Opinion
No. 2011KN060074.
2012-01-30
The PEOPLE of the State of New York, v. Faruq FREEMAN, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Kia Andrews, Esq., Assistant District Attorney, for the People. John Marrone, Esq., for Defendant.
Charles J. Hynes, District Attorney, Kings County, by Kia Andrews, Esq., Assistant District Attorney, for the People. John Marrone, Esq., for Defendant.
JOHN H. WILSON, J.
Defendant is charged with Endangering the Welfare of a Child (PL Sec. 260.10), a Class A Misdemeanor, and Attempted Sexual Abuse in the Second Degree (PL Sec. 110/130.60), a Class B Misdemeanor.
By motion dated December 1, 2011, Defendant seeks dismissal of all charges, asserting that the People's complaint is facially insufficient.
On January 23, 2012, Defendant's motion was decided as stated below. In its oral decision, the Court indicated that a written decision would be provided to the parties. This decision follows.
The Court has reviewed the Court file, Defendant's motion, and the People's response dated January 24, 2012. For the reasons stated below, as to the charge of Endangering the Welfare of a Child, the motion to dismiss is denied. As to the charge of Attempted Sexual Abuse in the Second Degree, the motion is granted.
FACTUAL STATEMENT
Pursuant to the superceding Criminal Court Information, dated August 1, 2011,
between April 1, 2010 and April 30, 2010, Defendant and his daughter, who was then 13 years of age, were present at 84A Rogers Avenue, Brooklyn, New York with a woman named LeQuana Dixon, age 22 years old. On a date during that time period, Defendant was photographed placing his mouth on one breast of Ms. Dixon. His daughter appears in the same photograph with her mouth on Ms. Dixon's other breast.
Defendant was initially charged with three violations of Corrections Law Sec. 168–T, Failure to Register as a Sexual Offender, a Class E felony, however, these charges are not present on the superceding information.
This photograph, which was posted on the Internet, came to the attention of the New York City Police Department. Defendant was subsequently arrested and charged as noted above on July 26, 2011.
ARGUMENTS OF THE PARTIES
Defendant asserts several grounds in support of his motion to dismiss the superceding information. First, he argues that the factual allegations set forth in the complaint are “insufficient on its face ... in that each and every element of the offense charged is not supported by a non-hearsay allegation.” See, Defendant's motion dated December 1, 2011, p 3 para 9. Next, Defendant states that the wrong subsection of Penal Law Section 110/130.60 has been charged. The People have charged Defendant under Subsection (1), which requires incapacity “by reason of some other factor other” than the victim being less than 17 years old.
See, Defendant's motion dated December 1, 2011, p 4 para 14.
Defendant also asserts that the People's superceding information is unclear as to whether Defendant is being charged with the attempt, or with the completed crime, however, there is no real dispute regarding this issue. While the caption listing the charge states “Sexual Abuse in the Second Degree,” the language is accompanied by “PL 110/130.60(1).” Further, the face of the information states “attempts to subject another person to sexual contact” (Emphasis added).
Next, Defendant asserts that the charge of Attempted Sexual Abuse in the Second Degree is insufficient, since there is no allegation that Defendant was “subjecting” or “attempting to subject' “ another to sexual contact. See, Defendant's motion dated December 1, 2011, p 7 para 26. Likewise, Defendant also argues that the Endangering the Welfare of a Child allegation is insufficient, since “there are no allegations that (Defendant) knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child.” See, Defendant's motion dated December 1, 2011, p 8 para 30 (Emphasis in original).
Finally, Defendant asserts that the Criminal Court information in its entirety is insufficient because “the information fails to specify the exact time and location of the offense.” See, Defendant's motion dated December 1, 2011, p 8 para 33.
The People argue that both charges are facially sufficient, however, if the wrong subsection of PL Sec. 110/130.60 has been charged, they should be given leave to “amend this defect” and plead the correct subsection. See, People's response dated January 24, 2012, p 4.
LEGAL ANALYSIS
CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652 (1986).
Applying these principles to the instant matter, this Court finds that as to the charge of Endangering the Welfare of a Child, the factual allegations contained in the misdemeanor information before this Court are facially sufficient. The allegations of Attempted Sexual Abuse in the Second Degree, however, are not sufficient under either subdivision of CPL Sec. 110/130.60, and are dismissed.
