Queens DA Richard Brown on Driver Who Killed Allison Liao: Accidents Happen

The lead vehicular crimes prosecutor for Queens District Attorney Richard Brown (pictured) says a motorist who was cited by NYPD for failure to yield and careless driving, and who tested positive for alcohol, “had a green light” when he killed 3-year-old Allison Liao and injured her grandmother by striking them in a crosswalk. Brown’s office filed no charges. Photos via WNYC and Queens DA’s office

A letter from District Attorney Richard Brown’s office explaining why no charges were filed against the driver who killed 3-year-old Allison Liao offers disturbing insight into the mindset of prosecutors charged with holding motorists accountable for serious traffic crashes in Queens.

The crash was captured on video. On the afternoon of October 6, 2013, Allison was walking hand in hand with her grandmother in a crosswalk at Main Street and Cherry Avenue in Flushing when the driver approached from behind and to their right. The motorist turned directly into them, striking both with the front corner of his SUV and pulling Allison under the left wheels. Her grandmother, Chin Hua Liao, was injured.

Police summonsed Ahmad Abu-Zayedeh for failure to yield and careless driving. Neither NYPD nor Brown filed criminal charges against him, despite concluding that Allison and Chin Hua had the right of way.

According to a civil suit filed by Chin Hua and Allison’s father, Hsi-Pei Liao, Abu-Zayedeh told police he had consumed two glasses of wine before the crash. Abu-Zayedeh tested positive for alcohol in his bloodstream, the suit says, but his BAC threshold was below the .08 legal limit for driving.

Even with video evidence, unless a driver is drunk, New York City prosecutors rarely charge for injuring and killing pedestrians and cyclists. Brown, for example, filed no charges against a motorist who drove onto a Maspeth sidewalk and hit five children, one of whom died shortly after the crash.

A December 2013 letter to City Council Member Peter Koo from Charles A. Testagrossa [PDF], the assistant district attorney who supervises investigations and prosecutions of fatal crashes in Queens, says the DA didn’t prosecute the driver who killed Allison Liao because he had a green light and stayed at the scene.

Wrote Testagrossa:

As you know, the accident occurred as Allison crossed Main Street in a crosswalk with her grandmother. The motorist who struck her had a valid driver’s license and a green light to make a left turn. The driver remained on the scene and waited for police to arrive. The driver was administered two breathalyzer tests (PBTs) on the scene and the results of the test did not rise to the level of impairment. In fact, the PBT readings were such that, pursuant to Vehicle and Traffic Law (VTL) Sect. 1195(2)(b), they were “prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol and that such person was not in an intoxicated condition.” Additionally, there was no evidence of excessive speed or phone usage at the time of the collision.

Testagrossa notes the two summonses NYPD issued to Abu-Zayedeh, and expresses Brown’s “heartfelt condolences” to Allison’s family, then concludes:

This Office takes very seriously it’s [sic] responsibility to investigate and prosecute drivers whose criminal conduct results in death or serious injury on the roadways of Queens County. There are occasions as in this matter, however, when accidents occur which are not the result of criminality.

Testagrossa points out in his letter that Abu-Zayedeh had a green light, but ignores evidence that Allison and her grandmother were crossing with a walk signal and, therefore, would have had the right of way. This is a shocking interpretation of the law from a prosecutor in charge of pursuing cases against motorists who injure and kill pedestrians.

Attorney Steve Vaccaro, who is representing Allison’s family in the civil suit, says Brown could have charged Abu-Zayedeh with misdemeanor reckless driving. Under state law, reckless driving occurs when a person operates a vehicle “in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.”

“Richard Brown has betrayed the trust of the families who elected him by acquiescing in an interpretation of VTL 1212 [the reckless driving statute], adopted by some judges, that nullifies the plain meaning of the language,” Vaccaro said. “We expect leadership from our elected officials, including prosecutors, and have gotten none from District Attorney Richard Brown on the Liao case.”

Rather than pursuing a case against him, Allison’s family says prosecutors with Brown’s office defended Abu-Zayedeh.

“They are making excuses for the driver, for the ‘blind spot,’ which they are referencing as the bar inside the car between the front windshield and side window,” Hsi-Pei Liao told Streetsblog. “The driver had so much lead time to see my mom before running over Allison… Did he see my mom and didn’t give her the right of way and misjudge how close he was?”

