People v Dorlice (Marlene)

[*1] People v Dorlice (Marlene) 2014 NY Slip Op 51485(U) Decided on October 7, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2011-2960 K CR

The People of the State of New York, Respondent,

against

Marlene Dorlice, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.), rendered November 21, 2011. The judgment convicted defendant of two counts of attempted endangering the welfare of a child.

ORDERED that the judgment of conviction is reversed, on the law, and the information is dismissed.

Defendant was charged in an information with two counts of attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10 [2]). The factual portion of the information provides, among other things, that defendant had left her children, ages seven and three, alone in her apartment from 10:30 a.m. to 11:17 a.m., and that, at 11:17 a.m., defendant was seen entering the apartment through a window, after climbing up the building's fire escape ladder.

CPL 260.10 (2) provides:

"A person is guilty of endangering the welfare of a child when:
"Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he or she fails or refuses to exercise reasonable diligence in the control of such child to prevent him or her from becoming an abused child,' a neglected child,' a juvenile delinquent' or a person in need of supervision,' as those terms are defined in articles ten, three and seven of the family court act."

In order for an information to be facially sufficient, the information (and/or its supporting depositions) must allege "facts of an evidentiary character" (CPL 100.15 [3]) that "establish, if true, every element of the offense charged" (CPL 100.40 [1] [c]; see People v Dumas, 68 NY2d 729, 731 [1986]). The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, only that the offense be alleged and the specifics set forth so that the defendant can prepare himself for trial, and so that he will not be tried again for the same offense (see People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d 354, 360 [2000]). "An information that . . . fail[s] to allege a complete element [*2]of the charged offense is jurisdictionally defective" (People v Kalin, 12 NY3d 225, 229 [2009]; see also People v Casey, 95 NY2d at 360).

The factual allegations contained in the information do not include any facts from which one can conclude that defendant attempted to fail or refuse to prevent either child from becoming an " abused child,' a neglected child,' a juvenile delinquent' or a person in need of supervision,' as those terms are defined in articles ten, three and seven of the family court act" (Penal Law § 260.10 [2]). Consequently, the information is jurisdictionally defective and must be dismissed.

Accordingly, the judgment of conviction is reversed and the information is dismissed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 07, 2014