People v Afzal

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[*1] People v Afzal 2009 NY Slip Op 51291(U) [24 Misc 3d 1206(A)] Decided on June 23, 2009 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 23, 2009
Supreme Court, New York County

The People of the State of New York

against

Hassan Afzal, Defendant



3736-07



Robert Morgenthau, District Attorney, New York (Kerry O'Connell and Penelope Brady of counsel), for the People.

Treyvus & Konoski, P.C., New York City (Bryan Konoski), for defendant.

Daniel P. Conviser, J.



Defendant is charged with one count of Criminally Negligent Homicide, three counts of Assault in the Second Degree and two counts of Offering a False Instrument for Filing in the First Degree. The charges arise from an accident in a taxicab driven by the Defendant on West Street (also commonly referred to as the West Side Highway) in the vicinity of West Houston Street in Manhattan in 2006. In the accident, one of the passengers in Defendant's taxi, Danielle Ricco, either exited or was ejected from the cab and was then struck and killed by a second taxi. Three other passengers in the taxi suffered significant injuries while still in the cab when the vehicle struck a building.

The People allege that the accident was caused by a seizure the Defendant suffered. It is also alleged that the Defendant had a history of seizures and fraudulently failed to disclose this information in applications for a taxi license he filed. Based on this seizure history, his alleged deception in obtaining his taxi license, the fact that he had stopped taking seizure medications at the time of the accident and the fact that a seizure allegedly caused the accident, the People allege that the Defendant caused Danielle Ricco's death with criminal negligence [FN1]. Criminally Negligent Homicide is a Class E non-violent felony punishable by a maximum indeterminate [*2]sentence for a first felony offender, like Defendant here, of 1 1/3 to 4 years in state prison. Defendant is also charged with three counts of Assault in the Second Degree, a Class D violent felony, for each of the three injured victims who were present in the taxi. Defendant contends that he did not, in fact, suffer a seizure at the time of the accident. He will also apparently contend at trial that he did not, in any respect, act with criminal negligence during the accident and thus cannot be held criminally responsible for the death or injuries which occurred.

Defendant moves to dismiss the three counts of Assault in the Second Degree which are charged in the indictment. The Defendant acknowledges that he would not likely be entitled to dismiss before trial charges which alleged that the Defendant had committed the crime of Assault in the Third Degree with respect to the three injured victims pursuant to Penal Law § 120.00 (3), a Class A misdemeanor, on the facts alleged here. That statute provides that a defendant is guilty of this crime when "[w]ith criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument".

But Defendant contends that, based on the facts alleged by the People, he cannot be charged with Assault in the Second Degree, a Class D violent felony punishable by a maximum determinate sentence of 7 years followed by a period of post-release supervision. For the reasons stated below, Defendant's motion is granted and the three counts of Assault in the Second Degree charged in the indictment are dismissed.

CONCLUSIONS OF LAW

The indictment alleges that, with respect to the three injured victims, Defendant violated Penal Law § 120.05 (6). That statute provides that: A person is guilty of assault in the second degree when: (6) In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants;

Defendant raises three contentions. First, he argues that in enacting the Second Degree Assault statute Defendant is charged with violating, the legislature could not possibly have intended to punish the physical injury of a victim at a level significantly higher than the death of an individual which is caused by the same act. That is, while Defendant is charged with a Class E non-violent felony here for causing the death of Danielle Ricco, an act which could result, at most, in an indeterminate sentence of 1 1/3 to 4 years in prison, he is facing three maximum 7 year determinate terms for causing the physical injury of the three injured victims through the identical conduct.

Second, Defendant alleges that there is no way the "in furtherance of" language in the Second Degree Assault statute could possibly be satisfied by the conduct alleged here. That is, when the Defendant allegedly caused the physical injury of the three victims, there is no way, in logic, law or common-sense, that those injuries could be construed as being "in furtherance of" Defendant's homicide offense as required by the statute.

A third claim raised by the Defendant — that the mens rea of criminal negligence cannot serve as the basis on which to infer the underlying intent which must be present to sustain a charge of Second Degree Assault — was raised by Defendant and rejected on the merits by Acting [*3]Supreme Court Justice Maxwell Wiley in a Decision and Order in this matter on December 5, 2007. That ruling on the merits is the "law of the case" and binding on this court now. This third claim is therefore denied on that basis.

