Matter of Vincent H.

• Decision Date: 09 March 2004
• Parties: In the Matter of VINCENT H. and MATTHEW C., Persons Alleged to be Juvenile Delinquents, Respondents.
• Court: New York Family Court

3 Misc.3d 900

775 N.Y.S.2d 457

In the Matter of VINCENT H. and MATTHEW C., Persons Alleged to be Juvenile Delinquents, Respondents.

March 9, 2004.

Legal Aid Society, Jamaica (Norah Bowler of counsel), for Vincent H., respondent.

Robert S. Modena, Bayside, for Matthew C., respondent.

Michael A. Cardozo, Corporation Counsel, Jamaica (Chet Belatsky of counsel), for presentment agency.

OPINION OF THE COURT

FRAN L. LUBOW, J.

By petition filed on May 2, 2003, the respondents are alleged to have committed acts which, were they adults, would constitute the crimes of reckless driving (Vehicle and Traffic Law § 1212), reckless endangerment in the second degree (Penal Law § 120.20), and resisting arrest (Penal Law § 205.30). A fact-finding hearing was conducted on July 1, 2003, November 19, 2003 and January 12, 2004. The presentment agency called Police Officer Michael Grizzard of the 104th Precinct as its sole witness at the hearing. An investigator from the Legal Aid Society testified on behalf of the respondents.

Now, after consideration of the evidence presented at the fact-finding hearing, this court makes the following findings of fact and conclusions of law.

Having had the unique opportunity to observe the witnesses directly as they testified before this court, this court was able to assess their credibility through observations of demeanor, body language, facial expressions as well as hearing the responses to inquiries by all counsel. This court does credit both witnesses' testimony, although the respondents' witness adds nothing relevant to the record.

As a preliminary matter, this court does note that what this court perceived as an error that counsel should be alerted to was discovered during this court's review of the transcript of these proceedings. Specifically during summations, each counsel referred to the vehicle operated by the respondents as a "goped" to this court's recollection. However, the transcript refers to the vehicles in question as "mopeds." As innocuous as this error may appear at first blush, during this court's review of the Vehicle and Traffic Law as well as information from the New York State Department of Motor Vehicles, it became apparent that these are two different types of vehicles with distinct rules of operation.

A "moped" is a common term for a "limited use motorcycle," described in Vehicle and Traffic Law § 121-b as "[a] limited use vehicle having two or three wheels, with a seat or saddle for the operator," which may be operated upon public streets only with proper registration, a driver's license or learner's permit, and depending on the type of moped, insurance. A "goped" or "Goped" on the other hand, defined by the New York State Department of Motor Vehicles as "a [skateboard or scooter] with a motor attached and a handlebar for a standing rider," also requires a driver's license, registration and insurance but may not be operated on any public streets, highways or sidewalks under any circumstances.^[1]

As such, this court informed all counsel of the perceived error contained in the transcript as well as the distinction between the two types of vehicles. Counsel, after having been given the opportunity to resettle the record, have elected not to do so. Therefore, the record shall stand.

For purposes of this court's determination of the fact-finding in this case, it makes no difference whether the vehicle at issue is characterized as a "moped" or a "goped." What is significant is that the motor scooters operated by the respondents at the time of the incident in question, described by Officer Grizzard as "two-wheel motor scooters powered by an engine and gasoline" (transcript, July 1, 2003, at 8), clearly fall within the general definition of a motor vehicle. According to Vehicle and Traffic Law § 125,^[2] a motor vehicle is defined as "[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power." As with any motor vehicle, a learner's permit or driver's license (see, Vehicle and Traffic Law § 501 [5]; § 509 [1]) as well as a valid vehicle registration (see, Vehicle and Traffic Law § 401 [1]; § 2261) and insurance (see, Vehicle and Traffic Law §§ 345, 2265 [3]) are required for the operation of these motor scooters. (None of which did these respondents possess.)

Since the first two counts of the petition charge the respondents with conduct that is "reckless" in nature, this court will begin its analysis with this term as defined in the Penal Law.

A person acts "recklessly" with respect to a statutorily defined result or consequence when:

"[such person] is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe." (Penal Law § 15.05 [3].)

Reckless driving is defined in Vehicle and Traffic Law § 1212 as:

"driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or 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."

The Court of Appeals, in interpreting this statute in People v Grogan (260 NY 138 [1932]), held that "evidence showing something more than mere negligence" would be required to prove the charge of reckless driving. (Id. at 143.) By way of further elaboration, the Court defined reckless driving as "the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences" (id. at 144), and the terms "unreasonably interferes" or "unreasonably endangers" as "interferes with or endangers the user[s] of the highway through the failure to exercise reasonable care, reasonable caution or the reasonable foresight of a reasonably prudent and careful person." (Id. at 149 [emphasis added and internal quotation marks omitted].)

The term "public highway" as used in the Vehicle and Traffic Law is defined as "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way." (Vehicle and Traffic Law § 134.) Sidewalks fall within the ambit of public highway (see, People v Miller, 206 Misc 1085 [Nassau County Ct 1954]). A motor vehicle may not be operated on or across a sidewalk unless reasonable and necessary with the exception of certain circumstances. (See, Vehicle and Traffic Law § 1225-a; see also, 34 RCNY 4-07 [c] [3] [ii].)

The determination as to whether or not a person is guilty of reckless endangerment in the second degree requires an analysis that is separate and distinct from that which is required for the reckless driving statute. A person is guilty of reckless endangerment in the second degree when "he recklessly engages in conduct which creates a substantial risk of serious physical injury." (Penal Law § 120.20.) "Serious physical injury" is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." (Penal Law § 10.00 [10].)

The reckless endangerment in the second degree statute requires "an objective assessment of the degree of risk presented by [respondent's] reckless conduct" and the conduct "must actually create a substantial risk of serious physical injury." (Matter of Kysean D.S., 285 AD2d 994 [4th Dept 2001].) Such an assessment is not required for the reckless driving statute, which, by contrast, focuses on the conduct itself and a disregard of consequences rather than the extent of injury which may be caused to a person as a result of a disregard of the consequences associated with such conduct. The two offenses do not share the same elements and, therefore, a finding or dismissal as to one does not necessitate a similar result as to the other. (See, People v Moran, 192 AD2d 885 [3d Dept 1993].)

In the case at bar, Officer Grizzard testified that the...