New York’s Top Court Exhibits Depraved Indifference to Pedestrians’ Lives

Court of Appeals Judges Jenny Rivera, Sheila Abdus-Salaam, Robert S. Smith, Susan P. Reid, and Chief Judge Jonathan Lippman ruled that Jose Maldonado showed concern for others’ safety as he sped through Greenpoint in a stolen van, driving against traffic and striking pedestrian Violetta Krzyzak with enough force to catapult her body 55 yards through the air.
Court of Appeals Judges Jenny Rivera, Sheila Abdus-Salaam, Robert S. Smith, Susan P. Reid, and Chief Judge Jonathan Lippman ruled that Jose Maldonado showed concern for others’ safety as he sped through Greenpoint in a stolen van, driving against traffic and striking pedestrian Violetta Krzyzak with enough force to catapult her body 55 yards through the air. Prosecutors warn that the decision will affect future cases against drivers who kill.

In a decision that may hinder future prosecutions of killer drivers, New York’s highest court rejected the murder conviction of a car thief who fatally struck a Brooklyn pedestrian during a high-speed NYPD chase — ruling that the defendant showed concern for others’ safety by swerving around vehicles and people as he attempted to elude police.

The ruling drew a rebuke from Nassau County District Attorney Kathleen Rice, who is nationally known for seeking serious penalties for motorists who kill.

On the afternoon of April 27, 2009, Jose Maldonado drove a stolen minivan through the streets of Greenpoint. With police in pursuit, in apparent violation of NYPD protocol, Maldonado ran red lights and sped against oncoming traffic while weaving between lanes. When he narrowly missed a pedestrian who leapt from his path, Maldonado kept going. He hit 37-year-old Violetta Krzyzak at Manhattan Avenue and India Street. According to the Court of Appeals, Krzyzak “landed over 165 feet, or almost one block, away from the point of collision.” She died at the scene.

Maldonado did not slow down after striking Krzyzak. He crashed into parked vehicles five blocks away, court documents say, and was tackled by witnesses as he tried to flee on foot.

Maldonado was convicted at trial of murder because he acted with “depraved indifference” to human life, but the Court of Appeals this month reduced the top charge against him to second degree manslaughter [PDF]. “[W]e conclude that the evidence was legally insufficient to support defendant’s conviction for depraved indifference murder,” wrote Judge Jenny Rivera for the majority, “because the circumstances of this high-speed vehicular police chase do not fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life.”

Whereas Maldonado’s murder conviction carried a sentence of 15 years to life, second degree manslaughter is a class C felony, with sentences ranging from one to 15 years in prison. Maldonado’s re-sentencing date was not yet scheduled at this writing.

“The Court of Appeals’ decision in Maldonado is distressing to anyone who recognizes that a wildly reckless driver, bent on fleeing the police, can be absolutely depraved toward innocent people that are in his way,” said Rice in a written statement. “It’s time for the legislature to address the issue and make it clear that the outrageously dangerous driving represented in Maldonado is not simply reckless, it is depraved. And when someone dies as a result, it should be nothing short of murder.”

Rice and her chief vehicular crimes prosecutor Maureen McCormick have for years warned that poorly-written state statutes are leading to case law that favors killer motorists. But weak laws aren’t the only cause for concern. Though the Maldonado ruling was not unanimous, five of the seven most powerful judges in New York State exhibited a troubling readiness to make excuses for a driver who they acknowledge “did not brake” after slamming a speeding van into an innocent bystander.

From the ruling:

In explaining his driving, defendant said he tried to avoid hitting cars and pedestrians, and that he did not know the neighborhood well and drove down the one-way streets by mistake. Defendant said he was lost when he ended up on Manhattan Avenue, and that he was avoiding cars as he evaded the police. According to defendant, he was going against traffic and looking in his rearview mirror for the police immediately before he struck the victim. When he looked forward again, defendant said he saw the victim and that he thought he “hit the girl in the hand or something.” When he saw more people and traffic two blocks later, defendant decided to crash into the parked car to avoid hurting anyone else. He also expressed remorse for his actions.

