Driver Who Killed 9-Year-Old on Sidewalk Can Regain License in 5 Years

New York Court of Appeals Judges Jenny Rivera, Sheila Abdus-Salaam, Robert S. Smith, Susan P. Reid, and Chief Judge Jonathan Lippman are making it easier for reckless drivers to get away with killing people
New York Court of Appeals Judges Jenny Rivera, Sheila Abdus-Salaam, Eugene Pigott, Susan P. Read, and Chief Judge Jonathan Lippman.

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.

  • Joe R.

    “What you see is rather bad driving, poor judgement, poor control of the car, possible pedal misapplication.”

    And yet they’re going to let him drive again in 5 years? You should get a lifetime license revocation for something a lot less serious than what Byrd has done.

  • BBnet3000

    didn’t involve aggravating factors commonly present in criminal prosecutions, like intoxication, speeding, running a red light or leaving the scene.

    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

    That list of “aggravating factors” seems a bit too short given the circumstances.

  • Fire Ken Thompson

    THIS IS NOT JUSTICE.

    I AM SO ANGRY ABOUT THIS.

    Ken Thompson’s office is pathetic. Why not try for jail time, at least? If the Court of Appeals doesn’t give it to you then we know that they are the problem. But Ken Thompson isn’t even trying. This was an egregious and awful criminal act. Twenty days of community service? That’s not justice.

  • Komanoff

    With respect, I think S’blog errs by heading this post w/ pics of appellate court judges. Bklyn DA Thompson and his vehicular crimes chief lackey Esswein should have been featured.

    The 2009 Court of Appeals decision that reversed the conviction of Cabrera was a 4-to-3 vote: https://www.law.cornell.edu/nyctap/I08_0063.htm. Judicial practice evolves alongside changing mores. In just the past
    half-dozen years there has been considerable change in what is deemed
    socially acceptable. The outcome in a similar case today could easily be different.

    Moreover, the case against Brooklyn killer-driver Byrd seems far stronger than against upstate driver Cabrera. One is an adult, the other was a teen. One endangered scores of bystanders and strangers, the other “only” himself and his friends. (I put “only” in quotes to underscore that, yes, Cabrera was indeed heedless and reckless in the extreme; but Byrd was even more so.)

    Thompson is hiding behind Esswein, and Esswein is hiding behind a razor-thin decision that, in my view, doesn’t qualify as precedential. Thompson’s promising new task force notwithstanding, this deal is a disgrace.

  • SteveVaccaro

    This is shocking.

    “There’s no smoking gun”?

    “Smoking gun” is a legal metaphor for “circumstantial evidence.” As in, “no, I didn’t see the defendant shoot the victim with his gun; I only saw the victim fall to the floor and then turned to see the defendant’s gun aimed at him, and still smoking.” The point of the “smoking gun” metaphor is that sometimes, circumstantial evidence can be just as powerful as direct evidence. Direct evidence being, “I saw the defendant shoot the victim.”

    In the Merrywether case, there is DIRECT evidence–a videotape that shows Byrd’s bizarre tour de (deadly) force that took him up onto the curb not once but twice, into the roadway in the direction opposite traffic not once but twice, finally killing a child and seriously injuring his brother. There is no smoking gun here–there is SHOOTING GUN. What Byrd did was no less reckless than waving a loaded gun around on a busy street and playing with the trigger.

    Even if you accept the evaluation that a jury might be sympathetic towards driver claiming to have “made a mistake or two”–and I think that evaluation is completely wrong–you have to prosecute this case and seek jail time, even if its an uphill battle, and even if you lose. Letting Byrd plea down to no jail time and a 5 year revocation because “it’s a tough case” demonstrates an utter absence of prosecutorial moral compass.

    We need leadership from the District Attorneys in defining what Byrd did as a serious crime, and we are not getting it.

  • Brad Aaron

    Don’t disagree that Thompson et al are hiding behind Cabrera, but as recently as last year the COA ruled that killing a bystander while speeding through Brooklyn in a stolen van with police in pursuit does not equate to depraved indifference to human life.

    The court is the standard-bearer and it doesn’t seem to be evolving at all.

  • Brooklynite

    Such a massive failure of leadership by Ken Thompson. Just staggering.

  • Brooklynite

    I agree with Charles. Put Thompson’s photo on this post. This is his failure. This is not a win for him.

  • This case made some impression on me because, exactly a week before Byrd killed Lucian and maimed his brother, I was eating with my family in the restaurant he struck. We could in a sense easily have been caught up in the whole business. I had assumed that a case so obviously negligent would attract some kind of reasonable, serious sentence. I am utterly astonished that such behavior is not attracting jail time.

  • Kevin Love

    This is completely absurd. If I am sitting on a jury, do I have to be an amateur clergyman and try to determine what is “morally blameworthy”?

    The USA is the only place in the world that goes for this sort of nonsense. Cross the New York/Ontario border and “Dangerous Operation of a Motor Vehicle Causing Death” is good for up to 14 years in jail. And if I am sitting on an Ontario jury, what I have to determine is whether or not the car driver was driving “a motor vehicle in a manner that is dangerous to the public.”

    As a juror, I have serious difficulties about being an amateur clergyman. But I have no problem at all looking at the evidence and deciding if it was proven beyond reasonable doubt that the car driver was driving “a motor vehicle in a manner that is dangerous to the public.”

    See:

    http://en.wikibooks.org/wiki/Canadian_Criminal_Sentencing/Offences/Dangerous_Operation_of_a_Motor_Vehicle

    New York needs this kind of law to protect its citizens.

  • SteveVaccaro

    The DAs rightly point to the judicial nonsense about “serious moral blameworthiness” engrafted onto perfectly clear laws which essentially create a special exemption from the law for vehicular criminals. But there are only three ways to change such judge-made law: influencing judicial appointments, passing legislation to correct it, or aggressively bringing and litigating cases that expose doctrinal shortcomings and contradictions. If you’re not working on one of those three tracks to fix things, you’re part of the problem.

  • armyvet00

    I’ve been very disappointed with Judge Jenny Rivera. To have come from CUNY Law and with such a strong social justice background I could not have been more surprised with her ruling in the case of Jose Maldonado. She is exhibiting what seems like a desire to rule on the side of defendants instead of saving lives. I understand Judges are limited to applying the law, but her explanation of her decision takes the blatant lies of the defendant at face value, including that his losing control and crashing the vehicle was really just his best attempt at stopping the vehicle so he would not kill or hurt anyone else- after plowing into someone and sending her 165 feet in the air and her death. That “explanation” defies common sense and physics; it was a decision the Judge made, not one required by law.
    More on the Maldonado case here: http://www.streetsblog.org/2014/07/23/new-yorks-top-court-exhibits-depraved-indifference-to-pedestrians-lives/

  • armyvet00

    Both our lawmakers and prosecutors lack the willpower and courage to address these situations. Have they never experienced the near miss of an inept NYC driver? One need only be a pedestrian for a week to see the problem- drivers that simply do not care to be proficient at the skill of driving!

  • Cold Shoaler

    With a “prosecutor” like this, does the defendant even need to bother with representation of his own? It’s like the DA is working for Mr. Byrd! Unbelievable.