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Posts from the Traffic Justice Category

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With Traffic Deaths Trending Downward, Lancman Attacks Right of Way Law

Police Commissioner Bill Bratton told the City Council today that NYC traffic fatalities have continued to drop in 2015, but not every council member is pleased with the city’s recent steps to deter dangerous driving.

Rory Lancman

In testimony to the public safety committee, Bratton said traffic deaths were down 43 percent as of mid-February, though he didn’t give exact figures or dates. NYPD collision data from January show overall fatalities were down 38 percent compared to January 2014, and pedestrian and cyclist deaths decreased by 46 percent compared to last year. Injuries to pedestrians and cyclists also declined relative to 2014. NYPD didn’t release January data until March, so February data likely won’t be available to the public for a few weeks.

This is too small a sample to draw hard conclusions. But it could be an indication that NYC’s speed camera program, coupled with NYPD enforcement of speeding and failure to yield — which is inconsistent among precincts but trending upward overall — is paying dividends.

Chief of Transportation Thomas Chan said enforcement of the Right of Way Law, which made it a misdemeanor for drivers to harm someone with the right of way, continues to be limited to the Collision Investigation Squad, as the department is still developing a protocol for precinct officers to apply it. Council Member Rory Lancman, who in February asked Chan how police determine whether a driver who failed to yield also failed to exercise due care, again questioned whether NYPD is applying the law correctly.

“I get it that you’re formulating a procedure for the rest of the force, but you’re arresting people now,” Lancman said. “And so those arrests need to be done in conformance with the law, which requires not merely failure to yield, but also the failure to exercise due care. So for the group of officers, the CIS team, that are authorizing those arrests, what standards are they applying to whether or not somebody not just failed to yield, but also failed to exercise due care?”

Chan laid out the procedure. “What happens is that the CIS officers and investigators will conduct a thorough investigation, and taking a look at the totality of the evidence, whether it be video tape, an interview with witnesses, the right of way of the pedestrian who was crossing at the time, and doing a full investigation and taking all those circumstances into consideration,” he said. “And if we do find that the individual failed to use due care when they struck the pedestrian in the crosswalk, then they will make the arrest for that particular violation.”

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Driver Who Killed 9-Year-Old on Sidewalk Can Regain License in 5 Years

New York Court of Appeals Judges Jenny Rivera, Sheila Abdus-Salaam, Robert S. Smith, Susan P. Reid, and Chief Judge Jonathan Lippman are making it easier for reckless drivers to get away with killing people

New York Court of Appeals Judges Jenny Rivera, Sheila Abdus-Salaam, Eugene Pigott, Susan P. Read, and Chief Judge Jonathan Lippman.

The driver who ran over two children on a Brooklyn sidewalk, killing 9-year-old Lucian Merryweather and injuring his 4-year-old brother, will serve no jail time and be eligible to legally drive again in five years, pursuant to a plea arrangement with Brooklyn District Attorney Ken Thompson.

Thompson’s lead vehicular crimes prosecutor cited case law precedent from the New York Court of Appeals, the state’s highest court, as one reason the DA’s office did not seek a more severe penalty.

On the afternoon of November 2, 2013, Anthony Byrd hit two cars and a building after swerving to avoid two people in a crosswalk at DeKalb and Clermont Avenues. He next made a U-turn and drove against traffic on DeKalb, struck a woman in a crosswalk, hit a parked vehicle, and drove onto the sidewalk a second time, striking Lucian and his brother. Lucian died at the scene.

Byrd was charged by former DA Charles Hynes with second degree assault, criminally negligent homicide, first and second degree reckless endangerment, criminal mischief, and several traffic infractions. However, Byrd was indicted on a top charge of homicide — a class E felony, the least severe felony category — and the class D second degree assault charge was reduced to misdemeanor assault, according to court records.

The Daily News reports that prosecutors and Byrd agreed to a plea of five years probation, 20 days of community service, and a five-year license revocation. The News reported that Lucian’s family did not object to the agreement.

