The People of the State of New York v. Mohammed A., Defendant. (2024)

The indictment charges that, on the evening of December 28, 2019, at approximately 11:10 PM, defendant Mohammed A.,¹ then 39-years-old, was driving on Ocean Parkway in Brooklyn when he struck a pedestrian in a crosswalk. He slowed and pulled over but did not exit his vehicle before he drove off. The pedestrian, Jeanne Alcindor, an 85-year-old retired nurse, was thrown from the impact and sustained multiple injuries, including head trauma and broken limbs. An eyewitness called 911 immediately. Ms. Alcindor was taken to Lutheran Hospital in critical condition. She ultimately died as a result of her injuries.

The police managed to track defendant's car via traffic camera footage as well as the dashboard camera footage of the eyewitness, and located the vehicle associated with the incident on January 1, 2020. After the police contacted him, defendant surrendered. He admitted having been involved in a collision but denied remembering any details.

Defendant was indicted on August 19, 2021, and charged with two violations of Vehicle and Traffic Law ("VTL") § 600(2)(a), which penalizes leaving the scene of an accident involving personal injury. This VTL section may be punished as a class D or E felony, or a class A or B misdemeanor. The indictment charges the class D and E felonies, based on the death and serious physical injury of Ms. Alcindor.

The indictment does not charge defendant with any other violation of the VTL or of the Penal Law ("PL") relating to his driving.

The defendant filed a pre-pleading memorandum prepared by Carmeta Albarus, LCSW-R, which was so persuasive that the court accepted it as a Clayton motion. The People responded in writing and opposed the court's granting defendant any relief. The court offered to allow defendant to plead to the top charge, the D felony of leaving the scene of an accident, in exchange for a promise that, if he successfully completed a year of interim probation supervision pursuant to Criminal Procedure Law ("CPL") § 390.30(6), his felony plea would be vacated and the conviction reduced to that of the lesser included A misdemeanor of leaving the scene of an accident, also in violation of VTL § 600(2)(a), and he would be sentenced to an additional term of probation (see, e.g., People v Richards, 156 Misc 2d 424 [Sup Ct Kings Co 1993] [Harkavy, J.]). Defendant accepted and upheld his end of the bargain. On July 2, 2024, the court issued an order vacating his felony conviction and sentenced him on the misdemeanor. This decision explains why.

A court may dismiss an indictment or any count thereof in furtherance of justice pursuant to CPL § 210.40 (1), commonly known as the Clayton provision (see People v Wingard, 33 NY2d 192 [1973]; People v Samatha R., 33 Misc 3d 1235(A) [Crim Ct Kings County 2011] [Hecht, J.], aff'd, 45 Misc 3d 130(A) [App Term 2nd, 11th and 13th Jud Dists 2014]). To do so, a court must consider the enumerated statutory factors.

The first such factor is the seriousness and circumstances of the offense. The indictment charges that defendant left the scene of an accident which resulted in an individual's death. This is clearly a serious crime. Not only did Ms. Alcindor die, but she sustained grievous injuries prior to her death.

The circumstances of the crime are, however, somewhat less egregious although also somewhat less known. Defendant apparently was aware that he had been involved in an accident and did not stop to render assistance. But an eyewitness did summon immediate aid. Defendant's flight, therefore, does not seem to have compounded the harm to Ms. Alcindor that the accident caused.

Nor is defendant accused of any wrongdoing in connection with his driving, such as speeding or failing to observe traffic regulations, which surely would have been recorded on the video footage the police obtained, had it in fact occurred.

On the other hand, because he did not remain at the scene, there is no evidence to show whether or not defendant may have been impaired by alcohol or drugs at the time of the incident. (That of course is the situation in most cases charging this offense.)

This factor is, therefore, fairly neutral.

The second factor is the extent of harm caused by the offense. Again, the death of Ms. Alcindor, while attributable to defendant's driving, is not the harm caused by the offense of leaving the scene of the accident. It appears that aid was summoned immediately, despite defendant's culpable flight from the scene. This factor, accordingly, is neutral as well.

Third, evidence of guilt is ample and, of course, defendant admitted guilt in court (after an equivocal admission to the police when he surrendered). This factor favors the People.

Fourth, the court must consider the history, character and condition of defendant. This is the factor that overwhelmingly tips the balance in defendant's favor and will therefore be described at length.

Defendant has no prior criminal history. But that is merely to say that he has done nothing wrong when, in fact, he has a long and documented history of contributing to society in an important and meaningful way. Additionally, defendant has a poignant history of victimization, which, to his great credit, he has overcome by becoming an individual who helps others in need.

Mohammed was born in Brooklyn to immigrants from Yemen. Religious people, Mohammed's parents did not initially provide him with more than a religious education, despite his yearning for a secular one. Mohammed was regularly beaten and verbally abused at home. At school he fared little better. Beatings from bullies occurred there, as well as the humiliation that stemmed from learning and memory difficulties that went undiagnosed and untreated. Indeed, not until Mohammed was in his 30s was he finally diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and prescribed medication to improve his functioning.

