Professor Jocelyn Getgen Kestenbaum and Professor Gabor Rona were involved in the creation of a new book launched this week, Cradled by Conflict: Child Involvement with Armed Groups in Contemporary Conflict.
By Roberto Cruz
December 7, 2013 Poughkeepsie Journal - To prove the engineer of the Metro-North Railroad train that derailed Dec. 1 in the Bronx had any criminal culpability for the deaths of four people and the injuries of more than 60 others, law experts and professionals say prosecutors will have to prove he knew he acted recklessly or with criminal negligence.Germantown resident and 10-year train operator William Rockefeller told National Transportation Safety Board investigators he momentarily lost focus and dozed off as the train he drove reached 82 mph in a 30 mph zone, according to his union official. The train jumped the track at a curve around 7:20 a.m.
“The question is whether driving while dozing could support a criminal charge or simply negligence,” said Jonathan Oberman, a clinical professor of law at Benjamin N. Cardozo School of Law at Yeshiva University in New York City.
New York penal law defines four mental states that can be used to prove culpability: intentionally, knowingly, recklessly and criminal negligence. How much sleep Rockefeller got the night before the crash could be crucial to determine whether he is criminally responsible for the derailment, Oberman said, if it can prove he knew he didn’t get enough sleep.
NTSB investigators reportedly await results of Rockefeller’s drug tests. Investigators indicated alcohol tests on all crewmembers were negative. Rockefeller’s union leader said he wasn’t using his cellphone at the time of the crash.
Homicide charges in New York range from criminally negligent homicide to manslaughter to murder. “Clearly, there’s a civil case, but negligence in a criminally negligent homicide case has to be much more than that,” said Steven K. Patterson, a City of Poughkeepsie attorney. “They can charge it, but whether or not they can prove it is another thing.”
New York penal law states a person acts recklessly if he or she is “aware of and consciously disregards” a substantial and unjustifiable risk something will happen as a result of their actions.
“If it’s true that he fell asleep, I don’t see how criminal charges could come from that,” City of Poughkeepsie attorney Bruce Petito said.Criminal negligence can be argued if a person fails to perceive a substantial and unjustifiable risk from their actions that “constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
A person can be charged with first-degree vehicular assault, a felony, in New York if they cause serious physical injury to multiple people while operating a motor vehicle, penal law says. Prosecutors would have to prove intent, recklessness, criminal negligence or intoxication to warrant a nonvehicular assault charge.
To charge Rockefeller with reckless endangerment prosecutors would have to show he recklessly engaged in conduct that created the risk of serious physical injury of death.
“It may have just been an accident,” said Anthony J. Siano, an attorney in White Plains. “You’ve got to be careful about leaping to conclusions.”
Rockefeller’s union leader, Anthony Bottalico, president of the Association of Commuter Rail Employees, told The Journal News that Rockefeller switched from a night shift to a day shift Nov. 17.
Rockefeller is suspended without pay, The Associated Press said. Calls to attorney Jeffrey Chartier, who accompanied Rockefeller to his meeting with NTSB investigators, were not returned.