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PEOPLE STATE NEW YORK v. EDWARD L. BUFFINGTON (10/08/69)

COUNTY COURT OF NEW YORK, MONROE COUNTY 1969.NY.43004 <http://www.versuslaw.com>; 304 N.Y.S.2d 746; 61 Misc. 2d 429 October 8, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.EDWARD L. BUFFINGTON, JR., DEFENDANT Charles F. Crimi for defendant. John C. Little, Jr., District Attorney (Edward J. Spires of counsel), for plaintiff. David O. Boehm, J. Author: Boehm


David O. Boehm, J.

Author: Boehm

 The defendant, indicted for the crime of criminally negligent homicide in violation of section 125.10 of the Penal Law, now brings four motions, as follows:

(1) Motion to dismiss the indictment for insufficiency on its face;

(2) Motion to dismiss the indictment for the reason that it is based upon a statute so vague and indefinite as to be unconstitutional;

(3) Motion for a bill of particulars;

(4) Motion for inspection of the autopsy report.

The motion for inspection of the autopsy report is not opposed by the People. The defendant's heaviest attack against the indictment is directed against its constitutionality and the resolution of that motion may well resolve the others.

In 1967, for the first time in New York, the crime of criminally negligent homicide, as it is now defined, was established by section 125.10 of the Penal Law. It has been the subject of many articles and was both abused and defended when it was still gestating in the American Law Institute's Model Penal Code. As an example of legislative brevity and occultness, it is probably without peer. "A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person."

The criticism directed against it arising out of the absence of mens rea appears to be without substance, for this is not the first time criminal sanctions have been imposed and upheld without malus animus. Our megalopolitan industrial age, with its ceaseless boil and swell of cities and impacted populations, has seen the eclipse of mens rea in very many areas of activity which have been legislatively denominated mala prohibita.

"Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

"While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions * * * Whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element * * * This has not, however, been without expressions of misgiving." (Morissette v. United States, 342 U.S. 246, 254-256; Clark & Marshall, A Treatise on the Law of Crimes [7th ed.], § 5.10; Packer, The Limits of the Criminal Sanction, ch. 6, pp. 111-127 [citing the crimes of statutory rape and bigamy as examples of strict liability offenses without mens rea ]; People v. Nelson, 309 N. Y. 231; Tenement House Dept. v. McDevitt, 215 N. Y. 160; People v. Buddensieck, 103 N. Y. 487; People v. Polstein, 184 App. Div. 260, affd. 226 N. Y. 593; United States v. Dotterweich, 320 U.S. 277; and most recently again upheld by the Court of Appeals in People v. Transamerican Frgt. Lines, 24 N.Y.2d 727, 731 [June, 1969].)

The heaviest barrage of contrary comment developed from the imposition of penal liability upon conduct which had been traditionally regarded as deserving only civil penalties, e.g., Hall, Negligent Behavior Should Be Excluded from Penal Liability (63 Col. L. Rev. 632) which points out (p. 633) that the inclusion of negligence in the Penal Law imposes the impossible task of determining whether a person about whom very little is known, has the competence to be aware of or perceive or appreciate the duties and dangers in a particular situation. (See, also, Is Criminal Negligence a Defensible Basis for Penal Liability?, 16 Buffalo L. Rev. 749.)

Although negligence was criminally punishable before the adoption of the Revised Penal Law (§ 1053-a of the old Penal Law), an examination of those cases discloses that their definition of criminal negligence is poles apart from the present one in the law, which is defined as follows: "A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive 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 the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." (Penal Law, § 1505, subd. 4.)

Regardless of the difficulty one may have in straining to comprehend a workable meaning of this definition, one thing is clear; criminal negligence is not what it was. It no longer contains the element of recklessness which is now made a basis of the charge of murder (§ 125.25, subd. 2.), or manslaughter in the second degree (§ 125.15, subd. 1).

"Recklessly" is defined: "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." (Penal Law, § 15.05, subd. 3.)

Historically recklessness was always required before one could be held liable for negligent homicide. In his seminal opinion in 1927 in People v. Angelo (246 N. Y. 451) Judge Andrews called attention to the fact that in 1664 the distinction had already been made between negligence so great as to result in criminal responsibility and that slight degree of negligence which fell far short of a criminal charge. Referring to the cases, Judge Andrews observed (p. 455): "They use such words as 'gross,' 'reckless,' 'culpable'. Consistently, they assert, expressly or by implication, that something more is required than the bare negligence that might be sufficient to support a civil action."

In 1828 precise definitions of the different homicidal crimes were made. It is interesting to note that the Penal Code revisers in their notes, even then, spoke of apportioning the punishment to the seriousness of the offense and suggested the enactment of a crime of manslaughter in the fourth degree where the accused, engaging in a lawful act where there was no apparent risk to life, but not using ordinary care and caution, kills another. But, as Judge Andrews recalls: "Evidently the Legislature was not satisfied with this definition. Its intent was to soften existing rules, not to make them more rigorous. It contained eminent lawyers well instructed as to the common law. It, therefore, struck out this clause. There remained the provision as to killing by 'culpable negligence' practically in the same form as it has existed ever since. It would seem clear, therefore, that the Legislature used the word in the same sense as it had been used for centuries -- as the equivalent of 'criminal,' 'reckless,' 'gross,' such negligence as it is worthy of punishment." (pp. 456-457; emphasis supplied).

The definition of negligence worthy of punishment continued to be surveyed, staked out and traveled upon. Although there were turns, curves and occasional intersections, by 1967 its highways and by-ways were laid out and the guideposts were clear. "Innumerable have been the decisions of the courts passing upon the question of negligence. The path has been pretty well cut out and emblazoned along which a man must proceed to avoid the charge of negligence." (People v. Grogan, 260 N. Y. 138, 146-147 [1932].)

Consistently the courts refused to punish negligence criminally for that which a defendant merely failed to perceive and made the "conscious disregard" standard the traditional test for reckless conduct. (Is Criminal Negligence a Defensible Basis for Penal Liability?, 16 Buffalo L. Rev. 749, 753.) In 1956 the Court of Appeals again, analyzing what was meant by criminal negligence under section 1053-a of the old Penal Law, said: "The terms ' reckless ' and ' culpably negligent ' not only have a definite and certain inherent meaning, but also have a determinative significance acquired through a history of judicial construction which long antedates this enactment * * * An analysis of the decisions indicate, that ordinary negligent conduct -- that is, negligent conduct arising from carelessness, inadvertence, lack of skill, competence or foresight -- would not be a sufficient basis to predicate a conviction where reckless or culpably negligent conduct was required. * * * As the terms signify, this conduct arises when the actor has knowledge of the highly dangerous nature of his actions or knowledge of such facts as under the circumstances would disclose to a reasonable man the dangerous character of his action, and despite this knowledge he so acts." (People v. Eckert, 2 N.Y.2d 126, 130-131; emphasis supplied.)

Consistently, historically and uniformly, recklessness and culpably negligent conduct or criminal negligence were equated as arising out of the same type of conscious disregard for the rights of others. Knowledge, actual or imputed, of the risk, disregard of that risk, and the death of another resulting from the actual or imputed conscious choice of acting or not acting in a certain way, were the essential ingredients which brought about the law's opprobrium.

"With this knowledge * * * he deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, and which in this case did ensue. How can we say, as a matter of law that this did not ...


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