From the Outset, NYPD “Suspected No Criminality” in Death of Max Mendez

second_ave_crossing.jpgThe location where Max Mendez was killed by a tow truck operator last Friday, described in some press accounts as an "entrance ramp" to the Triborough Bridge. Image: Google Maps

Three days after 6-year-old Max Mendez was killed by an MTA tow truck operator while walking with his mother to the Wagner Pool at 124th Street, the story that’s emerging suggests that motorist negligence may have contributed to the deadly collision. The only constant among the press coverage, however, is that the police suspect "no criminality."

On Friday, most news reports made it seem as though Max and his mother, who was injured and survived, ran into the path of a truck driver responding to a disabled vehicle on the Triborough Bridge. Here’s how the Post first relayed information from police on the scene:

A 7-year-old boy was struck and killed by an MTA towtruck in East Harlem as he jaywalked across an entrance ramp to the Triboro Bridge with his pregnant mother, police said.

max_mendez.jpgMax Mendez. Photo: WSJ

This location (which is not elevated above the street, as you might expect when picturing "an entrance ramp," but where police believe pedestrians are "prohibited" anyway,
according to the Daily News) provides a direct connection between a
pedestrian island on the east side of Second Avenue and a block with
pools and basketball courts. Yet the first round of coverage was rife with implications that Max and his mother, Erika Lorenza, were in a place they had no business being.

As more details have come to light, the story has changed. On Saturday, the Post reported that the truck driver was disembarking from the sidewalk, and that Max and Lorenza were not in the roadbed:

Max Mendez, a second-grader at PS 197, and his mother were holding
hands on the sidewalk near 124th Street at around 9 a.m. when the truck
slammed into them…

Cops said the yellow MTA Bridges and Tunnels truck was parked on
the sidewalk and started moving to respond to a disabled vehicle on the
bridge, police at the scene said.

Some witnesses told the Post that the truck driver was on his phone at the time of the collision. And the Journal reports that he didn’t check in front of him before pulling out from the sidewalk:

Witnesses said it appeared that the driver, who hasn’t been identified,
looked behind him to make sure he wasn’t pulling out in front of
traffic. In doing so, they said, he failed to see the two pedestrians
in front of him.

There are discrepancies between accounts of the collision, but there seems to be a significant likelihood that the truck driver failed to exercise due care in a situation that demanded extreme caution. Still, from the earliest reports onward, including this ABC 7 piece filed while the driver was still being interviewed, police have told reporters that they "suspect no criminality." Why?

NYPD’s public information office (DCPI) hasn’t returned Streetsblog’s query about why the police don’t think this was a criminal act. But I can say from experience that when you do get an answer out of DCPI about a fatal crash, most of the time it won’t stray much from this rote response: "The driver wasn’t intoxicated, he stayed at the scene, no criminality is suspected." Nothing about recklessness or carelessness. No mention of whether the driver may have been speeding, using a mobile device, or on the sidewalk. In almost every case, sober drivers who stay at the scene get the all clear.

From the evidence so far, it seems too soon to rule out criminal negligence in the death of Max Mendez. And maybe investigators are still trying to piece together what happened. You’d just never know it from reading the paper or watching the news. The case may still be open — in which case, good luck prying the crash report out of NYPD — but it is apparently never too soon for police to write off a fatal collision in the media by telling reporters that "no criminality is suspected."

In addition to NYPD’s silence on the matter, the MTA is not commenting, aside from a short statement released last Friday.
No word on whether the driver has been disciplined or if the agency is
changing the way it stages responses to distress calls on the
Triborough. Manhattan DA Cy Vance’s office is not commenting either, citing a blanket policy of not discussing cases. We can’t say, for instance, whether investigators have subpoenaed the driver’s phone records. 

So, while we’ve known for some time now that the NYPD suspects no criminality, we may never know why.

  • A constituent of Councilmember Melissa Mark Viverto should alert her to the facts in this case and ask her to write a letter to NYPD Commissioner Ray Kelly and Manhattan Distrct Attorney Cyrus Vance Jr. to thoroughly investigate this incident.

