A mistrial was declared Monday in the Ann Marie Drago trial. NewsdayTV's Ken Buffa reports. Credit: NewsdayTV

A Suffolk judge declared a mistrial in the case of Ann Marie Drago after the jury failed to reach a verdict on the top count of criminally negligent homicide in the death of Evelyn Rodriguez following four days of deliberation.

State Supreme Court Justice Richard Ambro told the courtroom he believed the jury of seven men and five women was "hopelessly deadlocked" before he released them from jury service.

"I know how hard you worked on this case," Ambro said to the jurors. 

Suffolk County District Attorney Ray Tierney said he intends to bring the case to trial for a third time. Drago's first trial ended in a guilty verdict, though her conviction was later overturned. Former District Attorney Tim Sini had prosecuted the initial case against Drago.

"The death of Evelyn Rodriguez at the memorial she set up for her daughter Kayla was a tragedy," Tierney said in a statement. "It did not have to happen. We respect the work the jury put into this case. We stand prepared to retry the negligent homicide charge."

Tierney added he was "gratified" the jury found Drago guilty of misdemeanor petit larceny in a split verdict announced Friday. She was acquitted of criminal mischief. Those verdicts will stand.

Drago left the courthouse without comment. All 12 jurors declined to be interviewed.

Rodriguez's family was not present Monday, but had attended the trial earlier.

Ambro said Drago will be sentenced on the petit larceny charge, for stealing a bouquet, a poster-sized photo and table from the memorial, on Jan. 12, when he will also discuss with the attorneys how to proceed with the top charge. Defense attorney Matthew Hereth, who sought the mistrial, declined to comment afterward. 

Criminally negligent homicide is punishable by up to 4 years in prison. To be found guilty, a jury must find the defendant acted with criminal negligence and failed to perceive a "substantial risk" that ended in another person's death. 

The jury first indicated it was “solidly deadlocked" on the top count at the close of business Thursday, the second day of deliberations. In total, the jury deliberated for more than 20 hours over four days.

Anti-gang activist Rodriguez and her husband, Freddy Cuevas, had confronted Drago, shouting profanities, for dismantling the memorial for their slain daughter on Ray Court in Brentwood at 4 p.m. on Sept. 14, 2018. The memorial had been set up for a 6 p.m. vigil remembering Kayla Cuevas, whose body was found by Drago's mother in her backyard on that same Brentwood street two years earlier.

Drago was attempting to sell her mother's home at the time and her defense maintained that she had frequently cleaned up items left behind in the past.

The two-week trial featured testimony from 14 prosecution witnesses, many of whom told the jury about memorials that had been set up on the cul-de-sac in the time since the bodies of Cuevas and her friend Nisa Mickens, murdered together by MS-13 gang members, were discovered there.

A neighbor testified Drago, 62, of Patchogue said she was frustrated that day by the memorial when she cleaned it up.

A News 12 reporter alerted Rodriguez after Drago took apart the memorial before she returned to the scene, where the reporter had interviewed her about the vigil earlier that day.

The News 12 video showed Drago initially backed up, stopped, then turned her wheel to the left and drove forward, knocking Rodriguez to the ground and then driving over her. Prosecutors argued she must have seen Rodriguez standing close to her window.

The defense maintained that a step Rodriguez took to the left just as Drago accelerated caused her foot to get stuck under the front driver's side tire. Former Suffolk County Chief Medical Examiner Dr. Michael Kaplan told the jury skull fractures and bruising of the brain from when Rodriguez's head struck the pavement caused her death. 

Suffolk County Assistant District Attorney Laura Newcombe said during closing arguments Wednesday that even if Rodriguez had not taken that step, she would have been struck by Drago’s vehicle. She had positioned herself in the only direction Drago could travel to avoid hitting Rodriguez’s minivan as it blocked Drago's vehicle.

“The defendant failed to perceive the risk when she took her foot off the brake, turned the wheel to the left and hit the gas right in the direction of Evelyn Rodriguez,” Newcombe said.

Hereth said attempting to drive away from the chaotic scene was the only reasonable action for his client to take, as Cuevas and Rodriguez continued to shout expletives at her. 

“Fight or flight,” the defense attorney said. “Freddy and Evelyn were there for a fight, [Drago] was not … Flight was the only reasonable thing to do.”

Newcombe said Drago could have called 911, inched her SUV forward or honked as she was attempting to leave the scene with some of Rodriguez’s belongings in her car and damaged items from the memorial in a nearby trash can.

“She wasn’t fleeing out of fear, she was fleeing out of guilt,” Newcombe said.

Rodriguez, who was 50 at the time of her death, received nationwide attention as an activist for speaking out against MS-13 after she was the guest of then-President Donald Trump during a 2018 State of the Union address and later met with the president that same year when he visited Brentwood to talk about gang violence with local leaders. 

The trial was the second for Drago after her previous conviction was overturned in July 2022, when a state appeals court ruled prosecutors made improper comments to elicit emotions from jurors during her three-week trial before then-acting State Supreme Court Justice Fernando Camacho.

The second trial featured several differences from the first with the defense not calling any witnesses. Drago's previous attorney questioned a psychologist who said she suffered from post-traumatic stress disorder from an earlier attack, which triggered her response on the day of the crash. Ambro also prevented prosecutors from calling on a friend of Rodriguez to testify after the defense contended her testimony served no purpose other than to stir up emotions from the jury.

Drago had been sentenced to 9 months in prison following her previous conviction.

