Day Two: Trial of New Rochelle Police Detective Michael Vaccaro Continues

NEW ROCHELLE, NY (July 19, 2022) — The trial of New Rochelle Police Detective Michael Vaccaro entered its second day at the New Rochelle City Court. Judge Matthew J. Costa is presiding over 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.

The court provided a copy of the witness list. Not everyone on the list will necessarily testify but if everyone testified the trial could last all week.

The court provided a copy of Sandoval application, which both sides agreed before the trial began on Monday would not be argued unless Vaccaro decided to testify. The document is a deep dive into Vaccaro’s disciplinary record with the New Rochelle Police Department.

11:10 AM BREAK: I correctly ordered the pages of the Sandoval application then went back into the courtroom.

12:30 PM LUNCH BREAK: I will update what took place in the morning session now.

Witness NRPD CSO Mark McLeroy testified to the radio police radio calls entered into evidence as People’s Exhibit 4 by the DA. Talk of the Sound obtained these audio files in 2021.

McLeroy testified that he took a call from Vaccaro and that at some point he realized he was no longer talking to Vaccaro but the call was not terminated so McLeroy put his end of the call on mute to get a better quality which he believed might be used as evidence.

The calls include a friend of Stacia Fogg, the mother of Malik Fogg, telling police that Stacia Fogg told her son was going to run into her car. The friend provide a mobile phone number and the police called Stacia Fogg.

Stacia Fogg told police “my son is not well” and she almost crashed three times. She provides a description of her son’s car including the tag numbers.

On the audio, Vaccaro calls and provides details of his location and a description of the person pursuing him and the make and model. He says he is off-duty, unarmed and in his White Acura.

At about 10:50 am, 5 members of the New Rochelle PBA arrived in the courtroom.

McLeroy was cross-examined by Andrew Quinn, Vaccaro’s lawyer. Quinn sought to establish the point that Vaccaro was helpful in reporting details of the situation to McLeroy including that he was off-duty, unarmed and not in a police vehicle.

Witness PO Matthew Velasco testified next. Under direct examination by Jennifer Sculco he was asked about two videos of the incident, one the cell phone video and the other a pan/tilt/zoom City Camera. he was still testifying when a lunch break was called.

Velasco’s testimony was problematic for Vaccaro who slumped back in his chair at the defense table, nervously tapping his shoes on the floor.

Velasco testified that as the responding officer he was in charge of the scene. He did not ask Vaccaro to assist him because he off-duty, he did not have his firearm, his duty belt, and was not wearing a bulletproof vest. When he was attempting to handcuff Fogg he thought a civilian was punching Fogg. It was only when he attempted to push the person punching Fogg away that he knew it was Vaccaro.

Velasco said he saw Fogg approach the Acura pumping his hands, making fists with his hands, yelling at the driver of the Acura. When he got within 5 feet of Fogg, Velasco said “stop” and “relax” to Fogg. Velasco saw

3:20 PM BREAK

It would be fair to say that although Velasco is a witness called by the DA he is for all intents a hostile witness. He only met with the DA once in April 2022 but met with the defense attorney twice including recently. Velasco was compelled to testify under a subpoena. Quinn is signaling his approval of particular answers to questions by the DA and is far more cooperative with Quinn than the DA when questioned. Velasco was recruited into the Special Investigations Unit (SIU), the same unit as Vaccaro, within a few days of the Fogg incident on 2/15/21 which seems like buying his support for Vaccaro by giving Velasco a career path.

Velasco testified he placed himself between Fogg and Vaccaro’s Acura and was pushing Fogg down the sidewalk to separate the two and later pushed them both away from each other after Velasco decided to arrest Fogg because they were parties to a dispute.

Velasco noticed something heavy in Fogg’s pocket as he was pushing him and patted his hand in that area. He did not sense it was a weapon. Velasco said he did not recall saying “where’s your license” but agreed that it was voice on the cell phone video.

When Velasco is asked by the DA about getting Fogg into a patrol car and checking Fogg’s pocket he says “it does not appear to happen”.

It would be difficult without publishing a transcript to describe the entirety of the back and forth between questions by Sculco and Quinn directed at Velasco but the lawyers are going almost frame by frame the People’s Exhibit 2, the cell phone video, to make the case that Fogg was or was not complying with Velasco and Wallach or was or was not subjected to an appropriate use of force. I will try to detail that later. Going back in. Should end at about 4:30 pm.

4:10 PM Judge Costa calls it a day. ADA Sculco says she has two more witnesses. The DA promised Neil Reynolds in their opening statement so he seems likely to be one of the two. That would leave Alberico or Molina. I will finish up Velasco and the last witness Lt. Luigi Amico.

