Articles Posted in In The News

One of New York City Mayor Bill de Blasio’s programs since he took office last year is “Vision Zero”, which is designed to reduce traffic and pedestrian fatalities and serious injuries in New York City.  The Vision Zero program has already resulted in a reduction of the standard speed limit in the city from 30 miles per hour to 25 miles per hour, the installation of additional red light cameras and traffic reconfiguration at dangerous intersections.

Another element of the program which is encountering some strong resistance, particularly from transportation unions, is a regulation designed to increase the penalties for drivers who fail to yield to pedestrians crossing the street, resulting in fatalities or serious injuries.  This aspect of Vision Zero has come to the forefront recently after a tragic accident on February 13, 2015.  A fifteen year old girl walking to school was crossing Grand Street with a walk signal when she was struck by an MTA bus operated by Francisco DeJesus.  The young girl was pinned under the front wheel of the bus while Mr. DeJesus was making a left turn, and suffered serious left leg injuries.

Based on the new right of way law with enhanced penalties for pedestrian fatalities or serious injuries, a violation of the law is now classified as a misdemeanor, rather than a traffic ticket.  Drivers who are found to have violated the law can be sentenced to up to thirty days in jail and face fines of up to $250.00.  Mr. DeJesus was arrested for violating the failure to yield law, which his union, the Transportation Workers Union Local 100, feels is unfair.  They contend that DeJesus was not distracted by texting or using a cell phone, was not under the influence of drugs or alcohol, and was not driving recklessly. Rather, this was simply a tragic accident, due to a combination of the chaotic nature of making a left turn on city streets and the blind spots on a bus.

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The Wayne County, Pennsylvania District Attorney’s Office announced last week that there will be charges against a 15 year old driver and her father in a fatal car crash on August 30, 2014 on Goosepond Road in Lake Ariel, Pennsylvania. That fateful day, a 15 year old driver from Pleasantville, New York was allegedly given permission by her father, Michael Ware, to drive his 2001 Chevrolet Suburban to a diner for breakfast. In the vehicle were five other teenagers, including three Bucks County, Pennsylvania teens, Ryan Lesher, Shamus Digney, and Cullen Keffer, who were all killed in the accident when the underage driver was apparently going too fast and flipped the vehicle.   Another two teens, including the driver’s friend from Westchester County, NY, survived the horrific crash.

Witnesses allegedly heard some of the occupants screaming at the driver to slow down moments before the accident. When the police arrived at the scene, the driver is alleged to have exclaimed: “I was driving too fast, arrest me”, as she placed her hands in front of her, expecting to be handcuffed. The driver’s father, Michael Ware, 53, of Eastchester, New York, is charged with involuntary manslaughter, a felony, endangering the welfare of children, and other crimes not yet identified. Ware was arraigned in the Wayne County Courthouse on December 17, 2014, and pled not guilty to all charges.

There is interesting evidentiary conflict in the versions of events as described by Mr. Ware, and his fifteen year old unlicensed daughter, with regard to his knowledge and consent for his daughter to operate the vehicle. Ware’s daughter, who is being charged for the deaths in juvenile Court, purportedly informed investigators that her father gave her permission to operate the vehicle at the time of the fatal crash, and on previous occasions, including earlier that morning when she drove to a local Dunkin Donuts. The daughter’s friend from Westchester County also told police that Mr. Ware walked the two girls to the car and placed an egg sandwich order before his teenage daughter drove off in the car.  However, Mr. Ware denies that he gave his daughter permission to operate the vehicle. Continue reading ›

Jo John John, 36, the man at the wheel of the boat which crashed into barges near the Tappan Zee Bridge last summer, killing two, was sentenced in Rockland County Court on September 16, 2014 to two years in jail.  John pled guilty earlier this year to vehicular manslaughter in the deaths of 30 year old Mark Lennon, of Pearl River, New York, and 30 year old Lindsey Stewart, of Piermont, NY, which occurred on July 26, 2013.  Stewart was to be married one month later to Brian Bond, who was injured in the tragic crash.  Mr. John apologized to the Stewart and Lennon families at his sentencing before receiving the two year sentence, which spares him the possibility of serving time in state prison.

