho Turnpike.
That's when Moroughan, headed toward a taxi fare, crossed paths with the officers.
Moroughan, then 26, had been working the 6 p.m.-to-6 a.m. shift for the Dobro Express taxi service for only a week. Mondo, who is now his wife, kept him company in the front seat of the 2010 Prius cab.
Cabby: Car cut me off
Moroughan told investigators that he first encountered the men when Bienz's Acura cut him off and the Infiniti driven by DiLeonardo swooped in behind and passed him with flashing high beams and the horn honking. Moroughan said he flashed his high beams at the cars, which "nearly ran him off the road, causing him to drive onto the sidewalk."
Soon afterward, Moroughan came across the Acura and Infiniti parked alongside Oakwood Road. He said he pulled his cab up to DiLeonardo's window and stepped onto the street. Still unaware the men were cops, he said he yelled, "What the hell are you guys doing? You are driving like complete morons."
DiLeonardo's response, according to Moroughan: "Learn how to drive a taxi, faggot, and get your fat-ass girlfriend on a diet."
Moroughan said the squabbling continued until both DiLeonardo and Bienz got out of their cars. Realizing he was outnumbered, he said he climbed back behind the wheel of his cab and "drove in reverse to get away" as DiLeonardo approached the Prius.
Then, from about 50 feet away, Moroughan said he saw DiLeonardo lift his hand. Bullets shattered the cab's windshield. One hit Moroughan in the chest. Another struck his arm. A third ripped through the passenger side where Mondo sat.
As he braked and tried to take cover under the dashboard, Moroughan said DiLeonardo appeared at his driver's side window and smashed the glass with the butt of his gun. DiLeonardo "pistol-whipped" the cabbie, breaking his nose, and then "punched him on the side of his face and head approximately 10 times" and tried to pull him out of the car, according to Moroughan.
Mondo reported that from the passenger seat, she screamed at DiLeonardo to leave them alone.
In a typed statement to investigators a year after the shooting, DiLeonardo denied intentionally pistol-whipping Moroughan. "I did not deliberately smash him in the nose with the butt of my gun," he wrote, adding that the cabdriver ripped his gun from him. "I did not drop it or lose it."
Moroughan said he threw the cab into reverse, knocking DiLeonardo to the ground. For the first time, Moroughan said DiLeonardo identified himself by yelling, "Stop, stop, I'm a cop, stop!"
He later told investigators it seemed unlikely that DiLeonardo was a police officer.
"Mr. Moroughan stated he did not believe PO DiLeonardo was a cop because he shot him and beat him," according to the Internal Affairs report.
Moroughan drove himself to Huntington Hospital while Mondo called 911 on her cellphone to report what had happened.
Like DiLeonardo, Bienz's wife told investigators "the taxi started accelerating towards" DiLeonardo. DiLeonardo's girlfriend stated she heard the cab "rev its engine." And Bienz stated that he saw Moroughan get into the cab and "drive at" DiLeonardo before the shots rang out.
But after the charges against Moroughan were dropped, Bienz did not say in a March 2012 interview with Internal Affairs investigators that the cab had accelerated toward DiLeonardo.
Instead, Bienz said the cab backed up and he did not hear the revving of an engine." He heard DiLeonardo start firing, he said.
Bienz told the Internal Affairs investigators that following the shooting, he barked at DiLeonardo, "Dude, what the {expletive} did you just do?"
Charges dismissed; guns removed
When Suffolk Assistant District Attorney Raphael Pearl asked District Court Judge Gaetan Lozito to drop the criminal charges against Moroughan on June 6, 2011, he said there was "evidence that the officers involved had been consuming alcoholic beverages prior to the shooting."
Pearl did not publicly disclose at the hearing that parts of DiLeonardo's story had been contradicted by the crime scene analyst's report.
Nassau's Internal Affairs Unit launched its investigation into the shooting on the same day the charges were dropped against Moroughan. A week later, DiLeonardo was put on restricted assignment, according to a Nassau Police Department personnel document filed in Moroughan's lawsuit.
The document barred DiLeonardo from working patrol or as a school crossing guard. But it allowed him to perform seven other functions, including clerical work, physical contact with prisoners, operate an unmarked police vehicle, work uniformed full shifts and earn overtime.
The department also restricted his access to firearms, writing 'NO WEAPONS — ADMINISTRATIVE INVESTIGATION' on the document. Detectives removed from DiLeonardo's home six weapons: four 9 mm semiautomatic handguns and two .38-caliber revolvers. The report does not state whether the guns have been returned to him.
A month into the investigation, Nassau County Internal Affairs investigators interviewed the Huntington Station residents who had called 911 as the shooting occurred. Both Suffolk County Homicide detectives and Nassau County's Deadly Force Response Team had not contacted the three witnesses in the immediate aftermath of the shooting.
One eyewitness watched the incident unfold just outside the front of his house. He corroborated the version of events casting DiLeonardo as the aggressor.
"I looked out of my front picture window and I saw a man with a gun walking towards a white car which was stopped in the middle of the road," his statement says. "The man with the gun was shooting his gun at the windshield of the car."
