Advocates Don’t Expect Judge’s Ruling Against Right of Way Law to Hold Up

In rejecting the case against a school bus driver who struck and killed an elderly woman in a Queens crosswalk, a criminal court judge deemed the city’s Right of Way Law unconstitutional. The constitutionality of the law had previously been upheld in a different court, however, and street safety advocates don’t expect the new ruling to hold up. Applying the same logic would render criminal statutes against drunk driving unconstitutional as well, they say.

Queens Criminal Court Judge Gia L. Morris

The Right-of-Way Law, enacted in 2014, made it an unclassified misdemeanor for drivers to strike pedestrians or cyclists with the right of way. The law was intended to overcome NYPD’s reluctance to investigate injury crashes that officers did not witness firsthand.

The decision released Friday by Queens Criminal Court Judge Gia L. Morris regarded the case of Isaac Sanson, who struck and killed 85-year-old Jeanine Deutsch in the crosswalk as he turned onto 70th Road from 108th Street in Forest Hills on December 19, according to the Daily News. Deutsch succumbed to her injuries two months later, and the city charged Sanson with misdemeanor failure to yield.

In her decision, Morris sided with Sanson’s claim that the law violates his right to due process because it imposes criminal penalties without needing to prove the perpetrator’s intent or knowledge of wrongdoing.

“The very fabric of our criminal justice system is that an accused person stands before a court innocent until proven guilty, and is entitled to significant constitutional protections separate and distinct from a civil case,” Morris wrote.

The decision conflicts with — but does not overrule — New York County Criminal Court Judge Ann E. Scherzer’s ruling from December in the case of MD Hossain, a yellow cab driver who killed 58-year-old Silvia Gallo in August 2014 while turning into a crosswalk.

Scherzer argued that the Right of Way law does not presume driver guilt, since prosecutors must “prove beyond a reasonable doubt that (1) defendant operated a motor vehicle, (2) that defendant’s motor vehicle caused contact with a pedestrian or cyclist, (3) that the pedestrian or cyclist had the right of way at the time of the impact … and (4) suffered physical injury as a result of the collision.”

In a footnote, Morris mentions the Scherzer ruling and two other decisions upholding the Right of Way Law, saying the earlier cases did not examine the same constitutional issues. Morris did not address the prior rulings in detail in the body of her decision.

Street safety advocates familiar with the law don’t expect Morris’s ruling to hold up if it is appealed. Long-established criminal laws, such as drunk driving statutes, apply the same standards that Morris deemed to be unconstitutional in the Right of Way Law, they say.

“There is absolutely no awareness of wrongdoing that is required in order to hold someone who strikes a pedestrian while driving drunk criminally liable,” said attorney Steve Vaccaro, who helped draft the law. “All that needs to be shown is that the person is in a state of intoxication and that the person’s car hit another, period.”

The standard of proof that Morris demands in her ruling would be impossible to meet, he added. A car is a dangerous instrument, and motorists operate in the privacy of their vehicles — making it nearly impossible to determine if defendants are being truthful about their intent or knowledge of wrongdoing.

“Just like with a gun, there is presumed recklessness when the thing goes off notwithstanding the claims of gun owners that the safety catch was on, or they didn’t know how to operate it, or it was all a big mistake,” Vaccaro said.

In a statement, Transportation Alternatives cited parallels with the first laws criminalizing drunk driving a generation ago:

Judge Morris’ recent decision is sadly reminiscent of the decades-long battle to criminalize and stigmatize the reckless and deadly act of driving while intoxicated — a practice that was once accepted, just as it is viewed as normal in today’s New York City for drivers to turn into a crosswalk without waiting for it to be clear of pedestrians. Like the Right of Way statute, DWI laws do not require that drivers be aware of their own wrongdoing. All that needs to be shown is that the driver was in a state of intoxication and hit another person.

Just as penalties against drunk driving eventually became firmly established in American jurisprudence, we are confident that the Right of Way Law and its treatment of negligent failure to yield will prevail on appeal. Judges are not permitted to nullify clear expressions of legislative intent simply because they disagree with them. There has to be a constitutional basis for such a ruling, and in this case, we believe Judge Morris has failed to articulate such grounds.

