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Public Still Doesn’t Know Why Cy Vance Failed to Charge in Sian Green Case

Last Friday WNYC ran a piece in which Bronx vehicular crimes chief Joe McCormack explained why he thought Manhattan District Attorney Cy Vance failed to file charges against the cab driver who drove onto a Midtown sidewalk and severed the leg of tourist Sian Green. The story offers valuable insight into the mindset of prosecutors, but key questions about the case remain unanswered.

The public still does not know how Cy Vance decided that the driver of this cab, who hit two people and severed a woman's leg, should not be charged. Photo: @BraddJaffy

The public still does not know how Cy Vance decided that the driver of this cab, who hit two people and severed a woman’s leg, should not be charged. Photo: @BraddJaffy

McCormack said that in order to charge Faysal Himon with a crime, the Vance team would have to prove intent. ”What we look at in the criminal arena is when the mistake is greater than ordinary negligence and rises to criminal negligence,” McCormack said. “And what a defendant can be charged with depends on case law.”

Reporter Kate Hinds also points to the “rule of two,” an arbitrary standard that holds that a New York State motorist who is breaking at least two traffic laws at the time of a crash may be charged with criminal negligence, as a possible factor in the decision not to charge Himon.

Civil attorney Steve Vaccaro believes Vance might have gotten a conviction on misdemeanor charges — third degree assault and second degree reckless endangerment — that don’t require prosecutors to prove intent. As for case law and the “rule of two,” recent decisions by the Court of Appeals, the state’s highest court, have made it harder for prosecutors to secure ironclad convictions against motorists who injure and kill. But does that mean reckless drivers can’t be held accountable for maiming and killing innocent bystanders?

One Court of Appeals case in particular looms large: People v. Cabrera, which held that reckless driving had to be “morally blameworthy” to sustain a homicide conviction. Maureen McCormick, head vehicular crimes prosecutor in Nassau County, explained the Cabrera ruling to Streetsblog in 2009:

[A]s recently as May 2008, New York’s highest court held that a 17-year-old driver who violated his junior license by driving with four unrelated passengers, without seatbelts, and who also was speeding at 70-72 mph through a curve with a posted caution speed of 40 mph, and who lost control sending the car over an embankment and killing three of his passengers, could not be held criminally liable. This decision alone has resulted in numerous defense motions to have cases dismissed claiming that “speed alone” or any traffic infraction “alone” is not sufficient to sustain criminal negligence.

McCormick continued: “Our position is that this is nonsense. A person driving 100 mph in front of the court on Centre Street in Manhattan at lunch time when the streets are flooded with pedestrians MUST be chargeable with a crime.”

Court precedents do have a chilling effect, but as McCormick indicates, the “rule of two” is a defense strategy. It’s up to prosecutors and police to decide whether they want to cede the argument by never filing charges in the first place.

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Glenn Beck’s Advice to de Blasio: “Lose the Stupid Bike Lanes”

America’s favorite right-wing conspiracy theorist has some advice for Mayor-elect de Blasio.

The Observer asked people they deemed to be “influential” New Yorkers for a short piece of advice for Mayor-elect Bill de Blasio. Of the 57 members of what the Observer calls “the peanut gallery,” 14 had something to say about transportation.

If nothing else, it’s good for some insight into what New York’s drive-everywhere class (or, in many cases, the driven-everywhere class) thinks of pedestrian plazas and bike lanes.

Not that everyone on the Observer’s list is a cars-first curmudgeon — there are a lot of good ideas in there. But here are the cranky ones who just want city streets to live up to the car commercial fantasy:

  • Glenn Beck: “Lose the stupid bike lanes on the streets, and worry less about my fat intake.”
  • Writer Jay McInerney: “Reopen Broadway around Times Square. Get rid of the concrete islands/turning lanes on Eighth, Ninth and all other avenues — one thing Bloomberg didn’t fix was traffic flow.”
  • New York Times columnist Frank Rich: “A pet peeve: Reconfigure Times Square so it might be a true Crossroads of the World again rather than a hideous quasi-food court for idling suburban tourists.”
  • Talk show host Wendy Williams: “Open Herald Square back up to traffic. Fix the potholes… And get rid of these bicycles! They’re in the way, taking up too much room.”
  • Bhairavi Desai, executive director of New York Taxi Workers Alliance: “Recognize that taxi drivers are central to the transportation system. That means not replacing us with bike lanes or denying us access to bus lanes…”
  • Soho NIMBY extraordinaire Sean Sweeney: “The city… must cease catering to realtors, tourists, chain stores and cycling zealots.”

Don’t despair — some prominent New Yorkers have good suggestions that range from the simple to the inspired:

WNYC host Brian Lehrer lays out how transportation could fit into de Blasio’s agenda.

