Ann Marie Drago retrial: Prosecutors say woman charged in death of Evelyn Rodriguez 'did the unthinkable'

Ann Marie Drago turned her wheel in the direction of the enraged parents of a murdered teenager and hit the gas when they confronted her on a Brentwood street after seeing stolen items memorializing their daughter inside her SUV, a prosecutor said Tuesday during opening arguments in the Patchogue woman's second trial for criminally negligent homicide.

"The defendant did the unthinkable," Assistant Suffolk County District Attorney Emma Henry said of Drago's actions on the afternoon of Sept. 14, 2018. "She took her foot off the brake, turned the wheel and hit the gas when Evelyn Rodriguez was standing just inches away."

The prosecutor said Rodriguez, who had set up a memorial at the site earlier that day in advance of a vigil that was to be attended by elected officials and the media that evening, got one of her feet caught under a front tire as she stepped forward just as Drago accelerated her Nissan Rogue. The vehicle crushed Rodriguez's body as Drago drove over her.

But defense attorney Matthew Hereth countered that his client was "shocked, confused and terrified" as Rodriguez and husband Freddy Cuevas approached her vehicle shouting curses. He described the Brentwood couple as "aggressive" and "threatening" and said his client did "exactly what any reasonable person under those circumstances would do."

"Fight or flight," Hereth told the jury of seven men and five women.

Hereth, deputy bureau chief with the Legal Aid Society of Suffolk County, described the encounter as a "terrible, unforeseeable accident."

He told the jury that video of the altercation captured by a crew with News 12, which had filmed an interview with Rodriguez at the site earlier that day, "is the case."

The defense attorney said he believes the video will show that Drago did not act criminally when she drove away from what he described as "an attack" by Rodriguez and Cuevas.

"It's graphic, it's horrible, but the video is clear," Hereth said. "The video leaves no question."

Prosecutors are expected to play the video of the encounter for the jury for the first time Wednesday.

Henry, who will try the case before state Supreme Court Justice Richard Ambro along with fellow Assistant District Attorney Laura Newcombe, said Drago had other options, including honking her horn, calling the police or simply inching forward as she looked to leave the area with her boyfriend that day. Rodriguez suffered a fractured skull and neck after she was run over, and bruising in her brain caused her death, Henry said.

"The actions of [Drago] were outside the boundaries and fall short of what a reasonable person in that situation would do," Henry said. " … It is unreasonable to turn the wheel, hit the gas and run somebody over."

The encounter took place outside Drago's mother's home on Ray Court in Brentwood, where the body of Rodriguez's slain daughter, Kayla Cuevas, was found exactly two years earlier. Cuevas, 16, and her friend Nisa Mickens, 15, were killed by MS-13 gang members, and their bodies were believed to be dumped at the site on Sept, 14, 2016.

Rodriguez, who gained national attention as an anti-gang activist in the aftermath of her daughter's death, had set up a memorial commemorating the second anniversary of the killings before Drago arrived and dismantled it, Henry said. The memorial featured a floral arrangement, an enlarged photo of Kayla the family kept by its fireplace, balloons, candles and an easel, prosecutors and witnesses said.

Drago is also facing misdemeanor charges of criminal mischief for destroying some of the items in the memorial and petit larceny for taking others and placing them in her car, leading to the confrontation.

Hereth said Drago had received a call from a real estate agent who had listed the house, which was in contract to be sold, and asked to clean up the property the day of the altercation. He said Drago was unaware of a vigil planned for later that evening and was simply doing what she was asked to do when she took the memorial down."

Following opening arguments, the jury heard testimony from three witnesses: an EMT who was among the first responders at the scene, a Suffolk police evidence specialist and a family friend of Rodriguez who helped clean up around the memorial before Drago's arrival.

The trial's first day was attended by another of Rodriguez's three daughters, Kelsey Cuevas, who did not comment afterward. 

The trial is the second for Drago, 62, after her previous conviction was overturned in July 2022 when a state appeals court ruled a previous prosecutor, under then-District Attorney Timothy Sini, made improper comments during Drago's three-week trial before then-acting state Supreme Court Justice Fernando Camacho.

The four-judge panel of the Brooklyn-based New York Supreme Court Appellate Division said prosecutor Marc Lindemann, during his summation, “mischaracterized the evidence relating to the charge of criminally negligent homicide and confused the jury by repeatedly using language to suggest that the defendant’s conduct in striking Rodriguez with the vehicle was intentional or reckless." The prosecutor also evoked sympathy, the appellate court found. 

By Grant Parpan

grant.parpan@newsday.com@GrantParpan

Grant Parpan covers Suffolk County courts and federal courts for Newsday. A Long Island native, he joined Newsday in 2022.