Day One: Trial of New Rochelle Police Detective Michael Vaccaro Begins

NEW ROCHELLE, NY (July 18, 2022) — New Rochelle Police Detective Michael Vaccaro went on trial today in front of Judge Matthew J. Costa at New Rochelle City Court in a non-jury trial.

Vaccaro was charged with two counts of Attempted Assault in the Third Degree on June 17, 2021, both Misdemeanors, for an incident which occurred in the early afternoon of February 15, 2022. Vaccaro was arraigned on July 1, 2022.

The first count was filed for punching Malik Fogg several times about the head. The second count was filed for forcing Malik Fogg’s head and face into a cement sidewalk.

A 16-year veteran of the New Rochelle Police Department, Vaccaro has one of the worst disciplinary records in the history of the New Rochelle Police Department. Vaccaro has been the subject of 17 Internal Affairs Investigations resulting in 9 Letters of Reprimand, the Loss of 15 Leave Days, a 10-Day Suspension, as well as an order to undergo retraining based on a Civilian Complaint in 2020. After the incident, Vaccaro was suspended without pay for 30 days. Ever since that suspension ended, he has been on paid administrative leave.

On October 25, 2021, Judge Costa denied Vaccaro’s Motion to Dismiss two counts of Attempted Assault in the Third Degree, 

The case was scheduled for a jury trial on January 24, 2022, but repeatedly delayed. Another Jury trial was scheduled for June 13, 2022. After a conference with Judge Costa on June 10, 2022, the upcoming jury trial was canceled, and a non-jury trial in front of Judge Costs was scheduled for July 18, 2022.

Malik Fogg was arrested by the NRPD in the vicinity of 635 Main Street on February 15, 2021, for Reckless Endangerment in the Second Degree, Stalking in the Third Degree, Criminal Mischief in the Fourth Degree, Harassment in the Second Degree, and various New York State Vehicle and Traffic Law violations.

On June 9, 2022, Fogg pleaded guilty to one violation for disobeying a traffic control device — the lines on a road he crossed while driving — and driving a vehicle the wrong way on a one-way road with a one-year conditional discharge. Both traffic violations amounted to a $100 fine plus $88 surcharge Upon leaving the courtroom, Fogg paid the City of New Rochelle $376.

On May 14, 2022 Fogg filed a Civil Rights Lawsuit in White Plains Courthouse of the U.S. District Court for the Southern District against The City of New Rochelle, New Rochelle Police Department, Joseph Schaller, Michael Vaccaro, Matthew Velasco, Scott Wallach and Melvin Molina.

Jennifer Sculco, the Deputy Bureau Chief for Law Enforcement Integrity at the Westchester County District Attorney’s Office, and Assistant District Attorney Renée Welker Hassel of the Public Integrity & Law Enforcement Integrity Bureau are representing the People.

Andrew Quinn of the Quinn Law Firm is representing Michael Vaccaro.

In her opening remarks, Hassel framed the issue as “a series of choices fueled by anger”by Vaccaro, provoking a situation other officers were trying to defuse. Hassel said the cell phone video shot by an employee of a local pizzeria shows an off-duty officer acting out of anger — punching and kicking Malik Fogg then pushing his head and face into a cement sidewalk, all while disregarding instructions of uninformed officers. Hassel highlighted that no other officers did what Vaccaro did.

Vaccaro’s actions were “personal, punitive, unjustified, and criminal,” Hassel said.

Hassel said when PO Wallach pointed a Taser, Fogg followed instructions to get down but Vaccaro pushed Fogg’s face into the sidewalk for 12 seconds. The DA said after punching Fogg, Vaccaro had a bloody hand. By involving himself, Vaccaro hindered the arrest of Fogg.

Quinn began his opening statements by saying that he normally does not make opening statements at a non-jury trial but he needed to in this case due to “mischaracterizations and outright falsehoods” by the DA.

Quinn said Vaccaro was not acting but reacting to Fogg, an enraged, dangerous, violent, uncontrollable person and he was the only who knew it. Vaccaro saw Fogg screaming at an elderly female and slamming her windshield and was attempting to record video to make himself the best possible witness and sought to de-escalate by driving away from the gas station and calling 911.

Quinn said the high speed pursuit of Vaccaro by Fogg included driving the wrong way on Woodland Avenue and Main Street, swerving to avoid other vehicles.

