FORT GREENE — Next week, 39-year-old Marlon Sewell will appear in court once again to face charges of jumping a curb and fatally striking 30-year-old Victoria Nicodemus with his car.
But Sewell, who was charged with driving without a license and without insurance when he jumped the curb and fatally struck Victoria Nicodemus on the sidewalk near Fulton Street and South Portland Avenue on Dec. 6, 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.
The law was created as part of Mayor Bill de Blasio’s “Vision Zero” plan, which was designed to impose tougher penalties on drivers involved in fatal crashes.
Sewell, who has been out on bail, is among 174 other drivers that have killed pedestrians and bikers and have not been charged under Vision Zero's criminal charge, according to a DNAinfo New York investigation.
It found that of the 205 cases in which pedestrians and bicyclists were killed by drivers across the city, only 31 of those drivers, or 15 percent, were charged under the Vision Zero law in the nearly two years since it took effect.
Of those drivers arrested, 14 only got tickets while others had their charges dismissed.
Only 10 drivers among those that struck and injured 20,082 pedestrians and cyclists were charged under the new law.
“It’s being underused,” said Caroline Samponaro, deputy director of advocacy group Transportation Alternatives, of the Vision Zero law. “It’s not being applied as often as it should be and not having the desired effect.”
Nicodemus and her boyfriend, 37-year-old Jerry Toth, were walking on the sidewalk as they did some holiday shopping when they and another pedestrian were hit.
Shocking security video shows the car hitting the three pedestrians, including Nicodemus who died at Brooklyn Hospital.
Sewell, who appeared visibly shaken following the crash, later told an officer that his car had a carbon monoxide leak which sometimes made him light headed, prosecutors said at his arraignment.
Sewell was recently laid off and has fallen behind on child support payments for his six children, the assistant district attorney said.
He had previously been arrested in March for driving without a license, according to the NYPD. He’s also gotten six tickets for sticker violations and was cited for speeding through school zones, records show.
Sewell declined to speak to reporters after his arraignment.
Police are still investigating the case.
Nicodemus’ family joined elected officials and advocacy groups last month in calling for stiffer penalties for drivers in cases like these, as well as safer street designs, at a vigil on the corner where she was struck.
Nicodemus’ brother Hank Miller has told DNAinfo that it was “disconcerting” to hear that Sewell was released the day after the crash without bail. He said he is pushing prosecutors to increase the severity of the charges against Sewell.
Samponaro said that, at the bare minimum, prosecutors should be using the laws that exist to their fullest extent. She said the number of arrests under the Right of Way law should be “as close to 100 percent as possible.”
But Samponaro said driver accountability is just one part of the equation. She said community members have long been asking for increased pedestrian safety measures to Fulton Street, saying the intersections are confusing and that cars are too easily able to speed down the road.
Sewell is next scheduled to appear in court on Jan. 11. His Legal Aid attorney, Niamh O’Flaherty, did not immediately return a call for comment on Monday.