People v Perez

[*1] People v Perez 2009 NY Slip Op 50021(U) [22 Misc 3d 1105(A)] Decided on January 12, 2009 Criminal Court Of The City Of New York, New York County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 12, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Maribel Perez, Defendant.



2008NY046914



For the Defense:

Michael Alperstein, Esq.

30 Vesey Street, Suite 100

New York, NY 10007

For the People:

ADA Sharon Appelbaum

New York County District Attorney's Office

80 Centre St. Room 754

Trial Bureau 60

New York, NY 10013

Elisa S. Koenderman, J.

The defendant, Maribel Perez, is charged with four counts of Endangering the Welfare of a Child (PL 260.10 [1]). The defendant has moved in an omnibus motion for dismissal for facial insufficiency and for discovery and a bill of particulars. The defendant's motion is decided as follows.

FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15[3] and 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]).

The requirement of nonhearsay allegations has been described as a "much more [*2]demanding standard" than a showing of reasonable cause alone (People v Alejandro, 70 NY2d at 138-139, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101, [1st Dept 2003]). Thus, "[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, 7 Misc 3d 8, 10 [App Term, 2d Dept 2005]). Where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately 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, 360 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428 [Crim Ct, NY County 2005]). Ultimately," the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122 [A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).

ENDANGERING THE WELFARE OF A CHILD

The instant complaint alleges that on June 22, 2008 at approximately 3:12 a.m., while in an intoxicated condition after having consumed "three (3) bottles of Corona and two (2) forty (40) ounce bottles of Heineken," the defendant left her four children ranging in age from one to thirteen years, alone for ten minutes in an apartment where there was "urine on the floor . . cockroaches crawling on the floor of the apartment, in the kitchen, on the mattresses, and crawling over the sleeping children . . . dirty clothes and laundry all over the apartment . . . dirty pots and pans in the kitchen . . . [and] clorox bleach bottles in the tub of the dirty bathroom." The complaint further alleges that there was no crib for the one-year-old. Lastly, the complaint alleges that the defendant admitted that she was the mother of the children and that she was responsible for their care at the time.

The defendant argues that the "mere leaving of minor children for a period of ten minutes in the presence of a thirteen year old" is insufficient to create the "likelihood of harm" required to plead a facially sufficient charge of Endangering the Welfare of a Child. Further, defendant additionally asserts that the "allegations that the defendant consumed 5 bottles of beer and that the apartment was unclean" do not present a likelihood of harm to the children and do not rise to the level of criminal conduct encompassed by Endangering the Welfare of a Child. Thus she seeks dismissal of the complaint for facial insufficiency.

The People counter that the allegations that the "children [were] left alone in squalid conditions by a mother who was intoxicated" are sufficient to plead the charge of Endangering the Welfare of a Child under Penal Law 260.10 (1).

A person is guilty of Endangering the Welfare of a Child when he [*3]knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child younger than seventeen years old (Penal Law 260.10 [1]). For a defendant to be found criminally liable for Endangering the Welfare of a Child, he "must simply be aware that the conduct may likely result in harm to a child" (People v Johnson, 95 NY2d 368, 372 [2000] [emphasis in the original]). Actual harm to the child need not occur; nevertheless, harm must be likely as a result of the defendant's actions, not merely possible (id. at 371; People v Duenas, 190 Misc 2d 801 [App Term, 2d Dept 2002]). Moreover, the defendant's actions need not be directed at the child who is likely to be harmed (id. at 803, citing People v Johnson, 95 NY2d 368 [2000]).

Endangering the Welfare of a Child may be committed by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time (see People v Keindl, 68 NY2d 410, 421 [1986]). Hence, a defendant may be guilty of this offense by committing "a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the crime" (id.; see also People v Simmons, 92 NY2d 829 [1998]). Similarly, simultaneously coexisting events and circumstances, when taken as a whole, may endanger the welfare of a child under PL 260.10(1), even if each circumstance, when taken in isolation, might not (see People v Hitchcock, 98 NY2d 586, 592 [2002]; see also People v Hogle, 18 Misc 3d 715 [Crim Ct, NY County 2007]).

