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.

Craig Esswein, chief of the vehicular crimes bureau, told Streetsblog that reviewing deadly traffic crashes is standard procedure. “Any time there’s a fatality the NYPD does their investigation, and we do our own.”

Lefevre’s death at the hands of a hit-and-run truck driver in Williamsburg last October has made headlines, owing to revelations that NYPD withheld details of the crash from the victim’s family and failed to gather evidence at the scene. Asked about NYPD’s handling of the investigation, Esswein said, “We will be looking into the matter.”

Though no photos of the scene have been released to the Lefevre family — police reportedly didn’t take pictures due to a broken camera — Esswein says they do exist. He says those pictures will be examined along with video of the collision, which according to NYPD records shows that the truck driver dragged Lefevre and his bike for several yards as he made an unsignaled right-hand turn. “We’re going to review it all,” said Esswein.

In a statement issued this week, Mathieu’s mother Erika Lefevre revealed that NYPD has charged the driver, identified by police as Leonardo Degianni, for failure to signal and failure to exercise due care. To date, no charges have been issued for the victim’s death, or for leaving the scene of a fatal crash. “We urge the Kings County District Attorney’s Office to carefully review this case,” wrote Lefevre, “and bring appropriate charges.”

Lefevre’s family and friends have launched a letter-writing campaign to Hynes’ office asking for a careful review of the case. More information is available here.

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

On January 2, 2003, 82-year-old Francesca Maytin was crossing Third Avenue between East 107th and East 108th streets when Lynette Caban backed her Jeep Cherokee into the intersection, striking Maytin hard enough to throw her a distance of over 18 feet, according to a Vance press release. Caban, now 39, was driving with a suspended license at the time of the collision, and had received four summonses for “similar conduct” in the three months prior. She also had a plastic bag taped over the right rear window of her vehicle, which obstructed her view. On January 13, Caban was convicted of criminally negligent homicide. She is scheduled to be sentenced in March. (The Post reports that Caban may not face jail beyond time served, and says she continues to drive using a different name.)

The Caban case was brought by Vance’s predecessor, Robert Morgenthau, and concluded only after the Court of Appeals ruled in 2010 that driving with a suspended license can be used as evidence of criminal negligence. That decision was another big win, and was hailed by Vance as “a significant step in holding drivers accountable for dangerous and unsafe operation of a vehicle.” Which makes the case of Edwin Carrasco all the more puzzling.

On June 30 of last year, Yolanda Casal, 78, and her 41-year-old daughter Anais Emmanuel were crossing Amsterdam Avenue near West 98th Street when Carrasco, 38, backed into them with his Ford Explorer. Casal was killed, Emmanuel hospitalized. Like Lynette Caban, Carrasco was driving with a suspended license. Vance did not charge Carrasco for killing Casal or injuring Emmanuel, though Carrasco was reportedly breaking at least two laws at the time of the crash. According to the online database of the New York State Unified Court System, Carrasco pled guilty to a top charge of aggravated unlicensed operation of a motor vehicle in the third degree, a misdemeanor stipulating that he drove without a license when he knew or should have known that he didn’t have one. Carrasco’s penalty: a $500 fine.

It was reported that Carrasco, like Caban, had a history of license suspensions and recklessness behind the wheel. It’s unknown whether the specifics of his record were considered in the decision not to prosecute for causing death and injury. Nor do we know if the Court of Appeals ruling — which distinguished between license suspensions for dangerous driving and, for instance, unpaid parking tickets — was a factor. We asked Vance’s office for insight into the differences between the two cases, but a spokesperson would say only that each case is decided on its own merits, and declined to elaborate.

So, as often happens when it comes to matters of traffic justice, the public is left to speculate. It is baffling that the nearly identical details surrounding the deaths of Francesca Maytin and Yolanda Casal could bring such disparate outcomes for their respective killers. It also seems the conviction of Lynette Caban shows that prosecutors can be successful with the type of case that the city’s district attorneys, including Cy Vance, are not otherwise pursuing.

The family of Mathieu Lefevre has filed a lawsuit against the NYPD for refusing to release information related to the hit-and-run collision that killed the 30-year-old Brooklyn cyclist last October.

According to the complaint, filed in New York State Supreme Court on December 30 [PDF], NYPD denied a freedom of information request from Lefevre’s parents seeking records pertaining to the crash, on the grounds that the investigation is ongoing. The Lefevres appealed, citing their belief that the records in question are not exempt from disclosure under the law. NYPD failed to respond, effectively denying the appeal.

NYPD routinely denies access to information on deadly crashes, often based on the claim that releasing even the most rudimentary details would jeopardize crash investigations. The Lefevre lawsuit challenges that practice, based in part on the fact that NYPD has declared that no charges will be filed for Mathieu’s death.

The summary of the lawsuit, filed on behalf of the Lefevres by attorney Steve Vaccaro of Rankin & Taylor, reads in part:

NYPD admits that it possesses records requested by the Lefevres, but has stonewalled for nearly two months, refusing to disclose those records without a valid justification. The two grounds advanced by NYPD for withholding the records are completely lacking in merit.

First, NYPD asserts that it can withhold all records concerning Lefevre’s death, so long as its investigation of his death is still open. That is incorrect. FOIL exempts from disclosure only records the release of which would interfere with an ongoing investigation. NYPD does not suggest even the possibility of such interference.

