Public Still Doesn’t Know Why Cy Vance Failed to Charge in Sian Green Case

Last Friday WNYC ran a piece in which Bronx vehicular crimes chief Joe McCormack explained why he thought Manhattan District Attorney Cy Vance failed to file charges against the cab driver who drove onto a Midtown sidewalk and severed the leg of tourist Sian Green. The story offers valuable insight into the mindset of prosecutors, but key questions about the case remain unanswered.

The public still does not know how Cy Vance decided that the driver of this cab, who hit two people and severed a woman's leg, should not be charged. Photo: @BraddJaffy
The public still does not know how Cy Vance decided that the driver of this cab, who hit two people and severed a woman’s leg, should not be charged. Photo: ##

McCormack said that in order to charge Faysal Himon with a crime, the Vance team would have to prove intent. “What we look at in the criminal arena is when the mistake is greater than ordinary negligence and rises to criminal negligence,” McCormack said. “And what a defendant can be charged with depends on case law.”

Reporter Kate Hinds also points to the “rule of two,” an arbitrary standard that holds that a New York State motorist who is breaking at least two traffic laws at the time of a crash may be charged with criminal negligence, as a possible factor in the decision not to charge Himon.

Civil attorney Steve Vaccaro believes Vance might have gotten a conviction on misdemeanor charges — third degree assault and second degree reckless endangerment — that don’t require prosecutors to prove intent. As for case law and the “rule of two,” recent decisions by the Court of Appeals, the state’s highest court, have made it harder for prosecutors to secure ironclad convictions against motorists who injure and kill. But does that mean reckless drivers can’t be held accountable for maiming and killing innocent bystanders?

One Court of Appeals case in particular looms large: People v. Cabrera, which held that reckless driving had to be “morally blameworthy” to sustain a homicide conviction. Maureen McCormick, head vehicular crimes prosecutor in Nassau County, explained the Cabrera ruling to Streetsblog in 2009:

[A]s recently as May 2008, New York’s highest court held that a 17-year-old driver who violated his junior license by driving with four unrelated passengers, without seatbelts, and who also was speeding at 70-72 mph through a curve with a posted caution speed of 40 mph, and who lost control sending the car over an embankment and killing three of his passengers, could not be held criminally liable. This decision alone has resulted in numerous defense motions to have cases dismissed claiming that “speed alone” or any traffic infraction “alone” is not sufficient to sustain criminal negligence.

McCormick continued: “Our position is that this is nonsense. A person driving 100 mph in front of the court on Centre Street in Manhattan at lunch time when the streets are flooded with pedestrians MUST be chargeable with a crime.”

Court precedents do have a chilling effect, but as McCormick indicates, the “rule of two” is a defense strategy. It’s up to prosecutors and police to decide whether they want to cede the argument by never filing charges in the first place.

Even if you accept the “rule of two” as the standard, there are a number of serious crashes for which drivers in New York City should have been prosecuted, but were not. Here is a partial list. Arguably, the Sian Green case could be added to it.

Driving on a sidewalk is not a crime in New York City — but it is a traffic infraction. So is careless driving. Had Himon been issued these two summonses, theoretically that would have been sufficient for Vance to pursue a criminal case. Yet after a two-month investigation of a crash in which the driver mounted a curb in broad daylight in the heart of crowded Midtown, striking two people, Vance’s office declined to file charges.

Why didn’t Vance try to get a conviction for assault or reckless endangerment? Why was evidence gathered from interviews, surveillance video, 911 calls, and black box data deemed insufficient to support other charges? Why didn’t Vance make a case based on the “rule of two”? The public still doesn’t know.

The nut of the WNYC piece is this quote from Juan Martinez, general counsel for Transportation Alternatives: “We need prosecutors to bring tough cases to fix the case law,” Martinez said. “And we need legislators to change the law.” This won’t happen as long as prosecutors and police continue to duck responsibility for bringing reckless drivers to justice.

  • JarekAF

    Ok, so the problem is the law then. If Steve V says the best case scenario is a misdemeanor then what’s the point. What’s the prosecutor supposed to do, put on a full-on trial with forensic experts so this guy can get at worst 3 months jail and a fine less than $2,000? That’s hardly deterrence.

  • Brad Aaron

    Yes. That and make some noise about the laws they say are preventing them from doing their jobs.

  • qrt145

    Regarding intent and “lost control”: I remember reading of a case in which a dog owner got charged with assault with a deadly weapon, even though the owner didn’t command the dog to attack. It seems that people are expected to have better control of their dogs that they have of their cars!

  • s

    Even when intent is not a factor, and even when the outcome of a trial is anything but certain, Cy Vance can bring criminal charges in cases where negligence leads to death.

