In New York, the prosecution of sober drivers who disregard minor traffic regulations and cause the death or physical injury of other motorists, pedestrians or bicyclists, has been criticized as weak or non-existent. This is due, in large part, to a small patchwork of laws that only provide prosecutors with a limited opportunity to ascribe criminal culpability to acts of vehicular violence. That, however, may be changing.

Several weeks ago, a New York County Grand Jury issued a report proposing recommendations for legislative changes to strengthen offenses applicable to vehicular collisions resulting in death or serious physical injury. Based upon that report, legislation has been proposed to establish a new article in the Penal Law entitled "Vehicular Violence," that establishes four new offenses including Aggravated Serious Physical Injury by Vehicle (a class A misdemeanor) and Aggravated Death by Vehicle (a class E felony).

It is interesting to note that, over 100 years ago, when the automobile was in its infancy, the New York Court of Appeals had to determine whether criminal culpability could be ascribed to certain driver-related conduct. In People v. Rosenheimer, 209 N.Y. 115 (1913), the court acknowledged that "[a] distance separates the negligence which renders one criminally liable from that which establishes civil liability." It then concluded that the act of leaving the scene of an accident was punishable under the criminal law.

Nonetheless, the recent Grand Jury report highlights the fact that, at present, prosecutors can only avail themselves of a few statutes to criminalize dangerous driving. One statute, under the Administrative Code, known as the "Right of Way" law, is a component of the Vision Zero initiative that was enacted in New York City to reduce pedestrian injuries and fatalities.

Administrative Code §19-190 criminalizes the actions of a driver by imposing misdemeanor penalties for one who "fails to yield to a pedestrian or person riding a bicycle" and causes "physical injury" where the failure to yield and/or physical injury was "caused by the driver's failure to exercise due care."

Since its enactment five years ago, the statute has been challenged on constitutional grounds because it criminalizes an act committed without "due care," a civil negligence standard distinct from the traditional categories of criminal mens rea. Recently, for the first time, an appellate court addressed that challenge, on the merits, and rejected it.

In People v. Torres, 65 Misc.3d 19 (App. Term 1st Dept. 2019), the court held that civil negligence is a valid "constitutional mens rea for criminal liability." It noted that, in general, with regard to public welfare offenses, criminal penalties may be imposed without regard to mental culpability. The court concluded that, if there is "no constitutional infirmity in a crime that requires no mental state at all, then, a fortiori, there is no constitutional infirmity in an offense that requires proof of defendant's failure to exercise due care, a more culpable mental state."

In addition, the court noted that the due care standard in Administrative Code §19-190 is identical to the mens rea standard in VTL §1146, which is the statewide companion, "right of way" statute. Under that law, a driver is guilty of a traffic infraction for causing physical injury to a pedestrian while failing to exercise due care.

The court also rejected an argument that Administrative Code §19-190 is preempted by State Law, i.e., VTL §1146 and Article 15 of the Penal Law. Under the Preemption Clause of the State Constitution, local governments cannot adopt laws that are inconsistent with state law. A local law may, however, provide a greater penalty than state law. In addition, laws dealing with the same subject matter are not necessarily incompatible because they are not identical. Thus, the court concluded that the fact that the Administrative Code provides a greater penalty then state law is not a violation of the State Constitution.

Second, the court held that the Penal Law does not prohibit a local government from utilizing a standard of culpability, i.e., failure to use due care, for crimes that fall outside the Penal Law. Penal Law §15.05, which provides for four separate mental states of culpability, provides that the section, and the specific mental states, apply only to crimes under the Penal Law. Thus, Penal Law §15.05 is inapplicable to crimes, such as Administrative Code §19-190, that are defined outside the Penal Law.

The Grand Jury report noted that the "right of way" statutes, while well intentioned, have limited applicability. They can only be applied to injuries or fatalities caused by a driver who fails to yield the right of way in a cross walk. They do not address fatalities or injuries caused by motorists who fail to exercise due care by committing hundreds of other traffic infractions, e.g., texting while driving, speeding, etc.

The report also noted that prosecutors have had limited success in charging drivers with Reckless Driving, an unclassified misdemeanor, that criminalizes conduct of one who "unreasonably interferes with the free and proper use of the public highway or unreasonably endangers users of the public highway" (VTL §1212). One difficulty is that appellate courts have established a high bar for prosecutors to meet in establishing recklessness under this statute.

Under what has been referred to as the "rule of two," "reckless conduct," as applied under this statute, requires the "presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road." People v. Goldblatt, 98 A.D.3d 817, 819 (3d Dept. 2012) (emphasis added). Thus, speeding and crossing into another lane of oncoming traffic would be sufficient (People v. Armlin, 6 N.Y.2d 231) as would making a U-turn across three lanes of traffic on a parkway (People v. McGrantham, 12 N.Y.2d 892 (2009)).

As noted by the Grand Jury report, the above patchwork of statutes only provides prosecutors with a limited ability to charge sober motorists who ignore traffic regulations and cause serious physical injury or death to pedestrians and bicyclists. Under the proposed legislation, a person would be guilty of a class B misdemeanor when he or she fails to exercise due care and commits a single, specified traffic infraction, and the commission of the traffic infraction is the proximate cause of serious physical injury to another person. The statute defines 23 qualifying traffic infractions, e.g., obeying a red light, U-turns, stop signs, speeding, using a cell phone and texting. It also includes "any state or local statute reasonably related to the safe operation of a motor vehicle."

In using the term "proximate" cause, the statute introduces a term that, until now, has not been included in the Penal Law; it is commonly found, instead, in negligence cases. The term, however, is not completely foreign to criminal cases. Several appellate courts have used the term in discussing the concept of causation as it relates to the crime of Vehicular Assault and Vehicular Manslaughter. See People v. Mojica, 62 A.D.3d 100 (2009); People v. Ballenger, 106 A.D.3d 1375 (3d Dept. 2013).

In the coming legislative session, New York hopes to join five other states in enacting legislation that criminalizes conduct which, until now, has escaped the reach of our criminal laws. The Grand Jury found in its report that vehicular violence is "an epidemic in New York City." It remains to be seen whether the Legislature will respond to the problem in a meaningful way.

Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis/2019). He is a former state Supreme Court Judge.