Streetsblog New York City

The garbage truck driver who struck and killed two British tourists in Manhattan last February was convicted on two counts of second-degree murder yesterday.

Auvryn Scarlett was off his epilepsy medication the night he had a seizure behind the wheel on W. 35th Street between Fifth and Sixth Avenues. The truck jumped the curb and ran over Jacqueline Timmins and Andrew Hardie, who had come to the city from Yeovil in southern England to celebrate Valentine's Day. According to reports, Timmins was decapitated and died at the scene; Hardie died later at Bellevue Hospital. The couple had six children between them.

Scarlett was also convicted of assault, presumably for injuring a third pedestrian, Abayomi Henderson, who seconds earlier had walked around the couple as they strolled down the sidewalk.

While it's not unheard of for a sober city driver to be charged for killing someone -- in cases of drag racing, for instance-- it is, as Streetsblog readers know, extremely rare, and even more so for prosecutors to secure a murder conviction.

"I can't recall any prior instance in which a killer driver who wasn't intoxicated was convicted of murder," says Charles Komanoff, long-time pedestrian safety advocate and author of Killed By Automobile, "and that includes many of the roughly 200 fatal instances since 1990 when the driver mounted the sidewalk."

Komanoff cites several such cases in which drivers whose negligence resulted in death were given a slap on the wrist, or were subject to no legal sanctions at all. Stella Maychick, mistaking the gas pedal for the brake, killed six people and injured two dozen in Washington Square Park in April 1992: no charges filed. Isaac Chehebar, joy-riding at twice the speed limit on Ocean Parkway, killed sisters Inna and Svetlana Shetman and maimed their mother Rima Shetman in April 2001: plea-bargained by Brooklyn DA Charles Hynes to four months. And most recently, delivery driver Chao Fu, leaving his van with the engine running and the gear in reverse, killed toddlers Diego Martinez and Hayley Ng in Chinatown last January: no charges filed.

The decision to prosecute Scarlett for manslaughter and criminally negligent homicide was announced almost immediately. "Apparently, he stopped taking his medication," an NYPD spokeswoman said the day after the crash. "It was a conscious decision, so he's being charged." Why Auvryn Scarlett and not Chao Fu? Local coverage of the trial was scant, but a BBC report offers some insight:

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Two pedestrians were killed in Brooklyn over the weekend. Saturday evening, 66-year-old Fred Wilson took the family dog and went out for ice cream. He had only walked a short distance from his Gerritsen Avenue home when he was hit by an unidentified driver. He died soon after at Kings County Hospital.

Earlier in the day, 9-year-old Joshua Ganzfried was walking to temple in Williamsburg when, at Bedford Avenue and Wallabout Street, he was struck by Novella Bilkerdyk, a habitual traffic offender with a suspended license. While she stands to receive a slap on the wrist for being behind the wheel, Bilkerdyk, like Fred Wilson's killer -- like hundreds of other city drivers before them -- reportedly faces no punishment for taking a life.

These deaths didn't take place in Manhattan, but there is little if any doubt that if they had the legal ramifications for each driver -- none whatsoever -- would have been the same. As proven time and time and time and time again, Manhattan motorists involved in deadly pedestrian and cyclist collisions -- as long as they're sober and don't flee the scene -- are as a matter of course found not guilty on the spot, their victims condemned to death and, conveniently for the driver, police and prosecutors, eternal silence.

Tomorrow, for the first time since 1974 and only the second time since 1941, Manhattan voters will choose a new district attorney. The candidates hoping to succeed Robert Morgenthau -- Richard Aborn, Leslie Crocker Snyder and Cy Vance -- have all promised to approach traffic crime as a serious public threat, worthy of investigation and prosecution. The deterrent effect of such a turnaround, as drivers learn that serious "accidents" come with commensurate consequences, should be augmented by measures each candidate has promised to enlist the aid of NYPD and toughen penalties for gateway crimes like speeding. With overall road deaths and pedestrian fatalities on the rise (292 and 147 in 2008 citywide, respectively), and the notorious "Rule of Two" still the guiding principle of traffic law enforcement, a reinvigorated DA's office with a progressive traffic justice agenda will be critical to making Manhattan streets safer.

We kicked off our coverage of the DA's race with a March interview with Leslie Crocker Snyder. At the time Snyder admitted that she was no expert on traffic issues, but promised to learn more. Since then, following a debate organized by Transportation Alternatives (which Snyder did not attend), she has followed Aborn and Vance in releasing a transportation safety platform plank. Aborn was the first to take that step, and by most accounts his performance at the June forum, and his subsequent statements, have shown him to have the most nuanced understanding of the unique perniciousness of traffic violence.

Make no mistake, however: As Streetsblog readers have noted, the mere fact that traffic justice has emerged as an issue in this race is a milestone. The battle is far from won, but safe streets advocates at the very least have Manhattan's next district attorney on the record pledging to hold motorists accountable for their actions on city streets.