A Suffolk judge declared a mistrial in the case of Ann Marie Drago after the jury failed to reach a verdict on the top count of criminally negligent homicide in the death of Evelyn Rodriguez following four days of deliberation.

State Supreme Court Justice Richard Ambro told the courtroom he believed the jury of seven men and five women was "hopelessly deadlocked" before he released them from jury service.

"I know how hard you worked on this case," Ambro said to the jurors. 

Suffolk County District Attorney Ray Tierney said he intends to bring the case to trial for a third time. Drago's first trial ended in a guilty verdict, though her conviction was later overturned. Former District Attorney Tim Sini had prosecuted the initial case against Drago.

WHAT TO KNOW

  • A Suffolk judge declared a mistrial after a jury was unable to reach a verdict on the top charge against Ann Marie Drago.
  • Drago was accused of criminally negligent homicide in the death of anti-gang activist Evelyn Rodriguez.
  • Suffolk County District Attorney Ray Tierney said he would prosecute the case again.

"The death of Evelyn Rodriguez at the memorial she set up for her daughter Kayla was a tragedy," Tierney said in a statement. "It did not have to happen. We respect the work the jury put into this case. We stand prepared to retry the negligent homicide charge."

Tierney added he was "gratified" the jury found Drago guilty of misdemeanor petit larceny in a split verdict announced Friday. She was acquitted of criminal mischief. Those verdicts will stand.

Drago left the courthouse without comment. All 12 jurors declined to be interviewed.

Rodriguez's family was not present Monday, but had attended the trial earlier.

Ambro said Drago will be sentenced on the petit larceny charge, for stealing a bouquet, a poster-sized photo and table from the memorial, on Jan. 12, when he will also discuss with the attorneys how to proceed with the top charge. Defense attorney Matthew Hereth, who sought the mistrial, declined to comment afterward. 

Criminally negligent homicide is punishable by up to 4 years in prison. To be found guilty, a jury must find the defendant acted with criminal negligence and failed to perceive a "substantial risk" that ended in another person's death. 

The jury first indicated it was “solidly deadlocked" on the top count at the close of business Thursday, the second day of deliberations. In total, the jury deliberated for more than 20 hours over four days.

Anti-gang activist Rodriguez and her husband, Freddy Cuevas, had confronted Drago, shouting profanities, for dismantling the memorial for their slain daughter on Ray Court in Brentwood at 4 p.m. on Sept. 14, 2018. The memorial had been set up for a 6 p.m. vigil remembering Kayla Cuevas, whose body was found by Drago's mother in her backyard on that same Brentwood street two years earlier.

Drago was attempting to sell her mother's home at the time and her defense maintained that she had frequently cleaned up items left behind in the past.

The two-week trial featured testimony from 14 prosecution witnesses, many of whom told the jury about memorials that had been set up on the cul-de-sac in the time since the bodies of Cuevas and her friend Nisa Mickens, murdered together by MS-13 gang members, were discovered there.

A neighbor testified Drago, 62, of Patchogue said she was frustrated that day by the memorial when she cleaned it up.

A News 12 reporter alerted Rodriguez after Drago took apart the memorial before she returned to the scene, where the reporter had interviewed her about the vigil earlier that day.

The News 12 video showed Drago initially backed up, stopped, then turned her wheel to the left and drove forward, knocking Rodriguez to the ground and then driving over her. Prosecutors argued she must have seen Rodriguez standing close to her window.

The defense maintained that a step Rodriguez took to the left just as Drago accelerated caused her foot to get stuck under the front driver's side tire. Former Suffolk County Chief Medical Examiner Dr. Michael Kaplan told the jury skull fractures and bruising of the brain from when Rodriguez's head struck the pavement caused her death. 

Suffolk County Assistant District Attorney Laura Newcombe said during closing arguments Wednesday that even if Rodriguez had not taken that step, she would have been struck by Drago’s vehicle. She had positioned herself in the only direction Drago could travel to avoid hitting Rodriguez’s minivan as it blocked Drago's vehicle.

“The defendant failed to perceive the risk when she took her foot off the brake, turned the wheel to the left and hit the gas right in the direction of Evelyn Rodriguez,” Newcombe said.

Hereth said attempting to drive away from the chaotic scene was the only reasonable action for his client to take, as Cuevas and Rodriguez continued to shout expletives at her. 

“Fight or flight,” the defense attorney said. “Freddy and Evelyn were there for a fight, [Drago] was not … Flight was the only reasonable thing to do.”

Newcombe said Drago could have called 911, inched her SUV forward or honked as she was attempting to leave the scene with some of Rodriguez’s belongings in her car and damaged items from the memorial in a nearby trash can.

“She wasn’t fleeing out of fear, she was fleeing out of guilt,” Newcombe said.

Rodriguez, who was 50 at the time of her death, received nationwide attention as an activist for speaking out against MS-13 after she was the guest of then-President Donald Trump during a 2018 State of the Union address and later met with the president that same year when he visited Brentwood to talk about gang violence with local leaders. 

The trial was the second for Drago after her previous conviction was overturned in July 2022, when a state appeals court ruled prosecutors made improper comments to elicit emotions from jurors during her three-week trial before then-acting State Supreme Court Justice Fernando Camacho.

The second trial featured several differences from the first with the defense not calling any witnesses. Drago's previous attorney questioned a psychologist who said she suffered from post-traumatic stress disorder from an earlier attack, which triggered her response on the day of the crash. Ambro also prevented prosecutors from calling on a friend of Rodriguez to testify after the defense contended her testimony served no purpose other than to stir up emotions from the jury.

Drago had been sentenced to 9 months in prison following her previous conviction.

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