In another confounding passage, the majority — Rivera, Susan P. Read, Robert S. Smith, Sheila Abdus-Salaam, and Chief Judge Jonathan Lippman — concluded that Maldonado was looking out for others because he did not intentionally hit more pedestrians and cars. “Eyewitness testimony established that he repeatedly tried to avoid collisions while evading capture by the police,” the judges wrote. “Although defendant swerved around cars and across lanes of traffic, he did so both to speed his flight and to avoid crashing into other vehicles or pedestrians.”

An exasperated Judge Eugene F. Pigott authored the dissenting opinion. “Once again, a person is dead because a defendant, concerned about being arrested for theft, led police on a high-speed chase through residential neighborhoods,” he wrote. “And, once again, the majority treats this crime with unfathomable and unjustified leniency.”

We asked McCormick for her thoughts on the Maldonado ruling, and what it means for future prosecutions. Below is her response in full, edited for style.

In People v. Maldonado the Court of Appeals has essentially restated the position it took in the 2011 case of People v. Prindle: A defendant fleeing the police due to underlying criminal activity, driving in a continuously and grossly reckless manner, and creating a grave risk of death, is not “depravedly indifferent.” Vehicular crimes prosecutors hoped the Court would take the Maldonado case as an opportunity to scale back the Prindle decision. In Maldonado the Court’s decision focused on the defendant’s statements that he was lost (and therefore did not intend to drive down one-way streets the wrong way), that he tried to avoid collisions and that he expressed remorse. The majority reasoned the defendant’s motive was to flee and not to put other people in imminent danger of death. There is a rational argument the defendant did both simultaneously. The argument was rejected by the majority but was adopted by the dissent.

In the recent case of People v. Heidgen, the Court recognized that the issue of depravity, and the defendant’s state of mind, was “fact-specific” and a question for the jury. In Heidgen, the Court also reiterated that a conviction must be upheld when, “viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (citing People v Danielson, 9 NY3d 342, 349[2007]). And yet in Maldonado the Court found there was no “valid line of reasoning” for the jury’s depraved indifference murder conviction in spite of the following facts taken from the decision:

“Police pursued defendant Jose Maldonado through the streets of Greenpoint, Brooklyn, a mixed commercial-residential neighborhood, soon after he stole a minivan from outside its owner’s residence. This five-minute, midday chase led to defendant’s fatal collision with a pedestrian… It is undisputed that defendant consistently drove well above the 30 miles per hour speed limit and violated numerous traffic rules as he attempted to evade capture by the police. The chase began when defendant ran a red light, accelerated through intersections, and went the wrong way down two one-way streets. The police followed with lights and sirens activated as defendant drove towards Manhattan Avenue, a major thoroughfare and commercial hub. Defendant turned onto the avenue where, according to witnesses, there was heavy vehicular and pedestrian traffic. As he drove north, defendant swerved into the southbound lane to pass slower vehicles and avoid congestion, and then shifted back into the northbound lane. Witnesses estimated that he was driving 40 to 50 miles per hour. A few blocks up Manhattan Avenue, defendant ran a second red light and narrowly avoided hitting a pedestrian in a crosswalk. According to witnesses, defendant did not brake or slow down. Instead, he accelerated north and again swerved across the double-yellow lines into the southbound lane to avoid slower moving vehicles. A driver going south testified that defendant did not slow down when he entered the opposing lane of traffic. As a consequence, the driver had to swerve to the side of the road to avoid a collision. Once clear of congestion, defendant swerved back into the northbound lane. A block later, defendant ran a third red light and struck a woman in a crosswalk. The victim hit the passenger side of the minivan’s windshield with such force that her body landed more than 100 feet down the avenue. She died at the scene. At that point, the police stopped following defendant to render aid to the victim. Defendant continued accelerating north on Manhattan Avenue, again swerving into the southbound lane. A driver headed south testified that defendant sped towards him at a rate of about 50 to 70 miles per hour. As a result, he had to swerve into the northbound lane to avoid a head-on collision with defendant. After the driver swerved, defendant’s escape routes were apparently blocked by cars in both the north and southbound lanes. The chase ended a few blocks from where defendant struck the pedestrian, when defendant crashed the minivan into a parked car to avoid hitting other vehicles. The impact pushed the parked car over the cars parked behind it. Defendant, still trying to escape capture, ran out of the minivan and down a nearby street, …”

The Court of Appeals acknowledged these facts and still determined there was no “evidence evincing a defendant’s utter disregard for human life” and therefore “there could [can] be no basis for a jury’s finding of guilt on a depraved indifference murder charge. Without such evidence, a jury cannot reasonably conclude that the defendant did not care whether someone lived or died and as a consequence was depravedly indifferent.”

