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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The light is yellow and you are late for work. The boss is rather an unforgiving type, so you blow through the light, and the red and white lights begin flashing. “Pull over”, you hear. Now you are looking at a certain traffic ticket, right? Maybe not.

The first thing you should do is pull over, put your hazard lights on, and retrieve your driver’s license and registration. The officer approaches the car, and you roll down your window. Here is where people make their mistake. When Officer XYZ asks you “do you know why I stopped you?”, do not respond with “No, I have no idea.” I have spoken with many police officers over the years (including a family member) and this is a common theme. If you have any chance of an officer excusing the infraction, it is only a possibility if you are honest in this response. Something like this might work—“Yes officer, I am very sorry. The highway was a real mess today, I’m 15 minutes late for work, and my boss is not going to be happy.” You haven’t specifically stated that you went through the light, but, you are also not insulting the officer’s intelligence. Potentially, this will result in a warning to be safer in the future, and no ticket.

If you do get the ticket, and want to plead it down to reduce the points and or fines, and if you intend to do this yourself, request a supporting deposition. (Presently, this is often provided on a large computer print out when the ticket is issued). The supporting deposition is a document prepared by the officer which provides details of the alleged infraction—where the officer was located, what direction your car was going in, what the weather conditions were, what he/she observed, and in the case of speeding infractions, how the officer determined the speed—laser, radar or other means such as “pacing” your car.

If the officer does not prepare a supporting deposition, and you appear for the pre-trial conference, this is a basis for a dismissal of the traffic violation. Obviously, this method only works in the more old fashioned Courts where they still issue tickets which do not contain the supporting deposition. If the officer does not show up for the Court appearance, depending on the particular Court, you may move for a dismissal for “failure to prosecute.” However, in Traffic Violation Bureau Courts in the five boroughs of New York City, this will in all likelihood not be successful (unless the non-appearance by the officer is repeated) and the Court will schedule a new date. The New York City Courts are also notorious for no plea bargaining, and cases proceeding directly to trial with limited cross examination of the police officer who issued the ticket.

If you retain an attorney, in my experience, it is advisable not to request a supporting deposition, as this requires the officer to do more work and reduces the chances for obtaining the maximum possible reduction for that ticket. With regard to possible pleas for particular violations, clients should be aware that certain tickets, such as speeding in a construction zone, or in a school zone, are much more difficult to get reduced due to judges’ reluctance to countenance what they consider to be reckless behavior. Thus, a client seeking a reduction to a seat belt violation on a speeding in a construction zone infraction (usually at least 6 points, more than halfway to a suspended license at 11 points) has to accept that this may be exceedingly difficult to achieve. Driver’s abstracts can sometimes be quite helpful, in that if the driver has a pristine driving record, this can go a long way to a significant reduction.

In some jurisdictions, there are several judges, and it is sometimes possible to adjourn a case to a date when a more lenient jurist is on the bench, adding to the odds of a better resolution.

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This past Friday, July 26, 2013, was a celebration for Brian Bond, 35, and Lindsey Stewart, 30, childhood sweethearts who were due to be married on August 10, 2013. But celebration turned to disaster quickly. After dinner at Pier 701 in Piermont, NY, the couple, along with best man Mark Lennon and two other friends, joined skipper Jojo John, 35 on his 19 foot powerboat for a nighttime ride across the Hudson River from Piermont to Tarrytown.

As is well known by now, the Tappan Zee Bridge is in the very beginning stages of replacement, and as part of that massive 3.9 billion dollar project, barges containing construction supplies have been placed on the north and south sides of the bridge. Tragically, at 10:40 PM on the evening of July 26th, which by all accounts was a clear night, the boat skippered by Mr. John struck a construction barge on the south side of the bridge, tossing Ms. Stewart and Mr. Lennon off the boat and severely injuring the remaining four passengers on the boat, including the driver Mr. John. Ms. Stewart and Mr. Lennon’s bodies were found in the Hudson River, tragically dead at the age of 30. But what caused the accident?

