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Immune From Prosecution, Curb-Jumping NYC Motorists Claim More Victims

Denim McLean, the toddler who was one of 10 people struck by a curb-jumping motorist in East Flatbush last month, died from his injuries.

NYPD had a litany of excuses, but no charges, for the curb-jumping driver who killed 2-year-old Denim McLean. Photo via Daily News

Other than driver speed, it's still not clear what caused the March 30 crash, which put at least three others in the hospital. The victims included Denim's mother, Wendy McLean, who remains in a coma.

NYPD initially told the media that the driver was northbound on Utica Avenue near Church Avenue when she swerved to avoid another vehicle. Police also said the 48-year-old driver "accidentally" hit the accelerator instead of the brake as she approached a red light. Over the weekend the Post reported that the driver "told investigators her brakes failed before she blew a light and jumped the sidewalk." No charges were filed by police or Brooklyn District Attorney Charles Hynes.

In the words of Council Member Peter Vallone Jr., this crash is another example of NYPD acting as defense counsel for the driver. More important, it again points to a justice system that cares less about the car on the bloody sidewalk than the feelings of the motorist who put it there.

A study conducted by doctors and researchers at NYU Langone Medical Center found that 6 percent of pedestrians injured by motorists were struck while on a sidewalk. Days before the crash that killed Denim McLean, the Post talked to attorney Steve Vaccaro about motorists who have escaped charges for recent curb-jumping incidents that resulted in death or injury. Of the driver who put 90-year-old Mansoor Day in extremely critical condition, an anonymous source said the "Manhattan District Attorney’s Office found that his behavior did not amount to criminality." Likewise, the drivers who killed pedestrians Tenzin Drudak in Queens and Martha Atwater in Brooklyn were not charged for causing a death. Wrote the Post:

Under the law, when drivers haven’t been drinking, prosecutors must first find "recklessness" when applying the most serious criminal charges.

That means the driver was aware of the risk of his or her behavior but disregarded it anyway -- a state of mind that is often difficult to prove in court.

One way to increase the odds of criminalizing driver behavior would be to presume that any motorist who ended up on the sidewalk was reckless.

That would put the onus on the driver to explain how he got up there, similar to the presumption of recklessness assumed for drivers who get behind the wheel sloshed.

Others are ahead of New York in penalizing reckless drivers. In Alabama, to cause a death while violating a traffic law is to commit homicide, regardless of intent. The Washington, DC, negligent homicide statute specifically precludes willful or wanton acts, and requires only that a vehicular death be precipitated by careless or reckless driving.

While prosecutors often cite weaknesses in New York State code, including laws that let suspected drunk drivers off the hook, the state's district attorneys have yet to mount a concerted, high-profile campaign for VTL reform. Manhattan DA Cy Vance is the current president of the District Attorneys Association of the State of New York. His one-year term will expire this summer. Vance himself has implored Albany to approve the proposed NYC speed camera program, but has not issued similar entreaties for the legislature to toughen or streamline state vehicular laws.

On the local level, says Vaccaro: "The City Council has passed a law making it a crime to ride a bicycle on the sidewalk in a manner that risks injury of pedestrians. When will the council pass a similar law for motorists -- especially for motorists who actually do injure pedestrians on the sidewalk?"

As lawmakers dither and police go through the motions, the number of people hurt and killed by curb-jumping drivers in NYC continues to climb. Last weekend a man in his 80s rammed a building and three pedestrians in Mott Haven. The victims were hospitalized in serious condition. According to NY1: "Police say it appears that the event was merely an accident and that no criminal wrongdoing is suspected."

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