This is the latest in Streetsblog's ongoing series about prosecutorial decisions in each borough.
Street-safety advocates and lawyers who deal with crash victims are questioning why Manhattan District Attorney Cyrus Vance is bringing criminal charges against a cyclist for fatally striking a 67-year-old woman earlier this year even as he declines to bring the same kind of charges against hundreds of drivers who injure or kill thousands of people every year.
No one is arguing that the top prosecutor should not have charged the biker, 41-year-old Dameon Doward, with the high-level misdemeanor of reckless endangerment, which carries a maximum of a year behind bars — an appropriate punishment for anyone who kills an innocent person.
But for some reason, Vance does not levy the same charge with any regularity to motorists who do the very same thing — which is defined under state law as when someone “engages in conduct which creates a substantial risk or serious physical injury to another person."
“It’s appropriate for fatal collisions — but it’s virtually unheard of in cases of motorists,” said attorney Steve Vaccaro, who represents victims of collisions.
From Jan. 1 through mid-November of this year, Vance has prosecuted 15 car drivers for killing or injuring people, even though drivers have killed at least 21 people and injured thousands more due to error or recklessness in Manhattan alone. And of the 15 car drivers that did get charged, only one was prosecuted for reckless endangerment — the same charge that Doward, the cyclist, is facing.
Here's how the charges break down for the 14 other drivers who have been charged in cases of injuring or killing someone this year:
- Seven drivers were charged with low-level misdemeanors like failure to yield.
- Two were charged with fleeing the scene (one a low-level felony and the other a high-level misdemeanor).
- Five were slapped with felonies or high-level misdemeanors like criminally negligent homicide, manslaughter, driving while intoxicated, or even murder.
But that means that at least seven of the drivers who killed either a cyclist or pedestrian this year were either let off the hook entirely by Vance or cops, or were never even found by authorities after a hit-and-run. (The number might be higher, as the DA's office declined to provide a case-by-case breakdown of all charges in the 19 fatal crashes caused by drivers.)
Vance did also charge roughly 170 drivers with reckless endangerment so far this year — all but one of whom neither killed nor injured someone, suggesting that Vance does not prefer to use "reckless endangerment" in injury cases. The 170 drivers include off-duty city firefighter Brauley de la Rosa, who was charged with reckless endangerment after he allegedly tried to mow down a cyclist with his car over the summer — the still-unidentified cyclist was not injured.
But 170 cases is just a small percentage of all the 7,221 injuries resulting from motor vehicle collisions in Manhattan through November — less than three percent — and an even tinier percentage of all the 35,528 crashes that have happened in the borough through November of this year, largely because of driver recklessness or inattention. (One key caveat in any argument that DAs are not aggressive enough on reckless drivers: local prosecutors are beholden to the NYPD, which investigates crashes and brings initial charges. The NYPD has long been criticized for not charging thousands of drivers who kill or maim. The Queens and Staten Island district attorneys send their own investigators to all fatal crashes; Vance does not.)
Advocates have long argued that the wording of the reckless endangerment code allows prosecutors to prosecute more drivers for it. But many prosecutors interpret the law in a way that requires them to prove that the driver had intent, and was aware of his or her misconduct when driving the vehicle into someone — a mental state known in criminal law as mens rea.
Prosecutors often get caught up in trying to prove mens rea, often before a jury stacked with sympathetic drivers, that they don't even bring charges, said Vaccaro.
“The word 'recklessness' in the law [is] a way to avoid bringing charges," he said.
Yet in Doward's case, which is the first time the Manhattan DA's office has ever brought criminal charges against a cyclist, prosecutors believe the actions of Doward — who hit and killed Donna Sturm after going through a red light on a bike with no brakes — are enough to prove he knowingly acted recklessly.
But many more drivers have hit and injured or killed pedestrians this year, similarly after violating their right of way — and many have gotten away with it, receiving not much more than a slap on the wrist from the same prosecutor.
