October 5, 2023

Via E-Mail Only

Richard Zuckerman, Esq.
Adam S. Ross, Esq.
Lamb & Barnosky, L.L.P.
534 Broadhollow Road, Suite 210
P.O. Box 9034
Melville, NY 11747

Christopher S. Rothemich, Esq.

David & Ferber, L.L.P.
1345 Motor Parkway
Islandia, NY 11749

Re: • County of Suffolk

and
Suffolk County Police Benevolent Association
(P.O. David Mascarena/ Shield No. 5765)

Dear Counsel:

Enclosed please find my Opinion and Award in the above referenced matter. I

have also enclosed my bill for services rendered.

Thank you.

!<AFS/sk
County of [Link] [Link]

322 Main Street ♦ Port Washington, NY 11050 ♦ 516.944.1700 ♦ fax: 516.944.1771 ♦ [Link]

- - ···-------------- - - - - - - - - - - - ·--------·--- ·-------------------------

------------------------ - --------- X
In the Matter of the Arbitration
X
between Re: P.O. David Mascarella
X Shield No. 5765
COUNTY OF SUFFOLK
X
"County"
X
-and-
X
SUFFOLK COUNTY POLICE BENEVOLENT
ASSOCIATION X

"Association" X

---------------------------------- X

APPEARANCES

For the County

LAMB & BARNOSKY, L.L.P.
Richard K. Zuckerman, Esq., Of Counsel
Adam S. Ross, Esq., Of Counsel

For the Association

DAVIS & FERBER, L.L.P.
Christopher S. Rothemich, Esq., Of Counsel

Before: Martin F. Scheinman, Esq., Arbitrator

 BACKGROUND

The County proffered charges and specifications against P . O.

David Mascarella, Shield No. 5765, on February 3, 2022. Amended

charges were served on October 20, 2022. Mascarella elected to

have the charges determined in binding arbitration, pursuant to

provisions of the Agreement between the County and the Association.

He was suspended from his position without pay on February 3, 2022,

and remains suspended to date.

Hearings on the charges were held via Zoom on May 26, 2022,

November 17, 2022, January 5, 2023, and February 27, 2023. [On

February 26, 2023, the parties submitted a partial stipulation of

facts (Joint Exhibit No. 7) .] At the hearings, both parties were

afforded full opportunity to introduce evidence and argument in

support of their respective positions. They did so. A stenographic

record of the hearings was taken.

During the January 5, 2023, hearing, the Association moved to

dismiss the amended charges as time barred under the eighteen (18)

months statute of limitations set forth in the parties' Agreement.

On February 24, 2023, having considered both parties' submissions

on the motion, I issued a written ruling dismissing Charge I,

Specifications #2, #7, #9 and #11 of the amended charges, and

denying the motion as to the remainder. Since the next hearing

was scheduled for February 27, 2023, I advised the parties my

2
rationale for dismissing those specifications would be explained

in detail in this final Opinion and Award.

At the end of the hearings, the parties were granted leave to

submit post hearing briefs. Thereafter, the County and Association

submitted post hearing briefs. I then declared the record closed.

DISCUSSION AND FINDINGS

The Issues:

The issues I must decide are as follows:

1. Is there just cause supporting one or more of the County's

amended charges and specifications dated October 20, 2022,
against P.O. David Mascarella?

2. If so, what should be the appropriate penalty?

The Charges and Specifications

The amended charges and specifications against Mascarella

read as follows:

STATE OF NEW YORK: COUNTY OF SUFFOLK

SUFFOLK COUNTY POLICE DEPARTMENT

IN THE MATTER OF DISCIPLINARY CHARGES NOTICE OF AMENDED

PREFERRED BY THE CHARGES,
SUFFOLK COUNTY POLICE DEPARTMENT SPECIFICATIONS .MTD
HEARING PROCEDURE
-AGAINST-

POLICE OFFICER DAVID MASCARELLA

SHIELD NUMBER 5765
FOURTH PRECINCT PATROL SECTION

TO: DAVID MASCARELLA, POLICE OFFICER #5765

- - - · -·· · · · - - - · · - - - · - - - -
In accordance with the provisions of Section 7 5 of the Civil
Service Law of the State of New York, notice is hereby provided
that the below-indicated charges and specifications have been
preferred against you:

CHARGE I - MISCONDUCT

SPECIFICATION #1: On or about August 10,2020, without having a

legitimate reason for doing so, Officer Mascarella operated a motor
vehicle in a manner that caused it to collide with another vehicle
and/or to rotate the other vehicle approximately 180 degrees.

SPECIFICATION #2: On or about August 10, 2020, following a motor

vehicle accident in which he was operating one of the involved
vehicles, P.O. Mascarella failed and/or refused to call 911 and/or
called his union delegate prior to calling 911.

SPECIFICATION #3: On or about August 10,2020,following a motor

vehicle accident in which he was driving one of the vehicles,
Officer Mascarella impeded an investigation and/or attempted to
impede an investigation into his blood alcohol level by, prior to
the administration of the PBT and/or other alcohol test, leaving
the scene of the accident without notifying the appropriate
authority or authorities and/or traveling to a hospital even though
he was not injµred and/or traveling to a hospital even though he
was not injured severely enough to require medical treatment at a
hospital.

SPECIFICATION #4: On August 10, 2020, Officer Mascarella, while

off-duty, impeded an investigation conducted by one or more members
of the Department concerning a motor vehicle accident in which
Officer Mascarella was the operator of an involved motor vehicle,
by traveling from the accident scene located at or near Route 25
and Cambon Place in Nesconset to Southside Hospital {now known as
South Shore University Hospital) in Bay Shore, even though there
was one or more closer hospitals to which he could have gone, so
as to impede and/or attempt to impede an investigation regarding
Officer Mascarella's blood alcohol content.

SPECIFICATION #5: On or about 1930 hours of August 10, 2020, at

Southside Hospital(now known as South Shore University Hospital)
located at or around 301 East Main Street in Bay Shore, Officer
Mascarella, while off-duty, after operating a motor vehicle which
was involved in an accident, refused to submit to a pre-screen
breath test requested by Officer Kevin Wustenhoff even though he
knew or should have known that the request was part of a legitimate
investigation into his blood alcohol level.

4
SPECIFICATION #6: On or about 2013 hours of August 10, 2020, at
Southside Hospital (now known as South Shore University Hospital)
located at or around 301 East Main Street in Bay Shore, Officer
Mascarella, while off-duty, refused to submit to a pre-screen
breath test ordered and/or requested by Deputy Inspector Mark
Fisher and/or Lieutenant Peter Reilly.

SPECIFICATION #7: By engaging in the conduct set forth in Charge

I, Specification #1 and/or Specification #2 and/or Specification
#3 and/or Specification #4 and/or Specification #5 and/or
Specification #6, Officer Mascarella evaded and/or attempted to
evade the requirements of New York Vehicle and Traffic Law Section
1194 (1) (b) .

