Opinion
2008-1250 Q CR.
Decided on April 11, 2011.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (William M. Harrington, J.), rendered November 9, 2007. The judgment, after a nonjury trial, convicted defendant of attempted endangering the welfare of a child.
ORDERED that the judgment of conviction is affirmed.
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ.
Following a nonjury trial, defendant was convicted of attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10). Defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05; People v Hawkins, 11 NY3d 484, 491-492; People v Williams , 38 AD3d 925 ). In any event, viewing the evidence in the light most favorable to the People ( see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of attempted endangering the welfare of a child.
The transcript of the 911 tape which was placed into evidence at trial showed that a Good Samaritan made the 911 call in question. He told the 911 operator that he had observed "someone taking a baby away from its mother and that the mother was trying to get the baby back." This Good Samaritan also stated that the police needed to respond quickly "because the situation was getting worse and the baby was crying." He remained at the scene and subsequently flagged down a police car with two police officers in it. He then spoke to Police Officer Giachetti, one of the two police officers.
While this Good Samaritan told Police Officer Giachetti that a man and a woman were having a loud argument, it does not negate the fact that he had personally observed the infant being taken away from its mother without the mother's consent, and the mother trying to retrieve her baby without success. Nor does it negate the fact that he called 911 with this information and waited at the scene until he saw to it that a police officer became involved. This is not just a situation of two people being engaged in a heated argument.
Further, the uncontradicted testimony of Police Officer Giachetti was that he and his partner had been flagged down by this concerned person, who had directed them to defendant and to the woman in question. He had personally witnessed the woman asking defendant for her infant back and had seen defendant pushing her away and saying "no." He and his partner attempted to calm them down. He observed defendant holding the infant with the infant's head in defendant's forearm, and it appeared that defendant was choking the infant with his forearm. He also observed defendant flailing the infant about in a violent manner while pushing the mother away.
Police Officer Giachetti further testified that both he and his partner had attempted to take the infant away from defendant several times, but every time they had tried to do so, defendant had become more violent and had begun flailing the infant about even harder. After approximately five minutes, Police Officer Giachetti was able to convince defendant to give the infant back to its mother. Defendant was thereupon placed under arrest.
We find, based upon the foregoing, that the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15; People v Danielson , 9 NY3d 342 ), we accord great deference to the factfinder's opportunity at the trial to view the witnesses, hear their testimony, observe their demeanor and assess their credibility ( see People v Lane , 7 NY3d 888, 890; People v Bleakley, 69 NY2d 490, 495). Upon a review of the record, we are satisfied that the verdict of guilt was not against the weight of the credible evidence ( see People v Romero , 7 NY3d 633 ). Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., and Golia, J., concur.
Weston, J., dissents in a separate memorandum.
WESTON, J., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum:
While I acknowledge that defendant's failure to move for a trial order of dismissal renders his challenge to the sufficiency of the evidence unpreserved, I would nevertheless review his claim in the interest of justice. In so doing, I conclude that the evidence is legally insufficient to support defendant's conviction and, accordingly, vote to reverse the judgment of conviction.
To sustain a conviction for attempted endangering the welfare of a child, the People must establish, beyond a reasonable doubt, that the defendant attempted (Penal Law § 110.00) to "knowingly act[] 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). Although actual harm is not required, the People must still establish that the harm "was likely to occur" and that the defendant had knowledge of this likelihood ( People v Hitchcock, 98 NY2d 586, 591).
Here, other than defendant's verbal exchange with his daughter's mother and the awkward manner in which he held his daughter during the exchange, the People failed to adduce any evidence that defendant knew that his actions would likely cause his daughter harm. To the contrary, the record establishes a lack of such knowledge. Both defendant and his daughter's mother were engaged in a heated argument, which was the sole basis for a passerby to flag down police. After the verbal altercation — which lasted less than five minutes after the police arrived — defendant handed his daughter to the police and was taken to the hospital for a psychiatric evaluation. In these circumstances, it cannot be said that defendant attempted to knowingly act in a manner that was likely to inflict harm on his daughter.
Accordingly, I vote to reverse defendant's conviction and dismiss the accusatory instrument.