People v Ramnauth (Prakash)

[*1] People v Ramnauth (Prakash) 2005 NYSlipOp 50968(U) Decided on June 24, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-1368 N CR

The People of the State of New York, Appellant,

against

Prakash Ramnauth, Respondent.

Appeal by the People from an order of the District Court, Nassau County (D. Jaffe, J.), entered on September 7, 2004, granting defendant's motion to dismiss the information for facial insufficiency.

Order unanimously reversed on the law, defendant's motion to dismiss the accusatory instrument denied, information reinstated and matter remanded for all further proceedings.

An accusatory instrument must contain non-hearsay allegations of an evidentiary nature providing reasonable cause to believe defendant committed the offense charged (CPL 100.15 [3]; 100.40 [1] [c]; People v Alejandro, 70 NY2d 133, 137 [1987]). For pleading purposes, the factual allegations must be sufficiently evidentiary in character and tend to support the charge (see People v Allen, 92 NY2d 378, 385 [1998]). The allegations need not establish guilt beyond a reasonable doubt since the prima facie requirement in a pleading is not the same as the burden of proof required at trial (see People v Henderson, 92 NY2d 677, 680 [1999]). Questions concerning the weight of the proof is to be deferred until trial (People v Jennings, 69 NY2d 103, 115 [1986]). In the instant case, the factual allegations contained in the information and the supporting deposition are sufficient for pleading purposes to establish that defendant knowingly engaged in conduct in a manner likely to be injurious to the moral welfare of a child less than seventeen years old. The intent to commit a crime may be implied by the act itself, or it may be established from the surrounding circumstances (see People v Bracey, 41 NY2d 296, 301 [1997]; People v McGee, 204 AD2d 353 [1994]). Moreover, whether the child was actually harmed is not an element of the crime charged (see People v Simmons, 92 NY2d 829, 830 [1998]). Contrary to the opinion of the court below, endangering the welfare of a child may be based upon a single act or multiple acts over time (see Donnino, Practice Commentaries, [*2]McKinney's Cons Laws of NY, Book 39, Penal Law § 260.10, at 30).

We note that defendant's argument that his remark to the child constituted protected speech is without merit (see Simmons, 92 NY2d at 830; People v Rice, 17 NY2d 881 [1966]).
Decision Date: June 24, 2005