The Daily News reported yesterday that police said the victim’s iPod may have prevented him from hearing the truck. It’s not clear whether the iPod factored into NYPD’s decision. But the very fact that police issued summonses to the driver indicates that they failed to pursue further options, because there are new laws on the books to suspend the driving privileges of motorists who injure pedestrians and cyclists through recklessness or negligence.

A sponsor of one of those bills, Upper East Side Assembly Member Micah Kellner, wants answers from New York City’s law enforcement agencies. Why aren’t police and prosecutors using the tools at their disposal to help keep pedestrians safe?

Yesterday Kellner sent the following letter to Manhattan DA Cy Vance and NYPD boss Ray Kelly:

Dear District Attorney Vance and Commissioner Kelly:

I am writing to you regarding an incident that occurred early yesterday morning, in which 21-year-old student Jason King was struck and killed by a dump truck that was illegally backing up the wrong way, as he was crossing Madison Avenue near 81^st Street.  I have been informed by the Community Affairs Officer at the 19^th Precinct that the driver of this truck was issued a summons for unsafe backing, but that he was not charged with any crime and no further action has been taken.

As the sponsor of Elle’s Law and a supporter of the Hayley Ng and Diego Martinez Law, I am greatly concerned that neither of these important pedestrian-protection laws has apparently been enforced in this incident.

Hayley and Diego’s Law provides that drivers who act in a manner that endangers a pedestrian and thereby causes physical injury or death shall be guilty of a traffic infraction, with punishment that may include a fine and/or a term of imprisonment of up to 15 days.  Elle’s Law provides that any driver who fails to exercise due care to avoid colliding with a pedestrian, and in so doing causes serious physical injury to another person, will have his or her license suspended for a period of six months (with a full year suspension for second offenders).

Incidents like this one are precisely why we in the New York State legislature passed these laws; they are on the books for you to use as tools to punish reckless driving and remove dangerous drivers from the road.  I do not understand why the police failed to charge the dump truck driver under either or both of these laws.  While the driver’s actions may not rise to the level of manslaughter, it is certainly clear that his negligence warrants further punishment than a summons.  I urge you to use all available legal tools, including Elle’s Law and Hayley and Diego’s Law, to bring this driver to justice, and to ensure that he and future reckless drivers are prevented from causing further harm.

Very truly yours,

Micah Z. Kellner

Assembly Member

Diego Martinez and Hayley Ng were killed when a van left idling and unattended careened backwards into a group of pre-schoolers on a Chinatown sidewalk. The driver was not charged.

One reason prosecutors hesitate to bring charges is that the standards for proving criminal negligence or recklessness can be difficult to meet. Hayley and Diego's Law, sponsored by Dan Squadron in the State Senate and Brian Kavanagh in the Assembly, creates an intermediate charge -- a traffic violation called careless driving -- which prosecutors can use in cases where criminal convictions seem unlikely. Motorists found guilty of careless driving will have to complete a driver education course and face fines up to $750, jail time up to 15 days, and license suspensions up to six months -- or a year for repeat offenders.

"We expect that the NYPD and District Attorneys are always looking at all the different options to hold people accountable for actions that lead to injuries and deaths," said Transportation Alternatives' senior policy advisor Peter Goldwasser. "With this law, we expect that they will be able to do that to an even greater degree and create a deterrent effect."

Joseph McCormack, chief of the Vehicular Crimes Bureau at the Bronx District Attorney's office, said he would have applied the careless driving charge to Randolph Belle, the motorist who executed an illegal U-Turn on West Kingsbridge Road last week, causing a livery cab driver to veer into a bus shelter, killing one person and severely injuring several others.

McCormack decided not to press charges based on a 2008 case, People v. McGrantham, in which the Court of Appeals -- the highest court in New York state -- ruled that limousine driver James McGrantham was not guilty of criminal negligence after he entered the Belt Parkway at night going the wrong direction, then executed a U-Turn in the middle of the highway instead of pulling over outside the flow of traffic to correct course. A motorcyclist coming around a curve crashed into the limo and died.

