None of the rookies were charged criminally with the December 2008 assault. Instead, it was the cab-driver victim who was arrested, records show. Meanwhile, the captain, William Pla, was subsequently promoted to commanding officer of the 23th Precinct in East Harlem.
And Sergeant Anthony Acosta, the man who waded into the melee and broke up the assault—a highly decorated sergeant who has made more than 1,000 arrests in his 20-year career—was slapped with administrative charges and chained to a desk without his gun or his shield for almost two years.
"I spend a lot of time trying to figure out how this happened," Acosta tells the Voice. "I did everything right. I feel like the lesson is, you know what, mind your business, stay in your house, don't get involved. I'm not one of those conspiracy people, but how the hell did I end up in this position?"
The cover-up and punishment of the officer who tried to break up the fight is another glaring example of how internal justice is meted out in Ray Kelly's NYPD. In the "NYPD Tapes," published earlier this year, the Voice showed how another whistleblower who has tried to bring NYPD injustice to light, Adrian Schoolcraft, was punished by being forcibly put into a hospital mental ward.
This new case also offers lessons about the byzantine world of One Police Plaza, where miscreants are promoted and do-gooders are punished by an arcane, plodding bureaucracy that operates almost entirely outside of public scrutiny. The Voice sent a detailed e-mail to the police department press office. There was no response.
In conversation, Sergeant Anthony Acosta, 44, is so professional that he insists on addressing civilians with the word "sir," even when he's off-duty. He is a stocky man, five-foot-six, 195 pounds, inked with a series of tattoos down his thick forearms that reference his days as a United States Marine.
He grew up in the Polo Grounds public housing development and East Harlem. His mother left him and his siblings when he was 10 years old. They then lived with his father in an abandoned building on East 103rd Street. When he was 14, Acosta moved alone into an apartment provided for him by his uncle, and started working to help pay the rent. He worked in the city's summer youth jobs program, and actually lied about his age to work in an ice cream parlor and a movie theater.
Acosta had planned to go to college after he graduated from Murry Bergtraum High School, which happens to be located next door to police headquarters. But his girlfriend—later his wife—got pregnant, so he joined the Marines to help pay for the expenses.
Acosta was a Marine for five years, from 1984 to 1989. He worked embassy security details in Lebanon, Yemen, Saudi Arabia, and elsewhere, and was also assigned to a task force that responded to terror incidents. (Years later, he would take a 2005–2006 leave from the NYPD to go to Iraq and help train its new police force.)
From the Marines, he went straight into the police academy. While he was still a cadet, Acosta responded while off-duty to a fire in a building next to his apartment. A mother had fled the apartment, leaving her two kids behind. Acosta climbed the fire escape, got into the apartment, and carried one of the kids to safety. He went back to rescue the second child, but fell ill from smoke inhalation. Fortunately, firefighters arrived and made the second rescue.
After he graduated from the academy, he went from patrolman to sergeant and worked in a succession of precincts in Manhattan and the Bronx. He worked in both uniform and plainclothes anti-crime units. Currently, he is the field intelligence officer for the 30th Precinct in Washington Heights, a highly sensitive and coveted post that involves "debriefing," or interviewing, suspects for information about other crimes.
During his NYPD career, he has amassed more than 1,000 arrests—a large number relative to most other officers. He has also earned 76 medals, including the Medal of Valor, one of the department's highest honors. He routinely receives high ratings in work evaluations.
He earned the Medal of Valor for arresting two men involved in a home-invasion robbery, after exchanging gunfire with one of the men. In another notable case, he arrested a pimp who had kidnapped a child to force her mother to prostitute herself. He set up a sting in which the mother convinced the pimp to meet with her. Once the pimp was arrested, the child was found unharmed in a Bronx motel.
In another case, he spotted a naked woman staggering away from a taxi cab. She had been raped by a pimp. Acosta arrested the cab driver for fleeing the scene, and helped catch the rapist, which led to the seizure of firearms from an apartment in the Polo Grounds Houses.
Following a rash of shootings in the 41st Precinct in Hunts Point, Acosta's anti-crime team arrested 19 people on homicide, assault, and drug charges. And there was the case in which he helped catch a drug crew and seized $400,000 in cash, five guns, and 18 kilos of cocaine.
Over 20 years as a police officer, Acosta had never spoken to a reporter before he agreed recently to give an interview about the incident outside the bar on December 17, 2008, that led, in its bizarre way, to his exile from the street.
The evening began normally enough, he says. According to his very detailed notes, he finished his tour at the 3-0, and met up with some colleagues at the Dinosaur Bar-B-Que under the West Side Highway. Then, after dinner and one drink, he headed to the Vudu Lounge at East 78th Street and First Avenue for a Christmas party organized by Captain William Pla, the commander of Manhattan North Impact, a unit composed of rookie officers sent to flood high-crime areas.
