Criminal Defense of Immigrants

(B)  Attempted Recklessness.  The Third Circuit has held that, even though a conviction under the New York reckless endangerment statute constitutes a crime involving moral turpitude, a conviction of “attempted reckless endangerment” does not involve moral turpitude.  The court found that it is logically impossible for a person to intend to commit a criminally reckless act, and therefore that the “crime of attempted reckless endangerment is nonexistent since it is a nonintent offense.”[92]  Under this decision, a conviction of attempting to commit an offense with a mental element of recklessness would not constitute a CMT because the offense cannot exist.  The same reasoning would hold true for offenses requiring a lesser criminal intent than recklessness, e.g., negligence.

[92] Knapik v. Ashcroft, 384 F.3d 84, 91 (3d Cir. Sept. 17, 2004), citing People v. Trepanier, 84 A.D.2d 374, 380 (N.Y.App.Div. 1982).