NEW ROCHELLE, NY (July 21, 2022) — Judge Matthew J. Costa found New Rochelle Police Detective Michael Vaccaro not guilty on both counts of Attempted Assault in the Third Degree at the end of a four day non-jury trial. The case is now sealed.
There is still a federal lawsuit brought by Malik Fogg against the City of New Rochelle, New Rochelle Police Department, Joseph Schaller, Michael Vaccaro, Matthew Velasco, Scott Wallach and Melvin Molina.
Vaccaro’s mother who attended every minute of the trial broke down after the verdict was announced, slumping into a chair in the hallway, sobbing.
The 20 or so members of the New Rochelle PBA on hand were happy with the outcome.
Despite two years of complaints from members of the New Rochelle black community about police brutality nationally as in the cases of George Floyd and Breonna Taylor and locally as in the case of the officer-involved shooting of Kamal Flowers by New Rochelle PO Alec McKenna, not a single member of the New Rochelle African-American Advisory Committee, the New Rochelle Branch of the NAACP, members of the Community Police Partnership Board, the Inter-Religious Coalition of New Rochelle, nor the leadership of New Rochelle Black Churches, many of whom are members of the other organizations, bothered to attend a single minute of the four day trial. None were on hand for the verdict. For this reason we are not reaching out to them for comment as they have already commented by their actions that while they may like to talk about police brutality when the cameras are on they cannot be bothered with an actual case of police brutality.
Both sides presented their closing arguments this morning.
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.
Judge Costa concluded that the people failed to meet their burden of proof, “beyond a reasonable doubt”.
Both sides will present their closing arguments today. Court opens at 9:30 am.
11:30 AM Both sides have completed their summations. Judge Costa took a break until noon.
It will be difficult to get two hours of summation into a quick update before court is back in session.
DEFENSE SUMMATION/Andrew Quinn
Almost a disciplinary hearing but this is a criminal court. There’s no evidence that the car intend to assault Fogg. It’s a problem when a prosecution begins with press play referring to the reliance on the cell phone video referring to the reliance on the cell phone video. Videos are not the whole story Vaccaro never got aggressive as Velasco is pushing Fogg down the sidewalk. Vaccaro only swings when Fogg raises up.
SIDE NOTE: I was nterrupted while attempting to write this update by Jonathan Bandler of the Journal News shouting at me, complaining “if you are taking attendance“ wanting me to note he is at court today, saying that I should not say he or any reported is not there meaning in this case at court. What I said about him is true: that I did not seem at anytime Monday (and its a small room). I saw him Wednesday when he was there for the morning. He is here now. I told him I was working (to write this) but he kept raising his voice and interrupting me. Readers can judge for themselves. My sense is that the guy is an ass but if he wants to talk to me on scene of a major event that I am covering to wait until its over not say something, then approach me, and shout at me. And when I tell him I will talk to him after I am done working to continue in a combative argumentative tone.
Back to Quinn: Velasco was separating Vaccaro from Fogg because he did not know he was.
Vaccaro had two opportunities to assault Fogg — before the arm bar and after the taser — but did not.
Reynolds testimony a distraction, a rush to judgement.
“I applaud Mike for not standing down.”
Whether Fogg had a weapon is a distraction.
Fogg was dangerous — driving while high, driving recklessly, threatening his mother, threatening Vaccaro. He was an emotionally disturbed person who ended up in the hospital.
The “Malik was having a bad day argument is idiotic”.
Vaccaro acted as he was trained, in every way.
12:00 PM Back into Court
VERDICT: Not guilty. Case sealed.
The verdict is in but I will add the rest of my notes.
PROSECUTION SUMMATION/Jennifer Sculco
You cannot provoke a situation then claim self-defense. Vaccaro’s choices were intentional, his ego, self-interest, did not deescalate.
Vaccaro did not assist Velasco he made Velasco’s job more difficult. Not reasonable.
Personal, punitive, unjust, criminal.
What Fogg admitted to — driving recklessnessly, talking in cell phone, driving the wrong way on one-way streets, etc.
Vaccaro, as a New Rochelle Detective knew the SuperGas had CCTV so why is he recording with his phone and not calling HQ?
On the first 911 call, Vaccaro is calm. No sense of urgency. He is calling as CYA because he hit a car. The video shows the car he hit followed Vaccaro before Fogg. The call is not about his concern for Stacia Fogg but it is about protecting himself because he hit a car. At the time of this call Fogg is not pursuing Fogg and he does not report the crime he said he was recording.
On the second 911 call, Vaccaro is loud. The call is about what is happening to him. He is being pursued by Fogg.
Deescalation – all that Vaccaro had to do to deescalate once Velasco arrived on scene was to remain in the car but he got out of the car; Vaccaro got what he requested in a uninformed police response then inserted himself. At that point, Vaccaro is a party to the dispute. Fogg’s anger and attention is directed entirely at Vaccaro as Velasco pushed Fogg down the sidewalk. To deescalate Vaccaro should stay away not approach Fogg who was complying with Velasco, unarmed, not grabbing at his pockets or waistband; the entire time Fogg did not know Vaccaro was a police officer and no one on scene heard Vaccaro say he was a police officer (as I reported a year ago and when I was first to obtain and publish the cell phone video, Vaccaro did say he was an off-duty copy but given what was happening it is not surprising neither Fogg or Velasco heard him say it).
Vaccaro was not using an arm bar to get Fogg in handcuffs, he was pulling at him to punch him. When he is kicking Fogg he is pulling Fogg away from Velasco and Wallach.
