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The PEOPLE of the State of New York v. Bryan RILEY, Defendant.

No. 1302–09.

Decided: March 31, 2011

Richard A. Brown, Esq., District Attorney, Queens County, by Dianna L. Megias, Esq., Assistant District Attorney. Marvin M. Kornberg, Esq., Kew Gardens, for defendant.

The defendant moves to dismiss Count IV of the indictment, Penal Law § 120.05(12), Assault in the Second Degree, on the grounds that it is unconstitutional as a denial of equal protection under the 5th and 14th Amendments to the United States and the New York State constitutions. The defendant also argues it is unconstitutional because it is overly broad, arbitrary, capricious and unduly vague as applied to the defendant in the instant case.

Penal Law § 120.05(12), provides in pertinent part as follows: “A person is guilty of assault in the Second Degree when․ 12) With intent to cause physical injury to a person who is sixty-five years of age or older, he or she cause such injury to such person, and the actor is more than ten years younger than such person.” In the instant case the defendant, who is forty-seven, is alleged to have assaulted the complainant, who is sixty-eight, under Count IV.

Initially, legislative enactments enjoy a presumption of constitutional validity. Brodens Co. v. Baldwin, 293 U.S. 194, 209 (1934); Cook v. City of Binghamton, 48 N.Y.2d 323, 330 (1979). This is a rebuttable presumption that must be overcome by the party attacking the constitutionality of the statute, who bears the heavy burden of proving that the statute is unconstitutional beyond a reasonable doubt.

Individual v. Walker, 81 N.Y.2d 661, 668 (1993); Individual v.. Pagnotta, 25 N.Y.2d 333, 337 (1969). The court finds that the defendant failed to meet this burden herein.

With regard to the equal protection clause, equal protection “does not mandate absolute equality of treatment but merely prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate State purpose.” Individual v. Walker, supra at 668. Since age is not a suspect classification, it is not entitled to the strict scrutiny standard of review.

Maresca v. Cuomo, 64 N.Y.2d 242, 250 (1984). Therefore, the age provision of Penal Law § 120.05(12) is subject to a rational basis standard of review, not one of strict scrutiny. The rational basis test simply requires that the legislature has some legitimate state interest in enacting the statue. Id.; Individual v. Drayton, 39 N.Y.2d 580, 585 (1976).

Determining whether a legitimate state interest exists is initially left to the legislature. The Court in In Re Quinton A. held that a statute enacted by the legislature passed the rational basis test because it had a legitimate interest of protecting older citizens in the community;

[T]he elderly are peculiarly susceptible to crimes of violence for ages has, to a large extent, diminished their physical capacities marking them out as easy prey for the criminally disposed ․ [T]he Legislature [is] directed at conduct deemed to present a special and serious problem and amounts to a considered policy choice by that branch of government vested with the power to make that selection.

49 N.Y.2d 328, 337 (1980). In enacting Penal Law § 120.05(12), the legislature had similar concerns about protecting the elderly who are particularly susceptible to crimes of violence as a result of their age. The legislative history reveals that the statute was enacted because “seniors are generally more vulnerable to injury and less able to protect themselves than younger persons.” New York State Assembly Memorandum in Support of Legislation Rule III § 1(f). Here, the court found that the legislature had a legitimate state interest when enacting the statute and the statue effectuates that interest.

The court further finds that Penal Law § 120.05(12) is not facially unconstitutional for being overly broad.

A party mounting a facial constitutional challenge bears the substantial burden of demonstrating that in any degree and in every conceivable application, the law suffers wholesale constitutional impairment. In other words, the challenger must establish that no set of circumstances exists under which the Act would be valid.

Individual v. Taylor, 9 NY3d 129, 167 (2007) (quoting In Re Moran Towing Corp., 99 N.Y.2d 443, 448 (2003)). The defendant fails to meet this burden. Penal Law § 120.05(12) is clear in its application and can be applied constitutionally. For example, if a fifty-four year old person assaults a sixty-five year old person, with the intent to cause serious physical injury and does cause such injury, under the statute, the actor is guilty of Assault in the Second Degree. This is only one set of circumstances, of many, in which Penal Law § 120.05(12) would be valid.

Simply because Penal Law § 120.05(12) is a strict liability statute, that factor alone does not make the statute overly broad. A variety of strict liability statutes in New York impose criminal liability upon individuals regardless of knowledge of the victim's age. For example Alcohol Beverage Control Law § 65(1) prohibits any person from furnishing any alcoholic beverage to an individual under the age of twenty-one. It is well established that a person may suffer “administrative sanctions” for violating this statute “irrespective of knowledge or intent” Cumberland Farms, Inc. v. New York State Liquor Authority, 290 A.D.2d 915, 916 (3rd Dept, 2002) (quoting Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992)). Therefore, the court finds that Penal Law § 120.05(12), akin to the Alcoholic Beverage Control Law § 65(1), is not overly broad.

In the defendant's oral argument, he put forth two additional theories not addressed in his written motion. The defendant argued that Penal Law § 120.05(12) is unconstitutional on the grounds that it is arbitrary, capricious and unduly vague.

