Opinion
18070399
10-01-2018
The People of the State of New York, Plaintiff, v. Michael J. Centola, Defendant.
Appearances: Sandra J. Doorley, District Attorney (Timothy Boucher, Assistant District Attorney), for the People. Stephen J. Sercu, Esq., Attorney for Defendant
Appearances: Sandra J. Doorley, District Attorney (Timothy Boucher, Assistant District Attorney), for the People. Stephen J. Sercu, Esq., Attorney for Defendant Thomas J. DiSalvo, J.
History of the Case.
Thomas J. DiSalvo, J.
The defendant was charged with reckless endangerment in the second degree in violation of PL § 120.20 relative to an incident alleged to have taken place on June 26, 2018 at 1:24 P.M. on Gravel Road in the Town of Webster. An appearance ticket was issued to the defendant, requiring him to appear for an arraignment on July 24, 2018. The arraignment was subsequently adjourned to August 1, 2018, wherein the defendant appeared with his attorney. Subsequent to the arraignment the defendant's attorney submitted omnibus motions, which among other things sought the dismissal of the information as being insufficient on its face, pursuant to PL § 170.35(1)(a), and in furtherance of justice, pursuant to PL § 170.40 (1).
Facts of the Case.
Sufficiency of the Information. The information is comprised of a complaint verified by the arresting officer E.J. Rynders and a supporting deposition verified by the alleged victim, to wit: Phillip L. Provenzano and a second supporting deposition verified by a witness. The complaint alleges that at the time in question Michael J. Centola "... did drive into Phillip J. Provenzano [hereinafter referred to as Provenzano] (03/01/80) with his 2016 white Dodge Ram, creating a substantial risk of serious physical injury." The supporting deposition described some initial contacts between the defendant and Provenzano, after the defendant was seen taking pictures of Provenzano's car. The supporting deposition went on to delineate how the defendant knocked down a business sign owned by Provenzano's aunt. It went on to indicate that Provenzano went outside and walked toward the truck that the defendant was driving to get the truck's license plate number. Provenzano stated in his deposition in pertinent part as follows:
"The male [referring to the defendant] then put the truck in gear and drove into me, first striking my elbow. I did not have time to get out of the way. He kept driving into me pushing into my left hip. The force of the collision made me stumble. He kept driving forward pushing me into Gravel Rd about 3 feet. At this point the male had enough room
to turn left on Gravel Rd. He stopped at the intersection of Gravel Rd. I was able to walk up GravelRd enough to read and confirm the license plate. I told 911 the plate again. He then turned left onto Ridge Road and drove out of sight."
The second supporting deposition verified by a witness to the alleged incident, to wit: Craig S. Frisch, was also filed with the court. It stated in pertinent part as follows:
"...the male [referring to the defendant] walked by the door and kicked down a H & T Grooming sign. The male then went to a white truck. Phil went out to check on the sign. The male then drove the truck into Phil, pushing him into Gravel Rd. Phil was pushed by the truck until it turned left."Legal Analysis.
Penal Law § 120.20 states "A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." The question becomes as to whether the actions described in the accusatory instrument "establish, if true, every element of the offense charged and the defendant's commission thereof" as required by CPL § 100.40(1)( c). Defense counsel maintains that the information is insufficient because it fails to describe reckless conduct that would present a substantial risk of serious physical injury.
First of all, this begs the question as to what constitutes reckless behavior. Penal Law Section 15.05 (3) states as follows:
"A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."
Secondly, it must be determined if the accusatory instrument describes conduct that would present a substantial risk of serious physical injury. Penal Law Section 10.00 (10) states "'Serious physical injury' means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."
There is little doubt that the alleged actions of the defendant relative to the operation of his truck could be described as ill-advised, unwise, and imprudent. Whether those actions rose to the level of reckless conduct that could have led to a serious physical injury is less than certain. "The conduct must actually create a substantial risk of serious physical injury; respondent's 'subjective intent is irrelevant'(People v. Davis, supra, at 36, 530 N.Y.S.2d 529, 526 N.E.2d 20)." (Matter of Kysean D.S., 285 AD2d 994,995, 728 N.Y.S.2d 323,324 [4th Dept. 2001]) Furthermore, "Reckless endangerment ... is defined in terms of the risk produced by defendant's conduct, not intent, and factual impossibility eliminates the risk essential to commission of the crime...." (People v. Davis, 72 NY2d 32,37, 530 N.Y.S.2d 529,532 [1988]) In fact, the actions of the defendant, as described, do not meet the "gross deviation from the standard of conduct" principle established for recklessness by CPL § 15.05 (3).
Reckless endangerment is a crime, namely a class A misdemeanor, punishable by a term of up to one year in the county jail and/or a fine of up to one thousand dollars plus a surcharge of two hundred and five dollars. Thus the facts alleged in an information must be carefully evaluated in applying the reasonable cause standard, set out in CPL § 100.40(1) (b), when determining sufficiency of such an accusatory instrument. However, the prohibition, often stated in case law, that the factual allegations of an information "... should be given a fair and not overly restrictive or technical reading (See People v. Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88,91 [2000]) should not be violated. Nevertheless, informations charging reckless endangerment in the second degree, by their very nature are fact specific, and said facts must be evaluated on a case by case basis in determining sufficiency. But the allegations must amount to more than a mere supposition that the actions of a defendant could cause a serious physical injury.
CPL § 100.40(1)(b) states "The allegations of the factual part of the information, together with those of any supporting deposition which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information."
The definitions of the terms "serious physical injury" and "recklessly" are intertwined. In the instant case there is no allegation as to any injuries actually sustained by Provenzano. There is no allegation describing the speed of the defendant's truck, nor any objective allegation describing the force of impact of the truck on Provenzano. Neither the complaint nor either of the supporting depositions indicate that Provenzano fell down during the course of the incident. If anything can be gleaned from the accusatory instrument, it appears that the truck was moving very slowly at the time in question. There was no indication that there was any oncoming traffic on Gravel Road that may have endangered Provenzano when he was pushed into said street. Based on the totality of the allegations set out in the accusatory instruments, there does not appear to be any reasonable evaluation of the facts which would lead to the conclusion that because of the actions of the defendant, Provenzano was in danger "of a substantial risk of death, or which [said actions could cause] death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Although defendant's actions may constitute the violation of harassment in the second degree, pursuant to PL. § 240.26 (1), the information herein fails to set out non-hearsay allegations establishing, if true, every element of the offense of reckless endangerment in the second degree, namely the elements of recklessness and a risk of serious physical injury as required by CPL § 100.40 ( c). Conclusion.
P.L. § 240.26 (1) states "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same."
See also People v. Godfrey, 140 Misc 2d 24,26, 530 N.Y.S.2d 456,457 [1988] wherein the court held the accusatory instrument charging the defendant with reckless endangerment in the second degree to be insufficient on its face. The complaint in that case alleged that "... the defendant did drive a New York City Bus towards the deponent causing deponent to run backwards for about 15 feet which created a substantial risk of serious physical injury to the deponent.'"
The motion to dismiss the information charging the defendant with reckless endangerment in the second degree as being insufficient on its face is hereby granted. Based on that ruling the court declines to consider the motion to dismiss the information in furtherance of justice. This constitutes the decision and order of the court. Dated: October 1, 2018 Webster, New York ________________________________ Hon. Thomas J. DiSalvo Webster Town Justice