The surgery was underway. Two-year-old Riordan Cavooris was deep in a medically induced coma. A pediatric neurosurgeon cleared bone fragments from the surface of Riordan’s brain and refitted fragments of his skull like puzzle pieces.
“Nobody could tell me if he was alive or if he was going to make it,” his mother, Valerie Cavooris, remembered.
She and Riordan’s father, Kevin Cavooris, were crossing the first hours of a new life that began when a pickup truck rear-ended the family’s car at more than 50 miles per hour.
First, there was Riordan’s survival, then there was the radically altered future that had been thrust upon him in the moment of impact. Would he walk or run normally again? Would the traumatic brain injury cause him to suffer seizures or limit the type of job he’d have in the future?
Life was traumatically new, too, for Riordan’s wrestling partner and big brother, Bastian, then 4.
The children’s unit at Stony Brook University Hospital was stocked with stuffed animals. Bastian picked out a green Ninja Turtle for Riordan. It nestles beside his shoulder in a photograph taken from above. Riordan’s eyes are closed. His neck is braced by a stabilizing collar. Tubing rises from his skull and descends into his throat.
Riordan Cavooris undergoing treatment at Stony Brook University Hospital in August 2020. Credit: Cavooris family
Valerie and Kevin took shifts to stay at Riordan’s side. COVID protocols then in effect mandated that only parents could visit, and only one at a time.
“For 48 hours I didn’t know if he would ever wake up,” Valerie said.
Then, Riordan opened one eye. The other was swollen shut.
“I was staring right at him, I wasn’t distracted in that moment and was just able to take in my son showing life,” Kevin said. “That was the most amazing thing that I’ve ever experienced. Just absolutely incredible, world changing.”
But, Kevin added, “I wouldn’t wish that joy on anyone at all because it only comes from the depths of how low we had to be.”
The initial outlines of the toll suffered by Riordan emerged quickly.
“When he first woke up, it was like having a newborn baby,” Valerie said. “He couldn’t hold his head up. He had no muscle control, no muscle tone whatsoever. It was just like, limp.”
Riordan was unable to use his lips or tongue, couldn’t swallow or move his hands or legs. Little by little, in the manner of a maturing infant, he gained the capacity to command his body.
He held his head up. He clenched his fingers, wiggled his toes, lifted his arms and kicked his legs. Two weeks after the crash, doctors removed a feeding tube to allow Riordan to begin using his mouth to eat and drink — first during the day, and then at night, as well.
He sipped chocolate milk through a straw and took pudding from a spoon.
He said his first word, “more,” to ask for the cheese puffs his parents used to entice Riordan to feed himself. Hearing him speak for the first time in weeks, Valerie cried and called Kevin.
After three weeks, doctors transferred Riordan to inpatient rehabilitation services at St. Charles Hospital in Port Jefferson.
Little by little, Riordan sat up unsupported, pulled himself to a standing position, and took his first steps with help.
Looking back to Riordan’s infancy, Valerie said, “It was like watching him go through all the same milestones that we’d already seen, just in fast forward over the course of months rather than years.”
She called it “bittersweet magic.”
Kevin said: “You don’t think as a parent that you’re going to have to make a big deal about these milestones again. They’ve been accomplished. And it’s all growth from here, and then something major happens like this and, all of a sudden, you’re celebrating these little things again.”
Riordan went home seven weeks after the crash. Valerie told Bastian that the family would be together.
“So, you and daddy will be home this weekend?” he asked.
“I said, ‘And your brother too,'” she recalled.
“He said, ‘Yeah! I can finally be happy again.'”
What they were never told
No one told Kevin and Valerie at the hospital that the driver who rear-ended their car without evidence of braking was an off-duty Suffolk County Police Department officer. Only later did they learn that the driver, David Mascarella, was a member of the force.
At the hospital, detectives asked Kevin to perform a breath test. The results showed that he had consumed no alcohol. The officer, David Mascarella, refused a breath test, and police never sought a warrant to require him to submit to alcohol testing, according to police records.
Valerie had thought it strange that the driver who had slammed into the family’s car had refused to take a breath test. But police told her that officers on the scene thought the driver was not impaired. She accepted their word. “I just assumed that the officers knew what they were doing and they could tell who was impaired and who wasn’t,” she said.
‘I just assumed that the officers knew what they were doing and they could tell who was impaired and who wasn’t.’
Valerie Cavooris
But, she said, learning that the driver was a police officer “completely shifted my entire narrative of the situation. And I felt like I had to reprocess everything all over again.”
The Suffolk County District Attorney’s Office never told Kevin and Valerie that prosecutors investigated whether Mascarella could be charged with vehicular assault for injuring Riordan. Newsday informed them that the prosecutors lacked evidence that would prove whether Mascarella was intoxicated and closed the investigation.
The Suffolk County Police Department never told Kevin and Valerie that Commissioner Rodney Harrison had suspended Mascarella and a second officer, Kevin Wustenhoff, without pay. Or that the department is moving to fire Mascarella, according to a spokesperson.
Newsday informed Kevin and Valerie that county payroll records showed that on Feb. 3 Harrison suspended Wustenhoff for 45 days. Mascarella remained suspended as of Aug. 17.
Wustenhoff had falsely reported, and then retracted, that Mascarella had taken and passed a breath test, according to a source familiar with the case.
Mascarella and Wustenhoff declined to comment through their attorneys. Mascarella’s attorney, William Petrillo, said in a statement that “alcohol was not a factor” in the crash.
“I think finding things out in bits and pieces the way that we did, it doesn’t help because I have to kind of reprocess new information, almost relive it again and reframe it,” Valerie said. “I think when we have all the information it will help get some closure and to finally be able to put it to rest in a way.”
Their lives before and after
Kevin and Valerie met at Villanova University. He studied math; she studied the classics. After graduating, they each earned a master’s degree, Kevin in business administration, Valerie in theater. They settled in St. James, the Smithtown hamlet where Kevin grew up.
While working as a supervisor at Long Island Adventure Park in Wheatley Heights, Kevin secured a second master’s, this one in applied mathematics.
Riordan was a determined 2-year-old when the crash happened in 2020. He’d climb couches and kick any ball he came across.
“Anything physical. He loved to use his body,” Kevin remembers. “Just forcefully be a little wrecking ball going all over the place and imposing his will.”
Bastian was a bright, sensitive, thoughtful 4-year-old, his parents said.
On that August day when all their lives changed, Valerie dropped the boys off at child care. A photographer took a picture of Riordan there — tousle-haired, wearing a red and gray shirt, smiling with his head and shoulders poking through a cutout of a shark’s jaws.
Kevin picked up the boys that afternoon and buckled them into car seats. He was driving home on Middle Country Road when Mascarella’s Ram spun the family’s Mitsubishi, crushing the subcompact’s hatchback area.
A stranger in a surgical COVID mask took Bastian from the car.
“My baby brother!” Bastian screamed.
Riordan remained trapped, knocked unconscious.
Kevin’s nose broke against the steering wheel. He called Valerie, at home a mile and a half away. Rescue workers were cutting open the car to extricate Riordan when she reached the scene.
“I saw Kevin just covered in blood and I screamed,” she said. “I screamed ‘Where’s my son?'”
Firefighters placed Riordan’s limp body on a stretcher and then into an ambulance. Valerie rode with him to the hospital. A social worker and chaplain met her there.
“I didn’t realize until many weeks later that that’s not normal,” she said. “You’re not greeted with a social worker and a chaplain unless they think there’s a reason.”
Riordan has progressed in the two years since the crash, as has the entire family. All their lives have been governed by the crash.
A week before it happened, Kevin had accepted a new job as a data analyst in Massachusetts. He delayed the start date to care for Riordan. When they moved, he and Valerie searched out doctors for Riordan, as well as physical, speech and occupational therapists.
‘I’ll go to the ends of the earth and back to make sure Riordan has what he needs.’
Valerie Cavooris
Valerie, who works in marketing for a nonprofit organization, is pregnant with the couple’s third child.
“I’ll go to the ends of the earth and back to make sure Riordan has what he needs,” Valerie said.
“I never considered I’d have to go to five or six doctors’ appointments a week for one of my kids. When you’re thrown into a situation, you do whatever it takes, and you do what you need to do.”
Bastian, now 6, is protective of his younger brother. He tells strangers to be careful around Riordan. He explains that Riordan wears a leg brace because they were in a car crash that injured his brother’s brain.
“He wants people to understand Riordan’s whole situation,” Kevin said.
Somewhat anxious before the crash, the trauma “has exacerbated it tenfold,” Valerie said.
She recalled dropping the boys off at school this year where Bastian was enrolled in kindergarten and where Riordan gets specially designed services. Riordan walked in with his teacher before Bastian noticed.
“When he realized that Riordan had kind of gone into school without him, he had a complete meltdown,” Valerie said. “He was screaming, ‘I have to say goodbye to my brother. I have to say goodbye to my brother.'”
Valerie said: “It was heart-wrenching. Because things like that, I’m like, ‘Is this because of the accident?'”
When a faulty smoke detector went off in their Massachusetts house shortly after they moved in early 2021, the family waited outside for the fire department to arrive.
Bastian was shaking. “And he kept saying, ‘I’m afraid of sirens. I don’t want to hear sirens,'” Valerie said. She believes the sound reminds Bastian of the sirens he heard after the crash.
Riordan wears a brace to prevent the leg from hyperextending his knee. Doctors believe the cause is neurological. He can’t run or jump. Doctors don’t know if he ever will. Kevin and Valerie wonder whether he’ll be able to ride a bike. His speech is developing, but he’s hard to understand.
“You hope for continuous improvement every single day, every single day, you hope for continuous improvement,” Kevin said. “But you never know what the next day will bring.”
Doctors have told Kevin and Valerie that Riordan has an elevated risk of ligament damage, seizures and epilepsy. They have also warned that a blow to the head could significantly injure Riordan as a result of the traumatic brain injury he suffered in the crash.
Still more, Kevin and Valerie have been left to wonder whether the crash will harm Riordan’s eventual capacity to read, to write, to think.
“You have to worry cognitively he’ll hit a wall at some point,” Kevin said.
