Opinion
39230.
Decided June 9, 2008.
CINDY INTSCHERT, JEFFERSON COUNTY DISTRICT ATTORNEY, By: Rodney Kyle, Esq., Watertown, NY.
JULIE HUTCHINS, JEFFERSON COUNTY PUBLIC DEFENDER, By: Matthew Porter, Esq., Watertown, NY.
These cases involve a parent originally charged with child endangerment under PL 260.20 (1) pleading to a violation PL 240.20 as part of a plea bargain. In each case the defendant was advised by the Court more than five days before the plea to a violation was entered that the Court was considering not sealing the record in the interest of justice that would otherwise be automatically done by the clerk of the court under CPL 160.55(1) as this Court ruled was required in People v Nicholas (2008), 19 Misc 3d 322.
In each case after the defendant plead to a violation under PL 240.20 the Court conducted a hearing on the issue of whether it was in the interest of justice to bar the sealing of the records under CPL 160.55(1). The Court based on these hearings as well as to the facts admitted to on the record by each defendant as part of the plea to a violation and guided by its subsequent decision in People v Nicholas, (decided today 6/9/08), after a similar hearing in that case, in which this Court outlined the case law regarding applying the interest of justice standard in a child endangerment situation the Court makes the following decision.
Professor Douglas J. Besharov in his McKinney's Practice Commentaries for Section 1012 of the Family Court Act stated opined that leaving a child alone in what he termed "unreasonably dangerous situations" such as being "locked in cars while their parents go shopping" and/or "left at home alone . . . no matter how safe the home environment seems" is "inherently dangerous behavior" ( Nicholas, supra, p. 8).
In People v Watson, (1999), 182 Misc 2d 644, the facts involved a 7 year old child left alone at home for over 2 ½ hours which led to a charge of child endangerment being filed against the parent under PL 260.10(1). The Watson Court in rejecting a motion to dismiss the change in the interest of justice under CPL 170.40 (1) stated "[I]t is obvious that the offense charged is inherently serious," it was "reasonably foreseeable that extreme harm could come to a young child who is left alone at home," that as "deterrence is one goal of a sentence if a dismissal is granted . . ., any, . . . person, may think it acceptable to leave small children at home without proper supervision" so by "imposing a sentence" the "public is informed that such conduct . . . will not be tolerated" because otherwise "the safety and welfare of young children in the community will be affected . . . without punishment [as] others may disregard the importance of providing proper supervision for children" (id. Pps. 651 — 652).
In People v Barrios (1994), 160 Misc 2d 612, the Court in an interest of justice motion under CPL 170.40(1) (4) stated at page 617, a general conclusion to be applied in considering an interest of justice dismissal under CPL 170.40 (1) in cases where the charge is one of child endangerment under PL 260.10 is that "[s]ociety has a right to expect that criminal behavior directed toward its most defenseless members will not be tolerated and that allegations of such behavior will be given the Court's full and careful attention."
In deciding whether or not to provide the sealing of the record in the interest of justice under CPL 160.55(1) this Court is mindful of Prof. Beshanov's learned opinion as there is "no way of specifying where children are old enough to be left unattended, and for how long . . . each situation must be judged individually." The Court will review the admitted facts of each case as stated on the record by each defendant when she admitted to the violation of PL 240.20.
Jolene M. Tyre was arrested and charged under Penal Law 260.10(1) with Endangering the Welfare of a child in an incident involving a 7 and 5 year old on 10/23/07.
Officer Maney while investigating an accident in a local business's parking lot after being alerted to by a person's scream turned to see a truck resting against the building. At that time he realized that the truck started backing towards him and the public roadway being chased by the defendant. He then assisted her in opening the door of the moving vehicle and stopping it just before it struck another vehicle near the public highway.
She told the officer she had, as in the past, left her children alone in the vehicle while the motor was running, warned the older child not to play with the truck while it was running and that he also knew how to start it as he had in the past when left alone in it. On this date she left the vehicle running because it was cold so as to keep the heater on, and then entered the store where she worked to pick up some training material.
Jennifer Reape admitted she left her three children ages 9 years, 2 years and 8 months in a van she parked in a store parking lot on 9/14/07 at 4 pm with the windows closed, the car motor running and the air conditioner running as well. She said she left her 9 year old to watch the 2 year old and an 8 month old infant. She said she then entered the store fro about ten minutes or more. She said she locked the children in the car and had to have the 9 year old open the door of the van when she returned after shopping. She states this was her common practice.
An employee of the store in front of which the defendant had parked the van with her children locked inside advised the investigating officer that a customer told her about the van in the parking lot with these children in it. She said she went to the van, observed the three children in it, that the motor was running, all the windows were up and the van was parked in the sun on a very warm day, not the shade. She said she observed the defendant exit the store and drive the van away.
The investigating officer talked to this employee and based on the description of the defendant and the van plate number given him by the employee he eventually interviewed her and arrested her on this charge.
Kasey St. Croix on August 11, 2007 left her three children ages 10, 4 and 18 months alone at night to "go out" after awaking the 10 year old to tell him he was in charge. At about 10:30 pm the father learned she had left these children alone and called the police at 11:22 pm.
The investigating officer was finally able to locate Mrs. St. Croix, after checking with local bars without success, when he contacted her at 1:45 am. She said she was headed home and arrived at 2:00 am. When she was asked where she had been during this three and a half hour period she at first claimed she had left at about 12:10 am to go to the store expecting to return in 15 minutes, then she said she had been gone only about an hour and finally she said she had been at a friend's house, but refused to name this person for the officer.
In the Tyre and Reape cases the issue involves leaving children alone in a car with the motor running while the parent entered a store.
