Suffolk Police Officer David Mascarella, who severely injured 2-year-old in off-duty crash, back on the job

Suffolk Police Officer David Mascarella told internal affairs he had two or three 12-ounce vodka sodas during an off-day golf and lunch outing on August 10, 2020.

Evidence showed his 4,500-pound Ram pickup going as fast as 61 mph — in a 40 mph zone — seconds before it slammed into a subcompact car waiting to turn off a busy commercial stretch in St. James that afternoon, fracturing the skull of a 2-year-old-boy strapped inside and leaving him with lasting neurological injuries.

Not only was Mascarella texting in the minutes prior, his phone records showed, but he refused two breath tests that officers didn't even attempt until more than two hours later. The police department tried to fire him for what they called "egregious" misconduct, arguing he showed "no remorse," beginning from the first moments after the crash, when he called his union delegate instead of 911.

Today, however, Mascarella remains on the job, after an outside arbitrator found "insufficient evidence to justify termination," according to documents newly obtained by Newsday.

While calling Mascarella’s offenses "far greater than a mere car accident," arbitrator Martin Scheinman in October 2023 deemed the more-than-18-month unpaid suspension he served awaiting his hearing a just penalty. Mascarella, 54, once an officer in the Fourth Precinct, where the wreck happened, now has a desk job inside the First Precinct in West Babylon as he approaches 20 years of active service and pension eligibility.

He will earn approximately $175,000 in 2024, according to county payroll records reviewed by Newsday.

The decision, issued about 13 months after Newsday published an investigation into the case, illustrates the challenges of firing officers for documented misconduct in Suffolk, where ultimate punishment isn't decided by the police commissioner, but by a civilian arbitrator as spelled out in the county's contracts with powerful law enforcement unions. In Nassau County and New York City, the results of administrative hearings or trials are taken to the commissioner, who still has the final say, both departments' regulations show.

In Mascarella's case, the same shortcomings of the police investigation highlighted by Newsday two years ago, preventing a criminal prosecution, also factored in Scheinman rejecting several of the county's administrative charges, said law enforcement experts. Suffolk argued Mascarella covered up his blood alcohol content by belatedly claiming a back injury and leaving the crash scene when he first learned his sobriety would be tested.

But Scheinman had limited evidence to consider. Mascarella remained near the crash scene for more than 90 minutes before the test was requested; an officer tasked with watching Mascarella didn't tell his superiors that an off-duty union delegate had driven him away after the test was first mentioned; no one on scene reported seeing signs he was intoxicated; and detectives didn't seek a warrant to test his blood after the breath-test refusals.

Notably, the internal affairs conclusions also never mention a moment caught on surveillance footage after the crash, where an object — one Mascarella later appears to retrieve — is tossed out a window of the Ram as it stops. Tests confirmed that four 16.9-ounce plastic water bottles with vodka or bourbon were in the truck's center console, capped but unsealed. Police never established that Mascarella had consumed anything from them that day.

"The negligent and deficient investigation by the police department following the accident not only benefited the officer with respect to potential criminal and traffic charges, but also with respect to any personnel action in the county's attempt to terminate him," John Bandler, a former state trooper and Manhattan prosecutor with experience in drunken driving cases, told Newsday.

The injured boy, Riordan Cavooris, now 6, was in a medically induced coma as a pediatric neurosurgeon repaired the jigsaw puzzle-like skull fractures. Three weeks in the hospital and four more in a rehabilitation center were just the first steps in an ongoing recovery that forced him to relearn almost all basic functions and for years made him unable to run and jump. Today, he wears a leg brace and needs specialized care but has nearly caught up with classmates in everything from speech to climbing playground equipment. 

"We’re disappointed anyone could look at everything that was done wrong and decide it’s just not that bad," Kevin Cavooris, Riordan's father, said of the arbitration decision that returned Mascarella to work.

A longtime Smithtown resident now living in Massachusetts, Cavooris said the outcome in Mascarella's case, including the stymied evidence gathering that prevented a criminal prosecution, strikes him as "a textbook case of corruption: those in power using their power to avoid consequences."

In a statement to Newsday, William Petrillo, Mascarella's Garden City-based lawyer, said: "This was a bad accident with innocent victims. Officer Mascarella prays for the family regularly."

