Defendant was arraigned on January 16, 2024, on the charges of manslaughter in the second degree (PL § 125.15 [1]), assault in the second degree (PL § 120.05 [4]), criminally negligent homicide (PL § 125.10), leaving the scene of a fatal accident without reporting (VTL § 600 [2][a]), reckless endangerment in the second degree (PL § 120.20), reckless driving (VTL § 1212), operating an unregistered vehicle (VTL § 401-1) without insurance (VTL § 319-1) and without a valid driver's license (VTL § 509-1), operating a vehicle with tinted windows (VTL § 375 [12-a] [a] and [b]), and related charges.

The charges are based on the following allegations: that at about 6:40 PM on November 29, 2023, near the intersection of 41st Avenue and College Point Boulevard in Queens, defendant, whose white 2014 Infiniti Q50 sedan had been parked in a "No Standing" zone in front of Dunkin Donuts, abruptly pulled away from the curb into the traffic lane, striking three-year-old Quintus Chen who was dragged into the middle of the street and killed. Defendant failed to stop but continued away from the scene. Investigation revealed that defendant had a learner's permit but no valid driver's license, no automobile insurance, and an expired vehicle registration. In addition, the side windows of the vehicle were illegally tinted permitting 0% light transmittance, and the windshield was illegally tinted permitting only 11% light transmittance.^[FN1]

By motion filed April 29, 2024, defendant moves for the court's inspection of the grand jury minutes and release of the jury charge under CPL § 210.30; and dismissal or reduction of all [*2]counts in the indictment on the ground of legally insufficient evidence pursuant to CPL §§ 70.10, 190.65, and 210.20. In determination of the instant motion, the court has reviewed the motion papers, the court file, and the grand jury minutes and evidence.

The court has reviewed the grand jury minutes in camera. The defendant's motion to release the grand jury minutes is partially moot because the People certified in their COC that they turned over the grand jury testimony.

The action of a grand jury is presumed to be valid. (People v Pelchat, 62 NY2d 97 [1984]). A grand jury may indict an accused only if the evidence before it is legally sufficient and provides reasonable cause to believe the defendant committed every element of the charged offense(s). (CPL § 70.10). The standard of proof is a prima facie case, not proof beyond a reasonable doubt. (People v Gordon, 88 NY2d 92, 95-96 [1996]). Courts reviewing the legal sufficiency of evidence before the grand jury are limited to determining whether that evidence, when viewed in the light most favorable to the People, and if unexplained and uncontradicted, would warrant conviction by a petit jury. "Upon review, we must determine 'whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference.' " (People v Gaworecki, 37 NY3d 225, 230 [2021], quoting People v Grant, 17 NY3d 613, 616 [2011).

To indict defendant on the instant charges requiring a reckless mens rea, the People were required to present competent evidence establishing that he recklessly caused the death of Quintus Chen, to wit that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that death will result from his action. (PL §§ 15.05 [3], 125.15 [1]). Indictment on the lesser included offense of criminally negligent homicide required legally sufficient evidence demonstrating that defendant caused the death of Quintus Chen because he failed to perceive a substantial and unjustifiable risk that death would result from his action. (PL §§ 15.05 [4], 125.10).

The underlying conduct for both recklessness and criminal negligence is the same; it involves "some degree of risk creation by the defendant," to wit, a "substantial and unjustifiable risk" that death or injury will occur from defendant's action, (People v Boutin, 75 NY2d 692, 696 [1990]) and that the manner of death was a foreseeable result of the risk-creating conduct. People v Kibbe, 35 NY2d 407 [1974]). The "nonperception" of a risk, even if death results, is not enough; the evidence must demonstrate that the defendant engaged in some blameworthy conduct creating or contributing to that risk, which conduct amounts to a "gross deviation" from how a reasonable person would act. (Id.; People v Asaro, 21 NY3d 677, 684 [2013];l PL § 15.05). The only distinction between the two mental states is that recklessness requires that the defendant be 'aware of' and 'consciously disregard' the risk, while criminal negligence is met when the defendant negligently fails to perceive the risk. (Id., cited in Gaworecki, 37 NY3d, at 231).