Second, NYPD asserts that release of records concerning Lefevre’s death would jeopardize an impartial trial or adjudication. But NYPD has already announced there will be no criminal charges related to Lefevre’s death. Absent criminal charges, there is no right to a trial by jury, and therefore no chance of a tainted adjudication.

In December Vaccaro sent a letter to NYPD indicating that, according to officers involved in the case, the department’s Accident Investigation Squad has all but concluded that the truck driver who hit Lefevre, identified in the crash report as Leonardo Degianni, was unaware of the collision. The letter also points to conflicting accounts of the collision from NYPD, and says Vaccaro was told that the AIS lost vital evidence. (Disclosure: Vaccaro represented Streetsblog for our freedom of information request to obtain documents from CUNY related to the effort to erase the Prospect Park West bike lane.)

“The Lefevres seek only to learn the truth about the death of their son,” reads the suit summary. “NYPD’s stated reasons for hiding the truth from the Lefevres plainly lack merit.”

New York Times coverage of the crash that killed Mathieu Lefevre offered readers a rare look at an NYPD deeply biased against victims of traffic violence. Photo: Robert Stolarik/NYT

When Brooklyn cyclist Mathieu Lefevre was killed by a hit-and-run driver in October, NYPD initially told the media that Lefevre had run a red light and that he was riding in the truck driver’s blind spot. The NYPD crash report contradicts both those claims, yet the department’s final public statement on the case may well be “There’s no criminality. That’s why they call it an accident.”

Rasha Shamoon was riding her bike home in the early morning hours of August 5, 2008 when she was struck by the driver of a Range Rover at Bowery and Delancey. Shamoon, 31, was an experienced cyclist whose bike was covered with reflective tape and equipped with front and rear lights. Limiting witness interviews to the driver, who at 21 had amassed a record of six traffic convictions, and his two passengers, NYPD faulted Shamoon for the crash.

In November 2009, 22-year-old Seth Kahn was killed by a bus driver while crossing Ninth Avenue in Hell’s Kitchen. Police at first told reporters that Kahn was running to beat the light when he was crushed by the rear wheels of the turning bus. Days later, however, bus driver Jeremy Philhower was ticketed for failing to yield. Almost a year after the crash it was determined that Philhower, who had a history of texting behind the wheel and had reportedly posted comments on Facebook about his desire to kill people, was driving too fast and not looking where he was going.

In the immediate aftermath of any single crash, it’s impossible to tell whether NYPD has sufficient cause to exonerate the driver. The department won’t release details from investigations and withholds crash reports from public scrutiny. But when the data from those reports is compiled by the New York State DOT and vetted by researchers, the cumulative picture debunks the NYPD’s blame-the-victim-first protocol.

The most comprehensive analysis of crash reports is inside the 2010 NYC DOT pedestrian safety report, which examined crashes in which pedestrians died or suffered serious injuries from 2002 to 2006. Among the crashes to which contributing factors were assigned, only 21.5 percent placed primary responsibility on “pedestrian error/confusion.” The vast majority were caused by driver behavior, including inattention (a factor in 36 percent of crashes), failure to yield (27 percent), and excessive speed (20 percent).

Since drivers are culpable for most crashes that hurt pedestrians, this should add up to hundreds if not thousands of cases each year where police and prosecutors file charges for reckless or negligent driving. In 2006, for example, 143 pedestrians died on city streets and 1,313 were severely injured. That doesn’t count less serious pedestrian injuries, which number in the thousands annually.

But as Transportation Alternatives noted in October, NYPD has failed to make use of new state laws intended to hold dangerous motorists accountable. Applications of VTL 1146, the statute that was strengthened last fall to make “careless driving” the default charge when pedestrians or cyclists are injured, have stayed pretty much the same for the last three-and-a-half years, with this year’s total citations on track to remain in the double digits.

So not only is there a huge mismatch between what actually causes crashes and what NYPD feeds the media, the department is as a rule letting drivers off the hook for inflicting death and serious injury.

Deputy Inspector Michael M. Kemper is in charge of Brooklyn's 90th Precinct, where Mathieu Lefevre was killed by a hit-and-run driver.

Having flown in from Canada after learning of their son’s death, Mathieu’s parents Erika and Alain went to the city morgue to view his remains. There, they were told by a detective to go to the station house for a copy of the crash report and to pick up Mathieu’s belongings. Here’s what happened next:

The 90th Precinct station house proved to be a House of No, as Ms. Lefevre described it: the family was told at the desk that there was no detective available to speak with them, that Mr. Lefevre’s property was not there and that no report on the accident was available.

So they waited.

“After some time elapsed, I called the detective at the morgue, who had given us her phone number in case we ran into problems,” Ms. Lefevre said. Eventually, a detective in the 90th Precinct explained that the person handling the investigation of their son’s death would not be back for several days. “The detective we saw said he had no access to the information, that they do not share files,” Ms. Lefevre said.

After four hours, she said, they left.

It took a week for the Lefevres to claim Mathieu’s effects — though according to the Times they were at the station house all along — and almost two weeks to obtain a copy of the crash report, which conflicted with NYPD statements to the media and has generated more questions than answers.