  • MRN

    Are we really opining on what the maximum possible sentence “we” can stick this driver with? Who wants to read this? Is that what Streetsblog is for? Although I suspect I fit fully within the streetsblog demographic [essentially never been a driver, have a masters, live in the city, avid biker, leftist], but the overall anti-driver vitriol drives me crazy.

    Yes, I get it. We live in an automobile culture where drivers are not held responsible for their actions. Part of the concept here is to disavow that privilege. But it comes off as simply vindictive and confrontational, and the greater good – substantive policy and cultural reforms – forgotten about.

    It makes just as much sense to me to blame drivers for their contribution to driving culture as it does to blame the homeless for not working hard enough or blaming the disabled for their injuries. Most drivers are just products of the system, the same one that builds project towers, prisons, suburban ‘lifestyle centers’ and so on.

    I’ll close it out with a little Jesus [Matthew 9]:

    (10) While Jesus was having dinner at Matthew’s house, many tax collectors and “sinners” came and ate with him and his disciples. (11) When the Pharisees saw this, they asked his disciples, “Why does your teacher eat with tax collectors and ‘sinners’?”
    (12) On hearing this, Jesus said, “It is not the healthy who need a doctor, but the sick. (13) But go and learn what this means: ‘I desire mercy, not sacrifice.’ For I have not come to call the righteous, but sinners.”

  • UES

    I’ll follow up on the Jesus quote with one from Olive Wendell Holmes Jr.

    “Even a dog distinguishes between being stumbled over and being kicked.”

  • Contrary to MRN (#2), I think Ben’s story is beyond reproach. His focus throughout is on the narrative that the NYPD and the media have constructed from the get-go, and how the reflexive anti-pedestrian slant of that narrative, along with the NYPD’s usual stonewalling, threaten to paint this fatality as another instance of “pedestrian stupidity” — instead of as a possible case in which anti-ped infrastructure, inadequate driver training, and an utter lack of accountability at all levels conspired to take an innocent and precious life.

    Another aspect of this incident that might be worth investigating is the protocols by which MTA tow-truck drivers are sent to the scene of a crash or a stall. Gridlock being what it is, particularly on untolled or undertolled bridges, the MTA would have a powerful economic incentive to clear disabled vehicles as quickly as possible. I can’t help but wonder if this imperative filtered down to the behavior of the driver and contributed to his apparent failure to look in all directions before driving off the sidewalk.

  • J C

    MRN,

    Streetsblog seems to me to be reporting on witness accounts of reckless driving that are unlawfully (but typically) being ignored by the police. Your placing of vague blame on context alone for individual actions strikes me as the insufferable unwillingness to accept or assign any personal responsibility for anything people do. What you’re saying reads like “the problem isn’t that there are thieves, but that there is theft,” or “the problem isn’t that I drank too much, it’s that I was overserved.” The core problem here is that in NYC culture, operators of multi-ton vehicles who kill people on sidewalks while talking on the phone aren’t held accountable, and thus the problem of reckless, careless driving of large vehicles perpetuates.

  • ddartley

    MRN, I’ve appreciated your perspective in the handful of your comments I’ve seen. But this time I think you’re all over the place except on target.

    The article sticks to its specific theme throughout: NYPD routinely proclaims very early to reporters covering crashes that there is “no criminality suspected” even when the news reports alone suggest elements that are potentially criminal, and then provides little or no information after the incident. For instance, it’s right there in City law and State law that motorists must excercise due care. Failing to do so is, well, criminal. And yet one news story suggests that the victims and vehicle both were on the sidewalk.

    I don’t see any of that as “anti-driver vitriol,” but rather a story about a recurring problem concerning NYPD. Nor do I see anyone–Ben or commenters–speculating about how “we” can “sentence” anyone.

    Also, I must second Charles Komanoff’s response to you; it is dead on.