SPECIFICATION #8: On or about August 10, 2020, Officer Mascarella,

while off-duty, operated a motor vehicle on or near Route 25 in
Nesconset, operated a motor vehicle while using a mobile telephone
to engage in a call and/ or while using a portable electronic
device.

SPECIFICATION #9: By engaging in the conduct set forth in Charge

I, Specification #8, Officer Mascarella violated New York Vehicle
and Traffic Law Section 1225-C and/or New York Vehicle and Traffic
Law Section 1225-D.

SPECIFICATION #10: On or about 1645 hours of August 10, 2020,

Officer Mascarella, while off-duty, did operate a motor vehicle on
or near Route 25 in Nesconset while possessing one or more open
containers which contained alcohol.

SPECIFICATION #11: By engaging in the conduct set forth in Charge

1, Specification #10, Officer Mascarella violated New York Vehicle
and Traffic Law Section 1227.

SPECIFICATION #12: By engaging in the conduct articulated in Charge

I, Specifications #1 and/or #2 and/or #3 and/or #4 and/or #5 and/or
#6 and/or #7 and/or #8 and/or #9 and/or #10 and/or #11, Officer
Mascarella violated:

a. Chapter 5, Section 1, Subsection VI.B.1.b ("Conduct

Unbecoming") of the Rules and Procedures of the Suffolk County
Police Department ("the Rules"); and/or

b. Chapter 5, Section 1, Subsection VI. B .1. d ( "Disobedience of

orders") of the Rules; and/or

5
 c. Chapter 5, Section 1, Subsection VI. B. 1. 1 ("Refusing to
submit to a chemical test") of the Rules; and/or

d. Chapter 5, Section 1, Subsection VI.B.l.o ("Immoral

conduct") of the Rules; and/or

e. Chapter 5, Section 1, Subsection VI.B.1.p ("Conduct

injurious to the [Link] welfare") of the [Link].

Each subsection will be deemed a separate specification.

CHARGE II: MISCONDUCT

SPECIFICATION #1: On or about August 10, 2020, Officer Mascarella

brought the Suffolk County Police Department into disrepute ·by
failing to check on the health and/or safety of one or people who
Officer Mascarella knew and/ or should have known were injured
and/ or might have been injured as a resul. t of a motor vehicle
accident in which he was involved.

SPECIFICATION #2: On or about August 10, 2020, Officer Mascarella

brought the Suffolk County Police Department into disrepute by
failing to render aid at the scene of a motor vehicle accident in
which he was involved.

SPECIFICATION #3: By engaging in the conduct set forth in Charge

I, Specification #1 and/or Specification #2 and/or Specification
#3 and/or Specification #4 and/or Specification #5 and/or
Specification #6 and/or Specification #7 and/or Specification #8
and/or Specification #9 and/or Specification #10 and/or
Specification #11 and/or Specification #12 and/or Charge II,
Specification #1 and/or Specification #2, Officer Mascarella
brought the Suffolk County Police Department into disrepute by
creating . and/or helping to create the appearance that the
Department and/or the members of the Department apply the law
differentl.y to the members of the Department than to others.

SPECIFICATION #4: By engaging in the conduct set forth in Charge

I, Specification #1 and/or Specification #2 and/or Specification
#3 and/or Specification #4 and/or Specification #5 and/or
Specification #6 and/or Specification #7 and/or Specification #8
and/or Specification #9 and/or Specification #10 and/or
Specification #11 and/or Specification #12 and/or Charge II,
Specification #1 and/or Specification #2, Officer Mascarella
brought the Suffolk County Police Department into disrepute by
creating and/or helping to create the appearance that the

6
Department and/or the members of the Department are not required
to conform to the requirements of law.

SPECIFICATION #5: By engaging in the conduct set forth in Charge

I, Specification #1 and/or Specification #2 and/or Specification
#3 and/or Specification #4 and/or Specification #5 and/or
Specification #6 and/or Specification #7 and/or Specification #8
and/or Specification #9 and/or Specification #10 and/or
Specification #11 and/or Specification #12 and/or Charge II,
Specification #1 and/or Specification #2, Officer Mascarella
brought the Suffolk County Police Department into disrepute by
creating and/or helping to create the appearance that the
Department and/or the members of the Department are dishonest.

SPECIFICATION #6: By engaging in the conduct set forth in Charge

I, Specification #1 and/or Specification #2 and/or Specification
#3 and/or Specification #4 and/or Specification #5 and/or
Specification #6 and/or Specification #7 and/or Specification #8
and/or Specification #9 and/or Specification #10 and/or
Specification #11 and/or Specification #12 and/or Charge II,
Specification #1 and/or Specification #2, Officer Mascarella
brought the Suffolk County Police Department into disrepute by
causing and/or contributing to causing and/or helping to cause
negative news media coverage about the Department.

* * * * * * *
Dated: October 20, 2022
Yaphank, New York
/s/ Rodney K. Harrison
Police Commissioner

* * * * * * *
Positions of the Parties

The County argues Mascarella committed serious misconduct and

should be discharged. It contends on August 10, 2020, at 4:45 p.m.,

while off duty and after consuming alcohol: Mascarella drove a

truck while text messaging during which there were open, plastic

bottles containing alcohol located in the console of his truck and

collided with the rear of another vehicle severely injuring a young

7
child in the other vehicle. It alleges Mascarella made no attempt

to render aid or call for help, but, instead, called his union

delegate and stayed at the scene without checking on the occupants

of the other vehicle.

The County asserts after the union delegate learned

Mascarella was going to be administered a prescreen breath test

("PBT") to measure his blood alcohol level, Mascarella claimed to

have back pain and left in the union representative's car, without

alerting officers at the scene, for a hospital farther away than

other hospitals. It alleges he did so in an effort to impede an

investigation of his blood alcohol content and to give himself

time to sober up.

The County maintains at the hospital Mascarella practiced

field sobriety tests, but after police arrived, refused their

requests to take the PBT. It asserts Mascarella's refusal to be

tested prevented the Department from obtaining evidence of his

blood alcohol content and brought the County's Police Department

("Department") into disrepute.

The County argues sufficient nexus exists to discipline

Mascarella for his off duty conduct because driving is a core

responsibility of police officers. It maintains Mascarella's

unannounced departure from the scene impeded the Department's

investigation of the accident. The County alleges his refusal to

be tested at the hospital was insubordinate and conduct unbecoming

8
a police officer. It insists Mascarella' s refusal to be tested

undermined the Department's ability to ensure all police officers

are following the law, including those barring driving while under

the influence of alcohol.

Also, the County contends Mascarella' s refusal diminishes

public confidence in the fair administration of justice in Suffolk

County, which depends upon police officers following all laws they

enforce against the public at large. It alleges his use of alcohol

before driving his truck undermines the Department's public safety

mission as police officers may carry deadly weapons while off duty.

The Department must be able to assure its officers are not abusing

alcohol.

The County contends evidence of Mascarella's misconduct is

overwhelming and not in dispute. It urges cell phone records

establish he was texting while driving ninety one ( 91) seconds

before the accident. 1 The County alleges Mascarella concedes he

operated his truck in a manner that caused it to collide with the

rear of the civ1lian' s vehicle and stipulated to this fact. It

suggests he was not injured from the accident or was not injured

severely enough to warrant medical treatment at a hospital.

