March/April 1995, p.6-8

Throwing the Book at Killer Drivers
By Brendan Mernin

Mordechai Levy is the kind of driver who gives pedestrians nightmares. The 23 year-old locksmith runs red lights, speeds, and drives without a license. In fact, Levy's license to operate a motor vehicle had been suspended 46 times by April 1993, When is car struck and killed 8 year-old Jonathan Medina in Brooklyn. 104 Brooklyn pedestrians were killed by motor vehicles in 1993, but Jonathan Medina's death was different. Surely when a boy so young is killed by a driver who so obviously flouts the law, the punishment should be swift and harsh.

Yet a grand jury charged Levy only with leaving the scene of an accident an driving with a suspended license, and in October 1994 Brooklyn Criminal Court judge Donald Grajales sentenced him to only four months in jail, five years of probation and a one year license revocation.

In 1993 in New York City, where a man with a suspended driver's license can kill a boy and be on the street in the same car a year later, 284 pedestrians were killed by motor vehicles. The city was the site of traffic fatalities at twice the national rate, and pedestrians made up most of the dead. In Brooklyn, where the roadway death rate was three times the national average, walkers were the victims 65% of the time, while Manhattan pedestrians accounted for 61% of the traffic deaths there.

Despite these grim statistics, death on the streets of New York has not caused enough public outrage that police and lawmakers might take notice. Newsday reporter Emily Sachar discovered that fewer than half of those New York City drivers who kill while driving drunk to jail, and those who do serve time are free within an average of 13 months. The primary reason for such flimsy deterrence is the "rule of two," an esoteric legal hurdle based in common law, or the unwritten set of precedent in judges' decisions. The rule of two requires that in order to convict someone of vehicular homicide, a prosecutor must show that the driver was not only drunk, or only speeding, or only running a red light, but also breaking another law at the same time.

Brooklyn District Attorney Joseph Petrosino said in a recent interview, "Every year since 1982, we have proposed legislation to make drunken driving criminally negligent in itself. It never gets out of committee." When asked why such sorely needed laws fare so poorly in Albany, Petrosino refused to speculate.

New York State Vehicle and Traffic Law 511 was supposed to catch reckless drivers before they kill. Sponsored by State Assemblyman and Codes Committee Chairman Joseph R Lentol (D-Brooklyn), the law made it a Class E felony to drive with 10 or more license suspensions, a misdemeanor to drive with one or more suspensions, and provided for seizure of scofflaws' cars. The offense became known as Aggravated Unlicensed Operation. Law 511 was passed in response to a spate of accidents involving scofflaw drivers in 1993, and to studies showing that in 1992, nearly 400,000, or 13% of New York City's licensed drivers had their privileges suspended or revoked.

Last spring, however, when three members of the Vaccarrello family of Bensonhurst, Brooklyn were killed by a speeding car driven by Abraham Meyers, a 55-year-old janitor from Ozone Park, Queens, it became clear that Law 511 was not doing the job.

Meyers was not only drunk when he killed a mother and her two daughters; he had violated the law simply by taking the wheel. Over 27 years, Meyers had racked up 26 license suspensions, and had operated vehicles without a license since 1967. Surprisingly, eventually Meyers pleaded guilty to three counts of murder and to driving while intoxicated.

In response to the Vaccarrello incident the New York State Assembly Codes Committee met in Albany on May 10 to discuss Law 511. At the hearing, Lentol said, "the law I sponsored was intended to save lives. It didn't. The alleged perpetrator was exactly the type of unsafe driver that was targeted in the Scofflaw Act of 1993. The City of New York has thousands of these accidents awaiting a victim." Lentol gathered in one room State Department of Motor Vehicles Commissioner Patricia Adducci, New York Police Department Chief of Patrols Captain Jay 1. Kopstein, Manhattan District Attorney Thomas Toman, and representatives from the Brooklyn and Queens DA offices.

All those present knew that the law had not lived up to the expectations of its sponsors. According to Newsday's Sachar, during the first six months after Law 511 went into effect, only 17 of the 284 felony cases completed in New York City's four largest boroughs resulted in felony convictions. Of those convicted, only one received a jail sentence of more than 90 days. Clearly, more needed to be done.

Lentol wanted to know why his new law wasn't working as planned. According to the law enforcement officials, the number one problem is the use of pseudonyms. The DA's and the police made it clear that they could not carry out their duties effectively without reliable arrest and conviction records of suspects. Said Lois Raff of the Queens DA office, The legislation is very sound and effective. When we attempted to implement it, however, we had difficulties in the unavailability of accurate information about the driver's identity and his or her suspension or revocation history.

Unfortunately, it remains all too easy for an unlicensed operator to evade the law by giving false information or using multiple identities."

A demonstration of Raff's point took place on November 13th, when NYPD patrolmen in the Bronx arrested the city's champion scofflaw, a man with 633 outstanding license suspensions. According to the New York Times, the suspect Bronx junk dealer Leroy linen, A.K.A. Bobby Leonard, Harvey linen, Leroy Linden, and - who knows - perhaps even Hal Linden, was arrested only after the officers decided to take him into the station for a closer look at his record on the computer.

Manhattan DA Toman said when interviewed in October, "If you give a fake name, then it looks to the officer like a misdemeanor when really it's a felony." The officer might think you have only two suspensions, when you really have hundreds. One wonders how the man kept track of the names. Maybe he made up a new one each morning as he turned the key.

