Maureen McCormick: How Nassau Got Serious About Traffic Crime

It happened again last Friday. Keston Brown was at the wheel of a Gristedes van on E. 37th Street when he jumped the curb and ran over two women. Miraculously, one of them, Tassia Katsiambanis, survived. But her co-worker Ysemny Ramos, a young mother planning that night's celebration of her wedding anniversary and the upcoming birth of another child, died at the scene. Brown was found to be intoxicated and was charged with DWI, manslaughter and assault.

alg_van_family.jpgYsemny Ramos, center, died at the hands of a drunk driver. Will her killer face justice, or a slap on the wrist? Photo: Daily News
About an hour earlier on the Upper West Side, a yellow cab driver jumped the curb at Amsterdam and W. 106th Street, careening onto the sidewalk and into a pizzeria. Seven people were injured, one critically. Despite this, and though witnesses said he was racing another car to the intersection before the crash, the cabbie walked away scot-free.

How can this be? How can New York drivers destroy, kill and maim with impunity -- almost always when sober, and even if, in some cases, they aren't?

In part two of our interview with veteran vehicular crimes prosecutor Maureen McCormick (read part one here), the former Brooklyn ADA, now with Nassau County, offers more insight into the state of traffic justice in New York State, and describes how she and others in the prosecutorial community are working to strengthen laws that deal with negligent drivers.

Brad Aaron: There were a couple of recent high-profile cases in which Manhattan pedestrians were killed by hit-and-run drunk drivers. One case ended with a guilty plea resulting in a two year prison sentence, while in the other, also following a plea, the driver received a sentence of just 15 days. Nassau County, meanwhile, is successfully prosecuting killer drunk drivers for murder, with commensurate sentencing. In your experience, what could explain such discrepancies?

Maureen McCormick: [Nassau] District Attorney Kathleen Rice has made traffic justice one of her top priorities. She campaigned on holding DWI defendants accountable for their actions and she has created policies and pursued prosecutions that demonstrate her continued commitment to this issue. In the first year she took office she held 66 percent of Driving While Intoxicated (DWI) offenders to the top count of their charges while the New York State average was 44 percent. She increased jail sentences from 10 percent to 16 percent and she has maintained an overall conviction rate of 94 percent.

The DWI/murder case against Martin Heidgen was recently the subject of a "60 Minutes" report. Heidgen drove more than three miles the wrong way on the Meadowbrook Parkway with a blood alcohol concentration of .28 before slamming head on into a wedding limousine, killing the driver, 59-year-old Stanley Rabinowitz, and decapitating 7-year-old flower girl Katie Flynn. Heidgen was convicted of depraved indifference murder in 2006 and sentenced to 18 years to life.

In Nassau the detectives contact me directly, around the clock. Decisions about warrants, scene preservation, charges, etc. are discussed. An assistant district attorney responds to the crash scene most of the time.

District Attorney Rice established the first Vehicular Crimes Bureau on Long Island. The bureau is designed to bring together training, experience and expertise in the fields of drunk driving and vehicular crimes. It is important to note that the district attorney’s emphasis on traffic justice extends beyond the drunk driver to reckless and criminally negligent drivers as well. This past fall she prosecuted 20-year-old Mayer Sadian for killing pedestrian Dr. Jeffrey Siegel. The defendant was not accused of being drunk (although he left the scene so it remains unknown). The defendant was speeding during a rainstorm in an area with restaurants and heavy pedestrian traffic at dinner time. Dr. Siegel was crossing between intersections when he was struck and dismembered by the car. The district attorney tried the case as a manslaughter. The jury could not reach a verdict on manslaughter but found him guilty of criminally negligent homicide and leaving the scene. Similar cases will be prosecuted with similar charges in the future.

Unfortunately Nassau County is not immune from wide variations in sentencing. There have been cases where the district attorney recommended a sentence of seven to 21 years incarceration upon a plea of guilty and the judge sentenced the defendant to three to nine years instead. All defendants have the right to plead guilty to the charges against them and petition the judge for a different sentence than the one the prosecution recommends.  This is not a plea bargain. A plea bargain requires the district attorney’s office to reduce the charges in exchange for a particular sentence. Some sentences are driven by the strength or weakness of the evidence in a case. There is a wide range of sentencing options available to the court under the statutes dealing with vehicular crimes. I am unfamiliar with the detailed facts of the cases you mentioned from Manhattan so I am not in a position to say why one sentence was given over another. I only know that a victim’s family must be made aware of the pitfalls in the prosecution’s case and be allowed to express their sentiments about a given sentence and the impact they have suffered as a result of their loss.