  • BBnet3000

    The DA charges lots of people with misdemeanors. Are you really saying what is the point of charging anything less than a felony?

    Also, charging someone with a crime does not mean it will go to trial. Only a small percentage do.

  • Joe R.

    I think the point here is even if the DA wins the trial, the punishment is still disproportionate to the crime. We’re not talking about shoplifting here where 3 months and $2000 might be a fair punishment. A young woman was maimed for life, likely traumatized as well, probably will be unable to support herself, and will require lifetime care of some sort. I think the DA would look worse pursuing a trial when the best possible outcome is a slap on the wrist given the crime. Moreover, if he loses then drivers will basically feel they can kill or maim with impunity. That will certainly make things worse for everyone. Now if the law allowed the death penalty for crimes like this, or at least life without parole, there might have been a different course of action.

    I personally would be happy if he and others who commit similar carnage can never again drive a motor vehicle. Who knows, he might be a wonderful, productive person when he’s not behind the wheel of a taxi but he’s a public menace when he is.

  • OK, But …

    “Moreover, if he loses then drivers will basically feel they can kill or maim with impunity.”

    By filing no charges, that’s exactly what Vance made sure of, no?

  • Joe R.

    You make a good point, but I think the effect would be worse trying someone and having them beat the charges than not bringing charges in the first place. That would make bringing charges less likely in the next case, and so forth. For all we know, maybe that’s already happened enough to make DAs think pressing charges in these cases is a long shot. As others have said, the law needs to be reformed. We need higher penalties and lower burdens of proof.

    One thing we can do with relative ease is automatically permanently strip the license of people who kill or injure while driving. Yes, it would require a change in law but legally there are no options for appeal since driving is considered a privilege by the state. Jail time and fines are great if you can get them, but I think we should go after the low-hanging fruit like permanent license revocation first.

  • BBnet3000

    There wouldnt be a trial. Very few people go to trial over a misdemeanor.

  • Ian Turner

    Drivers are already getting the message that they can kill or maim with impunity. You know what makes that message louder than a not guilty verdict? A failure to prosecute.

  • Anxiously Awaiting Bikeshare

    The criminal justice system does such a horrible job and it is unsalvageable because of too much case law decided by too many drivers combined with a mainstreaming of unsafe driving so that a “reasonable person” drives unsafely.

    It isn’t ideal, but at this point I’d prefer to let the civil justice handle this sort of thing and make it so that car insurance companies can not insure against bodily injury to another person so that the driver is responsible for his/her actions and not the insurance company.

  • Ian Turner

    Without insurance, you just get indigent drivers and uncompensated victims. Better to require even more insurance — $1m feels about right — and ditch the high-risk pool.

  • SteveVaccaro

    Personally, I’m not a big fan of imprisonment. I prefer taking people’s license to drive away, and that does happen when people are convicted of vehicular misdemeanors (it should happen in many cases, including Himon’s, that do not involve a criminal conviction). I think three months imprisonment is significant for anyone. If people start to get jail time for doing what Himon did, either driver behavior will change, or we’ll have to consider modifying the law to include stiffer penalties.

  • Morris Zapp

    With possible — possible — exceptions for ice and rain, and the very low probability of catastrophic vehicle malfunction, it is impossible to “lose control” of a car unless you are driving recklessly. It can’t be done.

    If you cop to “losing control,” in virtually every case you are acknowledging that you don’t possess the requisite skill to operate a vehicle on public roads.

  • SteveVaccaro

    The notion of “reasonableness” is prevalent throughout criminal and civil law, and is useful. IMO it is the best way to tether criminal law to community mores in a justice system that uses juries to find facts. Criminal law can be reformed without dispensing of the “reasonableness” standard, but by dispensing with the idea that there must be a “gross deviation” from what is reasonable–something that seems to mean something different to each person–and by providing concrete examples of the type of conduct that will be found a criminal violation. I took a stab using this approach in my next post. Take a look and let me know what you think!

  • Kevin Love

    Steve, I agree with you that we need to start by taking away the driver’s licence of car drivers who kill or injure people.

    Since driving is a privilege, not a right, the state can do this administratively. Car drivers would not have a trial with presumption of innocence.

    Instead, what I have in mind would be something like a parole board. Let’s call it a Driver’s Licence Review Board. At a parole hearing, the inmate must convince the parole board that he does not pose a threat to society. The Driver’s Licence Review Board would operate in the same way.

    If a car driver kills or injures someone, his driver’s licence would be automatically confiscated, on-the-spot, by police. Then, at a Driver’s Licence Review Board, the car driver must convince the Board that he does not pose a threat to society if given his driver’s licence back.

