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Posts from the "DWI" Category

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DA Ken Thompson Won’t Say When DWI Killer Might Drive Again [Updated]

The office of Brooklyn District Attorney Ken Thompson won’t talk about reported developments in the case of a defendant who avoided a homicide charge after killing a pedestrian while driving drunk.

Roxana Gomez

Eric Nesmith hit Roxana Gomez at Flatbush Avenue and St. Marks Avenue with a BMW sedan just after midnight on July 5, 2013, according to witness accounts and the Post. Gomez, 27, suffered massive head injuries. She died on July 10.

The Post reported that Nesmith, then 25, of Newark, had a BAC of .126 — the legal limit for driving is .08 — and ”admitted to cops he had consumed up to six Coronas” while celebrating Independence Day before the crash. FDNY first responders said he was speeding. But Nesmith was not charged with homicide by former Brooklyn DA Charles Hynes or Thompson, who unseated Hynes in last year’s election.

Nesmith pled guilty to operating a motor vehicle while intoxicated, an unclassified misdemeanor that carries a maximum sentence of a year in jail, three years probation, and a $1,000 fine. On April 8, Judge Raymond Rodriguez sentenced him to three years probation and a $500 fine, with no jail time, according to court records. Nesmith’s license was suspended for six months, the default penalty prescribed by state law.

Less than two weeks later, on April 21, Nesmith appeared in court for violating his probation, according to WebCrims, an online portal provided by the New York State Unified Court System. On April 24, court records say, his license was revoked.

On Friday, April 25, Streetsblog called Thompson’s office to confirm that the information posted on WebCrims was correct and, if so, to find out what Nesmith did to violate his probation. We were told to send an email to Sheila Stainback, Thompson’s communications director. Within half an hour, Stainback replied: “We’ll get back to you.”

Stainback emailed twice more that day. “FYI — you have inaccurate information, as there is no probation violation,” she wrote. The second email read: “I don’t know from where WebCrims receives it’s info, but it’s inaccurate on this matter.” Stainback said she would send us a “formal response” by Monday, April 27.

That response never came. Streetsblog followed up with Stainback by email on May 1, and asked if we should expect answers to our questions. “I do have a response,” Stainback replied. “Swamped right now — is tomorrow okay?” We wrote back that a response the following day would be fine, but Stainback didn’t contact us again.

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Wrist Slap for DWI Killer After Brooklyn DAs Decline to Charge Homicide

A convicted drunk driver was sentenced this week to probation, a nominal fine, and a six-month license suspension for killing a Brooklyn pedestrian.

Roxana Gomez

Shortly after midnight on July 5, 2013, 27-year-old Roxana Gomez was walking at Flatbush Avenue and St. Marks Avenue when Eric Nesmith hit her with a BMW sedan, according to witness accounts and the Post. Gomez, a Columbia grad student who worked for the human rights group MADRE, suffered massive head injuries and was administered CPR by an emergency room nurse who lived near the scene. She died on July 10.

The Post reported that Nesmith, then 25, of Newark, had a BAC of .126 — far above the .08 legal limit for driving — and ”admitted to cops he had consumed up to six Coronas” while celebrating Independence Day before the crash. FDNY first responders said he was speeding. Yet Nesmith was not charged with homicide by former Brooklyn District Attorney Charles Hynes or his successor Ken Thompson.

“An accident reconstruction expert concluded that alcohol was not a contributing factor in the death of the pedestrian in this case,” a spokesperson for Thompson’s office told Streetsblog in January.

Through a legal aid attorney, Nesmith pled guilty to operating a motor vehicle while intoxicated, an unclassified misdemeanor that carries a maximum sentence of a year in jail, three years probation, and a $1,000 fine. On Tuesday, Judge Raymond Rodriguez sentenced him to three years probation and fined him $500, with no jail time, according to court records.

For killing Roxana Gomez while driving drunk, Eric Nesmith had his license suspended for six months, the default penalty mandated by state law, and six months with an interlock ignition device installed on his car.

