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Memo: Different account of Capano shooting

Members of the FBI Evidence Response Team closed

Members of the FBI Evidence Response Team closed off Merrick Road to gather more evidence outside of Charlie's Family Pharmacy. (Jan. 1, 2012) Credit: Kevin P. Coughlin

A pharmacist at the Seaford drugstore where off-duty ATF agent John Capano was fatally shot trying to stop a robber on New Year's Eve gave investigators a dramatic witness account of the shooting, according to a confidential internal memorandum from the Nassau County district attorney's office.

The pharmacist's account differed from that offered by a lawyer for retired Nassau police Lt. Christopher Geraghty, who mistakenly shot Capano, on some aspects of the sequence of events immediately before and after the shooting.

Geraghty's lawyer, Brian J. Davis, said, "In the heat of battle, people see different things in different ways."

A law enforcement source said Wednesday that one part of the pharmacist's account -- that Capano was shot in the back -- differs from what the autopsy report showed, which was that Capano was killed by a shot to the right side of his chest, tearing into his aorta. The source said the shot came from a .38-caliber revolver, the same caliber gun Geraghty was carrying that day.

According to the memorandum, the pharmacist said he also drew a pistol during the pursuit of the robber, intending "to assist Capano."

The three-page document is based on a Jan. 10 interview by prosecutors and detectives with the pharmacist who was on duty at the time. It was accidentally posted on the DA's website, according to a spokesman.

"A confidential internal memorandum from an ongoing investigation was mislabeled and placed on the district attorney's website in error," John Byrne, a spokesman for District Attorney Kathleen Rice, said in a statement Wednesday. "This interview represents just one of many perspectives of the Seaford tragedy and no conclusions should be drawn from it.

"The district attorney's office is reviewing our electronic security procedures to prevent such accidental disclosures in the future."

The document has been removed from the website.


One of many accounts

Byrne said prosecutors have interviewed 13 witnesses in the case so far, with only a few interviews outstanding. He said the pharmacist's account was one of many related to prosecutors, and that witnesses' statements and perspectives vary.

The pharmacist confirmed Wednesday that he spoke to prosecutors but declined to discuss all the details.

Capano, 51, of Massapequa, had gone to the drugstore to pick up prescriptions. He came into the store from a rear entrance as the robbery was in the progress, and then followed and confronted the escaping suspect, James McGoey, 43, of Hampton Bays, according to the pharmacist's account.

McGoey, who had prior convictions for drugstore and other robberies, was carrying a silver pellet gun that looked like an actual .45-caliber pistol, police have said.

The pharmacist headed out the rear of Charlie's Family Pharmacy, turned into an alley toward the front of the store, and drew a loaded 9-millimeter gun from his ankle holster, according to the memorandum. Byrne said the weapon was licensed.

The document described the pharmacist's account of the fatal sequence of events:

When he reached the sidewalk in front of the store, the pharmacist "observed Capano and McGoey chest to chest in a struggle," with Capano on top and McGoey on his back on the ground. The pharmacist knew Capano was an ATF agent, the memorandum said.

The pharmacist heard a voice he presumed to be McGoey's say, "I've got your gun, I've got your gun, I'm going to shoot you," the document said.

The pharmacist "had his weapon drawn and pointed at both Capano and McGoey," it said.

"[The pharmacist] called out to Capano several times, 'John, what do I do?' " but got no response, the memorandum said.

Then, the pharmacist told investigators, he saw Geraghty, 54, who was working at the nearby Seaford Deli, "jump on top of the pile, on top of Capano," according to the memorandum. "Chris works at the deli a few doors down from the pharmacy, and [the pharmacist] had met Chris before."

The pharmacist told investigators he saw Geraghty display "a revolver type handgun in his right hand. [The pharmacist] observed Chris take the revolver, put it to the back of Capano, and fire one round," the memorandum said.

The account continued, "[The pharmacist] did not hear Chris say anything."

The pharmacist "immediately told Chris that he had shot the wrong man by stating to Chris 'no Chris, wrong guy.' Chris responded by turning his head and looking at [the pharmacist], and asking [the pharmacist], 'who is the bad guy?' [The pharmacist] pointed at McGoey and said 'no, that guy.' Chris again looked back and said 'which guy?' and [the pharmacist] continued to point at McGoey and say 'that guy,' " the document said.

McGoey was shot dead by an off-duty New York police officer who also came to the scene from the deli, according to law enforcement sources. The pharmacist, who had briefly retreated down the alley, said that when he returned to the sidewalk, Geraghty asked him to hold his gun. He did, and then saw Geraghty "trying to perform first aid on Capano," the DA's document said.


The shooter's story

Law enforcement officials have not made public a detailed account of the shooting. But five days after the tragedy, Geraghty's lawyer Davis gave his client's account, which he stood by Wednesday.

Davis said Geraghty was working behind the counter of a Merrick Road delicatessen when he learned there was a robbery in progress at the pharmacy. He said Geraghty and off-duty NYPD Officer Joseph Arbia, 29, ran from the deli in an attempt to apprehend the assailant.

"There's Capano and McGoey on the ground, chest-to-chest, with the gun between them, wrestling," Davis said.

"He's screaming, 'Who's the good guy? Who's the good guy?' " Davis said of Geraghty. He said Geraghty and Arbia also repeatedly shouted "Police!" and "Put the gun down!"

As Geraghty, Capano and McGoey battled for Capano's gun, Davis said, it went off, sending a shot whizzing past the retired Nassau cop.

"Now it's turned back directly on my client," Davis said. "It goes off inches from his face."

Davis said Geraghty thought Capano was the robber and was trying to shoot him.

"He immediately fires," Davis said.

The pharmacist told investigators the he did not hear any gunshots before the one that Geraghty fired at Capano, the memorandum said.

Davis said Capano never identified himself as a law enforcement officer and that his client realized that Capano was "the good guy" only after he'd shot him.


Standing by his statement

After he was shown the DA's internal memorandum Wednesday, Davis said last month's account he gave remains the same.

"Nothing that [the pharmacist] said is going to change the statement that you [Newsday] reported on Jan. 6," Davis said.

He added, "You can have 20 people, and 20 people can see things 20 different ways."

He said he found it puzzling that the pharmacist told investigators, according to the memorandum, that "he had no recollection of anyone coming past him in the alleyway" -- the route that Geraghty and Arbia took to the scene.

Geraghty has been interviewed by police detectives and at some point will give a statement to the DA's office, Davis said.

Davis told Newsday last month that Geraghty was "distraught" over the shooting and "his life will never be the same." Davis said Wednesday that Geraghty has gone back to work three days a week to help his family, but "this is not something that he's going to put behind him very easily."

Davis said it was "a shame" that the document surfaced.

"It's unfortunate that it happened. I wish it hadn't for the security of the investigation," Davis said.

With Robert E. Kessler,

Tania Lopez, Ted Phillips,

John Valenti and

William Murphy


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