Opinion
0867702004
Decided May 5, 2005.
Honorable Robert T. Johnson, District Attorney of Bronx County, New York.
Hernandez M. Rhau, Esq., Assistant District Attorney, for the People of the State of New York.
Thomas J. Tibaldi, Esq., for Janet Levy.
Defendant was initially charged with Endangering the Welfare of a Child (Penal Law § 260.10), Attempted Assault in the Third Degree (Penal Law § 110/120.00 [1]), and Harassment in the Second Degree (Penal Law § 240.26). Upon the People's reduction of the Endangering the Welfare of a Child charge to Attempted Endangering the Welfare of a Child (Penal Law § 110/260/10 [1]), Defendant moves to dismiss that count on the ground that it is not a cognizable crime. The motion is denied.
Factual Setting
In a perfected criminal complaint, it is alleged that on or about February 12, 2004, at approximately 3:00 p.m., inside P.S. 125, which is located at 1111 Pugsley Avenue, in Bronx County, Defendant confronted ten-year-old Ashley James and shouted at her, in sum and substance, "Why did you push my daughter on to the floor?!" Defendant then allegedly chased Ms. James, pushed her against a wall, and slapped her several times about the arms, legs and body, which resulted in Ms. James suffering minors bruises to those portions of her body, as well as annoyance, alarm, and fear for her physical safety.
Upon the People's reduction of Endangering the Welfare of a Child to an attempt to commit that crime, Defendant moved to dismiss the attempt as a legal impossibility. More specifically, Defendant contends that the Endangering statute is based upon a person actually acting in a manner likely to be injurious to the welfare of a child, and that one cannot attempt to act in such a manner, but, rather, a person either so acts or does not so act.
The People counter that, although not binding on the Court, the decision in People v. Vega, 185 Misc 2d 73, 77 (Crim Ct. Bronx Cty. 2000), should provide guidance, inasmuch as that court dealt with this very issue and held that an attempt to endanger the welfare of a child "is neither fictional nor impossible to commit" by giving several examples of acts that would constitute such a crime, including: "a defendant who exposes himself to an undercover police officer posing as a child, but who is, in fact, over sixteen years of age; a defendant who is thwarted in an attempt to throw her infant into a tub of scalding water; and an intoxicated defendant who starts the engine of a car containing children in the back seat, but does not drive away."
Discussion
Although in both People v. Meza, 5 Misc 3d 78 (App. Term 1st Dept. 2004), and People v. Bronson, 5 Misc 3d 137 (App. Term. 2nd Dept. 2004), those appellate courts upheld convictions for Attempted Endangering the Welfare of a Child, and in Meza ( supra, at 79, note), that court found nothing improper with the People reducing an Endangering the Welfare of a Child count to Attempted Endangering the Welfare of a Child "during the course of the defendant's presentation of his direct case," no appellate court has yet addressed this exact issue.
It is well settled that:
The criminal law is of ancient origin, but criminal liability for attempt to commit a crime is comparatively recent. At the root of the concept of attempt liability are the very aims and purposes of penal law. The ultimate issue is whether an individual's intentions and actions, though failing to achieve a manifest and malevolent criminal purpose, constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions.
People v. Dlugash, 41 NY2d 725, 726 (1977), citing, Rex v. Scofield, 1 Cald. Mag. Cas. 397 (Mansfield, Lord 1784).
Under the current law of this state, "[a] person who fails to perpetrate the object crime, despite committing some act in furtherance of that illegal end, is nevertheless guilty of an attempt because attempted criminal conduct is a danger to organized society and therefore independently culpable even though the intended result does not ensue." People v. Miller, 87 NY2d 211, 215 (1995). See also Penal Law Art. 110; People v. Saunders, 85 NY2d 339 (1995); People v. Coleman, 74 NY2d 381 (1989); People v. Campbell, 72 NY2d 602 (1988); People v. Bracey, 41 NY2d 296 (1977); People v. Werblow, 241 NY 55 (1925); People v. Sullivan, 173 NY 122 (1903).
