Supporters of Evelyn Rodriguez ask Suffolk DA to retry case

Supporters of the late anti-gang activist Evelyn Rodriguez on Tuesday called on Suffolk County District Attorney Ray Tierney to retry the Patchogue woman whose conviction in Rodriguez’s death was overturned by an appeals court last week.

“Please Ray Tierney, I need justice for my mother,” sobbed Rodriguez’s daughter, Kelsey Cuevas, who stood outside the district attorney’s office in Hauppauge with a small crowd of supporters. “Please just give me that.”

Last week, a state appeals court overturned the 2020 conviction of Ann Marie Drago, who was found guilty during a jury trial of criminally negligent homicide, criminal mischief and petit larceny in connection with Rodriguez’s 2018 death. Drago, 61, of Patchogue, ran over Rodriguez, 50, of Brentwood, with her car during a dispute over a memorial to Rodriguez’s younger daughter, Kayla Cuevas, on the two-year anniversary of the 16-year-old’s killing, allegedly by MS-13 gang members.

Drago was sentenced to nine months in jail, but was released a week into her sentence after the trial judge granted a stay of her sentence while her conviction was appealed.

Tierney, who took office after the Drago prosecution, said in a statement Tuesday: “After reviewing the decision, we immediately contacted and then met with the family of Evelyn Rodriguez. We will continue to communicate with the family while we evaluate the case to decide how to best proceed.  We will have no further public comment until after the next court date on August 8.”

The appellate division’s ruling vacated the conviction, but Drago’s indictment on the charges still stands. Tierney has not said publicly whether he intends to prosecute Drago, a nurse, for a second time or whether he’ll seek to dismiss the indictment. Drago is scheduled to appear next month before Supreme Court Justice Richard Ambro in Suffolk County Court in Riverhead in connection with the charges. Tierney could also seek to appeal the appellate division's decision to the New York Court of Appeals, the state's highest court. 

 Bryan Browns, the chief legal operations officer for the Legal Aid Society of Suffolk County, which represented Drago on her appeal, said in a statement: “The decision is going to come down to the discussions DA Tierney has with the families involved and his own attorneys. We will respect whatever decision is made.” 

The appeals court cited the trial summation delivered by ex-Suffolk County Assistant District Attorney Marc Lindemann as the basis for overturning the conviction, saying Lindemann delivered “improper comments” to the jury, “mischaracterized the evidence” and “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.’”

Lindemann, who now works as a deputy county attorney defending the county in civil litigation, has declined to comment.

Suffolk County Legis. Sam Gonzalez (D-Brentwood), who spoke alongside Rodriguez’s daughter Tuesday, called the overturned conviction an “aberration” and an “inequity in the application of the laws” in a case where the defendant, Drago, is white. Rodriguez was of Puerto Rican descent.

“I make an urgent call to law enforcement and justice administrators to not send the wrong message … that some groups are above others,” Gonzalez said.

Former Suffolk County District Attorney Timothy Sini, who oversaw Drago’s prosecution, criticized the appeals court decision in a statement Tuesday: “I strongly disagree with the Appellate Division’s decision. I remain proud of the work the investigators and prosecutors did in this case from the outset of this tragedy through the jury’s verdict. My thoughts have been with Evelyn and her family since the Appellate Division’s wrongheaded decision.”

After Rodriguez’s daughter Kayla Cuevas and her friend Nisa Mickens, 15, were killed in a September 2016 attack that federal prosecutors say was perpetrated by MS-13, Rodriguez became a national symbol for families impacted by gang violence. She was the guest of President Donald Trump during the 2018 State of the Union address and later met with the president that same year when he visited Bethpage to talk about gang violence with local leaders.

Rodriguez died in September 2018 after Drago ran over Rodriguez during a confrontation over a Brentwood memorial for Rodriguez's slain daughter. Rodriguez had set up the memorial in front of the home of Drago’s mother before a vigil planned to mark the two-year anniversary of the discovery of Kayla’s remains on the property. Drago tore down the memorial because she didn't want prospective buyers of her mother’s home to be scared off by the memorial, prosecutors said.

 News12 Long Island captured the confrontation between Drago and Rodriguez on video, a key piece of evidence at the trial.

Drago's trial attorney, Stephen Kunken, said at the time that the crash was a "tragic accident" and that Drago feared for her life after Rodriguez and Freddy Cuevas — Rodriguez's partner and Kayla's father — ran up to her vehicle and shouted expletives while pointing at her on the day of the deadly confrontation. The defense argued that Drago believed Rodriguez was out of her vehicle's path after the woman moved slightly to the left.

The couple, who prosecutors said had no weapons and made no physical threats, demanded Drago return items from the memorial, including a portrait of Kayla in her Junior ROTC uniform and a wreath. 

By Nicole Fuller

nicole.fuller@newsday.com@NicoleFuller

Nicole Fuller is Newsday's senior criminal justice reporter. She began working at Newsday in 2012 and previously covered local government.