People v. Salamon

• Decision Date: 02 November 2016
• Citation: 44 N.Y.S.3d 675,2016 N.Y. Slip Op. 26376,54 Misc.3d 960
• Parties: The PEOPLE of the State of New York v. Yehuda SALAMON, Defendant.
• Court: New York Criminal Court

54 Misc.3d 960

44 N.Y.S.3d 675

2016 N.Y. Slip Op. 26376

The PEOPLE of the State of New York

v.Yehuda SALAMON, Defendant.

Criminal Court, City of New York, Kings County.

Nov. 2, 2016.

Harvey A. Herbert, Attorney for Defendant.

John C. Carroll, ADA, Attorney for Kings County DA's office.

Nicholas R. Ciappetta, Esq., Attorney for Corporation Counsel.

JOY CAMPANELLI, J.

By motion dated April 25, 2016 Defendant Yehuda Salamon moves pursuant to CPL 170.30(a) and CPL 170.35(a) for an order dismissing the complaint as facially insufficient, and dismissing the charge of AC § 19–190(b) and declaring said section unconstitutional pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, the New York State Constitution, and in violation of section 15.15 of the Penal Code¹ .

People submitted opposition papers dated June 2, 2016, and Corporation Counsel filed and served opposition papers on June 14, 2016. The defendant filed his reply affirmation on or about June 27, 2016.

On July 6, 2016, the defendant filed and served a supplemental affirmation wherein he annexed a recent decision² from Queens County Criminal Court addressing the issue of the constitutionality of Administrative Code § 19–190. The People and Corporation Counsel were granted the opportunity to submit supplemental opposition papers (filed on August 15, 2016 and August 26, 2016 respectively) addressing the recent decision of the Queens County Criminal Court.

In response to the defendant's initial motion to dismiss dated June 17, 2015, the People filed and served opposition papers dated August 20, 2015 which annexed a second superseding information, alleging that the defendant violated VTL § 1146(a), NYC AC § 19–190(a), both traffic infractions, and NYC AC § 19–190(b) an unclassified misdemeanor, and stating as follows:

on or about January 05, 2015 at approximately 10:14 p.m. at 12 Avenue and 40th Street, in Kings County, State of New York the defendant:

Failed to yield to a pedestrian while driving a motor vehicle when the pedestrian had the right of way, struck said pedestrian with the motor vehicle thereby causing physical injury to the pedestrian, and the failure to yield and the physical injury to the pedestrian were caused by defendant's failure to exercise due care; operated a motor vehicle without exercising due care to avoid colliding with any bicyclist, pedestrian or domestic animal upon a roadway.

Deponent (Police Officer Listian Rustem) states that shortly after the above time, deponent arrived at the above location and observed an elderly woman standing on the sidewalk being evacuated by paramedics.

Deponent further states that shortly after the above time, and at the above location, deponent observed an elderly man in close proximity to the elderly woman, observed that the elderly man was strapped to a stretcher and was being placed into an ambulance by paramedics, and observed that the elderly man was unconscious in that the elderly man's eyes were closed and the elderly man was not moving.

Deponent is further informed by defendant's own statements to deponent that, in sum and substance, at the above time and location the defendant had the green light and was making a left turn from 12th Avenue onto 40th Street when he struck the above-mentioned elderly man and elderly woman crossing the street as the defendant made the left turn onto 40th Street.

Deponent further states that shortly after the above time, and at the above location he observed that the traffic lights and pedestrian traffic devices at the intersection to be working properly.

(that) when the traffic light turned green for vehicular traffic traveling north or south on 12th Avenue, the pedestrian traffic light displayed a walk signal to pedestrians crossing 40th Street while walking north or south on 12th Avenue.

that Deponent viewed video surveillance of the above location, and deponent observed the above mentioned sport utility vehicle make a left turn at a green light, while, at the same time, two pedestrians were crossing the street on a marked pedestrian crosswalk with the walk signal in their favor, and that the sport utility vehicle struck both pedestrians.

