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New York’s Top Court Exhibits Depraved Indifference to Pedestrians’ Lives

Court of Appeals Judges Jenny Rivera, Sheila Abdus-Salaam, Robert S. Smith, Susan P. Reid, and Chief Judge Jonathan Lippman ruled that Jose Maldonado showed concern for others’ safety as he sped through Greenpoint in a stolen van, driving against traffic and striking pedestrian Violetta Krzyzak with enough force to catapult her body 55 yards through the air.

Court of Appeals Judges Jenny Rivera, Sheila Abdus-Salaam, Robert S. Smith, Susan P. Reid, and Chief Judge Jonathan Lippman ruled that Jose Maldonado showed concern for others’ safety as he sped through Greenpoint in a stolen van, driving against traffic and striking pedestrian Violetta Krzyzak with enough force to catapult her body 55 yards through the air. Prosecutors warn that the decision will affect future cases against drivers who kill.

In a decision that may hinder future prosecutions of killer drivers, New York’s highest court rejected the murder conviction of a car thief who fatally struck a Brooklyn pedestrian during a high-speed NYPD chase — ruling that the defendant showed concern for others’ safety by swerving around vehicles and people as he attempted to elude police.

The ruling drew a rebuke from Nassau County District Attorney Kathleen Rice, who is nationally known for seeking serious penalties for motorists who kill.

On the afternoon of April 27, 2009, Jose Maldonado drove a stolen minivan through the streets of Greenpoint. With police in pursuit, in apparent violation of NYPD protocol, Maldonado ran red lights and sped against oncoming traffic while weaving between lanes. When he narrowly missed a pedestrian who leapt from his path, Maldonado kept going. He hit 37-year-old Violetta Krzyzak at Manhattan Avenue and India Street. According to the Court of Appeals, Krzyzak “landed over 165 feet, or almost one block, away from the point of collision.” She died at the scene.

Maldonado did not slow down after striking Krzyzak. He crashed into parked vehicles five blocks away, court documents say, and was tackled by witnesses as he tried to flee on foot.

Maldonado was convicted at trial of murder because he acted with “depraved indifference” to human life, but the Court of Appeals this month reduced the top charge against him to second degree manslaughter [PDF]. “[W]e conclude that the evidence was legally insufficient to support defendant’s conviction for depraved indifference murder,” wrote Judge Jenny Rivera for the majority, “because the circumstances of this high-speed vehicular police chase do not fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life.”

Whereas Maldonado’s murder conviction carried a sentence of 15 years to life, second degree manslaughter is a class C felony, with sentences ranging from one to 15 years in prison. Maldonado’s re-sentencing date was not yet scheduled at this writing.

“The Court of Appeals’ decision in Maldonado is distressing to anyone who recognizes that a wildly reckless driver, bent on fleeing the police, can be absolutely depraved toward innocent people that are in his way,” said Rice in a written statement. “It’s time for the legislature to address the issue and make it clear that the outrageously dangerous driving represented in Maldonado is not simply reckless, it is depraved. And when someone dies as a result, it should be nothing short of murder.”

Rice and her chief vehicular crimes prosecutor Maureen McCormick have for years warned that poorly-written state statutes are leading to case law that favors killer motorists. But weak laws aren’t the only cause for concern. Though the Maldonado ruling was not unanimous, five of the seven most powerful judges in New York State exhibited a troubling readiness to make excuses for a driver who they acknowledge “did not brake” after slamming a speeding van into an innocent bystander.

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Serial Unlicensed Driver Gets Misdemeanor Charge in Brooklyn Death

A man with an outstanding charge for driving without a license fatally struck a pedestrian in Brooklyn last December but faces only a second charge of unlicensed driving after taking someone’s life.

Two drivers hit Nicole Detweiler as she crossed McGuinness Boulevard at Nassau Avenue in the early evening hours of December 29, 2013. Detweiler, 32, died at the scene.

