People v. Washington

• Decision Date: 02 December 2016
• Citation: 54 Misc.3d 802,2016 N.Y. Slip Op. 26401,42 N.Y.S.3d 604
• Parties: The PEOPLE of the State of New York, v. Herbert WASHINGTON, Defendant.
• Court: New York Criminal Court

54 Misc.3d 802

42 N.Y.S.3d 604

2016 N.Y. Slip Op. 26401

The PEOPLE of the State of New York,

v.Herbert WASHINGTON, Defendant.

Criminal Court, City of New York, Kings County.

Dec. 2, 2016.

Eric Gonzalez, Acting District Attorney, Kings County by Assistant District Attorney Sandy Wong, Brooklyn, for the People.

Seymour W. James, Jr., Attorney–in–Chief, The Legal Aid Society by Nick Wanger, Esq., Brooklyn, for Defendant.

Zachary W. Carter, Corporation Counsel of the City of New York by Nicholas R. Ciappetta, Esq., New York, for the City of New York.

CURTIS J. FARBER, J.

Defendant is charged by superseding information, dated September 23, 2016, with the following nine offenses: (1) Administrative Code of the City of New York (“AC”) § 19–190(a) : Right of Way (traffic infraction); (2) AC § 19–190(b) : Right of Way / Causes Physical Injury (unclassified misdemeanor); (3) Penal Law (“PL”) § 220.03 : Criminal Possession of a Controlled Substance in the Seventh Degree (Class A misdemeanor); (4) Vehicle and Traffic Law (“VTL”) § 1146(a) : Drivers to Exercise Due Care (traffic infraction); (5) VTL § 1151(a) : Pedestrian's Right of Way in Crosswalk (traffic infraction); (6) VTL § 1227(1) : Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles (traffic infraction); (7) VTL § 509(1) : Unlicensed Operator (traffic infraction); (8) VTL § 511(1)(a) : Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (unclassified misdemeanor); and (9) VTL § 511(2)(a)(ii) : Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (unclassified misdemeanor).

Defendant moves for: (1) dismissal of the charge of AC § 19–190(b) upon the ground that it is unconstitutional and preempted by state law; and (2) for severance of the charge of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03).¹

By Responding Affirmation dated November 4, 2016, the People oppose defendant's motion. By Responding Affirmation dated October 24, 2016, the Corporation Counsel, appearing on behalf of the City of New York, opposes defendant's first requested basis for relief. The New York State Attorney General, by letter to the Court dated August 30, 2016, declined to intervene. (Executive Law § 71 ).

The Accusatory Instrument

The accusatory instrument alleges that on May 4, 2016, at 9:03 p.m., defendant, while operating a motor vehicle, made a left turn at the corner of Stanley and Van Siclen Avenues, in Brooklyn, striking a pedestrian who was walking in the crosswalk with the right of way. Hospital records revealed that the pedestrian suffered physical injuries, including a laceration to the head and a fracture to the cheek. At the time of the accident, the defendant was driving without a valid license, it having been previously revoked upon his conviction for driving while intoxicated. A half empty bottle of Hennesey alcohol was recovered from defendant's car, and a quantity of crack cocaine was recovered from defendant's pocket.²

AC § 19–190

Administrative Code § 19–190 was passed by the New York City Council (hereinafter the “Legislature”), in 2014, as part of an initiative aimed at reducing traffic-related injuries.

AC § 19–190, Right Of Way, reads 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 for 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 of 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 also be subject to a civil penalty of not more than two hundred fifty dollars which may 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.

I. Constitutionality of AC § 19–190(b)

Defendant contends that the Right of Way law violates a defendant's right to due process, under the United States and New York Constitutions (U.S. Const., amend. XIV, N.Y. Const., art. 1, § 6 ), by its use of a civil negligence standard within a criminal statute. (People v. Sanson, 52 Misc.3d 980, 33 N.Y.S.3d 883 [Crim.Ct., Queens County 2016] ). Defendant maintains the Legislature's intent that the crime not be one of strict liability is evidenced by its inclusion of the “due care” element. Defendant argues that subdivision (c), which states that a person is not guilty of the misdemeanor crime of Right of Way if the failure to yield, or the physical injury to a pedestrian, was not caused by the driver's failure to exercise “due care,” improperly looks to the state of mind of a reasonable man, rather than to the state of mind of the particular defendant. Defendant argues that by doing so, the statute violates the longstanding principle that when a crime requires criminal culpability, a defendant's wrongdoing must be shown to have been consciously committed. (Elonis v. United States, ––– U.S. ––––, 135 S.Ct. 2001, 192 L.Ed.2d 1 [2015] ).

Both the People and the Corporation Counsel agree with the defendant that AC § 19–190(b) is not a strict liability crime. Although they concede civil negligence is not one of the designated culpable mental states required for criminal liability under our Penal Law, they maintain that a civil negligence standard of “culpability” may be an element of a New York crime so long as it is contained in a state or local law outside our Penal Law. The People and the Corporation Counsel cite to cases from other jurisdictions which have authorized criminal liability based on civil negligence in support of their argument that the Right of Way law does not violate due process under either the United States or New York State constitutions.

In order to find a statute unconstitutional, the party seeking to ify it must overcome the presumption of constitutionality that favors legislative enactments. (People v. Tichenor, 89 N.Y.2d 769, 773, 658 N.Y.S.2d 233, 680 N.E.2d 606 [1997] ). To do so, the invalidity of the law must be demonstrated beyond a reasonable doubt. (Id. ). To analyze defendant's contention that the misdemeanor crime within AC § 19–190 is unconstitutional, this Court must first ascertain whether the failure to exercise “due care” set forth in subdivision (c) is an element of AC § 19–190(b), and if it is, whether the phrase “failure to exercise due care” denotes a civil negligence or a criminal negligence standard. If a criminal negligence standard is properly inferred, then the statute does not violate defendant's due process rights under the United States or New York Constitutions. On the other hand, if statutory construction mandates a finding that the “due care” standard is a civil negligence standard contained within a criminal statute, the question to be resolved then is whether such a statute can nonetheless pass constitutional muster.

A. Element v. Proviso

When ascertaining whether exclusionary language in a statute creates an exception that must be affirmatively plead and proven as an element of a crime, as opposed to a proviso that need not be plead or proven, the Court must first determine whether it is necessary to go outside the statute itself to find the legal standard underlying the referenced exclusion. The general rule is that if the defining statute contains the exception, the accusatory instrument must allege that the crime is not within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense. (People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 [1972] ).

In People v. Santana, 7 N.Y.3d 234, 818 N.Y.S.2d 842, 851 N.E.2d 1193 (2006), the Court of Appeals analyzed the language in the Criminal Contempt in the Second Degree (PL § 215.50) statute, which states that a person is guilty of contempt by intentional disobedience or resistance to the lawful process or other mandate of a court “except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law.” The Court reasoned that the exclusionary language was not an element of the crime because it required going outside of the Penal Law, to the Judiciary Law, which delineates multiple circumstances which constitute labor disputes. Santana concluded it was unreasonable to believe the Legislature intended the People to negate each of the alternatives specified in the Judiciary Law in every criminal contempt prosecution. On the other hand, where the exception is fully within the statute itself, as in the “home or place of business” exception to the crime of criminal possession of a loaded firearm (former PL § 265.02[4], now PL § 265.03[3] ), and reference to another statute is not required, the Court of Appeals has found that the Legislature intended the language to create an...