Opinion
2015NY022889
07-22-2015
The People of the State of New York v. Louise Fielden, Defendant.
For the Defendant: Tacopina & Seigel, P.C., by Chad D. Seigel, Esq.For the People:Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Joshuah Lisk.
For the Defendant:
Tacopina & Seigel, P.C., by Chad D. Seigel, Esq.For the People:Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Joshuah Lisk.
Steven M. Statsinger, J.
Defendant, while a guest at a Manhattan hotel, left her infant son unattended in the lobby, and alone in her hotel room, for periods exceeding one hour. She now stands charged with two counts of endangering the welfare of a child, Penal Law § 260.10(1) and (2), and one count of resisting arrest. A post-arrest search of defendant's luggage revealed a bottle of codeine pills in defendant's luggage. For this, defendant is charged with criminal possession of a controlled substance in the seventh degree, Penal Law § 220.03.
Defendant moves to dismiss all counts She argues that her actions did not place the child in danger and that, given this, there was no lawful basis for her arrest. With respect to the § 220.03 charge, defendant asserts that the information fails to allege that she lacked a prescription for the codeine. For the reasons that follow, the motion to dismiss is DENIED as to all counts. Defendant also moves to suppress the codeine, statement evidence and identification evidence; as to that, the Court GRANTS a Dunaway/Mapp/Huntley/Wade hearing. I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on April 10, 2015, defendant was a guest at the Chelsea Highline Hotel, in Manhattan. She was staying with her infant son, who was less than six months old. A witness saw the defendant leave the child on the ground in the hotel lobby, then walk away and leave the child alone and unattended for more than one hour without checking on the child. In addition, defendant left the child alone in her hotel room for periods exceeding one hour.
When a police officer went to defendant's room and attempted to arrest her for this, she resisted, in the child's presence. After the arrest, the police officer found a bottle of codeine tables in the defendant's luggage. B. Legal Proceedings Defendant was arraigned April 11 , 2015, on a misdemeanor complaint charging her with violating Penal Law §§ 260.10(1) and (2), 220.03 and 205.30. The Court released the defendant on her own recognizance and adjourned the case for conversion.
On April 17, 2015, the People converted the misdemeanor complaint into an information by filing a supporting deposition. Defendant filed the instant motion on June 6. The People responded on July 2, defendant filed a reply on July 15, and the matter has been sub judice since then. II. THE INFORMATION
The misdemeanor complaint, sworn to by Police Officer Gregory Kosarek, provides that
I am informed by Roque Duran ... that [on April 10, 2015] he observed the defendant as a guest of the Chelsea Highline Hotel, with an infant child in her care. The child's name is ["S.F."] and his date of birth is [less than six months prior to April 10, 2015].
I am further informed that Mr. Duran observed the defendant in the lobby of the hotel with the infant child and that he observed the defendant place the child on the ground and walk away and leave the child unattended for period of time exceeding one hour without checking on the child. I am further informed that Mr. Duran observed the defendant in the lobby without the child for period exceeding one hour, and that the defendant was not staying with anyone else at the hotel, and that there were no other guests in the defendant's room other than the infant child.
When I attempted to arrest the defendant for the above conduct, the defendant twisted away from me, clenched her arms against her chest and lay on her stomach and refused to place her hands behind her back, making it difficult to place the defendant in handcuffs without the assistance of two other police officers.
While I was attempting to arrest the defendant, the defendant's child was present in the room.
I recovered a bottle of Codeine tablets from the defendant's luggage. I believe the substance is what it is alleged to be based upon: my professional training as a police officer in the identification fo drugs, my prior experience as a police officer making drug arrests and the label on the pill bottle.