Acosta parked across the street, walked inside, paid Pla the $60 party fee, and chatted with some of the officers present. At about 11:30, the captain told everyone the party was over, and Acosta left.
He crossed the street, sat in his car, and made a couple of calls on his cell phone. He got out of his car to respond to what turned out not to be an accident, and then noticed someone being assaulted across the street in front of the bar.
A group of rookie cops had spilled out of the Vudu Lounge. Traffic on northbound First Avenue was going very slowly at that moment, and the rookies took the opportunity to cross against the light.
The young officers crossed in front of a yellow taxi driven by Levelle DeSean Ming, a 41-year-old Brooklyn man.
Ming had just come back from a trip to Kennedy Airport. He was about 10 hours into his shift. At the time, he was making about $400 a day as a hack, but he had to kick back half of that to the cab owner. He had child support and other debts to worry about.
"I was sitting there, and I tapped the horn, and I said to myself, 'Wow, people don't know how to act when they're drunk,' " Ming tells the Voice in an interview. "But this guy heard me, he was intoxicated, and he said, 'What did you say?' "
That guy, Ming later learned, was Police Officer John Virga. Virga reached through the window and punched Ming three times in the face. Ming says he opened the driver's side door and began to get out, but Virga slammed the door against Ming's chest three times, bruising his ribs.
Ming finally got out of the car, which turned out not to be a great idea. "I got out, he punched me more, I fought back, and then other people jumped in, punching and kicking me," he says. "I got knocked down. I got beat up bad. They must have hit me 30 or 40 times."
The telephone switchboard in the NYPD's dispatch center began to light up with calls.
"You got to get the cops over," says a Park Avenue doorman from New Jersey in his 911 call, who spoke to the Voice under the condition that his name be withheld, and happened to be in his car right behind Ming's cab that night. "They're beating the shit out of a cab driver. About 15 guys. They're fucking jumping him."
Seconds later, the doorman adds, "They're getting a two-by-four. I'm witnessing a big two-by-four being picked up."
"He honked his horn," the doorman tells the Voice. "They went ballistic, started punching his window, being dickheads. The cabbie did nothing wrong."
He continues to confirm details of Acosta's story: "The traffic was very slow. These guys came stumbling out in the street. One of them stepped in front of his taxi. All the cabbie did was honk the horn. They came over screaming at him and tried to pull him out of the taxi."
"I could have been the same guy," he says. "They didn't belong in the street. They obviously had a few drinks in them, and they thought they could do whatever they wanted."
In the second 911 call, a man tells a police dispatcher, "There's a fight breaking out here, right in the middle of First Avenue."
In the third call, a woman looking down from her window says, "A bunch of young people are chasing another person into the street. Oh, my God, they're in the middle of First Avenue."
"Any weapons?" the dispatcher asks.
"I saw a whole group chasing after one person, and I could hear somebody screaming, 'Let him go, let him go.' "
Acosta was off-duty. He could have kept driving, let the incident take its course, let uniformed cops handle it, but he wasn't the type of officer to walk away when there is a potential crime taking place.
"The altercation appeared to be growing," he writes in his notes. "I observed Captain Pla, his female companion, and several other people and other sergeants and lieutenants on the sidewalk watching the altercation escalate. . . . To me, the situation appeared to become violent, so I decided to take police action by intervening and dispersing the crowd."
One of the off-duty rookies was indeed holding a two-by-four, and was pushing his way through a crowd that appeared to be attacking the cab driver. Acosta identified himself and tried to grab the piece of lumber. "I'm a cop, let go," Acosta said. At that point, the cop dropped the two-by-four and took a swing at Acosta's face.
Acosta pushed his way through to Ming, the cab driver. He persuaded Ming to get out of the situation by getting back in his cab. Acosta put himself between the cab door and Ming, as the irate rookies tried to grab the driver, and tried to push the crowd back. With help from another off-duty sergeant, he ordered the crowd to disperse.
The woman with Captain Pla started screaming at the off-duty cops involved in the fight. "You're animals," she shouted. "You're savages. What are you doing?"
In the aftermath, as police sirens wailed toward the scene, several of the officers involved in the fight tried to flee. But they were stopped by plainclothes anti-crime officers.
Ming says some of the rookies told him to leave the scene. "I was like, wait a minute, there's something else going on here," he says.
It was only when the rookies were stopped by the anti-crime officers that Ming learned they were cops. "When I saw the shields, I was like, all this time, they are cops?" Ming says.
In the aftermath, a detective drove Ming to the precinct for questioning. In the car, the detective pledged to help him out. "He says, 'If you have any problems, let me know,' " Ming says. "He tells me I didn't deserve any of this."
A sympathetic captain wandered by as Ming was waiting to be interviewed by Internal Affairs. "We don't need cops like that," he told Ming. "They're not acting with good conduct."
