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.”

  • Anonymous

    Others are ahead of New York in penalizing reckless drivers. In Alabama . . .

    Let’s be clear here: if Alabama is legislatively ahead of you on any progressive issue, you are *very* far behind.

  • Frank Dell

    It boggles the mind that it is not illegal for cars to fly onto a sidewalk and injure or kill people. Only in New York kids, only in New York.

  • Would like to hear local councilman @JumaaneWilliams take on this needless viokence and lack of charges. Other than Stop & Frisk all he tweets about are the #NYKnicks

  • Eric McClure

    New York State needs to make analysis of what a vehicle’s black box recorded at the time of a crash mandatory. Did the brakes fail or did the driver hit the gas? We — and police and prosecutors — need to know.

  • Anonymous

    I would like to see some legislation, maybe call it “Denim’s Law”, which makes it a felony offense to cause injury or death as a result of hitting the gas instead of the brake.
    I’m sure curb-jumping drivers would quickly find a new reason to justify their behavior, but at least it would take away this insulting excuse.

  • The airbags in this smashed up car clearly would have deployed. If the cops didn’t get the data off the EDR, they are idiots. On the other hand, most EDRs are write-once affairs. Whatever data may have been written is still on there.

  • Miles Bader

    It’s also pretty mind-boggling that it actually seems to be happening with some regularity in NYC…

  • I’m still trying to wrap my head around the fact that riding a bicycle on the sidewalk is a crime, but not killing a person with a motor vehicle on the sidewalk. Combine that with an average of one person a WEEK getting killed by a motor vehicle on the sidewalk, and nobody being killed by a bicycle anywhere in the ENTIRE CITY since 08/2009, and the priorities seem woefully misplaced.

  • I’m still trying to wrap my head around the fact that riding a bicycle on the sidewalk is a crime, but not killing a person with a motor vehicle on the sidewalk. Combine that with an average of one person a WEEK getting killed by a motor vehicle on the sidewalk, and nobody being killed by a bicycle anywhere in the ENTIRE CITY since 08/2009, and the priorities seem woefully misplaced.

  • Joe R.

    I never could figure out why it’s illegal to ride bicycles on the sidewalk, either. What happens when people want to ride with their children? Do they all go on the street (dangerous for the children), do they all go on the sidewalk(illegal for the adults), or do the children ride on the sidewalk while their parents ride on the street(this separates them with a row of parked cars, pretty much negating the point of riding together in the first place)?

    Sidewalk cycling should be allowed except where posted. The only places it shouldn’t be allowed might be during business hours in very crowded parts of the city. You’re right, the city has its priorities backwards.

  • Ian Turner

    I would think that they would go to the park.

  • Mark Walker

    Bikes do not belong on sidewalks because sidewalks are safe havens for pedestrians. What am I supposed to do when you and your child barrel toward me? Levitate into the air?

  • Anonymous

    You set up a false choice between “barreling” and “not being on the sidewalk at all”. In fact, it is possible to ride on the sidewalk without any risk to pedestrians, simply by exercising common sense. Like Joe says, it is necessary to ban bikes on certain sidewalks with lots of pedestrians, for example in Midtown Manhattan and a few other neighborhoods, but in most of Uptown and the other boroughs there is no need for a blanket ban as sidewalks are relatively devoid of pedestrians.

  • Joe R.

    1) I don’t have children.

    2) I wouldn’t be riding at a fast pace on a sidewalk if any pedestrians were around.

    3) Since sidewalks are primarily the domain of people on foot, it’s incumbent upon me to go around them, not expect them to jump out of my way.

    A little common courtesy means space can be shared. Selective bans on sidewalk cycling in more crowded areas make sense. A blanket citiwide ban in all 5 boroughs is ridiculous. For what it’s worth, I get people on foot intruding on what should be “my” space all the time (i.e. joggers in bike lanes and jaywalkers). I don’t get all bent out of shape over it. I just go around them. By the same token, I should be able to share sidewalk space with pedestrians the very rare times I deem a road too dangerous to cycle on.

  • Joe R.

    That’s all good and well if you have a park near you and are riding just for exercise. Some people might actually be going somewhere with their children by bike. Therefore, they need to use regular city streets/sidewalks. Of course, if those streets were made safe for cycling, then everyone can ride there, but we have a long way to go before the majority of streets are safe for the 8 to 80 age group.

  • Mark Walker

    I live uptown and there are many sidewalks where it is a squeeze for two people on foot to pass in opposite directions, let alone people using vehicles. A wide sidewalk would foster fast cycling just as a wide road fast driving. I can think of nothing more likely to kill the bike share program than an epidemic of sidewalk riding.

  • Joe R.

    The narrower sidewalks are typically on quieter streets where it’s perfectly safe to cycle. As for wider sidewalks encouraging fast cycling, that’s not necessarily true. The vast majority of cyclists go at a speed inversely proportional to pedestrian density regardless of sidewalk width. They have a self-interest in doing this because they can get hurt worse than a pedestrian in a bike-ped collision. Also, sidewalks have those nasty little expansion joints every 5 feet or so. Those can be annoying at 10 mph, never mind at much higher speeds. Add in that you also have people exiting buildings. It’s a rare sidewalk where a cyclist feels safe going at high speed. Believe me, for the vast majority of cyclists a sidewalk is the last place they want to be. They’ll generally only ride there when the street is full of aggressive motor traffic, or in such poor condition as to be unusable, or blocked by construction.

  • Anonymous

    You yield to pedestrians when riding on a sidewalk. It’s pretty simple.