Immediately after the accident, newspapers were quick to call the boat ride a “booze cruise”, and editorials in local papers such as the Journal News immediately made the assumption that alcohol was to blame. However, witnesses have asserted that little alcohol was consumed by the group before they entered the boat that fateful evening, and by all accounts they were all hard working people with jobs to go to the next day.

Blood was taken from Mr. John, he has been charged with vehicular manslaughter and vehicular assault, and while recuperating at Nyack Hospital, he has been handcuffed to his bed. But shouldn’t we be waiting until definitive results have been disclosed by the State Police laboratory before we determine that Mr. John is criminally responsible for this tragedy? The legal limit for intoxication is 0.08% in New York State. What if tests reveal that Mr. John’s BAC (blood alcohol concentration) was 0.02, or 0.04, the latter of which could be the equivalent of two beers?

It is known that prior to the accident, at least one citizen, Michael Hortens, a Nyack resident, had contacted a Nyack official, Mayor Jen Laird-White, to express concern that the barges were inadequately lit, and that poor lighting would lead to a tragic accident with all the boat traffic at night during the summer on the Hudson River. Ms. Laird-White apparently did forward the letter to bridge construction officials. Hortens noted “[The barges] just seemed so potentially dangerous that I had to say something.” Hortens, a Rockland County resident and owner of an 18 foot sailboat, noted that “it was an accident waiting to happen…just a matter of time.” He declared, “to me, it’s obvious that people should have been warned or there should have been adequate lighting….my thinking is that [the barges] should be lit up like Christmas trees.” No one ever responded to Mr. Hortens from the State or local governments.

Naturally, after the accident, the State has added dozens of extra LED solar lights and battery powered lights to the barges. An official for the New York State Thruway Authority claimed that the barges met all Coast Guard requirements, which mandate that the barges must be able to be seen from one nautical mile, the equivalent of 1.15 miles or 6,076 feet.

John Schumacher, a friend of Mr. Bond and Ms. Stewart, who survived the terrible accident with serious injuries including a fractured jaw, has stated definitively that no one on the boat ever saw the barge before the accident. However, the Rockland D.A., Thomas Zugibe, seems set on presenting a criminal case to a Rockland County grand jury when Mr. John recovers sufficiently to appear in Court, possibly in September. But the question persists, is this a case of criminal conduct by Mr. John, or a case of avoidable negligence attributable to the State of New York in failing to ensure that the barges were well lit? If Mr. John was in fact intoxicated, he must properly face prosecution. However, perhaps Mr. Zugibe, and local media, should await laboratory tests and more investigation before blaming Mr. John and purported alcohol involvement for this tragedy—it is only fair.

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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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Mookie Blaylock, the former NBA star point guard, has been charged with 2nd degree vehicular homicide charges as the result of a May 31, 2013 fatal car crash. Blaylock’s SUV apparently crossed a median in Jonesboro, Georgia and struck a van on the opposite side of the road. In the accident, 43 year old Monica Murphy, a passenger in the other vehicle, was killed, and her husband, Frankie, who was driving the vehicle, sustained a broken ankle and was released from the hospital thereafter. The Murphy family had recently moved from Mississippi to Georgia, and have five children, ages 3-15.

In addition to the vehicular homicide charges, which are felonies, Mr. Blaylock is charged with the misdemeanor of driving with a suspended license, and traffic infractions including an improper lane change, crossing the median, and driving on the wrong side of the roadway. Generally, these traffic infractions result in a fine and possible points on the driver’s license, but obviously they pale in comparison to the homicide charges Blaylock is facing.

Blaylock is 46 years of age and allegedly has been charged previously with operating a car with a suspended license. Under Georgia law, the suspended license charge could be upgraded to a felony if Blaylock has had four charges in five years.

Blaylock was critically injured in the accident and was initially placed on life support. His condition has been upgraded to serious. He has not yet spoken with Jonesboro Police investigators, and since he has been charged with vehicular homicide, it is not likely that he will do so anytime soon. In conjunction with the seriousness of the charges that Mr. Blaylock is facing, he has retained the same lawyers to defend him who successfully defended former Baltimore Ravens star Ray Lewis on manslaughter charges in 2000. Ultimately, Lewis pled guilty to the much lesser charges of obstructing justice in that case, allowing him to save his career.