Defendant's first claim is grounded not only on the obvious incongruity of punishing a homicide at a lower level than an assault arising from the identical alleged acts, but by appellate authority recognizing, in situations closely analogous to that here, that punishing an assault with a higher penalty than a homicide arising from the same conduct would be contrary to the intent of the legislature. The case most directly on point is People v. Snow 138 AD2d 217 (4th Dept 1988), affd, 74 NY2d 671 (1989)[FN2]. In Snow, the defendant ran a red light, struck and seriously injured a pedestrian and was found to have a blood alcohol reading of .15, well above the threshold for intoxication. He was charged, among other crimes, with DWI as a felony, due to a previous DWI conviction, Assault in the First Degree, Assault in the Second Degree and Vehicular Assault in the Second Degree. The Defendant was found guilty, among other crimes, of Assault in the First Degree and DWI. The Assault in the First Degree charge he was convicted of, Penal Law § 120.10 (4), required that it be proven that: "[i]n the course of and in furtherance of the commission or attempted commission of a felony or of immediate flight therefrom, he or another participant if there be any, causes serious physical injury to a person other than one of the participants."

The Court dismissed Defendant's First Degree Assault convictions on a number of related grounds. First, the Court noted that the legislature had enacted vehicular assault and vehicular manslaughter statutes to cover injuries and deaths caused by intoxicated drivers and had clearly intended these statutes, rather than the general assault statutes, to cover conduct like that which the Defendant had engaged in. The Court also focused, however, on the irrationality of punishing the Defendant at a higher level for the assault he had committed than would be possible had he killed his victim and held that such a result would be contrary to the intent of the legislature in enacting the assault statutes: On the facts of this case, defendant could have been found guilty only of second degree vehicular assault, a class E felony (Penal Law § 120.03), because the victim of the incident suffered serious physical injury. Had the victim died defendant could have been convicted of second degree vehicular manslaughter, a class D felony (Penal Law § 125.12). Defendant, however, was convicted of first degree assault under Penal Law § 120.10 (4), a class C felony, a more serious crime than could have been charged if the victim had died [FN3]. This is an unreasonable and unjust result and could not have been intended by the Legislature (see McKinney's Cons Laws of NY, Book 1, Statutes § 143; Zappone v. Home Ins. Co., 55 NY2d 131, 137; Matter of Allstate Ins. Co. V. Libow 106 AD2d 110, 114, aff'd 65 NY2d 807; People v. Jackson, 106 AD2d 93, 96). 138 [*4]AD2d at 220 [FN4].

The holding in Snow — that the legislature could not possibly have intended to punish through the assault statutes an assault at a higher level than a homicide caused by identical acts committed by a defendant with the identical mens rea is directly applicable to the facts here. There are only two substantive differences between the First Degree Assault statute at issue in Snow and the Second Degree Assault statute here. The initial difference is that the first degree statute requires proof of serious physical injury while the second degree statute requires proof of only physical injury. The other difference is that the second degree statute, unlike the first degree statute, exempts from its scope felonies defined under Article 130 of the Penal Law which require corroboration for conviction [FN5]. Both statutes, using identical language, premise liability upon the commission of an underlying felony, rather than any mens rea directly applicable to the assault crime itself. As in Snow, punishing the Defendant here for a second degree assault would result in a greater penalty than the result which would occur if, through the identical conduct and identical mental state, the Defendant had killed his three alleged assault victims. As in Snow, this would be "an unreasonable and unjust result and could not have been intended by the legislature".

Also, as in Snow, the Penal Law provides a ready alternative to the charge of Assault in the Second Degree here. As noted supra, that is Assault in the Third Degree, pursuant to PL § 120.00 (3). As the People readily acknowledge, were the Assault in the Second Degree charges dismissed, they would seek a superceding indictment charging Defendant with Assault in the Third Degree, a crime which would clearly seem to be appropriate given the facts alleged here. Moreover, a third degree assault charge would reflect the common sense scheme inherent generally in the Penal Law with respect to homicide and assault charges which result from identical acts of Defendants. That is, a homicide under the Penal Law is generally treated as a more serious crime than an assault where the Defendant's conduct and mental state are the same. That would be the result which would be reached here, if Defendant was charged with Assault in the Third Degree for the three victims he allegedly injured. See Penal Law Articles 120; 125.