1 The County also contends a statement from a civilian witness,

, suggests Mascarella was texting while driving, as
the witness was driving directly behind Mascarella's truck and saw
the truck go fast, then slow down, then go fast again after the
witness honked his horn.
9
 The County insists Mascarella's practicing of field sobriety

exercises at the hospital is evidence he was concerned he was

intoxicated. It alleges Mascarella's refusal to be tested at the

hospital despite two (2) orders or requests from police officers

for a PBT, is conceded and warrants discipline.

The County argues had Mascarella submitted to the PBT, the

results might have shown he was illegally operating his truck while

under the influence of alcohol. It contends his refusal justifies

an inference had Mascarella been tested, the results would have

been positive for alcohol in his bloodstream. Regardless of the

results, the County insists Mascarella' s refusal deprived the

Department of its ability to assure the public he was not abusing

alcohol.

The County claims Mascarella had four (4) open Poland Spring

bottles in his truck containing alcohol at the time of the

accident. It contends these bottles were recovered from the center

console and their contents were tested by the County's crime lab,

which confirmed the presence of alcohol. Although caps were on the

bottles at the time photos were taken of them after the accident,

the County insists they were open because alcohol cannot be poured

into Poland Spring water bottles without unsealing the bottles,

removing the original contents (water) , and replacing it with

alcohol. It maintains civilians carrying such bottles in their

cars would likely be ticketed by police officers even if the

10
bottles were stored there from an earlier time because driving

with open containers of alcohol is prohibited by law. Implicit in

the County's argument is its assertion unsealed bottles should be

considered open for these purposes, even though covered with a

twist on cap which can easily be opened without having to cut or

break a seal. It maintains a sufficient nexus exists between

Mascarella's carrying these bottles in his truck and his employment

as a police officer, because Mascarella doing so flouts the very

laws he is sworn to enforce and undermines the Department's

credibility.

The County argues Mascarella's proven actions violated

Department Rules prohibiting conduct unbecoming an officer,

disobedience of orders, immoral conduct and conduct injurious to

the public welfare. It insists Mascarella's action brought the

_Department into disrepute.

The County points to Newsday articles published after the accident

as creating a public impression the law is applied more favorably

to police officers than to non police officers. In its view,

Mascarella's proven actions erode the public's trust and

confidence in the Department's ability to enforce the law in a

fair manner.

The County insists an adverse inference should be drawn from

Mascarella' s failure to testify in his own defense during the

11
hearing. It urges I should infer he would not have been able to

provide any mitigating evidence had he testified.

The County argues termination is the proper penalty for

Mascarella's misconduct. It contends his alleged attempt to avoid

being tested was serious misconduct, and compounded his earlier

wrongful actions recklessly causing a car accident that severely

injured a two (2} year old boy. The County alleges Mascarella's

efforts to cover up his blood alcohol content were willful,

dishonest and disqualifying for continued employment as a police

officer. It maintains his use of a cell phone to text while driving

in the minutes leading up to the accident disregarded public safety

and provides further cause for his discharge. The County urges

Mascarella' s driving with open bottles with alcohol calls into

question his fitness to perform law enforcement duties. It insists

a penalty less than discharge is not appropriate because Mascarella

has displayed no remorse for his actions.

In short, the County insists the Association's grievance, on

behalf of Mascarella, lacks merit. It asks I deny the grievance

and uphold the termination of his employment as a police officer.

The Association, on the other hand, argues there is no just

cause for Mascarella's discipline. It acknowledges Mascarella got

into an off duty accident that caused serious injury, but contends

he was not intoxicated and remained at the scene for one (1) hour

and forty eight (48) minutes before leaving for the hospital to

12
attend to back pain. The Association maintains Mascarella had a

right under the Fourth Amendment to the United States Constitution

to decline to be tested for blood alcohol content.

The Association points to an investigative report from the

Internal Affairs Bureau ("IAB") as confirming no signs of

intoxication or impairment were observed by police officers who

interacted with Mascarella at the scene, nor by police officers

and medical staff who saw him at the hospital. The Association

maintains he was not using his phone at the time of the accident

and disputes bottles containing alcohol in his truck were open. It

argues carrying capped bottles of alcohol are the equivalent of

driving home with a bottle of wine from a restaurant with the

bottle recorked. In its view, the County has shown only that

Mascarella was in a motor vehicle accident while off duty,

providing no nexus to his job and no basis for discipline.

The Association argues Mascarella did nothing to impede

investigation of the accident. It claims no officer at the scene

attempted to administer any field sobriety tests or PBT to him

during the one (1) hour and forty eight (48) minutes Mascarella

remained there, nor was he told to stay. The Association disputes

the County's claim Mascarella chose a hospital farther away than

others to avoid being tested. It points to the absence of any signs

of intoxication as undermining the notion he wanted to avoid being

13
tested. The Association insists Mascarella left for the hospital

because of back spasms.

The Association argues the specifications alleging Mascarella

refused two (2) requests to undergo a PBT are duplicative and lack

merit because the Department, in the Association's view, has no

authority to ask an off duty officer to submit to a PBT. It alleges

Mascarella is not guilty of insubordination because he did not

take PBT at the hospital because the officers asked him to take

the test but did not order him to do so, and because, in the

Association's view, he was within his constitutional rights to

decline having his blood alcohol content tested. The Association

claims no Department rule requires police officers to submit to a

PBT, whether on or off duty. It insists the specification alleging

use of a portable electronic device while driving was not proved

because hands free use of such devices is legal while driving and

there is no evidence or claim Mascarella used his hands to hold

the phone when messages were exchanged. The Association insists

Mascarella' s use of his phone to exchange text messages ended

approximately ninety (90) seconds before the collision, did not

cause the accident, and is not conduct unbecoming a police officer,

immoral conduct, or conduct injurious to the public welfare.

The Association argues Mascarella brought no disrepute to the

Department by his proven actions. It contends while the Department

may expect its police officers to render aid at an accident scene,

14
when possible, he was under no duty to do so while off duty and

notes other persons at the scene called 911 and uniformed police

responded. In these claimed circumstances, the Association

maintains Mascarella' s decision to not check on or assis t the

occupants of the other car violated no duty owed to his employer

and provides no cause for discipline.

The Association contends Mascarella received no special

treatment from officers at the scene during the entire time he

stayed there before leaving for the hospital. It disputes the

notion his actions created an appearance of more favorable

treatment because he is a police officer or an appearance police

officers need not follow the laws they enforce against civilians.

In the Association's view, negative news media articles about the

accident, while unflattering to the Department, are flawed because

the authors failed to take account of the absence of any evidence

Mascarella was driving under the influence of alcohol at the time

of the accident.

The Association emphasizes Mascarella has served as a police

officer for nineteen {19) years with no prior discipline. It

insists the County has not shown just cause to discipline

Mascarella.

