Criminal risk creation – a deterrent to ambitious vehicular prosecutions

It is a genuinely positive development when the courts begin to alter the tendency of prosecutors and law enforcement agencies to over-criminalize unfortunate vehicular accidents. In this context, the cases in question are not instances of driving under the influence of either drugs or alcohol but rather circumstances where drivers commit errors in the operation of their vehicles which are, at best, negligent or circumstances involving the occurrence of a judgmental error. There has been a disturbing trend to remove mistakes involving vehicular operation outside the realm of civil liability and to elevate responsibility into the criminal realm. Fortunately, the New York State Court of Appeals has recently elected to place restraints on prosecutorial attempts to sustain felony charges in the context of motor vehicle operation.

In People v. McGrantham, 2009 WL1789125 and People v. Cabrera, 10 N.Y.3d 370 (2008), defense attorneys and prosecutors have definitive assertions of the principle that criminal negligence requires not only a failure to perceive a substantial risk of death but serious, blameworthy conduct that caused the failure to perceive the risk in question. It is the element of criminal risk creation which distinguishes criminal negligence from civil liability or, at worst, reckless driving.1

In McGrantham, an older driver was operating his vehicle on Cropsey Avenue in Brooklyn at 1:50 a.m. and inadvertently traveled down the exit ramp onto the Belt Parkway due to the poor placement of a highway sign – which contradicted a much smaller one-way sign. At the bottom of the ramp, he negotiated a U-turn onto the Belt Parkway and slowly traversed two lanes, moving into the far left lane, when a speeding motorcyclist struck the driver’s side of the vehicle while switching lanes on the parkway. The Kings County District Attorney charged the defendant with Criminally Negligent Homicide and Reckless Driving. Defendant moved to dismiss those charges at the trial level, and the Court granted the legal insufficiency application.

The People appealed and the Appellate Division, Second Department, in a three to one decision, reinstated the charges suggesting that the driver could have engaged in alterative courses of action such as entering a grassy area near the bottom of the exit ramp and “turning around” onto the proper direction of the exit ramp. Justice Ariel Belen wrote a strong dissent indicating that a misguided U-turn is not the type of morally blameworthy conduct contemplated in prior decisions by the Court of Appeals. See People v. Boutin, 75 N.Y.2d 692 (1990).2 Justice Belen indicated that the defendant’s U-turn was a response to an emergency situation and, as such, was attempting to avoid an accident and not engage in criminal risk creation.

On June 25, 2009, the Court of Appeals issued a decision modifying the order of the Appellate Division. The court concluded the evidence presented to the grand jury was legally insufficient to sustain criminally negligent homicide asserting that a U-turn across three lanes of traffic to extricate himself from a precarious situation did not rise to the level of moral blameworthiness requited to sustain the felony count. On the other hand, the court held that the evidence did support the misdemeanor charge of reckless driving as the operator of the vehicle did unreasonably interfere with the free and proper use of the highway, or unreasonably endangered users of the highway. The importance of the McGrantham decision is the recognition that criminal negligence requires a level of blameworthy conduct that is greater than ordinary negligence or carelessness. Additionally, the case reaffirms the concept that criminal consequences are not to be inferred from every vehicular tragedy.

This decision occurs one year after the Court of Appeals reiterated the notion that criminal negligence arises from criminal risk creation and not merely the failure to perceive a risk. In People v. Cabrera, the court noted that there must be a morally, blameworthy component to excessive speed which justifies the imposition of criminal liability. In Cabrera, a seventeen year old motorist operated his vehicle down a curved roadway at an excessive speed (72 miles per hour in a 55 mile per hour zone and a 40 mile per hour curve section of the road) with a junior license which mandated that the vehicle occupants wear seatbelts. Three of the passengers were killed as the vehicle veered over a double yellow line and crashed into a telephone pole and tree. The court concluded that such a circumstance failed to exhibit the type of morally, blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong.

Once again, in the Appellate Division, (Third Department), the court sustained the trial conviction for Criminally Negligent Homicide as well as other criminal charges. In their decision, the Third Department bootstrapped the seatbelt and licensing requirement with the excessive speed; however, the Court of Appeals rejected the attempt to confer liability based on the licensing status of the driver and the failure of the occupants to wear seatbelts. In simple terms, a case of excessive speed, even in a tragic circumstance, is legally insufficient to sustain the felony charge for criminally negligent homicide.3 Further, the Court of Appeals rejected the alleged relevance of the driver’s license status on the issue of causation as it pertained to the accident

In essence, the Court of Appeals has rejected novel attempts by prosecutors to extend the borders of criminal negligence to vehicular fact patterns involving tragic consequences. The court has insisted on evidence that a defendant engage in criminal risk creation in order to justify the imposition of felony liability. It is somewhat ironic that the Second Department implicitly recognized this concept in an unusual fact pattern from 1988. In People v. Paris, 138 A.D.2d 534 (2d Dept. 1988), the Appellate Division held that a defendant driver, who suddenly accelerated and veered to the left, crossing a double yellow line onto a sidewalk, and crashing into a telephone booth, was not guilty of Criminally Negligent Homicide of the passenger who died as a result of injuries sustained in the collision. A witness to the event testified that the driver was not sitting upright at the wheel but was slumped to one side.

