Opinion
2013KN080309
01-26-2015
The People of the State of New York, v. Edward Falcone, Defendant.
For the People: Kenneth P. Thompson, Kings County District Attorney, by ADA Amanda Cully, 350 Jay Street, Brooklyn, NY 11201 For the Defendant: Brooklyn Defender Services, by Amanda Hamann, Esq., 177 Livingston Street, 7th Floor, Brooklyn, NY 11201
Appearances of Counsel:
For the People: Kenneth P. Thompson, Kings County District Attorney, by ADA Amanda Cully, 350 Jay Street, Brooklyn, NY 11201
For the Defendant: Brooklyn Defender Services, by Amanda Hamann, Esq., 177 Livingston Street, 7th Floor, Brooklyn, NY 11201
Laura R. Johnson, J.
Defendant is charged with two counts of Public Lewdness (Penal Law § 245.00[A]), eight counts of Endangering the Welfare of a Child (Penal Law § 260.10[1]), two counts of Reckless Driving (Vehicle and Traffic Law §1212), and two counts of Exposure of a Person (Penal Law § 245.01). By Notice of Motion dated December 8, 2014, defendant seeks dismissal of the charges of Endangering the Welfare of a Child and Reckless Driving on the ground that they are facially insufficient. In particular, defendant contends that the information fails to allege facts sufficient to establish defendant's knowing creation of a risk to the welfare of a child, and also that, by failing to allege any facts regarding his driving, it fails to establish that his driving was reckless. The People oppose defendant's motion by Affirmation dated January 6, 2015. For the following reasons, defendant's motion to dismiss is denied in part, as to the counts of Endangering the Welfare of a Child, and granted in part, as to the counts of Reckless Driving.
FACTS
Defendant was initially arraigned on October 17, 2013. On October 25, 2013, the People served and filed a Superseding Information (SSI) and the supporting depositions of four witnesses, together with a Statement of Readiness. The SSI alleges two occurrences, the first on or about and between October 10, 2013, at 4:00 p.m. and October 10, 2013 at 6:00 p.m., and the second on or about and between October 16, 2013, at 4:00 p.m. and October 16, 2013 at 4:40 p.m. Both occurrences were at or near the corner of Nostrand Avenue and Quentin Road in the County of Kings, State of New York.
With regard to the October 10, 2013 occurrence, the SSI sets forth factual allegations upon information provided by Eliana Alon, whose date of birth is 1/7 /2002 (making her 11 years old at the time), and states that, at that place, which is a public street, informant observed defendant driving a small blue minivan-like vehicle with a sun roof and a yellow sticker on the front window and observed that the defendant's penis was open to public view and that informant was able to observe the defendant's penis and that the defendant was manipulating defendant's penis with defendant's hand.
The SSI further alleges that three other named individuals, Avigayil Alon, Rebecca Widroff, and Rivka Scher, were "also present at the first above mentioned time and place," and that their dates of birth were 1/7/2002, 11/16/2003, and 11/27/2002, making them, at the time of occurrence, 11, 9, and 10 years old respectively.
The allegations with regard to the October 16, 2013 occurrence are substantially the same, based on information provided this time by Avigayil Alon, that:
At the second mentioned above time and place, which is a public street, informant observed defendant driving a small blue vehicle with a sun roof and a yellow sticker on the front window and observed that the defendant's male private part was open to public view and that informant was able to observe the defendant's male private part and that the defendant was manipulating defendant's male private part with defendant's hand.
The SSI further alleges that the three other girls were "present at the second above mentioned time and place."
DISCUSSION
Pursuant to sections 100.15 and 100.40(1) of the Criminal Procedure Law, 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. In determining whether this "prima facie" requirement has been met, the court must view the facts alleged in the light most favorable to the People (People v. Contes, 60 NY2d 620, 621 [1983]); People v. Dreyden (James), 28 Misc 3d 5, 7 [App Term, 2d Dept.], lv denied 15 NY3d 773 [2010]). The requirement of non-hearsay allegations is a "much more demanding standard" than a showing of reasonable cause alone (People v. Alejandro, 70 NY2d 133, 138 [1987], quoting 1966 Report of Temp Commn on Revision of Penal Law and Crim. Code, Staff Comments). Nevertheless, the People's prima facie burden "is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v. Kalin, 12 NY3d 225, 230 [2009], citing People v. Henderson, 92 NY2d 677, 680 [1999]; see also Preiser, Practice Commentary, McKinney's Cons. Law of NY, Book 11A, CPL 100.40, at 388). So long as the factual allegations of an information give the defendant sufficient notice to prepare a defense and prevent the defendant from being twice tried for the same offense, they should be given a fair and not overly restrictive or technical reading (People v. Casey, 95 NY2d 354, 360 [2000]). Finally, while conclusory allegations are insufficient (see People v. Dumas, 68 NY2d 729 [1986]), inferences may rationally be drawn (see People v. Bello, 92 NY2d 523, 526 [1998]), and a court "is not required to ignore common sense or the significance of the conduct alleged" (People v. Gonzalez, 184 Misc 2d 262, 264 [App Term, 1st Dept. 2000], lv denied 95 NY2d 835 [2000]).
