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In trial on Times Square carnage, driver’s insanity defense put to jury

Richard Rojas killed a teenage tourist while he was behind the wheel but he could be committed to a hospital instead of prison.

MANHATTAN (CN) — Five years after a U.S. Navy veteran killed a teenage tourist by plowing his car across three blocks of sidewalk in Times Square, a rampage on Seventh Avenue that ended with the red Honda Accord impaled on a cement security bollard and at least 20 other pedestrian injuries, the driver’s long-delayed trial came to a close on Wednesday morning.

Delivering defense summations for two hours and 20 minutes Wednesday, attorney Enrico DeMarco urged the jury to find that Richard Rojas, 31, lacked the substantial capacity to know or appreciate the crimes he committed in May 2017.

Just as he argued at the start of trial five weeks earlier in Manhattan, DeMarco maintained that Rojas was “actively psychotic” at the time of the crash and should be judged not responsible for any crime “by reason of mental disease or defect.”

“He lost his mind, it’s very simple he’s in an acute psychotic moment,” DeMarco said as he played a video shot by an Associated Press reporter of Rojas’ arrest in Times Square.

The frantic video shows an unhinged and shirtless Rojas wailing as he collapses onto a security barricade and then onto the sidewalk after his crash. “What the fuck is happening,” Rojas is heard screaming.

DeMarco said the footage is clear. “He had no true appreciation, he had no true understanding of what just happened.”

Rojas was hearing supernatural voices — what psychologists call “command or auditory hallucinations” — as he careened through Times Square, DeMarco told jurors. The schizophrenic delusions and hallucinations told Rojas he was navigating an interdimensional “portal” filled with spirits who could be freed from a purgatorial “limbo” if he crashed into them.

The jury will begin deliberations on Tuesday, June 21, after the court’s observation of the Juneteenth holiday on Monday.

At the start of the long-delayed trial, New York Supreme Judge Daniel Conviser insinuated the possibility of a paradoxical outcome from Rojas’ case: Jurors could find Rojas guilty while at the same time deciding that he “lacked responsibility by reason of mental disease or defect.” The judge said the finding would qualify him for an open-ended “involuntary mental commitment” instead of a lengthy prison term.

This selfie photo shows Jyll Elsman, far right, with her daughters, Ava Elsman, far left, and Alyssa Elsman, center, and an unidentified family friend, posing on May 18, 2017, in New York. Later that day, Richard Rojas drove his car down the Manhattan sidewalk for three blocks, killing Alyssa and leaving dozens of other pedestrians including Ava severely injured. (Jyll Elsman via AP)

Rojas faces an 29-indictment, which carries a top count of second-degree murder for the death of Alyssa Elsman, an 18-year-old tourist who was the only fatality that Rojas cased in the melee of May 18, 2017.

Rojas’ defense found a key witness in Ziv Cohen, a psychiatrist on the faculty at Weill Cornell Medical College and at Columbia University, who diagnosed Rojas as schizophrenic. Unlike more common psychological disorders, schizophrenia is “a brain disease, so it’s a chemical imbalance in the brain” that made Rojas prone to hallucinations, Cohen testified.

While in the Navy, Rojas began to hear voices, the doctor said.

Rojas’ mental health went untreated and deteriorated after he was dishonorably discharged from the Navy in 2014 — the result of a court-martial stemming from an arrest for beating a cab driver, rendering him ineligible for continuing health care from the Department of Veteran Affairs.

One of the voices Rojas heard was named James, whom Rojas considered to be a “supernatural, God-like figure who had special information,” according to Cohen's testimony. On the day of the Times Square incident, James purportedly told Rojas he needed to crash his car into “spirits” around him — acts that Rojas believed would send them to heaven and release him “from the torture that he is experiencing as part of his psychosis," Cohen said.

Alfred Peterson, senior trial counsel for the Manhattan District Attorney’s Office, told jurors Wednesday afternoon that there is no dispute about Rojas’ schizophrenia diagnosis. Peterson was insistent, however, that the schizophrenia diagnosis does not negate that Rojas was well aware of the violence he unleashed by plowing through helpless tourists visiting the popular destination known as “the crossroads of the world.”

“He does not lack substantial capacity to know or appreciate that such conduct was wrong,” Peterson said Wednesday afternoon. “You don’t need a doctor to tell you any of that.”

Peterson, a former Marine captain, showed jurors a sequence of grisly crime-scene and hospital photographs of individual victims of the Times Square rampage, detailing the injuries each suffered.

“There is no doubt that he was operating that car and he was able to perceive everything that was going on around him,” Peterson said. 

“He had substantial capacity, not just surface knowledge, of everything he was dealing with that day,” the prosecutor added later.

The top charge, second-degree murder, requires the prosecution show that Rojas “evinced a depraved indifference to human life,” Peterson told jurors.

For the Manhattan DA’s Office, it is the timing of Rojas’ U-turn and his precision while driving through narrow scaffolding on the sidewalk that contradict his insanity defense of being someone “crippled by mental illness.”

DeMarco meanwhile played a short video montage of photographs culled from Rojas’ cellphone to bolster the defense’s claims of paranoia and schizophrenia. One photo showed Rojas' laptop with the camera lens covered due to paranoia of surveillance. Others captured a plaque outside of a Church of Scientology in Georgia, a New York Post cover page with the headline “iSPY,” a “fictitious lottery ticket” and “a voodoo picture.”

“This is a very sick man, ladies and gentlemen,” Demarco told jurors in the conclusion of his closing.

Peterson told jurors not to be distracted by Rojas’ diagnosis. It is "not mutually exclusive," he said, for Rojas to have been aware that he was driving into actual people while also believing he was hitting "spirits.”

"He knew they were people," Peterson concluded, pounding his fist on the lectern with each syllable.

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