Queens driver Ian Glasgow fled the scene of a near-fatal crash last month in what prosecutors said was a conscious attempt to avoid a DUI charge. The penalty for hit-and-runs is less than for drunk driving. Image: Daily News

If you get drunk, get behind the wheel of a car and get into a crash in New York State, you should flee the scene. Not morally, of course, but legally the repercussions will be less severe. A drunk driver who stays at the scene of a crash can be charged with a felony; sober up and take the hit-and-run charge and the worst you’ll face is a misdemeanor.

As Staten Island defense attorney Mario Gallucci told the Staten Island Advance, “As a defense attorney, you love it when they leave the scene, because it helps your case.”

Earlier this week, though, the State Senate passed legislation sponsored by Brooklyn Republican Marty Golden which would eliminate that perverse incentive. Golden’s bill would increase the penalty for leaving the scene of a crash, currently a Class A misdemeanor with a maximum penalty of one year in prison, to match that of causing injury while under the influence of drugs or alcohol, a Class E felony that can carry up to four years of jail time.

“This bill makes a very important change to the law in terms of aligning DUI and hit and run penalties in non-fatal or serious injury cases,” said Transportation Alternatives general counsel Juan Martinez.

Golden’s bill passed the State Senate last year as well, but died in the Assembly. The Assembly version, introduced by Brooklyn Democrat Steven Cymbrowitz, currently has 23 sponsors and is before the transportation committee.

In the Senate, the bill passed by a vote of 58 to 1, with Brooklyn Democrat Velmanette Montgomery the only nay.

This afternoon, Golden held a press conference urging the Assembly to pass his legislation. He stood at the corner of 72nd Street and 7th Avenue, where a hit-and-run driver killed Amjad Barakat, a 33-year-old father of two.

Joining Golden was Republican Assembly Member Nicole Malliotakis, who represents the area and is a supporter of Golden’s bill. Malliotakis also has legislation pending to create a three-strikes law for drunk driving convictions, revoking someone’s drivers license and vehicle registration for ten years after a third DUI. That bill passed the State Senate last year but has not yet this year.

“Anyone that would get behind the wheel and gamble with the lives of others on the road deserves to be punished to the fullest extent of the law,” said Malliotakis in a statement. “With the holiday weekend coming up, now is the most important time to focus on safety for drivers and pedestrians. Whether it’s a repeat drunk driver, or a person who flees the scene of a crime, the message must be loud and clear – reckless drivers will end up behind bars.”

Said Golden, “This week, another person was left to die on our streets after getting hit by a car. And all too often, we hear of families destroyed by drunk drivers. This must be the year that the Empire State stands up against hit and runs and drunk driving.”

Graphic by Carly Clark

At the February City Council hearing on NYPD traffic enforcement, council members and the public learned that a driver who injures a pedestrian or cyclist in New York City is not normally cited under the state vulnerable user laws unless an officer witnesses the violation. NYPD officials said department protocol prohibits precinct officers from issuing tickets under VTL 1146, the state statute that includes Hayley and Diego’s Law as well as Elle’s Law, because the citations are prone to being dismissed in court.

Legislation pending in Albany would amend Hayley and Diego’s Law by making clear that officers may issue tickets for careless driving whether or not they observe an infraction. Meanwhile, thousands of pedestrians and cyclists are injured in traffic every year with barely any repercussions for motorists. Though the department’s prohibition on careless driving citations does not apply to the Accident Investigation Squad — the 19-officer unit assigned to conduct full-scale investigations in instances where someone dies or is believed likely to die — NYPD rarely employs VTL 1146 to assign responsibility to drivers who injure and kill.

In 2011, the first full year after Hayley and Diego’s Law went into effect, 161 pedestrians and cyclists were killed on New York streets. NYPD issued just 84 citations for careless driving last year, according to preliminary data obtained by Transportation Alternatives from the state Department of Motor Vehicles. That number represents a drop from 2010, when officers issued 98 citations under VTL 1146.

“It is appalling that the number of 1146′s would go down after the passage of the Hayley and Diego amendments to it,” says attorney Steve Vaccaro. “Hayley and Diego’s Law was a clear indication that the legislature wanted enforcement against drivers who injure carelessly. The flat trend in 1146 citations means NYPD doesn’t care. It is also a reflection of the fact that staffing of the officers who write the bulk of the 1146′s — the AIS detectives — is far too low.”

In March, City Council Member Steve Levin announced a number of measures intended to reform the way NYPD handles traffic crashes, one of which was a bill to require that at least five officers per precinct be trained to conduct AIS-scale investigations. That bill has since been reduced to resolution status, as has another that would have mandated that NYPD investigative protocols conform to state law.

Graphic by Carly Clark

The gap between 1146 citations and pedestrian and cyclist injuries is enormous. In 2010, the latest year for which injury data are available, 13,892 pedestrians and cyclists were hurt in collisions with drivers — a large enough number that the 98 VTL 1146 tickets issued that year hardly merit consideration. Says Vaccaro: “The number of 1146 citations represent a fraction of one percent of the universe of cases in which the statute might apply — crashes involving a motor vehicle and a vulnerable street user in which the driver’s failure to use due care was a contributing factor.”

Juan Martinez, general counsel for Transportation Alternatives, describes a scenario that plays out across the city on a daily basis: “A cop gets to the scene of a crash. There are witnesses who want to tell their stories, to see justice. The cop wants to do justice. A lot of times there isn’t a lot of mystery — the wheels are over the pedestrian. But their hands are tied by the policy.”

Martinez says the prohibition against beat cops writing careless driving citations is contradicted by an opinion from the state attorney general, as well as case law.

“Because of this NYPD policy the law has been rendered impotent,” Martinez says. “The benefits to safety, which the sponsors and supporters of the law expected, we haven’t seen the effects on the streets.”

The amendment to Hayley and Diego’s Law is sponsored by Senator Dan Squadron and Assembly Member Brian Kavanagh. To date, they are the only sponsors in their respective houses. Still, in a statement to Streetsblog, Squadron expressed hope that the bill will clear the legislature.

“Our bill to strengthen Hayley and Diego’s Law was one of the 311 bills that the Senate Republican leadership attempted to shelve by sending it to the locked vault of the Rules Committee,” said Squadron. “But there’s still over a month left in this legislative session — and we’re continuing to push to provide law enforcement with the necessary tools to effectively crack down on careless driving.”

Sister Mary Celine Graham

On the morning of June 22, 2010, police investigating a string of gunpoint robberies stopped a minivan occupied by Dyson Williams and William Robbins near W. 142nd Street and Adam Clayton Powell Boulevard, according to a press release from the office of Manhattan District Attorney Cy Vance. As officers questioned Robbins outside the vehicle, Williams, who was in the passenger seat, got behind the wheel and drove away.

Police reportedly pursued with lights and sirens. At W. 122nd Street and Lenox Avenue, Williams collided with another vehicle and careened into a group of people.

Four bystanders were injured. Sister Mary Celine Graham, 83, was killed.

Williams was charged with murder, along with a host of other charges related to the crash and the robberies. Today in state Supreme Court, he pleaded guilty to second degree murder, robbery and assault. Williams, 22, faces 18 years to life in prison. His sentencing is scheduled for May 30.

“Murder was not committed with a gun or a knife in this case, but a car,” said Vance. “Before the deadly crash, the defendants in this case had embarked on terrifying gunpoint robbery spree in Harlem. Dyson showed an utter disregard for human life and his actions had tragic and deadly consequences.”

