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Not guilty verdict for tow truck driver on trial for criminally negligent homicide

By Tom Rivers, Editor Posted 27 September 2019 at 1:41 pm

ALBION – A tow truck driver has been found not guilty of criminally negligent homicide in the death of Albion native Matthew Gardner.

Kevin Lupiani was driving a tow truck for A & M Automotive and Transmission in Murray when he went through a stop sign at about 10:30 p.m. on July 24, 2018 at the intersection the intersection of Fancher Road and Route 31A in Clarendon.

The tow truck hit the driver’s door of the 2013 Chevrolet Silverado truck driven by Gardner, who was killed.

Lupiani was on trial this week for criminally negligent homicide. He faced up to 1 1/3 to 4 years in state prison if found guilty.

His attorney, George Muscato, argued in court that the crash was an accident and wasn’t the result of gross negligence on behalf of Lupiani.

“People are human, they make mistakes,” Muscato told jurors during his closing argument this morning. “If we are going to start charging people for criminally negligent homicide for driving a vehicle, we are all in trouble.”

Orleans County Sheriff’s Office investigators said Lupiani was driving 61 miles per hour when he hit Gardner. Muscato hired a forensics engineer to analyze the crash. Martin Gordon, an RIT engineering professor and owner of Gordon Engineering PC, did an analysis of the accident and determined Lupiani was going 54 mph, while Gardner was going 56.

Gordon also studied photos from the scene that showed the stop sign was off by a 15-degree angle which he said reduced the reflectivity by 20 percent. There also should have been a sign 990 feet from the intersection, warning drivers there was a stop sign ahead, Gordon testified on Thursday.

He also said bushes by the road were a visual obstruction, and the driving conditions were further challenged by the darkness, rain and patchy fog that night.

Robert Zickl of Genesee County served as special prosecutor in the case. He said the weather conditions should have caused Lupiani to drive well below the speed limit, which was 55 mph.

A reasonable person would have gone much slower, especially when driving an 11,660-pound tow truck, Zickl said.

Gardner’s vehicle weighed 5,426 pounds, less than half the tow truck.

Zickl said Lupiani should have been extra cautious as a professional driver with a very heavy vehicle.

“This accident took place because Mr. Lupiani drove an extremely heavy vehicle at an extremely high rate of speed into someone else’s lane,” Zickl said during his closing arguments. “If you’re operating a vehicle that weighs 11,660 pounds, we have a right to expect you’ll be more careful.”

Lupiani was headed to Geneseo to deliver batteries to another tow truck driver. Lupiani didn’t testify during the trial. Muscato, his attorney, said Lupiani wasn’t impaired by alcohol or drugs, and wasn’t using his cell phone. He blacked out when he drove through the stop sign, Muscato said in court.

Zickl challenged that, saying Lupiani recalled the phone number at the scene for Tony Manno, A & M owner, and was able to answer questions from deputies.

Zickl also said Lupiani was very familiar with the intersection through his job driving for A & M.

Muscato said he was sympathetic to Gardner’s family and loved ones. But Muscato said the accident should be considered an “accident,” not a crime.

“This does not rise to the level of gross conduct,” Muscato said.

The jury of 12 included 8 men and 4 women. They started deliberations at about 11:30 a.m. today and announced their verdict at about 1:15 p.m.

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