People v. Tocco

• Decision Date: 05 February 1988
• Citation: 525 N.Y.S.2d 137,138 Misc.2d 510
• Parties: The PEOPLE of the State of New York v. Salvatore TOCCO, Defendant.
• Court: New York Supreme Court

Page 137

525 N.Y.S.2d 137

138 Misc.2d 510

The PEOPLE of the State of New York v. Salvatore TOCCO, Defendant.

Supreme Court, Bronx County Part 45.

Feb. 5, 1988.

Paul Gentile, Dist. Atty. by Donald H. Levin, Asst. Dist. Atty., for people.

Robert I. Gardner, for defendant.

DOMINIC R. MASSARO, Justice.

The novel question presented here is whether imbibing by a chronic alcoholic can rise to the level of misconduct making for recklessness per se. The Court, absent any scientific standard of proof to the contrary, is disinclined to equate alcoholism with involuntariness; notwithstanding, it seeks some limiting principle whereby application of the cruel and unusual punishment prohibition does not result in exoneration of the chronic alcoholic for criminal conduct.

The defendant here is charged with arson in the second degree (Penal Law, Sec. 150.15) and reckless endangerment in the first degree (Penal Law, Sec. 120.25). More specifically, he is alleged to have set fire to the apartment in which he resided with his ex-wife and children.

Tried before the Court, without jury, it is clear from the evidence adduced that the People have proved beyond a reasonable doubt that the defendant did, in fact, set two separate fires in the apartment. This following an argument earlier in the day with his former spouse, threatening her with harm. The evidence further establishes that the defendant is an alcoholic of classic dimension, caught in the vortex of a severe drinking problem that has determined his behavior, despite the constancy and regularity of violent consequences over which he has no control, for upwards of fifteen years. Albeit sincere efforts to which he testified, the defendant has failed "to reclimb the slope." ¹ The evidence likewise is conclusive that he was severely intoxicated on April 24, 1986, at the time that the premises were set ablaze.

Indeed, the defense admits the act. It contends that the defendant, who testified that he did not remember his arrest on the occasion for which he was being tried by reason of his intoxicated state, was incapable of formulating the requisite intent necessary to subject him to liability for the crime of arson in the second degree. While not conceding this point, the People urge the Court to consider in its deliberations the lesser included offense of reckless arson, that is, arson in the fourth degree (Penal Law, Sec. 150.05).

Did the defendant's severe intoxication on the date in question negate the intent element required to substantiate the crime of arson in the second degree? And, if not, may he still be held liable for the lesser included offense?

It is estimated that ten million Americans suffer from some form of alcoholism (U.S. Dept. of Health, Education and Welfare, The Alcohol, Drug Abuse, and Mental Health National Data Book 15 [1980] ).

In New York, there are 1.4 million alcoholics, 9.3% of the State's population. The scourge of highway deaths caused by intoxicated drivers distracts from other reflections of the serious depths the problem presents, including the fact that one-third of all general hospital admissions are related to the misuse of alcohol and one-quarter of all suicides--approximately thirty times that of the general population--involve alcoholic abusers (Ten Bensel, Robert W., M.D. et al., Lecture Outline: "Medical/Expert/Evidentiary Issues," New York State Judicial Seminar, Rochester, New York, July, 1987). These statistics only begin to illustrate the scope of the problem of alcoholism facing our citizenry.

Alcoholism is generally defined as the chronic, pathological use of alcohol. There is a thirty year consensus in the medical profession that such pathological use of alcohol is a disease. The American Medical Association first described the disease as appropriate for medical treatment in 1956, stating that:

Alcoholism is an illness characterized by preoccupation with alcohol and loss of control over its consumption such as to lead usually to intoxication if drinking is begun; by chronicity; by progression; and by tendency toward relapse. It is typically associated with physical disability and impaired emotional, occupational and/or social adjustments as a direct consequence of persistent and excessive use (American Medical Association, Manual on Alcoholism 6 [1957] ).

Even were our courts inclined to accept the disease thesis advanced by the medical profession, ignorance largely prevails as to its etiology (see, generally, Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 [1968] ).