Brooklyn DA Ken Thompson. Image: ##http://www.ny1.com/content/politics/inside_city_hall/190291/ny1-online--brooklyn-da-candidate-thompson-responds-to-attacks##NY1##

Since charges filed by former Brooklyn DA Charles Hynes were not upgraded by current DA Ken Thompson (pictured), a man who reportedly killed a pedestrian six days after an arrest for driving without a license faces a maximum penalty of 30 days in jail and a $500 fine. Image: NY1

Reports said the second driver to strike Detweiler was Roberto Amador, then 35. Amador, who was driving a box truck, was arrested and charged for driving without a license.

According to DNAinfo, Amador had been arrested less than a week earlier for driving with a suspended license after he collided with a cab on the Upper West Side. His license was suspended last May, the report said, because he didn’t pay “a recurring fee drivers pay the DMV for various infractions.” DMV imposed the fee after Amador accumulated six license points between December 2011 and May 2013, DNAinfo reported.

Court records say Amador was charged by Manhattan District Attorney Cy Vance last December 23 with second degree unlicensed operation, a charge that may be applied when a defendant is caught driving without a license after prior convictions for unlicensed driving, or when the defendant’s license was previously suspended or revoked pursuant to a drug or alcohol related driving offense. Despite the outstanding unlicensed driving charge when he hit Nicole Detweiler six days later, and Amador’s driving history, former Brooklyn DA Charles Hynes levied a top charge of third degree unlicensed operation — a less severe charge than the one applied by Vance — according to court records.

In other words, after being involved in a fatal crash while driving without a license, Amador was simply charged again for unlicensed driving, with no additional charges for killing a pedestrian. Charges against Amador were not upgraded by Hynes’s successor, current Brooklyn DA Ken Thompson.

Aggravated unlicensed operation tends to be the default top charge against unlicensed drivers who kill New York City pedestrians. It’s also applied against unlicensed drivers who commit non-criminal traffic infractions. Third degree unlicensed operation carries a maximum penalty of 30 days in jail and a $500 fine. State lawmakers failed this year to pass legislation to make it a felony to kill or injure someone while driving without a license.

Roberto Amador was released without bail the day after the crash that killed Nicole Detweiler, according to court records. He is scheduled to appear in court for the Manhattan unlicensed driving charge later this month, and is due back before a judge in Brooklyn in August. In the meantime, he remains free to drive.

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Brooklyn DAs Ignore “Rule of Two” in Death of Pedestrian Maude Savage

The driver who killed Brooklyn pedestrian Maude Savage was charged for failure to yield and driving without a license, but he was not charged with criminal negligence under the

The driver who killed Brooklyn pedestrian Maude Savage was charged for failure to yield and driving without a license, but he was not charged with criminal negligence under the “rule of two.” Image via Daily News

An unlicensed motorist who killed a senior in Brooklyn last year has pled guilty to a low-level misdemeanor and could be sentenced to probation and a nominal fine. Though the driver was charged with violating two traffic laws, current and former district attorneys Ken Thompson and Charles Hynes declined to pursue criminal negligence charges under the so-called “rule of two.”

Maude Savage was in a crosswalk and crossing with the light at Sutter and Euclid Avenues on November 25 when Robert Brown drove a commercial van into her, according to reports. Video of the crash shows that Brown barely slowed as he turned left toward Savage, leaving her no time to clear his path. Savage soon died from her injuries. She was 72.

Brown was charged by then-DA Hynes with third degree aggravated unlicensed operation, a misdemeanor that stipulates that he drove without a license when he knew or should have known he didn’t have one. Court records say he was also ticketed for failure to yield to a pedestrian in a crosswalk. Charges against Brown were not upgraded after Maude Savage died.

The rule of two is case law precedent 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. New York City prosecutors reflexively cite the rule as an obstacle to charging motorists for killing, but routinely fail to bring charges in crashes involving two or more traffic violations. The circumstances of this crash — driving without a license, failure to yield — seemingly satisfied the rule of two, but neither Hynes nor his successor Thompson exercised it.

