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.

Continue reading ›

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.”

Continue reading ›

“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.

Continue reading ›

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.”

Continue reading ›

There are various types of distractions which can lead to a distracted driving accident, and traffic charges which could result in the loss of driving privileges. According to the National Highway Traffic Safety Administration (NHTSA), the number of occupants of vehicles killed in distraction related crashes decreased slightly from 3360 in 2011 to 3,328 in 2012. However, there was an estimated increase in injuries from distracted driving crashes from 387,000 in 2011 to 421,000 in 2012. Distracted driving can be as a result of:

Use of a cell phone or smart phone for a call or email;
Using a navigation system in the vehicle;
Adjusting a radio, CD player or other stereo equipment such as an Ipod;
Speaking with passengers in the vehicle;
Attempting to discipline children in the car;
Reading a map or other material;
Personal grooming;

Eating or drinking.

Texting is considered the most substantial distraction, as it requires visual, manual and cognitive attention from the operator. 10% of drivers under the age of 20 involved in fatal accidents were distracted at the time of the crash according to the NHTSA. Operators under the age of 20 have the greatest proportion of distracted drivers. Drivers in their 20’s comprise slightly more than 25% of the distracted drivers in fatal crashes.

In New York State, under the Vehicle & Traffic Law, texting while driving is now a primary violation, which means that an officer can issue a ticket for this infraction without first determining that the operator has also committed another violation, such as speeding, following too closely, or changing lanes unsafely. Additionally, texting infractions have been increased from an original 2 points on the driver’s license to 5 points, which is almost half way to a suspended license, which occurs when the driver is assessed points in an 18 month period.

Here is an alarming statistic for those who test while driving: The average period of time the driver’s eyes leave the road to text is 5 seconds. If the vehicle is travelling at 55 m.p.h., it would cover an entire football field, 300 feet, with the driver not looking at the road! In a study conducted by the NHTSA in 2006, using in vehicle instrumentation, approximately 80% of crashes and 65% of near crashes occurred with the operator of the car looking away from the road just prior to the event. The Safe Transportation Research Education Center at UC Berkeley found that the percentage of distracted driving by electronic devices increased from 4.2% in 2011 to 6.2 % in 2012. Drivers ages 16-24 were significantly more likely than other age groups to drive while distracted at 11.4%.

Continue reading ›

2013 saw a huge increase in texting while driving tickets in New York State. There has been a contemporaneous increase in enforcement and the penalties for this traffic infraction since the law was first instituted in 2009. This past year, there were 82% more tickets issued in New York City, and an 89% increase in the counties outside of the City. In almost half of New York’s 62 counties, (26), texting tickets more than doubled. Statewide, police wrote approximately 55,000 texting while driving tickets in 2013, compared with 30,000 in 2012.

In specific counties, Westchester County police issued 2,000 texting infractions last year, which was the most other than Suffolk County outside of New York City. Monroe County came in 3rd at almost 2,000, which was 77% more than 2012, and in fourth place was Erie County. In Dutchess County, the number of texting tickets increased more than 50% from 419 to 854 from 2012 to 2013, and in Rockland County, the increase was even greater, jumping from 193 in 2012 to 494 in 2013. In order to assist in enforcement, police are utilizing taller SUV’s and watching traffic from higher vantage points so that they can look down on drivers who they suspect of texting.

Interestingly, as texting tickets have soared, the number of tickets written for using a cellphone while driving has decreased in each of the last five years. In 2009, police issued 342,000 hand held cellphone tickets, and that number was at 207,000 in 2013, reduced from 217,000 the year before.

Since 2009, when the law first went into effect, the penalties for texting infractions were much less stringent. To begin with, texting while driving was a “secondary offense”, which meant to charge an operator with the offense, the police had to determine that he or she had committed another infraction such as speeding or following too closely. In 2011, the law was amended by the New York State legislature to change texting while driving to a primary offense, and the points imposed were increased from 2 to 3. In 2013, the fines were increased, and the points increased to five.

According to the New York State Department of Motor Vehicles, the conviction rate for texting offenses in 2012 was 66%, and the conviction rate for handheld cellphone usage was 73%. The Cohen’s Children’s Center on Long Island reported last spring that more than 3,000 teenage drivers are killed each year as a result of testing while driving. Due to the epidemic of texting while driving, particularly with younger drivers, Governor Cuomo is proposing that drivers under the age of 21 lose their licenses for one year (presently it is six months) if they are convicted of texting while driving. If that proposal is implemented by the NYS legislature, New York would have the strongest texting while driving penalties in the United States.

Continue reading ›

Justin Bieber, the seemingly troubled and wayward teen pop idol, was arrested on January 23, 2014 by Miami Beach police on charges of DWI, resisting arrest and driving without a valid license. Bieber was charged with drag racing a $250,000 Lamborghini along a Miami roadway at approximately 60 miles per hour in a 30 mile per hour zone. Each of these charges are misdemeanors under Florida law.

When Bieber was apprehended by Miami Beach police at approximately 4:00 AM on January 23rd, he purportedly failed field sobriety tests and became angered when the police attempted to search him. It has been reported that Bieber exclaimed: “I ain’t got no f***ing weapons…Why do you have to search me? What the f*** is this about?”

In Florida, as in most states in the United States, a blood alcohol concentration (BAC) of 0.08% or higher is the standard for legal intoxication. Reports are that Bieber’s BAC was considerably lower than the level for legal intoxication at approximately 0.02%. However, under Florida law, if the driver is under the age of 21, the standard for intoxication is 0.02%. Thus, Bieber may have been legally intoxicated at the time he was operating the Lamborghini. Additionally, the seemingly troubled pop singer allegedly admitted to police that he had also used marijuana and prescription medications that evening before driving, probably not the smartest thing the “Biebs” ever did in his rather rocky recent past.

