People v Clyburn

[*1] People v Clyburn 2017 NY Slip Op 50866(U) Decided on June 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2017
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Rance Clyburn, Defendant.



2016NY009341



For the Defendant:

Frederick L. Sosinsky, Esq.

For the People:

Cyrus R. Vance, Jr., District Attorney, New York County(Molly G. Brottmiller, of Counsel)

Zachary W. Carter, Corporation Counsel of the City of New York

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

The defendant, Rance Clyburn, charged by information with violating the right of way of pedestrians and bicyclists (Administrative Code of the City of New York § 19-190 [b]) (count one), unlicensed driving (Vehicle and Traffic Law § 509 [1]) (count two), and failure of driver to exercise due care (Vehicle and Traffic Law § 1146 [c] [1]) (count three), moves by omnibus motion to dismiss count one of the information as defective, unconstitutional and facially insufficient (Criminal Procedure Law §§ 100.15, 100.40, 170.30 [1] [a]), 170.35 [1] [a]) and for other relief. For the reasons stated below, defendant's motion to dismiss count one is DENIED.[FN1]

I. The Allegations

According to the factual allegations in the information, on December 9, 2016, at about 4:51 p.m., defendant, while driving a truck, executed a left-hand turn from northbound 10th Avenue to west bound 39th Street. As he turned the corner, defendant struck and injured a pedestrian who was crossing 39th Street at the cross walk with the walk signal in her favor. A responding police officer found the woman unresponsive and lying in the street in front of the defendant's truck. Several hours after the collision, defendant made statements about the collision to the deponent officer.

Count one of the information charges defendant with violating the right of way of pedestrians and bicyclists (Administrative Code § 19-190 [b]). Section 19-190 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 [*2]fine and imprisonment.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.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 Administrative Code § 19-190 (b), the People must prove that a defendant (1) operated a motor vehicle, (2) failed to yield to a pedestrian or cyclist who had the right of way, (3) caused contact with such pedestrian or cyclist and thereby caused physical injury, and (4) in failing to yield and causing physical injury, failed to exercise due care.[FN2]

II. Administrative Code § 19-190 is constitutional.

Defendant argues that Administrative Code § 19-190 is unconstitutional because it imposes an ordinary negligence mens rea in a criminal statute. Defendant, however, provides no binding authority to support this argument.

Contrary to defendant's claim, the Court of Appeals has indicated that in certain circumstances, ordinary negligence may be appropriate in a criminal statute. "Criminal liability for death caused by ordinary negligence is sometimes imposed by statute" (People v Haney, 30 NY2d 328, 334 n.7 [1972], see e.g., People v Sandgren, 302 NY 331 [1951]). Indeed, the Court of Appeals has held that even crimes with no culpable mental state are permissible: "[c]rimes may be created without intent as a factor other than an intent to commit the prohibited act but there must be some reasonable relationship between the public safety, health, morals, or welfare and the act prohibited" (People v Munoz, 9 NY2d 51, 58 [1961]).

Defendant relies on Elonis v United States (575 US ___, 135 S Ct 2001 [2015]) for his claim that an ordinary negligence standard is constitutionally forbidden in a state criminal statute. Elonis, however, is a case of statutory construction and not constitutional interpretation. Elonis stands for the proposition that where a federal criminal statute is silent as to the required mental state, the court will "read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct" (Elonis, supra at 2010 [internal citations omitted]). Here, Administrative Code § 19-190 provides a culpable mental state, specifically, "failure to exercise due care." Since Administrative Code § 19-190 provides a culpable mental state, there is no need to read into the statute any mental state and Elonis is inapposite.

For the foregoing reasons, defendant's claim that Administrative Code § 19-190 violates the due process clause is without merit.

III. Administrative Code § 19-190 is not void for vagueness.

Defendant further argues that AC § 19-190 is unconstitutionally vague. "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 668, 681 [2000]). 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 conviction under Administrative Code § 19-190 (b) requires proof of a defendant's failure to exercise due care. Due care has a common definition recognized in law and in life: "[d]ue care is that care which is exercised by reasonably prudent drivers" (Russell v Adduci, 140 AD2d 844, 845-846 [3rd Dept 1988]). The court finds that defendant has failed to overcome the presumption of validity and has failed to demonstrate that the due care standard is beyond the ken of a person of ordinary intelligence or [*3]that this statute would result in arbitrary or discriminatory enforcement by the police. For the foregoing reasons defendant's claim that Administrative Code § 19-190 is void for vagueness is without merit.