Mohammed was sexually victimized by a relative and a stranger as a child. These assaults resulted in nightmares, flashbacks and other untreated emotional injuries.

When Mohammed was 14 years old and hoping to go to public high school, his father required that he instead go to a religious school in upstate New York or to Yemen. To flee his father, Mohammed chose Yemen. After six months there, where he was treated poorly by his own family and bullied — almost fatally - in the community, Mohammed begged to return to the United States. His parents acceded and allowed him to enroll in a public school, from which he graduated.

Mohammed's initial efforts to pursue a college degree were thwarted by his learning difficulties. He instead got married and worked. He has had steady employment, often at more than one job at a time, as an adult. He also became a father to a boy, now a teenager, who reported that his father "always works hard to make sure I'm cared for and other people are safe." After the marriage failed, Mohammed obtained custody of his son.

Since his own diagnosis of and treatment for ADHD, and inspired by the help his son, who was diagnosed with dyslexia, received, Mohammed continued his schooling and received a Master of Science for Teachers and became a special education teacher with the New York City Department of Education. His colleagues report that he is a particularly committed and skilled special education teacher.

Because of the charges in this case, however, Mohammed was removed from the classroom and would not be able to return if a felony remained. For this particular reason, among the others enumerated here, I concluded that a resolution of this case without a felony conviction would be appropriate.

In addition to the above facts relevant to Mohammed's history and character, Mohammed has been credited with saving another individual's life in an incident that mirrors the incident that led to the instant charges. While driving with a friend, Mohammed came upon an injured individual on the side of the road. Rather than pass him by or even merely summon aid, he assessed the situation as requiring urgent action, took the bleeding stranger into the car and drove him to a hospital, where the individual received life-saving care.

The irony of the juxtaposition of the instant case with that incident is not lost on the court. Given, however, the themes of Mohammed's life, which appear to be overcoming suffering, empathizing with individuals in need, and caring for family and strangers,² I interpret his present lapse as aberrant and uncharacteristic, and the product of impulse and panic, to which his own history of victimization may have contributed.

The fifth Clayton factor is whether there is any exceptionally serious misconduct of law enforcement. There is none. This, then, is a neutral factor.

The sixth factor to be considered is the purpose and effect of imposing an authorized sentence on defendant. A conviction of the class D felony to which defendant initially pled may be punished by probation. Incarceration is not mandatory. For this reason, defendant is in fact receiving an authorized sentence — albeit of shorter duration than he might otherwise — so the purpose and effect of sentencing are satisfied even with the reduction of the conviction to a misdemeanor. The Department of Probation will still supervise defendant. This factor favors him.

The next Clayton factor is the impact of a dismissal on the public's confidence in the criminal justice system. Dismissal of the felonies will not end defendant's accountability for this crime but will demonstrate that the criminal justice system is not rigid and that it tailors itself to the particular circumstances of the parties before it. The primary effect of dismissing the felonies and reducing the conviction to a misdemeanor is to permit defendant to resume his socially important service of teaching children who benefit from his singular skills and devotion as a special education teacher, without absolving him of criminal responsibility. This factor favors defendant as well.

The penultimate factor is the impact of a dismissal on the safety and welfare of the community. Again, the felonies, but not the misdemeanor, are dismissed and defendant is accountable: he pled guilty to a crime and is sentenced to probation. Defendant's operation of the vehicle, moreover, is not the gravamen of the crime. As noted, he was not accused of having caused the accident that resulted in Ms. Alcindor's death or of having driven in an unsafe manner; rather, he was charged with leaving the scene where an accident - that is, a mishap or misfortune - had occurred. Because his flight appears to have been aberrant, it is unlikely to be repeated. This factor favors defendant.

The final factor is the attitude of the victims. Certainly the family and friends of Ms. Alcindor continue to mourn her loss, as the People aver. The People do not, however, state that the family oppose this disposition. This factor, therefore, favors defendant.

For the reasons set forth above, and in an effort to further justice, the court finds that defendant, who has successfully completed a year of interim probation supervision, accepted responsibility and otherwise led an exemplary life, deserves the granting of the motion, the vacatur of the felony conviction and its replacement by a conviction of the class A misdemeanor set forth in the same section of the law. It is the court's hope that this decision will achieve a foundational goal of our criminal laws, which is "the promotion of the[ ] successful and productive reentry and reintegration into society [of those convicted]" (PL § 1.05[6]), and that as a result of it Mohammed will be able to return to the classroom to teach.

This constitutes the decision of the court in support of an order issued July 2, 2024.

Dated: July 11, 2024

Brooklyn, NY

JOHN T. HECHT, A.J.S.C.

FOOTNOTES

1.   Identifying information concerning defendant has been omitted because of the private nature of many of the disclosures of his history and condition contained in this decision. He will therefore be referred to as "Mohammed" or "defendant" throughout.

2.   Despite the abuse he endured as a child, Mohammed now cares for his parents as they are in ailing health.

John T. Hecht, J.