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Pols, advocates divided over judge ruling city right of way law unconstitutional

By Madina Toure

Elected officials and advocates have expressed mixed reactions to a criminal court judge’s ruling that the city’s right of way law is unconstitutional on the grounds that it imposes criminal penalties without the need to prove wrongdoing.

The right of way law, unanimously passed by the City Council in 2014 as part of a series of Vision Zero bills, mandates that if a driver hits someone who has the right of way in a crosswalk, the NYPD can bring a misdemeanor charge against the driver for failure to yield.

In the June 24 decision, Queen Criminal Court Judge Gia Morris dismissed a misdemeanor charge of failure to yield against Isaac Sanson, a school bus driver who struck and killed 85-year-old Jeanine Deutsch in a Forest Hills crosswalk, where she was crossing legally in December 2014.

Morris concluded the law violates defendants’ rights to due process, placing a high burden of proof on drivers to prove that they were not driving negligently.

A spokesman for District Attorney Richard Brown said his office is currently deciding whether or not to appeal the decision.

“We are studying the decision and weighing our appellate options,” the spokesman said.

City Hall said the decision is non-binding and does not affect the city, the NYPD or the DA’s writ large because it is a trial court ruling resolving an individual criminal prosecution in which it was not a named party and that broader injunctive relief was not available, sought or granted.

“This is an important piece of Vision Zero’s comprehensive approach to reducing death and serious injury on our streets,” Austin Finan, a City Hall spokesman, said. “We disagree with this court’s non-binding decision and will continue to investigate, enforce and charge this law.”

Paul Steely White, executive director of Transportation Alternatives, expressed disappointment over the ruling.

“The law has been upheld as constitutional in three recent decisions,” White said. “Judge Morris’ ruling is legally flawed, and Queens District Attorney Richard Brown must appeal.”

But Councilman Rory Lancman (D-Hillcrest), who voted for the law but introduced an amendment last year seeking more specifics on what would constitute failure to yield and failure to exercise due care, has mixed feelings about the decision.

“I’m not sure that this opinion is going to stand, but I do think that if the de Blasio administration had accepted my effort to make it clear what kind of misconduct would constitute due care, that the judge would have been more comfortable accepting that the statute criminalized something other than just ordinary negligent conduct,” Lancman said.

He also said physical streetscape changes that prevent collisions or make them much less likely than in the past and the education campaign the city has undertaken to change the culture of driving, walking and bicycling are the most significant parts of Vision Zero.

“I think lagging way behind those two are the increased penalties and sanctions for individual acts of misconduct, whether that be the right of way law or speed cameras,” he said. “I think the number of people charged with a crime under the right of way law is relatively small.”

Adam White, a partner of Steve Vaccaro, the lawyer representing the family of Allison Liao, a 3-year-old girl who was killed by an SUV while crossing Main Street and Cherry Avenue with her grandmother in October 2013, said there is a strong public policy not allowing low-level judges to invalidate laws based on a constitutional challenge. But he acknowledged that they may prefer a case with the most compelling facts and record.

Still, he said this case could be an exception given that it is the law itself that is being challenged and that Deutsch being killed constitutes a compelling fact and record.

“I think the judge made a mistake,” White said. “I think the judge didn’t view the statute and the authority for the statute and misinterpreted it and misapplied the law in crossing out the statute.”

Reach reporter Madina Toure by e-mail at mtoure@cnglocal.com or by phone at (718) 260–4566.

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