Opinion
2017NY054915
10-01-2018
The PEOPLE of the State of New York, Plaintiff, v. Dave LEWIS, Defendant.
For the Defendant: Crotty Saland P.C., New York (Jeremy Saland, of counsel, New York) For the People: Cyrus R. Vance, Jr., District Attorney, New York County (Raffaela Belizaire, of counsel)
For the Defendant: Crotty Saland P.C., New York (Jeremy Saland, of counsel, New York)
For the People: Cyrus R. Vance, Jr., District Attorney, New York County (Raffaela Belizaire, of counsel)
Heidi C. Cesare, J.
Trial having commenced in the instant case, People v. Dave Lewis , Docket No. 2017NY054915, and the court, having conducted a charge conference with notice to and an opportunity to be heard by both sides, does hereby provide the following charge on the law as to each count in the prosecutor's information, specifically, right of way of pedestrians and bicyclists — physical injury (Administrative Code of City of NY § 19-190 [b] ) (count one) and failure of a driver to exercise due care - serious physical injury ( Vehicle and Traffic Law § 1146 [c] [1] ) (count two).
I. The Court's Charge on the Law
The Court of Appeals has held that a charge upon the law is just as essential in the trial of an information as it is in the trial of an indictment ( People v. Wallens , 297 NY 57 [1947] ). Moreover, "[t]he provisions governing motion practice and general procedure with respect to a jury trial of an indictment are, wherever appropriate, applicable to a non-jury trial of an information" ( Criminal Procedure Law 350.10 [4 ] ). "In its charge, the court must define each offense so submitted" ( Criminal Procedure Law 300.10 [4 ] ). Defendant is charged by way of a prosecutor's information with two counts. Count one is the right of way of pedestrians and bicyclists — physical injury (Administrative Code of City of NY § 19-190 [b] ). Count two is failure of a driver to exercise due care -- serious physical injury ( Vehicle and Traffic Law § 1146 [c] [1] ). No model instructions exist for either charge. The parties are therefore advised that the court, as trier of fact in the instant bench trial, will observe the following charges on the law.
A. Count One: Right of Way of Pedestrians and Bicyclists — Physical Injury (Administrative Code § 19-190 [b] )
Under the Administrative Code of the City of New York, "any driver of a motor vehicle who fails to yield to a ... person riding a bicycle when such ... person has the right of way" (Administrative Code § 19-190 [a] ), "and whose motor vehicle causes contact with a ... person riding a bicycle and thereby causes physical injury" (Administrative Code § 19-190 [b] ), where "the driver's failure to exercise due care" (Administrative Code § 19-190 [c] ) caused the "failure to yield and/or physical injury" (id. ) is guilty of a misdemeanor.
For the fact finder to find the defendant guilty of count one (Administrative Code § 19-190 [b] ), the People must prove, beyond a reasonable doubt, the following four elements (see People v. Sanson , 59 Misc 3d 4, 8 [App Term 2018], lv denied 31 NY3d 1086 [2018] ):
1. On or about June 12, 2017, in the county and state of New York, the defendant, Dave Lewis, operated a motor vehicle;
2. The defendant failed to yield to bicyclist who had the right of way;
3. The vehicle operated by the defendant came into contact with the bicyclist and thereby caused physical injury to the bicyclist; and
4. The defendant's failure to exercise due care caused the defendant's failure to yield the right of way to the bicyclist and caused physical injury to the bicyclist.
In evaluating the People's proof, the fact finder will apply the following definitions and consider the following rules of the road under the Vehicle and Traffic Law.
"Driver" means "[e]very person who operates or drives or is in actual physical control of a vehicle" ( Vehicle and Traffic Law § 113 ).
"Motor vehicle" means a "vehicle operated or driven upon a public highway which is propelled by any power other than muscular power" ( Vehicle and Traffic Law § 125 ).
"Right of way" means "[t]he right of one vehicle or [bicyclist] to proceed in a lawful manner in preference to another vehicle or [bicyclist] approaching under such circumstances of direction, speed and proximity as to give rise to danger of collision unless one grants precedence to the other" ( Vehicle and Traffic Law §§ 139, 1231 ). The rule of right of way applies equally to motor vehicle drivers and bicyclists (see Vehicle and Traffic Law § 1231 ["Every person riding a bicycle ... upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title"] ).