Defendant argues that his exit from a parking spot is not risk-creating conduct (Affirmation in Support of Motion, ¶ 27), and that the consequence of that conduct - causing the death of a child who has run into the street - was not foreseeable; and therefore, there is no evidence of criminal liability. (Affirmation in Support of Motion, ¶¶ 19-20, 23). In support of his argument, defendant cites numerous cases which dismissed manslaughter and criminally [*3]negligent homicide convictions for insufficient evidence.

In People v Marchese, the intoxicated decedent insisted on exiting defendant's car and then jumped in front of the defendant's car as he drove away. The court found no evidence that defendant was aware of and consciously disregarded a substantial and unjustifiable risk of death. (158 AD2d 473 [2d Dep't 1990]). In People v Roberts, defendant struck and killed a child who rode his bicycle out into the street; but the court found no evidence of any reckless conduct by defendant. (72 AD2d 954 [4th Dep't 1979]). In People v Holt, defendant, driving intoxicated, struck and killed a pedestrian. The People had presented no evidence as to how the accident occurred, without which the court could find no evidence of reckless conduct that would sustain the manslaughter conviction. (109 AD2d 174 [4th Dep't 1985], app denied, 66 NY2d 615). In People v Paris, defendant's vehicle was seen traveling at a safe speed when it suddenly accelerated, veered off and hit a telephone killing the passenger. The court held there was no evidence that the loss of control of the car was deliberate but instead, from defendant's slumped position in the driver's seat, inferred that defendant lost consciousness and therefore there was no evidence of a criminally negligent act. (138 AD2d 534 [2d Dep't 1988]). In People v Acevedo, the court held that the People failed to prove defendant had engaged in "some additional affirmative act aside from driving faster than the posted speed limit," as required to support a finding of recklessness or criminal negligence. (187 AD3d 1030, 1033 [2d Dep't 2020]).

In each of the above cases, there was little evidence that the defendant created and then intentionally defied a substantial and unjustifiable risk to explain the accident, and in no case was the defendant found to have committed more than single traffic violation, such as speeding. The court thus finds these cases to be inapposite to the facts at bar. Here, the grand jury was presented with a plethora of evidence from which they could reasonably infer risk-creating conduct and disregard of their consequences.

The evidence before the grand jury established an intentional pattern of conduct of violations by defendant which is unseen in any case found by the court. Defendant incorrectly dismisses this additional evidence as irrelevant. (Affirmation in Support of Motion, ¶¶ 18, 36). Defendant persisted in driving with no valid driver license, for which he had been ticketed repeatedly during the preceding three years. Further, defendant was knowingly operating an unregistered, uninsured motor vehicle, which had windows and windshield tinted so dark that he was effectively blinded to many things in front of his car and everything at the sides and back of his car - especially at night, when the tint effect is enhanced. Defendant was aware of this risk as he had been warned about the illegal tint and the illegality of driving without a license when he was stopped by NYPD Officer Leo nine months prior to the accident. Furthermore, on the evening of the accident, defendant had parked in a "No Standing" zone to go to Dunkin Donuts, clearly violating notice of a safety feature for pedestrians and other drivers, and he pulled away from the parking spot without signaling, preventing pedestrians and drivers from anticipating and avoiding his moving vehicle. Most important, the video evidence showed defendant striking the child and dragging him into the middle of the road as he speedily pulled away from the curb without stopping.^[FN2]

