Two lifelong friends of the man who allegedly drove into a group of Boy Scouts last year, killing a 12-year-old, said Tuesday that the driver had three vodka drinks during a round of golf before the crash but was not visibly intoxicated.
But the friends, Christopher DiMaria of Holbrook, and Raymond O'Brien of Maspeth, also testified during the second week of Thomas Murphy's trial in Riverhead that they did not see the Scouts from Troop 161 venture out into David Terry Road from the shoulder before the accident. Murphy's defense attorney, Steven Politi, contends the "poorly supervised" Boy Scouts were struck while walking out on the road, which included a nearly 20-foot spot near the crash site that lacked a fog lane to protect pedestrians.
Prosecutors contend Murphy, 60, of Holbrook, spent the morning of Sept. 30 downing vodka at the Swan Lake Golf Course in Manorville before driving his Mercedes SUV into the Scouts, killing Andrew McMorris of Manorville and injuring three others.
Murphy has pleaded not guilty to a 16-count indictment charging him with aggravated vehicular homicide, assault and driving while intoxicated. If convicted, he faces 8 1/3 to 25 years in prison.
DiMaria, a former NYPD officer and retired FDNY firefighter, testified that he brought a partially filled bottle of vodka to the course and that he, Murphy and O'Brien had about three drinks apiece during the round.
But DiMaria said he did not believe that Murphy, who he identified as one of his best friends, was intoxicated when they left the course, located about a mile-and-a-half from the crash scene.
"I wasn't concerned about him driving at that point," DiMaria told the jury of seven men and five women.
Last week, another friend of Murphy, Steven Meola of Astoria, part of the golfing foursome on the day of the crash, testified that he offered to drive Murphy home because he thought his friend was "drunk," slurring his words and having difficulty walking.
Prosecutors contend DiMaria brought an open 1.75 liter bottle of Svedka vodka — filled around one third with booze — to the golf course, where they began drinking it with iced tea or Gatorade around the 10th hole. O'Brien, an MTA bus driver, testified that he believed the bottle was smaller — about the size of a wine bottle — and was about one-quarter filled with vodka.
Murphy, prosecutors said, did not eat during the round and stopped playing after about six holes. Murphy also made several videos on his cellphone during the round which were played for the jury. The videos showed the men dancing to music while Murphy, who was narrating, could be heard slurring some of his words.
DiMaria said he poured at least two drinks from the vodka bottle for himself, Murphy and O'Brien while Meola, who does not drink alcohol, had soda. Murphy, he said, then purchased three more mini vodka bottles on the 16th hole for himself and the two other golfers.
But O'Brien said Murphy was steady while operating the golf cart and did not appear intoxicated before getting into his Mercedes.
"I thought he was fine," O'Brien said. "Knowing Mr. Murphy as long as I have, I was not concerned."
Prosecutors said Murphy refused a Breathalyzer test at the crash scene, and when his blood was drawn hours later after a warrant was obtained, it registered 0.13 blood alcohol content. Forensic toxicologists estimate it was 0.19% at the time of the crash — more than double the legal standard of 0.08%.
The two men also testified Tuesday that the Scouts, who were on a 20-mile hike, were clearly visible to motorists as they were walking in a line on the shoulder of the roadway in brightly colored clothing.
DiMaria said that when he approached the group he changed lanes, moving over to the left lane "as a courtesy" for the kids.
But O'Brien, driving behind Murphy in a 2011 Honda Pilot with Meola in the passenger seat, said he saw the Mercedes veer to the right before the crash and wondered out loud "what the [expletive] is he doing?"
O'Brien testified that Murphy called him two days after the crash and told him that the kids "came out of nowhere."
McMorris died 14 hours after the crash while Thomas Lane, of Shoreham, his older brother Denis Lane and Kaden Lynch of Calverton suffered serious injuries.
DiMaria and O'Brien each testified that they stopped at the crash scene to offer help but did not identify themselves to police or the victims as friends of Murphy.
"I had a few drinks also and I just wanted to move on," DiMaria testified, conceding that he was concerned about his own legal and civil liability for the crash. DiMaria later hired an attorney.
O'Brien said when he approached Murphy at the crash scene his friend was obviously concerned.
"He said 'Ray, Ray. Am I in trouble?' " O'Brien said. "I responded, 'You might be.' "
The trial continues Wednesday.