While Vaccaro, wearing plain clothes and sitting in his personal vehicle, a White Acura, not a marked police vehicle, was getting gas at the SuperGas station located at 720 Main Street he attempted to record video on his smartphone but, according to Quinn, pushed the wrong button and only took a photo. As Fogg approached his vehicle, Vaccaro sped away without disconnecting the gas hose, struck Fogg with his vehicle, struck a car on North Avenue then drove onto Woodland Avenue. Fogg pursued Vaccaro in his dark green Jeep Grand Cherokee resulting in what became a high speed pursuit ending at the Gulf gas station at 635 Main Street.

Quinn said Vaccaro identified himself as a police officer, “I’m an off-duty copy” and said Fogg acknowledged the statement by saying “now your an off-duty cop?” Fogg denied this is what he said.

Fogg later testified he said “oh, now you in front of a cop?” meaning that now that a uninformed police officer was on scene Vaccaro was willing to get out of his car and act tough meaning that Vaccaro was a coward until the police showed up.

Quinn said Vaccaro used an “arm bar” technique which police are trained to use to put someone in handcuffs and Vaccaro hit Fogg only after Fogg raised his right hand and balled his fist.

“All that happened here is people want safe communities they don’t want to see how it happens”, said Quinn.

Quinn said police officers have to use force to protect themselves which is why there is N.Y. Penal Law § 35.30.

Quinn said Wallach pointed a taser and told Fogg five times to get down, but he got down on one knee so Vaccaro brought him to the ground.

Quinn said the DA said Fogg’s face was on the sidewalk for 12 seconds but Fogg turned his neck and moved his head while his face was pressed to the sidewalk.

Quinn said no one got hurt.

Quinn said Fogg threatened to kill himself the night before the incident and was institutionalized for 8 days after he was arrested.

Under direct examination, Malik Fogg said he was 27 years old and has lived in Mount Vernon, NY with his grandmother since 2013. His mother lives in New Rochelle on Pelham Road. He said he was not in a good state of mind due to “family issues” related to his biological father, who he had only recently connected with after what he described as “abandonment”. On February 15, 2022, he went to his mother’s apartment on Pelham Road in New Rochelle and engaged her in a “heated debate”. Fogg says his mother said, “your dad doesn’t care about you”, which made angry. When his mother left her apartment, Fogg said he followed her outside to continue the discussion. When his mother drove off, he followed her in his vehicle. He admitted to exceeding the speed limit as he followed her to the SuperGas station. Along the way he was trying to call her but she would not pick up. When his mother pulled away from Fogg at the SuperGas station he yelled words to the effect of “why won’t you pick up the phone” then jumped up, reached across the car and slapped his hand on the windshield. When his mother drove off, he considered the matter over and prepared to drive back home when he noticed a person appeared to be recording him with a phone.

Fogg never used the name “Vaccaro” in his testimony, referring to Vaccaro using variations of “the guy in the White Acura”. Quinn used the terms “black guy” and “white guy” to refer to Fogg and Vaccaro, respectively.

Fogg said at first he did not believe the person was recording him but once he was sure he was being recorded, he yelled at Vaccaro words to the effect of “why you recording me?” Frustrated at not getting a response, he walked towards Vaccaro and again asked, “why you recording me?”

When he observed Vaccaro gathering himself to leave, rolling up his window, he ran towards the White Acura as Vaccaro drove off without disconnecting the gas hose, striking Fogg and then a car with the White Acura. Fogg testified that he was not sure what he would have done had Vaccaro not driven off.

Fogg said he thought Vaccaro might be recording video to put on social media to make fun of him.

Fogg testified he was arrested for DWI (alcohol) in the Bronx several years ago but the charges were reduced to traffic violations and fines.

Under cross-examination by Quinn, Fogg said he was a daily marijuana user and was under the influence of marijuana on February 15, 2022, while arguing with his mother as well as when driving between that argument and his arrest that day.

Both sides played the cell phone video which depicted a uniformed officer, Police Officer Matthew Velasco, as the first to arrive on scene. He approached Fogg, who was walking toward the White Acura. Velasco directed Fogg to the sidewalk and away from Vaccaro’s vehicle and pushed him backward down the sidewalk. Velasco pushed Fogg back as Fogg yelled profanities and threats at Vaccaro.