Conduct which has been held likely to be injurious to the physical, mental or moral welfare of a child encompasses a wide range of behavior. Possessing loaded and unloaded firearms and ammunition which were fully accessible to children (see People v Hitchcock, 98 NY2d 586 [2002]); engaging in domestic violence in front of children against their mother (see People v Johnson, 95 NY2d 368 [2000]); repeatedly directing vulgar remarks at a toddler (see People v Simmons, 92 NY2d 829 [1998]); providing beer to children (see People v Simpkins, 284 AD2d 185 [1st Dept 2001]); bringing a three-year-old child along during a burglary attempt which included a high-speed automobile chase (see People v Jacobsen, 255 AD2d 951 [4th Dept 1998]); sleeping in squalor with a sixteen-year- old in a city bus terminal after running away across state lines and engaging in a sexual relationship with her (see People v Hogle, 18 Misc 3d 715 [Crim Ct, NY County 2007]); a high school baseball coach kissing a fifteen-year-old team member multiple times on the mouth (see People v Valentin, 17 Misc 3d 1132[A], 2007 NY Slip Op 52236[U] [Crim Ct, Kings County 2007]); and driving while intoxicated with children in the car (see People v Cruz, 152 Misc 2d 436 [Crim Ct, NY County 1991]), have all been held to constitute Endangering the Welfare of a Child.

These decisions support the proposition that "the care of children is a sacred trust" (New York v Ferber, 458 US 747, 757 [citations omitted] [1982]) and that the overarching purpose of the child endangerment statute is "to protect children, who because of their age, are unable to protect themselves" (People v Jackson, 127 Misc 2d 754 [County Ct, Chautauqua County 1985]). The role of the court as a protector of young children is "a role as essential as protecting the rights of the accused [because] the courts have a compelling duty to protect the interests of children" (People v Doe, 137 Misc 2d 582, 585 [Crim Ct, NY County 1987]). A court cannot and should not [*4]"await broken bone or shattered psyche before extending its protective cloak around [a] child" (In the Matter of Priscilla Cruz, 121 AD2d 901, 903 [1st Dept 1986]).

Contrary to defendant's contention, the defendant did more than just leave her children alone in an apartment for ten minutes, or drink five bottles of beer while responsible for the care of her children, or keep a dirty house. The defendant isolates each one of these actions from the other, and in so doing, attempts to characterize each action in and of itself as noncriminal, if not wholly innocuous. But the defendant did not simply do one of these things separately and apart from the others; she did all of these things in conjunction, and the entirety of her alleged conduct, both her acts and omissions, provide reasonable cause to believe that she committed the offense of Endangering the Welfare of a Child against each one of her children.

LIKELIHOOD OF PHYSICAL HARM

The factual allegations in the complaint establish that the defendant left her four children (a one-year-old, a six-year-old, an eight-year-old and a thirteen-year-old) alone in their apartment for ten minutes at 3:12 a.m. while she went out onto a New York City street in an intoxicated condition. At that time, the apartment contained unsanitary and unsafe conditions: it was dirty and so infested with cockroaches that the vermin were crawling on the children and on their mattresses as they slept; there was urine on the floor and Clorox bleach bottles exposed in the bathroom tub; and there was no crib for the one-year-old child. These allegations, when considered collectively, demonstrate that the defendant neglected her children to an extent that was likely to be injurious to their physical, mental or moral welfare.

Although so-called "dirty home" cases are most frequently brought to the attention of the courts by way of petitions under the Family Court Act (see In the matter of Lillian H., 254 AD2d 237 [1st Dept 1998]; In the Matter of Noemi B., 273 AD2d 304 [2d Dept 2000]; In the Matter of Brian TT., 29 AD3d 1228 [3d Dept 2006]; In the Matter of Jennifer B., 163 AD2d 910 [4th Dept 1990]), a charge of Endangering the Welfare of a Child for such a case may be properly pled under the Penal Law as well (see People v Ambers, 17 Misc 3d 278 [Crim Ct, NY County 2007]) (allegations of excessive garbage, rubbish, animal waste, insect infestation, and rotting food create facially sufficient charge under PL 260.10[1]), even in the absence of additional allegations, such as leaving the children alone or parental intoxication. Moreover, proper sleeping arrangements are a basic necessity for infants and young children (see In the Matter of Marlon D. Jones, 121 AD2d 318 [1st Dept 1986]), and the risk of harm that is occasioned by the absence of such arrangements is substantial.[FN1] Consequently, leaving the children alone and unsupervised in this environment created a likelihood that any one or more of them might be physically harmed as a result of contact with the [*5]unsanitary and unsafe conditions in the apartment.