AC § 19–190 reads in pertinent part as follows:

a. Except as provided in subdivision b of this section, any driver of a motor vehicle who fails to yield to a pedestrian or person riding a bicycle when such pedestrian or person has the right of way shall be guilty of a traffic infraction, which shall be punishable by a fine of not more than fifty dollars or imprisonment of not more than fifteen days or both such fine and imprisonment. In addition to or as an alternative to such penalty, such driver shall be subject to a civil penalty of not more than one hundred dollars which may be recovered in a proceeding before the environmental control board. For purposes of this section, "motor vehicle" shall have the same meaning as in section one hundred twenty-five of the vehicle and traffic law.

b. Except as provided in subdivision c of this section, any driver of a motor vehicle who violates subdivision a of this section and whose motor vehicle causes contact with a pedestrian or person riding a bicycle and thereby causes physical injury, shall be guilty of a misdemeanor, which shall be punishable by a fine of not more than two hundred fifty dollars, or imprisonment for not more than thirty days or both such fine and imprisonment. In addition to or as an alternative to such penalty, such driver shall be subject to a civil penalty of not more than two hundred fifty dollars which many be recovered in a proceeding before the environmental control board. For purposes of this section, "physical injury" shall have the same meaning as in section 10.00 of the penal law.

c. It shall not be a violation of this section if the failure to yield and/or physical injury was not caused by the driver's failure to exercise due care.

Defendant argues that the statute (AC § 19–190[b] ) is vague as to the conduct prohibited and as to the proper defense and standard of proof that the defendant may interpose. Furthermore, the statute fails to identify (or spell out) a necessary mens rea required for criminal liability. Because AC § 19–190(b) does not impose strict liability in accordance with Penal Law § 15.15, it should be defined as a crime of mental culpability, and requires identification with one of the enumerated mens rea elements—acts which are intentionally, knowingly, recklessly or criminally negligent. AC § 19–190(b) also fails to give a person of ordinary intelligence a specific criminal element or conduct that is prohibited. Defendant's counsel argues that subsection "c" of AC § 19–190 is unclear and vague as to whether it is an affirmative defense which must be proved by the defendant by a preponderance of the evidence or it is an ordinary defense to be disproved beyond a reasonable doubt by the People. Furthermore, the statute does not include a statement of mens rea as required by Penal Law §§ 15. 05, 15.10 and 15.15. As such, the "due care" negligence standard in AC § 19–190(b) and (c) does not constitute the requisite mens rea.

In opposition, the People argue that the AC § 19–190(b) sufficiently informs the defendant of the prohibited conduct in that the driver of the vehicle is prohibited from hitting and causing injury to a pedestrian or bicyclist with a right of way. The criminality or mens rea is the lack of due care which gives a person of ordinary intelligence and law enforcement adequate notice of conduct that is forbidden, citing People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1, 797 N.E.2d 28 (2003).

People further argue that PL § 15.05 is strictly limited to the Penal Law and does not apply to an offense enacted by the NYS Legislature such as the VTL, nor to AC § 19–190 which was enacted by the N.Y. City Council. The Court discounts this argument because it plainly stands for the unsubstantiated and dubious proposition that a legislative body enacting a criminal law could avoid the mandated definitions of culpable mental states under Penal Law Article 15 by enacting a criminal law outside the Penal Law and inside other municipal and state laws which deal with specific crimes. See, for example, various NYC and State Laws (such as Agriculture and Markets Law, Alcoholic Beverage Control Law, Vehicle and Traffic Law, NYC Administrative Code, etc.) dealing with numerous criminal acts, all of which would not be subject to culpable mental states under this line of reasoning.

When a defendant challenges the constitutionality of a statute as vague, the court must undertake a two part test. Firstly, the court must determine whether the statute "is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute " (Stuart, at 420, 765 N.Y.S.2d 1, 797 N.E.2d 28, citing People v. Nelson, 69 N.Y.2d 302, 307, 514 N.Y.S.2d 197, 506 N.E.2d 907 [1987] ) (our emphasis). Secondly, the court must determine whether the enactment provides officials with clear standards of enforcement (Stuart, at 420, 765 N.Y.S.2d 1, 797 N.E.2d 28 ).

These two prongs are closely linked. If a statute does not give an offender adequate notice of what is prohibited, then law enforcement will be similarly disadvantaged and cannot be guided by the language of the statute, which could then lead to arbitrary enforcement.

Defendant may challenge the constitutionality of a statute either facially under all circumstances or as applied only to the defendant. An "as applied" challenge requires the court to consider whether a statute can be constitutionally applied to the defendant under the facts of his case within the parameters of relevant sections of the federal and/or state constitutions.

A facial challenge requires the court to examine the words of the statute without reference to the defendant's conduct (Stuart, above ). Legislative enactments, including local municipal ordinances (Turner v. Mun. Code...