The driver who ran over two children on a Brooklyn sidewalk, killing 9-year-old Lucian Merryweather and injuring his 4-year-old brother, will serve no jail time and be eligible to legally drive again in five years, pursuant to a plea arrangement with Brooklyn District Attorney Ken Thompson.

Thompson’s lead vehicular crimes prosecutor cited case law precedent from the New York Court of Appeals, the state’s highest court, as one reason the DA’s office did not seek a more severe penalty.

On the afternoon of November 2, 2013, Anthony Byrd hit two cars and a building after swerving to avoid two people in a crosswalk at DeKalb and Clermont Avenues. He next made a U-turn and drove against traffic on DeKalb, struck a woman in a crosswalk, hit a parked vehicle, and drove onto the sidewalk a second time, striking Lucian and his brother. Lucian died at the scene.

Byrd was charged by former DA Charles Hynes with second degree assault, criminally negligent homicide, first and second degree reckless endangerment, criminal mischief, and several traffic infractions. However, Byrd was indicted on a top charge of homicide — a class E felony, the least severe felony category — and the class D second degree assault charge was reduced to misdemeanor assault, according to court records.

The Daily News reports that prosecutors and Byrd agreed to a plea of five years probation, 20 days of community service, and a five-year license revocation. The News reported that Lucian’s family did not object to the agreement.

Though Byrd pinballed through neighborhood streets, killing one bystander and injuring two others, Brooklyn vehicular crimes chief Craig Esswein said he didn’t have a strong case.

In an interview, Esswein said the case is atypical because the fatal wreck didn’t involve aggravating factors commonly present in criminal prosecutions, like intoxication, speeding, running a red light or leaving the scene.

“What you see is rather bad driving, poor judgement, poor control of the car, possible pedal misapplication,” the prosecutor said. “There is no smoking gun here.”

He added that appellate courts have placed a high bar on vehicular cases, ruling a guilty driver must be “morally blameworthy,” not just negligent.

Esswein was referring to People v. Cabrera, a 2008 ruling in which the Court of Appeals held that reckless driving had to be “morally blameworthy” to sustain a homicide conviction. Maureen McCormick, head vehicular crimes prosecutor in Nassau County and a former Brooklyn prosecutor, explained the Cabrera ruling to Streetsblog in 2009:

New York’s highest court held that a 17-year-old driver who violated his junior license by driving with four unrelated passengers, without seatbelts, and who also was speeding at 70-72 mph through a curve with a posted caution speed of 40 mph, and who lost control sending the car over an embankment and killing three of his passengers, could not be held criminally liable. This decision alone has resulted in numerous defense motions to have cases dismissed claiming that “speed alone” or any traffic infraction “alone” is not sufficient to sustain criminal negligence.

“Our position is that this is nonsense,” McCormick said. “A person driving 100 mph in front of the court on Centre Street in Manhattan at lunch time when the streets are flooded with pedestrians MUST be chargeable with a crime.”

Cabrera isn’t the only case where the Court of Appeals signaled a tolerance for deadly behavior behind the wheel. Last year the court ruled that a driver did not act with “depraved indifference” to human life when he killed a woman while speeding down a Brooklyn street during a police chase.

As Esswein indicated, New York City district attorneys are generally unwilling to charge drivers for killing people in the absence of what they consider aggravating factors. Thompson and Esswein apparently chalked up Byrd’s trail of injury and death to “bad driving,” and didn’t believe they could secure a conviction and a more severe penalty in court. “As a result of his guilty plea today, Anthony Byrd will now be held accountable for his negligence,” Thompson said in a statement. “I’m committed to prosecuting vehicular crimes that happen in Brooklyn to the fullest extent possible under the law.”

Is public safety served by letting Byrd get back behind the wheel in five years?

McCormick and other prosecutors have long sought changes that would strengthen state law, but unless Albany acts, it seems unlikely that city district attorneys will challenge Cabrera and other Court of Appeals rulings that treat negligence with a car different than other of types of deadly negligence.