January/February 1997, p.2

Provocateur: Criminal Negligence

Read the latest news about this issue.

September 3, 1996

Mr. Leroy Frazer Jr.
Chief, Special Prosecutions Bureau
Office of the District Attorney of New York County

Dear Mr. Frazer: I learned today that a local businessman and acquaintance of mine, Mr. Mike Regina, died on Aug. 15 from injuries he sustained when he was struck by a motor vehicle traveling at high speed in reverse on Lafayette Street, across the street from his auto body shop at 62 Prince St. The accident occurred on Friday, Aug. 9. Has the driver been charged with a crime?
Charles Komanoff

Octobers, 1996

Dear Mr. Komanoff:

NYPD records show that the driver was not arrested in connection with this accident. Vehicular accidents generally are first investigated by the Police Department, which makes the initial determination as to whether not violations of the New York State Penal Law are found. If the police do not make an arrest, the matter is forwarded to the District Attorney's Office for possible prosecution. Thank you for taking the time to share your concern on this matter.

Leroy Frazer, Jr.

October 9, 1996

Dear Mr. Komanoff:

I understand that a response to your Sept. 3 letter has been mailed to you. I hope you find it to your satisfaction. I understand your concern that people responsible for vehicular homicides should he prosecuted and you can rest assured that, when warranted, this office will vigorously prosecute those who have violated the law in this manner. Once again, thank you for your concern.

Robert M. Morgenthau
District Attorney

October 17, 1996

Mr. Robert M. Morgenthau
District Attorney, New York County

Dear Mr. Morgenthau:
I have your letter of Oct. 9 as well as an Oct. 3 letter from Assistant DA Leroy Frazer. While I appreciate the courtesy of these replies, I am not satisfied with their content. From what I know of the Aug. 9 crash, I am mystified as to why the driver has not been charged with Criminally Negligent Homicide. I ask you to take personal charge of this case. I also ask how it is that your office prosecutes drivers in only a very small fraction of pedestrian and bicyclist deaths in New York County.

Mr. Regina was struck by a motor vehicle traveling at high speed in reverse on Lafayette Street. Eyewitnesses believe the vehicle was traveling at about 25 miles per hour. The vehicle had to have been traveling at a high rate of speed to break several of Mr. Regina's ribs on contact and to throw him 15-20 feet in the air (causing his head to strike the pavement with such force as to precipitate his death from head injuries).

Does not the behavior of the motorist meet the standard for Criminally Negligent Homicide, which Executive Assistant District Attorney James M. Kindler defined as follows in a letter to me on Jan. 30,1991:

The Penal Law defines "criminal negligence" as failure to perceive a "substantial and unjustifiable risk" under circumstances amounting to a gross deviation from the standard of care that a reasonable person would observe in the situation."
Penal Law 15.05

Does not operating a motor vehicle in reverse at an excess of approximately 10 mph on any well-traveled Manhattan street qualify as a gross deviation from the standard of care that a reasonable person would exercise? If you disagree, please tell me how, and why.

Each year some 60-70 pedestrians and half-a-dozen bicyclists die from collisions with motor vehicles in New York County. No more than a handful of such incidents result in prosecutions. While motorists aren't necessarily culpable in each incident, motorist behavior is at least a contributing cause, if not the primary cause, in many.

Can you square your commitment to justice and public safety with such a lackadaisical posture toward this ongoing carnage on our streets?

Charles Komanoff

November 27, 1996

Dear Mr. Morgenthau:

It is now 41 days since I last wrote you, inquiring why your office has thus far declined to prosecute the motorist who killed Mike Regina by driving into him in reverse at high speed on Aug. 9 of this year. And it is 12 days since your representative told me by phone that I would receive a reply "in a few days." No such reply has arrived as yet.

Charles Komanoff