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People v. Clyburn

Criminal Court of the City of New York, New York County

June 29, 2017

The People of the State of New York, Plaintiff,
v.
Rance Clyburn, Defendant.

          For the Defendant: Frederick L. Sosinsky, Esq.

          For the People: Cyrus R. Vance, Jr., District Attorney, New York County(Molly G. Brottmiller, of Counsel)

          Zachary W. Carter, Corporation Counsel of the City of New York (Nicholas R. Ciappetta, of Counsel)

          HEIDI C. CESARE, J.

         The defendant, Rance Clyburn, charged by information with violating the right of way of pedestrians and bicyclists (Administrative Code of the City of New York § 19-190 [b]) (count one), unlicensed driving (Vehicle and Traffic Law § 509 [1]) (count two), and failure of driver to exercise due care (Vehicle and Traffic Law § 1146 [c] [1]) (count three), moves by omnibus motion to dismiss count one of the information as defective, unconstitutional and facially insufficient (Criminal Procedure Law §§ 100.15, 100.40, 170.30 [1] [a]), 170.35 [1] [a]) and for other relief. For the reasons stated below, defendant's motion to dismiss count one is DENIED. [1]

         I. The Allegations

         According to the factual allegations in the information, on December 9, 2016, at about 4:51 p.m., defendant, while driving a truck, executed a left-hand turn from northbound 10th Avenue to west bound 39th Street. As he turned the corner, defendant struck and injured a pedestrian who was crossing 39th Street at the cross walk with the walk signal in her favor. A responding police officer found the woman unresponsive and lying in the street in front of the defendant's truck. Several hours after the collision, defendant made statements about the collision to the deponent officer.

         Count one of the information charges defendant with violating the right of way of pedestrians and bicyclists (Administrative Code § 19-190 [b]). Section 19-190 provides in pertinent 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, which shall be punishable by a fine of not more than fifty dollars or imprisonment for not more than fifteen days or both such fine and imprisonment.
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, which shall be punishable by a fine of not more than two hundred fifty dollars, or imprisonment for not more than thirty days or both such fine and imprisonment.
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.

         To sustain a conviction under Administrative Code § 19-190 (b), the People must prove that a defendant (1) operated a motor vehicle, (2) failed to yield to a pedestrian or cyclist who had the right of way, (3) caused contact with such pedestrian or cyclist and thereby caused physical injury, and (4) in failing to yield and causing physical injury, failed to exercise due care. [2]

         II. Administrative Code § 19-190 is constitutional.

         Defendant argues that Administrative Code § 19-190 is unconstitutional because it imposes an ordinary negligence mens rea in a criminal statute. Defendant, however, ...


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