People v Gonzalez
Annotate this CaseDecided on December 1, 2015
Criminal Court of the City of New York, New York County
The People of the State of New York, Plaintiff,
against
Edward Gonzalez, Defendant.
2015NY023186
Appearances of Counsel:
For the People: Cyrus R. Vance, New York County District AttorneyFor the Defendant: The Legal Aid Society
Steven M. Statsinger, J.
Does the bare allegation that the defendant hit the complainant with his car, causing physical injury, sufficiently plead assault in the third degree? It does not. Absent the allegation of some fact from which one of the culpable mental states required by Penal Law § 120.00 can be reasonably inferred, an information that merely alleges that one person injured another in a manner that could just as easily have been accidental is facially insufficient. Accordingly, since that all that is alleged here, defendant's motion to dismiss is GRANTED, with leave to supersede. Sealing is stayed for 30 days.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, at 3:00 a.m. on April 12, 2015, defendant struck the complainant with his automobile, causing her substantial pain.
2. Legal Proceedings
Defendant was arraigned on April 13, 2015, on a felony complaint charging him with assault in the second degree ,Penal Law §§ 120.05(2), and was released pending grand jury action. On July 14, 2015, on the People's motion, the Court reduced the charges to misdemeanors, and the People filed a superseding information charging the defendant with three counts of assault in the third degree: Count One charged intentional assault, Penal Law § 120.00(1), Count Two charged negligent assault, Penal Law § 120.00(3), and Count Three charged reckless assault, Penal Law § 120.00(2).
Defendant filed his motion to dismiss on September 15, 2015, and the Court directed the People to respond by October 7. The matter has been sub judice since then.
3. The Superseding Information
The superseding information, sworn to by the complainant on June 30, 2015, provides that, at the above-noted date and time, in New York County, the complainant "observed the defendant strike me with his car, causing substantial pain to my leg."
II. DISCUSSION
The information here merely asserts that the defendant struck the complainant with his car. Absent the allegation of any additional facts from which a culpable mental state might be inferred, [*2]this bare assertion does not make out a prima facie case of any of the subsections of Penal Law § 120.00 with which the defendant stands charged.
A. Third Degree Assault Requires both an Act and a Culpable Mental State
The bare allegation that one person hurt another does not amount to a third-degree assault. Assault in the third degree requires both an act that causes physical injury and a culpable mental state. To be sure, the culpable mental state might be established through any of a variety of facts - defendant's actions, the consequences of his actions, his words, other surrounding circumstances, or some combination of these - but, as with any element, the People must allege facts from which a "reasonable inference" of a culpable mental state can be drawn. People v. Kersch, 41 Misc 3d 1217(A), 980 N.Y.S.2d 277 (Crim Ct NY County 2013) (intent to injure could reasonably be inferred where defendant pushed the complainant against a mirrored wall with sufficient force to shatter the mirror, since defendant did so after approaching the complainant in a "threatening manner" and "shouting" at him). See also People v. Dreyden, 28 Misc 3d 590, 3 N.Y.S.2d 657 (App. Term 2d, 11th & 13th Dists 2010) (information alleging that defendant pushed complainant to the ground and took her car keys sufficiently alleged intent to injure; it could " rationally be inferred that defendant intended to cause physical injury as a means of achieving his ultimate goal of obtaining the keys").
Many injury-causing acts - most, in fact - lead, simply by their occurrence, to a reasonable inference that the defendant acted with a culpable mental state. But that is not true here. The information alleges an act that might well have been accidental: defendant struck the complainant with his car. It alleges nothing else - no statement that defendant might have made, or any other surrounding circumstance - that might illustrate that this act occurred along with a culpable mental state and was accordingly not an accident.
With this as the background, the Court will review in turn the sufficiency of the allegations as to each of three theories of mental culpability alleged in the information.
B. The Information Does Not Sufficiently Plead an Intentional Assault
Count One alleges an intentional assault under Penal Law § 120.00(1). That section requires that the People plead facts that demonstrate an "intent to cause physical injury to another person." A person "acts intentionally with respect to a result ... when his conscious objective is to cause such result ... ." Penal Law § 15.05(1).
However, where the facts alleged do not reasonably rule out the possibility that the defendant injured the complainant accidentally, they do not make out a prima facie case of intent to cause injury. Thus, for example, in People v. Dipoumbi, 23 Misc 3d 1127(A), 889 N.Y.S.2d 506 (Crim Ct NY County 2009) , the information alleged that, while a police officer was issuing a summons to a taxi driver for running a stop sign, the driver opened the car door and struck the officer's arm. The Court held, inter alia, that the intent to injure was not sufficiently pled. By contrast, in People v. Burke, 48 Misc 3d 1208(A) (Crim Ct NY County 2015), the injury-causing act, viewed in isolation, might have been accidental, as the [*3]information merely alleged that the defendant struck the complainant from behind while following her down a flight of stairs. But there, surrounding circumstances sufficiently ruled out this possibility; defendant behaved violently toward the complainant shortly before he pushed her, and callously tried to prevent her from calling for help afterwards. Id. at *4.
The facts here are clearly closer to those in Dipoumbi than they are to Burke. Merely alleging that a defendant struck a complainant with his car is very much like merely alleging that a defendant struck another person's arm when opening a car door. Something more is required to lead to the inference that the defendant acted intentionally. Unlike in Burke, the information here pleads no other fact that can sufficiently rule out the possibility that the defendant struck the complainant accidentally. The information is accordingly facially insufficient as to intentional assault.