The most enraging aspect of NYPD’s mishandling of the Lefevre case is that there is nothing unusual about it. We can’t say it any better than Streetsblog commenter Media Maven, who writes: “The way the NYPD is treating the Lefevres is standard operating procedure. This isn’t a particularly bad case. It’s entirely normal. Virtually all ped and cyclist fatalities are treated as ‘accidents’ and blamed on the victim. The drivers who did the killing are rarely investigated or brought to justice. Getting information about the circumstances of the killing out of the NYPD is almost impossible unless you can afford a lawyer who is really willing and able to go after it.” Witness, for example, the detective who handed the Lefevres an attorney’s business card, knowing the swamp they were about to wade into.

Neither Ray Kelly nor Michael Bloomberg has shown any interest in improving the NYPD’s record of tactless bungling when it comes to traffic fatalities, but there is a way for ordinary citizens to demand change from the ground up. Every month, each precinct holds a community council meeting. I’ve been to a few of these, and it’s a tremendous opportunity to talk directly to the cops who are responsible for your neighborhood (as well as local electeds, who are often on hand). It might be easy for a faceless spokesperson to dismiss a tragic death with a callous remark like “That’s why they call it an accident,” but in my experience the police take very seriously the concerns of those who make time to come out on a weeknight and address them face to face.

The commanding officer of the 90th Precinct is Deputy Inspector Michael M. Kemper. The 90th Precinct community council meets on the second Wednesday of each month at 30 Montrose Avenue, Community Room, at 7:30 p.m. Streetsblog has confirmed that the next meeting will take place as scheduled, one week from today, on December 14.

The driver who dragged Milo Montivilla down Broadway in the Bronx says he never saw him. Photo: Daily News

A 57-year-old Bronx man was struck and killed by a school bus driver on Tuesday.

According to reports, at around 6:00 a.m. Milo Montivilla was crossing with the light at Broadway and Mosholu Avenue in North Riverdale when the bus driver, turning right, ran him over. The Daily News interviewed a witness at the scene:

“He was walking to catch his bus and the [school] bus just hit him and dragged him down the street,” said the witness, who declined to give her name.

“He was under it for a good 10 minutes. I couldn’t believe it.”

The witness said the bus operator did not appear to have seen the pedestrian and continued driving.

“Everybody was screaming, ‘You hit someone! You hit someone!’ Everyone bum-rushed the street,” she said.

“That’s when he stopped and got out. Everyone was on their phones calling the cops.”

The driver was too distressed to talk at the scene but could be overheard telling a supervisor on the phone: “I didn’t see him. It was too dark.”

The driver’s identity was not released. He was not charged.

“I didn’t seem him/her” are the magic words for the motorist who pulverizes another person, even if the victim is breaking no laws, is directly in front of the vehicle when hit, and is dragged down the street until passersby intervene. The driver’s speed, the possibility that he was distracted in some way — these factors seemingly become irrelevant to police and prosecutors when presented with the invisible pedestrian or cyclist defense, despite state laws enacted to protect vulnerable street users from everyday driver negligence.

The crash that killed Milo Montivilla occurred in the 50th Precinct. The commanding officer there is Captain Kevin J. Burke. To voice your concerns about neighborhood traffic safety directly to Captain Burke or other precinct higher-ups, drop in on the next community council meeting. The 50th Precinct council meets the second Thursday of every month at the station house, located at 3450 Kingsbridge Avenue, at 7:30 p.m. Be sure to call ahead (718-543-5978) to confirm meeting times and dates.

Speaking at yesterday’s Transportation Alternatives rally at 1 Police Plaza, Erika Lefevre pointed to inconsistencies between initial accounts of the hit-and-run collision that killed her son Mathieu and the version offered by the crash report, which her family obtained only after weeks of NYPD stonewalling.

The case of Mathieu Lefevre is only the latest in which relatives and friends of traffic crime victims are kept in the dark by a police department with a long record of withholding information regarding cyclist and pedestrian deaths. It does, however, afford a detailed look at NYPD incompetence and obfuscation. For example:

• An NYPD officer told Gothamist that the department “had concluded that Lefevre had run a red light at the intersection.” The glaring flaw in that conclusion is that if both Lefevre and driver Leonardo Degianni were traveling in the same direction, and Lefevre ran a light, presumably Degianni could not have struck Lefevre unless he did the same. Regardless, there is no mention in the crash report of either party running a light.
• The prevailing narrative of the crash, which originated with NYPD, is that Lefevre was riding to the right of Degianni’s commercial truck when Degianni turned into him. The diagram on the crash report seems to depict a rear-end collision, and the officer’s notes say Degianni made the turn after the collision.
• NYPD told the Lefevre family that the truck that hit Mathieu was identified through visible damage, but the vehicle damage codes section of the crash report was marked through, with no details documented.
• On October 24, an NYPD spokesperson told Gothamist: “The driver did not know that he hit the cyclist.” The police report, amended on October 30 with Degianni’s identity (which police would not provide to Gothamist or the Lefevre family), includes no explanation of why Degianni left the scene, or what circumstances led him to run over a person on a bicycle without knowing it.
• NYPD told Erika Lefevre that charges had been dropped against the driver, suggesting that charges were filed at some point. This contradicts a statement, also reported by Gothamist on October 24, that no charges were filed, as well as remarks from a department spokesperson who told Metro: “There’s no criminality. That’s why they call it an accident.”

Inexplicably, even as NYPD refused information to the Lefevres, the department was talking to the media. On October 26, a week after her son was killed, Erika Lefevre told reporters, “All we know is what we have read in the papers.” On Wednesday, Lefevre spoke directly to NYPD.