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The Times Blows a Chance to Tackle America’s Broken Traffic Justice System

In the United States, it’s pretty much legal to drive into and kill a cyclist, as long as you’re sober and stay at the scene. Writer Daniel Duane made that point last weekend in a New York Times op-ed titled, “Is it O.K. to Kill Cyclists?

The New York Times weighs in on the issue of traffic justice, with a largely laudable but imperfect story that has inspired some thoughtful responses. Image: ##http://www.nytimes.com/2013/11/10/opinion/sunday/is-it-ok-to-kill-cyclists.html?_r=0## New York Times##

The image of a devil-red fixie rider with knuckle tattoos was one sign that something was off-kilter in a recent piece about traffic justice in the New York Times. Image: New York Times

The question mark in the headline was the first sign that the piece wasn’t going to take a firm stand, even though Duane sets up the essay with some good insight:

When two cars crash, everybody agrees that one of the two drivers may well be to blame; cops consider it their job to gather evidence toward that determination. But when a car hits a bike, it’s like there’s a collective cultural impulse to say, “Oh, well, accidents happen.”

If that was the high point of the article, the low points come when Duane equivocates, suggesting that “everybody’s a little right” despite the fact that people are capable of far more harm when they’re behind the wheel than when they’re in the saddle.

Bike Snob (a.k.a. Eben Weiss) called Duane out for concluding that the response to reckless drivers who bear no consequences should be for cyclists to “obey the letter of the law”:

We deserve respect for being human, and it ends there. Yet we’re supposed to be good little boy scouts and girl scouts–even when it’s more dangerous for us to do so–to prove we’re deserving of not being killed? That’s just stupid and insulting.

Where Duane and the Times failed, the Economist nailed it, pointing to the differences between an American justice system that imposes little or no consequences on deadly driving, and the Dutch system of strict liability. In the Netherlands, writes the Economist, “if a motor vehicle hits a cyclist, the accident is always assumed to have been the driver’s fault.” Even in cases where a cyclist is breaking a rule, the onus is on the motorist to explain why the collision could not have been avoided. As a consequence, American bike fatality rates per mile are five to nine times higher than in this famously bike-friendly country.

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Prompted By Jimmy Van Bramer, CBS 2 Files a Decent Street Safety Story


We wrote last week how Lou Young of CBS 2 blew an opportunity to educate viewers on the merits of potential safe street improvements on the Upper West Side. In covering a press conference in Queens convened by Council Member Jimmy Van Bramer, Young’s colleague Andrea Grymes filed a story that does a much better job reflecting the perils posed by reckless drivers.

Grymes reports that pedestrians on 47th Avenue in Woodside, including seniors and kids at the Towers Play and Learn school, are endangered by speeding motorists looking to avoid Queens Boulevard, many of whom don’t slow down even when children are present. Van Bramer and students temporarily hoisted a DIY stop sign to draw attention to the problem, and he and locals are calling on DOT to calm traffic on the street.

This story definitely has the “little guy fights City Hall” angle, which is probably why Grymes played it straight. It would also have been useful if she had pointed out that the 108th Precinct isn’t doing much in the way of traffic enforcement, having issued just 322 speeding tickets this year as of September. But pieces like this pointing out the dangers of the status quo should be far more common. Whether or not local electeds are attuned to the situation, a New York neighborhood besieged by dangerous drivers is a story that can be told again and again. Consider the DOT Slow Zone waiting list if you doubt it.

If a stop sign isn’t the right solution here, maybe a neckdown or a chicane would solve the problem instead. DOT told CBS 2 the segment of 47th Avenue in question does not meet federal guidelines for a new stop sign, but said it is taking another look at conditions there.

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CBS 2: Don’t Touch the Highway Running Through the Upper West Side

Yesterday’s CBS 2 attempt to trash potential street improvements for Amsterdam Avenue gets it wrong before the story even starts.

As she introduces reporter Lou Young, anchor Dana Tyler says a plan for a new bike lane on Amsterdam “has gotten the green light.” Reality: The Community Board 7 transportation committee last week passed a resolution to ask DOT to consider a protected bike lane and pedestrian islands, removing one of four car lanes, and retiming signals. As of now, there is no plan, and the full board won’t vote on whether to ask DOT to come back with one until November.

Tyler’s routine sloppiness pales in comparison to the alternate universe conjured by Young.

From behind the wheel, Young describes Amsterdam Avenue as a wide open “highway,” beloved by commuters in a hurry to get out of town. “Can this highway handle bike routes?” he asks. “Well, that’s the question.” As for whether a residential neighborhood like the Upper West Side should have a highway like Amsterdam running smack through the middle of it — well, apparently that’s just not the question for Mobile 2.