City prosecutors tend to pursue third degree unlicensed operation as the top charge against unlicensed drivers who kill pedestrians. (It’s also applied against unlicensed drivers who turn without signaling.) Third degree unlicensed operation carries a maximum penalty of 30 days in jail and a $500 fine.

According to court records, on June 20 Brown pled guilty to unlicensed operation in the second degree, a charge that may be applied when a defendant is caught driving without a license after prior convictions for unlicensed driving, or when the defendant’s license was previously suspended or revoked pursuant to a drug or alcohol related driving offense. Second degree unlicensed operation is a more serious charge, but it’s still an unclassified misdemeanor. Penalties may include jail time, probation, and a fine of not less than $500.

Brown is scheduled to be sentenced in August.

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Mother of Cooper Stock: NYPD Must Hold Reckless Cab Drivers Accountable

Update: According to a spokesperson for Mayor de Blasio, today’s scheduled bill signing was postponed.

After a Wednesday hearing where he was joined by council members and department heads, Mayor de Blasio is scheduled to sign a package of bills today aimed at improving traffic safety. Though its signing will come later due to a scheduling conflict, one bill sent to the mayor by the council was Intro 171, also known as “Cooper’s Law.”

Cooper Stock. Photo: Barron Lerner via ##http://well.blogs.nytimes.com/2014/01/24/treat-reckless-driving-like-drunk-driving/##New York Times##

Cooper Stock. Photo: Barron Lerner via New York Times

The bill’s namesake, 9-year-old Cooper Stock, was fatally struck by a cab driver in an Upper West Side crosswalk in January. His father, Richard Stock, was injured in the collision.

The Taxi and Limousine Commission said Koffi Komlani’s probationary hack license won’t be renewed when it expires in July. Regardless, though Komlani has reportedly not driven a cab since the day of the crash, for now he remains in good standing with the TLC, despite the fact that he drove into two people who were crossing the street legally with sufficient speed to cause grave harm.

“The TLC did nothing,” said Cooper’s mother Dana Lerner. “They did nothing. They didn’t take his license. They didn’t do anything.”

According to the New York Post, the TLC can currently suspend hack licenses for 30 days only when a cab driver has six or more points, and can’t revoke a license until a driver has more than 10 points. Summonses for failure to yield and running a red light add three points to a hack license, a reckless driving summons adds five points, and a ticket for driving from 31 to 40 miles per hour over the speed limit adds eight points.

Reports said Komlani had no prior violations on his record. A summons for failure to yield is still pending, according to Lerner, and Komlani was not charged by Manhattan District Attorney Cy Vance.

When Cooper’s Law takes effect, the TLC will be allowed to suspend or revoke hack licenses of cab drivers who cause critical injury or death as a result of breaking traffic laws. But as we reported in May, penalties will depend on whether NYPD issues charges or summonses after a crash. As it stands, police investigate only a fraction of serious crashes, and fewer than 1 percent of New York City drivers who injure and kill pedestrians and cyclists are cited for careless driving.

Lerner has seen the data on NYPD enforcement of state vulnerable user laws, which the department says it can’t apply unless the Collision Investigation Squad is dispatched or an officer witnesses a violation. “That’s the key issue,” Lerner said. “If the NYPD doesn’t enforce, none of these laws have any meaning.”

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Bronx Hit-and-Run Driver Who Killed Abigail Lino Gets Six Months in Jail

A hit-and-run driver who killed a woman in the Bronx in 2013 will serve six months in jail.

Harlem resident Abigail Lino, 24, was crossing Bruckner Avenue near a Longwood club at around 3 a.m. last August 31 when Leroy Forest hit her with “a speeding silver SUV,” according to the Daily News:

Abigail Lino. Photo via DNAinfo

Witnesses said Lino’s body was thrown in the air by the callous driver before she came to rest in the center of the street. The driver sped off into the early morning darkness, police said.

