Brooklyn DA Brings Homicide Charge for Flatbush Cyclist Killer

The driver who killed a cyclist on Flatbush Avenue yesterday has been charged with criminally negligent homicide by the office of Brooklyn District Attorney Charles Hynes.

duryea_flatbush.jpgImage: NY1

The cyclist, 18-year-old Jake McDonaugh from Windsor Terrace, was riding east on Duryea Place, according to witnesses. When he entered the intersection at Flatbush Avenue, Michael Oxley, the driver of a Dodge van, struck and killed him. Oxley has been charged with criminally negligent homicide, third degree aggravated unlicensed operation of a motor vehicle, reckless driving, speeding, and running a red light, according to the NYPD. A court document outlining those charges can be read here [PDF].

Sober drivers who stay at the scene of a crash are rarely charged with homicide in New York. But the Brooklyn DA’s office has pursued similar charges before. In 2007, prosecutors charged Alfred Taylor with criminally negligent homicide for killing a cyclist on Fulton Street in Bed Stuy.

Street safety advocates praised the decision to aggressively prosecute Oxley. "Coming in a situation where alcohol was not a factor, these charges show that our DAs will continue to get tough on pervasive problems like speeding, running red lights and getting behind the wheel of car with a suspended license," said Transportation Alternatives Executive Director Paul Steely White. "These are all dangerous and illegal acts that cause hundreds of deaths and thousands of injuries on our streets each year."

Readers who follow the legal repercussions of traffic crime may be wondering what distinguishes this case from the multitude of traffic fatalities where charges are not filed. The Brooklyn DA’s office wouldn’t comment on their decision, but they may have chosen to bring more serious charges for a few reasons. First, this case appears to fall under the so-called "rule of two." That’s the non-binding rule of thumb which states that criminal negligence applies when drivers violate more than one traffic law simultaneously. In this case, Oxley was seen running a red and speeding.

The DA’s charge may also have been spurred by the New York Court of Appeals’ recent Caban decision, which found that, in some cases, driving with a suspended license can be cited as evidence of criminal negligence. That may be less of a factor because the Caban decision distinguishes between drivers whose licenses have been suspended for safety reasons, and cases where driving privileges have been revoked for other reasons. According to court documents, Oxley’s license was suspended for not paying fines for speeding, not for unsafe driving itself.

  • As I read the charge, it does not allege that Oxley was speeding, but rather that he was riding at a speed that was not prudent under the circumstances. That’s different than exceeding the posted speed limit (NYS VTL Section 1180(a) covers the former, while Section 1180(d) covers the latter). “Imprudent speeding” is an extremely common violation which almost by definition applies in most collision scenarios. If prosecutors view Section 1180(a) as a violation in determining whether two violations took place during a collision, they could pursue criminal charges in many more cases.

    Perhaps another key factor behind this prosecution is the availability of solid witness statements. Usually when the motorist kills the victim, there is no evidence of the motorists’ speed other than the motrists’ own testimony (or that of the motorist directly behind, who will often have the same incentive to state that all vehicles were traveling within the speed limit that the motorist causing the crash has).

  • Ian Turner

    The rule of two seems to have been passed over a number of times in the last year, but this one seems to qualify for the “rule of four”. Perhaps we are seeing rule inflation?

  • Bicycles Only, would you say that there is room for the police to be more aggressive in obtaining more evidence and more “solid witness statements” ? if the investigating officers know that the DA’s are going to be more aggressive with these types of cases, are they more inclined to seek out and take accounts from more witnesses?

  • J

    Is there a rule of two for crane negligence that kills someone? What about building collapses that kill? We seem to look for reasons not to persecute those who kill with automobiles.

  • “According to court documents, Oxley’s license was suspended for not paying fines for speeding, not for unsafe driving itself.”

    last time I checked speeding was unsafe driving….

  • Paul,

    It stands to reason that cops interested in serving the public–including those killed in MV crashes–will perform more thorough investigations if they believe the information they gather will make a difference in the law enforcement outcome. But I really can’t do more than speculate, because the NYPD won’t disclose their investigative materials, making it impossible to gauge the quality of their investigations.

  • Peter


    I think what Noah was getting at was that the individual’s license was technically suspended for failure to pay a fine associated with a moving violation, as opposed to having his license suspended for the actual act of speeding itself. This distinction is important, especially if we are going to draw possible parallel applications from the Caban decision, because the court there took the time to focus on why a license was suspended to determine whether a jury can hear about it–was it for failure to pay a fine, or was it for the actual act itself which led to someone receiving a citation which he then doesn’t pay.

    Also, I have to say, pulling out one quote from an article and then leaving a sarcastic comment implying that the author does not realize that speeding is unsafe is both unhelpful and rude.

  • kaja

    > the NYPD won’t disclose their investigative materials, making it impossible to gauge the quality of their investigations.

    Cui bono?

  • JK

    Someone should organize a “Prosecuting Vehicular Crimes After Caban” seminar or seminars, for DA’s and the PD mgmt in charge of crash investigations. It would be perfect for a TA, NYC Bar, DA Assoc, Streetsblog event. Maybe Cy Vance Jr. could help extend invites to the cops and other DA’s. Streetsblog could provide the venue. It will take dozens of successful prosecutions under Caban to energize the cops and staff level DA’s to fully exploit this decision.