People v. Centola

• Decision Date: 01 October 2018
• Docket Number: 18070399
• Parties: The People of the State of New York, Plaintiff, v. Michael J. Centola, Defendant.
• Court: New York Justice Court

2018 NY Slip Op 51369(U)

The People of the State of New York, Plaintiff, v. Michael J. Centola, Defendant.

18070399

New York Justice Court of Town of Webster, Monroe County

Decided on October 1, 2018

Appearances:

Sandra J. Doorley, District Attorney (Timothy Boucher, Assistant District Attorney), for the People.

Stephen J. Sercu, Esq., Attorney for Defendant

Thomas J. DiSalvo, J.

History of the Case.

Thomas J. DiSalvo, J.

The defendant was charged with reckless endangerment in the second degree in violation of PL § 120.20 relative to an incident alleged to have taken place on June 26, 2018 at 1:24 P.M. on Gravel Road in the Town of Webster. An appearance ticket was issued to the defendant, requiring him to appear for an arraignment on July 24, 2018. The arraignment was subsequently adjourned to August 1, 2018, wherein the defendant appeared with his attorney. Subsequent to the arraignment the defendant's attorney submitted omnibus motions, which among other things sought the dismissal of the information as being insufficient on its face, pursuant to PL § 170.35(1)(a), and in furtherance of justice, pursuant to PL § 170.40 (1).

Facts of the Case.

Sufficiency of the Information. The information is comprised of a complaint verified by the arresting officer E.J. Rynders and a supporting deposition verified by the alleged victim, to wit: Phillip L. Provenzano and a second supporting deposition verified by a witness. The complaint alleges that at the time in question Michael J. Centola "... did drive into Phillip J. Provenzano [hereinafter referred to as Provenzano] (03/01/80) with his 2016 white Dodge Ram, creating a substantial risk of serious physical injury." The supporting deposition described some initial contacts between the defendant and Provenzano, after the defendant was seen taking pictures of Provenzano's car. The supporting deposition went on to delineate how the defendant knocked down a business sign owned by Provenzano's aunt. It went on to indicate that Provenzano went outside and walked toward the truck that the defendant was driving to get the truck's license plate number. Provenzano stated in his deposition in pertinent part as follows:

"The male [referring to the defendant] then put the truck in gear and drove into me, first striking my elbow. I did not have time to get out of the way. He kept driving into me pushing into my left hip. The force of the collision made me stumble. He kept driving forward pushing me into Gravel Rd about 3 feet. At this point the male had enough room to turn left on Gravel Rd. He stopped at the intersection of Gravel Rd. I was able to walk up GravelRd enough to read and confirm the license plate. I told 911 the plate again. He then turned left onto Ridge Road and drove out of sight."

The second supporting deposition verified by a witness to the alleged incident, to wit: Craig S. Frisch, was also filed with the court. It stated in pertinent part as follows:

"...the male [referring to the defendant] walked by the door and kicked down a H & T Grooming sign. The male then went to a white truck. Phil went out to check on the sign. The male then drove the truck into Phil, pushing him into Gravel Rd. Phil was pushed by the truck until it turned left."

Legal Analysis.

Penal Law § 120.20 states "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 to another person." The question becomes as to whether the actions described in the accusatory instrument "establish, if true, every element of the offense charged and the defendant's commission thereof" as required by CPL § 100.40(1)( c). Defense counsel maintains that the information is insufficient because it fails to describe reckless conduct that would present a substantial risk of serious physical injury.

First of all, this begs the question as to what constitutes reckless behavior. Penal Law Section 15.05 (3) states as follows:

"A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such 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 in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."

Secondly, it must be determined if the accusatory instrument describes conduct that would present a substantial risk of serious physical injury. Penal Law Section 10.00 (10) states "'Serious physical injury' means 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."

There is little doubt that the alleged actions of the defendant relative to the operation of his truck could be described as ill-advised, unwise, and imprudent. Whether those actions rose to the level of reckless conduct that could have led to a serious physical injury is less than certain. "The conduct must actually create a substantial risk of serious physical injury; respondent's 'subjective intent is irrelevant'(People v. Davis, supra, at 36, 530 N.Y.S.2d 529, 526 N.E.2d 20)." (Matter of Kysean D.S., 285 AD2d 994,995, 728 N.Y.S.2d 323,324 [4th Dept. 2001]) Furthermore, "Reckless endangerment ... is defined in terms of the risk produced by defendant's conduct, not intent, and factual impossibility eliminates the risk essential to commission of the crime...." (People v. Davis, 72 NY2d 32,37, 530 N.Y.S.2d 529,532 [1988]) In fact, the actions of the defendant, as described, do not meet the "gross deviation from the standard of conduct" principle...