Parroting initial accounts from NYPD and the media, Abu-Zayedeh claims Allison ran into traffic, according to Vaccaro, and refuses to watch video of the crash.

Two weeks ago Allison’s family learned that, last July, the New York State Department of Motor Vehicles dismissed Abu-Zayedeh’s summonses. The DMV, which is known to adjudicate crash-related cases based mainly on driver testimony, hasn’t said why the agency voided the tickets. Streetsblog filed a freedom of information request for DMV documents, including transcripts, related to Abu-Zayedeh’s July hearing. He is scheduled to have another DMV hearing in January.

“There’s a feeling of being victimized multiple times,” Hsi-Pei said a press conference earlier this month. “First my child died, then they tell us it’s not the driver’s fault, then, by the way, the little tickets that were given out? They’re going to be dismissed. It’s multiple layers of pain every time.”

  • Maggie

    I don’t want to do a big smackdown, but I also think you might be trolling.

  • JJA

    It’s not “my” interpretation of the law. It’s the NY courts’ interpretation of their own laws, which is what lawyers (DAs) rely on (or are supposed to rely on) when determining whether to prosecute.

    Look, I am not particularly advocating either way. You are right. I am not trying to protect innocent children. I am no activist. I am not trying to endanger them either. But, I do care about whether laws — as they are written and enacted — are applied in a way that is justifiable and predictable.

    If you want to lobby for stricter laws, go ahead. I don’t think they are generally a deterrent, and in many cases I don’t particularly think they save lives.

  • JJA

    I am not trolling, I don’t think. It just bothers me when lay people who are uninformed about the laws and how courts interpret them, criticize DAs for doing the legally correct thing. As I always tell my friends and family, if you don’t like the laws, talk to your legislators. They make the laws. The prosecutors are simply tasked with enforcing them as they are written. So stop complaining about the DAs, and lobby lawmakers to change the laws.

    There are lots of laws I don’t like. But I cannot blame lawyers and judges who make a good-faith effort to follow them logically and as written. DAs have a legal framework they have to work within. If courts have said certain behavior does not constitute, for example, criminal negligence, then DAs are bound to abide by that whether they think the law should be different or not.

  • Joe R.

    I certainly favor education over enforcement, and also much stricter driver license standards. Nevertheless, a major reason why so many people die on the roads is the huge number of incompetent drivers. In fact, that’s why I mentioned this approach. To me it makes no sense for the state to put a driver in jail who mostly likely killed due to his/her incompetence, but the only reason they were incompetent in the first place is because the state had very lax licensing standards. If anything, the state is partially to blame here. The most logical way to rectify the situation is for the state to admit its mistake, and remove that person’s license for good (or at least until/unless they can pass a MUCH more difficult test).

    I’m not sure of the legality here of revoking licenses. If there is some due process, it’s most likely not a fundamental right, but rather something codified in law which could easily be changed. We’ve probably made it difficult to revoke driver’s licenses simply as a matter of practicality-namely in much of the country a person with no license can’t get to a job or otherwise function normally. In a society where most people didn’t have to drive, it would probably be much easier to revoke licenses.

  • JJA

    Impressive, Joe! Yes, it would be easier in countries that have better alternative transportation. One very common argument in court is that driving is key to some of our fundamental rights in some individual circumstances (it is usually unsuccessful). The due process is because the state cannot grant a property interest and then take it away arbitrarily. In this case, it is meant to protect people from individualized arbitrary action by the government. It’s a good thing. Imagine if NY could say no one with green eyes can get a driver’s license.

  • Maggie

    Well, New Yorkers like me did lobby our legislators on this issue, sick of watching innocent people like Allison Liao die. The right-of-way law has since been enacted. Running over a victim like Allie today would be a misdemeanor, but you’re right, in October 2013 when she was killed, an absurd and morally indefensible legal loophole meant that killing a defenseless person in New York City was viewed as perfectly legal, as long as you were in a car.

    I can’t tell from your comments if you’re aware of developments like this. Above, on the very same day when the family sat through a painful, Dickensian hearing where the driver who ran over their daughter was not even admonished by the DMV, you told a member of a grieving community that s/he didn’t know what he was talking about.

