August 15, 2022


Legal With Effect

Why didn’t grand jury indict Mac’s Public House owner for assault? Lawyer thinks he knows.

STATEN ISLAND, N.Y. — The mayor said he was “shocked” when a Staten Island grand jury last week declined to indict the owner of a Grant City pub on assault and related charges after he ran into a sheriff’s deputy with his Jeep.

The city sheriff said Daniel Presti, a co-owner of Mac’s Public House, should be behind bars for injuring the deputy early on the morning of Dec. 6. Presti was trying to flee an arrest for defying city and state coronavirus (COVID-19) restrictions, authorities alleged.

No one will know exactly what went through the individual panel members’ minds when they voted to charge Presti with two misdemeanor counts of violating the state’s Alcohol Beverage Control laws, and nothing else.

Grand jury proceedings are secret, and members are not allowed to discuss them.

But Presti’s lawyer thinks he knows what likely swayed the panel in his client’s favor: Presti’s testimony.

And a video of the incident which shows Presti’s Jeep hitting the deputy, who wound up clinging to the hood as Presti kept driving.

Many thought the video would have resulted in Presti’s indictment for felony assault.

Attorney Mark J. Fonte believes the opposite is true. The video actually helped his client, he said.

“The grand jury believed that Dan did not know these were sheriff’s officers,” said Fonte, who was present when Presti testified before the panel. “They believed a crime was not committed. He kept saying, ‘Why would I run from the sheriffs?’ He wanted to get a summons or arrested. An additional arrest would help his cause and garner publicity.”

The grand jury’s role is to determine whether there is enough evidence to bring charges against a person for trial.

It does not decide on that person’s guilt or innocence.


For several months, Mac’s Public House has been a flashpoint in protests against government-imposed coronavirus restrictions.

In posted signs, the bar declared itself an autonomous zone as of Nov. 20, stating it wouldn’t abide by any rules and regulations issued by the governor or mayor, a civil complaint alleges.

The tavern’s liquor license was suspended on Nov. 27.

Mac’s has been hit with dozens of summonses and thousands of dollars in fines over the course of several weeks for allegedly violating COVID-19 restrictions.

A summons on Dec. 6 would have rallied even more support for the bar, said Fonte.

“He would not have run from it,” the lawyer insisted.

At a press conference on Monday, Presti, 35, said the deputies did not identify themselves.

He said he ran to his Jeep, which parked on South Railroad Avenue, while being chased “in the middle of a night on a dark street.”

Said Fonte: “He told the grand jury he was not going to die on Railroad Avenue. He thought these unidentified people were trying to kill him.”

“Dan repeatedly told (the grand jury) if they had identified themselves as sheriffs he would have stopped in his tracks and taken the summons,” said Fonte. “The blame for this lies squarely at the feet of the sheriff.”

Fonte said Presti was unnerved because of an incident that occurred the previous night on Dec. 4.

A group of people had gathered outside Mac’s Public House. They yelled obscenities, broke bottles and banged on the tavern’s doors trying to get inside, the attorney said.

911 was called, police arrived and took someone in a squad car, said Fonte, who along with lawyer Louis Gelormino, represents Presti.

In an email, the Police Department said an individual was taken that day from outside the bar to Staten Island University Hospital, Ocean Breeze, for evaluation. No one was arrested, said police.

Fonte said Presti feared the deputies might be members of that group.

New York City Sheriff Joseph Fucito has insisted the deputies identified themselves as police and ordered Presti to stop.

And the videos of the incident presented to the grand jury should have sealed the deal on a felony indictment, he maintained.

According to Advance/ reports, the video, previously released by the defense, showed the deputy being knocked onto hood.

The officer clung on as Presti drove down South Railroad, then turned left twice — onto Lincoln Avenue and then North Railroad Avenue — before a sheriff’s car stopped him, a criminal complaint alleges.

Fonte contended an unmarked car with tinted window — which, he presumed was a sheriff’s vehicle — had forced Presti to make those turns.

Afterward, Presti was arrested on various charges, including felony counts of assault and reckless endangerment, as well as misdemeanor counts of resisting arrest, unlawfully fleeing a police officer and obstructing governmental administration.

Due to the secrecy of the grand jury proceedings, it’s unclear exactly what charges were put to the panel. But presumably some, if not all, were similar to those levied at the time of Presti’s arrest.