As the Codes Committee listened and asked questions, prosecutors and police made a list of suggestions for a more effective 511. First of all, participants in the hearing urged the DMV to update its system for storing and retrieving registration records. Prosecutors need accurate address records from the DMV, as well as copies of the suspension orders sent to the drivers. Only with accurate addresses and suspension orders can a case stand up in court. Unfortunately, the DMV is not always able to provide such records because they threw them out. DMV Executive Deputy Commissioner Robert E. Waters testified that "because there was really no demand, the Department many years ago [prior to 1988] did not routinely save copies" of the suspension orders. When actual copies of the suspension orders are unavailable, the DMV offers an abstract of the suspension record.

Yet some prosecutors contend that an abstract does not prove that the alleged scofflaw had been notified of any license suspensions, and thereby hampers prosecution. Brooklyn Deputy DA Robert N. Kaye said, "We cannot prosecute someone based upon this abstract" The DMV said that it is in the process of modernizing its computer system. Said Waters, "We have an extremely old computer system with an awful lot of demands on it. We have an aggressive project underway to tie our drivers and registration and all other license records together."

Authorities also want to make a 511 misdemeanor violation a finger-printable offense. Said Captain Kopstein, "the only way to bring those records together--to prove that its the same individual--is with the fingerprint identification." Right now, an arresting officer can take prints, but only what are called inquiry prints, 

which are sent to Albany to start a search for outstanding felony warrants and a case record of finger-printable offenses. If the driver has held up a store, then this search is helpful. But in the case of scofflaw drivers who use many pseudonyms, a computer check will show no 511 felonies because the system does not add the misdemeanors together for the officer.

Manhattan DA Toman said recently, "Fingerprinting is our number one legislative priority. Misdemeanor DWI [Driving While Intoxicated] is a fingerprint offense. 511 violations are the same level of offense, and they're already taking inquiry fingerprints, so it won't cost more. It's the difference of filling out a different box or a different color card." At the May hearing, some Assembly Members raised concerns that fingerprinting of misdemeanor 511 suspects might be a step toward universal fingerprinting of driver's license or motor vehicle registration applicants.

Although every driver is already being fingerprinted in California, such a prospect raises for many the specter of wartime Europe and identity cards.

Some prosecutors would also like to amend Law 511 to give police and sheriffs more authority to seize vehicles driven by scofflaws. Presently, the law does provide for confiscation of vehicles driven and owned by those with more than three suspensions. A glaring loophole in the law, however, allows scofflaws to borrow someone else's car and thereby avoid seizure of a vehicle.

Brooklyn DA Petrosino wants that loophole closed. He sees a problem with the enforcement of the law as it applies to car services, towtrucks, and van services. He says, "We've proposed legislation to restrict car service owners who let these guys drive their cars. And tow trucks," he says, "are the worst" If you lend a car to a scofflaw, he says, "then you should forfeit that car.

That would stop a lot of it. Who's going to risk a $40,000 tow truck? Adds Toman, "We'd like the presumption that someone who lets an unlicensed driver use their car knows that the driver is unlicensed." He adds, "We'd like to use this in car services. We want the license plate. Then we can put it in the computer, and if a livery car is driven by four or five unlicensed drivers, then we car go after the owner."

Others want to start screening applicants for vehicle registrations' order to weed out those who are in violation of Law 511. Yet any request for new legislation depends on two limiting factors: the ability of the DMV to collect and provide the necessary records, and the will of the police to enforce the laws. Whether the DMV can clean its house re mains to be seen, and as for the police, it may be true that only they, rather than prosecutors, legislators or the DMV, can overcome the obstacles that have so far kept Law 511 from achieving its goals. Says Lentol, the Laws prime sponsor, "Before A consider amendments, we want police and DA to enforce the Law."

Meanwhile, the Law reflects the changing perception of reckless drivers. "Six years ago," says DA Petrosino of negligent drivers who kill pedestrians, "the perception of the judges was that it was just an accident. But a lot more people are run over with 3000 pounds of steel than are shot with guns."

A Story That Won't Go Away

An unpleasant part of our work is reminding New Yorkers that the word carnage begins with the word car. A terrible reminder of this took place last Oct 21. Dr. Jie Zhang, a pregnant physician returning to work at New York Hospital after her lunch break, was struck by a Ford van on York Ave.

Dr. Zhang, 29 years old, a pediatrics AIDS researcher and recent immigrant from China, died two days later. Her full-term baby, Samuel, was delivered by Caesarean section at the maternity ward where she worked; he is being cared for by his father, Dr. David Chen, and his mother's parents.

The handling of the case by the police and the Manhattan District Attorney is sadly typical. The driver's license had recently been suspended for failure to report an accident Moreover, based on press accounts, his van plowed into a wooden construction barrier before striking Dr. Zhang, evidence of reckless driving. The incident appears to satisfy the "rule of two"--the NYC prosecutors' standard that a driver must violate two traffic laws to be charged with felony assault

Nevertheless, the police charged him only for driving with a suspended license and unlicensed operation of a motor vehicle--misdemeanors punishable by at most a year in prison. The driver failed to meet his desk appearance, and a bench warrant has been issued for his arrest At press time, the driver was still at large; if and when he is arrested, his maximum sentence is still one year.

Donations to the Jie Zhang Fund or expressions of sympathy can be sent to Dr. David Chen, Dept of Pediatrics, New York Hospital, 525 East 68th Street, Room N-740, NYC 10021.

Read the latest news on this subject.