“Today, I am asking NYPD to stop leaking misinformation to the press about crash victims,” she said. “That only hurts victims and their families and makes NYPD appear unprofessional and biased.” Lefevre said that to this point NYPD has not complied with freedom of information requests and has not permitted her family to see video of the crash and other evidence police say they have.

Transportation Alternatives today delivered over 2,500 citizen letters to Ray Kelly demanding that NYPD crack down on dangerous driving, and announced a comprehensive probe into how the department handles traffic crash investigations.

Flanked by dozens of supporters and victims of traffic violence at 1 Police Plaza, TA executive director Paul Steely White excoriated NYPD for what he called a “cavalier attitude” toward lawless driving. While hundreds are killed and thousands are injured by reckless drivers in the city every year, enforcement of traffic laws is relatively rare, and drivers who cause suffering and death are routinely excused by police and prosecutors without as much as a summons.

“It’s the NYPD’s job to keep dangerous driving in check by holding reckless drivers accountable,” said White, “but they are simply not taking that job seriously.”

Calling for a zero tolerance approach to a “public safety crisis,” TA will have attorneys review NYPD reports on recent crashes that resulted in serious injury or death. Evaluations will focus on whether police followed proper post-crash procedure and if victims were “guaranteed a full and fair investigation.”

Erika Lefevre, whose son Mathieu was killed by a hit-and-run driver while riding his bike in East Williamsburg in October, said that her family is still waiting for definitive information about the crash. Initially, police told reporters that Mathieu ran a red light at Morgan Avenue and Meserole Street and was struck by the driver of a flatbed truck making a right-hand turn. The NYPD report, however, indicates that Mathieu was hit from behind, and makes no mention of either Mathieu or the driver running a light.

The report identifies the driver who struck Lefevre as Leonardo Degianni of College Point. Degianni, 48, was driving a truck registered to Imperium Construction of Ridgewood. After hitting and dragging Lefevre, Degianni left the scene. Police found the truck a short distance from the crash site but did not locate Degianni for days. He was not charged.

Erika Lefevre said police have video of the crash along with other evidence, none of which her family has been allowed to see.

“We appreciate that NYPD has a difficult job in trying to investigate this crash and determine what happened,” said Lefevre. “We want NYPD to take the time it needs to conduct an unbiased, thorough, professional investigation. But NYPD has caused us great pain with the mishandling and withholding of information, and their rush to clear the driver of any wrongdoing.”

Juliana Berger, former wife of Mathieu Lefevre, urged Ray Kelly to beef up the department’s accident investigation squad and to implement targeted enforcement of dangerous behaviors including failure to yield, speeding and failure to exercise due care.

Also speaking at today’s rally was Donna Ganson, whose husband was seriously injured in 2009 by a motorist as he walked his daughter to school in Park Slope. Though witnesses said the driver was traveling some 20 mph over the 30 mph speed limit, and though Ganson’s husband was crossing legally, no charges were filed and no summonses were issued. The collision put the victim in a coma and left him with brain damage.

“My life, his life, and the lives of our three daughters will never be the same,” said Ganson. “How can a speeding driver who hits a pedestrian in a crosswalk in broad daylight not get a ticket for anything?”

Though he was not present for the rally himself, Public Advocate Bill de Blasio sent over a statement, read by spokesperson Wiley Norvell, announcing that his office has asked NYPD for data related to the application of vulnerable user laws and information on when the department deploys the accident investigation squad.

Again: If an unlicensed driver going the wrong way on a city street is not prosecutable for killing or injuring a pedestrian, who is? Photo: Daily News

For at least the second time this year, an unlicensed driver will be punished with no more than a token fine for killing a Manhattan pedestrian.

On June 30, Yolanda Casal, 78, and her 41-year-old daughter Anais Emmanuel were crossing Amsterdam Avenue near West 98th Street when Edwin Carrasco, 38, of Paterson, New Jersey, drove his Ford Explorer into them while backing up in pursuit of a parking spot. Casal was later pronounced dead at St. Luke’s Hospital; Emmanuel was hospitalized with injuries.

Reports indicated that Carrasco, who has a history of license suspensions and reckless driving, was initially charged by NYPD with driving with a suspended license, unsafe backing and failure to exercise due care. Though Carrasco was reportedly breaking at least two laws at the time of the crash, Manhattan District Attorney Cy Vance levied no charges related to the death or injuries caused by Carrasco’s negligence.

According to the online database of the New York State Unified Court System, Carrasco pled guilty in Manhattan Criminal Court on September 22 to a top charge of aggravated unlicensed operation of a motor vehicle in the third degree, a misdemeanor that stipulates that Carrasco drove without a license when he knew or should have known that he didn’t have a license. He is due to pay a $500 fine in December.

Days after Casal was killed, the unlicensed dump truck driver who ran down Upper East Side pedestrian Laurence Renard pled guilty to aggravated unlicensed operation of a motor vehicle in the third degree and, like Carrasco, was fined $500.

As a DA candidate, Vance pledged to hold dangerous drivers accountable for their actions. In July, responding to a query regarding the investigation of Casal’s death, a Vance spokesperson told Streetsblog: “When we prosecute a case we look at the elements of the law and the facts of our case to determine whether we can go forward with the case. If we find that the facts of a case fit criminally negligent homicide, we will not hesitate to charge them.”

