Is Manhattan DA Cy Vance Delivering on Traffic Justice?

Candidate Cy Vance, far left, with rival Richard Aborn, at a 2009 Chelsea pedestrian memorial march. Photo: Brad Aaron

The 2009 race for Manhattan district attorney presented a rare opportunity for proponents of safer streets. After decades of indifference toward victims of vehicular violence from Robert Morgenthau, advocates succeeded in making traffic justice a prominent campaign issue for his would-be successors. Contenders for the office pledged to take definitive action to reduce the carnage on Manhattan streets and punish drivers whose recklessness has in recent years resulted in a death toll on par with that exacted by gun-wielding murderers.

Once he won the Democratic primary, it looked as if presumptive DA Cy Vance was poised to make good on his laudable traffic safety platform. Soon after taking office, Vance announced the expansion of the vehicular crimes unit. He said his office would work more closely with NYPD to “investigate, prosecute and prevent vehicular crimes,” and pledged to support state and local legislation to help reduce the threat of dangerous driving in New York City.

Halfway through Vance’s first term, however, the landscape appears largely unchanged. With a handful of exceptions, pedestrian and cyclist fatalities elicit no discernible reaction from 1 Hogan Place. By Streetsblog’s count, out of approximately three dozen crashes since January 2010 in which a Manhattan pedestrian or cyclist died at the hands of a driver who remained at the scene, or who fled the scene but was later identified, five motorists are known to have been charged with taking a life. Of those five, two were fleeing police, and two were also charged with driving while intoxicated. Based on media accounts and our own reporting, only once has Cy Vance initiated a case against a sober driver for a pedestrian or cyclist fatality that did not involve a police chase.

Meanwhile, of the thousands of crashes per year that result in pedestrian or cyclist injury —  there were over 3,700 such injuries in Manhattan in 2010 alone — it is impossible to know how many Vance’s office has pursued. The fact that NYPD essentially does not investigate such crashes indicates that the figure is likely negligible.

What’s going on here? Did Vance put on a show to win votes from hopeful Manhattanites concerned with the plague of vehicular violence? Did he overestimate the ability of the office to rein in reckless drivers? Or are New York County prosecutors doing the best they can with the laws on the books? The answers, for the most part, depend on whom you ask.

From the sidewalk, the Manhattan of 2012 can look a lot like the Manhattan of 2009.

“Cy Vance has met our low expectations,” says Christine Berthet of the Clinton/Hell’s Kitchen Coalition for Pedestrian Safety. CHEKPEDS represents a section of Manhattan that continues to see a high number of crashes in which motorists face few, if any, consequences for bringing death and injury. After cyclist Marilyn Dershowitz was killed by a postal truck driver on West 29th Street last July, her brother-in-law Alan Dershowitz claimed Vance’s office was keeping video evidence under wraps. The driver was eventually charged with leaving the scene, but not for causing a fatality.

A few weeks before the Dershowitz crash, Steve Jorgenson, a Marine in town for Fleet Week, was struck by a driver when he and his shipmates exited a cab on the West Side Highway at West 49th Street. The driver reportedly continued for a block before stopping to call 911. No charges were filed. To Berthet, incidents like these are evidence that Vance “is more comfortable with low-key political scoring than in using his pulpit to fight for justice.”

Vance’s staff is sensitive to allegations that his office is soft on reckless motorists. When Streetsblog first approached his public relations team for this story, following the death of Yolanda Casal — whose killer, unlicensed and backing up a one-way street, pleaded guilty to a misdemeanor and was fined $500 — we suggested that Vance is reluctant to seek long-term incarceration as a deterrent to negligent driving.

“Nothing could be further from the truth,” a spokesperson replied. “We have prosecuted many cases, winning convictions that come with long incarceratory sentences.” To illustrate, the spokesperson cited three convictions, two of which involved pedestrian fatalities: David McKie, initially charged with murder but allowed to plead to manslaughter for killing Karen Schmeer in the act of evading police; and Keston Brown, the curb-jumping drunk driver convicted of second degree manslaughter and sentenced to five to 15 years for the 2009 death of Ysemny Ramos.

