People v Torres

[*1] People v Torres 2017 NY Slip Op 50587(U) Decided on May 2, 2017 Criminal Court Of The City Of New York, New York County Statsinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 2, 2017
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Carlos Torres, Defendant.



2016NY024559



For the defendant: The Legal Aid Society, by Takiya Wheeler, Esq.

For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Rachel Ehrhardt.
Steven M. Statsinger, J.

Defendant, charged with violating New York City Administrative Code ("A.C.") § 19-190(b), and V.T.L. § 1146(c)(1) moves to dismiss the Administrative Code count. He argues that A.C. § 19-190(b) is: (1) unconstitutional because it adopts the mens rea requirement ordinarily used in civil negligence cases; (2) preempted by Article 15 of the Penal Law, and; (3) in conflict with V.T.L. § 1146 because it punishes the same conduct more severely.

This Court concludes that A.C. § 19-190(b) makes out a strict liability "public welfare offense" and does not contain a mens rea element at all. For this reason, it rejects defendant's first two arguments. As for defendant's third argument, the Court disagrees with the premise that the two sections punish the same conduct: A.C. § 19-190(b) punishes conduct that is more severe than that covered by V.T.L. § 1146. Accordingly, defendant's motion to dismiss is DENIED in its entirety.

I. FACTUAL BACKGROUND

A. The Allegations

According to the Information, defendant, while driving a truck in Manhattan, struck and killed a pedestrian who was in a crosswalk while the walk signal was in her favor.

B. Legal Proceedings

Defendant was arraigned on April 29, 2016, on an Information charging him with violating A.C. § 19-190(b) and V.T.L. § 1146(c)(1), and was released on his own recognizance.

Defendant filed the instant motion on March 31, 2017, and the People responded on April 12. The Office of the New York City Corporation Counsel filed papers opposing the motion on April 17, 2017, and the Office of the New York State Attorney General declined to intervene. The matter has been sub judice since April 17.

II. THE INFORMATION

The information, sworn to by Detective Peter Jarvis, provides that:

[I have] reviewed video surveillance at [the corner of West 37th Street and Eleventh Avenue in New York County] and said video surveillance records a truck making a right turn into the intersection as a woman walks across the street, in the cross walk, with the pedestrian walk signal in her favor. [T]he video surveillance records the truck running over the woman. [I] responded to [that] location, observed the woman recorded in the video surveillance on the ground, and the woman was pronounced dead at the scene. [I] spoke to defendant, who admitted driving the truck and hitting the victim, although [he said] he did not see she was there.

III. DISCUSSION

A. A.C. § 19-190(b) Is Constitutional

1. The Regulation and Its Elements

The regulation provides, in pertinent part,

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. . 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 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 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. . 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.

A.C. § 19-190, civil penalties omitted. Accordingly, in order for the prosecution to secure a conviction under § 19-190(b), it must prove beyond a reasonable doubt that the defendant: (1) drove a motor vehicle; (2) failed to yield to a pedestrian or bicyclist when that pedestrian or person had the right away; (3) caused contact with that pedestrian bicyclist; (4) thereby caused physical injury, and; (4) failed to exercise due care.

2. The Regulation Makes Out a Strict Liability "Public Welfare Offense."

It has long been recognized that the constitution does not require every criminal statute to contain a mens rea element. One category of offenses that can permissibly be premised on strict liability includes what are known as "public welfare offenses." In an early discussion of this concept, the United States Supreme Court identified "regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes" as offenses that are excluded [*2]from the "general rule at common law that scienter was a necessary element in the indictment and proof of every crime." United States v. Balint, 258 U.S. 250, 253 (1922).

Morissette v. United States, 34 U.S. 246, 251-52 (1952), describes such offenses as having "no mental element but consit[ing] only of forbidden acts or omissions," and identifies them as a product of the "industrial revolution." Significantly, Morissette includes within this category offenses arising from the need to regulate "[t]raffic of velocities, volumes and varieties unheard [that might] subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct." Id. at 253.

Finally, the Court in Staples v. United States, 511 U.S. 600, 617 (1994), noted that the potential penalty for an offense can often bear on the question whether it is a public welfare offense or whether a mens rea element should be read into it. There, for example, the potential penalty — ten years' imprisonment — led the Court to conclude that an offense prohibiting the possession of an unregistered machine gun was not a strict liability offense, and that a mens rea element should be read into it. Id. at 616.

New York State law clearly recognizes the existence of strict liability offenses. Penal Law § 15.10 notes that an offense that "does not require a culpable mental state on the part of the actor is one of 'strict liability.'" It is true that strict liability offenses are disfavored in New York, Penal Law § 15.15(2) ("A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability.") Nevertheless, they are nevertheless quite common in this State. See, e.g., People v. Merriweather, 139 Misc 2d 1039, 1040-41 (Dist Ct Nassau County 1988) (unauthorized use of a professional title under Education Law §§ 6513(1) and 7302, and collecting cases); People v. Nemadi, 140 Misc 2d 712, 717 (Crim Ct NY County 1988) (violation of window guard regulations contained in New York City Health and Administrative Codes); People v. Patterson, 185 Misc 2d 519 (Crim Ct Bronx County 2000) (failure to register as a sex offender under Correction Law § 168-t); People v. Carbone, 54 Misc 2d 763 (Crim Ct NY County 1967) (transportation of hazardous materials under former V.T.L. § 380).