"Due care is that care which is exercised by reasonably prudent drivers. It is not that degree of care which guarantees that a driver will avoid any accident no matter what the circumstances might be" ( Russell v. Adduci , 140 AD2d 844, 845-846 [3d Dept 1988] ).
In determining whether a driver of a motor vehicle failed to exercise due care, the fact finder may consider whether the driver complied with relevant provisions of the New York State Vehicle and Traffic Law (see e.g. Barbieri v. Vokoun , 72 AD3d 853, 856 [2d Dept 2010] ["[A] violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se " ).
When the operator of a motor vehicle overtakes a bicyclist, the Vehicle and Traffic Law requires that, "[t]he operator of a vehicle overtaking, from behind, a bicycle proceeding on the same side of a roadway shall pass to the left of such bicycle at a safe distance until safely clear thereof" ( Vehicle and Traffic Law § 1122-a ).
With respect to following too closely, "[t]he driver of a motor vehicle shall not follow [a bicycle] more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" ( Vehicle and Traffic Law §§ 1129 [a], 1231).
With respect to bicycles on the roadway, the Vehicle and Traffic Law requires that, "[u]pon all roadways, any bicycle ... shall be driven either on a usable bicycle ... lane or, if a usable bicycle ... lane has not been provided, near the right-hand curb or edge of the roadway ... in such a manner as to prevent undue interference with the flow of traffic except when ... reasonably necessary to avoid conditions that would make it unsafe to continue along near the right-hand curb or edge. Conditions to be taken into consideration include, but are not limited to, fixed or moving objects, vehicles, bicycles, in-line skates, pedestrians, animals, surface hazards or traffic lanes too narrow for a bicycle or person on in-line skates and a vehicle to travel safely side-by-side within the lane" ( Vehicle and Traffic Law § 1234 [a] ).
B. Count Two: Failure of a Driver to Exercise Due Care -- Serious Physical Injury ( Vehicle and Traffic Law § 1146 [c] [1] )
Under New York law, "every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist ... upon any roadway and shall give warning by sounding the horn when necessary" ( Vehicle and Traffic Law § 1146 [a] ). A person is guilty of failure to exercise due care when that person is "[a] driver of a motor vehicle who causes serious physical injury ... to a ... bicyclist while failing to exercise due care" ( Vehicle and Traffic Law § 1146 [c] [1] ).
For the fact finder to find the defendant guilty of count two ( Vehicle and Traffic Law § 1146 [c] [1] ), the People must prove, beyond a reasonable doubt, the following two elements:
1. On or about June 12, 2017, in the county and state of New York, the defendant, Dave Lewis, was a driver of a motor vehicle who caused serious physical injury to a bicyclist; and
2. The defendant failed to exercise due care to avoid colliding with the bicyclist.
"Driver," "motor vehicle" and "due care" have been defined above. "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" ( Penal Law § 10.00 [10 ] ).
In evaluating the People's proof as to the due care element, the fact finder will consider the rules of the road under the Vehicle and Traffic Law as discussed above (see Vehicle and Traffic Law §§ 139, 1122-a, 1129 [a], 1231, and 1234 [a].
II. Defendant's request for an equipment instruction is denied.
As to count one (Administrative Code § 19-190 [b] ) and count two ( Vehicle and Traffic Law § 1146 [c] [1] ), defendant contends that the due care portion of the charge should include an instruction on the equipment requirements of bicyclists. Specifically, defendant requests an instruction on the rule that, "[i]t shall be unlawful to operate upon any public highway in this state a ... bicycle while the operator is wearing more than one earphone attached to a[n] ... audio device" ( Vehicle and Traffic Law § 375 [24-a ] ). Defendant argues that this instruction is proper because the evidence shows that the bicyclist was wearing headphones over both ears when his bicycle and the bus driven by the defendant collided. The bicyclist's equipment, however, has no relevance as to whether the defendant exercised due care when he operated a bus, or who had the right of way at the time the bus and the bicycle collided. For the foregoing reasons, defendant's request for an equipment instruction is denied.
