Photo: Daily News

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:

Summing up the prosecution case at New York Supreme Court, assistant district attorney Chris Ryan said Scarlett had shown a complete disregard for the safety of others.

Driving six days a week for the refuse haulage company, he knew he could have a seizure at any time "on some of the busiest streets on earth".

He said: "It is like playing a game of Russian roulette, only instead of pointing the gun at yourself, you point it at other people. And if someone dies -- that is murder."

The Scarlett prosecution seems to hinge on the "conscious decision" not to take his seizure medication, making it a reverse DUI case of sorts. It could also be that the incident was captured on video, which prosecutors showed to the jury, or even that the victims were living a New York fairytale -- lovebirds on a Valentine's Day stroll -- the instant they were brutally killed. Whatever factors were at play in determining whether to bring charges (Streetsblog has a message in with District Attorney Robert Morgenthau's office), Transportation Alternatives Executive Director Paul Steely White questions how the Scarlett case could differ so greatly from that of other pedestrian fatalities.

"Don't people make a conscious decision to speed or a conscious decision to turn without yielding?" says White. "Are we saying that people are somehow unconscious when they're breaking the law? The bottom line is that people are responsible for their own behavior, especially when they're driving a multi-ton vehicle. Scarlett's actions were no more deliberate than the majority of negligent motorists who routinely get off scot-free."

Komanoff agrees: "It would be a positive sign if [Scarlett's prosecution] signaled the end of the Manhattan DA's habitual coddling of killer drivers. But if it's back to business as usual after this case, then one is left wondering why one driver's failure to take medication is treated more harshly than the failure of other drivers to refrain from gross, fatal negligence."

One hopes that under future DA Cy Vance, holding killer drivers accountable will indeed become the norm. Unfortunately, with pedestrian deaths on the rise, safe streets advocates will probably have their first indication not long after Vance takes office in January.

Auvryn Scarlett will be sentenced for the murders of Jacqueline Timmins and Andrew Hardie on October 15.

L-r: Manhattan DA candidates Richard Aborn, Cy Vance and Leslie Crocker Snyder

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.

Last week, Bengen received a phone call from Detective Christopher Cipolli at the 10th Precinct. Officers from the precinct had arrived at the scene promptly following the altercation, Bengen says, and Cipolli had been very helpful during the investigation that followed. So it was with an apologetic tone that the detective informed Bengen that he had to come down to the precinct on Friday. The reason? Because the Manhattan DA had filed charges of criminal mischief against him. (The DA's office is also pursuing assault charges against the SUV driver.)

"I had to go through the very humiliating process of being handcuffed and put into an interview room -- locked and barred -- for an hour or so," Bengen recalled. After a fingerprint check, Bengen was released. He has a date in Manhattan criminal court set for July 14. The driver will appear on the 13th.

The Manhattan DA's office could not identify the prosecutor who filed the charge against Bengen. When we asked about the basis of the criminal mischief charge, a spokesperson said that when Bengen appears in court "there will be more details." The offense of criminal mischief entails causing property damage of $250 or greater, so presumably the prosecutor will contend that Bengen "recklessly" took aim at a 7,000-pound SUV. Criminal mischief is a Class A misdemeanor with a maximum penalty of 12 months in prison.

We'll be keeping tabs on this case as it moves to court. According to Bengen's attorney, Mark Taylor, the accusations against his client shouldn't hold up. "There’s no basis for the charges against Ray -- it’s clear that he was acting to protect his own life," Taylor said. "It’s unfortunate that the DA is choosing to prosecute this case."

(l-r): Richard Aborn, Cyrus Vance, Jr., Richard Socarides, Jonathan Oberman. Photo: Brad Aaron

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.

Aborn stressed the value of education -- not only of the public, but also of juries and prosecutors. Aborn said he believes that the "rule of two," a commonly applied standard that requires drivers involved in a crash to be suspected of at least two simultaneous infractions before criminal charges may be brought, is "ready to be tested" in court. (Though he added that, in most instances, finding multiple violations should not be a problem in the first place.) Aborn said prosecutors should not be "afraid" to try to prove criminal negligence, nor should they "overstate" the burden of proof to juries. Both Vance and Socarides agreed that the "totality of circumstances" -- a broader standard -- should be considered in all cases.