Young starts his segment with an obviously staged conflict in the Columbus Avenue bike lane between a wrong-way delivery cyclist and store owner Nicholas Zingone, who while standing next to a delivery van in front of his store says that, thanks to the bike lane, no one can park in front of his store. Viewers may recognize Zingone’s as the same grocery that complained about the Columbus Avenue bike lane when CBS 2 did this segment the first time, nearly three years ago. That florist griping about the loss of parking? His vans are notorious for blocking the bike lane in front of the store, and for years he’s been taking out his frustrations on the bike lane — not the placard abusers and poorly priced meters that are the root cause of curb dysfunction in the neighborhood.

It’s the same cast of characters who kvetched about change on Columbus back in 2011. So, did CBS 2 dig into whether the redesign has actually affected business? Nope. The only solid data on retail performance indicates that Columbus Avenue is doing fine with the bike lane, but hard numbers like commercial vacancy rates don’t fit the he-said/she-said template.

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Fox Business Tries and Fails to Capture the Dorothy Rabinowitz Magic

 

Might the talking heads at Fox Business turn their gaze to the Plaza Hotel’s lawsuit against a nearby Citi Bike station and sneer at the frivolous litigation tying up our courts? Not a chance.

Watch Dorothy Rabinowitz wannabes Melissa Francis and Fred Tecce spend four and a half minutes whipping themselves into faux-libertarian outrage over the installation of bike-share stations on public streets. The gall!

So, yes, Streetsblog is taking the bait and embedding their clip, but when it comes to pageviews, I don’t think this one will come close to matching Rabinowitz, creator of the original and best crazy Citi Bike screed. A few reasons:

  • The catchphrases stink. Dorothy Rabinowitz gave us “the bike lobby is an all-powerful enterprise,” the alliterative “blazing blue Citibank bikes,” and “do not ask me to enter the mind of the totalitarians.” When she said the word “begrimed,” you were transfixed. After watching Francis and Tecce, I came away with some vague images of snails, frogs, and pigs, but nothing really stuck in my head.
  • It’s too canned. The Rabinowitz video was a genuine cri de coeur. She was saying all these insane things, and she really meant them. The Francis and Tecce bit is full of mugging and hamming it up for the camera. It’s got theatrical sighs and forced laughter, but no soul.
  • Reality intrudes. Rabinowitz maintained a consistent internal hallucination from start to finish. In her world, she just had to speak for the silent, bike-share-hating majority. In this Fox Business segment, when Francis acknowledges that she must be in the minority, reality manages to puncture the fantasy.
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Daily News Exclusive: Woman on Bike Sees De Blasio in Street, Stops

The Daily News sets the scene: "A woman riding a Citi Bike south on Broadway nearly plowed into mayoral candidate Bill de Blasio on Thursday morning when he stepped into the bike lane."

Someone should tell Jennifer Fermino that the bikelash is over.

Fermino, who penned the Post’s infamous “bike lanes are messing with bus service” story on the eve of Hurricane Sandy, is now City Hall bureau chief at the Daily News. Her breathless take on yesterday’s encounter between Bill de Blasio and a cyclist boils down to this: Headed to his vehicle after an event near City Hall, de Blasio stepped into the street, where a woman on a Citi Bike stopped to avoid a collision. Period.

Spun through the Daily News Psycholist-O-Matic, the story becomes: “Bill de Blasio almost got mowed down by a zooming Citi Bike Thursday morning.”

Did de Blasio have the right of way, or was the cyclist proceeding lawfully when a pedestrian who happened to be Bill de Blasio walked in front of her? Fermino doesn’t bother with such details. Instead, she would have Daily News readers believe that the man who might be the next mayor of New York City was nearly taken out by a middle-aged lady riding a three-speed home from the grocery store.

Also, contrary to the story, a Streetsblog reader pointed out that there is no bike lane on this section of Broadway.

Another Fermino shocker: Even after yesterday’s brush with Ms. Whole Foods Hell-on-Wheels, the “unfazed” de Blasio “wants to grow the Citi Bike network to include more stations, and wants to add more bike lanes.”

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Howard Wolfson Looks Back on the Rise and Fall of the NYC Bikelash

Last Thursday, the New School hosted a panel discussion on the media and politics maelstrom that came to surround bicycling in New York — and how, against some tough odds, supporters of safer streets came to beat the “bikelash.”

Deputy Mayor Howard Wolfson. Photo: Streetfilms

The panel, moderated by Shin-pei Tsay for her class of urban theory masters students, featured Deputy Mayor Howard Wolfson, Gothamist publisher Jake Dobkin, and journalist Warren St. John.

At the beginning of Bloomberg’s third term, Wolfson said, some of DOT’s highest-profile projects were being implemented and came to dominate how the public perceived the administration. “If you asked somebody in 2010 what Mike Bloomberg was up to, a lot of people would say, ‘Oh yeah, he’s doing bike lanes,’” Wolfson said. ”I didn’t necessarily think from a communications perspective it was totally useful to have us defined by any one thing.”

