People v Castro
Annotate this CaseDecided on May 17, 2004
Criminal Court, New York County
THE PEOPLE OF THE STATE OF NEW YORK
against
AMABLE CASTRO, Defendant.
2003NY082820
For the People:
ADA John Beattie
NY County District Attorney's Office
1 Hogan Place
NY, NY 10013
212-335-9937
For the Defendant:
Ernest H. Hammer
26 Broadway, Ste. 1700
NY, NY 10004
212-425-5928
Gerald Harris, J.
The defendant, Amable Castro, initially was charged with two counts of criminal contempt in the second degree, one count of reckless assault in the third degree and one count of resisting arrest. The two counts of contempt were dismissed on the motion of the District Attorney's Office, for want of a corroborating affidavit from the complaining witness.
The complaint alleges that the police attempted to arrest the defendant, at the courthouse, on December 4, 2003, for having violated outstanding orders of protection. It is alleged that the defendant fled and, with the police in pursuit, ran down a staircase, through the lobby and out onto the street. A court officer, who joined the chase and fell to the ground, allegedly sustained abrasions, bruising and pain to his knee and a sprained ankle. The defendant managed to get away.
The defendant moves, pursuant to CPL 170.30, to dismiss the charge of assault in the third degree as defective, arguing that merely running away from the police does not create a risk of such nature and degree as to constitute a gross deviation from a reasonable standard of conduct as to render the defendant culpable of reckless assault. (See PL 15.05(3)). For the following reasons, the motion to dismiss the charge of assault in the third degree is granted.
In order to be found reckless, it must be shown that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk. Furthermore, the risk must be of such nature and degree that disregard thereof constituted a gross deviation from a reasonable standard of conduct.
The complaint alleges only that the defendant ran away when his arrest was attempted and that a pursuing peace officer fell and sustained injury. Defendant's flight lawfully may be the basis for a charge of resisting arrest (People v. Shoulars, 291 AD2d 238 [1st Dept. 2002], appeal denied, 98 NY2d 640 [2002]) but, without more, does not satisfy the requirement that the complaint allege facts which, if true, establish every element of reckless assault in the third degree.
Unlike firing a weapon into a crowd or driving a car while intoxicated, there is nothing so inherently dangerous in running down a street, even when that action invites pursuit, as to give rise to a presumption that the runner is conscious of creating a substantial and unjustifiable risk of injury to another person. Furthermore, although there may be circumstances from which it may be inferred that a person's flight created a substantial and unjustifiable risk of injury to his pursuers, as, for example, by jumping across roof tops, running across a heavily trafficked [*2]highway or leaping from a moving train, no such circumstances are alleged in the complaint here. Thus, there are no factual allegations from which it reasonably may be inferred that the defendant engaged in a "gross deviation" from a standard of reasonable conduct.
It is noteworthy that defendant is not charged with second degree assault (PL 120.05(3)). That statute makes it a felony for a person to cause physical injury to a peace officer if done with intent to prevent that officer from performing a lawful duty. Under that statute, it is not necessary that the People show an intent to injure. People v. Rojas, 97 NY2d 32 (2001). Presumably, however, the People must allege facts from which it may reasonably be inferred that the defendant caused the injury. As already discussed, no such causative facts are alleged here. cf. People v. Coulanges, 264 AD2d 853 (2nd Dept. 1999), lv. den. 94 NY2d 878 (2000) (issue of credibility as to whether defendant ever touched the officer during the chase). In any event, as already noted, defendant is not charged with violating that statute.
This opinion constitutes the decision and order of the court.
Dated: May 17, 2004_______________________________
New York, New York GERALD HARRIS
Judge of the Criminal Court
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