Attorney General James’ Office of Special Investigation Releases Report on Death of Ervin Zacarias Antonio Agustin

NEW YORK – New York Attorney General Letitia James’ Office of Special Investigation (OSI) today released its report on the death of Ervin Zacarias Antonio Agustin, who died on May 19, 2024 following a motor vehicle collision involving a New York City Police Department (NYPD) officer in Queens County. Following a thorough investigation, which included review of the vehicle’s dashboard camera, an interview with the involved officer, and comprehensive legal analysis, OSI determined that a prosecutor would not be able to prove beyond a reasonable doubt at trial that the officer committed a crime, and therefore criminal charges would not be pursued in this matter.

In the early morning hours of May 19, 2024, an NYPD officer was traveling in a marked police vehicle with his turret lights and siren activated, traveling to the scene of a motor vehicle collision investigation in Queens. The officer was traveling southbound on the Van Wyck Expressway, a multi-lane highway that runs north-south with three lanes in each direction, separated by a concrete divider, and no pedestrian traffic. The speed limit of the expressway was 50 MPH, and 40 MPH in construction zones. As the officer approached the vicinity of Archer Avenue, he was traveling at a speed of 63 MPH. Mr. Agustin attempted to run across the expressway and was struck by the officer’s vehicle. The collision occurred near a construction site, with construction equipment parked behind the concrete barriers lining both sides of the southbound lanes.

Under OSI’s analysis of New York’s Vehicle and Traffic Law, Penal Law, and case law from New York’s highest court, a police officer who causes a death while properly responding to an emergency in a police vehicle cannot be charged with a crime unless the officer acts recklessly or intentionally. The criminal charge that requires recklessness is Manslaughter in the Second Degree, in which a person is guilty when they recklessly cause the death of another person. “Recklessly” means that the person consciously disregards a “substantial and unjustifiable” risk of death and that their actions are a “gross deviation” from a reasonable standard of conduct.

In this case, while the officer caused Mr. Agustin’s death, the evidence does not establish beyond a reasonable doubt that the officer’s conduct was a gross deviation from the standard that would have been observed by a reasonable officer in the same circumstances, or that the officer consciously disregarded a substantial and unjustifiable risk of death. The officer was speeding because he was responding to an emergency. In addition, the officer had no reason to expect that a person would attempt to cross the expressway on foot, as the Van Wyck Expressway is closed to pedestrians. There was no evidence that the officer was impaired by drugs or alcohol, and no evidence that he was otherwise distracted at the time of the collision. Therefore, OSI concluded that there was insufficient evidence to pursue criminal charges.