JIM FITZGERALD
Associated Press

WHITE PLAINS, N.Y. (AP) — Homicide charges have been dismissed — at least temporarily — against a couple accused of killing the woman’s severely disabled daughter by withholding food and medical care.

A Westchester County judge ruled this week that a detective’s testimony to the grand jury that indicted Nicole Diggs and Oscar Thomas was inaccurate in several respects. The judge also said the detective improperly suggested that the girl’s $2 million trust fund was a motive in her death.

“The integrity of the grand jury was impaired so that prejudice to the defendants may have resulted,” Judge Barbara Zambelli said. She said prosecutors could start over with a new grand jury.

Diggs, 32, a special education teacher, and Thomas, 29, who married after the girl’s death, had pleaded not guilty after being charged with negligent homicide and child endangerment in the 2012 death in Yonkers of 8-year-old Alayah Savarese.

Because of complications at birth, Alayah could not walk, talk or eat and had cerebral palsy and seizures. She was the beneficiary of a trust fund created when a malpractice suit was settled.

Prosecutors said the girl did not receive proper nutrition or medical treatment, was often left unattended and was frequently kept home from school, depriving her of physical and occupational therapy.

They never alleged a motive, but Diggs’ lawyer, Arlene Popkin, has claimed they implied it was the money. Even if convicted of negligent homicide, Diggs would not be automatically disqualified from inheriting because intent is not an element of the crime.

The judge said that although some grand jurors asked to see Diggs’ and Thomas’ videotaped statements to police, the assistant district attorney instead had a Yonkers detective testify about what they said.

Zambelli viewed the videos and said the detective was inaccurate about the defendants’ statements on how Alayah was bathed and fed, why she was kept home from school, and on whether he provided them with Miranda warnings.

The judge said the detective also was misleading about what Diggs told him about the trust fund. He told the grand jury the couple planned to use money for a new home and a Mercedes Benz, “contentions for which there is no evidentiary support whatsoever.”

“It suggested a motive for the crime, despite the fact that the defendants are charged with criminally negligent homicide as opposed to an intentional homicide,” the judge wrote.

The district attorney’s office is expected to decide by Oct. 21 whether to take the case to a new grand jury. Spokesman Lucian Chalfen said the office was considering its options. Neither Popkin nor Thomas’ attorney, Michael Rubin, would comment on the ruling.

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