“It’s hard to think about … we had just been inside having a good time. It’s really hard to believe,” said Ayalla Ingram, 24, who was walking with Lino moments before the accident.

“The car didn’t even slow down,” Taylor added. “It actually looked like it sped up (after it hit her).”

Lino worked for UPS and was a caregiver for her then-20-year-old sister, who has Down syndrome. She was also raising the young child of an ex, reports said.

Forest, of the Bronx, was arrested the day after the crash. According to court records, Forest pled guilty in May to leaving the scene of an accident resulting in injury, a class D felony punishable by up to seven years in jail, and which also allows for no jail time, or probation.

Leaving the scene was the top charge against Forest. Last week he was sentenced to six months in jail and five years probation. It is not known how the sentence will affect his driving privileges.

New York State law gives some drivers an incentive to leave the scene of a serious crash. The penalty for hit-and-run is less severe than the penalty for drunk driving, and cases hinge on the courts’ ability to divine driver intent, which makes “I didn’t see her” a viable defense. Reforming the laws is one of the goals of Mayor de Blasio’s Vision Zero plan, but Albany lawmakers have for years failed to pass legislation that would toughen hit-and-run penalties.

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A Powerful New Tool to Deter Traffic Violence — If Law Enforcers Use It

street_justice2

Last Thursday, the New York City Council passed Intro 238. This legislation makes it a misdemeanor for drivers to strike pedestrians or cyclists who have the right of way. Intro 238 has the potential to dramatically change driver behavior and advance the Vision Zero program of eliminating traffic fatalities.  But without enforcement by NYPD and prosecutors, Intro 238 will be no more than an unheeded “message in a bottle.”

What makes Intro 238 potentially so revolutionary? And why should we expect law enforcement to embrace it? To answer those questions, let’s do a quick review of how and why this legislation came to pass.

The need for criminal penalties to deter reckless driving is plain from the story of Ally Liao, told by her parents in City Council testimony this April supporting Intro 238 (videotape here). Allie was crossing hand-in-hand with her grandmother, in the crosswalk with the “Walk” signal, when a driver turned into them and killed her. The driver told police that he had looked for pedestrians in the crosswalk and hadn’t seen any. Police then told the Daily News that Ally had “broken free” from her grandmother, suggesting that the entire incident should be treated as a “tragic accident” befalling a rambunctious and poorly-supervised child.

But the video tells a very different story – one that plays out hundreds of times each year on New York City streets. Ally and her grandmother followed all the rules, but the driver still faced few consequences for killing her.

The city should make it a crime to drive this recklessly. That is the basic idea behind Intro 238, which originated with a proposal first discussed with candidates in StreetsPAC endorsement interviews, then published here on Streetsblog, and then lobbied for by Transportation AlternativesFamilies for Safe Streets, and many others.

Following the April hearing, the City Council amended Intro 238 to protect not only pedestrians, but also cyclists.  The law will take effect 60 days after it is signed by Mayor de Blasio, who at his January Vision Zero press conference acknowledged that reckless drivers “do not face sufficient consequences.”

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Will DA Ken Thompson Investigate Killing of 14-Year-Old Nicholas Soto?

Following the vehicular killing of 14-year-old Nicholas Soto in Red Hook Monday morning, anonymous police sources were quick to blame the victim, though the crash happened near a school bus and sent Soto through the air, witnesses said. According to press accounts, NYPD won’t say if the driver who struck Soto was speeding through an area of Red Hook where drivers routinely endanger lives. Meanwhile, the local precinct community council is scheduled to meet tonight.

Brooklyn DA Ken Thompson. Image: ##http://www.ny1.com/content/politics/inside_city_hall/190291/ny1-online--brooklyn-da-candidate-thompson-responds-to-attacks##NY1##

Brooklyn DA Ken Thompson. Image: NY1

Soto was crossing at the corner of Lorraine Street and Hicks Street at around 7 a.m. when the unnamed driver, apparently westbound on Lorraine, slammed into him with a BMW sedan.