“He’s very fortunate to be able to do the things he does right now, to be able to learn and to be able to be expressive, but that might stop before maturity.”
The possibility leads Kevin to imagine a life for Riordan that is very different from the one Riordan was just starting. Kevin questions whether the crash will eventually “affect his ability to ever be employed, or the type of employment, or the quality of life he might have.”
“It might affect, ultimately, life expectancy and the age he actually lives to,” Kevin said. “We just don’t know. And we’ll never know. There’s no point, there’s no point in time where you say — this is it. This is the answer.”
More immediately, Valerie said, the crash is a constant in the family.
“It’s something that I think kind of lives in everyone’s subconscious but it’s very much at the forefront of my consciousness every single day,” she said. “And I think it will be forever.”
‘I’m scared of getting that phone call again.’
Valerie Cavooris
Worried when Kevin is 15 minutes late running errands, she texts him, “Is everything okay?”
“Every time the boys go out with just their dad, I’m scared, I’m scared of getting that phone call again,” she said, adding:
“I will never have the experience of an ordinary day ever again because everything about August 10, 2020, had felt routine,” Valerie said. “It felt ordinary in every way until it wasn’t.”
Inside internal affairsAn off-duty Suffolk police officer escaped alcohol testing after a car crash that fractured 2-year-old Riordan Cavooris’ skull.
The department suspended Officer David Mascarella and a second officer in secret, after fellow police gave the DA no way to prove whether Mascarella was intoxicated.
Suffolk police shielded an off-duty officer from alcohol testing after he crashed a pickup truck into the back of a car at an estimated speed of more than 50 mph, fracturing the skull of a 2-year-old boy and causing lasting injuries, a Newsday investigation has determined.
At the wheel of a 4,500-pound Ram truck, Officer David Mascarella rear-ended a 2,000-pound Mitsubishi subcompact on Middle Country Road in St. James in August 2020. A witness reported to police that Mascarella had driven erratically for approximately a mile-and-a-half before the collision.
The Mitsubishi’s driver, Kevin Cavooris, had slowed to make a left turn. His two sons, Bastian, then 4, and Riordan, then 2, were buckled into car seats. Mascarella was multiple car lengths behind them. The police accident report and crime scene diagram reflected no evidence that he braked before the pickup slammed into the Mitsubishi.
A security camera captured the crash that fractured Riordan’s skull. Credit: St. James Star via SCPD
The impact crushed the Mitsubishi’s hatchback area, spun the car 180 degrees into the opposite traffic lane and threw Cavooris’ head into the steering wheel, breaking his nose. Bastian’s thighs, shoulders and chest were bruised by the car seat’s harness. Riordan’s skull cracked into pieces resembling a jigsaw puzzle. The Ram continued forward with little damage.
Security cameras at four businesses along Middle Country Road recorded the moments immediately before the crash; the impact and rescue efforts; and the actions of Mascarella and police officers after he drove away from the scene and into the parking area of a car dealership 400 feet down the road.
Watch the video report
The Suffolk County Police Department gave the video recordings to a Cavooris family attorney in response to a Freedom of Information Law request. They were on discs in formats that were not readily viewable. Newsday made the recordings playable for the family.
The department also turned over to the family police documents, including accident reports, photos of evidence and sworn statements from five witnesses and six officers.
Cavooris and his wife, Valerie, provided the videos and police records to Newsday’s Inside Internal Affairs project after being contacted about the case. They said they hoped to find out what has never been explained to them: how the department investigated a high-speed crash that harmed Riordan’s development, requiring him to relearn how to feed himself and perform other activities of a toddler.
Almost two years after the crash he uses a leg brace to walk and is unable to run or jump.
“Riordan deserves answers because he was wronged,” Kevin Cavooris said.
From the editors
Long Island’s two major police departments are among the largest local law enforcement agencies in the United States. Protecting and serving, the Nassau and Suffolk County police departments are key to the quality of life on the Island – as well as the quality of justice. They have the dual missions of enforcing the law and of holding accountable those officers who engage in misconduct.
Each mission is essential.
Newsday today publishes the sixth in our series of case histories under the heading of Inside Internal Affairs. The stories are tied by a common thread: Cloaked in secrecy by law, the systems for policing the police in both counties imposed little or no penalties on officers in cases involving serious injuries or deaths.
This case documents that Suffolk police shielded an off-duty officer from alcohol testing after he drove a pickup truck into the rear of a nearly stopped car at more than 50 mph, fracturing the skull of a 2-year-old and causing lasting injuries.
Three hours after the crash, Officer David Mascarella refused to submit to a breath test. The police then failed to seek a warrant to test his blood alcohol level. Without that test, the Suffolk County District Attorney’s Office was unable to determine whether Mascarella had been drinking before the crash – ruling out a possible vehicular assault prosecution.
The child’s name is Riordan Cavooris. The crash happened in 2020. Since then, Riordan’s parents, Kevin and Valerie Cavooris, have tried to discover what led Mascarella to drive into their car – as well as whether the Suffolk County Police Department had held him accountable.
Contacted by Newsday, the Cavoorises gave reporter David Schwartz copies of police documents obtained in response to a Freedom of Information Law request along with security camera recordings that captured a sequence of events starting moments before the crash and extending to police interactions with Mascarella.
Based on Schwartz’s reporting, the Cavoorises learned for the first time that then-District Attorney Tim Sini had closed a criminal investigation without action; that a second officer, Kevin Wustenhoff, falsely reported Mascarella had passed a breath test, according to a source with direct knowledge of the investigation; and that county payroll records revealed Suffolk Police Commissioner Rodney K. Harrison suspended Mascarella and Wustenhoff without pay in February.
Wustenhoff’s suspension covered 45 days, while Mascarella remained suspended as of Aug. 17, according to the payroll records. An aide to the commissioner asserted that Harrison was legally barred from discussing the results of the department internal affairs investigation.
This case history is the second in which Suffolk police protected off-duty officers from alcohol testing after they drove into crashes that caused serious, even life-threatening, injuries. In both instances, Suffolk County Police Benevolent Association representatives drove the officers away from investigators at the scene; the officers refused to submit to breath testing; and police failed to take additional steps to determine whether the officers were intoxicated.
Newsday has long been committed to covering the Island’s police departments, from valor that is often taken for granted to faults that have been kept from view under a law that barred release of police disciplinary records.
In 2020, propelled by the police killing of George Floyd in Minneapolis, the New York legislature and former Gov. Andrew M. Cuomo repealed the secrecy law, known as 50-a, and enacted provisions aimed at opening disciplinary files to public scrutiny.
Newsday then asked the Nassau and Suffolk departments to provide records ranging from information contained in databases that track citizen complaints to documents generated during internal investigations of selected high-profile cases. Newsday invoked the state’s Freedom of Information law as mandating release of the records.
The Nassau police department responded that the same statute still barred release of virtually all information. Suffolk’s department delayed responding to Newsday’ requests for documents and then asserted that the law required it to produce records only in cases where charges were substantiated against officers.
Hoping to establish that the new statute did, in fact, make police disciplinary broadly available to the public, Newsday filed court actions against both departments. A Nassau state Supreme Court justice last year upheld continued secrecy, as urged by Nassau’s department. Newsday is appealing. Its Suffolk lawsuit is pending.
Under the continuing confidentiality, reporters Paul LaRocco, Sandra Peddie and Schwartz devoted more than 18 months to investigating the inner workings of the Nassau and Suffolk police department internal affairs bureaus.
Federal lawsuits waged by people who alleged police abuses proved to be a valuable starting point. These court actions required Nassau and Suffolk to produce documents rarely seen outside the two departments. In some of the suits, judges sealed the records; in others, the standard transparency of the courts made public thousands of pages drawn from the departments’ internal files.
The papers provided a guide toward confirming events and understanding why the counties had settled claims, sometimes for millions of dollars. Interviews with those who had been injured and loved ones of those who had been killed helped complete the forthcoming case histories and provided an unprecedented look Inside Internal Affairs.
Three attorneys, each with more than a decade’s experience with car-crash and drunken-driving investigations, reviewed a case file prepared by Newsday. Independently, they concluded that police officers who responded to the crash broke protocols that are designed to identify the causes of serious vehicular collisions.
‘… they did not do a diligent, reasonable, defensible investigation.’
Former state trooper and prosecutor John Bandler
Credit: Reece T. Williams
“I know based on what I’ve seen, they did not do a diligent, reasonable, defensible investigation,” said John Bandler, a former state trooper who served as a prosecutor in the Manhattan District Attorney’s Office for 13 years.
“And that’s really unfortunate because when any casual observer looks at the facts of this case and the investigation, a casual observer is going to think that the police department gave a benefit to this off-duty cop.”
Referring to the quality of the police investigation, John T. Powers, a West Islip-based lawyer who represents clients charged with drunken-driving offenses, said, “In my experience over 20 years, I’ve never seen anything like this.”
“No other individual would get the same deference,” Powers added, speaking of Mascarella.
Brian Griffin, a former Nassau assistant district attorney assigned to the drunken-driving prosecution unit, has represented drivers accused of vehicular crimes and driving while intoxicated.
“Normal procedures/protocols were not followed,” he wrote in an emailed statement, adding that “the more important question is whether these lapses . . . were intentional and negatively impacted the investigation.”
Mascarella was assigned to the Fourth Precinct in Smithtown. Fellow precinct officers and a sergeant responded to the crash and handled the initial investigation. A deputy inspector later took command. Newsday determined that:
Sgt. Lawrence McQuade and precinct officers failed at the scene to ask Mascarella to submit to a breath test that would have provided a preliminary reading of whether he was intoxicated.
After a detective told McQuade that he wanted Mascarella to undergo a preliminary breath test, McQuade notified a Suffolk County Police Benevolent Association delegate. The delegate, Officer Joseph Russo, then drove Mascarella away from investigators, McQuade reported.
Ordered to catch up with Mascarella, Fourth Precinct Officer Kevin Wustenhoff falsely reported to a supervisor that he had given Mascarella the breath test and that Mascarella had passed it, according to a law enforcement source with knowledge of the case. Wustenhoff retracted the account, the source said.