Though Byrd pinballed through neighborhood streets, killing one bystander and injuring two others, Brooklyn vehicular crimes chief Craig Esswein said he didn’t have a strong case.

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No Word on Whether Trucker Who Killed Mathieu Lefevre Will Keep License

More than three years after the crash, the New York State Department of Motor Vehicles held a hearing today to determine whether to take action against the truck driver who killed cyclist Mathieu Lefevre. But Lefevre’s family will have to wait on a DMV decision.

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

Lefevre, 30, was killed just after midnight on October 19, 2011, while riding his bike on Morgan Avenue in Brooklyn. As Lefevre approached the intersection of Morgan and Meserole Street, Leonardo Degianni, who was driving a 28-ton crane truck and traveling in the same direction as Lefevre, ran over Lefevre while turning right. Degianni did not stop at the scene, and was identified as the driver after police found the truck parked a block away.

It took a lawsuit and a lot of well-earned negative publicity for NYPD to share information about the crash with Lefevre’s family. NYPD concluded Degianni was unaware he struck Lefevre based on video of the crash. Detective Gerard Sheehan, the crash investigator assigned to the case, also apportioned some blame to Lefevre in his report. Though Degianni did not signal before turning and Lefevre was riding legally, Sheehan said Lefevre “should not have been passing on the right side.”

Lefevre’s family asked Charles Hynes, then the Brooklyn district attorney, to review the case, but Hynes declined to press charges. Degianni was eventually ticketed for failing to signal and careless driving, but the DMV threw out the tickets.

At this morning’s “safety hearing,” DMV administrative law judge Marc Berger heard testimony from Sheehan, who basically repeated the conclusions contained in the NYPD crash report. Berger also reviewed video of the crash, and accepted photos of the scene as evidence.

Berger questioned Sheehan on key details, such as the number and position of the mirrors on the truck, and whether in Sheehan’s opinion Degianni should have known he hit a person on a bicycle. Sheehan at one point indicated he believed Degianni should have seen Lefevre, had he used his mirrors properly, but said police could not determine if Degianni had passed Lefevre prior to the collision. Though the investigation found Degianni made contact with Lefevre on the driver’s side of the truck, Sheehan said drivers of large vehicles often say they didn’t detect running someone over.

Berger did not render a decision today.

Today’s proceeding was a vast improvement over the 2014 hearing when Berger asked the driver who killed Brooklyn pedestrian Clara Heyworth for his analysis of the crash scene. But the DMV adjudication process is still biased to favor motorists who kill people.

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Rory Lancman Worried NYPD Charging Too Many Drivers for Injuring People

This is pretty rich. In a city where hundreds of people get hurt by drivers who fail to yield each month, City Council Member Rory Lancman is concerned that police are “overapplying” the new Right of Way Law, which has been used all of 20 times since August.

Rory Lancman

In a February 17 letter to NYPD traffic chief Thomas Chan [PDF], Lancman asked how police determine whether to file misdemeanor charges or issue a civil penalty under the new law, and how they are trained to make that call:

Clearly the failure to yield alone is insufficient to support a charge under the law unless the “failure to yield and/or physical injury” was “caused by the driver’s failure to exercise due care.”

As it happens, Bill de Blasio touched on this subject in his testimony to the State Senate last week. Here’s his explanation of how NYPD applies the “due care” standard — basically, if officers determine that the crash could have been avoided, they will file charges:

Senator, the law that was passed by the City Council, which I signed, makes clear that when an individual fails to yield to pedestrians where they should — the pedestrian has the walk sign and they’re crossing the street and there’s still a crash, and in this case, what the law dictates is, if there is serious injury or fatality and if the officers on the scene determine that it was an avoidable injury or fatality, they are obligated to pursue an arrest. If the officers determine that it was unavoidable, meaning something happened that no driver could have possibly foreseen or responded to in time, they have the option of giving a summons… If the officer believes it was 100 percent avoidable, that is an arrest situation.