Pla, Acosta says, remained on the sidewalk as the melee occurred, watching but not taking action. He says that, as the senior officer present, Pla should have intervened.
"He knows these guys, they work for him, he should have done something," Acosta says. "If those cops had been civilians, they would have been arrested."
As uniformed officers from the 19th Precinct began to arrive on the scene, Acosta says that Pla made a phone call.
As the anti-crime officers removed the off-duty cops from their car, Acosta walked up behind a uniformed officer named Mazzilli, who was looking on, tapped him on the shoulder, and said, "Officer, I'm a cop and I saw what happened."
Mazzilli spun around and grabbed Acosta by the wrist and demanded he remove his hand from his pocket. But because of the way his wrist was being held, Acosta couldn't take his hand out of his pocket.
Mazzilli, Acosta says, got angry, and repeated his demand. Acosta replied, "Listen, I'm a sergeant. Take it easy. I will do what you want, but you have to let go of my wrist."
"I don't give a fuck who you are," Mazzilli replied.
Mazzilli struck Acosta once in the face and threw him face-down to the ground. The irate officer then handcuffed Acosta. Acosta sustained bruises and a small cut to his face. He also hurt his back in the fall. He was dizzy and upset.
A sergeant subsequently uncuffed Acosta and had him sit in the unmarked SUV. While he was sitting there, he noticed that Captain Pla was still on the scene. He tried unsuccessfully to call and text Pla. There was no response.
He was approached by a lieutenant, who asked for his identification card. He asked the lieutenant if he could leave the SUV to speak with Pla.
"I pointed across the street to Captain Pla and I said, 'That gentleman right there, he's a captain,' " Acosta testified. " 'He saw everything that happened.' "
The lieutenant refused.
"Captain Pla can't do shit for you," the lieutenant said, according to Acosta. "You're better off just sitting in the car and shutting up."
Acosta was taken to the 19th Precinct stationhouse, where he spent most of the night in the roll call room, while investigators tried to sort out the incident.
He was sitting in the muster room with a delegate from the Sergeants Benevolent Association when he was approached by an Inspector Harrington. The inspector wanted Acosta to sign a statement that read that he had broken up the fight, but failed to identify himself when he approached Officer Mazzilli.
"Listen, this is an unfortunate incident. This is what you're going to say," the inspector said, according to Acosta.
Acosta refused to make that statement because it wasn't true. He had repeatedly identified himself. "I told my delegate that I don't know what's going on here, but I'm going to say the truth of what happened," he says.
He told the SBA delegate, "This is fucked up. How am I in this situation? How are cops beating someone else? There's an off-duty captain that sees the whole thing, and he's not being brought back here. This is wrong."
In the often topsy-turvy world of the NYPD, Acosta now became a target for disciplinary charges. He was told that he was being placed on modified assignment for the "good order of the department," and his gun and shield were taken from him.
Then he went to the hospital, where he was treated for minor cuts and bruises.
Two days later, he was formally interviewed by department investigators, which is sort of like having a colonoscopy. He would be formally interviewed twice more, as the case began to take on a life of its own. The department even interviewed his brother, who is a detective in the 33rd Precinct. Acosta's two-year ordeal had begun.
"They interview my brother, who wasn't even there, but not Captain Pla, who was clearly there," Acosta says.
Meanwhile, police bosses were preparing a "49," an official report on the incident. The report was prepared by Captain James Ryan, Inspector Michael Harrington, and Deputy Chief Denis McCarthy, the second-ranking officer in Manhattan North.
But a review of the report by the Voice indicates that it contains misstatements of fact, and is misleading about key elements of the incident:
* The report doesn't mention that the officers in the fight were at the Vudu Lounge for a Christmas party organized by Captain Pla, nor does it indicate that Pla witnessed the fight but didn't act.
* The report downplays the scale of the incident, describing it as a fight between one police officer, John Virga, and the cab driver. The report doesn't detail the reason for the dispute.
* The other officers are identified only as "unidentified individuals," as if as many as 10 police officers weren't involved in the fight.
A second report filed in January 2009 by Assistant Chief Thomas Galati, obtained by the Voice, also doesn't go into the context of the fight. The report fails to mention that it stemmed from a Christmas party, or that the rookie officers started the confrontation. The memo downplays the incident and does not mention Captain Pla.
Meanwhile, the cab driver, Ming, was arrested and charged with aggravated unlicensed driving.
"First, they're telling me I'm the victim, and now they are locking me up and putting me in jail," he says. "They were like, 'That's the way it goes.' Here, I didn't do anything wrong. I was just working, trying to earn a living."
Ming was booked and brought before a judge. The judge was convinced Ming had been arrested in a police-car stop, and he wouldn't listen to the real story. Ming eventually paid a fine to resolve the arrest.