The filing of a supporting deposition from Roque Duran converted the misdemeanor complaint into an information. III. DISCUSSION
All of the counts in the information are facially sufficient. The allegations that defendant left her infant child unattended on the floor of a hotel lobby and alone in her hotel room for prolonged periods make out a prima facie violation of both Penal Law § 260.10(1) and 260.10(2). People v. Lowe, 47 Misc 3d 843, 1 N.Y.S.3d 756 (Crim Ct NY County 2015); People v. Eury, 46 Misc 3d 1208(A), 7 N.Y.S.3d 244 (Crim Ct NY County 2015). Given this, the resisting arrest charge is also facially sufficient.
With respect to the Penal Law § 220.03 charge, the Court holds that, when a defendant is charged with violating this section by possessing a prescription drug, the information does not need to allege the absence of a prescription.
Finally, however, the Court agrees that a Dunaway/Mapp hearing is necessary to test the legality of the warrantless search of the defendant's luggage, as are Huntley and Wade hearings.
A. Facial Sufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 ( 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987) . Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." Kalin, 12 NY3d at 228-29, 906 N.E.2d at 383, 878 N.Y.S.2d at 655 (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236. B. The Count Charging Penal Law §§ 260.10 (1) Is Facially Sufficient.
This Court has previously found sufficient accusatory instruments charging defendants with child endangerment by leaving children alone at home, Eury, 46 Misc 3d at 1208(A), 7 N.Y.S.3d at 244 , and by leaving them unattended in a public place, Lowe, 47 Misc.3dat 843, 1 N.Y.S.3d at 756. The information here, which alleges both such circumstances, is likewise facially sufficient.
A person is guilty of endangering the welfare of a child under Penal Law § 260.10(1) when she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child younger than seventeen years old. For a defendant to be liable under this section, she "must simply be aware that the conduct may likely result in harm to a child." People v. Johnson, 95 NY2d 368, 372, 718 N.Y.S.2d 1, 740 N.E.2d 1075 (2000). Actual harm to the child need not occur; nevertheless, harm must be likely, and not merely possible, as a result of the defendant's actions. Id. at 371. See also People v. Duenas, 190 Misc 2d 801, 742 N.Y.S.2d 468 (App. Term 2d Dept. 2002).
1. Section 260.10(1) and "Home Alone" Cases
One of the acts alleged in this case is that defendant violated § 260.10(1) by leaving her child alone in a hotel room for more than one hour. In Eury, this Court recognized that New York courts have reached "no clear consensus" as to handle "home alone" cases. Eury points out, however, that several courts have upheld an information charging child endangerment for leaving a child home alone, even where there were no specific aggravating facts pled. For example, People v. Reyes, 20 Misc 3d 1129(A), 872 N.Y.S.2d 692 (Crim. Ct. Kings County 2008), held that an information was sufficient where it alleged that the defendant left a four-year-old child alone for fifteen minutes. Similarly, People v. Watson, 182 Misc 2d 644, 700 N.Y.S.2d 651 (Crim Ct Bronx County 1999), held that the allegation that defendant left a seven-year-old alone in a locked apartment for two and one-half hours was sufficient. See also, People v. Gulab, 23 Misc 3d 1123(A), 886 N.Y.S.2d 68 (Crim. Ct. Queens County 2009) ("Regarding the act of leaving the children home alone, this Court agrees with the line of cases where courts have found that leaving young children home alone is an act proscribed by the statute, and not solely an act of bad parenting.'")
In Eury, this Court followed these cases, agreeing with the conclusion in Reyes that "the question raised in this type of cases is particularly unsuited to resolution at the facial sufficiency stage."46 Misc 3d at 1208(A), 7 N.Y.S.3d at 244. "[W]hether a particular case is merely one of non-criminal bad parenting' or whether the circumstances give rise to a the necessary knowledge on the part of the defendant and likelihood of harm to the children is a question that is more appropriately left to the finder of fact at trial." Id.