Paterson signed a second law on Friday that should also keep dangerous drivers off the road. Under Elle’s Law, any driver who causes serious physical injury to another person while committing a traffic violation will automatically have his or her license suspended for a period of six months by the DMV. Drivers who have been involved in any similar incidents within the previous five years will have their licenses suspended for a full year.

Upper East Side representative Micah Kellner introduced the bill after Elle Vanderberghe, 3 years old at the time, suffered serious brain injuries when a motorist backed up through a crosswalk on 82nd Street to grab an open parking space. "I think a lot of folks want to believe that our streets are safe, but they're clearly not," said Kellner. "One thing we need to make clear is that driving is a privilege, not a right, and if you're going to endanger the public welfare, we're going to take that privilege away from you."

Together, Elle's Law and Hayley and Diego's Law should result in more consistent revocation of driving privileges after people commit dangerous acts behind the wheel. And while the system of license suspensions in New York suffers from a revolving door problem, the new laws may lead to suspensions that carry greater consequences. A Court of Appeals ruling earlier this year, in People v. Caban, holds that driving with a suspended license can be used as evidence of criminal negligence, if the suspension was due to unsafe driving.

It will take years to assess the full impact of Hayley and Diego's Law, but a similar law that passed in Oregon a few years ago should give New Yorkers a good idea of the challenges to expect.

The Oregon statute differs from Hayley and Diego's Law in that the officer has to actively determine that someone was driving carelessly, said attorney Bob Mionske, who writes the Road Rights column for Bicycling Magazine. Under New York's law, there's a presumption that the driver was at fault in some crashes. "It shifts the burden," said Mionske. "You're sort of on the cutting edge in New York."

Despite its differences, Oregon's vulnerable users law remains the closest comparison to New York's. "Here, it's made a big difference," argued Ray Thomas, another bike lawyer. "The options are so limited in terms of what can be done in most cases," he said. Another infraction adds to the enforcement toolkit. He pointed to the high-publicity case of a Portland bus driver who hit five pedestrians in a crosswalk, killing two; the driver was prosecuted under the vulnerable users law.

Thomas admitted, though, that the state law hasn't shown equal benefit everywhere in Oregon. Though prominent in Portland, said Thomas, "across the state, law enforcement has been slow or reluctant to use it." He attributed the uneven application to two things that many police departments and district attorneys want to avoid: "New thinking and more work."

The Oregon law also hasn't penetrated public perception very widely. Estimating how many Oregonians were aware of the law, Mionske guessed "less than 3 percent, and they're the ones already in the choir." Comparing careless driving to drunk driving, Mionske said that there will be a real deterrent effect when law enforcement and advocates join forces to create "a ripple of fear through the driving community." That hasn't happened with the vulnerable users law, yet. 

What both Mionske and Thomas implied is that once legislation like Hayley and Diego's Law goes into effect, law enforcement needs to buy into it. Then, in each city and town, the enforcement effort must be accompanied by a coordinated campaign to inform people of the new consequences of careless driving.

Brodsky's office sent us a copy of the letter [PDF], which is copied in full below. Among its 24 signatories, the overwhelming majority represent New York City:

Dear Hon. Walder,

We write to you as long-standing advocates for mass transit funding, as those who have regularly supported state funding for the MTA's capital and operating needs, and as those who represent students and parents across the MTA region.  We understand the continuing difficulties caused by the national recession, and the difficult decisions you are making as a consequence.  We believe that we share a desire to reform, expand, and improve the MTA, even as new leadership takes over, and as PARA 2009 makes real changes in legal, operational and fiduciary practices at the MTA. 

That being said, we write to make sure you understand the depth of our concern about MTA plans to end free and discounted student travel.  We cannot criticize any exercise that reviews all MTA expenditures and services in the face of the economic downturn.  But we reject any decision by the MTA to end free and discounted student travel as an element of a final package of changes. 

We reject that decision because it is not an accurate or intelligent analysis of the MTA's fisc [sic]. While the MTA asserts it needs $214 million in additional state and city aid to preserve the program, the actual cost of free and discounted student fares is close to zero.  We reject the MTA's assertion that the program must be valued at the ostensible lost revenue, and point out that state and city funding for the program actually exceeds the cost of providing the service. 

