People v. Khan

• Decision Date: 26 September 1985
• Docket Number: No. 83-2438,83-2438
• Parties: , 91 Ill.Dec. 544 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mohammed Sayeed KHAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1030

483 N.E.2d 1030

136 Ill.App.3d 754, 91 Ill.Dec. 544

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mohammed Sayeed KHAN, Defendant-Appellant.

No. 83-2438.

Appellate Court of Illinois First District, Fourth Division.

Sept. 26, 1985.

Alfred L. Levinson, Mitchell F. Asher, Beaubien & Asher, Palatine, for defendant-appellant.

Richard M. Daley, State's Atty. (Michael E. Shabat, Asst. State's Atty., of counsel), for plaintiff-appellee.

JIGANTI, Presiding Justice:

Following a bench trial, defendant Mohammed Sayeed Khan was convicted of criminal housing management (Ill.Rev.Stat.1981, ch. 38, par. 12-5.1) and reckless conduct (Ill.Rev.Stat.1981, ch. 38, par. 12-5) relating to his management of an apartment building located at 3266-70 North Clark Street and 907-909 West School Street in Chicago, Illinois. Defendant was sentenced to court supervision for a period of one year and fined $750. He appeals from his convictions of both criminal housing management and reckless conduct.

The evidence presented at trial established that during the pertinent time period defendant was the beneficiary of the land trust in which the subject premises were held. On May 19, 1982, defendant's building was inspected by a licensed architect and a building inspector of the City of Chicago. Both of these individuals found evidence that portions of the rear porch of the building were rotted, deteriorated, or missing, that the corridors of the building were littered with refrigerators, mattresses, and other items of debris, that in the walls of some corridors and apartments there were holes, broken plaster, sunken floors, broken entry doors, and water damage, and that there was a lack of window glass, hot water or toilets, in some of the apartments. The building was not provided with smoke detectors.

A tenant of the building also testified to similar conditions. She stated that the defendant often made his monthly collection of the rent himself from his tenants in their apartments in the building.

The defendant presented no evidence on his own behalf. The trial court found him guilty of criminal housing management and reckless conduct. He was sentenced to one year of court supervision and fined $750. Defendant appeals from his convictions.

Defendant first challenges the constitutionality of the criminal housing management statute (Ill.Rev.Stat.1981, ch. 38, par. 12-5.1) on the ground that it is void as unconstitutionally vague in violation of the due process clause of the fourteenth amendment (U.S. Const., amend. XIV) and the uniformity clause of the Illinois Constitution. (Ill. Const. 1970, art. 1, sec. 2.) The Act defines the offense of criminal housing management as follows (Ill.Rev.Stat.1981, ch. 38, par. 12-5.1(a)):

A person commits the offense of criminal housing management when, having personal management or control of residential real estate, whether as a legal or equitable owner of residential real estate or as a managing agent or otherwise, he knowingly permits by his gross carelessness or neglect the physical condition or facilities of the residential real estate to become or remain so deteriorated that the health or safety of any inhabitant is endangered.

A criminal statute violates the requirements of due process if it fails to give defendant notice of the action or conduct that is proscribed. (People ex rel. Difanis v. Barr (1980), 83 Ill.2d 191, 205, 46 Ill.Dec. 678, 414 N.E.2d 731; People v. Vandiver (1971), 51 Ill.2d 525, 530, 283 N.E.2d 681.) Thus the law must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and must provide explicit standards for police officers, judges and juries to prevent arbitrary and discriminatory enforcement. (Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222; Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill.2d 499, 513, 349 N.E.2d 61; People v. Tibbitts (1973), 56 Ill.2d 56, 59-60, 305 N.E.2d 152.) In short the statute must convey a "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." United States v. Petrillo (1947), 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877; see People v. Caffrey (1983), 97 Ill.2d 526, 530, 74 Ill.Dec. 30, 455 N.E.2d 60.

Defendant challenges the specificity of the criminal housing management provision on the ground that certain portions of the statute are so vague and general that they are insufficient to provide adequate warning of the conduct proscribed therein. Specifically, defendant claims that the terms "to become or remain deteriorated" and "dangerous and hazardous" are not susceptible of sufficient definition to give proper notice of the nature of the crime.