Three hours after the crash, Deputy Insp. Mark Fisher asked Mascarella to take the breath test. Mascarella refused. When a driver refuses a preliminary breath test, police typically seek a warrant to have the driver’s blood drawn and tested for alcohol. Fisher only issued a traffic ticket to Mascarella.
Police failed to notify the Suffolk County District Attorney’s Office on the night of the crash that an officer had been involved in an unexplained, high-speed rear-end crash, had seriously injured a 2-year-old and had refused a breath test. The omission prevented the DA from considering whether to seek a warrant to test Mascarella’s blood.
Although five officers wrote reports stating they saw no evidence that Mascarella was intoxicated, prosecutors under then-DA Tim Sini subsequently investigated the crash with an eye toward charging Mascarella with vehicular assault. Lacking a blood test that would have revealed whether Mascarella was intoxicated, they closed the investigation without action.
“The failure to get a prompt chemical test handcuffed the prosecutor,” Powers said. “At that point, the prosecutor is coming up on the barn with the door open and there’s no animals in the barn. It’s a day late.”
Newsday sought comment from former DA Sini, his successor Ray Tierney, Police Commissioner Rodney K. Harrison and Mascarella’s lawyer, William Petrillo.
Sini and Tierney responded that the investigation, handled by police in the crucial hours after the collision, failed to produce the evidence necessary to determine whether Mascarella had been drinking.
Tierney wrote in an emailed statement: “Because certain evidence was not collected by SCPD on the date of the incident, we were unable to make a determination as to whether or not a crime was committed.”
Tierney also wrote that he had met with Harrison “about the failures in the prior investigation,” stating, “It is my expectation that any future SCPD investigations of incidents such as this will be conducted properly with guidance from my office.”
Sini wrote in an email: “The absence of certain evidence prevented the Office from determining whether a crime was committed.”
Harrison stated that he is establishing policies aimed at preventing police from giving special treatment to off-duty officers. He declined to comment on the specifics of the case. A spokesperson for the department wrote that Harrison is moving to terminate Mascarella.
Petrillo asserted that the district attorney’s investigation “correctly concluded that no crime was committed.” He stated that “alcohol was not a factor” in the crash and added that a doctor and physician assistant at the hospital, along with a witness at the crash site and officers, “reported seeing no signs of alcohol consumption or impairment.”
Newsday informed Cavooris about its findings and enabled him for the first time to watch the four security camera videos. Those captured events from the moments before the collision through Mascarella’s departure with a PBA delegate — and included evidence that Mascarella threw an object from the Ram’s window seconds after the crash.
Cavooris said he had not known about investigations by the Suffolk internal affairs unit and the district attorney’s office before being informed by Newsday. He said he also knew nothing about Wustenhoff’s reported role.
“There are things we should know that are being withheld from us,” Cavooris said. “We want to forgive, and we want to live in the moment and not dwell on the past, but it’s impossible to move on until we get the answers that some people have and are not telling us.”
Records reveal officers suspended without pay
In December last year, Newsday began to publish case histories documenting that the internal affairs systems of the Nassau and Suffolk County police departments had imposed little or no discipline on officers in cases involving serious civilian injuries or deaths. This is the sixth case history.
Harrison took command in Suffolk on Jan. 11. His assistant said the department’s legal bureau advised Harrison against discussing Mascarella’s case.
Still, county payroll records revealed that Harrison suspended Mascarella and Wustenhoff without pay on Feb. 3 — a week before the deadline for filing disciplinary charges against them. Wustenhoff’s suspension ended 45 days later on March 21, according to the county comptroller’s office. Mascarella remained suspended as of Aug. 17.
For a half century, police disciplinary files in New York were sealed by law. In 2020 following the death of George Floyd at the hands of a Minneapolis officer, state legislators and then-Gov. Andrew M. Cuomo repealed a law known as 50-a that had imposed near-total secrecy on police disciplinary files.
The Nassau County Police Department has claimed continuing power to withhold almost all internal disciplinary records. The Suffolk County Police Department has released records only in cases where charges had been upheld against officers.
Newsday is pressing lawsuits against both departments with the goal of establishing that the public has a right to review how Long Island’s police forces police themselves.
On March 16, Newsday asked the Suffolk department to release internal affairs records related to the crash that injured Riordan Cavooris. The department replied that it would make the records available on or about June 14.
The date came and went without additional communication. In other cases, the department has delayed releasing records for as much as a year.
‘I feel cheated and lied to, denied justice and victimized again.’
Kevin Cavooris
Learning Newsday’s findings almost two years after the crash, Cavooris said:
“I feel cheated and lied to, denied justice and victimized again.”
Reached by telephone, Wustenhoff referred questions to his attorney, Anthony La Pinta.
La Pinta called the account that Wustenhoff falsely reported that Mascarella had taken and passed a PBT “incorrect.”
La Pinta wrote in an email: “The charges were resolved between the department and Officer Wustenhoff. I am unable to comment further because Officer Wustenhoff’s IAB file remains sealed and a related IAB investigation is pending.”
Fisher and Russo did not respond to interview requests. McQuade declined to comment through Suffolk County Superior Officer Association president James Gruenfelder.
The source with knowledge of the investigation said that Wustenhoff resolved the internal affairs investigation by accepting his suspension and placement on restricted duty, which took him off patrol. He was assigned to police administrative duties at the John P. Cohalan Jr. Court Complex in Central Islip.
The department permitted Wustenhoff, 45, to stay on the police payroll until 2025, when he will first be eligible to retire with a 50% pension that he could begin collecting immediately. He agreed to resign then, the source said.
The police contract empowered Wustenhoff to challenge stricter penalties, potentially including dismissal, in arbitration. Wustenhoff was paid $176,177 in 2021.
Mascarella, 52, made $250,954 in 2021. At the time he was suspended, he was a year from being able to retire and collect his pension immediately.
Sudden horror on ordinary day
Kevin Cavooris, then 33, picked his sons up from a day-care center after work on Monday, Aug. 10, 2020. He held a job as a supervisor at Long Island Adventure Park in Wheatley Heights while completing graduate studies at Baruch College. He buckled Riordan and Bastian into their car seats for the 2-mile drive to their St. James home.
The route took Cavooris east on a stretch of Middle Country Road lined by automobile dealerships. Double yellow lines separated two lanes. The speed limit was 40 mph. Traffic moved smoothly on a sunny afternoon.
The crash occurred on Middle Country Road in St. James. Credit: Jeffrey Basinger, Google
Mascarella traveled the same stretch. So did John Melendez, owner of a junk removal company. At the wheel of another pickup and towing a trailer, Melendez came up behind Mascarella’s black Ram approximately a mile and a half from the crash scene. The Ram’s driver had slowed down, holding up traffic, Melendez told police.
“He was driving slower than the traffic in front of him like he was not paying attention,” Melendez reported. “He was holding me up and the cars behind me. The traffic was moving, he was not moving and there were no cars in front of him.”
The Ram’s driver accelerated for a stretch and slowed again, accelerated, and slowed again, Melendez reported.
Concluding that the driver was on a cellphone and distracted, Melendez edged his truck left toward the road’s dividing lines. He hoped that the driver would spot him in the Ram’s sideview mirror. The driver appeared not to notice.
Ahead of Mascarella, Cavooris prepared for a legal left turn that would take him off Middle Country Road and into a tree-shaded neighborhood of single-family houses. To make a left there, a driver slows or stops at a break in the double yellow lines to cross traffic coming in the opposite direction.
Cavooris recalled that he clicked on his turn signal and checked his rearview mirror. He judged that the driver behind him had time to slow and safely pass on the road’s black-topped shoulder.
“Perfectly normal mundane driving things,” Cavooris recalled.
Beyond Cavooris’ field of vision, Melendez again attempted to get the attention of the Ram’s driver, this time by honking his horn.
At the sound, the driver “punched it” and the pickup “accelerated quicker,” Melendez told police. He judged that the truck traveled about 12 car lengths before there was a loud bang.
Mascarella follows Cavooris into the crash. Credit: Certified Headquarters via SCPD
Newsday estimated Mascarella’s approximate speed, as well as the speeds of other drivers, including Cavooris, by measuring the lengths of the roadway captured by two cameras and clocking how much time elapsed as each vehicle passed.
Carl Berkowitz, a Moriches-based traffic engineer who reconstructs vehicular crashes for court cases, said Newsday’s methodology of estimating speeds was standard.
“It’s consistent with what I would do,” he said.
A 10th of a mile from the crash intersection, a Mazda dealership’s security camera captured 250 feet of the road. Newsday estimated the speeds of 20 cars that crossed the camera’s field of vision ahead of Cavooris and Mascarella.
Those measurements showed that Mascarella was driving 67% faster than the average speed of the 20 cars ahead — an estimated 60 mph compared with an approximate average speed of 36 mph.
The security camera at a used car dealership then recorded traffic on 150 feet of the road immediately approaching the crash site. Here, 20 cars passed at approximately 32 mph, followed by Cavooris slowing to a near stop and by Mascarella moving at approximately 55 mph in the moments before he drove the Ram into the Mitsubishi, according to Newsday’s estimate.
He said that Newsday’s calculation matched his belief that Mascarella had hit his car at high speed.
“I assumed from the force of impact he had to be going over 50 miles per hour,” Cavooris said.
With its rear crushed, the Mitsubishi spun across the opposite lane of traffic. Melendez described the motion as looking like the Ram had “spit the white car from the front of the truck.”
Cavooris said he doesn’t remember his face hitting the steering wheel.
“My mind was saying, ‘I’m fine. Bring this vehicle to rest. Make sure the kids are fine,'” he recalled.
The Mitsubishi rolled backward to a stop in front of the St. James Star gas station. Mascarella continued down the road. Damage was limited primarily to the truck’s front driver’s side. The truck’s air bag had not deployed.
Cavooris stumbled from his car, blood coming from his nose.
Ron Brandt was filling his tank. He rushed over with his wife, Laurene.
“It was a pretty violent hit where we thought we were going to get hit by the car rolling,” Brandt said.
The Brandts motioned for Cavooris to sit. He said his kids were in the back seat. Someone called 911. People ran from nearby businesses. Brandt, wearing a COVID mask, yanked open a rear door and lifted Bastian from the wreck.
