By Michael Donoghue
Vermont News First
The Shelburne Police officer charged with an on-duty fatal cruiser-bicycle crash last year has apparently struck a deal with the state to resolve his reckless driving case, Vermont Superior Court records show.
Shelburne Sgt. Kyle T. Kapitanski pleaded not guilty in March to felony gross negligent operation with death resulting for Sean P. Hayes, 38, of Burlington about 2:40 a.m. Nov. 11, 2024.
Now, Kapitanski, 42, of Randolph is scheduled to appear at the Judge Edward J. Costello Courthouse in Burlington on Thursday for a “change of plea hearing,” according to court records.
Longtime defense lawyer David Sleigh of St. Johnsbury, who represents Kapitanski, said Sunday his client plans to plead guilty to a misdemeanor charge of negligent operation with death resulting in the Veterans Day crash on Shelburne Road in South Burlington.
The proposed plea agreement calls for no jail time and for Kapitanski to be placed on state probation for a couple years, he said.
State co-prosecutor Dennis Wygmans confirmed Sunday the signed plea agreement, but stressed it is up to a judge to accept or reject the plan.
Judge Timothy C. Doherty Jr. is scheduled to preside at the Thursday hearing.
Sleigh and Wygams both said Kapitanski has agreed to plead guilty to the charge – and not to offer a no contest plea in the criminal case. A no contest plea would help him avoid claims in a civil liability case.
A civil lawsuit has been filed by the estate of Hayes against the town of Shelburne for the fatal crash, but never named Kapitanski as a defendant.
Veteran lawyer Brooks McArthur, who represents the estate, said Sunday he was unable to offer any comment until after the change-of-plea hearing on Thursday.
The civil lawsuit, which was filed in January, has taken a backseat to the criminal case, which was filed two months later.
The Vermont Probate Court in Chittenden County named his sister, Brenna H. Lassiter of John’s Island, S.C. as the administrator of the estate.
Chittenden County State’s Attorney Sarah George directed state police to order Kapitanski into criminal court for the felony charge. The decision came after police determined Kapitanski had a video on his cruiser tablet about a trans woman confronting commentator Matt Walsh, court records show.
State police said its tech specialists said there was no evidence of user interaction on the tablet. They made no recommendation about a charge and said they would leave it up to George.
Vermont State Police also estimated Kapitanski was driving at about 40 miles per hour in a 35-mph zone headed south on Shelburne Road.
Wygmans and Matthew Dolezal, traffic resource prosecutors for the Department of State’s Attorneys and Sheriffs in Montpelier, later took over the case.
Sleigh had maintained there was no way to prove Kapitanski had been distracted.
Hayes was wearing dark clothes, and had no reflective items that would have helped illuminate his presence on Shelburne Road at Fayette Drive, according to the official crash report initially obtained by Vermont News First.
The Burlington native died from blunt force trauma, which included multiple skull fractures, the medical examiner said.
According to state police, Shelburne Road was wet and it was raining at the time of the fatal accident.
Hayes had dismounted his bicycle, which was towing a fully loaded oversized trailer, and he appeared to be on the fog line when struck according to the evidence at the scene and video footage of nearby businesses, police said. Hayes was near a large trash receptacle.
State police assigned two crash investigators to accident and two detectives from outside the area to study the death of Hayes.
It is unclear what impact the closing of the criminal case will have on Kapitanski’s police job. Sleigh said it may be up to the town of Shelburne.
The town of Shelburne placed Kapitanski on paid after the crash. He is a 23-year police veteran with several departments, including a one-year stint as police chief in Richmond before Shelburne hired him in 2022.
Kapitanski began as a part-time deputy for the Rutland County Sheriff’s Department in January 2002. He moved to Hartford Police in May 2005 and attended the Vermont Police Academy to become certified as a fulltime officer. After 6 years on the job, he moved to Randolph Police for almost one year. He served with Berlin Police from 2012 to 2015.
He was hired as lieutenant and chief deputy for the Orange County Sheriff’s Department, where he served from 2015 to 2019. While serving he was promoted to captain. Richmond Police hired him as a patrol sergeant, second in command, in August 2019. He was later named interim police chief and received the permanent post in June 2021.
The police investigation, including a reenactment of the crash several days later at 2 a.m., indicates Kapitanski would not have seen Hayes due to the large trailer the bike was towing, according to Trooper Christopher Hein of the crash reconstruction team of the Vermont State Police.
Hein said in his state police report that he believed the cause of the crash was Kapitanski “passing a vulnerable user, in this case a pedestrian or cyclist without care or due regard.”
The failure to slow and provide at least four feet of clearance is a civil violation that is punishable by at least a $200 fine, Hein wrote.
While some bicyclists since the crash called for improvements for the road, Hein said he did not see any needed safety changes.
“No roadway improvements or signage suggestions are warranted at this time,” said Hein, who at the time had been part of the VSP Crash Reconstruction Team for 6 years, including 4 years on a fulltime basis.
Questions about what both Kapitanski and Hayes were at that location were partially answered in the state police report.
Kapitanski, who was working the overnight shift, had gone to the nearby Jolley Convenience Store further north on Shelburne Road to buy a few items. There are no stores open overnight in Shelburne for officers to access.
Hein said as Kapitanski headed south, his cruiser appeared to be traveling at the same speed as other vehicles in the area based on several video cameras in the area about 2:39 a.m..
Hayes was captured diagonally crossing Shelburne Road about 2:36 a.m. “with what appears to be no reflective material or conspicuous clothing,” Hein noted.
Investigators learned from Hayes’ parents that it was not abnormal for their son to ride his bike during the same time as the crash (2:40 a.m.). They also reported their son “dumpster dived” during those same hours, police wrote.
The crash site was near an oversized disposal can and a large, partially enclosed bus shelter that shattered during the accident.
Hayes had sustained a traumatic brain injury while playing hockey in college and later things began to spiral downward, according to his parents, Donna and Steven Hayes.
They said their son started using alcohol regularly and eventually began experimenting with drugs, police wrote. He began staying at their home, but became verbally abusive to the point that he was kicked out of his parents’ house, they told police.
The crash report did not include any toxicology results for Hayes, which would have been standard during the autopsy.
Kapitanski was given an alco-sensor test that showed no alcohol in his system. Officer Stephen Gragg, a Drug Recognition Expert from Essex Police, evaluated Kapitanski about 5 a.m. and found no impairment, the report said.
Hayes was a Burlington native and lived here most of his life, according to his obituary. It said he graduated from BHS in 2004 and attended Becker College in Massachusetts.
Shelburne town employees, including off-duty police, said they learned about Kapitanski’s fatal crash through the media, not the department.
The fully marked Shelburne Police cruiser, a 2021 Ford Explorer SUV, sustained damage to the grill, headlight assembly and lower bumper, Hein reported. It was impounded so a full data download could be undertaken, police said.