Robbins was also charged with murder. Since he was not in the vehicle at the time of the crash, experts said the case against Robbins will test the boundaries of the state’s felony murder statute. Robbins is next due in court on May 14, according to an online court database.

In the aftermath of the crash, NYPD Commissioner Ray Kelly said no departmental rules were broken. Kelly characterized the chase that preceded the collision as “appropriate police tactics.”

The crash that killed Sister Mary Celine was one of a series of NYPD chases around that time that resulted in injury and death. Six months earlier, Karen Schmeer was fatally struck by men suspected of taking over-the-counter allergy medicine from a CVS pharmacy on the Upper West Side. In August 2009, restaurant worker and father of three Pablo Pasares was run over in Long Island City by a man after an alleged drug buy. According to witnesses, a suspected car thief was fleeing police when he hit and killed 38-year-old Greenpoint mother Violetta Kryzak in April 2009. In February 2009, a video camera captured an apparent Staten Island chase that led to the death of a couple with young sons. In June 2009, nine people, including five pedestrians, were injured when officers responding to a call in a marked NYPD squad car collided with another car and ended up on an East Village sidewalk.

“Although we are disappointed with the Judge’s verdict, each case we have brought in this area has put increased scrutiny on the construction industry as a whole, and has had a cascading effect on safety practices. Construction companies must do everything in their power to protect the safety of workers and the thousands of New Yorkers who live near or walk by a construction site every day. The tragic deaths of two young men in this case showed the serious and fatal consequences that can result when profit is put ahead of safety.”

You don’t see press releases like this pertaining to pedestrian or cyclist fatalities, in part because prosecutors are notoriously timid when it comes to pursuing vehicular crimes.

As of this writing, 66 people are known to have died on city streets and highways in 2012. Of those, 32 were pedestrians and cyclists killed by drivers on surface streets. Citywide, only four drivers are known to have been charged for taking a life, and at least two of those drivers were also charged with DWI. The last few years have seen hit-and-run and unlicensed killers get off with slaps on the wrist, while district attorneys have failed to adhere even to the lenient “rule of two” standard.

The problem is not limited to the city. Between 1994 and 2008, there were just 29 indictments for criminally negligent homicide — the only charge that applies to either a vehicular assault or homicide that does not require the presence of alcohol or drugs — in all of New York State, according to Transportation Alternatives. During that period, about 10,000 people died on state roadways.

Said attorney Steve Vaccaro in our April review of Vance’s record on vehicular crime: “I think prosecutors want to have a very high conviction rate, and that’s important to them. But it’s not so important that they should be afraid of taking cases that push the envelope a little bit.”

Until that happens, it’s not hard to imagine what it might be like when, win or lose, prosecutors have the fortitude to pursue cases of vehicular violence as doggedly as other acts of negligence:

“Although we are disappointed with the Judge’s verdict, each case we have brought in this area has put increased scrutiny on the construction industry dangers of reckless driving as a whole, and has had a cascading effect on safety practices. Construction companies Motorists must do everything in their power to protect the safety of workers the public and the thousands millions of New Yorkers who live near or walk by a construction site walk, bike and drive the streets every day. The tragic deaths of two young men in this case showed the serious and fatal consequences that can result when profit motorist convenience is put ahead of safety.”

No crime or traffic violation occurred at this fatal crash scene, according to NYPD and Manhattan District Attorney Cy Vance. Photo: WNBC

Rogalle was on the sidewalk near 15 Beekman Street at 4:39 p.m. on Tuesday, April 17, when the driver of a GMC SUV jumped the curb, striking him from behind. Witnesses described a horrific scene, with Rogalle trapped under the vehicle, his internal organs exposed, until he was freed by emergency responders. He was reportedly awake and talking when he was taken to Bellevue Hospital in critical condition. Rogalle died on Sunday. He was 58.

A resident of Teaneck, New Jersey, Rogalle reportedly worked for UPS for 39 years, 26 of them on the same route in the Financial District, where he was well-known and well-liked.

There were two adults and two small children in the SUV at the time of the crash, according to reports. The adult passenger, a man, was identified only as an FDNY inspector. The driver, an unidentified woman, was reportedly removed from the car by FDNY and placed on a backboard with a neck brace. All four people in the car were taken to New York Downtown Hospital, reports said.

Though all details point to a high-speed crash — it would be all but impossible to “lose control” of a vehicle, jump a curb, kill a pedestrian, injure yourself and your passengers while adhering to the city’s 30 mph speed limit — Downtown Express reports that NYPD found “no criminality.”

“How could you go fast here on these streets?” said a local to the Daily News. “There’s stop signs, there’s construction and congestion. Look at the height of that curb! How fast could she have been going?”

This fatal crash occurred in the 1st Precinct. To voice your concerns about neighborhood traffic safety directly to Deputy Inspector Edward J. Winski, the commanding officer, head to the next precinct community council meeting. The 1st Precinct council meetings happen at 6:30 p.m. on the last Thursday of each month at the precinct, 16 Ericsson Place. The officer we spoke with could not immediately confirm if tonight’s meeting would take place as scheduled. Call the precinct at 212-334-0640 for information.

Margaret Myers

According to published reports, Domino’s Pizza deliveryman Videsh Badal was drunk and driving with a suspended a license when he struck Myers, 69, on Wortman Avenue in East New York on the evening of March 7. He then left the scene. When a witness caught up with Badal and confronted him, he reportedly replied, “Well, who’s going to pay for my car?”

Initial media reports said Badal was charged with manslaughter, DWI, resisting arrest and leaving the scene. But two weeks after the crash, an online court database listed leaving the scene as the top charge, with other charges including third degree aggravated unlicensed operation and operating a motor vehicle while intoxicated. At that time, a Hynes spokesperson confirmed that Badal was not charged for Myers’s death, and said the case was in the hands of a grand jury.

On April 6, the first degree manslaughter charge was added, indicating that Badal is accused of having a blood alcohol content of at least .18 percent, according to the court database. Other added charges include speeding, running a red light and aggravated DWI with a child in the car — a felony under Leandra’s Law.

Theoretically, Badal faces up to 25 years in prison if convicted on the manslaughter charge. His next court date is set for April 30.

Felix, 57, was crossing Adam Clayton Powell Boulevard near W. 146th Street in Harlem when he was struck at approximately 8:28 p.m. Sunday. The criminal court complaint says that Garry Kinloch, 48, was found by police “sitting on the curb next to an Acura MDX SUV … with front end damage including a dented front fender and broken front windshield,” with “an unconscious man … lying nearby in the street.”

A witness said Victor Felix was struck with such force that he was thrown 15 feet into the air. Photo: Post

The report says Kinloch told an officer: “I’m sorry. I had the green light. He just came out of nowhere. I didn’t see him.”

The Post quoted a witness who described the crash:

“All of the sudden, he just walked into the street,” said Richard Gomez, 29, a friend of the victim. “He didn’t wait for the light.”

Gomez said Felix was struck with so much force that “he went 15 feet straight up.”

At around 9:30 p.m., an NYPD Highway Patrol officer administered a portable breath test. Test results indicated that Kinloch had a blood alcohol content of .089, the complaint says. The legal limit for driving in New York State (not for walking, as many city reporters and editors seem to believe) is .08.

At approximately 11:27 p.m., a second officer administered a second breath test, which according to the complaint detected a blood alcohol content of .059 percent. The complaint says that at the time of the second test the administering officer “detected a slight odor of an alcoholic beverage on the defendant’s breath,” and that “the defendant at times appeared unsteady on his feet during coordination tests and at times failed to follow instructions during coordination tests.”

