Opinion
No. 2011KN091327.
2012-06-12
The PEOPLE of the State of New York, v. Nissa INGRAM, Defendant.
JOHN T. HECHT, J.
Defendant Nissa Ingram is charged with three counts of the class A misdemeanor of Endangering the Welfare of a Child (PL § 260.10[1] ) and one count of the violation of Unlawful Possession of Marihuana (PL § 221.05). She moves, pursuant to CPL 30.30(1)(b) and CPL 170.30(1)(e), to dismiss the accusatory instrument on speedy trial grounds or in the alternative, pursuant to CPL 170.30(1)(a) and CPL 170.35(1)(a), to dismiss the three Endangering the Welfare of a Child (PL § 260.10[1] ) counts for facial insufficiency. The People oppose the motion.
For the following reasons defendant's motion is denied.
As regards the motion to dismiss the accusatory instrument for facial insufficiency, the accusatory instrument provides, in pertinent part:
The deponent [Detective Jason E. Cohen] states that ... the deponent observed the defendant inside of a bedroom....
The deponent further states that the deponent recovered a quantity of marihuana, which was in plain view, from inside of the above-mentioned bedroom.
The deponent further states that the deponent recovered a quantity of marihuana, which was in plain view, from the living room....
The deponent further states that the deponent observed [three] children ... inside of the above-mentioned bedroom.
Deponent is informed by Police Officer Gabriel Nacelewicz, Shield No. 12969, of the Narcotics Borough [ sic ] Brooklyn North Command, that the defendant stated to the informant in substance, that the defendant is the mother of [the three children], [and] that [their] date[s] of birth [are] 6/30/09 ... 7/25/07 and ... 9/26/11.
(Accusatory instrument dated November 17, 2011).
Defendant argues that the case should be dismissed for facial insufficiency because the accusatory instrument fails to contain an allegation that harm to the three children here was likely to result from defendant's alleged behavior—the open possession of marihuana—or that defendant knew such harm was likely to occur.
A person is guilty of endangering the welfare of a child (PL § 260.10[1] ), as relevant here, 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....”
The statute is broadly written and imposes a criminal sanction for the mere “likelihood of harm.” Defendant's actions must be done “knowingly,” that is, the defendant must be aware that the conduct may likely result in harm to a child, whether or not it is directed at a child (People v. Johnson, 95 N.Y.2d 368 [2000] ).
The question of whether keeping marihuana, as here, or cocaine out in the open, either visible or accessible to children who live in the residence, constitutes endangering has divided this court, at least prior to People v. Johnson ( id.). On the one hand, as the court recognized in People v. Jones, whose facts are substantially the same as those alleged here, “when a child of an impressionable age, who is capable of absorbing all of his or her surroundings, is in the presence of such substances, there is a real likelihood that he or she will come to view such illegal substances as common household items” (People v. Jones, 25 Misc.3d 995 [Crim. Ct., N.Y. County 2009] ). As the court further observed in sustaining the accusatory instrument, “this court is careful to avoid substituting its judgment for that of the jury which ... might very well conclude that the defendant's conduct did not create a likelihood of harm to his child ( id. at 999).” To the same effect is People v. Gunter, where cocaine was allegedly left in the open and, although not apparently within a child's reach, nonetheless not secreted, and therefore capable of harming a child who gained access to it ( People v. Gunter, 32 Misc.3d 1202[A] [Crim. Ct., N.Y. County 2011] ).
On the other hand are cases cited in Jones, such as People v. Grajales, where marihuana was allegedly “out and accessible to the children,” but no facts were alleged to support the conclusion that the marihuana was observable and accessible, or that the children knew about its presence, or that the defendants used it in front of them, leading the court to determine that “the mere presence of marihuana alone is [not] enough to sustain the endangering count[ ]” (People v. Grajales, 179 Misc.2d 793 [Crim. Ct., N.Y. County 1999] ).
Although this court recognizes the concerns expressed in Grajales that a bare-boned accusatory instrument, such as the present one, potentially alleges only “speculative” harm ( id. at 797), due deference must be accorded both to the legislative judgment that the mere possession of marihuana is wrong, and to the limited pleading obligations required for a Criminal Court accusatory instrument (People v. Casey, 95 N.Y.2d 354 [2000] [facial sufficiency found where allegations provide sufficient notice for defendant to prepare a defense and are sufficiently detailed to prevent a defendant from being tried twice for the same offense]; see People v. Konieczny, 2 NY3d 569, 575 [2004];see People v. Allen, 92 N.Y.2d 378 [1998] [although bare boned, factual allegations in accusatory instrument complied with reasonable cause to believe and prima facie case requirements] ). Grajales, indeed, predates the Court of Appeals' decision in Johnson, where the Court rejected the “contention that applying the statute to conduct not specifically directed at children will result in a wild proliferation of prosecutions based on bad parenting or the exposure of children to inappropriate behavior”—thus ostensibly approving the use of the endangering statute to prosecute the type of conduct alleged here, where the “inappropriate behavior” (People v. Johnson, 95 N.Y.2d 368 [2000],supra ), is the alleged open possession of contraband in the home.
Accordingly, the motion to dismiss for facial insufficiency is denied. With regard to speedy trial, where a defendant is charged with one or more offenses, and at least one is a class A misdemeanor, as here, and none are felonies, the time period applicable is ninety days from the commencement of the action (CPL 30.30[1][b] ).
This matter commenced on November 18, 2011, when defendant was arraigned in Criminal Court. The case was adjourned to January 9, 2012 for conversion. 52 days are included (People v. Luperon, 85 N.Y.2d 71 [1995] [before People declare their readiness, all time runs against them unless they can claim benefit of an exclusion] ).
On January 9, 2012, the People served and filed the field test and police laboratory reports. The case was adjourned to March 5, 2012 for the People to serve and file the search warrant materials with proper redactions by February 21 and discovery by stipulation (DBS) by March 5. On February 1, 2012, the People served and filed a Statement of Readiness along with the Supporting Deposition of Police Officer Gabriel Nacelewicz, thereby converting the complaint to an information. The People concede 22 days. 22 days are included.
On March 5, 2012, the People served and filed DBS, but failed to provide the court with search warrant materials. The case was adjourned to April 17, 2011 for the People to provide the search warrant materials. The calendar call minutes reflect that the judge charged the People with time from March 5 forward until they filed the search warrant materials with the court.
The People affirm that on March 8, they met with the then-assigned AP5 court attorney to review proposed redactions and redacted materials and concede the 3 days from March 5 to March 8. 3 days are included ( cf. People v. Daley, 265 A.D.2d 566 [2nd Dept.1999] [People's unexcused failure to provide search warrant materials precluded defense from moving to controvert the warrant and thus effectively prevented the case from going forward] ).
On April 17, 2012, defendant received search warrant materials and a motion schedule was set on the instant motion. The case was adjourned to June 12, 2012. 0 days are included (CPL 30.30[4][a]; People v. Worley, 66 N.Y.2d 523 [1985] [reasonable time for motions excludable] ).
Based upon the foregoing, the total chargeable time is 77 days. Accordingly, defendant's motion to dismiss the accusatory instrument on speedy trial grounds, pursuant to CPL 30.30(1) is denied.
In summary, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30(1)(b) and CPL 170.30(1)(e) is denied. The motion to dismiss the three PL § 260.10(1) counts for facial insufficiency is also denied.
The foregoing constitutes the decision and order of the court.