Joe and Bobbi Koval sat in a windowless DMV hearing room in Manhattan on Wednesday morning, across a small conference table from 27-year-old NYPD Officer Steven Oquendo, who struck and killed their son on 12th Avenue last July minutes after clocking out of a shift. The couple's attorney, Daniel Flanzig, sat by with new witness evidence alleging that Oquendo was driving erratically when he struck their son, 22-year-old Jack Koval.
Judge Marc Berger accepted the notarized witness statement of Troy Lynn Mitchell, a resident of Oklahoma who said he was riding in an Uber SUV alongside Oquendo before the crash. Oquendo was "operating too quickly and aggressively," Mitchell wrote. "And because of his sudden lane change, he was unable to observe the pedestrian that I was able to see."
Berger did not have the Criminal Investigation Squad report for Koval's case, a file that details the entire NYPD investigation, including witness testimony. Flanzig did his own legwork to track down Mitchell last week. There was not an NYPD detective in attendance Wednesday. "I didn't get any reason why I don't have police witnesses today," Berger said.
"We would have been sh*t out of luck without that witness testimony," Flanzig told Gothamist after the hearing. "But for the evidence that we were able to gather at the eleventh hour."
Oquendo was not charged in the July 31st crash. According to police, he had the right-of-way when he struck Koval, who was crossing 12th Avenue at 46th Street against the light. The Manhattan DA's Office also declined to press charges, following "a months-long investigation, including a review of surveillance footage, witness statements, Crash Data Retrieval records, and phone records," a spokesperson said.
Wednesday's administrative DMV hearing, mandatory following any crash that involves death, was to determine whether Oquendo demonstrated "gross negligence" and acted "in a manner showing a reckless disregard for life or property of others," possibly meriting a license suspension or revocation.
"The DMV has a huge role to play," Transportation Alternatives organizer Caroline Samponaro told Gothamist this week. "They are licensing every New York driver. If there is consistently a consequence for reckless driving, then I do think there could be some safer driver happening."
The crosswalk where Koval was struck. (Google Maps)
Mitchell, the witness, testified that his Uber was stopped at a red light at 46th Street just before 2:15 a.m. on July 31st, heading north on 12th Avenue. The Uber had stopped short of the crosswalk; Mitchell was level with Oqeundo's Dodge Charger, which was stopped behind a second SUV in the adjacent lane to his left. "The car caught my attention because it is known to be a high performance vehicle," he wrote, adding:
When the light turned green, the large SUV pulled away from the light. We accelerated a little slower. As a result, space was created between the large SUV and our vehicle. The Charger quickly continued to accelerate and suddenly changed lanes.... The Charger continued to accelerate as he entered the intersection at a speed that seemed unsafe for roadway conditions. As he continued to accelerate I saw him strike a pedestrian who was in [crosswalk].
Judge Berger peppered Oquendo with questions about the lead-up to the crash, and moment of impact.
Oquendo testified that he changed lanes just before the crash in order to avoid striking a black SUV in front of him. He also said that he was driving between 25 and 30 miles per hour, and that there were one-and-a-half car lengths between his car and the SUV when it slowed. (The speed limit on this stretch of road is 35 mph.)
"The vehicle in front of me suddenly stopped and I didn't have enough time to stop behind it, so I had to go to the right of it to avoid striking that vehicle. That's when the accident happened," Oquendo said.
At the end of Wednesday's hearing Flanzig asked the judge to leave the case open until the CIS report is supplied, as it might help the judge address discrepancies between the witness account and Oquendo's testimony. "I think it's highly relevant to this case," he said.
Judge Berger declined. "The accident was almost a year ago and I really do think I have enough information to work with," he said.
A final decision is expected within the month.
Flanzig said he is still optimistic that Oquendo will get some sort of penalty for negligence. "From my instinct, when the judge started asking certain questions, he understood that Oquendo was close-following," he said. "If you are going 25 to 30 miles per hour, how can you not stop your car?"
Koval, who graduated from Emory University last spring, moved to New York City shortly after July 4th, 2016 to start a job as an analyst at Centerview Partners, a financial advisory firm. He was killed later that month. A preliminary police report included a false account of the circumstances: he did not, as was originally reported, jump a divider and step into oncoming traffic before he was killed.
Oquendo addressed the Kovals directly on Wednesday. "My condolences to your family and I'm sorry for your loss," he said. "I can't imagine what you guys are going through. I wish it never happened. I think about it every day. And, um, it's just an accident. I'm sorry that it happened. I really am. I wish it didn't."
"If anybody else tells me they can't imagine our loss, I'm going to pretty much rip their head off," Bobbi Koval said after the hearing, laughing. "Because of course you can't. Words are nothing. Words mean nothing to me. It's his actions, and you need to take responsibility."