Mr. Blaylock’s family claims that he has a history of seizures and appears to be suggesting that his physical condition may have played a role in the accident. However, a spokesman for the prosecution stated that this would not have any impact on the charges against him. If Blaylock is convicted or pleads guilty to the homicide charges, he would likely face a jail term of one year, followed by a term of probation.

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After an extensive investigation by the Westchester County District Attorney’s Office and the Town of Yorktown Police Department, Brett Nelson, an 18 year old man from Yorktown Heights, has been indicted by a Westchester County grand jury for criminally negligent homicide in the death of Randy Zapakin, a 57 year old married father of three. The motor vehicle crash occurred on November 8, 2012 while Mr. Zapakin was walking his dog near his home on Farm Walk Road in Yorktown. Mr. Nelson was driving a 2002 Chevrolet Cavalier with two friends in the vehicle. The vehicle operated by Nelson allegedly struck Mr. Zapakin, veered off the roadway, and continued for approximately 100 feet before striking a tree.

When the police arrived at the scene, they allegedly smelled marijuana in the vehicle, and found the drug in the car and a marijuana pipe near the point of impact. The accident was reported by a neighbor of Mr. Zapakin when the vehicle came to rest on her lawn. Purportedly, blood tests tested positive for THC, the active ingredient in marijuana. Mr. Nelson has been charged with criminally negligent homicide, a felony under the Penal Law, the misdemeanor of reckless driving, the violation of unlawful possession of marijuana, and traffic infractions including driving left of the center line and failure to exercise due care.

In order to be found guilty of criminally negligent homicide, a person must be found to have driven recklessly, disregarding the known risks of his or her recklessness, resulting in the death of another person. Many people believe erroneously that this charge only arises when a driver is intoxicated or under the influence of drugs. However, it can also be charged if the driver is texting or otherwise disregarding the serious risks of driving without paying attention to the road in front of him or her. One of the issues in this case will be whether Mr. Nelson is offered a plea by the District Attorney’s Office to a reduced charge. Generally, if the defendant does not have a criminal record, a plea would be offered. Due to Mr. Nelson’s young age, and assuming that he has no previous criminal background, I would anticipate that the D.A.’s office will make an offer in an effort to obtain a guilty plea in exchange for a limitation on the jail time which Mr. Nelson will serve. Of course, the D.A. will take into account the wishes of Mr. Zapakin’s family, but the reality is that it is unlikely that this case will reach a trial, as Mr. Nelson would face the grim reality of autopsy photos and grieving family members.

Mr. Nelson was released on $25,000 bail. He is due back in Court on May 28, 2013. If convicted on the criminally negligent homicide charge, Mr. Nelson faces up to four years in prison.

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According to a study by Edmonds.com, in which they polled three police agencies, there are several traffic violations which police departments specifically look to issue tickets for. So if you are trying to avoid being pulled over on a traffic infraction, this article is for you.

Speeding

The police are always focused on stopping drivers who are speeding due to the safety of the drivers, their passengers, and the occupants of other cars on the road. According to Edmonds, for every one hundred additional speeding tickets issued per month, there are 14.3 fewer accidents and 5.6 fewer injuries. Fines are frequently heavy on speeding infractions, particularly in school zones, in active construction areas and on infractions for more than 20 miles per hour over the speed limit. Annually, thirty four million tickets are issued for excessive speed, so it would be wise to slow down. In New York, under the Vehicle & Traffic Law, drivers who are convicted of going between 1 and 10 miles per hour over the posted speed limit receive 3 points on their license, and for drivers driving between 11 and 20 miles per hour over the speed limit, that is a four point ticket. Driving 21-30 m.p.h. over the limit is a 6 point infraction, and 31-40 over is an 8 point infraction. Keep in mind that any driver with 11 points on their license will have their license suspended by the Department of Motor Vehicles.

