Removed DOT sticker central to Schoharie limo operator’s appeal

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ALBANY — Central to the lawsuit seeking to reinstate Prestige Limousine operator’s no jail plea deal is the state Department of Transportation out of service sticker allegedly removed from the limousine driven in the 2018 Schoharie crash that killed 20 people.

In November, attorneys for Nauman Hussain filed an Article 78 proceeding in the Appellate Division of state Supreme Court seeking to overturn Supreme Court Justice Peter Lynch’s surprise decision to toss out a previously negotiated plea agreement avoiding jail time on Aug. 31, 2022.

The petition seeks to have Hussain’s agreement and the negotiated sentencing terms reinstated 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.

Attorneys Lee Kindlon, Joseph Tacopina and Chad Seigal, in a brief received by the court last week, argue that Lynch based his decision on evidence that was “irrelevant” to the cause of the crash.

The DOT out of service sticker that had been removed from the 2001 Ford Excursion stretch limo was found after the crash crumpled inside Hussain’s personal car and later determined by investigators to have his DNA on it.

However, the plea agreement negotiated by Hussain’s attorneys and Schoharie County District Attorney Susan Mallery noted the vehicle had been ordered off the road for violations that did not directly cause the deadly crash.

A group of 17 friends and family, mostly from Amsterdam, hired the limo to drive them to a birthday celebration in Cooperstown. Every passengers, the driver, and two bystanders in the Apple Barrel Country Store parking lot were killed at the intersection of Routes 30 and 30A in Schoharie when the vehicle suffered catastrophic brake failure on Oct. 6, 2018.

On Sept. 4, 2018, the stretch limo failed inspection for a dangling anti-lock brake system line, lack of emergency exits and seating exceeding capacity, due to a missing federal identification sticker authorizing the vehicle to carry over 10 passengers.

“Parties agree that the 2001 Ford Excursion was not placed out of service for defective brakes at that time,” the plea agreement states.

Hussain’s attorneys argue the removed sticker had already been “deemed inconsequential” in the plea deal accepted by former Justice George Bartlett in September 2021.

“Removal of the sticker did not create a foreseeable risk of death from catastrophic brake failure,” the petitioning brief states.

Furthermore, the lawyers claim Lynch, who was assigned the case after Bartlett retired, failed to provide any justification for rejecting the agreement.

Attorney Angela Kelley, representing Lynch, in a responding brief filed on Monday, argued the judge made clear when he rejected the plea that his decision was based in part on the removal of the sticker from the limo days before the crash being dismissed as “irrelevant.”

“The essence of the plea agreement that was signed by the parties and incorporated into the plea proceeding last year is fundamentally flawed. It is not based on truth. And frankly, I found it interesting that one of the most compelling pieces of evidence that would likely occur in a trial is buried in a footnote,” Lynch said last August, according to Schoharie County Court transcripts filed in support of the brief.

The deal allowing Hussain to plead guilty to 20 counts of criminally negligent homicide was based on his purported failure to perceive a risk the vehicle would suffer catastrophic failure leading to the deaths of 20 people.

“If one consciously removes a sticker from a vehicle that was placed on the vehicle by the authorities that it was out of service, that action is consistent with being aware of and consciously disregarding the risk,” Lynch stated.

Moreover, Lynch had highlighted another detail from a 2019 application submitted by Mallery and approved by Bartlett authorizing the collection of a cheek swab from Hussain to confirm it was his DNA on the sticker.

Supporting arguments contained in the application noted that the DOT inspector who had placed the limo out of service called Hussain the day before the crash to say that documents and information requested by the state agency had not yet been received.

“That investigator called the defendant to go over the necessary things that had to be done to get that vehicle back in order,” Lynch stated.

In the order approving Mallery’s application, Bartlett had also acknowledged the potential significance of positively identifying the DNA on the removed sticker.

“If the people are able to establish that defendant removed a sticker that not only told him, but would have warned repair shops, the limousine driver and passengers that the limousine was not permitted on the road, such evidence is clearly relevant to the elements of recklessness and criminal negligence, elements of the charged crimes,” Bartlett wrote.

Still, Hussain’s attorneys contend the evidence was contemplated in the previously accepted plea agreement and cannot be used now as the basis for its rejection.

“Judge Lynch failed to abide by the agreement without receiving any new information not already considered and deemed inconsequential by the court,” the petitioning brief states.

The lawyers further claim Lynch ignored their attempts to explain this in court and instead were given just 15 minutes to decide whether to vacate their client’s prior plea or accept the sentence the judge was prepared to impose of 1 ⅓-to four-years in prison.

“The defense was ‘impelled’ to provide a clearly rushed response,” the petitioning brief states.

The plea was withdrawn and Hussain is set to stand trial on the criminally negligent homicide counts and 20 counts of second-degree manslaughter on May 1.

Hussain’s lawyers note that Lynch did not make any further inquiries to ensure their client’s decision was made “knowingly, voluntarily and intelligently” before vacating the formerly entered guilty plea. Judges customarily verify with defendants they fully understand their decisions in court.

While the decision to toss out the plea deal seemed sudden, Kelley’s latest response points out that after being assigned the case, Lynch alerted the district attorney and defense counsel in mid-August that terms of the agreement placing Hussain under two years of interim probation prior to final sentencing is unlawful.

This point was conceded by both sides, leading Lynch to schedule the case for sentencing on Aug. 31 after Hussain had completed just one year of interim probation. The plea deal stipulated that Hussain’s probationary term would not be terminated early.

Yet, Kelley argues it is not possible for Hussain to comply with unlawful terms set out in the agreement and Lynch is therefore not required to sentence him based on the plea deal.

“Respondent was not required to simply ignore the fact that a significant obligation imposed on petitioner under the agreement was being eliminated and nevertheless confer the benefit of that agreement upon petitioner,” the brief states.

The Appellate Court last month issued a decision denying the request from Hussain’s lawyers to stay the criminal proceedings against him until the pending challenge has been decided. The matter is expected to be considered next month.

Reach Ashley Onyon at [email protected] or @AshleyOnyon on Twitter.

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