Opinion
No. 2015QN063074.
05-02-2017
The PEOPLE of the State of New York, v. HAO QUAN YE, Defendant.
Armienti, DeBellis, Guglielmo & Rhoden LLP., New York (Thomas J. Reape, Jr., of counsel), for the Defendant. Richard Brown, District Attorney, Queens County, (Matthew Luongo and Sharon Brodt, of counsel), for the People. Zachary Carter, New York City Law Department (Nicholas R. Ciappetta, of counsel), for the City of New York.
Armienti, DeBellis, Guglielmo & Rhoden LLP., New York (Thomas J. Reape, Jr., of counsel), for the Defendant.
Richard Brown, District Attorney, Queens County, (Matthew Luongo and Sharon Brodt, of counsel), for the People.
Zachary Carter, New York City Law Department (Nicholas R. Ciappetta, of counsel), for the City of New York.
GIA L. MORRIS, J.
In an accusatory instrument filed on January 29, 2016 the defendant, Hao Quan Ye, is charged with violating Administrative Code of the City of New York § 19–190 (hereinafter "AC § 19–190"), Right of Way law. Relying on this Court's decision in People v. Sanson, 52 Misc.3d 980 [Crim Ct., Queens County 2016], as well as People v. Salamon, 54 Misc.3d 960 [Crim Ct, Kings County 2016], the defendant moves for dismissal of the accusatory instrument filed against him on the grounds that the statute is unconstitutional on its face. In determining the instant motion, this Court has considered the defendant's moving papers dated August 23, 2016, January 19, 2017, and February 28, 2017; the People's amended response dated February 16, 2017; the New York City Office of the Corporation Counsel's (hereinafter "the City") opposition papers dated December 27, 2016, the People's brief on appeal in People v. Sanson, and papers on file with the Court.
Consistent with this Court's decision in People v. Sanson, this Court finds that AC § 19–190 is unconstitutional on its face since the statute improperly utilizes a civil tort liability standard of ordinary negligence in a criminal statute instead of a culpable mens rea. However, in order to clarify some issues presented since the Sanson decision was rendered, the court will now expand on its findings in Sanson.
I. AC 19–190 is Not a Strict Liability Statute
At the outset, it appears that there is some confusion as to whether or not AC § 19–190 is intended to be a strict liability statute. Based upon the concessions made by the City and the Queens County District Attorney's office, it is clear that the statute is not a strict liability statute. Indeed, this issue was precisely the reason the Court held oral arguments in Sanson. More specifically, during this oral argument, the following colloquy with the City's attorney, Mr. Ciapetta, occurred:
The court: So I know it is somewhat unusual to have oral arguments on this case but I had a few questions, really of the District Attorney's office, regarding the statute because it seems the District Attorney's Office and Corporation Counsel are reviewing the statute or interpreting the statute different. Mr. Ciapetta, your office has indicated in publicly available documentation, they did not believe the statute to be a strict liability statute, is that correct?
Mr. Ciapetta: Correct
The Court: So, it is your position that an essential element of the crime is. Failure to exercise due care?
Mr. Ciapetta: That is an element that has to be proven, correct.
(See Transcript of Sanson Oral Argument held on June 20, 2016 at 2–3 [hereinafter "Tr"], annexed hereto as Exhibit A [emphasis supplied] ). This is consistent with the City's position in the federal court case involving the statute in which the City specifically held that the statute was not one of strict liability and that "failure to exercise due care" is a necessary element of the crime. (see Stipulated Order of Settlement, Transport Workers Union of Greater New York, et al. v. Bill De Blasio, et al., No. 15cv2225–BMC, at 3 [August 28, 2015], annexed hereto as Exhibit B).
Moreover, although it appears that the People, in their brief to the Appellate Term, Second Department, attempt to confuse the matter by indirectly referring to the statute as one of strict liability, it is clear that the People are bound by both the City's concessions, as well as their own concessions in both the instant case and in the Sanson case (see Exhibits A and B). More specifically, like the City, during oral arguments in Sanson, Assistant District Attorney Sharon Brodt conceded that the statute is not a strict liability statute, and further conceded that the statute utilizes the civil tort liability standard of ordinary negligence:
The Court: Unless you're calling this a negligence statute.
Ms. Brodt: We are not saying it's criminal negligence. And we are saying—
The Court: Under criminal negligence you need to show what he did was negligent
Ms. Brodt: The legislature may criminalize behavior under ordinary negligence that's the Court's constitutional question, it is not whether we need to plead the due care because we pleading [sic] it by quoting the statute, not whether it's a strict liability statute because we agree with corporation counsel it's not
* * *
Ms. Brodt: Again, your Honor, I am not disagreeing that its ordinary negligence. I'm not saying that the definition isn't one of ordinary negligence. I am agreeing with the Court, that the core constitutional question is whether that can be grounds for criminal liability and we are arguing that the core of the argument, that the legislature is free to use strict liability, it could also use ordinary negligence as the grounds for what is a minimal criminal liability, equivalent of a B misdemeanor, and that's the issue.
