By Daniel Katzive
Most of the attention at the Manhattan Criminal Courthouse at 100 Centre Street this week has been on the trial of Donald J. Trump. But a few floors up from the main event, another case of local importance was playing out.
On Thursday, a judge found an NYPD officer not guilty of misdemeanor assault charges stemming from an October, 2021 incident at the Upper West Side Apple Store, involving officers from the 20th Precinct.
The case centered on a single punch delivered by Officer Salvatore Provenzano, a 17-year veteran of the force, to the side of the head of Kamal Cheikhaoui, a member of the public who had been asked to leave the store and was being escorted out. Provenzano’s attorney said the punch was an instinctive act of self-defense in response to the man pulling away suddenly from Provenzano and raising his elbow. The prosecution argued that the officer acted in anger and the punch was an unjustified assault.
There was little dispute over the details of the incident, most of which were captured by police body cameras and described in testimony by officers, security guards, and Cheikhaoui. Police had been called to the Broadway and West 67th Street store to assist security guards in dealing with Cheikhaoui, who they said had been causing difficulty.
After a lengthy negotiation, an officer and an NYPD lieutenant put their hands on Cheikhaoui to guide him out. But when Officer Provenzano also put a hand on his arm, Cheikhaoui appeared to pull away suddenly and turn, at which point Provenzano lashed out, striking Cheikhaoui. Cheikhaoui cried out dramatically and fell to the the floor, as Provenzano and other officers jumped on and struggled to handcuff him. Provenzano’s partner sprayed Cheikhaoui in the face with pepper spray.
Provenzano’s attorney, Stuart London, argued that his client was reacting to a perceived threat of violence and that when Cheikhaoui jerked away, the officer expected to be hit. London called this a “visceral reaction” and said it was hardly a punch. He pointed out that Cheikhaoui had no visible injury to his head, though he did later go to the hospital for treatment of the effects of the pepper spray.
London pointed to testimony from the security guards saying they saw Cheikhaoui raise his arm suddenly before Officer Provenzano’s punch. He highlighted body-camera footage that captured Provenzano, asked by another officer after the incident, “What the hell happened?” saying, “He swung at me so I hit him,” while shaking his hand in apparent discomfort.
Prosecutors argued the single punch was not justified and constituted an assault. “Force is a legitimate and essential tool [for law enforcement], but only in accordance with the law,” said Assistant District Attorney Jana Loeb in the people’s opening statement. She emphasized that Cheikhaoui was not violent, not threatening, and not under arrest at the time of the punch, and that he had been persuaded to leave and was heading for the door.
Summing up the prosecution’s case at the end of the trial, Assistant District Attorney Tavish DeAtley said the video footage did not support London’s assertion of a visceral self-defense reaction, but actually showed Provenzano pulling back his hand and lunging forward in to strike Cheikhaoui in the face as he turned away towards the door. He argued that the officer appeared to have “lost his cool” in response to the long, frustrating stand-off and Cheikhaoui’s defiant act of pulling away. He noted that Provenzano injured his hand from the punch and went to the hospital for x-rays, which the prosecutors said was inconsistent with London’s assertion that Provenzano hardly hit Cheikhaoui.
Officer Provenzano had waived his right to a jury trial in this case and it was solely up to Judge Maxwell Wiley to determine his fate. The officer did not take the stand in his own defense, and passed up an opportunity offered at his July 2023 arraignment to plead guilty to harassment, a violation, deciding instead to go to trial for misdemeanor assault.
Judge Wiley found Provenzano not guilty of third degree assault as well as the lesser charge of attempted third degree assault. In delivering the verdict, Wiley said that, while he does not normally comment on verdicts, in this instance he wanted to communicate “I don’t think [the district attorney’s office] was wrong to bring the case.”
Police Benevolent Association president Patrick Hendry disagreed and strongly criticized District Attorney Alvin Bragg for bringing the case, saying “Manhattan prosecutors need to stop wasting time and resources targeting cops over nonsense and start working with us to address real public safety issues.”
In a statement following the verdict, Bragg said, “We work in close partnership with the NYPD every day and I have immense respect for the officers in uniform.” He thanked the prosecutors for their hard work and the judge “for his careful and thoughtful consideration of this matter.”
Provenzano has been on modified duty, assigned to the NYPD’s quartermaster section since his indictment last summer. He still faces a departmental trial to determine whether he acted appropriately and in accordance with NYPD policies and procedures. Cheikhaoui has a civil lawsuit pending in Federal court against all the officers present, as well as Apple, New York City, and the store’s security company.
Subscribe to West Side Rag’s FREE email newsletter here.
