People v. Vercelletto

• Decision Date: 25 March 1987
• Citation: 514 N.Y.S.2d 177,135 Misc.2d 40
• Parties: The PEOPLE of the State of New York, v. David G. VERCELLETTO, Defendant.
• Court: New York County Court

Page 177

514 N.Y.S.2d 177

135 Misc.2d 40

The PEOPLE of the State of New York, v. David G. VERCELLETTO, Defendant.

Ulster County Court.

March 25, 1987.

Michael Kavanagh, Ulster Co. Dist. Atty., Kingston (Donald Williams, of counsel), for the People.

Pretsch & Mainetti, Kingston (Victor Mainetti, of counsel), for defendant.

JOSEPH J. TRAFICANTI, Jr., Acting Judge.

The defendant herein has been indicted by the Grand Jury of the County of Ulster in a six count indictment. First and Second Counts of the Indictment accuse the defendant, David Vercelletto, with Vehicular Manslaughter in the Second Degree in violation of Penal Law § 125.12. Each of the first two counts accuses the defendant of criminal negligence causing the death of Samantha Banks by operating a motor vehicle while intoxicated. Samantha Banks at the time of the incident was an unborn child being carried by her mother, then seven months pregnant. The child was stillborn, the People claim, due to the automobile accident caused by the defendant.

The Third and Fourth Counts of the Indictment accuse the defendant of the crime of Vehicular Assault in the Second Degree, a violation of Penal Law § 120.03. The theory of these two counts is that the defendant caused a serious physical injury to Katherine Banks, the mother of the unborn child who was stillborn, subsequent to the accident.

The Fifth and Sixth Counts of the Indictment alleged a violation of New York State Motor Vehicle and Traffic Law § 1192(2) and (3), Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs.

By Notice of Motion the defendant moves to dismiss the first four counts of the indictment on the grounds that as a matter of law the actions of the defendant alleged by the People do not constitute the crimes charged.

Ancillary relief sought is suppression of certain statements made by the defendant; suppression of certain physical evidence and a hearing pursuant to People v. Sandoval. As to each ancillary relief sought, a hearing is required and is hereby ordered. As to the motion to dismiss the First and Second Counts of the Indictment alleging the crime of Vehicular Manslaughter in the Second Degree, the motion is granted and those parts of the Indictment are dismissed. As to the Third and Fourth Counts of the Indictment alleging Vehicular Assault in the Second Degree, that branch of the defendant's motion is denied.

I. VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE

(First and Second Counts)

The United States Supreme Court has held that a fetus after the first trimester is conclusively presumed to be viable and capable of meaningful life outside the mother's womb. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. The Court concluded accordingly that individual states may regulate and criminalize conduct which causes the death of an unborn child during that period.

The fetus in this case, being seven months in gestation, was well beyond the first trimester. The question, however, is whether or not New York State has criminalized the conduct alleged against this defendant relative to this seven month stillborn fetus. The heart of the issue herein is not whether this seven month fetus, Samantha Banks, was a person in any philosophical, religious or even medical sense; but whether she was a person in a legal sense under the meaning of the New York State Penal Law § 125.12, which provides the elements for the crime of Vehicular Manslaughter in the Second Degree.

In resolving this matter the Court is constrained to apply and interpret the elements of a crime from the clear meaning set forth within the penal statute and, if an ambiguity is apparent, to ferret out the legislative intent by various rules of construction. When a court is concerned with a statute that is clearly penal in nature, it must be narrowly construed. To do otherwise will not withstand judicial scrutiny nor pass constitutional muster. From the earliest days of statehood, New York has followed a long tradition of strictly construing penal statutes. A criminal offense should not be created by an uncertain or doubtful construction. The rule of strict construction of criminal statutes is essential to guard against the creation of criminal offenses outside the contemplation of the legislature under the guise of "judicial construction". Of course, Common Law rules may be and often are used as an aid to construction or interpretation. McKinney's Consolidated Laws of N.Y. Book 1, Statutes, §§ 73 and 271-276 and cases cited therein.

