Defense wants verdict set aside in Suffolk gang activist death case

A Patchogue woman's lawyer has asked a judge to set aside a verdict convicting her of crimes including criminally negligent homicide in the death of anti-gang activist Evelyn Rodriguez.

Separately, the new motion from Ann Marie Drago’s attorney also asks acting state Supreme Court Justice Fernando Camacho to dismiss that top charge — saying there wasn’t enough evidence to prove it.

A Suffolk County jury in March convicted Drago, 59, of the homicide count, criminal mischief and petit larceny after once again watching a video that News 12 Long Island captured of her driving over Rodriguez — a key piece of evidence in the trial.

Suffolk District Attorney Timothy Sini called the trial's outcome "a just result" on the day of the verdict. “We will oppose the motion, and are confident that the jury’s verdict will stand," a Sini spokeswoman said Thursday of the defense's court filing.

Drago’s lawyer, Stephen Kunken, contends the verdict should be set aside — paving the way for a new trial — because of issues he says require the reversal of the jury’s decision as a matter of law.

The judge’s failure to appoint a special prosecutor and disqualify Sini and his staff from handling the case “created an impermissible appearance of impropriety due to a conflict of interest,” the Commack attorney’s motion says.

Kunken argued before the trial that Sini had a close personal and professional relationship with Rodriguez, 50, of Brentwood, who served on his transition team after he was elected district attorney and at whose funeral he gave a eulogy.

Their relationship started after Rodriguez began crusading against gang violence following the 2016 slayings of her 16-year-old daughter, Kayla Cuevas, and Kayla's friend, 15-year-old Nisa Mickens — allegedly at the hands of MS-13 members.

Police recovered Kayla’s body on the Ray Court property of Drago's mother exactly two years before Drago drove over Rodriguez on the same block during the deadly confrontation on Sept. 14, 2018, that led to Drago’s arrest.

The judge ruled before Drago’s trial that while there was "certainly a potential appearance of conflict,” that conflict didn’t warrant the removal of Sini’s office from the case.

Kunken also contends the verdict should be set aside because a 911 call News 12 reporter Eileen Lehpamer made after Drago drove over Rodriguez shouldn’t have been admitted into evidence. 

Kunken said it wasn't relevant to proving Drago's conduct and it was wrong for the jury to hear the entire call — full of “cursing, crying and anguished wailing” — from Rodriguez’s longtime partner, Freddy Cuevas.

For the jury to convict Drago of criminally negligent homicide, they had to find she caused Rodriguez’s death and did so with criminal negligence. That means 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.

The defense asked the judge to dismiss the top charge before jury deliberations, but Camacho said he would decide after the verdict.

Drago is facing up to 1⅓ to 4 years in prison.

Evidence showed Rodriguez and Cuevas, Kayla’s father, approached Drago’s Nissan Rogue and demanded the return of some items from a memorial for the slain teen that were in the vehicle.

Rodriguez had set up the memorial ahead of a second anniversary vigil planned for that evening that News 12 was going to cover.

Prosecutors said Drago dismantled the memorial in front of her mother's home because she didn't want to scare off potential buyers of the property.

They said Rodriguez took a step forward as Drago accelerated, pulling Rodriguez under the Nissan, after the parents didn’t make any physical threats or display any weapons.

But the defense said Drago feared for her life when the couple ran up, shouting expletives and pointing. Kunken said Drago was trying to flee when she drove forward — believing Rodriguez and Cuevas had moved away.

The defense also claimed Drago, a nurse, was suffering from post-traumatic stress disorder following a 2008 patient attack, and it triggered a fight or flight response.