“My brother, my baby brother,” Bastian screamed.
Brandt saw Riordan as he lifted Bastian.
“He was unresponsive. His head was down,” Brandt recalled.
The door beside Riordan was crumpled. The car shook as one man, then two, tried to pull it open. A third man came with a crowbar. Five men in all tried to force the door open without success.
Cavooris was on his feet again. He leaned into the car where Riordan was still in his car seat. He squeezed Riordan’s hand. Riordan was unresponsive. A woman identifying herself as a nurse said Riordan had a heartbeat and was breathing.
Brandt held Bastian in his arms. Laurene Brandt rubbed Bastian’s back. A man brought Cavooris water and a towel for his face.
Someone handed Cavooris a cellphone. He called his wife. Her father-in-law drove Valerie to the crash site, about a mile-and-a-half from home.
“I’m not ready for this,” she recalled telling him on the way.
“I know,” he responded.
Valerie reached the scene 12 minutes after the crash.
Nesconset firefighters place unconscious Riordan Cavooris on a stretcher. Credit: St. James Star via SCPD
“I screamed, I screamed, ‘Where’s my son?'” she recalled.
A Nesconset Fire Department heavy rescue team was cutting open the Mitsubishi. Within minutes of Valerie’s arrival, they gained access to Riordan and stabilized his neck. He was still unconscious. Fifteen minutes after the crash, two firefighters carried his limp body from the car and placed him on a stretcher.
Valerie faced a choice — stay with Bastian, who was upset and bruised from the impact, or go with Riordan to the Stony Brook University Hospital emergency room, five miles away.
“I felt horrible leaving Bastian’s side because he was terrified,” she remembered. “But I knew that I had to go with Riordan so that he would have someone there when he got to the hospital.”
She jumped into the ambulance.
“And I just prayed the whole way there. Please don’t take my baby,” Valerie said.
Watching the video, Cavooris said he took heart from the sight of people trying to help.
“It’s reassuring to have faith in humanity that people see something awful, and they want to help,” he said. “They want to jump into action.”
Police questioned Cavooris at the scene about how the crash had happened. He remembered that officers asked why his car was facing west when he had been driving east and that they pressed him to pinpoint the street where he was turning.
Officers also asked where Cavooris was coming from and where he was going — questions that police typically ask at the start of a possible drunken-driving investigation to discover whether a driver had come from a location where alcohol is typically consumed, such as a bar, restaurant or party.
Cavooris said the questions “I specifically remember were more about where I was going and what I was doing.” He assumed the driver who rear-ended his car would face similar questioning.
“I think certainly he was involved in an accident, and he deserves to be asked about his medical well-being,” Cavooris said. “And beyond that, to the extent he’s capable, it would be the time to seek answers as to what exactly happened and why it happened.”
The police records given to the family include no indication that officers questioned Mascarella about the circumstances leading up to the crash and the factors that caused him to drive the Ram into Cavooris’ nearly stopped car. The records reflected Cavooris’ description of turning but included none of his additional statements at the scene.
‘I want to know what he threw.’
After the crash, Mascarella slowed and an object flew from the passenger window. Credit: St. James Transmissions via SCPD
About nine seconds after rear-ending the Mitsubishi, Mascarella slowed to a stop approximately 300 feet from the crash site in the field of vision of a transmission shop’s camera.
The camera recorded an object flying from the Ram’s passenger window.
Seconds later, Melendez pulled his truck next to the Ram. In the statement he gave police, he recounted shouting obscenities at Mascarella “for being on the phone.”
“That’s what you get, are you happy?” he yelled.
The driver looked at Melendez “like he was scared or didn’t know what happened, like a look of confusion,” Melendez told police.
Melendez drove on. He did not respond to requests for comment,
Mascarella pulled a short distance forward into the parking area of a Chevrolet dealership, out of sight from the scene of the crash. He got out of the Ram and spoke on a cellphone. Two minutes after the crash, he walked toward the road, bent down, appeared to pick up the object that had flown from the truck window, and returned to the pickup.
“I want to know what he threw from his vehicle,” Cavooris said while reviewing the video. “I want to know why, after an accident like that, your mind would find it so important to get that item out of your vehicle, and then, with a chance to collect himself and make a phone call and clear his head a little, he realizes he needs to retrieve that item.
“And all this time he’s concentrating on whatever that item is, he doesn’t appear unwell. He seems perfectly capable of checking on the family that he caused such harm to. Apparently, his only concern was whatever that item is.”
Brandt, who’d lifted Bastian from the Mitsubishi, saw Mascarella’s truck pull to the shoulder. He glanced again after a few moments and the truck was gone.
“And then with all the commotion we looked around and it’s like, ‘Where the hell’s this truck?'” Brandt said.
Fourth Precinct officers reached the crash scene in four minutes. Mascarella walked toward his colleagues. He wore a light-colored polo shirt and shorts. One of the first responding police officers was positioning a squad car in the roadway to divert traffic around the Mitsubishi.
Riordan was still trapped in the car. Bastian was still in the arms of a stranger. The Nesconset rescue personnel had yet to arrive. Mascarella spoke to the officer in the squad car for approximately 10 seconds, then returned to his pickup at the car dealership.
Suffolk police regulations direct officers “to keep the drivers in sight and available” after crashes. The rule is aimed at preventing drivers from fleeing, destroying evidence or explaining failed breath tests by claiming they had consumed alcohol after crashes and not before.
“I don’t know any other circumstance in my career, and it’s over 20 years of handling these cases, with serious physical injuries, where I’ve ever heard that my client or a motorist was allowed to remain a football field and a half away,” Powers said.
Robert Brower, who worked in sales at the car dealership, spoke briefly with Mascarella. He later reported that Mascarella was talking on a cellphone while sitting on a curb and did not appear intoxicated.
At the crash site, Brandt asked police about the truck that appeared to have vanished. Officers responded, “What truck?” he recalled.
Brandt crossed the street with police.
“We all walked over and found out that the guy pulled over into the Chevy dealership on the other side of the building,” Brandt said, adding of Mascarella: “He actually moved the truck before the police arrived, which seemed very weird.”
The first uniformed officer approached Mascarella 10 minutes after the crash. Two additional officers followed. The three stood a few feet from Mascarella and appeared to speak with him.
Over the next hour, officers came and went from talking with Mascarella. He paced, walked around the parking area, sat on the curb and spoke on a cellphone. Officers left him alone for 16 minutes during that time. The camera recorded him opening one of the Ram’s doors and leaning into the pickup 10 times while officers were with him or when he was alone.
Bandler said leaving Mascarella alone violated standard training for drunken-driving investigations.
“If there’s the possibility that you’re investigating them for driving while intoxicated, you need to continually observe them, you can’t allow them to walk off on their own,” Bandler said. “Part of a DWI investigation is you’re continually observing someone.”
Officer Terence Greene wrote in a report dated the day of the crash that he recognized fellow officer Mascarella and asked if he was injured or needed medical attention. He stated that Mascarella replied, “No, I’m fine, how is everyone else?”
Greene reported no additional questioning, described no observations of Mascarella for signs that he had consumed alcohol, such as glassy eyes, unsteadiness or the odor of alcohol. He gave no assessment of whether Mascarella showed evidence of intoxication.
Officer Christopher Antola reported the day of the crash that the driver, a fellow precinct officer, identified himself as David Mascarella. Asked whether he needed medical attention, Mascarella said “He was okay for now,” Antola wrote.
Antola, too, reported no additional questioning, described no observations of Mascarella and gave no assessment of whether Mascarella showed evidence of intoxication.
Officer Nicholas Cutrone filled out a state Department of Motor Vehicles Police Accident Report. His report is the only document in the file indicating that an officer asked Mascarella on the day of the crash what happened.
Designating the Mitsubishi as “V1,” meaning “Vehicle 1” and the Ram as “V2,” meaning “Vehicle 2,” Cutrone wrote only that Mascarella “states he was traveling [eastbound] on Route 25 when V2 collided with V1.” He checked a box on the form citing “driver inattention/distraction.”
Greene, Antola and Cutrone did not respond to interview requests.
Bandler and Powers said that proper practice called for immediately investigating whether alcohol had played a role in the crash. They cited the facts that Mascarella had rear-ended a car and had been traveling at a high enough speed to cause both extensive damage and serious physical injury — a legal standard that triggers a possible criminal charge of vehicular assault.
Both said that the circumstances of the collision called on the responding officers to take a statement from Mascarella, document efforts to observe evidence of intoxication and request that he undergo both field sobriety testing and a preliminary breath test. Griffin said police had grounds to ask Mascarella to take a preliminary breath test.
Field sobriety testing requires a driver to perform actions such as walking heel-to-toe in a straight line and balancing on one leg.
In a preliminary breath test, also known as a portable breath test, a driver blows into a hand-held device that measures a body’s alcohol level. A preliminary breath test is different from a test commonly known as a Breathalyzer. Breathalyzer results are admissible in court; a preliminary breath test is not.
When a driver refuses to take a preliminary breath test, police typically take the driver into custody and seek a warrant to have a sample of the driver’s blood drawn for a blood alcohol test.
“The smashed and rear-ended car, the children in the car, indicate towards assuming the ‘worst’ and preserving evidence and erring on the side of doing a thorough investigation,” Bandler wrote in an email. He later said:
“This is not a situation where you’re not thinking about the possibility of intoxication. This is something you actively need to determine. And you need to determine quickly because if he was intoxicated, his blood alcohol content is dropping every minute.”
Powers said: “Heavy damage to the car, injury — a serious injury — to the passenger in the car, would prompt a further investigation in this case up to and including what’s called a PBT or a portable breath test at the scene of the driver.”
A child’s skull rebuilt
At Stony Brook University Hospital, pediatric neurosurgeon Dr. David Chesler explained to Valerie Cavooris that Riordan had suffered complex skull fractures, with part of the skull pressing on his brain.
Chesler needed to “put the skull back together like a puzzle,” she said. “It was totally fractured.”
Kevin Cavooris, who was with Bastian, spoke with Chesler by phone.
“He had to clean off the brain and reconstruct the skull around it,” said Cavooris, who rode with Bastian in an ambulance to the hospital, where the doctors examined the boy for neck and shoulder pain and bruises.
