NEW YORK CITY — The NYPD's procedure of waiting to watch gropers attack multiple victims before making an arrest is influenced by a case nearly 30 years ago that sent two police officers to jail for falsely arresting gropers on the subway, law enforcement experts say.
The NYPD's top brass has staunchly denied a report finding police are reluctant to arrest gropers unless they witness them attack multiple victims — including one officer who said he was told by a prosecutor he needed to observe at least three victims to build a case that could stand up in court.
But those close to the issue, both in the NYPD and the Manhattan District Attorney's office, say the agencies are still wary of arresting gropers immediately due to a federal decision from 1989 that locked up two transit officers for fabricating charges against multiple men.
"The DA's office said you're falsely accusing people. [The officers] were hung out to dry and the DA's office didn't want to hear from anyone who had contradictory testimony," said a former detective with the NYPD's Special Victims Unit, who worked at the police department for 25 years before retiring a few years ago.
He said he is "100 percent" sure that the 1989 case directly impacted the way police officers prove sexual intent of gropers today.
Officers Mary McDermott and Alphonse Iannacone were partners in the anti-crime unit of the New York City Transit Authority's police department, which had been a separate law enforcement agency from the NYPD until they merged in 1995.
Between May 24, 1983, and March 27, 1984, the officers arrested seven men, six of whom were charged with sexually abusing women on the subway and one of whom was charged with pickpocketing.
In all but one of the cases, the officers observed only one victim being groped before making an arrest, court records show.
All of the victims later either denied having been groped, or said they hadn't felt anyone touch them, according to court records.
“The police officers were inventing crimes that didn’t occur,” Nancy Kilson, a former assistant U.S. attorney who prosecuted McDermott and Iannacone at the time, told DNAinfo New York.
“People listed as complaining witnesses, they had no idea they were victims of crimes," she said. "They were told they were victims."
Kilson said a jury agreed with prosecutors that McDermott and Iannacone had fabricated the cases, convicting both of them because none of the complainants could say a crime had occurred.
“That’s part of how you know [the crimes] were invented,” Kilson said. “[The victims] would know. I can tell you, what happened in our case, the people who had supposedly been victims, were very emphatic that nothing had happened to them.”
Last month, DNAinfo New York reported on five recent arrests in which police officers testified to prosecutors that they had watched men grope several women before making an arrest.
In one case, on Dec. 1, 2016, an officer watched a man fondle five women near the Rockefeller Center Christmas tree before intervening.
In many of the cases, the women did not know they were being groped, according to criminal complaints from the DA's office.
Days after DNAinfo's story on the NYPD's handling of groping arrests published, Joseph Fox, Chief of the NYPD's Transit Bureau wrote to DNAinfo, saying the department has a "zero tolerance for sex offenses in the subway."
"We heavily police the areas where these offenses are most common," Fox said. "We have identified chronic offenders and closely observe their actions when they are found to be present within the transit system. We make arrests whenever our officers witness crimes. And we encourage every woman who is in any way molested to come forward to the police immediately to report their experience."
Barry Agulnick, a criminal defense lawyer who represented one of the officers in the 1989 case, said it was no surprise that officers are wary of making groping arrests after the convictions of the two transit officers.
“These [sex abuse] cases are very dangerous for police officers, because you’re always under the specter of false arrest,” Agulnick said. “I hope the cops all learned to make sure you have your complainant and evidence in place. Cross your T’s and dot your I’s to make sure these perverts get off the streets."
In one arrest, on Aug. 17, 1983, McDermott and Iannacone busted a man at the 42nd Street 4/5 station and reported that the victim had made a complaint against him, but those charges were ultimately dismissed.
During the trial against the officers, the victim in that case testified that nothing had happened to her. The accused groper told prosecutors he heard Iannacone ask McDermott whether the victim had “cooperated,” according to court documents.
Prosecutors also noted that the pair’s sloppy paperwork after the arrests was a sign they were accusing men of crimes that didn’t happen. In one case, the officers filled out a complaint describing sex abuse, but the penal code section listed on their reports indicated a grand larceny, according to court records.
Following their convictions, the officers appealed the case in federal court, but in 1990 a judge upheld the decision. McDermott and Iannacone were released from jail in 1992, according to the Federal Bureau of Prisons.
Iannacone declined to respond to multiple requests seeking comment, and refused to speak on the matter during a visit to his New Jersey home.
"That was a long time ago," his wife told a reporter.
McDermott could not be reached for comment.
Agulnick said he is convinced that prosecutors threw the police under the bus.
“Until this day, I say [McDermott] is innocent," he added.
Richard D. Emery, a civil rights lawyer and former chairman of the Civilian Complaint Review Board, which investigates allegations of police misconduct, agreed that the convictions of the two officers was a learning moment for law enforcement in New York City.
“It was a very high-profile scandal,” he said. “Even though it was almost 30 years ago, it had a deep impression on the policing of the public, on the DA and the police department. The lessons they learned from there wouldn’t just disappear.”
Even so, NYPD spokesman Lt. John Grimpel denied that the 1989 case shaped the way officers make groping arrests, noting that sufficient evidence is key to arresting a suspected groper.
"The 1989 incident has no influence on how we patrol subways today," Grimpel said. "When we observe an alleged groper, we detain the individual and we speak to the complainant. If a crime is committed, we arrest the individual. If there's not enough evidence, we make a stop-question-and-frisk report and let the person go."
When asked what police consider enough evidence to prove a groping took place, Grimpel echoed the former assistant U.S. attorney who prosecuted McDermott and Iannacone.
"We need a complainant to articulate a crime for us to arrest an individual," Grimpel said.
The Manhattan District Attorney's office would not comment on the 1989 case or its significance.
"The DA's office does not instruct officers not to arrest [gropers]," a spokeswoman said.
In September 1987, a month before McDermott and Iannacone were sentenced, Emery filed a federal class-action lawsuit against both the New York City Transit Authority and the Manhattan DA's office accusing them of making bad arrests and covering up knowledge of them.
The plaintiffs in Emery’s lawsuit included men arrested by McDermott and Iannacone, and the main plaintiff was a police officer who was arrested while off duty by a transit officer who accused him of groping a woman at the 4/5 Brooklyn Bridge Station.
Emery claimed eight men had been falsely arrested by transit officers while accusing the DA of knowing about it and suppressing that knowledge. And a judge of the Federal District Court in Manhattan awarded the eight accused gropers more than $1 million in damages in a 1991 settlement.
“[Police officers] learned a lesson and have attempted to protect the NYPD from scandals of this type, and I would hope they would incorporate it in their training,” Emery said.
“Patterns and repeated offenses is the only way to effectively prove [guilt].”
With additional reporting by Nicholas Rizzi