The principles of the Snow holding also invalidated an assault conviction in People v. Belizaire 234 AD2d 467 (2d Dept 1996), app denied 89 NY2d 1032 (1997). In Belizaire, the Defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree for driving with more than ten license suspensions and Assault in the First Degree, under the same statute as that at issue in Snow, because he had caused serious physical injury to a [*5]person while driving with a suspended license. The Court upheld the trial court's dismissal of the First Degree Assault count, reasoning: The interpretation of the Penal Law advocated by the People would lead to an unjust and unreasonable result, as a defendant who injures another while driving with a suspended license would be subject to a greater criminal penalty (a Class C felony) than an intoxicated driver, who, with criminal negligence causes the death of another (vehicular manslaughter in the second degree, a Class D felony). Accordingly, the Supreme Court properly dismissed the second count of the indictment which charged the defendant with felony assault. 234 AD2d at 468.

In People v. Huck 1 AD3d 935 (4th Dept 2003), the Court held that the felony of Aggravated Criminal Contempt, under which a Defendant intentionally or recklessly causes physical injury to a victim the defendant is prohibited from having contact with because of an order of protection, cannot serve as the predicate for a Second Degree Assault conviction under the statute at issue in the instant matter (PL § 120.05 [6]). The Court held that the Defendant's conduct did not constitute Second Degree Assault because otherwise "every aggravated criminal contempt would also constitute assault in the second degree." 1 AD3d 935-936. See also, People v. Malone 3 AD3d 795 (3d Dept 2004), lv denied, 2 NY3d 763 (adopting the same holding). Huck and Malone, although not directly on point to the facts here, represent yet another clear articulation by the courts that those provisions of the Penal Law's assault statutes which elevate assaults committed "in the course of and in furtherance of the commission or attempted commission of a felony" cannot be read without considering whether a given result would clearly be at odds with any rational outcome which might have been intended by the legislature.

The People make a number of cogent arguments as to why the assault counts here should not be dismissed. Some of those arguments concern the claim which the Court here is rejecting, based on the "law of the case" doctrine, as noted supra. Many of the People's remaining contentions, in the Court's view, are arguments that Snow and the related cases cited here were decided incorrectly. Snow, however, is an appellate division decision which was affirmed on the merits by the Court of Appeals and is obviously binding on this court.

The most powerful argument, in the Court's view, as to why the assault counts should not be dismissed is because, as in Snow, the alleged assaults were obviously committed in the course of the defendant's commission of Criminally Negligent Homicide. Thus, under the literal terms of the Second Degree Assault statute, it could be argued, the assault counts should clearly stand. This argument is given further force with respect to the second degree assault statute at issue here because, as the People point out, the legislature obviously considered whether any felonies should be excluded from the reach of the statute and, as noted supra, excluded sexual offenses under Article 130 of the Penal Law which required corroboration for conviction. The legislature's exclusion of one class of felonies is evidence that the legislature did not intend to exclude from the statute's reach other felonies not so excluded. See NY McKinney's Statutes § 240 [FN6]. Moreover, as the People point out, there is nothing which the Defendant has cited in the [*6]legislative history of the assault statutes which would indicate that the drafters of those statutes intended the result which Defendant urges here.

It is axiomatic, of course, that in construing a statute, courts should look to the intent of the legislature in enacting the law. Carney v. Phillippone 1 NY3d 333 (2004), rearg denied, 2 NY3d 794. It is also true that when a statute is plain on its face, the courts should not normally look to other means of interpretation to divine its meaning. NY McKinney's Statues § 76. As the Snow court recognized, however, it is also a fundamental principle of statutory construction that a statute should not be read in a way which produces a clearly unreasonable result:

An interpretation [of a statute] which is contrary to the dictates of reason or leads to unreasonable results is presumed to be against the legislative intent, and some other construction should be placed on the statute, if possible without violation of its language.

The courts should strive to avoid a construction which would make a statute unreasonable or lead to unreasonable results. . .

In order to avoid an unreasonable result, and to effect the intention of the Legislature, words of a statute may be enlarged or restrained in their meaning and operation, and language which is general in expression may be subjected to exceptions through implication. This rule may be applied where the statute is so broadly drawn as to include the case before the court but reason and the statutory purpose show that it was obviously not intended to include that case. NY McKinney's Statutes § 143.There are a number of hypothetical scenarios which illustrate the unreasonable and illogical results which might arise from the statutory construction inherent in sustaining the second degree assault charges here. As noted supra, if the Defendant engaged in the identical conduct he engaged in here with the identical mens rea but had caused the death of all four passengers in the car, rather than causing the death of one and injuring three, he would be facing a far lower potential penalty now. Put another way, the construction of the law as reflected in the indictment would find the Defendant far less culpable for causing the death of four victims than for causing the death of one victim and the injury of three victims [FN7]. It might even be argued that, under the construction inherent in the indictment, every Criminally Negligent Homicide case could be prosecuted as a Second Degree Assault with a higher penalty, since in every case, a Defendant could be deemed to have committed a Second Degree Assault in the course of and in furtherance of the commission of a homicide with respect to the same victim. Such scenarios, in the Court's view, are precisely the kind of unreasonable results which the legislature meant to preclude when it crafted the eminently sensible rule of statutory construction cited immediately supra. The Court holds that the three counts of Assault in the Second Degree charged in the indictment should be dismissed because construing the statute as covering the alleged conduct here would be contrary to the intent of the legislature. [*7]