Kinloch, whom the Post identified as a maintenance worker for NYPD, was charged with DWI and driving while ability impaired. According to an online court database, his next court date is today. As of this writing Kinloch faces no charges for the death of Victor Felix.

Francesca Maytin (inset) and Lynette Caban. Photo: New York Post

A driver convicted of homicide is back on the road after serving one year for killing a Manhattan pedestrian.

Lynette Caban was driving with a suspended license when she struck Francesca Maytin in East Harlem on January 2, 2003, knocking the 82-year-old victim a distance of over 18 feet, according to a January 2012 press release from the office of Manhattan District Attorney Cy Vance.

Maytin was in the crosswalk on Third Avenue between E. 107th and E. 108th Streets as Caban backed against traffic through two crosswalks in pursuit of a parking spot. It was reported that Caban and three passengers were on the way to JFK Airport when they decided to stop for pizza.

Caban had been summonsed months earlier, in October 2002, when she reportedly backed into an intersection in front of a Bronx school while attempting to evade an officer who was writing her a parking ticket.

In 2005, Caban was convicted of criminally negligent homicide for killing Maytin. She spent a year in jail. Vance inherited the case from DA Robert Morgenthau after a judge overturned the conviction based on a procedural error.

Vance secured the second conviction after the state Court of Appeals, New York’s highest court, ruled that driving with a suspended license can be used as evidence of criminal negligence — a victory in its own right, hailed by safe streets advocates and described by Vance as “a significant step in holding drivers accountable for dangerous and unsafe operation of a vehicle.”

After the second verdict, the Post reported that Caban was using a drivers license issued under a different name, and that under the law she could not be given additional jail time for the same crime. Last month Caban was given a sentence of one to three years. According to Vance’s office, the judge sentenced her to time served — i.e. no additional time — and did not suspend her new license.

The Caban case, maybe as well as any, epitomizes the uphill climb faced by law enforcers who go after deadly drivers. That a habitually reckless killer can be free to drive again, even when prosecutorial forces are brought to bear, is further evidence of a New York State traffic justice system flawed from top to bottom.

Cy Vance, who maintains a no comment policy on vehicular crimes, announces manslaughter charges in a crane collapse. Photo: Manhattanda.org

Since we learned that the assistant district attorneys who comprise Vance’s vehicular crimes unit don’t always attend fatal crash scenes, we asked if his office is investigating this case. We also asked if charges against Kinlock might be upgraded from DWI, given that the victim was killed.

To their credit, Vance’s press staff replied quickly. Unfortunately, they answered neither of our questions.

“We can’t comment on charges prior to a defendant’s arraignment,” wrote a Vance spokesperson, who encouraged us to check in later.

Note that this response ignores the question of whether Vance’s office is investigating the death of a Manhattan pedestrian at the hands of an accused drunk driver. As for checking in later, if there is an optimal moment to follow up with the Vance team on vehicular crime cases, in two years Streetsblog has yet to find the sweet spot. With a few exceptions, the pattern goes like so: “No comment” prior to arraignment, then “No comment” on pending cases. Regardless of outcome, once it runs its course the final word on how or why a vehicular case is prosecuted, or not, is normally something along the lines of “We bring the top charge supported by the evidence.” Period.

By contrast, a perusal of the Manhattan DA web site finds that Vance and staff have much to say about cases they want to talk about. Press releases are searchable based on the stage of the case, from indictment through appeal. A search for statements pertaining to vehicular crimes yields two results, both announcing convictions.

There is no doubt that a certain amount of discretion is required for law enforcers to do their jobs. The trick is to mind the line between discretion and stonewalling. To martial support for beefing up vehicular crimes statutes so that drivers who injure and kill are held accountable, it is crucial that the public understand, as best as can be explained, how these cases are made and where existing law falls short. Candidate Vance, in so many words, pledged to bridge that gap.

There is also the issue of prioritizing cases — and, therefore, victims — depending on how they died. In 2009, a few months before Vance was elected, Aaron Naparstek, then Streetsblog editor-in-chief, wrote:

When a construction crane falls or a New York Giants wide receiver accidentally discharges his gun, New York City’s law enforcement community flies into a frenzy of justice-seeking. But when the killing is done by a sober, licensed driver, you can pretty much hear crickets chirping at the District Attorney’s office.

The deaths of Yolanda Casal and Laurence Renard showed that, under Vance, even unlicensed drivers can expect to escape charges for killing. Presumably, an alleged drunk driver would have no chance of getting a similar break. But apparently we’ll have to wait and see.

Henry Garcia was killed and Timothy Keith left brain dead by drivers in Brooklyn on Saturday. Henry's killer fled the scene. The driver who hit Timothy was not charged.

On Saturday morning, Gothamist reported that two pedestrians were critically injured by a hit-and-run driver at White Plains Road and Bruckner Boulevard in the Bronx.

Then, at approximately 3:40 p.m. Saturday, Henry Garcia, 13, was riding his bike on 20th Avenue near 80th Street in Bensonhurst when he was hit by the driver of a green Ford SUV, according to the Post. Henry died Sunday at Coney Island Hospital. The driver remains at large.

Less than 90 minutes later, five-year-old Timothy Keith was struck by a cab driver while walking with his parents on Hicks Street in Cobble Hill. NYPD sources told the Daily News that Timothy ran into the street, and that the cab driver said he “couldn’t stop in time.” Yesterday it was reported that Timothy is brain dead. The driver was not charged. Timothy and his parents, all of whom are deaf, are from DC. They were on their first family trip to the city.

Deborah Munize, 59, was sitting at a bus stop at Montrose and Graham Avenues in Williamsburg at around 5:15 Sunday morning when she was hit by a curb-jumping livery cab driver. Munize was hospitalized in stable condition with leg injuries, according to the News. Driver Maximo Espinal later turned himself in and was charged with reckless driving and leaving the scene.

The Post reports that on Sunday at 8:30 p.m., Victor Felix, 57, was crossing Adam Clayton Powell Boulevard near W. 146th Street in Harlem when he was struck and killed by Garry Kinlock, a maintenance worker for NYPD. Kinlock was charged with DWI.

Based on published reports, to this point not one of the three drivers identified by authorities has been charged by NYPD, Charles Hynes or Cy Vance for taking a life or inflicting serious injury, though one left the scene and another was allegedly driving drunk.

Update: Streetsblog has queries in with the offices of district attorneys Hynes and Vance, respectively, regarding the crashes that injured Timothy Keith and Deborah Munize, and the suspected DWI death of Victor Felix.

Candidate Cy Vance, far left, with rival Richard Aborn, at a 2009 Chelsea pedestrian memorial march. Photo: Brad Aaron

The 2009 race for Manhattan district attorney presented a rare opportunity for proponents of safer streets. After decades of indifference toward victims of vehicular violence from Robert Morgenthau, advocates succeeded in making traffic justice a prominent campaign issue for his would-be successors. Contenders for the office pledged to take definitive action to reduce the carnage on Manhattan streets and punish drivers whose recklessness has in recent years resulted in a death toll on par with that exacted by gun-wielding murderers.

Once he won the Democratic primary, it looked as if presumptive DA Cy Vance was poised to make good on his laudable traffic safety platform. Soon after taking office, Vance announced the expansion of the vehicular crimes unit. He said his office would work more closely with NYPD to “investigate, prosecute and prevent vehicular crimes,” and pledged to support state and local legislation to help reduce the threat of dangerous driving in New York City.