Streetsblog has asked City Hall and Queens DA Richard Brown if they plan to appeal Morris’s decision, which does not apply to jurisdictions outside Queens. We will update the post when we receive replies.

Update: Brown’s office says: “We are studying the decision and weighing our appellate options.”

Update #2: In a statement, the de Blasio administration says it will continue to apply the Right of Way Law:

19-190 is a vital tool to hold accountable drivers who seriously injure or kill pedestrians with the right of way while driving dangerously. This is an important piece of Vision Zero’s comprehensive approach to reducing death and serious injury on the streets. We disagree with the court’s non-binding decision and will continue to investigate, enforce, and charge this law.

  • JudenChino

    What a ridiculous ruling but goes to show just how much so many of our pols/judges/leaders have internalized the notion that instances of street violence are just “accidents” and to impose the weakest fucking possible criminal sanction for killing someone in a cross walk is somehow violative of due process. Like any showing of negligence, one need not prove intent. Either you’re in control of the vehicle, or you’re not. That’s it. And if you couldn’t see an old lady in a crosswalk, then yah, you shouldn’t be driving and you should be punished accordingly.

  • Ari_F_S

    Obviously this is a bad decision. But it could be dangerous.

    I could see a judge argue that – with drunk driving – the “recklessness” or “awareness of wrongdoing” are established when the driver starts drinking. It would be nearly impossible to prove a similar recklessness for a routine failure to yield without other contributing factors (like alcohol, cell phone distraction, etc.).

  • Geck

    The judge in People v Hoissain explained

    http://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-25375.html:

    First, defendant’s complaint that this statute criminalizes conduct on a
    “strict liability” basis does not amount to a constitutional challenge.
    Strict liability crimes are clearly contemplated and authorized in New
    York State, as evidenced by PL § 15.10 which states that the:

    minimal requirement for criminal liability is the performance by
    a person of conduct which includes a voluntary act or the omission to
    perform an act which he is physically capable of performing. If such
    conduct is all that is required for commission of a particular offense,
    or if an offense or some material element thereof does not require a
    culpable mental state on the part of the actor, such offense is one of
    strict liability.’

    AC § 19-190(b) fits squarely in the definition of a strict liability
    crime and certainly meets the “minimal requirement” for criminal
    liability by specifying voluntary acts which an actor is physically
    capable of performing. Namely, the act of driving a motor vehicle
    without yielding to a pedestrian or bicyclist who has the right of way.

  • Anandakos

    Five’ll get you twenty that someone in this judge’s immediate family has been a repeater DUI and ended up in prison or jail for it. And she’s just boiling mad about it.

  • Vooch

    “…“Just like with a gun, there is presumed recklessness when the thing goes off notwithstanding the claims of gun owners that the safety catch was on, or they didn’t know how to operate it, or it was all a big mistake,” Vaccaro said….”

    this

  • Reader

    “…it imposes criminal penalties without needing to prove the perpetrator’s intent or knowledge of wrongdoing.”

    If one has to prove intent or knowledge of the potential to harm, then most versions of criminal negligence cease to exist as a legal concept, no? Or did this judge get her law degree at the American Automobile Association?

  • Kevin Love

    Or the judge herself…

  • Kevin Love

    “…imposes criminal penalties without needing to prove the perpetrator’s intent or knowledge of wrongdoing.”

    Because judges have mental telepathy capabilities? I am perfectly happy with laws that criminalize illegal BEHAVIOR that is violent and dangerous. Behavior that is established beyond reasonable doubt based upon EVIDENCE.

    No mind-reading required.

  • Nathan Rosenquist

    I’m guessing she has some friends over at the Transportation Worker’s Union…

  • Joe R.