The Court simply cannot discern any meaningful difference between this case and Eury. There, the defendant was alleged to have left four children, ranging in age from one to nine years, alone in an apartment for approximately forty minutes. The Court found a prima facie case because "[t]here are certainly reasonable inferences to be drawn from this that would support findings that these circumstances were likely to cause harm to the children and that the defendant knew this to be so." The same is true here. As the People correctly argue, Lisk Aff. at ¶ 5, an infant child left alone in a hotel room could have placed a small object in his mouth and choked, been suffocated by bedding, or fallen over and hit his head. In any event, as in Eury, the ultimate determination as to whether defendant violated § 260.20(1) should be made by the finder of fact at trial.
2. Section 260.10(1) and Children Unattended in Public Places
Th information also alleges that the defendant left her infant child on the floor of the hotel lobby, a public place, for at least one hour. This Court addressed an analogous situation in Lowe, where the defendant was passed out drunk on a public bench when he was supposed to be minding his children, who were three and four years old. One child was unattended nearby, while the other apparently disappeared. 47 Misc 3d at 843, 1 N.Y.S.3d at 756. The Court had little trouble concluding that these facts made out a prima facie violation of § 260.20(1).
The same is true here. Though there is no allegation that this defendant was intoxicated, as was the defendant in Lowe, she is nevertheless accused of leaving a young child unattended in a public place. While the cause of the abandonment might be different here, the potential harm to the child was not. "Defendant's actions clearly posed more than a mere possibility of harm to the children; the likelihood of serious harm to them was all too real." Id. Risks just as serious as those identified in Lowe may be reasonably inferred here. While the child was almost certainly too young to crawl away, he was completely incapable of preventing a stranger from abducting him. In addition, because the child is alleged to have been left on the floor of a hotel lobby - a busy place through which hotel guests and staff move frequently, often transporting heavy items, such as luggage - the risk of physical injury to the child was enormous. And, of course, there is a reasonable inference that the defendant knew of these risks when she decided to leave her infant child unattended on the floor of a hotel lobby.
3. Conclusion
The facts here make out a prima facie case of a violation of Penal Law § 260.10(1).
C. The Count Charging a Violation of § 260.10(2) Is Facially Sufficient
As to the count charging Penal Law § 260.10(2), defendant argues that the facts alleged do not trigger the Family Court Act definitions that are incorporated by reference into § 260.10(2). Seigel Aff. at ¶¶ 29-39. The Court disagrees. In fact, it confronted the identical situation in Eury.
Penal Law § 260.10(2) is violated when, as pertinent here, a parent of a child less than 18 years old "fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming ... a neglected child' " as that term is defined in the Family Court Act. Section 1012(f) of the Family Court Act defines a "neglected child" as, first, a child under eighteen years of age whose "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care." This can arise by a failure to provide adequate food, clothing, shelter or education when the parent has the means to do so, or by placing the child in physical danger due to excessive corporal punishment or due to the parent's intoxication. § 1012(f)(i)(A) & (B). Alternatively, a child is a "neglected child," when abandoned by his parent or other person legally responsible for his care. § 1012(f)(ii).
As the Court noted in Eury, 46 Misc 3d at 1208(A), 7 N.Y.S.3d at 244, while the Family Court Act definitions would seem to require an information to allege something more than an isolated instance of leaving a child without supervision, binding precedent dictates otherwise. In People v. Aquino, 2002 WL 1312674 at *1 (App. Term. 1st Dept. 2002), the Appellate Term, First Department, held that an information alleging that the defendant left her five-year-old child and a seven-month-old infant alone in a Bronx apartment at night made out a prima facie case of a violation of § 260.20(2), even though it did not specify the length of the period during which the children were unattended. The court noted that "the complex question of whether the children were neglected ... is a factual matter appropriately left for trial." Id., citations and internal quotation marks omitted.
As was true in Eury, the instant case is clearly governed by Aquino, and this Court is bound to follow it. Accordingly, based on Aquino, the information is facially sufficient as to Penal Law § 260.10(2). The ultimate question whether the child here was neglected must be left to the finder of fact at trial.