So, based on the accumulated evidence, we can safely say that the man who allegedly blocked the Ninth Avenue bike lane with his 7,000 lb. Ford Excursion, exploded in a fit of rage when cyclist Ray Bengen tried to ride by without getting crushed, and sped off after knocking Ray to the ground (severely bruising his leg and damaging his bike), is this guy:

Gus Gonzalez.

Here's how Streetsblog commenters crowd-sourced his identity:

• A commenter identifying himself as a lawyer obtained registration information -- name, address, and date of birth -- for the license plate pictured in photos of the confrontation. The car is registered to "Dispirito-Gonzalez, L."
  
• The DMV records matched information available through a reverse address look-up for a Laura DiSpirito, who resides in Flushing.
• Streetsblog commenters quickly found Laura DiSpirito's Facebook page (a "fan" of celebrity chef and Queens native Rocco DiSpirito!) where they came across photos of a man who resembles the SUV driver who allegedly doored Ray Bengen. Photo captions identify him as Laura's husband "Gus," leading to speculation that the alleged perpetrator is named "Gus Gonzalez." (As of this afternoon, the Facebook page is no longer online.)
  
• Streetsblog called Laura DiSpirito's home a few times to confirm this information, but to no avail. A CBS2 news crew visited the house in Flushing and also was not able to ascertain the driver's identity.
• Finally, we called the Manhattan DA's office yesterday afternoon and the communications staff confirmed that a defendant named Gus Gonzalez has a court date scheduled for July 13, when he will face a charge of third degree assault arising from an incident on May 21. That matches information about Ray Bengen's assailant which was already public.

It's worth mentioning here that third degree assault is a Class A misdemeanor, same as the criminal mischief charge filed against Ray Bengen. The message from Manhattan District Attorney Robert Morgenthau's office is clear: slapping an SUV with your palm in self-defense is tantamount to violently knocking someone to the pavement, injuring him, and driving away before the authorities arrive at the scene.

Which brings us to the reason we're posting Gus Gonzalez's name and photo. If you drive away from the scene of a confrontation after inflicting bodily harm on someone, and you get to preserve your anonymity, it's a license to act like a sociopath. Unless you are somehow identified and apprehended, you can go about your business and present yourself as someone who doesn't intentionally harm other people.

Even as this investigation unfolded, police did not tell Ray Bengen the name of his scene-fleeing assailant. That information usually doesn't come out until the case goes to court. Luckily, this time, there were witnesses and photographs.

The Manhattan DA's office is filing charges of criminal mischief against a cyclist, Ray Bengen, because he allegedly caused property damage to a multi-ton SUV in the process of getting doored by the driver. Too ridiculous to be true? Sadly, no. Here's how it happened.

Bengen, 63, was riding down the Ninth Avenue bike lane on May 21 when he encountered the Ford Excursion you see in this photo (curb weight: 7,190 lbs). A long-time city cyclist, Bengen had a green light and wasn't quite sure what to make of the vehicle in front of him. The car wasn't moving and its brake lights were off.

The bike lane on this stretch of Ninth Avenue is part of the city's first on-street protected bike path. At the 20th Street intersection, where Bengen came across the car, there's a left-turn bay for vehicles and an exclusive green phase for cyclists. The Excursion, as you can see below, was in the bike lane, not the left-turn bay.

Bengen rode slowly by on the left. Then he sensed the car start to move as he was passing. Alarmed, he slapped the side of the car with his palm in an effort to alert the driver as to his presence. A witness, who Bengen says has agreed to testify in court, snapped three pictures of what happened next. We'll let Bengen describe it:

The driver then went berserk. Talk about road rage. He threw open his door forcing me and my bike to the ground giving me some awful bruising down my leg. As I was now on the ground yelling at him that he's in a bike lane and was just about to run me over, he started to scream at me "Don't even think about it, don't even think about it." I'm still not sure what he meant by that. With me lying on the ground quite shaken, he suddenly stopped his assault and did something very unexpected. He moved away from me, picked up my bike where it was nearly underneath his truck. He then stood it up on its kickstand, and got back in the truck and drove away left into 20th street.

If the episode had ended then and there, one might assume that the driver, who remains unidentified, had counted to ten and wrestled his anger under control. But it looks like the guy may hold a grudge.

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Drivers who kill and maim pedestrians and cyclists should be subject to thorough investigation and, when warranted, vigorous prosecution, candidates for Manhattan District Attorney said today.

Cyrus Vance, Jr. and Richard Aborn addressed a small crowd of advocates, citizens and reporters at the Benjamin N. Cardozo School of Law near Union Square this morning. Leslie Crocker Snyder did not attend as planned, but sent senior staffer Richard Socarides (who arrived by bike) in her stead. All three candidates are Democrats, and all have worked for retiring DA Robert Morgenthau. (Republican Greg Camp recently joined the race.)

