The Manhattan DA's office last week dropped a Right of Way charge against a truck driver who fatally struck an elderly pedestrian in an Upper East Side crosswalk in the fall of 2014. According to prosectors, the driver could not have seen his elderly victim, who stood only 5'5", from his perch in the bulky commercial truck—apparently justification for dismissal.

Peter Romano, 86, was fatally struck by Victor Hernandez on October 10, 2014. Hernandez, behind the wheel of a Coca Cola truck, was taking a right turn at the corner of Third Avenue and East 96th Street. Police later said that Romano had been in the crosswalk with a walk signal when he was struck, and the NYPD Highway Division confirmed the driver's arrest for failure to yield the next day.

A few months before Romano was killed, the City Council instated the Right of Way Law, which empowers NYPD officers to charge drivers who kill or injure pedestrians with misdemeanors. Up until that summer, drivers had to be intoxicated or break multiple laws, or an officer had to witness the crash, in order for charges to be leveraged.

Streetsblog reports that the Manhattan DA's office conducted a 15-month investigation into the crash, only to drop the charges. Not only were Hernandez's sight lines obstructed, the prosecution argued, but Hernandez was not intoxicated or using his phone at the time of the crash. They also stated that Hernandez stopped for several pedestrians before making the turn, and remained on the scene. Therefore, it could not be proven "without a reasonable doubt" that he failed to use due care when he ran over Romano.

"A driver high up in the cab of a big rig has an obligation to look carefully for any pedestrian with the right of way," said attorney Steve Vaccaro in an angry e-mail to Streetsblog after the decision. "In essence, the DA concluded that it is less blameworthy to kill short people than tall people."

"The implications of DA Vance’s decision are positively chilling in a city where too many small children are killed in crosswalks," said Transportation Alternatives Director Paul Steely White in a statement. "By dropping the Right of Way charge, the Manhattan District Attorney is further codifying the clichéd excuse 'I didn’t see him' as a legal term of art."

According to the advocacy group, none of the misdemeanor charges leveraged since the Right Of Way Law went into effect in 2014 have yet gone to trial.

The Manhattan DA's office declined comment.