Bertilde Gabriel, the driver. Photo, NY Post.
November 10, 2006--The driver in a hit and run accident in Brooklyn that killed a 5-year-old boy and critically injured his mother Wednesday was charged with criminal negligence yesterday.
The driver, Bertilde Gabriel, 52, killed Christopher Frombrum, 5 when she tried to escape another accident that occurred a few seconds previously. She swerved, drove onto the sidewalk, and mowed through the family of four killing Frombrum on the scene and injuring his mother Rachel Dorce, and her two other children, 6-year-old Aldeline and 8-year-old Joshua. The mother is in a coma, according to the NY Post.
Gabriel was charged in Brooklyn Criminal Court yesterday with first-degree assault, a felony, criminally negligent homicide and leaving the scene of an accident.
A recent post to ebikes asked if the fact that she is a woman may have been the reason for a tougher charge.
First of all, Brooklyn has the toughest response of the five boroughs to reckless driving. One of the reasons, they have traditionally had the most traffic fatalities, and their District Attorney, Charles Hynes is better than most on this particular issue. Their office carries out more extensive investigations of accidents, and they are more aggressive in pursuing criminal penalties, according to previous Assistant DA Maureen McCormick.
Secondly, Gabriel drove away from the first accident, crime one, and onto the the sidewalk, crime two. There, she hit four people, and killed one, then tried to drive away again, but was stopped by other drivers 2 blocks away! That's crime three.
News reports said she was tested for alcohol, so if she was completely in control of her senses, she drove away from both accidents with full recognition of what she had done. In other words, she was neither repentant nor upset that she just ran into four people. The impact of the accident was so great that Frombrum was knocked about 20 feet according to reports, and his mother was knocked out of her shoes, which lay on the sidewalk after the accident.
The level of criminality is established based on the amount of care you take when compared to another reasonable person in a similar situation. The law holds that the greater the disregard you show in an accident, the greater the penalties will be.
In fact, it looks like she is getting away with the lesser of these--"criminal negligence" versus "criminal intent".
Here are the levels defined by NYS penal code, 125.10:
Most criminal "vehicular manslaughter" charges require that a person perceived a risk and disregarded it intentionally in killing someone. That would be a very drunk person who blatantly disregards traffic law. Of these there can be manslaughter in the first degree (worst) or in the second degree (not as bad). These are determined subjectively by the judge but the conditions are often based on objective previous rulings (precedents).
In determining "criminal negligence", a driver needs to be found negligent, a class E felony, where they "failed to perceive a substantial and unjustifiable risk of death, constituting a gross deviation from standard that a reasonable person would observe in this situation."
Criminal recklessness, a lesser offense, is when a driver is found to be reckless.
You might be surprised to learn that the penalties for "criminal negligence" if found guilty, runs anywhere from probation to six years in jail, but most of the time, the judge softens the sentence.
Much of this is complicated by the informal rule of thumb called "rule of two" in which a judge looks to see that two laws were committed in a very gross way, such as running a red light, AND going 75 mph in a 30 mph zone.
Maureen McCormick who was the assistant DA for Brooklyn for many years said some judges don't even punish drivers who were caught going 100 mph and killed someone as a result: "They say in effect, 'boys will be boys'" she said. In other words, they look for two gross deviations from the law to establish any criminal culpablity. Then the standard of deviation from normal care is used in assessing the criminal penalty.
These topics are covered in detail in my article Deadly Streets, which covers the application of criminal law in NYC, (see sidebar) or you can go to www.nycyclenews.com, and go to the About Us page, and click on the title "Deadly Streets".
If anything, Gabriel did not show any care for her victims when she left the scene of the accident. Even if there was no criminal prosecution, that would show a complete disregard for the lives of her fellow human beings.