On October 3, 2010, Brian Topping, a Manhattan borough resident, was almost struck while riding his bicycle by a car driven by a Michael Shind as he carelessly exited a street parking spot on Riverside drive at approximately 115th St.
Shortly thereafter, the motorist’s late model blue Honda Civic (license plate EJH 5090)was stopped at the light at 113th St. and the cyclist attempted to inform the driver that he could have killed someone with his driving, only hoping that he would be more careful in the future. Where anything approximating an acknowledgement of the situation would have sufficed, Mr. Shind instead chose to make an obscene hand gesture and drove off, only to be stopped at the next light a block away. After being reapproached and exchanging more words and hand gestures, Mr. Shind, in a fit of road rage, started chasing the cyclist in his car, ignoring traffic signals (as if the cyclist could somehow evade an automobile) while attempting to run him down.
By 110th Street, to the horror of witnesses who have since made written statements corroborating these facts, the driver of the car came inches from crushing the cyclist between his car and other cars parked streetside, repeatedly swerving and jockeying for position to inflict maximum damage. At the end, Mr. Shind knocked the cyclist off his bicycle as his bumper smacked the front wheel and caused a loss of control. If not for hard braking on the part of the cyclist, he would have been wedged between the parked cars and the Honda, potentially run over by the rear tires while falling to the ground, and most certainly maimed or even killed in the event.
Mr. Shind, for his part, slowed and stopped about 25 feet from the cyclist and stared in is rear view mirror. After realizing that horrified passerby were making note of the event and the cyclist was reading off his license plate, he accelerated rapidly and left the scene. Emergency responders arrived shortly thereafter and checked out the cyclist, who had bruises and contusions, and police officers took reports from witnesses and from the cyclist. The cyclist refused treatment at the hospital as he is not insured with a health plan. The vehicle description was noted to the police by all involved and the cyclist was informed that a detective would be contacting him in the following days.
After making a statement to detectives in the following week, the victim was informed that he would be required to pick the assailant from a photo lineup as a precursor to an arrest being made. When the photo lineup was presented at the cyclist's office in SoHo on October 9, a correct identification of the assailant was made from the photo lineup. The detective stated that they would arrest the assailant and there would be an actual lineup at the precinct headquarters.
Weeks passed after this date, apparently due to "homicide week" events and a family emergency that left the detective unreachable by phone or email for another week.
On October 22, almost three weeks after the assault, the victim was called as he was sitting down to dinner and told that the assailant had been arrested and the victim was going to be picked up in an hour. After waiting outside in the cold to be picked up for almost an hour after the first hour had elapsed, the victim was finally brought to the precinct, shivering and unprepared for what lay ahead.
After another 40 minutes of waiting, the assailant was finally presented in a lineup in a poorly lit room with all six potential perpetrators wearing oversized baseball caps, stark white in color, their faces further darkened by the shadows from the cap brows. Four weeks after the initial event, it was hard enough to identify the assailant; now they were costumed to the point that they were almost indistinguishable between each other.
Given that the cyclist had only seconds to remember the face of the assailant before being put through a traumatic and violent encounter, he was fortunate to be able to identify the assailant in the photo lineup. Three weeks later, disguised under the cloak of hats and in a poorly lit room on a Friday night, it was next to an impossible task. In fact, it was an impossible task.
Regardless of failing to identify the assailant a second time, the detective felt that the case was strong due to the additional evidence that was collected from witnesses and the proper identification of the assailant based on a license plate number.
Almost four week went by before the Assistant DA's office informed the detective that they were "DP'ing" the case -- declining to prosecute. The detective stated very clearly that he had rarely seen a case that had so much evidence be declined, the last time over three years prior. He said that there was a recent change in management at the ADA office, and that this likely led to the choice. He repeatedly added that he was shocked by the situation, that with so much evidence, that the ADA was not even willing to file the motion.
To say that this is a travesty of justice is an understatement. When the pictures initially took a week to recover from the DMV, I asked the detective if they would take a week if someone were killed. He said "no, there is a special priority for those kinds of cases". From the outset, this case clearly did not have have the feel of a high priority case. While I certainly have no wish to indict the good people at the department, who by all accounts are overworked and underpaid, time is of the essence with these kinds of identifications, and even though proper identification was made (again, license plate leading to a correct identification of unlabeled pictures in a photo lineup), it was three more weeks until the actual lineup was made. To have that lineup then have obscured faces, then have the ADA refuse to prosecute this as a criminal case?
Far worse, for the ADA to act as judge and jury in this case stands completely against the precedent of a society of laws must hold. If one group can rubber-stamp a case closed in the face of evidence that is on file, what does this mean for the future of law? It is not the role of a single group or member of society to judge a case before it even sees the light of day! This precedent cannot be allowed to stand!
There is never an excuse for brandishing a 2,000 pound vehicle in rage, much less against an unprotected pedestrian or cyclist, and there is no jurisdiction that would ever state otherwise. Mayor Bloomberg has spent years of effort and millions of dollars in taxpayer money to restrict automobile traffic and make the city more accessible to cyclists, but without consistent enforcement of road rage laws, nobody, especially cyclists, will ever be able to know they are completely safe to use these facilities. This must be reversed and this case must be allowed to proceed toward trial.
Please disseminate this story as far and wide as possible. While it is criminal that anyone is allowed to get away with what fortunately did not end as a homicide, it is indeed negligent when the judicial system refuses to prosecute a case with such strong evidence.