In effect, the Court found that no jury could reasonably reject the defendant’s statements as completely self-serving; that no jury could conclude, instead, that the defendant’s all-consuming interest in escaping superseded everything else; that a jury could not weigh the defendant’s actions of passing red lights, wrong way travel, oncoming travel, continued acceleration through crowded streets at mid-day — even after nearly missing the first pedestrian — against his statements and decide the facts of the case. One has to ask why the Court would deprive the jury of that decision as a matter of law.

The court referred to the defendant’s driving as “careless and unsafe.” I would argue this is a gross understatement regarding the defendant’s actions and the risks it created. Conversely, the court overstated a potential negative effect of upholding the conviction by stating: “If we accepted the People’s argument, depraved indifference murder could arguably be charged in every case where a defendant killed someone during a high-speed police chase.” Prior to the Court’s decision in Prindle, fleeing the police added to a defendant’s depravity where the driving behavior was grossly and continuously reckless. If the driving had actually been merely “careless and unsafe,” depravity would not have been sustained even before the Prindle decision. In contrast, Maldonado’s driving could be arguably and rationally construed as indicating the defendant did not care whether anyone else lived or died, as long as he escaped.

  • J

    So basically, you’re allowed to drive as dangerously as you want, as long as you’re generally trying to avoid actually hitting someone.

    It’s like shooting a gun into a crowd but trying really hard not to hit someone.

  • Ramon

    They didn’t get the murder conviction because the prosecution couldn’t prove a depraved indifference to human life, but still won the manslaughter conviction.

    That’s law. All the words relate to very specific meanings and if you can’t prove it, it didn’t happen. (That’s a good thing.)

    There’s nothing to get worked up about here.

  • ocschwar

    The idea that weaving and swerving isn’t depraved indifference, that to depraved indifference means ramming people and cars, is so bizarre it’s like they decided it was time to give the courts the same reputation as Congress.

  • Devan

    Sounds like the kind of twisted logic some sleazebag defense lawyer would come up with. Makes me wonder what planet these judges are from.

  • Though I dislike the logic being applied here, and I dislike the result, it’s super-clear to us now that NY State needs to pass a law that imposes strict liability on drivers for collisions and deaths. Unless a driver can prove that their “accident” was the result of freakish circumstances while responsibly operating a vehicle, it should be lifelong bans for drivers who kill, stiff penalties for drivers who leave the scene of any accidents, and very long prison sentences for drivers who injure/kill leaving the scene of a criminal offense or while interfering with police duties/resisting arrest. The courts have basically declared what we need as law to carry out penalties against drivers who cause harm, so let’s just do it, we should have very little disagreement about the fact that these are valid circumstances for serious incarceration / license revocations and not just police “gotcha” crap.

  • Reader

    If I’m reading this right, it appears the best defense for killing someone and avoiding a stiff criminal penalty is saying “oops” afterwards. Is that correct? I mean, at least if you want to avoid the stiffest criminal penalty possible, right?

    Good luck, New Yorkers! People are now free to do whatever the hell they want in their cars as long as they say they’re really, really sorry after the fact.

  • anon

    “When he saw more people and traffic two blocks later, defendant decided to crash into the parked car to avoid hurting anyone else.” Ohhh, he DECIDED to crash the van to protect the public? They actually bought this??? A DECISION would mean he slows down and stops; a crash was most likely an unintended result of his crazy and depraved driving behavior.

  • Brad Aaron

    I encourage everyone to read the complete ruling. It would take a crowbar to straighten out the knots.

    This decision is certainly an indictment of NY law, but it’s also an attack on rational thought. I mean, it’s so bad a jury knew better.

  • StepUpAndSaySomething

    Those who rule us are out of touch with reality. There is too much dashboard view in politics.

