People v. Green, 2015QN000650.

• Decision Date: 27 July 2016
• Docket Number: No. 2015QN000650.,2015QN000650.
• Citation: 41 N.Y.S.3d 720 (Table)
• Parties: The PEOPLE of the State of New York v. Curtis GREEN, Defendant.
• Court: New York Criminal Court

41 N.Y.S.3d 720 (Table)

The PEOPLE of the State of New York
v.
Curtis GREEN, Defendant.

No. 2015QN000650.

Criminal Court, Queens County.

July 27, 2016.

Harriet Wong, Law firm of Armienti, DeBellis, Guglielmo & Rhoden, Attorney for the defendant.

ADA Melissa Medilien, Attorney for the People.

ERNEST F. HART, J.

The defendant is charged with violating Administrative Code 19–190 [a] [b], (hereinafter "AC 19–190[a][b]").

Defendant moves (1) for Dismissal of the Information on Various Grounds and (2) Reservation of Rights.

The People filed a response to the defense motion. The defendant filed a reply and the People filed a sur-reply.

The defendant's omnibus motion is decided as follows:

DISMISSAL OF THE INFORMATION

Under AC 19–190[a], a driver of a motor vehicle who fails to yield to a pedestrian or bicyclist who has the right of way shall be guilty of a traffic infraction. Under AC 19–190[b], if the driver violates AC 19–190[a], and also makes contact with the pedestrian or bicyclist causing "physical injury," as that term is defined in the Penal Law, he or she shall be guilty of a misdemeanor. Under AC 19–190[c], however, a violation of this section will not be found if the failure to yield and/or physical injury was not caused by the driver's failure to exercise due care.

The information provides, in relevant part,

Deponent states that at the above mentioned date, time and place of occurrence, he responded to the scene of a motor vehicle accident.

Deponent further states that he viewed video surveillance of the above mentioned location which shows the complainant, Edward Cohen, standing on the sidewalk waiting to cross the above mentioned intersection.

Deponent further states that the above mentioned video surveillance depicts an MTA bus making a right turn at said intersection and hit the complainant when the complainant was already in the middle of said intersection.

Deponent further states that the defendant, Curtis E. Green, admitted in sum and substance that he had the green light and started to make a right turn onto Northern Boulevard when he heard screaming, looked in his side view mirrors and saw a crowd of people in the street behind him.

Deponent further states that the defendant further admitted is sum and substance that he stopped the bus and walked over to where the people were standing and that is when he saw the person lying in the street. He never felt hitting anyone.

Deponent further states that the complainant was removed to a local area hospital for injuries sustained in the above mentioned incident and was pronounced dead on November 6, 2014.

The defendant moves to dismiss the information, arguing first that AC 19–190 [a][b] is unconstitutionally vague and violates his right to due process. Specifically, the defendant asserts that the term "due care" contained in the statute is vague and would be applied on an ad hoc basis with no uniformity. The People counter that the term "due care" utilized in AC 19–190 is not unconstitutionally vague on its face or as applied to him and is "sufficiently definite to give persons of ordinary intelligence, and law enforcement officials, adequate notice of the conduct that is forbidden by the provision." (People's Response p. 16). The People note that the failure to exercise "due care" is the culpable mental state for a violation of VTL 1146 and is a term that has been long recognized by the courts historically in both in civil and criminal law.

The court finds no merit to the defendant's contention. Legislative enactments are presumptively constitutional. See People v. Knox, 12 N.Y.3d 60, 69, 875 N.Y.S.2d 828, 903 N.E.2d 1149 (2009). See also People v. Novie, 41 Misc.3d 63, 976 N.Y.S.2d 636 (App. Term 9th & 10th Jud. Dists.2013). The party contending otherwise carries the burden of demonstrating that the "statute is so unrelated to the achievement of any combination of legitimate purposes as to be irrational. (citation omitted)." Knox at 69, 875 N.Y.S.2d 828, 903 N.E.2d 1149. Further, that party must overcome the presumption of validity by proof beyond a reasonable doubt. (citation omitted)." People v. Gallagher, 50 Misc.3d 317, 18 N.Y.S.3d 280 (Bronx Co.Crim. Ct.2015). "Violations of either subdivision (a) or (b) [under AC 19–190] require a driver's failure to exercise due care. " Id. (emphasis added). Such term possesses "a meaning long recognized in law and life (citation omitted),'¹ [and] provides defendants with adequate notice of the conduct prohibited and the police with "clear guidance for enforcement." Id. Indeed, as noted by the People in their response, the "due care" standard is also applied under VTL 1146.² The court finds that the defendant has failed to overcome the presumption of validity and has not adequately demonstrated that applying such a standard would result in "arbitrary or discriminatory enforcement," by the police under the standard set forth above. Id.

The defendant also contends that the information should be dismissed because AC 19–190[a][b], a local law which applies to the New York City area, is preempted by and is inconsistent with the Public Authorities Law, the general state law, which governs proceedings related to the Mass Transit Authority (hereinafter "MTA"). Public Authorities Law...