Opinion
2008NY075531.
Decided September 29, 2009.
ROBERT M. MORGENTHAU, ESQ., DISTRICT ATTORNEY, NEW YORK, NEW YORK, BY: ADA CAROLINE HOLDERNESS, FOR THE PEOPLE.
MARCOS A. PAGAN, III, ESQ, BRONX, NEW YORK, FOR THE DEFENDANT.
The defendant is charged through an amended misdemeanor complaint with one count each of Endangering the Welfare of a Child (Penal Law § 260.10 (1)), Criminally Using Drug Paraphernalia in the Second Degree (Penal Law § 220.50 (2)), and Unlawful Possession of Marihuana (Penal Law § 221.05). The defendant has brought a motion seeking dismissal, a bill of particulars, discovery, suppression and the preclusion of evidence, in addition to other relief. A response was filed by the People. For the foregoing reasons, the defendant's motion to dismiss is granted only to the extent that the count of Endangering the Welfare of a Child is dismissed.Criminal Procedure Law § 100.40 and by reference, CPL § 100.15, require that factual allegations of an evidentiary character in the accusatory instrument provide reasonable cause to believe the defendant committed the offenses charged and that non-hearsay factual allegations establish a prima facie case of the defendant's guilty ( People v. Alejandro, 70 NY2d 133). The non-hearsay allegations must establish, if true, every element of the offense charged ( People v. Alejandro, 70 NY2d 133, 136-137; People v. McNamara, 78 NY2d 626, 629, citing CPL § 100.40 (1) (b), (c); People v. Casey, 95 NY2d 354, 360). The allegations must give the defendant sufficient notice to prepare a defense and prevent him from being tried twice for the same offense ( People v Casey, 95 NY2d 354, 360). Further, conclusory allegations alone are insufficient ( People v. Dumas, 68 NY2d 729). The proceeding is fatally defective if the accusatory instrument fails to meet these requirements ( People v. Casey, 95 NY2d 354).
New York Penal Law § 260.10 (1) states that "[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 or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health." To prevail on the charge, the People must show that: (1) the defendant acted knowingly; (2) defendant's conduct was likely injurious to the physical, mental or moral welfare of a child; and (3) the child at issue was less than seventeen years old (Penal Law § 260.10 (1)).
The charge of Criminally Using Drug Paraphernalia in the Second Degree under subsection two requires a showing that the defendant knowingly possessed or sold:
gelatin capsules, glassine envelopes, vials, capsules, or any other material suitable for the packing of individual quantities of narcotic drugs or stimulants under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for the purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant.
Last, the charge of Unlawful Possession of Marihuana requires a showing that the defendant knowingly and unlawfully possessed marihuana (Penal Law § 221.05).
The factual part of the accusatory instrument upon which the defendant is charged states the following:
Deponent states that he recovered cocaine from a shoebox in the defendant's bedroom.
Deponent further states that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: his professional training as a police officer in the identification of drugs, his prior experience as a police officer in drug arrests, the odor emanating from the substance and observation of the packaging which is characteristic of this type of drug.
Deponent further states that the recovered empty ziplock bags from a shoebox in the defendant's bedroom.
Deponent further states that he observed four children in the said apartment who appeared to be under the age of seventeen.
A sufficient showing for the charge of Endangering the Welfare of a Child is not provided by the instant allegations. Every element of the charge of Endangering the Welfare of a Child is not established. Specifically, the allegations fail to show that the "defendant's conduct was likely injurious to the physical, mental or moral welfare of a child" because they are too speculative as to the possibility of injury to a child (Penal Law § 260.10 (1), see also People v. Noce, 2009 NY Slip Op 51232U [1st Dist. Ct., Nassau Co.]). The allegations must show that the defendant's actions are "likely" to result in injury to the child ( People v. Doe, 137 Misc 2d 582). The injury to a child must be likely to occur and cannot be simply a possibility ( People v. Alvarez , 20 Misc 3d 606 , 608 [Crim. Ct., NY Co. 2008] citing People v. Duenas, 98 NY2d 586). The facts herein do not establish that the defendant's possession of cocaine, marihuana, and ziplock bags in a shoebox in her bedroom was likely injurious to a child. The question is not whether possession of the contraband alleged is criminal, as it is, or whether it is immoral and likely to destabilize a household, but whether the possession of it as described without exposure would alone likely injure a child's physical or moral well-being.
The defendant is alleged to have possessed cocaine, marihuana, and ziplock bags in a shoebox in the defendant's bedroom. The allegations do not demonstrate that the contraband was in view, exposed, or was used in a child's presence to establish the likelihood of injury to a child ( see i.e., People v. Alvarez , 20 Misc 3d 606 [Crim. Ct., NY Co. 2008] allegations held sufficient given marihuana was found in refrigerator, there was a strong odor of the substance throughout the apartment and the defendant used the illicit substance in child's presence). The allegations do not establish that a child would likely be injured by the defendant's possession as it appears that the contraband was hidden. The allegations must establish more than that an illicit substance was recovered hidden in a bedroom while a child was in the same apartment ( see People v. Grajales, 179 Misc 2d 793 [Crim. Ct., Bx. Co. 1999]; but see, People v Jones, 2009 NY Slip Op 29382, 1 [Crim. Ct., NY Co. 2009]). In the instant case, the complaint does not provide sufficient evidence to demonstrate that the defendant's alleged possession was likely injurious to the physical, mental or moral welfare of a child. Therefore, the count of Endangering the Welfare of a Child must be dismissed on this ground.
In its motion, the defense does not provide an argument for the dismissal of the remaining counts. Nonetheless, each of the remaining counts are sufficiently alleged. Every element of the charges of Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marihuana are established by the instant allegations. The allegations provide reasonable cause to believe, and a prima facie case that the defendant committed the remaining charges.
Accordingly, the defendant's motion to dismiss the count of Endangering the Welfare of a Child is granted.
The defendant's motion to dismiss the counts of Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marihuana is denied.
The defendant's motion for a Bill of Particulars is granted to the extent provided in the Voluntary Disclosure Form filed in this case.
The defendant's motion for discovery and inspection is granted to the extent that the People are ordered to produce for the defendant, as may be available, information required pursuant to CPL. § 240.20.
The defendant's motion to suppress tangible evidence is granted to the extent that a Mapp/Dunaway hearing is ordered.
The defendant's motion to preclude a statement(s) allegedly made to a police officer is granted as notice of the specific statement(s) was not provided within the time period required by law.
The defendant's motion to suppress statements allegedly made by the defendant or for a Huntley hearing is deemed moot.
The defendant's motion for a Darden hearing is denied.
The defendant's Sandoval motion is referred to the trial court.
The defendant's reservation of the right to make additional motions is permitted only to the extent that any additional motions must be made upon a showing of good cause.
This constitutes the decision, opinion and order of the Court.