‘He had to clean off the brain and reconstruct the skull around it.’
Kevin Cavooris
That night, officers asked Cavooris to submit to a breath test and consent to have blood drawn for alcohol testing. Cavooris remembered that a detective told him:
“You have a long road ahead of you, of lengthy legal proceedings and lawyers being involved. You don’t want anything derailing what you’re going through, if anyone makes accusations against you.'”
Cavooris blew into the breath device. It registered zero. The officers told him they didn’t need to draw blood.
At that point, Cavooris knew nothing about the driver who smashed into his car. He and Valerie had no idea, and were not informed, that the driver was a Suffolk County police officer. Cavooris remembers presuming that police were using the same procedures to investigate the driver.
“Was he impaired? Was he distracted? Did he lose control of his vehicle? Did he suffer a medical incident that caused him to cause an accident? I trusted the police. If they were there to see me, then my assumption was there were police seeing him,” Cavooris recalled, adding,
“I probably just assumed they’d be doing their jobs.”
Two-year-old Riordan was still unconscious when the ambulance drove away from the crash site. Sgt. McQuade ordered two officers to go to the hospital to confirm whether Riordan had suffered a serious physical injury, the condition necessary for a vehicular assault charge.
New York’s Penal Law defines a serious physical injury as an injury that creates “a substantial risk of death” or causes long-term body harm.
An hour after the crash, an officer relayed confirmation from the medical center that Riordan had suffered serious physical injuries. Only then did McQuade call for a detective to take charge of the investigation.
Bandler faulted the delay, noting that a severe impact had rendered a 2-year-old unconscious.
“You don’t delay your investigative action, waiting for a determination of serious physical injury,” he said.
Mascarella refuses breath test
Fourth Precinct Det. James Ellis came to the scene. Ellis determined that Mascarella should undergo a preliminary breath test because of “the severity of the injuries” suffered by Riordan, McQuade reported. Ellis did not respond to interview requests.
Standard practice calls for officers to simply ask a driver to perform the test. McQuade instead called Russo, the PBA delegate. McQuade wrote that Russo had joined Mascarella at the car dealership and he told Russo that Ellis wanted Mascarella to submit to a breath test.
“I advised I would be at his location in five or ten minutes and administer the test there,” McQuade wrote.
The security camera recording shows that a dark car pulled into the parking area an hour and 47 minutes after the crash. The driver got out and opened the trunk. Mascarella talked to the driver and to a uniformed officer. The officer walked away. Mascarella got into the car. The car drove off an hour and 50 minutes after the crash.
McQuade wrote that he learned as he walked toward the car dealership that Mascarella had left. He didn’t explain how he was notified.
“I immediately called PO Russo via cellphone and informed him he should respond back to the accident location,” McQuade wrote. “He informed me that David Mascarella was in significant pain and needed to go to the hospital.”
Russo drove Mascarella to Southside Hospital, 15 miles away, the fifth-farthest hospital.
Griffin described moving Mascarella as “very problematic.”
“A lay person is not going to have an HR representative in the middle of an investigation, period, end of story,” he said.
Powers said that driving Mascarella away from a planned breath test could be seen as tampering with a witness or tampering with evidence.
‘The whole thing stinks of organizational conflict.’
Drunken-driving defense attorney John T. Powers
Credit: Alejandra Villa Loarca
“The whole thing stinks of organizational conflict. At the very least again it erodes the public’s trust in law enforcement, bit by bit and step by step,” he said.
Bandler blamed police at the scene for allowing Mascarella to leave.
“I think it’s incriminating as to the reasonableness of the police department’s investigation that they would let someone who they should have suspected might be intoxicated, that they would let him drive off,” Bandler said.
Russo and PBA president Noel DiGerolamo did not return requests for comment.
Deputy Insp. Fisher arrived at the crash site. McQuade reported that Mascarella’s actions showed “no indication of criminality,” signaling that officers had evaluated Mascarella for evidence of alcohol consumption and that the results were negative.
“Nevertheless, I ordered the administering of a Pre-breath Test (PBT) to Mascarella,” Fisher wrote.
McQuade directed Wustenhoff, a former highway patrol officer, to administer the exam at the hospital and to take a photograph of the device’s readings.
Wustenhoff wrote in a report that he arrived at the hospital at 7:20 p.m., found Mascarella in the emergency department complaining of back pain, and saw “no indication of alcohol use.”
He called McQuade, stating falsely that he had tested Mascarella and that the device had registered zero alcohol traces, the source with knowledge of the investigation said.
About eight minutes later, Wustenhoff made a second call to McQuade, said he misspoke and asked to retract his earlier statement. McQuade told Wustenhoff he lied, according to the source.
Neither McQuade nor Wustenhoff included Wustenhoff’s retracted statement in their written reports.
The district attorney’s investigation later discovered that a hospital security camera recorded Mascarella walking up and back as if he was taking a sobriety test, the law enforcement source said.
“It was like he was practicing,” the source said.
Fisher drove to the hospital. While on the way, he wrote, he decided to rely on a highway patrol lieutenant, rather than Wustenhoff, to perform the breath test “to avoid any appearance of impropriety,” possibly alluding to the fact that Wustenhoff and Mascarella were fellow Fourth Precinct officers.
Fisher notified Highway Patrol Lt. Peter Reilly to meet him at the hospital.
‘At 2013 hours I, along with Lieutenant Reilly, requested Mascarella to submit to a PBT to which he declined.’ Report by Deputy Insp. Mark Fisher
Around 8 p.m. — three hours after the crash — Mascarella twice refused to take the breath test.
First, Ellis asked Mascarella to allow Wustenhoff to administer the exam, Wustenhoff wrote. Then, Reilly and Fisher made the request, according to Fisher’s account. Each time Mascarella said no. Mascarella also declined to answer questions under the advice of legal counsel.
At 10:45 p.m. — six hours after the crash — Fisher issued Mascarella a traffic ticket for refusing a breath test, according to Wustenhoff’s report. He took no additional action.
Fisher wrote that there were “no overt indications of intoxication other than [Mascarella’s] eyes appearing somewhat glassy.”
When a driver refuses a breath test, police can arrest the driver and ask a judge to issue a warrant authorizing a blood alcohol test. Bandler said that refusing a breath test gives police evidence for a warrant application.
“If he says, ‘No, I’m not taking a PBT,’ then the officer is going to use some common sense and say maybe the reason he’s not taking a PBT is because he knows he had alcohol,” he said. “So, then you err on the side of arresting them.”
Powers said that Suffolk police typically force drivers to submit to blood testing when they refuse breath tests after unexplained crashes that cause serious injuries.
“If he’s saying no to a PBT, they then can go and get a warrant. They have the reasonable cause, and probable cause, to get a blood warrant, to get a blood draw issued by the court. A mandated blood draw,” Powers said. “In this case, with that kind of injury, that is par for the course for Suffolk County Police. They do it all the time.”
Powers added: “You have the puzzle pieces here for an arrest. You just need a competent police officer to come and do a reasonable and competent investigation.”
Suffolk protocols mandate that police must notify the district attorney’s Vehicular Crimes Bureau when officers see evidence of criminality in crashes that cause serious physical injury or death. Police did not contact the district attorney’s office on the night of the crash.
Powers said police were obligated to ask a prosecutor to decide how to proceed after Mascarella refused the breath test.
“The on-duty ADA catching cases that day should have been notified without a doubt. There was no reason not to have the case and fact pattern evaluated by the Office of the District Attorney,” he wrote in an email.
Bandler said an outside agency — whether the DA’s office, Nassau police or state troopers — could have ensured public confidence in the investigation.
Griffin said that if police saw evidence of criminality “they clearly did not follow protocol when they failed to alert the DA’s office Vehicular Crime Bureau.”
The DA closes the case
The day after the crash, the Suffolk police department issued a news release about the crash, identifying Cavooris, the injured children and Mascarella. The release reported that Mascarella “self-transported to Southside Hospital in Bay Shore with minor injuries.” The department did not identify him as a member of the force.
Officers Antola and Greene amended the reports they wrote hours after the crash, adding that they saw no evidence that Mascarella had been drinking.
Antola also changed his report to state that he had recognized Mascarella on sight, not that Mascarella had introduced himself.
Cutrone amended his DMV accident report to state that Mascarella had said “he briefly looked down towards his radio” before the crash. Cutrone then amended the report a second time, deleting his account that Mascarella said he looked at the radio. Instead, he again cited only “driver inattention/distraction.”
Det. Ellis took a sworn statement from Cavooris that described the impact of the crash and the events that followed.
The records included no statement by Mascarella.
The district attorney’s office and police internal affairs opened their investigations — while lacking the results of breath or blood testing that would have determined whether Mascarella had consumed alcohol.
“Clearly not having a breath test makes bringing a DWI case much more difficult. This difficulty is compounded when an arrest is not made at the time of the incident,” Griffin wrote.
Bandler noted both that Mascarella had not been tested and that officers reported they saw no signs of intoxication. The officers included Antola, Greene, Wustenhoff, McQuade and Fisher, who noted glassiness in Mascarella’s eyes.
“The case has a lot of problems,” he said. “You have police who failed to perform certain steps and record certain responses, police who have put in their reports they observed no signs of intoxication. I think they would not be able to prove beyond a reasonable doubt in court that he was intoxicated.”
Suffolk County Assistant District Attorney Carl Borelli, who worked on major vehicle accidents, subpoenaed Mascarella’s phone records, according to police statements, apparently trying to determine whether Mascarella was using a phone at the time of the crash. The police documents did not include the results of the subpoenas.
The chief of detectives took the investigation away from Fourth Precinct detectives.
There was “no evidence of criminality to date,” Ellis wrote nine days after the crash.
Major Case Unit detectives contacted Cavooris. He and Valerie learned for the first time that an off-duty officer had been at the wheel of the Ram. They had known that the Ram’s driver had refused a breath test and had accepted that police still judged that the driver was sober.
Valerie said discovering that the driver was a police officer “completely shifted my entire narrative of the situation. And I felt like I had to reprocess everything all over again.”
‘If he was not impaired, then why would he refuse?’
