People v Reyes
Decided on August 6, 2008
Criminal Court of the City of New York, Kings County
The People of the State of New York, Plaintiff,
Carmen Reyes, Defendant.
Charles J. Hynes, District Attorney (Shea Scanlon Lomma, Esq. of counsel), for the People.
Jonathan B. Strauss, Esq., for Defendant.
Michael Gerstein, J.
At issue in this case is whether the Defendant may be charged with Endangering the Welfare of a Child (PL § 260.10) for allegedly leaving her four year old child in an apartment, unsupervised, for at least fifteen minutes.
Defendant, in a motion to dismiss the Complaint for facial insufficiency pursuant to
CPL §§ 170.30(a), 170.35 and 100.40, argues primarily that the People's complaint is insufficient as a matter of law because 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. The People oppose the motion to dismiss.
We hold that the issue of whether there is some minimum time that a child must be left alone
in order to hold a defendant liable under PL § 260.10(1) is ill-suited for resolution on a
motion to dismiss for facial insufficiency. Among the factors which would appear appropriate for
consideration are the age of the child, the length of time involved, the maturity of the particular
child, and the reason why the child was left alone. While the statute, by its terms, protects all
children under seventeen years of age, no one would think of applying the same rule to a sixteen
year old as to an infant left home alone. Nor would we think it appropriate to apply the same
standard to a parent or other guardian who leaves a young child alone for a few minutes to
discard the garbage, as we would apply to one who left the child unsupervised for hours while the
adult went to a party. Moreover, it might be shown that a specific child is particularly mature, or
immature, for their age. (See People v.
Afia, 17 Misc 3d 734 (Crim. Ct., Kings County, 2007), where the seven year old
complainant was a "special needs" child). Factual issues of this nature render "home alone" cases
under PL § 260.10(1) particularly unsuitable for determination on motion, and except in the
most extreme cases, are best reserved for trial.
I. Factual and Legal Background of the Case
The relevant parts of the complaint allege that: [*2]
On or about March 11, 2008 at approximately 06:00 PM
at 393 Dumont Avenue County of Kings... informant, Detective Standiford of the Kings County
District Attorney's office...observed U.R. age four years old born April 22, 2003 alone in
apartment 6G in the above location.
Deponent is further informed by informant that informant waited for the Defendant
for approximately fifteen minutes before Defendant returned to said
apartment.Deponent is further informed
by Defendant's own statement that Defendant went to the store to get groceries for dinner and left
U.R. sleeping because Defendant did not want to awaken
U.R.Deponent is informed by
Defendant's own statement that Defendant is U.R's mother and U.R. is four years old and was
born on April 22, 2003.
II. The Complaint is Facially Sufficient
The Defendant's motion to dismiss the complaint for facial insufficiency is denied because this Complaint presents a prima facie case of Child Endangerment.
In order to be sufficient on its face, a misdemeanor complaint must allege facts sufficient to provide reasonable cause to believe that the defendant committed the offense charged. CPL § 100.40(4)(b); People v. Dumas, 68 NY2d 729, 497 NE2d 686, 506 NYS2d 319 (1986). The allegations must be non-hearsay. People v. Alejandro, 70 NY2d 133, 511 NE2d 71, 517 NYS2d 927 (1987); CPL § 100.40(1)( c).
PL § 260.10(1) Endangering the Welfare of a Child, provides: "[a] person is guilty of endangering the welfare of a child when: "1. [He or She] knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." The term "knowingly" is further defined in PL § 15.05(2) as follows: "[a] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists."
PL § 260.10 requires proof "that a person knowingly act ... in a manner likely to be
injurious to the physical, mental or moral welfare of a child." People v. Cenat, 176 Misc
2d 39, 671 NYS2d 578 (Crim. Ct. Kings Co. 1997), citing People v. Doe, 137 Misc 2d
582, 521 NYS2d 636 (Sup. Ct. NY Co.1987). While the likelihood of harm may be inferred from
the circumstances surrounding the child, the People are required to prove actual knowledge.
People v. Simmons, 221 AD2d 994, 635 NYS2d 373 (4th Dept. 1995), app.
denied, 88 NY2d 885, 668 NE2d 431, 645 NYS2d 460 (1996)
A. TheComplaint is facially sufficient on the issue of Defendant's knowledge
A prima facie case of Child Endangerment was found where the defendant left her five year old child home unsupervised, with a seven month old infant, for an unspecified amount of time. The children were discovered by a police officer for whom the five year old opened the door and informed the officer that no one else was in the apartment. People v. Aquino, 2002 NY Slip Op 50223U (App. Term, 1st Dept 2002). The Complaint here alleges that the Defendant left her four year old child home alone, for at least fifteen minutes, during which time the Defendant's child opened the door to strangers. Although the complaint in Aquino did not specify the length [*3]of time the children were left unattended, the court found that its absence did not render the complaint facially insufficient, but merely constituted a factual issue which is appropriately left for trial. Id. at 659. This Complaint similarly presents a prima facie case of Child Endangerment.