Distracted Driving

Distracted driving includes driving on a hand held cell phone, texting while driving, sending or receiving emails while driving, personal grooming while driving, drowsy driving and attending to young children in the back seat. Texting while driving is obviously a huge societal problem, but it appears to be most significant among younger drivers. The National Highway Traffic Safety Administration (NHTSA) reports that 40% of teens admit that they were in a car being operated by a driver either texting or using a smart phone. A conviction or plea of guilty to texting while driving, sending or receiving emails while driving or using a hand held cell phone will also lead to 3 points on your driver’s license.

Following Too Closely and Unsafe Lane Changes

The Edmonds study found that these two traffic infractions were of equal importance to police departments than many other traffic violations. However, under the New York State Vehicle & Traffic Law, an operator convicted of following too closely receives 4 points on their license, and an unsafe lane change conviction leads to 3 points on their driver’s license. Unsafe lane changes that the police look for, according to Edmonds, include cutting another driver off, veering into another lane, and moving into another lane without looking.

Equipment Violations

Equipment violations are easy tickets for officers to issue because there is no judgment involved. Younger drivers should be aware that excessive window tint is an obvious violation that the police are looking for and will not overlook. From an officer’s perspective, too much window tint creates a safety issue in that the officer cannot see what is happening inside the vehicle. Other equipment violations which are easy marks are broken tail lights, broken windshields and expired inspection stickers.

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In 1961, 51 year old Charles Gideon was charged with stealing wine and money from vending machines at a Panama City, Florida pool hall. At his arraignment, Mr. Gideon asked the judge to appoint him an attorney, as he was not able to afford one. However, in 1961, the State of Florida, as with other states in the nation, only provided criminal defendants with a Court appointed attorney in “capital” cases such as rape or murder charges.

Mr. Gideon was convicted of the larceny charges and sentenced to jail. The Florida Supreme Court upheld his conviction. While Mr. Gideon was incarcerated, he wrote out an appeal himself in pencil using prison stationery, and sent the appeal to the United States Supreme Court, which decided to hear the case. Upon receiving Mr. Gideon’s “pro se” appeal in 1962, the Court appointed Abe Fortas, who would become a U.S. Supreme Court justice two years later, to represent him. Gideon’s’ timing was excellent, as at the time of his appeal, the Supreme Court was seeking to address the issue of indigent defense.

Two months after hearing arguments in the case, entitled Gideon v. Wainwright, the U.S. Supreme Court reversed the Florida Supreme Court and ruled that all criminal defendants are entitled to be represented by counsel, even in non-capital cases, based upon the Fourteenth Amendment guarantees of due process. Judge Black, writing for the Court, stated: “In our adversary system of criminal justice, any person hauled into Court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.” Judge Black also quoted from an earlier Supreme Court opinion, in Powell v. Alabama, in which Justice Sutherland stated: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law…He requires the guiding hand of counsel at every step in the proceedings against him. Without it, through he may be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

The case was sent back to the Florida state Court five months later. Mr. Gideon was assigned a new lawyer, who was able to dismantle the prosecution’s case. The jury’s verdict: Not guilty. And history was made.

50 years later, although Gideon is a landmark case and was conceived with tremendous optimism, it is an unfortunate truth that many defendants who cannot afford to pay for an attorney are provided counsel by overworked and underfunded Legal Aid offices and public defenders who do not have the staff and resources to match the budgets of the prosecution. This is due to major budget cuts across the U.S. This often leads to plea bargains in cases where if there were sufficient staff and resources available to the defense, the prosecutors might be forced to meet their burden to prove each and every aspect of the case beyond a reasonable doubt at a trial. So the promise of Gideon back in 1963 has been hindered by budgetary considerations in 2013.

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Steve Katz, an Assemblyman from Yorktown who was first elected in 2010, was charged on Thursday, March 14 with unlawful possession of marijuana and speeding after being stopped by a trooper on the New York State Thruway near Albany, New York. Katz was ticketed for traveling at 80 miles per hour in a sixty five m.p.h zone. Apparently, when the trooper approached Katz’ car, he detected an odor of marijuana. Katz then handed over what is described as a small bag of marijuana to the trooper.

