By MICHAEL VIRTANEN
Associated Press

ALBANY - New York's top court on May 1 threw out the homicide conviction of a teenager who spent almost two years in state prison, essentially for speeding.

Brett Cabrera was driving four friends to a lake for a swim after school when he crashed the sport-utility vehicle. Three died, and the fourth teenager was seriously injured. Cabrera, the only one who wore a seat belt, survived the June 2004 wreck, but faced charges of assault and three homicide counts.

Although no drinking or drugs were involved, he was convicted and spent the next two years in state prison, including serving time in a maximum-security facility. Now the Court of Appeals says the tragedy was an accident, not a crime.

"I'm trying to get a career in occupational therapy, so this will help," Cabrera, now 20, said by phone from Orlando, Fla. He declined to talk about the case, saying he wanted to put it all behind him. "I just want to live my life to the fullest."

The Court of Appeals, divided 4-3, dismissed the assault and homicide convictions against Cabrera in Sullivan County Court.

The court majority said there needed to be another "morally blameworthy component" besides speeding to sustain criminal negligence. They said Cabrera, as an inexperienced driver, simply misjudged the risk and his skill on the curve where the SUV went off the road.

Investigators said he was driving 70 to 72 mph. The speed limit was 55 on the road, and a nearby sign indicated "40 mph curve." Cabrera was also found guilty of reckless driving and several traffic violations.

Killed were Maximilian Gonzalez, 18, of Monticello; Sierra Cerrone, 14, of Harris; and Ashley Morgan, 15, of Monticello. Another passenger, 17-year-old Santiago Mendoza of Monticello, was injured.

In the decision by Hon. Susan Read, the court majority said Mendoza's testimony didn't support the prosecutor's inference that Cabrera was showing off. Mendoza said the others were talking among themselves and listening to rap music while Cabrera drove. Cabrera tested free of alcohol and drugs.

"For a 17-year-old to badly misgauge his ability to handle road conditions is not the kind of seriously condemnatory behavior that the Legislature envisioned when it defined ‘criminal negligence,' even though the consequences here were fatal," Read concluded. "This crash resulted from noncriminal failure to perceive risk; it was not the result of criminal risk-creation."

Chief Judge Hon. Judith Kaye, Hon. Eugene Pigott and Hon. Theodore Jones agreed.

In a dissent, Hon. Victoria Graffeo said there was enough evidence for the jury to conclude that Cabrera was attempting "a racing-car type stunt" on the dipping curve. "We have repeatedly determined that excessive speed, when coupled with some other culpable conduct - such as drag racing, driving the wrong way or running a red light - constitutes legally sufficient evidence" to show criminal negligence, she wrote.

Hon. Carmen Beauchamp Ciparick and Hon. Robert Smith agreed.

Police said the tire marks showed that the vehicle was "side slipping" as the SUV went out of control, crossed the double yellow line and went rear-first down an embankment. The evidence showed that Cabrera didn't brake and had first crossed the double-yellow line ahead of the curve in an attempt to "flatten out" the turn, Graffeo wrote.

District Attorney Stephen Lungen said last week that he hadn't seen the ruling and declined to comment.

Defense attorney Gerald Orseck said there have been many accidents on the same curve, the convictions were "a gross miscarriage of justice," and "the sad part" was that the judge declined to let Cabrera remain free on bail during the appeals. "He poses no danger to the society. He didn't rob a bank. It just made no sense," he said.

Cabrera spent almost six months in medium-security Wyoming prison, including 52 days in special housing after a blade fashioned from a can lid was found hidden in his cell, then 15 months at maximum-security Coxsackie prison, corrections spokeswoman Linda Foglia said.

Cabrera has had trouble getting a job because on application forms he had to indicate his homicide convictions, Orseck said. "He's been on parole. The parole ends now, which has been really burdensome, too."