There are some things everyone appears to agree on about the night and early morning activities that ended with the death of 16-year-old Avery Gardner.
As defense attorney Anthony Lana said in his closing argument in the trial of his client, Timothy Wisniewski Sr.: There were three people in a boat on Ellicott Creek on June 11, 2015. Seventeen-year-old Gregory Green was driving. And Gardner, who had her 16th birthday two weeks earlier, stood up in the boat, hit her head on a steel support beam on a pedestrian bridge and died a short time later.
Green, now 19, pleaded guilty earlier this year to vehicular manslaughter in the second degree and criminally negligent homicide. He is scheduled to be sentenced in December.
Wisniewski, who has been jailed since May with bail set at $20,000, faces the lesser charge of criminally negligent homicide, plus two counts of operating a vessel under the influence of alcohol, endangering the welfare of a child and unlawful possession of marijuana.
The question for the Erie County Court jury is whether Wisniewski was responsible, along with Green, for the actions that led to Gardner’s death.
Lana told them he was not responsible.
In a lengthy closing statement, Lana attacked the credibility of Green’s testimony about the night before the boat ride. Green explained that he sold large amounts of marijuana with his friend, Wisniewski’s son, also named Tim, and he went to the Wisniewski cottage June 10 to “re-up” his supply. What followed, he said, were several hours of excessive drinking by himself and other underage people in the house, including Tim Jr., a 20-year-old male who lived there, Tim’s 15-year-old girlfriend, Avery and Tim Sr.
Green said that Wisniewski Sr. bought them a 30-pack of beer and that it was the defendant’s idea to go out on the boat.
The defense called the 20-year-old and Tim Jr.’s girlfriend to the stand Wednesday morning to contradict Green’s account. Both testified that Green brought beer with him, and that Avery also brought beer with her that had been left-over from her birthday party.
They also said Green later went to buy more beer, although he is underage. They each said they all went on an earlier boat ride, around midnight, and that it was Green who asked Wisniewski to go out again at about 6 a.m.
“It’s human nature to want to assign blame,” Lana told the jury. “One life has been lost and many others have been affected. Let’s not compound the tragedy."
“Hold Gregory Green responsible for Gregory Green’s actions.”
Poor decisions, he said. Yes, Wisniewski made them. A poor role model? Yes, he was that, too, Lana said. But, he argued, he was not guilty of homicide.
Assistant District Attorney Kelley A. Omel followed Lana by saying that Gregory Green’s bad decisions that day all were preceded by Wisniewski’s own bad decisions, and that was why Avery died.
“The defendant created the environment for teens to drink and smoke,” Omel told the jury. “He provided the location where there appeared to be no rules.”
He also provided the boat, she said.
“The defendant made the decision to take a drunk and high 17-year-old boy out on a boat and turn the controls over to him,” she said. “He did this knowing there were two bridges on this creek. And he made one more bad decision when he allowed Gregory Green to speed on the creek as they approached the pedestrian bridge.”
Omel made it clear that prosecutors were not saying both men were equally culpable. Green pleaded to the more serious charge.
A person guilty of criminally negligent homicide, she said, causes the death of another person by engaging in “blame-worthy” conduct that fails to perceive risk that most people would be aware of.
The jury will receive the formal charges from Judge Sheila A. DiTullio on Thursday morning and begin deliberations.