In the alternative, if just cause is found to exist for any

of the charges and specifications, the Association argues

termination is an excessive penalty. It emphasizes Mascarella has

15
been ·s uspended since February 3, 2022, but committed no criminal

act or took any action violating the Rules and Procedures of the

Department.

In short, the Association insists its grievance, on behalf of

Mascarella, is meritorious. It asks for an award finding no just

cause for his discipline and returning him to work with full back

pay and benefits. In the alternative, the Association urges if

just cause is found under any of the specifications, the penalty

should be a suspension of short duration, followed by

reinstatement.

Opinion

Certain preliminary comments are appropriate.

The County may rightfully expect its police officers refrain from

conduct which undermines the Department's law enforcement mission,

damages the welfare and safety of the public, or brings disrepute

to the Department. These standards are essential to the County's

ability to deliver police protection to members of the public and

to maintain the faith and confidence of those they are sworn to

protect and serve. They apply while the police officer is on duty

and off duty, provided a nexus is shown between the officer's off

duty conduct and the responsibilities of the officer's job. When

a police officer fails to meet these standards, he or she becomes

subject to discipline. The amount of discipline must be

16
proportionate to the proven offense and consistent with principles

of progressive discipline.

However, even in cases alleging violation of these tenets,

the employee is entitled to the presumption of innocence. He or

she need not prove innocence. Instead, it is the County that must

shoulder the burden of establishing the employee is guilty of the

misconduct alleged, and the proposed measure of discipline is

appropriate.

With these principles in mind, I turn to the facts presented.

Before proceeding to the merits of the .case, I shall set forth

my rationale for dismissing Charge I, Specifications #2, #7, #9

and #11 of the amended charges. In my February 24, 2023, decision,

I dismissed these specifications as untimely under the eighteen

( 18) month statute of limitations set forth in the parties'

Agreement because they were served more than eighteen (18) months

after the accident date and alleged new claims not made in the

original charges.

In particular, Charge I, Specification #2 of the amended

charges alleges on August 10, 2020, Mascarella failed to call 911

following the accident. Since this claim was not alleged in the

original charges and was proffered more than eighteen (18) months

after the accident date, I conclude it is untimely.

Charge I, Specification #7 of the amended charges, alleges on

August 10, 2020, . Mascarella evaded or attempted to evade the

17
requirements of New York Vehicle and Traffic Law Section

1194(1) (b). That statute requires the operator of a vehicle

involved in an accident to submit to a breath test requested by a

police officer and authorizes the police officer to then conduct

a chemical test in the event the breath test shows the

operator had consumed alcohol. 2 While the original charges alleged

Mascarella impeded an investigation by leaving the scene and going

to Southside Hospital, and alleged he refused to submit to the PBT

requested by police officers at the Hospital, they do not allege

Mascarella violated the cited statute and do not put . Mascarella on

notice he is being charged with misconduct for violating a statute.

I am persuaded Charge I, Specification #7 is a new claim, separate

and distinct from those alleged in the original charges. Since

this claim was not interposed within eighteen (18) months of the

alleged misconduct, it is untimely.

Charge I, Specification #9 of the amended charges, alleges on

August 10, 2020, Mascarella violated New York Vehicle and Traffic

2 NYS Vehicle and Traffic Law Section 1194(1) (b), states:

"(b) Field Testing. Every person operating a motor vehicle which

has been involved in an accident or which is operated in violation
of any of the provisions of this chapter shall, at the request of
a police officer, submit to a breath test to be administered by
the police officer. If such test indicates that such operator has
consumed alcohol, the police officer may request such operator to
submit to a chemical test in the manner set forth in subdivision
two of this section".

18
Law Section 1225-C and/or Section 1225-D. These laws prohibit

drivers from making phone calls using their hand to hold the phone

near their ear while driving (1225-C) and from holding a portable ·

electronic device to view, send or receive messages, while driving

(1225-D). Although Specification #9 of the original charges

alleges Mascarella was holding a cell phone in his hand while

driving, it does not allege he held the phone near his ear to make

a call, nor any claim he held his phone while driving to view,

send or receive messages, and does not mention either of these

statutes. In this circumstance, I conclude Specification #9 of the

original charges does not give notice Mascarella is being charged

with violating either of these laws or of committing an act barred

by them. Therefore, I find Charge I, Specification #9 of the

amended charges is a new claim alleged more than eighteen ( 18)

months after the accident date and is untimely.

Charge I, Specification #11 of the amended charges, alleges

on August 10, 2020, Mascarella violated New York Vehicle and

Traffic Law Section 1227, which prohibits driving motor vehicles

with an open container of alcohol in the vehicle. Although

Specification #5 of the original charges alleges Mascarella

operated his vehicle with four (4) open containers of alcoholic

beverages in his truck, it makes no claim he did so in violation

of statute. In this circumstance, I find the original specification

does not put Mascarella on notice he violated a statutory

19
provision. Therefore, to the extent Charge I, Specification #11 of

the amended charges alleges Mascarella violated the statute, it

alleges a new claim made more than eighteen (18) months after the

accident date and is untimely.

The remaining amended charges and specifications, not

dismissed, repeat claims encompassed by the original charges and

specifications, which were timely served. Therefore, those amended

charges and specifications remain for my determinatiort. I shall

now turn to the merits of this dispute.

Having carefully considered the evidence and arguments

presented, I make the following findings of fact:

On August 10, 2020, at 4:45 p.m., while off duty, Mascarella

drove his truck on Route 25 in Nesconset, New York and caused a

serious motor vehicle accident by colliding with the rear end of

a small car in front of him that had slowed to make a left turn.

There is evidence Mascarella's truck was moving at a speed of sixty

one ( 61) miles per hour seconds before impact and had

insufficiently braked to avoid the accident. (County Exhibits No.

31A, 31B)~ 3 The collision was forceful and seriously injured an

3 Police examination of crash data recorded by the airbag module

of Mascarella's truck revealed five (5) second before impact, the
truck was moving at sixty one (61) miles per hour. The data showed
brakes were applied two (2) seconds before impact and the truck
was still moving at fifty (50) miles per hour a split second before
impact (one tenth (1/10) of one (1) second before collision).
(County Exhibit No. 31B).

20
infant passenger seated in a car seat behind the driver. The infant

sustained fractures to his skull. The driver of the car and another

infant passenger (also seated in a car seat) were also injured.

(Joint Exhibit No. 7, County Exhibit No. 31A). All occupants of

the car were transported to Stony Brook University Hospital for

medical evaluation and treatment.

Earlier in the day, Mascarella consumed several alcoholic

beverages. He later admitted to the Department's Internal Affairs

Bureau ("IAB") to drinking one (1) twelve (12) ounce vodka and

soda beverage during a golf outing with friends, and two (2) more

twelve (12) - ounce vodka and soda beverages after the golf outing

during lunch at Rockwell's Bar and Grill in Smithtown, New York.