The Timeliness of Defendant's Motion
As a threshold matter, the People contend that defendant's motion should be denied as untimely, since it was not made within 45 days of arraignment. The time limitations of CPL § 255.20, relied upon by the People, do not apply to claims that an accusatory instrument is facially insufficient in that it fails to allege facts of an evidentiary nature supporting every element of the offense charged (see CPL § 100.40[1][c]). Because "[a] valid and sufficient accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 NY2d 98, 99 [1977]), an objection to facial sufficiency cannot be waived, and may be raised at any time (People v. Casey, 95 NY2d 354 [2000]). Indeed, the defense may enter a plea of guilty on a favorable offer of disposition and still raise such a claim on appeal. People v. Dreyden, 15 NY3d 100, 103 (2010). Defendant's motion is timely.
Conversely, and contrary to defendant's contention, a facially insufficient information may be cured by filing a superseding information that alleges new or additional facts, at any time before the opening of trial. CPL § 100.50; People v. Thomas, 4 Misc 3d 57 (App. Term 2d Dept. 2004). Here, although defendant suggests that more than 90 days of chargeable time have passed since the filing of the SSI, he does not move to dismiss the case on speedy trial grounds. In any event, the People have been ready for trial since October 25, 2013 on the charges of Public Lewdness and Exposure of a Person, which defendant does not challenge.
Endangering the Welfare of a Child
As applicable here, under Penal Law § 260.10(1), a person is guilty of Endangering the Welfare of a Child when he or she "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." Criminal liability for endangering the welfare of a child does not require that the defendant intend specifically to endanger a child's welfare. Instead, the Court of Appeals has held that "the statute is broadly written and imposes a criminal sanction for the mere likelihood' of harm." People v. Johnson, 95 NY2d 368, 372 (2000); see also PL § 15.05(2) ("a person acts knowingly with respect to conduct or to a circumstance described by a statute in defining an offense when he is aware that his conduct is of such nature or that such circumstance exists"). It is also not required that the alleged conduct be directed at a particular child under the age of seventeen years old; rather, "a defendant must simply be aware that that the conduct may likely result in harm to a child, whether directed at the child or not." Id. (emphasis in original). Furthermore, actual harm to the child need not occur for a finding of criminal liability. Id. at 372; see also People v. Simmons, 92 NY2d 829, 830 (1998).
Allegations that a defendant masturbated in view of a child are sufficient to support a charge of Endangering the Welfare of a Child. See People v. Martz, 28 Misc 3d 1215(A) (Nassau Dist Ct 2010); People v. Griffith, 6 Misc 3d 1027(A) (Crim Ct. Kings County. 2005); People v. Gibble, 2 Misc 3d 510 (Crim. Ct. NY County 2003).
Defendant's challenge to the facial sufficiency of the SSI, then, comes down to whether the information sufficiently alleges facts from which it may fairly be concluded that defendant was aware that his conduct would likely be observed by a person under the age of 17.
In People ex. rel. Tanis v. Benedict, 28 N.Y.S.2d 202 (NY Sup. Ct. 1941), the court assessed the facial sufficiency of an information alleging remarkably similar facts. In that case, the defendant was masturbating in a parked car, where he was observed by a 10-year-old girl passing along the adjacent sidewalk. The information charged that "defendant did willfully cause a child 10 years of age to be placed in such a situation that her morals were likely to be impaired," in violation of a predecessor statute, Penal Law § 483(2). The court rejected the defendant's argument that he could not fairly be charged with "causing" or "permitting" a child over whom he had no "control" to be placed in a situation likely to be injurious to her morals, noting that, since defendant had positioned himself in a public place where he was visible, "it would do violence both to the letter and spirit of this section of the Penal Law to hold that this defendant did not wilfully cause this child to be placed in such a position that her morals were likely to be impaired" ( id. at 205). As for whether the conduct itself was of a nature likely to be injurious to a child, the court concluded that "the act in which the defendant was publicly engaged in was such as to shock and even demoralize any child of adolescent years" ( id.).