Though the event was billed as a "debate" on traffic justice, differences in the candidates' stated positions were subtle. Socarides was not as free to delve into specifics on policy, putting himself and Snyder at an obvious disadvantage, but both Vance and Aborn promised, if elected, to treat deaths and injuries inflicted by motor vehicle as seriously as those caused by other means.

Streetsblog Editor-in-Chief Aaron Naparstek set the tone of the discussion, citing the deaths of cyclist Rasha Shamoon and pedestrian preschoolers James Rice, Diego Martinez and Hayley Ng in opening remarks. None of the drivers involved in those fatalities, as Streetsblog readers know, were charged with a crime, and all were allowed to continue driving immediately afterward. As Cardozo Professor Jonathan Oberman, who moderated today's forum, would later point out, just 29 drivers in New York State have been indicted for criminally negligent homicide in the last 15 years. And while approximately 150 pedestrians are struck dead annually in New York City, Aaron noted, with some 15,000 injured, the day-to-day lives of an untold number of city residents are compromised by fear, decreased mobility, and other quality-of-life incursions imposed by dangerous drivers.

Before dangerous drivers become killer drivers, Vance said, police and prosecutors should intervene by, for example, charging urban speeders with reckless driving. Serious enforcement, he said, begins with curbing "potentially tragic" behavior. Aborn agreed, adding that he would actively push for state laws to apply graduated penalties to repeat offenses. Treating misdemeanors in this manner, Aborn said, would also act as a deterrent, making the motoring public more aware of its responsibilities.

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The Post last weekend noted some disturbing statistics relating to city drunk driving prosecutions. Out of 10,000 arrests last year, according to the state Division of Criminal Justice Services, 6,000 cases worked their way through the courts, with just 187 offenders receiving jail time. Further tarnishing DA Robert Morgenthau's record on traffic justice, Manhattan was the "most lenient" on those convicted of DWI -- with just 2.8 percent landing in jail -- and also had the city's lowest conviction rate at 75 percent. (The state conviction rate, the Post reports, is 95.6 percent over the last three years.)

Advocates, lawmakers and families of drunken-driving victims said the shockingly low number of jail sentences shows courts go too easy on offenders and do little to discourage recidivism. The claim is bolstered by state data showing 17 percent of arrested drunken drivers in 2008 had already had a DWI arrest in the past five years.

"Statistics seem to show that all too often, there is no effort to put these people behind bars," said state Sen. Craig Johnson (D-LI).

The numbers alone are startling enough, but the implications for traffic justice in the city are even more grave. As we've learned, it took a mammoth effort to get Albany to approve tougher penalties for drunk drivers, though such behavior had decades before come to be considered taboo among Americans at large. Now, as advocates and prosecutors in other jurisdictions are taking the next steps -- working to strengthen penalties against deadly drivers who aren't under the influence while vigorously prosecuting those who are -- the mindset of New York City enforcers apparently remains entrenched in the past.

When being caught driving drunk in pedestrian-populated New York City still means a slap on the wrist and a pat on the back, how long before we can expect justice for those injured and killed by drivers whose negligence isn't abetted by alcohol?

Having observed New York City traffic enforcement pretty closely these last three years as editor of Streetsblog, I can safely offer the following advice to would-be murderers: If you ever need to kill someone in New York City, do it with a car.

As long as you are sober and licensed, you can go ahead and run over a 4-year-old and his babysitter walking in the crosswalk and drive off with nothing more than a failure-to-yield summons. You can plow your 2008 Ranger Rover into a bike commuter at a busy intersection and count on the NYPD only to interview the passengers in your vehicle, your buddies, before closing the case and letting you drive home despite numerous prior convictions on your driving record. You can rip down the narrow streets of Lower Manhattan at 60 mph, kill a woman, flee the scene, refuse to take a Breathalyzer test and get a plea deal for a mere eight weekends in jail because the victim happened to have a couple of drinks before she got in the way of your speeding Mercedes SUV. You can even let your van slam into a class of preschoolers walking on the sidewalk with their teachers, kill two of them, traumatize the rest, and be assured that the NYPD, the District Attorney and the local media will treat the case not as manslaughter or negligent homicide, but as an "accident."

When a construction crane falls or a New York Giants wide receiver accidentally discharges his gun, New York City's law enforcement community flies into a frenzy of justice-seeking. But when the killing is done by a sober, licensed driver, you can pretty much hear crickets chirping at the District Attorney's office. Though the total number of traffic fatalities and injuries has declined in recent years, for the friends and families of the 271 people killed by automobiles on New York City streets in 2007, the concept of "traffic justice" was virtually non-existent.

