By Ben Fractenberg, Shayna Jacobs, Michael Ventura and Andrea Swalec
MANHATTAN — Rayon McIntosh, the Greenwich Village McDonald's worker caught on dramatic cellphone video beating two unruly female customers, was not indicted by a grand jury, prosecutors said Friday, paving the way for him to be released from custody.
After convening for 11 days over the incident, which was captured on shocking video first published by DNAinfo, the grand jury voted to dismiss charges against McIntosh, 31.
"Over the last 11 days the the grand jury considered the evidence and voted to dismiss in the interest of justice," Assistant District Attorney Jamie Mendoza said. "We ask Mr. McIntosh be freed."
McIntosh was caught on video using a metal rod to beat two women who had jumped over the counter apparently to attack him at the West 3rd Street fast food joint on Oct. 13.
One of the women, Denise Darbeau, suffered a fractured skull and some memory loss in the incident, her father, Gerald Darbeau, told DNAinfo. The other, Rachel Edwards, suffered a deep cut on her arm.
Both women were charged with trespass, but it was not clear if they were indicted.
After DNAinfo's "On the Inside" broke the story of the incident, McIntosh received an outpouring of support.
McIntosh's attorney, Theodore Herlich, said the grand jury viewed his client's actions as self-defense.
"I think the grand jury had a lot of sympathy for him based on their view of the videotape and how the two women were behaving," he said.
McIntosh, who has a 2001 manslaughter conviction, was brought to tears when cross-examined in front of the jury, Herlich said.
Moments after the grand jury results were revealed by prosecutors, family members cried "Thank you, Jesus" and "Hallelujah" as they received the emotional news that McIntosh would be cleared in the incident.
McIntosh, who has an 11-year-old daughter, was not in court to hear the results of the grand jury vote. Instead, he was put on a bus back to Rikers Island, where he is being held on $40,000 bail, because of a procedural complication that prevented his immediate release, his lawyer said.
"For all I know he's on the bus right now thinking he's been indicted," Herlich said outside the courtroom.
McIntosh's mother, Maureen Lucas, said outside court that Darbeau and Edwards provoked her son.
"No female I know would jump over a counter," she said. "They didn't pursue him to say 'Hello, hi. Can I get a cup of coffee'?"
Lucas and McIntosh's stepfather, John Lucas, said through family friend Thomas Lopez-Pierre that they were relieved by the court's decision.
"The family is overjoyed that the people of the state of New York refused to indict their son and recognized that he is a victim," Lopez-Pierre said. "The family is disappointed that they were unable to spend Thanksgiving with their son but they thank God for the opportunity to now be able to spend Christmas as a family."
The family will "continue in their effort to seek justice for their son by exploring their civil legal options in relation to suing McDonald's," they added.
Franchise owner Paulino Foods and McDonald's corporate communications staff did not immediately return requests for comment on whether McIntosh will be reinstated as a cook.
Harold Baker, Darbeau's lawyer, said the grand jury's decision was "not morally justified, or legally acceptable."
"We're shocked and dismayed that this vicious criminal's charges are being dismissed," Baker said. "It's a miscarriage of justice."
McDonald's cashier Michael Joseph, 18, testified on Oct. 18 that Darbeau and Edwards, who both have previous arrests, provoked the beating by verbally abusing the restaurant's workers.
Darbeau's father declined to comment.
McIntosh began working at the McDonald's soon after being released from prison in connection with a killing in White Plains.
In that case, he pleaded guilty to accidentally killing his best friend during a confrontation with another group of young men.
He served about a decade in prison and had been working hard to get his life in order at the time of the incident, his lawyer said.