See Tr. at 13–14 (emphasis supplied).
As such, the City and the People's reliance on decisions from Judges of concurrent jurisdictions in which the statute was found to be constitutional because it was a strict liability statute is clearly flawed, since it is undisputed that the statute was never intended to be a strict liability statute. Notably, while each of these cases summarily found the statute constitutional because strict liability statutes are permissible, not one of those cases attempted to conduct the analysis required to determine the statute's constitutionality. (See People v. Gallagher, 50 Misc.3d 317, 18 N.Y.S.3d 280 [Crim Ct, BX County 2015] ; People v. Hossain, 50 Misc.3d 610, 23 N.Y.S.3d 802 [Crim Ct, N.Y. County 2015] ; People v. Green, 52 Misc.3d 1214(A)[Crim Ct, Queens County 2016] ; People v. Urena, 54 Misc.3d 978 [Crim Co, Queens County 2016] ). While such an analysis is necessary to determine the constitutionality of a strict liability statute, this court declines to conduct such analysis since the parties agree that the statute is not one of strict liability.
II. AC § 19–190 is Unconstitutional Since it Improperly Utilizes the Civil Tort Liability Standard of Ordinary Negligence in Lieu of a Culpable Mens Rea
In People v. Sanson, this Court held that AC § 19–190, Right of way law is unconstitutional on its face since it utilizes a civil tort liability standard of ordinary negligence in lieu of a culpable criminal mens rea as required under both the State and Federal constitutions, and codified in PL § 15.05 ( Sanson, 52 Misc.3d 980 ). As was set forth in Sanson:
The very fabric of our criminal justice system is that an accused person stands before a court innocent until proven guilty, and is entitled to significant constitutional protections separate and distinct from a civil case ( People v. Nelson, NY3d, 27 N.Y.3d 361, 33 N.Y.S.3d 814, 53 N.E.3d 691, 2016 N.Y. Slip Op 02554 [April 5, 2016] (Garcia, J. concurring "[t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice").
(Sanson, 52 Misc.3d at 986, 37 N.Y.S.3d 816). More specifically, utilizing a civil tort liability standard of ordinary negligence in a criminal case violates a defendant's rights to due process and his right to be presumed innocent by criminalizing conduct based upon what a "reasonable person" may think or do, irrespective of the subjective intent ("guilty mind") of the person being charged. (see Elonis v. United States, 575 U.S. –––– at ––––, 135 S Ct 2011 [2015 ] ). Moreover, ordinary negligence, which has its roots in civil law, requires a defendant to become a witness against himself, and improperly shifts the burden to the defendant to explain how his conduct was not negligent. (see e.g Foltis, Inc. v. City of New York, 287 N.Y. 108, 114–115 [1941] (finding that in a case involving ordinary negligence where the respondent has "exclusive knowledge of the care exercised in the control and management of that instrumentality, evidence of circumstances which show that the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff is sufficient to justify an inference of negligence and to shift the burden of explanation to the defendant"); NY Pattern Civil Jury Instructions 2:36 Comparative Fault ("The burden is on the defendant to prove that the plaintiff (decedent) was negligent and that (his/her) negligence contributed to causing the event").
Indeed, as was more fully set forth in Sanson, because of these very constitutional protections afforded to criminal defendants, the United States Supreme Court has seemingly rejected the idea of using a civil tort standard of ordinary negligence in a criminal case, holding that mens rea, or a guilty mind, was required to prove a crime under the federal statute at issue:
Elonis's conviction, however, was premised solely on his posts would be understood by a reasonable person. Such a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct—awareness of some wrongdoing." Staples, 511 U.S., at 606–607, 114 S.Ct. 1793, 128 L.Ed. 608 (quoting United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 88 L.Ed. 48 (1943) ; emphasis added). Having a liability turn on whether a "reasonable person" regards the communication as a threat—regardless of what the defendant thinks—"reduces culpability on the all-important element of the crime to negligence," Jeffries, 692 F.3d, at 484 (Sutton, J., dubitante ), and we "have long been reluctant to infer that a negligence standard was intended in criminal statutes, " Rogers v. United States, 422 U.S. 35, 47, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (Marshall, J., concurring) (citing Morissette, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 ). See 1 C.Torcia, Wharton's Criminal Law § 27, pp. 171–172 (15th ed.1993); Cochran v. United States, 157 U.S. 286, 294, 15 S.Ct. 628, 39 L.Ed. 704 (1895) ( defendant could face "liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind "). Under these principles, "what [Elonis] thinks" does matter. APP 286.
Elonis, 575 U.S. –––– at ––––, 135 S Ct 2011 [2015 ](emphasis supplied).
