BY DUSICA SUE MALESEVIC | The seriousness of the charges Tiffany Murdaugh — including assault in the second degree — faces is unusual in reckless driving cases that don’t involve a fatality, alcohol or fleeing from police.
Murdaugh, 34, is accused of driving on the sidewalk to pass traffic early Monday morning on April 13 and striking Heather Hensl, 37, who was on her way to work. Hensl was seriously injured and Murdaugh allegedly left the scene and was involved in another incident in Brooklyn 30 minutes later.
“It’s pretty rare for someone to be charged in a vehicular assault,” said Charles Komanoff, a traffic analyst.
For Komanoff, the most disturbing thing is not the hit and run, but the wanton disregard for human life by driving onto and on the sidewalk.
The incident, which happened near Spruce Street School during its morning drop off catalyzed parents and the community, who called for an arrest and increased enforcement. Hensl, a mother of two, feared at one point that the N.Y.P.D. would drop the investigation.
“I have no doubt that community mobilization forced Cy Vance’s hand and forced the N.Y.P.D.’s hand,” said Komanoff, referring to the Manhattan district attorney.
“It’s terrific that this driver has been charged,” he added. “It is appalling that it took five weeks. It’s outrageous that it’s cause for celebration. It ought to be automatic rather than rare — charging for criminal driving.”
Marco Conner, legislative and legal manager for Transportation Alternatives, an advocacy group for pedestrian and bicyclist safety, said that while it is not unprecedented to bring charges of this nature, including the felony charge — it is rare in cases that do not involve a fatality, drunk driving, someone fleeing from the police or intentionally hitting the victim with their car.
Transportation Alternatives combed through media reports and Connor said that from that compilation, in 2013, 192 pedestrians and cyclists were killed by drivers.
In 28 of those crashes, the driver was arrested. Out of those 28 incidents, the district attorney prosecuted 12, said Connor.
Out of those 28, only two cases were prosecuted that did not involve drunk driving or someone fleeing the police, said Connor.
“In that sense, it’s highly commendable, I think, that D.A. Vance is bringing [these] charges,” said Connor in a phone interview.
However, he said, there has been a lack of willingness of New York City district attorneys to prosecute those who are driving reckless and injuring pedestrians and bicyclists.
“One of the reasons that have been put forth for years by the D.A. offices is that the facts simply don’t support bringing criminal charges because of legal precedent,” he said.
The case law, he explained, that has developed over the years has such a high bar for what is considered reckless driving that D.A.s say it really takes egregious driving behavior to convict someone.
Traditionally, some of this case law has developed to the point of requiring a number of violations occur before the driver can be held to any criminality, said Conner. This has become known as the rule of two. For example, a driver would have to commit two moving violations, such as speeding and failing to yield, while striking the victim, said Connor.
Unless these violations are present, he said, there is the belief that it’s insufficient to charge someone and get a conviction.
Connor said that this has created an acceptance by the N.Y.P.D. and the D.A. “that as long as the driver says, ‘oops, I didn’t see the person, they were in my blind spot, the weather was poor, the visibility was poor’ — then they essentially tend to get off scot free.”
The Wall Street Journal reported last year that 66 drivers were arrested under vehicular homicide laws — or five percent — out of 1,298 fatal crashes in New York City between 2008 and 2012. How many of those 66 drivers were convicted remains to be seen. It is difficult to ascertain how many cases were dismissed, pleaded down or ended in a conviction.
In the age of Vision Zero — the city’s plan to eliminate traffic deaths — D.A.s need to treat traffic violence and vehicular crime as seriously as other types of crime have been treated in the past, such as drugs or corruption, said Connor.
“The fact that District Attorney Vance is bringing these charges against this driver is good,” he said. “It’s good that he’s sending this message and especially also [in] light of the challenge that he faces in actually winning a conviction — it’s a not a slam dunk. That makes it even more commendable.”
