The motorman whose hurtling subway train derailed, killing five passengers, has been indicted on five counts of murder - charges far more serious than the manslaughter counts on which he was arrested.
Police said in arresting 38-year-old Robert Ray last week that he was drunk at the time of the crash Aug. 28.District Attorney Robert Morgenthau said Tuesday the grand jury upgraded the charges based on evidence Ray fell asleep at the controls and failed to brake as the train entered the station where it jumped the tracks.
A manslaughter conviction would require a jury to find that a defendant acted recklessly. A murder conviction would require a finding that the action was done with "depraved indifference" to human life.
The murder charges carry a minimum of 15 years to life in prison; manslaughter carries a sentence of 5 to 15 years.
Justice Brenda Soloff denied bail.