Petrillo noted how long Mascarella remained at the crash scene, saying he left only when his "pre-existing back injury began to spasm." He also noted that no civilian witnesses, police officers or hospital staff interviewed in the investigation reported signs of impairment from Mascarella.

"Dave has an exemplary record for 20 years and remains an asset to the SCPD," Petrillo said.

Rare termination attempt

Suffolk police in October provided Newsday the Internal Affairs Bureau’s more-than-300-page case file on the crash, a response to a state Freedom of Information Law request made in early 2022. The department withheld it for nearly a year after Scheinman’s decision, providing the file only after Newsday noticed Mascarella’s work status while reviewing a 2023 county payroll.

The file is a rare look inside Long Island’s historically secret systems for policing the police. Newsday's 2022 series, "Inside Internal Affairs," which featured Mascarella's case, found Suffolk and Nassau police regularly imposed little or no discipline on officers for misconduct that led to serious injury or deaths. 

Officers besides Mascarella were also charged with breaking department rules.

Internal investigators found Suffolk Police Officer Joseph Russo, the off-duty union delegate who whisked Mascarella from the scene in his own car, did so "for the sole purpose of impeding the investigation."

The investigation found that fellow Suffolk Police Officer Kevin Wustenhoff, told to give Mascarella the first breath test at the hospital, instead blew into the device himself to record a zero blood alcohol content and photographed the phony result before deleting the evidence.

Without going to arbitration, Russo admitted "general misconduct" and forfeited three days of leave accruals, documents show. He retired in January 2023 and was paid $206,024, most of it in unused leave time, according to payroll records.

Wustenhoff, accused of lying and evidence tampering, served a six-week unpaid suspension before returning to work without the ability to earn overtime, his settlement shows. He agreed in April 2022 to resign only upon reaching 20 years and 1 month of active service time with Suffolk police, a date scheduled for early 2025.

The internal affairs report stated that a fellow officer blew into a breath test "to fabricate a PBT test result for Mascarella's benefit."

He was paid $214,852 in 2023, the payroll shows.

Rodney K. Harrison, who was Suffolk police commissioner when the department negotiated the Russo and Wustenhoff settlements, and sought to fire Mascarella, previously had high-level posts within NYPD. The commissioner there has "sole discretion" to determine final discipline, similar to how Nassau police handle such cases.

"I wasn’t used to it this way," Harrison told Newsday last month.

Reached by phone last week, Scheinman, an attorney and longtime arbitrator based in Port Washington, declined to comment on his decision. 

Rachel Moran, a professor at University of St. Thomas School of Law in Minneapolis who studies the police disciplinary process, said neutral arbitrators are sometimes made "scapegoats," in such cases, but are often just judging proposed penalties against local precedent. So if a department has traditionally been light on cops, "the arbitrator uses that to reduce the penalty." 

Still, that some local police unions have made civil mediators the final say in officer discipline is a sign they, generally, are "far too powerful," she said.

"Politicians are beholden to them," Moran continued of the law enforcement unions. "That's one of the reasons they're allowed to have such favorable processes for discipline."

Lou Civello, president of the Suffolk Police Benevolent Association, which opposed Mascarella's termination, said he couldn't comment on specific cases, but in a statement Wednesday  emphasized that the disciplinary system, like criminal courts, entitles officers "to due process and the presumption of innocence until proven guilty."

"These principles ensure that decisions are based on a fair and thorough evaluation of evidence," Civello said.

Harrison, who resigned in December 2023, declined to speak about Scheinman's decision. Suffolk police declined requests to interview Acting Commissioner Robert Waring, but confirmed Mascarella currently "does not work in the field."

Mindset 'on display immediately'

Speaking to internal affairs investigators, Mascarella said he had one vodka and soda while golfing and one or two more at lunch at Rockwell's Bar and Grill in Smithtown, about 2 miles down the road. He estimated his last drink was about an hour before the crash on Middle Country Road, according to then-IAB Lt. Patrick Kelly's January 2022 case report.