Valerie Cavooris
“If he was not impaired, then why would he refuse? But I trusted that the officers could tell what was happening,” she said. “They’re trained to know who’s impaired and who’s not. So, I just took it at face value.”
Armed with a warrant, detectives searched the Ram at the county’s impound garage. They collected samples of liquids from water bottles and a Yeti tumbler. The police documents did not include results of tests performed on the liquids.
The DA summoned four police officers who responded to the crash for questioning about what they observed when they interacted with Mascarella. PBA attorney Alex Kaminski accompanied each officer during his interview.
The “interviews yielded no new information,” and the investigation was closed, Det. Sgt. James McGuinness wrote in a report.
In January, Raymond Tierney succeeded Sini as district attorney. In June, his office stated that prosecutors were continuing to look at the circumstances of the crash.
“This matter is currently under investigation,” an aide to Tierney wrote in rejecting a Freedom of Information Law request for access to records submitted by Newsday.
Cavooris and Valerie have moved from Long Island to Massachusetts, where Kevin got a job as a data analyst. Valerie, who works in marketing for a nonprofit, is pregnant with their third child. The crash still shadows their lives. They are seeking an insurance settlement through Mascarella’s insurance carrier. They have not filed a lawsuit. They wonder whether Riordan will ever walk or move without limitation, and whether brain damage will more deeply affect his future.
“Riordan is such an amazing, happy, active, energetic, playful, silly, curious kid. He doesn’t know what he went through. But one day he will, and one day he’ll be asking for answers,” Cavooris said. “All we can do as parents is try to have as many answers for him when that day comes.”
Inside Internal AffairsSuffolk police let Peter Fedden go after a drunken-driving crash. He got back behind the wheel and died.
Officer Michael Althouse drove the Commack deli owner home without a sobriety test. Minutes later, Fedden sped into a brick building and was killed. Althouse’s punishment? Counseling.
eter Fedden gave special treatment to the Suffolk County Police Department officers who bought meals, snacks and drinks at the deli he owned in Commack. They would slip him a $20 bill. He would give them $19 in change, whatever they bought.
Then, some officers gave Fedden a break that proved fatal.
Driving drunk, he lost control of his 1999 Chevrolet, careened more than 300 feet over front lawns, plowed through two chain-link fences and smashed into an unoccupied car parked in a driveway, according to police and court records and witnesses.
Five officers and a sergeant arrived at the scene.
No one subjected Fedden to field sobriety testing, as required by department regulations.
Instead, Officer Michael Althouse drove Fedden home without notifying dispatchers.
There, within minutes, Fedden, 29, got behind the wheel of his mother’s 2008 Honda and sped through an industrial park in Hauppauge. He lost control, this time at a speed estimated at more than 100 mph. The car went airborne, slammed through a brick wall and traveled more than 30 feet inside a building.
A helicopter airlifted Fedden to Stony Brook University Hospital, where he was pronounced dead. An autopsy showed he had a blood alcohol level of .15, nearly twice the legal level for driving while intoxicated, according to police records.
Behind the scenes of a Newsday investigation
After an internal affairs investigation, the Suffolk County Police Department moved to fire Althouse for failing to do his duty. County lawyers told an arbitrator that Fedden would still be alive if Althouse had performed a sobriety test and taken Fedden into custody, the arbitrator reported.
The arbitrator ruled against the county and authorized the department only to counsel Althouse that officers must notify a dispatcher when transporting a civilian.
Althouse, now 57, stayed on the job until he retired in 2019 with an annual pension of $136,131. He did not respond to requests for comment.
Newsday’s Inside Internal Affairs investigation has revealed through case histories that the internal affairs systems of the Nassau and Suffolk police departments have allowed officers to escape most or all discipline even in cases involving serious injuries or deaths.
Newsday reconstructed the events that led up to Fedden’s death through police and court records. After reviewing Newsday’s findings, six experts in drunken driving and the law concluded that police failed to conduct a basic investigation at Fedden’s first crash, covered up evidence that he was intoxicated and avoided subjecting him to standard field sobriety testing.
“This shocks the conscience, it really does,” said Karl Seman, a Garden City-based criminal defense attorney who has taught classes on defending alleged drunken drivers.
From the editors
Long Island’s two major police departments are among the largest local law enforcement agencies in the United States. Protecting and serving, the Nassau and Suffolk county police departments are key to the quality of life on the Island — as well as the quality of justice. They have the dual missions of enforcing the law and of holding accountable those officers who engage in misconduct.
Each mission is essential.
Newsday today publishes the fifth in our series of case histories under the heading of Inside Internal Affairs. The stories are tied by a common thread: Cloaked in secrecy by law, the systems for policing the police in both counties imposed little or no penalties on officers in cases involving serious injuries or deaths.
This case documents how a provision in the Suffolk police contract worked to stop that department from firing an officer despite finding that he had failed to perform his duty at the scene of a drunken-driving crash, with a fatal consequence. The county concluded that Officer Michael Althouse’s actions cost the life of 29-year-old deli owner Peter Fedden — yet was limited to subjecting Althouse to counseling for a comparatively minor rule violation.
Newsday has long been committed to covering the Island’s police departments, from valor that is often taken for granted to faults that have been kept from view under a law that barred release of police disciplinary records.
In 2020, propelled by the police killing of George Floyd in Minneapolis, the New York legislature and former Gov. Andrew M. Cuomo repealed the secrecy law, known as 50-a, and enacted provisions aimed at opening disciplinary files to public scrutiny.
Newsday then asked the Nassau and Suffolk departments to provide records ranging from information contained in databases that track citizen complaints to documents generated during internal investigations of selected high-profile cases. Newsday invoked the state’s Freedom of Information law as mandating release of the records.
The Nassau police department responded that the same statute still barred release of virtually all information. Suffolk’s department delayed responding to Newsday requests for documents and then asserted that the law required it to produce records only in cases where charges were substantiated against officers.
Hoping to establish that the new statute did, in fact, make police disciplinary records broadly available to the public, Newsday filed court actions against both departments. A Nassau state Supreme Court justice last year upheld continued secrecy, as urged by Nassau’s department. Newsday is appealing. Its Suffolk lawsuit is pending.
Under the continuing confidentiality, reporters Paul LaRocco, Sandra Peddie and David M. Schwartz devoted 18 months to investigating the inner workings of the Nassau and Suffolk police department internal affairs bureaus.
Federal lawsuits waged by people who alleged police abuses proved to be a valuable starting point. These court actions required Nassau and Suffolk to produce documents rarely seen outside the two departments. In some of the suits, judges sealed the records; in others, the standard transparency of the courts made public thousands of pages drawn from the departments’ internal files.
The papers provided a guide toward confirming events and understanding why the counties had settled claims, sometimes for millions of dollars. Interviews with those who had been injured and loved ones of those who had been killed helped complete the forthcoming case histories and provided an unprecedented look Inside Internal Affairs.
He called the police response a “tragedy, in that the cops, thinking that they were doing a solid for one of their own, ended up killing him. Because, but for their — I’ll use the word — unfettered, improper discretion, this guy would be alive.”
Harry Thomasson, a lawyer who represented Fedden’s mother, Kathi Fedden, in lawsuits against Ruby Tuesday and Suffolk County, said Fedden was “a marvelously talented, gentle, kind artist, and had too much to drink, had too much marijuana one night, had some very poor judgment.
“And no one protected him from himself.”
The night no one saved Peter Fedden
Fedden bought Commack Breakfast in 2005 after working there part time while majoring in political science at C.W. Post College, now known as LIU Post. He finished his degree by taking night classes, often working seven days a week behind the counter.
“Someone he knew would come in and he’d say, ‘Are you hungry today? I’m going to make you something special. You don’t even know what I’m going to make you,'” Kathi Fedden, a court stenographer, recalled in an interview after her son’s death.
On the night of July 30, 2013, Fedden worked at a friend’s restaurant because the chef had called in sick. After finishing up, he drove to a since-closed Ruby Tuesday restaurant on Jericho Turnpike in Commack. He had two drinks at the bar, each 10 ounces of Jack Daniel’s whiskey with ice and a splash of soda in a 16-ounce glass, according to his mother’s lawsuit.
Bartender Joelle Dimonte was friendly with Fedden. She said in a Newsday interview that Fedden “would go above and beyond for his friends” and that he often gave free meals to police at Commack Breakfast.
“They would go there for big breakfasts,” Dimonte recalled.
Fedden left Ruby Tuesday after less than 90 minutes around 11 p.m., drove to the deli and smoked marijuana, the lawsuit states. Then he took off in his car, accompanied by Dimonte and Douglas Nigro, a man he had met that night.
Fedden picked up speed. He lost control on New Highway near the intersection of Mohegan Lane. After crossing the lawns and plowing through the two fences, he smashed into the parked car with a force that pushed it 20 feet up the driveway into a garage door.
The impact shook the house, according to the internal affairs file.
Off the road at high speed
Fedden lost control on New Highway near Mohegan Lane in Commack. Credit: Chris Ware, Jeffrey Basinger
Robert Rupnick rushed from his home across the street.
“We didn’t hear any braking sound, just a loud bang,” Rupnick, a chiropractor, said in a Newsday interview.
A woman who lived nearby told investigators she heard the crash from inside her basement, went to the street, saw Fedden get out of his car, and heard him yell, “I’m drunk. I’m drunk,” followed by three obscenities. She called 911 and reported what the driver had said, according to the file. The dispatcher radioed that the crash involved a “possible intoxicated driver.”
Rupnick said he spoke to Fedden and found him to be lucid.
“There wasn’t, to my interpretation, anything that seemed like he had been under any influence of drugs or alcohol,” Rupnick said, adding, “I asked him what happened, and he says, ‘I swerved to avoid a raccoon or a cat on the road.’”
Drivers often offer similar explanations for crashing, said Robert E. Brown, a former NYPD captain who now is a defense attorney.
‘Swerving to avoid an animal is a standard story.’
DWI defense attorney and former NYPD captain Robert E. Brown
Photo credit: Amessé Photography/Vinnie Amessé
“Swerving to avoid an animal is a standard story,” he said.
Fedden’s passengers emerged from the disabled car. Althouse reached the scene five minutes after the crash, according to police records. He was followed by four officers and a sergeant. The four officers who responded were not named in the file.
