Ann Marie Drago, whose conviction in death of anti-gang activist Evelyn Rodriguez was overturned, rejects deal to avoid second trial
A Patchogue nurse previously convicted in the 2018 death of Brentwood anti-gang activist Evelyn Rodriguez rejected a judge's offer Monday to avoid a second trial and serve a 90-day prison sentence.
Ann Marie Drago, 62, whose conviction was overturned on appeal in 2021, said she would prefer to again stand trial for criminally negligent homicide before Suffolk Supreme Court Justice Richard Ambro in Riverhead this month.
"You nonetheless want to go to trial?" Ambro asked Drago after offering her 90 days in prison, 90 days of community service and five years probation if she pleaded guilty prior to the start of jury selection.
"Yes, yes," Drago responded.
Ambro confirmed with Drago that her attorney, Matthew Hereth, deputy bureau chief of the Legal Aid Society of Suffolk County, had communicated the offer to her previously, as well as a prior offer from the judge to serve the nine months in prison she was sentenced to following her conviction in March 2020.
Drago is accused of killing Rodriguez by driving over her on the same Brentwood street where Rodriguez's daughter, Kayla Cuevas, was killed by MS-13 gang members two years earlier.
Opening arguments are expected Oct. 10 and to last through Oct. 20, Ambro told the six jurors selected Monday. An additional 75 prospective jurors were dismissed for a range of reasons, including prior knowledge of the case or conflicts with work and school.
Ambro ruled Monday that autopsy photographs shown to the jury at Drago's first trial, which the defense called "particularly gruesome and graphic," would not be permitted this time. The judge said he agreed with the defense that the potential to prejudice the jury "far outweighs any probative value."
Ambro will, however, allow Drago's grand jury testimony to be read during trial with portions where prosecutors refer to Rodriguez as a "grieving mother" or Cuevas as her "murdered daughter" being redacted.
Drago’s conviction was overturned in July 2022 when a state appeals court ruled prosecutors made improper comments during her 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 ruling added that the prosecutor, who is no longer with the district attorney's office, “continually evoked sympathy for Rodriguez by calling her a 'grieving mother' and referencing her 'murdered daughter.' The prosecutor also continually denigrated the defense, referring to defense theories, repeatedly, as 'excuses,' and also as 'garbage,' and he falsely and provocatively claimed that the 'defense repeatedly argued that the death of Kayla … was an inconvenience and a nuisance,'" the appellate court found.
Rodriguez, a Brentwood resident, had set up the memorial in front of the home of Drago’s mother before a vigil that was planned to mark the two-year anniversary of the discovery of Kayla’s remains on the property.
Rodriguez suffered a fractured skull and brain injury less than 300 feet from that location in an encounter that News 12 Long Island recorded on video, a key piece of evidence that was played for the jury at the first trial and will again be played this time around.
Hereth warned prospective jurors that the video evidence will be difficult to watch. "It's horrible," he said in asking them to still consider that just because the incident was graphic does not mean it was criminal.
At her previous sentencing, Drago said it was “an instinctive decision” that caused Rodriguez’s death. Her former attorney, Stephen Kunken, said Drago had feared for her life after Rodriguez and Freddy Cuevas, Rodriguez’s partner and Kayla’s father, ran up to her Nissan and shouted expletives while pointing at her.
Jury selection will continue Tuesday.
A Patchogue nurse previously convicted in the 2018 death of Brentwood anti-gang activist Evelyn Rodriguez rejected a judge's offer Monday to avoid a second trial and serve a 90-day prison sentence.
Ann Marie Drago, 62, whose conviction was overturned on appeal in 2021, said she would prefer to again stand trial for criminally negligent homicide before Suffolk Supreme Court Justice Richard Ambro in Riverhead this month.
"You nonetheless want to go to trial?" Ambro asked Drago after offering her 90 days in prison, 90 days of community service and five years probation if she pleaded guilty prior to the start of jury selection.
"Yes, yes," Drago responded.
WHAT TO KNOW
- Six jurors were selected Monday to serve in the second trial of a Patchogue woman previously convicted in the 2018 death of Brentwood anti-gang activist Evelyn Rodriguez.
- Ann Marie Drago, 62, whose conviction was overturned on appeal in 2021, will stand trial again for criminally negligent homicide before Suffolk Supreme Court Justice Richard Ambro in Riverhead.
- Drago on Monday rejected a judge's offer to avoid a second trial and serve a 90-day prison sentence. Opening statements in the new trial are scheduled for Oct. 10.
Ambro confirmed with Drago that her attorney, Matthew Hereth, deputy bureau chief of the Legal Aid Society of Suffolk County, had communicated the offer to her previously, as well as a prior offer from the judge to serve the nine months in prison she was sentenced to following her conviction in March 2020.
Drago is accused of killing Rodriguez by driving over her on the same Brentwood street where Rodriguez's daughter, Kayla Cuevas, was killed by MS-13 gang members two years earlier.
Opening arguments are expected Oct. 10 and to last through Oct. 20, Ambro told the six jurors selected Monday. An additional 75 prospective jurors were dismissed for a range of reasons, including prior knowledge of the case or conflicts with work and school.
Ambro ruled Monday that autopsy photographs shown to the jury at Drago's first trial, which the defense called "particularly gruesome and graphic," would not be permitted this time. The judge said he agreed with the defense that the potential to prejudice the jury "far outweighs any probative value."
Ambro will, however, allow Drago's grand jury testimony to be read during trial with portions where prosecutors refer to Rodriguez as a "grieving mother" or Cuevas as her "murdered daughter" being redacted.
Drago’s conviction was overturned in July 2022 when a state appeals court ruled prosecutors made improper comments during her 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 ruling added that the prosecutor, who is no longer with the district attorney's office, “continually evoked sympathy for Rodriguez by calling her a 'grieving mother' and referencing her 'murdered daughter.' The prosecutor also continually denigrated the defense, referring to defense theories, repeatedly, as 'excuses,' and also as 'garbage,' and he falsely and provocatively claimed that the 'defense repeatedly argued that the death of Kayla … was an inconvenience and a nuisance,'" the appellate court found.
Rodriguez, a Brentwood resident, had set up the memorial in front of the home of Drago’s mother before a vigil that was planned to mark the two-year anniversary of the discovery of Kayla’s remains on the property.
Anti-gang activist Evelyn Rodriguez addresses the Brentwood School Board in November 2016. Credit: Danielle Finkelstein
Rodriguez suffered a fractured skull and brain injury less than 300 feet from that location in an encounter that News 12 Long Island recorded on video, a key piece of evidence that was played for the jury at the first trial and will again be played this time around.
Hereth warned prospective jurors that the video evidence will be difficult to watch. "It's horrible," he said in asking them to still consider that just because the incident was graphic does not mean it was criminal.
At her previous sentencing, Drago said it was “an instinctive decision” that caused Rodriguez’s death. Her former attorney, Stephen Kunken, said Drago had feared for her life after Rodriguez and Freddy Cuevas, Rodriguez’s partner and Kayla’s father, ran up to her Nissan and shouted expletives while pointing at her.
Jury selection will continue Tuesday.
Grant Parpan covers Suffolk County courts and federal courts for Newsday. A Long Island native, he joined Newsday in 2022.
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