Thomas Moroughan, who has filed a $30 million federal lawsuit...

Thomas Moroughan, who has filed a $30 million federal lawsuit against the Nassau and Suffolk police departments and both counties after being shot by an off-duty police officer. Credit: James Carbone, 2011

The unarmed cabdriver shot by an off-duty Nassau cop who had been drinking does not want to testify before the grand jury empaneled by Suffolk District Attorney Thomas Spota to hear evidence in the 2011 case, his lawyer said Thursday.

The lawyer for Thomas Moroughan, William Petrillo, said his client has not been subpoenaed and, if he is, "he will not be held in contempt of court, but we will address any and all legal issues if the district attorney fails to honor our request and victimize him further by seeking to compel his testimony."

In a letter to Spota, Petrillo said his client had been "emotionally, mentally and physically scarred" by the incident and is suffering from post-traumatic stress disorder.

"He has spent the last two years and four months trying to heal by placing these events behind him, regaining public trust in his character and reputation, and attempting to move forward with his life. He has had quite a struggle," Petrillo said in the letter.

In addition, Moroughan "feels skeptical regarding this process almost two and one half years after the fact," Petrillo wrote. He also said a subpoena would "victimize" his client further.

The empaneling of a grand jury in the case of Nassau Police Officer Anthony DiLeonardo comes after Newsday published a story based on a report by Nassau Internal Affairs investigators that found DiLeonardo unlawfully shot and beat Moroughan in Huntington Station after a night of drinking on Feb. 27, 2011.

The report by the Internal Affairs Unit 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 Nassau Officer Edward Bienz, who accompanied DiLeonardo to several bars that night, based on the investigation's findings that he committed two unlawful acts and three counts of violating department rules.

DiLeonardo's lawyer, Bruce Barket, said Thursday that Di-Leonardo had not been subpoenaed and that his client committed no crime.

"Moroughan tried to run him over, and Officer DiLeonardo defended himself by firing his weapon," Barket said. "Those facts are not going to be changed."

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.

"Obviously, one can understand his lack of trust in the police and the system," Petrillo wrote of his client.

Prosecutors said last month that criminal charges had not initially been filed against DiLeonardo and Bienz because Moroughan and his girlfriend -- who was with him during the shooting -- refused to cooperate.

Responding to Petrillo's letter, Spota issued a statement saying: "We are surprised and disappointed that the cabdriver, Mr. Moroughan, and his girlfriend, continue -- as they did two years ago -- to refuse to cooperate with this office, including requesting that we not subpoena or attempt to compel them to testify before a grand jury.

"Nevertheless, based upon the facts and circumstances of the case, and even more importantly, the failure of the Nassau County Police Department to follow our recommendation that they discipline or remove the police officers involved in the incident, we have requested a special grand jury be empaneled, we will consider all of our options and this investigation will move forward."

Nassau police said state law bars the department from commenting on whether either of the officers has already been disciplined. Department spokesman Kenneth Lack declined to comment on Spota's statement.

Stephen Scaring, a Garden City defense lawyer who was chief of the Homicide Bureau in Nassau County from 1969 to 1977, said that Moroughan would be required to testify in the grand jury if Spota subpoenas him.

"It's not really up to the cabdriver as to whether he has to testify," Scaring said. "If subpoenaed, he must give truthful testimony" or be subject to contempt charges.

By testifying truthfully in the grand jury, Scaring said, Moroughan would automatically be granted immunity from any possible criminal charges.

"The issue is, does the DA want to go forward on a case in which his key witness is not cooperating . . . and objecting to appearing and testifying?" Scaring said. "Most prosecutors are not excited about going forward with a case where the victim is uncooperative. It makes it difficult to win."

Bennett Gershman, a law professor at Pace Law School and a former Manhattan prosecutor, challenged statements by the district attorney's office about not prosecuting the case because Moroughan wouldn't testify before a grand jury.

"Prosecutors use strong-arm tactics all the time when they want to indict someone," he said. "It raises all sorts of questions about cover-up, about favoritism, about police misconduct."

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