  • JJA

    Looks like the new law provides for a misdemeanor charge, not a felony, but yes. It provides another option for charging, and would be easier to prove than the potentially applicable felonies on the books.

    I am not a NYer. Well I was, but I am not anymore. I just saw an article about this randomly. I have no idea about the timing of all these events. I did see that the DMV dismissed the tickets, but I don’t know why. Sometimes it is just a matter of the reporting/issuing officer not showing up. There are lots of technical reasons for dismissing such violations that have nothing to do with whether the person was actually at fault or not. I haven’t read anything about why the tickets were dismissed here.

  • Maggie

    you’re right, misdemeanor. I’ll correct. Here’s some reporting on the dismissal of the tickets. Please, please read. http://www.wnyc.org/story/little-girl-lost-and-justice-denied/

  • JJA

    That is puzzling. It sounded to me like there was no prosecutor, just the admin law judge (who was maybe a practicing lawyer or retired judge, rather than an elected or appointed full-time judge – I don’t know how NYC does it). Here, for small violations, there is just a hearing person – no prosecutor. It is totally informal. No one from the city/county presents evidence. The judge just has whatever the cops give him, you plead your case and he decides. For more serious tickets, where you are required to go to a hearing (you cannot just pay and be done), there is a prosecutor-type person who argues for the city/county. He can put on witnesses. He questions the accused. It is more like a real contested hearing. I wonder if NYC perhaps just doesn’t have the budget for it. Seems like the fines from the tickets could pay for it. Anyway, I am not sure, but I think that may be what happened. The city needs to find a way to make sure someone presents available evidence to the judge/hearing officer. I think if he had a good attorney, the attorney might be able to get him out of the due care ticket (negligent driving). But I would think the only thing needed to prove the failure the yield would be the testimony of one witness who could say they were in the crosswalk crossing with the light, and he hit them. There really is no reason for not being able to get a finding of liability on at least that. On the one hand I doubt the city much cares – if it costs more to impose liability on the ticket than the associated fine, it just doesn’t make sense to spend money on these cases. Often officers don’t even show up because there are only so many officers, and working the streets comes first, or whatever. But in a case like this, I agree that someone should make the minimal effort it takes to do it for the family. It would take some time, money and effort to prepare, but if someone dies, one would think it is worth it. I can see why they feel like the city just doesn’t care about them.

  • John

    I doubt it JJA. If you can still say that if you lose your child, then there is something wrong with you.

  • qrt145

    If you have, many times, come very close to hitting pedestrians in crosswalks and bumped a few, I think it’s a pretty strong sign that you should learn how to drive. Some suggestions: don’t drive where you can’t see, move your head to work around the blind spot, and don’t try to outrace vehicles or pedestrians who have the right of way.

  • Lacey Sheridan

    Of course; that’s why he should have been indicted.

  • heartbot

    In other words, you’re defending this guy because you have apparently repeatedly made the same reckless mistake he has–failing to follow all traffic laws and pay attention to where you are going–and rather than questioning whether maybe you should do something to improve your own driving skills or even be driving at all, you defend someone who not only broke the law, but killed someone.

    For the record, it’s extremely uncommon for someone to regularly have near misses or actually hit pedestrians, and the fact that you have just makes it clear you probably shouldn’t be driving, not that this is all just a sad, understandable mistake.

  • Andrew Balmer

    So many of these “accidents” to which you refer can be avoided if the driver simply slowed down or stopped.

    If a driver cannot see around a blind spot, it is his/her obligation to slow down or stop, and to lean forward and/or back to see around the blind spot. Even lean out of the window, if necessary. Only when the driver is absolutely certain that the way is clear can he/she proceed.

    If a car is faulty, it is the driver’s responsibility to operate it (or not operate it) in a manner that accounts for the vehicle’s faults. If it has no working brakes, then the driver must not operate the vehicle until it does have brakes. If the headlights are out, then the driver mustn’t operate it at night until the bulbs are replaced. If it has large blind spots, then it’s the driver’s responsibility to use extreme caution to account for them.

    It is simply not an excuse to say “my equipment is faulty, and my mind is occupied, therefore it’s not my fault.”

  • Michael Le Houllier

    Where I live, there are more and more intersections that have red lights for both streets of an intersection while the pedestrians have a walk signal during rush hours.