IV. Administrative Code § 19—190 (b) is not preempted by Article 15 of the Penal Law.

Defendant also invokes the doctrines of conflict preemption and field preemption in his challenge to Administrative Code § 19-190 but fails to establish either.

"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 New York, 25 NY3d 684, 690 [2015]). (See 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 its citizens"[FN3] (New York State Club Assn. v City of New York, 69 NY2d 211, 217 [1987], aff'd. 487 US 1 [1988]). 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, 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, New York State Club Assn., supra at 217).

Defendant argues that Administrative Code § 19-190 conflicts with Penal Law § 15.05, contending that criminal liability may not be premised on an ordinary negligence standard, since the least culpable mental state set forth in Penal Law § 15.00 is criminal negligence which is a stricter standard than ordinary negligence. Penal Law § 15.05, however, provides that the four enumerated definitions of culpable mental states are "applicable to this chapter" indicating, expressly, that § 15.05 applies only to the Penal Law. For the foregoing reason, this court finds that defendant's claim of conflict preemption is without merit.

"Field preemption may be express as evidenced by the legislature's stated directive, it may also 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]). 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.[FN4] For the foregoing reasons, defendant's claim of field preemption is also without merit.

V. Count One (Administrative Code § 19-190 [b]) is facially sufficient.

Defendant contends that count one is facially insufficient on the theory that a deponent officer's "after-the-fact viewing of unauthenticated surveillance footage" is hearsay and therefore fails the "facts of an evidentiary character" requirement under CPL 100.15 (3).

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]). "The factual part of a misdemeanor complaint must allege 'facts of an evidentiary character' (CPL 100.15[3]) demonstrating 'reasonable cause' to believe the defendant committed the crime charged (CPL 100.40[4][b])" (People v Dumas, 68 NY2d 729, 731 [1986]). 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 [*4]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]).

Hearsay is defined in New York as an out of court statement offered to prove the truth of the matter asserted in the statement (People v Nieves, 67 NY2d 125, 131 [1986]). The hearsay rule "forbids the use of an assertion made out of court as testimony to the truth of the fact asserted" (People v Edwards, 47 NY2d 493, 496 [1979]). The hazards of hearsay are obvious. "As the person who made the statement is not called as a witness at trial, the adversary of the party offering the proof is afforded no opportunity to cross-examine the declarant or impeach his credibility" (People v Settles, 46 NY2d 154, 166 [1978)).

The surveillance video referenced in the information is a recorded visual depiction of a certain location over a certain period of time. The relevant portion of the factual allegations reads as follows:

"I also reviewed video surveillance of West 39th Street and 10th Avenue from approximately 4:51 P.M. on December 9, 2016. In that video surveillance, I observed Ms. Munoz Carmona crossing West 39th Street from north to south in the crosswalk with the walk signal in her favor when the above-referenced truck, without care for her presence in the crosswalk, turned left and struck Ms. Munoz Carmona inside the crosswalk."

The surveillance video, itself, is not an assertion of any party. It is a machine-made video recording. Nothing in the record indicates that the recording contains any witness statements. As a non-testimonial, machine-made video recording, the surveillance video poses none of the credibility hazards contemplated by the hearsay rule. Whether the video is admissible at trial is a matter to be determined by the trial court, but for pleading purposes the surveillance video is relevant, material, non-testimonial evidence wholly within the meaning of "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]).

For the foregoing reasons defendant's claim that count one of the information charging a violation of Administrative Code § 19-190 (b) is facially insufficient is without merit.

VI. Conclusions

Defendant's motion to dismiss count one of the information (Administrative Code § 19-190 [b]) is denied.

Defendant's motion for a combined Huntley/Dunaway hearing is granted.

The right to make further motions is granted to the extent indicated in CPL 255.20 (3).

This constitutes the decision and order of the court.

June 29, 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, all documents in the court file, and all relevant cases and statutes.

Footnote 2:The parties agree that failure to exercise due care is an essential element of the offense.

Footnote 3:NY 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).

Footnote 4:Notably, New York State's Vehicle and Traffic Law § 1640, "Traffic regulations in all cities and villages," affirmatively permits the City of New York to regulate the right of way of pedestrians on public roads. In pertinent part, VTL § 1640 (a) (2) and (3) provide: "The legislative body of any city or village, with respect to highways . . . includ[ing] private roads open to public motor vehicle traffic . . . in such city or village . . . may by local law, ordinance, order, rule or regulation . . .[p]rohibit or regulate the turning of vehicles or specified types of vehicles at intersections or other designated locations [and] [r]egulate the crossing of any roadway by pedestrians."