BA: Again, in your experience, how much interplay is there between police and prosecutors when it comes to investigating pedestrian fatalities? If police know the district attorney’s office is committed to making and pursuing cases when possible, regardless of how difficult it may be to do so, does that ultimately affect their investigative process?

MM: Vehicular crimes prosecutors see themselves as part of a law enforcement team. New York City has specialized detectives that work in the Accident Investigation Squads (AIS) of the Highway Division. Nassau County has homicide detectives assigned to the Vehicular Crimes and Reconstruction Section (VCARS). I have had the privilege of working with them both -- 19 years in Brooklyn primarily under District Attorney Charles Hynes and now three years in Nassau. Both squads are trained in collision investigation and reconstruction. These cases are unlike any of the intentional homicides I prosecuted. They require a unique blend of old-fashioned detective work and scientific crime scene investigation. They are labor intensive. I am a firm believer that crash scenes must be treated as crime scenes until it is established through witnesses and evidence that a crime can not be charged. I also believe it is essential to have early involvement of a trained prosecutor in a criminal crash.

I am a firm believer that crash scenes must be treated as crime scenes until it is established through witnesses and evidence that a crime can not be charged.

In Nassau the detectives contact me directly, around the clock. Decisions about warrants, scene preservation, charges, etc. are discussed. An assistant district attorney responds to the crash scene most of the time. And cases that require additional investigation are coordinated in the vehicular crimes bureau to obtain subpoenaed materials, warrants for "black box" downloads, hospital blood, etc. The investigation is centralized in this bureau. Each of the five district attorneys' offices in New York City have slightly varying protocols but each has a contact person on-call to respond to AIS inquiries and cases. I know that in Brooklyn, District Attorney Hynes had a system that required all fatal collision investigations conducted by AIS in the borough to be reviewed with the person in charge of vehicular crimes before the investigation would be marked as "closed." Sometimes this review resulted in additional investigation being conducted. That investigation most often confirmed the crash could not be charged as a crime but occasionally the joint investigation by AIS and the district attorney’s office allowed criminal charges to be filed. I have confirmed with my successors in Brooklyn that District Attorney Hynes has maintained this policy of review.

I suppose the answer is that the investigation of a crash should reveal facts from which a charging decision can be made. I believe that a coordinated team approach between police and prosecutors on these cases facilitates and ultimately strengthens the case -- regardless of how difficult the case may be to prosecute.  

BA: What efforts, if any, are underway to toughen penalties in New York State for drivers who kill -- both in cases where drugs or alcohol are present and when they are not?

MM: District Attorney Rice, in conjunction with NYS Senator Charles Fuschillo and Assemblyman Harvey Weisenberg, proposed aggravated vehicular homicide and assault statutes. They were passed by the legislature after the family of Katie Flynn went to Albany to implore them to take these most egregious DWI crimes more seriously. Aggravated vehicular homicide is a class B felony and represents the first time in New York State that a vehicular homicide must receive mandatory upstate incarceration as part of the sentence.

Things are changing, but much too slowly. When I started 23 years ago, people did not go to jail for these crimes. Now it is much more likely that a defendant will be sentenced to jail -- but generally the sentences are still disproportionately low compared to the harm caused. There is still not enough awareness about driving crimes that do not involve alcohol and drugs among the general public, some parts of law enforcement and the judiciary.

I can attest from my own participation that constant efforts are underway to strengthen the laws involving vehicular crimes. The Vehicular Crimes subcommittee of the NYS District Attorney’s Association and the NYS Impaired Driving Task Force are working to toughen penalties and increase coordination among the various state agencies which play a role vehicular crimes enforcement. District Attorney Rice speaks regularly with legislators from Long Island about closing the loopholes and making the punishments fit the crimes. Criminally negligent homicide should at least be increased from an E felony to a D felony, like its leaving the scene of an incident counterpart. There should be a felony assault charge when criminal negligence results in serious physical injury. All homicides and assaults involving motor vehicles should be designated "violent felony offenses" since a "dangerous instrument" (defined by the Penal Law to include a motor vehicle) was used to commit the crime. This would provide enhanced penalties. And the technicalities involving the collection of blood evidence in the Vehicle and Traffic law should finally be eliminated. No family should ever have to be told again that a case against a drunk or drugged driver could not be prosecuted because the blood evidence was thrown out due to this hyper-technical statute.

I will end as I started. It is an uphill battle. But there are dedicated members of law enforcement, prosecution and the legislature who understand the urgency of fixing this area of the law. It is simply difficult to be patient while so much harm continues to be done.