A Suffolk judge has dismissed a charge of criminally negligent homicide against a PSEG truck driver accused of texting while driving when he crashed head-on into another motorist last year, killing her.

Suffolk prosecutors said Michael Pepe's texting with his girlfriend was criminally negligent, but state Supreme Court Justice Fernando Camacho ruled the evidence presented to a grand jury didn't support that charge.

Pepe, 54, of Bayport, was driving south on Flanders Road in Flanders on Jan. 16, 2014, when his truck crossed over the double-yellow line and collided with a Ford Explorer driven by Barbara Ann Tocci, 47, of Hampton Bays. Tocci died at the scene.

StoryLawyer: PSEG worker was texting before crash

A witness said the truck seemed to be avoiding "conspicuous potholes" in its lane, Camacho wrote in his decision, issued last week.

Pepe's attorney, Steven Epstein of Garden City, said an accident reconstruction showed that hitting a large pothole actually redirected the truck's path into the opposite lane.

However, Susan Tocci, the victim's sister, said Monday she doubted that.

advertisement | advertise on newsday

"If his eyes were on the road, he would have seen the pothole," she said. "If his hands were on the wheel, he could have corrected properly."

An examination of Pepe's work and personal phones showed he last sent a text message to his girlfriend at 7:52 a.m. and received a text a minute later, but didn't open it.

The crash happened at 7:57 a.m., "approximately five minutes after the evidence shows the defendant last handled his phone," Camacho wrote.

That's too great a time gap to sustain the criminally negligent homicide charge, which carries a maximum sentence of 2 1/3 to 7 years in prison, the judge ruled.

"The focus must be on the defendant's conduct, and not the results, no matter how tragic," Camacho wrote. "Here, the defendant was traveling within the posted speed limit on a road that he was aware contained potholes and he was not intoxicated or impaired by alcohol or drugs. There was no evidence presented that the defendant was texting, reading or talking on his personal cellular phone at the time of the accident."

A spokesman for the Suffolk County district attorney's office said it would not appeal the decision, further disappointing Tocci's family.

Epstein said Pepe is relieved by the ruling and confident he will be acquitted of the remaining charges of reckless driving, a misdemeanor, and use of a portable electronic device while driving, a traffic infraction. Epstein said Pepe was driving at 53 mph, 2 mph under the speed limit, so his driving couldn't be reckless. The maximum penalty for reckless driving is a year in jail.

"This decision starts to right the ship," Epstein said. "The grand jury indicted him for something he didn't do."