We reject that decision because it is a dangerous, unfair, and self-defeating political tactic. We understand the use of political tactics in budget controversies.  But there are limits, and the decision to put students and families out there as a pawn in the struggle to increase City and State funding crosses a line.

Simply stated, we ask that you immediately withdraw the threat to student fares, that you review the actual cost of the program across the MTA region, that you ensure that all students in the region be treated equally, and that you work with us to develop a fairer, clearer, and more successful negotiating strategy to get the MTA more money. For better of worse, this issue is becoming a defining moment for transit advocates in and out of the Legislature. In the spirit of fairness and cooperation, we ask for a timely response to this letter.

Best wishes,

Richard Brodsky

Michael Benedetto

Michael Benjamin

Jonathan Bing

James Brennan

Marcos Crespo

Jeffrey Dinowitz

Carl Heastie

Andrew Hevesi

Micah Kellner

Rory Lancman

Joseph Lentol

Margaret Markey

Grace Meng

Joan Millman

Audrey Pheffer

Peter Rivera

Linda Rosenthal

Michael Spano

Fred Thiele Jr.

Matthew Titone

Carmen Arroyo

Vivian Cook

Rhoda Jacobs

The only signatories who do not represent New York City districts are Brodsky and Spano, who represent Westchester, and Thiele, who represents Suffolk.

East Side electeds continue to express support for the MTA and NYCDOT's redesign of First and Second Avenues while pushing for a more complete corridor. In exchanges with Streetsblog this week, they called attention, in particular, to the absence of plans for separated bus lanes along the corridor.

Assembly Member Jonathan Bing, who represents the Upper East Side and East Midtown, praised the redesign, "even if it's not everything that we asked for." The release of a specific design, he said, "brings into sharper focus the major benefits we will get." But Bing didn't hide his displeasure with the bus lanes: "I was one of the signatories to a letter a couple of weeks ago calling for segregated lanes and obviously anything that does not comport with the terms of the letter is disappointing."

Two years ago, a bill sponsored by Bing enabling the use of bus-mounted enforcement cameras fell short in Albany, a measure which he says is now urgently needed. "This current decision makes it even more important that we push for cameras, as that's going to be pretty much the only means of enforcement," he said.

State Senator José M. Serrano, whose district stretches from the West Bronx down to East Harlem and Yorkville, didn't single out the corridor's design itself but called on DOT and the MTA to implement the project equitably. Many improvements are on hold in Serrano's district pending Second Avenue Subway construction.

"This new service will improve the commute for East Side residents from the Lower East Side, all the way north to my district in East Harlem," he said. As such, Serrano "would like to emphasize how important it is that the design be completed in full throughout the corridor... We must ensure that, wherever possible, equal facilities and infrastructure -- such as the separated bike lane or the red painted bus lane -- are provided to the entire corridor."

Assembly Member Micah Kellner, who also represents the Upper East Side, told Streetsblog he's excited about the project, particularly after some of his concerns about station placement had been addressed. Even so, he isn't satisfied. "My remaining concern is the lack of physically separated bus lanes," Kellner said. "While I appreciate the need to address the needs of businesses that rely on deliveries," he added, "the primary goal of SBS must be to provide mass transit consumers with uninterrupted, speedy service along the First and Second Avenue corridors -- this should be the priority over all other small inconveniences."

With regards to separated bus lanes, Manhattan Borough President Scott Stringer didn't stake out a position but restated his belief that the current designs are not yet final, saying that he will be "working closely with members of the East Side Community Boards and the Department of Transportation" to keep communication open and guarantee that "the final proposal balances the needs of the community and the logistical realities of these two corridors." Stringer was not a signatory of December's letter calling for separated bus and bike lanes. 

City Council Member Jessica Lappin, also an Upper East Side representative, agreed that "the most important thing is that we move forward with Select Bus Service," while standing by her position that the corridor should receive separated lanes for both bikes and buses.

Lappin noted that in many parts of her district, subway construction would leave much of Second Avenue without any improvements. "I can understand that they don't want to put in infrastructure that they have to take out, but we need infrastructure that works," she said. "I don't want people thinking that they're in a free-for-all zone when the barriers suddenly end." She called on the MTA and DOT to develop a solution to ensure that, even in construction zones, First and Second Avenue cyclists and pedestrians are safe and buses move quickly. 

