SCHOHARIE — Officials are still preparing for trial in the criminal case against Nauman Hussain, operator of the limousine company involved in the 2018 Schoharie crash that killed 20 people.
Schoharie County District Attorney Susan Mallery on Wednesday reported to Supreme Court Justice Peter Lynch that her office is about a third of the way through a review of roughly 10,000 documents related to the case to complete pre-trial discovery.
“It is taking us an extensive amount of time,” Mallery said. “We have been working very diligently.”
Prosecutors must file the certificate of compliance confirming that all evidence and materials have been disclosed and provided to the defense by March 1. Lynch was clear that deadline would not be altered ahead of the trial scheduled to begin May 1.
“The trial date will not be adjourned if there is a failure in the discovery process or if there is a failure in the filing of the certificate of compliance,” Lynch said. “Of course, evidentiary rulings at the trial may be impacted in the event that there is a failure in the disclosure of materials.”
Lynch referenced the trial date without mentioning the still-looming lawsuit filed by Hussain’s attorney Lee Kindlon seeking to overturn the judge’s surprise decision to toss out a previously negotiated plea agreement at what was expected to be a final sentencing in August.
The Article 78 proceeding filed last month in the Appellate Division of state Supreme Court is seeking the reinstatement of Hussain’s agreement and the negotiated sentencing terms, allowing him to plead guilty to 20 counts of criminally negligent homicide with a recommended sentence of five years of probation and 1,000 hours of community service.
The plea agreement had been accepted by former Justice George Bartlett in September 2021. This August, Lynch, who was assigned the case after Bartlett retired, gave Hussain the choice of withdrawing his guilty plea or accepting a 1 ⅓-to four-year prison sentence.
The plea was withdrawn and Hussain is set to stand trial on the criminally negligent homicide counts and 20 counts of second-degree manslaughter with which he was originally charged.
However, the defense’s lawsuit claims Lynch exceeded his authority by rejecting the plea bargain and requested a stay of the criminal prosecution until the challenge seeking the reinstatement of the previously negotiated deal is decided.
Lynch’s attorney Angela Kelley, in a response, argued the judge acted within his authority rejecting the plea agreement he found to be “fundamentally flawed.” Hussain was placed under probation for two years prior to sentencing under conditions of the plea deal, which is unlawful.
Lynch further argued Hussain’s alleged removal of a state Department of Transportation out-of-service sticker from the limo driven during the crash showed he knew and disregarded the risk of sending the vehicle out which had been ordered off the road.
A group of 17 friends and family — mostly from Amsterdam — hired the limo to drive it to a birthday celebration in Cooperstown. All 17 passengers, the limo driver, and two bystanders in the parking lot of the Apple Barrel Country Store were killed at the intersection of Routes 30 and 30A in Schoharie when the vehicle suffered catastrophic brake failure on Oct. 6, 2018.
The Appellate Court issued a decision on Monday denying the request to stay the criminal proceedings until the challenge has been decided and set the matter for consideration in February.
The as-yet-undetermined appeal was not mentioned during the conference on the criminal case in Schoharie County Court on Wednesday. Kindlon declined comment to the media following the appearance citing the pending litigation.
While defense attorneys are seeking the reinstatement of the terms of the plea, Lynch ruled the ankle monitor worn by Hussain under the terms of that deal could be removed since the agreement is no longer in effect.
“He’s charged by way of indictment, he’s entered a not guilty plea, he’s presumed to be innocent,” Lynch said.
Kindlon had argued Hussain had demonstrated the monitoring device was unnecessary by appearing in court when scheduled and complying with all conditions required from the probation department.
“He has to wear this thing around as a scarlet letter, as a mark,” Kindlon said. “He will be here when the court asks him to be, whether or not he is wearing that ankle monitor. We respectfully submit it is not necessary anymore.”
Lynch said the monitor could be removed by the probation department the same day. The judge reminded Hussain that he must continue to appear for all scheduled court dates and probation appointments, cannot have or apply for a passport and is prohibited from leaving the state.
Furthermore, Hussain signed a Parker Agreement acknowledging that his failure to appear would not stop the proceedings against him, which would move forward in his absence.
“That could be a trial and if there is a conviction after trial, there would be a sentence and all of that could go on without your presence,” Lynch said. “Obviously, it would be in your best interest to continue to work with your attorneys in the preparation of the defense and presentation of the defense in this case at trial.”
The only remarks by Hussain during the proceedings were answering direct questions from Lynch. The next conference in the criminal case is scheduled at 9:30 a.m. on March 1.
Reach Ashley Onyon at [email protected] or @AshleyOnyon on Twitter.
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