Cop clearly punches gut in the face as he was leaving. Did anyone think the justice system would penalize one of their own.? The PBA should be liable for such incidents. When they get sued repeatedly and go broke then the police behavior may change,
I pick up stuff at that store about once a year. Sometimes prepaid, sometimes purchased on the spot which takes longer. Never had an issue that required the staff to call half a platoon on me, just to get me to leave. Never had anything that important to get, nor a service that essential that I couldn’t find elsewhere. Never had to argue with 5 men about anything of major importance, just to convince me to walk away, nor throw physical tantrums around the store. Never had to make rapid movements half a yard away from an armed man. “Leaving” the store never required so much drama.
Funny how that worked out for me.
If you wonder why NYC and the UWS are unsafe, it’s stuff like this when you have a radical liberal like Alvin Bragg who time and time again releases violent criminals out of jail and or reduces the charges to misdemeanor so as not to affect their immigration status. This Cop was doing his job and Bragg went after him for political purpose. The same reason he is going after Trump. Now we know what George Soros got for his 1 Million bucks. This Cop will be fine although Bragg’s stunt did cost him tens of thousands of dollars. I have to think what happens the next time this cop or any cop who knows this story sees someone he feels is going to cause problems or assault someone. Might be a good time to get that cup of coffee, wait for the call. Then drive safely to the crime, and take the report.
George Soros is your boogie-man?
This is the same Apple Store where an angry man pushed my husband out of his way.
Security called NYPD. They didn’t allow him to make a “purchase”, escorted to the street and the store personnel told him not to return.
Thankful for the intervention of the NYPD.
This article notes that both the Trump business records trial and this one were being handled in the same building at the same time. Alvin Bragg is prosecuting these trials at a time when I don’t let any female in my household go outside at night on the Upper West Side unless I accompany her. Great—just great.
Perhaps this is why some police officers don’t bother to intervene in situations. They really have no upside and the cost to them is more even if they prevail. Sad times we live in.
Funny, how this article forgot to mention that the man caused a threatening disturbance before, was banned from the store, repeatedly entered, harassed shoppers, threw food all over the floor, and refused to leave when ordered to by store security. He was a threat to all the patrons and the cops as well. I would love to know the perp’s rap sheet and I think that should be published as well.
Thank you for adding this info! I didn’t understand some of the comments posted here. Now it makes more sense.
Bragg’s indictment of Mr. Cherry the man who subdued a disturbed man on the subway is another example of Bragg’s tone deaf and unexplainable record. His record was preordained before his election when too many UPWSiders chose to ignore his flaws. We were warned.
Are you referring to Daniel Penny, the former marine who killed a mentally disturbed man on the subway after putting him in a chokehold and holding it for more than FIVE MINUTES even after the other man lost consciousness and other riders implored him to stop because he was clearly going to kill Mr. Neely? That is far more than just “subduing” someone.
Disappointed in Judge Wiley not thinking the District Attorney’s office was not wrong in prosecuting Police Officer Provenzano. I think a reprimand of the DA for bringing such minutiae before the court when there are real crimes and criminals to be prosecuted.
These are absolutely the types of complaints the DA should be bringing to trial. If there’s a reasonable question as to whether a police officer has used excessive force – then that’s what the DA’s office is obligated by law to pursue.
The NYPD has cost city taxpayers 500 MILLION DOLLARS in police misconduct settlements over the past 6 years.
Taxpayers paid for 115 MILLION DOLLARS in police misconduct settlements last year alone.
There’s a problem with our police force in the city.
You can both be supportive of the NYPD, while also demanding better accountability and performance.
Jack, did you just move to NYC? Corporation Council has been a check writer for decades. Just because the city pays it does not mean the NYPD did anything wrong. NYC should adopt the Walmart strategy, try to sue Walmart, you will die of old age before you see a dime. Lawyers don’t want to go up against Walmart because they know they will fight tooth and nail. The worst attorney in the state can and do sue the city because they know it’s free money. The City can not retain good Cops because they get zero support. Jack, you say you support the NYPD, but do you? Of course not as do not many New Yorkers and Cops know that, That is why the NYPD can not fill a class, not even close. Jack it you want to make a difference call 212 RECRUIT.
So these frivolous cases should be prosecuted. Good police officers doing their job should be subjected to the trauma of arrest and prosecution, suspension, loss of pay and respect. This is why NYPD has a recruitment problem. The DA was privy to all the evidence in this case and could plainly see, as the judge did, that there was no crime here. This is where the waste of our taxes. The DA would better serve us in prosecuting the real criminals.
Maybe police settlements should not be funded by taxpayers?
Maybe if the city wouldn’t be so quick to settle and fight the frivolous money grabbing ambulance chasing lawyers many cases would not be brought. Suing the city has become a quick payday.