The degree of culpability required is actual knowledge; a defendant cannot be found guilty of
endangering a child based on what defendant should have known. People v. Simmons, supra
. However, the likelihood of harm may be inferred from the circumstances surrounding the
child. Id. See also People v. Scutt, 19 AD3d 1131, 796 NYS2d 816 (4th Dept. 2005) (it
could have been inferred that defendant was aware that defendant's conduct in ordering his
daughter to leave defendant's home and in failing to provide the daughter with food and shelter
created likelihood of harm to his daughter); People v. Snyder, 306 AD2d 949, 2003 NY
Slip Op. 15211) (defendant's intent to cause physical injury could be inferred because she ordered
her five year old son to drink bleach as a punishment for failing to clean his room).
The extent to which the Endangerment statute covers the conduct of leaving a child at home alone has been the subject of considerable discussion by criminal courts. People v. Watson, 182 Misc 2d 644, 700 NYS2d 651 (Crim. Ct. Bronx Co. 1999). Some courts have been reluctant to impose liability when a young child is left alone for a brief time, disparaging the conduct as "bad parenting," but stopping short of finding it criminal. See People v. Seward, 173 Misc 2d 1020, 1021(Mt. Vernon City Ct., 1997) (defendant accused of leaving her six year old child at home alone for half an hour); see also Augustine v. Berger, 88 Misc 2d 487, 388 NYS2d 537 (Sup. Ct. Suffolk Co. 1976) (defendant's leaving her one and two year old children alone for half hour did not constitute neglect). But see People v.Watson, supra (information alleging that defendant left a seven year old child home alone for two and a half hours sufficient on its face); People v.Afia, supra (finding defendant guilty of Attempted Endangering the Welfare of a Child based on defendant school bus attendant's act in leaving a seven year old "special needs" child alone and unattended in a school minibus); People v. Charvat, 8 Misc 3d 13, 797 NYS2d 697 (2d Dept. 2005) (defendant failed to adequately supervise a child left at her home, where defendant was allegedly providing unlicensed child care services).
It is reasonable to imagine the wide range of harm that might befall a four year old child left
alone in an apartment. See Matter of Eric M., 90 AD2d 717, 455 NYS2d 780 (1st Dept.
1982) (four year old child left home alone started a fire; mother stated that she was only away for
10 minutes). We can also imagine many other ways that a young child or infant left alone for as
short a time as fifteen minutes might suffer harm. Accordingly, we believe that the complaint is
facially sufficient on the issue of the Defendant's knowledge, although ultimately this issue is
more appropriately determined at trial than on a facial insufficiency motion.[FN1]
B.The Complaint is not required to allege actual harm
Defendant further argues that the Complaint fails to indicate whether the
child was [*4]physically upset or to what type of danger the child
was subject as a result of the Defendant's actions. The statute does not require the People to
prove that the defendant's actions caused actual harm to the child. The Court of Appeals has held,
"[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 (i.e. with an awareness of the
potential for harm)." People v. Hitchcock, 98 NY2d 586, 591, 780 NE2d 181, 183, 750
NYS2d 580, 582 (2002), citing People v. Johnson, 95 NY2d 368, 740 NE2d 1075, 718
NYS2d 1 (2000).
C.The Court of Appeals has overruled People v. Suarez
Defendant, relying on People v. Suarez, 133 Misc 2d 762, 508
NYS2d 134 (Sup. Ct., New York County, 1986) also argues that the Complaint fails to allege
that any crime or other act was done by the Defendant directed toward the child, so the complaint
is insufficient as a matter of law. However, in People v. Johnson, supra , the New York
Court of Appeals overruled Suarez, stating, "[t]o the extent that some courts have
determined that section 260.10(1) requires that a defendant's conduct must be directly focused
upon a child, ...those decisions are not to be followed." 95 NY2d at 373. It is now well settled
that the People need not prove that the defendant committed an affirmative act directed at a child.
People v. Hitchcock, supra ;
People v. Berrios, 10 Misc 3d 1073(A), 2006 NY Slip Op. 50055 (U) (Crim. Ct., New York County, 2006).
III. ConclusionAccordingly, the issues raised by Defendant being more appropriately determined at trial, Defendant's motion to dismiss the Complaint for facial insufficiency is denied.
This constitutes the decision and order of the Court.
Dated:August 6, 2008
Brooklyn, New York
Footnote 1:Assertions by Defendant that the likelihood of harm befalling the child was diminished, if not extinguished, by the fact that the child was allegedly asleep at the time Defendant left, or that Defendant was within earshot of her child at all times, also raise issues most appropriately dealt with at trial.