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Driver won’t be charged in death

Toddler died after being left in hot van in September 2011

No criminal charges will be filed in the tragic 2011 death of a toddler who was left in a sweltering van in Dorchester for up to six hours after the driver failed to drop him off at day care, the Suffolk district attorney announced Monday.

Seventeen-month-old Gabriel Josh-Cazir Pierre died in September 2011 after the driver, Luis Matos, failed to notice that he was still in the van, prosecutors said.

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Prosecutors had considered bringing charges including involuntary manslaughter and reckless ­endangerment of a child. However, both charges would require “intentional disregard.” The investigation showed no evidence that Matos acted with conscious disregard for the boy’s life or welfare, the office of District Attorney Daniel F. Conley said.

“The evidence painted a picture of a driver who wasn’t impaired and who genuinely adored the children he cared for, including Gabriel,” said Jake Wark, a spokesman for the district attorney’s office. “But it showed a terrible, tragic mistake that can’t be prosecuted as Massachusetts law currently stands.”

Gabriel’s mother, Virginia Cazir, however, said that she was so distraught in the meeting with the district attorney that she had to leave the room.

“I do understand what they said; I just don’t agree with what they come up with,” said Cazir. "I appreciate their work and time and effort on ­behalf of my son.”

Cazir is also pursuing a civil suit in Suffolk Superior Court against the driver and the day-care operators. At the time of the death, Gloria Feliz was the owner of the day-care center where the van was parked, and Yohanna Tejeda owned the day-care center that normally cared for the baby. Day-care providers are expected to contact the parents when a child does not show up as expected.

‘Just because everything is not working out with the DA doesn’t mean I’m going to give up. I will move on and keep it moving to save other children’s lives.’

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“We certainly understand the DA’s position, but we have some disagreement with the outcome,” added Cazir’s attorney, Ernst Guerrier. “We think the life of Gabriel deserves justice and criminal prosecution.”

The DA’s office noted that the Supreme Judicial Court wrote in 1944 that “[c]onduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts no such thing as ‘criminal negligence.’ ”

“Massachusetts law leaves issues of negligence in the hands of civil courts and precludes the criminal prosecution of an accident, even one as terrible and tragic in its consequences as this one,” Wark said in a statement. Prosecutors came to the same conclusion in a similar case in 2000, he noted.

While the evidence suggested that Matos was negligent, having failed to check inside the van and spot the boy asleep in a seat, Massachusetts law does not provide for homicide prosecution under a theory of negligence, prosecutors also said.

The tragedy in 2011 was complicated further when ­Matos suffered chest pains at the scene of the child’s death on Floyd Street and had to be hospitalized. He has apologized for his role in the “terrible accident.’’

Neither Matos nor his attorney could be reached for comment.

The Suffolk district attorney’s office said it would work with Cazir on legislation aimed at preventing a similar tragedy.

That legislation would mandate full-vehicle checks, the elimination of tinted windows from child-transport vehicles, and demand an effective communication system to alert parents, transportation providers, and day-care facilities if a child is not dropped off as expected.

“I will change the law; something will be done,” Cazir said. “Just because everything is not working out with the DA doesn’t mean I’m going to give up. I will move on and keep it moving to save other children’s lives.”

Stephanie Ebbert can be reached at ebbert@globe.com. Follow her on Twitter ­@StephanieEbbert.
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