This likelihood of physical harm is not diminished if, as defendant claims, she left the children alone for only ten minutes, or by the fact that the children may have been sleeping at the time (as it is alleged they were when observed by the officer who responded to the apartment after encountering the defendant). Any one or more of the children may have awakened and become active at any time while the defendant was gone, and, as is commonly known, household accidents resulting in injury to children including suffocation, falls, drowning, burns and poisoning occur suddenly and swiftly (see Matter of Eric M., 90 AD2d 717 [1st Dept 1982]) (four-year-old child left home alone for ten minutes started a fire), often with fatal consequences.[FN2]

Moreover, the actual length of time during which the defendant left the children unattended is but one of many factors relevant in determining whether or not they have been endangered (see People v Reyes, 20 Misc 3d 1129[A], 2008 NY Slip Op 51665[U] [Crim Ct, NY County 2008])(factors to consider when assessing criminal liability under PL 260.10[1] include the age and maturity of the child, the length of time involved, and the reason why the child was left alone) and is, more importantly, an issue of fact appropriately reserved to the trial court and "particularly unsuitable for determination on motion" (id. at 2; see People v Aquino, 2002 NY Slip Op 50223[U] [App Term, 1st Dept]; see also People v Charvat, 8 Misc 3d 13, [App Term, 2d Dept]; People v Watson, 182 Misc 2d 644 [Crim Ct, Bronx County 1999]). Furthermore, leaving a young child unattended for any length of time, even in the absence of other factors has been found to constitute a facially sufficient charge under PL 260.10(1), (see People v Watson, 182 Misc 2d 644 [Crim Ct, Bronx County 1999]; see also People v Afia, 17 Misc 3d 734 [Crim Ct, Kings County 2007]), presumably because of the inarguable and overwhelming likelihood of harm attendant in such misconduct.

In this case, the risk of an accident causing harm to the children was significant given the hazards present in the apartment: urine on the floor, bleach bottles in the tub, and cockroaches crawling on the children. Accordingly, the likelihood of physical harm resulting from the defendant's conduct in leaving the children unattended under these circumstances was real and substantial, not merely speculative.

In addition to creating a likelihood of physical harm to the children by leaving them alone in the apartment, the defendant also created a likelihood of harm by being with them in the apartment while she was intoxicated. At the time the defendant was apprehended on the street, an asserted ten minutes after she had left her children alone in their apartment, the defendant allegedly was so intoxicated that her breath had the odor of alcohol, her eyes were watery and bloodshot, her face was flushed and her speech was slurred. If the defendant was intoxicated to the extent of exhibiting these [*6]physical symptoms ten minutes after leaving her children alone in the apartment, it is reasonable to infer that the defendant was similarly intoxicated ten minutes earlier while she was with her children in the apartment.

As a matter of common knowledge, intoxication to this extent negatively impacts an individual's judgment, cognition, perception and coordination. "Intoxication is not an unfamiliar concept. It is intelligible to the average person (Richardson, Evidence § 364, pp 332-333). It is familiar to the law and has long been held to mean an incapacity to perform various mental and physical acts which an average person would be able to do" (People v Cruz, 48 NY2d 419, 427 [1979]). Furthermore, a defendant's watery, bloodshot eyes, slurred speech and breath smelling of alcohol are "indices of common-law intoxication" (People v Gristina, 186 Misc 2d 877, 879 [Crim Ct, NY County 2001]) that not only support an inference of intoxication, but have beenfound to support proof of intoxication beyond a reasonable doubt (People v Lundell, 24 AD3d 569 [2d Dept 2005]); and when a defendant exhibits these same physical symptoms while driving with children in a motor vehicle, such conduct has been found to constitute Endangering the Welfare of a Child (People v Cruz, 152 Misc 2d 436 [Crim Ct, NY County 1991]). Accordingly, if a defendant's physical symptoms are such that the defendant would be "incapable of giving that attention and care to the operation of [an] automobile that a [person] of prudence and reasonable intelligence would give" (Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 62A, Vehicle and Traffic Law § 1192), it is clearly reasonable to infer that such an intoxicated defendant would be likewise incapable of giving that same degree of attention and care to the supervision and protection of minor children.

Thus, it is reasonable to conclude that the defendant's ability to effectively supervise the children and protect them from harm was significantly compromised as a result of being so intoxicated. Defendant's impaired ability to supervise and protect her children, who by virtue of their age and immaturity were unable to fully protect themselves, increased the risk that they would suffer injury or illness due to the unsafe and unsanitary conditions in the apartment. Finally, the likelihood of physical harm from leaving the children alone, as well as from being with them while intoxicated, in an apartment containing unsafe and unsanitary conditions is so obvious it reasonably may be inferred that the defendant was aware of it.

