Opinion
2011KN030600.
Decided on June 22, 2011.
For the People, Charles J. Hynes, District Attorney, Kings County, by Rena A. Seth, Esq., Assistant District Attorney.
For the Defendant, Daniel Kogan, Esq.
Defendant is charged with Endangering the Welfare of an Incompetent Person (PL Sec. 260.25), a Class A Misdemeanor.
By motion dated May 2, 2011, Defendant seeks dismissal of all charges, asserting that the People's complaint is facially insufficient.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated June 9, 2011. For the reasons stated below, the motion to dismiss is denied.
Pursuant to the Criminal Court Complaint, on or about April 11, 2011, Defendant was observed "masturbating while standing next to" an 82 year old individual who "has been diagnosed with Alzheimer's Disease." The individual is alleged to have been asleep at the time, and is "unable to care for (them)self without . . . assistance."
Defendant asserts that "if the victim' is not aware of what is happening and the defendant was not touching or otherwise abusing the victim, how was the victim being endangered." See, Defendant's motion dated May 2, 2011, p 2, para 7. However, the very premise of Defendant's argument is mistaken. The issue here is not whether the victim was aware of the Defendant's conduct. Rather, the question is whether Defendant knew his conduct may be harmful to the victim.
PL Sec. 265.25 provides that a defendant is guilty of this charge when he or she "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect."
CPL Sec. 100.15 requires every accusatory instrument to contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).
Applying these principles to the instant matter, the factual allegations contained in the misdemeanor information before this Court are facially sufficient.
Under PL Sec. 15.05(2), "a person acts knowingly with respect to conduct or to a circumstance described by a stature defining an offense when he is aware that his conduct is of such nature or that such circumstances exist." Thus, "criminal liability . . . is imposed when a defendant engages in conduct knowing it will present a likelihood' of harm . . . (i.e., with an awareness of the potential for harm)." See, People v. Hitchcock, 98 NY2d 586, 590-591, 750 NYS2d 580 (2002), citing People v. Johnson, 95 NY2d 368, 372, 718 NYS2d 1 (2000). See, also, People v. Gibble, 2 Misc 3d 510, 512, 773 NYS2d 499 (Crim Ct, NY Cty, 2003) ("A violation of the statute does not require proof that the defendant's conduct be specifically directed" towards the victim).
In Gibble, defendant was observed in a public school with his pants down, masturbating. The court there held that "masturbation constitutes an unequivocal act. As to whether it . . . constitutes endangering the welfare of a child is a question for the finder of fact." 2 Misc 2d at 515 (citations omitted).
Though the cases cited above involve the charge of Endangering the Welfare of a Child, the principle is the same. The allegations against the Defendant need not address the victim's mental state at the time of the offense; instead, the allegations brought against a defendant must establish "that defendant knew that her actions were likely to be injurious to the victim who was unable to care for himself or herself because of physical disability, mental disease or defect.'" See, People v. Noble, 21 Misc 3d 1140(A), 2008 WL 5137067 (Crim Ct, Qns Cty, 2008); People v. Rolston, 190 AD2d 1000, 593 NYS2d 383 (4th Dept, 1993) ("defendant knew it was likely that the victim's physical well being would be endangered").
There can be no reasonable argument that the People's allegations, that the Defendant knew or should have known that his actions were likely to be injurious to the victim, who is reportedly diagnosed with Alzheimer's Disease, are in any way facially insufficient. Therefore, Defendant's motion is denied in its entirety.
All other arguments advanced by Defendant have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.