With Manhattan's 89-year-old District Attorney Robert Morgenthau finally stepping down, this year's campaign to succeed him is a great opportunity to make sure the next DA is committed to doing a better job of protecting New Yorkers from reckless and negligent drivers. Streetsblog met with Manhattan District Attorney candidate Leslie Crocker Snyder to learn more about where she stands when it comes to traffic justice.

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Though Snyder acknowledged that she has "never been an expert in traffic-related issues" she said the horrific killings of preschoolers Diego Martinez and Hayley Ng in Chinatown have brought these issues to her attention and she is "learning more."

She believes the Manhattan DA's office has become "stale and reactive" and non-responsive to community concerns with the same man at the helm for 35 years. Rather than ignore traffic fatalities as Morgenthau has done, Snyder would bring killer-driver cases before grand juries. "I would want a grand jury to know the law of criminally negligent homicide, vehicular assault and reckless endangerment," she said.

Even when the law prevents her from pursuing criminal prosecution, Snyder said, "I would meet with the families. I would hear their grief as a mother" and, at the very least, explain to them what her office can and can not do for them. "You have to be a human being and acknowledge that these families must be going through hell."

Snyder said that the biggest traffic safety complaint she hears from community leaders these days is not about reckless motorists but "bicyclists being dangerous" and "messengers running us over." If she is elected DA, she invites livable streets advocates to educate her on the issues and "meet with me regularly and make sure I'm staying on top of it."

Here is an edited transcript of my interview with her:

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Yesterday the Department of Buildings released a report faulting improper rigging in the March 2008 crane collapse that killed seven people on 51st Street. The rigger and his employer were indicted in January on charges of manslaughter, criminally negligent homicide, assault and reckless endangerment, City Room reminds us -- the result of a vigorous response from Manhattan District Attorney Robert Morgenthau:

The collapse, and another fatal crane accident three months later, led to a series of investigations by Mr. Morgenthau's office and the city Department of Investigation that exposed corruption and incompetence in the building agency’s Cranes and Derricks Division and led to several arrests.

That inquiry, as well as the death of two firefighters at the former Deutsche Bank tower, exposed missteps by the Buildings Department and other city, state and federal agencies and led to reforms and sweeping changes in how the city regulates and oversees construction.

Meanwhile, Morgenthau's office has sat on another case of deadly on-the-job negligence: the restaurant van driver whose three-ton vehicle killed two young children in Chinatown this January after he left it double-parked and idling. The driver could have prevented that fatal collision simply by turning off the ignition and setting the emergency brake, a far easier task than rigging a 22-story crane.

If Morgenthau's office should decide to pursue charges of criminal negligence in this case, it could help set an important precedent: that drivers should be expected to exercise greater caution in dense urban areas where their actions carry disproportionate risk.

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On the morning of January 22, Diego Martinez and Hayley Ng were walking with their preschool class on East Broadway when an unattended delivery van jumped the curb in reverse and killed them. The three-ton vehicle had been left double-parked and idling by its operator before it backed onto the sidewalk with deadly force. To date, Manhattan District Attorney Robert Morgenthau has taken no action to prosecute the driver.

About 70 New Yorkers joined the families of Hayley and Diego today and called on the DA to convene a grand jury to investigate the case. Gathered outside the DA's office in Lower Manhattan, they made an impassioned plea for justice.

"I cannot understand why the Manhattan District Attorney refuses to prosecute," said Hayley's cousin, Lauren Ng, on behalf of the victim's mother, May Ng. "Accidents happen, but someone still bears the burden of responsibility. What kind of city is this that does not protect its most vulnerable citizens?"

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We're re-posting the notice for this demonstration, which is back on for Monday after being postponed due to the snowstorm earlier this week. Note that the rally is on for noon, not earlier in the day as previously scheduled.

The families of Hayley Ng and Diego Martinez, the two preschoolers killed by a van while walking with their class on a Chinatown sidewalk last month, are organizing a rally calling on Manhattan DA Robert Morgenthau to indict the driver who left the van unattended, double-parked and idling.

The victims' families are asking New Yorkers concerned about traffic violence to join them in front of the DA's office at One Hogan Place, Monday at noon. "We want everybody to stand behind this cause," said Wendy Cheung, Hayley Ng's aunt. "We don't want this to happen to anyone else. We need justice here."

It's not too late for Morgenthau, who has announced that he will not seek re-election, to start holding reckless and negligent drivers accountable. "We're hoping for the DA to set a precedent and prosecute this person or convene a grand jury," said Cheung. The van driver has not received so much as a summons and still carries a valid license. Morgenthau's office told the victims' families that the decision whether or not to prosecute would be made by the end of February, but so far, says Cheung, they are still waiting.

"They claim their hands are tied," she said. "We need to keep pressure on the DA and untie their hands. This was not an accident. If you step into a vehicle, you are responsible for that vehicle and the people around you."