SCHOHARIE — Two additional jurors were discharged Tuesday from the jury presiding over the case of the limousine operator accused of failing to maintain the vehicle involved in the deadly Oct. 6, 2018 crash.
Three jurors have now been dismissed just two days into what is expected to be a monthlong trial against Numan Hussain, the 33-year-old operator of Prestige Limousine & Chauffeur Service in Wilton — the limousine company that rented a super-stretched 2001 Ford Excursion SUV to a group of 17 friends from the Amsterdam area to attend a birthday celebration in Cooperstown. Now, just one alternate remains.
The vehicle later crashed after its brakes failed while descending a steep hill on state Route 30 in Schoharie. All 17 passengers, the limo’s driver and two bystanders were killed in the wreck, the deadliest in the country in more than a decade.
One of the alternate jurors was discharged by state Supreme Court Justice Peter Lynch who said he determined them “to be wholly unqualified to serve.” He did not provide any further explanation, but later told the remaining jurors that they should not consume marijuana prior to coming to court.
“I will not tolerate any juror smoking marijuana before coming to court every day,” he said. “That is an appalling front that I think is pretty evident.”
Another juror was discharged after asking to be excused for the day due to suffering from asthma and allergies.
The person called into court to explain their situation and was placed on speaker phone for the gallery of more than a dozen in attendance to hear, including family members of those killed in the crash. The person could be heard coughing as Lynch and the attorneys asked whether they would be able to proceed moving forward.
“I was really looking forward to finishing this through, but if you can’t breathe, you can’t do it,” they said.
The dismissals come a day after another juror was dismissed Monday for unknown reasons, and just days after a weeklong jury selection process that wrapped up Friday, during which nearly 200 individuals were dismissed. A total of 12 jurors and four alternates were originally selected during the process.
The trial can proceed with just 12 jurors, but a mistrial would be declared if the number falls below that.
Lee Kindlon, an attorney for Hussain, said later Monday that he has full confidence in the jury selected, but noted it was unusual to see three jurors dismissed this early in the process.
“Hopefully we can keep the rest,” he said.
@dgazette Two more jurors excused in Schoharie limo trial; Panel now down to one alternate day after openings 5/9/23 #schoharie #schoharieny #schohariecounty #schohariecountymy #trial ♬ original sound – Daily Gazette
But the juror dismissals were not the only upheaval on Tuesday.
Kindlon informed Lynch that Schohaire County District Attorney Susan Mallery, who is prosecuting the case, disclosed that three prospective witnesses for the prosecution had criminal records — information not previously provided and facts that should have been disclosed in the lead up to the trial.
On Monday, Kindlon requested a mistrial after learning that one of the prosecution’s witnesses, Lawrence Macera, plead guilty in federal court to stealing more than $54,000 in retirement funds from a railroad company he worked for, a fact he learned from a Google search. Macera is the former owner of Royal Limousine Service in Troy which purchased and had the vehicle involved in the crash stretched.
Mallery said Monday the lack of disclosure was not intentional and was due to the fact that she did not have access to federal criminal records.
Kindlon’s motion for the mistrial was denied, but on Tuesday he told Lynch that Mallery disclosed documentation late Monday after court was recessed indicating that Macera did have a criminal record, noting that her previous statements were not true.
On Tuesday, the prosecutor said she provided Kindlon with the information in good faith, but was not sure if the information was previously disclosed and deferred to Kindlon’s position because Macera was only called on for historical purposes and his testimony would not impact the case.
“We take no position,” she said.
Lynch again denied the request for a mistrial but ordered Macera’s testimony to be stricken from the record.
“This is a basic, basic obligation,” he told Mallery.
Hussain faces 20 counts each of second-degree manslaughter and criminally negligent homicide for his alleged role in the crash, which prosecutors say was caused by Hussain’s failure to follow state regulations that would have subjected the vehicle to rigorous inspections.
Tuesday’s proceedings focused on just one witness: Chad Smith, an inspector with the state Department of Transportation who, during his hours of testimony, detailed his numerous efforts to get Hussain to comply with state regulations that dated back to June 2017, following a chance encounter with the vehicle at a Mavis Discount Tire shop in Saratoga Springs.
The repair shop is facing a number of lawsuits for allegedly failing to properly service the limo’s brakes in the lead up to the crash. Kindlon, during his opening statement, sought to blame the crash on the shop, which he said misled Hussain into believing the vehicle was properly serviced.
At one point, Smith — a key witness for the prosecution — posed as a customer to gather evidence that Hussain was illegally renting the limo for service in order to bring the operator into compliance.
Special prosecutor Fred Rench introduced dozens of pieces of evidence, including emails between Smith and numerous limousine companies operated by Hussain, among them Prestige Limousine, Hazy Limo and Saratoga Luxury Limousine.
All three companies were improperly registered with the state DOT, but used the stretched Excursion SUV to shuttle customers. Hussain used fake names and acted as his father, Shahed Hussain, when conducting business, according to email records.
Shahed Hussain was the owner of the companies, but was in Pakistan at the time of the crash. He has never returned to the U.S. or been charged in connection to the wreck.
Smith twice placed out-of-service stickers on the vehicle after it failed two roadside inspections, one in March 2018 and another in September 2018, less than a month before the crash.
During the March 2018 inspection, Smith said he informed Hussain — who was pretending to be his father at the time — about several mechanical issues with the vehicle, including a vice grip and three zip ties attached to a rubber hydraulic line near one of the rear brakes that prevented the brake system from properly functioning.
There were also problems with the vehicle’s emergency exit and child lock, and a certification sticker showing the vehicle had been altered was missing. Smith also pointed out that the vehicle was not in compliance with DOT regulations.
The vehicle was placed out-of-service again that September when the same issues were identified. There was also an issued with the vehicle’s anti-lock brake system, which Smith noted on his inspection report at the time.
Hussain allegedly removed the out-of-service sticker and placed the vehicle back in service in the lead up to the crash
“We went over each of the deficits one by one and went over each deficit and how it can be corrected,” Smith said.
Kindlon questioned Smith about why he didn’t do more to take the vehicle off the road or perform a more rigorous inspection of the vehicle. Smith replied that he did not have the authority to do either, noting he did not have the authority to order a private company to place a vehicle on a lift to be examined.
“I’m not a police officer, I’m not a peace officer. I do not have the authority to remove the vehicle off the road,” Smith said.
Kindlon then began to push the blame onto Mavis, which he said misled his client into believing the brakes were repaired and the vehicle could be placed back into service.
He noted that Hussain had no way of knowing that the brakes were improperly serviced and that the issues were never flagged during the roadside inspections.
Rench countered by pointing out that the vehicle should have remained out of service until the additional repairs that caused the vehicle be taken out of service could be made. He questioned Smith about the regulations.
“All out of service defects showing on the report have to be fixed before the decal can be removed,” Smith said.