By Mike Schnitzel
In his motion, LaMagna said, "It has become abundantly clear that the verdict here was not based solely upon the evidence presented at trial, but rather upon an accumulation of outside influence and misconduct."
Honorof will have to decide whether the evidence presented by the defense, which includes affidavits from two jurors who support the allegations of misconduct, is sufficient to grant the defense's request for a new trial.
The District Attorney's office has until Jan. 4, 2007 to respond to the request.
Heidgen, 25, of Valley Stream, was convicted of two counts of second-degree murder, the most serious charges he faced, on Oct. 23 in New York State Supreme Court in Mineola. In the early-morning hours of July 2, 2005, Heidgen drove his pickup truck the wrong way on the Meadowbrook Parkway and collided head-on with a limousine taking a family home from a wedding reception in Bayville. Seven-year-old Lido Beach resident Katie Flynn and the 59-year-old limousine driver, Stanley Rabinowitz, of Farmingdale, were killed in the crash, and four other members of Flynn's family were seriously injured. Tests showed that Heidgen had a blood alcohol content of .28 at the time of the crash.
In sworn affidavits, jury forewoman Loy Malcolm of Baldwin and juror Craig Cavaco said they witnessed misconduct by other members of the jury. In her affidavit, Malcolm stated that juror Patrick Clark said he was going to discuss his vote with his mother. Malcolm also said that she met with another juror at a supermarket in Baldwin to discuss the case.
In his affidavit, Cavaco said that juror Michele Vargas discussed plans to write a book about her experience in the case with other jurors during the trial, and that she planned to sell her story when the trial was over. Cavaco also said that juror Anthony Macchiarulo found out, through his own research, that if Heidgen was convicted of manslaughter, he could be out of prison in as little as four to five years if he behaved. Cavaco said that some jurors changed their votes after finding that out, because they felt that was too short a sentence for Heidgen.
District Attorney Kathleen Rice is seeking the maximum prison sentence of 25 years to life. Heidgen faces a minimum of 15 years.
A spokesman for the D.A.'s office, Eric Phillips, said the D.A. was confident that the jury's verdict would stand, and that prosecutors would respond to the defense's motion within the next week. "We're confident the jury followed the judge's very clear instructions during its deliberations," Phillips said.
Those sentiments were shared by Flynn's family. "We're not worried about this," said Denise Tangney of Long Beach, Flynn's grandmother.
Neither Malcolm nor Cavaco could be reached for comment.
LaMagna, of Garden City, did not return calls for comment, but has said previously that his client was unfairly held to the same standard as a "cold-blooded murderer." He has said that he believed the verdict would be overturned, and that a second-degree murder charge was too subjective, because it allowed "one district attorney to charge murder for the same act another district attorney would not."
Doug Miller contributed to this story. Comments about it? Dmiller@liherald.com or (516) 569-4000 ext. 213.
