When a Patchogue woman destroyed a memorial to Evelyn Rodriguez’s slain teenager daughter, she “took a piece of Evelyn’s heart,” a prosecutor said Tuesday in his closing argument at the trial of the driver who killed the grieving mother.
But when Ann Marie Drago got caught on a Brentwood street with those stolen memorial items, she then “took a risk that took Evelyn’s life," prosecutor Marc Lindemann also told jurors at the motorist's criminally negligent homicide trial.
Drago, 59, piloted her 3,000 pound Nissan Rogue forward despite seeing Rodriguez, 50, five feet from her windshield — killing the Brentwood woman "with criminal negligence" exactly two years after the body of her daughter was found on the same block, Lindemann said.
But Drago's attorney, Stephen Kunken, insisted in his closing argument ahead of jury deliberations that began later Tuesday that the encounter was an "unfortunate accident."
He said his client "was scared to death" when Rodriguez and her partner, Freddy Cuevas, ran up to her Nissan and threatened her amid an "onslaught" of curses.
Kunken insisted that Drago, a registered nurse suffering from post-traumatic stress disorder following a 2008 patient attack, didn't have the criminal state of mind then to commit homicide.
He also pointed to a 911 call his client made from the scene in which she said in part that Cuevas had tried to attack her.
“That’s her state of mind,” Kunken said. “…What was going on was this instinctive need to get away."
Prosecutors say the heartbroken parents had demanded the return of items Drago stole from a memorial for their late 16-year-old daughter, Kayla Cuevas, before Drago accelerated and ran over Rodriguez.
The mother had set up the memorial that included flowers, a portrait of Kayla in her Junior ROTC uniform and balloons in front of the home of Drago's mother ahead of a vigil.
It had been planned for 6 p.m. to mark the second anniversary of the discovery of the teen's remains in the backyard of Drago's mother, and a News 12 Long Island crew that was on scene to cover the event recorded video of Drago running over Rodriguez.
Federal prosecutors say Kayla and her friend Nisa Mickens, 15, died in a beating by MS-13 members who are awaiting trial. Rodriguez became outspoken about gang violence following her daughter's death.
Suffolk prosecutors say Drago, also standing trial for criminal mischief and petit larceny, dismantled the memorial in front of her mother's Ray Court home because she didn't want to scare off potential buyers who were due to visit.
But the defense claims Drago was in charge of maintaining her mother's property and a town ordinance required her to clean an area where mourners constantly left items including pizza boxes and liquor bottles.
The defense also contends Drago eased the Nissan forward to try to escape as part of a "fight or flight response" when she believed Rodriguez and Cuevas had moved away from the vehicle's front.
Acting state Supreme Court Justice Fernando Camacho explained the legal definition of criminally negligent homicide, the top charge, three times before the jury began deliberating about 3:15 p.m.
To convict Drago of that top charge, jurors must find she caused Rodriguez's death with criminal negligence. Under the law, that would mean Drago acted in a way that created a "substantial" and "unjustifiable" risk that Rodriguez would die, that she failed to perceive that risk and that it was a "gross deviation" from a reasonable person's standard.
Camacho also told jurors they could consider Drago's contention that she suffers from PTSD, major depressive disorder and panic disorder.
The jury sent its first note to Camacho after about 30 minutes. Panelists asked to hear the law again on criminally negligent homicide and criminal mischief and to review Drago's prior testimony — from a 2018 grand jury proceeding.
The jury also asked to see the ordinance regarding property and sidewalk maintenance and for a police report from an officer who testified that wasn't evidence.
Deliberations will continue Wednesday.