The 1941 decision does not quote in full the language of the information in that case, nor does it state specifically that defendant was masturbating; instead, it refers to the defendant's "unconcealed and unnatural acts" which were "more than an exposure of person." 28 N.Y.S.2d at 205.
To be sure, the likelihood that defendant would be observed by a child may not be as great in this case as it was in People v. Gibble, 2 Misc 3d 510 (NY City Crim. Ct. 2003), in which the defendant was alleged to have been masturbating behind a desk in a school during school hours. Here, however, a reasonable inference of defendant's awareness of the likely presence of children is to be drawn from the fact of his return to the same location to repeat the same conduct on two weekday afternoons within six days, in view of the same group of girls.
Furthermore, the Court takes judicial notice that the location of occurrence is in the residential neighborhood of Midwood, Brooklyn, in the vicinity of several public schools and yeshivas. People v. Jones, 73 NY2d 427 (1989) (A court may take judicial notice of facts "which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.") (citing Richardson, Evidence § 9 [Prince 10th ed.]); see also Cobble Hillbillies, LLC v. Interior Design, 4 Misc 3d 987, 990 (2004) (judicial notice may be taken of facts that are common knowledge, notorious, or indisputable).
As for the presence of the other girls who, as to each incident, are named as victims although not specifically alleged to have observed defendant's conduct, the allegations of the information are sufficient for the pleading stage. The fact that one child observed defendant's conduct on each of the two occasions is sufficient to establish that his conduct was visible to the public. Therefore, although bare-boned, the allegations in the SSI regarding the presence of the other named children provide defendant with sufficient notice to prepare a defense and to prevent him from being twice tried for the same offense. See People v. Allen, 92 NY2d 378, 385 (1998). Defendant's questions regarding the precise location of each of the girls and the likelihood that they might be harmed by his conduct are matters to be resolved at trial.
Indeed, it is not dispositive whether the other girls actually saw defendant's conduct. In People v. Neville, 31 Misc 3d 1245(A) (Crim. Ct. Kings County 2011), the court assessed the sufficiency of a complaint charging Endangering the Welfare of an Incompetent Person (PL § 265.25), and concluded that where defendant masturbated next to 82-year-old sleeping Alzheimer's patient, the issue is "not whether the victim was aware of the Defendant's conduct but whether Defendant knew his conduct may be harmful to the victim."
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Viewing all the evidence and the inferences which may be drawn in the light most favorable to the People and refusing to ignore common sense or the significance of the conduct alleged, this Court finds that the charges of Endangering the Welfare of a Child are facially sufficient.
Reckless Driving
Under Vehicle and Traffic Law § 1212, "[r]eckless driving shall mean driving or using any motor vehicle . . . in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway." Furthermore, under Penal Law § 15.05(3), a person acts recklessly when "he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists" and that risk must be "of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
Here, the sole explicit relevant factual allegation in the information is that defendant was "driving." It may also be fairly inferred from the other allegations that defendant had, at most, one hand on the steering wheel. However, the accusatory instrument is devoid of any allegation that defendant's motor vehicle, as it was being driven, "unreasonably interfere[d] with the free and proper use of the public highway, or unreasonably endanger[ed] users of the public highway." VTL § 1212. The SSI contains no facts whatsoever to support a conclusion that the manner in which the defendant was driving "created an actual and apparent, as opposed to a theoretical, danger to the person or property of another." People v. Dipoumbi, 23 Misc 3d 1127(A) (NY City Crim. Ct. 2009). The charge of Reckless Driving is facially insufficient.
CONCLUSION
For the reasons set forth above, defendant's motion to dismiss the accusatory instrument is denied in part, as to the counts of Endangering the Welfare of a Child, and granted in part, as to the counts of Reckless Driving.
This constitutes the Decision and Order of the Court.
DATED:January 26, 2015
Brooklyn, New York
Laura R. Johnson, J.C.C.