Aborn also took issue with the term "accident" to define all traffic collisions. A former president of the Brady Campaign to Prevent Gun Violence, Aborn said he would take the same approach to crashes as that organization does to gun-related injuries and deaths. Leaving a loaded gun unattended is no longer considered a blameless "accident," Aborn said, and drivers should be held to a similar standard of care.

During the audience Q&A session, the two candidates and Socarides were quizzed by Charles Komanoff (on hand with freshly-printed copies of "Killed By Automobile") on the use of event data recorders. The motor vehicle equivalent of a commercial airliner's "black box," the recorders are now commonly installed in passenger vehicles, though their use in crash investigations is almost unheard of. Vance said he would consider such information "critical," and would issue subpoenas, if needed, to acquire it. Equating auto collisions with airline crashes, Aborn said recorded vehicle data should be seized in "every single incident," not just to determine blame, but to understand causality with the aim of preventing future deaths and injuries.

Christine Berthet of the Clinton/Hell's Kitchen Coalition for Pedestrian Safety (CHEKPEDS) asked if, as district attorney, the candidates would direct NYPD to treat crash sites as crime scenes, with vehicles impounded and drivers detained for questioning. (Berthet referred to a hit-and-run in Hell's Kitchen wherein the driver, though identified, was not returned to the scene, nor was the vehicle held as evidence.) While the candidates and Socarides agreed that vehicles should be impounded and witnesses and drivers thoroughly interviewed, they were circumspect on the issue of detention. Even in cases of death, Aborn said, criminality is not a given, and detaining a driver amounts to an arrest. However, he said, as DA he would assign an on-call prosecutor vested with the power to determine if further investigation is warranted. Both Aborn and Vance said vehicular crimes prosecutors should receive specialized training.

Finally, Mary Beth Kelly, widow of cyclist Dr. Carl Nacht -- killed in 2006 by an unrepentant NYPD tow truck driver whose license was suspended for three months -- asked who among the candidates would be willing as district attorney to wage a "full court press" for traffic justice, from prosecuting first offenders and fighting for changes in red light camera legislation and other laws to pushing for physical street improvements. Though New York enjoys relatively low crime rates, Kelly said, the city is "still scary" for pedestrians and cyclists.

Noting that annual vehicle-related fatalities now rival the number of murders committed in Manhattan, Aborn pledged to take the battle to Albany, where legislators, he said, need to be "educated." For his part, Vance promised to work with city agencies, the City Council, and public advocates on street design and other issues.

As for Albany, Vance said, "A full court press is required."

DWI Killer Tenzing Bhutia got two years for the 2007 death of Julia Thomson. Photo: Daily News

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?

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.

* * * * *

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:

Aaron Naparstek: We see a lot of cases in New York City where motorists are killing pedestrians and cyclists and basically just being put back in the driver’s seat and driving away with little more than a failure-to-yield summons. What can be done to change that?

You have to be a human being and acknowledge that these families must be going through hell. Why wouldn’t you meet with them and explain what your office is doing?

Leslie Crocker Snyder: I think a lot can be done. This issue fits into my whole theme which is that this has been a great office -- I was a member of it some years ago as a young assistant DA -- but it’s gone completely stale and reactive as opposed to proactive.

Frankly I really haven’t spent a lot of time on traffic issues, but they are important. I’m hearing over and over again that messengers are running us over, bicyclists being dangerous, pedestrians are having a lot of issues and I didn’t realize until fairly recently how important this is to people and how much of an issue it is.

Now, I know that you are concerned about the Chinatown situation. Obviously I don’t know all the facts, but the obvious question is always is there any criminal liability when something like this happens. So, there are several things that I would do if I were DA. One, I would present all of the evidence to a grand jury, and that way all sides could be heard. I can’t tell you that I have a conclusion about whether there is criminal liability because it can be very difficult to prosecute someone criminally in this situation. But I’d certainly want the grand jury to know the law of criminally negligent homicide, vehicular assault, reckless endangerment, and ultimately of course we would also know as DAs whether we felt that it was criminal liability. But the reason to present it to a grand jury is, number one, everyone is heard, which is extremely important, and number two, if there is no criminal liability as found by a grand jury, the grand jury has the ability to issue an extensive report to establish the issues in case like this.

AN: We should back up to one thing that you said at the top. You mentioned that you hear a lot about bike messengers endangering pedestrians. Do you hear more complaints about cyclists violating the law than motorists?