Velasco testifies when he had Fogg up against a parked car he tried to put Fogg’s hands behind his back, Fogg raised his hands and balled his fist like he was ready to fight. He also testified that there moments up against the car where Fogg was compliant.

Velasco testified he made a mistake getting between PO Wallach holding a taser and Fogg, he put himself in the line of fire and effectively eliminated the ability for Wallach to tase Fogg, if necessary.

Velasco said he searched Fogg for a weapon but dis not find one but later admitted the video does not show him searching Fogg.

Velasco testified that as the responding officer he was in charge of the scene.

Velasco said when he attempted to arrest Fogg, Fogg was immediately non-compliant. He said he grabbed Fogg’s wrists and Fogg became compliant.

“I have control of his wrists,” said Velasco. “He doesn’t have a choice.”

Velasco said he saw that Fogg was punched in the face but did not know who punched him. He was concerned a civilian was involved. It was only when he pushed Vaccaro away that he realized it was Vaccaro. He told him to stop but Vaccaro did not stop.

“I’m in charge of the scene, he (Vaccaro) should listen,”

Velasco said he saw Fogg on one knee, listening to Wallach’s commands, being compliant to the command “get on the ground”.

At this point in Velasco’s testimony, Vaccaro slumped back in his chair, appearing unhappy, nervously tapping both feet on the floor, under the defense table.

The DA played video not included in the material obtained by Talk of the Sound in 2021, video from a City “pan/tilt/zoom” camera, another angle from far away of the scene at the Gulf station.

Sculco asked Velasco about a moment when he had one arm outstretched pushing Fogg in one direction and the other arm outstretched pushing Vaccaro in another direction. Velasco said he was separating what he believed were two civilians having a dispute.

After lunch break, Sculco played People’s Exhibit 4. At one point the words “off duty cop” are audible although no one has testified to hearing those words on scene that day. The words “stop, Mike, stop” are audible which Velasco said was him telling Vaccaro to back off and let the uniform guys handle Fogg.

Velasco testified that he drove Fogg to police headquarters and later spoke to him in an interview room and that Fogg was “calm” and “respectful”. Fogg said his jaw hurt but Velasco did not seek medical care for Fogg.

Quinn then cross-examined Velasco. Quinn asked about observing Fogg after Fogg stopped his car to go after Vaccaro. Fogg was wearing a ski mask. Velasco said he did not hear Vaccaro say he was an “off-duty cop”. Velasco said Fogg at first got down on only one knee but not in a prone position.

Quinn asked Velasco about the “arm bar” technique used by Vaccaro. Velasco did not appear to know anything about it.

Quinn asked if he saw Vaccaro’s punch landed on Fogg’s face, Velasco said no.

Quinn pointed out where in the cell phone video Fogg raised his hand and balled his hand into a fist.

On Redirect by Sculco, Velasco said he expected a fight with Fogg but did not draw his weapon, kick him or strike him in the face.

Quinn ended when Velasco said if he had seen Fogg make a fist and look at him like Fogg looked at Vaccaro he would have punched Fogg.

The last witness of the day was Detective Luigi Amico.

On direct, Amico said he arrived on scene when Fogg was prone on the ground being handcuffed. Seeing Fogg was under the officers control he turned his attention to crowd control, primarily a woman heard screaming on the cell phone video. He was telling everyone around him “relax, relax, relax”. He tapped Wallach’s knee to tell him it was time to get Fogg up and “get him to the car”.

On cross-examination he said he was the senior guy on scene and did not see anything improper including Vaccaro’s involvement in the arrest of Fogg.

At the end of his shift about 4 pm. Amico, along with PO Lane Schlesinger, he said he took Fogg to Mount Vernon hospital. He said Fogg “seemed OK”.

END OF DAY

Observations:

So much of the case against Vaccaro relies on the cell phone video and an almost frame-by-frame analysis of the recording it is fair to say that without Albri Bayrakcari, a 38-year old Albanian who emigrated as an asylum-seeker from Kosovo, a few years ago, this trial would not last a day. It is the Zapruder film of police misconduct charges in New Rochelle. Without the Bayrakcari video there would be no case.

Andrew Quinn is something else, he has managed to get ADA Hassel to operate the video playback for him. Yikes!

“Celebrity” Sightings

• Lt. Robert Wenzler, head of the NRPD Internal Affairs Unit, has been present for the entire trial
• Phil Mellea, recently named New Rochelle Branch Chief of the Westchester County District Attorney’s Office, stopped in for a bit in the afternoon.
• Detective Sergeant Sean Kane, the 2012 NRPD Officer of the Year

Michael Vaccaro – Malik Fogg Archive

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