Niagara Gazette

November 15, 2012

Motorcyclist who killed two had three prior DWIs

By Jessica Bagley
Niagara Gazette

Niagara Gazette — AMHERST — The motorcyclist who veered off the road Sunday afternoon and fatally injured two pedestrians appeared in town court Thursday.

David A. Smith, 53, of the Falls was charged with drunken driving when the incident occurred. Thursday, he waived his right to a preliminary hearing in Amherst Town Court before Judge Mark Farrell. The case will now go directly to an Erie County grand jury. 

The Niagara Falls man was arraigned on two counts of criminally negligent homicide and DWI Monday afternoon at Erie County Medical Center. He has since been released from the hospital and is being held without bail. 

He was also charged with several vehicle and traffic violations, including a helmet violation, moving from a lane unsafely and unreasonable speed. 

Defense attorney Joel Daniels will be representing Smith in the case.

Daniels also represented Dr. James Corasanti earlier this year. But despite his success in obtaining an acquittal for Corasanti, he wouldn't comment on the strategy on the current case — including details like whether Smith will take a plea or go to trial. 

"We don't know what direction this case is going to go in," he said. "It is too early." 

Daniels also offered his condolences to the victims' families. 

"This was a terrible, terrible tragedy and our hearts go out to the Elbersons and the Peltons," Daniels said. 

Daniels also said Smith feels terrible about the accident. 

Assistant District Attorney Kelley Omel, who was also on the Corasanti case and heads the district's Vehicular Crimes Bureau, will be prosecuting Smith. 

Thursday, Omel told Farrell about Smith's three previous DWI convictions.

"There were two misdemeanors and one felony DWI," Omel said. "To my knowledge, the most recent one occurred in 2000 in New York."

According to the New York State Department of Motor Vehicles, Smith's current record before Sunday's incident was clear, as DWI charges are removed after 10 years.

Those convictions will also be inadmissible in court as a result.

Smith's facial injuries, including bruises under both of his eyes, were visible Thursday. He didn't speak and was quite subdued, letting Daniels take responsibility for communicating with the judge. 

In line with the seriousness of the charges, Farrell's discourse was quite firm. He called the incident a "tragic situation" and said he wouldn't entertain requests to release Smith on bail.

"You are probably going to make a request anyway," Farrell told Daniels. "But I am not going to do that."

Daniels said he reserves his right to make a request, but wouldn't confirm that decision yet.

In a matter of procedure, Smith's license was also revoked at Omel's request. 

The accident occurred Sunday at around 3:20 p.m. Smith was driving in Amherst on Tonawanda Creek Road between Campbell Boulevard and Hopkins Road when he veered off the street, hitting three pedestrians and killing two women.

Jocelyn B. Elberson, 25, of Tonawanda, was killed while on a walk with her puppy. Sheila Pelton, 81, of East Amherst was also killed. Both were transported to Millard Fillmore Suburban Hospital, where they were pronounced dead.

Sheila's husband, Foster Pelton, 79, was also hit and was sent to Erie County Medical Center, where he is now listed in serious condition.

Smith will likely have to undergo operations on his face next week, but walked away from the accident with only minor injuries in comparison to those he hit. 

He refused a breath test after the accident, but a court order was obtained for a blood draw.

The victim's families were not in court Thursday. Smith did nod to a middle-aged man in the courtroom, but he declined an interview.

Contact reporter Jessica Bagley at 693-1000, ext. 4150.