While those examples seem to point to a district attorney who only prosecutes the safe bet, with mixed results at that, the reality is not so simple. The Ramos case was brought under Morgenthau and won under Vance. The prosecution of Schmeer’s killer was arguably undercut by a ruling from the state’s highest court, which reversed a murder conviction in a similar case. The decision to heed the Court of Appeals and offer a plea for a reduced charge, in the opinion of Nassau County assistant district attorney and traffic justice pioneer Maureen McCormick, was “regrettably correct.”

That two-word assessment of the Schmeer case fairly encapsulates the prevailing judgment among other New York vehicular law experts, who say Vance is negotiating a system rife with shortcomings to make noticeable progress on the traffic justice front.

“Cy Vance has made substantial changes to the way the office investigates and prosecutes crash cases,” says Juan Martinez, general counsel for Transportation Alternatives. “He has devoted more resources and staff attention to this area and arranged his office in a way that prevents these cases from falling through the cracks.”

Vance has, for example, increased the vehicular crimes unit to “more than 25” specially-trained prosecutors who assist a full-time vehicular crimes bureau chief, a spokesperson told Streetsblog.

“We are always reviewing potential changes to the penal code,” the spokesperson said. “However, in these cases often there is an issue of proof — many crashes do not have eye witnesses, so establishing fault or proving recklessness or negligence is difficult.”

Attorney Steve Vaccaro, a traffic law specialist who is representing the family of slain Brooklyn cyclist Mathieu Lefevre in a freedom of information suit against NYPD, agrees that cases of vehicular violence get more attention with Vance at the helm. But Vaccaro’s praise comes with a caveat.

“I think that there are more criminal charges being brought against killer motorists than there were under Morgenthau,” Vaccaro says, “and where charges haven’t been brought they have a good faith argument as to why they couldn’t bring the charge. So I applaud them for that.”

“But I would also urge them to consider going a little bit further out on a limb, and try to be pro-active in framing the argument as to why certain conduct that society at large has come to accept as a reasonable cost of a car-oriented society is, in fact, reckless conduct.”

July 2011: An SUV driver plunged off the FDR into an occupied taxi cab. Two people were critically injured, including one who lost a leg. Vance's office filed no charges. ## York Post##

Framing the argument is exactly what candidate Vance promised to do. To this day, for instance, the Vance campaign web site reads: “There is no reason why two traffic violations are necessary in order to support a conviction of criminally negligent homicide.” Two years in, there is no sign that Vance has mounted a challenge to the notorious “rule of two.” To the contrary, cases like that of Edwin Carrasco, who was reportedly committing at least two offenses when he killed Yolanda Casal and injured her daughter, point to a district attorney comfortable with the status quo. It seems that to give Vance credit for raising the bar, you have to acknowledge how low his predecessor left it.

Even Vance’s signature vehicular crimes case, the prosecution of Jessica Altruz, suggests leniency toward drivers who kill. In November 2010, Altruz slammed into pedestrian Margaret Fisher after reportedly laying on the horn while speeding through an Upper West Side intersection. She drove on until stopped by witnesses, then insisted that she had the light. Vance’s office investigated the case vigorously and leveled a charge of second degree manslaughter. Altruz pleaded guilty and faced up to 15 years, but according to reports prosecutors asked the judge for a three-year maximum, with the possibility of as little as six months’ jail time.

We asked Vance’s office about the Altruz case. We also asked about Diego Tapia-Ulloa, the unlicensed driver who killed Laurence Renard and, like Edwin Carrasco, pleaded guilty to aggravated unlicensed operation and was fined $500. We asked about Simone Walters, arrested for the hit-and-run death of Robert Bond and charged with leaving the scene, driving without a license and driving while ability impaired — but not charged for killing. We listed every known pedestrian and cyclist death in Manhattan since January 2010 in which a driver was identified and which reportedly resulted in no charges, and asked for information on each case.

