Martinis, Application of, 1005-1963

• Decision Date: 19 May 1963
• Docket Number: No. 1005-1963,1005-1963
• Citation: 244 N.Y.S.2d 949,20 A.D.2d 79
• Parties: Application of Gareth MARTINIS, Petitioner, for an order pursuant to Article 78 of the Civil Practice Laws and Rules directed to and against The Supreme Court of the State of New York, Criminal Term, County of Bronx, the Several Judges Thereof, individually, and as Judges of the said Supreme Court, Criminal Term, County of Bronx, and Isidore Dollinger, District Attorney, County of Bronx and his Representatives, Respondents. . Dec. 17 1963. Maurice Edelbaum, New York City, of counsel (Philip R. Edelbaum, New York City, on the brief), for petitioner. Bertram R. Gelfand, New York City, of counsel (Isidore Dollinger, Dist. Atty.), for respondents Dist. Atty. Dollinger and his Representatives. Stephen N. Rubin, New York City, of counsel (Louis J. Lefkowitz, Atty. Gen.), for respondents Judges of the Supreme Court, Criminal Term, Bronx County. Before RABIN, J. P., and McNALLY, STEVENS, STEUER and WITMER, JJ. STEVENS, Justice. Petitioner seeks an order, pursuant to Article 78 of the Civil Practice Law and Rules, prohibiting respondents from trying petitioner on IndictmentPetitioner urges to permit such a trial would constitute double jeopardy in violation of his constitutional rights, both Federal and State. To determine the validity of his contention it is necessary to review the facts and analyze the charges. The undisputed facts are that on
• Court: New York Supreme Court — Appellate Division

Page 949

244 N.Y.S.2d 949

20 A.D.2d 79

Application of Gareth MARTINIS, Petitioner, for an order pursuant to Article 78 of the Civil Practice Laws and Rules directed to and against The Supreme Court of the State of New York, Criminal Term, County of Bronx, the Several Judges Thereof, individually, and as Judges of the said Supreme Court, Criminal Term, County of Bronx, and Isidore Dollinger, District Attorney, County of Bronx and his Representatives, Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 17 1963.

Maurice Edelbaum, New York City, of counsel (Philip R. Edelbaum, New York City, on the brief), for petitioner.

Bertram R. Gelfand, New York City, of counsel (Isidore Dollinger, Dist. Atty.), for respondents Dist. Atty. Dollinger and his Representatives.

Stephen N. Rubin, New York City, of counsel (Louis J. Lefkowitz, Atty. Gen.), for respondents Judges of the Supreme Court, Criminal Term, Bronx County.

Before RABIN, J. P., and McNALLY, STEVENS, STEUER and WITMER, JJ.

STEVENS, Justice.

Petitioner seeks an order, pursuant to Article 78 of the Civil Practice Law and Rules, prohibiting respondents from trying petitioner on Indictment No. 1005-1963. Petitioner urges to permit such a trial would constitute double jeopardy in violation of his constitutional rights, both Federal and State. To determine the validity of his contention it is necessary to review the facts and analyze the charges.

The undisputed facts are that on May 19, 1963, petitioner was operating a motor vehicle along a public highway in the County of Bronx. Petitioner's vehicle was involved in a collision with another vehicle which vehicle was then involved in a collision with a third motor vehicle. As a result of the occurrences five persons, occupants of the second car, lost their lives, and the sole occupant of the third vehicle, one Eugene Kramon, sustained severe personal injuries.

Petitioner was arrested May 19, 1963. Subsequently an Information was lodged against him. The Information contained four counts and charged petitioner (1) with driving while intoxicated; (2) a violation of Section 1190, Vehicle and Traffic Law (reckless driving), in that petitioner operated his vehicle in a manner which unreasonably interfered with the free and proper use of a highway and unreasonably endangered users of a public highway; (3) a violation of subdivision 5-a, Section 70, Vehicle and Traffic Law (leaving scene of accident involving property damage); and (4) a violation of subdivision 5-a, Section 70, Vehicle and Traffic Law, by leaving the scene of an accident in which personal injuries were suffered. Both (3) and (4) charged a leaving without exhibiting license or reporting accident to police as soon as possible. Subdivision 5-a, Section 70, is now contained in Section 600, Vehicle and Traffic Law. The acts charged are misdemeanors.

Petitioner was tried on the Information in Bronx Criminal Court, and on July 21, 1963, he was acquitted on all counts.

On August 2, 1963, petitioner was indicted by the Grand Jury in a six-count indictment (Indictment No. 1005-1963). He was charged in five counts with the crime of criminal negligence in the operation of a motor vehicle resulting in the death of a human being (Penal Law, § 1053-a). Each count referred to a different named individual. The sixth count charged Assault in the Third Degree upon one Eugene Kramon by operating a vehicle in a culpably negligent manner (Penal Law, § 244). Petitioner now asserts to require him to stand trial on the indictment would constitute double jeopardy.

Section 1190, of the Vehicle and Traffic Law (V. & T. Law) provides:

'Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this section shall be guilty of a misdemeanor.' (Italics added.)

