Top charge dismissed in Roxen Road case

Judge Christopher Quinn dismissed the top charge against five defendants being tried in Nassau County Court for the assault of John Woythaler on Roxen Road in 2012, as the trial wound down on Tuesday.

After appeals from the defense, Quinn dismissed the charge of second-degree attempted assault — which involves the use of a weapon — saying that the beer cans the prosecution said the 18-year-old boys threw at Woythaler, 44, did not constitute weapons, even though prosecutor Brian Lee said the cans were being thrown “vigorously and openly.”

“No jury could find that it was open and vigorous, because no witness other than John said he was struck with a beer can,” said defense attorney John Lewis, who is representing one of the defendants, Matthew DiPerna.

According to police reports, the teenagers shouted obscenities at a resident, later identified as Woythaler’s wife, Meredith, as she walked her dog down Nottingham Road on June 18, 2012. The woman grew fearful, police said, and ran home to tell her husband about the incident. The two then drove around the neighborhood looking for the teens in order to demand an apology from them, before finding the group on Roxen Road.

When Woythaler confronted the group, they attacked and injured him, police said, adding that a second man, who lives nearby, was also attacked after attempting to help his neighbor, and the woman was thrown to the ground during the altercation.

Neither the neighbor nor Meredith Woythaler required medical attention, but her husband was taken by police to Mercy Medical Center, where he was treated for a broken rib, multiple contusions, a cut on his face and an injury to his jaw.

The attorneys representing the accused defendants, DiPerna, William Moore, Kevin Coyle, William Nelson and Nolan Kelly have spent the two weeks of the trial trying to dismantle much of the prosecution’s case.

Lee cited other cases in which a person was assaulted by a number of others. But those cases all involved the use of actual weapons and, as the defense argued, were premeditated. “Each and every case that Mr. Lee cited is extremely distinguishable from this case,” said Michael DerGarabedian, who represents Nelson.

The prosecution said that the boys were acting in concert. “Intent can be formulated almost minutes, seconds, or while the event is occurring…,” Lee said. He also cited a Facebook post by Coyle from the night of the attack, which said, “We jumped an old man.”

“The evidence has amply shown that the defendants were in fact there [on Roxen Road],” Lee said, “and that they all participated in the attack on John Woythaler.”

But the defense saw things differently. Meredith Woythaler testified that seven people attacked her husband, while all of the other witnesses — including her husband — said there were five. Additionally, Lewis said, neither Woythaler nor his wife could identify the five defendants as the attackers.

In fact, the defense alleged, the incident that night was spurred by Woythaler’s actions.

“They have all come together to convict five boys for the actions of John Woythaler,” Lewis said. “He grabbed somebody. You had an adult grab a child, and you’re asking that those children be tried as adults.”

The five defendants still face a charge of third-degree assault, a misdemeanor, which carries a maximum sentence of a year.