Officers with the Collision Investigation Squad are trained to determine whether a driver should have avoided a crash. Only about 20 investigators work at CIS — not enough to handle all of the failure-to-yield collisions in the city. Last October, Chan told Streetsblog that NYPD is looking to train precinct cops how to enforce the new law as well, and that the department is being very deliberate about implementing a clear standard:

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Parents of Seth Kahn: Ineffective MTA Protocols Contributed to Son’s Death

After Wednesday’s MTA board meeting transit chief Tom Prendergast said the agency may revise bus routes to reduce the number of turns bus drivers have to make, in order to minimize conflicts between buses and pedestrians, according to the Daily News. Prendergast said another possibility would be to move crosswalks away from intersections where buses make turns, which would necessitate streetscape changes by DOT.

Seth Kahn

Seth Kahn

Whether or not these ideas pan out, it’s good that the MTA is seriously engaging in the Vision Zero discussion. Bus drivers killed eight people in crosswalks last year, and there’s no evidence that admonishing people to stay out of the way of buses will reduce crashes.

The MTA didn’t really come to the table until several bus drivers were charged under the Right of Way Law for maiming and killing pedestrians. But some City Council members want to rescind the protection to pedestrians and cyclists the law provides. Council Member Daneek Miller’s bill to exempt MTA bus drivers from the Right of Way Law has picked up 14 co-sponsors.

Miller and TWU Local 100 say the MTA’s internal protocols adequately ensure bus driver safety. That doesn’t jibe with the story of Seth Kahn, killed in 2009 by a speeding bus driver who was just back on the job after a suspension for texting behind the wheel.

Driving a bus in New York City is a tough and stressful job, and most drivers do it well. That doesn’t mean crashes are an inevitable cost of doing business, or that bus drivers can’t be reckless or negligent. The Daily News and the union have taken to using the phrase “criminalizing bus drivers,” but in fact the law does not single out bus drivers and only criminalizes negligence that leads to serious injury and death. Even Daily News reporter Pete Donohue, whose column has become a platform for TWU opposition to the law, slammed the MTA for failing to keep Seth Kahn’s killer out of the driver’s seat.

Debbie and Harold Kahn shared with Streetsblog their account of what happened to their son and the driver who took his life.

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Will DA Ken Thompson Drop Case Against Bus Driver Who Killed Senior?

On the evening of December 23, 2014, 78-year-old Jean Bonne-Annee was crossing New York Avenue at Farragut Road in Brooklyn when an MTA bus driver ran him over while making a left turn.

Brooklyn DA Ken Thompson

Brooklyn DA Ken Thompson

Bonne-Annee died at the scene. He was the eighth pedestrian killed by a turning MTA bus driver in 2014.

Police arrested driver Reginald Prescott and charged him with violating the Right of Way Law, which is intended to hold drivers accountable for killing or injuring pedestrians and cyclists who are following traffic rules.

Because Prescott was driving a bus and was charged for killing someone, TWU Local 100 and some members of the press have devoted much attention to a crash that otherwise would have received little or no notice. On Tuesday Pete Donohue of the Daily News reported that District Attorney Ken Thompson may bow to pressure from the TWU and dismiss the case.

Arraignment proceedings for Prescott were canceled, Donohue reported, “as prosecutors and his union defense lawyer agreed neither to go forward with a formal reading of the charges nor require Prescott to enter a plea, as is customary.”

“We pressed a pause button to say ‘stop’ with the view towards the district attorney ultimately dismissing the charges completely against Mr. Prescott,” TWU Local 100 legal director Kenneth Page said.

A spokeswoman for Brooklyn prosecutors would only say that the case remains under investigation. No new court date for Prescott was set during his appearance in court Tuesday morning.

“[T]he case is still being investigated and the charges have not been dropped,” a Thompson spokesperson told Streetsblog via email.

