A state appeals court reduced the conviction of a commercial truck driver who killed two Manhattan pedestrians while off his epilepsy medication. According to the New York Law Journal, the ruling cited as precedent a recent decision by the Court of Appeals, New York’s highest court, which prosecutors feared would make it more difficult to bring cases against motorists who kill people.

Auvryn Scarlett had a seizure while driving a garbage truck on W. 35th Street in February 2008, causing the truck to jump the curb and fatally strike British tourists Jacqueline Timmins and Andrew Hardie. A third pedestrian was seriously injured. In a rare instance of a sober New York City driver charged criminally for a fatal crash, Scarlett was convicted of murder and assault.

The BBC covered the trial:

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.”

Prosecutors said Scarlett stopped taking his medication two weeks before the crash and did not tell his employer or the DMV he had epilepsy. At sentencing, according to the Law Journal, the judge said Scarlett stopped taking his medication because it “interfered with [his] enjoyment of liquor.”

Last week the Appellate Division, First Department of the state Supreme Court reduced Scarlett’s murder conviction to manslaughter and his first degree assault conviction to second degree assault.

The appeals court said both the murder and first-degree assault charges require the defendant to have displayed a depraved indifference to human life. But Scarlett’s crimes did not exhibit that level of depravity, Justices Peter Tom, Rolando Acosta, Rosalyn Richter and Barbara Kapnick agreed in an unsigned ruling.

“They [the crimes] do not fit the category of cases where the conduct is at least as morally reprehensible as intentional murder,” the court said, citing People v. Maldonado, 24 NY3d 48 (2014). “The People failed to establish that the defendant also possessed an ‘utter disregard for the value of human life.'”

In 2014 the Court of Appeals ruled that Jose Maldonado, who killed Violetta Krzyzak as he was pursued by police through Greenpoint, did not act with “depraved indifference” and “disregard for human life” because he did not intentionally hit more people and cars with the stolen minivan he was driving. According to the ruling, Maldonado did not brake after hitting Krzyzak, who “landed over 165 feet, or almost one block, away from the point of collision.” The court reduced Maldonado’s sentence from murder to manslaughter.

While disagreeing with the murder conviction, the appellate court found the evidence against Scarlett “clearly” proved “the recklessness necessary to sustain convictions for manslaughter and second-degree assault,” the Law Journal reported.

Scarlett began serving a term of 20 years to life in prison in 2009. His sentence will be reduced to a maximum of five to 15 years.

Maureen McCormick, head vehicular crimes prosecutor for the Nassau County district attorney’s office, has for years warned that court rulings and poorly-drafted state laws are handicapping cases against New York motorists accused of serious crimes. She sent us the following statement:

This was another incredibly disheartening decision that continues to chip away at a prosecutor’s ability to hold the most egregious vehicular crimes’ defendants responsible for their acts. It is certainly bad enough when the driver of a car fails to take his anti-seizure medication, crashes and causes injury or death; but when our courts believe it is the same level crime for a commercial garbage truck driver to willfully hide his epilepsy to illegally obtain a commercial driver’s license, to willfully stop taking his medication because it interferes with his consumption of alcohol and then to continue driving a truck weighing around 60,000 pounds on NYC densely populated streets until he blacks out and kills two people and seriously injures a third, the question must be asked: what is wrong with this system? What happened to the role of the jury? And if these recent interpretations of depraved indifference are the definitions that will, again, tie vehicular prosecutors’ hands, then where is the legislature?

Marco Conner, counsel for Transportation Alternatives, said the Scarlett decision could be interpreted as confirmation that serious charges were appropriate. Wrote Conner via email:

This should not have a chilling effect on prosecutors’ decision to pursue serious charges for reckless driving that kills or injures others. Although the reduction will likely cause prosecutors to reconsider murder charges where intent or a “depraved indifference to human life” is not clear-cut, the manslaughter and second degree assault charges here remain very serious offenses, both being felonies that carry heavy incarceration penalties. It is not clear that you need stronger deterrence than that. We just need [district attorneys] to routinely charge drivers who kill and maim through arguably reckless driving. It can’t be an occasional response.

Also, the court didn’t question that the driver’s behavior was criminally reckless and indefensible and caused the death of the two tourists — it reaffirmed that.

In other words, the decision is not an excuse for New York City prosecutors to fail to bring criminal charges when warranted.