Halfway through Vance’s first term, however, the landscape appears largely unchanged. With a handful of exceptions, pedestrian and cyclist fatalities elicit no discernible reaction from 1 Hogan Place. By Streetsblog’s count, out of approximately three dozen crashes since January 2010 in which a Manhattan pedestrian or cyclist died at the hands of a driver who remained at the scene, or who fled the scene but was later identified, five motorists are known to have been charged with taking a life. Of those five, two were fleeing police, and two were also charged with driving while intoxicated. Based on media accounts and our own reporting, only once has Cy Vance initiated a case against a sober driver for a pedestrian or cyclist fatality that did not involve a police chase.

Meanwhile, of the thousands of crashes per year that result in pedestrian or cyclist injury –  there were over 3,700 such injuries in Manhattan in 2010 alone — it is impossible to know how many Vance’s office has pursued. The fact that NYPD essentially does not investigate such crashes indicates that the figure is likely negligible.

What’s going on here? Did Vance put on a show to win votes from hopeful Manhattanites concerned with the plague of vehicular violence? Did he overestimate the ability of the office to rein in reckless drivers? Or are New York County prosecutors doing the best they can with the laws on the books? The answers, for the most part, depend on whom you ask.

From the sidewalk, the Manhattan of 2012 can look a lot like the Manhattan of 2009.

“Cy Vance has met our low expectations,” says Christine Berthet of the Clinton/Hell’s Kitchen Coalition for Pedestrian Safety. CHEKPEDS represents a section of Manhattan that continues to see a high number of crashes in which motorists face few, if any, consequences for bringing death and injury. After cyclist Marilyn Dershowitz was killed by a postal truck driver on West 29th Street last July, her brother-in-law Alan Dershowitz claimed Vance’s office was keeping video evidence under wraps. The driver was eventually charged with leaving the scene, but not for causing a fatality.

A few weeks before the Dershowitz crash, Steve Jorgenson, a Marine in town for Fleet Week, was struck by a driver when he and his shipmates exited a cab on the West Side Highway at West 49th Street. The driver reportedly continued for a block before stopping to call 911. No charges were filed. To Berthet, incidents like these are evidence that Vance “is more comfortable with low-key political scoring than in using his pulpit to fight for justice.”

Vance’s staff is sensitive to allegations that his office is soft on reckless motorists. When Streetsblog first approached his public relations team for this story, following the death of Yolanda Casal — whose killer, unlicensed and backing up a one-way street, pleaded guilty to a misdemeanor and was fined $500 — we suggested that Vance is reluctant to seek long-term incarceration as a deterrent to negligent driving.

“Nothing could be further from the truth,” a spokesperson replied. “We have prosecuted many cases, winning convictions that come with long incarceratory sentences.” To illustrate, the spokesperson cited three convictions, two of which involved pedestrian fatalities: David McKie, initially charged with murder but allowed to plead to manslaughter for killing Karen Schmeer in the act of evading police; and Keston Brown, the curb-jumping drunk driver convicted of second degree manslaughter and sentenced to five to 15 years for the 2009 death of Ysemny Ramos.

While those examples seem to point to a district attorney who only prosecutes the safe bet, with mixed results at that, the reality is not so simple. The Ramos case was brought under Morgenthau and won under Vance. The prosecution of Schmeer’s killer was arguably undercut by a ruling from the state’s highest court, which reversed a murder conviction in a similar case. The decision to heed the Court of Appeals and offer a plea for a reduced charge, in the opinion of Nassau County assistant district attorney and traffic justice pioneer Maureen McCormick, was “regrettably correct.”

That two-word assessment of the Schmeer case fairly encapsulates the prevailing judgment among other New York vehicular law experts, who say Vance is negotiating a system rife with shortcomings to make noticeable progress on the traffic justice front.

“Cy Vance has made substantial changes to the way the office investigates and prosecutes crash cases,” says Juan Martinez, general counsel for Transportation Alternatives. “He has devoted more resources and staff attention to this area and arranged his office in a way that prevents these cases from falling through the cracks.”

Vance has, for example, increased the vehicular crimes unit to “more than 25″ specially-trained prosecutors who assist a full-time vehicular crimes bureau chief, a spokesperson told Streetsblog.

“We are always reviewing potential changes to the penal code,” the spokesperson said. “However, in these cases often there is an issue of proof — many crashes do not have eye witnesses, so establishing fault or proving recklessness or negligence is difficult.”

Attorney Steve Vaccaro, a traffic law specialist who is representing the family of slain Brooklyn cyclist Mathieu Lefevre in a freedom of information suit against NYPD, agrees that cases of vehicular violence get more attention with Vance at the helm. But Vaccaro’s praise comes with a caveat.

“I think that there are more criminal charges being brought against killer motorists than there were under Morgenthau,” Vaccaro says, “and where charges haven’t been brought they have a good faith argument as to why they couldn’t bring the charge. So I applaud them for that.”

“But I would also urge them to consider going a little bit further out on a limb, and try to be pro-active in framing the argument as to why certain conduct that society at large has come to accept as a reasonable cost of a car-oriented society is, in fact, reckless conduct.”

July 2011: An SUV driver plunged off the FDR into an occupied taxi cab. Two people were critically injured, including one who lost a leg. Vance's office filed no charges. New York Post

Framing the argument is exactly what candidate Vance promised to do. To this day, for instance, the Vance campaign web site reads: “There is no reason why two traffic violations are necessary in order to support a conviction of criminally negligent homicide.” Two years in, there is no sign that Vance has mounted a challenge to the notorious “rule of two.” To the contrary, cases like that of Edwin Carrasco, who was reportedly committing at least two offenses when he killed Yolanda Casal and injured her daughter, point to a district attorney comfortable with the status quo. It seems that to give Vance credit for raising the bar, you have to acknowledge how low his predecessor left it.

Even Vance’s signature vehicular crimes case, the prosecution of Jessica Altruz, suggests leniency toward drivers who kill. In November 2010, Altruz slammed into pedestrian Margaret Fisher after reportedly laying on the horn while speeding through an Upper West Side intersection. She drove on until stopped by witnesses, then insisted that she had the light. Vance’s office investigated the case vigorously and leveled a charge of second degree manslaughter. Altruz pleaded guilty and faced up to 15 years, but according to reports prosecutors asked the judge for a three-year maximum, with the possibility of as little as six months’ jail time.

We asked Vance’s office about the Altruz case. We also asked about Diego Tapia-Ulloa, the unlicensed driver who killed Laurence Renard and, like Edwin Carrasco, pleaded guilty to aggravated unlicensed operation and was fined $500. We asked about Simone Walters, arrested for the hit-and-run death of Robert Bond and charged with leaving the scene, driving without a license and driving while ability impaired — but not charged for killing. We listed every known pedestrian and cyclist death in Manhattan since January 2010 in which a driver was identified and which reportedly resulted in no charges, and asked for information on each case.

With the outcome pending, Vance’s office would not comment on the Walters case. Of Altruz, Tapia-Ulloa and Carrasco, a spokesperson said, “Although the outcomes are tragic, in each case the district attorney’s office brought the top charges that were supported by the evidence under the laws.”

“That’s just a very generic statement,” says Vaccaro. “It doesn’t really mean anything. It doesn’t address whether there were arguments about what would be the top charges that could be supported.”