Bieber was also charged with the misdemeanor of resisting arrest as he failed to keep his hands on the vehicle while the arresting officer was conducting a patdown for weapons. The arrest report notes that Bieber had bloodshot eyes, flushed face (maybe from embarrassment?) and an odor of alcohol on his breath.

One of the few intelligent moves Bieber made (or at least his management team) was to retain Roy Black as his criminal defense lawyer, who is known as the attorney who was able to obtain an acquittal for Kennedy nephew William Kennedy Smith on Florida rape charges in 1991.

In addition to facing the music for the misdemeanor charges of DUI, resisting arrest and driving without a valid driver’s license, the man whose followers are known as “Beliebers” has another significant problem which must be addressed, and probably by a different hired gun. Bieber is a citizen of Canada, and is in the United States on an O-1 work visa, which is granted to foreigners with “extraordinary ability in the sciences, arts, education, business or athletics.” With Bieber’s recent past of alleged egg throwing, drag racing, urinating in public and spitting, and a question mark as which of the above categories he fits into—(is what the Biebs puts out “extraordinary art”?), he certainly has done absolutely nothing in the recent past to convince any administrative judge in the Department of Homeland Security that it is in the interests of the United States to grant Bieber continued residence in this country. If I were advising Bieber, my advice would be simple: get into rehab for whatever is troubling you, and fast.

Continue reading ›

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.

Continue reading ›

On November 19, 2013, New York’s highest Court, the Court of Appeals, in the case of People of the State of New York v Richard Diaz, ruled that in felony criminal cases involving immigrant defendants, defendants must be advised that they face removal (previously known as deportation) if they plead guilty to the charge (generally any sentence which potentially could result in the defendant being imprisoned for at least one year or more in jail will result in removal when the sentence is served). In the Diaz action, Richard Diaz was a legal permanent resident from the Dominican Republic. He was arrested in October of 2006 when he and another man in a taxicab were found to have a two pound brick of cocaine during the course of a traffic stop. Mr. Diaz pled guilty to a reduced drug possession charge in exchange for a 2½ year prison sentence, but apparently Mr. Diaz’ lawyer and the Court failed to advise him that a plea to the drug possession charge would result in his removal from the United States when his sentence was completed.

When Mr. Diaz was released from jail, he was immediately picked up by “ICE”, the Immigration and Customs Enforcement unit, to remove him from the United States. In a 5-2 decision, written for the majority by Judge Sheila Abdus-Salaam, the Court overturned a previous decision from 1995 in which it determined then that a defendant did not need to be warned of deportation because it was a “collateral consequence” of a guilty plea. Apparently, the driving factor behind the Court’s decision in Diaz was the changing times since the mid-1990’s, when 37,000 undocumented people were removed from the United States. Conversely, in 2011, 188,000 non-citizens were deported as the immigration laws have been more strictly enforced.

In her decision, Judge Abdus-Salaam stated that: “deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to defendant as a matter of fundamental fairness.” Judge Abdus-Salaam also mentioned that defendants who take plea bargains lose their jobs, and are sent back to countries they haven’t lived in since their birth, with no family or friends there.

The U.S. Supreme Court ruled in the Padilla v. Kentucky (2010) that defense lawyers have a duty to inform their clients that they face removal before they agree to plead guilty to a felony. In practice, often the lower Court judges ignore this directive and in my experience, many defense attorneys either are not aware of this consequence or simply forget to consider it. In Mr. Diaz’s case, along with two others that were decided contemporaneously, the Court ruled that the defendants have a right to withdraw their guilty pleas, as their due process rights were violated. However, Mr. Diaz and the other defendants must prove that if they had been warned of the possibility of removal, they would have insisted on going to trial and not pleading guilty. Chances are very strong that Mr. Diaz will claim that he would have gone to trial and he will be allowed to withdraw his guilty plea.

Continue reading ›

Effective this past Monday, November 4, 2013, New York’s Vehicle & Traffic Law has been amended to toughen the penalties on truck drivers and other commercial drivers who use their cell phones while driving. These license holders will no longer be permitted to use a mobile device to make a call, text, or send an email, even if the driver is temporarily stopped in traffic, at a stop sign, or traffic light, of for any other reason. The new texting law applies to intrastate travel in the State of New York. It states that “using” a mobile device is defined as when a person “presses more than a single button to dial or answer the phone.”
The law is different for non-commercial drivers, who can only be flagged for a violation of the cell phone and texting laws if their vehicle is in motion.

The penalties for a violation of the modified section of the Vehicle & Traffic law are substantial, including a mandatory suspension of the commercial driver’s license!

In July of this year, Governor Cuomo signed into law an increase in the points imposed for texting while driving infractions from 3 points to 5 points, which is almost half of the 11 points on a license resulting in a suspension. The July amendment also added texting while driving to list of violations which can result in a 60 day suspension for probationary and junior licenses.

In 2011, texting while driving was made a primary violation by the New York State legislature, (meaning that a police officer could issue a ticket for a texting infraction without another moving violation such as speeding or following too closely). As a result of that change, there was a huge increase in texting while driving tickets around New York State, from 30,000 in 2012 to approximately 43,000 thus far in 2013. The 43,000 issued this year include 24,000 in the City of New York and 19,000 in the remainder of New York State.

In Westchester County, there were 975 texting tickets issued in 2012 and 1,570 to date in 2013. Other counties such as Dutchess have almost doubled texting while driving tickets this year, going from 419 last year to 726 at present in 2013.

Continue reading ›