"[U]nreasonableness' is a necessary constituent of the crime' of reckless driving (People v. Armlin, 6 N.Y.2d 231, 232, 189 N.Y.S.2d 179, 180, 60 N.E.2d 478, 479). Proof of the crime of reckless driving requires evidence of something more than mere negligence (Matter of Lipschitz v. Mealey, 259 App.Div. 640, 20 N.Y.S.2d 299). 'Reckless driving, therefore, standing by itself, means the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences' (People v. Grogan, 260 N.Y. 138, 144, 183 N.E. 273, 275, 86 A.L.R. 1266). And where the charge embraces unreasonable interference with free and proper use and unreasonably endangering users of the highway, there must be strong proof and beyond a reasonable doubt of a failure to exercise care or caution called for by the existing circumstances. As these terms are used they must be construed to mean 'interferes with or endangers the user of the highway through the failure to exercise reasonable care, reasonable caution or the reasonable foresight of a reasonably prudent and careful person.' People v. Grogan, supra, 260 N.Y. p. 149, 183 N.E. p. 277, 86 A.L.R. 1266. More must be shown than an error of judgment or even that a collision occurred.

The charges of driving while intoxicated or leaving the scene of an accident without properly identifying himself, or failing thereafter to report the accident at the earliest time that petitioner was physically able to do so, need not be elaborated upon for they are almost self-explanatory. One refers to the condition of the driver at the time of the occurrence, the other how he comported himself subsequent to the occurrence.

The charge of a violation of Section 1190, V. & T. Law, and the constituent elements necessary to sustain such charge have been discussed at some length because it is charged in the various counts of the indictment that petitioner operated and drove his automobile 'in a reckless and culpably negligent manner.' Before turning attention to the sections of the Penal Law which petitioner is charged with violating, it must first be recalled and noted that after a trial in Bronx Criminal Court, petitioner was found not guilty on all counts of the Information.

Five counts of the indictment charge petitioner with a violation of Section 1053-a of the Penal Law. That section, entitled 'Criminal negligence in operation of vehicle resulting in death', reads as follows:

'A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed, is guilty of criminal negligence in the operation of a vehicle resulting in death.' (Italics added.)

'The word 'reckless' and the phrase 'culpably negligent manner,' as employed in the penal statute quoted above, connote something more than the slight negligence necessary to support a civil action for damages. Both word and phrase import a disregard by the accused of the consequences of his act--an indifference to the rights of others.' "A long distance separates the negligence which renders one criminally liable from that which establishes civil liability." People v. Bearden, 290 N.Y. 478, 482, 483, 49 N.E.2d 785, 788; People v. Decina, 2 N.Y.2d 133, 139, 157 N.Y.S.2d 558, 564-565, 138 N.E.2d 799, 803, 63 A.L.R.2d 970. There must be an awareness of a condition which may produce the consequences 'or knowledge of such facts as under the circumstances would disclose to a reasonable man the dangerous character of his action, and despite this knowledge he so acts.'

'The phrase 'operates or drives' not only applies to the condition of the driver, but to the condition of the vehicle and to traffic conditions as well.' People v. Eckert, 2 N.Y.2d 126, 130, 131, 157 N.Y.S.2d 551, 557, 138 N.E.2d 794, 798. Under the indictment there would have to be shown a direct relation between the vehicle causing the death and the reckless or culpably negligent manner of its operation. 'The courts have uniformly held that 'reckless' and 'culpable' are synonymous; that the words import a 'disregard of consequences' and 'indifference to the rights of others'' (cases cited). People v. Bowles, 280 App.Div. 476, 480, 114 N.Y.S.2d 353, 357.

The standard of proof required to prove a violation of Section 1190, V. & T. Law, and the standard required to prove a violation of that portion of Section 1053-a, Penal Law, dealing with operating in a reckless or culpably negligent manner, are the same. Culpable means blamable, and involves a breach of a legal duty or the commission of a fault (Black's Law Dictionary, 4th ed.). When used in conjunction with the term 'negligence' it implies a wanton disregard of the rights of others by a failure to exercise that degree of care called for by the circumstances. If a defendant be acquitted of a charge of reckless driving under Section 1190, V. & T. Law, he cannot be convicted of driving in a reckless or culpably negligent manner under Section 1053-a, Penal Law, where both charges arise out of the same single occurrence.

It is provided by Section 1800, V. & T. Law: '[a] conviction of violation of any provision of this chapter [Ch. 775, L.1959] shall not be a bar to a prosecution for an assault or for a homicide committed by any person in operating a motor vehicle or motorcycle' (italics added) (§ 1800(d)). The statute specifically refers to a conviction and provides there shall be no merger of such conviction as to bar a later prosecution when an assault is committed or death ensues. It does not, however, refer to an acquittal such as we have in the case before us.

No statute of course could validly override the constitutional provision that '[n]o person shall be subject to be twice put in jeopardy for the same offense' (Article 1, § 6, Const. of State of New York). Nor could the statute violate the prohibition...