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As Lucian Merryweather’s Family Grieves, Charges Against His Killer Reduced

1:01 PM EDT on March 12, 2014

Lucian Merryweather was one of at least 10 children age 12 and under killed by a New York City motorist in the last 12 months. As his family tries to cope with his death and joins others in demanding an end to traffic violence, court records say charges were downgraded against the driver who killed Lucian and injured his younger brother, Theodore.

"Our life the way it was is over," said Lucian's father, Gregory Merryweather, in a video by Sam Hagens, Leon Mastik, and Pieter Munnik, posted last week on The Nabe, a site produced by the CUNY Graduate School of Journalism. "So 'normal' isn't really the point anymore. It's about finding another way to exist."

"When you step back and look at it, you are surprised that that is your new community. You never envision yourself being one of those people."

Anthony Byrd, 59, was indicted last month for the November 2 crash, which also injured a third pedestrian. Brooklyn District Attorney Ken Thompson described what happened in a February 14 press release:

According to the indictment, video surveillance showed that on November 2, 2013, at 12:49 PM, Byrd drove his 2000 Ford Expedition westbound along Dekalb Avenue. As Byrd made a left hand turn onto Clermont Avenue, he narrowly avoided hitting two pedestrians who were walking their dog. Byrd’s S.U.V. then swerved to the right and onto a sidewalk where he struck the exterior of a restaurant, The Black Iris, located at 228 Dekalb Avenue, and a parked vehicle. Pedestrians can be seen on the video running as the vehicle made a U-turn onto the sidewalk.

Byrd then accelerated his vehicle in a diagonal direction into oncoming traffic on Dekalb Avenue. The vehicle then struck a westbound car while driving in the wrong direction along Dekalb Avenue. According to the indictment, Byrd then veered off Dekalb Avenue and onto Clermont Avenue, where he struck and broke the leg of pedestrian Elaine Driscoll, 29. Byrd then hit 4-year-old and 9-year-old brothers who were walking down the street with their mother, Anna Kovel.

Lucian was pinned under the SUV and died at the scene. Theodore was severely injured, according to the press release.

"The death of this innocent 9-year-old child and the severe injuries to his 4-year-old brother were truly tragic and avoidable and we will seek to hold the defendant accountable for his actions," Thompson said in the release. "The people of Brooklyn must be free to walk down the streets of our borough without fear that they may be run over or injured by a motorist driving dangerously."

In a rare instance of a New York City prosecutor bringing a felony case against a sober driver involved in a fatal crash, Byrd was charged by former DA Charles Hynes with a top charge of second degree assault, as well as criminally negligent homicide, first and second degree reckless endangerment, criminal mischief, and several traffic infractions. The top charge of the indictment, however, was homicide -- a class E felony, the least severe felony category -- and court records indicate that the class D second degree assault charge was reduced to misdemeanor assault.

Under New York State law, second degree assault occurs when "[w]ith intent to cause serious physical injury to another person, [a person] causes such injury to such person or to a third person," or when someone "causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." It could be that the grand jury would not indict on assault, and opted for a top charge of homicide instead, or that Thompson downgraded the top charge with the hope of securing a felony indictment.

Second degree assault is punishable by up to seven years, but it can also result in no jail time or probation. Criminally negligent homicide carries a maximum penalty of four years in jail, and a minimum of no jail time or probation. Less severe charges, of course, tend to result in less severe sentences, but more important, prosecuting a motorist for a class D felony in a fatal crash that did not involve alcohol or fleeing police could have raised the bar for future cases.

We have a message in with Thompson's office concerning the indictment and current charges against Byrd. Byrd entered a not guilty plea on March 7 and is free on $15,000 bond, court records say. His next scheduled court appearance is April 28.

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