People v Filangeri (Giovanni)

[*1] People v Filangeri (Giovanni) 2006 NY Slip Op 52278(U) [13 Misc 3d 142(A)] Decided on November 27, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2004-1516 K CR. NO. 2004-1516 K CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

Giovanni Filangeri, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John Carter, J.), rendered September 9, 2004. The judgment convicted defendant, upon a jury verdict, of endangering the welfare of a child and disorderly conduct.

Judgment of conviction affirmed.

Defendant was charged with attempted assault in the third degree, reckless endangerment in the second degree, endangering the welfare of a child, and three counts of disorderly conduct. The accusatory instrument alleged, in pertinent part, that when a traffic enforcement officer issued defendant a ticket for blocking a bus stop on March 18, 2003, defendant spat in her face and stated, in substance, "You stupid bitch, I hope you die, suck my dick," thereby causing passersby to surround the officer. Defendant then drove his vehicle "in front of [the officer's vehicle] and slammed on [his] br[akes], causing the [officer] to rear-end the defendant's vehicle." It was further alleged that defendant's daughter, whose date of birth is January 4, 2002, was sitting in the back of defendant's vehicle. Following a jury trial, defendant was convicted of endangering the welfare of a child (Penal Law § 260.10 [1]) and disorderly conduct (Penal Law § 240.20 [3]).
In order to convict defendant of endangering the welfare of a child (Penal Law § 260.10 [1]), the People had to prove, beyond a reasonable doubt, that defendant "knowingly acted in a [*2]manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." On appeal, defendant contends that the verdict convicting him of said charge is inconsistent in light of his being found not guilty on all the remaining charges except for one count of disorderly conduct. However, this contention is unpreserved for appellate review since defendant failed to raise it prior to the discharge of the jury (see People v Satloff, 56 NY2d 745 [1982]; People v Tucker, 55 NY2d 1 [1981]). In any event, said contention has no merit because his acquittal on the other charges, including reckless endangerment in the second degree which only involved the officer, as charged to the jury, was not conclusive as to a necessary element of the crime of endangering the welfare of a child, for which he was convicted (see Tucker, 55 NY2d at 7). In acquitting defendant of attempted assault in the third degree, the jury could have found that in the manner in which defendant drove his vehicle he attempted to cause property damage to the officer's vehicle but did not intend to cause physical injury to the officer. Similarly, the jury could have found that by slamming on his brakes, defendant intended to cause property damage to both his vehicle and the officer's vehicle, thereby knowingly acting in a manner likely to be injurious to the physical and mental welfare of his own infant child in the rear seat.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that, contrary to defendant's contention, said evidence was legally sufficient to establish defendant's guilt of endangering the welfare of a child and disorderly conduct beyond a reasonable doubt, and the verdict was not against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490 [1987]).

We note that defendant's claim of jury charge error concerning the disorderly conduct charge is unpreserved for appellate review since he failed to advance said contention at trial (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20 [1995]). In any
event, a review of the disorderly conduct charge indicates that the jury could not have been misled or confused by said charge. Defendant's remaining contentions lack merit.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., concurs in part and dissents in part in a separate memorandum.

Weston Patterson, J., concurs in part and dissents in part and votes to modify the judgment of conviction by vacating defendant's conviction for endangering the welfare of a child in the following memorandum:

While I concur with the majority in upholding defendant's conviction for disorderly conduct, I cannot agree that the evidence was legally sufficient to support defendant's conviction for endangering the welfare of a child.

To sustain such a conviction, the People bear the burden of showing that defendant was aware that his conduct was likely to result in harm to the child (see People v Hitchcock, 98 NY2d 586, 591 [2002]; People v Simmons, 92 NY2d 829, 830 [1998]). Such harm must be "likely to occur, and not merely possible" (People v Hitchcock, 98 NY2d at 591). Moreover, defendant must have "actual knowledge" of the injurious consequences of his actions; that he "should have [*3]known" of such consequences is not enough (see People v Chase, 186 Misc 2d 487, 488 [App Term, 9th & 10th Jud Dists 2001]).

Here, defendant's single altercation with a traffic enforcement officer, while inappropriate, did not rise to the level of child endangerment. At the time of the altercation, defendant was outside of his vehicle while his infant daughter remained inside the vehicle. His vulgar conduct was neither directed at the child, nor did it occur over a prolonged period in the child's presence (compare People v Johnson, 95 NY2d 368 [2000] [upholding conviction for child endangerment where defendant brutally beat and verbally abused mother over a 10-hour period while her children were confined in an adjacent room]; People v Simmons, 92 NY2d 829, supra [upholding conviction for child endangerment where defendant, a trained teacher, repeated her vulgar remarks over a period of weeks to a child who reacted to the remarks]). In these circumstances, it cannot be said, beyond a reasonable doubt, that defendant acted knowingly or that his conduct was likely to harm the child. Indeed, convictions for child endangerment have been reversed under more egregious circumstances (see e.g. People v Frey, 2002 NY Slip Op 40273[U] [App Term, 9th & 10th Jud Dists] [reversing defendant's conviction for endangering the welfare of a child, where defendant left a 5-year-old and two infants alone for 45 minutes in a vehicle parked at a shopping center]; People v Chase, 186 Misc 2d 487, supra [reversing defendant's conviction for endangering the welfare of a child, where defendant, impaired by alcohol, drove on the shoulder of the road while his infant child was in the rear of the car]).

To the extent the majority suggests that the totality of defendant's conduct including his alleged assault on the traffic enforcement officer and his reckless driving was likely to have caused the child harm, I disagree. By acquitting defendant of the charges related to this conduct, the jury apparently rejected the testimony in support of those charges. Accordingly, I would vote to modify the judgment of conviction by vacating defendant's conviction for endangering the welfare of a child and dismissing that count of the accusatory instrument.
Decision Date: November 27, 2006