Defendant's final argument for dismissal is that the "in furtherance of" requirement of the Second Degree Assault statute is not satisfied by the allegations here. As noted supra, the Second Degree Assault statute requires that a crime serving as the basis for elevating an assault causing physical injury to a Class D violent felony must be committed "in the course of and in furtherance of the commission or attempted commission of a felony". The first question this raises is whether the "in furtherance of" language adds any proof requirement element to the statute beyond the requirement that the assault be committed in the course of committing a felony. The People argue that on the unique facts of this case, essentially, these are not two discrete proof elements, because the " in the course of' and in furtherance of' [elements] are so inextricably intertwined both factually and temporally as to be virtually inseparable."[FN8] In the view of this Court, however, under well-established principles of statutory construction, these two phrases must be construed as two distinct proof elements, each of which has independent meaning: [I]t is a just rule, always to be observed, that the court shall assume that every provision of the statute was intended to serve some useful purpose, and it is broadly held that every word, phrase, clause and paragraph must be presumed to have meaning and to have been inserted in a statute for a purpose. . . In construing a statute, no part thereof is to be considered meaningless unless that conclusion is inevitable, and words in statutes are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning. Statutes must be read so that each word will have a meaning, and must not be so read that one word will cancel out and render meaningless another word. NY McKinney's Statutes § 231.

See also Bliss v. Bliss 66 NY2d 382 (1985); Direen Operating Corp. V. State Tax Commission 46 AD2d 191 (3d Dept 1974).

Here, it is obvious that the allegations underlying the indictment make out the element that Defendant's alleged assaults were committed "in the course of" his commission of the felony of Criminally Negligent Homicide. If the requirement that the assaults were also committed "in furtherance" of the homicide is to be given any meaning, however, those assaults must have a nexus with the homicide (the "in furtherance of" requirement) beyond the fact that they occurred in the course of committing the homicide. In the Court's view, no such additional nexus exists.

The initial potential issue with the indictment in this regard, as Defendant points out, is the fact that the mens rea of criminal negligence does not include any mental state in which the defendant is alleged to have any intention or awareness of any kind regarding the risk his conduct is creating with respect to the result that conduct causes. Criminal negligence is a mental state which is premised on the lack of any knowledge by a defendant of the risk their conduct creates. The question then becomes whether a person can act "in furtherance" of a result that person has no awareness they are causing. Put another way, does the "in furtherance" requirement imply or require that a person have some awareness that they are acting to further a result, or, alternatively, can one act to further something under the statute, with no knowledge or awareness that they are so acting. [*8]

Even assuming, however, that a person could so act without any knowledge of the result they are furthering and still satisfy the statute, in the Court's view, there is an additional more difficult barrier to sustaining the charges here. That is, there is no theory the Court is aware of under which the assaults the Defendant allegedly caused could in any way have been said to "further" the homicide. The meaning and the purpose of the "in furtherance" requirement under the assault statutes in the ordinary case is easily understood. In the seminal case of People v. Fonseca 36 NY2d 133 (1975), for example, defendant stole a car and while being chased by the police, struck a taxi and injured two people. He was convicted of Assault in the Second Degree under circumstances in which it was obvious that the assault was committed in furtherance of Defendant's crime of Criminal Possession of Stolen Property.

