Defendant is charged with one count of Criminally Negligent Homicide, three counts of Assault in the Second Degree and two counts of Offering a False Instrument for Filing in the First Degree. The charges arise from an accident in a taxicab driven by the Defendant on West Street in the vicinity of West Houston Street in Manhattan in 2006. In the accident, one of the passengers in Defendant’s taxi, either exited or was ejected from the cab and was then struck and killed by a second taxi. Three other passengers in the taxi suffered significant injuries while still in the cab when the vehicle struck a building.
A New York Criminal Lawyer said that, the People allege that the accident was caused by a seizure the Defendant suffered. It is also alleged that the Defendant had a history of seizures and fraudulently failed to disclose this information in applications for a taxi license he filed. Based on this seizure history, his alleged deception in obtaining his taxi license, the fact that he had stopped taking seizure medications at the time of the accident and the fact that a seizure allegedly caused the accident, the People allege that the Defendant caused the passenger’s death with criminal negligence. Criminally Negligent Homicide is a Class E non-violent felony punishable by a maximum indeterminate sentence for a first felony offender, like Defendant here, of 1 1/3 to 4 years in state prison. A Bronx Criminal Lawyer said that, defendant is also charged with three counts of Assault in the Second Degree, a Class D violent felony, for each of the three injured victims who were present in the taxi. Defendant contends that he did not, in fact, suffer a seizure at the time of the accident. He will also apparently contend at trial that he did not, in any respect, act with criminal negligence during the accident and thus cannot be held criminally responsible for the death or injuries which occurred.
A Bronx Defense Lawyer said that, defendant moves to dismiss the three counts of Assault in the Second Degree which are charged in the indictment. The Defendant acknowledges that he would not likely be entitled to dismiss before trial charges which alleged that the Defendant had committed the crime of Assault in the Third Degree with respect to the three injured victims pursuant to Penal Law § 120.00 (3), a Class A misdemeanor, on the facts alleged here. That statute provides that a defendant is guilty of this crime when “with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument”.
The issue in this case is whether defendant is entitled to his motion to dismiss.
The Court said that the indictment alleges that, with respect to the three injured victims, Defendant violated Penal Law § 120.05 (6). That statute provides that: A person is guilty of assault in the second degree when: (6) In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight there from, he, or another participant if there be any, causes physical injury to a person other than one of the participants;
A Nassau County Criminal Lawyer said the defendant raises three contentions. First, he argues that in enacting the Second Degree Assault statute Defendant is charged with violating, the legislature could not possibly have intended to punish the physical injury of a victim at a level significantly higher than the death of an individual which is caused by the same act. That is, while Defendant is charged with a Class E non-violent felony here for causing the death of the passenger, an act which could result, at most, in an indeterminate sentence of 1 1/3 to 4 years in prison, he is facing three maximum 7 year determinate terms for causing the physical injury of the three injured victims through the identical conduct. Second, Defendant alleges that there is no way the “in furtherance of” language in the Second Degree Assault statute could possibly be satisfied by the conduct alleged here. That is, when the Defendant allegedly caused the physical injury of the three victims, there is no way, in logic, law or common-sense, that those injuries could be construed as being “in furtherance of” Defendant’s homicide offense as required by the statute. A third claim raised by the Defendant that the mens rea of criminal negligence cannot serve as the basis on which to infer the underlying intent which must be present to sustain a charge of Second Degree Assault was raised by Defendant and rejected on the merits by Acting Supreme Court Justice in a Decision and Order in this matter on December 5, 2007. That ruling on the merits is the “law of the case” and binding on this court now. This third claim is therefore denied on that basis.