Blood alcohol results revealed that Mr. John had a BAC (blood alcohol concentration) in excess of 0.15% at the time of the fatal accident, almost two times the legal limit of 0.08%.  However, Mr. John, the family members of Mr. Lennon and Ms. Stewart, and other passengers on the boat who were injured but survived, contend that poorly lit barges used in the construction of the new Tappan Zee Bridge were equally, if not more responsible for the tragic accident and have all commenced civil lawsuits against the New York State Thruway Authority.

These family members, including Ray Lennon, the brother of Mark Lennon, have called the sentencing of Mr. John “incomplete justice”, and have urged Rockland County District Attorney Thomas Zugibe to bring criminal charges against the barge owners.  However, Mr. Zugibe stated in a press conference this week that police investigators and a grand jury examined the evidence and found that the sole factor in the fatal crash was John’s intoxication at the time of the accident.  According to Zugibe, “We believe John was solely responsible. He was operating the boat at a high rate of speed in the dark. It was like operating a vehicle with his eyes closed.”

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A 15 year old girl from Pleasantville behind the wheel of a 2001 Chevy Suburban in Lake Ariel, Pennsylvania on August 30th is now facing several criminal charges, including possible vehicular manslaughter, as the result of a fatal accident which left three 15 year old boys dead and two other passengers injured. Because of the girl’s age, authorities have not released her name. At approximately 11:30 AM this past Saturday, August 30th, the driver, four 15 year old boys from Bucks County, Pennsylvania, and a 16 year old girl from Westchester were passengers in the vehicle which overturned while the group was on their way home from a local restaurant for breakfast.

According to investigators, the vehicle was purportedly travelling at a high speed on Goose Pond Road. This road is described as a hilly, winding, 2 lane roadway with a speed limit of 40 miles per hour. The car went into a left hand curve, one of the right tires apparently went off the roadway, and the car flipped more than once. A local resident from Lake Ariel heard one of the passengers screaming “Slow down…slow down” just before hearing a loud crash. One of the 15 year old boys was pronounced dead at the scene and two others were taken to local hospitals and died there. The three boys who were killed in the crash were identified as Ryan Lesher, Shamus Digney and Cullen Keffer, who all attended Council Rock High School in Bucks County.

Under both New York and Pennsylvania law, a driver must be at least 16 years of age to obtain a learner’s permit. Further, both states mandate that 16 year old drivers travel with a licensed driver who is at least 18 years of age. Here in New York, if the driver was charged as an adult, she could face vehicular manslaughter and criminally negligent homicide charges, which are felonies with potential jail sentences of up to 4 years in jail on each count. It would appear that if the driver is going to be criminally charged, as has been reported, there would be three charges of vehicular manslaughter or criminally negligent homicide, for the three boys that were killed. Additionally, she is also likely to be charged with misdemeanor reckless driving, the less serious criminal charge of unlicensed operation, and the traffic infraction of speeding.

Because the driver is under 16, she will be charged under the Pennsylvania Juvenile Act and under this statute, the details will not be made public.

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In a chilling account for those of us who purchase tickets for concerts, sports events and Broadway Shows, Manhattan District Attorney Cyrus Vance, Jr. announced on July 23rd the indictments of six men on charges that they were members of an international group that defrauded Stub Hub and its customers of approximately 1.6 million dollars. Stub Hub is owned by eBay.

The indictments were against residents of New York, New Jersey and a Russian national who was vacationing in Spain and was arrested there. Three others were arrested in London, and one in Toronto. Apparently, using technology which allowed “key loggers” (which record each keyboard stroke of the user to steal the user’s identity) to get the login credentials and passwords of a small number of accounts, hackers were then able to obtain credit card and debit numbers of these unwitting victims. It has been reported that Stub Hub was alerted to the purported criminal activity last year and has been cooperating with the authorities to apprehend the members of the international crime ring.

The defendants are charged in the New York County Supreme Court with several counts of money laundering, grand larceny, criminal possession of stolen property, and identity theft. Each of these charges are felonies, ranging between Class B and Class E felonies.

The group would use the stolen credit and debit cards to buy thousands of tickets to events such as Yankee games, Justin Timberlake concerts and popular Broadway shows including “The Book of Mormon”, and then resell the tickets for a substantial profit. The authorities were able to track the defendants using their I.P addresses (Internet protocol), Pay Pal accounts, and bank accounts. Proceeds of the resold tickets were apparently deposited in bank accounts in Germany and Britain, as well as in multiple Pay Pal accounts.

