Judge Heidi Cesare

Clyburn moved for dismissal of Administrative Code §19-190(b)—violating the right of way of pedestrians and bicyclists— as defective, unconstitutional and facially insufficient. The information alleged Clyburn struck and injured a pedestrian crossing while the signal was in her favor, as he was making a left-hand turn in his truck. Clyburn argued §19-190 was unconstitutional as it imposed an ordinary negligence mens rea in a criminal statute, but provided no binding authority to support such argument. The court noted the Court of Appeals stated ordinary negligence may be appropriate in a criminal statute in certain circumstances, contrary to Clyburn's claim. It stated §19-190 provided a culpable mental state—”failure to exercise due care”—thus, there was no need to read into the statute any mental state, concluding Clyburn's claim §19-190 violated due process clause was meritless. Also, Clyburn failed to overcome the presumption of validity, ruling his claim §19-190 was void for vagueness was also meritless. The court further rejected Clyburn's assertions of conflict and field preemption as conflicting under Penal Law §15.05. Additionally, as the court found §19-190 was facially sufficient, it denied Clyburn's motion to dismiss.