To reiterate: Drivers cause about 19 injury-resulting crashes every day in Manhattan. Fewer than one per day are ever charged. That's especially odd, given that far more than 15 car drivers were at fault for injuring someone, according to NYPD stats. Driver failure — in the form of distraction, inattention, recklessness, running a light, speeding or other things drivers routinely do — was a factor in more than 5,000 of the 7,221 injury-causing crashes. That's almost 69 percent of drivers whose recklessness police say caused the injuries of another person, yet the DA prosecuted fewer than three percent of them for it.
One Manhattan crash victim said he wasn't surprised by the small number of drivers who get charged for crashes that cause death or serious injury. Until law enforcement takes seriously the threat of traffic violence, thousands of people will continue to die and get hurt each year.
The hundreds of drivers whom Vance did not charge have both the DA's and juries’ own windshield perspectives to thank, added attorney Daniel Flanzig, who also accused the top prosecutor of a double standard.
“Cy Vance has typically said he doesn't have enough ability to charge drivers, but now he’s found the ability to charge a cyclist. Seems like there’s much more aggressive enforcement in prosecution here," said Flanzig.
And this isn't the first time Vance has been under fire for his prosecutorial decisions — he declined to press criminal charges against the cab driver who hit and killed 9-year-old Cooper Stock, who was walking in the crosswalk with his father on the Upper West Side in 2014; later that year, Vance agreed to a plea arrangement so that an unlicensed driver who fatally struck a senior as she crossed the street with the right of way only had to pay a $400 fine; and in 2016, he dropped a right-of-way violation against a truck driver who killed a senior on the Upper East Side two years earlier.
More recently, prosecutors never arrested the truck driver who killed 20-year-old Robyn Hightman over the summer, and Vance charged the hit-and-run driver who killed 72-year-old Chaim Joseph in February with only failure to yield and failure to exercise due care — low-level misdemeanor charges. And just this week, Vance recommended that a reckless driver who killed a 27-year-old woman while behind the wheel of a massive truck get off with no jail time — only a $750 fine.
Vaccaro hypothesized that the harsher punishment is a result of the fact that when drivers hit and kill people it’s often a result of making a turn through an intersection — not head on after going through a traffic control device like the one Doward went through — although the motorist is still violating the pedestrian’s right of way in the crosswalk.
“Could be the attitude that somehow pedestrians in crosswalks have a lesser right of way against turning vehicles,” said Vaccaro.
But regardless of Vance's reasoning for prosecuting Doward with a top-level misdemeanor, yet ignoring the same charge against many other drivers, the hypocrisy with which he chooses to follow the law is obvious, according to Manhattan Assembly Member Dan Quart.
"There is a clear double standard in the application of the law: When a driver mows down a pedestrian or cyclist, it’s a tragedy but when it’s a cyclist who kills a pedestrian, it’s a crime," said Quart, who is running for district attorney. "Sporadically enforcing the law is not accountability and neither is only prosecuting people who do not have the resources to fight back." (Quart was referring to the fact that Doward lives in a homeless shelter in Brooklyn and is represented by a court-appointed lawyer.)
"One thing is certain, in his near decade in office, District Attorney Vance has largely failed to secure justice for victims of traffic violence," Quart added.
The DA's office said it takes every fatal crash seriously and considers whether a crime was committed — Doward's case just happened to be the very first to come across the district attorney's desk where he could sustain criminal charges against a cyclist, the spokeswoman said.
"Our office investigates every incident in which a pedestrian is seriously injured or killed, whether by someone driving a motor vehicle or someone riding a bicycle," she said. "This case, in which the defendant is charged with knowingly riding a bicycle that had no brakes through a red light and into a crowd of pedestrians, is indeed the first case against a cyclist in which the office determined that a criminal charge could be supported under New York law."
In October, Vance and two state legislators proposed a bill that would give prosecutors the ability to criminally charge motorists who kill with high-level misdemeanors that come with real jail sentences. The bill, the Vehicular Violence Accountability Act, would fix what Vance says are "fundamentally broken" laws that have in the past prevented him from holding more drivers accountable for their reckless actions behind the wheel.
Update: A previous version of this story stated that the number of people killed in Manhattan through mid-November was 19. That number has been updated to reflect that the number is at least 21.
