Opinion
2004NY081275
Decided March 31, 2005.
The defendant is charged with two counts of endangering the welfare of a child, in violation of Penal Law (" PL") § 260.10(1), and criminal mischief in the fourth degree, in violation of PL § 145.00(1). He moves to dismiss the two counts of endangering the welfare of a child as facially insufficient. Defendant also moves to suppress any statements made by him, to preclude identification, statement and physical evidence, to compel a bill of particulars and discovery, preclude the use of prior criminal history/bad acts at trial and to be provided with any prior uncharged bad acts the People intend to use for impeachment if he testifies at trial.
The factual part of the information alleges that:
Deponent is informed by [complainant] . . . that the defendant repeatedly called informant, directing her to come to him, and that informant refused, that the defendant took informant's mobile phone and threw it against a wall . . . thereby damaging said phone, without permission or authority to damage said property. Deponent is further informed by [complainant] that the defendant's above described conduct was done in the presence of the informant's children, [whose dates of birth are] December 18, 1993 and November 5, 1990.
Deponent further states that the defendant stated in substance (in deponent's presence): I KNOW THERE IS AN ORDER OF PROTECTION AGAINST ME AND THAT I SHOULD NOT BE IN [complainant's] PRESENCE.
Facial Sufficiency
A person who "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old" is guilty of endangering the welfare of a child. PL 260.10(1). The statute does not require that the child suffer any physical injury, only that the "defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child." People v. Simmons, 92 NY2d 829, 830 (1998), nor does it require that the harmful act be directed towards the child. People v. Johnson, 95 NY2d 368, 371, 372 (2000).
The Court in People v. Johnson, supra, held that acts of domestic violence, which occur in the presence of children, may be sufficient to violate PL 260.10(1). The Court, in upholding the defendant's conviction, found that the defendant's physical attack upon a woman and his threat to kill her in the presence of her children, coupled with the children listening for more than 10 hours to the defendant's verbal abuse of their mother, their mother's screams and the sound of breaking glass, was sufficient to establish a likelihood of harm to the children and the defendant's knowledge of the likelihood of such harm.
Defendants in other domestic violence cases have been found to have engaged in conduct which established the likelihood of both injury to the child and the defendant's awareness of the likelihood of such injury. In these cases, the violence was directed at the mother in the presence of the child.
In People v. LaMotte, 285 AD2d 814 (3rd Dept. 2001), the defendant, in the presence of their one year — old child, struck his girlfriend in the head, then took a rifle and threatened to kill her. Similarly, in People v. West, 271 AD2d 806 (3rd Dept. 2000), appeal denied, 95 NY2d 893 (2000), while a woman was holding her four year — old daughter, the defendant continually punched her arm and head, choked her, dragged her by the hair and threatened to kill her. In People v. Malone, 180 Misc 2d 744 (Crim. Ct. NY Co. 1999), the defendant, in the presence of their four year — old child, repeatedly punched his wife in the head. In these cases, the defendants' acts of violence were capable of causing physical harm to the mothers and were likely to frighten and traumatize the children who were present.
While a person who engages in "a significant act of domestic violence against a mother in the presence of a child [may be] guilty of endangering the welfare of that child" ( People v. Johnson, supra at p. 373), in this case, the defendant's alleged actions did not pose a risk of physical harm either to the mother or the children. The People must establish that the harm was likely to occur, and not merely possible. People v. Hitchcock, 98 NY2d 586 (2002). While throwing against a building wall property belonging to another may be intemperate and hostile, there are no facts alleged in the complaint from which it might reasonably be inferred that the act constituted a significant act of domestic violence which posed a likelihood of either physical or mental harm to the eleven and fourteen year — olds present.
Absent factual allegations from which a likelihood of harm might reasonably be inferred, the complaint is facially insufficient to charge a violation of PL 260.10. Accordingly, defendant's motion to dismiss the two counts of endangering the welfare of a child is granted.
Discovery is granted to the extent of the voluntary disclosure and bill of particulars furnished by the People. A hearing on the defendant's motion to suppress statement evidence is granted. The use of prior misconduct to cross-examine is referred to the trial court.
This opinion constitutes the decision and order of the court.