Far from being irrelevant, the court finds this evidence of defendant's actions to be a significant illustration of his mental state and a context for his conduct during the incident. It needs hardly be said that driver licensing, vehicle registration and equipment regulations, rules of the road, and parking restriction signs, all exist to ensure safety for people and property who must share roads with inherently dangerous weapons such as vehicles. While each separate vehicle regulation and rule of the road allegedly flouted by defendant, existing alone, might not rise to the level of seriously blameworthy conduct which is a "gross deviation" from how a reasonable driver would act, (Gaworecki, at 231), each also undoubtedly provides "some degree of risk creation" attributable solely to the defendant. (Boutin, 75 NY2d, at 696; see also, People v Reyes, 148 AD2d 756, 758-9 [2d Dep't 1989, affd 75 NY2d 590, and People v Deitsch, 97 AD2d 327, 335 [2d Dep't 1983]). However, the aggregation of these Vehicle and Traffic Law violations, together with the warnings he received regarding them, supports a logical inference that defendant exhibited "seriously condemnatory behavior" which created a substantial, unjustifiable risk of death in the event of a pedestrian getting in the way of the vehicle. ((People v Pino, 162 AD3d 910 [2d Dept 2018]); People v Reyes, 148 AD2d 756; cf., People v Acevedo, 187 AD3d 1030, 1032-33).

Defendant correctly asserts that legally sufficient evidence for reckless manslaughter and criminally negligent homicide charges also must include proof that there was not "an obscure or merely probable connection" between defendant's conduct and the death, but that defendant's conduct was a "sufficiently direct cause" of the child's death. (People v Stan XuHui Li, 34 NY3d 357, 369 [2019][internal citations omitted]). Nonetheless, the standard to be applied is not that "the exact manner of the fatality must be foreseeable "^[FN3] In fact, to "be a sufficiently direct cause of death to warrant the imposition of a criminal penalty, it is not necessary that the ultimate harm be intended by the actor, but only that the ultimate harm should have been foreseen as being reasonably related to the acts of the accused." (People v Deitsch, 97 AD2d 327, 335 [2d Dep't 1983], citing People v Kibbe, 35 NY2d 407 [1974], affd Henderson v Kibbe, 431 US 145 [1977]).

Defendant argues that it was not foreseeable that a child would dart into the street in front of his car, and that he was only required to look to his left for oncoming traffic to exit a parking spot. (Affirmation in Support of Motion, ¶¶ 18, 20). This argument is inconsistent with the objective standard by which the general duty of drivers to exercise due care under statutory and common law should be measured. (see, e.g., People v Gonzalez, 62 Misc 3d 130(A) [App Term 3d Dep't 2018]). Every driver is charged with the duty of seeing what he should have seen had he kept a proper lookout. (Frankel v Jaroslawicz, 225 AD3d 742, 744 [2d Dep't 2024]; Beityaaghoob v Klein, 216 AD3d 724 [2d Dep't 2023]; Shui-Kwan Lui v Serrone, 103 AD3d 620 [2d Dep't 2013]; People v Holt, 109 AD2d 174, 177). A common-sense aspect of such duty of care is to look all around when beginning to move a vehicle. It is a well-known fact that even [*4]peripheral vision permits observations to the right without losing focus on the road ahead. (Russell v Adduci, 140 AD2d 844, 845 [3d Dep't 1988]).

At rush hour in the dark, close to the holidays, on a busy urban thoroughfare bordered by consumer and retail establishments, it is foreseeable that pedestrians, especially children, may be found near moving vehicles. The duty of care under these conditions required that defendant keep a proper lookout of all his surroundings before exiting an illegal parking space, even if only with his peripheral vision.^[FN4] The video in evidence clearly shows that the child was running on the sidewalk from the right side of defendant's vehicle toward the front. But for the nearly complete lack of visibility which the tints created, the child's movements would have been observable from inside the vehicle directly through the front passenger side window and reflected in the side view mirror. But not only was defendant aware that he could see nothing on the side and very little in the front, he did not even take the time to pull away slowly from the curb. In addition to the peripheral and frontal blindness he had created, he made a "jack-rabbit" start as he pulled away from the curb: further evidence of his conscious disregard of the substantial and unjustifiable risk which he created. (see, e.g., Ward v Dwyer 177 Kan 212, 277 P2d 644 [1954]).

