People v Berrios

[*1] People v Berrios 2006 NY Slip Op 50055(U) [10 Misc 3d 1073(A)] Decided on January 18, 2006 Criminal Court Of The City Of New York, New York County Coin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2006
Criminal Court of the City of New York, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

LUIS BERRIOS, Defendant.



2005NY048349



The prosecution was represented by Assistant District Attorney Matthew Smalls, New York County District Attorney's Office, One Hogan Place, NY, NY 10013, 212-335-9522. Defendant was represented by Judith Preble, Esq., Legal Aid Society, 49 Thomas St., NY, NY 10013, 212-298-5215.

Ellen M. Coin, J.

Defendant is charged with two counts of Endangering the Welfare of a Child (in violation of Penal Law §260.10[1]), one count of Menacing in the Second Degree (in violation of Penal Law §120.14[1]), and two counts of Criminal Mischief in the Fourth Degree (in violation of Penal Law §145.00[1]). He moves, inter alia, for an order dismissing the Endangering and Menacing counts for facial insufficiency.

CPL §§100.15 and 100.40 require that factual allegations of an evidentiary character provide reasonable cause to believe that defendant committed the offenses charged in the information and that non-hearsay factual allegations provide a prima facie case that defendant is guilty. While an information must state the crime with which defendant is charged and the facts which support those charges, the allegations need not establish guilt beyond a reasonable doubt. People v Henderson, 92 NY2d 677 (1999). Where the factual allegations give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, those allegations should be given a fair and not overly restrictive or technical reading. People v Casey, 95 NY2d 354 (2000).

The information alleges that defendant, while engaged in an argument with the complainant, took a kitchen knife out of the kitchen and displayed it to her in such a way as to cause her to fear physical injury. Defendant also severed an air conditioner cord and damaged a door knob. These acts took place in the presence of the complainant's ten and twelve year old sons.

Penal Law §260.10(1) is violated when a person "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 allegations establish that defendant acted knowingly and that his conduct was likely to be injurious to the complainant's children. The statute does not require that defendant's actions [*2]be directed toward a child nor does it require actual injury to a child or to anyone else. It is sufficient if defendant is "aware that the conduct may likely result in harm to a child, whether directed at the child or not." People v Johnson, 95 NY2d 368 (2000).

Contrary to the view expressed in People v Ventura (7 Misc 3d 1002[A] [2005]), allegations of intemperate and hostile acts may be enough to establish, prima facie, that a person's conduct was likely to be injurious to a child. While Johnson (95 NY2d 368) speaks in terms of a "significant act of domestic violence", that case did not impose upon the Endangering statute any new or higher threshold of required violence.

The allegations in the complaint are facially sufficient to support the two Endangering counts.

The allegations also establish, prima facie, that defendant intentionally placed the complainant in reasonable fear of physical injury when he displayed a kitchen knife to her during the course of an argument. Defendant's argument that a kitchen knife does not qualify as a dangerous instrument is an issue for trial. It is sufficient for pleading purposes that defendant made use of a knife under the circumstances alleged in the complaint.

Defendant's motion to dismiss for facial insufficiency is denied.

Defendant's motions for a Bill of Particulars and Discovery are granted to the extent indicated in the People's Response and Voluntary Disclosure Form.

Defendant's motions for preclusion and preservation of evidence are granted to the extent of reminding the People of their Brady, Rosario and related obligations.

Defendant's motion to suppress statements on the basis of involuntariness and as the fruit of an illegal seizure is granted to the extent of ordering a Huntley/Dunaway hearing.

Defendant's motion to preclude pursuant to Criminal Procedure Law §710.30 is granted to the extent applicable.

Defendant's Sandoval application is referred to the trial court.

Defendant retains all rights to which he is entitled under Criminal Procedure Law §255.20.

This constitutes the decision and order of the Court.

DATED: NEW YORK, NEW YORK _________________________ [*3]

January 18, 2006 Judge of the Criminal Court