The defendants range in age from 21 to 37, and are charged with buying approximately 3,500 tickets to then resell for a profit. The Russian national, Sergei Kirin, 37, advertised money laundering services on the internet and is charged with laundering the profits from the resold tickets for a fee. He was apprehended in Barcelona on July 3rd. A former security officer for Stub Hub was quoted as stating that the indictments sent a message to the “cyber-criminals” that “you are no longer safe to travel and operate outside of your home country without significant risk of arrest and prosecution.”

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“30 Rock” and “Saturday Night Live” star Tracy Morgan was seriously injured, and a friend in the vehicle killed, as the result of a multi-vehicle crash on the New Jersey Turnpike early on Saturday, June 7, 2014. After performing at a comedy club in Dover, Delaware on Friday evening, Mr. Morgan, 45, along with a mentor who often performed with Mr. Morgan, “Jimmy Mack” McNair, 63, Jeffrey Millea, 36, Ardie Fuqua, Jr., 43, and Harris Stanton, 37, were travelling back to New York in Morgan’s Mercedes limousine bus on the New Jersey Turnpike near Cranberry, New Jersey early Saturday morning. The vehicle was struck in the rear by a Wal-Mart tractor-trailer operated by 35 year old driver Kevin Roper, who failed to stop when traffic slowed in front of his vehicle and is being charged with vehicular assault and for the death of Mr. McNair.

Mc. McNair apparently died at the scene of his injuries. He hailed from Peekskill, New York, and was described as a close friend and mentor to Morgan. Mr. Morgan suffered a fractured femur, a broken nose and several broken ribs, is listed in critical condition and is expected to remain in the hospital for several weeks recuperating. Stanton suffered a fractured wrist in the accident, and the injuries suffered by Fuqua and Millea were not described in news reports.

Roper attempted to swerve but was unable to avoid striking the rear of the Mercedes, leading to a chain reaction crash with another tractor-trailer, and SUV and two cars. Investigators have not uncovered any evidence at this time that Mr. Roper fell asleep at the wheel, and have no proof of any alcohol or drug involvement at this stage of the investigation. Wal-Mart President Bill Simon acknowledged that a Wal-Mart vehicle was involved in the tragic crash and stated: “This is a tragedy, and we are profoundly sorry that one of our trucks was involved. We are working quickly to understand what happened and are cooperating fully with law enforcement to aid their investigation,” Simon noted that the company “will take full responsibility” if investigators determine that its driver was responsible for the crash. Wal-Mart placed Roper on administrative leave pending the outcome of the legal proceedings.

The National Transportation Safety Board is also investigating the crash in conjunction with the New Jersey State Police to investigate safety issues regarding commercial trucking and limousine safety, including vehicle maintenance, testing for alcohol and drugs, and other factors that may have played a role in the accident, according to NTSB spokesman Keith Holloway.

Roper was charged with four counts of assault by auto and one count of death by auto. He was released on $50,000 bail on Saturday evening and was due to be arraigned in Middlesex County on June 9, 2014.

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For drivers in New York State beginning today, April 10, 2014, be careful if you are a hand held cell phone user on the highways and local streets. Governor Andrew Cuomo announced the start of “Operation Hang Up”, by which officers will on the lookout for the next week for drivers who violate the cell phone law through texting or speaking on a cell phone while driving. Gov. Cuomo stated: “The message is clear: distracted driving is deadly and will not be tolerated on New York roads.”

State troopers will be in marked and unmarked vehicles seeking violators of the hand held cell phone ban. Further, officers will be in SUV’s that are modified to sit a greater height, so that officers can see in to vehicles for operators who are trying to text next to their seats so that they are not discovered.

The fine for a cell phone violation under New York’s Vehicle & Traffic Law is now 5 points, which is almost half of the 11 points in eighteen months that results in a suspended license. The fine for a first offense is $150.00. A third offense in 18 months results in a fine of $500.00. Beginning on November 1 of this year, drivers with a learner’s permit, junior or probationary license will be assessed a 120 day suspension of their privileges for a first texting or cell phone infraction. A second violation will lead to a one year suspension.