Ming filed a notice of claim with the city and took a routine $7,500 payment to settle the case. He needed the money to catch up on child support and other debts. He never drove a cab again. He is currently unemployed.
As for the cops who attacked Ming, while some of the officers faced administrative charges, most of them returned to full duty long before Acosta did, including the officer who started the whole thing. While that officer, a rookie, was back on patrol within a year, the highly decorated veteran sergeant who stopped the fight remained tied to a desk without his gun and shield.
And as for Captain Pla—who set up the party, witnessed the fight, and did nothing to stop it—he faced no charges at all.
Instead, he was rewarded. He was promoted to deputy inspector and awarded the command of the 23rd Precinct in East Harlem. He faced no sanction for his failure to act.
No other supervisors present were disciplined, nor was Harrington, the inspector who asked Acosta to sign a false statement of events.
Acosta, meanwhile, was asked to accept a "command discipline" and a plea deal that would cost him five vacation days. He refused the offer on principle: "I hadn't done anything wrong," he says. "I'm not going to sign off on something I didn't do."
After he refused the deal, Acosta was slapped with five charges: conduct unbecoming, failing to identify himself, interfering with an on-duty officer, improperly filling out line-of-duty injury paperwork, and improperly preparing witness statements.
All of these were exceedingly minor charges that probably never should have been filed.
Eventually, the department had to admit that two of the charges were just plain wrong. Most of the same police officers involved in the fight testified that Acosta had identified himself. And his union delegates testified that they had filled out the line-of-duty paperwork.
The case went into the deep-freeze, and Acosta had to shelve both his plans to retire and his goal of working again overseas. He needed to retire in good standing from the NYPD in order to qualify for the overseas security jobs.
He kept working, though, interviewing suspects. "Even from behind a desk, I was still able to produce a lot of activity, but what could I have done if I was out there on the street?" Acosta wonders.
Eventually, fed up with the delay and the failure of the department to investigate Captain Pla's role in the fight, Acosta began writing letters to various senior NYPD officials. One of his letters accuses the borough's inspections unit and the Intel inspections unit of both failing to perform an unbiased investigation and of trying "to cover up the fact that numerous off-duty officers did attack a civilian taxi driver."
In April 2009, Acosta wrote a memo to Police Commissioner Ray Kelly, asking him to order his disciplinary case accelerated. He had decided to retire, and work again for a private security company in either Iraq or Afghanistan. But he couldn't retire with a disciplinary case hanging over his head.
"I took police action and came to the assistance of the cab driver," he wrote Kelly. "I was then wrongfully attacked, assaulted, and handcuffed. Then, to add insult to injury, I was placed on modified assignment."
Acosta also told Kelly that a captain hadn't done a thing to stop the incident: "There was a captain, a lieutenant, a few sergeants, and police officers present, but I was the only one who acted properly by preventing the further assault on the civilian. . . . Sir, my whole career I have been a good and hard-working cop, and I have had my ups and downs, but I have always been honest, motivated, and behaved in the best interest of the department."
Kelly did not respond to the letter.
In May 2009, Acosta wrote the Deputy Commissioner of Trials to allege once again that Captain Pla had failed to take action in preventing the incident, and ask for a more thorough investigation.
That month, he also wrote to the First Deputy Commissioner, alleging that the department's 49, or official report, on the incident was "wildly inaccurate." He described himself as a "sergeant who has spent his entire career on the streets in plainclothes, thousands of times proving and demonstrating the behavior of an officer who has brought honor to the department."
"Without hesitation, I went to the aid of a citizen of the City of New York who was being assaulted—and not by hiding and running away, as Captain Pla and those under his command did," he wrote. The message of the case is that "anyone that is off-duty and sees someone being beaten up by eight individuals should not get involved."
In August 2009, he wrote the commander of the personnel department to ask to be restored to full duty, and again asked the department to accelerate the pace of his case.
That didn't happen, and another year passed without resolution. Acosta continued to sit behind a desk in the 30th Precinct stationhouse, but he was a productive cop. He continued to debrief accused criminals and file intelligence reports—a fairly challenging and coveted job in the Police Department.
After many stops and starts, his departmental trial began in June 2010. But the NYPD kept postponing dates, so it dragged out even longer.
On September 29, a few days after a Voice reporter sat in on Acosta's hearing in the trial room and pressed a department attorney on why such a decorated officer had been put through so much over something so minor, the department abruptly notified Acosta that he was being returned to full duty.
Sergeant Acosta has his gun and shield back. He was a step closer to emerging from his gulag.
But that decision, after two long years, seemed just as opaque and capricious as the decision to charge him in the first place. Richard Murray, Acosta's lawyer, declined to comment. The charges against Acosta are still pending. The case is back on the calendar on November 5. It may stretch into 2011.