A judge expects to rule Wednesday on whether jurors will hear about text messages from Joseph Beer's cellphone after a trooper changed his testimony about where he found the device at the crash scene where four teens died.
Beer's lawyer is asking Nassau County Judge David Sullivan to exclude the texts from the aggravated vehicular homicide trial, arguing that police illegally seized the phone.
Prosecutors say Beer, then 17, was high on marijuana and speeding without a license on the Southern State Parkway in Lakeview when he caused the Oct. 8, 2012, crash that killed four friends from Queens. The defense says that while Beer had smoked marijuana, the drug didn't impair his driving.
Beer's attorney, Todd Greenberg, has said the texts separately discussed smoking marijuana in a car and speeding on prior occasions, and prosecutors want to use them to show criminal recklessness.
State Trooper Eduardo Arias testified at a Monday hearing that he found Beer's phone on the driver's seat, saying he was mistaken when he said previously under oath that he found it on the ground.
An NYPD detective testified Tuesday that he saw Beer on the grass shoulder and holding what appeared to be a cellphone when he came upon the crash scene on his way to work.
Det. Ronnie Wilkerson said he called 911 and waved traffic around bodies that were in the road. He said Beer nodded when he asked if he was the driver, and he saw him put his hands to his head as if in shock.
During cross examination, Wilkerson told Assistant District Attorney Michael Bushwack that he believed the device was a cellphone, but it could have been an iPod touch or a small iPad. Wilkerson said he didn't see anyone take an electronic device from the wreckage.
Bushwack told the judge that police didn't do an unreasonable search, and while authorities found Beer's phone on the seat, the crashed vehicle was in pieces and "not a vehicle in the classic sense."
Greenberg asked the judge to suppress evidence linked to the phone, arguing Arias' testimony wasn't credible. "It's tailored testimony now," he said.
Beer, 19, of South Richmond Hill, Queens, faces up to 25 years if convicted.