An examination of the New York statutes applicable herein compels a focus on Penal Law § 125.00, § 125.05(1), § 125.10 and § 125.12. Penal Law § 125.00 is a general section which gives a generic definition of homicide. The scheme of the statute provides definitions of various types of homicide in later sections including murder, manslaughter, abortion and criminally negligent homicide. The applicable penal law provisions state the following:

§ 125.00. Homicide defined.

Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.

§ 125.05. Homicide, abortion and related offenses; definitions of terms.

The following definitions are applicable to this article:

1. "Person" when referring to a victim, means a human being who has been born and is alive. (emphasis supplied)

§ 125.10. Criminally negligent homicide.

A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person..... (emphasis supplied)

§ 125.12. Vehicular manslaughter in the second degree.

A person is guilty of vehicular manslaughter in the second degree when he:

(1) commits the crime of criminally negligent homicide as defined in section 125.10, and

(2) causes the death of such other person by operation of a vehicle in violation of subdivision two, three or four of section eleven hundred ninety-two of the vehicle and traffic law.... (emphasis supplied)

While at first blush it may appear by a reading of Penal Law § 125.00, Homicide defined, that "person" was intended for the purposes of the entire article to include an unborn child more than twenty four weeks in gestation, a further reading of all the statutes in the article (Penal Law §§ 125.05, 125.10, 125.12, 125.13, 125.15, 125.20, 125.25, 125.27, 125.40, 125.45, 125.50, 125.55) compels a different conclusion. As so ably pointed out by Judge Churde in People v. Joseph, 130 Misc.2d 377, 496 N.Y.S.2d 328, a double definition of the victim of homicides was necessary since the homicide article included the offenses prohibiting medically unjustifiable abortion after twenty four weeks of gestation. In every case other than illegal abortion, the Legislature has ordained that the people are required to prove that the victim is a "person" within the meaning stated in Penal Law § 125.05(1) i.e. ... "a human being who has been born and is alive ...." (emphasis supplied). Viewing the facts herein most favorable to the People, it is a burden that as a matter of law they cannot sustain in this case.

Confronted with similar statutes in criminal cases an overwhelming number of sister-states have likewise taken the position that it is not within judicial province, under the guise of interpretation, to encompass within the various statutory definitions of "person" an unborn fetus unless specifically included by the legislature. Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987); Keeler v. Superior Court, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617; State v. Gonzalez, 467 So.2d 723 (Fla.App.1985); People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203 (1980); Hollis v. Commonwealth, 652 S.W.2d 61 (Ky.1983); State v. Brown, 378 So.2d 916 (La.1979); State v. Guthrie, 97 Mich.App. 226, 293 N.W.2d 775 (1980) (see State v. Anonymous, 40 Conn.Supp. 498, 516 A.2d 156 for further citations) ¹. Two states have reached a contrary result. Both Massachusetts and South Carolina are so-called common law states. The courts in both states took the position that, based on medical technology, they could change the law; and they both based their decisions in part on developments in each state in civil law tort liability involving a fetal death. Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984); State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984). Even in the two minority jurisdictions, due process considerations dictated that the interpretations enlarging common law standards could not be applied retroactively but could only be applied prospectively. While New York civil law recognizes that an infant injured in utero by the tort of another should when born alive be allowed to sue (Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691), the death of an unborn child will not support an action for wrongful death. Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901.

The majority of states confronted with this issue have done no more than to recognize the Common Law rules as codified or modified by their own state's statutes. At Common Law it was clear that an unborn fetus, viable or otherwise, could not be the subject of homicide. 3 Coke, Institutes 58 (1648) 40 C.J.S., Homicide § 2(b) p. 824; 40 A.L.R.3d 444. It appears that the New York State Legislature in the 1965 revisions of the Penal Law adopted the Common Law rule by defining "person" as "a human being who has been born and is alive". P.L. § 125.05(1) Despite the following twenty-two years of development in science and medical technology there has been no revision of the definition.

The People attack as archaic the current requirement that a fetus must be born alive to be a victim of the crime charged here in light of scientific and medical knowledge...