People v Griffith
Annotate this CaseDecided on February 18, 2005
Criminal Court, Kings County
The People of the State of New York
against
Ronald Griffith, Defendant.
2004KN0059599
Ruth E. Smith, J.
Defendant is charged with Endangering the Welfare of a Child (PL §260.10[1]). He now moves to dismiss the accusatory instrument on the ground of facial insufficiency. Defendant's motion is denied in its entirety.
FACTS
In their superseding information, the People allege that defendant committed the aforementioned crime under the following circumstances:
"...that on or about and between February 01, 2004 12:00AM and June 30, 2004 11:59 PM at 720 Mother Gaston Blvd ***
The deponent is informed by Dawn Perkins that, during the above time and place, at the above location, informant observed the defendant in the evening hours, in the common living room of the above location, with defendant's penis exposed, and the defendant was masturbating his penis with his hands.
The deponent is further informed by the informant that at the above time, informant's nephew, Justin [C.], was present at the above location, in another room and awake and that the defendant had reason to know this.
The deponent is further informed by the informant that during the above time and place, deponent observed defendant lying in bed with informant's nephew, Justin [C.], and at that time, defendant had his hand
on defendant's pants and was touching his penis
(Superseding Information dated November 26, 2004).
DISCUSSION
Defendant contends that the complaint is insufficient since it "fails in all aspects to illustrate that any crime or other act was done by the defendant with his focus toward the child. There are no facts given that would support the contention that the defendant knowingly acted in a manner that would be dangerous to the child" (Affirmation of Jonathan B. Strauss at 3-4). In that regard, he urges that the factual allegations do not show that this 2-year-old child was even aware of defendant's conduct or that he was upset or disturbed by it. The People counter that the accusatory instrument alleges sufficient facts and that defendant's arguments are issues for trial. For the reasons that follow, defendant's motion is denied.
An information is facially sufficient if it contains facts of an evidentiary character tending to support every element of the charges and defendant's commission thereof (CPL §100.15[3]; People v Dumas, 68 NY2d 729 [1986]). Where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately [*2]detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 390 [2000]; People v Konieczny, 2 NY3d 569 [2004]).
Indeed, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged..." People v Sylla, Misc 3d , 2005 WL 263719 [App. Term 2005]). Thus, the court must not rely on "external factors to create jurisdictional defects not evident from the face of the document" (People v. Konieczny, 2 NY3d at 576). The complete omission of an element from the face of an accusatory instrument, however, is a jurisdictional defect that requires dismissal (CPL §100.40[1][b],[c]; Konieczny, at 576; People v. Inserra, 2 NY3d 741 [2004]; People v Hall, 4 Misc 3d 60 [App. Term 2d Dept. 2004]).
The prima facie case requirement of an accusatory instrument is a lower threshold than the burden of proof beyond a reasonable doubt required at trial (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101, [1st Dept. 2003]). If the evidence supporting the charges is circumstantial, it will be sufficient only if the allegations, and the logical inferences which flow from them, supply proof of every element of the crimes charged, and defendant's commission thereof (see People v Cooks, 230 AD2d 683, 684 [1st Dept.], lv denied 89 NY2d 863 [1996] [sufficiency of evidence before the Grand Jury]). The People, however, are still required to prove these allegations at trial by the much more stringent burden of proof beyond a reasonable doubt (Inserra, supra).
A person is guilty of endangering the welfare of a child 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" (PL §260.10[1]).
"Actual harm to the child need not result for liability under the statute to attach, it being sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child" (People v Simmons, 92 NY2d 829, 830 [1998]). Indeed, where the law imposes criminal liability for knowingly disregarding a risk, "it does not require a particular outcome or actions aimed at a specific individual; the crime is solely defined by the risk of injury produced by the conduct" (People v Johnson, 95 NY2d 368, 372 [2000]).
Here, the People allege that defendant endangered the infant complainant by a course of conduct whereby he masturbated on two occasions with disregard for the close proximity of the child. On one occasion, defendant allegedly masturbated, with his penis exposed, in a common area of the residence despite knowing that the child was awake and could therefore walk into the room and observe his actions. On the second occasion, defendant allegedly laid in a bed next to the infant and masturbated with his hand on his pants. These facts sufficiently establish every element of the crime alleged and the defendant's commission thereof (CPL §100.40[1][b],[c]; Inserra; supra). By his acts of masturbating where he could be readily observed by the two-year- old infant, defendant knowingly created a likely risk of injury to the child (Johnson, 95 NY2d 368; Simmons, 92 NY2d 829).
Furthermore, a two-year-old child, who is in a formative stage, can be the victim of injury as contemplated by PL §260.10 (Simmons, supra)(23-month-old subject to vulgar sexual remarks by day care teacher). That the information does not allege that the child specifically saw defendant masturbating is of no moment for facial sufficiency purposes. It is defendant's reckless creation of risk to the infant that is proscribed (id.).
Nor is defendant aided by his complaint about the "vagueness" of the time frame involved, i.e., February 1 through June 30, 2004. The crime charged here, "is [one] which may be characterized as a continuing offense over time, and does not necessarily contemplate a single act" (id. At 831). Here, the 4-month period is not so lengthy "as to render it virtually impossible for the defendant to prepare a defense and was not so excessive, considering the age of the victim and the nature of the crime, as to be unreasonable" (People v Weldon, 191 AD2d 662 [2d Dept.], lv denied 82 NY2d 761 [1993]; People v. Watts, 81 NY2d 772, 783-784 [1993][Watts I]; [*3]People v Watts, 84 NY2d 948, 951 [1994] [Watts II]).
CONCLUSION
Based upon the foregoing, defendant's motion to dismiss for facial insufficiency is denied.
Dated: Brooklyn, New York
February 18, 2005
Ruth E. Smith
J.C.C.
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