Moreover, the use of a civil tort negligence standard in a criminal case has been repeatedly rejected by New York state courts. Indeed, even in a case relied upon by the City and the People, the court cautioned against finding criminality simply because ordinary negligence, or carelessness, resulted in someone's death:
two main considerations should be emphasized. Firstly, criminal liability cannot be predicated upon every careless act merely because its carelessness results in another's death
( People v. Haney 30 N.Y.2d 328, 336, 333 N.Y.S.2d 403, 284 N.E.2d 564 (1972) (emphasis supplied); (see also People v. Cabrera, 10 N.Y.3d 370 [2008] (finding criminal negligence needs to be more than mere negligence to create criminal conduct); People v. Boutin, 75 N.Y.2d 692, 695–96 [1990] (The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for criminally negligent homicide).
In opposing the instant motion, the People and the City do not dispute that the statute uses a civil tort liability standard of ordinary negligence instead of a culpable criminal mens rea. Instead, the People and the City maintain that a civil tort standard of ordinary negligence may be used in a criminal statute since the legislatures are free to create strict liability statutes. Such argument is misplaced. While it is clear that legislatures are free to create strict liability statutes, such power is not unlimited. Instead, the legislature's ability to create a strict liability statute must still comport with both the federal and state constitutions in order to be upheld as constitutional. In any event, PL § 15.10 specifically provides that criminal liability can only be enforced through an offense of strict liability or an offense with a culpable mental state. Notably, ordinary negligence is not one of the codified culpable mental states (PL § 15.05).
It should be noted that two Judges of concurrent jurisdictions have found the statute to be constitutional only by requiring the appropriate culpable mens rea to be that of criminal negligence, and not ordinary negligence (see People v. Washington, 54 Misc.3d 802 [Crim Ct, Kings County 2016] ; see also People v. Weckworth, 2017 N.Y. Slip Op 501517(U)[Crim Ct, N.Y. County 2017]. However, the City and People have both conceded in this case that the statute intended to use ordinary negligence, not criminal negligence.
Finally, each of the federal cases relied upon by the People and the City to stand for the proposition that criminal liability may be based on the civil standard of ordinary negligence are cases that involve the review of strict liability statutes, which do not require any culpable mental state (see U.S. v. Dotterweich, 320 U.S. 277 [1943] ; US v. Staples, 511 U.S. 600 [1994] ; US v. Pruett, 681 F.3d 232 [5th Cir2012] ; US v. Ortiz, 427 F.3d 1278 [10th Cir2005] ; United States v. Balint, 258 U.S. 250 [1922] ; United States v. Hanousek, 176 F.3d 1116 [9th Cir.1999] ). However, in this case the People and the City have conceded that AC § 19–190 is not a strict liability statute. To the extent that People v. Gurung appears to stand for the proposition that the civil tort liability standard of ordinary negligence is permissible in a criminal statute, this court respectfully disagrees with this holding. ( People v.Gurung , 54 Misc.3d 1208(A), 52 N.Y.S.3d 247 [Crim Ct, N.Y. County 2016] ).
Accordingly, it is clear that the defendant has met the high burden of establishing that AC § 19–190's use of a civil tort negligence standard of ordinary negligence in a criminal case cannot pass constitutional muster, and must be found unconstitutional.
Lastly, with respect to the People and the City's argument that AC § 19–190 is constitutional because Vehicle and Traffic Law § 1146 (hereinafter "VTL") also uses a civil negligence standard in determining criminal liability, such argument is unavailing. First, it should be noted that the constitutionality of VTL § 1146 has not been tested by the courts, and was not charged in the instant case or in either Sanson or Salamon. Nevertheless, while VTL § 1146 uses the civil tort liability standard of ordinary negligence, the statute is not a criminal statute, but is instead a civil statute that imposes civil penalties against a motorist. (see VTL § 1146 ). Further, to the extent that VTL § 1146 imposes criminal liability against a driver after a second violation occurs within 5 years, the elevation to a misdemeanor for a second offender requires proof or more than ordinary negligence in order to establish criminal responsibility, since it requires proof of a prior violation. Presumably, this second offense gives rise to more than mere negligence.
In contrast, AC § 19–190 is an unclassified misdemeanor, a conviction under which would give someone a criminal record and subject them to a potential 90–day jail sentence. While the City and the People describe this as a "minimal" level of criminal conduct, a conviction under AC § 19–190 also carries significant collateral consequences, including possible deportation since AC § 19–190 may be considered a crime involving "moral turpitude." Thus the consequences of a criminal conviction under AC § 19–190 are very different than the civil penalties imposed under VTL § 1146.
III. Conclusion
For the reasons set forth above, and in accordance with this Court's decision in Sanson, AC § 19–190, Right of Way law is unconstitutional on its face since it utilizes the civil tort liability standard of ordinary negligence instead of a culpable criminal mens rea as required under both the state and federal constitutions and codified in PL § 15.05.
As such, the defendant's motion to dismiss is granted.
The defendant's remaining motions are rendered moot in light of the Court's decision holding AC § 19–190 unconstitutional.
This constitutes the Decision and Order of the Court.
SO ORDERED: