Vaccaro: Vance Didn’t Need to Prove “Intent” to Convict Driver in Green Case

Cy Vance’s office does not discuss vehicular crimes cases, even after they are disposed or when no charges are filed. After declining to prosecute the cabbie who drove onto a Midtown sidewalk and severed the leg of Sian Green, the DA’s office issued a short statement, but the only insight into the prosecutors’ reasoning came from the victim’s attorney, who said Vance’s team “indicated that failure to charge was due to lack of evidence regarding the taxi cab driver’s intent during the investigation phase.”

Photo: Manhattan DA

Attorney Steve Vaccaro, who specializes in representing traffic violence victims, said today he believes Vance had a reasonable chance of getting a conviction on charges of third degree assault and second degree reckless endangerment. Both are class A misdemeanors (the most serious misdemeanor category), and according to Vaccaro neither require prosecutors to prove intent.

Here are the relevant sections of state law cited by Vaccaro:

§ 120.00 Assault in the third degree. A person is guilty of assault in the third degree when … with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

§ 120.20 Reckless endangerment in the second degree. A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

Why didn’t Vance try to secure a conviction on one of these relatively low-level charges? The public may never know.

The statement released by Vance’s office yesterday says only that after an investigation by the DA and NYPD, “we have concluded that criminal charges cannot be filed in this case.” The statement lists the type of evidence reviewed — surveillance video, 911 calls, black box data — but gives no indication why that evidence was found insufficient to support charges.

“This decision has frightening implications,” Transportation Alternatives Executive Director Paul White told the Times. “Drivers have the most responsibility, because people behind the wheel of one-ton vehicles have the greatest capacity to do harm to others. The law should acknowledge that fact.”

After failing to bring charges in this case, Vance spokesperson Joan Vollero said, “We are sensitive to the trauma faced by Ms. Green and others injured in vehicular crashes.”

Since Green was visiting from England, and strangers including celebrity doctor Mehmet Oz came to her aid, this case has gotten a lot of press in the U.S. and abroad. But every year there are thousands of similar crashes in New York that result in no charges against the motorist, without even so much as a statement from the DA. More than sensitivity, victims of traffic violence need Vance, his fellow district attorneys, and NYPD to hold dangerous drivers accountable through the force of law, whether or not they win every case.

  • Jesse

    Isn´t this partly due to the NY Appeals Court case described in this NY Times article from March:

    “But the state’s highest court, the Court of Appeals, recently reversed
    the convictions of drivers who were found guilty of criminally negligent
    homicide in the deaths of their passengers or others on the road. In
    doing so, it ruled that the drivers’ actions did not rise to a level of ´moral blameworthiness.´”((http://www.nytimes.com/2013/03/13/nyregion/serious-charges-in-fatal-crashes-pose-challenge-for-prosecutors.html?_r=0))

    Not to mention that juries are generally unwilling to convict in these types of cases anyway. Prosecutors don´t like to risk their conviction rate. They want a slam dunk.

    This is just another example of the law´s limited ability to effect social change in this area. Having a law on the books doesn´t mean anything if the police won´t charge, the prosecutor won´t prosecute, the jury won´t convict and the appeals court won´t affirm. The problem is – and all Streetsblog readers know this – that the culture at large just doesn´t view reckless driving as that big a deal (“morally blameworthy”). By the time all of these pieces fit together and dangerous drivers who hurt people are reliably held accountable as criminals, the we will already have achieved the cultural shift we are seeking. The law and enforcement in this case is going to follow the culture, not the other way around.

  • I’d have thought that in this case “moral blameworthiness” should have been fairly easy to prove. He ended up in the sidewalk because he was using his car to ram a cyclist. I strongly suspect, unfortunately, that part of the DA’s thinking was that any jury might think the cyclist was somehow “asking for it” through his behavior so the driver’s behavior was understandable.

    Meanwhile, I’ll refer again to what I wrote shortly after the initial, appalling incident. People in New York need to tip cabbies according to how safely they drive, to send the clear signal the NYPD won’t about driving standards: http://invisiblevisibleman.blogspot.com/2013/08/a-midtown-tragedy-tribeca-run-in-and.html

  • Jesse

    I think you´re right. Vance feared that a jury wouldn´t find anything “morally blameworthy” with what the driver was doing. Either he was justifiably angry or justifiably in a panic because *gasp* what if the cyclist scratched the paint!? But in either case it´s something that the average person can identify with moreso than being on a bike going straight through an intersection and having some jerkoff cabbie try to drive into you because he wants to turn.

  • Aquaman

    Time to FOIA the NYPD’s and DA’s investigation records of this crime, make those documents public, and let the court of public opinion decide what to make of Vance’s decision

  • Guest

    Is there any possibility for an independent investigator to charge Vance with official misconduct?

