Defense asks LI judge to toss murder charge in wrong-way crash

A Sound Beach man’s attorney urged a judge Thursday to dismiss murder and aggravated vehicular homicide charges against his client, arguing that prosecutors failed to prove either charge.

Such motions are routine in criminal trials after testimony ends, but in the case against Christopher O’Brien, 56, state Supreme Court Justice Fernando Camacho said he wanted to hear extended arguments on whether these charges should be dismissed before closing arguments Friday.

Even if Camacho does dismiss those charges, second-degree manslaughter and other counts will remain.

Both sides concede that O’Brien was intoxicated at 5:35 a.m. on Dec. 23, 2015, when he drove east in the westbound lanes of Sunrise Highway and collided with a car driven by Thomas D’Eletto, 57, an Aquebogue project engineer heading to work in Nassau County.

But defense attorney Scott Gross of Hauppauge argued that O’Brien’s acts don’t meet the legal standard for second-degree murder or aggravated vehicular homicide.

For the top count, prosecutors must prove that O’Brien acted with depraved indifference to human life, and Gross said there is no evidence he formed the necessary state of mind for depraved indifference, a high standard rarely met in vehicular crimes.

In the 2005 case of Martin Heidgen, who was convicted of murder after killing two people while driving drunk the wrong way on the Meadowbrook Parkway, Gross said there was evidence that he was motivated by suicidal despair. Other than a reference to an argument with a girlfriend, Gross said there is no such evidence in the O’Brien case.

“Whether you’re a cop or a regular citizen, the evaluation should be the same,” Gross said, making a subtle reference to the pending case of former Suffolk police Officer Robert Scheurer. He also is accused of driving drunk the wrong way on Sunrise Highway and killing a motorist last year, but was not charged with murder.

Camacho, who is presiding over that case too, smiled at the reference.

Assistant District Attorney Marc Lindemann said evidence to support the murder charge includes testimony that O’Brien seemed to aim at other motorists, forcing them off the road as they honked their horns and flashed their headlights at him.

“The evidence shows, very dramatically, that the defendant thought only about himself,” Lindemann said.

Gross also urged Camacho to dismiss the aggravated vehicular homicide charge, arguing it relies on a mathematical formula that improperly estimates O’Brien’s blood-alcohol level to be 0.19 percent at the time of the crash, just above the 0.18 percent threshold to support the charge. The estimate uses “assumptions on top of assumptions on top of assumptions” to reach that conclusion, Gross said.

Lindemann said the science behind the estimate is sound and Camacho should accept it.