Experts: Cop's death on LIE is tough case

Legal experts say it won't be easy for Nassau prosecutors to prove that James Ryan is responsible for the death of Nassau highway patrolman Joseph Olivieri, when it was another driver who fatally struck the officer on the Long Island Expressway.

To persuade a jury to convict Ryan, 25, of Oakdale, of vehicular manslaughter, prosecutors will need to show that Ryan was driving drunk and that he should reasonably have foreseen that doing so could lead to the tragedy that occurred.

According to police, Ryan, who prosecutors say had a blood alcohol above the legal limit, struck a car but kept driving until he stopped abruptly and was rear-ended by another car in the predawn hours of Thursday near Exit 35. When Olivieri, 43, responded to the scene to help, the officer crossed the highway on foot and was hit by a Cadillac Escalade, police said. The driver of that vehicle is not expected to be charged with a crime.

Prosecutors say the facts of the case support a vehicular manslaughter charge for Ryan, who was released on $125,000 bail, but several lawyers and legal experts said making the case will be an uphill battle.

"The connection is too remote," said Jim Cohen, a criminal law professor at Fordham University. "To get a conviction, there has to be a close connection between the defendant's conduct and the police officer's death, and the connection in this case isn't nearly close enough." Too many events occurred between the time when Ryan crashed and Olivieri was fatally struck by the SUV, Cohen said.

John Byrne, a spokesman for Nassau District Attorney Kathleen Rice, said Ryan's reckless behavior clearly led to Olivieri's death.

"James Ryan took the wheel drunk, fled an accident scene, crashed again, and Officer Olivieri was killed while trying to help him," said Byrne. "There's no question that this defendant's recklessness was the primary cause of this tragedy."

As an example of a similar case in which the state's highest court has upheld a conviction, Byrne cited a 1970 crime in which two men were convicted of murder after leaving a third man drunk, without his glasses or shoes, in the dark on the side of a highway near Rochester. The abandoned man was hit by a truck, and the two men were convicted of his murder.

Byrne said in that case, the state's top court found that the ". . . ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused." Byrne said Ryan similarly should have foreseen the consequences of his actions.

But Fred Klein, a criminal law professor at Hofstra Law School who served for 12 years as Nassau's Major Offense Bureau Chief, said prosecutors will have to prove that Ryan should have foreseen not only that driving drunk could result in someone's death, but also that he could have crashed, and a police officer responding could have been killed by another motorist.

"I think it's a very big stretch to find him criminally responsible for the officer's death," Klein said.

Bill Kephart, a Garden City criminal defense lawyer, said if Ryan is held responsible for Olivieri's death, it would mean that anyone being pulled over by a police officer for a traffic offense, could be held criminally responsible for any harm that befell the officer during the stop.

The evidence in the case will also make a big difference as to whether Ryan will be convicted, said criminal defense lawyer Michael DerGarabedian, of Rockville Centre. If Ryan is found to have had a high level of alcohol in his blood or if witnesses saw him acting recklessly in the time leading up to the tragedy, it could support the prosecutors' case. Ryan had a blood-alcohol level of 0.09 percent two hours after the crash, prosecutors said. The legal limit is 0.08 percent.

"They would have to have more than just the average evidence," DerGarabedian said.

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