Brawl Case Dismissed Police Officer Exonerated

By KATHLEEN KERR – Newsday – April 18, 2009

A Nassau grand jury dismissed all charges Friday against a Roosevelt deli owner and three others who had been accused of beating a man after he refused to leave from the front of the store. The case had drawn wide attention on and off Long Island because of its racial overtones – four Hispanic men were accused of beating a black man.

But the grand jury found that there was insufficient evidence to proceed with second-degree assault charges, apparently in part because there were conflicting stories from witnesses. Some also said they believed the defendants, including a New York City police officer, were acting in self-defense, according to District Attorney Kathleen Rice.

The man who said the deli workers beat him, Darryl Jackson, 52 of Roosevelt, had face, neck and back injuries as the result of the March 8 fight outside the Midway Delicatessen on Nassau Road. The defendants were Kelvin Vargas, 23 of the Bronx; Juan Nuñez, 32, of Freeport, an off-duty New York City police officer; Jose Miguel Vargas, 35, of Freeport; and the deli owner, Persio Vargas, 53, of the Bronx. Jose Miguel Vargas was also charged with criminal possession of a weapon – a baseball bat. That charge was also dismissed.

According to prosecutors, Jackson initially told investigators that race had nothing to do with the altercation. Although Rice said the altercation was not a hate crime, she denounced the racial slurs the deli workers used during it. One worker was reported to have told Jackson to go back to Africa during the melee. “It is correct to say while hate may not have been a motivator for the incident, I find the language that was used highly troubling,” Rice said. The deli workers claim Jackson tried to punch Kelvin Vargas after being asked to leave the front of the store.

Vargas admitted punching Jackson in self-defense. A videotape showed Jose Miguel Vargas getting a baseball bat from the deli, but eyewitnesses differed on what he did with the bat and whether he struck Jackson. At the deli Friday, a man identified as the owner refused to talk to a reporter. New York law required evidence that hatred motivated an incident to support hate-crime charges. The mere usage of racial slurs is not enough. Some black leaders had demanded hate crime charges, which would have meant more prison time if the men were found guilty.

Jackson’s attorney, Fred Brewington of Hempstead, said Friday he would ask federal prosecutors to consider civil rights charges against the men. Paraphrasing a famous quip by New York’s former top judge, Brewington said: “Sol Wachtler said once that the D.A. can present a case and indict a ham sandwich if he or she wants to. In this situation, they can make a determination whether they want a ham sandwich or just want to get hors d’oeuvres.” But attorneys for the defendants said prosecutors and the grand jury achieved justice.

William Petrillo of Rockville Centre, Nuñez’s attorney said: “We are gratified with this decision, and that Officer Nuñez’s good name has been restored.” Nuñez is on modified assignment at the 101st Precinct in Far Rockaway. A police department investigation continues. Attorney Christopher Renfroe of Forest Hills, who represented Persio Vargas, said his client is “grateful to the grand jury and also to the district attorney for her presentation.”

Fernando Mateo, president of Hispanics Across America, said the grand jury reached the right conclusion. “When the grand jury heard that these men were only defending themselves against an aggressor, they saw that there was never any crime committed,” he said. But black leaders regretted the result. “People may take it as a message that the value of an African American life is not as valuable as others,” said Suffolk Legis. DuWayne Gregory (D-Amityville). And the Rev. William Watson Jr. of St. John’s Baptist Church in Westbury expressed shock at the decision. “It’s very disturbing,” he said. “The system has failed us”.

Staff writers Matthew Chayes, Michael Frazier, Deborah S. Morris and Keith Herbert contributed to this story.