DA Candidates Pledge Tougher Stance on Vehicular Crime

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

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.

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."

  • Glenn

    Kudos to all involved in organizing and participating in this event. Democracy in action.

  • JK

    Aborn is right to stress the importance of education. Fundamentally, this event was about educating the candidates to take vehicular violence, and the advocates combatting it, seriously. Lastly, Streetsblog should recognize the important role that Transportation Alternatives took in organizing this event. This is excellent advocacy work by TA.

  • Anne Libby

    It’s about time we see someone seriously looking at pedestrian safety in the city. Several years ago, a man who worked in my lower Manhattan building went out for coffee in the middle of the night, and was killed by a speeding car that drove away from the accident. As far as I know, the driver was ultimately apprehended, no charges were pressed. At the time I was a board member of our police precinct community council, and we were unable to get anyone to speak with us (DA, DOT) about this case.

    His name was Ernesto Torres, and he had 3 kids, including a new baby girl. I still miss him.

  • Kaja

    I like how they’ll ‘seize’ my telemetry even if I’m not at fault.

    Do they take my whole car, too? Impound it for a few days while scheduling the union tech to plug into my OBD-II? Or will Bloomberg ensure that dudes with handhelds and jackets reading CRASHSTAT descend on future auto accidents like vultures?

    All in all, it does sound like an improvement.

  • W. K. Lis

    Check out this article where an SUV tried to flew police on bicycles at http://www.nationalpost.com/news/canada/toronto/story.html?id=1656800 quoting “Witnesses say the SUV was stopped by two police officers on bicycles near Queen and Yonge Streets and asked to slow down, only to speed off at roughly 90 km/h and crash into two other cars and a bus shelter just after 8 p. m.” 3 suspects were arrested, don’t know yet the charges.

  • descend on future auto accidents like vultures

    No, they will be strictly required to descend like petals from a ripening cherry tree in May.

  • Given the subtle differences among the candidates, it was very disappointing that Leslie Crocker Snyder did not show up; Mr. Socarides was an ill-prepared proxy.

  • gecko

    Regrettably after the fact, the most effective outcome of this will be public awareness perhaps amplified with new “Ghost Walker” street notions to compliment the “Ghost Bikes” initiative. And, a new “Walking Wounded” notation further enhancing the public’s awareness of the violence caused by cars against the people of this city.

    Hopefully, leading toward significant political will and action creating safe streets.

  • Does anybody know whether the “rule of two” mentioned above (that drivers have to be suspected of being simultaneously guilty of 2 crimes before charges are brought) — whether this is an actual statute on the books, or whether it’s just some strange law enforcement practice applied only to dangerous drivers? I wonder if there are other areas of the law where a “rule of two” applies. For example, can someone avoid shoplifting charges by not simultaneously pocketing two items?

  • Reckless driving is a crime. Operating an automobile without exercising due care is a crime. Violating another road user’s right of way is a crime.

    Sadly, operating a motor vehicle has become such an ordinary everyday activity that the grave responsibility of driving on the public way is forgotten.

  • I was fairly impressed–by how impressed the candidates seemed. Unfortunately I couldn’t stick around for the whole thing.

    David_K: the impression I got from the debate’s moderator was that the “rule of two” is something that has become established by courts over the years, and recently even more established in a particular (shitty) appeals decision known as “Cabrera.” Sure enough, a Google search took me right back to Streetsblog, and its interview with Maureen McCormick:

    “as recently as May 2008, 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 (People v. Cabrera, 10 NY3d 370 [2008]). 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. 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. Conversely, a person driving the same speed at 3 a.m. by the Gowanus warehouses in Brooklyn, while no other person was in the area, would be subject to much lesser violations.”

    http://www.streetsblog.org/2009/03/31/maureen-mccormick-on-the-cutting-edge-of-traffic-justice/

    “Throughout my tenure as a prosecutor, I have heard police officers, judges, prosecutors and the news media refer to a “rule of two.” It is believed that if a defendant commits two simultaneous traffic violations in the course of a collision, that automatically allows for a criminal charge because one violation would be considered “ordinary” or civil negligence.”

    THAT attitude needs to be lobotomized from the criminal justice system’s brain. It’s moronic, and it has deadly real-life consequences.

  • Of course, JK. My bad.

    Should also add that at the end of the event, TA’s Peter Goldwasser politely reminded the candidates that they were now on the record on ped-cyclist safety, and that their remarks won’t be forgotten.