Vance press staffers said they could not access the remaining cases without defendants’ names, which as a rule are not released by NYPD without the filing of a freedom of information request — an arduous exercise in futility. All of which assumes charges were filed in the first place. In cases where no charges were filed, there are of course no defendants to speak of, and therefore no way to know why charges were not brought.

The trumpeting of an occasional vehicular crime prosecution calls attention to the many cases that are not pursued. While Vance may have increased the number of prosecutors trained to investigate crashes, according to a spokesperson, NYPD does not necessarily notify the district attorney’s office every time the Accident Investigation Squad is sent to a Manhattan crash scene, nor do assistant DAs go to every scene when Vance’s office is notified by AIS. Given how difficult it is in New York State to prove recklessness or negligence, and the tendency of prosecutors to cite loopholes in the law for their inability to make cases, it stands to reason that a district attorney serious about traffic crime would make every effort to ensure a thorough investigation, particularly in cases of death and life-threatening injury.

As for those loopholes, state lawmakers are working to close some of them, and are looking to give law enforcers new tools, including automated enforcement. Though Vance has signaled his support for speed cameras and other initiatives, he keeps a low profile for a district attorney who, as a candidate, pledged to “work diligently with New York City’s advocacy groups” to change state traffic laws.

“We’d like to see Vance speak out in favor of legislative fixes that would remove those barriers,” says Martinez, “similar to what he’s done regarding repeat domestic violence offenders and the DNA databank.”

At the same time, Vaccaro says Vance could, and should, test existing law in court. “We need to have DAs getting up in front of judges and arguing that if a driver is speeding in an environment with vulnerable street users and kills someone, that the driver has engaged in a ‘gross deviation’ from a reasonable standard of care and therefore is guilty of criminally negligent homicide. The notion that killing someone while speeding is just an ‘ordinary deviation’ that should be punished with no more than a traffic ticket is barbaric. If it means that in order to educate the judiciary they need to take some failed prosecutions, that’s part of how it works.”

“I think prosecutors want to have a very high conviction rate, and that’s important to them. But it’s not so important that they should be afraid of taking cases that push the envelope a little bit.”

•               •               •               •

Below is a partial accounting of Manhattan pedestrians and cyclists known to have lost their lives since Cy Vance took office. It does not include hit-and-run cases in which the driver was not immediately located. It should be considered alongside the thousands of Manhattan pedestrian and cyclist injuries, reported and unreported, suffered since January 2010.

• Jeffrey Axelrod, 52, Cyclist, Killed in Manhattan; Driver Not Charged (Gothamist, Voice, Benepe’s)
• Fuen Bai, 74, Cyclist, Killed in Manhattan; Driver Not Charged (Streetsblog, Villager)
• Robert Bond, 53, Pedestrian, Killed in Manhattan ; Driver Charged With Leaving Scene, DWAI, Suspended License (DNA, Post 1, 2)
• Yolanda Casal, 78, Pedestrian, Killed in Manhattan; Driver Fined $500 (Streetsblog)
• Patricia Cuevas, 51, Pedestrian, Killed in Manhattan; Driver Not Charged (Streetsblog, The Lo-Down)
• Daniela D’Ercole, 32, Pedestrian, Killed in Manhattan; Driver Not Charged (DNA)
• Marilyn Dershowitz, 68, Cyclist, Killed in Manhattan; Driver Charged With Leaving Scene (Streetsblog, Post)
• Ray Deter, 53, Cyclist, Killed in Manhattan; Driver Not Charged (DNA, News)
• Marcus Ewing, 27, Cyclist, Killed in Manhattan; Drivers Issued Summonses (News)
• Margaret Fisher, 67, Pedestrian, Killed in Manhattan; Driver Pleaded to Manslaughter (DNA)
• Willie Gonzalez, 25, Pedestrian, Killed in Manhattan; Driver Not Charged (News)
• Mary Celine Graham, 83, Pedestrian, Killed in Manhattan; Driver Charged With Murder (Streetsblog 1, 2)
• Steve Jorgenson, 22, Pedestrian, Killed in Manhattan; Driver Not Charged (News, NY1)
• Jason King, 21, Pedestrian, Killed in Manhattan; Driver Issued Summonses (Streetsblog 1, 2)
• Max Mendez, 6, Pedestrian, Killed in Manhattan; No Known Charges (Streetsblog)
• Chan Park, 62, Pedestrian, Killed in Manhattan; No Known Charges (DNAinfo)
• Steven Reese, 58, Pedestrian, Killed in Manhattan; No Known Charges (DNA)
• Laurence Renard, 35, Pedestrian, Killed in Manhattan; Driver Fined $500 (Streetsblog)
• Dashane Santana, 12, Pedestrian, Killed in Manhattan; Driver Not Charged (DNA)
• Karen Schmeer, 39, Pedestrian, Killed in Manhattan; Driver Pleaded to Manslaughter (Streetsblog)
• Kok Hoe Tee, 55, Pedestrian, Killed in Manhattan; Driver [NYPD Auxiliary] Not Charged (Streetsblog, DNA, ABC)
• Amos Veloz, 21, Pedestrian, Killed in Manhattan; No Known Charges [MTA Bus] (News)
• Qi Yu Weng, 28, Cyclist, Killed in Manhattan; Hit-and-Run, No Known Charges [MTA Bus] (NYT, Post)
• Leonia White, 89, Pedestrian, Killed in Manhattan; Driver Not Charged (DNA, Post, Gothamist)
• Timothy White, 29, Pedestrian, Killed in Hell’s Kitchen; Driver Charged With DWI, Manslaughter (NYT, Post, Gothamist)
• Harry Wieder, 57, Pedestrian, Killed in Manhattan; No Known Charges (Downtown Express)
• Unnamed Pedestrian, 77, Killed Jan. 4, 2010 in Manhattan; Driver Not Charged (Post)
• Unnamed Pedestrian Killed Apr. 12, 2010 in Manhattan; No Known Charges (Lo-Down)
• Unidentified Pedestrian Killed May 22, 2010 in Manhattan; Driver Charged With DWI, Manslaughter (City Room)
• Unnamed Pedestrian Killed Sept. 16, 2010 in Manhattan; No Known Charges (News [link expired])
• Unnamed Pedestrian, 54, Killed Feb. 14, 2011 in Manhattan; No Known Charges (Streetsblog, DNA)
• Unnamed Cyclist Killed Mar. 25, 2011 in Manhattan; No Known Charges [MTA Bus] (NY1)
• Unnamed Pedestrian, 86, Killed Oct. 26, 2011 in Manhattan; No Known Charges (Streetsblog, DNA)
• Unnamed Pedestrian, 58, Killed Dec. 2, 2011 in Manhattan; Driver [Motorcyclist] Not Charged (AP)
• Unnamed Cyclist, 17, Killed Dec. 16, 2011 in Manhattan; Driver Not Charged (DNA)
• Unnamed Pedestrian, 73, Killed Dec. 20, 2011 in Manhattan; No Known Charges (DNA)

Manuel Tzaj Guachiac. Photo via New York Times

Pat Quagliariello was reportedly texting his girlfriend and speeding when his BMW SUV struck Manuel Tzaj Guachiac in Bensonhurst in October 2010. Quagliariello did not stop, and refused to talk to investigators when he turned himself in hours later. Wrote the Post:

Quagliariello, whose older brother is well-respected NYPD Detective Anthony Quagliariello, was not given a Breathalyzer or a blood test to determine his blood-alcohol content, sources said.