(County Exhibit No. 31A). It was after lunch that he drove his

truck on Route 25 and the collision occurred. 4

Mascarella was text messaging on his cell phone while driving

his truck after lunch. His last text message was at 4:43 p.m.,

approximately ninety (90) seconds before the collision. (County

Exhibit No. 31A) . 5

Immediately after the accident, Mascarella parked his truck

at a nearby car dealership. He made no effort to assist the driver

4 Mascarella told IAB his last alcohol drink on August 10, 2020,

was one (1) hour before the collision. (County Exhibit No. 31A).

5 Mascarella' s cell phone records establish he exchanged text

messages with an unknown person from 4:39 p.m. to 4:43 p.m. (County
Exhibit No. 31A).
21
or passengers of the car he struck. (Joint Exhibit No. 7).

Mascarella tried calling his union delegate, police officer Joseph

Russo, at 4:46 p.m. and 4:47 p.m. (County Exhibit No. 31A). Russo

called Mascarella back at 5:06 p.m., spoke with him for two (2)

minutes, and then came to the scene of the accident in civilian

clothes, as he was off duty. (Id.). Mascarella identified himself

to a police officer at the scene as the operator of the truck

involved in the collision. (Id.). Police officers at the scene

were from the Fourth Precinct, which was the same Precinct where

Mascarella worked. (County Exhibit No. 5).

Sergeant Lawrence McQuade was a Fourth Precinct police

supervisor at the scene. McQuade made a cell phone call to Russo

at 6:14 p.m. In this call, according to a report filed by McQuade,

he told Russo Mascarella would be given a PBT. (County Exhibits

No. 8 and No. 31A). There followed a series of calls between Russo

and a PBA trustee, George Russell, and with the PBA office, after

which Russo and Mascarella left the scene at 6:33 p.m. in Russo's

car and drove to Southside Hospital in Bay Shore, New York. (Id.;

Joint Exhibit No. 7).

Mascarella was at the scene for one (1) hour and forty - eight

(48) minutes before leaving for Southside Hospital. He was known

by pol~ce officers at the scene to be an off duty police officer

and operator of the truck involved in the accident but was not

instructed to remain there. Nor was Mascarella asked to submit to

22
a PBT or undergo field sobriety tests at the scene. He did not

tell police officers he was leaving, but one (1) or more officers

knew he was departing for Southside Hospital. 6 When later

interviewed by IAB, Russo asserted Mascarella had developed back

spasms needing medical attention and went to the hospital for that

reason. Mascarella made the same assertion during his IAB

interview. (County Exhibit No. 31A) . He also admitted to IAB he

knew Wustenhoff was responding to Southside Hospital to administer

a PBT because Russo was contacted and advised of such. (Id).

Mascarella and Russo arrived at Southside Hospital at 7:09

p.m. (Joint Exhibit No. 7). After walking into the emergency room

under his own power, Mascarella practiced two (2) field sobriety

tests, nwalk and turnn (walking heel to toe in a straight line),

and none (1) legged stand" (standing ~bile raising one (1) leg six

(6) inches off the ground). He acknowledged doing so when later

interviewed by IAB (County Exhibit No. 31A) . These tests are

commonly administered by police officers to drivers suspected of

having driven under the influence of alcohol. Images from hospital

security cameras were received in evidence and confirm he was

practicing field sobriety tests at Southside Hospital. (County

Exhibit No. 22).

6 Police officer Peter Montenegro was present at the scene. When

later interviewed by IAB, Russo stated he told Montenegro he would
be taking Mascarella to Southside Hospital. (County Exhibit No.
31A).
23
 Thereafter, at McQuade's direction, _ police officer Kevin

Wustenhoff went to Southside Hospital to obtain a PBT from

Mascarella. He drove to the Hospital and at 7:40 p.m., asked

Mascarella to submit to a PBT. Mascarella refused. A further

request to submit to a PBT was made by Deputy Inspector, Mark

Fisher, and Lieutenant Peter Reilly, at 8:13 p.m. Mascarella again

refused. (County Exhibit No. 11) _

Police officers at the scene who interacted with Mascarella

reported seeing no signs of intoxication in Mascarella. (County

Exhibit No. 31A). Police officers and medical staff who interacted

with him at Southside Hospital also reported Mascarella displayed

no signs of intoxication. (Id.).

Four ( 4) Poland Spring plastic water bottles with liquid

contents were found inside the center console of Mascarella's truck

at the time of the accident. They were recovered by the Department

and tested. All four (4) bottles were found to contain alcohol.

(County Exhibits No. 14, 31A). A photo taken of the bottles inside

the center console shows their caps were on but were not sealed.

(County Exhibit No. 14). No claim is made Mascarella consumed

alcohol from these bottles on August 10, 2020. Mascarella told IAB

he kept the bottles inside his truck to share with other officers,

who sometimes liked to have a drink and smoke cigars in the parking

lot after inspection. (County Exhibits No. 25, 31A) . Mascarella

24
claimed both bottles were filled to the top, one (1) with vodka,

and the other with bourbon. {Id.).

Upon the foregoing facts, I find just cause exists to

discipline Mascarella under Charge I, Specifications #1, #5, #8,

#12a, #12b and #12e, of the amended charges, and under Charge II,

Specification #4 of the amended charges. My reasons follow.

Charge I, Specification #1 alleges Mascarella caused the

collision. I find he did so. Mascarella was responsible for

observing traffic ahead of his truck but failed to recognize the

car ahead was slowing to make a left turn. He did not apply his

brakes until it was too late. As a result, Mascarella drove his

truck, at speed, into the rear of the car ahead, causing the

collision and seriously injuring the car's occupants.

I conclude Mascarella's causation of the accident is

sufficiently connected to his employment to warrant discipline.

After all, there is no question driving safely is a core

responsibility of police officers, whose job duties include

driving on the public roadways of Suffolk County. More

fundamentally, the Department's mission of maintaining public

safety requires police officers refrain from actions undermining

public confidence in their ability to keep people safe. This is so

whether the police officer is on or off duty. Mascarella's

causation of rear ending a vehicle causing serious injury to an

infant justifies the Department's decision to impose corrective

25
measures, to impress upon Mascarella the need to be fully attentive

while driving. 7

Charge I, Specification #2, was dismissed on motion.

Charge I, Specification #3, alleges Mascarella impeded or

attempted to impede an investigation into his blood alcohol

content, by leaving the scene of the accident without notifying

authorities and without having been injured severely enough to

require medical attention at a hospital. I find Mascarella not

guilty of this Specification. Although the County argues

Mascarella left the scene to avoid being tested and give himself

time to sober up, I find that argument speculative and not based

upon sufficient evidence. After all, Mascarella remained at the

scene for one (1) hour and forty eight (48) minutes, knowing by

virtue of training and experience he was subject to a PBT if

demanded by a police officer. The County's contention he had no

need of medical attention at a hospital is conclusory and at odds

with assertions in the record of back spasms. While the County

emphasizes Mascarella left for the hospital only after Russo was

told a PBT would be administered, I find that circumstance, though

raising a suspicion of improper motive, is insufficient to support

an inference he left to avoid the PBT. It does not eliminate the

7 Had this been the sole specification Mascarella committed, the

discipline imposed, below, would have been much less.
26
reasonable possibility Mascarella developed back spasms for which

a hospital visit was desired.

