Felony charge against PSEG driver in fatal Flanders Road crash is dismissed

A State Supreme Court judge has dismissed the felony criminally negligent homicide charge brought against the PSEG driver involved in the fatal head-on crash on Flanders Road in January 2014.

Pepe’s utility truck entered the oncoming lane of traffic at about 7:57 a.m. on Jan. 16, 2014 and crashed head-on into an SUV driven by Barbara Tocci, 48, of Hampton Bays, who was on her way to work in Riverhead. Tocci was killed in the accident.

Prosecutors charged the PSEG driver, Michael Pepe of Bayport with criminally negligent homicide, a felony. Justice Fernando Camacho on Aug. 25 granted the defendant’s motion to dismiss the felony charge. Two lesser charges, reckless driving and use of a cell phone, remain pending against Pepe, 54.

“The focus must be on the defendant’s conduct, and not the results, no matter how tragic,” Camacho wrote in the decision. “There was no evidence presented that the defendant was texting, reading or talking on his personal cellular phone at the time of the accident,” he wrote. “The evidence presented to the grand jury focuses on the defendant’s conduct approximately four to five minutes prior to the crash as support for a charge of criminally negligent homicide…The defendant’s alleged poor judgment several minutes prior to an accident with devastating results, based upon these facts, fails to rise to the level of moral blameworthiness to support a finding of criminal negligence.”

Evidence brought before the grand jury showed Pepe was texting on his personal cell phone between 7:28 and 7:52 that morning. Investigators estimated the time of the crash to have occurred at 7:57 a.m., according to the court.

Pepe told police he hit a pothole and lost control of his vehicle.

He initially denied to police he was using a cell phone while driving, according to the decision. His PSEG cell phone was on his waistband. Police recovered his personal phone in a lunch bag inside the truck, He consented to a search of both phones, the court wrote.

“Phone records revealed the following sequence of activity on Mr. Pepe’s personal cellular phone prior to the accident:

At 7:28 am the defendant opened a text message;
At 7:32 am the defendant sent a text message;
At 7:33 am the defendant opened a text message;
At 7:41 am the defendant sent a text message;
At 7:43 am the defendant opened a text message;
At 7:45 am the defendant sent a text message;
At 7:52 am the defendant opened a text message;
At 7:53 am the defendant received a a text message that was not opened.

Approximately four (4) minutes later, the first 911 call reporting the accident was received.”

“I’m very disappointed in the court’s decision,” Barbara Tocci’s sister, Susan Tocci said this afternoon.

“First, Pepe could have read the message that was ‘unopened’ on his phone even if it wasn’t marked as read. Second, they are setting the time of the accident based on the time of a 911 call. No one saw the actual accident — no one,” Tocci said.

“Why did he deny using a cell phone and why did put his cell phone in his lunch bag after the accident?” Tocci asked.

“After driving his truck across two lanes and head-on into my sister’s car, Pepe, while my sister was dying, hid his phone in his lunch bag and then denied using a phone to police,” she said. “Why?”

Prosecutors said Pepe was having “a lengthy text conversation with his girlfriend” just before the accident.

“That’s why he didn’t see the pothole,” Susan Tocci said.

The court found legally sufficient evidence supporting the reckless driving and use of a cell phone.

Pepe’s attorney, Steven Epstein, said today the remaining two charges will go to trial and he is “confident that when the case is tried in the courtroom, he will be found not guilty.”

Epstein blamed the accident on the “dangerous and deadly conditions” of State Route 24. “Those conditions caused prior accidents at the same location when drivers lost control of their vehicles due to the craters – not simply potholes in the road,” he said.

A spokesperson for Suffolk District Attorney Thomas Spota said the district attorney had reviewed the decision and decided that the people will not appeal the ruling.

Editor’s note: This article was amended to add a comment from a spokesman for the district attorney, which was sent to RiverheadLOCAL after the story had been published.