But the sources insisted that probers could not have done that legally because they have no witnesses saying Quagliariello was driving the vehicle.

At the time of his death, Tzaj Guachiac, 25, had been in the country six months. He moved to the United States from Guatemala, where he had a wife and son.

After the crash, Quagliariello was charged with criminally negligent homicide and leaving the scene. According to the Daily News, a prosecutor “vowed that ‘there will be a jail sentence.’”

A Hynes spokesperson told Streetsblog that Quagliariello pleaded guilty to leaving the scene without reporting, and that his sentence requires him to visit 35 high schools to speak to students as part of the DA’s “Choices and Consequences” program — a project aimed at educating teens on the perils of reckless and drunk driving.

If you’re wondering how a homicide charge gets reduced to leaving the scene with no jail time, so were we. When we asked about Quagliariello’s plea deal, Hynes’s office refused further comment.

In other words, not only do killer drivers have virtually nothing to fear from New York police and prosecutors, the machinations behind sweetheart deals like the one granted to Pat Quagliariello are none of the public’s business.

According to reports, Jusheem Thorne was riding his skateboard in the crosswalk on Rochester Avenue at Eastern Parkway when he was hit by the driver of a maroon Mercury minivan racing to beat the light. As he lay injured in the street, he was run over by the driver of a white Acura. Neither driver stopped. The Daily News spoke with a witness who watched the massacre unfold:

Jusheem Thorne. Photo via WABC

Tyrone said the driver barely slowed down and fled westbound in the local lane of Eastern Parkway, toward Utica Ave. He said it was only moments later that the man was struck a second time as he lay in the middle of Eastern Parkway.

“I was about to chase the van so I could see the plates and then here comes another car, a white Acura, and it rolled over him and just kept on going,” he said. Tyrone said the Acura was heading east and had a green light.

Tyrone said the man appeared to be hurt but conscious after being slammed by the minivan, but the second impact left him lifeless.

“He was moving at first, but when the second car rolled over him, he stopped moving. He was completely still,” he said.

The savagery of these crimes is chilling. In a civil society, where having a foot on the gas pedal is not by default considered a mitigating circumstance, the Acura driver at least would be subject to a second-degree murder charge and a lengthy prison term. But this is New York, where judges coddle criminals who kill in the act of fleeing police and prosecutors seek leniency for hit-and-run drivers who cop to manslaughter. At this point there can be no testing for intoxication — not that they couldn’t have avoided a DWI charge regardless. As for leaving the scene, a simple “I didn’t see him” usually does the trick.

The sad fact is that, assuming either of these killers are caught, they are likely to receive little to no jail time, and may reasonably be expected to retain their driving privileges.

Jusheem Thorne was killed on the border of the 71st and 77th Precincts. To voice your concerns about traffic safety directly to Inspector Peter Simonetti or Deputy Inspector Elvio Capocci, the precincts’ respective commanding officers, head to their next precinct community council meeting. The 71st Precinct council meetings happen at 7:30 p.m. on the third Thursday of each month at MS 61, located at 400 Empire Boulevard. The 77th council meets at 7:30 p.m. every second Monday at 127 Utica Avenue.

Photo by Chieu-Anh Le Van via Support Justice for Mathieu Lefevre

Lefevre was hit by the driver of a crane truck making a right turn at the intersection of Morgan Avenue and Meserole Street, in East Williamsburg, last October. The driver was identified as Leonardo Degianni only after police found the truck parked a short distance away. Degianni was ticketed for failing to signal a right turn and failure to exercise due care, but was not charged for leaving the scene. NYPD closed the case in early January, concluding that the crash was caused by “bicyclist error.”

Though the Lefevres had by then filed suit, following months of NYPD stonewalling, the department did not notify them of the results of the investigation for weeks. A court pleading filed earlier this month by family attorney Steve Vaccaro argues that, in violation of freedom of information laws, NYPD deliberately delayed producing documents that would have provided insight into what happened the night Lefevre was killed. In the most recent filing, Vaccaro says NYPD still hasn’t turned over all records related to the crash.

Given the parameters of the suit, a victory for the Lefevres could have broad implications. The most favorable would mean that in order to deny families’ freedom of information requests, NYPD would in the future be required to show that the disclosure of records would result in “actual interference” with a crash investigation. As it stands, NYPD categorically withholds such documents from victims’ family members, even in cases where the department has already announced a determination of “no criminality.”

Another potential outcome could be that the court forces NYPD to standardize its freedom of information protocol — to either release no information concerning ongoing investigations, or to provide access to information, consistent with the law, to all who request it. Under that scenario, in a case where NYPD has behaved inconsistently, a court could conclude that claims of interference with an investigation are incongruous with voluntary statements from the department — a finding of “no criminality,” for example.

The Lefevre suit was bolstered last week with the filing of an amicus brief from Transportation Alternatives and City Council Member Brad Lander. The brief, available in its entirety after the jump, explains that TA filed six crash-related freedom of information requests last August, and says NYPD has not released any documents because the department has not decided whether it will honor the requests. “NYPD appears to simply churn out boilerplate letters purporting to defer indefinitely its obligation to respond to FOIL requests — letters identical to those received by the Lefevres — until it is forced to produce records by litigation,” reads the brief.

The brief also informs the court that the City Council is scrutinizing NYPD crash investigation policy, and stresses freedom of information law compliance as a fundamental facet of open government.

“NYPD cannot have it both ways. It cannot publicly exonerate the drivers of criminal charges in the first week of an investigation, leak incorrect information blaming the victim, and then refuse to provide further reliable information to victims’ families for months on the grounds that disclosure would interfere with a ‘potential’ criminal investigation.”

Margaret Myers. Photo via New York Post

NYPD sources told the Post and Daily News that Videsh Badal was drunk and driving with a suspended a license when he ran down Myers, 69, on Wortman Avenue in East New York on the evening of March 7. Badal kept driving. When a witness caught up with Badal and confronted him, he reportedly replied, “Well, who’s going to pay for my car?”

The papers reported that Badal was charged with manslaughter, DWI, resisting arrest and leaving the scene. But an online court database shows that leaving the scene is the current top charge against Badal. Other charges include third degree aggravated unlicensed operation and operating a motor vehicle while intoxicated.

A spokesperson at the office of Brooklyn District Attorney Charles Hynes confirmed that Badal has not been charged for killing Myers. The spokesperson said the manslaughter charge could have been issued by NYPD, but dropped by Hynes’s office. The spokesperson said the case is now with the grand jury and said he could not speculate whether charges might be upgraded.

Another facet of this case, like many others, is that as far as readers of the Post and Daily News know, justice has been served. City media sometimes take notice when a killer driver is charged and gets off easy, but most often the public is left to assume that a commensurate charge will be levied, followed by a sentence that fits the crime, when in reality most cases end with a slap on the wrist.

According to the online database, Badal isn’t scheduled to return to court until September. He is currently being held on $20,000 bond, the Hynes spokesperson said.

NYPD concluded that Mathieu Lefevre should not have been in the path of the hit-and-run driver who killed him.

Court documents reveal that NYPD decided not to charge the hit-and-run driver who struck and killed Brooklyn cyclist Mathieu Lefevre based on video of the crash. While it’s not clear how video footage can prove that the driver didn’t know he had hit Lefevre, it was apparently sufficient evidence for the department’s Accident Investigation Squad.