  • The elephant in the room: The system does not work. Komanoff is right, there is pressure to keep traffic moving. Individual lives are not important. By the same motive: If people were held accountable for collisions the unsustainability of the auto would be exposed. Just imagine the courts jammed and the cries for reform if thousands of people were going to jail for reckless endangerment and manslaughter. The problem is the private auto. Until we face up to that and do something that really opposes it, we will be going to funerals and expressing moral outrage for years to come.

  • Boris

    MRN,

    Despite your disagreeable tone, the wording of your comment suggests that Streetsblog has been successful in convincing you to decouple individual actions from inanimate objects. You are right, we are blaming drivers, and not tow trucks, for killing people. If you are unhappy with cars being the weapon of choice, substitute “towtruck” with “gun” in this inane Post quotation:

    “A 7-year-old boy was struck and killed by an MTA gun in East Harlem as he jaywalked across an entrance ramp to the Triboro Bridge with his pregnant mother, police said.”

    Substitute “car” with “gun” in every one of those stories, and you start to see how idiotic the mainstream press can be in covering these issues.

  • Emily Litella

    The driver is responsible for his actions, end of discussion. Society needs to do a better job holding drivers responsible. Safety is not uppermost in too many nyc drivers minds. Proper law enforcement is the strongest tool we have to elevate the prominence of safety in the drivers mind. Suburban bred cops are way too sympathetic to the driver point of view.

  • There would be more space in the prison system for dangerous drivers if those convicted of nonviolent marijuana offenses were released.

  • The NYPD’s treatment of motor vehicle fatalities is a gigantic scandal playing out in slow-motion.

  • It could be worse. We could be in Philadelphia.

  • JK

    DA Cy Vance Jr has his own investigators, and the power to indict independently of any police findings. By all means scrutinize the NYPD, but do not let Cy Vance off the hook. His investigators should interview the witness(s.) How a child can be killed on the sidewalk by a large truck without there being any criminality is hard to fathom. It is not legal to kill people on the sidewalk with trucks — or to drive or park trucks on the sidewalk. Failing to pay attention while driving a large truck is not a license to kill people on the sidewalk. (The mayor should tell Ray Kelly to tell the cops to simply say “This is an ongoing investigation into the death of a child. At this time no charges have been filed” Instead of making any statements about guilt or innocence.)

  • Woody

    Class consciousness. Tow truck drivers are uniformed government employees, like cops. Tow truck drivers may be near the bottom of the totem pole, somewhere below police, firemen, correctional officers, EMS, sanitation, and others, but they are still kinda like cops. The cops will give them a break. They will.

    And within the police force, cars symbolize power, rank, and achievement. The cop walking the beat hopes to see his career advance to a squad car, at least. The big dogs at the top, like Ray Kelley, are awarded cars and drivers. But no cop dreams of being a six-year-old kid or even a pregnant mother walking on a sidewalk, because there’s no power, rank, or achievement in that.

  • MRB

    I guess, this boils down to a more fundamental debate: Are there motor vehicle accidents? That is, is driving such an inherently dangerous activity that mistakes/errors/etc are simply not allowed?

    If you do not think there are driving accidents, then I think that following the narrative set by the author is logical – the driver should have realized the gravitas of the activity there were undertaken and performed conservatively. That most people don’t take the proper precautions then is an indictment of the system and the culture rather than an incident relatable to any particular driver or incident.

    I have a different view. Driving is incredibly commonplace and a vast majority of people of varying levels of conscientiousness and ability are able to successfully operate a vehicle for a lifetime while injuring or killing no one. I feel that driving is ubiquitous enough that the task ought not to compared to (as someone else illustrated) a loaded gun.

  • The problem with vindictiveness in cases like this is that it doesn’t provide a deterrent. Unlike murder or even workplace safety negligence, driver negligence rarely leads the driver to kill someone. This means that the 90% of drivers who consider themselves above average can shrug off any penalty given to a negligent driver involved in an accident.

    If you want to use punishment as a deterrent, it may be better to punish behavior rather than consequences. This means cracking down on speeding, red-light and stop-sign running, and other behaviors that cause accidents. The enforcement must be as universal as possible, in line with the finding that certain punishment is a bigger deterrent than harsh punishment. In contrast, what happens after an accident should not matter as much.

