NYC Admin. Code 19-190: The Legality of the Due Care Standard for Right of Way Arrests

New York City Administrative Code 19-190, generally defined as failing to exercise “due care” and violating the right of way of pedestrians and cyclists, is a relatively new statute drafted and passed by New York City. Not codified in the New York Penal Law, legislation drafted and passed by the State Legislature and New York State Governor, AC 19-190 is an unclassified misdemeanor. While a conviction can land a person in jail, aka, Rikers Island, it is generally not the sentence of imprisonment that is of grave concern, but the fact that a criminal administrative code violation is indelible. In other words, whether you are convicted of a New York State Tax crime, New York State Penal Law offense or New York City Administrative Code misdemeanor, you will have a permanent criminal record. This blog entry will address some of the legal issues that have arisen since the enactment of AC 19-190.

In pertinent part, AC 19-190[b] makes it a crime punishable by as much as thirty days in jail for any driver to cause contact with his or her motor vehicle to a pedestrian whether on foot or on a bicycle. Additionally, this contact must also cause a physical injury and not be a result of your failure to exercise due care. Defined in the New York State Penal Law and through countless cases that have addressed related offenses such as Assault, “physical injury” is generally considered that which causes “substantial pain,” but not anything close to life threatening or altering. A concussion, broken toe, laceration or something anywhere in that spectrum.

As identified in People v. Clyburn, 2017 Slip Op 50866 (NY County Crim. Ct. June 29, 2017), the elements the prosecution must prove beyond a reasonable doubt are:

  • You operated a motor vehicle
  • You failed to yield to a pedestrian or vehicle having the right of way
  • You caused contact with that person thereby causing a physical injury
  • Your failure to yield and causing of a physical injury were due to your failure to exercise due care.

While the above law seems fairly clear, what is lacking on its face, and as challenged by many New York criminal lawyers, is what mental state is required to violate the law when failing to exercise due care? For that matter, what is “due care?”. Must one act intentionally? Recklessly? Negligently? Is this a strict liability crime where irrespective of your intent, or lack of the same, upon striking another person who has the right of way you have committed a crime by default?

Unfortunately, there has been no appellate (higher court) decision from either the Court of Appeals, New York State’s highest court, or an appellate division at the time of drafting this blog. While many judges have sustained challenges to this statute in Queens County, those in Manhattan have sided with the prosecution. In these former cases, the courts have found that the statute is neither unconstitutional nor legally vague. Moreover, these judges have denied that the offense is preempted by Article 15 of the New York Penal Law. Of equal concern, because legal sufficiency standards are quite low and not the same as proof beyond a reasonable doubt at trial, judges have also denied motions to dismiss on this ground leaving many a criminal complaint as bare as merely stating a person was driving, a pedestrian was struck and a physical injury resulted without any indication as to what the driver did or did not do to cause an accident.

Make no mistake. The intention of AC 19-190 is a valid one. Further, there are few people that would not side with a pedestrian or cyclist who is struck by a vehicle due to no fault of his or her own. However, sometimes accidents are merely accidents. Not every incident where an individual is truck and hurt is a result of a driver texting, listening to loud music, looking out a side window, speeding or being remotely negligent. In time, the Court of Appeals will likely provide guidance as to this statute, but until then know that even if a judge finds a complaint against you legally sufficient, by no means is that a finding of guilty.

To learn more about New York City Administrative Code 19-190, review this blog and read about other related offenses at CrottySaland.Com.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in AC 19-190 crimes and other traffic related offenses including DWI and Reckless driving throughout New York City’s criminal courts.

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