People v Anderson
Annotate this CaseDecided on May 5, 2005
Ithaca City Court
The People of the State of New York,
against
Robert N. Anderson, Defendant.
T05-00605
Judith A. Rossiter, J.
The defendant, Robert Anderson, is charged with one count of Failure to Use Due Care to Avoid Colliding with a Pedestrian, an alleged violation of VTL §1146. The pertinent part of that statute states that: "Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any...pedestrian...upon any roadway and shall give warning by sounding the horn when necessary...".
Mr. Anderson, while driving a vehicle, was involved in an accident at the intersection of North Albany and Seneca Streets within the city of Ithaca on December 7, 2004, at approximately 12:50 P.M., that resulted in the death of a pedestrian, Janice Avery. At the outset of a non-jury hearing held in this Court, Assistant District Attorney Gary Surdell and Defense Counsel James A. Baker stipulated to certain facts, including the admission of photographs of the scene, photographs of Mr. Anderson's vehicle taken later that day, and a diagram of the intersection in question (People's Exhibits 4a, 4b, 4c, 5, 6a, 6b, 7). Counsel further stipulated to the admission of the drug influence report form by State Trooper James A. Klock prepared at 3:00 P.M. on December 7, 2004 (People's Exhibit 3), showing no signs of impairment or intoxication for Mr. Anderson. Similarly, the results of the blood test taken the same day indicating 0.00 percent BAC and no drugs detected was also admitted upon stipulation (People's Exhibit 2). Finally, upon stipulation, the Court finds that on December 7, 2004, Janice Avery was 5'3" tall and weighed approximately 105 pounds. Shortly before 1:00 P.M. on December 7, 2004, Janice Avery was walking in a westerly direction on West Seneca Street when she began to cross North Albany Street. She was a few feet south of the crosswalk, approximately at the location for the stop line for northbound traffic on Albany Street. As she reached the center line, she dropped some magazines that she was carrying. Ms. Avery squatted down and began retrieving the items scattered near her feet. Before she completed that task, Mr. Anderson turned left onto Albany Street and struck Ms. Avery with the front driver side bumper of his vehicle, a Chevrolet S.U.V. He struck her at a height of approximately two feet (Defendant's Exhibits A, B, C and D). Upon impact, Ms. Avery fell forward, her neck falling below the front wheel, her midsection below the rear wheel, and her legs beneath the wheels of a trailer hauled behind Mr. Anderson's vehicle (People's Exhibit 4a). She died shortly thereafter at the scene.Two people were watching Ms. Avery that day; Mr. Anderson was not one of them. Joyce Moon, a dental assistant returning to work from her lunch break, was driving northbound [*2]on Albany Street, approaching the intersection with Seneca. She noticed Ms Avery crossing the street and saw her drop papers. Ms. Moon slowed down and stopped approximately 20 feet away and watched while Ms. Avery retrieved the items she dropped. Ms. Moon testified that, at the time, Ms. Avery was wearing black pants (People's Exhibit 5), a black coat (People's Exhibit 6a), and that she had dark hair. She also stated that the weather conditions were overcast and misty and that the road surface was wet. Ms. Moon observed that Ms. Avery seemed to be there for a long time, gathering up the items she dropped but that the light for northbound traffic remained red throughout. Ms. Moon then observed a truck-like vehicle hauling a landscape trailer turn the corner at a slow speed and knock Ms. Avery down. She saw the driver-side bumper hit her in the head and she saw Ms. Avery fall forward and then roll with the vehicle as the wheels struck her. The vehicle did not stop, so Ms. Moon turned and followed the vehicle south on Albany Street until she obtained a license plate number (People's Exhibit 4b), which she provided to the police. Ms. Moon recalled that Ms. Avery was looking in her direction while retrieving her items, not in the direction from which Mr. Anderson was coming. When asked if she could see the driver of the car, Ms. Moon indicated that she could. She testified that she looked at him as he turned the corner and he was looking into the rearview mirror of his automobile, not in her nor in Ms. Avery's direction.
The other person who saw Janice Avery that day in the intersection was Sean Flynn, an Ithaca firefighter. Mr. Flynn and his lieutenant were returning to the central fire station from a call but first stopped at the Shortstop Deli on West Seneca Street. The driver parked the fire truck just east of the intersection of Albany and Seneca, and Mr. Flynn remained in the unit. He saw Ms. Avery enter the street, drop the magazines, and begin picking them up. He saw a Shortline bus pass through the intersection on Seneca and he observed Mr. Anderson's S.U.V. turning left. Although he did not see the impact, he did see Ms. Avery between the front and back wheels immediately thereafter. A trained E.M.T., he called for emergency assistance, grabbed his equipment and rendered first aid at the scene, but could not revive her.
