NY appellate court reverses jail decision for Michael Peña

An ex-off-duty firefighter accused of DWI and speeding in a fatal crash is about to walk free

until his trial. Welcome to the noon and Bianca Peters to our top story now. Michael Pena still

will walking out of prison sometime this afternoon. Let's get right over to Fox 5's Linda Schmidt in

Kew Gardens with this breaking news now at noon. Linda, what's the very latest on this

Yeah, hi there, Bianca. Quite a turn of events related to this story here today. First of all

It was just two weeks ago that a judge decided that Michael Pena should be held in prison until his trial

saying that he was a flight risk. Now, at the time of this fatal crash, he was a New York City firefighter

He was fired afterward. And the judge in April determined that because he was fired, he no longer had ties to the community

But the appellate court overturned that decision. Go ahead, take a look here at this video

This is the victim in this case. He is 23-year-old Justin Diaz

Now, he was on his way to work at LaGuardia Airport in February

when authorities say 28-year-old Michael Pena t-boned Diaz's car, killing him. Now, last month, Pena was indicted on charges of manslaughter

drunk driving, driving under the influence of drugs, and going 83 miles per hour in a 25 zone and blowing through a red light Now he was a firefighter at the time but he was off duty at the time of this crash and then he was fired afterward Now the victim family is a very close tight family

They have been at all of the court proceedings. They were here again today. They want Pena held

behind bars until his trial, saying that he is a threat to the public. They are outraged by the

appellate court's decision. Well, they spoke with the media just a short time ago. So did Pena's

lawyer and here's what they had to say. We're sick, angry, disgusted. Michael

Peña will be out on the streets enjoying a carefree life while we visit my brother at his grave site. And who's to say he won't flee? Michael Peña has no

job. He's facing maximum of 15 years. It doesn't seem like he can tolerate two

weeks behind bars. Finally the appellate division realized that Judge Ardaphilis was incorrect in remanding him and that he was not at risk of flight

There were conditions that he could be released on to make those conditions

And he's prepared to rejoin his family and assist in his defense

and come to court whenever he's required. Now, as of right now, Michael Pena remains in Queens Criminal Court right here behind me

That's because there is some paperwork that needs to be filled out and some processing before he is allowed to leave

but his lawyer saying he expects him to be released at some point today

Back inside to you. All right, Linda, thank you for the update on that. Appreciate it