Question

• People v. Levy): The court in Levy ruled that New York State’s accusatory instrument alleged that the defendant “operated” his vehicle recklessly and as such, the prosecution should not have been allowed to argue at trial that the defendant made a reckless “decision” to drive knowing he was prone to epileptic seizures. Suppose the state’s accusatory instrument had been consistent with prosecutor’s argument. Do you think the prosecutor's argument would have merit? Should the voluntary act requirement for establishing an actus reus be satisfied by conduct that “includes” a voluntary act (i.e., the Model Penal Code “one-voluntary-act-is-enough rule”)? Or should “‘every act up to the moment of the crime” have to be voluntary (see p. 99 in Samaha)?

Answer 1

People vs Levy is a case where the accusatory accused defendant of reckless driving (Vehicle and Traffic Law 1212), over speeding (Vehicle and Traffic Law 1180 [a]), and reckless endangerment in the second degree (Penal Law 120.20). He allegedly rear-ended one vehicle, crossed the double yellow line on a two-lane road, and collided with another vehicle while traveling at a high rate of speed. The defendant levy at a jury trial, presented expert testimony that his erratic driving was likely caused by a temporal lobe seizure in his brain. Thereafter, the defendant asked the Justice Court to charge the jury that, in order to find the defendant guilty of the alleged offenses, he must have "acted voluntarily." The Justice Court refused to issue this charge, and the jury convicted the defendant of the aforementioned offenses.

The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act(penal law 15.10) . Voluntary act means a bodily movement performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it. Conduct means an act or omission and its accompanying mental state.

In this case, the defendant proffered expert testimony that he suffered from temporal lobe seizures and that these seizures could cause defendant to perform complex motor functions without any awareness of his actions both during and after each seizure. This testimony, when viewed in the light most favorable to the accused, along with the defendant's request for the aforementioned jury charge, obligated the Justice Court to charge the jury accordingly. However, the People proposed an alternative theory of liability when they asserted that the defendant made a reckless "decision" to drive in the first place because he should have known that he suffered from epilepsy after his earlier accident.

If the states accusatory instrument had been consistent with prosecutors argument, I think that the prosecutor's argument would have a merit because even after the knowledge of the problem temporal lobe seizures which is a critical disability causing a higher risk for memory and mood problems, lower quality of life, and an increased risk for sudden unexpected death in epilepsy (SUDEP). The defendant decides to drive a car with this critical illness on his own. The severity of the illness is high enough to be damaging to himself and others.

Actus reus is commonly defined as a criminal act that was the result of voluntary bodily movement. This describes a physical activity that harms another person or damages property. Anything from a physical assault or murder to the destruction of public property would qualify as an actus reus. As per this only one act reffering to act of criminal conduct is enough. As per this case the act by defendant to drive his car to far away is enough to show that he was guilty to harm others with his disability. As his disability included seizures at any point of time unexpected, knowing it he drove the car.

Hence, in my opinion the prosecutor's argument should have merit if the states accusatory instrument had been consistent with the prosecutors argument. Not every action upto the crime needs to be related to crime only one voluntarily acted upon for crime is enough.