JIM FITZGERALD
Associated Press

WHITE PLAINS, N.Y. (AP) — A special education teacher accused of killing her severely disabled 8-year-old daughter by withholding food and medical care could inherit nearly $1 million from the girl’s trust fund — even if she’s convicted.

Nicole Diggs and her husband have pleaded not guilty to charges of negligent homicide and child endangerment in the 2012 death of Alayah Savarese, who was the beneficiary of a trust fund created from the settlement of a malpractice suit that stemmed from complications during her birth.

The indictment doesn’t allege that the trust fund was a motive, but Diggs’ attorney says prosecutors are nevertheless implying that her client “somehow disposed of her daughter in order to obtain the money.” She wants any mention of the trust fund barred from trial and says her client didn’t neglect Alayah.

Prosecutors in Westchester County say Alayah “was not provided required daily food,” did not receive necessary medical treatment, was often left unattended and was frequently kept home from school, depriving her of physical and occupational therapy.

Authorities say Alayah suffered lacerations, bruises and welts from the neglect. According to court papers, Diggs and her husband, Oscar Thomas — who isn’t Alayah’s father — also “failed to maintain the child’s hygiene which caused her to have smelly and dirty hair and clothing, a foul odor about her body and bleeding gums.”

On the day Alayah died in a Yonkers apartment, she was left in the care of one of Thomas’ friends, who wasn’t equipped to deal with her medical issues, court papers allege.

If convicted, the 32-year-old Diggs wouldn’t be automatically disqualified from inheriting her daughter’s fortune because she isn’t charged with intending to kill the girl. Many states have so-called slayer statutes to prevent profiting from a crime, but New York courts have generally held that without intent, a homicide doesn’t disqualify someone from inheriting from a victim, said St. John’s Law School professor Margaret Turano, a trust and estate expert.

John Riordan, an attorney and former Surrogate’s Court Judge in Nassau County, said, “If it’s unintentional, then the person can still inherit. … But the facts of this case are very unsettling, and under the circumstances, it doesn’t seem correct that that would happen.”

Any challenges to Diggs’ inheritance would be heard in a separate court, Westchester County Surrogate’s Court, where a bank has been named administrator of the girl’s estate.

Alayah’s biological father, Anthony Savarese, who lived elsewhere in Yonkers when Alayah died and isn’t charged, is in line to get half the trust fund. His lawyer declined to say whether his client would challenge Diggs’ inheritance.

A report on Alayah’s death from the state Office of Children and Family Services chronicles a long list of complaints — some of which were determined to be unfounded — and several visits from caseworkers.

The complaints include that Alayah was so dirty the school staff took it on themselves to wash her, and after one shampoo, “the water was black from the dirt.”

Caseworkers reported that although Diggs received some Medicaid assistance, she passed up opportunities to get more help.

The local and state offices of OCFS declined to comment on how social services handled the case.

Court papers indicate some of the settlement money was used to buy a $35,000 van to transport Alayah and to make modifications for her at a home in Dutchess County that Diggs and Thomas were planning to buy.

The state report substantiated various allegations against Diggs and Thomas, including inadequate guardianship and lack of medical care. But it concluded there was “no causal connection” between those allegations and Alayah’s death.

The medical examiner attributed Alayah’s death to her cerebral palsy and seizure condition.

Diggs’ lawyer has filed motions seeking dismissal of the indictment. The prosecution’s reply to that motion and other issues is expected this week. Diggs faces a maximum sentence of four years in prison.

A lawyer for Thomas, 29, wouldn’t comment on the case.

During Alayah’s birth in 2004, the umbilical cord was severed, and she was deprived of oxygen, said Diggs’ lawyer, Arlene Popkin. The complication left her with cerebral palsy, seizures and a lack of limb control, and as she grew, Alayah could not walk, talk or feed herself, Popkin said in court papers.

According to defense papers, Diggs resisted suggestions to institutionalize the girl and raised her with the help of relatives while she graduated from Cornell University, got a master’s degree and was hired to teach special education students at a public school in the Bronx.

Thomas was the stay-at-home caretaker, Popkin said.

Diggs still works for New York City’s public schools, but she has been transferred to administrative duties and isn’t allowed contact with students.

She isn’t permitted to use Alayah’s trust fund for her defense, so her lawyer is being paid by taxpayers.

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