(A) Endangering the Welfare of a Child.
Under PL Sec. 265.01(1), a person is guilty of endangering the welfare of a child when, “(h)e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” It is not necessary that the People prove that the child's mental or moral welfare actually be impaired. See, People v. Doe, 137 Misc.2d 582, 521 N.Y.S.2d 636 (Crim Ct, N.Y. Cty, 1987). Moreover, no injury or actual harm need result from the Defendant's action or inaction. See, People v. Watson, 182 Misc.2d 644, 646, 700 N.Y.S.2d 651 (Crim Ct, Bx Cty, 1999).
To establish the charge, the People need only assert that Defendant engaged in conduct “knowing it will present a likelihood' of harm to a child (ie, with an awareness of the potential for harm.)” See, People v. Hitchcock, 98 N.Y.2d 586, 590, 750 N.Y.S.2d 580 (2002). See, also, People v. Cruz, 10 Misc.3d 838, 839, 809 N.Y.S.2d 850 (Crim Ct, N.Y. Cty, 2005) (“a defendant must simply be aware that the conduct may likely result in harm to the child.”)
“The defendant's conduct need not be specifically directed at a child. A defendant must simply be aware that the conduct may likely result in harm to a child, irrespective of whether the conduct is directed at the child.” William C. Donnino, Practice Commentary, CPL Sec. 260.10, McKinney's p 299, citing People v. Johnson, 95 N.Y.2d 368, 718 N.Y.S.2d 1 (2000). See, also, People v. Gibble, 2 Misc.3d 510, 512, 773 N.Y.S.2d 499 (Crim Ct, N.Y. Cty, 2003) (“A violation of the statute does not require proof that the defendant's conduct be specifically directed” towards the victim).
The Defendant is alleged to have been present while his 13 year old daughter placed her mouth on the breast of an adult woman. There is no evidence that the daughter acted at the behest of the Defendant, or that Defendant caused or encouraged this conduct. However, Defendant is alleged to have permitted or allowed his minor child, a person legally incapable of consent
, to engage in sexual conduct with another adult.
Under CPL Sec. 130.05(3), “a person is deemed incapable of consent when he or she is; (a) less than seventeen years old.”
These allegations are sufficient to establish that Defendant knowingly acted in a manner likely to be injurious to the moral welfare of a child. Therefore, the motion to dismiss the charge of Endangering the Welfare of a Child is denied.
(B) Attempted Sexual Abuse in the Second Degree.
Under CPL Sec. 130.60(1), “a person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is (1) incapable of consent by reason of some other factor other than being less than seventeen years old.”
There is no allegation presented that the Defendant's daughter was “incapable of consent” by reason of her being mentally disabled, mentally incapacitated, or physically helpless, and her being less than 17 years of old. Further, the People concede that this is the wrong charge. See, People's response dated January 24, 2012, p 4. Thus, whether charged, as here, with the attempt, or with the completed act, the charge under CPL Sec. 130.60(1) must be dismissed.
The People argue that they should be allowed to amend their complaint to charge Defendant with subsection (2). That provision states that a defendant would be guilty of subjecting another person to sexual contact if the other person is “less than fourteen years old.” However, even if the People had charged the correct subsection, the charge would still fail. Though Defendant's daughter is “less than fourteen years old” at the time of the offense, there is no evidence that Defendant himself “subjected” or “attempted to subject” his daughter to sexual contact.
Under CPL Sec. 130.00(3), “sexual contact” is defined as “any touching of the sexual or other intimate parts of a person ... for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothes ...”
The instant case does not present any question under the first two elements of the definition of “sexual contact” presented in CPL Sec. 130.00(2). However, the third element is not satisfied by the People's allegations.
The first element of the definition involves “any touching of the sexual or other intimate parts of a person.” The breast has been held to be an “intimate part of a person.” See, Matter of Winner S., 177 Misc.2d 414, 415, 676 N.Y.S.2d 783 (Family Ct, Bx Cty, 1998).
The second element requires that the contact be “for the purpose of gratifying sexual desire of either party.” “There is no requirement that actual gratification occur, but only that the touching be for that purpose.” See, William C. Donnino, Practice Commentary, CPL Sec. 130.00, McKinney's p 74, citing People v. Teicher, 52 N.Y.2d 638, 646, 439 N.Y.S.2d 846 (1981). Excepting a mother's act of nursing her infant, it is hard to conceive of a circumstance where the placing of a person's mouth upon the breast of a woman would not be “for the purpose of gratifying sexual desire of either party.”