As Velasco pushed Fogg up against the rear of a parked vehicle and attempted to restrain Fogg, Vaccaro approached Fogg, grabbed Fogg’s left arm, and struck him on the head two times with a closed fist. Vaccaro attempted to strike Fogg with a closed fist a third time, missed, and made contact with the parked vehicle Fogg had been placed against by PO Velasco. At this time, a second uniformed officer, PO Scott Wallach, arrived to the scene. As Fogg pulled to move away from Vaccaro, Vaccaro followed and kicked his leg in the direction of Fogg’s body. PO Velasco pushed Vaccaro into the street, away from Fogg, and PO Wallach pushed Fogg onto the sidewalk, at which time Fogg raised both of his hands into the air.

Fogg said he raised his right arm and balled it into a first because “I thought I might have to protect myself.”

Fogg said his arm was still up after Vaccaro threw punches.

PO Wallach drew his taser and pointed it at Fogg. In response, Fogg lowered himself to one knee on the sidewalk. Once PO Velasco was able to place Fogg’s arms behind his back, Vaccaro approached Fogg, grabbed Fogg’s head, and used both hands to force Fogg’s head into the sidewalk for approximately twelve seconds.

Fogg said after a taser was pointed at him, he complied because he was concerned he might be shot. He said he went to one knee.

Quinn said Fogg was Vaccaro’s first words to Fogg were, “you kicked some girl’s car, bro…you fucked up”.

Malik Fogg testified his jaws still hurt as testified. He said police took photos of his hand which were scraped up. He said he was taken by two police officers to Mount Vernon hospital. He said he thought they were going there to treat his jaw but after X-rays were taken he remained for 8 days. Fogg was released with no diagnosis.

Fogg said his whole life changed as a result of the incident. He recounted how he turned a corner at a subway station, saw two police officers, and urinated on himself.

The person who recorded the cell phone video of the events at the Gulf station at 635 Main Street testified.

Albri Bayrakcari, a 38-year old Albanian who emigrated as an asylum-seeker from Kosovo recorded the incident at what he said was the “Sunoco station” (it is a Gulf station) on his cell phone. Through a court-provided interpreter, Bayrakcari told the court he worked at Cestra’s Pizza at 624 Main Street in New Rochelle and started recording video when he was flashing police lights.

Bayrakcari said he thought Vaccaro was Albanian so he spoke to him in Albanian. After Vaccaro got out of the White Acura, Bayrakcari said to him “Albanian, go back to the car”. Then he said, “Albanian. Slow down, Albanian.” Bayrakcari said Vaccaro did not respond to him when he spoke to him in Albanian.

Bayrakcari said “the black guy” looked like he wanted to fight, and he did not want them to fight. Bayrakcari said “the white guy” was calm, not irritated.

When Vaccaro hit Fogg, Bayrakcari said to Vaccaro, “why are you hitting him when he is in hands of the police?”

Bayrakcari said to the uninformed officers, in English, about Vaccaro hitting Fogg, “Why don’t you stop him?”

Bayrakcari said he did not hear anything like Vaccaro identifying himself as a police officer.

Bayrakcari did not see Fogg raise his arm or see Vaccaro grab Fogg’s arm.

PERSONAL OBSERVATIONS

When the trial began, there were 13 people in the gallery, 11 of them wearing PBA t-shirts. The turnout stands in stark contrast to Vaccaro’s arraignment in 2021 when the same courtroom was packed with members of the PBA throughout the area.

Except for court staff, Malik Fogg and his civil attorney were the only black people present throughout the day’s testimony.

Will the DA present the audio recordings from that day — obtained exclusively by Talk of the Sound — which appear to contradict Quinn’s statements about Vaccaro’s concern for Stacia Fogg, Malik Fogg’s mother?

In New York State, gas pumps do not have hold-open clips to avoid overflow. Does SuperGas? Or was Vaccaro at a full-service pump? Why was he sitting in his car instead of pumping gas?

UPDATE 7/19: Vaccaro was parked at Pump #6, a full service pump, the pump handle does not have a hold-open clip.

Captain Neil Reynolds, former head of NRPD Internal Affairs, will testify that he was not on duty on February 15, 2022, but the next day he saw the cell phone video and referred the matter to the DA. The NRPD statement at the time said Schaller made the referral; later then-PBA President, Christopher Greco, said Schaller referred the matter to the DA because he expected nothing would be done.

Michael Vaccaro – Malik Fogg Archive