People v. Nelson

Dye, J.

The defendant-appellant appeals to this court by permission from a judgment of the Appellate Division, Second Judicial Department, modifying* and affirming as modified a judgment of the County Court of Kings County rendered upon a jury verdict convicting the defendant of the crimes of manslaughter, first degree, and manslaughter, second degree (Penal Law, § 1050, subd. 1; § 1052, subd. 3).

The indictment upon which the conviction was based contained two counts: The first charged manslaughter in the first degree insofar as the death of two persons was caused by a fire which occurred in defendant’s multiple dwelling. These persons were Enable to escape because of lack of adequate fire protection which iefendant had knowingly neglected to provide, as required by the Multiple Dwelling Law, a misdemeanor, affecting “ the person or property ” of the two persons killed (Penal Law, § 1050, subd. 1; Multiple Dwelling Law, §§ 187, 188, 189, 304). The second count charged manslaughter in the second degree by reason of the fact that under the same circumstances of ownership he “ wilfully and wrongfully used said building ” in an inlawful manner and ‘1 with gross and culpable negligence” owned, operated and neglected to render the ‘ ‘ building safe for he tenants and occupants thereof ’ ’ by failing to provide adequate fire protection as required by law, and thereby caused he death of two persons (Penal Law, § 1052, suhd. 3; Multiple Dwelling Law, §§ 187,188,189, 304).

The appellant concedes that his premises were existing in violation of the safety provisions required by the Multiple Dwelling Law, and that such violations were the proximate cause of the death of two tenants. He, nonetheless, prays that his conviction on both counts be set aside on the ground that the trial court erred, as a matter of law, in ruling that lack of notice of the aforesaid violations afforded no defense, thereby depriving the jury of its right to determine as a question of fact, on the issue of culpable negligence, whether without such notice or knowledge he was “ engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed ” or whether such homicide when committed without a design to effect death, was the result of culpable negligence.

It is true defendant was not personally notified of the violations in conformity with section 326 of the Multiple Dwelling Law,- but nothing turns on such omission for such notice is not required in a criminal proceeding (People v. Schwartz, 298 N. Y. 551). However, the record is replete with proof establishing that he had knowledge of the existence of the violations. There is evidence showing that the plaintiff had been a tenant of the subject premises for. over fifteen years; that he was well familiar with its physical aspects, including lack of sprinkler system and secondary egress for use in case of fire. There came a time in 1951 when he negotiated with the then owner to purchase the premises. At the closing of title on June 15,1951, the defendant was present and represented by attorneys. A report furnished by the company issuing the title insurance noted violations of the Multiple Dwelling Law and these were set forth in a deed which was given subject to such violation. While defendant now says that this reference to the violation was not brought to his attention, he nonetheless is bound thereby. In addition to such uncontroverted documentary proof, there is oral testimony to the effect that he had told a tenant that because boys were using the roof scuttle as a means of entrance, he had nailed it shut; that the real estate agent had told defendant of the need for fire escapes and that defendant had made measurements for such installation but that he “ hadn’t gotten .to,-it yet

On November 17, 1952, the defendant undertook to repair a leak in the roof. He heated a tar compound in a shallow pan over an open gas burner located in the basement. The tar caught fire and despite his best efforts spread to the building. He ran to give the alarm to the tenants. It was too late. Two tenants who were cut off jumped from the fourth-story window and were badly injured. One died and a third tenant trapped in her apartment was burned to death. An assistant fire marshal testified that on the day of the fire the defendant had told him that ‘ ‘ he knew he was supposed to have fire escapes or a sprinkler ’ ’.

In such a setting the defendant is chargeable with knowledge of the existence of the violation — a misdemeanor (Multiple Dwelling Law, § 304) “ affecting the person and property * * * of the person killed ” (Penal Law, § 1050, subd. 1) and, even though such violations were committed without design to effect death, his act was culpable within the meaning of subdivision 3 of section 1052 of the Penal Law. This is so whether or not he knew the penal consequences of such culpability.

People v. Grieco (266 N. Y. 48), relied on by the appellant, is not authority to the contrary. There the defendant was charged with manslaughter while engaged in the commission of a misdemeanor, namely, reckless driving while intoxicated, in such a manner as to cause the death of a human being. The trial court charged the jury that at the time of the killing the defendant was committing a misdemeanor affecting the person killed or another, within the meaning of section 1050 of the Penal Law. We ruled this was error and set aside the conviction, inasmuch as the People had not contended or proven that the defendant saw the deceased before his automobile struck her or that he intentionally ran her down, thus holding that prior knowledge was an essential ingredient of the crime charged which, under the circumstances of that case, was justified.

The within case falls more properly within our rule in People v. Alexander (293 N. Y. 870), wherein we unanimously affirmed a judgment rendered on a jury verdict convicting the defendant-appellant of the crime of manslaughter in the first degree under section 1050 of the Penal Law and manslaughter in the second degree under section 1052. The indictment had charged that defendant and two others, as owners in possession and control of a multiple-family dwelling, willfully and with gross negligence, had failed to comply with the Multiple Dwelling Law and other laws, with the result that seven persons lost their lives in the fire in a tenement building for lack of prescribed safety equipment. The defendant admitted that the building was not equipped as required for “ old law tenement houses ” but that the building in question was not a tenement house as defined in subdivision 9 of section 4 of the Multiple Dwelling Law, but rather a Class B multiple dwelling as defined in subdivision 5 thereof. The case went to the jury under a charge to the effect that, as far as the misdemeanor is concerned, ignorance of the law is no excuse. The jury rendered a verdict finding the defendant guilty of manslaughter in the first and second degrees as charged (Penal Law, §§ 1050, 1052) and we affirmed unanimously.

In the case at bar the conviction must also be upheld. From the time of the appellant’s acquisition of title to the date of the fire, a period of about one and one-half years, the lack of a secondary means of egress or a sprinkler system constituted a continuing misdemeanor “ affecting the person * * * killed ’ ’. This continuing omission to provide proper fire protection was not merged in the homicide of the two deceased tenants as claimed by the appellant. The situation is not analogous to the assault homicide where a continuing assault against one resulting in death is merged in the homicide (People v. Vollmer, 299 N. Y. 347; People v. Luscomb, 292 N. Y. 390). It is undeniable that a tremendous duty is placed upon the owners and those in charge of property under the applicable section of the Multiple Dwelling Law; however, it is quite apparent that the Legislature intended the burden to be onerous so that owners would be impressed with the consequences flowing from violation of the statute, which violations could so readily endanger human life in the congested conditions under which people must live in the city of New York.

The judgment of conviction as modified should be affirmed.

* The modification in the Appellate Division eliminated the sentence of seven md one-half to eleven years imposed on the manslaughter second conviction [Penal Law, § 1938).