The third element of the definition, “includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothes.” In People v. Ditta, 52 N.Y.2d 657, 439 N.Y.S.2d 855 (1981), the Court of Appeals held “that a defendant would subject another person to sexual contact within the meaning of (the statute) if the defendant himself touched the other person, if he caused the other person to touch him, or if he caused the other person to touch a third person.' Ditta, 52 N.Y.2d at 661.” See, William C. Donnino, Practice Commentary, CPL Sec. 130.00, McKinney's p 74.
The Practice Commentary also notes as follows:
“The latter situation was not provided for expressly in the (1984) amendment (of CPL Sec. 130.00(3)), but arguably is not ruled out by the amendment which appears, by use of the term includes,' to be providing illustrations of sexual contact rather than an exclusive listing.” Practice Commentary, p 74.
The Criminal Court information states that both Defendant and his daughter placed their mouths on the breasts of an adult woman. There is no allegation that Defendant touched, or placed his mouth on his daughter, nor that the daughter touched, or placed her mouth on the Defendant. Most important to our analysis, there is no allegation that the Defendant commanded, requested, importuned, or caused his daughter to touch a third person.
Under these facts, there is no reasonable view of the allegations which would support a charge which requires Defendant to have “subjected” or “attempted to subject” his daughter to sexual contact.
To attempt to commit a crime requires that a defendant act with the specific intent to commit a crime. See, Practice Commentary, William C. Donnino, PL Sec. 110, McKinney's p 94 (2009). Here, Defendant is not alleged to have acted with any specific intent.
Therefore, the charge of Attempted Sexual Abuse in the Second Degree is dismissed.
(C) All Charges.
Defendant asserts that the Criminal Court information in its entirety is insufficient since “the information fails to specify the exact time and location of the offense.” See, Defendant's motion dated December 1, 2011, p 8 para 33.
Under CPL Sec. 200.50(6), an indictment must state that a crime was committed “on or on or about, a designated date or during a designated period of time.” Further, under CPL Sec. 200.30(1), “each count of an indictment may charge one offense only.” While these statutes are specifically addressed to indictments, the principles contained in these statutes have been applied to misdemeanor informations. See, People v. Mitchell S., 151 Misc.2d 208, 211, 573 N.Y.S.2d 124 (Crim Ct, Kings Cty, 1991) (“In order to protect a defendant's right to fair notice of the charges against him, the same rules governing indictments should apply to an information charging a defendant with misdemeanors.”) See, also, People v. Todd, 119 Misc.2d 488, 489, 463 N.Y.S.2d 729 (Crim Ct, N.Y. Cty, 1983) (“(L)anguage of CPL Sec. 100.15 prescribing form and content of an information would appear to incorporate CPL Art. 200.”)
In People v. Evangelista, 1 Misc.3d 873, 874, 771 N.Y.S.2d 791(Crim Ct Bx Cty 2003), defendant was charged with Sexual Misconduct in an information which stated that defendant had sexual intercourse with a 14 year old girl “numerous times' between the dates of September 22, 2002 and April 2, 2003.” The court there applied the constitutional protections of CPL Sec. 200.50(6) and 200 .30(1) to the misdemeanor information. “(T)he provisions ... which prohibit duplicitous pleadings and which require sufficient precision in the drafting of charges are constitutionally required in all criminal cases.” 1 Misc.3d at 879 (citations omitted).
This Court agrees with the reasoning presented in Evangelista, and will apply the standards of CPL Sec. 200.50(6) and 200.30(1) to the present misdemeanor information.
The People allege one incident against the Defendant, encompassing a time frame of one month. This time interval is not so excessive as to be per se unreasonable. See, People v. Morris, 61 N.Y.2d 290, 473 N.Y.S.2d 769 (1984); People v. Beauchamp, 74 N.Y.2d 639, 541 N.Y.S.2d 977 (1989). Thus, the misdemeanor information presented here comports with the requirements of CPL Sec. 200.60(6).
There is also no indication of a duplicitous information in violation of CPL Sec. 200.30(1) in the facts alleged by the People. See, People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790 (1986).
Thus, the motion to dismiss all charges is denied.
All other arguments advanced by Defendant have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.