Image: NY1

Oxley was speeding behind the wheel of a Dodge Caravan when he ran down cyclist McDonaugh at the intersection of Flatbush Avenue and Duryea Place last April. The investigation and prosecution were unusual for a vehicular violence case — police followed up with witnesses, and the Brooklyn District Attorney applied a felony charge. But the jury cleared Oxley of homicide as well as reckless driving, a misdemeanor. A closer look at the case is in order.

At 9:20 a.m. on the morning of April 14, Oxley was driving on Flatbush when he struck and killed McDonaugh, who was bicycling eastbound on Duryea. Oxley, 28 at the time, was observed traveling at an excessive speed, and a witness saw him run a red before killing McDonaugh, according to court documents [PDF]. He was driving with a suspended license and according to the Daily News had racked up three license suspensions for failing to pay fines for speeding and improper turns.

McDonaugh was 18. He was dragged for half a block after impact and pronounced dead at the scene.

In their verdict, the jury convicted Oxley of speeding and driving with a suspended license, while clearing him of the two charges stemming from McDonaugh’s death — the felony homicide charge and the misdemeanor reckless driving charge. The sentence from Judge Raymond Guzman: an $800 fine and 10 days in jail.

According to the Post, a key factor in the jury’s decision was a surveillance tape from a nearby restaurant that indicated Oxley didn’t run the red. (They also cleared him of a red light running infraction.)

Accepting that explanation, the following facts are still not in dispute: Oxley was speeding, and he was violating the law just by driving. If he had obeyed the law, Jake McDonaugh would still be alive. Yet the jury did not even find that his conduct met the standard for reckless driving, defined in state law as operating a vehicle “in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.”

What led the 12 men and women on the jury to this verdict? The analysis of Bob Mionske, an attorney who writes the “Road Rights” column for Bicycling Magazine, comes to mind.

Based on his experiences with cases in the Portland area, Mionske says that public perception of cyclist fatalities is inseparable from the way such cases are treated by police and the media. Police tend to leak information about crashes that faults cyclists, and those are the details that get into the news cycle. When information later surfaces that indicates motorist culpability, the press has lost interest and the public never hears about it.

The Oxley case, on its own, doesn’t fit the pattern — police shared information from witness interviews and coverage reflected Oxley’s misconduct. But overall, the coverage of bike and pedestrian fatalities in New York is saturated with police statements that blame the victim.

“This just poisons the mind of the public, and the public is who is empaneled in juries,” Mionske told an audience at the National Bike Summit a few years back. “What you see is, anti-cycling bias starts with cops, is reinforced by the media, and is perpetuated in the courts.”

Marilyn Dershowitz and Mathieu Lefevre were killed by hit-and-run drivers who were exonerated by police and prosecutors.

It took days for NYPD to track down the driver of a flatbed truck who ran over Mathieu Lefevre in East Williamsburg on October 18. According to Erika Lefevre, who continues to wait for a full account of her son’s death, police said the truck was found two blocks away, and showed visible damage from the collision. She was also told that charges had been dropped against the driver — whose name she still doesn’t know — though she is doubtful charges were ever filed.

A statement from NYPD in today’s Metro seems to confirm her suspicion.

The driver left the scene — cops told Gothamist that he didn’t know he had hit anyone — and no charges have been filed in the case.

“There’s no criminality,” an NYPD spokesman told Metro. “That’s why they call it an accident.”

The NYPD spokesman quoted in the Metro story is not only startlingly insensitive, revealing the department’s casual attitude toward traffic violence, he’s also playing fast and loose in his interpretation of the law. Whatever caused the collision between the driver and Mathieu Lefevre, it is illegal in New York State to leave the scene of a crash.

According to state traffic code, anyone “knowing or having cause to know that personal injury has been caused to another person” due to a collision is required to stop and notify authorities. Leaving the scene of an incident that results in death is a class D felony punishable by a fine of up to $5,000 and up to seven years in jail.

It appears that the decision to file or not file charges in the Lefevre crash hinged on whether the driver knew he struck the victim. According to Erika Lefevre, NYPD says the driver was “likely unaware” of the collision. For a crash that killed someone, this may be a thin reed on which to hang a defense, but it’s apparently enough for police and the office of Brooklyn District Attorney Charles Hynes to consider the case closed.

“The issue of what the driver knew is a critical element of the case,” says Juan Martinez, general counsel for Transportation Alternatives. “If the DA can’t prove that the driver knew he was involved in the crash, the case fails and the driver can’t be convicted of the crime.”

Martinez continues: “So in hit-and-run cases, any driver who claims they didn’t know they killed someone gets a ‘get out of jail free’ card — unless there is a thorough investigation that examines physical evidence, witness statements, etc. Because police have not released the results of their investigation to the family or anyone else, no one knows whether there was a thorough investigation of potentially criminal conduct, or whether they concluded early on that this was an ‘accident’ and simply accepted the driver’s word.”

It is not unheard of for NYPD to pardon drivers after a hit-and-run, even a fatal one. Another notorious instance involved cyclist Marilyn Dershowitz, whose death last July at the hands of a postal truck driver was captured on video. In that case, it was Manhattan DA Cy Vance who initially kept the victim’s loved ones in the dark.

The driver who killed Dershowitz did not stop after the mid-day collision. He later claimed he was unaware he had hit someone. He was not charged.

"All we know is what we have read in the papers," said Erika Lefevre about the hit-and-run collision that killed her son Mathieu. Photo copyright Dmitry Gudkov

The family of Mathieu Lefevre, the 30-year-old artist killed by a hit-and-run driver while riding his bike in East Williamsburg last week, was joined by dozens of supporters outside 1 Police Plaza today to demand that NYPD rein in deadly driving and end its policy of silence when it comes to fatal traffic crashes.

Paul Steely White, executive director of Transportation Alternatives, began the rally by reading from a list of cyclists, pedestrians and drivers killed this year at the hands of motorists who faced no charges of any kind. While drivers continue “killing with impunity on a daily basis,” said White, NYPD has “consistently failed” to take action to stop the violence.

In 2010, White said, 269 people died in New York City traffic. Traffic crashes are the leading cause of preventable death for the city’s children, and from 2000 to 2009 more New Yorkers were killed by cars than guns. Addressing his remarks to NYPD Commissioner Ray Kelly and Mayor Michael Bloomberg, White said: “You are failing to enforce a basic standard of due care.”

The devastation wrought by the city’s traffic fatality epidemic is made worse by NYPD’s practice of withholding crash information, even from family members of victims. Lefevre’s parents traveled from western Canada immediately upon hearing of their son’s death. Since then, said his mother Erika, they have learned little about the crash.

“All we know is what we have read in the papers,” said Lefevre. Last Friday, the Lefevres waited all day at NYPD headquarters, but were told nothing. No one was available to speak with them over weekend, said Lefevre, and since Monday they have been passed from desk to desk. NYPD revealed to the family that the truck that hit Mathieu, identifiable from visible damage, was found two blocks from the crash site, and that the driver was located through the company that owns the truck. The Lefevres were not given the name of the company or the driver. As for the crash itself, the only details they have been made privy to are time and location. Lefevre said the family was told today that “charges were dropped” against the driver, though she isn’t sure charges were filed in the first place.

Lefevre said that, according to police, the driver of the truck that killed Mathieu was “likely unaware” of the collision.

Intensifying the agony of the families of crash victims is as deeply ingrained in NYPD culture as the department’s laissez-faire approach to traffic enforcement. White said the buck stops at the top.

“Ultimately, what needs to happen is we need leadership,” said White, calling on Kelly and, especially, Bloomberg to tap the city government talent pool to reduce traffic deaths and injuries.

In the case of Mathieu Lefevre, White believes the driver should at minimum be charged under the state’s vulnerable user laws, which have yet to be applied with any regularity by NYPD since they were adopted a year ago.

In the meantime, the Lefevres continue to wait for answers. Erika Lefevre said the last time she talked to her son, who rode his bike regularly during the one and a half years he lived in Brooklyn, was when he called her on October 10, her birthday.

“Mathieu’s life was cut short before he had a chance to develop into what he would become,” Lefevre said. “It is very important that we know the circumstances of our son’s death.”

Details about the circumstances of the crash and why police exonerated the driver in a fatal hit-and-run remain scarce. The victim’s family and friends say the police have not been forthcoming.

Juliana Berger, Lefevre’s former wife, told Transportation Alternatives: “I have been with the family since we have received the news on Wednesday. Almost all of the information we have is what we have read in the newspaper. The fact that we have not been properly informed adds insult to injury. The family is trying to cope with this tragedy, but it seems nearly impossible given the lack of information. We can’t bear the fact that other families have likely been given the same treatment and other families are bound to be treated this way if nothing changes.”

Tomorrow, members of Mathieu Lefevre’s family will join TA and Neighbors Allied for Good Growth to call on NYPD and Commissioner Ray Kelly to uphold traffic laws and protect New Yorkers from reckless driving. The rally starts at noon at NYPD headquarters — One Police Plaza — and the public is invited to attend.

Graph: Transportation Alternatives, based on data from New York State DMV

Tomorrow marks the one-year anniversary of the adoption of Hayley and Diego’s Law, which established the charge of “careless driving” in New York State and gave police and prosecutors a new tool to hold motorists who injure pedestrians and cyclists accountable. Unfortunately, says Transportation Alternatives, over the past 12 months the law has gone largely unenforced by NYPD.

Intended to demarcate a middle ground between moving violations and more serious criminal charges, Hayley and Diego’s law prescribes that drivers who caused injury “while failing to exercise due care” be required to take a drivers education course and be subject to fines of up to $750, jail time of up to 15 days, and a license suspension of up to six months. But a law is only as effective as those who enforce it, and TA has found that applications of VTL 1146, the statute that includes Hayley and Diego’s Law as well as Elle’s Law, are as rare as ever.

Diego Martinez and Hayley Ng were killed in January 2009 when an idling, unattended van jumped a curb in Chinatown. The driver was not charged.

T.A. filed a Freedom Of Information request in May with the New York State Department of Motor Vehicles and found that the number of applications of VTL 1146 has remained more or less steady for the last few years. T.A. estimates that there will be approximately 77 citations of the statute in 2011 based on a total of 32 citations issued as of June this year, while 97 tickets were issued under 1146 in 2010, 87 in 2009, and 92 in 2008.  These statistics show that a year after these new penalties meant to protect New Yorkers went in effect, they are barely being applied.

“Our family worked hard for these laws to deter motorists from dangerous and lethal behavior,” said Wendy Cheung, Hayley Ng’s aunt. “Nothing can undo the crash that took Hayley away from us, but we can prevent tragedies like this from happening to other families. And we can hold someone who breaks the law and takes a life responsible for their actions. We hope the police will use all the tools at their disposal to bring justice to our streets and protect others from the pain of losing a loved one to traffic violence.”

It should be noted that, in the city, VTL 1146 is enforced by NYPD and the Department of Motor Vehicles and, while district attorneys may advise police to apply it in certain cases, it does not fall under DA purview except for repeat offenders.

Streetsblog has a message in with NYPD regarding TA’s findings.

A Court of Appeals decision in a separate case resulted in a reduced charge for the man who killed Karen Schmeer, and will make it more difficult for other victims of traffic crime to find justice. Photo: Garret Savage

On the evening of January 29, 2010, McKie was behind the wheel of a Dodge racing north on Broadway after he and two other men, also in the car, shoplifted over-the-counter cold medication from an Upper West Side pharmacy. Schmeer was on her way home when McKie struck her as she attempted to cross Broadway at 90th Street. She was 39.

McKie was initially charged with murder, but in July prosecutors from the office of Manhattan District Attorney Cy Vance allowed him to plead to manslaughter. On September 7 he was sentenced to five to 15 years. Vance’s office reportedly backed off the murder charge in light of a recent decision by the Court of Appeals — the state’s highest court — that reversed a conviction in a similar case.

In October 2004, according to court documents [PDF], Michael Edward Prindle led police on a high-speed chase through Rochester after he and another man were caught trying to steal two snow plows. Prindle, who was driving, subsequently rammed another vehicle, killing a passenger. Prindle was convicted of murder, but last February the Court of Appeals overturned the verdict.

From the Prindle ruling:

[W]e conclude that the evidence adduced at trial does not support the jury’s conclusion that defendant evinced a depraved indifference to human life … Here, at most, the evidence adduced was legally sufficient to support a finding of reckless manslaughter.

“The assessment of the effect of Prindle by the Manhattan district attorney’s office is regrettably correct,” says Maureen McCormick, Nassau County ADA and traffic justice trailblazer. “The Court of Appeals decisions in recent years appear to be systematically decriminalizing vehicular cases. Oddly it comes as the legislature — ever so slowly — is attempting to better define and prioritize these cases, at least to a degree.”

The ramifications are significant, as the Prindle decision is one of several to demonstrate bias against cases in which crimes are committed with cars. Last week, the State Supreme Court’s Appellate Division upheld the murder conviction of Martin Heidgen, the drunk motorist who in 2005 killed limousine driver Stanley Rabinowitz and 7-year-old Katie Flynn as Flynn’s family returned home from a Long Island wedding. The case made national headlines due the gruesome nature of the crash, the unquestionable innocence of its young victim, and the vigor with which McCormick’s boss, Nassau District Attorney Kathleen Rice, pursued it. But with Heidgen’s legal team set to mount another challenge in the Court of Appeals, the ultimate outcome is in doubt.

To give prosecutors a better shot at getting justice for victims like Karen Schmeer, McCormick says it’s up to Albany to correct loopholes in state traffic law — as the Court of Appeals itself has suggested. “In a common law society it is incumbent that the legislature reacts swiftly to decisions that do not represent the intent or spirit of the legislation that the Court purports to interpret. That does not really happen here with the speed necessary to be effective.”

“Much needs to change,” adds McCormick. “We keep working toward that change.”

Michelle Matson was hospitalized for three weeks with injuries she sustained in an October 23, 2010 hit-and-run crash. She told the Voice that the detective assigned to her case blew off the investigation: "All the evidence they could have gotten, they can't get now." Photo: Village Voice

Here’s Dodero’s set-up:

What James didn’t realize is that even though the ditched car was found within 24 hours, a 1990 Nissan Maxima abandoned two blocks southeast of the accident scene, the police would never make any arrests. And that the detective assigned to the case would tell James, as the victim has consistently recalled for months, that the vehicle owner claimed he’d lost his keys at a local bar that same night and walked home—and that without an eyewitness putting him in the driver’s seat, there was nothing that could be done. When James or Michelle asked what drinking establishment the auto owner had patronized and whether the police had questioned anybody there or if there were any clues in the car, the officer would become dismissive. They eventually stopped calling. According to the official police complaint, the unidentified hit-and-run driver’s highest offense would be categorized a misdemeanor, which seemed preposterous, all things considered.

Please read Camille’s piece. This is the kind of street safety reporting that should be getting massive attention and pageviews instead of the divisive, cookie-cutter car-vs.-bike-vs.-ped stuff we usually see from our tabloid dailies.

Nelson told the Today Show that the jurors who convicted her of vehicular homicide didn't understand what it is like to depend on public transportation. Photo: Atlanta Journal Constitution

Nelson was sentenced to two terms of 12 months probation, to be served concurrently, as well as community service. But Cobb County Judge Katherine Tanksley said the 30-year-old Nelson, who has two other children, could also seek a new trial instead of accepting the sentence.

Her attorney, David Savoy, told the AJC that her initial inclination is to seek a new trial.

An all-white jury convicted Nelson earlier this month on charges of vehicular homicide, jaywalking and reckless conduct, after a driver killed her son while they attempted to cross the street between a bus stop and their home in Marietta. She faced up to three years in prison.

The boy’s killer, Jerry L. Guy, was sentenced to only six months. Guy, who fled the scene, had two prior hit-and-runs on his record and admitted to having been drinking and using pain killers earlier in the day.

The case sparked a national outcry, with more than 135,000 people signing an online petition asking for leniency for Nelson, according to CNN.

David Goldberg of Transportation for America spoke to us as the story was unfolding.

“Our position is going to be that she certainly should appeal and it should be overturned,” he said. “She should never have been charged. A person with no vehicle should never be charged with vehicular homicide.”

Goldberg said this case should inspire some thought on the part of local transportation and law enforcement officials.

“This is emblematic of bigger problem that exists in metro Atlanta and across the country,” he said. “A case like this puts in stark relief the dangerous designs that exist out there in communities across the country.”

We will be posting updates as the story unfolds.

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Nelson’s lawyer, David Savoy, also contacted me this morning to respond to my inquiries about how people can help. (He wouldn’t answer questions about the case itself until sentencing is over.)

Savoy says that while the petitions that are circulating are an important show of support, what really counts are letters to the judge from residents of Cobb County, Georgia — the judge’s own constituents. He emphasized that people should not contact the judge directly, but if Cobb County residents want to email me at tips@dc.streetsblog.org today, I will send the emails on to Savoy and he will present them by hand to the judge. Time is of the essence, because sentencing is tomorrow at 10:30 a.m. This is your chance to respectfully ask the judge for leniency. And remember, she’s not the one who convicted Nelson in the first place — a jury did that. Please include your address on the letter.

Nelson’s aunt, who appears next to her on the Today Show, is setting up a legal defense fund. Many readers expressed interest in contributing to such a fund. I spoke to Nelson’s aunt myself, in between their appearances on the Today Show and MSNBC. She thanks people for their generosity and says they can send contributions to Chase Bank, 1050 E Piedmont Rd, Suite Y, Marietta, Georgia 30062. You can make the check out to Raquel Nelson Legal Defense Fund.

This photo shows the bus stop on Austell Road and the path taken by Raquel Nelson to get to her apartment complex across the street. No marked crossings are visible in the photo. Source: T4America

Last week, we reported on the horrific story of Raquel Nelson, whose four-year-old son was killed as she attempted to cross the street with him to reach their home. Nelson was convicted of reckless conduct, improperly crossing a roadway and second-degree homicide by vehicle, all for the crime of being a pedestrian in the car-centric Atlanta suburbs. The conviction carried a sentence of up to 36 months, while the driver who killed Nelson’s son — who’d been drinking and using painkillers before getting behind the wheel — got off with six months on a hit-and-run charge.

Many of you responded with outrage. The more information that came out, the more outrageous the charges against Nelson became. From an Atlanta Journal-Constitution story that came out the month after the incident:

On April 10, she and her three children — Tyler, 9, A.J., 4, and Lauryn, 3 — went shopping because the next day was Nelson’s birthday. They had pizza, went to Wal-Mart and missed a bus, putting them an hour late getting home. Nelson, a student at Kennesaw State University, said she never expected to be out after dark, especially with the children.

When the Cobb County Transit bus finally stopped directly across from Somerpoint Apartments, night had fallen. She and the children crossed two lanes and waited with other passengers on the raised median for a break in traffic. The nearest crosswalks were three-tenths of a mile in either direction, and Nelson wanted to get her children inside as soon as possible. A.J. carried a plastic bag holding a goldfish they’d purchased.

“One girl ran across the street,” Nelson said. “For some odd reason, I guess he saw the girl and decided to run out behind her. I said, ‘Stop, A.J.,’ and he was in the middle of the street so I said keep going. That’s when we all got hit.”

Look at all the ways the design of the city’s transportation system failed Nelson and her family. Bus service runs once an hour. There is no crosswalk to connect a bus stop with an apartment building it serves – nor any crosswalk for three blocks. A convicted hit-and-run driver who is half-blind and under the influence of alcohol and drugs is considered less of a threat to the public than a woman who rides the bus and walks with her kids.

And as Radley Balko wrote in the Huffington Post, the odds were stacked against Nelson from the start.

“During jury questioning, none of the jurors who would eventually convict Nelson raised their hands when asked if they relied on public transportation,” Balko wrote. “Just one juror admitted to ever having ridden a public bus, though in response to a subsequent question, a few said they’d taken a bus to Braves games.”

Indeed, as David Goldberg wrote on T4America’s campaign blog, “Nelson, 30 and African-American, was convicted on the charge this week by six jurors who were not her peers. All were middle-class whites” and did not ride public transit. “In other words, none had ever been in Nelson’s shoes.”

So if you were cautiously awaiting further details before getting really and fully furious about Nelson’s conviction, go ahead: It’s time.

Many readers have asked if there’s any way you can help. Some expressed a desire to contribute to Nelson’s legal fund. Others wanted to know if they could write a letter to someone demanding that Nelson’s charges be expunged.

I’ve left two messages over the past week with Nelson’s lawyer asking these (and other) questions. Neither message has been returned. So I can’t answer your questions about a legal defense fund. Nelson’s sentencing hearing is on Tuesday.

But there are now two petitions circulating. One, circulating at the Care2 petition site, asks the governor to overturn Nelson’s verdict. At the moment I’m writing this, the petition has gathered 4,369 signatures, on the way to its goal of 10,000. Another, which currently has 1,061 signatures at Change.org, asks not only for Nelson’s release but for the installation of a crosswalk. That petition is addressed to the Cobb County Transportation Department, Cobb County Commissioner District 1 (Helen Goreham), and the Solicitor General (Barry Morgan).

We’ll stay tuned for news on Nelson’s sentence on Tuesday and let you know the minute we hear.