The four unsealed plastic water bottles that had been refilled with alcohol were in the truck, Mascarella said, "because sometimes after squad inspection at the precinct, officers would smoke cigars and have a drink," Kelly wrote. Phone records obtained by detectives showed Mascarella's phone sent five text messages just before the crash, the last about 90 seconds before impact.

Crash data from the Ram had it traveling 61 mph five seconds before, police said, and that even when the brakes were applied two seconds before, the truck was still moving 50 mph right before impact.

Without access to all investigative documents, Newsday in 2022 used surveillance camera footage and roadway measurements to estimate Mascarella's pickup was traveling at least 50 mph when it struck the Mitsubishi stopped to make a left turn. The impact crushed the back of the vehicle and spun it, 180 degrees, into oncoming traffic. 

The Internal Affairs report concluded that "Mascarella's mindset was on display" after the crash when he "makes no attempts to dial 911. Instead, Mascarella makes 2 attempts to contact his PBA delegate."

"Mascarella's mindset is on display immediately following the accident," Kelly wrote in the report's conclusions. He "makes no attempt to dial 911. Instead, Mascarella makes 2 attempts to contact his PBA delegate, Joseph Russo," Kelly wrote.

He told Kelly in his IAB interview that he was "distraught and froze" after the crash and called Russo because he suspected injuries in the other vehicle. Kelly found the explanation "flawed," because if that was his suspicion, "his first response should have been to call 911."

Responding officers from Mascarella's precinct, including Sgt. Lawrence McQuade, told IAB that Mascarella didn't show outward signs of intoxication — and that he did not initially look or claim to be injured.

About 90 minutes after the wreck, as Mascarella, Russo and another officer remained parked outside a car dealership about 400 feet down the road, McQuade said he decided to request a preliminary breath test to determine blood alcohol content. The sergeant called Russo to tell him. Within the next 10 minutes, records show a "flurry" of calls between Russo and another union official. Russo then retrieved his personal car to drive Mascarella to a hospital.

Russo told IAB that Mascarella reported back spasms, but they didn't request an ambulance nor ask the on-duty officer assigned to watch Mascarella to take him to the hospital in a marked car. No one let scene supervisors or detectives know they were leaving, police found.

"It is very suspicious that only after McQuade called Russo did Mascarella's injury become so severe that he needed to be transported immediately for medical attention," Kelly wrote.

The collision happened about 5 miles from Stony Brook University Hospital, where Riordan Cavooris went, and St. Catherine of Siena Hospital in Smithtown. Mather and St. Charles hospitals in Port Jefferson were 9 miles away. Yet Russo drove Mascarella to South Shore University Hospital in Bay Shore, more than 16 miles away.

Kelly wrote that he believes South Shore University "was chosen due to its distance, which would allow Mascarella more time to delay the PBT," or preliminary breath test. 

Wustenhoff, the officer asked to give Mascarella the test, called Russo on his way to the hospital, records show. He arrived there only 10 minutes behind his fellow Fourth Precinct colleagues. By this point, nearly three hours had passed since the crash.

Surveillance cameras from a hospital hallway recorded Mascarella appearing to practice the "one-legged stand" and "walk and turn" sobriety tests near a vending machine "without any sign of injury," Kelly wrote. Wustenhoff is then seen with Mascarella and Russo, a few minutes before calling McQuade.

He told his boss Mascarella "blew triple zeros across the board," Kelly wrote, meaning his breath showed no blood alcohol content. Ten minutes later, Wustenhoff called back and said he "misspoke," according to McQuade.

Mascarella had actually refused the request. Kelly concluded that Wustenhoff, who had made many DUI arrests in his previous assignment, blew into the device himself to get a zero result and then photographed that fabricated test — photos that were later deleted, the IAB report shows.

After learning that highway unit detectives would themselves try to give Mascarella a breath test, Wustenhoff "called his supervisor and attempted to retract what he said earlier ... then deleted the photographs that he took in an effort to conceal his misconduct," Kelly concluded.

Wustenhoff's attorney, Anthony LaPinta, of Hauppauge, said the officer "has taken responsibility for his actions and has moved forward to continue to serve the residents of Suffolk County."

When events are not investigated promptly and diligently ... then facts are not available for either criminal or administrative proceedings.

