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People v. Lovero1/20/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Defendant's pre-sentence motion pursuant to CPL 330.30(1) to set aside a verdict of guilty, following a bench trial, insofar as the court convicted him of leaving the scene of an incident with personal injury and without reporting (see Vehicle and Traffic Law § 600 ) is denied.
The evidence adduced at the non-jury trial in this matter establishes that, on November 30, 2003, Defendant, then age 21, was driving his car, that a companion was his passenger, that Defendant stopped the car in the middle of the street, that his companion got out, and that the companion began damaging a Christmas decoration on someone's front lawn. A neighbor who observed the activity went into the street to investigate, and demanded to know what the two were doing. Defendant's companion got back into Defendant's car, and Defendant, apparently unknowingly, headed the car toward the no-exit end of the dead-end street that he, his companion, and the neighbor were on. Defendant then backed up the car and hit the neighbor, who was still standing in the middle of the street. Defendant pulled forward, but backed up again and, once again, hit the neighbor. Defendant then drove off without calling the police or otherwise reporting the incident. He was caught because the neighbor, who later declined medical treatment, pulled the license plate off the back of Defendant' s car as he fell to the ground (see Penal Law § 120.00). I acquitted Defendant of assorted assault and harassment charges, in part because of a failure to prove that the neighbor sustained "physical injury" within the meaning of the Penal Law (see Penal Law § 10 ; see also Penal Law § 120.00), and in part because I was not satisfied beyond a reasonable doubt that Defendant intended to cause physical injury or intended to alarm or annoy the neighbor. I did, however, conclude beyond a reasonable doubt that Defendant committed the crimes of reckless endangerment (see Penal Law §120.20) and leaving the scene of an incident with personal injury and without reporting.
Defendant now moves to set aside his conviction for leaving the scene of an incident with personal injury and without reporting, asserting, first, that one of the consequences of the conviction mandatory revocation of his license (see Vehicle and Traffic Law § 510 ) is "Draconian" and counter-productive in light of the probability that the sentence imposed will be probation, together with therapy, activities to which, he asserts, he must drive. He secondarily contends that I erred in ruling that "personal injury" as set forth in Vehicle and Traffic Law § 600(2) is not the equivalent of "physical injury" as set forth in e.g. Penal Law § 120.00. And he urges that the proof was insufficient to establish beyond a reasonable doubt that Defendant was "aware" that the neighbor was injured.
Defendant's present motion must be premised on a ground that appears in the record and that, if raised on appeal, would require reversal as a matter of law (CPL 330.30 ). Insofar as he seeks recall of the guilty verdict on the ground that a statutorily specified consequence of an as-yet-to-be-imposed sentence is, for him, too harsh, his application is procedurally defective (see People v. Morgan, 271 AD2d 248, 706 NYS2d 390 [1st Dept. 2000]; People v. Armstrong, 237 AD2d 452, 655 NYS2d 545 [2d Dept. 1997]; People v. Grosfeld , 216 AD2d 319, 628 NYS2d 331 [2d Dept. 1995]; and see People v. Williams, 305 AD2d 804, 759 NYS2d 580 ). Turning to the legal issues he raises, whether the proof establishes tha
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