Robert Anderson had been in the Ithaca area approximately one month prior to the date of the accident, staying with family in the Berkshire area. On the date in question, he drove into Ithaca to run errands. He explained that there had been a great deal of traffic along Seneca Street, especially through the construction area near Tioga Street and west of that location. There were two fire trucks ahead of him, as well as a bus and a trash removal truck. The fire truck in which Mr. Flynn was riding pulled over to the left in front of Mr. Anderson, who was searching for Albany Street to make his turn. He was hauling a trailer at the time that rattled a good deal as he was driving and he stated that he did not recall striking anyone or anything on Albany Street, or experiencing any unusual "anomalies" in the road. He did not see or hear anyone in the road as he turned onto Albany Street onto Seneca. He was not aware of the accident until he was paged at the Home Depot store and subsequently interviewed by police officers (People's Exhibit 1). Mr. Anderson explained that he wears hearing aids in both ears but he had damaged one prior to driving into Ithaca on December 7, and was therefore wearing only one that day. In addition, he explained that, at the age of 19, he suffered a puncture injury to his right eye, has no lens in that eye, and sees only light, dark, and shapes with it. He [*3]explained that vision in his left eye is very good and that he passed his most recent driving test without glasses and has no restrictions on his license. Mr. Anderson's testimony was similar to that of Ms. Moon's in that he stated that he was looking into his rearview mirror to check the vertical gate of the trailer to make sure that it was tracking; that is, moving with him as he turned left onto Albany Street. He recalls hearing only the rattling sound of the trailer as he made his turn. He then looked down the street on Albany, that is, about eight blocks south on Albany, to look for the traffic circle at the intersection of Spencer and Albany, to make certain he was on the right street. The only other vehicle Mr. Anderson saw within the block of Albany Street between Seneca and State Streets was one located approximately 2/3 of the way down the street. In other words, Mr. Anderson never saw Ms.
Moon's car, to his left, and never saw Ms. Avery who was approximately 20 feet in front of Ms. Moon's vehicle.
Private Investigator James Eisenberg testified that he took a series of photographs in April, 2005, while driving Mr. Anderson's vehicle through the same intersection. Although he took the photos using his right eye, rather than the left, as Mr. Anderson would have had to use, Mr. Eisenberg showed a series of photographs with the vehicle in the left lane of Seneca Street, near the stop line and crosswalk on Albany Street, and on Albany Street, and the view ahead looking south on Albany Street (Defendant's Exhibits E, F, G, and H). In those photos, he pointed out that the post between the windshield and side window could have limited the driver's view of Janice Avery in the street. However, the post would in no way have limited the driver from seeing Joyce Moon's vehicle on Albany Street. Given Mr. Anderson's testimony that he never saw Ms. Moon's vehicle and Ms. Moon's testimony that Mr. Anderson was looking only into his rearview mirror as he made the turn, then this Court must conclude that Mr. Anderson never looked in the direction where he might have seen Ms. Avery in the street, either before or during his turn.
A driver, as a matter of law, is charged with seeing what there is to be seen on the road, that is, what should have been seen, or what is capable of being seen at the time (Mayorga v. Rosario, 10/16/90 NYLJ 23 [Col. 4]). Although the evidence in the case shows Mr. Anderson was proceeding slowly, there is no evidence that he slowed down further because of the presence of someone in the road, that he took any evasive action to avoid the pedestrian in the road, or that he sounded his horn. Furthermore, Ms. Avery did not dash into the street unexpectedly into the driver's path (cf Perez v. United States, 1993 W.L. 149055 [S.D.N.Y]). To the contrary, she was stationary and in full view of two other witnesses. The Court finds and concludes that, had the driver, Robert Anderson, looked in the direction of Ms. Avery and Ms. Moon, it is reasonable to conclude that he could have seen Ms. Avery in the road (Mittiga v. United States,945 F. Supp., 476[N.D.NY, 1996]) In view of the foregoing, this Court finds that on December 7, 2004, the defendant, Robert Anderson, failed to operate his motor vehicle with reasonable care, pursuant to VTL §1146 in that he did not look to his left for vehicular or pedestrian traffic at the intersection of Seneca and Albany before or while making a turn, but rather only looked into his rearview mirror and, as a result of his failure to look to his left before or while making the turn, failed to exercise due care to avoid a pedestrian upon the roadway. Based on the foregoing, the Court hereby finds defendant guilty [*4]of a violation of VTL §1146. The Court hereby imposes a fine of $150.00, together with a $50.00 mandatory surcharge, payable by cash, money order, certified check, Visa or Mastercard on or before June 3, 2005.
This constitutes the Decision and Judgment of the Court entered upon notice to both parties. A Notice of Appeal, if any, must be filed within thirty (30) days of this decision.
Dated: May 5, 2005
_________________________________
Judith A. Rossiter
Ithaca City Court Judge
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