It would have been easy for Bloomberg to see the political risks and back off. “We’re not talking about the economy or public safety; this is an important issue but it’s not the most important issue,” Wolfson said of bicycling. But the mayor remained committed. “If you were going to pursue the policy, you couldn’t walk away from the fight,” Wolfson said.

Bloomberg’s commitment to bicycling put Dobkin in the strange position of agreeing with the billionaire mayor. Most of Gothamist’s employees bike to work, as does much of its readership. “Bike safety, not getting killed while you’re riding your bicycle, having more bike lanes — these are all things that we would just generically support,” he said. “It was unusual for us being in solidarity with the Bloomberg administration, to find we were on the same side of the barricade on stories like the Prospect Park West bike lane.”

But writing about bikes was also good for Gothamist’s business. “There are certain stories in New York that hit at a nerve,” Dobkin said. ”There are these oppositions in our society: Young people versus old people, rich people versus poor people, people that drive cars versus people that don’t. And somehow, bicycling touches every single one of them.” It didn’t take long for Gothamist to figure out that bike stories attracted eyeballs and wide distribution on social media.

“I think we play an intermediate role between social media and the mainstream media,” Dobkin said. ”Social media was pointing in the same direction in terms of widespread support for livable streets.”

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NYPD and Media Declare “Accident” as Another Child Killed by NYC Motorist

For at least the seventh time in 2013 and the second time in 10 days, a New York City motorist has struck and killed a young child.

Allison Liao, 3, was crossing Main Street in Flushing with her grandmother at around 5:30 p.m. Sunday when she was hit by the driver of a Nissan SUV, who was turning left onto Main from Cherry Avenue, according to reports. A witness told WABC that the driver hit Liao with the vehicle, then ran the child over. Liao was declared dead at New York Hospital Queens.

As usual, media accounts favor superfluous details — multiple stories emphasize that the driver was upset — while omitting information that could help prevent future fatalities. No coverage that we have seen indicates who had the right of way, nor is there any mention that state law requires drivers to exercise due care to avoid hitting people. Instead, the public gets more victim-blaming, with a helping of motorist absolution, from the Daily News:

A 3-year-old was killed by an SUV on Sunday after she broke free from her grandmother while they were crossing the street in Queens, police said.

Alison died on her way to the hospital, cops said. The devastated driver of the SUV stayed at the scene and was crying, witnesses said.

As is routine when the driver is sober and does not leave the scene, NYPD and the media appear ready to exculpate the killer of wrongdoing. “As of 11 p.m. Sunday night, the driver had not been charged,” said WABC’s Lucy Yang. “Investigators currently believe this may have all been an accident.”

Allison Liao is at least the seventh child aged 7 and under killed by a city driver this year, according to crash data compiled by Streetsblog. Sunday’s crash happened 10 days after another SUV driver fatally stuck Kiko Shao, 5, in Sunset Park.

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Genielle Laboriel, 21, Killed by Bus Driver in the Bronx; No Charges Filed

A school bus driver struck and killed a woman who was riding a skateboard in the Melrose section of the Bronx yesterday.

Genielle Laboriel. Photo via DNAinfo

The crash occurred at around 7:15 Wednesday morning. Genielle Laboriel, 21, was crossing E. 160th Street from the Melrose Avenue sidewalk when she was hit by the bus driver, who was making a right turn, according to reports. From DNAinfo:

Witness Nelson McKinsey was nearby when he heard the crash, he said.

“I heard a shriek and when I turned around, the front tires were on top of her,” said McKinsey, who lives nearby.

Laboriel flailed her arms as a passerby waved at the bus, urging it to reverse off of her, McKinsey said.

The bus driver remained on the scene and was not immediately arrested, cops said.

“He had a look of panic on his face,” McKinsey said.

The three children on board the bus were unharmed, police said.

The intersection of Melrose and E. 160th — a two-lane street with bike lanes and a one-way, single-lane street, respectively — has traffic and pedestrian signals. If the bus driver had a green light, and the signals were functioning properly, Laboriel would have presumably had a walk signal. If the bus driver and Laboriel were traveling in the same direction, as reports indicate, Laboriel would have had the right of way.

Denis Slattery and Tina Moore of the Daily News cited a witness, Juanita Hernandez, who said Laboriel was wearing headphones and was not wearing a helmet. The Daily News and DNAinfo noted that the same witness, who saw security footage of the crash, said Laboriel was “going too fast” and “lost control” of her skateboard. ”It was neither of their faults,” Hernandez said. ”It was a tragic accident.”

Neither story mentions how fast the driver was going or who had the right of way. DNAinfo reporters Patrick Wall and Aidan Gardiner wrote that Laboriel “died after careening into the path of a school bus,” and that the victim “collided” with the bus, suggesting that reckless behavior by Laboriel led to her death.

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