Althouse completed a police report about the crash. He cited “unsafe speed” and “animal action” as contributing factors to the crash. He did not note that there had been passengers in the car.
Speaking with Newsday, Dimonte said that police told Nigro and her to leave the scene. She also recalled that Fedden was placed in the back seat of a police car and smiled at her through a rear window as the car drove away. It was the last time she saw him.
Nigro did not respond to interview requests.
The owners of the car that Fedden hit were in Florida. Their son, Jody Calabrese, arrived. Police assured him that the driver was fine and told him, unprompted, that the driver was not drunk, Calabrese said in an interview with Newsday.
He recalled surveying the damage and being stunned that a police officer had taken Fedden away without calling an ambulance. He also remembered telling Rupnick, “It was a serious accident. How do they know he didn’t bump his head?”
Fedden’s home was a four-minute drive away. Althouse brought Fedden there — never notifying a dispatcher that he was transporting a civilian, as required by department rules.
Minutes later, Rupnick and Calabrese heard a police radio call: A car had gone off a roadway and crashed into a building in Hauppauge.
“Another one?” Rupnick recalled hearing an officer say.
Dropped off by Althouse, Fedden had taken the keys to his mother’s Honda and gone out again. He drove east on Commerce Drive at a speed estimated by police to be 100 mph, barreled into a parking lot, went airborne and crashed into a brick building.
Penetrating the wall, the car destroyed a conference room and test kitchen of Advantage Marketing, a food service brokerage, the company’s owner, Mitch Levine, said in an interview.
An officer, whose name was blacked out, reported finding an unidentified driver “unresponsive with shallow breathing.” His legs were pinned under the dashboard.
Althouse also responded to the 911 call, joined efforts to extricate the driver from the wreckage, and flew with him in a helicopter to Stony Brook University Hospital.
There, medical staff gave Althouse a folded piece of paper they found in the driver’s pocket. It was then that Althouse learned who the crash victim was. The paper was a copy of the report Althouse had written about Fedden’s first crash, according to a report he filed with the department.
Sequence of events
1 11:23 p.m. Fedden drives across yards, crashes into parked car.
2 11:55 p.m. Officer drives Fedden to his mother’s home.
3 12:07 a.m. Now driving his mother’s Honda, Fedden crashes into a building and dies.
Fedden was pronounced dead at 1:05 a.m., July 31.
The level of alcohol in his blood was still almost twice the legal limit for driving when an autopsy was done several hours later.
“Thank God Peter didn’t kill somebody” else, said Levine, who, too, had known Fedden as a friendly deli owner.
How police failed Fedden
Police are trained under National Highway and Traffic Safety Administration guidelines to conduct investigations of drunken driving in three phases, said Steven Epstein, a Garden City attorney who specializes in drunken-driving cases and teaches DWI defense to attorneys.
The first phase entails studying how the driver operated the vehicle — whether, for example, the driver had been speeding or had lost control.
Then an officer looks for signs of intoxication. This entails observing drivers for unsteadiness, slurred speech, the odor of alcohol, bloodshot eyes and difficulty producing a driver’s license.
An officer typically questions witnesses, including passengers and other drivers, with a goal of understanding what happened before the crash.
An officer typically asks, ‘How much have you had to drink today?’
Eric Sills, attorney-author specializing in drunken driving and the law
Photo credit: Akullian Creative
“An officer arriving at a scene of an accident typically asks the person where they’re coming from and where they’re going to,” said Eric Sills, an Albany attorney who has co-authored a book about representing clients charged with driving while intoxicated.
“And if there’s any reason to believe that the person has been drinking or using drugs, there typically would be questions regarding that, such as, have you been drinking? Or how much have you had to drink today?”
If the officer spots physical signs of intoxication, a witness reports evidence that a driver was intoxicated or a driver came from a place such as a bar or party where alcohol is typically consumed, the officer moves to the third phase: field sobriety tests.
This can include a gaze exam, in which an officer observes how eyes follow an object moving across a person’s horizontal field of vision; the walk and turn test, which involves taking nine heel-to-toe steps in one direction and back; and the one-leg stand.
Failure to successfully complete those tests gives police grounds to ask a driver to take a preliminary breath test, known as a PBT.
A driver who refuses to take a PBT, or whose breath shows traces of alcohol on a PBT, is typically taken into custody for more sophisticated testing at a police precinct. There, police will most commonly ask the driver to submit to a chemical breath test, such as a Breathalyzer or an Intoxilyzer, whose results are accepted as evidence in court.
Refusal to take such a test typically results in an automatic one-year driver’s license suspension.
Drunken-driving experts who reviewed Newsday’s findings pointed to five departures from police protocol:
The car’s trail of damage should have prompted an investigation.
“A quick look around the accident scene will give a trained officer an indication that there was high speed,” said John Powers, a West Islip-based attorney who specializes in DWI cases.
Seman said that the Chevrolet’s path from the roadway to smashing into a car parked up a driveway could itself offer “proof of intoxication or impairment.”
“This is not somebody that hits the curb or somebody that falls asleep at the traffic light. This is a huge crash. Look at the property damage involved,” he said. “You would expect someone who was not intoxicated or not impaired to have better control of their vehicle.”
Fedden very likely smelled of alcohol.
A standard drink contains 1.25 ounces of alcohol. Consuming 10 ounces would be the equivalent of eight drinks. Someone who consumed that much whiskey in just one drink would give off a strong odor of alcohol, Seman said.
Pointing out that the autopsy took place hours after Fedden died, he also estimated that Fedden’s blood alcohol level would have been close to double .15 at the time of the first collision in Commack.
A witness reported that Fedden had yelled, “I’m drunk. I’m drunk.”
Suffolk police protocols require that dispatchers relay reports of intoxication to responding officers. IA investigators confirmed from 911 recordings that the witness reported that she heard Fedden say he was drunk and that the police dispatcher relayed the call as a “possible intoxicated driver.”
The protocols direct officers to perform sobriety testing if a dispatcher reports possible drunkenness. None of the officers tested Fedden.
“His statement to civilians who have no reason to lie, ‘I’m drunk. I’m drunk,’” followed by obscenities, “is enough to arrest him” if the officer is aware of it, Seman said. He added that standard procedure called for detaining Fedden and, “at a minimum,” subjecting him to sobriety tests.
Police told the witnesses to leave the scene without questioning them.
Suffolk police regulations direct officers to “interview the parties involved” in a collision, along with witnesses.
Althouse’s crash report did not reflect the presence of passengers in Fedden’s car, as required. It also showed no indication that any of the officers interviewed Fedden, Dimonte or Nigro, who knew both that he had been drinking and that he had driven recklessly. Instead, Dimonte’s account that police told her and Nigro to leave the area suggests an attempted cover-up, the experts in the law of drunken driving said.
“You have witnesses to a potential criminal offense at your fingertips. You’re allowing very important investigative information to walk away from you, of what clearly could be a criminal offense,” Powers said.
‘…potentially, you have witnesses who were there and can tell you things.’
Drunken-driving defense attorney Steven Epstein
Photo credit: Newsday/Alejandra Villa Loarca
Epstein said: “You have witnesses at the scene who can probably give you information about how the accident took place because if you’re doing an investigation into an alcohol-related accident, potentially, you have witnesses who were there and can tell you things.”
He continued: “It’s not very consistent with proper procedures to tell people involved in a car accident to leave the area unless they’re trying to have them not interviewed.”
Additionally, Althouse’s crash report shows no indication that officers located and interviewed the woman who reported hearing Fedden say, “I’m drunk. I’m drunk.”
Violating regulations, Althouse drove Fedden home without notifying a dispatcher.
“If you get arrested for drunk driving or driving while impaired, you don’t get to go home, just for that very reason,” said Brown, the former NYPD captain. “You need to go through the system because they want to make sure you’re not intoxicated when you get out.”
“Why do you think the cop did that?” Seman said. “’Cause he doesn’t want anybody to know that he’s giving his buddy a break and taking him home. ’Cause he doesn’t want anybody to know that this guy was at the scene. ’Cause he doesn’t want anybody to know that there was police involvement.”
Powers said Althouse put himself in jeopardy by driving Fedden home.
“It could be perceived that he’s giving aid to someone who had committed a crime,” he said. “You’re tampering with the witness of a crime.”
John Bandler, a former state trooper who teaches at John Jay College of Criminal Justice, said he was always concerned about releasing a driver who may have been drinking.
‘You made a judgment call and let them drive and they killed someone, you are on the hook as a cop…’
Former state trooper John Bandler
Photo credit: Gail Bandler
“You made a judgment call and let them drive and they killed someone, you are on the hook as a cop, your discretion was wrong,” he said.
Letting Fedden go “emboldened” Fedden, Powers said.
“When you’re 29 years old, and you’re high and you’re intoxicated and you just got a pass, you’re invincible,” he said, adding:
“My gut reaction to hearing all the facts of the case is that here police officers are showing discretion to help this individual, and unfortunately, it cost him his life.”
How police escaped discipline
The crash happened in Althouse’s Fourth Precinct patrol sector. That gave him the primary responsibility for determining what had happened. At the same time, regulations required all the responding officers to request sobriety testing if they detected evidence that Fedden was intoxicated, Powers said.
The file shows no evidence that internal affairs interviewed any of the officers who responded to the scene. Instead, internal affairs permitted Sgt. Matthew Scaduto and the four additional officers to submit written statements. All wrote that they declined to waive the constitutional right against self-incrimination and that their accounts could not be used against them in criminal proceedings.
Their statements were each less than a page long.
The four officers who joined Althouse at the scene wrote that they had no contact with Fedden, did not know who he was until after the second crash and had no knowledge of whether he was subjected to sobriety testing. None of the officers mentioned witnesses.
One wrote that he helped guide traffic around the crash.
“I never saw or knew driver of vehicle involved,” this officer wrote. “I also had no interaction with driver.”
A second wrote that he saw Althouse in the driver’s seat of his patrol car and Fedden in the rear seat.
“Althouse advised that he did not need an assist with traffic control, and we left the scene,” this officer stated.
A third wrote that he saw that no one was inside the crashed car and saw that officers were “speaking to civilians.”
