The NYPD and Bronx prosecutors are working with federal transportation investigators probing the deadly Metro-North crash to determine whether criminal charges should be filed, Police Commissioner Ray Kelly told NBC 4 New York on Wednesday.
The engineer, William Rockefeller, has told investigators he experienced a hypnotic-like "daze" in the seconds before the train barreled into a sharp curve at 82 mph, where trains are required to slow to 30 mph.
The train came apart and four cars derailed, sliding down a bank toward the Harlem River. Four people were killed and dozens more were injured, some with spine injuries.
Rockefeller's attorney, Jeffrey Chartier, described to reporters the account that Rockefeller gave to NTSB investigators. He said the engineer experienced the "daze," almost like road fatigue or the phenomenon sometimes called highway hypnosis. Chartier couldn't say how long it lasted.
Kelly told NBC 4 New York on Wednesday that authorities from the Bronx district attorney's office, along with NYPD detectives, are sitting in on all interviews and are working with them on the investigation.
"There is a collaborative effort to determine if in fact this rises to the level of criminality, as to what should be done with it," Kelly said. "It's going to take some discussion."
Kelly said so far there is no evidence the engineer was texting on his phone or impaired in the moments before the crash. Officials said Tuesday that the engineer's initial alcohol breath test was negative; blood test results were still pending.
Chartier did not return calls seeking comment Wednesday about Kelly's remarks.
On Tuesday, he said what Rockefeller remembers is "operating the train, coming to a section where the track was still clear — then, all of a sudden, feeling something was wrong and hitting the brakes ... He felt something was not right, and he hit the brakes."
The NTSB said at a Tuesday briefing that authorities could not yet describe the engineer's condition just before the crash.
"Was the engineer fully conscious at all times? It's premature to be able to say, 'yes he was or wasn't," NTSB member Earl Weener said. "Again, that's what the investigation hopes to determine."
Rockefeller's activities in the 72 hours before the crash are being reviewed as part of the investigation.
The NTSB said a day after the crash that it did not appear there were any problems with the brakes, and reiterated that conclusion again Tuesday, after further testing.
Gov. Andrew Cuomo said Wednesday that there did not appear to be any mechanical problems.
"Theories of track failure or equipment failure seem to have been proven incorrect, and it will be operator error, it appears," he said.
The train's front car was equipped with a "dead man's pedal" that must be depressed or else the train will automatically slow down, in case of an engineer becoming incapacitated, officials said. The NTSB said the train cars were still being examined and it wasn't known if the pedal was functioning.