As Prof. Besharov states leaving children "locked in cars while then parents go [into a store] is an "unreasonably dangerous situation" to be assessed "individually" based on the "age of the child(ren)" and for how long "they are left unattended." In considering the test of whether it would be "reasonably foreseeable that extreme harm could come to a child left alone" in a given situation ( Watson), supra, p. 651) the time, place, age of the child and circumstances should be considered in determining if the record of the conduct should be kept unsealed in the interest of justice under CPL 160.55(1).
In Tyre the parent decided to leave her 7 year old in the car with the motor running to keep it heated along with his five year old sibling. She had intended to enter the store where she worked to get some employment training material and return to the car. She gave no reason why she could not have taken these two children with her into the store for such a quick errand. She also admitted that the 7 year old knew how to start and operate the vehicle, as he had done on past occasions, and she had warned him to refrain from such conduct.
The Court finds that it was clearly foreseeable that by leaving this 7 year old alone in the truck with the motor running there was a substantial risk he would attempt to operate it which resulted in the truck first hitting the building and then moving backwards toward the exit from the parking lot and out onto a busy public street. It was only through the intervention of a police officer who happened to arrive just as this incident commenced that the vehicle was stopped.
This was certainly an "unreasonably dangerous situation "to leave two children alone in a motor vehicle with its motor running in a public parking lot enhanced by the additional risk that the 7 year old had a propensity to operate the truck when he was given a chance. Leaving a motor vehicle with the motor running with two children in it is risky per se considering that fact a car thief could take advantage of the opportunity; and, worse yet, a child predator could take advantage of the situation.
The Watertown Daily Times said that a William J. Dempsey, Jr. had been living in Watertown without registering as required of a level 3 sex offender also had been convicted of abducting an 11 year old boy and his 6 year old sister "from a parking lot of . . . a convenience store . . ." when "[t]heir father had left the children in the family car while he was in the store" and "sodomizing the boy" (Watertown Daily Times, 5/9/08).
The Court finds that based on the circumstances of this case it is in the interest of justice to ban the sealing of the record under CPL 160.55(1) to keep her name on the DCJS listing so others are put on notice of this child endangerment conduct she engaged in and the court where the unsealed record of the violation conviction can be reviewed before deciding to give her responsibility for the care of children.
In Reape the parent left a 9 year old, a 2 year old and an infant of 8 months locked in a car with the windows up and the motor running in a public parking lot while she went shopping. She said she had left the 9 year old in charge and, as a past practice, she would have the 9 year old open the door for her when she returned to the car. In her statement to the police she justified this behavior because the dark windows keep any one from seeing the children inside the car, she would do so only in a parking lot where there are not a lot of other people like a large store's lot and she would do so only if it was to be for a "quick in and out" shopping visit.
The most aggravating factor in this case is this parent's expectation that a 9 year old was expected to care for a 8 month old infant not to mention a two year old child. To give a 9 year old such a responsibility in the case of the infant is "inherently dangerous behavior" (Besharov) per se. Furthermore, to leave these children locked in a car out of sight due to dark windows preventing a passerby from seeing if the children might be in distress as well as locking the car relying on the 9 year old to open it rather than laving another means to open its doors from the outside creates an "unreasonable dangerous situation" (Besharov).
The Court concludes based upon these circumstances it is in the interest of justice to keep the DCJS listing o the defendant's name unsealed under CPL 160.55(1) where others can learn of this child endangerment conduct and the location of the local court where the records can be reviewed before a decision to allow her to care for children in the future is made.
The St. Croix case involves a parent who elected to leave her three children ages 10 years, 4 years and 18 months alone at home at night at about 10:30 pm after waking the 10 year old to inform him he was in charge while she "went out." It was not until the father discovered the situation and called police was she located when she returned home at 2 am. She told the police she had gone shopping and expected to be home in 15 minutes and that she had been gone only about an hour.
This case, as in Tyre and Reape, involves a parent who elects to leave children in "unreasonably dangerous situations" (Besharov). As pointed out by Besharov "no matter how safe the home environment seems leaving a child alone at home is inherently dangerous behavior" especially when a 10 year old is left to watch over an 18 month old infant at a time when the 10 year old would be sleeping. To expect him to remain awake after 10 pm to watch over the other two children is "unreasonable." In Watson the Court concluded that leaving a 7 year old child alone for over two hours at home after school was "inherently serious" and an example of "improper supervision of children" a practice that should not be tolerated considering the safety and welfare of young children in [any] community" (i.d. pps. 651 — 652).
The Court finds that it is in the interest of justice to bar the sealing of the defendant's records under CPL 160.55(1) so as to keep the information of this child endangerment charge listed at DCJS so anyone who has an interest in allowing her to care for children will learn of this incident and the location of the local court where the criminal records containing the details of it are open for public inspection. This will enable one to make an informed decision about any risk to a child left within defendant's care.
Conclusion
The Court has considered in each case the explanation given by each defendant for her conduct and subsequent steps each has taken to avoid it in the future. The question of whether these rehabilitative efforts will prevent a repeat of such irresponsible conduct placing another child at risk in the future however still remains, and, because of this potential, the Court finds it is best to leave the record listed at DCJS of this child endangerment conduct so someone in the future who considers entrusting the care of a child to one of these defendants can decide for themself if they each can be trusted with such a task after "rehabilitating" themselves.
In the case of People v Jolene M. Tyre, People v Jennifer Reape and People v Kasey St. Croix for the reasons heretofore stated the Court determines that the records of the arrest of PL 260.10(1) should not be sealed as provided at CPL 160.55(1) because "the interest of justice requires otherwise" and the Clerk of this Court is ordered to comply with this decision and order of this Court.
This shall serve as the decision and order of the Court.