Suffolk DA's office: Ann Marie Drago has not accepted plea offer in anti-gang activist Evelyn Rodriguez's death

The nurse whose conviction for criminally negligent homicide in the death of anti-gang activist Evelyn Rodriguez was overturned in July has not accepted a plea offer from a Suffolk judge for a 9-month sentence to avoid a second trial, the Suffolk County District Attorney’s Office told Newsday on Monday.

The offer from State Supreme Court Justice Richard Ambro is for the same sentence Ann Marie Drago, of Patchogue, was serving when she was released after just one week in prison while her appeal was pending.

A spokesperson for District Attorney Ray Tierney’s office told Newsday the “offer of nine months remains.”

Drago, 62, made a brief appearance Monday before Ambro, who said the case remains on “a trial track” as he granted an adjournment to Jan. 23.

Drago and her appointed legal aid attorney, Matthew Hereth, declined to comment as they left the Riverhead courtroom Monday morning.

Drago was convicted in 2020 for killing Rodriguez by driving over her on the same Brentwood street where Rodriguez's daughter Kayla Cuevas was killed, allegedly by MS-13 gang members, two years earlier. Drago’s conviction was overturned in July, when a state appeals court ruled prosecutors made improper comments during her three-week trial. 

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." That language included saying she made “conscious, blameworthy choices," the court wrote in its decision. 

The ruling added that the prosecutor “continually evoked sympathy for Rodriguez by calling her a 'grieving mother' and referencing her 'murdered daughter' while the prosecutor 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.'" 

Tierney announced in August that his office would retry the case. The district attorney also could have challenged the appellate decision in a higher court or moved to dismiss Drago's indictment.

Prosecutor Maggie Bopp, who took Drago's case to trial with Lindemann, remains on the case. Lindemann now works as a deputy county attorney.

Drago ran over Rodriguez, 50, with her Nissan Rogue during a September 2018 confrontation in Brentwood over the memorial for Rodriguez’s slain 16-year-old daughter.

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 trial.

Drago said at her sentencing that she was sorry for what she called “an instinctive decision” that caused Rodriguez’s “very tragic and unnecessary death.”

The defendant, who also was convicted of criminal mischief and petit larceny, pledged then to “take my punishment, whatever the court decides.”

Drago’s former attorney, Stephen Kunken, had told jurors during her trial that the crash on Sept. 14, 2018, was a “tragic accident.” He 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.

The defense argued Drago believed Rodriguez was out of the Nissan’s path after Rodriguez moved slightly to the left.

Prosecutors told jurors Rodriguez took a step forward at the same time Drago accelerated, before Rodriguez hit the ground and went under the Nissan.

Rodriguez’s daughter, Kelsey Cuevas, had lobbied publicly for Tierney, who was not yet district attorney when Drago went on trial, to prosecute the case following the appellate court's decision.

Rodriguez received nationwide attention as an activist for speaking out against MS-13 after she was the guest of then-President Donald Trump during a 2018 State of the Union address and later met with the president that same year when he visited Brentwood to talk about gang violence with local leaders. Federal prosecutors have alleged Kayla and her 15-year-old friend, Nisa Mickens, fell victim to deadly violence from MS-13 gang members who still await trial.

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.