We are unpersuaded by defendant's contention that the statute is unconstitutionally vague in this regard. Due process does not require an impossible level of specificity in penal statutes (People v. Caffrey (1983), 97 Ill.2d 526, 530, 74 Ill.Dec. 30, 455 N.E.2d 60), nor does it compel a mechanical application of analysis. (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362.) Instead it calls for an interpretation of statutory language according to its ordinary and commonly understood meaning (People v. Schwartz (1976), 64 Ill.2d 275, 280, 1 Ill.Dec. 8, 356 N.E.2d 8, cert. denied (1977), 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545) in light of the conduct charged. (United States v. National Dairy Products Corp. (1963), 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561.) Consequently, neither the enumeration of specific types of deterioration, the time period of this deterioration, nor the manner or extent to which inhabitants might be endangered are necessary for purposes of constitutionality here. Due process does not require such precision or "laundry list" of conditions, since such a task would be impossible. (See People v. Caffrey (1983), 97 Ill.2d 526, 530, 74 Ill.Dec. 30, 455 N.E.2d 60; People v. Raby (1968), 40 Ill.2d 392, 396, 240 N.E.2d 595, cert. denied (1969), 393 U.S. 1083, 89 S.Ct. 867, 21 L.Ed.2d 776; People v. Davis (1982), 106 Ill.App.3d 260, 269, 62 Ill.Dec. 40, 435 N.E.2d 838; People v. Schoos (1973), 15 Ill.App.3d 964, 966-67, 305 N.E.2d 560, appeal dismissed (1974), 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 1135.) It is clear that the legislature enacted the subject statute in order to prevent persons who control residential property from permitting it to deteriorate such that it posed a danger to the health and safety of residents. Since the enumeration of all such conditions was impractical, the legislature reasonably chose sufficiently broad language to encompass all such situations therein.

Defendant next challenges the sufficiency of the statute on the ground that it defines the offense as one where the owner or manager of residential property "knowingly commits * * * gross negligence." Defendant claims that since negligence is defined inter alia as a "failure to be aware" (Ill.Rev.Stat.1981, ch. 38, par. 4-7), the statute is vague because one cannot "knowingly fail to be aware."

The terms "gross carelessness" and "gross neglect" or "gross negligence" are the historical predecessors of the term "recklessness" and have the same meanings. (See Committee Comments, Ill.Ann.Stat., ch. 38, par. 4-3, at 257-60 (Smith-Hurd 1972); see also People v. Adams (1919), 289 Ill. 339, 345-46, 124 N.E. 575.) Recklessness is defined as a "conscious disregard of a substantial and unjustifiable risk." (Ill.Rev.Stat.1981, ch. 38, par. 4-6 (emphasis added).) We decline to adopt defendant's interpretation that the criminal housing management statute is inherently contradictory in this regard. The provision simply attaches criminal liability where one is consciously aware of the risk of danger resulting from deteriorated conditions, and further disregards that risk.

Defendant also claims that his convictions should be reversed because the trial court erred in denying his motion to dismiss the reckless conduct charges. Defendant contends that the complaint was defective in that it charged him only with certain failures to act, whereas reckless conduct is committed where one performs an act which causes harm or endangers safety.

Section 12-5(a) of the Criminal Code provides that "a person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful." (Ill.Rev.Stat.1981, ch. 38, par. 12-5.) The Code's use of the term "act" includes "a failure or omission to take actions." (Ill.Rev.Stat.1981, ch. 38, par. 2-2.) Thus the crime of reckless conduct occurs where one omits or fails to take certain actions, and this omission or failure causes another harm or endangers safety. Accordingly, defendant's claim in this regard is without merit.

Defendant also argues that his convictions violate equal protection and double jeopardy. Initially defendant contends that his convictions were violative of equal protection principles because "some people who have 50 [building code] violations [are] brought down * * * for civil proceedings and * * * some people [are] * * * charged criminally." Defendant further claims that the trial court erred when it denied him an opportunity to cross-examine one of the State's witnesses regarding other prosecutions in Cook County on charges of criminal housing management.

The Illinois Supreme Court has observed that "[t]he State's Attorney is the representative of the People and has the responsibility of evaluating the evidence and other pertinent factors and determining what offense can properly and should properly be charged." (People v. Rhodes (1967), 38 Ill.2d 389, 396, 231 N.E.2d 400.) Consequently, selective prosecution is permissible as long as it...