  • Nathanael

    These aren’t accidents, MRB. Tow trucks killing people on the *sidewalk*? Not an accident.

    Accidents exist — cars going off the road in bad weather. That’s not what Streetsblog is covering.

    This is like police gunning innocent people down. This is gross negligence.

    Driving on the sidewalk should be grounds for immediate, permanent license removal. And contrary to Alon, a few manslaughter convictions do act as a deterrent for this kind of gross recklessnesss.

  • Nathanael, repetition doesn’t make you right. Yes, by all means revoke licenses for driving on the sidewalk. But if you think that treating drivers differently based on whether their negligent actions happen to result in a death or not will help, you need to argue it more convincingly then to state “they do act as a deterrent.”

  • There were witnesses who report that the driver was on the phone when he killed the boy. I don’t know why his phone record isn’t being looked into. This should be a matter of course in any accident involving an injury.

  • JK

    We are asking for accountability. Deterrence is based on two things: certainty of being caught and certainty of punishment. The deterrent discussion has been distorted by evidence that the death penalty isn’t a deterrence. But we are not talking about capital crimes. When it comes to driving behavior, we have solid evidence that enforcement of the law and laws that result in serious sanctions do have a deterrent effect. This is also true because strict laws and enforcement change societal attitudes and make certain behaviors unacceptable — attitudes towards drunk driving have changed radically in the last thirty years.

  • DA cy Vance announced that all pedestrian fatalities by careless drivers would be treated as crimes . I’ d like to see what.his office has to say and is doing about this terrible death.

    As a pedestrian mysel i’ d like at least to be safe on the sidewalk I cannot imagine a clearer situation: pedestrians on sidewalk, truck illegally moving on sidewalk … What else do we need to prove negligence resulting in death ????

  • JK: what I say has little to do with the death penalty. It’s also true on less harsh levels – for example, sending every drug dealer to jail for ten days has been much more effective than sending a few drug dealers to jail for ten years. I can dig the articles about it for you if you’re interested.

    The example of drunk driving is actually a case of prosecuting behavior, not consequences. Cops pull drivers over if they seem drunk, even if they’re not hitting anyone.

  • We hear a lot about northern european countries that have a much lower tolerance for carelessly fatal driving also enjoy a lower incidence of it. I don’t know if there’s a direct deterrent effect, or not. Which came first, the consequences or the compliance? It doesn’t matter! Maybe a few unfortunate judicial outcomes, where good but careless people end up penalized, is just the thing that got the public to support better street design? Whatever it is that makes it happen, I just want the lower fatality rates.

    Are there any counter-examples, states that decline to hold people accountable for careless motoring, but that do enjoy low fatality rates? I’d be happy to consider emulating them too, if they exist. But speculation about individual human behavior is a distraction from making any systematic progress, to reducing the aggregate rate of children on sidewalks being run over by tow trucks.

  • Nathanael

    Alon Levy: “Yes, by all means revoke licenses for driving on the sidewalk. But if you think that treating drivers differently based on whether their negligent actions happen to result in a death or not will help, you need to argue it more convincingly then to state “they do act as a deterrent.””

    Put it this way: knowing that you *can* get away with killing people without getting arrested acts as an *encouragement* to recklessness.

    Yes, it’s better to uniformly punish people who are reckless whether it results in deaths or not. Howevever, enforcing the current laws would still provide more deterrent than the current status quo.

  • Which current laws, Nathanael – the ones that fine drivers for reckless behavior, or the ones that, if the prosecution has a better lawyer than the defense, occasionally get a person in jail?

  • Ian Turner

    Alon, either would be better than the status quo.

  • I’m not so sure about that, Ian. Harsh punishments meted out randomly tend to reduce confidence in the justice system. This is why three-strikes laws do not succeed in reducing crime, whereas universal, proportional punishment does.

  • Ibchris

    I worked with Max in Kindergarten.  He was a good boy who worked hard. 

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