Vaccaro ignored instructions by Velasco to “stop” and stay away. Vaccaro ignores this and comes back repeatedly to Fogg. Once Fogg is under control, in handcuffs, Vaccaro approaches Fogg again and yells at him.
The officers who testified, especially Velasco, showed what they actually thought in the video and only later came up with statements to change the narrative in favor of Vaccaro.
Vaccaro was overstating and exaggerating and making false statements at the scene as CYA.
Fogg asks three times “is he a cop” and the officers around him will not answer because they did not want to identify Vaccaro as a police officer.
After the incident police and hospital describe Fogg as calm, not combative, quiet, pleasant.
Vaccaro knew Fogg was upset at him so should not have inserted himself.
Velasco said “Mike, stop” over and over. He knew who he was and was pushing him away and telling him to stop.
Vaccaro says immediately after the incident things that are not in the videos: Fogg punched him, Fogg kicked his mother’s car, told Fogg to “chill”, Fogg was banging on his car,
Vaccaro says “I’m not going to lie to you, I punched him in the face” which is what you say as an admission of guilt”.
Calvin McGee could not confidently say Vaccaro had a phone in his hand while recording Fogg, could not say Velasco was telling Vaccaro to stop.
Neil Reynold did not make a rush to judgement in referring matter to DA, the video speaks for itself.
Why was Wallach not a witness?
During the trial, on my way to lunch on Tuesday, I observed Vaccaro drive the wrong way, through the City Hall parking lot and out onto North Avenue.
I will not identify them here but today there was some back and forth with misinformed members of the NR PBA (they know who they are) who appeared upset that, according to them, I was recording video of Vaccaro. Let’s set aside the irony of Vaccaro and his supporters being upset that I would record video of Vaccaro. These officers believe, incorrectly, that it is illegal for me to capture images (photos, video) in the hallway of a courthouse. It is not. They are confused because they said they “looked it up” and found something on the Internet. I did not see what they were talking about but what they read to me applies to the general public. It does not apply to reporters. I advised them to check with the office of Janet DiFiore, Chief Judge of the Court of Appeals and the State of New York (as I did) so they might learn that there are different standards for the general public and reporters. Apparently they complained to court officers who approached me. I explained that I was allowed to gather images in the hallway and that I had confirmed this, in writing, with DeFiore’s office earlier in the week. Wanting to publish the decision in the trial as rapidly as possible I asked the court officers if I could get back to work and sat down and began typing away on my phone then left the courthouse.
What was never mentioned in that the entire trial is that all of the streets where Vaccaro tells the 911 operator he is driving — Woodland, Elm, Pintard, Main (he does not say but also Huguenot) — are within the immediate vicinity of Vaccaro’s residence. His home was in the four corners of the above map. In other words, Vaccaro is leading what he called a “psycho” on a high speed through a residential neighborhood, his own neighborhood, in the middle of a school day. It is worth noting because a more obvious decision would have been to drive on Main Street and avoid residential side streets. I believe this explains why he pulled out of SuperGas onto Main Street then turned immediately onto Woodland—he was on his way home before he realized Fogg (and the driver of the car he it) was following him.
I see no reason to publish Vaccaro’s home address. I will say it was provided to me about a year ago as part of a FOIL request, it was in the accusatory instrument. I published that document unaware it had any personal information on Vaccaro. Andrew Quinn saw it, contacted me, and asked me to redact the home address from the document. I agreed to do that. I did do that.
8:39 PM Statement of the Executive Board of the Police Association of New Rochelle
After a four-day trial in the New Rochelle City Court, Judge Matthew Costa issued a verdict finding NRPD Detective Michael Vaccaro not guilty of attempted assault for his assistance in the arrest of Malik Fogg on February 15, 2021. The New Rochelle PBA is pleased, but not surprised, by this verdict.
Though we are pleased with the outcome of this case, we remain disappointed and frustrated with the Westchester County District Attorney’s decision to charge Detective Vaccaro in the first place, and with the prosecution’s appallingly slanted presentation of the events that occurred on February 15, 2021 during the trial.
During the trial, the prosecution presented a narrative where Malik Fogg was a victim, and Detective Vaccaro, who began to film an ongoing incident out of concern for an elderly woman under attack, was the violent perpetrator. The District Attorney’s office excused Malik Fogg’s violent, criminal actions– during their argument at trial and by dropping the criminal charges entirely– because they believe that on February 15, 2021, Fogg was having a bad day. Apparently, under District Attorney Mimi Rocha’s administration, the duty of the District Attorney’s Office is to cater to the predators of society, rather than protecting the preyed upon. Fortunately, DA Rocah did not have the final say in whether Detective Vaccaro acted within the parameters of the law.
Despite the lack of support from Westchester County’s chief law enforcement agency, we remain committed to our duty to protect all residents of the City of New Rochelle.
Statement of Westchester County District Attorney Mimi Rocah
We are proud of the work of our dedicated prosecutors and we thank the New Rochelle Police Department for their cooperation in this case. As with all criminal trials, the People have the burden of presenting proof beyond a reasonable doubt. As the Court indicated in its decision, the Court was faced with two narratives that were both “reasonable” based on the evidence presented. Given the People’s burden, the Court determined that it was not provided with proof beyond a reasonable doubt to support a conviction on the charges brought, a decision we respect. We remain committed to holding accountable the few who abuse their positions of authority, and we will continue to work with our valuable law enforcement partners to keep our communities safe.
Statement by City of New Rochelle
Detective Vaccaro remains suspended with pay, pending the outcome of his Departmental disciplinary proceeding.