On the other hand, in People v. Nikac,155 Misc 2d 304 (Bronx County 1992), appeal withdrawn, 188 AD2d 1092 (1st Dept), the Court dismissed a count charging the defendant with the crime of Unlawful Wearing of a Body Vest because the "in furtherance" requirement of that statute was not made out. Among other charges, the Defendant was convicted of possessing a loaded firearm without any intent to use it unlawfully and also convicted of wearing a body vest "in furtherance" of that charge [FN9]. As Justice Marcus explained, that charge could not be sustained because there was no theory under which the wearing of a body vest could be said to be "in furtherance" of the simple possession of a firearm: While . . the wearing of such a vest may further the actual or contemplated use of a firearm, it cannot in any conceivable manner advance the simple act of possessing one. Absent an intent to use the firearm, its mere possession is an entirely passive act which is not furthered by the bullet proof attire. As a result, in this case — and perhaps any other in which criminal possession of a weapon in the third degree is the predicate — a violation of Penal Law § 270.20 cannot be established. 155 Misc 2d at 309.

The American Heritage Dictionary of the English Language defines the word "furtherance" as "(t)he act of furthering or helping forward" and "furthering" as "(t)o help the progress of; advance"[FN10]. In the Court's view, under the evidence underlying the indictment here, there is no way in language or logic that the injuries Defendant caused in any way "furthered", "advanced" or "helped forward" the death which was also caused during this horrific crash. Each death and injury here was caused by the same acts of the Defendant. Therefore, in the Court's view, the three counts of Assault in the Second Degree must also be dismissed because the evidence underlying the indictment does not make out the "in furtherance" element of the statute.

Nothing in the Court's holding should be construed as denigrating the seriousness of the [*9]injuries which were allegedly caused in this case, or the culpable conduct alleged to have been engaged in by the Defendant. The Court recognizes the great pain and suffering which this horrible crash has caused. The function of the courts, however, in construing a statute, is to give effect to the intent of the legislature and interpret statutes according to the fair meaning of their terms and in accordance with applicable principles of statutory construction. Applying those principles, in the Court's view, leads to the conclusion that the Defendant cannot be charged with Assault in the Second Degree for the conduct which is alleged to have occurred in this case. The three counts of the indictment which charge the Defendant with Assault in the Second Degree are therefore dismissed. The People are granted leave to re-present to a different Grand Jury, pursuant to CPL 210.20, any charges concerning the three alleged injured victims of the accident discussed herein, other than charges of Assault in the Second Degree pursuant to PL § 120.05 (6).

Dated: New York, New York___________________________

June 23, 2009Daniel P. Conviser, A.J.S.C. Footnotes

Footnote 1: The Criminally Negligent Homicide Statute (Penal Law § 125.10) provides that a person is guilty of the crime when "with criminal negligence, he causes the death of another person". "Criminal Negligence" arises under the Penal Law, with respect to a result or a circumstance defined in a statute (here, a death), when a defendant "fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." Penal Law § 15.05 (4).

Footnote 2: In its one sentence affirmance of the Snow holding, the Court of Appeals stated that it was affirming the Order "for the reasons stated in the opinion. . . "

Footnote 3: Assault in the First Degree, under amendments to the Penal Law made since Snow, is now a Class B felony.

Footnote 4: The Snow court also held that Defendant could not be convicted of an assault based upon a conviction for DWI because DWI was a strict liability offense and the conviction of a Defendant for an assault committed in the course of and in furtherance of a felony required that the underlying felony include a culpable mental state. In his opinion in the instant matter noted supra, Justice Wiley held that because Criminally Negligent Homicide includes a mens rea component, that is, criminal negligence, this holding of the Snow decision would not bar Defendant's conviction for Second Degree Assault in the instant matter.

Footnote 5: The significance of this proviso is discussed infra.

Footnote 6: It should be noted, moreover, that this sexual offense exclusion is not included in the First Degree Assault statute which was at issue in Snow, thus furnishing one way in which the statute at issue in Snow and the statute at issue here are distinguishable. In the Court's view, however, this language difference does not undermine any of the fundamental bases on which the Snow court's holding seems to be clearly applicable to the facts here.

Footnote 7: This assumes that the Defendant would be charged with four counts of Criminally Negligent Homicide, rather than one count of Criminally Negligent Homicide and three counts of Assault in the Second Degree, for the other deaths which were caused.

Footnote 8: See People's Response to Defendant's In-Limine motion, June 18, 2009 at 4.

Footnote 9: The statute at issue in Nikac provided that a person is guilty of Unlawful Wearing of a Body Vest "when acting either alone or with one or more other persons he commits any violent felony offense defined in section 70.02 while possessing a firearm, rifle or shotgun and in the course of and in furtherance of such crime he wears a body vest." Penal Law § 270.20.

Footnote 10: The American Heritage Dictionary of the English Language, 3rd Ed. Houghton Mifflin Company.



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