Criminal Court Judge Upholds Constitutionality of Right of Way Law

A judge ruled against a motorist who filed a lawsuit challenging the constitutionality of the Right of Way Law.

Silvia Gallo and her son, former MMA star Jorge Gurgel. Photo: Cage Potato
Silvia Gallo and her son, former MMA star Jorge Gurgel. Photo: Cage Potato

MD Hossain, a yellow cab driver, was the first person charged after the law took effect in August 2014, when he drove a taxi into 58-year-old Silvia Gallo, killing her, while turning into a crosswalk at Madison Avenue and E. 79th Street.

According to a ruling by New York County Criminal Court Judge Ann E. Scherzer, Hossain claimed the law violates the state and U.S. constitutions by “undermin[ing] the very concept of innocent until proven guilty” and “purport[ing] to regulate alleged reckless driving ‘by imposing criminal penalties on a strict liability’ basis.” Hossain also challenged the law as it was applied in his case.

Hossain claimed the Right of Way Law does not require proof of driver negligence, or proof that a driver committed “any other traffic violations,” in order to be held liable for harming people, and therefore improperly shifts the burden of proof to motorists who are charged under the law.

Scherzer ruled that strict liability laws are authorized by the New York State code, and rejected Hossain’s assertion that the Right of Way Law presumes driver guilt.

In fact, to sustain a conviction for this charge the People would have to prove beyond a reasonable doubt that (1) defendant operated a motor vehicle, (2) that defendant’s motor vehicle caused contact with a pedestrian or cyclist, (3) that the pedestrian or cyclist had the right of way at the time of the impact … and (4) suffered physical injury as a result of the collision.

In addition to the elements listed above, the statute provides that physical injury that was not caused by a driver’s failure to exercise due care does not violate the statute.

“None of [the] defendant’s arguments come close” to demonstrating that the law is unconstitutional, Scherzer wrote.

Scherzer also threw out Hossain’s argument that the evidence in his case, which included video and Hossain’s own “admissions,” amounted to hearsay.

The decision showed that the court interpreted “due care” as an affirmative defense — evidence provided by the defendant that can negate liability — attorney Steve Vaccaro told Streetsblog. “This is important because the relevant information is usually in the hands of the driver, not the crash victim, who may be dead or have memory loss, and would be unable to prove a lack of due care affirmatively,” said Vaccaro.

“Before the Right of Way Law, only the officer’s observation of the crash — not videotapes of the crash — would support a charge, except in cases handled by the Collision Investigation Squad,” Vaccaro said. “Now, a non-CIS police officer can collect and watch video, record spoken admissions by the driver at the crash scene, and lay charges based on those types of plainly reliable evidence. This is exactly what the Right of Way Law was supposed to accomplish.”

In a separate case, the Transport Workers Union challenged the constitutionality of the Right of Way Law in federal court last year before reaching a settlement with City Hall and dropping its suit.

Hossain was charged with careless driving in addition to the Right of Way Law violation, according to court records. He is due back in court later this month.

(h/t @BrandonWC)

  • chekpeds

    This is Huge ! Bravo Steve Vaccaro …

  • neroden


    Now can we get the same Right of Way law in the rest of the state?

  • AndreL

    Strict liability criminal laws are bad for society in general, regardless of their results. Hopefully the SCOTUS someday outlaw all of them as being in violation of the due process clause. I’m not even talking about specific case here, but of the larger principle. Presumption of innocence, due process and other guarantees shouldn’t be tossed aside just to punish bad drivers, even if the result is death of some pedestrians (tragic as they obviously are, they shouldn’t be a reason to ignore general and fundamental civil rights principles)

  • Joe R.

    Perhaps this challenge could have been avoided altogether if the law didn’t prescribe any criminal penalties. Rather, the penalty should just be permanent loss of driving privileges. Since driving is a privilege granted by the state, it can be revoked by the state for any reason, or even for no reason. This is quite different from taking a person’s money or freedom.

  • SteveVaccaro

    The statute leaves the presumption of innocence in place. Driver can show that s/he used due care, avoid liability, there is substantive due process. All the usual procedures of criminal court apply to safeguard rights of accused, there is procedural due process. Can’t imagine what fundamental rights you think are being infringed here. Right to drive? Right to injure and kill “by accident”? .

  • neroden

    I think this is actually a very sensible approach.

    One caveat: in order to make this work, we have to have criminal penalties for driving with a revoked license.

    Also, I’m all in favor of rehabilitation: I think it would be OK for people whose licenses are revoked to reapply to get new licenses provided they started fresh and passed exams which are at least as tough as the British driving exams. (Most would never even try.)


Manhattan DA Cy Vance Fields Another Challenge to the Right of Way Law

@CBS @CNN @nypost Car flip 36th and Madison — Justin Kundrat (@JustinKundrat) February 29, 2016 A livery cab driver who killed a senior in a Manhattan crosswalk last winter is challenging the constitutionality of the Right of Way Law. District Attorney Cy Vance filed a response defending the statute. At around 8:30 on the morning of […]