Defendant's final argument, that he had no reason to know his car had struck the child, is patently incredible. Every person who has ever driven a car has experienced the feeling of the tires driving over an object on the road — even something as small as a twig or small animal, especially when it is caught under the moving car for any distance. Here, the child's head is clearly visible at the front of the car. The evidence that the child was dragged several feet after being struck, and the blood found on the undercarriage of the vehicle permits a strong inference that defendant heard or felt - or had reason to hear and/or feel - the vehicle striking the child who was then caught against the undercarriage and dragged with the moving car.

The totality of defendant's actions as presented to the grand jury demonstrated that his failure to observe a small pedestrian in his path was the result of his actively creating and failing to correct the hazard of blindness to conditions outside his vehicle, (see, People v Reyes, 148 AD2d 756,759-60), and that he operated his vehicle in a manner consciously disregarding the substantial and unjustifiable risk of death wrought by the foreseeable intervening event of an errant pedestrian child near the curb. The grand jury could reasonably have inferred that these actions evinced a gross deviation from the expected behavior of a reasonable driver in his situation, and that defendant's conduct was an "actual contributory cause" of the child's death, a foreseeable consequence of defendant's actions that "forged a link in the chain of causes which actually brought about the death." (People v Stan XuHui Li, 34 NY3d 357, 370; People v Roth, 80 NY2d 239, 243-44 [1992]). It is important to note that defendant cannot escape liability simply because the hazard he created was not the sole cause of the accident. (People v Cicchetti, 44 NY2d 803, 804 [1978]). An intervening event only absolves defendant of criminal liability if it is the sole cause of the death. (People v Stewart, 40 NY2d 692, 697). "A person who is aware [*5]of and consciously disregards a substantial risk must also foresee the ultimate harm that the risk entails." (Henderson v Kibbe, 431 US 145, 146 [1977], affirming People v Kibbe, 35 NY2d 407).

The grand jury minutes reveal that the same quorum of the grand jurors was present and heard all the evidence prior to the prosecutor delivering the legal instructions; the witnesses testified under oath; and no unauthorized person within the meaning of CPL § 190.25 was present at any time during the proceeding. (People v Sayavong, 83 NY2d 702 [1996]). The minutes reflect that the prosecutor's instructions on the relevant legal principles for all counts were adequate and proper. (People v Calbud, Inc., 49 NY2d 389 [1980]). There were no omissions, irregularities, or defects in the proceeding which impaired its integrity and prejudiced defendant, as would be required to invoke the "exceptional" remedy of dismissal of the indictment. (People v Addimondo, 197 AD3d 106, 121 [2d Dep't 2021], citing People v Huston, 88 NY2d 400, 409 [1996]; People v Adessa, 89 NY2d 677 [1997]; People v Burch, 108 AD3d 679, 680 [2d Dep't 2013]).

In view of the foregoing, the court finds that the evidence was both competent and legally sufficient to provide reasonable cause to believe that defendant committed every element of all charges in the indictment, and the charge to the jury was proper. (see CPL §§ 190.65 [1]; 210.20 [1]; 210.30 [1]; 70.10 [1]; see also People v Jensen, 86 NY2d 248 [1995]; Calbud, 49 NY2d 389). The court also finds that further disclosure of the grand jury minutes is unnecessary to enable the court to render its decision herein.

Defendant's motion to inspect the grand jury minutes is granted. Defendant's motions to dismiss or reduce any counts of the indictment and further disclose the grand jury minutes are denied. Defendant's reservation of rights to file additional motions is denied subject to CPL § 255.20 [3] for leave to file upon good cause shown.

This constitutes the decision and ORDER of the Court.