  • J

    Examples of “careless and unsafe” behavior according to these judges: Speeding the wrong was down a one-way street in a heavily pedestrian area; running multiple red lights at high rates of speed in a heavily pedestrian area, swerving into oncoming traffic at high speed in a heavily pedestrian area, accelerating through red lights in a heavily pedestrian area, hitting and killing a pedestrian and slowing or stopping.

    If this is not depraved indifference to human life, what is?

  • Keegan Stephan

    I advocate for stiff penalties to traffic crimes, but I think the failure of justice here is charging the officers with NOTHING, despite the fact they broke the stated protocal of not pursuing a high speed chase if it endangers pedestrians, and NOT charging the driver with manslaughter instead of murder, which I do not think lowers the threshold of murder as a traffic crime compared to soooo many previous instances

  • Joe R.

    Wasn’t it kind of in the defendant’s self-interest to avoid hitting pedestrians, and especially other vehicles, while attempting to evade the police? This ruling makes absolutely no sense.

    Of course, if the defendant was on a bike and even did something as innocuous as graze the hairs on someone’s pet poodle while fleeing the police he would probably be scheduled for execution tomorrow.

    On another note, why don’t police have the ability to disable vehicles? That could be built in by the car manufacturers. In this day and age, police shouldn’t have to chase down someone in a car.

  • Joe R.

    Totally agree on every point. It’s long past time we as a society stopped accepting the carnage on our streets as just the cost of doing business. Reckless, negligent, or even grossly incompetent drivers need to be held accountable. I can think of no better way to do that than the lifetime license revocations you mention. Maybe people will take driving more seriously as a privilege if they know that privilege will be permanently revoked if they don’t.

  • SteveVaccaro

    It all comes back to a double standard about what is “normal” and what is “depraved” when it comes to behavior in traffic vs. any other risky situation, like handling a gun, rigging a crane, manufacturing a product, running a construction site….and even Judges are blind to it.

  • BB


    If he was so worried then he should not have stolen the car to begin with.

  • Kevin Love

    I wonder how many of those judges are car drivers? Obvious bias…

  • Larry Littlefield

    If they hit and killed a cop, wouldn’t that have been murder?

    I’m not sure but I believe that if you are an accomplice in a robbery, and the other accomplish kills someone, that too is murder.

  • nycbikecommuter

    “ruling that the defendant showed concern for others’ safety by swerving around vehicles and people as he attempted to elude police” – are these judges retarded?

  • Jesse

    Why wasn’t this case felony murder?

  • Kevin Love

    I do know that if a car driver hits NYPD officers and gives them injuries so minor that they are treated and promptly released from hospital, that car driver gets charged with Attempted Murder. See:

  • andrelot

    Fortunately, such a fascist law would never pass.

    It is unacceptable to reverse the burden of proof in the manner you suggest, for something that is perfectly legal and, 99,999% of times, done safely by more than 180 million Americans on a daily basis.

    The State should be the one with the burden of proof that a person committed a crime. It should NEVER be up to a citizen to prove, prima facia, that (s)he didn’t commit a crime.

    Your suggestion reminds me of the craze about “baby shaking” incidents in the 1980s and early 1990s, when some were crying out for laws that put the burden on parents to prove they “took good care” of a baby that died. Obviously such laws never passed.

    An unintended consequence of your freak proposition would be any sane driver fitting his/her car with multiple cameras ‘just in case’ they need to prove they weren’t involved in something criminal.

    Your idea regarding “presumed criminal liability” is abhorrent, and would disregard a basic tenement of civil liberties. It involves a mindset that considers all drivers essentially criminals by being merely drivers, and you only want a law to catch as many of them as possible.

    This is the example on why reasonable traffic measures never really pass, there is always a fringe of wackos and haters who want, essentially, to ban completely individual morotized transportation, and are willing to bend civil rights, presumption of innocence, due process and what else to achieve that goal.

  • Um, the proof is in injuring or killing the bystander. This crap about “frame of mind” should apply to capital murder, but we should make it a severe statuatory offense to simply fail to follow the rules of the road in a way that is known to be reckless and dangerous, since all drivers take education classes that inform them well that such behavior is known to be reckless and dangerous.

