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Attorneys spar over Suffolk murder charge in wrong-way fatal crash

There’s no question that a Sound Beach man committed a crime when he drove drunk the wrong way on Sunrise Highway and killed a man, but attorneys differed Friday on whether that crime was murder.

Both sides agree that Christopher O’Brien, 56, was intoxicated early on the foggy morning of Dec. 23, 2015 and that he drove east in the westbound lanes of Sunrise Highway, ultimately crashing into and killing Thomas D’Eletto, 57, an Aquebogue project engineer heading to work in Nassau County.

Suffolk prosecutors charged O’Brien with second-degree murder, arguing at a two-week trial in Central Islip that he acted with depraved indifference to human life.

State Supreme Court Justice Fernando Camacho, who is hearing the case without a jury, declined to dismiss the murder charge Friday morning, but did dismiss a charge of aggravated vehicular homicide. He ruled that testimony about retrograde extrapolation — a formula used to estimate how intoxicated O’Brien was hours before his blood-alcohol level was tested — did not show he was over the 0.18 percent threshold for that charge.

In his closing argument, defense attorney Scott Gross of Hauppauge told the judge there also wasn’t evidence that O’Brien had the state of mind necessary for a murder conviction, which carries a maximum penalty of 25 years to life in prison. If O’Brien instead is convicted of second-degree manslaughter, that carries a maximum of 5 to 15 years.

“We are not asking for a pass,” Gross said. “We are not arguing actual innocence. We are asking you to hold him accountable for what he did, but not for what he didn’t do.”

Gross noted that witnesses said the fog that morning was the worst they’d ever seen. That and poor signage near Sunrise Highway could have led O’Brien to end up going the wrong way by accident. That alone would show this is not murder, Gross said.

Gross also said O’Brien avoided cars before the crash.

“He swerved,” Gross said. “The antithesis of depravity is moving, getting out of the way.”

But Assistant District Attorney Marc Lindemann said O’Brien didn’t get out of the way — he just missed. Several drivers testified they felt O’Brien was tracking them, and one witness said it seemed like O’Brien’s Audi A4 aimed at D’Eletto’s Toyota Corolla.

“The defendant made a beeline for Thomas and hit Thomas head-on,” Lindemann said.

“He realized the risks he was running by driving in this condition, and he kept going,” Lindemann said, adding that the fog was a further inducement to pull over.

“The defendant knew he was endangering other people,” Lindemann said. “The driver knew he was a menace, but said ‘Screw it,’ and kept going.”

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