Ann Marie Drago, who pleaded guilty in Evelyn Rodriguez's death, appeals conviction

An attorney for a former Long Island resident who pleaded guilty in the death of a Long Island anti-gang activist asked a state appeals court to overturn her conviction during a hearing in Brooklyn on Monday.

Matthew Hereth of the Legal Aid Society of Suffolk County told the four justices that Ann Marie Drago, 65, had not waived her right to appeal when she pleaded guilty to criminally negligent homicide and petit larceny in May 2024.

"It was an accident," Drago’s lawyer said of the September 2018 death of Evelyn Rodriguez, 50, of Brentwood. "She was trying to leave."

Authorities said Drago, formerly of Patchogue but now a Delaware County resident, hit and then ran over Rodriguez during a confrontation over items the defendant removed from a memorial Rodriguez had set up in front of Drago’s mother’s home for her daughter, who was killed by MS-13 members two years earlier.

Hereth told the justices from the New York State Appellate Division, Second Judicial Department that the judge in Drago’s first trial, in 2020, should have dismissed the case because Suffolk County prosecutors had not presented enough evidence to get a conviction in their presentation to the jury. That verdict was later overturned.

Suffolk County Assistant District Attorney Rosalind Gray told the justices that Drago had already acknowledged her guilt. She chose to turn her vehicle to hit Rodriguez, who was standing near the front bumper of her vehicle.

"That is blameworthy conduct," the prosecutor said.

The justices seemed surprised that Drago had retained her right to appeal and were skeptical about Hereth’s argument about evidence at the trial, pointing out, sometimes with exasperation, that Drago knew what evidence prosecutors presented when she pleaded guilty last year.

Hereth responded by saying Drago would have never been in a position to decide on a plea deal if the judge in her first trial, State Supreme Court Justice Fernando Camacho, had ended the 2020 trial after the prosecution rested.

"She was not prosecuted on a jury determination," Hereth said. "She was convicted on a plea."

The judges will issue a decision on the appeal at a later day.

Drago’s first trial ended with the jury convicting Drago of criminally negligent homicide and sentenced to 9 months in jail. The judge overturned the verdict, citing prosecutorial misconduct. Her second trial ended in 2024 with the jurors deadlocked over a negligent homicide charge.

Drago was sentenced to 5 years of probation after pleading guilty last year to criminally negligent homicide. Hereth declined to comment following the hearing on Monday. Tania Lopez, a spokeswoman for Suffolk District Attorney Ray Tierney, also declined to discuss the case.

Rodriguez had set up a memorial in September 2018 in front of the home of Drago’s mother on the day of her death to honor her daughter, Kayla Cuevas, 16, who prosecutors said was murdered by members of MS-13. Kayla’s friend, Nisa Mickens, 15, was also killed by the gang, authorities said.

Her remains were found on the property two years earlier. Drago wanted to sell the home and feared the memorial would turn off potential buyers, prosecutors have said.

Rodriguez suffered a fractured skull and brain injury less than 300 feet from where her daughter’s remains were found in an encounter that News 12 Long Island recorded on video.

Rodriguez became nationally known as an activist against MS-13 gang violence after her daughter's death. President Donald Trump visited with Rodriguez during his first term and vowed to crack down on MS-13. He also recognized her at his 2018 State of the Union address.