    If you are uncomfortable with these being CRIMINAL offenses I’m more than happy to have the statutes revised to take out the criminality (except for a car used intentionally and deliberately as a weapon) and to simply make the penalties be fines that are immeasurably steep and lifetime bans from driving (for which a violation would be a felony). But I don’t think you have a lot of support on that proposal; the general public indeed thinks that reckless driving with intent to facilitate a crime should be considered criminal activity punishable by jail time. I’m just sorry that the weaselly criminal justice system has found ways out of abiding by that policy.

  • Shemp

    All drivers and all nearing or over 60 yrs old

  • Jonathan R

    Brian, the Eighth Amendment says, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

  • qrt145

    The problem is that society today thinks that revoking a driver’s license permanently is a “cruel and unusual punishment”, while the framers of the constitution probably had in mind something like hanging, drawing and quartering when they used that phrase…

  • And it’s not cruel and unusual and completely unfair, what happened to Violetta Krzyzak?

    You are misinterpreting the law and the Constitution, to a stunning degree. For what?

  • Jonathan R

    Brian, I agree with you, but we have a Bill of Rights that protects the accused, even dirtbags, against the power of the government.

  • Jonathan R

    I was more referring to Brian’s proposal for “immeasurably steep” fines.

  • Unless they do something illegal.

    It should be illegal to hit a pedestrian with a car because of reckless driving. And it is. Except the courts are like “Ehhhhh it’s not a crime”

  • Joe R.

    Suppose then the punishment is limited to simply permanently revoking the person’s license? No fines, no jail time unless a higher burden of proof is met. That should be constitutional since driving is a privilege, not a right. Privileges granted by the state may be revoked by the state for any reason whatsoever.

  • Andrew

    Felony Murder only applies to deaths that occur in the commission of “inherently dangerous” felonies. In New York, this only includes Burglary, Rape, Arson, Kidnapping, Esape, Robbery, and Sexual Assault.

  • Kevin Love

    This is exactly the not-so-fascist burden of proof for DUI convictions. Blow over the limit and there is a presumption of guilt. So far we have managed to survive as a society with this presumption of guilt.

    What Brian is suggesting is that killing or injuring someone should be prosecuted in the same way as DUI. That works for me. It also works for Canadian law. Last time I checked Canada was not quite a fascist society.

    Canadian law was correctly stated by Crown Attorney Lidia Naronzniak while prosecuting the car driver who killed 87-year-old Kitty MacLeod in Hamilton, Ontario while she was crossing the road in a crosswalk.

    A quote from:

    “It’s an area where pedestrians can be expected,” Narozniak said. “The claim, ‘I didn’t see her’ is proof of a lack of due care and attention and reason for conviction.”

  • Kevin Love

    I certainly agree with the last sentence. In New York, driving is a privilege, not a right. Permanently revoking a drivers license is not a punishment.

  • Kevin Love

    Perhaps judges who are car drivers should not be involved in cases like this. The conflict of interest is obvious, blatant and led to a clear miscarriage of justice.

  • BBnet3000

    “Thats law” doesn’t mean what you think it means. Our law system is heavily based on previous decisions and precedent. Yes, its law, now, because of this decision.

  • Guest

    You all should reach out to Judge Riviera’s office and let her know your concern. She claims to be progressive and comes from/was supported by CUNY Law, which is known to be a school focused on public interest. Her opinion hardly is in the public interest.

  • armyvet05

    Felony murder would not apply to the driver, he would be charged with murder. Felony murder would allow an accomplice who was not driving, for example, to be charged with murder. It serves to expand the murder charge to those who didn’t pull the trigger but where part of the underlying felony action, as listed by Andrew.

  • armyvet05

    Strict liability isn’t the answer, but there needs to be a change in the law after this horrendous decision. That requires a concerted effort from citizens to lawmakers, which is slowly building, and hopefully this case spurs action- but it requires real pressure that has, up to this point, failed to overcome the bias towards drivers that fails to treat cars as deadly weapons.

  • neroden

    Impeachable offense by the majority on the Court of Appeals. Their reasoning is unjustifiable, while the dissent makes perfect sense.

  • neroden

    “cruel” meant torture, while “unusual” meant that some forms of torture were OK as long as they were normal (!!!!). Nowadays we believe that all forms of torture are unacceptable.

    Permanent revocation of driving privileges isn’t even a punishment; it’s just a public safety measure.


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