Ann Marie Drago, left, is awaiting sentencing for causing the death...

Ann Marie Drago, left, is awaiting sentencing for causing the death of anti-gang activist Evelyn Rodriguez, right. Credit: Newsday File

Suffolk prosecutors say the "abhorrent actions" of a Patchogue nurse demand prison time after she caused anti-gang activist Evelyn Rodriguez’s death by driving over her during a 2018 confrontation involving a Brentwood memorial for the victim’s slain daughter.

But an attorney for Ann Marie Drago, 60, has asked a judge to give her a sentence of probation and community service following her conviction last year for criminally negligent homicide, and two misdemeanors, petit larceny and criminal mischief.

The contrasting arguments have emerged in legal filings before the defendant’s sentencing, scheduled for March 4. By law, Drago faces up to 1 1/3 to 4 years in prison for the homicide conviction.

Prosecutor Marc Lindemann wrote in a Jan. 5 pre-sentence memorandum that the Suffolk district attorney’s office tried to show "an evenhanded commitment to justice" throughout the case while continuing "to seek the truth of the tragic events of September 14, 2018."

But he said the "egregious pointlessness" of Drago’s behavior in the dispute over the memorial combined with "her vicious mean-spiritedness, and her unconscionable and repeated failure to take responsibility for her actions" merited a sentence of 1 to 3 years in prison for her criminally negligent homicide conviction.

The prosecutor also recommended that Drago be sentenced to two one-year sentences, to be served at the same time as the punishment on the top count, for her misdemeanor convictions.

But defense attorney Stephen Kunken said his proposed no-prison sentence for Drago "would best serve the interests of justice, since the defendant does not pose any threat to the community, has no prior history of arrests nor convictions, and was not convicted of intentionally or recklessly causing the death of Evelyn Rodriguez."

Ann Marie Drago, center, leaves a Central Islip courtroom in...

Ann Marie Drago, center, leaves a Central Islip courtroom in March 2020. Credit: James Carbone

Kunken said after the judge’s November ruling that Drago plans to appeal her conviction following her sentencing.

The recent motions follow Acting State Supreme Court Justice Fernando Camacho’s refusal in November to dismiss Drago’s criminally negligent homicide conviction or to set aside the entire verdict after a Suffolk jury in March found her guilty in Rodriguez’s death.

Two alleged gang killings before violent encounter

The fatal encounter happened on the same block where federal prosecutors say Rodriguez’s 16-year-old daughter Kayla Cuevas, and Kayla’s 15-year-old friend Nisa Mickens, fell victim to a deadly MS-13 gang attack two years earlier.

Anti-gang activist Evelyn Rodriguez addresses the Brentwood School Board in...

Anti-gang activist Evelyn Rodriguez addresses the Brentwood School Board in November 2016. Credit: Danielle Finkelstein

Rodriguez became an activist who spoke out against gang violence, putting her in a public spotlight that included her testifying at a 2017 congressional hearing and being recognized by President Donald Trump during a State of the Union address.

Exactly two years after the recovery of Kayla’s body, Drago ran over Rodriguez with her Nissan Rogue on Ray Court during a confrontation that News 12 Long Island captured on a video that became key evidence at Drago’s trial.

The defense contended the crash was a "tragic accident."

But prosecutors said during the trial that Drago stepped on the gas, knocking down Rodriguez and running her over with both driver’s side tires, after Rodriguez and Freddy Cuevas — Kayla’s father and Rodriguez’s partner — approached the Nissan.

The couple demanded the return of items from a memorial, including a portrait of Kayla in her Junior ROTC uniform and a flower wreath.

What the trial showed

The prosecution said the grieving parents made no physical threats and had no weapons when approaching the Nissan and demanding back the stolen items from the memorial Rodriguez set up in front of Drago’s mother's home, which was for sale.

The defense contended that Drago eased the Nissan up, believing Rodriguez was out of her vehicle's path after the woman moved slightly to the left.

Kunken also told jurors that Drago suffered from PTSD after a psychiatric patient attacked her at work years earlier. He said she feared for her life after the couple ran up and shouted expletives while pointing at her on the day of the deadly confrontation.

Rodriguez had set up the memorial to mark the 2-year anniversary of the discovery of Kayla’s remains, before a vigil planned for that evening that News 12 intended to cover.

A News 12 reporter’s phone call brought the parents to the scene after Drago dismantled the memorial. Prosecutors said Drago did so to make sure potential buyers who were due to visit her mother’s home weren’t scared off.

Drago’s mother testified during the trial that she had found Kayla’s remains in her yard in September 2016. It was a discovery she said then often drew mourners to her property who constantly left behind items the police told her it was her responsibility to clean up.

The defense contended during the trial that those items included not only balloons and flowers, but burning candles, pizza boxes and liquor bottles, and that the cleaning task ultimately became Drago’s.

The defendant "led a law-abiding life" and didn’t intend to steal or destroy any property or harm anyone that day, Kunken also said in his pre-sentence memo.

"She reacted to what she perceived to be a genuine threat to her safety," the defense attorney added.

Kunken said any incarceration for Drago "would serve no useful purpose and would not serve the interests of justice," but would cause "severe psychological trauma" to a "very vulnerable" woman.

He also said a no-prison sentence would allow Drago, a single mother who raised twin sons while putting herself through nursing school, to continue her mental health counseling along with her commitment to helping an elderly patient.

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