“Due to their distance and it being dark out, I was unable to see who they were speaking to,” this officer wrote. “I waited near the vehicle for a few minutes, and upon realizing my assistance wasn’t needed, I left the scene.”
A fourth officer recalled that Fedden’s car was towed.
Although he was the supervising sergeant at the crash site, Scaduto reported that he did not know who the driver was and had no contact with him. He wrote:
“I did not know the identity of the driver involved in the [crash] and had never met him before. I did not have any interaction with the driver and did not observe any signs of intoxication. I did not observe field sobriety tests being administered.”
The assertions by the four officers and Scaduto that they had no interaction with Fedden strained credulity, said Lee Adler, who teaches at Cornell University’s School of Industrial and Labor Relations and has studied police discipline.
“When you have an accident like that and it’s late at night, it’s very hard for a civilian to imagine that everybody let this go on without any inquiry,” he said, adding, “The statements made by the police officers about what occurred at the scene closed down the possibility for more careful examination.”
‘The statements made by the police officers…closed down the possibility for more careful examination.’
Lee Adler, Cornell University lecturer who has studied police discipline
Photo credit: Cornell ILR School
Only Althouse acknowledged having contact with Fedden. Internal affairs summarized an incident report he filed as saying that Fedden showed “no signs of any physical or emotional impairment” and was “polite and cordial and in good spirits” when Althouse drove him home. There, Althouse wrote, Fedden thanked him and walked to his front door.
The internal affairs file includes one-paragraph summaries of interviews with Fedden’s passengers.
According to the summary of Dimonte’s interview, she reported that Fedden had consumed one “Jack and coke,” a reference to Jack Daniel’s whiskey, and “a sip of another.” She also said that Fedden “appeared normal” until “he began to speed at 100 mph” and that she wouldn’t have gotten into the car if she thought he was drunk.
A witness reported that Fedden “had ‘one Jack and coke’ and ‘a sip of another.’” Internal affairs report as redacted. Expletives blurred by Newsday.
Nigro said he saw Fedden have one drink, according to the summary of his interview.
The investigation substantiated three charges against Althouse.
First, internal affairs found that Althouse “should have recognized Fedden’s intoxication and arrested him at the scene of the first motor vehicle crash.”
Investigators based the finding on statements by Dimonte and Nigro that they had witnessed Fedden drinking at Ruby Tuesday, as well as on a statement by the neighborhood resident that she heard Fedden yell that he was drunk. Internal affairs also noted that police received the 911 call about Fedden’s fatal crash 12 minutes after Althouse dropped him off.
Second, internal affairs found that Althouse had failed to properly document the first crash because his report did not reflect that Fedden had two passengers.
Third, internal affairs concluded that Althouse had violated Suffolk Police Department regulations by failing to notify a dispatcher that he was transporting a civilian member of the public.
Internal affairs substantiated a single charge of improper supervision against Scaduto, finding that he “knew or should have been aware of the vehicle operator’s intoxication” because of the 911 call and the suspicious circumstances of the first crash, the file says.
The department moved to terminate Althouse. He fought to keep his job.
Under New York state civil service law, an officer charged with misconduct can request a hearing before an examiner appointed by the police commissioner. The examiner issues a ruling, but the ruling is not binding. The commissioner retains the final authority to decide whether an officer will be disciplined and how tough the punishment will be.
At the same time, the law enables police unions to negotiate contracts that establish different disciplinary procedures.
In Nassau County, the commissioner has held power over discipline for the last decade.
In 2012, then-Commissioner Thomas Dale persuaded the county Legislature to repeal a law that allowed officers to seek binding arbitration if they faced the loss of 10 or more days of pay. After the Nassau Police Benevolent Association sued, the state’s highest court upheld the commissioner’s power.
In Suffolk, the PBA negotiated a contract that stripped the police commissioner of sole authority over discipline in the early 1980s.
Suffolk officers facing punishments more severe than the loss of five days of pay have two choices: They can opt for an internal police department hearing whose conclusions are presented to the commissioner for endorsement, modification or rejection, or they can choose a hearing conducted by an arbitrator selected jointly by the department and the PBA. The arbitrator’s ruling is binding.
Top police officials have insisted that commissioners should have the power to make the final decisions over discipline.
“It’s inconceivable to hold a commissioner of police responsible for organizational discipline when he has no control over the punitive discipline in the department because the arbitrator ultimately is going to make the decision,” said Thomas Krumpter, former Nassau County police commissioner.
Rather than face a ruling by then-Commissioner Edward Webber, Althouse chose arbitration. The case was assigned to Daniel Brent, a professional arbitrator and mediator who charges $2,000 per day to preside over hearings, according to his listing on the website of the Cornell University labor relations school.
County lawyers asked Brent to order Althouse dismissed from the force.
They argued that Fedden “would be alive today” if Althouse had made an arrest “because Fedden would not have been able to take his mother’s car so soon after the first accident and crash it into a wall with fatal consequences,” Brent wrote.
The lawyers cited the level of alcohol found in Fedden’s blood as evidence that he had been driving while intoxicated; pointed to Fedden’s reported statement, “I’m drunk. I’m drunk”; and informed Brent that police department procedures called for subjecting Fedden to sobriety testing based on the dispatcher’s notification of possible intoxication.
In his defense, Althouse testified that he saw no evidence Fedden was intoxicated. Supporting Althouse’s account, the PBA submitted a sworn statement obtained from a witness who lived across the street from the crash site. The witness’ name was blacked out in the internal affairs file.
“The driver did not appear to me to be under the influence of alcohol or impaired in any visible way,” the witness wrote, also stating that Fedden appeared to be “composed, calm, lucid, and spoke clearly.”
Interviewed by Newsday, Rupnick, the chiropractor, said that he gave the PBA a statement for use in the arbitration hearing in which he said he had seen no evidence of intoxication.
Based on the two statements that Fedden appeared sober — one by Althouse, one by the witness — Brent found that Althouse had no grounds to suspect that Fedden had been drinking.
He also wrote that Fedden’s blood alcohol level “did not demonstrate persuasively” that Fedden had shown signs of intoxication.
Finding that the county failed to establish a personal relationship between Althouse and Fedden, Brent concluded both that Althouse knew Fedden “only casually as the owner of a local sandwich shop and that there was no reason to think favoritism influenced Althouse to spare Fedden from taking a field sobriety test.”
He also excused Althouse’s failure to subject Fedden to testing as ordered by regulations.
While acknowledging that “police protocol mandates” sobriety testing after a dispatcher relays that a driver may be intoxicated, Brent wrote that the county had failed to prove that Althouse had “improperly” failed to follow the rule. Instead, he wrote that Althouse’s observations of Fedden “operated as an informal field assessment of the driver’s sobriety.”
Suffolk police protocols do not include an “informal” field sobriety test, Powers said.
‘If it is subjective, and a police officer can come up with his own informal investigation, then what are we doing?’
John Powers, attorney who specializes in DWI cases
Photo credit: Newsday/Alejandra Villa Loarca
“Their language is pretty formal and doesn’t leave room for interpretation,” he said, adding, “What’s an informal field assessment? What, in fact, would that mean? If it is subjective, and a police officer can come up with his own informal investigation, then what are we doing?”
After remarking on Althouse’s “impeccable record of service,” Brent dismissed the department’s charge that Althouse had failed to perform his duty by not testing Fedden.
Brent also dismissed the department’s second charge — that Althouse had not mentioned Fedden’s two passengers in his crash report.
He concluded that Dimonte and Nigro left the scene before Althouse arrived five minutes after the 911 call — an account that conflicts with Dimonte’s memory of seeing Fedden in the backseat of the police car that drove him away.
Asked about the third charge — that he had transported Fedden without notifying a dispatcher — Althouse told Brent that he couldn’t remember what he had done. Brent wrote that notifying a dispatcher would not have changed the outcome for Fedden and accepted the PBA recommendation that Althouse should be subjected to counseling by the department.
After the arbitrator ruled that the county had not produced evidence that Fedden was drunk, the department withdrew the charge that Scaduto had failed to supervise Althouse.
It is not uncommon for arbitrators to reduce proposed punishments for police, said Stephen Rushin, associate professor of law at Loyola University Chicago who has studied police arbitration. But reducing a punishment from termination to counseling is “fairly dramatic,” he said.
“If you’re unable to consistently discipline officers and have that discipline stick, that makes organizational change and reform hard. It also makes it difficult to deter future wrongdoing,” he said in an interview.
Adler, who has studied arbitration in police discipline, said, “If I was in that community, I would be scared … that this is the way the world works.”
Michael Caldarelli, who oversaw the department’s investigation into the case as commanding officer of the Internal Affairs Bureau at the time, said he viewed the case as “very cut and dried.”
‘I stand by the IAB report. Am I perplexed by the arbiter’s finding? Yes.’
Ex-Suffolk internal affairs commander Michael Caldarelli
Photo credit: Newsday/Alejandra Villa Loarca
“I stand by the IAB report. Am I perplexed by the arbiter’s finding? Yes,” he said.
Brent declined to discuss his decision.
“The arbitrator’s decision speaks for itself. It is not appropriate for an arbitrator to speak further,” he said.
Anonymous calls and PBA cards
In her lawsuit against Ruby Tuesday, Fedden’s mother alleged negligence and reckless disregard for allegedly serving Fedden two 16-ounces glasses of Jack Daniel’s whiskey and coke, with at least 10 ounces of alcohol in each glass. She recovered an undisclosed amount.
Kathi Fedden’s suit against the police department alleged, among other things, negligence and reckless misconduct. Her complaint said police “conspired to avoid charging Peter with any crime due to their knowledge of Peter and his generosity to them through his deli.”
She settled the case against the police department for a payment of $1,500.
After speaking with Newsday in a brief interview, Kathi Fedden said she did not wish to discuss the case any further.
Thomasson, the lawyer who represented her, said that she had received anonymous phone calls about the suit and that notes accusing her of being “anti-cop” had been left on her windshield. He said she settled because she wanted to move on with her life.
He added that Kathi Fedden turned over to him a two-inch stack of PBA cards that officers had given to Fedden for use if police ever pulled him over.
