People v Gurung

[*1] People v Gurung 2017 NY Slip Op 50060(U) Decided on January 13, 2017 Criminal Court Of The City Of New York, New York County Cesare, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2017
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Buddhi Gurung, Defendant



2016NY017472



For the Defendant:

Ali Najmi, Esq.

For the People:

Cyrus R. Vance, Jr., District Attorney, New York County

(Kristen Baraiola and Harrison Schweiloch, of Counsel)

Zachary W. Carter, Corporation Counsel, New York City

(Nicholas R. Ciappetta, of Counsel)
Heidi C. Cesare, J.

The defendant, Buddhi Gurung, is charged in a two count information with violating the right of way of pedestrians and bicyclists with physical injury (Administrative Code of the City of New York § 19-190 [b]) (count one), and failure of a driver to exercise due care (Vehicle and Traffic Law § 1146 [c] [1]) (count two). Defendant moves to dismiss count one the information on the ground that it is unconstitutional, preempted by state law, and facially insufficient. For the reasons stated below, defendant's motions to dismiss are DENIED.[FN1]

The Allegations

The criminal court information alleges that on February 29, 2016 at about 8:34 a.m., at the intersection of East 36th Street and Madison Avenue in the County and State of New York, a black Toyota Avalon driven by the defendant struck a pedestrian who was in the crosswalk with the right of way. The pedestrian died as a result of the collision.

Administrative Code § 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.[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 of person riding a bicycle and thereby causes physical injury, shall be guilty of [*2]a misdemeanor.[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.

To sustain a conviction under this statute the People must prove beyond a reasonable doubt that: (1) defendant operated a motor vehicle; (2) defendant's motor vehicle caused contact with a pedestrian or cyclist; (3) the pedestrian or cyclist had the right of way at the time of the contact; (4) the pedestrian or cyclist suffered physical injury as a result of the contact; and (5) defendant's failure to exercise due care was the proximate cause of defendant's failure to yield and the physical injury to the pedestrian or cyclist.

Constitutionality of "due care" standard

Defendant argues that Administrative Code § 19-190 is unconstitutional because it uses a civil negligence mens rea in a criminal statute. Defendant provides no binding authority to support this argument. Indeed, the Court of Appeals has noted that "[c]criminal liability for death caused by ordinary negligence is sometimes imposed by statute" (People v Haney, 30 NY2d 328, 334 n.7 [1972]).

Defendant relies on People v Sanson (52 Misc 3d 980 [Crim Ct, Queens County [2016]) for the proposition that a civil negligence standard is constitutionally impermissible in a criminal statute. Sanson, in turn relies on Elonis v United States (575 US 135 [2015]). Elonis, however, is a case of statutory construction and not constitutional interpretation. Elonis should not be read to stand for the proposition that a negligence standard in a criminal statute is constitutionally forbidden.

A statute carries a strong presumption of constitutionality (People v Knox, 12 NY3d 60, 69 [2009]). The party challenging a statute's constitutionality bears the heavy burden of proof beyond a reasonable doubt (In re Travis S., 96 NY2d 818, 820 [2001]). A statute is "unconstitutionally vague if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, and it is written in a manner that permits or encourages arbitrary or discriminatory enforcement" (People v Foley, 94 NY2d, at 681 [2000]).

A conviction under Administrative Code § 19-190 (b) requires proof of a defendant's failure to exercise due care. "Due care is that care which is exercised by reasonably prudent drivers" (Russell v Adduci, 140 AD2d 844 [3rd Dept 1988]). Courts of concurrent jurisdictions have held that "the due care standard has a common definition recognized in law and in life, provides notice to a person of ordinary intelligence of the forbidden conduct and gives clear guidelines for enforcement" (People v Urena, ___ Misc 3d___, 2016 NY Slip Op 26384 [Crim Ct, Queens County 2016]); see e.g., People v Hossain, 50 Misc 3d 610 [Crim Ct, NY County 2016]); People v Green, 52 Misc 3d 1214 [A] [Crim Ct, Queens County 2016]); and People v Gallagher, 50 Misc 3d 317 (Crim Ct, Bronx County 2015]). The court finds that the defendant has failed to overcome the presumption of validity and has not adequately demonstrated that applying such a statute would result in arbitrary or discriminatory enforcement by the police.