The more stringent enforcement of the hand held cell phone ban has resulted in an 82% increase in texting while driving tickets in New York City 2013 as compared to 2012. Outside of the city, the increase was even more substantial, at 89% from 2012 to 2013. In almost one half of New York’s 62 counties, (26), the amount of texting tickets issued more than doubled from 2012 to 2013. Locally, this was true in Westchester, Rockland and Dutchess counties. Statewide, there were 55,000 texting while driving tickets issued in 2013, increased from approximately 30,000 in 2012.

The National Highway Traffic Safety Administration (NHTSA) has reported that in 2012, 3,328 people were killed and approximately 421,000 injured in motor vehicle accidents involving distracted drivers.

The New York State Police issued a statement that the State Police are “committed to keeping our highways safe for all motorists…this campaign is about protecting travelers from preventable injuries and property damage caused by distracted drivers using electronic devices.”

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In the aftermath of the tragic Metro North derailment of December 1st which killed 4 passengers and injured more than 70, some critically, the Bronx District Attorney’s office is considering bringing criminal charges against the train engineer, William Rockefeller. The reported evidence indicates that at the time of the accident, the 5:54 AM southbound train was travelling at 82 miles per hour entering a sharp curve just north of the Spuyten Duyvil station, where the speed limit is 30 miles per hour. Rockefeller’s attorney claims that he “dozed off” just prior to the derailment and that this was the reason for his failure to apply the brakes until a few seconds before the accident. Mr. Rockefeller then attempted the emergency measure of “dropping the brakes”, meaning that he pressed on the brakes with full force, but it was too late.

To prove a criminal case against Rockefeller, the D.A will have a difficult hurdle. Prosecutors must prove that the train engineer either:
1. Intentionally caused the crash;
2. Knowingly caused the crash;
3. Recklessly caused the crash; or
4. Was criminally negligent in his actions that early Sunday morning two weeks ago.

In my opinion, the D.A. will not have any chance of proving, nor are they likely to attempt to do so, that Rockefeller intentionally or knowingly caused the accident. By all accounts, Mr. Rockefeller was an experienced engineer who enjoyed his work. Similarly, I believe prosecutors will not try to prove that Rockefeller was reckless on that fateful December morning.

The only possible charge that the D.A. may pursue is “criminally negligent homicide.” However, even this charge will be fraught with difficulty for the prosecution. In order to prove criminally negligent homicide, the D.A. must prove that Mr. Rockefeller exhibited a reckless or indifferent disregard for the rights of others, and failed to perceive a substantial and unjustifiable risk that his actions constituted a gross deviation from the standard of care that a reasonable person would use in the situation.

Last year, the Bronx D.A. was unsuccessful in prosecuting Ophadell Williams, who was a 41 year old bus driver charged with manslaughter and criminally negligent homicide in a fatal bus accident on March 12, 2011 on I-95 in the Bronx in which 15 were killed and many others injured. Prosecutors attempted to prove that Williams was so sleep deprived that he should be held criminally responsible for his conduct in operating the bus in that condition. This theory of “driving while drowsy” has never been established in New York State, and the prosecution would be attempting a similar argument in prosecuting Rockefeller. The Bronx jury rejected the argument and acquitted Mr. Williams in December of 2012 of all but one of 55 charges against him, despite the fact that he had a rather extensive criminal record in addition to the horrific fatalities and injuries Mr. Williams caused in the bus accident.

Ultimately, I believe the Bronx D.A. will decline to prosecute Mr. Rockefeller as their experience in the Williams case was instructive and cautionary—trials are costly and time consuming, and they must utilize limited personnel and resources judiciously.

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After approximately one year of negotiations, Penn State announced last week that it will pay approximately 60 million dollars to settle the cases of 26 sexual abuse victims of Jerry Sandusky. In June of 2012, the former Penn State assistant football coach was convicted by a Pennsylvania jury of 45 of 48 counts of sexual abuse. The conviction was after a several week long trial with testimony from 8 of Sandusky’s victims, who described in detail the abuse, including fondling, oral sex, anal rape and psychological manipulation.

The 69 year old Sandusky is serving a 30-60 year sentence as a result of his conviction last June. The settlement will apparently be paid from liability insurance policies, not from Pennsylvania taxpayers, donations or tuition funds. It will resolve the cases of 26 victims, leaving another six whose cases are still in negotiation with the victims’ attorneys and a few that the university’s counsel are questioning the legitimacy of.

