Explainer: Why the D.A. Didn't Charge the NYC Taxi Driver Who Maimed a Tourist

Friday, November 15, 2013 - 12:51 PM

(Kate Hinds)

The Manhattan District Attorney's Office sparked outrage this week when it announced it wouldn't file criminal charges against a taxi driver in a crash that severed a British tourist's leg.

By way of background: Sian Green of Leicester, England was struck when a taxi jumped a curb at Rockefeller Center on Aug. 20. Driver Mohammed Himon said he lost control after a cyclist slammed into the hood of his cab. Green lost part of her leg, and the NYPD mounted an investigation into the crash.

Soon after, the New York Post quoted Himon as saying he sped up to avoid a cyclist ("He was in my way and I got upset"), whom he went on to blame for the crash. But in the eyes of the prosecutor, Himon's actions failed to rise to the level of criminal behavior.

No criminal charges?! Why not?

The statement from the D.A.'s office would seem to indicate either a lack of evidence or a lack of confidence that the evidence would persuade a jury. Joan Vollero, a spokeswoman for Manhattan District Attorney Cy Vance, said in an email:

"Following a thorough, two-month-long investigation by the District Attorney’s Office and the NYPD, we have concluded that criminal charges cannot be filed in this case. In making this determination, prosecutors who are specially trained in vehicular crimes reviewed all available evidence and took into consideration relevant sections of the State’s Vehicle and Traffic Laws. They conducted interviews with multiple eyewitnesses, the taxi driver, the bicyclist, and injured parties, reviewed all available video surveillance, listened to numerous 911 calls, and retrieved the taxi’s ‘black box’ data.”

The District Attorney's office wouldn't respond to direct questions about the investigation — Was Himon speeding? What did witnesses say? — but Daniel Marchese, Sian Green's attorney, said in a statement that "the Assistant District Attorney...indicated that failure to charge was due to lack of evidence regarding the taxi cab drivers intent during the investigation phase."

What does that mean?

Joseph McCormack, a prosecutor in the Bronx D.A.'s office who is in charge of vehicular crimes, is not involved with the Himon case. But he pointed out the standards for criminal negligence are high. "There may be something that we may suspect, think or guess at," he said, "but that’s not what you need in court. You need evidence in court."

Also worth noting: last year, the NYPD told TN's Alex Goldmark that motorists need to break two traffic laws to rise to the level of criminality.

But Himon had a spotty driving record!

Doesn't matter. As far as determining whether a crime occurred, investigators typically look at what happened that day. "The fact that a person drove quickly six months ago doesn't necessarily mean that he drove quickly that day," said McCormack. "You would still need evidence relating to what happened that day — and it has to be evidence you can use."

Wasn't he suspended for a pattern of moving violations, though?

He was — but it was unrelated to the crash. Himon's license was suspended for 30 days due to points for previous traffic violations — but not until after the crash. (Due to a software glitch, the TLC had failed to flag up to 4,500 drivers who should have faced penalties. The TLC has said that problem has been corrected.)

Explain it to me again: isn't it a crime to drive into someone?

If they acted with criminal negligence or recklessness, yes -- but proving that requires "a pretty high level of egregious conduct," said McCormack. "What we look at in the criminal arena is when the mistake is greater than ordinary negligence and rises to criminal negligence. And what a defendant can be charged with depends on case law."

And case law is a product of society. The idea that traffic crashes are accidents, as opposed to preventable incidents, has been a pervasive one. This year, though, NYPD Commissioner Ray Kelly said the department was changing the name of the unit that investigates traffic crashes. What was once known as the Accident Investigation Squad is now the Collision Investigation Squad, because, as Kelly said, "in the past the term 'accident' has given the inaccurate impression or connotation that there is no fault or liability."

An official with the Manhattan D.A. said the office is always looking for ways to encourage changes in the law to make it easier to prosecute vehicular crimes.

Will Himon face any consequences?

Not criminal ones. Himon wasn't arrested by the NYPD at the scene of the crime, and his (unrelated) suspension is over. However, Sian Green's attorney said she is pursuing a civil suit against Mr. Himon.

What's the difference?

The burden of proof is different, as is the punishment. In a criminal case, a prosecutor brings action against the defendant, and the penalty can involve prison. In a civil case, the wronged party brings the action, and the penalty is typically monetary. In very watered-down terms, a civil lawsuit involves ordinary negligence. In criminal cases, it's criminal negligence  -- which has a higher degree of carelessness and risk-producing behavior than the civil standard.