LCS: Thus far I've heard more about bikes.

AN: So, what do you hear?

LCS: I’ve heard that there’s a general feeling in a variety of communities that bicyclists just don’t follow any rules. They do what they want and are putting pedestrians in danger. It really hasn’t gone beyond that point but certain communities feel that it’s a major issue. Now what can the DA do about it? Again it depends on the situation. We don’t enforce traffic, we don't give summonses, so part of it would be working with the police department to make certain that issues like that are taken seriously.

Second, if a messenger or delivery person hits somebody the DA has to take that very seriously and do something about it. You have to send a message, as is happening in Nassau County where, for example, if you have that extra drink and you’re stopped you face dire consequences. So, people should realize the Manhattan DA is going to take a great interest in both pedestrian-vehicular accidents and pedestrian-bicyclist accidents.

If there's a death that’s questionable in Manhattan the DA should at least look into it and see whether there's something that can be done about it.

AN: Looking at your platform, you talk about protecting New Yorkers from terrorism, gangs, violent crime and domestic violence but I suspect that, statistically speaking, there’s a better chance that a Manhattanite will be hurt or killed by a stranger in a car than a stranger with a gun. Why don’t we see traffic justice as an issue on your web site?

LCS: I think it’s something I would discuss more in the future because, frankly, I’m just learning more about it over these last few months. My expertise is more in the areas of rape, murder, white collar crime, organized crime and drug-related issues. I’ve never been an expert in traffic-related issues but I’m learning more and I will be reading your blog because, obviously -- the Chinatown incident. Anything like that where kids die and you’re a parent -- I guess you don’t have to be a parent -- but as a parent it’s just the worst thing.

The point is my mind is open. I'm learning something I really didn’t know that much about. But I certainly know about prosecuting criminals and I know what a DA can do in terms of presenting situations to a grand jury. I also know that you have to be a human being and acknowledge that these families must be going through hell so why wouldn’t you meet with them and explain what your office is doing one way or another? Even if you can’t prosecute criminally, explain it to these poor people.

AN: Let me run a specific case by you to get a sense of how you would handle it as DA. Last August, a 31-year-old cyclist named Rasha Shamoon was struck and killed at the intersection of Delancey and Bowery. She was a regular bike commuter, known for being responsible and safety-conscious. Her bike was plastered with reflective tape and she wore a helmet. She was hit by a 21-year-old man driving a borrowed 2008 Ranger Rover who had already racked up six prior traffic convictions and one personal injury case in the three-and-a-half years he'd been legally driving. According to the police report [download it, it'll make your blood boil], the only witnesses interviewed were the driver’s friends, the two passengers in the Range Rover. Based on their testimony that Shamoon had run the red light at this very busy, dangerous intersection the police assigned blame to the cyclist. As Rasha Shamoon lay dying in a hospital bed, the police put the driver back in his Range Rover, he drove home and that was that. DA Morgenthau didn’t have anything to say about it and to the NYPD the case was closed. I spoke with the family and they feel a real injustice was done in the way their daughter’s death was treated by the authorities. I'll just add that while we don't know what really happened out there, as a bike commuter myself, I just find it hard to believe that an experienced cyclist would run the red light at Delancey and Bowery, particularly at night. It seems profoundly wrong for the police to have assigned blame to the victim having only interviewed the passengers of the car that did the killing.

As soon as I hear that people are blaming the victim -- I hate that. Let’s look at the defendant’s conduct.

LCS: Without knowing all the facts, I can’t tell you exactly what I would do. I would certainly want to investigate any death. Certainly whatever reports the NYPD did would be highly relevant, but I would conduct an independent investigation. Some responsible DA in my office would look into it and I’d want a personal report.

If there's a death that’s questionable in Manhattan the DA should at least look into it and see whether there's something that can be done about it. I mean maybe the answer would be there isn’t anything that can be done criminally, but the answer might be “Yes, there is.” Also I'm extremely disturbed by this person’s driving history, as you describe it. At the very minimum maybe there's some reckless driving or reckless endangerment charge. You don’t want someone driving who has five moving violations. That’s an outrage.