Mr. Katz is a member of the New York State Assembly’s Committee on Alcoholism and Drug Abuse. Last year, he was vocal in his opposition to the legalization of medical marijuana and voted against a bill to do so in the assembly. During the consideration of the legislation, Mr. Katz was quoted as stating: “Our community has been stricken with an increase in drug use and drunk driving by our youngest citizens.”

Katz was given an appearance ticket and must appear in the Coeymans Court on March 28, 2013. For the unlawful possession of marijuana violation, Katz could be fined $100.00. For the traffic infraction of excessive speed based on 15 miles an hour over the posted limit, Katz is facing a fine in the range between $90.00 and $300.00 in addition to a mandatory New York State surcharge of $85.00. Further, drivers who are convicted of or who plead guilty to driving 11-20 miles per hour over the speed limit will have 4 points assessed on their licenses. Drivers who accrue 11 points in an 18 month period will have their licenses suspended.

I would expect that Mr. Katz will retain an attorney to plead the speeding infraction to a non moving violation such as failure to wear a seat belt, which would still involve fines and surcharges of approximately $135.00 total, but not result in points on his driver’s license. As for the criminal violation of unlawful possession, Mr. Katz will probably seek what is called an “ACD”, or adjournment in contemplation of dismissal. This means that if has no other charges with a 6 month or one year time frame, the charges will be dismissed. A conviction on an unlawful possession of marijuana violation would result in fines with mandatory surcharge of approximately $200.00 for a first offense under the New York Penal Law Section 221.05.

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Julio Acevedo, the 44 year old suspected driver in the March 3 fatal car crash in the Williamsburg section of Brooklyn, was taken into custody in Bethlehem, Pennsylvania on March 6th. 21 year old Raisy Glauber, who was several months pregnant, and her 21 year old husband Nachman, were en route to a nearby emergency room for a medical examination when the fatal car crash occurred at the intersection of Kent Street and Wilson Street in Williamsburg. The Glaubers were passengers in a cab driven by Pedro Nunez Delacruz.

Mr. Delacruz was turning from Wilson Street where there is a stop sign; it is unclear if he stopped before making his turn. Mr. Acevedo who was traveling on Kent Street, which has no traffic control at the intersection, was driving a BMW at approximately 60 miles per hour. He struck the driver’s side of the cab with such force that the engine of the cab ended up in the back seat and Ms. Glauber was thrown from the vehicle. In addition to killing both Glaubers, the blunt force impact caused the baby to be delivered 3 months early by Caesarian section at Bellevue Hospital. The baby died of what was described as “extreme prematurity due to maternal blunt force injuries” by the New York City Medical Examiner’s Office on March 4th.

After the accident, Mr. Acevedo fled the scene and was charged initially with leaving the scene of an accident with serious injuries, which is a felony under the New York State Vehicle & Traffic Law. After the Glaubers and their baby died, the charges were upgraded to three counts of criminally negligent homicide, also felonies, (Criminally negligent homicide is an E felony with a maximum sentence of four years in prison) and one additional count of first degree involuntary manslaughter in the death of the baby, which is also a felony. It is uncertain if the Kings County D.A.s office will pursue the involuntary manslaughter charge against Mr. Acevedo, as it will be harder to prove.

The key evidence in the criminally negligent charges against Acevedo will involve a reconstruction of the accident by investigators to determine whether one or both drivers committed traffic infractions which led to the fatalities, including disregarding a traffic control device, speeding, and reckless driving. Additionally, officials will examine whether distracted driving such as texting, or alcohol was involved.

Acevedo may have fled the scene because he is presently facing DWI charges from a February 17, 2013 arrest in which his blood alcohol concentration (BAC) was allegedly 0.13%, well over the New York State limit of 0.08%. Additionally, according to reports, Mr. Acevedo served approximately 8 years in prison for a conviction of manslaughter in the death of a Brooklyn man known as “50 Cent”. The rap star Curtis Jackson later utilized this as his stage name.

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