Whatever the factors of alcoholism, the characteristic lack of control over drinking and the resulting dysfunction beyond the control of the alcoholic individual gives rise to issues both philosophical and legal, clearly of major social and judicial concern (see, generally, Task Force Report to Governor Mario M. Cuomo, Governor's Task Force on Alcoholism Treatment in Criminal Justice [October, 1986] ). Nor has legislative initiative been wanting (see, generally, Report of Senate Committee on Alcoholism and Drug Abuse, Guy J. Velella, Chairman [1987] ).

Intoxication as a Defense

At common law, intoxication was never a defense to criminal misconduct ( People v. Koerber, 244 N.Y. 147, 155 N.E. 79 [1926] ). Instead, it was viewed as an aggravating circumstance which heightened moral culpability ( People v. Koerber, supra, at 151-152, 155 N.E. 79). "The common law courts viewed the decision to drink to excess with its attendant risks to self and others, as an independent culpable act" ( People v. Register, 60 N.Y.2d 270, 280, 469 N.Y.S.2d 599, 457 N.E.2d 704 [1983] ). Later cases allowed evidence of intoxication to be introduced for limited purposes, such as to negative proof that the defendant possessed the physical capacity to commit the crime ( People v. Register, supra, at 280, 469 N.Y.S.2d 599, 457 N.E.2d 704).

Under the present state of the law, voluntary intoxication is not a defense to a criminal charge; however, in crimes that have specific intent as an essential element, voluntary intoxication has been found to negative such intent, thereby rendering the defendant not guilty of the crime charged ( People v. Westergard, 113 A.D.2d 640, 497 N.Y.S.2d 65 [2nd Dept., 1985] ). The "intoxication defense" has been codified in New York as Penal Law, Section 15.25; it provides: "Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged."

The Penal Law does not define the term "element." "However, it does set forth what the 'elements' of an offense are and identifies them, as does the common law, as a culpable mental state (mens rea ) and a voluntary act (actus reus ) (Penal Law, Sec. 15.10)" ( People v. Register, supra, 60 N.Y.2d at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704).

And while intoxication may negative the mens rea in a crime requiring specific intent, it may not negative the lower culpable mental state required in crimes of recklessness (Penal Law, Sec. 15.05[3] ).

A "specific intent" crime is one which requires more than the mere intentional doing of an act. It requires, in addition, that the actor have the accompanying state of mind whereby he intends that certain further consequences flow from his act. A "general intent" crime, on the other hand, penalizes, in itself, the intentional doing of a proscribed act (Intoxication as a Criminal Defense, 55 Columbia L.R. 1210 [1955] ).

Crimes in which the requisite mens rea is one of recklessness are classified as "general intent" crimes.

In New York, recklessness is defined in Penal Law, Section 15.05(3), which states, in pertinent part: "A person acts recklessly with respect to a circumstance described by statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists."

Since recklessness requires awareness of the risk, it would seem reasonable that lack of awareness due to voluntary intoxication would negative the mens rea required in any crime of recklessness. "[T]here is some authority for the proposition that, where awareness is required for criminal liability, lack of awareness because of intoxication negatives the crime; that so long as [the defendant] is actually unaware of the risk it makes no difference how he came to be unaware" (LaFave & Scott, Criminal Law, 2nd Ed. HB, Sec. 4.10[c] ). However, the majority of cases in the United States create a special rule relating to intoxication, thereby not allowing an intoxicated individual to avail himself of the defense in crimes of recklessness (LaFave & Scott, Criminal Law, 2nd Ed. HB, supra ). The New York codification is found at Penal Law, Section 15.05(3), which states, in pertinent part: "A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."

Reckless Endangerment in the First Degree

"A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person" (Penal Law, Sec. 120.25).

Upon analysis, the required culpable mental state, the mens rea, that gives rise to liability for this crime is one of recklessness. The actus reus required is engaging in conduct which creates a grave risk of death to another person. Nonetheless, the statute also requires "circumstances evincing a depraved indifference to human life." The question therefore arises whether this language creates a required mental state more culpable than mere recklessness--one which may be negatived by proof of intoxication. This issue was considered in People v. Register, supra, at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704, a case...