SCHOHARIE — Schoharie County District Attorney Susan Mallery affirmed her office is ready for the May 1 criminal trial of limo operator Nauman Hussain in Schoharie County Court on Wednesday.
Supreme Court Justice Peter Lynch described the certificate of compliance filed by the prosecutor last month, confirming that all evidence and materials have been disclosed and provided to the defense, as “exhaustive in scope.”
Mallery previously indicated there were roughly 10,000 documents related to the 2018 Schoharie limo crash that killed 20 people that would be reviewed as part of the pre-trial discovery process.
“We have done our best to transfer every document that we had in custody over to the defense,” Mallery said Wednesday.
However, Lee Kindlon, one of several lawyers handling Hussain’s defense, said the legal team was still receiving materials as recently as a day earlier and indicated requests to preclude pieces of evidence from being presented at trial could be filed following their review.
“Obviously, the prosecution has a continuing obligation to provide any discovery right up to and including during the course of the trial,” said Lynch, before reminding defense counsel to make any challenges as soon as practicable.
Nearly 500 individuals have been identified as potential prosecution witnesses. Mallery confirmed her office will seek to “fine tune” the list before going to trial.
“Over the four-year period, we’ve had a witness who passed away, we’ve had some others that relocated and obviously memory will change over time, so we will be doing our best to put that in less numbers,” Mallery said.
Expert testimony is expected to be presented by Brian F. Chase, a vehicle forensics investigator previously retained by state police to analyze the brakes on the stretch limo driven during the crash.
A lengthy report compiled by Chase was released by Schoharie County Court when the criminal case was originally being prepared for trial in 2019. Chase found that Hussain did not properly maintain the limo, leading to its catastrophic brake failure at the time of the crash.
When Chase will take the stand is unclear, according to Mallery, who noted that he is also being called to testify in a federal case. The local prosecutor plans to work around his availability and may call witnesses out of their preferred order.
Neither Mallery nor Lynch were able to comment on the potential length of the upcoming trial when Kindlon inquired for scheduling purposes. The judge suggested the opposing parties work together to determine if they can stipulate to the acceptance of any of the exhibits that will be presented as evidence to save time.
“Just bear in mind that this case is of significance and whatever amount of time it takes to conduct this trial this court stands ready to do so,” Lynch said.
Although officials signaled they are prepared to go to trial in two months, the Appellate Division of state Supreme Court has yet to issue its ruling on the Article 78 proceeding filed by Hussain’s attorneys seeking to overturn Lynch’s decision to toss out a previous plea deal avoiding jail time.
The petition seeks to have Husain’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.
In light of the looming trial date, Kindlon said the appeal process is being fast tracked. He expects a decision to be issued within the next week or two.
“I’m optimistic, I think the law is on our side, but we have to be prepared to go to trial,” Kindlon said. “We stand ready to defend our client and demonstrate that the real culprits were Mavis and the state of New York, and not Mr. Hussain.”
The appeal contends that Lynch exceeded his authority last August at an expected sentencing when he rejected the plea bargain accepted by former Justice George Bartlett a year earlier and gave Hussain the choice of withdrawing his guilty plea or accepting a 1 1/3-to four-year prison sentence.
The plea was withdrawn and Hussain is scheduled to stand trial on the criminally negligent homicide counts and 20 counts of second-degree manslaughter that he was originally charged with. Lynch, who took over the case following Bartlett’s retirement, said any statements provided by Hussain after pleading guilty would be inadmissible at trial.
However, Hussain’s attorneys contend that he relied on the accepted deal when he completed over 575 hours of community service and made sworn statements in civil lawsuits related to the crash to comply with the terms of the agreement.
Angela Kelley, Lynch’s attorney, has argued the judge acted within his authority by 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 that had been ordered off the road. But Hussain’s lawyers contend the information previously known to the court can’t be used to support rejecting the plea.
A group of 17 friends and family mostly from Amsterdam hired the limo to drive them 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.
Oral arguments on the appeal were heard in the Appellate Division of state Supreme Court in Albany on Feb. 22.
If Hussain’s appeal is denied and the criminal case against him ultimately proceeds to trial, jury selection is scheduled to begin in Schoharie County Court at 9:30 a.m. on May 1.
Reach Ashley Onyon at [email protected] or @AshleyOnyon on Twitter.