The Sandusky scandal, which terminated the career of legendary football coach Joe Paterno for failing to report what he allegedly knew of Sandusky’s transgressions, also includes three university officials who are charged with covering up the scandal. They are former Penn State president Graham Spanier, retired vice president Gary Schultz, and retired athletic director Tim Curley, who have each denied the allegations against them. Spanier, Schultz, and Curley each await trial on the charges against them, which has not been scheduled to date. In my opinion, based upon the reported evidence, they have an uphill battle to avoid convictions, as it appears that their main concerns were to determine how best to avoid damaging the reputation of Penn State University and maintaining enrollment, not stopping a sexual predator.

The settlements were negotiated by the law firm of Kenneth Feinberg, who is well known for his role as a mediator distributing funds in the 9/11 “Victim Compensation Fund” and as a special master in the Agent Orange litigation. As expected, each victim will be required to execute a confidentiality agreement, prohibiting them and their attorneys from disclosing the amounts of the settlements and in all likelihood, further commenting on anything to do with Jerry Sandusky or Penn State’s employment of Sandusky.

Penn State is also under investigation for potential violations of the Clery Act. The Clery Act was named after Jeanne Clery, a 19 year old Lehigh University student who was raped and murdered by another student in her residence hall in 1986. The significant discretion afforded to local campus police in determining whether to refer cases to police and prosecutors instead of school authorities has resulted in some tragic cases in universities throughout the U.S., and the implementation of the Clery Act in 1990. Colleges and universities must give prompt warnings of crimes committed on their campuses which could pose a threat to the safety of students and school employees. A violation of the Clery Act can result in fines of up to $27,000 for each violation.

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In a DWI case with a twist, the Manhattan DA’ s Office announced on July 1 that it was filing perjury charges against a Navy officer who was acquitted of the DWI last year by a New York County jury. Petty Officer First Class Leonel Polanco-Colon, age 32, was found not guilty by the jury after he and a friend, Luis D. Nunez, age 29, who is also charged with perjury, purportedly concocted a story that a Mr. Nunez had been Polanco-Colon’s designated driver on the night in question, and that Polanco-Colon never operated or intended to operate the motor vehicle when he was stopped by police.

Under the New York Vehicle & Traffic Law, in order for prosecutors to prove a DWI charge, they must establish that the defendant driver operated the vehicle or intended to operate the car at the time of the alleged offense. The latter situation has come up frequently in our office’s experience, when, for example, a driver pulls over the side of the road either to “sleep off” the effects of alcohol or to wait for a period of time before driving after leaving a bar or other establishment which serves alcohol. If the keys are in the ignition, and the car is running, this is indicia of “operation” and will often be enough for prosecutors to obtain a conviction of driving while intoxicated.

In the Polanco-Colon case, he and his friend Mr. Nunez testified that on August 16, 2011, they had been together at two bars in Manhattan, and that when they were stopped by police, the only reason that Polanco-Colon was in the car was to charge his phone, not to drive. Mr. Nunez described in detail their trip down the West Side Highway from the Café Tabaco y Ron to the Gaslight Lounge. The jury believed the testimony of the two men, and found Mr. Polanco-Colon not guilty of DWI. Polanco-Colon cannot be retried on the DWI charge, as that is double jeopardy. However, the Manhattan District Attorney’s Office has apparently determined that Mr. Polanco-Colon and Mr. Nunez were never together on the evening in question, and has charged Polanco-Colon with 8 counts of perjury, a D felony that has a maximum sentence of 7 years in prison. Mr. Nunez has been charged with 6 counts of first degree perjury.

One of the ironies of this case is that had Mr. Polanco-Colon been convicted of the DWI, which is a misdemeanor, he would have faced a maximum of only 1 year in jail, rather than 7 years on the first degree felony perjury charges he is now charged with. The attorney representing Mr. Polanco-Colon is also implicated in the case as having apparently discussed coordinating the testimony of Mr. Polanco-Colon and Mr. Nunez. In announcing the charges, New York County District Attorney Cyrus Vance stated: Honest testimony is the bedrock of our legal system…The cover-up, is, in this case, more serious than the crime.”

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