D. The Resisting Arrest Count Is Facially Sufficient
In light of the above analysis, the resisting arrest count is facially sufficient. The motion to dismiss that count is denied. E.g. People v. Pesola, 37 Misc 3d 569, 950 N.Y.S.2d 260 (Crim Ct NY County 2012).
E. The Count Charging Penal Law § 220.03 Is Facially Sufficient
Contrary to defendant's assertion, when a defendant is charged with criminal possession of a controlled substance, and that substance is a prescription drug, the People do not need to plead the absence of a prescription.
1. "Unlawful" Possession
Section 220.03 provides, in pertinent part, that a person is guilty of criminal possession of a controlled substance in the seventh degree when she "knowingly and unlawfully possesses a controlled substance." "Unlawfully" means in violation of article thirty-three of the public health law." Penal Law § 220.00(2). That article, the New York State Controlled Substances Act, Public Health Law § 3300, et seq., regulates the possession, manufacture, dispensing, administering, and distribution of controlled substances in New York State, and makes it unlawful for any person to possess or sell a controlled substance "except as expressly allowed by this article." Public Health Law § 3304(1).
2. Unlawful Possession of Prescription Drugs
In the vast majority of cases where the controlled substance at issue is a prescription drug, some fact alleged in the accusatory instrument will, by itself, lead to a reasonable inference that the possession was unlawful, rendering moot the question whether the defendant had a prescription. For example, an allegation that the defendant intended to sell the drug, People v. Garthaffner, 115 Misc 2d 93, 454 N.Y.S.2d 583 (App. Term 1st Dept. 1982), or that she had just purchased the drug from a street seller, People v. Roman, 3 Misc 3d 56, 880 N.Y.S.2d 451 (App. Term 1st Dept 2009) (dismissing information on other ground); People v. Barnwell, 147 Misc 2d 342, 554 N.Y.S.2d 752 (Crim Ct NY County 1990), or that she possessed loose pills, People v. Guinan, 40 Misc 3d 1236(A), 977 N.Y.S.2d 668 (Just. Ct Town of Webster 2013), will ordinarily suffice.
This case, however, is different. The codeine that the defendant is accused of "unlawfully" possessing was in a bottle, and the bottle was seemingly appropriately labeled. The bottle was found in her luggage, a perfectly innocuous place for it to be, and the luggage was in her hotel room, not in public. Nevertheless, even on these facts, the information sufficiently alleges that defendant's possession of the codeine was unlawful.
3. Lack of a Prescription is a "Proviso" that Does Not Need to be Pled in the Information
This case involves codeine, which is a Schedule II controlled substance. Public Health Law §§ 3306, Schedule II(b)(1)(7). As such, in general, an ordinary member of the public may possess it lawfully only if the substance was obtained by prescription. Penal Law § 220.00(15); Public Health Law §§ 3331(2), 3332(1), (3). Only the person for whom the substance was prescribed is permitted to possess a Schedule II controlled substance, and the substance must remain in the original container in which it was dispensed. Public Health Law § 3345. A violation of any one or more of these requirements renders the possession of a Schedule II controlled substance unlawful.
The Public Health Law identifies certain other circumstances where controlled substances may be possessed lawfully without a prescription, but they are not pertinent here. See, generally, Public Health Law § 3305 (describing exceptions to the prescription requirement for, inter alia, common carriers, "warehousemen," and public officers or their employees acting in an official capacity).
Accordingly, if the People were required to plead every fact that rendered the defendant's possession of the codeine unlawful, they would have had to allege either that the defendant did not have a prescription for the codeine, or that, if she did, it was no longer in its original container. But the People do not bear this burden at the pleading stage.