Outrageous as it is, the outcome of this case is not at all unusual. New York State law and the courts effectively favor DWI killers. To get a vehicular homicide conviction, prosecutors must prove that impairment caused a motorist to operate a vehicle in a manner that caused death. Due to the vagaries of state code, this burden of proof is often insurmountable, and it is therefore common for NYC prosecutors to decline to bring homicide charges against drunk drivers who kill pedestrians.

Nesmith is due back in court in June.

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Bronx DWI Pedestrian Killer Gets 90 Days and Six-Month License Suspension

A judge sentenced a convicted drunk driver to just 90 days in jail and a six-month license suspension for killing a pedestrian in the Bronx.

Thomas Riley, 23, was crossing East Fordham Road near Bathgate Avenue at around 4:20 a.m. on March 20, 2011, when 48-year-old Seth Johnson struck and killed him with a minivan, according to a Post story published the day after the crash.

Victim Thomas Riley and his son Julien. Photo via Daily News

Victim Thomas Riley and his son Julien. Photo via Daily News

Riley worked as a barber and had a young son. “My family is now torn apart because a drunk driver took his life away,” Riley’s sister told the Post.

Johnson was charged by Bronx District Attorney Robert Johnson with manslaughter, homicide, speeding, reckless driving, leaving the scene, and separate counts of driving while under the influence of alcohol and drugs. Last December a jury acquitted Johnson of manslaughter, homicide, and leaving the scene, finding him guilty on one count of driving drunk and one count of driving while impaired by drugs and alcohol.

“As a prosecutor, I accept the verdict of the jury,” Bronx vehicular crime chief Joe McCormack told Streetsblog after the trial. “We brought what we felt were appropriate charges, and we did the best we could trying the case.”

Johnson faced a year in jail, but on March 28, Judge Nicholas J. Iacovetta sentenced him to 90 days, three years probation, and $870 in fines, according to court records. His license was suspended for six months. So unless the New York State DMV takes action to keep him off the road, Johnson could driving again before long.

From the Daily News:

“He will be in jail for less than three months and I have to live with a life sentence,” the victim’s mother, Aurea Rivera, said after Bronx Supreme Court Justice Nicholas Iacovetta read the decision. “I want the laws changed so that no one else has to suffer like us.”

Rivera, joined in the courtroom by nearly a dozen friends and relatives, read a statement before the court and called on Mayor de Blasio and other elected officials to toughen vehicular manslaughter and drunk driving laws.

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Bronx Motorist Convicted of DWI, But Not Manslaughter, in Pedestrian Death

A jury in the Bronx determined a motorist was impaired by alcohol and drugs when he struck and killed a pedestrian in 2011, but the jury acquitted the driver of manslaughter.

Thomas Riley, 23, was crossing East Fordham Road near Bathgate Avenue at around 4:20 a.m. on March 20, 2011, when he was hit by a minivan driven by 48-year-old Seth Johnson, according to a Post story published the day after the crash.

Riley was a barber who had a young son, the Post reported. “My family is now torn apart because a drunk driver took his life away,” said Riley’s sister.

Court records indicate Johnson was charged by Bronx District Attorney Robert Johnson with manslaughter, homicide, speeding, reckless driving, leaving the scene, and separate counts of driving while under the influence of alcohol and drugs.

The reckless driving and speeding charges were dismissed. Last week a jury found Johnson guilty on one count of driving drunk and one count of driving while impaired by drugs. The jury acquitted on the manslaughter and homicide charges.

“As a prosecutor, I accept the verdict of the jury,” said Bronx vehicular crime chief Joe McCormack. “We brought what we felt were appropriate charges, and we did the best we could trying the case.”

To sustain a charge of vehicular homicide, prosecutors in New York State must be able to prove that impairment caused a motorist to operate a vehicle in a manner that caused death. Given the tendency of courts to side with motorists who kill, even while driving drunk, this is no small feat.

