| People v Burman |
| 2019 NY Slip Op 04820 [173 AD3d 1727] |
| June 14, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Chad R. Burman, Appellant. |
Bruce R. Bryan, Syracuse, for defendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Spencer J. Ludington, A.J.), renderedDecember 14, 2017. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the second degree (Penal Law § 120.05 [12]). The conviction arises out ofa physical altercation that occurred when defendant and his friend encountered the victim in theparking lot of a tavern shortly after the victim interacted with the friend's girlfriend at the bar. Atthe time of the altercation, defendant was 31 years old and the victim was 69 years old.Defendant contends that County Court erred in determining that Penal Law§ 120.05 (12) did not require the People to prove that he knew that the victim was65 years of age or older. We reject that contention.
It is fundamental that, "[w]hen presented with a question of statutory interpretation, [acourt's] primary consideration is to ascertain and give effect to the intention of the Legislature"(People v Andujar, 30 NY3d160, 166 [2017] [internal quotation marks omitted]; see People v Roberts, 31 NY3d 406, 418 [2018]). " 'As theclearest indicator of legislative intent is the statutory text, the starting point in any case ofinterpretation must always be the language itself, giving effect to the plain meaningthereof' " (People v Golo, 26NY3d 358, 361 [2015]; see Roberts, 31 NY3d at 418). "The Legislature hasinstructed [the courts] that[,] in interpreting the Penal Law, the provisions must be read'according to the fair import of their terms to promote justice and effect the objects of thelaw' " (People v Hedgeman, 70 NY2d 533, 537 [1987], quoting Penal Law§ 5.00; see Roberts, 31 NY3d at 418). "As with other statutory provisions,those contained in the Penal Law are generally to be construed so as to give effect to their mostnatural and obvious meaning . . . This is particularly important where the definitionof a crime is at issue, because courts must be scrupulous in insuring that penal responsibility isnot 'extended beyond the fair scope of the statutory mandate' " (Hedgeman, 70NY2d at 537; see Roberts, 31 NY3d at 418). "Nevertheless, in construing a statute[,]courts 'should consider the mischief sought to be remedied by the new legislation, and theyshould construe the act in question so as to suppress the evil and advance the remedy' "(Roberts, 31 NY3d at 418-419, quoting McKinney's Cons Laws of NY, Book 1, Statutes§ 95). Thus, in general, " 'inquiry must be made of the spirit and purpose ofthe legislation, which requires examination of the statutory context of the provision as well as itslegislative history' " (People vWallace, 31 NY3d 503, 507 [2018]). Indeed, the Court of Appeals has explained that,"[w]hile 'the words of the statute are the best evidence of the Legislature's intent,' legislativehistory may also be relevant as an aid to construction of the meaning of words" (Andujar,30 NY3d at 166; People v Garson, 6NY3d 604, 611 [2006]) and " 'is not to be ignored, even if words be clear' "(Riley v County of Broome, 95 NY2d 455, 463 [2000]; see People v Litto, 33 AD3d 625,627-628 [2d Dept 2006], affd 8 NY3d 692 [2007]).
Here, starting with the statutory text, Penal Law § 120.05 (12) provides that aperson is guilty of assault in the second degree when, "[w]ith intent to cause physical injury to aperson who is [65] years of age or older, he or she causes such injury to such person, and theactor is more than [10] years younger than such person." Defendant contends that a plain readingof the statute establishes that the culpable mental state, i.e., "intent," applies to both the physicalinjury and age elements in the first clause because there are no commas in that clause;consequently, he asserts, the People must prove that the actor "knew" that the injured person was65 years of age or older. Defendant's contention conflates the culpable mental states for acts done"intentionally" (§ 15.05 [1]) and those done "knowingly" (§ 15.05 [2]).If the Legislature had sought to apply a mens rea to the age element of Penal Law§ 120.05 (12), as advocated by defendant, it would have provided by directexpression and proper placement that the actor must intentionally cause physical injury to aperson knowing, i.e., being aware (§ 15.05 [2]), that such person is 65 years of ageor older (see People v Mitchell, 77 NY2d 624, 627 [1991]). Contrary to defendant'scontention, however, nothing in the statutory text requires that the actor know the age ofthe injured person; rather, by providing that the defendant must act "[w]ith intent to causephysical injury to a person who is [65] years of age or older" and must cause "such injuryto such person," the statute simply requires that the person whom the actor intentionally injuresbe, as a matter of fact, 65 years of age or older (§ 120.05 [12] [emphasis added]).That reading is consistent with the pattern Criminal Jury Instructions, which provide that thePeople must prove beyond a reasonable doubt that, with respect to the age element, the injuredperson was 65 years of age or older at the time of the crime (see CJI2d[NY] Penal Law§ 120.05 [12]).
