Bus Driver Who Killed Citi Bike Rider Dan Hanegby Needs Failure-to-Yield Regulation Thrown Out – Streetsblog New York Metropolis

Attorneys for a bus driver who killed a Citi Bike rider in 2017 — and was discovered responsible of a prison cost of failing to yield — are taking their combat towards the fundamental street security violation to the state’s highest courtroom in hopes of getting metropolis’s Proper of Method Regulation dominated unconstitutional.

If profitable, the stunning effort by legal professionals for Dave Lewis may result in the defanging metropolis administrative code part 19-190, which was created in 2014 to make “failure to yield” a prison misdemeanor, punishable by a most of 30 days in jail. The legislation has grow to be a beneficial legislation enforcement instrument for reining in drivers who kill and maim New Yorkers — and, certainly, Lewis was discovered responsible and sentenced to 30 days in jail, a sentence he has but to function his case wends by the appeals course of.

It’s the primary time a problem to town’s “Proper of Method” legislation has made it to the state’s Courtroom of Appeals, the very best courtroom within the land of Excelsior. Lewis’s first enchantment, to the Appellate Division, First Division, was rejected in October, 2019, in a unanimous ruling; such a ruling usually discourages the Courtroom of Appeals from even sniffing at an extra enchantment, however Lewis’s lawyer efficiently received the case on the excessive courtroom docket earlier this yr — although the case was suspended in the course of the COVID-19 pandemic.

That led to a flurry of briefs being submitted to the courtroom this summer season by Lewis’s lawyer, Nathaniel Marmur, and by Manhattan District Legal professional Cyrus Vance Jr., who continues to push the courts in any respect ranges to keep up a prison legal responsibility for drivers who fail to yield the precise of means.

The case — each at trial and on the primary enchantment that Lewis misplaced — hinges on a easy, however very important authorized idea generally known as mens rea, a Latin time period that speaks to a suspect’s way of thinking in the meanwhile of the crime.

In a prison case, Lewis’s legal professionals argue, the burden of proof is on prosecutors to point out that the alleged perpetrator knew that his actions would violate the legislation — and acted in full information of identical. In essence, Lewis’s lawyer is arguing that it might probably solely be a “crime” if the suspect is working below one among 4 “culpable psychological states” which might be strictly outlined within the state’s penal legislation: appearing “deliberately,” “knowingly,” recklessly,” and/or with “prison negligence.”

Bus driver Dave Lewis was led out in handcuffs to begin serving his 30-day sentence. Photo: Gersh Kuntzman
Bus driver Dave Lewis was led out in handcuffs after his conviction in 2018, however his 30-day sentence remains to be on enchantment. Photograph: Gersh Kuntzman

“For hundreds of years, the common-law courts have distinguished between unusual negligence which mustn’t type the idea of a prison cost, and negligence so egregious as to be deserving of prison punishment,” Marmur’s temporary states. “The important thing space of disagreement is whether or not a statute outdoors the penal legislation should make use of no less than a type of psychological states. It should.”

It should not, Vance has argued.

“Defendant contends that ‘unusual accidents don’t quantity to prison negligence,’ and that the defendant’s actions didn’t quantity the extent of ‘ethical blameworthiness that’s the touchstone of prison negligence,’” Vance’s temporary states. “In defendant’s view, prison legal responsibility in New York can’t be premised on a psychological state of civil negligence. … Defendant’s argument is at odds with settled legislation.”

To Vance, and most observers past Lewis’s authorized crew, the state’s penal legislation does outline “culpable psychological states,” but it surely additionally says that individuals will be held criminally liable of a given offense, similar to failure to yield, if the crime itself “features a voluntary act or the omission to carry out an act which he’s bodily able to performing.”

In Lewis’s case, he omitted the efficiency of an act — the act of yielding to bicyclist Dan Hanegby, who was in entrance of the bus driver on W. twenty sixth Avenue within the seconds earlier than the fatal June 12, 2017 crash. In actual fact, Lewis honked his horn at Hanegby, which supplied additional proof at trial that the driving force knew what he was doing — and opted to not drive safely. The aspect of his bus hit Hanegby’s handlebars as he handed, knocking the bike owner to the bottom, the place he was then crushed below the bus’s tires.

