Supreme Court, Appellate Term, First Department, September 23, 2019

Amanda C. Croushore, New York City, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Samuel Z. Goldfine of counsel), for respondent.

Zachary W. Carter, Corporation Counsel, New York City (Mackenzie Fillow of counsel), for City of New York, amicus curiae.

Judgment of conviction, rendered September 13, 2017, affirmed.

On February 12, 2016, at 10:02 a.m., defendant, who was driving a loaded truck at West 37th Street and 11th Avenue in Manhattan, struck and killed a woman who was crossing the street within the crosswalk, with a pedestrian "WALK" sign in her favor. Defendant was charged with violating Administrative Code of the City of New York § 19-190 (b), a misdemeanor, {**65 Misc 3d at 21}and Vehicle and Traffic Law § 1146 (c) (1), a traffic infraction. Administrative Code § 19-190, a component of the Vision Zero initiative to reduce pedestrian injuries and fatalities, imposes misdemeanor criminal penalties upon a driver who "fails to yield to a pedestrian or person riding a bicycle," and causes "physical injury," where the failure to yield and/or physical injury was "caused by the driver's failure to exercise due care" (Administrative Code § 19-190 [a], [b], [c]).

Defendant pleaded guilty to the charged offenses in exchange for a conditional discharge, a fine of $750, a six month revocation of his driver's license, and a requirement to complete an attitudinal driving program. On appeal, defendant challenges the validity of Administrative Code § 19-190 (b) on constitutional and preemption grounds. Defendant also challenges the validity of his plea, and claims the sentence was excessive. We find the challenges unavailing and, therefore, affirm, albeit on variant grounds than those relied upon by Criminal Court.

This is the first appellate court addressing, on the merits, a constitutional challenge to section 19-190 (b). Defendant claims that section 19-190 (b) is unconstitutional because it [*2]criminalizes an act committed without "due care," a civil negligence standard distinct from the traditional categories of criminal mens rea. For the reasons set forth below, we reject this argument.

Legislatures "have always been allowed wide freedom to determine the extent to which moral culpability should be a prerequisite to conviction of a crime" (Powell v Texas, 392 US 514, 545 [1968, Black, J., concurring]; see United States v International Minerals & Chemical Corp., 402 US 558, 564 [1971]; see also Staples v United States, 511 US 600, 604-605 [1994]). The minimum requirement for criminal liability in New York "is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing" (Penal Law § 15.10). Even strict liability crimes are legal and constitutional (see Penal Law § 15.10; Morgenthau v Khalil, 73 AD3d 509, 510 [2010]). Particularly with regard to public welfare offenses, criminal penalties may be imposed without regard to mental culpability (see People v Wood, 58 AD3d 242, 250-251 [2008] ["It is now beyond question that the Legislature may dispense with a mental culpability requirement with respect to certain public welfare offenses"], lv denied 12 NY3d 823 [2009]; see also Morissette v United States, 342 US 246 [1952]).

{**65 Misc 3d at 22} [1] Manifestly, if there is no constitutional infirmity in a crime that requires no mental state at all, then, a fortiori, there is no constitutional infirmity in an offense that requires proof of defendant's failure to exercise due care, a more culpable mental state. The Court of Appeals has, in fact, noted that "[c]riminal liability for death caused by ordinary negligence is sometimes imposed by statute . . . [and] most of these statutes are confined to deaths arising out of automobile accidents" (People v Haney, 30 NY2d 328, 334 n 7 [1972]; see also United States v Hanousek, 176 F3d 1116, 1121 [9th Cir 1999] ["It is well established that a public welfare statute may subject a person to criminal liability for his or her ordinary negligence without violating due process"], cert denied 528 US 1102 [2000]). Indeed, the failure to exercise due care standard contained in Administrative Code § 19-190 is identical to the mens rea set forth in Vehicle and Traffic Law § 1146 which, inter alia, punishes as a class B misdemeanor a driver who injures a pedestrian or bicyclist while failing to exercise due care, if the driver has a prior conviction for such offense within the last five years (see Vehicle and Traffic Law § 1146 [d]). We therefore hold that with respect to Administrative Code § 19-190, civil negligence is a constitutional mens rea for criminal liability.

[2] Similarly unavailing is defendant's argument that Administrative Code § 19-190 is preempted by state law, specifically Vehicle and Traffic Law § 1146 and article 15 of the Penal Law.

Vehicle and Traffic Law § 1146, a traffic infraction, which punishes a driver who causes physical injury to a pedestrian or bicyclist while failing to exercise due care, does not preempt Administrative Code § 19-190. Local laws which do not prohibit what the state law permits nor allow what the state law forbids are not inconsistent (see People v Lewis, 295 NY 42 [1945]). Here, instead of criminalizing an act that the state law allows, section 19-190 essentially strengthens the criminal penalty for injuring pedestrians and cyclists already authorized by Vehicle and Traffic Law § 1146. A local law which merely provides a greater penalty than state law does not run afoul of the conflict preemption doctrine (see Zakrzewska v New School, 14 NY3d 469, 480 [2010]).

Nor does the Penal Law prevent a local government from utilizing a standard of culpability independent of those set forth in article 15 of the Penal Law, such as failure to exercise{**65 Misc 3d at 23} due care. Contrary to defendant's contention, Penal Law § 15.05, which provides [*3]definitions of certain culpable mental states used in the Penal Law—i.e., intentionally, knowingly, recklessly and criminal negligence—does not limit the use of other standards of culpability. In any event, Penal Law § 15.05 is inapplicable to crimes, such as violations of Administrative Code § 19-190, that are defined outside the Penal Law (see People v M&H Used Auto Parts & Cars, Inc., 22 AD3d 135, 143 [2005], lv denied 6 NY3d 755 [2005]).

Defendant's guilty plea was knowing, voluntary and intelligent. In any event, the only relief defendant requests is dismissal of the accusatory instrument, rather than vacatur of the plea, and he expressly requests that this court affirm his conviction if it does not grant dismissal. Since we do not find that dismissal would be in any way appropriate, we affirm on this basis as well (see People v Conceicao, 26 NY3d 375, 385 n [2015]).

We perceive no basis for reducing the negotiated sentence imposed.

Shulman, P.J., González and Edmead, JJ., concur.