
    [639 NE2d 7, 615 NYS2d 650]
    The People of the State of New York, Respondent, v James Galatro and John Schmidt, Appellants.
    Argued June 7, 1994;
    decided June 30, 1994
    
      POINTS OF COUNSEL
    
      Agulnick & Gogel, New York City (Barry W Agulnick and Steven L. Greenspan of counsel), for James Galatro, appellant.
    I. The trial court correctly dismissed the charge of reckless endangerment in the second degree because the evidence before the Grand Jury failed to establish a prima facie case of reckless endangerment in the second degree. (People v Jennings, 69 NY2d 103; People v Cruciani, 36 NY2d 304; People v Licitra, 47 NY2d 554; People v Davis, 72 NY2d 32; People v Kern, 75 NY2d 638; People v Knapp, 113 AD2d 154; People v Kibbe, 35 NY2d 407; People v Wagman, 99 AD2d 519; People v Goetz, 68 NY2d 96.) II. The trial court correctly dismissed the charge of reckless endangerment in the second degree because appellant owed no duty to the complainant thereby negating reckless conduct by omission. (People v Lansing Terrace Apts., 70 Misc 2d 44; People v Steinberg, 170 AD2d 50; Lipsius v White, 91 AD2d 271; Burton v Brooklyn Doctors Hosp., 88 AD2d 217; People v Robbins, 83 AD2d 271; People v Northrup, 83 AD2d 737; People v Gladden, 118 Misc 2d 831.)
    
      Joseph P. Grancio, Brooklyn, for John Schmidt, appellant. I.
    
      Where a person in a roadway was surrounded and attended by a large group of people, a charge of reckless endangerment by omission was properly dismissed because there was no disregard of any risk such as would constitute a gross deviation from the standard of conduct of a reasonable person. (People v Jennings, 69 NY2d 103; People v Mikuszewski, 73 NY2d 407; People v Pelchat, 62 NY2d 97; People v Cruciani, 36 NY2d 304; People v LeBeau, 128 Misc 2d 226; People v Conyers, 160 AD2d 318; People v Davis, 72 NY2d 32; People v Knapp, 113 AD2d 154; People v Kibbe, 35 NY2d 407; People v Richardson, 97 AD2d 693.) II. Where appellant owed no duty to complainant, appellant cannot be found to commit reckless conduct by omission, and the charge of reckless endangerment in the second degree was therefore properly dismissed below. (People v Gladden, 118 Misc 2d 831; People v Lansing Terrace Apts., 70 Misc 2d 44; People v Steinberg, 170 AD2d 50.)
    
      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Ruth E. Ross and Roseann B. MacKechnie of counsel), for respondent.
    The evidence before the Grand Jury was legally sufficient to sustain an indictment for reckless endangerment in the second degree. (People v Mikuszewski, 73 NY2d 407; People v Jennings, 69 NY2d 103; People v Haney, 30 NY2d 328; People v Macellaro, 131 AD2d 699; People v Davis, 72 NY2d 32; People v Register, 60 NY2d 270; People v Goetz, 68 NY2d 96; People v Kin Wong, 158 AD2d 288; People v Conigliaro, 20 AD2d 930; People v Kibbe, 35 NY2d 407.)
   OPINION OF THE COURT

Ciparick, J.

The issue presented by this appeal is whether the Grand Jury evidence is legally sufficient to support the charge of reckless endangerment in the second degree (Penal Law § 120.20). We agree with the Appellate Division that it is.

I

Defendants were arrested after a street altercation with a third man, complainant James Kasemersky, outside a bar located on Flatbush Avenue in Brooklyn. According to the evidence presented to the Grand Jury, one or both of the defendants struck the complainant, knocking him unconscious and causing him permanent brain damage. The evidence was conflicting as to whether complainant or one of the defendants struck the first blow. Defendants left the victim unconscious in the middle of the street. Several persons who witnessed the incident assisted the victim and called the police, who arrived within five minutes.