With the outcome pending, Vance’s office would not comment on the Walters case. Of Altruz, Tapia-Ulloa and Carrasco, a spokesperson said, “Although the outcomes are tragic, in each case the district attorney’s office brought the top charges that were supported by the evidence under the laws.”

“That’s just a very generic statement,” says Vaccaro. “It doesn’t really mean anything. It doesn’t address whether there were arguments about what would be the top charges that could be supported.”

Vance press staffers said they could not access the remaining cases without defendants’ names, which as a rule are not released by NYPD without the filing of a freedom of information request — an arduous exercise in futility. All of which assumes charges were filed in the first place. In cases where no charges were filed, there are of course no defendants to speak of, and therefore no way to know why charges were not brought.

The trumpeting of an occasional vehicular crime prosecution calls attention to the many cases that are not pursued. While Vance may have increased the number of prosecutors trained to investigate crashes, according to a spokesperson, NYPD does not necessarily notify the district attorney’s office every time the Accident Investigation Squad is sent to a Manhattan crash scene, nor do assistant DAs go to every scene when Vance’s office is notified by AIS. Given how difficult it is in New York State to prove recklessness or negligence, and the tendency of prosecutors to cite loopholes in the law for their inability to make cases, it stands to reason that a district attorney serious about traffic crime would make every effort to ensure a thorough investigation, particularly in cases of death and life-threatening injury.

As for those loopholes, state lawmakers are working to close some of them, and are looking to give law enforcers new tools, including automated enforcement. Though Vance has signaled his support for speed cameras and other initiatives, he keeps a low profile for a district attorney who, as a candidate, pledged to “work diligently with New York City’s advocacy groups” to change state traffic laws.

“We’d like to see Vance speak out in favor of legislative fixes that would remove those barriers,” says Martinez, “similar to what he’s done regarding repeat domestic violence offenders and the DNA databank.”

At the same time, Vaccaro says Vance could, and should, test existing law in court. “We need to have DAs getting up in front of judges and arguing that if a driver is speeding in an environment with vulnerable street users and kills someone, that the driver has engaged in a ‘gross deviation’ from a reasonable standard of care and therefore is guilty of criminally negligent homicide. The notion that killing someone while speeding is just an ‘ordinary deviation’ that should be punished with no more than a traffic ticket is barbaric. If it means that in order to educate the judiciary they need to take some failed prosecutions, that’s part of how it works.”

“I think prosecutors want to have a very high conviction rate, and that’s important to them. But it’s not so important that they should be afraid of taking cases that push the envelope a little bit.”

•               •               •               •

Below is a partial accounting of Manhattan pedestrians and cyclists known to have lost their lives since Cy Vance took office. It does not include hit-and-run cases in which the driver was not immediately located. It should be considered alongside the thousands of Manhattan pedestrian and cyclist injuries, reported and unreported, suffered since January 2010.

