People v. Godfrey
| Decision Date | 06 June 1988 |
| Citation | 140 Misc.2d 24,530 N.Y.S.2d 456 |
| Parties | The PEOPLE of the State of New York v. William GODFREY, Defendant. |
| Court | New York City Court |
Dist. Atty. Paul Gentile by Dennis H. Collins, New York City, for the people.
Mark E. Arroll, New York City, for defendant.
Procedural Background
The defendant was arraigned on July 18, 1987, on a non-hearsay felony complaint (7X035705) charging Assault in the third degree (P.L. 120.00); Reckless Endangerment in the first degree (P.L. 120.25); Reckless Endangerment in the second degree (P.L. 120.20); and on a non-hearsay misdemeanor complaint (7X035706) charging him with Leaving the Scene of an Incident without Reporting (Vehicle and Traffic Law 600).
On October 1, 1987, the charges of Assault in the third degree and Reckless Endangerment in the first degree were dismissed upon motion by the People. The charge of Leaving the Scene of an Incident was dismissed on motion of the defendant on January 22, 1988. The only remaining charge is Reckless Endangerment in the second degree (P.L. 120.20), Docket No. 7X035705.
Counsel previously moved to dismiss the accusatory instrument as defective (CPL 170.35) but this motion was denied, inter alia, because defendant did not give the People adequate notice of his motion. (See Decision and Order dated January 22, 1988).
The defendant again moves for dismissal of Reckless Endangerment, second degree, Docket No. 7X035705, for failure of the accusatory instrument as a matter of law to comply with CPL 100.30(1)(d), CPL 100.15(3), CPL 100.35, CPL 100.40, CPL 170.30, CPL 170.35 and CPL 170.45. The court will treat defendant's motion as a Motion to Reargue.
The motion is based upon the alleged failure of the People to state facts of an evidentiary nature in the accusatory instrument to establish all the elements of reckless endangerment in the second degree. (CPL 100.15). This motion is not untimely because it is premised on the court's lack of jurisdiction ( People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 ) and this nonwaivable jurisdictional prerequisite may be challenged at any time, even after a conviction. ( Cf. People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 841 ).
Deponent further states that at the aforementioned date, time and location the defendant did recklessly engage in conduct which created a substantial risk of serious physical injury to the deponent, in that the defendant did drive a NEW YORK CITY BUS, towards the deponent causing deponent to run backwards for about 15 feet which created a substantial risk of serious physical injury to the deponent. (Emphasis added ).
Reckless Endangerment in the second degree is defined in P.L. 120.20, which states that,
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.
P.L. 15.05 defines recklessly as follows:
3. 'Recklessly.' 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 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 thereof.
Conduct is defined in P.L. 15.00(4) as follows:
'Conduct' means an act or omission and its accompanying mental state.
Serious physical injury is defined in P.L. 10.00(10) as follows:
'(s)erious 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.
In the present case the complaint alleges that defendant "did recklessly engage in conduct which created a substantial risk of serious physical injury to the deponent, in that the defendant did drive a New York City Bus towards the deponent causing deponent to run backwards for about 15 feet which created a substantial risk of serious physical injury to the deponent." (Emphasis added ). This charge parrots the statute without giving any evidentiary facts necessary which support or tend to support all elements of the offense charged. People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987); People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986); People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 (1979). It is noteworthy that no factual allegation is made in the complaint regarding the speed of defendant's vehicle or the way in which the vehicle was driven, or that intrinsically the "movement" of the vehicle in and of itself created a "substantial risk" (P.L. 120.20) or that defendant by his conduct (P.L. 15.00) "disregard(ed) a substantial and unjustifiable risk." (P.L. 15.05).
There is no allegation that defendant's vehicle was anywhere but on a city street, there is no allegation as to the proximity of defendant's bus from the complainant or the distance the bus was from the complainant at the time the complainant allegedly ran back, there is no inference that can be drawn from the factual allegations that defendant consciously acted in any In the present case, the reckless endangerment statute may apply to instances where a vehicle is driven, but this court must look to a closely related statute, Reckless Driving VTL 1190, which the legislature apparently tailored for reckless endangerment involving a driven motor vehicle. Reckless Driving is defined in the Vehicle and Traffic Law 1190:
way to create a substantial risk of serious physical injury. (P.L. 120.20). The alleged "movement" of defendant's vehicle "toward the deponent causing deponent to run backwards" is just as susceptible to non-criminal activity as it may be to criminal activity and as such is simply insufficient as a matter of law to allege reckless endangerment in the second degree. (See, CPL 100.15(3)).
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 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 provision shall be guilty of a misdemeanor. (Emphasis added ).
This court is capable of envisioning many situations where a driven or undriven automobile may be used in a manner that can create a substantial risk of injury but in a situation where the People charge Reckless Endangerment by the way in which a vehicle is driven, "in that the defendant did drive a New York City Bus toward the deponent," the court will look to the case law interpreting both "reckless endangerment" and "reckless driving" for guidance to determine whether or not the accusatory instrument is sufficient. (Cf. P.L. 120.20 and VTL 1190). Both reckless endangerment in the second degree and reckless driving are misdemeanors, the former a class "A" misdemeanor and the later an unclassified misdemeanor. (Cf. P.L. 120.20 and VTL 1190).
Reckless Endangerment in the second degree
Both the Penal Law and the Vehicle and Traffic Law do not specify what particular acts are reckless but this question must be answered based upon the manner and circumstances of a vehicle's operation. ( Application of Martinis, 20 A.D.2d 79, 244 N.Y.S.2d 949 reversed on other grounds 15 N.Y.2d 240 ).
The court in the Matter of Mario Y., 75 A.D.2d 954, 428 N.Y.S.2d 71 held that shots fired into an empty house constituted a gross disregard of risk and a deviation of standard of conduct so as to constitute "reckless endangerment." Pushing a victim onto subway tracks when defendant was a frequent subway rider and aware of the consequences of his acts ( Matter of Louis A., 54 A.D.2d 712, 387 N.Y.S.2d 458 ), and veering off a road with an automobile intentionally trying to hit a pedestrian ( People v. Smith, 76 Misc.2d 867, 352 N.Y.S.2d 92 ) are all clear examples of reckless endangerment in the second degree.
In the present matter, there is no indication that a "movement" toward complainant deviated from a standard of...
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...otherwise subjects such other person to physical contact, or attempts or threatens to do the same." 4. See also People v. Godfrey, 140 Misc 2d 24,26, 530 N.Y.S.2d 456,457 [1988] wherein the court held the accusatory instrument charging the defendant with reckless endangerment in the second ......
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