C. The Information Does Not Sufficiently Plead Criminally Negligent Assault
Count Two alleges criminally negligent assault. Penal Law § 120.00(3) requires the People to plead facts that establish that "with criminal negligence," the defendant caused physical injury to another person with a deadly weapon or a dangerous instrument. A person acts with "criminal negligence" with respect to a result "when he fails to perceive a substantial and unjustifiable risk that such result will occur ... . 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). Criminal negligence involves a degree of culpability that is "appreciably greater" than that required for civil negligence, "by virtue of the substantial and unjustifiable' character of the risk involved and the factor of gross deviation' from the ordinary standard of care." Donnino, William C., Practice Commentary to Penal Law § 120.00(3).
Where an offense involves criminal negligence, "criminal liability cannot be predicated upon every careless act merely because its carelessness results in another's" injury. People v. Haney, 30 NY2d 328, 335, 284 N.E.2d 564, 568, 333 N.Y.S.2d 403, 409 (1972). Criminal negligence "requires a defendant to have engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of a proscribed result; nonperception of a risk, even if the proscribed result occurs, is not enough." People v. Conway, 6 NY3d 869, 849 N.E.2d 954, 816 N.Y.S.2d 731 (2006). The defendant's carelessness must be such that "its seriousness would be apparent to anyone who shares the community's general sense of right and wrong." People v. Cabrera, 40 AD3d 1139, 835 N.Y.S.2d 747 (3d Dept 2007), aff'd as modified, 887 N.E.2d 1132, 858 N.Y.S.2d 74 (2008).
Clearly, then, conduct that is purely accidental does not establish criminal negligence. Such was the case in People v. Boutin, 75 NY2d 692, 555 N.E.2d 253, 556 N.Y.S.2d 1 (1990), where the trial evidence established only that the defendant failed to see a police car stopped in the right lane of a highway on a dark, overcast and foggy night. [*4]The evidence did not establish that the "defendant was engaged in any criminally culpable risk-creating conduct — e.g., dangerous speeding, racing, failure to obey traffic signals, or any other misconduct that created or contributed to a substantial and unjustifiable risk" of injury. Id., internal quotation marks omitted. By contrast, in Haney criminal negligence was sufficiently alleged. The grand jury heard evidence that the defendant was speeding, ran a red light and struck the decedent in the middle of a crosswalk in an area where there was no visual obstruction. 30 NY2d at 336, 284 N.E.2d at 568-69, 333 N.Y.S.2d at 409-10.
Under these cases, the facts alleged here do not, by any stretch, make out a prima facie case of criminal negligence. The information contains no description of any circumstance that might give rise to the inference that defendant engaged in any "criminally culpable risk-creating conduct." Boutin, 75 NY2d at 692, 555 N.E.2d at 253, 556 N.Y.S.2d at 1. Simply striking another person with one's vehicle is not enough.
C. The Information Does Not Sufficiently Plead Recklessness
Count Three charges reckless assault, in violation of Penal Law § 120.00(2). This offense requires the People to plead facts showing that the defendant "recklessly cause[d] physical injury to another person." A person acts recklessly with respect to a result "when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or ... . The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Penal Law 15.05(3).
It is generally accepted that recklessness involves a higher level of culpability than criminal negligence. E.g., People v. Montanez, 1 NY2d 53, 56 359 N.E.2d 371, 373, 390 N.Y.S.2d 861, 864 (1976); People v. Boice, 89 AD2d 33, 35, 455 N.Y.S.2d 859, 860 (3d Dept. 1982); People v. Morton, 100 AD2d 637, 473 N.Y.S.2d 66 (3d Dept. 1984) ( The "Penal Law has established a hierarchy of culpable mental states with criminal negligence' as the lowest or least culpable mental state [and] recklessly' as the next highest.") Negligence involves only the failure to perceive a risk; recklessness involves the awareness of and the conscious disregard of a risk. It follows that if the allegations in an information fail to make out a prima facie case of negligence, they will also fail to make out a prima facie case of recklessness. After all, if the facts alleged cannot even establish that the defendant failed to perceive a substantial risk of injury, those same facts will, almost invariably, also fail to establish that the defendant was both aware of and disregarded that same type of risk.
Cases involving the reckless operation of a vehicle must accordingly allege some fact apart from an injury from which recklessness might be inferred. E.g. People v. Wojcinski, 5 Misc 2d 292, 159 N.Y.S.2d 539 (County Ct Tioga County 1957) (dismissing information charging reckless driving where the information contained "no allegations as to the position of the cars, the rate of speed, the manner of operation, the conditions then existing"); People v. Mortice, 7 Misc 2d 940, 167 N.Y.S.2d 512 (County Court Schenectady [*5]County 1957) (same , where information alleged that defendant, while turning, forced a police vehicle off the road, but did not allege any fact that would establish that defendant was aware that the police vehicle was nearby).
Accordingly here, since the information does not even make out a prima facie case of negligence, and fails to allege any fact from which recklessness might reasonably be inferred, it fails to make out a prima facie case of recklessness.
D. Conclusion
As currently pled, the information is facially insufficient as to all three culpable mental states. It might well be, however, that this defect is curable, as the People might have available to them additional facts that, if pled, would establish a reasonable basis for inferring that the defendant acted with a culpable mental state when he struck the complainant with his car. Accordingly, while the Court grants the motion to dismiss, it also stays sealing for 30 days and grants the People leave to supersede.
IV. CONCLUSION
Defendant's motion to dismiss is granted, with leave to supersede. Sealing is stayed for 30 days.This constitutes the Decision and Order of the Court.
Dated: December 1, 2015_______________________
New York County, New YorkSteven M. Statsinger
Judge of the Criminal Court
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