Drunk Driver Avoids Homicide Charge in Brooklyn Pedestrian Death [Updated]

A motorist who has admitted to driving drunk in a crash that killed a Brooklyn pedestrian was not charged with homicide by District Attorney Charles Hynes or his successor Ken Thompson. He was allowed to plead guilty this week to a top charge of misdemeanor DWI, court records say, and faces a maximum sentence of a year in jail.

Roxana Gomez
Roxana Gomez

At around 12:25 a.m. on July 5, 2013, 27-year-old Roxana Gomez was walking at Flatbush Avenue and St. Marks Avenue when she was hit by a BMW sedan driven by Eric Nesmith, according to witness accounts and the Post. Gomez suffered massive head injuries, and was administered CPR by an emergency room nurse who lived near the scene. She died on July 10.

The Post reported that Nesmith, 25, of Newark, ”admitted to cops he had consumed up to six Coronas at a family gathering” before the crash. His BAC was .126, the Post said.

According to online court records, Nesmith pled guilty Thursday to operating a motor vehicle while intoxicated, an unclassified misdemeanor that carries a maximum penalty of a year in jail, a $1,000 fine, and a license revocation of at least six months.

It is unclear why this defendant was not charged for killing someone while driving drunk. Streetsblog contacted the Brooklyn district attorney’s office several times regarding this case, by phone and email, but public relations staff stopped responding to our queries not long after the crash. We have another message in with Thompson’s office concerning the Nesmith plea.

Nesmith is scheduled to be sentenced on March 25.

Update: We received the following statement from Thompson’s office: “An accident reconstruction expert concluded that alcohol was not a contributing factor in the death of the pedestrian in this case.”

  • Back to the bad old Vision 1,000 days, eh

  • IlIlIl

    Zero Vision in full effect!

  • SteveVaccaro

    Can’t see why this wasn’t prosecuted as a second degree Vehicular Manslaughter case, on the facts presented. (First degree requires BAC >.18). There would have to be powerful evidence that the alcohol did not contribute to causing the crash to avoid that charge.

  • Eric McClure

    Would DA Thompson care to enlighten us as to why this killer driver is getting of lightly?

  • Mark Walker

    It blows my mind that the license-revocation penalty for DWI is for six months, not permanent. If you’ve proven yourself to be a dangerous driver, your driving days should be over. (This post slightly edited to remove factual error.)

  • bluecanary1

    You didn’t know? Driving is a civil right which can only be revoked permanently under extreme circumstances. As in, never.

  • Kevin Love

    Yes, and it is not as if cyclists and pedestrians are real human beings anyway.

  • We’re maybe a little too burnt out on this issue to give Thompson the benefit of the doubt here.

    Maybe the driver’s impairment wasn’t a significant factor, and maybe the behavior of the pedestrian was almost solely the reason a collision happened. Many of us cyclists are keenly aware of how pedestrians sometimes put themselves in harm’s way.

    Even if you argue that the driver had time to stop and didn’t… if you’re putting this before a jury and trying to get a homicide conviction, and there’s any road violation on the part of the victim, you’re not going to get it unless the driver has a lot of obvious aggravating factors. We can’t ask the DA to put a loser case in front of a non-sympathetic jury. (Society has to change a lot before juries see things a better way in these cases)

    The driver did put himself behind the wheel while inebriated, and if his actions merely put him at the scene of a grave injury, he is still headed for what is due for him. And this is a much more fair outcome than many of the more notorious cases of drivers mowing down vulnerable road users in the past few years.

    The results of the investigation should be made public, for review. I think that’s a reasonable next step for all of us.

  • Brad Aaron

    If the driver had a BAC above .08, as he is pleading to, that’s an aggravating factor. Unless the victim committed suicide by leaping into traffic, there is just no way alcohol played no part in the crash.

    By choosing not to take these cases to trial, DAs are encouraging the hair-splitting that passes for state law. That’s not fair to any of us.

  • John Putter
  • John Putter
  • captainharbatkin

    Are those two things mutually exclusive? If you’ve proven yourself dangerous with, say, a bicycle, should you never be allowed to cycle again?

  • Mark Walker

    While I have sometimes been critical of cyclist behavior, a bicycle is not a multi-ton death machine. There is a limit to the amount of damage it can do to a human body. Death-by-bicycle is close to statistically nonexistent, whereas death-by-car is nearly a daily occurrence.

  • captainharbatkin

    Well, neither of what you said is completely true, but I was responding to the idea that a persons license should be lost forever in this regard, so I’m not sure what your point is exactly in this regard.

  • Kevin Love

    Driving is a privilege. Cycling is a right.

  • Mark Walker

    You asked a question. I provided a direct and factual answer. And now I’m going to stop feeding you.

  • jooltman

    DA Thompson was elected on a mandate of change. Why is he still doing things the Hynes Way? Why is he reneging on his campaign promises?

  • CJ

    It’s been said before, but bears repeating: the easiest way to legally kill someone in this country is to run them over with your car.

    While this guy is receiving some punishment, it’s a fraction of what’s deserved.

  • captainharbatkin

    Care to explain your reasoning?

  • captainharbatkin

    The “direct and factual answer” you gave me made no sense in the context of my question, so if this is the type of discourse you espouse then you’re right – it’s probably best this conversation come to an end.

  • Kevin Love

    Driving is a privilege, not a right. For example, see:

    http://www.dmv.ny.gov/broch/c-12.pdf

    As far as I am aware this is the case in every state in the USA. For example, in Connecticut’s Driver’s Manual, we have the explicit statement:

    “We want to remind all license holders that driving is a privilege and not a right.”

    Source:

    http://www.ct.gov/dmv/lib/dmv/20/29/r12eng.pdf

  • greggzuk

    Murderer

  • Kevin Love

    Brian wrote:
    “We can’t ask the DA to put a loser case in front of a non-sympathetic jury.”

    Kevin’s comment:
    Why not?

    If there is evidence that shows beyond reasonable doubt that the criminal is guilty, I have no problem with requiring the DA to present the case to a jury. If they acquit anyway, then this makes it obvious that the problem is one of jury prejudice.

    The precedent for this was set in the Jim Crow era in the US South. Lots of cases in the 1960’s were presented to juries by DAs even although they knew full well that they were going to lose due to the jury’s racial bigotry.

    The effect was to make this racial bigotry fully clear and obvious. The embarrassment led to change for the better.

    I predict that exactly the same thing will happen in New York. What will happen when juries acquit killer car drivers who are obviously guilty based upon the evidence? This will cause massive embarrassment and scandal and lead to change for the better.

  • Frankie G.

    I honestly think that the only way to curb the massacre of human beings by
    drivers is to suspend their drivers licenses for at least 1 year.
    The only exceptions would be if a judge rules the driver is 100 percent
    innocent of the crime.
    This would send a strong message to those drivers who for the most part
    are texting,making cell phone calls or playing video games that the rest of
    us value human life.

  • captainharbatkin

    And cycling?

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