Vance’s newest temporary mainly mocks Lewis’s argument. “Defendant appears to take umbrage with the truth that a civil customary appears to be like on the conduct in gentle of what a ‘affordable particular person’ would do, which as defendant sees it, is at odds with the premise that to ensure that an individual to be discovered criminally liable, his conduct should be morally blameworthy.”

It’s unclear why the Courtroom of Appeals took the case — it doesn’t problem press releases. However it might merely be that the excessive courtroom desires to weigh in — as soon as and for all — on the matter of the constitutionality of the Proper of Method Regulation. Last year, the Appellate Division, First Division, issued what its unanimous panel hoped can be the final phrase on the legality of discovering reckless drivers criminally liable. In that ruling, the judges turned the primary state panel to definitively declare 19-190 constitutional, setting apart some prior lower court rulings through which judges had sometimes sided with Lewis’s argument, particularly that reckless intention or motivation wanted to be confirmed earlier than a driver could possibly be convicted of the prison violation, relatively than merely a civil one.

Dan Hanegby
Dan Hanegby

To be clear, Lewis’s trial decide, Choose Heidi Cesare, did not buy that argument, discovering him responsible of merely failing to yield to Hanegby, who was pedaling in entrance of the rushing Coach bus driver. Cesare didn’t rule on the constitutionality of the matter when she handed down the maximum sentence of 30 days — however then once more, Lewis didn’t make that argument on the time, ready till his enchantment. However the Appellate Time period unanimously rejected the argument, organising the Courtroom of Appeals trial, which is anticipated to be heard early subsequent yr.

“In New York Metropolis, drivers and bicyclists recurrently wend their means by slender streets,” Lewis’s excessive courtroom temporary states. “Sadly, accidents generally happen, and the outcomes, as right here, will be tragic. However accidents by themselves don’t indicate prison negligence. And no affordable trier of reality may conclude that, on the morning of June 12, 2017, Dave Lewis’s conduct was so ‘morally blameworthy’ and reprehensible that society would label him a prison.”

Loads of affordable triers of reality would certainly conclude simply that.

“There are quite a few provisions of legislation that create prison penalties for conduct accompanied by a merely negligent mens rea,” mentioned Steve Vaccaro, a private harm lawyer who works with biking shoppers. “The legislature can set up a statute that gives definitions for 4 culpable psychological states, however the statute doesn’t state {that a} defendant should have a type of states to be held prison liable. Lewis is asking the courtroom to declare that you simply should have one of many 4 specified psychological states to be discovered responsible of a prison offense, however there’s no rationale for arguing that. It’s unwarranted and it’s been rejected earlier than.”

In 2019, cops issued greater than 2,700 Proper of Method legislation tickets, although roughly half are dismissed by town’s administrative courtroom, City Limits reported. And solely a tiny portion — just some dozen — are prosecuted as prison instances yearly.

Nonetheless, advocates assume that tossing out the prison a part of the Proper of Method legislation would ship the unsuitable message.

“The legislation hasn’t lived as much as its promise of reining in reckless drivers as a result of the NYPD and the DA have used it too sparingly,” mentioned Marco Conner DiAquoi of Transportation Options. “That’s typical for brand new legal guidelines, but when the Courtroom of Appeals affirms the legislation, that would assist or not it’s used extra broadly, because it was supposed.”

Conner DiAquoi mentioned the prison statute is a bridge between the present civil summonses issued for egregious reckless driving — “They’re simply slaps on the wrist,” he mentioned — and far more severe prices similar to manslaughter, that are very exhausting for a DA to prosecute as a result of in such instances, the burden of proof is on prosecutors to totally show the driving force’s mens res was certainly to deliberately trigger loss of life.

“Sustaining the prison punishment within the right-of-way legislation is essential,” Conner DiAquoi mentioned. “You would argue that the utmost sentence of 30 days is inadequate, but it surely’s nonetheless a prison punishment that sends a message that the sort of reckless driving that value Dan Hanegby his life is not going to be tolerated. That’s the promise of the right-of-way legislation.”

Marmur didn’t return a name looking for remark.

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