
    The People of the State of New York, Respondent, v. Joe Perry, Appellant.
    County Court, Herkimer County,
    February 10, 1961.
    
      
      Joseph Serino for appellant. Albert W. Schneider, District Attorney (Henry Blumberg of counsel), for respondent.
   Edmund A. McCarthy, J.

On November 19,1960, the defendant was arraigned on a charge of leaving the scene of an accident in violation of section 600 of the Vehicle and Traffic Law, and reckless driving in violation of section 1190 of the same law, alleged to have been committed on the 28th of October, 1960.

On January 5, 1961, the defendant was convicted following a jury trial, on the testimony of the witnesses and the evidence, of the crime of leaving the scene of an accident in violating section 600 of the Vehicle and Traffic Law, and he was acquitted by the jury on a charge of reckless driving under section 1190 of the Vehicle and Traffic Law. He was fined $75 and his license was revoked.

Section 600 of the Vehicle and Traffic Law specifically provides, among other things, ‘ ‘ Any person operating a motor vehicle * * # who, knowing that damage has been caused to the real property or to the personal property * # * of another ’ ’.

This language leaves without doubt that the People must prove that damage was caused.

It is most fortunate that the stenographic transcript of this trial in Court of Special Sessions was made available on appeal, and thereby avoiding the failure of correct recollection and dispute as to the testimony actually heard by the jury.

On page 3, defense counsel in his opening statement, emphasized the fact of the importance of knowledge of the fact that damage had been caused. This damage need not be monetary but it must be actual. Many bumpers strike so that the jar may be felt and the striking may be heard, and it is likely that no damage may result.

On page 11, the hearing and feeling of the impact was shown to the jury, and again on page 29 the hit was felt, but there was no evidence of any damage. The court charged on page 59 that “it be shown that the defendant Imew that the property damage had been caused.”

On top of page 57 request was made with reference to property damage and the court refused to follow that request.

This court is of the opinion that actual damage is essential to the commission of this crime and it should be actively shown by positive evidence that damage was caused. (People v. Irish, 129 Misc. 440.)

Because of the failure of essential proof in this case, the verdict of the jury must be set aside and the conviction reversed; the fine remitted and the order for revocation of license revoked and annulled; and new trial ordered.  