County officials have closed the case surrounding a Harrison police lieutenant who accidentally discharged a .223 caliber assault rifle amid a high-profile sting operation last October, finding no basis for criminal prosecution.
During the arrest of three suspects who were wanted in connection with an interstate burglary ring, Harrison Police Lt. Vito Castellano‑a 15-year police veteran and county firearms instructor‑accidentally fired two shots from his department-issued LMT Guardian 2000 assault rifle, striking a suspect and a fellow officer in the fracas.
“The evidence indicates that Lt. Castellano fired his weapon accidentally and not intentionally,” said Westchester Public Safety Commissioner George Longworth.
This story first appeared in the May 10, 2013 edition of the Harrison Report
According to reports obtained from the county Department of Public Safety, after Castellano deployed a flash bang grenade, he recognized that the safety of his weapon had accidentally been turned off. Performing a “finger sweep” in an attempt to return the safety back on, he accidentally misfired.
The Oct. 17, 2012 felony vehicle stop that led to the arrests of Daniel DiBiase, Paul DiBiase and Jason Foskey was executed by members of the Harrison Police Department, FBI and other law enforcement agencies came together after a long-term investigation into a spree of residential burglaries across the region. Law enforcement surveillance including electronic GPS tracking and audio interception were conducted up to and including the time of the arrests.
Although citing probable cause for apprehending the suspects during the felony vehicle stop, county investigators blacked-out their reasoning from the reports.
Westchester County Police Captain Christopher Calabrese explained in a report on the officer-involved shooting investigation, that based on the trajectory of the bullets into the seatback of the vehicle driven by the suspects, the rifle was at Castellano’s waist and not a shouldered position.
“This was an extremely high stress felony stop that presented the police with the very real possibility of encountering violently armed suspects,” Calabrese said. “Castellano did not indicate that he had any reason or justification to fire at the suspects, but indicated that he, in fact, did not intend to fire.”
The investigation into the incident included ballistics reports, photographs from the scene, and written statements from 11 responding Harrison police officers, three suspects and one eyewitness whose name was redacted from the file.
According to several eyewitness accounts, Castellano called out that he had an “A.D.,” or accidental discharge, moments after firing his rifle, striking suspect Daniel DiBiase, 55, and Harrison Police Det. Stephen Barone.
Police Officer Steven Palais, who was positioned five feet behind Lt. Castellano at the time, told county investigators he witnessed the muzzle flash from Castellano’s rifle just seconds before Det. Barone fell to the ground.
After being knocked to the ground from the force of the shots, Barone was escorted to Greenwich Hospital, where he was treated for injuries to his left arm, left wrist, face and eyes.
Upon his return to police headquarters, Barone found holes in his raid jacket and ballistics vest worn during the incident. After further inspection, he found a bullet lodged in his Kevlar jacket.
Although the ballistics report cited evidence of discharge in the barrel of Castellano’s rifle, senior firearms examiners reported that the bullet and fragments recovered were “insufficient” to identify or eliminate whether the slug in Barone’s vest was from the rifle.
Manufactured by Lewis Machine and Tool Company, a supplier of weaponry for U.S. military, law enforcement and government agencies, the .223 caliber Guardian 2000 that Castellano carried can interchangeably switch from semi to fully automatic firing.
According to the report from Capt. Calabrese, the model of rifle Castellano‑a left-handed shooter‑used is designed with a switch setup for right-handed shooters and does not offer an alternative setup for lefties.
“The complexity of a left-handed shooter manipulating the left side selector switch with the trigger finger in a real encounter needs to be considered and weighed toward the actual outcome of shots being fired,” Calabrese said. “There is no basis for criminal charges against Vito Castellano in this case…Case closed.”
Lucian Chalfen, a spokesman for the Westchester County District Attorney, first told The Harrison Report last month that, after reviewing the reports, the county has no basis to move forward with criminal charges.
According to published reports, DiBiase suffered a collapsed lung from the bullet and has filed a notice of claim in advance of an anticipated $5 million lawsuit against Harrison.
The three suspects have been charged in connection with a series of burglaries including two notable incidents in Bedford and New Canaan, Conn., and are being held without bail as of press time.