    This law isn’t criminalizing merely failing to yield to a pedestrian or cyclist, in which case maybe there might be a legal challenge because it imposes sanctions where there is no loss of life, injury, or property damage. Rather, it imposes a penalty only when a pedestrian or cyclist is actually struck due to the driver’s failure to yield. When there is harm caused, there is no legal need to prove the perpetrator’s intent or knowledge of wrong doing. If I kill someone, will the state dismiss the charges if it can’t prove I had intent or knowledge of wrongdoing? Obviously not. Anyone licensed to drive an automobile should know it’s wrong to hit a pedestrian or cyclist, even if you had no intent of doing so.

  • AMH

    One quibble–the “driver” is not a driver until he or she takes control of a motor vehicle.

  • Kevin Love

    So if I get drunk and rape a woman its OK? Hey, no intent! I was drunk!

  • AMH

    No, and intent is or should be irrelevant. A crime is a crime, and inebriation is obviously not an excuse.

  • NYer

    The Windshield Perspective is strong with this one.

  • Susanmmcdaniels1

    ??? http://GoogleMoney1/GetPaid98$/h….???????????????????????????????????????????????????????????mk3???????

  • Ari_F_S

    Drinking and driving is reckless.

  • neroden

    I believe that it would be more appropriate to refer to Morris as a Criminal Judge. Her ruling is bogus and has nothing to do with the American legal system whatsoever. We have lots and lots of crimes which are determined simply by the actions of the perpetrator, not by intent — they’re called “strict liability” crimes.

    If she’s consistent, I presume Morris throws out all drug cases instantly, since the drug laws are a much more extreme case of criminalizing something without requiring any specifically malicious intent or knowledge of wrongdoing? No, she doesn’t? Why am I not surprised.

  • ahwr

    This law isn’t criminalizing merely failing to yield to a pedestrian or cyclist, in which case maybe there might be a legal challenge because it imposes sanctions where there is no loss of life, injury, or property damage.

    You know there is a potential for fine+jail time (sanctions) in that law without the vehicle making contact with the ped/cyclist, right?

    §?19–190?Right of way. a. Except as provided in subdivision b of this section, any driver of a motor vehicle who fails to yield to a pedestrian or person riding a bicycle when such pedestrian or person has the right of way shall be guilty of a traffic infraction, which shall be punishable by a fine of not more than fifty dollars or imprisonment for not more than fifteen days or both such fine and imprisonment. In addition to or as an alternative to such penalty, such driver shall be subject to a civil penalty of not more than one hundred dollars which may be recovered in a proceeding before the environmental control board. For purposes of this section, “motor vehicle” shall have the same meaning as in section one hundred twenty-five of the vehicle and traffic law.

    If I kill someone, will the state dismiss the charges if it can’t prove I had intent or knowledge of wrongdoing?

    What charge? Intent/mental state shows up in homicide charges, it’s a big part of the difference between them.

    http://ypdcrime.com/penal.law/article125.htm

    http://www.streetsblog.org/2014/07/23/new-yorks-top-court-exhibits-depraved-indifference-to-pedestrians-lives/

    Remember this? Intent matters. Without intent you can still be convicted of homicide:

    S 125.10 Criminally negligent homicide. A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.

    http://ypdcrime.com/penal.law/article15.htm#p15.05

    Since the article mentions it…

    Just as penalties against drunk driving eventually became firmly established in American jurisprudence

    Intent can be an issue there too

    http://www.cnn.com/2014/02/28/justice/kerry-kennedy-dwi-trial/

  • ahwr

    Read her ruling, her argument is that the law was not intended to be a strict liability statute, and that the ‘due care’ standard the charge relies upon has the effect of criminalizing ‘ordinary negligence’.

    http://www.nycourts.gov/reporter/3dseries/2016/2016_26199.htm

    Unless the politics have changed enough that the law could not be passed if it came up today, then if her ruling is upheld all that would happen is you’d see Sanson and anyone who has been convicted under the law get a pass on these minor criminal charges (but of course still face civil liabilities) and the state could pass a revised version of the law that wouldn’t run into any constitutional issues. As long as that last part happens (article update #2 tells me it probably would) it wouldn’t really be a huge deal in the grand scheme of things.

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