The District Attorney charged the Grand Jury panel as to assault in the second degree, assault in the third degree, and reckless endangerment in the second degree. The Grand Jury was instructed that they could return a count of reckless endangerment in the second degree, if they found that there was legally sufficient evidence that defendants, acting in concert, "recklessly engaged in conduct which created a substantial risk of serious physical injury to another person, in that they left an injured person, James Kasemersky, on a trafficked roadway.” The Grand Jury returned "No True Bill” on the assault counts, but indicted defendants for reckless endangerment in the second degree. Supreme Court granted defendants’ motion to dismiss the indictment. Emphasizing the Grand Jury’s refusal to indict on the assault counts, Supreme Court concluded that the People’s evidence was not legally sufficient to support the charge of reckless endangerment. Supreme Court also determined that defendants’ conduct in leaving the complainant in a heavily trafficked roadway did not create a substantial risk of serious physical injury to the complainant where persons who witnessed the incident approached complainant and rendered assistance.

The Appellate Division reversed, stating that the prima facie proof satisfied the statutory definition of recklessness, and it did not matter that bystanders quickly rendered the assistance the defendants had failed to provide, since "[t]he statutory risk was present the moment the victim lay unconscious on the pavement as a result of the defendants’ actions” (194 AD2d 552, 554). The Appellate Division also disagreed with Supreme Court concerning the significance of the Grand Jury’s failure to indict on the assault counts, concluding that "any inconsistency may be harmonized on the basis of the charge to the jury” (id,., at 554).

II

In the context of a motion to dismiss an indictment, the sufficiency of the People’s presentation "is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v Jennings, 69 NY2d 103, 114; see, People v Mikuszewski, 73 NY2d 407, 411). The People are required to make out a prima facie case that the accused committed the crime charged by presenting legally sufficient evidence establishing all of the elements of the crime (Jennings, 69 NY2d, at 115, supra). On a motion to dismiss, the reviewing court’s inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy. Indeed, "all questions as to the quality or weight of the proof should be deferred” (id., at 115).

Penal Law § 120.20 provides that a person is guilty of reckless endangerment in the second degree where he or she "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” A person acts recklessly with respect to a result or circumstance when he or she is aware of and consciously disregards a substantial and unjustifiable risk that the particular result will occur or that the circumstance exists (see, Penal Law § 15.05 [3]). As we stated in People v Davis (72 NY2d 32, 36), the reckless endangerment statutes "seek to prevent the risk created by the actor’s conduct, not a particular outcome”, and the risk of injury alone will sustain prosecution.

In this case, the People’s evidence established that defendants struck and rendered the complainant unconscious and then simply left him lying in the middle of a heavily trafficked thoroughfare. Viewed in the light most favorable to the People, the evidence adduced before the Grand Jury established a prima facie case that defendants acted recklessly in disregarding the substantial risk that the complainant would be struck and further injured by a vehicle travelling on Flatbush Avenue. As the Appellate Division recognized, the substantial risk of injury contemplated by the statute was present here the moment complainant was caused to lie helpless in the middle of the street.

In People v Roth (80 NY2d 239), the evidence before the Grand Jury established that the defendants allowed a petroleum tank to be cleaned without adequate ventilation and in the presence of numerous sources of ignition. We held that this evidence was sufficient to support the charge of reckless endangerment in the second degree and we reinstated that count of the indictment, stating that it was enough that defendants were aware of and consciously disregarded a substantial and unjustifiable risk involving serious physical injury to another person (id., at 245).

We thus conclude that the People’s evidence is legally sufficient to sustain an indictment for reckless endangerment in the second degree (see, Roth, 80 NY2d, at 245, supra; People v Kibbe, 35 NY2d 407, 413).

Factual impossibility is a defense to reckless endangerment inasmuch as that crime is defined in terms of the risk produced by the defendant’s conduct rather than by intent (Davis, 72 NY2d, at 37). The evidence before the Grand Jury was not conclusive on the question of factual impossibility. Although, as Supreme Court noted, it is undisputed that several persons assisted the complainant and that a crowd gathered around him, it is unclear how quickly such assistance was rendered, a question relevant to whether defendants acted recklessly. More importantly, however, a determination whether it was factually impossible for complainant to have been struck by a vehicle requires assessment and examination of the proof, an endeavor that should not take place at the Grand Jury stage of the proceedings (see, Jennings, 69 NY2d, at 115, supra).

Finally, given the charge to the Grand Jury — that defendants’ conduct in leaving an injured person on a trafficked roadway was reckless, the indictment for reckless endangerment was not inherently inconsistent with the failure to indict on the assault counts (see, People v Tucker, 55 NY2d 1, 6-8).