AN: It is very difficult to get access to police reports on car crash cases. I can go and see in my neighborhood how many rapes and murders and robberies and car thefts there were -- it’s all in CompStat, it’s all on the precinct web sites…

AN: It often appears that law enforcement doesn’t want to pursue these traffic justice cases because the DAs feel like they’re not going to get a win, the state laws are stacked against the victim to some extent. We wrote about a case where a woman named Florence Cioffi was run down in Lower Manhattan by a guy named George Anderson. He was driving 60 miles an hour in a Mercedes SUV. He fled the scene. He eventually came back and refused to submit to a Breathalyzer test. The woman whom he hit was crossing the street, and she was also found to be intoxicated, so the Manhattan DA’s office chose to plead out the case -- let Anderson off with a charge of DUI and leaving the scene of the accident. Anderson got 16 days in jail, eight weekends. Again, Cioffi's family felt that this was profoundly unjust. What would you do there?

LCS: That seems outrageous on the face of it, but as a lawyer I have to say I really have to know all the factors. You're reading me a newspaper account. Assuming all those facts to be true then I think it sounds outrageous, but you have to know all the facts and you have to know what the applicable law is. So for example there might be situations which shock us where there's no criminal liability, where it’s a genuine accident. But the idea is the Manhattan DA, with something that seems that outrageous, should be doing everything to make certain that if there should be a prosecution, it’s done. It sounds awfully lenient to me, it sounds awfully inappropriate. If she was drunk but didn’t do anything that she shouldn’t have done, and this guy was drunk and killed her, why isn’t that a very serious crime? Why does her being drunk have anything to do with his behavior? So I’d have to know what was her behavior. Did it just turn out that she in fact had a high blood alcohol, I mean that’s totally irrelevant. It actually sounds something like the rape shield law.

AN: Can you remind us what that is?

LCS: Sure. I co-authored the rape shield law. It protects the victim from any sex crime from having to go into details about her prior irrelevant sexual history. So here, for example, are we putting the victim on trial? Why does the fact that the victim was drunk have any impact on how we treat the defendant, unless there's something else she did while drunk that I don’t know about from that article. To me, as soon as I hear that people are blaming the victim -- because that’s what happened in my early days as a prosecutor, especially in sex crimes, it was always blame the victim, put the victim on trial -- I hate that. Let’s look at the defendant’s conduct. What did this person who was driving drunk -- why was he given a deal like that? Maybe there's an answer, maybe there isn’t, but it doesn’t appear to be one on the face of it.

No charges have been filed against the driver responsible for the fatal China Chalet van crash. Photo: New York Times

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.

At Monday's rally outside Morgenthau's office, Jon Adler, a representative for the victims' families, explained that the legal standard for determining criminal negligence hinges upon what a "reasonable person" would be expected to do in a given situation. "A reasonable person driving a vehicle of that nature would -- if they had to double-park it -- turn it off," he said. "The man made a conscious decision to leave that vehicle running, and he accepted the risk. The consequences of two children dying from him accepting that risk -- he didn't even get issued a summons. There is nothing done by the DA in terms of enforcement to act as a deterrent to any other driver doing the same thing."

In a city where sidewalks are full of people, residents need the force of law to protect them from the risks that accompany the operation of multi-ton vehicles. "If you look around where this occurred, it occurred on a crowded Chinatown street, so you have to take that into consideration," said Peter Goldwasser, staff attorney at Transportation Alternatives. "It wasn't a rural country road."

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?"

The public servants who oversee the justice system seldom prosecute deadly drivers unless drugs or alcohol are involved, despite the human toll they exact. Traffic violence claims the life of a New Yorker, on average, every 36 hours, and vehicles injure more than 10,000 pedestrians and cyclists every year, according to DMV statistics cited by Transportation Alternatives. "We want our district attorney to prosecute dangerous and negligent drivers as aggressively as drunk drivers," said TA director Paul White. "The driver didn't mean to kill those children, but by not prosecuting, we're sending the message that it's okay to operate heavy machinery on the streets of New York without due care."

Relatives of Diego and Hayley say the DA's office has told them that their "hands are tied" in this case. But existing statutes for criminal negligence could be used to prosecute drivers in this set of circumstances, said Jon Adler, head of the Federal Law Enforcement Officers Association, speaking on behalf of the victims' families. "We cannot turn our backs and condone reckless driving," Adler said. "A reasonable person would turn off the vehicle. When you do that, it's a paper weight; when you don't, it's a killing machine."

Video: Elizabeth Press

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."

City Room is reporting that Manhattan District Attorney Robert Morgenthau will not seek re-election this year. Morgenthau, who will turn 90 this summer, has held the post since 1975.