In People v. Torres, 47 Misc 3d 24, 5 N.Y.S.3d 796 (App. Term 2d, 11th & 13th Dists 2015), the court addressed this very question, rejecting defendant's claim that an accusatory instrument alleging a violation of § 220.03 was jurisdictionally defective because it failed to allege that the defendant lacked a prescription. Torres found that the circumstances described in the Public Health Law that might render lawful the possession of a controlled substance were "provisos," not "exceptions," and thus that the People did not need to plead their absence in an information charging a violation of § 220.03:
[I]t would defy common sense to require the People to plead and negate the numerous other exceptions to controlled substance violations that are provided in the Public Health Law, in addition to possession of a valid prescription, or to treat the possession of a valid prescription as the sole exclusion that must be pleaded and negated. Absent a universal registry for prescriptions, as a practical matter, it would be impossible to prove the absence of a prescription.
Id. Similarly, in People v. Lobianco, 2 Misc 3d 419, 766 N.Y.S.2d 807 (Crim Ct Kings County 2003), the defendant was charged with criminal possession of a hypodermic instrument, Penal Law § 220.45. The court rejected a claim that the information was facially insufficient in that it failed to allege that the defendant had not obtained the syringes legally at a pharmacy. As in Torres, the court concluded that the provisions of the Public Health Law that rendered lawful the possession of a hypodermic instrument were "provisos" that did not need to be pled. See also People v. Becker, 13 Misc 3d 492, 820 N.Y.S.2d 496 (Rochester City Court 2006) (information in drug possession case was facially sufficient even though it did not allege the statutory exceptions to the automobile presumption; those exceptions were found outside of the Penal Law statute under which the defendant was charged, and thus were provisos that defendant was free to raise in defense to the charge.)
This Court agrees with Torres, Lobianco and Becker. The various circumstances identified in the Public Health Law that might make possession of codeine lawful are "provisos," not "exceptions," and the People need not plead facts to negate each of them in an information charging a violation of § 220.03. This does not, however, as Lobianco noted, alter the People's burden of proof at trial. They still have the burden of proving at trial that the defendant unlawfully possessed the codeine.
4. It Is Immaterial that Defendant Asserts that She, in Fact, had a Prescription
In support of her motion to dismiss, defendant has proffered a letter from a doctor asserting that, in July of 2013, some twenty-one months before this arrest, the doctor prescribed the defendant 120 pills containing codeine - four a day for 30 days - for pain resulting from a back injury. But, at this stage of the case, it is immaterial that defendant asserts that she had a prescription for the codeine, since that assertion does not affect the facial validity of accusatory instrument. Lobianco, 2 Misc 3d at 425, 766 N.Y.S.2d at 812. This is true even though, as defense counsel observes, the doctor's letter along with the allegation in the information that the codeine was in a bottle that was properly labeled, together might lead to an inference that defendant lawfully possessed the codeine. The ultimate determination as to whether defendant lawfully possessed the codeine will be made by the finder of fact at trial.
5. Conclusion
For these reasons, the motion to dismiss the count charging a violation of Penal Law § 220.03 is denied.
F. The Court Orders a Dunaway/Mapp/Huntley/Wade Hearing
Defendant is correct that the information does not allege facts justifying the apparently warrantless search of defendant's luggage. Whether the facts of the case make out one of the exceptions to the warrant requirement - such as consent, an inventory search or a search incident to a lawful arrest - should be tested at an evidentiary hearing. Accordingly, the Court orders a Dunaway/Mapp hearing. In addition, based on the parties' motion papers, Huntley and Wade hearings are also warranted.
G. Conclusion
The motion to dismiss for facial insufficiency is denied as to all counts. The Court orders a Dunaway/Mapp/HuntleyWade hearing. IV. Conclusion
For the foregoing reasons, defendant's motion to dismiss is denied. However, the Court orders a Dunaway/Mapp/Huntley/Wade hearing. This constitutes the Decision and Order of the Court.
Dated: July 22, 2015_______________________
New York County, New YorkSteven M. Statsinger
Judge of the Criminal Court