The state of the law, as it now exists, counters the astute observation, "Well . . . you see, . . . I'm presently . . . [c]onvicted of a crime I didn't even commit. . . . Attempted murder? Now honestly, what is that? Do they give a Nobel prize for attempted chemistry?" The Simpsons: Sideshow Bob Roberts (Fox television broadcast, Oct. 9, 1994).
Nevertheless, in Campbell, supra, at 605, the Court of Appeals held that "[b]ecause the very essence of a criminal attempt is the defendant's intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended. . . . That element of intent relates not to the result proscribed by the statute . . . but to the circumstances which make that result one for which defendant is strictly liable." However, in Coleman, supra, at 384-85, the Court of Appeals clarified this holding by opining that:
[I]t is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be. The defendant did all that was necessary to complete the crime . . . and would have been guilty of the completed crime if the attendant circumstances had been as he believed them to be. . . . The defendant's mistake in that respect should not block his conviction for the attempt where it is the sole obstacle to his conviction for the completed crime. . . . [I]n Campbell [ supra], there was a congruence between the strict liability element and the proscribed result of the actor's criminal conduct. . . . This case, on the other hand, requires us to consider a statute the strict liability of which attaches not to the proscribed result of the criminal conduct, . . . but to an aggravating circumstance. . . . [W]here a defendant's mistake relates to an aggravating element of the offense, and not to the core conduct that is proscribed by the statute, such mistake does not affect the defendant's ability to act with the mental culpability required to complete the underlying offense and thus is not obstacle to his conviction for the attempt of that offense.
As more recently explained in People v. Prescott, 95 NY2d 655, 659 (2001):
[W]here a penal statute imposes strict liability for creating an unintended result, an attempt to commit that crime is not a legally cognizable offense. . . . One cannot attempt to create an unintended result. By contrast, where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct. . . . Likewise, an attempt is legally cognizable where a statute penalizes certain core conduct, but includes as an aggravating factor that the defendant caused an unintended result.
See also People v. Fullan, 92 NY2d 690 (1999); People v. Miller, 87 NY2d 211, 218 (1995) (holding that it is possible to commit an attempted crime where "strict liability attached to an aggravating circumstance rather than the prescribed result"); Saunders, supra, at 343 ("[T]he specific intent required to commit an attempt is not, under all circumstances, incompatible with recognizing penal responsibility for an attempt to commit a strict liability offense."); People v. Fernandez, 215 AD2d 234, 234-35 (1st Dept. 1995) (a crime is nonexistent if it contains "a strict liability element with respect to the proscribed result"), aff'd, 88 NY2d 777, 782 (1996) (crime not legally cognizable if "the intent element of attempt under Penal Law § 110.00 could not coexist with the unintended result element"); People v. McCall, Misc 3d, 2001 WL 1682547 (App. Term 1st Dept. 2001).
Conclusion
In the case at bar, the completed Endangering the Welfare of a Child statute states, in pertinent part, that "[a] person is guilty of endangering the welfare of a child when . . . [h]e [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." Penal Law § 260.10 (1). A person would then be guilty of an attempt to commit this offense when he or she intends to knowingly act in a manner likely to be injurious to the welfare of a child without actually acting in such a manner. Therefore, such a crime is cognizable because, as in Vega, supra, at 76, "the underlying endangering charge here has no result component and forbids only particular conduct, that is, a defendant's [knowingly] acting in a manner likely to cause harm to a child . . . [and] the core conduct prohibited by the endangering statute is defendant's [knowingly] acting in a manner likely to injure the child . . . [which is] not an unintended result." Moreover, "the language of the endangering statute does not, either expressly or impliedly, include the attempt to commit the crime within its purview." Vega, supra at 77.
In addition, the Court agrees with the reasoning in Vega, supra at 77, that because Penal Law § 260.11 states, in pertinent part, that "`[a] person shall not be convicted of endangering the welfare of a child, or of an attempt to commit the same,' . . . [that] statute is persuasive authority for the proposition that the legislature intended that a defendant could properly be convicted for Attempted Endangering the Welfare of a Child. No reason exists for this court to question this legislative judgment."
ORDERED, that the motion to dismiss the Attempted Endangering the Welfare of a Child charge by Defendant is denied.
The foregoing constitutes the decision and opinion of the Court.