Nassau police investigate the scene of the shooting on Stirrup Path in...

Nassau police investigate the scene of the shooting on Stirrup Path in Seaford in 2019. Credit: Howard Schnapp

A Nassau judge has thrown out criminal charges against both an NYPD sergeant and the romantic rival who was wielding a bat when the off-duty police official shot him during a 2019 confrontation in Seaford.

Acting State Supreme Court Justice Francis Ricigliano found in a decision that became public Monday that the prosecution gave a "flawed presentation" to the grand jury that prejudiced the cases against both NYPD Sgt. Justin Ellis and Patrick Catania, the personal trainer of Ellis' wife.

The sergeant's wife, Nicole Ellis, met Catania through fitness classes and started a romantic relationship with him while planning to leave her husband, Catania's former attorney previously told Newsday. He also said that the husband had objected to the relationship.

In November, the same grand jury indicted Ellis, 36, on a felony assault charge and Catania, 31, of Point Lookout, on charges of attempted assault, criminal possession of a weapon, menacing and criminal trespass.

The Nassau County District Attorney's Office had alleged that on Oct. 25, 2019, Ellis returned to the home he shared with his wife and children to find Catania trespassing on their property before the men got into an argument. Prosecutors said Catania retrieved a baseball bat and tried to assault Ellis and that Ellis shot at Catania twice, wounding him once in the chest.

Both men called 911 and Nassau police didn’t make any arrests in the aftermath of the shooting on Stirrup Path, with charges filed only after the district attorney's office brought the case to the grand jury. Attorneys for both Justin Ellis and Catania said after their clients' arraignments that their actions had been justified.

The judge's ruling said grand jury testimony showed Nicole Ellis had been speaking to Catania on her family's front stoop after he knocked on a bedroom window and that Catania began walking away after she saw her husband approaching in his truck.

Justin Ellis testified he saw Catania walking away and the front door closing before the two men then cursed at each other, with Catania refusing to leave what he called a public sidewalk as Ellis followed Catania, the ruling said.

It also said Justin Ellis testified that Catania then pulled a bat from his truck, threatening to hit him in the head before raising the bat and trying to take a swing that prompted the off-duty sergeant to open fire.

But Catania testified that he told Justin Ellis that he was on a public sidewalk, but he was leaving the area, before the police official followed him and said he would kill him, according to the judge's ruling.

It also said Catania testified that he pulled out a bat from his truck and held it up while warning Justin Ellis to stop before the off-duty police official "got into a tactical stance" and shot him.

Nicole Ellis, who also testified in the grand jury, said she heard the men arguing before she saw Catania take a bat from his vehicle, raise it and go to swing at her husband, according to judge's ruling. It also said the wife testified that she heard her husband tell Catania to put down the bat before Catania swung it and she heard two gunshots.

Ricigliano found in his ruling that the prosecution unintentionally gave grand jurors "incorrect instructions." The prosecution "misstated their burden of proof" by saying they had to prove "there was no reasonable cause" to believe Ellis had committed a crime, instead of saying they had to prove "there was reasonable cause," according to the judge.

He also found the prosecution erred by telling grand jurors that Ellis, as a police officer, was "entitled to the no duty to retreat charge." The judge said that law applies when a police official is trying to arrest someone or trying to prevent an escape from custody.

"Here, the record is devoid of testimony that Ellis was attempting to arrest Catania or prevent him from escaping, only that Ellis was attempting to 'deescalate' and 'went from, you know, citizen/husband mode to now I've been a police officer, I'm an NYPD sergeant, so now I'm kind of in conflict at this point,'" Ricigliano's ruling said, quoting from Justin Ellis' testimony.

The judge gave prosecutors the option to present the cases against both men to another grand jury within 30 days to potentially seek a new indictment.

District attorney's office spokesman Brendan Brosh said Monday that prosecutors were reviewing Ricigliano's decision. Catania's attorney, Scott Gross, called the ruling "one small step forward" for a client who is looking forward to leaving the incident behind him.

"As we have maintained from the very beginning, Mr. Catania has never committed a crime. Today the Court agreed," the Garden City lawyer added.

An attorney for Ellis didn't respond to a request for comment Monday, but previously told Newsday the sergeant's off-duty use of his weapon "was justified given the circumstances."

The NYPD, which previously had suspended the police officer without pay, said Monday that he now is suspended with pay.

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