Judge: Tossed Indictment DA’s Fault

By Ann Givens Newsday Staffwriter

A Nassau judge has thrown out a New York City police officer’s indictment on grand larceny charges, saying the district attorney’s office did not handle the case properly. But Judge Joseph Calabrese said prosecutors can take the case back to a new grand jury and try to get another indictment against Philip Repaci, who is accused of illegally cashing $1,000 in union checks at a Nassau bar.

This was already the second time the Nassau district attorney’s office had brought its case against Repaci, 36 of Middle Village, to a grand jury. The first time, under former District Attorney Dennis Dillon in December 2005, a prosecutor directed the grand jury not to consider the case, saying “the evidence does not support. . . the criminal prosecution of this matter.”

But Dillon’s successor, Kathleen Rice, decided there was enough evidence to prosecute, and her office presented it to a second grand jury. There was just one problem: Rice’s prosecutors didn’t get the required permission from a judge. So after that grand jury indicted Repaci and his lawyer objected, Calabrese threw out the indictment.

Repaci’s lawyer, William Petrillo of Rockville Centre, said it’s ridiculous that his client is still being investigated this long after another district attorney backed off the case. “The case was thoroughly investigated by experienced prosecutors for months, and they considered the evidence and found it was without merit,” he said.

Rice spokesman Eric Phillips said the case is strong, and his office will continue to prosecute it. He said Assistant District Attorney Peter Mancuso did not get permission from the judge to resubmit the case because he disagreed about whether that was necessary.

“There was a difference of opinion on the law between a veteran of this office and the judge in this case,” Phillips said.

Petrillo said the law is clear about the need to get a judge’s permission to resubmit a case. The reason the law exists, he said is so prosecutors can’t “grand jury shop,” withdrawing a case from a grand jury if things appear to be going badly, then bringing it back later in hopes of finding a friendlier audience.

In September, Calabrese accused Rice’s office of doing that in a different case. But in the Repaci case, there has been no accusation that the district attorney was “shopping.”

“They had to seek permission. It’s just that simple,” said Jim Cohen, a criminal law professor at Fordham University’s School of Law.

But Bennett Gershman, a Pace Law School professor, said that the since the case was withdrawn from the first grand jury before any action was taken clouds the issue.