Ysemny Ramos, center, died at the hands of a drunk driver. Will her killer face justice, or a slap on the wrist? Photo: Daily News

How can this be? How can New York drivers destroy, kill and maim with impunity -- almost always when sober, and even if, in some cases, they aren't?

In part two of our interview with veteran vehicular crimes prosecutor Maureen McCormick (read part one here), the former Brooklyn ADA, now with Nassau County, offers more insight into the state of traffic justice in New York State, and describes how she and others in the prosecutorial community are working to strengthen laws that deal with negligent drivers.

Brad Aaron: There were a couple of recent high-profile cases in which Manhattan pedestrians were killed by hit-and-run drunk drivers. One case ended with a guilty plea resulting in a two year prison sentence, while in the other, also following a plea, the driver received a sentence of just 15 days. Nassau County, meanwhile, is successfully prosecuting killer drunk drivers for murder, with commensurate sentencing. In your experience, what could explain such discrepancies?

Maureen McCormick: [Nassau] District Attorney Kathleen Rice has made traffic justice one of her top priorities. She campaigned on holding DWI defendants accountable for their actions and she has created policies and pursued prosecutions that demonstrate her continued commitment to this issue. In the first year she took office she held 66 percent of Driving While Intoxicated (DWI) offenders to the top count of their charges while the New York State average was 44 percent. She increased jail sentences from 10 percent to 16 percent and she has maintained an overall conviction rate of 94 percent.

The DWI/murder case against Martin Heidgen was recently the subject of a "60 Minutes" report. Heidgen drove more than three miles the wrong way on the Meadowbrook Parkway with a blood alcohol concentration of .28 before slamming head on into a wedding limousine, killing the driver, 59-year-old Stanley Rabinowitz, and decapitating 7-year-old flower girl Katie Flynn. Heidgen was convicted of depraved indifference murder in 2006 and sentenced to 18 years to life.

In Nassau the detectives contact me directly, around the clock. Decisions about warrants, scene preservation, charges, etc. are discussed. An assistant district attorney responds to the crash scene most of the time.

District Attorney Rice established the first Vehicular Crimes Bureau on Long Island. The bureau is designed to bring together training, experience and expertise in the fields of drunk driving and vehicular crimes. It is important to note that the district attorney’s emphasis on traffic justice extends beyond the drunk driver to reckless and criminally negligent drivers as well. This past fall she prosecuted 20-year-old Mayer Sadian for killing pedestrian Dr. Jeffrey Siegel. The defendant was not accused of being drunk (although he left the scene so it remains unknown). The defendant was speeding during a rainstorm in an area with restaurants and heavy pedestrian traffic at dinner time. Dr. Siegel was crossing between intersections when he was struck and dismembered by the car. The district attorney tried the case as a manslaughter. The jury could not reach a verdict on manslaughter but found him guilty of criminally negligent homicide and leaving the scene. Similar cases will be prosecuted with similar charges in the future.

Unfortunately Nassau County is not immune from wide variations in sentencing. There have been cases where the district attorney recommended a sentence of seven to 21 years incarceration upon a plea of guilty and the judge sentenced the defendant to three to nine years instead. All defendants have the right to plead guilty to the charges against them and petition the judge for a different sentence than the one the prosecution recommends.  This is not a plea bargain. A plea bargain requires the district attorney’s office to reduce the charges in exchange for a particular sentence. Some sentences are driven by the strength or weakness of the evidence in a case. There is a wide range of sentencing options available to the court under the statutes dealing with vehicular crimes. I am unfamiliar with the detailed facts of the cases you mentioned from Manhattan so I am not in a position to say why one sentence was given over another. I only know that a victim’s family must be made aware of the pitfalls in the prosecution’s case and be allowed to express their sentiments about a given sentence and the impact they have suffered as a result of their loss.

BA: Again, in your experience, how much interplay is there between police and prosecutors when it comes to investigating pedestrian fatalities? If police know the district attorney’s office is committed to making and pursuing cases when possible, regardless of how difficult it may be to do so, does that ultimately affect their investigative process?

MM: Vehicular crimes prosecutors see themselves as part of a law enforcement team. New York City has specialized detectives that work in the Accident Investigation Squads (AIS) of the Highway Division. Nassau County has homicide detectives assigned to the Vehicular Crimes and Reconstruction Section (VCARS). I have had the privilege of working with them both -- 19 years in Brooklyn primarily under District Attorney Charles Hynes and now three years in Nassau. Both squads are trained in collision investigation and reconstruction. These cases are unlike any of the intentional homicides I prosecuted. They require a unique blend of old-fashioned detective work and scientific crime scene investigation. They are labor intensive. I am a firm believer that crash scenes must be treated as crime scenes until it is established through witnesses and evidence that a crime can not be charged. I also believe it is essential to have early involvement of a trained prosecutor in a criminal crash.

