FEB. 7 UPDATE: Just before the jury deciding the fate of Dustin Drake was set to start its third day of deliberations in Bath, N.Y., court was canceled for the day when one juror called out sick.

Just before 9:30 a.m. on February 7, Special Prosecutor Ray Benitez told family members of the victims in the 2019 fatal crash that deliberations couldn’t continue without the full jury. As a result, the rest of the jurors were dismissed for the day.

18 News confirmed that at this stage of the trial, alternate jurors won’t be used and have also already been dismissed.

The jury is expected to resume deliberations at 9:30 a.m. on Feb. 8 if there is no sick call.

BATH, N.Y. (WETM) – In its second full day of deliberations, the jury in the Dustin Drake trial indicated it is having difficulty reaching a unanimous verdict. Fifteen minutes before being dismissed for the day by Judge Chauncey Watches, the jury submitted another question to the court. It asked “Does our verdict have to be based on facts only or can it be what we believe?” Judge Watches told the court the question will be answered tomorrow when the jury resumes deliberating at 9:30 a.m.

The question came about three hours after the court received a different note from the jury stating “we don’t want the readbacks, we can’t agree.” Earlier in the morning, the jury had requested “readbacks” of testimony from two witnesses. One was Dr. Stuart Leigh Phoenix, a professor emeritus of mechanical and aerospace engineering at Cornell University. Dr. Phoenix had been called to testify by the defense. The jury wanted to hear Dr. Phoenix’s testimony explaining why he believed the rear driver’s side passenger seatbelt was in use during the crash. Defense attorney Ray Schlather has been trying to prove Mr. Drake was buckled in the rear driver’s side passenger seat on October 12, 2019, when his Dodge Caliber slammed into a tree on County Route 76 in Pulteney. The impact killed 28-year-old Korbie Higgins, 26-year-old Coy F. Miner Jr., 25-year-old Nicole Wise, and 29-year-old Adam Bellamy. Dustin Drake, aged 30 at the time of the crash, survived with only minor injuries. Investigators say Mr. Drake was found about 150 feet away from the wreckage.

The defense has been trying to convince the jury that Nicole Wise may have been in the driver’s seat. Prosecutors say Nicole Wise was seated in the middle rear passenger seat and was unrestrained due to the middle rear seatbelt being “unusable” prior to the crash. The case has largely focused on the condition of the seatbelts in the vehicle, which ones show evidence of being buckled in at the moment of impact, and how they match the injuries of the occupants. According to the prosecution, Korbie Higgins was seated in the rear driver’s side passenger seat. Nicole Wise was in the middle seat. Coy F. Miner Jr. was in the rear right passenger seat. Mr. Miner was found trapped inside the wreckage. Prosecutors say nobody in the backseat was wearing a seatbelt. Adam Bellamy was found on the road still strapped into the front passenger seat, which was ejected from the vehicle. Prosecutors also point to testimony from a New York State Police crash reconstruction investigator, who testified that based upon his analysis, Dustin Drake was driving that night. The investigator also testified Mr. Drake had a right ankle fracture, which he described as a “very common” injury for drivers in crashes due to the right foot being on the gas or brake pedal at the time of impact.

Monday, the jury also requested a “readback” from a parts manager at Simmons-Rockwell, who produced an “exemplar key” or copy for investigators. That exemplar key was later used to match the broken keys determined to belong to the Dodge Caliber. Specifically, the jury wanted to hear testimony regarding “the ignition being in the off position” after the crash.

After receiving the jury’s note stating that it couldn’t agree on a verdict, Judge Watches read the jury what is known as an “Allen charge”, which are further instructions from the court to encourage a split jury to try again to reach a unanimous verdict. In his remarks to the jury, Judge Watches said in part: “It is not uncommon for a jury to find difficulty in reaching a verdict. I want to ask you to continue your deliberations with an open mind. You were the ones in who both sides expressed confidence in, that each of you would be careful and impartial. Both sides continue to have faith in you, as do I. I am not asking any juror to abandon their conscience. Be honest with yourself and other jurors. Be respectful of the feelings and opinions of other jurors. If I can help you in any way, please let me know. I am asking you to make every effort in conjunction with your conscience, common sense and good judgement. Please continue to deliberate with a view towards reaching a verdict.” Judge Watches also told the jury if it does not reach a verdict, a new trial would have to be scheduled, with a new jury.

Judge Watches then read the definition of “proof beyond a reasonable doubt” again, as had been requested earlier by the jury.

In an exchange with prosecutors after jurors had left the courtroom, defense attorney Ray Schlather stated the prosecution’s case was “built entirely on circumstantial evidence.” Mr. Schlather added “there is no direct evidence of operation” of the vehicle. Monroe County Assistant District Attorney Drew Kroft told the court he disagreed. Mr. Kroft said while there were no eyewitnesses that saw Mr. Drake get in his car and drive away the night of the crash, the prosecution did present testimony to prove Mr. Drake’s intent to drive. In the prosecution’s closing arguments last week, Mr. Kroft told the jury “there is no question” Mr. Drake was the one driving. Mr. Kroft reminded the jury of prior testimony from bar employees who testified Mr. Drake was holding his car keys as he was about to leave. A bar employee also testified that Mr. Drake stated that he “had to drive too” as he ordered another drink before last call. A bartender testified Mr. Drake had “2 or more drinks”. Evidence shows his blood alcohol content was .21. During prior testimony, defense attorney Ray Schlather noted the other 4 occupants of the vehicle also had blood alcohol levels that were significantly higher than the legal limit of .08. Korbie Higgins had a BAC of .23. Adam Bellamy had a BAC of .21. Nicole Wise had a BAC of .16. Coy F. Miner Jr. had a BAC of .11.

On Friday, the jury requested to see the vehicle’s steering wheel airbag. In his closing arguments, defense attorney Ray Schlather told the jury that a “mix of DNA from no less than 4 donors” was found on the center of the steering wheel airbag. One of the DNA traces was matched to Mr. Drake. According to Mr. Schlather, proper testing was not done to identify the other 3 DNA samples found on the airbag. No DNA testing was done on the driver’s side interior and exterior door handles. The driver’s side door handles were also not dusted for fingerprints. No DNA analysis was done on the vehicle’s keys. The keys were also not dusted for fingerprints.

Also on Friday, the jury had requested to review other physical evidence, including the driver’s seat, the vehicle’s center console, and the front and rear seatbelts. A juror stated he wanted to see if the driver’s seatbelt could still latch properly into the buckle. Judge Watches asked everyone to leave the courtroom while the jury conducted its analysis.

The jury also asked to see Drake’s medical records, and autopsy records of the four deceased occupants. Judge Watches told the jury autopsy records were not entered into evidence. The jury also requested to see police body cam video. Judge Watches told the jury police body cam video was also not entered into evidence. The jury also requested a ruler or yardstick, as well as folders and paper clips to organize themselves.

If convicted on the most serious charges of aggravated vehicular homicide, Mr. Drake faces between 8 to 25 year in prison, according to special prosecutor Ray Benitez. Drake’s initial DWI charge was raised to a felony due to a prior DWI conviction within the last 10 years. Mr. Drake did not take the stand in his own defense. According to testimony from the lead county investigator assigned to the case, just days after the crash Mr. Drake said the last thing he remembered was “being in a passenger seat” and then waking up on the grass.

Jury deliberations resume Tuesday at 9:30 a.m.