Editor’s note: This story was corrected on Jan. 18. An earlier version included an incorrect date for a Jan. 11 conference call in which Schoharie County District Attorney Susan Mallery reportedly hung up on the NTSB.
SCHOHARIE — Schoharie County District Attorney Susan Mallery told the Schoharie County Court Thursday that she continues to object to giving federal investigators “unfettered access” to the limousine involved in the Oct. 6 crash that killed 20 people.
Thursday was the deadline for the National Traffic Safety Board (NTSB) and Mallery to submit arguments to Schoharie County Court Judge George Bartlett explaining their positions on Bartlett’s proposed solution to the ongoing dispute among local, state and federal agencies over access to the vehicle.
Bartlett has suggested including the NTSB in a newly written search warrant that would give the agency access.
Mallery blasted the court’s authority to create a new search warrant including a federal agency. She argues NTSB does not have the legal right to obtain one in this case in New York state.
Mallery’s letter at times blamed court release of correspondence between the warring parties for creating “a press onslaught” against her office. She criticized the NTSB for releasing letters and doing media interviews that brought attention to the dispute. Mallery continued to argue that allowing the NTSB to examine the vehicle without state police supervision could endanger evidence in her criminal case against the operator of the limousine company that owned the vehicle, Nauman Hussain of Cohoes.
Hussain has been charged by state police with one count of criminally negligent homicide. He is to be prosecuted in Schoharie County where the accident occurred.
In her letter, Mallery wrote:
“While law enforcement and the defense proceeded to conduct and complete necessary inspections of the limousine, the NTSB unfortunately engaged in an extensive press campaign, seeking to coerce law enforcement to provide virtually unlimited access to the limousine. The access sought included proposed testing, parts removal and alteration of the limousine, before law enforcement or the defense had completed their inspections. The NTSB demanded the implementation of a self-created “protocol,” on its time frame, and with its own investigators. Despite the fact that the NTSB claimed that it had ‘no intention’ to ‘remove any items or conduct any type of destructive testing,’ the protocol apparently seeks just that. It seeks, among many other things, to ‘remove some surface rust;’ ‘remov[al] of frame and floor concealment panels;’ ‘brake lines, rotors, calipers, brake fluid [analyze for viscosity, contamination]’ and ‘download … ABS module.”
Mallery also stated NTSB’s objection to allowing state police investigators to remove the transmission and torque converter of the vehicle without their participation has delayed her investigation. At the conclusion of her letter, Mallery states she believes a “common sense solution” to the impasse might allow them to measure and photograph the vehicle with state police supervision before the court allows its transmission and torque converter to be removed.
NTSB officials in their letter said their federal authority should allow it to examine the vehicle without a search warrant, something Bartlett stated he agreed was true in his Jan. 9 letter.
NTSB General Counsel Kathleen Silbaugh states in the letter that the agency must be allowed to examine the vehicle before it is moved from a tent its agency provided to the state police at Troop G headquarters in Latham. She also wants the NTSB to be able to examine parts and items removed from the limousine by state police investigators. She said the NTSB should then be allowed to participate in the removal of its transmission and torque converter.
Silbaugh’s letter also describes a Jan. 11 conference call in which Mallery is said to have hung up on the NTSB without providing comment as to her understanding of the federal agency’s authority to examine the vehicle.
Mallery in her letter argues that the NTSB’s legal obligation not to damage or destroy evidence in a crash of this nature may only pertain to crashes that “may have been caused by an intentional criminal act.”
“Here, of course, at this point in time, the defendant has been charged with acts of negligence,” Mallery wrote.
The limousine, operated by Prestige Limousine of Wilton, was carrying 17 passengers when it went through the Route 30 stop sign, through a parking lot and into a ravine, killing all aboard as well as the driver. Two pedestrians in the parking lot of the Apple Barrel Country Store were also killed.
Mallery questions what the NTSB’s purpose in this case is beyond suggesting safety regulations for stretch limousines.
“According to its website, these reviews and recommendations can take years to complete. Here, the limousine involved is a 17+ year old stretch limousine that had accumulated approximately 200,000 miles without proper care and repairs. A major focus of the state’s criminal case is that the limousine was neglected and ill-maintained. The NTSB’s focus, on the other hand, must naturally address the design of the vehicle at the time of manufacture, and it may provide potential recommendations for changes in Federal Motor Vehicle Safety Standards (“FMVSS”), which are applicable to vehicles at the time of their manufacture,” Mallery wrote.
Gov. Andrew Cuomo on Monday proposed a New York state ban on the sale and manufacture of any reconstructed vehicles used for the purpose of being so-called “stretch limos.”
The decision of whether to allow the NTSB access to the vehicle rests with Bartlett. He did not set a timeline for his decision.