A law that without question has a good intent and goal, New York City’s Right of Way law, codified as Administrative Code 19-190, has seen its fair share of legal challenges by criminal defense lawyers throughout the City of New York. Although the law that has criminal sanctions does not apply to the State of New York, those drivers in Manhattan, Brooklyn, Bronx and Queens are within the law’s jurisdiction. A recent Appellate Term Decision from the Second Department did not ultimately address the constitutionality of NYC Admin. Code 19-190, but whether a bare minimum complaint reciting the statute with limited factors sufficiently and legally supports this non-New York Penal Law crime.
Without reviewing the entire statute, AC 19-190 criminalizes actions where a driver of a motor vehicle fails to yield to a pedestrian or bicyclist who had the right of way and due to a failure to exercise due care, the driver strikes that other person causing some degree of property damage, injury or even death. In People v. Sanson, 2016-1865QCR, the Court determined that it was the New York City Council’s legislative intent that Administrative Code 19-190(b) contain the element of failing to exercise due care. As such, when prosecutors file a complaint in New York City Criminal Court, the following elements for AC 19-190(b) must be within the four corners of the accusatory instrument. These are (1) the defendant operated the motor vehicle; (2) he or she did not yield to a pedestrian or a cyclist with a right of way; (2) the motor vehicle struck this other person causing a physical injury; and (4) all of this stemmed from the accused’s failure to yield to the right of way.
With the above in mind, the Court further stated that because non-hearsay factual allegations are required and not merely a recitation of the statute, because the People failed to do as much the accusatory instrument must be dismissed.
Although this decision seems fairly routine in that whenever an accusatory instrument is not supported by some factual and non-hearsay based allegation it should be dismissed, there has been many motions filed challenging this exact issue when it comes to AC 19-190. As horrific as some accidents have been where driver is accused of failing to exercise due care, merely stating as much in a conclusory manner that parrots the code is insufficient. Instead, Sanson stands for the proposition that a District Attorney’s Office must provide some factual basis reflecting this failure to exercise due care even if the burden or amount is less than what would be ultimately required at trial to prove a case beyond a reasonable doubt. Whether that is describing the manner in which the person was driving, the driver’s personal conduct or any other factors, something more than a recitation of the statute is necessary.
To learn more about New York’s Right of Way Law, NYC Administrative Code 19-190, follow the links contained herein back to New-York-Lawyers.org.
Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Both founding New York criminal defense lawyers represent clients throughout New York City in AC 19-190 arrests.