People v Ostrin

[*1] People v Ostrin 2005 NY Slip Op 51201(U) Decided on July 25, 2005 Criminal Court, Kings County Wilson, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2005
Criminal Court, Kings County

The People of the State of New York,

against

Steven Ostrin, Defendant.



2005KN017284

John H. Wilson, J.

Defendant is charged with Harassment in the Second Degree (CPL Sec. 240.26(1)), a violation , and Endangering the Welfare of a Child (PL Sec. 260.10), a Class A misdemeanor. As part of his omnibus motion, Defendant has moved to dismiss the Criminal Court Complaint pursuant to CPL Sec. 170.30(1)(a), CPL Sec. 170.35(1)(a), CPL Sec. 100.15 and CPL Sec. 100.40, asserting that the People's complaint is facially insufficient. Defendant also asserts violation of his rights under the First, Fifth, Sixth and Fourteenth Amendments of the Unites States Constitution.

In opposition to Defendant's motion, the People filed a response dated June 20, 2005 asserting that these charges were sufficiently plead.

Defendant's motion is denied for the reasons stated below.

FACTUAL STATEMENT

Defendant, a teacher at Brooklyn Tech High School, is alleged in the Criminal Court complaint to have made several statements of a sexual nature to the complainant, one of his female students. These statements allegedly include a request for the complainant to be the Defendant's "little sex slave," and a request for a "strip tease."

Defendant is also alleged to have placed his hands on the complainant, kissed and hugged her, and asked her to quantify her love for the Defendant.

Reportedly, at the time of the alleged offense, the complainant was 15 years old.

Defendant contends that his alleged actions would not create a likelihood of harm to the minor complainant.

LEGAL ANALYSIS RE: FACIAL SUFFICIENCY [*2]

CPL Sec. 100.15 provides that every accusatory instrument must 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 two things; 1) each and every element of the offense charged, and 2) the Defendant's commission of said crime. If both 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).

It must be emphasized that 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, there can be no dispute that the factual allegations contained in the misdemeanor information before this Court clearly support the charges that have been brought against this Defendant.

CPL Sec. 260.10(1) states that a defendant 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..." It is inconceivable to this Court that the actions and comments attributed to the Defendant could be viewed as anything but injurious to the moral welfare of the 15 year old complainant.

Further, under CPL Sec. 240.26(1), a person is guilty of Harassment in the Second Degree when, "with intent to harass, annoy or alarm another person," he does "subject such other person to physical contact." The complaint states that the Defendant did "hug informant, did place his hands on informant's arms, (and) did kiss informant on the cheek." The complainant states that these actions "did cause informant to become annoyed and alarmed." Thus, it is beyond any dispute that these allegations are facially sufficient.

Defendant's reliance upon People v. Hitchcock, 98 NY2d 586, 750 NYS2d 580 (2002) and People v. Simmons, 92 NY2d 829, 677 NYS2d 58 (1998) is misplaced. Hitchcock was a review of the sufficiency of the evidence presented against two defendants in two separate trials. While holding that "[c]riminal liability for endangering the welfare of a child is imposed when a defendant engages in conduct knowing it will present a 'likelihood' of harm to a child," 98 NY2d at 590, the Court of Appeals defined "likelihood" as "an awareness of the potential for harm." 98 NY2d at 590.[FN1] [*3]

Defendant is alleged to have asked the complainant to serve as his "sex slave" and to perform a "strip tease." The only reasonable view of the People's allegations is that Defendant's alleged conduct, in and of itself, exhibits an awareness of the likelihood of harm to the complainant's moral welfare.

In Simmons, the Defendant, a teacher at a day care center, was alleged to have repeatedly directed "vulgar remarks of a sexual nature" to a child less than 2 years old. In affirming the jury's guilty verdict, the Court of Appeals held that "the totality of defendant's remarks...would have combined to create a likelihood of harm." 92 NY2d at 831.

The dissent in Simmons by Judge Titone did not disagree with the rationale for the holding of the majority. His objection was to the application of that reasoning to comments directed at such a young child. In language that is very relevant to our analysis here, Judge Titone stated "although this Court and the lower courts have recognized that mere speech of a sexual nature to children can support a conviction for endangering the welfare of a child, in those cases an inference of the likelihood of harm could be made because the child was of such an age and cognitive ability that he or she could have understood the speech or the speech requested some improper act on the part of the child that could have likely followed the request." 92 NY2d at 831-832, and cases cited.

Given that the complainant herein was allegedly 15 years old at the time of the alleged incident, Judge Titone's reasoning is particularly applicable to the situation presented herein.

Further, it has been held that degrading and abusive verbal comments directed towards a young girl are in and of themselves sufficient to constitute the crime of endangering the welfare of a child. See, People v. Doe, 137 Misc 2d 582, 585, 521 NYS2d 636 (Crim. Ct., NY Cty., 1998). Therefore, for these reasons, Defendant's motion to dismiss the Criminal Court Complaint is denied.[FN2]

OTHER RELIEF REQUESTED

Defendant has also moved for suppression of any statements he allegedly made to law enforcement personnel, or any other public servant. This motion is granted to the extent of ordering a pretrial hearing at which the admissibility of Defendant's statements will be considered.

Said hearing, as well as a hearing to determine the admissibility of any of Defendant's prior criminal history, prior bad acts or immoral conduct will be conducted by the trial court prior to any trial of this matter.

People are directed to provide pre-trial disclosure of all materials subject to CPL Sec. [*4]240.20, as well as all exculpatory materials, at the appropriate time prior to trial of this action.

All other arguments advanced by Defendant in his omnibus motion dated May 19, 2005 have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New York July 25, 2005

_______________________________ Hon. John H. Wilson, JCC Footnotes

Footnote 1:It is not required that the defendant have directed his conduct towards the child. See, People v. Johnson, 95 NY2d 368, 718 NYS2d 1 (2000). All that is necessary under the statute is that the defendant be aware that his conduct "may likely result in harm to a child." Hitchcock, 98 NY2d at 591. Actual harm to the child need not have occurred. Defendant must "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." See, Simmons, 92 NY2d at 829.

Footnote 2: Again, it should be emphasized that this Court has only been called upon to decide whether the People's factual allegations support the charges herein. Whether or not the People will be able to establish the Defendant's guilt of these charges beyond a reasonable doubt through the testimony of their complainant is a matter left to the trier of fact if and when this matter reaches trial.