I also conclude Mascarella's departure for the hospital did

not impede the Department's ability to investigate his level of

sobriety or blood alcohol content. After all, police officers at

the scene could have initiated field sobriety tests and or a PBT

while Mascarella . remained at the scene. I find his change of

location to Southside Hospital was not an impediment, as the record

establishes police sought testing at the Hospital.

The Department's contention Mascarella left the scene without

notifying police is without merit. Montenegro was with Mascarella

at the scene and knew he was leaving. (County Exhibit No. 31A).

McQuade directed Wustenhoff to respond to Southside Hospital to

administer the PBT. (Id.) By doing so, I find McQuade knew,

presumably from Montenegro, of Mascarella's departure and

destination.

Charge I, Specification #4, alleges Mascarella impeded, or

attempted to impede, an investigation of his blood alcohol content

by choosing Southside Hospital as his destination instead of other

hospitals closer to the scene. I find the evidence insufficient to

prove this Specification. The record demonstrates Mascarella' s

hospital choice was no impediment to the Department's ability to

test his blood alcohol content, as officers at the scene knew where

he was going and McQuade sent them to Southside Hospital to

27
administer the PBT. In this respect, the location of the Hospital

Mascarella traveled to is immaterial and provides no basis for

discipline.

I also find insufficient evidence to prove Mascarella held an

intention to impede testing by choosing a more distant hospital.

The fact is, he remained at the scene for one (1) hour and forty

eight ( 48) minutes after the accident, knowing police officers

could have demanded a PBT under the Department' s special order

authorizing such tests for drivers involved in accidents resulting

in serious physical injury. (Department's Exhibit No. 32). There

is evidence Mascarella did not want to go to closer hospitals for

reasons having nothing to do with avoiding a test. 8 Beyond

speculation, I find the record insufficient to establish

Mascarella chose the more distant Southside Hospital to impede an

investigation.

Charge I, Specification #5, alleges Mascarella refused to

submit to a PBT requested by Wustenhoff at Southside Hospital,

knowing the request was part of a legitimate investigation into

his blood alcohol level. I find Mascarella guilty of misconduct

under this specification. His refusal is established. By virtue of

Mascarella's position and seniority, I find he knew or should have

8 Mascarella told IAB he did not want to go to Stony Brook Hospital

because the occupants of the car he struck were transported there
and he did not like St. Catherine's Hospital. (County Exhibit No.
31A).

28
known ascertaining his level of sobriety was a legitimate part of

the Department's accident investigation. A special order of the

Department authorized police to administer a PBT to Mascarella

after the serious accident that occurred (County Exhibit No. 32).

He knew Wustenhoff was directed to respond to Southside Hospital

to administer a PBT, as he later admitted during his IAB interview.

Mascarella's practicing of field sobriety exercises at Southside

Hospital confirms he was concerned about his level of impairment

and being deemed under the influence of alcohol, were he commanded

to perform those exercises by police responding to the hospital.

This is not surprising, given his admitted consumption of alcohol

prior to the collision.

I find Mascarella's refusal to submit to a PBT was serious

misconduct. It deprived the Department of the ability to ascertain

the presence or absence of alcohol in his bloodstream via the test.

Obtaining that information was vital to the Department's mission

of protecting the public, ferreting out officers who may be abusing

alcohol, understanding what role, if any, alcohol consumption

played in the collision that occurred, and maintaining public

confidence in the Department. The PBT was also relevant to

determining whether laws were violated. These connections to the

mission of the Department are manifest and persuade me Mascarella's

refusal of the PBT provides more than sufficient nexus to his

employment to warrant substantial discipline.

29
 I reject the Association's contention Mascarella is insulated

from discipline for his refusal to submit to the PBT. Its reliance

upon the Fourth Amendment to the United States Constitution is

unavailing. I recognize the Fourth Amendment protects persons

against unreasonable searches and seizures by the government.

However, federal case law holds breathalyzer testing of police

officers is reasonable, and not violative of the Fourth Amendment,

where the police officer, whether on or off duty, has caused death

or injury to another person. Lynch v. City of New York, 589 F.3d

103 (2d Cir., 2009) (upholding breathalyzer testing of New York

City police officers who, while on or off duty, cause death or

injury to another person by firing his or her gun). This is so

regardless of whether there are grounds to suspect the officer was

intoxicated. (Id.) 9 Such testing is recognized as advancing the

employer's special need to maintain public confidence in the

integrity of safety sensitive workforces, and in the case of police

departments, to enable detection and discipline of officers whose

actions have injured members of the public while impaired by

alcohol, and to deter other officers from committing such conduct.

(Lynch, supra, 589 F.3d at 104).

9 See also, Skinner v. Railway Labor Executives Assn., 489 U.S.

602 (1989) (drug testing of railroad employees involved in train
accidents upheld as reasonable searches not violative of the Fourth
Amendment, even in the absence of particularized suspicion the
employees are under the influence of drugs).
30
 Those same considerations are applicable, here. The

Department must be able to maintain public safety while identifying

officers who may be abusing alcohol and deterring other officers

from driving under the influence. These needs, I find, far outweigh

the minimal intrusion upon a given police officer's person to

obtain a sample of air that would otherwise be exhaled in the

normal course of breathing. For these reasons, I conclude

Wustenhoff's demand for a PBT was reasonable and, therefore, did

not violate Mascarella's Fourth Amendment protection against

unreasonable searches and seizures.

My conclusion is not altered by the fact Mascarella was off

duty on the date of the collision. The Department has a compelling

interest in assuring itself, and the public at large, its police

officers are not abusing alcohol or engaging in unsafe activities

harmful to the public they are sworn to protect. If police officers

cause an off duty accident with .serious physical injury and are

allowed to refuse a PBT without disciplinary consequence, public

confidence in the Department will be damaged because the Department

will be perceived as turning a blind eye to potential alcohol ~buse

amongst its workforce, while . holding the public to a different

standard.

Charge I, Specification #6, alleges Mascarella refused a

second PBT ordered or requested of him at Southside Hospital, by

Deputy Inspector Fisher and or Lieutenant Reilly. The evidence

31
establishes a second PBT was demanded of Mascarella and refused.

However, since he had already refused the earlier test sought by

Wustenhoff, I find this Specification duplicative of Charge I,

specification #5. It provides no basis for additional discipline

and is dismissed.

Charge I, Specification #7, was dismissed on motion.

Charge I, Specification #8, alleges Mascarella drove his

truck while using a portable electronic device. The record

establishes he did so by exchanging text messages with an unknown

person. As discussed, those messages ended approximately ninety

(90) seconds before the collision. Since Mascarella's use of the

device to exchange messages was proved during the hearings, this

specification is established. Nevertheless, I cannot conclude it

was a causative factor in the collision that ensued, as there is

no evidence he was using the device at the time of the accident. 1 0

In these proven circumstances, I find Mascarella' s use of the

device, while suggestive of an overall, inattentive manner of

driving, provides little or no basis for additional discipline,

1 °
Common sense indicates it is possible Mascarella was looking at
his electronic device between the time his last text message ended
and the moment of impact ninety (90) seconds later. However, there
is no evidence in the record to establish this one way or the
other.

