DA Ken Thompson Won’t Say When DWI Killer Might Drive Again [Updated]

The office of Brooklyn District Attorney Ken Thompson won’t talk about reported developments in the case of a defendant who avoided a homicide charge after killing a pedestrian while driving drunk.

Roxana Gomez

Eric Nesmith hit Roxana Gomez at Flatbush Avenue and St. Marks Avenue with a BMW sedan just after midnight on July 5, 2013, according to witness accounts and the Post. Gomez, 27, suffered massive head injuries. She died on July 10.

The Post reported that Nesmith, then 25, of Newark, had a BAC of .126 — the legal limit for driving is .08 — and ”admitted to cops he had consumed up to six Coronas” while celebrating Independence Day before the crash. FDNY first responders said he was speeding. But Nesmith was not charged with homicide by former Brooklyn DA Charles Hynes or Thompson, who unseated Hynes in last year’s election.

Nesmith pled guilty to operating a motor vehicle while intoxicated, an unclassified misdemeanor that carries a maximum sentence of a year in jail, three years probation, and a $1,000 fine. On April 8, Judge Raymond Rodriguez sentenced him to three years probation and a $500 fine, with no jail time, according to court records. Nesmith’s license was suspended for six months, the default penalty prescribed by state law.

Less than two weeks later, on April 21, Nesmith appeared in court for violating his probation, according to WebCrims, an online portal provided by the New York State Unified Court System. On April 24, court records say, his license was revoked.

On Friday, April 25, Streetsblog called Thompson’s office to confirm that the information posted on WebCrims was correct and, if so, to find out what Nesmith did to violate his probation. We were told to send an email to Sheila Stainback, Thompson’s communications director. Within half an hour, Stainback replied: “We’ll get back to you.”

Stainback emailed twice more that day. “FYI — you have inaccurate information, as there is no probation violation,” she wrote. The second email read: “I don’t know from where WebCrims receives it’s info, but it’s inaccurate on this matter.” Stainback said she would send us a “formal response” by Monday, April 27.

That response never came. Streetsblog followed up with Stainback by email on May 1, and asked if we should expect answers to our questions. “I do have a response,” Stainback replied. “Swamped right now — is tomorrow okay?” We wrote back that a response the following day would be fine, but Stainback didn’t contact us again.

Despite Stainback’s “inaccurate information” claim, as of this writing WebCrims still says Nesmith’s license was revoked after a probation violation. He is scheduled to be back in court in June.

Speaking with Streetsblog in 2009, defense attorney Scott Cerbin explained the difference between a license suspension and revocation in New York State. “Suspension simply means you are suspended for a time certain after which you can go to DMV, pay a reinstatement fee, and get your license back,” Cerbin said. “Revocation — which is usually a six month minimum — means that you are revoked for at least a time certain after which you can ask the commissioner to reinstate you.”

Our correspondence with Stainback was not the first time Streetsblog had difficulty obtaining information on this case. When we first called regarding Nesmith’s reported probation violation, a Thompson staffer gave us a phone number for the clerk of courts. When repeated calls to that number went to voicemail, we left a message, which was not returned. Last year, Hynes’s communications staff stopped responding to our queries not long after the crash.

It should be noted that there is no uniform public information-sharing policy among NYC district attorneys. The office of Manhattan DA Cy Vance, for example, generally does not discuss vehicular crimes cases, even after they are disposed or when no charges are brought. Other DAs are more forthcoming, as was Thompson’s predecessor Hynes. A few months into his first term, it’s not a promising sign that Thompson’s office refuses to tell the public whether — or when — a DWI killer might be back behind the wheel.

Update: Sheila Stainback sent us the following statement:

Eric Nesmith did not violate probation. He was re-sentenced because Nesmith lives outside the five boroughs (in NJ) and therefore outside the jurisdiction of NYC Probation. As a result, Nesmith now has been re-sentenced with the following conditions:

– An alcohol treatment program lasting one year with weekly monitoring and alcohol and drug testing
– No driving during the pendency of treatment;
– Five days of STOP-DWI Community Service;
– Attendance at the Victim’s Impact Panel;
– Six months license revocation;
– One year Ignition Interlock Device, and
– A $500 fine.