Contrary to the defendant's contention, the statute is not arbitrary and capricious. In order for a law to be arbitrary and capricious, it must be founded on prejudice or preference rather than on reason or fact and lack a rational nexus. The defendant's argument that deeming age sixty-five as elderly is arbitrary is without merit. Legislatures choose different statutory age requirements for numerous things, such as voting, drinking alcoholic beverages, receiving social security benefits, and even the age of retirement for appointed state judges. All of these age requirements have been upheld as constitutional because each law was passed in order to further a rational state interest. For example, in Maresca v. Cuomo, the Court upheld the statutory requirement for mandatory retirement of all state appointed judges at age seventy, reasoning that the statute furthered several rational interests including “elimination of the unpleasantness and embarrassment of selectively removing aged and disabled judges and elimination of the administrative burden of testing each judge attaining the age of seventy to assess competency.” 64 N.Y.2d 242, 251 (1984). The Court found it reasonable for the legislature to choose age seventy as the mandatory retirement age because it is an age at which a judge's mental capacity may be diminished. Id.

In the case at hand, the primary goal of the legislature is to protect individuals age sixty-five and older, who may suffer deteriorating physical capabilities, from assault by younger, more physically able persons. Thus, the legislative determination that persons age sixty-five and older need additional protection is reasonable.

The statute is also not arbitrary on the grounds that it does not apply to individuals once they reach the age of sixty-five. The legislative notes explain that the statute is inapplicable to defendant's aged sixty-five or older. Rather, individuals age sixty-five and older may be charged with the lesser crime of Assault in the Third Degree, which is consistent with the principle that individuals sixty-five and older may have deteriorating physical abilities. The purpose of the statute is to protect the elderly from younger, more physically capable individuals. The legislature was concerned with younger individuals assaulting the elderly who are less able to protect themselves and not with elder or elder crime. Therefore, the statute is not arbitrary, but consistent with the legislature's rationale of protecting the elderly.

Penal Law § 120.05(12) is also not void for being unduly vague. A statute is vague if it is not sufficiently precise and clear as to its coverage. Bakery Salvage Corp. v. City of Buffalo, 175 A.D.2d 608, 609 (4thDept, 1991) (quoting Individual v. Firth, 3 N.Y.2d 472, 474 (1957)). The defendant contends that the legislative notes and the statute itself are conflicting, causing the statute to be unduly vague. The legislative notes state that there is no particular mens rea knowledge requirement, i.e., the statute is one of strict liability. It states, “The crime is established based on the actual age of the victim; there is no requirement that the prosecutor prove the defendant knew or had reason to know the victim's age.” New York State Assembly Memorandum in Support of Legislation Rule III § 1(f). The defendant claims that because the statute fails to place a comma separating “intent to cause physical harm” and “to a person who is sixty-five years or older,” the language of the statute has a knowledge requirement. Even if the defendant is correct and the literal construction of the statute requires knowledge of a victim's age, a court may reject that literal interpretation if it does not correctly reflect the legislative intent. Matter of Schinasi, 277 N.Y. 252, 259 (1938); McKinney's Cons.Laws. Of New York, Book 1 Statutes § 251, 253 (2010). The legislature makes it clear in its notes that knowledge of the victim's age is not required. While it is true that strict liability is generally disfavored, “the legislative power to impose liability without fault is often found valid in the areas of public health, safety and welfare.” Individual v. Anyakora, 162 Misc.2d 47, 51 (N.Y. County Sup.Ct.1993); Staples v. United States, 511 U.S. 600, 607 (1994). The legislature clearly intended Penal Law § 120.05(12) to be a strict liability statute in order to ensure the safety of the elderly. As individuals get older it is often hard to determine their age. A person may have an educated guess as to someone's age, but this does not mean they have knowledge of that person's age. If the statute required knowledge, then the purpose statute would be significantly debilitated. Since the legislative intent is clear, the statute is not unduly vague.

In both the defendant's motion and oral argument, the defendant argued Penal Law § 120.05(12) is unconstitutional as applied to the defendant. This argument also lacks merit. The legislative notes state, “The bill addresses predatory attacks by persons who target seniors.” New York State Assembly Memorandum in Support of Legislation Rule III § 1(f). The defendant claims that he is not a person who targets the elderly nor was he motivated by the victim's alleged senior status. Neither the statute nor the legislative notes require that the statute be applied exclusively to predatory attacks. Rather, the legislative notes use the word “addresses,” which is not a word of limitation. The plain language meaning of “address” is “dutiful and courteous attention. MERRIAM WEBSTER'S DICTIONARY 14 (11TH ED.2003) Using this interpretation of “address,” it is clear the statute is meant to apply to predatory attacks, but it is not limited to predatory attacks. Therefore, the defendant's claim is without merit. The statute applies when a person assaults another who is age sixty-five or older, causes injury, and the actor is ten years younger than the victim. At the time of the assault in the case at hand, the defendant was forty-seven and the victim was sixty-eight. Both parties clearly fall within the statutory age requirements. Thus, the statute is not unconstitutional as applied to the defendant.

Based upon the foregoing, the defendant's motion to dismiss Count IV of the indictment is denied in all respects.

The branch of the motion seeking further relief is denied in that defendant has failed to set forth sufficient grounds in support thereof.

This constitutes the order, opinion and decision of this court.

The Clerk of the Court is directed to serve a copy of the memorandum and order on the attorney for the defendant and on the District Attorney.


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