Last October, Lefevre was hit by the driver of a crane truck making a right turn at the intersection of Morgan Avenue and Meserole Street in East Williamsburg. The driver kept going, and was identified as Leonardo Degianni after police found the truck.

Nearly five months after his death, Lefevre’s family is still trying to wrest information about the crash from NYPD. As part of a February court filing, the NYPD legal team submitted testimony from AIS detective Gerard Sheehan. Referring to a security video obtained from a storage facility near the crash site, Sheehan writes:

“[T]he driver of the truck left the scene of the accident but denied knowledge that he had struck Mr. Lefevre. I subsequently recovered the video and I reviewed it on December 18, 2011. Had the video depicted a version inconsistent with the driver’s statements with regard to the driver’s knowledge that he struck someone, criminal charges would have been brought against the driver. However, a review of the video did not disclose such inconsistencies.”

Rather than charging Degianni for leaving the scene of a fatal crash and letting the justice system run its course, from the video AIS surmised that Degianni neither “knew [nor] had cause to know that he struck Mr. Lefevre.” Sheehan closed the case on January 4.

The documents also show that NYPD photographed the crash scene, despite an equipment checklist indicating that the AIS camera was broken. The photos were eventually turned over to the Lefevres after Sheehan mistakenly copied the wrong file twice, delaying their release. According to Steve Vaccaro, the attorney representing the Lefevres, there are no known pictures of blood and paint on Degianni’s truck, even though that evidence helped police identify the truck shortly after the crash.

Vaccaro says there are other discrepancies related to the photos: “The camera may have died in the middle of the crime scene investigation, but it appears that some of the photos taken that night may have been deleted or not produced.”

In the closing report, Sheehan writes that though Degianni did not signal before turning into Lefevre at Morgan and Meserole, Lefevre “should not have been passing on the right side.” Therefore, Sheehan concludes, the crash was caused by “bicyclist error.”

At last month’s hearing on traffic safety, City Council member and former prosecutor Peter Vallone said NYPD should not act as defense counsel for motorists. Yet in case after case, police pre-empt the courts by exonerating drivers who kill — even hit-and-run drivers.

Clara Heyworth. Photo via Gothamist

Like Rasha Shamoon, Tsigrimanis was found culpable based on the word of the driver who killed him. His case also resembles that of Clara Heyworth, a pedestrian fatally struck by a driver who stands to benefit from NYPD’s slipshod crash investigation protocols, including the “likely to die” rule.

At approximately 1:50 a.m. on Sunday, July 10, 2011, Heyworth, a 28-year-old who worked as marketing director for the publishing house Verso Books, was hit as she crossed Vanderbilt Avenue in Fort Greene. She died from her injuries the following day.

Driver Anthony Webb, 43, was charged with a raft of violations, including operating a motor vehicle while intoxicated, operation of a motor vehicle by an unlicensed driver, reckless driving, reckless endangerment, and a top charge of assault. But Heyworth’s husband Jacob Stevens, who witnessed the crash, told Gothamist in February that Brooklyn District Attorney Charles Hynes won’t be following through with criminal charges against Webb.

To begin with, prosecutors told Stevens that Webb’s breath test results are probably not admissible in court because the 88th Precinct had not performed a required calibration of the machine for four years. More important is that AIS did not go to the scene until at least three days after the crash, and only then after Stevens informed the Brooklyn DA’s office that his wife had died. Said Stevens:

AIS sent someone Sunday morning pretty soon after the accident. I don’t know who they spoke with, but AIS claims they were told she was not likely to die. If they had gone back to the hospital Sunday afternoon, they would have been told she was basically dead. So they did not monitor the situation at all. So in their view it was the 88th Precinct’s problem, because she was not likely to die.

As far as I know, the 88th Precinct didn’t return to the scene, or investigate any further. On Wednesday, an assistant DA called me and I told him Clara had died, and he then notified AIS that it was a fatal accident. I don’t know exactly when AIS went to the scene, but when they did finally go there, the skid marks were gone, and when they checked the cameras, the one camera that might have caught the driver and all the impact had been wiped clean after several days. They got there too late to recover vital physical evidence.

Since Stevens has no memory of seeing the collision, and NYPD did not investigate during the immediate aftermath, prosecutors told Stevens they will not take the case to trial.

Webb’s next court date is March 13. While Hynes’s office told Streetsblog that all charges are still on the table, according to Stevens, Webb will be charged only for driving without a license and an insurance violation. Said Stevens: “I don’t think the judge who sits in this traffic court is going to know that anyone died at all.”

The driver who doored cyclist Jasmine Herron reportedly broke up to three laws, but was not charged for Herron's death. Photo via Ghost Bikes

Though the “rule of two” has no statutory basis, it is the standard by which police and prosecutors determine whether to pursue charges related to taking a life. Except when it isn’t.

In September of 2010, Brooklyn cyclist Jasmine Herron was fatally struck by a city bus after she was doored by an unlicensed driver who reportedly left the scene. Krystal Francis was initially charged for driving with a suspended license. Prosecutors also levied a felony count for leaving the scene, but that charge was later dropped.

On Tuesday, Francis was found guilty of aggravated unlicensed operation of a motor vehicle in the third degree, a misdemeanor that stipulates that Francis drove without a license when she knew or should have known she didn’t have one.

Since there was no charge issued for dooring, the “rule of two” was not in play, and Francis was not charged for the death of Jasmine Herron.

This is not the first time city law enforcers have not pursued negligence charges despite the apparent presence of at least two violations. Here are other recent instances:

• Yolanda Casal: Killed in Manhattan by an unlicensed driver backing up a one way street
• Sonya Powell: Killed in the Bronx by an unlicensed driver who left the scene
• Catorino Solis: Killed in Manhattan by an unlicensed driver who ran a red light
• Brian Waldman: Killed in Brooklyn by an unlicensed driver who left the scene

In none of these cases was the driver charged for causing a death.

When one is conditioned to tally up attendant charges, it becomes startlingly easy to overlook the fact that in most cases the act of fatally striking a person with a motor vehicle is not itself considered an offense. Ibrihim Ahmed, Joshua Ganzfried, Dorothea Wallace, Roxane Murano, Margaret Walsh, Andrzei Wiesniuk, Clara Heyworth and Laurence Renard were all killed by drivers who, if nothing else, were breaking the law just by being behind the wheel, yet their deaths were not adequate cause to trigger the “rule of two.”

Speaking to Streetsblog a couple of weeks ago, Saba Michaud marveled at the circumstances surrounding the death of her sister, cyclist Rasha Shamoon. Something she said summed up the vagaries of New York’s traffic justice system as succinctly as I’ve heard.

“You can get a ticket for using a cell phone,” said Michaud, “but not for killing someone.”

Rasha Shamoon was hit by a driver with a record of traffic offenses. After interviews with the driver and his passengers, NYPD concluded Shamoon caused the crash.

In the early morning hours of August 5, Rasha Shamoon was riding her bike east on Kenmare Street, en route to the Williamsburg Bridge and home to Greenpoint. At approximately 1:30 a.m., as she cycled across the intersection at Bowery, where Kenmare becomes Delancey Street, she was hit by a northbound Land Rover SUV driven by Abraham Soldaner, also of Brooklyn.

Friends were told after the crash that Shamoon, who worked as a biology professor at LaGuardia Community College, was not breathing when paramedics arrived at the scene. She was revived and taken to New York Downtown Hospital in critical condition, and was later transferred to New York Presbyterian, where she was declared brain dead. Shamoon was removed from life support on August 11. She was 31.