The court recognized that liability would be imposed if there was evidence that the driver was intentionally in a recumbent position to avoid detection, however, on these facts, the reasonable inference was that the defendant had either fallen asleep or was unconscious due to some emergency. Accordingly, the appellate court concluded that the only apparent evidence of negligence was the non-use of headlights which was legally insufficient to establish liability.5 Although there was no specific reference to the concept of risk creation, the case implicitly recognized the principle that the evidence should demonstrate that a defendant engaged in conduct which created a substantial risk of death. On the other hand, if the evidence is equivocal regarding whether the defendants actions were influenced by emergency conditions, the People will be required to demonstrate that the activity constituted genuine criminal risk creation and not an attempt to extricate oneself from a genuine emergency.

There is no question that prosecuting agencies will scrutinize vehicular accidents with great intensity in the event of a fatality. Further, the utilization of accident reconstruction experts along with accident police investigators result in a more detailed examination of the circumstances relating to an accident. Unfortunately, the specialized features of these units will often result in prosecutions that can blur the line between ordinary negligence with civil liability in contrast to a criminal prosecution and actual criminal negligence. For these reasons, it is somewhat understandable that trial courts, intermediate appellate courts and the Court of Appeals will differ with one another relating to scenarios that will not involve the use of controlled substances or outrageous motor vehicle conduct. With the Court of Appeals renewed emphasis on the idea of criminal risk creation and morally, blameworthy conduct being a component of criminal negligence, the Court has emphasized the threshold requirement to be met by law enforcement in order to avoid tragic vehicular accidents being placed in the corridors of felony criminal courts. It can only be hoped that the decisions in McGrantham and Cabrera will continue to be a safeguard in order to avoid the consequences of every fatal vehicular accident being converted into a felony prosecution.

Joseph Gentile is a partner in the law firm of Frankie & Gentile, P.C. and litigated the McGrantham matter at the Appellate Court level. He is a former President of the Nassau County Criminal Courts Bar Association, past chairman of the Criminal Law and Procedure committee and a former Assistant District Attorney in Nassau County. At the trial level Mr. McGrantham was represented by James DiPeitro, Esq.

1. The McGrantham case occurred at the intersection of Cropsey Avenue and the exit ramp onto the Belt Parkway. At the trial level, there was a factual dispute regarding the influence of the incorrect sign placement on the decision to travel on the exit ramp; however, on the appellate level, the courts focused on the defendant’s action at the base of the ramp in performing a U-turn and veering into the far left lane in the proper direction.
2. In Boutin, the Court of Appeals rejected the imposition of criminal liability on a truck driver who was operating near the speed limit but was unable, on a rainy and foggy evening, to stop from striking a marked police car with emergency lights flashing behind a disabled truck. Such facts should be distinguished from People v. Paul V. S., 75 N.Y.2d 944 (1990) where a defendant continued to operate his vehicle at 90 miles per hour in a 55 mile per hour zone and struck a state trooper after being warned by a passenger to slow down despite passing a line of cars that had been stopped by the police. To increase the speed of a vehicle despite a warning to the contrary evidences criminal risk creation.
3. Criminal Negligence is defined in Penal Law Section 15.05(4): 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 an unjustifiable risk that such result will occur or that such circumstance exits. The risk must he 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.
4. The court noted that the driver in Cabrera was inexperienced but sober entering a tricky downhill curve which had been the site of prior accidents.
5. A single aspect of negligence rarely will suffice to establish criminal negligence. See People v. Eckert, 2 N.Y.2d 126 (1956); (speed); People v. Frisbee, 114 A.D.2d 587 (3d Dept. 1985) (operating motor vehicle without headlight, tailight or reflector during dusk insufficient to establish gross deviation from standard of care); People v. Lasch, 152 A.D.2d 983 (4th Dept. 1989) (proof that defendant operated vehicle on wrong side of road insufficient to establish Criminal Negligence).
On the other hand, a combination of factors such as alcohol, speeding, “drag racing” and failure to adhere to the rules of driving have been sufficient to sustain a prosecution for criminally negligent homicide. People v. Rooney, 52 N.Y.2d 822 (1982) (alcohol, speed, crossed center lane of highway); People v. Haney, 30 N.Y.2d 328 (1972) (speed into intersection through a red light); People v. Soto, 44 N.Y.2d 683 (1978) (drag racing).