FORT GREENE — A Brooklyn judge ruled that the driver who struck and killed an art curator after his car jumped the curb last month could keep his license because she said prosecutors haven't done enough to show he was driving recklessly.
Criminal Court Judge Marguerite Dougherty told prosecutors Monday that they had not presented an argument that would revoke Marlon Sewell’s driver's license — which had been suspended on Dec. 6 when he jumped the curb and fatally struck 30-year-old Victoria Nicodemus and injured two other pedestrians near Fulton Street and South Portland Avenue.
"There are no allegations of the defendant recklessly driving," said Dougherty.
She added that Sewell's license had only been suspended at the time due to lack of child support and has since been restored.
Prosecutors countered that they have obtained surveillance video that shows “very clearly” that Sewell had no good reason to swerve onto the sidewalk before the crash that left Nicodemus dead and hurt her boyfriend, 37-year-old Jerry Toth and a 75-year-old woman.
“It does not appear from our view on the video that there was any innocent reason to drive over the curb,” an assistant district attorney told Dougherty, who was assistant general counsel for JP Morgan & Co. before being appointed by Mayor Bill de Blasio to become a judge last year.
Prosecutors have yet to increase his charges — which include driving without a license or insurance — to include reckless driving pending the outcome of an investigation into his claim that he was lightheaded at the time of the crash due to a carbon monoxide leak in his car.
Prosecutors have impounded Sewell's vehicle during the course of their investigation, they said.
Dougherty cited the impound as one of her reasons for not suspending Sewell's license.
“It negates the necessity,” she said.
Neither the judge nor prosecutors discussed Sewell's driving history, which includes a previous arrest in March 2015 for driving without a license and multiple instances of speeding through school zones on Nov. 18, 19 and 24, according to police and public records.
Sewell also got six tickets totaling $450 for sticker violations between Aug. 8 and Nov. 17, Department of Finance records show.
News of the judge's decision angered family members, who said they are working with legislators to push forward a law that would make it a felony if a driver without a license kills or seriously injures someone on the road.
"It is outrageous that such a dangerous driver is allowed to get back behind the wheel," Nicodemus' brother Hank Miller said. "Based on what I've read of his driving record, it is incomprehensible that a judge would not see fit to rule on the side of public safety."
Sewell, who remains free without bail, has not been charged under the Right of Way law, which makes it a misdemeanor when a driver fails to yield and kills or injures a pedestrian who has the right of way.
Nicodemus, an art curator who lived in Brooklyn Heights, later died at Brooklyn Hospital. Toth and the other pedestrian, who was unidentified, were in stable condition following the crash.
Sewell is due back in court on Feb. 16. His Legal Aid attorney Samuel Getz did not immediately answer a request for comment.