  • Jeffrey Axelrod, 52, Cyclist, Killed in Manhattan; Driver Not Charged (Gothamist, Voice, Benepe’s)
  • Fuen Bai, 74, Cyclist, Killed in Manhattan; Driver Not Charged (Streetsblog, Villager)
  • Robert Bond, 53, Pedestrian, Killed in Manhattan ; Driver Charged With Leaving Scene, DWAI, Suspended License (DNA, Post 1, 2)
  • Yolanda Casal, 78, Pedestrian, Killed in Manhattan; Driver Fined $500 (Streetsblog)
  • Patricia Cuevas, 51, Pedestrian, Killed in Manhattan; Driver Not Charged (Streetsblog, The Lo-Down)
  • Daniela D’Ercole, 32, Pedestrian, Killed in Manhattan; Driver Not Charged (DNA)
  • Marilyn Dershowitz, 68, Cyclist, Killed in Manhattan; Driver Charged With Leaving Scene (Streetsblog, Post)
  • Ray Deter, 53, Cyclist, Killed in Manhattan; Driver Not Charged (DNA, News)
  • Marcus Ewing, 27, Cyclist, Killed in Manhattan; Drivers Issued Summonses (News)
  • Margaret Fisher, 67, Pedestrian, Killed in Manhattan; Driver Pleaded to Manslaughter (DNA)
  • Willie Gonzalez, 25, Pedestrian, Killed in Manhattan; Driver Not Charged (News)
  • Mary Celine Graham, 83, Pedestrian, Killed in Manhattan; Driver Charged With Murder (Streetsblog 1, 2)
  • Steve Jorgenson, 22, Pedestrian, Killed in Manhattan; Driver Not Charged (News, NY1)
  • Jason King, 21, Pedestrian, Killed in Manhattan; Driver Issued Summonses (Streetsblog 1, 2)
  • Max Mendez, 6, Pedestrian, Killed in Manhattan; No Known Charges (Streetsblog)
  • Chan Park, 62, Pedestrian, Killed in Manhattan; No Known Charges (DNAinfo)
  • Steven Reese, 58, Pedestrian, Killed in Manhattan; No Known Charges (DNA)
  • Laurence Renard, 35, Pedestrian, Killed in Manhattan; Driver Fined $500 (Streetsblog)
  • Dashane Santana, 12, Pedestrian, Killed in Manhattan; Driver Not Charged (DNA)
  • Karen Schmeer, 39, Pedestrian, Killed in Manhattan; Driver Pleaded to Manslaughter (Streetsblog)
  • Kok Hoe Tee, 55, Pedestrian, Killed in Manhattan; Driver [NYPD Auxiliary] Not Charged (Streetsblog, DNA, ABC)
  • Amos Veloz, 21, Pedestrian, Killed in Manhattan; No Known Charges [MTA Bus] (News)
  • Qi Yu Weng, 28, Cyclist, Killed in Manhattan; Hit-and-Run, No Known Charges [MTA Bus] (NYT, Post)
  • Leonia White, 89, Pedestrian, Killed in Manhattan; Driver Not Charged (DNA, Post, Gothamist)
  • Timothy White, 29, Pedestrian, Killed in Hell’s Kitchen; Driver Charged With DWI, Manslaughter (NYT, Post, Gothamist)
  • Harry Wieder, 57, Pedestrian, Killed in Manhattan; No Known Charges (Downtown Express)
  • Unnamed Pedestrian, 77, Killed Jan. 4, 2010 in Manhattan; Driver Not Charged (Post)
  • Unnamed Pedestrian Killed Apr. 12, 2010 in Manhattan; No Known Charges (Lo-Down)
  • Unidentified Pedestrian Killed May 22, 2010 in Manhattan; Driver Charged With DWI, Manslaughter (City Room)
  • Unnamed Pedestrian Killed Sept. 16, 2010 in Manhattan; No Known Charges (News [link expired])
  • Unnamed Pedestrian, 54, Killed Feb. 14, 2011 in Manhattan; No Known Charges (Streetsblog, DNA)
  • Unnamed Cyclist Killed Mar. 25, 2011 in Manhattan; No Known Charges [MTA Bus] (NY1)
  • Unnamed Pedestrian, 86, Killed Oct. 26, 2011 in Manhattan; No Known Charges (Streetsblog, DNA)
  • Unnamed Pedestrian, 58, Killed Dec. 2, 2011 in Manhattan; Driver [Motorcyclist] Not Charged (AP)
  • Unnamed Cyclist, 17, Killed Dec. 16, 2011 in Manhattan; Driver Not Charged (DNA)
  • Unnamed Pedestrian, 73, Killed Dec. 20, 2011 in Manhattan; No Known Charges (DNA)