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Judge: Murder count stays in fatal Sayville crash

Thomas Herman, 46, of Patchogue, is led out

Thomas Herman, 46, of Patchogue, is led out of the Fifth Precinct in Patchogue for arraignment in connection with a fatal hit and run on Jan. 13 in Sayville. (Jan. 16, 2013) Credit: James Carbone

A Suffolk judge has declined to dismiss a murder count against a Patchogue man charged with killing another motorist while driving at a high speed and intoxicated by a variety of illegal drugs.

State Supreme Court Justice Fernando Camacho ruled that the indictment against Thomas Herman, 46, is legally sufficient and the case can continue as is. Herman is accused of driving at speeds close to 100 mph through downtown Sayville in January while high on oxycodone, morphine, Xanax and PCP.

He plowed head-on into a car driven by Sam Longo, 82, of West Islip, killing him and injuring his passenger, Agnes Gilbert, 80, of Oakdale, police said.

Defense attorney William Keahon of Hauppauge said he doubts the recent spate of vehicular fatalities charged as murders will survive appellate review.

Two Long Islanders, Martin Heidgen and Franklin McPherson, have been convicted of murder in such cases. In 2005, Heidgen drove drunk the wrong way on the Meadowbrook Parkway and crashed head-on into a limousine, killing Katie Flynn, 7, and driver Stanley Rabinowitz. McPherson drove drunk the wrong way on the Southern State Parkway in 2007 and killed Leslie Burgess in a head-on crash.

In addition to Herman, Suffolk District Attorney Thomas Spota also has a murder charge pending against Michael Grasing, 31, of Babylon. He's accused of killing Brittney Walsh, 18, in a crash on June 24, 2012, in Lindenhurst while driving drunk.

"I think this issue will be resolved, favorably," by the Court of Appeals, Keahon said. It's a legal stretch to claim that a vehicular fatality can be considered a murder committed by depraved indifference to human life, he said, which is used more typically when someone fires a weapon indiscriminately and kills someone.

"If they can prove what they claim they have [in the Herman case], the highest charge is manslaughter," Keahon said.

Spota disagreed. He has said Herman's recklessness amounts to depraved indifference.

"When you hit one, two, three, four, five cars beforehand, you're going 80 to 100 mph, you're on the wrong side of the road, you just don't care," Spota said at the time of Herman's indictment. "It's murder. It sure is."

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