Pre-emption

Defendant further argues that Administrative Code § 19-190(b) is preempted by State Law. More specifically, He argues that statute conflicts with VTL § 1146 by imposing a stiffer penalty for similar conduct and by utilizing a mens rea not defined under Penal Law § 15.05

"Municipalities generally have the authority to adopt local laws to the extent that they are not inconsistent with either the State Constitution or any general law" (Eric M. Berman, P.C. v City of NY, 25 NY3d 684, 690 [2015]; see also, DJL Rest. Corp. v City of New York, 96 NY2d 91, 94 [2001]; NY Const art IX, § 2 [c] [ii]; Municipal Home Rule Law § 10 [1]). "The constitutional home rule provision confers broad police power upon local government relating to the welfare of [*3]its citizens"[FN2] (New York State Club Assn. v City of New York, 69 NY2d 211, 217 [1987], aff'd. 487 US 1 [1988]; see also, People v De Jesus, 54 NY2d 465, 468 [1981]). State preemption occurs in two ways: "conflict preemption" occurs when a local government adopts a law that directly conflicts with a state statute (DJL Rest. Corp. at 95; see also, e.g., Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 107 [1983]); "field preemption" occurs when a local government legislates in a field where the New York State Legislature has assumed full regulatory responsibility (Id.; see also, e.g., New York State Club Assn. v City of New York, 69 NY2d 211, 217 [1987], aff'd. 487 U.S. 1 [1988]). "Field preemption may be express as evidenced by the legislature's stated directive," or it may "be implied from a declaration of State policy by the Legislature or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area" (People v Diack, 24 NY3d 674, 679 [2015] [internal quotes and citations omitted]). "Intent to preempt the field may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area" (Id. [internal quotes and citations omitted]).

Defendant invokes both the doctrine of field preemption and conflict preemption in challenging the constitutionality of Administrative Code § 19-190 but fails to establish either. The New York State Penal Law provides no express directive establishing a legislative intent to occupy the field of criminal culpability nor does it establish a comprehensive and detailed regulatory scheme that would imply such an intent. Indeed, Penal Law § 15.05, which provides the definitions of culpable mental states under the Penal Law, states that the definitions are "applicable to this chapter." Absent any indication of a legislative policy implying field preemption, the court may not reasonably infer that the State Legislature had an intent to preempt the field of criminal culpability. Defendant's claim of a conflict preemption also fails. A plain reading of Vehicle and Traffic Law § 1642, which addresses traffic regulations in cities having a population in excess of one million, clearly allows the City of New York to establish laws and ordinances which may conflict with the other statutes under the Vehicle and Traffic Law (Vehicle and Traffic Law § 1642 [a][10]). The court finds Administrative Code § 19-190(b) is not preempted by State Law.

Motion to Dismiss for Facial Insufficiency

A facially sufficient information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1988]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

Defendant argues that the information is facially insufficient because it does not allege facts that would establish that he failed to act with due care. The court disagrees.

As the Court of Appeals has observed, "a defendant's intent is the product of the invisible operation of his mind, to be determined, inevitably, on the basis of defendant's statements and conduct (People v Samuels, 99 NY2d 20, 24 [2002] [internal quotes and citations omitted]). Defendant's challenge to the facial sufficiency of the one count of Administrative Code § 19-190 (b) lacks merit. After careful review of the accusatory instrument the court finds that it contains non-hearsay allegations sufficient to establish every element of the crime charged and is, therefore, facially sufficient. The information sets forth that the defendant operated a vehicle that made contact with a pedestrian who had the right of way causing injury to the pedestrian. On these alleged facts and circumstances, the court may reasonably infer that defendant failed in his obligation to carefully look out for pedestrians, to see what there is to be seen, and to use reasonable care to avoid hitting any pedestrian on the roadway. These allegations sufficiently establish a violation of Administrative Code § 19-190 (b) and are detailed enough to prevent multiple prosecutions for the same offense. Defendant's motion to dismiss for facial insufficiency is denied.

Conclusion

For the foregoing reasons, defendant's motions to dismiss one count of Administrative Code § 19-190 (b) are denied. Defendant's reservation of the right make may make further motions is granted to the extent provided in CPL § 255.20. This constitutes the decision and order of the court.

January 13, 2017

New York, New York

_______________________

Heidi C. Cesare, J.C.C. Footnotes

Footnote 1:In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.

Footnote 2:N.Y. Constitution, art. IX, § 2(c) provides in pertinent part: "In addition to powers granted in the statute of local governments or any other law . . . (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government . . . The government, protection, order, conduct, safety, health and well-being of persons or property therein" (i.e., the police power).