New York Penal Law 15.05(4) - Interpretation
In People v. Caban (51 AD3d 455, 857 NYS2d 118 [1st Dept 2008], revd on other grounds 14 NY3d 369, 927 NE2d 1050, 901 NYS2d 566 ), the defendant drove her car in reverse into a pedestrian right-of-way where she struck and killed an elderly pedestrian.
Noting that the defendant was charged "with having failed to use due care to avoid an unintended result" the Court found that the jury could rationally have concluded, beyond a reasonable doubt, that defendant's failure to perceive the risk of death created by her conduct satisfied the requirement of Penal Law 15.05 (4), the criminal negligence standard (51 AD3d at 456).
Penal Law 15.05 (4) provides:
"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 and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be 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."
As illustrated by Caban, the use of the term "due care" in Administrative Code 19-190 (c) does not alter the long-standing doctrine that a civil negligence standard is not the applicable standard in a criminal case.