And that is deeply unsatisfying to some. "There are 58 people who lose a limb or suffer another life-altering injury in this city every week due to traffic crashes," says Juan Martinez, a staff attorney with Transportation Alternatives. "And it’s just baffling that drivers like Himon escape public consequences for their actions." He added that a civil lawsuit is "a terrible way to get justice — it’s expensive, it’s time consuming, and it’s not justice at the end of the day. It’s some form of justice, but it’s not what we as a society expect to happen when somebody’s been harmed so egregiously."

"We need prosecutors to bring tough cases to fix the case law," he said. "And we need legislators to change the law."

Is Himon still driving a taxi?

As of this writing, he's not — but he could. "If there were no charges brought, there’s nothing upon which to predicate any action," said Allan Fromberg, a spokesman for the New York City Taxi and Limousine Commission, who said that Himon hasn't driven a cab since Oct. 31. 

(Note: this story was updated 11/18/13)





Comments [7]


This cabbie should have been fried!

I'm sick and tired of theses reckless drivers, yes most of them!

I don't care how bad you want that fare. People are getting injured and killed, cabbies are responsible for too many collisions and degrade the safety of our streets.

As a driver you are responsible for a large moving object that can kill or hurt, failure to act responsibly should be penalized! In this case, this young woman was seriously injured along with a bicyclist and potentially many others. There was also property damage.

These cabbies only encourage a reckless driving environment citywide.

This is major public health problem in this city! We need lots of speed/red light camera enforcement, police that actually focused on what is hurting and killing New Yorkers, a shake up inside the TLC, cabs with speed limiters and redesigned streets big time.

Nov. 18 2013 05:19 PM
suzinne from bronx zoo

And this is why speeding is rampant in this city. Speeding and running red lights are not punished. See it all the time. I cross the street at my own peril. People make turns and go through crosswalks at high speeds. So what if I hit and maim or possibly kill someone? Nothing's going to happen. NYPD is more concerned with other things. What a joke and what an insult to this British tourist. The United States is basically telling her that what was done to her is OK. Absolutely DISGUSTED.

Nov. 18 2013 03:19 PM
Brandon from Brooklyn

From Steve Vaccaro: "To prosecute the driver for recklessness or criminal negligence, it is not required for the driver to have intended harm. All that is required is that the driver be proven beyond a reasonable doubt to have behaved, with respect to the risk of striking or injuring others, in a manner that constituted a gross deviation from what was reasonable."

Nov. 18 2013 12:08 PM
The Pale Scot

If I pull out a gun and attempt to shoot someone but hit someone else instead, it's still at least manslaughter. An someone who has unknowingly driven their guilty friend from a murder scene gets charged also, it happens all the time.

I don't see any difference in this case.

Nov. 16 2013 02:46 PM
Nathan from Downtown Brooklyn

"And what a defendant can be charged with depends on case law."

That's just not true, that is one thing that literally depends on the DA's office, their decisions. They are creative when they choose to be. The system produces and updates "case law" all the time: it is a function of what crimes the DA decides to charge, among other things.

Here we have straightforward (boring?) criminal negligence resulting in severe injury, and the DA can't be bothered to try the case. It's what we pay them to do, to try to uphold the law even if a jury may thwart them in the end. The idea that we don't have the resources in New York to prosecute a few hundred vehicular negligence crimes a year, when we prosecute nonviolent drug crimes by the tens of thousands, is an absurdity.

Nov. 16 2013 12:42 PM

"lost control after a cyclist slammed into the hood of his cab."
This is poorly worded. It makes it sound like the bike messenger ran into the taxi which caused the driver to lose control of his vehicle.

Instead, the loss of control was of the driver's emotions. He was angry that the bike messenger wouldn't let him pass and tried to bully through anyway. He became more angry when the bike messenger used his hand to hit the taxi and drove at him, then losing complete control of both the car and his emotions, driving on the sidewalk to maim Ms Green. A very different scenario.

Nov. 16 2013 11:18 AM
Reader from NYC

This article hints at but fails to go into specific detail about the origins of the high bar for prosecution of traffic crashes: a New York appeals court's ruling that set the standard of criminal intent for prosecution of drivers in crashes. This is a separate and higher standard for other forms of criminal negligence, like say, accidentally discharging a firearm. Drivers are essentially a protected class under the law in NY state. And of course, barring evidence like a threatening note or something similar, it is almost impossible to prove intent. You can be driving 100mph down a Manahattan side street, kill a child and argue "well that wasnt my intent." The way the high court in the state has ruled, that should be enough to get you out of charges.

Nov. 16 2013 10:11 AM

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