    There are judgment calls, and then there is a willful decision not to perform his official duties. Unless I’m really missing something, he just threw away a case that didn’t require him to prove intent, even though he had a public confession from the criminal! WTF?!

    Oh, and somebody needs to take a long, hard look into his campaign donors!!!

  • Kevin Love

    Moral blameworthyness? Is this the USA or the Islamic Republic of Iran?

    I’ll leave morality to the clergy. I want laws that protect myself, my wife and children from being killed or injured by violent, dangerous criminals.

    Why do I suspect that if I got drunk and violently assaulted and raped a teenage girl that the NYPD would not say: “Kevin was drunk so he never intended to rape the girl. No intent means No Criminality Suspected.”

  • mike

    Case law. That’s why. These charges have been tried in the past and didn’t work. With the DA’s limited resources they aren’t going to waste time for something they can’t win.

  • chekpeds

    How old are the judges? Do you think they drive? The cyclist or pedestrian/driver equation in NYC is equivalent to the black/white man in Alabama 50 years ago. It is time to bring discrimination suits against DA and the courts. They CHOOSE to read the law a certain way.

  • Nathanael

    Steve Vaccaro would make a good DA. Cy Vance would make a good prison inmate.

  • Rabi Abonour

    Everything about this case is maddening. I understand why, in cases where distracted driving or some other “accident” results in a pedestrian death – people can imagine themselves getting distracted, and so a jury might be unlikely to convict. But this isn’t a distracted driving case. Even if you can’t prove that it’s vehicular assault/attempted murder (which it probably was), it’s hard to imagine you can’t prove recklessness.

  • Nathanael

    I believe such an investigation of Cy Vance would have to be led by either a Manhattan Grand Jury, or by State Attorney General Eric Schneiderman. (Or by the federal government but I wouldn’t expect anything from them under the current circumstances.)

  • Nathanael

    There’s something very fishy about these Court of Appeals rulings — the have no basis in statute law, no basis in common law, no basis in history, no basis in Constitutional law (state or federal), and no basis in fact.

    If we had a functioning state legislature, I would suggest having the state legislature pass a law repealing both Court of Appeals rulings. Because they’re fake rulings based on the judges’ asses, they can be removed as precedent by the legislature.

  • What is the precedent where someone got off after intentionally hitting the gas, causing his vehicle to careen onto a sidewalk in the most crowded pedestrian district in the nation, inflicting grievous bodily harm on an innocent bystander?

  • Nathanael

    It’s worth aiming for the legislature anyway, even if it’s broken. It should be possible to push a law stated.

    “The Court of Appeals ruling in People v. Boutin is repudiated as a precedent in this state. The Court of Appeals ruling in People v. Carrera is repudiated as a precedent in this state. The Court of Appeals ruling in People v. McGrantham is repudiated as a precedent in this states. The legislature finds that these cases were cases of clear error in interpretation of the law.

    The standard for criminal neglience, as of the passage of this law, is the standard applied by the Appellate Division in People v. Boutin. The legislature states that this has always been the standard intended by the legislature, and any court rulings to the contrary were cases of clear error.”

  • Nathanael

    As I noted in another blog entry, it seems that there are some bad Court of Appeals rulings. So we need to to the legislature and repeal them. This would be the law I would propose in the legislature.

    Clause 1. The Court of Appeals ruling in People v. Boutin is repudiated as a precedent in this state. The Court of Appeals ruling in People v.
    Carrera is repudiated as a precedent in this state. The Court of
    Appeals ruling in People v. McGrantham is repudiated as a precedent in
    this states. The legislature finds that these cases were cases of clear
    error in interpretation of the law.

    Clause 2. The standard for criminal neglience regarding operation of a motor vehicle, as of the date of passage of this law, is the standard applied by the Appellate Division in People v. Boutin. The legislature states that this has always been the standard intended by the legislature, and any court rulings to the contrary were cases of clear error.

  • Joe R.

    I think aiming for criminal prosecution in cases like this is a high bar to jump for all the reasons mentioned by other posters. What we need to do instead is to change the law so that there is an automatic permanent license revocation if you kill or seriously injure someone while operating a motor vehicle unless you can somehow prove it wasn’t your fault. The burden of proof should be very high, to the extent that you can only get off if you where exercising due care and either had a mechanical failure or someone jumped right in front of your vehicle. Because driving is legally seen as a privilege, the state can terminate this privilege at any time, for any reason (or even for no reason at all), and there is no legal recourse whatsoever. We may not have the satisfaction of having those who kill or maim while driving behind bars, but at least they’ll no longer be able to hurt anyone again while driving.

    It’s also important if we pass such a law to add very strict penalties for driving without a license. We should confiscate and auction off the vehicle of anyone caught driving without a license. Most people don’t have the money to repeatedly replace their confiscated vehicles, so this should keep those who lose their licenses from driving again.

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