Defendant nonetheless asserts that a culpable mental state must apply to the age element ofthe statute because the Penal Law provides that "[a] statute defining a crime, unless clearlyindicating a legislative intent to impose strict liability, should be construed as defining a crime ofmental culpability" (§ 15.15 [2]) and, further, that "[w]hen one and only one[culpable mental state] appears in a statute defining an offense, it is presumed to apply to everyelement of the offense unless an intent to limit its application clearly appears"(§§ 15.15 [1]; see 15.10). Defendant's assertion lacks merit.
It is well established that, "[i]n the absence of a clear legislative intent to impose strictcriminal liability, such construction should not be adopted" (People v Coe, 71 NY2d 852,855 [1988]; see Penal Law § 15.15 [2]; see also [1]). "Indetermining whether the Legislature has expressed a clear intent to create a crime [or materialelement thereof] without fault, relevant considerations include the provisions of the enactmentviewed as a whole and the legislative history . . . , as well as factors such as theseverity of the penalty and the public harm being protected against" (People v Haddock, 48 AD3d 969,970 [3d Dept 2008], lv dismissed 12 NY3d 854 [2009]; see People v Nogueros,42 NY2d 956, 956-957 [1977]; People vWood, 58 AD3d 242, 246-247 [1st Dept 2008], lv denied 12 NY3d 823[2009]).
Here, the legislative history of Penal Law § 120.05 (12) clearly establishes thatno mens rea applies to the age element. The sponsor's memorandum specifically states that "[t]hecrime is established based on the actual age of the victim; there is no requirement that theprosecutor prove the defendant knew or had reason to know the victim's age" (Sponsor's Mem,Bill Jacket, L 2008, ch 68). That was also the understanding of organizations such as the DistrictAttorneys Association of the State of New York, which endorsed the legislation and noted that itwas consistent with several existing age-based crimes, including statutory rape offenses and otherexisting provisions of assault in the second degree (see Letter from Dist Attorneys Assnof St of NY, May 1, 2008, Bill Jacket, L 2008, ch 68).
In addition, the legislative history indicates that the purpose of enacting Penal Law§ 120.05 (12) was to elevate the crime of intentionally causing physical injury to aperson 65 years of age or older by a defendant more than 10 years younger from a class Amisdemeanor to a class D violent felony, thereby increasing the possible terms of imprisonmentfor such a defendant (see Sponsor's Mem, Bill Jacket, L 2008, ch 68). In our view, thefact that "the Legislature declined to attach any culpable mental state to this aggravatingcircumstance is not unusual. The Penal Law is replete with offenses which contain aggravatingfactors which elevate the degree of criminal responsibility without coupling a requirement ofproof of a culpable mental state" (Mitchell, 77 NY2d at 627). The sponsor'smemorandum, noting that "seniors are generally more vulnerable to injury and less able toprotect themselves than younger persons," states that the legislation was intended to "address[ ]predatory attacks by persons who target seniors" (Sponsor's Mem, Bill Jacket, L 2008, ch 68).Contrary to defendant's contention, the terms "predatory" and "target" do not imply that ayounger defendant must know that the victim's actual age is 65 years or older in order to fulfillthe purpose of the statute. Instead, the Legislature intended to deter and punish more severelythose who might intentionally inflict physical injury upon older persons and it defined such olderpersons as those who are 65 years of age or more in light of its recognition that persons of thatage are generally more vulnerable and less able to protect themselves against younger defendants(see Sponsor's Mem, Bill Jacket, L 2008, ch 68).
Based on the foregoing, upon inquiring into the spirit and purpose of the legislation,including examination of its legislative history (see Wallace, 31 NY3d at 507), and uponinterpreting the legislation " 'so as to suppress the evil and advance the remedy' "(Roberts, 31 NY3d at 419), we conclude that the court properly determined that PenalLaw § 120.05 (12) did not require the People to prove that defendant knew that thevictim was 65 years of age or older.
Contrary to defendant's further contention, we conclude that "[t]he People disproveddefendant's justification defense beyond a reasonable doubt by presenting evidence that theactions of defendant and [the friend] in repeatedly [punching and] kicking the victim in the headand face were not justified by the victim's use or threatened use of physical force" (People v Moreno, 31 AD3d 1214,1214 [4th Dept 2006], lv denied 7 NY3d 869 [2006]). In addition, viewing the evidencein light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), including thecharge on the defense of justification, we reject defendant's contention that the verdict is againstthe weight of the evidence (see People vAcevedo, 136 AD3d 1357, 1357 [4th Dept 2016], lv denied 27 NY3d 1127[2016]; People v Collen, 111 AD3d1416, 1416 [4th Dept 2013], lv denied 22 NY3d 1197 [2014]; Moreno, 31AD3d at 1214; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We note that"[t]he jury was in the best position to assess the credibility of the witnesses and, on this record, itcannot be said that the jury failed to give the evidence the weight it should be accorded" (People v Kaba, 166 AD3d 1566,1567 [4th Dept 2018], lv denied 32 NY3d 1206 [2019] [internal quotation marksomitted]; Collen, 111 AD3d at 1416). Present—Whalen, P.J., Peradotto, Lindley,DeJoseph and NeMoyer, JJ.