As Ben Fried wrote this week, before the Right of Way Law NYPD and prosecutors didn’t investigate the vast majority of serious traffic crashes, and declined to pursue charges in fatal collisions that did not involve extenuating circumstances like DWI or leaving the scene. The strength of the Right of Way Law is that it removes driver intent from the equation: If you harm someone who is walking or biking with the right of way, you committed a misdemeanor.

The court process may reveal that Prescott was not at fault. What shouldn’t be in doubt is a full and fair disposition of the case. Otherwise, people who are following all the rules will continue to be denied the protection of the law, as they were before.

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Gianaris: Time for Albany to Stiffen Penalties for Unlicensed Drivers Who Kill

This morning State Senator Michael Gianaris again called on state lawmakers to pass legislation that would stiffen penalties for motorists who hurt and kill people while driving without a valid license.

Joined by State Senator Toby Stavisky, Assembly Member Francisco Moya, and reps from Transportation Alternatives and Make Queens Safer, Gianaris spoke to the press at Woodside Avenue and 76th Street in Elmhurst, where alleged unlicensed driver Valentine Gonzalez killed an unidentified woman last Sunday.

“How many deaths at the hands of unauthorized drivers will it take before we make sure the punishment fits the crime in these cases?” said Gianaris, according to a press release. “It is heartbreaking to see one family after another suffer the loss of a loved one because irresponsible drivers get behind the wheel when they shouldn’t.”

Gianaris introduced a bill last year to make it a class E felony to cause serious injury or death while driving without a valid license, as long as the license was suspended or revoked for traffic offenses. A second Gianaris bill would require drivers with suspended or revoked licenses to surrender their vehicle registrations and license plates. Margaret Markey is the primary sponsor of both bills in the Assembly.

Gianaris brought the bills after an unlicensed truck driver killed 8-year-old Noshat Nahian on Northern Boulevard in Woodside in December 2013. Weeks later an unlicensed driver killed senior Angela Hurtado in Maspeth. Both drivers were charged with aggravated unlicensed operation. The driver who killed Hurtado pled guilty and was fined $500.

NYPD and city district attorneys typically charge aggravated unlicensed operation, a low-level misdemeanor, when an unlicensed driver kills someone. This offense carries a maximum penalty of a $500 fine and 30 days in jail, though jail sentences are all but unheard of.

Aggravated unlicensed operation is the same charge that police and prosecutors apply when an unlicensed driver commits a traffic infraction. In practice this means that an unlicensed driver who kills a senior in a crosswalk faces the same penalty as an unlicensed driver who turns without signaling.

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How the Daily News Gets the Right of Way Law Completely Wrong

Bianca Petillo McCloud, 18, was walking across 132nd Avenue in Rochdale, Queens, when she was struck by a turning truck driver and killed. Police did not issue so much as a citation, even though the circumstances of the crash suggested that McCloud had the right of way.

Shirley Shea died 10 months after she was struck by a school bus driver who violated her right of way in a crosswalk. Police barely investigated the crash and did not cite the driver, a situation the Right of Way Law seeks to remedy.

Nor did police issue any charges to the truck driver who turned across the path of 24-year-old Emma Blumstein as she biked straight ahead on Bedford Avenue with the green light. Blumstein was pronounced dead at the scene.

And there were no charges for the school bus driver who struck Shirley Shea, 78, as she crossed 67th Street at Columbus Avenue with the walk signal. Shea died 10 months later as a result of injuries sustained in the crash.

I bring up this awful loss of life because the Daily News opinion page ran two pieces condemning the city’s new Right of Way Law over the weekend — one by the editorial board and the other by City Council Member I. Daneek Miller — with only one mention of someone hurt or killed by a driver who failed to obey the law.

The piece from the editorial board had the laziest mistakes, so let’s start with that. According to the Daily News:

The criminalizing of failure-to-yield accidents grew out of the notion, espoused by some transportation advocates, that there is virtually no such thing as a traffic accident. In almost every case, someone did something wrong, so that’s a crime.