Four months after the death of Thomas Riley, Nassau County pedestrian Eddie Cotto was struck and killed by Robert Core. Though Core reportedly had a blood alcohol level of .17, a judge dismissed a manslaughter charge on the grounds that Cotto was also intoxicated. Core was convicted of DWI and aggravated DWI, and given a maximum sentence of one year.

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When Killing With a Car Is Murder: Q&A With Nassau ADA Maureen McCormick

Last month, the Court of Appeals — New York’s highest court — upheld the murder convictions of impaired drivers who killed people in three crashes in Nassau County and Staten Island.

Maureen McCormick argues before the Court of Appeals. Photo: ##http://www.timesunion.com/local/article/Too-drunk-to-murder-4877749.php#photo-5296130##Albany Times-Union##

Maureen McCormick argues before the Court of Appeals. Photo: Albany Times Union

Martin Heidgen was driving in the wrong direction on the Meadowbrook Parkway when he slammed a pickup truck head-on into a limousine, killing driver Stanley Rabinowitz and 7-year-old Katie Flynn, whose family had just attended a wedding. Franklin McPherson drove against traffic on the Southern State Parkway before colliding with an SUV driven by Leslie Burgess, who was killed. Taliyah Taylor was high on Ecstasy and marijuana when she sped down Forest Avenue in Staten Island, striking pedestrian Larry Simon.

All three were convicted of murder, and all appealed their convictions on the grounds that they were too impaired to comprehend what they were doing. The court rejected that argument in a 5-2 decision, agreeing with prosecutors that the defendants exhibited a “depraved indifference to human life.”

“Although intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between,” wrote Chief Judge Jonathan Lippman, “we find that the evidence in each of these unusually egregious cases was legally sufficient to support the convictions.”

Said Nassau County District Attorney Kathleen Rice, whose record on drunk driving cases is recognized nationally: ”There are times when this crime is murder, and we have to be willing to call it that when we know it will save lives. Hopefully this ruling will give other prosecutors the legal confidence to push for murder convictions for the worst of the worst drunk drivers.”

Nassau vehicular crimes chief Maureen McCormick prosecuted Heidgen and McPherson, and argued their cases before the Court of Appeals. Streetsblog asked McCormick via email about the significance of the court’s decision.

It appears the Heidgen, McPherson and Taylor rulings were combined, correct? If so, how did this come to be? 

The Court of Appeals combined the cases for argument and decision because they each dealt with impaired/intoxicated driving and the application of depraved indifference. The court did not have to reach the same conclusion for each case just because it combined them for argument. They could have distinguished the cases in the decision if they believed they should not all be upheld. In this case they were all upheld.

As a prosecutor, what elevates a DWI fatality case from manslaughter to murder? Do you expect to see more murder prosecutions against drunk drivers, rather than manslaughter? 

Depraved indifference cases are intended to be rare under the law. Note the language used to instruct the jury when it is considering a depraved indifference charge:

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Three People Killed by Motorists in Manhattan and Brooklyn This Weekend

Three people were killed by motorists in separate crashes in Manhattan and Brooklyn over the weekend.

Senior Willie Zachary was killed at 10 a.m. Sunday by a motorist, allegedly drunk and driving without a license, in a Harlem precinct where officers issue one speeding ticket every other day. Photo: DNAinfo

Senior Willie Zachary was killed at 10 a.m. Sunday by a motorist, allegedly drunk and driving without a license, in an NYPD precinct where officers issue one speeding ticket every other day. Photo: DNAinfo

At around 10:00 Sunday morning, Willie Zachary, 65, was struck on St. Nicholas Avenue in the vicinity of W. 131st Street by an alleged drunk and unlicensed driver. According to reports, Prince Julien, 23, was traveling south on St. Nicholas in a Honda Accord when he hit Zachary at a high rate of speed.

From the Post:

The victim’s head smashed the windshield, he was thrown about 60 feet and was declared dead at the scene, according to witnesses.

Onlookers said the driver was going so fast that it took him almost 200 feet to come to a complete stop.

“[The driver] got out of the car and started running toward the man on the ground,” said a security guard at a nearby building.