The MTA and DOT both said they'll take the response from electeds into account. "We're encouraged by the feedback we've received so far, and we look forward to receiving additional input as the design process moves forward," an MTA spokesman said.

"We're excited by the innovative proposal we presented last week and will take into account the feedback we received at that meeting -- where the plan was generally well-received," said a DOT spokesman. "We also look forward to getting additional community input at next month's board meetings."

Add Micah Kellner's name to the MTA doomsday scorecard. Yesterday, the Upper East Side Assembly member came out in favor of increasing license and registration fees for New York drivers as a transit revenue booster.

Under the Kellner plan, which originated with the non-profit Citizens Budget Commission, motorists would pay flat fees, rather than the weight-based assessments recently proposed by city comptroller William Thompson. Kellner says the new fees would raise $550 million a year -- a little more than the income projected from tolls on the now "free" East River bridges.

On that note, Kellner's press release includes this odd passage:

"Early indications suggest that the Ravitch Commission will announce Friday that tolls on the East River bridges are the centerpiece of their recommendations. This is a proposal that has been recycled time and again in each and every fiscal crisis but has always failed to gain the necessary support to be implemented. I don’t know why they think this time will be any different, but I am hopeful that the Governor’s office will look to other ideas like this one and reinstituting the commuter tax as he constructs his Executive budget."

Could it be that the idea of imposing East River bridge tolls is "recycled time and again" because it's a proven and equitable course of action? Rather than take a stance for or against, Kellner characterizes new tolls as a non-starter -- as if, as an elected state representative, he himself is in no position to influence the issue.

Sounds all too familiar.

Now that Paterson has announced his support for the plan, a recent letter to a constituent seems to indicate that Kellner has had a change of heart. Rather than oppose the bill as introduced, Kellner says he will support it while "working to make it an even better bill."

The assemblyman's sticking points include exemptions for the disabled, whether or not they own a car; exemptions for hospital patients; surcharges for drivers who don't have E-ZPass; and "fee equity for New Jersey drivers."

The full text of the letter follows the jump.

Thank you for contacting me to let me know of your support for the congestion pricing plan as recommended by the New York State Traffic Congestion Mitigation Commission on January 31, 2008.

I agree with you on this important issue, and I look forward to voting for the Governor's congestion pricing bill when it comes to the Assembly floor.

I am particularly proud that three changes that I testified in favor of made it into the draft bill that has been submitted to the State Legislature: 1. Residential parking permits; 2. Dedication of any and all congestion pricing revenue to funding capital improvements for our mass transit system, and; 3. Exemptions for people with disabilities who have DMV-issued disabled license plates.

Until the bill actually comes to a vote, I will be working to make it an even better bill - because although we need congestion pricing, there are still significant problems.

*People with Disabilities*

The bill contains an exemption for drivers with disabled plates, but does not include exemptions for people with disabilities who use accessible taxis or those people with disabilities who have SVIP placards (about 5000 New Yorkers have these placards; they are issued by the New York City Department of Transportation to people with disabilities who do not own their own cars but are frequently transported by another person, usually a family member).

*Patients at Hospitals Within the Zone*

The bill contains no exemptions for drivers traveling to and from Manhattan hospitals, several of which are located on the Upper East Side.

*Low-Income Drivers*

I believe that a tax credit for low-income drivers is appropriate and in line with New York's tradition of progressive taxation (those who can least afford to pay should not be taxed as much as those who can afford to pay more). $8 is more of a burden for a family that is low-income than for a family with a larger household income because low-income drivers are less like to have EZ-Pass. I believe it is unfair to subject these families to an additional $1 surcharge for not having EZ-Pass, on top of other related penalties.

*New Jersey** Needs To Pay Its Fair Share*

I also believe that we need to see more efforts towards fee equity for New Jersey drivers. The current plan exempts New Jersey drivers from paying the congestion pricing fee, leaving them no incentive to park their cars and take mass transit. Out of state drivers should not be getting what amounts to a discount and leaving New Yorkers to pay the lion's share of this tax.