III. Defendant's request for a criminal negligence instruction is denied.
As to count one (Administrative Code § 19-190 [b] ), defendant also requests a criminal negligence charge. Specifically, defendant contends that (1) that the mens rea element for count one should be "criminal negligence" as defined in Penal Law § 15.15 (2) and (2) that the law of the case doctrine (see People v. Evans , 94 NY2d 499, 502-03 [2000] ) requires that this court so charge. The court disagrees in both respects.
A. The correct mens rea for Administrative Code § 19-190 (b) is failure to exercise due care.
Defendant requests a charge that the correct mens rea element for count one is "criminal negligence" as defined by Penal Law § 15.15 (2). By requesting the court to so charge, defendant is asking this court to read into the statute a criminal negligence standard where the statute, by its own plain language requires proof of a defendant's "failure to exercise due care" (see Administrative Code § 19—190 [c] ). This court finds no basis in law to impose a different, more onerous standard where the statutory language is plain and clear. "In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction, and courts have no right to add to or take away from that meaning" ( Tompkins v. Hunter , 149 NY 117, 122-23 [1896] ). The due care standard has a common definition recognized in law and in life: "[d]ue care is that care which is exercised by reasonably prudent drivers" ( Russell v. Adduci , 140 AD2d 844, 845 [3d Dept 1988] ). Indeed, In People v. Sanson , the Supreme Court, Appellate Term for the Second Department held that, "it was the Legislature's intent that Administrative Code § 19-190 (b) contain the element of failing to exercise due care" ( 59 Misc 3d 4, 8 [App Term 2018], lv denied 31 NY3d 1086 [2018] [internal citations omitted] ). For these reasons, the court finds that the mens rea under count one is failure to exercise due care.
B. The law of the case doctrine has no application in the present dispute.
Defendant also contends that this court should find that the criminal negligence standard is correct under a "law of the case" theory. The "law of the case doctrine is found in no New York statute" ( People v. Evans , 94 NY2d 499, 502 [2000] ). It "is a judicially crafted policy that ‘expresses the practice of courts generally to refuse to reopen what has been decided, [and is] not a limit to their power’ " ( id. at 503 , quoting Messenger v. Anderson, 225 US 436, 444 [1912] ). The "doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case" ( id. at 504 ; see also People v. Cummings , 31 NY3d 204, 208 [2018] ). The law of the case doctrine, however, does not contemplate that every ruling is binding on a court of coordinate jurisdiction (id. ). Moreover, the doctrine "rests on the prerequisite that parties would have fully litigated the issue in controversy" ( People v. Bilsky , 95 NY2d 172,176 [2000] ).
Despite defendant's contention, no prior judge has ruled as to the appropriate charge on the law. The prior ruling invoked by defendant is the court's Decision and Order (Hanshaft, J.), dated March 14, 2018, denying defendant's motion to dismiss. There, the court denied all three prongs of defendant's motion to dismiss including defendant's motion to dismiss for facial insufficiency. In its sufficiency review, the court found that the information was facially sufficient whether the mens rea was failure to exercise due care (see Administrative Code § 19-190 [c] ) or criminal negligence ( Penal Law § 15.05 [4 ] ). The court did not find that criminal negligence was the correct standard. The court merely entertained defendant's contention in its denial of defendant's motion to dismiss.
Defendant moved to dismiss count one (Administrative Code § 19-190 [b] ) for facial insufficiency, on preemption grounds, and as unconstitutional.
Here, the issue in controversy is how to properly charge the law as to count one (Administrative Code § 19-190 [b] ) and as to count two ( Vehicle and Traffic Law § 1146 [c] [1] ). No other judge has rendered a prior ruling on this issue in this case. No other judge has asked the parties to brief or argue this issue. On this basis, this court finds that the doctrine of the law of the case has no application in the present dispute.
IV. Conclusion
For the foregoing reasons, the court's charge on the law is approved and defendant's requests to charge are denied.
This constitutes the decision and order of the court.