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East Harlem

From the Outset, NYPD “Suspected No Criminality” in Death of Max Mendez

3:12 PM EDT on August 2, 2010

second_ave_crossing.jpgThe location where Max Mendez was killed by a tow truck operator last Friday, described in some press accounts as an "entrance ramp" to the Triborough Bridge. Image: Google Maps

Three days after 6-year-old Max Mendez was killed by an MTA tow truck operator while walking with his mother to the Wagner Pool at 124th Street, the story that's emerging suggests that motorist negligence may have contributed to the deadly collision. The only constant among the press coverage, however, is that the police suspect "no criminality."

On Friday, most news reports made it seem as though Max and his mother, who was injured and survived, ran into the path of a truck driver responding to a disabled vehicle on the Triborough Bridge. Here's how the Post first relayed information from police on the scene:

A 7-year-old boy was struck and killed by an MTA towtruck in East Harlem as he jaywalked across an entrance ramp to the Triboro Bridge with his pregnant mother, police said.

max_mendez.jpgMax Mendez. Photo: WSJ

This location (which is not elevated above the street, as you might expect when picturing "an entrance ramp," but where police believe pedestrians are "prohibited" anyway,
according to the Daily News) provides a direct connection between a
pedestrian island on the east side of Second Avenue and a block with
pools and basketball courts. Yet the first round of coverage was rife with implications that Max and his mother, Erika Lorenza, were in a place they had no business being.

As more details have come to light, the story has changed. On Saturday, the Post reported that the truck driver was disembarking from the sidewalk, and that Max and Lorenza were not in the roadbed:

Max Mendez, a second-grader at PS 197, and his mother were holdinghands on the sidewalk near 124th Street at around 9 a.m. when the truckslammed into them...

Cops said the yellow MTA Bridges and Tunnels truck was parked onthe sidewalk and started moving to respond to a disabled vehicle on thebridge, police at the scene said.

Some witnesses told the Post that the truck driver was on his phone at the time of the collision. And the Journal reports that he didn't check in front of him before pulling out from the sidewalk:

Witnesses said it appeared that the driver, who hasn't been identified,looked behind him to make sure he wasn't pulling out in front oftraffic. In doing so, they said, he failed to see the two pedestriansin front of him.

There are discrepancies between accounts of the collision, but there seems to be a significant likelihood that the truck driver failed to exercise due care in a situation that demanded extreme caution. Still, from the earliest reports onward, including this ABC 7 piece filed while the driver was still being interviewed, police have told reporters that they "suspect no criminality." Why?

NYPD's public information office (DCPI) hasn't returned Streetsblog's query about why the police don't think this was a criminal act. But I can say from experience that when you do get an answer out of DCPI about a fatal crash, most of the time it won't stray much from this rote response: "The driver wasn't intoxicated, he stayed at the scene, no criminality is suspected." Nothing about recklessness or carelessness. No mention of whether the driver may have been speeding, using a mobile device, or on the sidewalk. In almost every case, sober drivers who stay at the scene get the all clear.

From the evidence so far, it seems too soon to rule out criminal negligence in the death of Max Mendez. And maybe investigators are still trying to piece together what happened. You'd just never know it from reading the paper or watching the news. The case may still be open -- in which case, good luck prying the crash report out of NYPD -- but it is apparently never too soon for police to write off a fatal collision in the media by telling reporters that "no criminality is suspected."

In addition to NYPD's silence on the matter, the MTA is not commenting, aside from a short statement released last Friday.
No word on whether the driver has been disciplined or if the agency is
changing the way it stages responses to distress calls on the
Triborough. Manhattan DA Cy Vance's office is not commenting either, citing a blanket policy of not discussing cases. We can't say, for instance, whether investigators have subpoenaed the driver's phone records. 

So, while we've known for some time now that the NYPD suspects no criminality, we may never know why.

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