I am a firm believer that crash scenes must be treated as crime scenes until it is established through witnesses and evidence that a crime can not be charged.

In Nassau the detectives contact me directly, around the clock. Decisions about warrants, scene preservation, charges, etc. are discussed. An assistant district attorney responds to the crash scene most of the time. And cases that require additional investigation are coordinated in the vehicular crimes bureau to obtain subpoenaed materials, warrants for "black box" downloads, hospital blood, etc. The investigation is centralized in this bureau. Each of the five district attorneys' offices in New York City have slightly varying protocols but each has a contact person on-call to respond to AIS inquiries and cases. I know that in Brooklyn, District Attorney Hynes had a system that required all fatal collision investigations conducted by AIS in the borough to be reviewed with the person in charge of vehicular crimes before the investigation would be marked as "closed." Sometimes this review resulted in additional investigation being conducted. That investigation most often confirmed the crash could not be charged as a crime but occasionally the joint investigation by AIS and the district attorney’s office allowed criminal charges to be filed. I have confirmed with my successors in Brooklyn that District Attorney Hynes has maintained this policy of review.

I suppose the answer is that the investigation of a crash should reveal facts from which a charging decision can be made. I believe that a coordinated team approach between police and prosecutors on these cases facilitates and ultimately strengthens the case -- regardless of how difficult the case may be to prosecute.  

BA: What efforts, if any, are underway to toughen penalties in New York State for drivers who kill -- both in cases where drugs or alcohol are present and when they are not?

MM: District Attorney Rice, in conjunction with NYS Senator Charles Fuschillo and Assemblyman Harvey Weisenberg, proposed aggravated vehicular homicide and assault statutes. They were passed by the legislature after the family of Katie Flynn went to Albany to implore them to take these most egregious DWI crimes more seriously. Aggravated vehicular homicide is a class B felony and represents the first time in New York State that a vehicular homicide must receive mandatory upstate incarceration as part of the sentence.

Things are changing, but much too slowly. When I started 23 years ago, people did not go to jail for these crimes. Now it is much more likely that a defendant will be sentenced to jail -- but generally the sentences are still disproportionately low compared to the harm caused. There is still not enough awareness about driving crimes that do not involve alcohol and drugs among the general public, some parts of law enforcement and the judiciary.

I can attest from my own participation that constant efforts are underway to strengthen the laws involving vehicular crimes. The Vehicular Crimes subcommittee of the NYS District Attorney’s Association and the NYS Impaired Driving Task Force are working to toughen penalties and increase coordination among the various state agencies which play a role vehicular crimes enforcement. District Attorney Rice speaks regularly with legislators from Long Island about closing the loopholes and making the punishments fit the crimes. Criminally negligent homicide should at least be increased from an E felony to a D felony, like its leaving the scene of an incident counterpart. There should be a felony assault charge when criminal negligence results in serious physical injury. All homicides and assaults involving motor vehicles should be designated "violent felony offenses" since a "dangerous instrument" (defined by the Penal Law to include a motor vehicle) was used to commit the crime. This would provide enhanced penalties. And the technicalities involving the collection of blood evidence in the Vehicle and Traffic law should finally be eliminated. No family should ever have to be told again that a case against a drunk or drugged driver could not be prosecuted because the blood evidence was thrown out due to this hyper-technical statute.

I will end as I started. It is an uphill battle. But there are dedicated members of law enforcement, prosecution and the legislature who understand the urgency of fixing this area of the law. It is simply difficult to be patient while so much harm continues to be done.

For more than 300,000 Long Island residents, the daily commute to New York City is often a difficult one --- either because their mass transit experience is unpleasant and slow or because they sit in bumper-to-bumper traffic from their home to their office. Unfortunately, it's only going to get worse. Our region can expect more and more drivers on our streets, and riders in our buses and trains. But, as of now, we don't and won't have the funds to make real improvements to handle the overflow.

[Congestion pricing] would reduce traffic by 8 percent in Long Island and across the region while earning $500 million a year that would go directly to mass transit projects such as modernization of the Long Island Rail Road and East Side Access --- projects that could cut commuters' trips by as much as 44 minutes a day, according to the Regional Plan Association. The reduced congestion will also help drivers who aren't commuting daily to Manhattan, freeing up roadways to save everyone time.

More important than the cost to a small percentage of commuters is the cost of maintaining the status quo and not implementing a congestion pricing plan. Millions more people will clog our roads over the next few decades without viable alternative mass transportation options, making daily commutes far more unbearable.