His departure marks a changing of the guard and opens one of Manhattan’s plum elected posts for the first time in decades — a major draw in a year when the overturning of term limits has left many of the city’s ambitious younger politicians pondering their future.

This changing of the guard could also be a tremendous opportunity to make traffic justice an issue in the election of the next DA. Morgenthau's successor will replace the man whose office recently doled out a 16-day jail term to a speeding drunk driver who killed a woman and left the scene -- just one example of the cheapening of human life that livable streets advocates have, sadly, come to expect from the borough's top enforcer.

Even before today's news, Leslie Crocker Snyder had again thrown her hat in the ring. Here's hoping she and her opponents will give public safety on New York City streets the attention it sorely needs.

Relatives of Hayley Ng and Diego Martinez, two preschoolers struck and killed by a van in Chinatown on January 22, continue to demand justice from Manhattan District Attorney Robert Morgenthau.

On WCBS television this week, Hayley's aunt, Wendy Cheung, reiterated both families' call for citizens to contact Morgenthau's office and demand further action in the case. The driver, who left the van running and in reverse before it hit Hayley and Diego, currently faces no charges.

"We [are] pleading for everybody to call the DA's office ... and make a statement," Cheung said. "Tell them 'You can't forget this. We need to investigate this.'"

As has been pointed out by a Streetsblog commenter, Morgenthau last month brought charges against crane operators whose negligence, the DA's office contends, caused the deaths of seven people. On January 5, William Rapetti and his company were indicted on multiple charges of manslaughter, criminally negligent homicide and assault, stemming from a crane collapse last March.

According to New York State penal code section 125.10, "A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person." State code defines "criminal negligence" as follows:

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Said Jon Adler, a family friend and head of the Federal Law Enforcement Officers Association, to WCBS: "The China Chalet driver made a conscious decision to double-park a 9,000 pound vehicle with the engine on. Even if it's a misdemeanor, [the DA should pursue] something to charge this man [with] for making that decision to leave that vehicle on."

Asked about the status of the case, a spokesperson for Morgenthau's office told Streetsblog, "There is an ongoing investigation and beyond that I can not comment."

The spokesperson would not say whether the DA has been getting calls from the public about Hayley and Diego.

Seekers of traffic justice have their work cut out for them in 2009. Even as the City Council dismisses cries for help from victims and their families, January has already brought news of a nine-year-old run down by an unlicensed driver who may or may not be criminally charged, and a DWI pedestrian killer who got off with an unbelievable 16-day sentence.

In the case of the latter, at least, the Daily News reports that the victim's loved ones aren't taking it lying down. Recall that in January of last year, Florence Cioffi was struck and killed on a Lower Manhattan street by one George Anderson. Anderson, who was driving at 60 m.p.h., fled the scene in his Mercedes SUV, only to return some time later, when he refused to submit to a Breathalyzer test. Because Cioffi was also found to be intoxicated, the Manhattan DA's office chose to plead out the case, and let Anderson off with a charge of DWI and "leaving the scene of an accident." In addition to the 16 days in jail -- to be served over eight weekends -- Anderson will do 250 hours of community service and pay a fine of $350.

It should come as no surprise that Cioffi's fiance, William Mosca, does not feel justice has been done.

"It's a rich man's sentence," said Mosca. "Sixteen days for somebody who was doing 60 miles an hour, intoxicated [and] left the scene of the crime?"

Mosca, who wants the case to go before a jury and have the plea deal reversed, believes prosecutor David Hammer was more concerned about losing the case than getting justice for his fiancée.

"I kept saying we would prefer to see it go to trial. I truly believe he [Hammer] was convinced he couldn't win this case, and didn't want to have a mar on his record as losing a case," he said. 

Prosecutors and police tend to blame weak state laws -- and not without reason -- when it comes to soft pedaling cases of drivers who kill. But in this case it may be instructive to consider the crusade of Nassau County District Attorney Kathleen Rice, who was recently featured on "60 Minutes" for her success in trying DWI killers as murderers. While Rice, as you can see in the story, has already put at least two people behind bars with sentences commensurate with their crimes, 89-year-old Manhattan DA Robert Morgenthau and his staff continue to victimize the dead in the courtroom.