Last year, I sent a survey to all registered voters in my district and I compiled a report from those findings. In total there were over 400 respondents. 64 percent of residents indicated their support for some form of congestion pricing, but most had reservations about some of the details of the plan, including many of the issues I discussed in this letter. My report as well as my corresponding testimony in front of the Commission on January 16, 2008 are available for you to read on my Assembly website (go to www.assembly.state.ny.us
<http://www.assembly.state.ny.us/> and click on my name, there are links to the testimony and report there).

Congestion pricing is an important and complicated undertaking, but one that I believe is incredibly important for the environmental, health, and economic future of the entire region. I'm glad to have your support on this important issue.

Thank you again for contacting me. Your opinions and feedback are important to me and I hope that you will continue to share them.

Very truly yours,

Micah Z. Kellner
Assembly Member

First, the Times quotes Governor Paterson, following his sit-down with Mayor Bloomberg yesterday afternoon:

"The mayor, I was surprised, is very compassionate about congestion pricing - he really seems to have a thing for congestion pricing," Mr. Paterson told the crush of waiting reporters. "Is that a good idea? Can it actually be implemented?" he continued, promising to review what he called Mr. Bloomberg's "very persuasive argument" with Albany leaders. "We don't have much time to make a decision, so you won't have to wait long."

Meanwhile:

Assembly Speaker Sheldon Silver said his "members believe that they would be making the wrong vote" if they supported the congestion pricing plan. "It's not all of them," he added, "but it would be a majority."

That majority would apparently include formerly undecided Upper East Side Assembly Member Micah Kellner:

[Kellner] said Mr. Bloomberg should not count on the governor to whip up support in the Assembly. "I doubt his first act as governor is going to be trying to shove this down our throats," he said.

"The message this bill sends to the people of the city of New York is if you're poor, if you don't have access to a credit card, if you don't have access to a bank account, you should pay more," Mr. Kellner said.

Also, a tipster sends this account of a recent Queens Community Board 1 meeting, featuring an epiphany from City Council Member Peter Vallone, Jr.:

Vallone said he had been pressured by the Mayor and the Speaker and the DOT Commissioner the night before at a dinner held specifically to persuade him to vote for CP. He asked for the CB to vote either for or against by a show of hands. The CB voted unanimously against it. He asked the non-CB voters in attendance to show who was in support by a show of hands. Only four (all TA members) out of approximately 30 raised their hands. He then declared he was against it.

And we have a couple of reports that a pricing poll on the web site of Queens State Senator Frank Padavan was reset after the votes began trending in favor. Seriously, now.

In related news, earlier today Bloomberg and MTA chief Elliot Sander announced a new express bus route from Throggs Neck to Lower Manhattan if "and only if" pricing is approved. The route would pick up from the end of the current BXM-9 route, offering Bronxites a one-seat ride to Battery Place.

The report is based on residents' responses to a detailed survey; 64 percent said they supported pricing (I highly recommend the survey data, which begins on page 12). Reading it feels like a quick whiff of fresh air if you're used to choking on the fumes spewed by Anthony Weiner, et al. But the sensation doesn't last long. Even though Kellner declines to dismiss pricing out of hand, he requests so many adjustments that it's fair to ask whether any real-world plan could secure his support.

The report states that "none of the five options outlined in the [TCMC] report constitutes a viable plan," then goes on to suggest alterations that would make pricing palatable. A satisfactory pricing plan, it says, would:

• Guarantee all revenue goes toward the MTA's capital budget
• Include a residential parking permit program
• Deduct tolls on MTA or Port Authority bridges from the congestion fee for New York State vehicles (out-of-state drivers would pay in full)
  
• Set the northern boundary at 72nd Street, not 86th Street (because it's a major commercial corridor) or 60th Street (which would lead to a park-and-walk effect)
  
• Add exemptions for disabled people and those making trips to the hospital
• Dump the "regressive" taxi surcharge in favor of one on "black cars" (luxury livery vehicles)

The full list is quite long. Some of the concerns have been subsequently addressed. Other objections seem like the same type of straw man argument advanced by the most ardent foes of pricing. Given a likely scenario in which the TCMC's final recommendations incorporate some but not most of these suggestions, how will Kellner and others straddling the fence cast their lot?