32
since his failure to attend to traffic conditions ahead of him is

already proven by the collision which occurred. 11

Charge I, Specification #9, was dismissed on motion.

Charge I, Specification #10, alleges Mascarella drove his

truck while possessing open containers of alcohol. I find

Mascarella not guilty of this Specification. While the four (4)

plastic bottles found inside the console of his truck did contain

alcohol, the bottles wer~ all found with their openings capped. No

evidence was presented these bottles were open at any time on

August 10, 2020. Nor has any claim been made Mascarella consumed

alcohol from them on August 10, 2020. In these circumstances, I

find the evidence insufficient to prove he possessed open

containers of alcohol while operating his truck on the date and

time alleged.12

Charge I, Specification #11, was dismissed on motion.

Charge I, Specification #12, alleges Mascarella's actions on

August 10, 2020, violated various subsections of Chapter 5, Section

11 Whether Mascarella's proven use of his cell phone to exchange

text messages was lawful, or prohibited by Vehicle and Traffic Law
Section 1225-d, is immaterial, as there is no pending specification
alleging he violated a statute by exchanging these messages while
driving.
12 I make no finding whether Mascarella' s possession of these
bottles violates New York's statute prohibiting possession of open
containers of alcohol while driving, or whether the bottles, capped
but not sealed, would be considered "open" within the meaning of
that statute. The County's specification alleging a violation of
that statute, Vehicle and Traffic Law Section 1227, was dismissed
as untimely and is not before me for determination.
33
1 of the Department:s Rules and Procedures. As discussed below, I

find Mascarella guilty of conduct unbecoming a police officer under

Charge I, Specification #12a, insubordination under Charge I,

Specification #12b and conduct injurious to the public welfare

under Charge I, Specification #12e.

Mascarella's actions were unbecoming of his position because

police officers are expected to always operate motor vehicles in

a safe manner and to refrain from actions undermining the mission

of the Department. His inattentive driving caused serious physical

injuries to civilians. Mascarella' s refusal of the PBT deprived

the Department of its ability to ascertain the presence or absence

of alcohol in his bloodstream undermining the interests and public

safety mission of his employer. By any reasonable measure, I find

Mascarella' s actions were unbecoming his position as a police

officer.

Mascarella's refusal of the PBT was insubordinate because he

violated a reasonable, lawful demand, given by Wustenhoff on behalf

of the Department, and constituted defiance of lawful authority.

There is no doubt Wustenhoff was authorized by statute and the

Department's special order to administer a PBT to Mascarella

following the accident. Although phrased as a request, I find

Wustenhoff's demand was readily understandable as a police

directive to submit to the PBT. Mascarella, • a long term officer,

reasonably understood this was not something he could decline with

34
impunity. The Association's characterization of this demand as a

mere request which could be refused without consequence, is

unpersuasive. As an employee of a paramilitary organization, I

find Mascarella was duty bound to obey Wustenhoff by taking the

PST. By failing to comply, Mascarella committed insubordination.

Mascarella's actions were plainly injurious to the public

welfare. He directly injured members of the public through

inattentive driving, and damaged the public interest by refusing

a test which would have revealed the presence, or absence, of

alcohol in his bloodstream.

I find such testing furthers the public welfare by enabling

those charged with public safety to ascertain the role alcohol

played in the collision and to assure all officers who drive while

impaired from . alcohol are dealt with under the same standards

applied to other members of the public. It also advances the

public's interest in the Department's ability to discern potential

alcohol abuse amongst police officers, all of whom are vested with

extraordinary powers over the public by virtue of their law

enforcement positions and, in particular, their license to carry

firearms. For all these reasons, I must conclude Mascarella' s

refusal to be tested was damaging to the public welfare.

I find Mascarella not guilty of Charge I, Specification #12c.

This specification alleges by engaging in the conduct articulated

in Charge I, Specifications #1 through #11, Mascarella refused to

35
submit to a chemical test. However, nowhere in those specifications

is any claim articulated that Mascarella refused a chemical test.

Therefore, I find Mascarella not guilty of this specification. 13

I find Mascarella not guilty of Charge I, Specification #12d

(immoral conduct). The County's contention Mascarella acted

immorally by recklessly causing the collision and then seeking to

avoid accountability, is rejected. Although his actions were

unacceptable and carry disciplinary consequences, I am not

convinced they constitute immoral acts as that term is commonly

understood.

Charge II, Specification #1, alleges Mascarella brought the

Department into disrepute by failing to check on the condition of

the occupants of the other vehicle involved in his accident. Under

the unique circumstances presented, I find him not guilty of this

specification. Although Mascarella did not check on the condition

of the occupants, there is evidence McQuade observed Mascarella at

the scene, thought he was in shock and summoned an officer from

the fourth precinct (Montenegro), known to be friendly with

Mascarella, to report to the scene and look after him. (County

13Charge I, Specification #5 alleges Mascarella refused to submit

to a PBT. It does not allege he refused to submit to a chemical
test. PBTs are separate and distinct from chemical tests. The
Vehicle and Traffic Law incorporates this distinction by requiring
drivers involved in an accident to undergo PBTs at the direction
of police and by authorizing chemical tests if the PBT results in
a positive finding for alcohol. See, Vehicle and Traffic Law
Section 1194(b) (1), supra, footnote 2.
36
Exhibit No. 31A). In these circumstances, I am not convinced

Mascarella was able to check on the condition of the occupants of

the other vehicle in the aftermath of the collision.

Charge II, Specification #2, alleges Mascarella brought the

Department into disrepute by failing to render aid at the scene of

the accident. For the same reasons set forth in the preceding

paragraph, I find Mascarella not guilty of this specification.

Charge II, Specification #3, alleges Mascarella' s actions

brought the Department into disrepute by creating or helping to

create the appearance Suffolk County police officers apply the law

differently to members of the Department than to others.

In support of this specification, the County claims Mascarella

left for Southside Hospital knowing Vehicle and Traffic Law Section

1194 (1) (b) required he first be given a PBT before leaving for

Southside.

I find Mascarella not guilty of this specification. The cited

statute requires a motorist to submit to a PBT when requested to

do so by a police officer following an accident or traffic offense.

See, fn2, supra. There is not a scintilla of evidence Mascarella

was asked by a police officer to submit to a PBT before he left

for the Hospital_ 1 4

14McQuade's call to Russo advising he was going to have Mascarella

undergo a PBT was not a demand made to Mascarella.

37
 If any appearance of preferential treatment was created by

the lack of testing at the scene, I find it was not caused by

Mascarella.