Accordingly, the order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). Contrary to the majority, I conclude that no view of the evidence before the Grand Jury supported an indictment against these defendants for second degree reckless endangerment under Penal Law § 120.20. Accordingly, I dissent.

The crime of second degree reckless endangerment is committed when a person “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person” (Penal Law § 120.20). In People v Davis (72 NY2d 32, 36, quoting People v Register, 60 NY2d 270, 277, cert denied 466 US 953), we held that the risk-creation element of the crime is an objective one that depends not on the actor’s state of mind but rather on " 'an objective assessment of the degree of risk presented by [the] defendant’s reckless conduct.’ ” It follows that, regardless of how heinous the defendant’s conduct may have been, the crime of second degree reckless endangerment is not committed unless there existed an actual and substantial risk of "serious physical injury” (see, People v Davis, supra).

The majority acknowledges these principles but concludes that such a risk existed here because defendants left a helpless, unconscious man in the middle of Flatbush Avenue, an admittedly heavily trafficked roadway. The "substantial risk of serious physical injury” that the majority evidently contemplates is the risk that the injured man would be struck by a passing car.

The majority’s conclusion is flawed because it rests on an analysis of only a selected portion of the facts that were before the Grand Jury. Contrary to the majority’s suggestion, consideration of all of the surrounding circumstances is required because an assessment of whether the identified risk was truly a "substantial” one cannot be made in a vacuum. In People v Kibbe (35 NY2d 407, 413), for example, there existed an objective "grave risk of death” not because the injured victim had been left on the roadside, but rather because of the surrounding conditions, namely that the road was deserted and there was a snowstorm producing low visibility. These conditions combined to create a risk that the helpless victim would either "fr[eeze] to death” or be hit by a vehicle (id., at 413).

Here, in contrast, there were no visibility problems and the street in question was far from deserted. In fact, according to the evidence before the Grand Jury, one of defendants’ companions immediately approached the unconscious victim, another individual stood so as to block an advancing car and the other cars in the area were "going around” the victim. At that point, a crowd of 20 to 30 people had gathered and one or more individuals ran to get help. Under these particularized circumstances, there was no objective risk at all, much less a "substantial” risk that the victim would be injured by moving traffic. Thus, the People did not, and could not, adduce a prima facie case establishing all of the elements of the crime, and the trial court’s dismissal of the indictment was proper.

I would note that People v Roth (80 NY2d 239), on which the majority relies, is not relevant to the problem presented here because the risk created in that case by the method used to clean an unventilated petroleum tank was clear and unmitigated by any other surrounding circumstances. Similarly, the majority’s reference to the "factual impossibility” defense discussed in People v Davis (supra, at 37) is not pertinent. In Davis, the defendant’s pulling the trigger of the gun he was pointing at police officers plainly would have created a risk of death but for the fact that the gun’s chamber was apparently jammed due to an unejected spent shell. Under those circumstances, invocation of the defense of "factual impossibility” was appropriate to rebut the otherwise valid inference that a real risk existed. Here, in contrast, there was never any risk at all, since the act of leaving an unconscious individual in the middle of a road where others are crowding around and directing traffic to flow around him simply does not give rise to the possibility of injury. Thus, the question of "factual impossibility” does not enter into the analysis at all, and it is irrelevant whether the defense was "conclusively” established.

In sum, I would hold that, as a matter of law, the evidence before the Grand Jury did not demonstrate the "substantial risk of serious physical injury” that Penal Law § 120.20 requires. As noted in Davis (supra, at 37, n), "[t]he crime must be judged by the risk created at the time of the incident” and not by some theoretical possibility that a risk might have arisen under other conditions. In this case, there was never a substantial risk that the unconscious victim would be hit by a passing vehicle because there were individuals at the immediate scene who could — and did — direct traffic around him and a crowd promptly formed, making the unhindered passage of traffic unthinkable. Accordingly, I vote to reverse the order of the Appellate Division and reinstate the order of the trial court, which dismissed the indictment.

Chief Judge Kaye and Judges Simons, Bellaoosa, Smith and Levine concur with Judge Ciparick; Judge Titone dissents and votes to reverse in a separate opinion.

Order affirmed.  