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Prosecutors: Two were drunk at time of Ellicott Creek boat fatality

The boating crash that took the life of a 16-year-old girl last summer on Ellicott Creek occurred after the two men she was with had spent the night drinking, smoking pot and taking other assorted drugs, prosecutors said. They charge that the men’s intoxication and recklessness are what caused the girl’s death.

Gregory G. Green, 18, of Seventh Avenue, North Tonawanda, and Timothy J. Wisniewski, 51, of Young Street, City of Tonawanda, were arraigned in State Supreme Court on Monday afternoon on several charges in the June 11 death of Avery Gardner of Lockport, who was Green’s girlfriend.

Investigators have identified Green as the person driving the small powerboat at a high rate of speed when Avery struck her head when they went under a footbridge. He is charged with three counts of second-degree vehicular manslaughter, criminally negligent homicide, two counts of operating a motor vehicle while under the influence of drugs and alcohol, and endangering the welfare of a child.

Assistant District Attorney Kelley Omel told Justice John L. Michalski that Green, who was then 17, had a blood-alcohol content of 0.15 percent at the time of the crash, along with marijuana and amphetamine in his system.

She also said that “Green had the temerity to tell different people different things (about the incident) and then lie about it,” including admitting and then denying that he was operating the craft when his girlfriend was injured.

Wisniewski, who owned the boat, reportedly had a BAC of 0.13 and also was under the influence of pills and marijuana when Avery was fatally hurt, prosecutors said. He faces charges of criminally negligent homicide, two counts of operating a vehicle while under the influence of alcohol, endangering the welfare of a child and unlawful possession of marijuana.

Green is said to be a friend of Wisniewski’s son and the three were at the Wisniewski home before they allegedly decided to go out on the boat to see the sunrise. When the boat was passing under the footbridge at Ellicott Creek Park near Thistle Avenue, Avery struck her head on the bridge. The first call for help came in at about 6:46 a.m.

Town of Tonawanda police said the indictments against Green and Wisniewski were the “culmination of eight months of investigation” and that investigators spent “hundreds of man-hours” on the case, including conducting interviews, going through toxicology results and performing accident reconstruction.

“Going forward, we hope that the facts that were uncovered in this case help the family of Avery Gardner in seeking the closure they rightfully deserve,” the police said in a statement.

Acting District Attorney Michael J. Flaherty Jr. credited the Tonawanda investigators, the Erie County Sheriff’s Marine Unit and State Police for performing an exhaustive investigation to clarify the events of that morning.

The evidence showed that Avery’s death was not accidental, he added.

Asked whether the defendants could argue that Avery was in some way responsible herself, Flaherty said that is not what the evidence shows.

“She is innocent. She did nothing wrong. I would say she is akin to a passenger in a car hit by a drunk driver,” he said.

In reviewing the charges in court, Omel said that Wisniewski had been drinking through the night before going out on his boat with two juveniles, a cooler of beer and more pot in his possession. In asking for bail of $50,000, she said that Wisniewski was not gainfully employed, and cited his criminal record that included robbery, petit larceny, aggravated harassment and DWI.

If convicted in this case, he could be sentenced to up to four years incarceration.

His attorney, Anthony J. Lana, argued that Wisniewski cooperated fully with police and assists in the day care of a grandchild.

Omel also requested $50,000 bail for Green, citing his shifting versions of the events and his proven “willingness to lie to authorities.”

Green’s attorney, Daniel P. Grasso, said he is coming to terms with the tragedy, lives with his mother and is under psychiatric care.

“He doesn’t leave his home, he doesn’t go to the store or see anyone,” Grasso said. “He’s remorseful and sorry.”

Accepting each man’s plea of not guilty, Michalski set bail at $15,000 for Green and $10,000 for Wisniewski.