DA Struggles to Convict Glauber Hit-and-Run Driver

BROOKLYN, N.Y. -

The man indicted Wednesday on charges stemming from the fatal hit-and-run that killed Mr. and Mrs. Nachman and Raizy Glauber and their baby, z”l, a week ago Motzoei Shabbos should have had his license revoked from a previous arrest, but prosecutors may have a difficult time building a case that would put him behind bars for a substantial length of time.

A Brooklyn grand jury on Wednesday indicted Julio Acevedo for leaving the scene of a fatal accident, the top charge brought by prosecutors, and he was ordered held without bail. He faces 25 years to life in prison.

The Brooklyn District Attorney’s office had requested three charges of criminally negligent homicide. Charles Hynes, the district attorney, said in a statement that the investigation is continuing and Acevedo may be indicted on more charges.

The 44-year-old was arrested in Bethlehem, Pa., a week ago, days after he crashed into a hired car carrying Reb Nachman and Raizy Glauber while speeding down a Williamsburg street at 60 mph. The couple, both 21, who were on their way to a hospital, died that day, and their son, about 3 pounds when he was prematurely delivered, passed away the next day.

There was considerable outrage on Wednesday when court officials said that Acevedo’s license should have been taken during an arraignment Feb. 18 on a charge of driving under the influence of alcohol. Although he was informed that the law mandates Acevedolicense to be confiscated and bail set, Brooklyn Supreme Court Justice Michael Gary released Acevedo without bail and with his license.

“Drunk drivers need to be taken off the road,” NYC Public Advocate Bill de Blasio, who is running for mayor, said Wednesday in a statement, “and the failure to suspend Julio Acevedo’s license for drunk driving before he took the life of a young family in Williamsburg is unconscionable.”

But defense attorney Kathleen Julian said that while he feels terrible about what happened, the incident was an accident.

Acevedo said he was fleeing a gunman who was trying to shoot at him when his borrowed BMW slammed into the Glaubers’ hired car. But police said there were no reports of shots fired in the area at the time of the wreck.

During the arraignment last month, prosecutor Ashley Ford tried to convince Gary to not release Acevedo without a $5,000 bail, citing his history of manslaughter in the 1990s and the 0.13 blood alcohol level registered during the arrest, double the legal limit. Gary refused, saying that if he was wrong then a different judge could correct him during the next court date on April 10.

“I believe the statute requires that the license be suspended,” Ford said, according to a transcript of the arraignment. “I’m not quite sure it’s discretionary.”

“I don’t believe that I must do it,” Gary responded.

Responding on Wednesday to the fury, court spokesman David Bookstaver said that Gary felt remorse over releasing Acevedo.

“Judge Gary acknowledged that the law in fact required him to take the defendant’s license at the time of the arraignment,” Bookstaver said.

While Acevedo was charged with three counts of criminally negligent homicide — and thus far only indicted on the charge of leaving the scene of a fatal accident — prosecutors will have a tough time making them stick.

Hynes announced that the case will be prosecuted by Gayle Dampf, an assistant district attorney for the vehicular crimes bureau. But judging from recent cases, prosecutors have had a notoriously difficult time getting juries to lock up defendants without them having “moral blame.”

Vehicular-crime cases in New York are usually based on the driver’s committing at least two traffic infractions. Speeding on its own is frequently insufficient to establish criminality, and while Acevedo is suspected of having been drunk, that will be nearly impossible to prove since he was not caught until three days later.

But the state’s highest court recently tossed an additional criterion into the equation. The Court of Appeals reversed the convictions of drivers who were found guilty of criminally negligent homicide, ruling that the drivers’ actions did not rise to the level of “moral blameworthiness.”

“The law has always recognized that you may not be doing an action because you’re a bad person,” Joseph McCormack, the chief of vehicular crimes at the Bronx district attorney’s office, told The New York Times. “But there comes a point that you’re doing something so negligently, so thoughtlessly, so dangerous to everyone that criminal culpability attaches.”

But the Court of Appeals ruling now raises the bar on proving guilt by “adding a mental state of wickedness,” McCormack said.

Criminally negligent homicide is the lowest category of felony and calls for a minimum sentence of no jail time and a maximum of four years. But Acevedo’s leaving the scene raises the potential sentence to a seven-year maximum. Also, his criminal history could affect any eventual sentence.

New York appears to have the most defendant-friendly laws when it comes to vehicular crashes in demanding morality as a component. When a defendant in Oregon argued last year that because the state had modeled its laws on New York’s, that state’s highest court should free him since there was no moral blame, the court rejected it, saying that New York’s interpretation was too narrow.

However, Robert Blecker, a professor of criminal law at New York Law School, said that although recent court rulings may have taken certain charges off the table for prosecutors, there was still ample space to show that Acevedo was morally deficient.

“If the old standard applied, he would be in deeper trouble than he is today,” Blecker said. But, he added, “going 60 in a 30 is morally blameworthy.”