Opinion
2017KN054132
01-18-2018
The People of the State of New York v. Amela Hot, Defendant.
Labe M. Richman, 305 Broadway, Suite 100, New York, New York, 10007, attorney for defendant Amela Hot Eric Gonzalez, District Attorney, Kings County, by Sapna Kishnani Esq., Assistant District Attorney, Brooklyn, of Counsel for the People
Labe M. Richman, 305 Broadway, Suite 100, New York, New York, 10007, attorney for defendant Amela Hot
Eric Gonzalez, District Attorney, Kings County, by Sapna Kishnani Esq., Assistant District Attorney, Brooklyn, of Counsel for the People
Donald Leo, J.
The defendant who is charged with Endangering the Welfare of a Child (Penal Law (PL) § 260.10[1] ), in an omnibus motion, seeks (i) dismissal of the Information as Facially Insufficient, and (ii) suppression of all statements made to law enforcement and all evidence obtained by law enforcement. The defendant's omnibus motion is denied in its entirety.
Dismissal of the Information for Facial Insufficiency
An information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. CPL §§ 100.40(1), 100.15. Reasonable cause exists where there are sufficient facts set forth in the accusatory instrument which would convince a person of ordinary intelligence, judgment and experience that such offenses were reasonably likely to have been committed and that such offenses were committed by the defendant. CPL § 70.10(2). Provided that the factual allegations give the defendant sufficient notice to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense, the allegations should not be given an overly restrictive or technical reading. People v Casey , 95 NY2d 354, 360 (2000). Although the requirement is not the same as the People's burden at trial to prove every element of the offenses charged beyond a reasonable doubt, the failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action requiring dismissal. See People v Henderson , 92 NY2d 677, 680 (1999) ; People v Alejandro , 70 NY2d 133, 137 (1987) ; People v Kalin, 12 NY3d 225 (2009).
The factual portion of the instant accusatory instrument alleges that on or about October 3, 2017 at 11:13 a.m. at 86th Street and 21st Avenue, in the County of Kings, State of New York:
Deponent [Police Officer Jean Milord] is informed by Sergeant Eric Jackson, Shield Number 05361 of the 062 Command that, at the above time and place, the informant observed A.B. asleep in the backseat of a parked vehicle, that the windows of said vehicle were fully closed, that A.B. was unsupervised by an adult and that the informant located the defendant shopping at a nearby store.
The deponent is informed by the defendant's own statement that the defendant is the mother of A.B. and that A.B.'s date of birth is XX/XX/XXXX.
A person is guilty of Endangering the Welfare of a Child when a person knowingly acts in a manner likely to be injurious to the physical, mental, or moral welfare of a child. PL § 260.10(1). There is no clear consensus among New York cases regarding the sufficiency of an accusatory instrument charging Endangering the Welfare of a Child (PL § 260.10[1] ) regarding leaving a child alone at home or in a vehicle. See People v Lopez-Pierre, 43 Misc 3d 1223(A) (Crim. Ct., Bronx County 2014) (held facially insufficient where accusatory instrument set forth bare allegations of an eight-year-old child left home alone for unspecific period of time); People v Seward, 173 Misc 2d 1020 (Mt. Vernon City Court, 1997) (held facially insufficient where defendant left a six-year-old home alone for one hour); People v Watson, 182 Misc 2d 644 (Crim. Ct., Bronx County , 1999) (held facially sufficient where accusatory instrument set forth factual allegations that a seven-year-old was scared and left home alone in locked apartment for one hour); People v Cenat, 176 Misc 2d 39 (Crim. Ct., Kings County, 1997) (held facially sufficient where three kids left alone in a car for three hours). The analysis for leaving a child alone is fact-specific and needs to be considered in context of the surrounding circumstances (i.e., the conditions of the location, the age, health and condition of the child, the length of absence of the parent).
In the instant case, the accusatory instrument alleges that the defendant left her one-year old child alone in a vehicle with no supervision and was found shopping nearby. Leaving a child home alone is entirely different from leaving a child exposed in a car on a New York City street for a period of time. See People v Cenat, 176 Misc 2d 39, 43 (Crim. Ct. Kings County, 1997). There are a ‘wide range of dangers that might befall‘ a one-year old infant left alone and unattended in a vehicle on a New York City street, even if for a minimal amount of time. See People v Watson, 182 Misc 2d 644, 648 (Crim. Ct., Bronx County 1999). The factual allegations that a one-year old infant was left alone in a vehicle unattended and that the defendant was found shopping in a store is facially sufficient for pleading purposes. Therefore, the defendant's motion to dismiss the sole count of Endangering the Welfare of a Child (PL § 260.10[1] ) as facially insufficient is denied .
Motion to Suppress Statements and Property (Huntley/Mapp Hearing)
The branch of the defendant's motion to suppress evidence of statements allegedly made by the defendant to law enforcement and property recovered from the defendant is inapplicable because the defendant did not make any statements to law enforcement and no property was recovered. Therefore, the defendant's motion to suppress any statements and property is denied .
The foregoing constitutes the opinion, decision, and order of the Court.
Dated: January 18, 2018
Brooklyn, New York
DONALD LEO J.C.C.