MTA Deputy Director of Media Relations, Jeremy Soffin, sends this along:

As you know, the first tunnel boring machine for the East Side Access project has been chewing its way under Manhattan for almost a month, and we just wanted to provide a short update. The machine has now tunneled approximately 1,350 feet. While the machine generally averages 50 feet per day, we had a record performance yesterday of 114 feet. The machine is now operating underneath 60th Street near Lexington Avenue. In total, the machine will bore approximately 7,200 feet total to 38th street. A second TBM has been assembled in the "launch box" at 63rd Street and 2nd Avenue and will begin tunneling a parallel tube shortly.

East Side Access will bring LIRR trains into Grand Central Terminal for the first time.

You can find more information on the construction here.

Photo: robert the bear/Flickr

Newsday reports on the latter:

Congestion pricing is a "sensible solution" to traffic tie-ups that cost the region $13 billion and 52,000 jobs a year, said Josh Klainberg, deputy director of the New York League of Conservation Voters. "The technology exists today that will allow us to create a congestion pricing system that is fair, flexible and responsive to regional planning needs," Klainberg said.

Corey Bearak of Keep NYC Congestion Tax Free referred to Bloomberg's proposal as a congestion tax and said excessive traffic is caused partly by failure to enforce traffic laws.

But Weisenfeld and others said Bloomberg's proposal would be a hardship for people traveling into Manhattan. Robert Friedrich, president of the co-op board in Glen Oaks Village in Queens, said there is little public transportation in his neighborhood.

"There are no subways there, and there are sporadic buses," he said. "This is an imposition of a lot of money on working-class people."

Business owners said the proposal would hurt companies that must make multiple trips to Manhattan each day.

"Our industry is going to be majorly impacted," said Ron Billing, president of Ron's Rapid Delivery in Hicksville.

And here's the Journal News from White Plains:

"I represent a county with many commuters who are not rich," said Assemblywoman Ellen Jaffee, D-Suffern. "I am proud to say that Rockland is home to more New York City firefighters than any other county besides Richmond. Not to mention teachers, court clerks, hospital workers - in short, the people who keep the city running. These workers cannot afford a tax on going to work."

Also in opposition was former New York City Council member Walter McCaffrey; John Corlett, director of government affairs for AAA in New York; and Westchester County Commissioner of Transportation Lawrence Salley.

Salley stressed that the counties outside of Manhattan would have to pick up the transportation slack of riders who could no longer afford to drive into the city.

"(The numbers of diverted travelers) would inundate the existing access systems for Metro-North stations and overwhelm the bus service provided by the Westchester Bee-Line to Manhattan and to the Bronx subways," Salley said. "Without access to additional operating assistance, from the congestion pricing revenue stream or from some other source, much of the cost of carrying diverted commuters in Westchester will fall again on the most regressive of taxes, the local property tax."

Those opposed to the fees said the commission should look at other ways to alleviate congestion, such as getting people out of their cars and onto public transportation, enforcing the traffic and parking laws already in place and changing existing traffic patterns.

There will be another hearing tonight, in Manhattan:

Hunter College - Kaye Theater
Thursday, October 25, 2007
6:00 PM
East 68th Street Between Park & Lexington Avenue

High pay coupled with low crime rates make a coveted Long Island job "like winning the lottery in law enforcement," said Eugene O'Donnell, a professor of law and police studies at John Jay College. Nassau [County] has the lowest crime rate in the nation of any place with more than one million people, and Suffolk is not far behind.

Long Island is dangerous. So dangerous that "After a deadly day on Long Island roads," Newsday reported last Wednesday:

Sen. Charles Schumer is calling for a safety audit of roadways in Nassau and Suffolk, which have more fatal accidents than any other county in the state.

A decade ago, Northwest Environment Watch (now the Sightline Institute) published a memorable report showing that violent deaths were less common in Seattle than in the surrounding suburbs. The author of this myth-buster, Alan Durning, took the novel but logical step of combining traffic fatalities with homicides and found fewer violent deaths (per million people) in the central city. It wasn't that city drivers were saner. Rather, city dwellers spent less time driving than suburbanites, giving them fewer opportunities to kill themselves or other Seattle residents on the roads, which more than offset the city's higher homicide rate.

A similar calculation for New York City and Long Island, using 2005 data, likewise upends the conventional wisdom. Per million people, Long Island had 51 fewer homicides (16 vs. 67), but 50 more traffic fatalities (89 vs. 39), than New York City. In terms of total violent deaths, the difference between the Big Apple and Long Island - 105 deaths per million people in the City, 104 on the Island - is statistical noise.

What this means for our police, I'm not exactly sure. But perhaps it can lay to rest, once and for all, the myth that violent deaths stop at the city line. Indeed, if recent trends continue, the risk-averse may start pulling up stakes from Lindenhurst and hunting for a house in Lefferts Gardens.

Download the spreadsheet Komanoff created to derive this data.  

Photo: klauskinski/Flickr