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Jury hears boat owner's interview after fatal Ellicott Creek crash

The morning after the Ellicott Creek boat ride that killed Avery Gardner, Timothy Wisniewski was relaxed and cooperative during interviews with detectives who were investigating the incident.

Recordings of those interviews were played for the jury Monday during Wisniewski’s trial on charges of criminally negligent homicide, operating a vehicle while under the influence of alcohol, endangering the welfare of a child and unlawful possession of marijuana.

[Related: Teen on fatal Ellicott Creek boat ride tells a different tale]

Wisniewski, 51, owned the boat and was in it on June 11, 2015, when 17-year-old Gregory G. Green, then 17, drove the craft under a pedestrian bridge and Gardner, who was 16, hit her head.

Detective Russell Paternostro of the Town of Tonawanda police conducted the interviews that day and was on the witness stand in Erie County Court Monday. He testified that he talked to both Green and Wisniewski within hours of the emergency call to the creek, and before any of them knew that Gardner’s injury was fatal.

The detective also testified that, once Green knew Avery had died, he changed his story.

Wisniewski did not.

Wisniewski says in the police interview that he had been drinking with the teens during the late night hours at his house on Young Street. At about 6 a.m., he told the detective, Green said that he and Avery wanted to go out in the boat. Wisniewski was fine with that, but told them they would have to get gas for the boat first before they could go very far.

“We got gas, we went to Sunoco, and we come back and he’s driving and she’s standing. She turned her head, then – boom! She fell into my arms,” Wisniewski says on the recording. “That’s why I’m covered in blood.”

Timothy Wisniewski, left, and Gregory Green.

Timothy Wisniewski, left, and Gregory Green.

Green, who already has pleaded guilty to vehicular manslaughter and is awaiting sentencing, gave a similar account when he testified last week. However, he said Wisniewski was next to him in the front of the boat and that Gardner landed on the bottom of the boat after she hit her head.

Wisniewski said on the recordings that he was standing with “Ava,” as he called her. He said he ducked at the bridge and she didn’t.

“I did everything I possibly could for her,” Wisniewski tells the detective.

Green had testified that they all were drinking on the boat and that Wisniewski brought along marijuana, which they smoked.

Wisniewski denied that either he or Green was drinking by then, although Gardner may have had some beer.

“I think she was drinking on the boat,” he said. “She was enjoying the sunshine.”

Wisniewski also turned pragmatic.

“Can I ask you a question? What happens to my boat now?” he is heard saying in the recordings, asking more than once when he might get the boat back.

Still, he gave police permission to search his boat.

“Not a problem at all,” he said.

[Related: 18-year-old pleads guilty to two charges in death of girlfriend on Ellicott Creek]

In his first interview, before Green changed his story to falsely say Wisniewski was driving the boat, the older man also was generous about his relationship with the teen, who detectives said referred to Wisniewski earlier as his “step-father.”

Green meant that as an affectionate term, not a legal one, Wisniewski said.

“Greg? He’s a really good family friend. I’ve known him for years, I’ve known his father for years,” Wisniewski says, before adding that Green’s dad was “not a very good father.”

Green described his relationship with Wisniewski Sr. as “all right.”

Green had testified that he was at Wisniewski's house because of his personal and business relationship with Wisniewski’s son, Tim Jr. The teens were friends, but Green also was selling pot with Tim Jr., and he testified that was why he went there that night. The reason that he stayed and drank (about 20 beers) was because Tim Jr. “hadn’t re-upped,” so he had nothing to sell.

In Green’s testimony, he said that the defendant bought beer for the teens and that it was his idea to take the boat out.

Gregory Green pleaded guilty to vehicular manslaughter in the second degree and criminally negligent homicide for his role in the June 11, 2015, death of his girlfriend, Avery Gardner, 16.

Gregory Green pleaded guilty to vehicular manslaughter in the second degree and criminally negligent homicide for his role in the June 11, 2015, death of his girlfriend, Avery Gardner, 16.

Wisniewski told the investigators that Green and Avery both brought beer over themselves, and that Green “kept asking” to go on the boat.

“They wanted to see the sunrise,” he says in the interview. He thought it would be harmless fun, he said, “and then look what happened.”

Paternostro brought up the fact that Green and Gardner were only 17 and 16 years old, well below the legal drinking age.

Wisniewski acknowledged that he realized that, and fell back on a common justification for allowing them and his underage son to drink at his house..

“I’d rather they did it at home, not on the railroad tracks, you know what I mean?” he said.

Wisniewski was free to go home after his morning interview, but investigators brought him back for a second interview in the afternoon, after Green changed his story and said he wasn’t driving the boat.

Asked if he ever took a boating safety course, Wisniewski said, “Yeah, years and years ago.”

He said he knew the boating speed limit on the creek was 5 or 7 mph, with no wake, and estimated they were going 10 mph, maybe 15. Crash reenactors testified the boat was going at minimum between 22 and 29 mph when it went under the bridge.

Witnesses who reported the boat was speeding and fishtailing were wrong, Wisniewski said in the interview.

He also adjusted where he was in the boat when it came to the bridge, realizing, he said, that he had come forward to tell Greg which way to go.

At this point in the interview, Paternostro tells Wisniewski, “Greg is changing his story. He says you were driving. He said he only said he was driving because you had been drinking and had pot and pills on you.”

[Related: Family drama leads to doubling of bail for man charged in Ellicott Creek boating death]

At this point in the recording, Wisniewski sounded riled.

“Why is he trying to protect me?” he answered, denying he had any pills on him. “I was trying to help the girl. I went home and cried my (expletive) eyes out.”

He said he never drove the boat except to pull away from the dock and to beach it at the Sunoco, that Avery drove it up the creek and Green drove it down. Even so, he said, he did feel somewhat responsible, “because I’m an adult.”

The recordings were heard after Green returned to the witness stand for more cross-examination. Defense attorney Anthony Lana sought to reinforce the fact that Green, who is now 19, repeatedly lied to police, investigators from the District Attorney’s Office and the grand jury about whether he was driving the boat and about the sequence of events before the incident.

Green, who previously testified he had smoked pot almost every day since he was about 13 and that he regularly drank as well, said he lied because he was scared.

“I didn’t want to get in trouble. I was still out of it,” he said.

He testified earlier that he has been sober and drug-free since his arrest in February.

“Why are you telling the truth now?” Lana demanded.

“Because I pled guilty and I have to tell the truth,” Green said. “It’s right. It’s the right thing to do. Plus, I don’t want to get in trouble.”

For the first time during his trial, which began a week ago, Wisniewski turned his face away from the witness stand and made something like a smile.

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