People v. Hossain

• Decision Date: 09 November 2015
• Parties: The PEOPLE of the State of New York, v. MD HOSSAIN, Defendant.
• Court: New York Criminal Court

50 Misc.3d 610
23 N.Y.S.3d 802

The PEOPLE of the State of New York,
v.
MD HOSSAIN, Defendant.

Criminal Court, City of New York, New York County.

Nov. 9, 2015.

23 N.Y.S.3d 803

Cynthia Fisher, New York City, for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (James Bergamo of counsel), for plaintiff.

ANN E. SCHERZER, J.

50 Misc.3d 611

Defendant challenges the constitutionality of Administrative Code (AC) § 19–190(b), a statute enacted on August 22, 2014 as part of Mayor DiBlasio's "Vision Zero" initiative.¹ Specifically, defendant

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contends that the statute must be stricken because it imposes criminal liability on motorists who cause physical injury to pedestrians by accident, and shifts the burden of proof to the motorist to prove that he was not at fault. The Court has reviewed the facts, the moving papers submitted by the People, the defendant and the Corporation Counsel's office, as well as relevant statutes and caselaw, and is unpersuaded by defendant's arguments. Accordingly, the motion to dismiss on constitutional grounds is

50 Misc.3d 612

denied. As detailed below, the Court also denies defendant's motion to dismiss the accusatory instrument as facially insufficient.

Background

The charges in this case stem from an incident that occurred on August 29, 2014 at the intersection of 79th Street and Madison Avenue in Manhattan. On November 26, 2014, defendant was arraigned in Criminal Court on an Information charging that he violated AC § 19–190(b) The Right of Way of Pedestrians and Bicyclists—Physical Injury, and with Failure of a Driver to Exercise Due Care—Serious Physical Injury, in violation of Vehicle and Traffic Law (VTL) § 1146(c)(1). The Information states that defendant drove a yellow taxi into the intersection and turned left without yielding to a pedestrian who was crossing the street in compliance with traffic signals. Defendant is alleged to have struck the pedestrian with his taxi and run over her body, thereby causing her death. The Information states that the incident was captured by video surveillance cameras and that defendant acknowledged driving the car that struck the pedestrian. Defendant's motion to dismiss the Information was filed on January 7, 2015.²

Motion to Dismiss Based on Constitutionality of Statute

Defendant challenges the constitutionality of AC § 19–190(b). More particularly, defendant argues that this new statute violates the Federal and State Constitutions by "undermin[ing] the very concept of innocent until proven guilty,' the cornerstone of our democratic criminal justice system" and by "purport[ing] to regulate alleged reckless driving' by imposing criminal penalties on a strict liability' basis." Defendant asserts that liability under this statute does not require "proof of intent nor even proof of negligence, or proof of the commission of any other traffic violations" and improperly

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"shifts the burden to the motorist who is presumed to have committed a misdemeanor, unless and until the motorist can show lack of fault or he had the right of way, or he can show the pedestrian was at fault" (emphasis in the original).

Statutory Language

AC § 19–190(a) provides that a motorist who fails to yield to a pedestrian or cyclist who has the right of way is guilty of a traffic infraction. The offense rises to the level of a misdemeanor if the motor vehicle makes contact with the pedestrian or cyclist and causes physical injury. AC § 19–

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190(b). The statute dictates that an accident not caused by the driver's failure to exercise due care does not violate this statute. AC § 19–190(c).

Discussion

A statute enacted by the legislature is presumed to be valid and one seeking to invalidate a statute bears the heavy burden of showing its unconstitutionality beyond a reasonable doubt. Matter of Travis S., 96 N.Y.2d 818, 820, 728 N.Y.S.2d 411, 752 N.E.2d 848 (2001) ; People v. Foley, 94 N.Y.2d 668, 677, 709 N.Y.S.2d 467, 731 N.E.2d 123 (2000)cert. denied, 531 U.S. 875, 121 S.Ct. 181, 148 L.Ed.2d 124 (2000) ; People v. Tichenor, 89 N.Y.2d 769, 773, 658 N.Y.S.2d 233, 680 N.E.2d 606 (1997) ; People v. Bright, 71 N.Y.2d 376, 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355 (1988). This heavy burden was met in People v. Bright, where the Court of Appeals struck down a statute that criminalized "loitering in a transportation facility." The statute required a suspect to provide a "satisfactory explanation" to the police for his presence at the facility, or face prosecution.³ Id. The Court found this aspect of the statute directly contradicted a citizen's right not to answer questions posed by law enforcement officers as guaranteed by the Fifth Amendment of the Federal and State Constitutions and accordingly invalidated the statute. Id., at 385–386, 526 N.Y.S.2d 66, 520 N.E.2d 1355.

At the same time, the fact that a statute touches upon a Constitutional right is not in itself enough to render it unconstitutional. Thus, in People v. Tichenor, the Court of Appeals upheld a disorderly conduct statute prohibiting abusive or obscene language uttered with the intent to create, or recklessly creating a risk of public inconvenience, annoyance or

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alarm. Tichenor, at 773, 658 N.Y.S.2d 233, 680 N.E.2d 606. The Court noted that the statute did not criminalize speech based on its content, but rather on the public reaction it may engender. Under those circumstances, the defendant in that case had not met the "initial burden" of demonstrating "the invalidity of the law ... beyond a...