Ann Marie Drago arrives at Suffolk County Court in Riverhead...

Ann Marie Drago arrives at Suffolk County Court in Riverhead on Tuesday morning. Credit: Tom Lambui/Tom Lambui

The prosecution and defense rested Tuesday in the retrial of Ann Marie Drago, the Patchogue woman accused of criminally negligent homicide in the 2018 death of anti-gang activist Evelyn Rodriguez.

Former Suffolk County Chief Medical Examiner Michael Kaplan was the final witness to testify, telling the jury Rodriguez’s Sept. 14, 2018, death was the result of a fractured skull and bruising in her brain sustained when her head slammed to the pavement of Ray Court in Brentwood after her foot got caught under the front driver’s side tire of Drago’s SUV as she began to drive away from a confrontation.

Defense attorney Matthew Hereth of the Legal Aid Society of Suffolk County opted to not call a defense witness, instead using the final moments of cross examination to play a slow-motion video depicting a step Rodriguez took in the direction of Drago’s front tire.

During cross examination, Kaplan testified that step was an important factor in determining there was no intent by Drago to hurt Rodriguez.

Kaplan described the encounter as a “rapidly escalating crisis situation” as Rodriguez and her husband, Freddy Cuevas, confronted Drago for dismantling a memorial set up for a vigil marking the second anniversary of the discovery of their slain daughter’s body on that same Brentwood street. Federal prosecutors said Kayla Cuevas, 16, and her friend Nisa Mickens, 15, were killed by MS-13 gang members.

The confrontation two years later between Rodriguez and Freddy Cuevas and Drago was captured on video by a crew with News 12.

The decision to not call witnesses was a deviation from the defense in the previous trial of Drago, who was found guilty of criminally negligent homicide, petit larceny and criminal mischief in March 2020 but had her conviction overturned last year.

Stephen Kunken, Drago’s previous attorney, called a psychologist who testified she was being treated for post-traumatic stress disorder at the time of the crash and that it triggered a physiological reaction known as a fight or flight response. Another psychiatrist appearing as a prosecution rebuttal witness at the first trial countered that Drago’s “behavior was not impaired at all.”

Hereth referred to “fight or flight” in his opening statement of the current proceeding, when he said Drago did “exactly what any reasonable person under those circumstances would do.”

Suffolk County Assistant District Attorney Emma Henry, who is assisting lead trial prosecutor Laura Newcombe, said during their opening that Drago’s actions “fell short” of what a reasonable person would do.

“It is unreasonable to turn the wheel, hit the gas and run somebody over,” she said.

Drago, 62, is again charged with misdemeanor petit larceny and criminal mischief for dismantling the memorial and taking some of its contents.

She had previously been sentenced to 9 months in state prison, and she rejected a plea offer from State Supreme Court Justice Richard Ambro to serve 90 days to avoid a second trial, which was scheduled after an appellate court determined a previous prosecutor had engaged in misconduct during the original three-week proceeding.

Evelyn Rodriguez talks to the Brentwood School Board during a meeting...

Evelyn Rodriguez talks to the Brentwood School Board during a meeting in 2016. Credit: Danielle Finkelstein

Rodriguez, of Brentwood, had set up the memorial in front of the vacant home of Drago’s mother, who discovered the remains of Kayla Cuevas in her backyard on Sept. 14, 2016.

The defense has contended Drago was unaware of a planned vigil and was cleaning up the memorial as she had done with items left behind at the site in the past.

Rodriguez, who was 50 at the time of her death, became known for her anti-gang work on the national stage in the aftermath of her daughter’s slaying. She later met with then-President Donald Trump and was a White House guest at a State of the Union address.

Closing arguments are scheduled for Wednesday morning.

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