District Attorney Unsuccessfully Attempts to Prosecute Charges Carrying Maximum Penalty Against Taxi Driver for Fatal Accident By SEO Admin on August 16, 2009

In 2006, Hassan Afzal, was involved in an accident while driving a taxicab on West Street (a/k/a the West Side Highway) in the vicinity of West Houston Street in Manhattan. Mr. Afzal had a history of seizures that he failed to disclose in applications that he filed for a taxi license. In the accident, Danielle Ricci, one of the passengers in the taxi, either exited or was ejected from the cab and was then struck and killed by a second taxi. Three other passengers in the taxi suffered significant injuries while still in the cab when the vehicle struck a building. The People alleged that the accident was caused by a seizure the Defendant suffered. The Defendant denied that he had suffered a seizure at the time of the accident. It was also alleged that the Defendant had a history of seizures and fraudulently failed to disclose this information in applications for a taxi license he filed. Based on this seizure history, his alleged deception in obtaining his taxi license, the fact that he had stopped taking seizure medications at the time of the accident and the fact that a seizure allegedly caused the accident, the People allege that the Defendant caused his passenger's death with criminal negligence. Mr. Afzal was charged with one count of Criminally Negligent Homicide, three counts of Assault in the Second Degree and two counts of Offering a False Instrument for Filing in the First Degree. (*The elements of each of these chargesare set forth at the end of this blog.*). Of these charges, the ones carrying the stiffest penalty is Assault in the Second Degree. If convicted of the three counts of Assault in the Second Degree, a Class D violent felony, the Defendant faced three maximum 7 year determinate terms followed by a period of post-release supervision for causing the physical injury of the three injured victims through the identical conduct. Conviction of Criminally Negligent Homicide, a Class E non-violent felony, would result in an indeterminate sentence of 1 1/3 to 4 years in prison. The Defendant moved to dismiss the three counts of Assault in the Second Degree which are charged in the indictment. People v. Afzal, 24 Misc.3d 1206(A), Slip Copy, 2009 WL 1812535 (N.Y.Sup. 2009, Daniel P. Conviser, J.).The Defendantdid not move to dismiss the charges of Criminally Negligent Homicide or Assault in the Third Degree with respect to the three injured victims. The Court granted the Defendants motion and dismissed the three counts of Assault in the Second Degree. Justice Conviser noted the obvious incongruity of punishing a homicide at a lower level than an assault arising from the identical alleged acts. The court agreed with the Defendant that in enacting the Second Degree Assault statute, the legislature could not have intended to punish the physical injury of a victim at a level significantly higher than the death of an individual which is caused by the same act. The court stated: [i]f the Defendant engaged in the identical conduct he engaged in here with the identical mens rea but had caused the death of all four passengers in the car, rather than causing the death of one and injuring three, he would be facing a far lower potential penalty he would be facing a far lower potential penalty now [subject to the Assault in the Third Degree charges]. The three counts of Assault in the Second Degree were dismissed also because the evidence underlying the indictment does not make out the in furtherance element of the statute. The court stated that under the evidence underlying the indictment here, there is no way in language or logic that the injuries Defendant caused in any way furthered, advanced or helped forward the death which was also caused during this horrific crash. Each death and injury here was caused by the same acts of the Defendant. When the Defendant allegedly caused the physical injury of the three victims, those injuries could not be construed as being in furtherance of Defendant's homicide offense as required by the statute. Though probably of no solace to the family of the victims, the courts opinion included the following: Nothing in the Court's holding should be construed as denigrating the seriousness of the injuries which were allegedly caused in this case, or the culpable conduct alleged to have been engaged in by the Defendant. The Court recognizes the great pain and suffering which this horrible crash has caused. Having seen first-hand the failure of a jury to convict the driver of the vehicle that struck and killed our friend Dr. Jeffrey Siegel of the most serious charges thereby enabling the driver to avoid significantly greater jail time than he received, it is difficult to swallow such a result even with the knowledge that a judge is trying to reach what in his eyes is the right result. (* Criminally Negligent Homicide Statute (Penal Law 125.10) provides that a person is guilty of the crime when with criminal negligence, he causes the death of another person. Criminal Negligence arises under the Penal Law, with respect to a result or a circumstance defined in a statute (here, a death), when a defendant 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. Assault in the Second Degree is set forth in Penal Law 120.05(6). That statute provides that: A person is guilty of assault in the second degree when: (6) In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants. A defendant is guilty of Assault in the Third Degree (Penal Law 120.00(3)) when [w]ith criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.)

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