—John Bandler, former state trooper and prosecutor

When Mascarella refused the second breath test, requested by a detective following Wustenhoff's retraction, he was issued a summons. By then, it was 8:13 p.m., 3½ hours after the crash.

"When events are not investigated promptly and diligently, when evidence goes undiscovered or undocumented, then facts are not available for either criminal or administrative proceedings," wrote Bandler, who viewed Scheinman's decision at Newsday's request after having reviewed the crash's original police reports and video in 2022.

'No basis for discipline'

Over four hearings held before his decision, Scheinman heard arguments from Suffolk County, which sought Mascarella's termination, and the union, which sought his reinstatement and full back pay.

County lawyers contended "evidence of Mascarella's misconduct is overwhelming and not in dispute." He "recklessly caus[ed]" the accident and whether or not he had been intoxicated, his refusals to take breath tests "deprived the department of its ability to assure the public he was not abusing alcohol," the lawyers said.

"The county alleges Mascarella's efforts to cover up his blood alcohol content were willful, dishonest and disqualifying" for a police officer, Scheinman wrote in his summary of Suffolk's case.

The PBA emphasized the lack of evidence that Mascarella had been intoxicated, noting his time staying on scene. Union lawyers argued he wasn't using his cellphone at the precise time of the crash. They compared the capped water bottles with alcohol to a recorked "bottle of wine from a restaurant."  The officer, with no prior discipline over 19 years on the force, "did nothing to impede investigation of the accident," the lawyers said.

"It asserts he is guilty of nothing more than getting into a car accident and later refusing a PBT," Scheinman wrote of the PBA's position.

Ultimately, the arbitrator upheld charges that Mascarella caused the accident and refused to take the breath tests. The latter, he wrote, was insubordinate and "serious misconduct."

Without imposing any penalty, "the department will be perceived as turning a blind eye to potential alcohol abuse amongst its workforce, while holding the public to a different standard," Scheinman wrote.

But he found Mascarella not guilty of charges he had open alcohol containers in his truck, noting the plastic bottles "were all found with their openings capped" and that "no evidence was presented these bottles were open at any time" on the date of the crash. State law only allows open but resealed wine to be in a vehicle's trunk, or a spot a driver generally cannot reach. The county had argued "civilians carrying such bottles in their cars would likely be ticketed by police officers," Scheinman wrote.

He also cited "insufficient evidence" that Mascarella intended to impede the police probe by claiming a back injury only after learning he'd be subjected to a breath test or by traveling to a farther hospital.

"If any appearance of preferential treatment was created by the lack of testing at the scene," Scheinman wrote, "I find it was not caused by Mascarella."

Scheinman determined the appropriate penalty for Mascarella to be the nearly 20 months he had been suspended as of October 2023, with no back pay owed.

The arbitrator decided "the appropriate penalty for Mascarella's proven offenses is a time served suspension, without pay," calling the crash "an isolated incident in his life."

"There is ample record evidence to warrant a serious suspension of Mascarella, [but] there is insufficient evidence to justify termination," Scheinman wrote. He said the officer had a "long record of prior, discipline-free service" and the lack of evidence that the accident and aftermath "was [anything] other than an isolated incident in his life."

Including overtime, Mascarella made $250,000 in 2021, the last full year before his suspension. 

Separately, the same month as the arbitration decision, Mascarella agreed to a confidential settlement in a personal injury case the Cavooris family filed against him, as an individual, in state court. The officer's personal insurance company covered the bulk of the award, which the family declined to disclose.

The family did not file a federal civil rights lawsuit against Suffolk County and the police department over the official actions that allowed Mascarella to avoid alcohol testing.

But after everything, the arbitration decision, Cavooris said, "is another slap in the face."

"Disappointing that our efforts for some basic accountability have failed," he continued. "But past the disappointment, we can't allow our children to grow up bitter and vengeful, so we choose community and optimism."

With David M. Schwartz and Anastasia Valeeva

By Paul LaRocco

paul.larocco@newsday.com@paullarocco

Paul LaRocco is a reporter on the investigations desk. Since starting at Newsday in late 2010, he has also covered Nassau and Suffolk county politics and government and the Town of Oyster Bay.