  • How come the explicitly written “due care” requirement has amounted to nothing? Does that rule ever get applied at all in prosecutions? (Oh, that’s right, I forgot, there are no prosecutions.) But seriously, in the few prosecutions there are, does “due care” ever even come up?

  • I just googled the term “due care” coupled with “automobile” and the top hit was a book titled Modern American Law — published in 1914! Here is the quote:

    “…if one who was driving an automobile should become so interested in the landscape that he forgot to look as he turned a corner, he would be guilty of negligence. Negligence often, therefore, involves inadvertence or inattention to the duty to use due care.”

    Here is a link to the passage: http://tinyurl.com/p3rmzd

  • Eileen

    I’d also really like to know the genesis of the “rule of two”. Streetsblog has been really informative on this, but it goes beyond NY and beyond criminal negligence — in DC, where I live, the “rule of two” is embodied in a directive issued by the local court to police. It provides that, in order for a police officer to arrest a driver for failing to stop for a pedestrian, there has to be a second criminal violation — e.g. if you’re driving without a license and you fail to stop, they can arrest youl otherwise they can’t. This rule exists, notwithstanding the fact that, by statute, failing to stop for a pedestrian is a crime in and of itself; the statute as written doesn’t require any kind of intent or negligence, but the “rule of two” somehow still seems to be applied.

  • The “Rule of Two” is not statutory. Rather, it is a “rule of thumb” that judges and prosecutors use when deciding cases. Legally speaking, it is precedent from previous case law. Essentially, back in 1954 a judge ruled in a case concerning the offense of Criminally Negligent Homicide that in order to establish that the defendant operated with the necessary criminal negligence to support the charge, you would need to establish that he or she violated 2 or more moving violations–one would not be enough. Then, the way the legal system here in the US works is that subsequent judges and DAs read previous cases when trying to figure out how to apply the law/interpret a specific statute in the case before them and thus you get “established” understandings of what is what, legally speaking. The promising thing about such legal interpretation is that judges are not bound to follow the Rule of Two, and as we have seen in some recent decisions, can in fact say, “I don’t agree with the 1954 Senesi decision itself which started this whole thing. I think they got it wrong OR I think the subsequent judges actually misinterpreted the decision itself.”

    Hope this is helpful.

  • Why are livable-streets activists so down on the Rule of Two? Imagine how cool life would be if the rule applied to transit users and pedestrians. For instance, if a car blocked a Bus Rapid Transit lane, all the bus riders could pile out and kick the crap out of him as long as we don’t actually rape him. Let the fun begin!

  • Peter G,

    Thank you for elucidating the matter. I wonder if once upon a time drunk driving ever fell under the “rule of two” umberella — ie, whether drunk driving alone was not prosecutable, but a drunk driver simultaneously had to be speeding or running a red light.

    I hope that judges start to chip away at this precedent. But if the precedent does stay, couldn’t law enforcement officials still exercise more fact-finding discretion in determining whether or not to press charges under the rule of two? The “black box” (which I had no idea exists in cars) was mentioned in the article above. Also, couldn’t it be a matter of procedure in automobile incidents to determine whether or not the driver was using a cell phone at the time of the collision and thus violating the law?

  • ddartley — “Due care” is discussed in my Dec. 2004 Traffic Justice Prospectus. So are “black boxes,” the “Rule of Two,” and, more generally, the need for “a movement to confront and curtail traffic danger, violence and injustice.”

    gecko — Your “Ghost Walker” idea was done by Right Of Way roughly a decade ago. In conjunction with our Killed By Automobile book, which Brad kindly linked to in his post, we created some 250 street memorials, the vast majority to dead pedestrians, in every borough but Staten Island. It would be great for someone to do more.

    greensT — I’m surprised you saw little difference between candidates Vance and Aborn. I was very favorably impressed by the latter.

    JK — I second your congratulations to T.A. for conceiving and convening this forum. I regard it as a major step toward creating a traffic justice movement.

  • christine

    Congratulations to TA for organizing this event. Aaron Naparstek did a stellar job of introducing the stark reality of life outside the discriminatory protections afforded to the automobilists.

    I agree with Charles that Aborn got it and after fighting the idea, finally said “I will treat crashes like crime scenes”.

    This was a complete eye opener for them.

    This was a huge day for traffic justice.

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