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Two defendants in Ellicott Creek death of girl, 16, ask for separate trials

The two defendants accused in a fatal boating crash on Ellicott Creek last summer were back in Erie County Court on Monday afternoon to have trial dates scheduled.

It won’t be one trial, however, if the defense lawyers get their way. Attorneys for Gregory G. Green, 18, and Timothy J. Wisniewski, 51, have asked to have the cases separated and Judge Sheila A. DiTullio has set dates for two trials, pending a severance hearing in May.

The District Attorney’s Office is against trying the men separately.

If the judge decides in favor of the defense, Green, of Seventh Avenue, North Tonawanda, would be tried Sept. 12 on 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. Green was 17 and allegedly had blood-alcohol content of 0.15 percent when he was driving the small powerboat down the creek at a high speed between 6 and 7 a.m. June 11. His girlfriend, Avery L. Gardner, a passenger in the boat, struck her head when the craft went under a footbridge at Ellicott Creek Park.

Gardner, 16, died from her injuries. She lived in Lockport, but it was the weekend, and she had spent the night with Green while he partied at the City of Tonawanda home of one of Green’s friends.

Wisniewski, 51, the friend’s father, allegedly stayed up with the teenagers drinking, smoking marijuana and using other drugs at his Young Street home before suggesting that the two young guests see the sunrise from his boat. Prosecutors say Wisniewski had blood-alcohol content of 0.13 percent and also was under the influence of pills and marijuana when Avery was fatally injured.

His trial is scheduled for Oct. 13. He is charged with 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.

Bail was set at $15,000 for Green and $10,000 for Wisniewski when they were arraigned in February, and both men are now free while awaiting trial. They sat in opposite corners of the courtroom Monday, each joined by family members. Gardner’s family also observed the brief proceedings.

Assistant District Attorney Kelley A. Omel told. DiTullio that evidence in the case includes video and still photos taken from the gas stop where the men refueled the boat shortly before Gardner was injured and investigators’ reconstruction of how the incident occurred.

A hearing on evidence in the case and on the request for severance is scheduled for May 23-24.

Note: An earlier version of this story did not contain the district attorney’s objection to the request for severance.