Photos from the scene show extensive damage to the right side of the car. The front fender was dented, the hood separated from the headlight bezel, and the windshield nearly punched through. Witnesses say Soto was hit with such force that he was propelled away from the street and over a nearby fence.

From the Post:

“He came running through here, too busy, trying to catch the [school] bus,” said Edward Austin, 54, who witnessed the tragic accident.

Austin said the boy was looking at the bus when [he] ran into the intersection and failed to see the car coming from the opposite direction.

“The car came down, he was moving too damn fast,” he continued, referring to the driver. “The poor kid was bleeding through his eyes.”

“We’re losing our kids out here because [drivers] think this is a damn highway,” Alfredo Otero, a local, told the Post. “This is not the first,” said another resident. “I seen three or four people get hit out here.”

Soto’s family and other residents of Red Hook Houses East, where the victim lived, told DNAinfo the corner of Lorraine and Hicks is “notoriously dangerous.”

Eddie Soto, Nicholas’ father, said his son’s death reflected the community’s need for safer streets.

“It’s not only about my son,” Soto said. “It’s about everyone else.”

“The driver of the BMW remained on scene and and was issued a summons for having his windows tinted illegally,” the Post reported. “Police would not say if the driver was speeding.”

It’s unusual for a New York City district attorney to charge a sober motorist who remains at the scene for killing, but it does happen. In January, Brooklyn DA Ken Thompson charged a driver with manslaughter for the death of a second driver in a crash that apparently did not involve alcohol. Last year Thompson’s predecessor Charles Hynes filed assault and homicide charges against the driver who killed 9-year-old pedestrian Lucian Merryweather and injured his younger brother, though the top charge was later downgraded to homicide. (In New York State, criminally negligent homicide is a class E felony, the least severe felony category.)

Unlike states where specific charges are prescribed for vehicular crimes, New York traffic law is highly subjective, and convictions normally depend on a prosecutor’s ability to convince a jury of a motorists’s state of mind. The probability of a serious charge after a fatal crash seems to increase when the driver’s actions are especially brazen. It must also be noted that some DAs are more aggressive than others when it comes to prosecuting vehicular crimes.

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Unlicensed Driver Who Killed Brooklyn Senior Convicted of Leaving Scene

A jury has convicted a motorist who, while driving without a license, fatally struck a Brooklyn senior and left the scene.

Isabel Rodriguez. Photo via Daily News

Wayne Stokeling was convicted of leaving the scene of the crash that killed Isabel Rodriguez (pictured). Photo via Daily News

Isabel Rodriguez, 88, was walking with her 79-year-old sister on July 22, 2012, when Wayne Stokeling drove into her at Stone and Livonia Avenues in Brownsville, according to reports. Police tracked down his damaged BMW sedan a few blocks away.

Stokeling, then 50, “had an open warrant on a prior motor vehicle-related charge and four prior arrests,” the Daily News reported.

Stokeling claimed he was eating ice cream while driving and didn’t notice he’d run someone over. Unlike in many cases, however, the “I didn’t see her” defense didn’t work. Former Brooklyn District Attorney Charles Hynes brought several charges against Stokeling, but he was not charged with homicide for killing Isabel Rodriguez. According to court records, on May 23 Stokeling was found guilty at trial of leaving the scene and driving with a suspended license.

It’s unclear what penalties will come with this conviction. Court records say the top charge against Stokeling — for which he was found guilty — was a violation of VTL § 600.2(a), for leaving the scene of a crash involving injury. This is the same charge that resulted in a 16 day jail sentence for the hit-and-run driver who killed pedestrian Florence Cioffi in Manhattan in 2008.

Stokeling’s next court appearance is scheduled for July.