Defendant's claim that the statute is unconstitutional is premised on the argument that the "failure to exercise due care" element of A.C. § 19-190(b) is a mens rea element. Wheeler Aff. ¶¶ 10-11. Oddly enough however, a nearly identical element appears in V.T.L. § 1146(c)(1), a section under which defendant is also charged ("A driver of a motor vehicle who causes serious physical injury to a pedestrian or bicyclist while failing to exercise due care in violation of subdivision (a) of this section, shall be guilty of a traffic infraction"), emphasis added, but defendant does not challenge the constitutionality of the V.T.L. statute on this same ground.

In any event, it is clear to this Court that "due care" as described in both A.C. § 19-190(b) and V.T.L. § 1146(c)(1) does not describe a mental state at all — it describes a manner of driving. A person exercises "due care" in the operation of a motor vehicle when he drives with "that care which is exercised by reasonably prudent drivers." Russell v. Adduci, 140 AD2d 844 (3d Dept 1988). And he fails to exercise "due care" when he fails to drive with "that care which is exercised by reasonably prudent drivers." Id. This formulation clearly is meant to examine a driver's actions, and not what is, or is not, in his mind. Thus, for example, while V.T.L. § 1144-a similarly requires motorists to exercise "due care" to avoid colliding with an authorized emergency vehicle, under this section the question "whether the vehicle can safely change lanes is governed by the actions that would have been taken by a reasonably prudent driver." People v. Krahforst, 54 Misc 3d 1010 (Cohoes City Court 2010), emphasis added.

This "actions"-focused "due care" standard is little different from that applied in cases involving driving while intoxicated or impaired under V.T.L. §§ 1192(1), 1192(3), 1192(4) and 1192(4-a), where the prosecution must prove beyond a reasonable doubt that the consumption or drugs or alcohol (or both) affected the defendant's ability to "operate a vehicle as a reasonable and prudent driver." People v. Cruz, 48 NY2d 419, 428 (1979). And there is no doubt that the various offenses made out by V.T.L. § 1192 are strict liability "public welfare" offenses. People v. Prescott, 95 NY2d 655 (2001); People v. Gonzales, 130 Misc 2d 214, 215 n.6 (Crim Ct NY County 1984). This Court accordingly has little difficulty concluding that § 19-190(b) is likewise a strict liability "public welfare" offense.

Finally, the Court also notes that the maximum penalty for violating A.C. 19-190(b) is 30 days' imprisonment. This relatively modest potential penalty further convinces the Court that the regulation makes out a strict liability "public welfare" offense. Cf. Staples, 511 U.S. at 616.

In light of this Court's conclusion that AC § 19-190(b) is a strict liability offense that does not contain a mens rea element at all, see also People v. Hossain, 50 Misc 3d 610 (NY County 2015) (same), the Court rejects defendant's argument that this section unconstitutionally imports a civil mens rea standard in a criminal statute, and respectfully disagrees with the two decisions, People v. Sanson, 53 Misc 3d 980 (Crim Ct Queens County 2016) and People v. Salamon, 54 Misc 3d 960 (Crim Ct Kings County 2016), that have so held.

The Court is also aware that, in its settlement in a civil case brought by the transport workers union, New York City has stipulated that "§§ 19-190(a) and (b) did not create strict liability offenses." Ehrhardt Aff. ¶ 8. But this does not alter this Court's view of the regulation. The City is free to take any litigation position with respect to this regulation that it sees fit, and if the District Attorney wishes to continue to argue for the inclusion of a mens rea element that will make it more difficult to secure convictions in cases where the defendant is charged under § 19-190(b), it may do so. But the Court remains convinced that its conclusion that the regulation makes out a strict liability offense is correct.

B. Section 19-190(b) Is Not Preempted by Article 15 of the Penal Law

Defendant's argument that AC § 19-190(b) is preempted by Article 15 of the Penal Law is likewise premised on the claim that the "failure to exercise due care" element is a mens rea element. Wheeler Aff. § 37. The above analysis answers this argument, as well. Since the Court has concluded that this regulation lacks a mens rea element, there is no preemption here.

C. Section 19-190(b) Is Not Preempted by the Vehicle and Traffic Law.

Finally, defendant argues that AC § 19-190(b) is "in clear conflict with VTL 1146" because it "proscribes the same conduct, yet provides more stringent punishment," and therefore is preempted by the Vehicle and Traffic Law. Wheeler Aff. § 34. But this argument rests on a faulty premise. AC § 19-190(b) does not proscribe "the same conduct" as V.T.L. § 1146. It proscribes more serious conduct.

The V.T.L provision covers the failure to exercise due care in avoiding a pedestrian or bicyclist on "any roadway." V.T.L. § 1146(a). The Administrative Code provision covers this type of conduct only in those areas where the pedestrian or cyclist had the right of way. AC § 19-190(a). This additional element — zeroing in on those places where pedestrians or bicyclists are more likely to be, and where they can lay legitimate claim to a right to safe passage - makes the conduct proscribed by AC § 19-190(b) more serious than that proscribed by § 1146.

C. Conclusion

Defendant's motion to dismiss is denied in its entirety.

IV. CONCLUSION

For the foregoing reasons, defendant's motion to dismiss denied.

This constitutes the Decision and Order of the Court.

Dated May 2, 2017

New York County, New York

_______________________

Steven M. Statsinger

Judge of the Criminal Court