New York Criminal Attorney Blog
Tilem & Campbell senior partner Peter H. Tilem was quoted in today’s New York Times in the article about the Federal Investigation into the tragic bus crash that killed 15 people over the weekend. There has been much speculation about whether or not the driver will be charged with a crime in connection to the deadly accident and the Times sought advice from two former prosecutors who have been involved in these types of cases.
The issue will boil down to whether the bus driver’s conduct leading up to the fatal crash rose to the level of criminal negligence or recklessness according to Mr. Tilem who reportedly told the Times that just falling asleep at the wheel without more usually wouldn’t rise to the level of either criminal negligence or recklessness. Mr. Tilem also told the times that it is usually a combination of factors such as weaving, speeding and driving after a long period without rest that could combine to make it possible for prosecutors to charge the driver.
To rise to the level of Recklessness, a person must be aware of and consciously disregard an unjustifiable and substantial risk. To rise to the level of Criminal Negligence a person must fail to perceive an unjustifiable and substantial risk. In both cases the risk must be so grave that the failure to perceive it or the conscious disregard of the risk constitutes a gross deviation from the standard of care that a reasonably prudent person would observe in a given circumstance.
The difference between the two, while subtle, can result in a huge difference in criminal charges. For example recklessly causing death can result in a conviction for Manslaughter in the Second Degree which is punishable by up to 15 years in prison and causing death by criminal negligence can result in a conviction for Criminally Negligent Homicide which is punishable by up to 4 years in prison.
Peter H. Tilem is currently a partner in the law firm of Tilem & Campbell and is a former homicide prosecutor in the New York County District Attorney’s Office. You may contact him through the firm’s website.