Opinion
No. 2013–1173KCR.
05-25-2016
The PEOPLE of the State of New York, Respondent, v. Aliyyah COMERFORD, Appellant.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
According to a superseding information, at approximately 1:06 p.m. on April 5, 2013, defendant, Aliyyah Comerford, left her five-day-old daughter in a Brooklyn apartment with the infant's father, who lived in the apartment. Among other things, the apartment had a hole in the bathroom floor that led to the building's basement; the bathroom sink and the bathtub were filled with black water; and one of the apartment's windows was broken, which allowed wind to enter the apartment. Defendant was located by the police and arrested at approximately 3:00 p.m. She told the police that she had left the baby in the apartment so that she could get milk for the infant. Defendant was charged with two counts of endangering the welfare of a child (Penal Law § 260.10[1], [2] ). After defendant's oral motion to dismiss the accusatory instrument was denied, defendant pleaded guilty to attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10[1] ).
Under the particular facts and circumstances of this case, we find that the People correctly concede that the superseding information failed to set forth allegations establishing every element of the offense of endangering the welfare of a child and defendant's commission thereof (see People v. Dumay, 23 NY3d 518, 522 [2014] ; People v. Kalin, 12 NY3d 225, 228–229 [2009] ; People v. Perez, 49 Misc.3d 1211[A], 2015 N.Y. Slip Op 51571[U], *2 [Crim Ct, N.Y. County 2015]; People v. Cruz, 10 Misc.3d 838, 839 [Crim Ct, N.Y. County 2005] ; People v. Smith, 178 Misc.2d 350, 354 [Crim Ct, Kings County 1998] ; cf. People v. Johnson, 95 N.Y.2d 368, 371–372 [2000] ; People v. Bottari, 31 Misc.3d 90, 92–93 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; People v. Aquino, 2002 N.Y. Slip Op 50223[U] [App Term, 1st Dept 2002] ; People v. Eury, 46 Misc.3d 1208[A], 2015 N.Y. Slip Op 50018[U] [Crim Ct, N.Y. County 2015] ; People v. Ambers, 17 Misc.3d 278 [Crim Ct, N.Y. County 2007] ). The information did not allege that defendant acted in a manner by which the five-day-old infant could have been affected by the dangerous conditions in the apartment (see People v. Fielden, 48 Misc.3d 1213[A], 2015 N.Y. Slip Op 51097[U], *2 [Crim Ct, N.Y. County 2015] [infant “was almost certainly too young to crawl away” from where the infant had been placed] ).
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
PESCE, P.J., WESTON and SOLOMON, JJ., concur.