Julien was charged with second degree manslaughter, driving while intoxicated, and driving without a license, according to court records. The crash occurred in the City Council district represented by Inez Dickens, and in the 32nd Precinct, where as of October local officers had issued 183 speeding tickets in 2013, and 137 summonses for failure to yield to a pedestrian.

Vernon Bramble, 47, was struck by a driver who fled the scene as he crossed Flatbush Avenue at E. 34th Street in Flatlands at approximately 10:30 p.m. Friday, reports said. Bramble suffered head trauma. He was pronounced dead at Beth Israel Medical Center.

“They left him there like he was an animal,” Bramble’s niece, who did not provide her name, told the Daily News. “He was a very simple person who tried his best to be there for his friends and family.”

Bramble was killed in the 63rd Precinct63 speeding tickets this year as of October, and 41 summonses for failure to yield — and in the City Council district represented by Jumaane Williams. The driver had not been apprehended as of this morning, according to NYPD.

Two drivers ran over Cheikh Mbaye, 23, as he crossed Canal Street near Greene Street in Soho at 2:30 Friday afternoon.

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Reports: Drunk Off-Duty NYPD Officer Kills Pedestrian in Staten Island

Today's crash was reportedly the latest in a succession of off-duty NYPD drunk driving disasters. Photo: Daily News

A pedestrian was killed by an intoxicated off-duty NYPD officer in Staten Island this morning, according to reports.

The crash happened on Richmond Terrace near Simonson and Lake Avenues at around 6:15 a.m., when the male victim was hit by the driver of a Ford SUV. The Daily News says the man was crossing Simonson when he was struck.

NY1 reports that the 29-year-old driver is an officer with the 121st Precinct, where the crash occurred.

Sources say the victim landed on the car and the officer just kept driving.

He then allegedly fled the scene but returned about a half an hour later.

Officials tell NY1 the officer has been with the department since 2005 and finished his shift Thursday around 6 p.m.

The victim, whose age is being reported as 51 and 59, was taken to Richmond University Medical Center in cardiac arrest and died soon after, reports said.

WABC says the officer was charged with drunk driving.

The NYPD public information office had no details as of this writing.

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NYPD: Repeat Drunk Driver Hits Three Pedestrians and Cyclist in East Village

An intoxicated and speeding motorist with a history of drunk driving jumped a curb and slammed into a storefront in the East Village this morning, putting three pedestrians and a cyclist in the hospital, according to NYPD and published reports.

Just before 7 a.m., Shaun Martin of Bayside was barreling south on Second Avenue in a Nissan sedan at 75 mph when he jumped the curb and plowed through a sidewalk stand in front of a bodega at E. Fourth Street, reports said. Martin also reportedly struck a fire hydrant, a street sign, a loaded bike rack, and a tree.

The Daily News and the Post quoted a witness who said the driver was racing another motorist, but an NYPD spokesperson disputed that account, and said only one vehicle was involved in the crash.

Three employees of the store were hurt, police said, along with a man who was riding a Citi Bike. The Times reports that the three pedestrians were outside the bodega. One of the victims is a 62-year-old man who was hospitalized in critical condition.

“He was lying on the sidewalk,” said one witness, to the Daily News. “His body was covered with flowers. I didn’t see him moving.”

The Times reports that the cyclist was struck when the driver tried to move the car back onto the street, while the Post says the cyclist was hit by a flying fire hydrant. The Times says the cyclist is in stable condition at Bellevue, and police told DNAinfo his injuries were “non-life threatening.” On his Twitter feed, NYT police reporter J. David Goodman said the cyclist is 30 years old.

DNAinfo had this eyewitness account:

“I saw him plowing through the trees,” said Diana Kirk, 42, who was sitting on her fire escape on East 4th Street and Second Avenue when she saw the white sedan “swerving.”

“He flew down the sidewalk,”she added, saying she saw the driver take out the Citi Bike rider. “There was blood everywhere. I saw his legs all bloodied.”

Though the cyclist got up, he immediately collapsed as if “in shock” she said.

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