Charge II, Specification #4, alleges Mascarella' s actions

brought the Department into disrepute by creating or helping to

create the appearance Suffolk County police officers are not

required to conform to the requirements of law. I find Mascarella

guilty of this specification. His refusal of the PBT demanded by

Wustenhoff at Southside Hospital was in disregard of the statutory

obligation of all motorists involved in accidents to submit to a

PBT requested by a police officer. Vehicle and Traffic Law Section

1194 (1) (a). As such, I find Mascarella' s refusal of the PBT created

an appearance Suffolk County police . officers do not consider

themselves bound by the same laws applied to all other motorists

involved in an accident. 15

Charge II, Specification #5, alleges by his actions,

Mascarella brought the Department into disrepute by creating or

helping to create an appearance Suffolk County police officers are

dishonest. Although Mascarella's actions causing the accident and

refusing the PBT were wrongful and subject him to discipline, I am

1s I do not reach the same conclusion regarding Mascarella's use

of his cell phone to exchange text messages while driving.
Exchanging text messages while holding one's phone would violate
the law applicable to all drivers, but there is no evidence
Mascarella held the phone in his hand when the messages were
exchanged.
38
not persuaded they involved dishonesty on his part or created an

appearance of dishonesty for the County's police force in general.

Therefore, I find Mascarella not guilty of this Specification.

Charge II, Specification #6, alleges Mascarella' s actions

brought the Department into disrepute by causing or contributing

to negative press coverage about the Department. There is no doubt

the articles published by Newsday about the accident cast the

Department in a negative light. They express the authors'

conclusions Mascarella was the beneficiary of decisions by other

police officers to not pursue a search warrant to obtain a blood

test after he refused the PBT, thereby allowing him to avoid a

determination of his blood alcohol content: The articles expressly

take the view Mascarella was allowed to avoid testing because of

his status as an off duty police officer. (County Exhibit No. 36).

However, as I have already found, multiple police officers

and Southside Hospital medical personnel who attended him after

the accident reported he displayed no signs of intoxication or

impairment. While the press may be free to publish articles based

upon innuendo, suspicion, unreliable hearsay, or point of view, it

is improper to hold Mascarella responsible for what the press

reported about putative conduct of other police officers, where

the County has not charged him with inducing or importuning those

other officers to refrain from taking further measures to ascertain

39
his blood alcohol content following his accident and refusal of

the PBT.

My conclusion under this specification is not altered by the

fact Mascarella caused the collision which seriously injured a

young passenger in the vehicle he struck and did so after consuming

I
three (3) alcoholic beverages. Those facts, no doubt damaging to

the Department's reputation, are already determined under other

specifications and, together with his misconduct in refusing the

PBT, provide just cause for his discipline.

In sum, I find Mascar~lla guilty of misconduct under Charge

I, Specifications #1, #5, #8, #12a, #12b and #12e, of the amended

charges, and under Charge II, Specification #4 of the amended

charges. There remains the question of what penalty is appropriate

for his proven offenses.

The County argues for Mascarella's discharge from employment,

contending his misconduct was egregious and demonstrates his

unfitness to continue serving as a police officer. It alleges he

lacks remorse and cannot be relied upon to refrain from misconduct

were he to be returned to duty. The County insists termination is

the only appropriate remedy for Mascarella's proven offenses.

The Association, on the other hand, insists an award should

issue reinstating Mascarella with full back pay and benefits. It

asserts he is guilty of nothing more than getting into a car

accident and later refusing a PBT and emphasizes his nineteen (19)

40
years of discipline free service. In the alternative, if just cause

for discipline be found, the Association maintains the appropriate

penalty should be a brief suspension followed by r eturn to duty.

After careful consideration, I do not agree with either

party's position. The County's request for termination rests, in

part, upon unproven claims Mascarella left for Southside Hospital

i
for the purpose of impeding investigation of his blood alcohol

content, drove his truck while possessing open containers of

alcohol, refused a chemical test, engaged in dishonesty, committed

immoral acts, wrongfully failed to check on the occupants of the

car he struck or provide them aid, brought about the appearance of

receiving preferential treatment by fellow officers at the scene

and caused negative press coverage toward the Department. Since I

have found insufficient evidence to sustain these claims, they

provide no support for the requested discharge.

On the other hand, the Association's request for

reinstatement without penalty, or with a minor suspension, lacks

merit. After all, Mascarella caused a collision through

inattention and injured all occupants of the other car, including

serious injuries to a small child seated in a car seat behind the

driver. He then wrongfully refused the lawful demand of police

officer _ Wustenhoff to submit to a PBT at Southside Hospital,

knowing full well the purpose of such a test was to determine the

presence or absence of alcohol in his bloodstream. His refusal of

41
the PBT, after having consumed three (3) alcoholic beverages before

the accident, was egregious and at odds with the public safety

mission of his employer and the needs of the Department to

ascertain the role alcohol played in the accident and ultimately

to maintain public confidence in the County's police force. Weighed

against these considerations, the Association's arguments for a

finding of no just cause and return to duty with full back pay, or

in the alternative for a brief suspension penalty, are untenable.

On balance, I find the appropriate penalty for Mascarella's

proven offenses is a time served suspension, without pay. I

conclude, Mascarella shall be returned to his former position,

forthwith. That is, there is ample record evidence to warrant a

serious suspension of Mascarella there is insufficient evidence to

justify termination.

In determining this penalty, I have considered Mascarella's

long record of prior, discipline free service, and the lack of

evidence this accident, and its aftermath, was other than an

isolated incident in his life. Nevertheless, Mascarella committed

serious misconduct by causing the accident and resulting serious

injuries through inattention to the roadway ahead and thereafter,

by refusing Wustenhoff' s lawful demand to submit to a PBT. His

refusal undermined the mission of his employer to protect the

welfar~ and safety of the public and to ferret out police officers

who may be abusing alcohol. I am convinced Mascarella's offenses

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are far greater than a mere car accident, and warrant the

substantial suspension imposed.

In all, Mascarella is guilty of misconduct under Charge I,

Specifications #1, #5, #8, #12a, #12b and ~H2e, of the amended

charges, and under Charge II, Specifications #1, #2, #3, and #4 of

the amended charges. These prove just cause for a time served

disciplinary, suspension without pay.

Mascarella shall be reinstated to his former position,

forthwith.

For all the foregoing, the Association's grievance, on behalf

of Mascarella, is sustained in part and denied in part.

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 AWARD

1. P.O. David Mascarella is guilty of misconduct under Charge I,

Specifications #1, #5, #8, #12b and #12e of the amended
Charges. He is guilty of misconduct under Charge II,
Specification #4 of the amended charges.

2. The County had just cause to suspend but not to terminate

Mascarella.

3. The appropriate penalty for Mascarella's proven misconduct is

a time served disciplinary suspension, without pay.

4. Mascarella shall be reinstated to his former position,

forthwith.

5. The Association's grievance, on behalf is

sustained in part and denied in part.

October5 , 2023
Ma in Scheinrnan, Esq.
Arbitrator

STATE OF NEW YORK

ss.:
COUNTY OF NASSAU

I, MARTIN F. SCHEINMAN, ESQ., do hereby affirm upon my oath

as Arbitrator that I am the individual described he-' ein and who

executed this instrument, which is my Award.

/

OctoberJ , 2023
Mar:in Scheinman, Esq.
Arbitrator

Suffolk County,[Link] [Link]

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