Those advocates may often be right in the most technical, literal sense, but not in the real world and certainly not in a criminal justice system that demands proof beyond a reasonable doubt after the handcuffs have been released.

This is completely wrong, coming and going.

The Right of Way Law was designed to fix a very specific, “real world” problem — police and prosecutors were not holding drivers accountable for hurting people even when they clearly broke the law. The Right of Way Law does not criminalize drivers “in almost every case” that they injure someone — it applies strictly to crashes in which people are walking or biking and following all the rules, only to get hit by a driver who violated their right of way.

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NYPD: No Charges for Driver Who Killed Man in Brooklyn Crosswalk

NYPD filed no charges against the driver who killed Martin Hernandez Tufino as he crossed the street in a crosswalk. The red arrow represents the movement of the driver and the white arrow the movement of the victim, according to information released by NYPD. Image: Google Maps

NYPD filed no charges against the driver who killed Martin Hernandez Tufino as he crossed the street in a crosswalk. The red arrow represents the movement of the driver and the white arrow the movement of the victim, according to information released by NYPD. Image: Google Maps

NYPD said charges probably won’t be filed against the driver of a private bus who ran over and killed a man in a Brooklyn crosswalk, though it appears the victim was crossing with the right of way.

Police said Martin Hernandez Tufino, 64, was crossing Avenue M north to south at around 2:11 p.m. Friday when the driver struck him with a Freightliner bus while turning right from Coney Island Avenue, according to Gothamist.

From the Daily News:

The man was in the crosswalk and was caught under the bus’s front wheels. He suffered a massive head injury, horrified witnesses told police.

He died at the scene.

Though Tufino was in a marked crosswalk and would presumably have had the right of way, anonymous police sources told the Daily News “no charges were expected.”

It would not be unusual for the driver in this case to avoid penalty. Since the Right of Way Law took effect last August, motorists have injured and killed thousands of New York City pedestrians, yet as of this month NYPD had applied the law just 17 times.

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DMV Revoked License of Driver Who Killed Allison Liao for Just 30 Days

The motorist who killed 3-year-old Allison Liao could be back behind the wheel before long, as the New York State Department of Motor Vehicles revoked his license for just 30 days.

Photo: Brad Aaron

Following a hearing in early January, DMV administrative law judge Sidney Fuchs determined that Ahmad Abu-Zayedeh failed to yield the right of way when he ran over Allison as she walked hand in hand with her grandmother across Main Street in Flushing on October 6, 2013. The DMV revoked Abu-Zayedeh’s license, but the length of the revocation was not announced.

“The respondent failed to use due care, as required by VTL Section 1146, to avoid colliding with a pedestrian,” Fuchs wrote in his January 13 decision [PDF]. “There was no credible testimony as to why the respondent did not avoid this collision.”

Though Fuchs found Abu-Zayedeh at fault, he could be driving again as soon as March. A revocation period of “at least 30 days” begins on February 13, according to DMV documents. After 30 days, Abu-Zayedeh may petition the DMV to have his driving privileges reinstated.

Amy Tam and Hsi-Pei Liao, Allison’s parents, were not available for comment, but issued a statement through their attorney, Steve Vaccaro: “While Judge Fuchs correctly determined that the driver failed to use due care, it is shocking to learn that this is the official consequence of such an outrageous act.”

The DMV does not publicly post records of hearing outcomes or license revocations and suspensions, making it exceedingly difficult to gauge how this 30-day penalty compares to other cases. However, driving while intoxicated carries a mandatory six-month license revocation, as does “homicide, assault or criminal negligence resulting in death from the operation of a motor vehicle,” according to the DMV.

Last year, Families For Safe Streets met with DMV representatives to recommend several agency reforms, including regular publication of hearing outcomes and other data. The DMV has not contacted Families For Safe Streets since then and has not said if it plans to reform its protocols.