The Suffolk County district attorney's office is convening a new grand jury and has served subpoenas in the case of a Nassau County police officer who internal affairs investigators found unlawfully shot and beat an unarmed cabdriver in Huntington Station after a night of drinking in 2011, according to court records and law enforcement sources.
Information is being sought about the actions of Officer Anthony DiLeonardo, who fired the shots while off duty, and Officer Edward Bienz, his off-duty, barhopping companion, that would be presented to a grand jury that could consider criminal charges in the case, law enforcement sourcesa said. Other law enforcement officers involved in the investigation are also expected to be called to testify, the sources said.
A court filing Wednesday as part of a $30 million civil suit filed by the cabdriver indicates that an earlier grand jury had been convened and that a new one will get underway.
The grand jury will be empaneled and begin to hear testimony in the next few weeks, the sources said, and will likely consider charges ranging from assault to attempted murder.
The Suffolk County district attorney's office declined to comment.
Bruce Barket, DiLeonardo's attorney, said, "Officer DiLeonardo was cleared by the investigation completed immediately after he was attacked. We are confident that any fair review will result in his exoneration."
Neither DiLeonardo nor Bienz could be reached. A Nassau police spokesman declined to comment on the subpoenas.
"He's represented by his own counsel in this matter," Nassau Police Benevolent Association president James Carver said of DiLeonardo.
A Nassau Police Department Internal Affairs Unit report on the Feb. 27, 2011, case found that DiLeonardo recklessly escalated a roadside verbal dispute when he shot at cabdriver Thomas Moroughan five times with a .38-caliber Smith & Wesson. The cabdriver was hit once in the left arm and once in the chest, as his girlfriend sat beside him in the front seat, according to the unit's report obtained by Newsday.
The report recommended 19 departmental charges for what it found to be 11 unlawful acts and eight departmental rules violations by DiLeonardo. It also recommended five departmental charges be brought against Bienz, based on the investigation's findings that he committed two unlawful acts and three counts of violating department rules.
Found unfit for duty
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. The report did not address whether the officers should be charged criminally, and it did not indicate whether the recommended departmental charges were ever brought.
Both men remain on the police force.
Suffolk County police arrested Moroughan the day of the altercation 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.
Suffolk District Attorney Thomas Spota said last month that criminal charges had not been filed against any of the involved officers because Moroughan and his girlfriend "refused to speak" to his investigators. A court filing Wednesday indicated that an earlier grand jury had been convened in the case.
Last month, the DA's spokesman, Robert Clifford, said: "We could not proceed further criminally because Mr. [Thomas] Moroughan and his girlfriend refused to cooperate with the district attorney's office . . . despite repeated requests."
Newsday found the internal affairs report on the Moroughan shooting in court records from a $30 million 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.
Moroughan's lawyer, Anthony Grandinette, declined to discuss the subpoenas. He also refused to say whether his client would testify before the Suffolk grand jury.
"I have no comment on what the Suffolk DA may or may not be doing in this case," Grandinette said.
The internal affairs report was the result of a yearlong investigation, ordered by then acting police Commissioner Thomas Krumpter, and includes materials from the Suffolk district attorney's office and the Suffolk Police Department.
The report concluded that DiLeonardo fired at Moroughan and approached his cab with gun in hand as the cabbie tried to retreat, then beat him about the head with the butt of his gun numerous times. The finding contradicted statements by DiLeonardo that Moroughan revved his car engine and tried to run down DiLeonardo, who said he drew his weapon only when the cab was coming toward him.
Statement in dispute
Moroughan signed a sworn statement Suffolk County homicide detectives wrote for him while he lay in a hospital bed on morphine, with two bullets still inside him and with a broken nose, according to the report. Moroughan said the Suffolk detectives did not allow him to consult with an attorney before signing it. The statement helped exonerate DiLeonardo and incriminate Moroughan, and was later shown to include events that were contradicted by the department's own investigation, the report states.
Though DiLeonardo did not mention drinking in his initial post-shooting statement, he later told Suffolk district attorney investigators that he'd had eight to 10 drinks, and Nassau internal affairs investigators that he had six drinks, over a roughly 41/2-hour period before the shooting.
Within 12 hours of the shooting, Nassau County's Deadly Force Response Team cleared DiLeonardo of wrongdoing, allowing him to continue making arrests after two weeks of paid sick leave. However, a Suffolk crime scene analyst later reported the events couldn't have occurred as DiLeonardo had described, and a Suffolk district attorney investigator determined that the shooting was "unjustified."
Nassau Police Commissioner Thomas Dale, in a statement emailed to Newsday last month, wrote of the shooting, in part: "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."
Nassau County Executive Edward Mangano said he expects Dale to investigate and dole out "appropriate" departmental discipline.
With Gus Garcia-Roberts and Sandra Peddie
An earlier version of this story erroneously reported that DiLeonardo and Bienz were subpoenaed to testify before a grand jury. That statement was based on incorrect information from a law enforcement source.