Suffolk prosecutors intend to retry a Patchogue woman for criminally negligent homicide in the death of anti-gang activist Evelyn Rodriguez after an appellate court recently overturned her 2020 guilty verdict.
Suffolk County District Attorney Ray Tierney said in a statement released to Newsday shortly after Ann Marie Drago appeared in a Riverhead court Monday that his office will prosecute her again.
"We intend on moving forward with the case," he said.
State Supreme Court Justice Richard Ambro released Drago, 61, on her own recognizance after her court conference and set her next appearance for Sept. 28.
Drago got out of jail a week after she started serving a 9-month jail sentence in early 2021 when the trial judge granted her release on bail while her appeal was pending.
Ambro on Monday also appointed attorney Matthew Hereth from the Legal Aid Society of Suffolk County to represent Drago. Hereth declined to comment on the case after court except to say the case "potentially" would go to trial.
A Legal Aid official said recently that the agency, which represented Drago in her appeal, would respect whatever decision Tierney made about the case. The district attorney also could have challenged the appellate decision in a higher court or moved to dismiss Drago's indictment.
Drago left court Monday without commenting.
Her appearance followed the appellate court’s decision in July to toss the verdict after finding a prosecutor mischaracterized evidence related to the homicide charge and made other improper comments in his closing argument, depriving her of a fair trial.
Drago ran over Rodriguez, 50, with her Nissan Rogue during a September 2018 confrontation in Brentwood over a memorial for Rodriguez’s slain 16-year-old daughter, Kayla Cuevas.
Federal prosecutors have alleged Kayla and her 15-year-old friend, Nisa Mickens, fell victim to deadly violence from MS-13 gang members who still await trial.
Rodriguez, a Brentwood resident, had set up a memorial in front of the home of Drago’s mother before a vigil that was planned to mark the 2-year anniversary of the discovery of Kayla’s remains on the property.
But then Rodriguez suffered a fractured skull and brain injury less than 300 feet from that location in an encounter News 12 Long Island recorded on video.
Drago, a nurse, said at her sentencing she was sorry for what she called “an instinctive decision” that caused Rodriguez’s “very tragic and unnecessary death.”
The defendant, who also was convicted of criminal mischief and petit larceny, pledged then to “take my punishment, whatever the court decides.”
Rodriguez’s daughter, Kelsey Cuevas, told Newsday in an exclusive interview after court Monday that she hopes Drago will get more time behind bars now. She also expressed frustration that the case is back in court.
"I just felt like it was Sept. 14th all over again," Cuevas said after Monday's conference, speaking of the day her mother — and two years earlier her sister — died.
Monday marked the first time Cuevas, who recently had a likeness of her mother's high school graduation portrait tattooed on her right arm, saw Drago since her sentencing.
"I just hope justice is served. That's all I want. I just want my mom to be in peace and I just want to be in peace. And I feel like I won't be until she's behind bars where she's supposed to be," Cuevas said of Drago.
Cuevas lobbied publicly last month for Tierney, who wasn't district attorney when Drago went on trial, to prosecute the case following the appellate court's decision.
Drago’s former attorney, Stephen Kunken, had told jurors during her trial that the crash on Sept. 14, 2018, was a “tragic accident.” He said Drago had feared for her life after Rodriguez and Freddy Cuevas, Rodriguez’s partner and Kayla’s father, ran up to her Nissan and shouted expletives while pointing at her.
The defense argued Drago believed Rodriguez was out of the Nissan’s path after Rodriguez moved slightly to the left.
Prosecutors told jurors Rodriguez took a step forward at the same time Drago accelerated, before Rodriguez hit the ground and went under the Nissan.
Prosecutors also said the grieving parents, without physical threats or showing any weapons, demanded the return of items Drago stole from a memorial for Kayla — some visible in the Nissan.
Drago dismantled the memorial in front of her mother’s home because she didn’t want to scare off potential buyers of the property who were due to visit, according the Suffolk County District Attorney’s Office.
But now-former prosecutor Marc Lindemann erred in his closing argument, according to the appellate court.
It found he denigrated defense theories as “excuses” and “garbage” and “continually evoked sympathy for Rodriguez” by calling her “the grieving mother” and referencing her “murdered daughter.”
The prosecutor also had encouraged jurors to consider the defendant’s actions in allegedly removing the memorial — conduct not related to her actions behind the wheel — when deciding if Drago committed criminally negligent homicide, the court found.
Lindemann, now a deputy county attorney defending Suffolk in civil litigation, previously has declined to comment on the appellate decision.
Prosecutor Maggie Bopp, who took Drago's case to trial with Lindemann, told the judge Monday that by week's end she would give the defense any additional records that the prosecution needed to turn over ahead of a new trial.