Opinion
2009QN000308.
Decided March 25, 2009.
ADA, Carly Kaufman, Queens County District Attorney, Criminal Court Bureau, Kew Gardens, New York.
Barbara Byrne, Legal Aid Society, Kew Gardens, New York, Defense Counsel.
Defendant is charged with two counts of Endangering the Welfare of a Child (PL 260.10). At the call of the calendar on February 23, 2009 defendant argued that the matter was not converted as there were no nonhearsay allegations as to the ages of the minor children at issue. This Court reserved decision and adjourned the case for decision. Defendant's time for making an omnibus motion was tolled pending this decision. (CPL 255.20)
Now, upon review of the accusatory instrument, the Court finds that the complaint has been converted to an information.
To be a properly converted information upon which the People may proceed to trial, a misdemeanor complaint must set forth nonhearsay allegations establishing every element of the offense charged. (CPL170.65 [1]; CPL 100.40 [c]; People v Casey, 95 NY2d 354, 360; People v Henderson, 92 NY2d 677, 680; People v Allen, 92 NY2d 378, 385; People v Alejandro, 70 NY2d 133; People v Dumas, 68 NY2d 729)
A misdemeanor information, however, need only establish prima facie cause to believe the accused is guilty of the crime or charged crimes, which is a lower threshold than the burden of proof beyond a reasonable doubt required at trial. (Henderson, 92 NY2d at 680; Allen, 92 NY2d at 385)
Here defendant is charged with two counts of Endangering the Welfare of a Child (PL 260.10), which provides:
A person is guilty of endangering the welfare of a child when he 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 (emphasis added)
In the factual part of the accusatory instrument the deponent, a New York City Police Officer states:
Deponent . . . is informed by Police Officer Theresa Milano . . . that at the above time and place of occurrence she observed the complainants, K.G. and V.G., the daughters of the defendant, Anne Marie Gulab, home alone without any parental or adult supervision
The names of the minors have been redacted for publication.
Deponent states that he is further informed by Police Officer Theresa Milano that the complainant, K.G., stated that she was home alone with her sister K. G. for two hours
Deponent states that the complainant K. G. is ten years of age.
Deponent further states that the complainant V. G. is five years of age.
Deponent further states that the defendant stated in sum and substance "I left early. I went shopping."
The People also filed a supporting deposition from Police Officer Milano.
Regarding the act of leaving the children home alone, this Court agrees with the line of cases where courts have found that leaving young children home alone is an act proscribed by the statute, and not solely an act of "bad parenting". (People v Watson, 182 Misc 2d 644, 648 [Crim Ct Bronx County 1999]; People v Afia, 17 Misc 3d 734, 735 [Crim Ct Kings County 2007]; compare People v Cenat, 176 Misc 2d 39, 42-43 [Crim Ct Kings County 1997]; see generally People v Simmons 92 NY2d 829, 830; People v Johnson, 95 NY2d 368, 371)
Notwithstanding, defendant's principal contention is that the allegations from the police officer alleging the children are ages five and ten is a hearsay allegation. This issue, whether a complainant police officer or other person's allegation that a minor child appears to be a certain age, has engendered some debate.
For example, in People v Seward, ( 173 Misc 2d 1020, 1021 [Mt Vernon City Ct 1997]) the court found that the allegation that a child "appeared to be six years of age", standing alone, did not provide a non-hearsay allegation of age. Similarly, in People v Mercado, ( 184 Misc 2d 40, 42-43 [Crim Ct Bronx County 2000] [collecting cases]) the court found that "the accusatory instrument requires at least some corroboration" of age to be converted, but, went on to state that "corroboration of the hearsay allegations regarding the birth dates of child complainants requires a certain amount of prosecutorial industry and creativity", (Id. at 43), and "is not impossible" (Id.) The Mercado court went on to suggest that:
the People could also file the supporting deposition of someone who observed the child complainant and could describe in detail the height, size, wearing apparel or other pertinent descriptive commentary that would clearly peg the subject child as a person under 17 years of age. And, of course, there is no prohibition against a child providing his or her own date of birth, as long as the child is capable of doing so.
(Mercado at 44)
In People v Cenat, where the children were alleged to be ten and three years old, the court commented on the issue of a sufficient allegation of age, stating:
Defendant does not raise the argument that the allegations that the children "appeared to be" 10 and 3 is not sufficient. While the age of a child is something that must be sworn to by someone with knowledge, the approximate age of a child is something that a layperson can estimate with a reasonable degree of accuracy. Clearly if the precise age mattered, then the "appeared to be" language would be insufficient. In the instant context, however, even if the estimate were off by a year or two, it would not affect the result here. It is always preferable, however, to get a certified birth certificate or provide the affidavit of someone with knowledge.
(Cenat, supra 176 Misc 2d at 42 n3 [emphasis added])
Agreeing with this argument, in People v Fraser, (2008 NY Slip Op 52263U [Crim Ct Kings County 2008]) the court found that a lay person's allegation that the child at issue was an infant (child was left alone in a stroller) did provide an adequate allegation that the child was a minor under the age of seventeen, even though other proof of age was not provided. (Cf Mercado, supra)
PL 260.10 protects children until their seventeenth birthday. (PL 260.10; Johnson, supra) Thus, where this statute is invoked, a police officer may deal with children ranging from newborn infants to sixteen year old young adults. While the Court recognizes that it may be increasingly difficult to determine the true age of a teenage minor, in the instant case, where an officer is called to determine the age of a younger child, he or she may be able to determine that they are a minor by their appearance alone, and need not resort to evidence to show the child was under the age of seventeen. (Cenat, supra; Cf Mercado, supra) Here the officer states the children are five and ten years old — far younger than the fifteen or sixteen year olds that at the upper range of minors protected by the statute.
While the officer does not use the language that either child "appeared to be" their respective ages, and did not give the source of the children's ages, a plain reading of the allegations show that the children were five and ten years old, or about that age. A far better practice would have been for the affiant to state the source of his or her belief. (See e.g., Mercado, supra 184 Misc 2d at 43-44)
Accordingly, the Court finds that the officer's allegation, standing alone, is sufficient to convert the instrument into a misdemeanor information. (Cenat, supra)
Accordingly, the complaint has been converted to an information.
The foregoing constitutes the decision and order of this court.