Opinion
No. 2015NY014893.
10-30-2015
The PEOPLE of the State of New York v. Charlene PEREZ, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Daria Andryushchenko, for the people. The Neighborhood Defender Service of Harlem, by Matthew Knecht, Esq., for defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Daria Andryushchenko, for the people.
The Neighborhood Defender Service of Harlem, by Matthew Knecht, Esq., for defendant.
STEVEN M. STATSINGER, J.
Defendant was discovered by a police officer slumped over in the back seat of a cab, unconscious and apparently intoxicated, with two infant children on the seat next to her. She now stands charged with two counts of endangering the welfare of a child, Penal Law § 260.10(1) and (2). Defendant moves to dismiss for facial insufficiency, asserting that these facts do not establish a prima facie case that her conduct was likely to cause injury to the children. For the reasons that follow, the motion to dismiss is DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on March 9, 2015, a police sergeant observed the defendant slumped over in the back of a cab. Here eyes were closed and she at first did not respond when the sergeant spoke to her. When she finally responded, the defendant had watery, bloodshot eyes, smelled strongly of alcohol, slurred her speech and was unsteady on her feet. Two small children were also in the back of the cab but defendant told the sergeant, in substance, "What kids? I don't have any kids with me."
B. Legal Proceedings
Defendant was arraigned March 9, 2015, on a misdemeanor complaint charging her with violating Penal Law §§ 260.10(1) and (2). The Court released the defendant on her own recognizance and adjourned the case for conversion.
On April 1, 2015, the People converted the misdemeanor complaint into an information by filing a supporting deposition. Defendant filed the instant motion on August 12, the People responded on August 26, and the matter has been sub judice since then.
II. THE INFORMATION
The misdemeanor complaint, sworn out by a police officer, provides that
I am informed by Sergeant Cecilia Luckie ... that [at 1:39 a .m. on March 9, 2015, in front of 2271 Eighth Avenue, in New York County] she observed the defendant slumped over in the back of a cab, with her eyes closed and not responding when addressed to. I am further informed by Sergeant Luckie that she observed that the defendant had watery bloodshot eyes, stron[g] smell of alcohol on her breath, slurry speech and was unsteady on her feet. I am further informed by Sergeant Luckie that she also observed two children in the back of the cab, each appearing to be between the ages of one and two years old, unattended for.
I am further informed by Sergeant Luckie that the defendant stated to her in substance: What kids? I didn't have any kids with me?
The filing of Sergeant Luckie's supporting deposition converted the misdemeanor complaint into an information.
III. DISCUSSION
The allegation that the defendant was passed out drunk in the back of a cab in the presence of two small children makes 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 N.Y. County 2015) ; People v. Eury, 46 Misc.3d 1208(A), 7 N.Y.S.3d 244 (Crim Ct N.Y. County 2015).
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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 an instruments charging a defendant with child endangerment by leaving children unattended in a public place. People v. Fielden, 48 Misc.3d 1212(A) (Crim Ct N.Y. County 2015) ; Lowe, 47 Misc.3d at 843, 1 N.Y.S.3d at 756. The information here, which alleges similar circumstances, is likewise facially sufficient. While this defendant did not actually abandon the children, she constructively abandoned them by having them in her care when she was extremely intoxicated.
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 N.Y.2d 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).
Children can be left unattended in more than one way. In Fielden, the defendant actually left a five-month-old child unattended, both in a hotel lobby and in her hotel room, for prolonged periods. This Court found that these facts made out a prima facie violation of § 260.10(1) :
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.
48 Misc.3d at 1212(A).
In Lowe, a case nearly identical to this one, the defendant, although he remained in the children's physical presence, constructively abandoned them because he was passed out drunk on a bench on a street in upper Manhattan while the children were supposed to be under his care. 47 Misc.3d at 843, 1 N.Y.S.3d at 756. This Court had little difficulty concluding that these "appalling" facts made out a prima facie case of child endangerment, noting that: "[t]he combination of small children, adults and drugs or alcohol is a dangerous one, indeed." Id.
There is no material difference between the facts here and those in Lowe. This defendant was supposed to be caring for two very young children, one still an infant. Instead, however, she ended up passed out drunk, leaving the two children to their own devices the back of a motor vehicle. Incredibly, when confronted with this, she did not even remember that the children were with her. As in Lowe, the defendant's behavior "clearly posed more than a mere possibility of harm to the children; the likelihood of serious harm to them was all too real." Id. Here, the two-year-old might have opened the door while the car was in motion, or a stranger might have seized the opportunity to open the door of the cab and snatch the children, both of whom were completely vulnerable because the adult who was supposed to be minding them was unconscious.
While it is true that, as defendant observes, the information does not specifically allege that defendant was intoxicated, that is a reasonable inference that can be drawn from the facts alleged.
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The information accordingly makes out a prima facie 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), the information is likewise facially sufficient, albeit for different reasons.
Penal Law § 260.10(2) is violated when, as pertinent here, a parent or person legally responsible for the care 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 this Court noted in Fielden, 48 Misc.3d 1212(A) while these Family Court Act definitions would seem to require an information to allege something more than an isolated instance of abandoning 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 Fielden, 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 children here were neglected must be left to the finder of fact at trial.
D. Conclusion
The motion to dismiss for facial insufficiency is denied.
III. Conclusion
For the foregoing reasons, defendant's motion to dismiss is denied.
This constitutes the Decision and Order of the Court.