How New York Traffic Laws Let Hit-and-Run Killers Drive Away Scot-Free

The scenario repeats itself with alarming frequency. A New York City pedestrian or cyclist is killed by a hit-and-run driver. The driver is eventually located by police, or turns himself in. The driver says he didn’t see the victim, didn’t know he had hit anyone. Prosecutors may or may not issue charges for leaving the scene. No additional charges are filed.

Within the last year, loved ones of Marilyn Dershowitz and Mathieu Lefevre, both killed by hit-and-run truck drivers who escaped charges for taking a life, have suffered the shortcomings of the New York State traffic justice system. The death of Roxana Sorina Buta is another case that points to the inadequacy of New York’s vehicular laws, particularly when compared to those of other states.

On May 24 at approximately 1:30 a.m., Buta was walking across Broadway at 14th Street, in the crosswalk and with the light, when the driver of a dump truck made a right turn, ran her over and kept going, according to reports. In the weeks that followed, with the NYPD investigation seemingly going nowhere, Buta’s mother pleaded for the driver to come forward. On June 12, it was reported that the killer had been identified. The lawyer for Buta’s family said police have since confirmed that the driver is an employee of NYC DOT, and said no charges have been filed by Manhattan District Attorney Cy Vance.

“They’re still investigating and determining whether to charge [the driver] with a crime or not,” attorney Joseph Tacopina told DNAinfo at a gathering on what would have been Buta’s 22nd birthday. “The city is being incredibly derelict in resolving this issue. (Tacopina’s firm has not responded to a Streetsblog request for an interview.)

Though he fled the scene of a fatal crash, thanks in part to porous statutes and judicial rulings that benefit killer motorists, it is unlikely that the driver who ran down Roxana Buta will be charged for causing a death. Even a charge for leaving the scene is no sure thing.

“The leaving the scene statute requires that the driver — whether or not he or she is blameworthy in the crash — knows or has reason to know that personal injury has been caused in order to be criminally charged,” says Nassau County assistant district attorney and traffic law specialist Maureen McCormick. “The fact that the injury results in death is a separate element.”

“There is some logic in the position that a person cannot be criminally charged for something they did not know occurred. The issue is what we can prove in terms of that knowledge.”

In other words, under New York State code, “I didn’t see her” is a credible defense. As we reported following a 2009 Transportation Alternatives traffic justice summit, this is not the case in other jurisdictions.

In Alabama, to cause a death while violating a traffic law is to commit homicide, regardless of intent. The Washington, DC, negligent homicide statute specifically precludes willful or wanton acts, and requires only that a vehicular death be precipitated by careless or reckless driving. A driver convicted of causing death or serious physical injury to a vulnerable user in Oregon must complete a traffic safety course and 100 to 200 hours of community service, or else pay a fine of up to $12,500 and lose his or her license for one year.

In New York, three charges may apply to either a vehicular assault or homicide not involving alcohol or drugs: criminally negligent homicide, second degree manslaughter and depraved indifference murder. McCormick has called the state’s criminally negligent homicide statute “illogical on its face” by virtue of its status as a Class E felony, the least severe of all felony categories. Between 1994 and 2008, there were only 29 indictments for criminally negligent homicide in all of New York State, according to Transportation Alternatives. During that time frame, about 10,000 people died on New York State roadways.

As state law requires proof of what a driver knew at the time of a collision, McCormick says,”The mental states in the homicide charges remain a challenge.”

Another reason for the low number of criminal cases against killer motorists is that prevailing New York case law has little basis in objective criteria. In 2008, the state’s highest court ruled that an unlicensed 17-year-old driver was not criminally liable for a high-speed crash that killed three passengers because he was incapable of perceiving the risk of his actions. Though McCormick says prosecutors hoped that case would prove an aberration, subsequent rulings continue to favor drivers who kill.

“Thus,” says McCormick, “law enforcement and prosecutors remain perplexed about what reckless or criminally negligent actions the court will consider to be criminal when a death has been caused.”

All of which compounds the anguish experienced by family and friends who have lost someone to traffic violence. Said Roxana Buta’s mother, Cristina Oprea: “If you have the truck and the driver, why is the guy not a suspect? Why is he not arrested? He killed my daughter.”