LIKELIHOOD OF MENTAL OR MORAL HARM

Defendant's conduct in exposing her children both to the squalid conditions in the apartment and her own state of intoxication also created a likelihood of harm to their mental or moral welfare. While the term "moral," as used in PL 260.10, is not defined by the statute, and the case law is similarly silent, it is clear that "[t]hough previous prosecutions under section 483 [subsequently replaced by PL 260.10] have dealt almost exclusively with sexual offenses or morals cases, it is evident from an examination of the statute that it is intended to be broader in scope. The intent is to protect the physical health, morals and well-being of children and this solicitude relates not only to sexual offenses but to other dangers as well" (People v Bergerson, 17 NY2d 398 [1966]) (affirming conviction of defendant for endangering the welfare of a child by providing beer to nine teenaged boys). [*7]

As defined in Black's Law Dictionary (7th ed 1990), "morality" refers to "conformity with recognized rules of correct conduct." Additionally, "[i]n circumstances wherein the obligation of parents toward their children may be uncertain, it is clear that our courts recognize that parents have not only the right but the obligation to provide moral supervision and guidance for their children" (People v Fitzgerald, 101 Misc 2d 712 [County Ct, Westchester County 1979]).Thus, the statute embodies an expectation that adults entrusted with the care of children must, to the extent possible given our flawed nature as human beings, model correct behavior and lead by example. There can be no question that leaving unsupervised minor children to sleep in squalor while one goes out at a late hour in an intoxicated condition does not conform to "the recognized rules of correct conduct" in our society, and that doing so provides neither good example nor guidance as to correct behavior. "Neglect [or endangerment] of children does not mean a failure to provide children with the necessaries of life. It means infinitely more than that....That which goes to the spiritual and moral life of children is equally important, and the children are entitled to it" (In the Matter of Anonymous, 37 Misc 2d 411 [Fam Ct, Rensselaer County 1962]).

Clearly, the "confluence of events and circumstances" (see People v Hitchcock, 98 NY2d at 592) as described in the factual allegations in the complaint provide reasonable cause to believe that the defendant knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of her minor children. Thus, the accusatory instrument comports with CPL100.40(1)(b). Nevertheless, the complaint fails to contain sufficient non-hearsay allegations to establish every element of the crime as required under CPL100.40(1)(c).Endangering the Welfare of a Child is properly charged only where the alleged victim is younger than seventeen years old; although the complaint alleges the dates of birth of each of the four complainants, implicitly establishing their ages as one, six, eight and thirteen years, this allegation remains uncorroborated hearsay.

Although the complaint does contain admissions from the defendant that she is the children's mother and is responsible for their care, because of the way in which the complaint is drafted, the allegations as to the dates of birth of the complainants cannot be attributed to her. The defendant's admissions concerning her relationship and responsibility toward the complainants are contained in the fourth factual paragraph, and are made by the deponent officer as "informed by" the defendant. The allegations regarding the complainants' dates of birth are contained in the third factual paragraph and are made directly by the deponent officer. Had the complaint been drafted such that the allegations as to the complainants' dates of birth were made by the deponent officer as "informed by" the defendant, their admitted mother, they would not be hearsay (Prince, Richardson on Evidence § 8-201, et seq. [Farrell 11th ed]). Since, however, these allegations are made by the deponent officer, who was not present at the complainants' birth, they are rank hearsay. Moreover, no birth certificate, or other supporting deposition, has been filed to convert these allegations to non-hearsay. Accordingly, the complaint may not be deemed a facially sufficient information.

The People are given leave to supersede the instant complaint with an accusatory instrument which contains non-hearsay allegations as to the complainants' [*8]age, or to file an appropriate supporting deposition to convert the hearsay allegations as to their age. At this juncture, the defendant's remaining requests are premature. Should the People file a facially sufficient information, the defendant may renew her motions for discovery and a bill of particulars.

This constitutes the decision and order of the Court.

Dated:January 12, 2009

New York, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1: A study published in 2000 found that infants who died suddenly and unexpectedly were found in unsafe sleeping positions (e.g., prone position, head or face covered by soft bedding) or in environments not specifically designed for infants (e.g., adult beds, couches, cushioned chairs or co-sleeping with one or more persons) (Schnitzer, Prevention of Unintentional Childhood Injuries, American Family Physician, Volume 74, No. 11 [Dec. 2006]).

Footnote 2: Each year in the United States, childhood injuries are responsible for approximately 16,000 deaths, and more than 70 percent of these fatalities are the result of unintentional injuries. It is estimated that more than 20 million nonfatal unintentional injuries to children occur annually in the United States (Schnitzer, Prevention of Unintentional Childhood Injuries, American Family Physician, Volume 74, No. 11 [Dec. 2006]).