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Unlicensed Driver Faces Wrist Slap After Killing Queens Cyclist William Faison

Tiffany Delcia Moore struck and killed William Faison at 228th Street and 120th Avenue in Cambria Heights last Friday. She was charged for driving without a license. Image: Google Maps

Tiffany Delcia Moore struck and killed William Faison at 228th Street and 120th Avenue in Cambria Heights last Friday. She was charged with driving without a license. Image: Google Maps

A motorist who was reportedly driving with a suspended license will likely get off with a slap on the wrist after she killed a cyclist in Queens last week.

Reports say William Faison, 53, was riding south on 228th Street in Cambria Heights at around 8:50 a.m. Friday when 26-year-old Tiffany Delcia Moore hit him with a Kia sedan as she drove west on 120th Avenue.

From the Post:

Craig Henley, a relative of Faison, ran to the scene.

“He tried to open his eyes to see me,” he said. “His mouth wasn’t moving. Then he started moving his mouth, like he was trying to breathe.”

Medics took Faison to Jamaica Hospital, but he couldn’t be saved. His brother Marcus went there to see his body and kissed his forehead, relatives said.

“He was a very good son. He took care of me,” Faison’s mother told the Post. “I don’t know how to feel. He was a loving son.”

The Post reported that Moore “collapsed in horror” after the crash, and “was not believed to have been speeding or on the phone.” She was charged with aggravated unlicensed operation.

“He would still be alive if she was not driving,” said Henley. “You do not drive on a suspended license.”

Aggravated unlicensed operation is a misdemeanor that stipulates that Moore drove without a license when she knew or should have known she didn’t have one. Third degree aggravated unlicensed operation is the default charge against unlicensed drivers who kill cyclists and pedestrians in NYC, and it’s the same charge police and prosecutors apply when an unlicensed driver turns without signaling. It carries a maximum penalty of 30 days in jail and a $500 fine.

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Manhattan DA Cy Vance Won’t Prosecute Cab Driver Who Killed 9-Year-Old

Manhattan District Attorney Cy Vance will file no criminal charges against the cab driver who killed 9-year-old Cooper Stock and injured his father in an Upper West Side crosswalk in January.

Cooper Stock. Photo: Barron Lerner via ##http://well.blogs.nytimes.com/2014/01/24/treat-reckless-driving-like-drunk-driving/##New York Times##

Cooper Stock. Photo: Barron Lerner via New York Times

Lisa Belkin of Yahoo News reports that prosecutors met Wednesday with Cooper’s parents, Richard Stock and Dana Lerner.

“They told me there is nothing in the law right now that specifies that he can be charged with any crime,” Lerner said, describing the meeting. Under New York law, criminal charges can only be brought if a driver who injures or kills a pedestrian commits two misdemeanors at a time. Because the driver, Koffi Komlani, was charged with “failure to yield” but nothing else, he will face a penalty of up to $300 and three points on his license.

First, the “rule of two” is 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. It has no statutory basis, and as a candidate for DA in 2009, Vance pledged to challenge the precedent in court.

Here is a passage that used to appear on a now-defunct page on Vance’s campaign web site:

There is no reason why two traffic violations are necessary in order to support a conviction of criminally negligent homicide. I view the “Rule of Two” as the result of case law which should be modified to reflect the reality that one vehicular crime is fully capable of killing. Although in recent years this notion has been applied by the courts in a less strict manner — it is indisputable that it does not take two violations to kill someone. Many violations — speeding, running a red light, or failing to stop at a stop sign are more than dangerous enough to take a life.

So why did Vance decline to pursue charges for this vehicular killing? As was the case when Vance failed to prosecute the cab driver who severed the leg of a Midtown tourist, the public is left to guess. “A spokesman for the DA’s office said that the agency does not comment on investigations or charges that are not brought,” Belkin reports.

Instead, Vance’s office referred to testimony it provided to the City Council in February: “It can be difficult for people to understand why a crash that seriously injures or kills someone is not always a crime. The reality is that often these cases do not meet the complicated legal requirements for criminal charges.”

It is difficult to understand why Vance is not prosecuting sober reckless drivers who injure, maim, and kill, especially since he refuses to say.