Defendant’s first claim is grounded not only on the obvious incongruity of punishing a homicide at a lower level than an assault arising from the identical alleged acts, but by appellate authority recognizing, in situations closely analogous to that here, that punishing an assault with a higher penalty than a homicide arising from the same conduct would be contrary to the intent of the legislature. The case most directly on point is the 1998 case. In the said case, the defendant ran a red light, struck and seriously injured a pedestrian and was found to have a blood alcohol reading of .15, well above the threshold for intoxication. He was charged, among other crimes, with DWI as a felony, due to a previous DWI conviction, Assault in the First Degree, Assault in the Second Degree and Vehicular Assault in the Second Degree. The Defendant was found guilty, among other crimes, of Assault in the First Degree and DWI. The Assault in the First Degree charge he was convicted of, Penal Law § 120.10 (4), required that it be proven that: “in the course of and in furtherance of the commission or attempted commission of a felony or of immediate flight there from, he or another participant if there be any, causes serious physical injury to a person other than one of the participants.”
The Court dismissed Defendant’s First Degree Assault convictions on a number of related grounds. First, the Court noted that the legislature had enacted vehicular assault and vehicular manslaughter statutes to cover injuries and deaths caused by intoxicated drivers and had clearly intended these statutes, rather than the general assault statutes, to cover conduct like that which the Defendant had engaged in. The Court also focused, however, on the irrationality of punishing the Defendant at a higher level for the assault he had committed than would be possible had he killed his victim and held that such a result would be contrary to the intent of the legislature in enacting the assault statutes.
On the facts of this case, defendant could have been found guilty only of second degree vehicular assault, a class E felony, because the victim of the incident suffered serious physical injury. Had the victim died defendant could have been convicted of second degree vehicular manslaughter, a class D felony. Defendant, however, was convicted of first degree assault under Penal Law § 120.10 (4), a class C felony, a more serious crime than could have been charged if the victim had died. This is an unreasonable and unjust result and could not have been intended by the.
Defendant’s final argument for dismissal is that the “in furtherance of” requirement of the Second Degree Assault statute is not satisfied by the allegations here. As noted supra, the Second Degree Assault statute requires that a crime serving as the basis for elevating an assault causing physical injury to a Class D violent felony must be committed “in the course of and in furtherance of the commission or attempted commission of a felony”. The first question this raises is whether the “in furtherance of” language adds any proof requirement element to the statute beyond the requirement that the assault be committed in the course of committing a felony. The People argue that on the unique facts of this case, essentially, these are not two discrete proof elements, because the ” in the course of’ and in furtherance of’ elements are so inextricably intertwined both factually and temporally as to be virtually inseparable.” In the view of this Court, however, under well-established principles of statutory construction, these two phrases must be construed as two distinct proof elements, each of which has independent meaning.
Here, it is obvious that the allegations underlying the indictment make out the element that Defendant’s alleged assaults were committed “in the course of” his commission of the felony of Criminally Negligent Homicide. If the requirement that the assaults were also committed “in furtherance” of the homicide is to be given any meaning, however, those assaults must have a nexus with the homicide beyond the fact that they occurred in the course of committing the homicide. In the Court’s view, no such additional nexus exists. The initial potential issue with the indictment in this regard, as Defendant points out, is the fact that the mens rea of criminal negligence does not include any mental state in which the defendant is alleged to have any intention or awareness of any kind regarding the risk his conduct is creating with respect to the result that conduct causes. Criminal negligence is a mental state which is premised on the lack of any knowledge by a defendant of the risk their conduct creates.
Nothing in the Court’s holding should be construed as denigrating the seriousness of the injuries which were allegedly caused in this case, or the culpable conduct alleged to have been engaged in by the Defendant. The Court recognizes the great pain and suffering which this horrible crash has caused. The function of the courts, however, in construing a statute, is to give effect to the intent of the legislature and interpret statutes according to the fair meaning of their terms and in accordance with applicable principles of statutory construction. Applying those principles, in the Court’s view, leads to the conclusion that the Defendant cannot be charged with Assault in the Second Degree for the conduct which is alleged to have occurred in this case. The three counts of the indictment which charge the Defendant with Assault in the Second Degree are therefore dismissed. The People are granted leave to re-present to a different Grand Jury, pursuant to CPL 210.20, any charges concerning the three alleged injured victims of the accident discussed herein, other than charges of Assault in the Second Degree pursuant to PL § 120.05 (6).
Accordingly, the Court held that defendant’s motion is granted and the three counts of Assault in the Second Degree charged in the indictment are dismissed.
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