Streetsblog New York City

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.

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A city firefighter who left a man to die on a Brooklyn street was sentenced to community service on Monday, the result of a plea deal with Kings County District Attorney Charles Hynes.

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.

A 25-year-old man was brutally killed by two hit-and-run drivers in Crown Heights early Wednesday.

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.

The lawsuit filed by the family of Mathieu Lefevre against NYPD could change police procedure in the aftermath of fatal crashes, making it easier for grieving relatives to access crucial information.

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.

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Contrary to media reports, the Domino’s Pizza delivery driver accused of killing pedestrian Margaret Myers in Brooklyn earlier this month is not facing charges for her death.

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.

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Last week we reported how the botched NYPD investigation into the death of Brooklyn cyclist Stefanos Tsigrimanis was initially compromised due to a department policy that keeps the Accident Investigation Squad from working cases unless the victim is believed likely to die. When an emergency room doctor told police that Tsigrimanis was not fatally injured, AIS called off its investigation, and did not return to the scene for 46 days.

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:

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Conventional wisdom has it that in the state of New York a motorist must be breaking at least two traffic laws at the time of a crash to be charged with criminal negligence. As Nassau County ADA Maureen McCormick told Streetsblog: “It is believed that if a defendant commits two simultaneous traffic violations in the course of a collision, that automatically allows for a criminal charge because one violation would be considered ‘ordinary’ or civil negligence.”

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:

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A civil jury has found that a driver cleared of wrongdoing by NYPD was primarily responsible for the collision that killed a Manhattan cyclist in 2008.

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.

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A killer charged with the DWI manslaughter death of a six-year-old child walked out of court Tuesday without spending a day in jail.

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.