  • Kevin Love

    In my opinion, three months in jail is a deterrence. How many employers are going to give a three month leave of absence so that their employee can go to jail? Anyone with a job is going to lose that job.

    Also there is a certain social stigma to being in jail. The criminal’s friends, relative and neighbors will know that he just spent the last three months in jail. Imagine how a criminal explains that to his wife and children.

  • SteveVaccaro

    There is something called the Safety & Business bureau of the DMV that is supposed to function along the lines you describe. I have never seen it suspend or revoke a license absent a criminal conviction.

  • Kevin Love

    Perhaps the Safety & Business bureau should be given that mandate. The problem with relying upon a criminal conviction is that there is (and should be!) a presumption of innocence.

    But driving is a privilege, not a right. The burden of proof should rest upon the car driver to establish that he is not a danger to society.

    In my opinion, whether or not a car driver keeps the privilege of driving needs to be entirely separated from the criminal court system. Criminal courts start with a presumption of innocence. A driver’s licence hearing should start with the car driver having the onus of establishing that he no longer poses a threat to society if ever allowed to drive again.

  • Kevin Love

    Further thoughts…

    What should happen before a car driver would even be allowed to appear before the Safety and Business bureau to make the case that he no longer poses a danger to society if allowed to drive? He should have to re-pass a driving test and exam.

  • safetygal

    Its important to note that Joe McCormick is the real deal – trying every day to get justice for those that are victims of traffic violence. If he anyone can change the system, it’s him.

  • Joe R.

    He/she should have to pass a driving test which is a lot more difficult than the regular driving test. That said, I feel this recertification process would only be appropriate in cases where a driver caused a collision with relatively minor injuries. If you kill or cause life-altering injuries through negligence, recklessness, or incompetence, you should never be allowed to drive again. Same thing if you drive drunk or high.

    I also wish if we were to pass some of these ideas into law that we make the standard driving test much harder. The idea of universal driving was flawed from the get go. In my opinion upwards of half the population lacks the coordination, judgement, intelligence, or attitude to safely operate a motor vehicle, regardless of how much training they receive. They just inherently can’t do it. We’ve dumbed down our streets and cars to allow universal driving, but you can’t dumb down unusual situations. When they happen, those who are ill-equipped to drive end up in deadly collisions.

  • Kevin Love

    In The Netherlands, the driving test is much harder than anywhere in the USA. And the mandatory training much more expensive.

    Guess what! Fewer people go through the hassle of getting a driver’s licence.

  • Steve Faust

    Vance is ignoring that the taxi was attempting to turn left, across a bike lane, with a cyclist already in the lane, and across a crosswalk at high speed, probably also with pedestrians in it. I see several more clear and obvious violations here to add to the Rule Of Two.

    Entering into a bike lane mid block, not at the corner. This lane is not a shared left turn lane, nor is there a dedicated turn lane to the left of the bike lane, as in some cities. Failure to yield to a cyclist already legally in the bike lane, properly on the left side of the roadway. Striking the cyclist, causing the cyclist to be thrown onto the hood of the cab, all well before the intersection. Aggressively approaching a crosswalk for a left turn, failure to yield to crossing pedestrians, and/or driving in a way that it would have been impossible to safely yield at the corner. Then, and only then, do we get to the “driving” on the sidewalk, which was really accelerating up to full ramming speed onto the sidewalk and not driving.
    There is more than two failures here, and most of these occurred BEFORE the “taxi” went out of control – rather, they occurred at the time the DRIVER went out of control, not the cab.

  • qrt145

    Small point of fact: there is no bike lane where this crime occurred.

  • Steve Faust

    My bad, thanks.

    Cyclist was still legally riding on the left edge of the roadway. Driver executed improper (or illegal?) merge, failing to yield right of way to the cyclist. etc….

  • SteveVaccaro

    One other thing on the decision not to press charges…let’s say there was some horrific case, as bad as this one, where the DA pressed charges and the jury acquitted. Is that any reason not to bring charges in this case?

    Jury trial is the most radically democratic, participatory organ of government in our political system, and it can serve as a great check on bad government policy, but it is not a policy-making organ. Each jury is unique and decides only the case before it, essentially on a “black box” basis. IMO, you’d have to get a consistent stream of acquittals in a large number of cases like this one before concluding the acquittals were not outliers.

  • greggzuk

    Why would Vance bother? Collateral damage control is baked into the system. May be we start by building transport infrastructure with materials that force massive-motor-vehicle drivers to travel 20 mph or less. Just remove the petrol, asphalt, concrete, and the like and return to brick, Belgian block, and stone transport infrastructure. Just think – you don’t have to slather on a new layer of fossil fuels every few years, either!


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