WHITE PLAINS, New York — Prosecutors said Tuesday they can no longer support a homicide charge against a special-education teacher who had been accused of killing her severely disabled daughter by neglecting her.
A new indictment unsealed at the Westchester County courthouse alleges only child endangerment against Nicole Diggs and her husband, Oscar Thomas, of Yonkers.
Diggs' 8-year-old daughter, Alayah Savarese, died in 2012. Because of complications at birth, Alayah could not walk, talk or eat and had cerebral palsy and seizures. Prosecutors said Alayah did not receive proper nutrition or medical treatment.
The original indictment, alleging negligent homicide, was dismissed in September because of faulty grand jury testimony, including a detective's suggestion that the girl's $2 million trust fund was a motive in her death. The fund was created when a malpractice lawsuit was settled.
Judge Barbara Zambelli told prosecutors then that they could seek a new indictment. But Assistant District Attorney Audrey Stone said Tuesday that before they went to a second grand jury, "We determined that certain facts had changed. That process led us to the conclusion that the charge of criminally negligent homicide was not an appropriate one."
She did not detail what had changed. The district attorney's office would not comment.
Diggs' lawyer, Arlene Popkin, and Thomas' attorney, Michael Rubin, would not comment outside the courtroom.
Diggs, 32, and Thomas, 29, married after Alayah's death. They each pleaded not guilty to the endangerment charge, which carries a maximum sentence of one year in prison upon conviction. They each would have faced up to four years if convicted of negligent homicide. A court conference was scheduled for Dec. 9.
In support of the previous indictment, prosecutors said the girl was often left unattended and was frequently kept home from school, depriving her of physical and occupational therapy.
They never alleged a motive, but Popkin has said they implied it was the money. Even if convicted of negligent homicide, Diggs would not have been automatically disqualified from inheriting the trust fund because intent was not an element of the crime.