Another factor that may have worked in Presti’s favor: Staten Island is the most conservative borough, and Mac’s has garnered considerable support for opposing the coronavirus restrictions.

Conversely, the mayor, governor and the Legal Aid Society, a public-defender group, had all criticized District Attorney Michael E. McMahon for not seeking bail after Presti’s arrest.

Legal Aid contended McMahon’s handling of the case to that point demonstrated the “preferential treatment” in the court system toward “white New Yorkers with means.”

In response, McMahon said then he intended to “fully prosecute this matter based on the facts and evidence.”

He said it was wrong “to assume that bail is indicative of what the outcome of a criminal case will be or how strongly my office will work to pursue justice.”

An additional variable may have played into the grand jury’s decision: The number of members who voted on the indictment.

Again, because of the confidential nature of the panel’s work, it’s unknown is how many grand jurors voted.


A grand jury consists of up to 23 members; at least 16 are needed for a quorum.

After a quorum convenes, at least 12 members must agree there is enough evidence for charges to be brought against the defendant.

If less than 12 panelists vote to formally charge the accused person with a crime, those charges are dismissed.

Theoretically, then, the smaller the quorum, the lesser number of dissenting votes are needed for charges to be dropped.

It’s unknown how many grand jurors voted on Presti’s case.

Regardless of the math, Fucito contended Presti should have been charged with assault.

“Let’s be very clear, Mr. Presti is not the victim here, the injured deputy sheriff is,” Fucito said on Monday. “The multiple evidence videos submitted to the grand jury clearly showed deadly physical force was deployed against a uniformed deputy sheriff for carrying out his duty.”

After the incident, Fucito initially said the sheriff’s officer suffered two leg fractures.

Fonte, however, said medical records, which prosecutors subsequently turned over to the defense, showed the officer didn’t suffer any broken bones.

Grand jury spared Mac's Public House owner of serious charges stemming from confrontation with sheriff's deputies

Daniel Presti, left, and Mark J. Fonte, one of his lawyers, share a hug in Fonte’s office on Jan. 22, 2021.

On Monday, Fucito said the deputy’s injuries were misdiagnosed by an emergency room physician. Even so, the officer had sustained injuries from which he’s still recovering, said Fucito.

He remains out of work.

“[He’s] the victim of a crime, an assault using deadly physical force, and his attacker calling for anyone’s resignation is genuinely absurd,” said Fucito.

Owing to the grand jury’s secrecy, it’s unclear exactly which witnesses prosecutors called on to testify.

But sheriff’s deputies were presumably among them.

Defendants are not allowed to call witnesses. They are also not required to testify.

However, if a defendant chooses to testify, as Presti did, he can have an attorney present in the grand-jury room.

But only while he’s testifying.

The lawyer can advise the defendant during his testimony but can’t ask questions, make objections or address the grand jury.

Grand jurors, though, may ask questions about the law. They may also question witnesses about the evidence.

The panel can also request prosecutors to call witnesses or recall witnesses who have already testified.

Because of the proceeding’s secrecy, it’s unclear exactly what evidence prosecutors presented to the grand jury. Likewise unknown is what questions or requests, if any, the grand jury made during the presentation.


Presti’s case likely wasn’t the only one the panel heard.

Grand juries on Staten Island typically serve for four weeks. They usually convene for several days during each of those weeks, but not every day.

During that time, the panel hears multiple cases.

Presti’s case was likely among a number which the grand jury voted on.

In a statement issued after the grand jury’s vote, McMahon, the D.A., said he intends to pursue the two charges against Presti and hold him accountable under the law.

The D.A. said his staff has worked with the sheriff’s office, the NYPD and other agencies since the outset of the investigation.

Prosecutors, he said, “vigorously pursued all facts and evidence, and made every effort to present that evidence fairly and impartially to the grand jury, as is our obligation and duty to the people of Staten Island.”

McMahon said his office does not take acts of violence against the sheriff’s deputies lightly.

“My thoughts and prayers continue to be with the deputy sheriff injured during the performance of his duty in the early morning hours of Dec. 6 of last year in Grant City,” said McMahon.

The D.A. said he could not disclose further information on the case, citing the confidentiality of grand jury proceedings.