People v. Burman

• Decision Date: 14 June 2019
• Docket Number: 155,KA 18–00007
• Citation: 173 A.D.3d 1727,102 N.Y.S.3d 849
• Parties: The PEOPLE of the State of New York, Respondent, v. Chad R. BURMAN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1727
102 N.Y.S.3d 849

The PEOPLE of the State of New York, Respondent,
v.
Chad R. BURMAN, Defendant–Appellant.

155
KA 18–00007

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 14, 2019

BRUCE R. BRYAN, SYRACUSE, FOR DEFENDANT–APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.

MEMORANDUM AND ORDER

173 A.D.3d 1727

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree ( Penal Law § 120.05 [12 ] ). The conviction arises out of a physical altercation that occurred when defendant and his friend encountered the victim in the parking lot of a tavern shortly after the victim interacted with the friend's girlfriend at the bar. At the time of the altercation, defendant was 31 years old and the victim was 69 years old. Defendant contends that County Court erred in determining that Penal Law § 120.05(12) did not require the People to prove that he knew that the victim was 65 years of age or older. We reject that contention.

It is fundamental that, "[w]hen presented with a question of statutory interpretation, [a court's] primary consideration is to ascertain and give effect to the intention of the Legislature" ( People v. Andujar, 30 N.Y.3d 160, 166, 66 N.Y.S.3d 151, 88 N.E.3d 309 [2017] [internal quotation marks omitted]; see People v. Roberts, 31 N.Y.3d 406, 418, 79 N.Y.S.3d 597, 104 N.E.3d 701 [2018] ). " ‘As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’ " ( People v. Golo, 26 N.Y.3d 358, 361, 23 N.Y.S.3d 110, 44 N.E.3d 185 [2015] ; see Roberts, 31 N.Y.3d at 418, 79 N.Y.S.3d 597, 104 N.E.3d 701 ). "The Legislature has instructed [the courts] that[,] in interpreting the Penal Law, the provisions must be read ‘according to the fair import of their terms to promote justice and effect the objects of the law’ " (

102 N.Y.S.3d 851

People v. Hedgeman, 70 N.Y.2d 533, 537, 523 N.Y.S.2d 46, 517 N.E.2d 858 [1987], quoting Penal Law § 5.00 ; see Roberts, 31 N.Y.3d at 418, 79 N.Y.S.3d 597, 104 N.E.3d 701 ). "As with other statutory provisions, those contained in the Penal Law are generally to be construed so as to give effect to their most natural and obvious meaning ... This is particularly important where the definition

173 A.D.3d 1728

of a crime is at issue, because courts must be scrupulous in insuring that penal responsibility is not ‘extended beyond the fair scope of the statutory mandate’ " ( Hedgeman, 70 N.Y.2d at 537, 523 N.Y.S.2d 46, 517 N.E.2d 858 ; see Roberts, 31 N.Y.3d at 418, 79 N.Y.S.3d 597, 104 N.E.3d 701 ). "Nevertheless, in construing a statute[,] courts ‘should consider the mischief sought to be remedied by the new legislation, and they should construe the act in question so as to suppress the evil and advance the remedy’ " ( Roberts, 31 N.Y.3d at 418–419, 79 N.Y.S.3d 597, 104 N.E.3d 701, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 95). Thus, in general, " ‘inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history’ " ( People v. Wallace, 31 N.Y.3d 503, 507, 80 N.Y.S.3d 658, 105 N.E.3d 1238 [2018] ). Indeed, the Court of Appeals has explained that, "[w]hile ‘the words of the statute are the best evidence of the Legislature's intent,’ legislative history may also be relevant as an aid to construction of the meaning of words" ( Andujar, 30 N.Y.3d at 166, 66 N.Y.S.3d 151, 88 N.E.3d 309 ; People v. Garson, 6 N.Y.3d 604, 611, 815 N.Y.S.2d 887, 848 N.E.2d 1264 [2006] ) and " ‘is not to be ignored, even if words be clear’ " ( Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000] ; see People v. Litto, 33 A.D.3d 625, 627–628, 822 N.Y.S.2d 130 [2d Dept. 2006], affd 8 N.Y.3d 692, 840 N.Y.S.2d 736, 872 N.E.2d 848 [2007] ).

Here, starting with the statutory text, Penal Law § 120.05(12) provides that a person is guilty of assault in the second degree when, "[w]ith intent to cause physical injury to a person who is [65] years of age or older, he or she causes such injury to such person, and the actor is more than [10] years younger than such person." Defendant contends that a plain reading of the statute establishes that the culpable mental state, i.e., "intent," applies to both the physical injury and age elements in the first clause because there are no commas in that clause; consequently, he asserts, the People must prove that the actor "knew" that the injured person was 65 years of age or older. Defendant's contention conflates the culpable mental states for acts done "intentionally" (§ 15.05[1] ) and those done "knowingly" (§ 15.05[2] ). If the Legislature had sought to apply a mens rea to the age element of Penal Law § 120.05(12), as advocated by defendant, it would have provided by direct expression and proper placement that the actor must intentionally cause physical injury to a person knowing, i.e., being aware (§ 15.05[2] ), that such person is 65 years of age or older (see People v. Mitchell, 77 N.Y.2d 624, 627, 569 N.Y.S.2d 393, 571 N.E.2d 701 [1991] ). Contrary to defendant's contention, however, nothing in the statutory text requires that the actor know the age of the injured person; rather, by providing that the defendant must act "[w]ith intent to cause physical injury to a person who is [65] years of age or older" and must cause "such injury to such person," the statute

173 A.D.3d 1729

simply requires that the person whom the actor intentionally injures be, as a matter of fact, 65 years of age or older ( § 120.05[12] [emphasis added] ). That reading is consistent with the pattern Criminal Jury Instructions, which provide that the People must prove beyond a reasonable doubt that, with respect to

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