DECISION AND ORDER Defendant Robin Walters, charged with one count of Failure to Yield to a Right of Way to Pedestrian — Causing Physical Injury (AC §19-190[b]) and one count of Failure of a Driver to Exercise Due Care — Causing Serious Physical Injury (VTL §1146[c][1]), moves for an order dismissing Count One of the information on the ground that Administrative Code §19-190 is unconstitutional. Defendant contends that Administrative Code §19-190 imposes a civil liability negligence standard onto a criminal statute, and that it impermissibly shifts the burden of proof to the Defendant to prove that she was not at fault. For the reasons set forth below, Defendant’s motion is DENIED.I. Factual AllegationsThe criminal court information alleges that on October 5, 2018, at the intersection of East 79th Street and Madison Avenue, a Range Rover driven by the Defendant struck a pedestrian who was in the crosswalk and had the right of way. The pedestrian died from injuries sustained in the collision.II. Legal StandardsAdministrative Code §19-190 states, in relevant 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…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…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.Legislative enactments, including provisions of the Administrative Code, are presumptively constitutional. (People v Knox, 12 NY3d 60, 69 [2009]; People v Clyburn, 56 Misc 3d 1204(A), 2017 NY Slip Op 50866[U], *2 [Crim Ct, NY County 2017].) A party seeking to invalidate a statute “has the burden of showing its unconstitutionality beyond a reasonable doubt.” (In re Travis S., 96 NY2d 818, 819 [2001].)III. AnalysisA. Constitutionality of “Due Care” StandardDefendant argues that Administrative Code §19-190 is unconstitutional because the “failure to exercise due care” set forth in Administrative Code §19-190(c) is equivalent to a civil negligence standard. Use of a civil negligence standard, Defendant contends, violates her Fifth and Fourteenth Amendment rights because she is entitled to a “higher criminal standard of mens rea in the prosecution of a criminal case.” Def. Mtn. at 3. Defendant further argues that “failure to exercise due care” is not enumerated in Penal Law §15.05, which codifies criminally culpable mental states, and thus is not a valid mens rea for criminal conduct.The argument that a higher standard of mens rea than “due care” is necessary for a criminal conviction is misplaced. New York law has specifically codified strict liability crimes, which do not require a culpable mental state, and courts have repeatedly held that “[a] strict liability criminal statute is not per se unconstitutional.” (Morgenthau v Khalil, 73 AD3d 509, 510 [1st Dept 2008].) If New York law permits crimes that require no culpable mental state at all, then some non-specific “heightened” mens rea cannot be a per se requirement in a criminal case.Moreover, the absence of the “due care” standard in the culpable mental states enumerated in Penal Law §15.05 is not determinative. The New York Court of Appeals has recognized that Penal Law §15.05 is not an exhaustive list of culpable mental states. In People v Feingold (7 NY3d 288, 294 [2006]), for example, the Court of Appeals held that depraved indifference to human life is a culpable mental state. Yet depraved indifference is not listed or defined in Penal Law §15.05.The Court of Appeals has also expressly recognized that “[c]riminal liability for death caused by ordinary negligence is sometimes imposed by statute.” (People v Haney, 30 NY2d 328, 334 n 7 [1972].) And other New York statutes impose criminal liability for the failure to exercise due care. Vehicle and Traffic Law §1146, for example, provides that a driver of a vehicle is guilty of a misdemeanor if she causes injury to a pedestrian while “failing to exercise due care,” if she has been convicted of the same offense within the preceding five years; Agriculture and Markets Law §370 provides that an individual who owns a wild animal “capable of inflicting bodily harm,” and who “fail[s] to exercise due care” in safeguarding the public from attack by the animal, “is guilty of a misdemeanor.” (See People v Sandgren, 302 NY 331, 340 [1951].)This Court declines to follow the reasoning set forth in People v Sanson (52 Misc 3d 980 [Crim Ct, Queens County 2016]) and People v Ye (55 Misc 3d 1214(A), 2017 NY Slip Op 50580[U] [Crim Ct, Queens County 2017]), and notes that Elonis v United States (__ U.S. __, 135 S.Ct. 2001 [2015]), on which those cases rely, is inapposite. The Elonis Court declined, as a matter of statutory construction, to “infer that a negligence standard was intended” in the criminal statute at issue. (Id. at 2011.) It does not automatically follow, however, that a “failure to exercise due care” standard may never be applied in a criminal case. Indeed, the Elonis Court explained that it would, as a matter of statutory construction, “read into the statute ‘only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.’” (Id. at 2010, citing Carter v United States, 530 U.S. 255, 269 [2000].) Administrative Code §19-190, however, already contains a mens rea — the failure to exercise due care — and it is thus unnecessary to infer any other standard. Furthermore, operating a vehicle while failing to exercise due care is wrongful conduct. There is thus no need to apply some other level of mens rea in order to “separate wrongful conduct from otherwise innocent conduct.” (See id.)Accordingly, this Court joins with numerous other courts in this jurisdiction in holding that the Defendant has failed to overcome the presumption of constitutionality of Administrative Code §19-190. (See e.g., Clyburn, 2017 NY Slip Op 50866[U], *2; People v Gurung, 54 Misc 3d 1208(A), 2017 NY Slip Op 50060[U], *2 [Crim Ct, NY County 2017]; People v. Urena, 54 Misc 3d 978, 985-88 [Crim Ct, Queens County 2016].)B. Burden ShiftingThe Defendant also argues that Administrative Code §19-190 is unconstitutional because it impermissibly shifts the burden of proof of an element of the crime to the Defendant. Specifically, the Defendant contends that Administrative Code §19-190(c), in providing that “[i]t shall not be a violation…if the failure to yield and/or physical injury was not caused by the driver’s failure to exercise due care,” forces the Defendant to prove that her conduct was not negligent.The failure to exercise due care, however, is an element of the offense which the prosecution must prove. (People v Sanson, 59 Misc 3d 4, *8 [Sup Ct, App Term 2018].) Because the prosecution, not the Defendant, has the burden of proving the Defendant’s failure to exercise due care, Administrative Code §19-190 does not shift the burden of proof of an element of the crime to the Defendant.This opinion constitutes the decision and order of the Court.Dated: July 1, 2019New York, New York
