People v. Mobley

• Decision Date: 15 November 2016
• Citation: 40 N.Y.S.3d 426,144 A.D.3d 477,2016 N.Y. Slip Op. 07576
• Parties: The PEOPLE of the State of New York, Appellant, v. Tamira MOBLEY, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 477

40 N.Y.S.3d 426

2016 N.Y. Slip Op. 07576

The PEOPLE of the State of New York, Appellant,

v.Tamira MOBLEY, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Nov. 15, 2016.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for appellant.

Feldman and Feldman, Uniondale (Steven A. Feldman of counsel), for respondent.

FRIEDMAN, J.P., SAXE, MOSKOWITZ, GISCHE, KAHN, JJ.

Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about April 7, 2015, which granted defendant's motion to dismiss the first and fourth counts of the indictment charging her with assault in the first degree, unanimously affirmed.

Defendant, who does not hold a medical license, performed bodily “enhancement” procedures on two persons. The first procedure resulted in serious physical injury to the victim; the second procedure resulted in the victim's death. Defendant was charged with two counts of the unauthorized practice of medicine (Education Law § 6512[1] ) and two counts of first-degree assault (Penal Law § 120.10[4] [felony assault] ). The felony assault counts were predicated upon the theory that the victims' injuries were caused in the course of the commission of the felony of unauthorized practice of medicine. In addition, defendant was charged with one count of manslaughter in the second degree and one count of second-degree assault.

Supreme Court dismissed the two charges of felony assault, holding that the felony of the unauthorized practice of medicine is a strict liability crime with no mens rea element and, therefore, cannot serve as a predicate felony to support felony assault charges. Upon the People's appeal, we affirm.

An assault committed during the course of a felony that causes serious physical injury to the victim may be charged as felony assault under Penal Law § 120.10(4). The Court of Appeals has explained that, under the doctrine of constructive malice, the mens rea element of the assault charge is satisfied by the mens rea element of the predicate felony (see People v. Fonseca, 36 N.Y.2d 133, 136–137, 365 N.Y.S.2d 818, 325 N.E.2d 143 [1975] [discussing constructive malice in the context of the second-degree felony assault statute, Penal Law § 120.05(6) ]; see also People v. Berzups, 49 N.Y.2d 417, 427–428, 426 N.Y.S.2d 253, 402 N.E.2d 1155 [1980] [discussing constructive malice in the context of the felony murder statute, Penal Law § 125.25(3) ] ).

The People contend that the felony predicating felony assault need not have a mens rea element. In so arguing, they rely on Fonseca, in which the Court of Appeals held that a defendant who had injured victims while driving a stolen automobile could be charged with felony assault, with the felony of criminal possession of stolen property serving as the predicate felony. It is true that the Fonseca Court stated that any felony can theoretically serve as a predicate felony for felony assault charges and distinguished the felony murder statute from the felony assault statute on the ground that the former statute specifically enumerates the permissible predicate felonies. However, the Fonseca Court, applying the doctrine of constructive malice, held that the mens rea element of the predicate felony in that case (criminal possession of stolen property) provided the mens rea element for the felony assault charges ( 36 N.Y.2d at 136–137, 365 N.Y.S.2d 818, 325 N.E.2d 143 ).

Defendant contends that a strict liability crime cannot serve as a predicate felony to support felony assault charges, relying on People v. Snow, 138 A.D.2d 217, 530 N.Y.S.2d 913 (4th Dept.1988), affd. 74 N.Y.2d 671, 543 N.Y.S.2d 385, 541 N.E.2d 414 (1989), in which the Fourth Department held that the felony of driving while intoxicated could not serve as a predicate felony. The Snow Court explained that, because driving under the influence is a strict liability crime with...