Shamoon was known as a seasoned cyclist, her attentiveness evidenced by a bike and helmet adorned prodigiously with reflective tape. Soldaner, then 21, had already amassed a lifetime of marks on his driving record: two speeding tickets (resulting in 19 license points), one charge for using a cell phone while driving, three seat belt violations and one personal injury case.

At least seven people called 911 after the crash, and passersby stopped to render aid, but NYPD reported that the only witnesses to interview were Soldaner and his two passengers. Soldaner was administered a breath test, which police said came back negative. A blood test performed on Shamoon revealed no foreign substances. Based largely on what investigators were told by Soldaner and his friends, NYPD concluded that Shamoon ran a red light.

Determined to clear Rasha’s name, the Shamoon family pursued the case in Kings County Supreme Court. Last week a jury of six agreed unanimously that the crash was almost entirely the fault of Soldaner. Though he was not criminally charged or summonsed by NYPD, Soldaner was found 95 percent responsible for the collision that killed Shamoon.

“It really validated what we knew all along, that she was an experienced, responsible cyclist,” says Saba Michaud, Rasha’s sister.

Details that emerged in court exposed the shortcomings of the NYPD investigation. Jurors saw video of the aftermath of the crash, captured by a man who testified to hearing a “very loud boom” from his apartment on Bowery. One of Soldaner’s passengers, who was sitting in the back seat, testified that the Land Rover was traveling between 40 and 45 miles per hour, and that the impact was such that she was jolted to the right. The front seat passenger testified that he saw Shamoon and yelled to alert Soldaner the instant before the collision. None of these details appear in the NYPD crash report.

“The police either did not properly interrogate the driver or they did not report the driver’s answers,” says Adam White, the Manhattan-based attorney representing the Shamoon family. “Instead the report contained very scant information from the driver and passengers as to what they witnessed.”

The crash report does state that Shamoon was not wearing her helmet. This conflicts with testimony from one of Soldaner’s passengers, who said he saw Shamoon’s helmet that night. Friends also said they saw Shamoon put it on before heading home. The helmet was never released to Shamoon’s family, however, and it has not been seen since the crash.

The court heard from Officer Charles Pitagno, a veteran of the NYPD Highway Patrol division and one of two investigators dispatched to the scene. Pitagno testified that he had no recollection of the crash or the investigation, and on the stand seemed to have trouble parsing the meaning of vehicle damage codes indicated in the crash report.

Pictures of the SUV, which was not registered in Soldaner’s name, showed damage to the left front fender, deep scratches down the driver’s side, and a cracked windshield. The rear view mirror was torn from the driver’s side door. Jurors learned that the car traveled 77 feet after the point of impact. In court, White said it was unknown whether Soldaner was using headlights.

Photo of Shamoon's bike taken at the scene

Soldaner himself testified that he was unsure of many details of the crash. He said he did not see Shamoon, a point hammered by White during summation. In failing to “see what was there to be seen,” White said, Soldaner did not meet the required standard of care, even if jurors believed he had the light.

Soldaner’s driving record was inadmissible in court, and the jury was not allowed to hear anything about Rasha other than her name. Nor was there mention of how the Shamoon family was treated by NYPD. Police did not contact the family, or Josue Cedeño, Rasha’s partner of nine years, in any way after initially notifying them of the crash. The Shamoons did not see a crash report until it was obtained by a hospital social worker, who had trouble getting Soldaner’s insurance information from police. At first, NYPD would not release the report, and when it was released, no such information was included. Ultimately the family learned that NYPD did not report the crash to Soldaner’s insurer.

Police told the Shamoons there were no witnesses other than Soldaner and his passengers, a claim that appears implausible based on the 911 log as well as subsequent trips by Rasha’s relatives to the intersection, on Tuesdays after 1:00 a.m., when they found the area bustling with activity.

“It is unclear whether the police made any attempts to get statements from other witnesses who were clearly present at the scene and offered assistance to Rasha and called 911,” says White. This question seems answered in the NYPD report, which reads, “No witnesses to this accident were present at the scene.”

More upsetting than the poor investigative work, says Michaud, was the story of Rasha as told by police, which featured a woman she did not recognize as her sister.

“Her portrayal by the NYPD was that she was irresponsible, she ran the red light, she wasn’t wearing the helmet, that she was 100 percent at fault. For my parents this was huge. Having her name and her personality slandered in that way was really painful for them.”

Rasha was born in Baghdad. When she was two, her parents fled religious persecution suffered under Saddam Hussein. The family had a particularly difficult time emigrating because Rasha’s father, a doctor, would not ordinarily have been allowed to leave Iraq. After arriving in the United States, the Shamoons fared well. At the time of her death, in addition to her interests in music and martial arts, among others, Rasha was pursuing her second master’s degree, while Saba and their sister Suhair Shamoon have gone on to become a pediatrician and a dentist, respectively. The family’s experience since the crash has come as a shock.

“We came here because we believe in what America stands for,” says Michaud. “My parents gave up their whole life to come here. For Rasha to be treated in that manner… It’s maybe the only place in the United States justice system where you’re guilty until proven innocent.”

Michaud says she didn’t want the family to file a civil suit, that it hurt too much. Still, she says, “This is the only court we could get [Soldaner] into. We needed this to be public somehow.” The award will go into a trust, and will be used for charity.

The only known evidence that Rasha Shamoon caused the crash that took her life was the word of those in the vehicle that struck her, including the car’s habitually reckless driver. Yet that was enough for NYPD to consider its investigation complete. The prevalence of cases like Rasha’s will be taken up at Wednesday’s City Council hearing on NYPD crash investigations and traffic enforcement, where the Shamoons will tell their story.

“It’s really unclear to me how there could be such discrepancy between a jury and the police investigation,” says Michaud. “What it tells me is that there is no police investigation.

“I think they just want to keep traffic moving in as quick a manner as possible. I hate to say it that way, but I believe it’s what happened.”

Zhaneya Butcher. Photo via Daily News

Prosecutors say Kent Lowrie, 53, was legally drunk when he hit and killed Zhaneya Butcher last summer as the little girl ran toward an ice cream truck on 104th Avenue in Jamaica, Queens. Lowrie pled guilty to manslaughter as part of a deal that resulted in five years’ probation, a $1,000 fine, a six-month license revocation and the mandated use of an ignition interlock device for one year, according to court records. The Daily News reports:

Instead of going to a grand jury, prosecutors opted to offer Lowrie a plea deal. They feared that when a margin of error for the blood-alcohol test was factored in, Lowrie would not have been considered intoxicated and would have faced lesser charges.

There was also no evidence that Lowrie was speeding.

Given that Lowrie faced up to seven years in prison, Zhaneya’s relatives were understandably shocked by the outcome of this case. Implicit in the decision to negotiate such a favorable deal for Lowrie is the fact that, under ordinary circumstances, the driver who strikes a child with deadly force on a neighborhood street is considered blameless by default.

The state legislature has given police and prosecutors new tools to offer a modicum of protection to vulnerable street users like Zhaneya Butcher and, ideally, to deter drivers from acts of deadly recklessness. But as long as those tools go unused, motorists will continue to maim and kill with relative impunity, and victims of traffic violence will be deemed culpable for their own deaths and injuries.

A woman who accompanied Lowrie on Tuesday was quoted as saying, “People should keep their kids in the house and not running between parked cars.” As repugnant a statement as that is, it’s more or less what the criminal justice system is saying, too.