A week and a half after he was sentenced to prison, Kevin McCabe regained his freedom, at least temporarily.
The Appellate Division on Wednesday approved a stay of sentencing for McCabe while his attorney, Scott Riordan, appeals his conviction.
In September, a State Supreme Court jury found McCabe guilty of second-degree manslaughter for driving his pickup truck into the back of a tractor-trailer in October 2015, a crash that killed McCabe’s 4-year-old son, Tristan. McCabe was jailed after the verdict and on Nov. 10 Justice M. William Boller sentenced him to two to six years in prison.
Immediately after the verdict was delivered Riordan said he would appeal the case, arguing that the evidence presented during the trial did not support the charge of manslaughter.
He reiterated that belief on Wednesday, after he had driven the appeals paperwork to Rochester in order to have it signed before the holiday weekend.
“The facts do not support the conviction,” Riordan said. “There was no recklessness on the part of Kevin McCabe, no speeding.”
McCabe, 32, of Belfast was driving slightly under the speed limit on Route 16 in Sardinia when his pickup truck rammed the back of a tractor-trailer. That vehicle had pulled over and slowed to turn into a driveway, but the road leading to it was straight and the day was sunny.
Prosecutors had no witnesses who said they saw any erratic driving by McCabe before the crash, other than one man who said the truck may have overcorrected once on a turn. However, accident reconstruction showed that McCabe never applied the brakes before the collision, and that his pickup was at least partly over the fog line onto the shoulder when it went under the larger vehicle.
McCabe’s son and his 7-year-old niece were riding in the front seat of the pickup, and neither was in a child safety seat. The girl sustained a broken leg. Tristan, who was McCabe’s only child, suffered massive head injuries and died two days later at Women & Children’s Hospital.
Riordan also had made the same arguments about the lack of evidence before sentencing and asked Boller to set aside the verdict then. Prosecutor Christopher Belling said at that time that the fact that McCabe didn’t take any evasive action to avoid the crash was reckless in itself.
Nichalos Texido, an appeals attorney with the District Attorney's Office, said it was not unusual for an Appellate justice to order a stay of sentencing when the defendant is facing a relatively short prison term.
"If they overturn [the conviction], they don't want him to have had to serve his full sentence by the time he gets out," he said.
Nevertheless, Acting District Attorney Michael J. Flaherty Jr. said he is confident the conviction will be upheld on appeal and McCabe will serve his sentence.
"We agree with the jury and Justice Boller that the evidence was sufficient to warrant this conviction," Flaherty said.
Riordan has until March 23 to file the appeal.
Appellate Justice Patrick H. NeMoyer set bail at $7,500 for McCabe, who still was at the Erie County Correctional Facility in Alden awaiting transfer to the Department of Corrections.
“He should be getting out now,” Riordan said. “He will be spending Thanksgiving with his family.”