As for Alexander Aponte -- who, while driving with a suspended license, drove City Council candidate Michael Ricatto's campaign bus into Ibrihim Ahmed -- Streetsblog has a call in with the Queens DA's office to see what additional charges, if any, may be brought.

"He made a claim that he passed out, that he suffered a stroke," Thompson says. Smiley missed his initial court appearance because, according to his attorney, he was in the hospital.

As Smiley provides medical records to the authorities, Miller's parents, Ivan and Patricia, continue to wait it out from their home in Appleton, Wisconsin.

"To me it's a little, 'disconcerting' I think would be the term, that it takes so long," says Mr. Miller, speaking with Streetsblog before Thanksgiving. Some six weeks after Hope was killed, the Millers had yet to receive a report from the NYPD, for which they had to mail in $10. Miller says it took almost a month before they learned the results of Smiley's blood test -- negative for drugs and alcohol, according to police. Himself a science teacher, Miller doesn't understand how a relatively simple procedure could take so much time.

But Mr. Miller isn't angry. To the contrary, he goes out of his way to compliment the city agencies working Hope's case. The medical examiner, he says, was quick to inform them of Hope's autopsy results. And Miller clearly doesn't envy the job of New York police detectives, who he says have been very attentive.

"They're busy folks, I know," Miller says. "It wasn't that they weren't trying to help. It's just that whatever the channels are, they're just slow."

As of now, little else is known -- at least publicly -- about where the case is headed.

"What's happening," says Thompson, "is there is an investigation into what was actually happening when this woman was killed."

Once the Police Department concludes its work, the DA's office will decide what charges, if any, to pursue against Smiley.

"Initially it was aggravating," says Mr. Miller. "You wish it was faster, but I'm not in control of that. So that's the way it is.

"For me, it's hard," he adds, his voice breaking, "because I'd like to know."

If, however, you want to know how many people were hit by cars or where the most dangerous intersections are in your neighborhood, CompStat won't help you. Those numbers aren't there. And if you're looking for details of an incident in which someone was hurt or killed by a driver, your quest is likely to be frustratingly difficult, if not impossible. Even if you're a member of a New York City Community Board.

Ian Dutton knows this story well. After Hope Miller, 28, an aspiring actress from Queens, was killed on Houston Street on September 25, Dutton -- who serves on CB 2's Traffic and Transportation Committee and lives a block from where Miller died -- began making calls. According to media reports, the driver of the truck that killed Miller, 48-year-old Roger Smiley of Brooklyn, was charged with leaving the scene, operating a vehicle while impaired by drugs, and resisting arrest. He was not, however, charged with killing Miller. Dutton wanted to know why.

He started with Rita Lee, a senior advisor in Council Member Alan Gerson's office, who gave him a few phone numbers. Some of them didn't work anymore. When he got through to the office of New York County District Attorney Robert Morgenthau (left), Dutton says most the people he talked to were "outwardly dismissive." Claiming no record of an incident involving a Roger Smiley or Hope Miller, DA office personnel instructed Dutton to get an arrest number from the police.

Since the site of the crash is near the boundary separating the two, Dutton was then bounced between NYPD Precincts 1 and 6. It took ten phone calls to find someone willing to offer any help -- an officer at the 6th Precinct who told Dutton that, when a driver kills a pedestrian, a charge of homicide is brought if drugs or alcohol are involved. If the driver is sober, the offense merits a traffic ticket.

"That sounded ridiculous," Dutton says, "but it sounded like it was the modus operandi."

Dutton was finally able to get Smiley's arrest number, but when he called the DA's office back he was told the number didn't exist. He was also asked repeatedly who he was and why he was calling.

Dutton then returned to Lee and asked if she could get any information on the case. Lee learned that two charges, DWI and negligent homicide, may be issued against Smiley. But Lee said those charges were pending and could take years to be filed. This was over a month ago.

At this point, says Dutton, "I couldn't tell you what's going on."

Though his efforts got him little more than what proved to be a useless arrest number, Dutton doesn't think he was stonewalled due to the nature of the case. Rather, he believes Manhattan DA staffers simply didn't want to risk catching flak for talking to an outsider. And he doesn't think questioning city authorities about pedestrian injuries and deaths is a waste of time, regardless of the result.

"It's important that both the police and prosecutors know that people care about this," Dutton says. "It's tearing up communities."

Photos: Morgenthau from Viewimages.com, Hope Miller memorial from Galvoguy on Flickr.