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Judge Steven M. Statsinger

 

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Torres, charged with violating Administrative Code §19-190(b), and Vehicle and Traffic Law §1146(c)(1), moved for dismissal of the §19-190(b) count arguing it was unconstitutional as it adopted the mens rea requirement generally used in civil negligence cases, among other things. He struck and killed a pedestrian who was in the crosswalk with the light in her favor while driving a truck. Torres argued the “failure to exercise due care” element within §19-190(b) was a mens rea element. The court disagreed noting the “due care” as described in both §19-190(b), and §1146(c)(1) did not describe a mental state, but a manner of driving. Also, it noted the relatively modest potential penalty convinced the court the regulation made out a strict liability “public welfare” offense, rejecting Torres’ argument § 19-190(b)’s unconstitutionality imported a civil mens rea standard in a criminal statute, it respectfully disagreeing with two decisions that have so held. Despite that NYC stipulated that §§19-190(a) and (b) did not create a strict liability offense, same did not alter the court’s position of the regulation, as it remained convinced its conclusion the regulation made out a strict liability offense was correct. Thus, dismissal was denied.