People v Jane T.

[*1] People v Jane T. 2006 NY Slip Op 52302(U) [13 Misc 3d 1243(A)] Decided on November 30, 2006 City Court Of The City Of New Rochelle, Westchester County Colangelo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2006
City Court of the City of New Rochelle, Westchester County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Jane T., Defendant.



06-0965



JANET DIFIORE

District Attorney of Westchester County

BY: Courtney L. Johnson, ADA

475 North Avenue

New Rochelle, NY 10801

ARNOLD P. KEITH, JR., ESQ.

Hornskin, Palumbo & Keith

350 Broadway, Suite 1201

New York, NY 10013

Attorney for Defendant

John P. Colangelo, J.

Defendant Jane T. [FN1] is charged on a Superceding Misdemeanor Information (the "Information" or the "Accusatory") with three counts of the A Misdemeanor of Endangering the Welfare of a Child (Penal Law  260.10(1)) and two counts of the Violation of Harassment in the Second Degree (Penal Law  240.26(1) . The allegations in the Accusatory center around two incidents in the Spring and Winter of 2006 involving Defendant's then seven-year old son TT and four year old daughter IT, respectively. With respect to her son TT, the Accusatory states

that in May, 2006, Defendant, grabbed TT by the arm and then "punched [him] with a fist knocking him to the ground causing TT to sustain bleeding and bruising to the inside of his mouth, a scratch to his right wrist and to urinate on himself." As far as Defendant's daughter IT is concerned, the Information charges that on an unspecified day in February, 2006 in the presence of TT, "the defendant intentionally did strike her 4 year old daughter . . . in the head while said child was in bathtub causing her head to hit the wall and further causing said child to cry and bleed." [*2]

Along with the Information, the People filed a Supporting Deposition signed by TT and witnessed by Detective Gregory Herring of the New Rochelle Police Department (the "Supporting Deposition"). With the Supporting Deposition, the People filed an Affirmation of Assistant District Attorney Christine Hatfield, also dated June 14, 2006, stating that she had "met with and conducted an examination" of TT and concluded that he "clearly understands the nature and quality of an oath and has the capacity to verify the accusatory as required by law."

When Defendant was arraigned on the Information on June 16, 2006, Defendant questioned the sufficiency of the verification of the Supporting Deposition because it was signed by a seven year old, TT. In response, on the next court date the People provided Defendant's counsel and the Court with a written transcript of a videotaped voir dire of TT conducted by ADA Hatfield in which TT was asked, among other things, about the importance of telling the truth, and which contained TT's promise to do so. At the end of the transcript, ADA Hatfield concluded that TT "is ready to testify and is swearable" and further represented that "[h]e previously was voir dired on June 14, 2006 [the date the Supporting Deposition was signed], we did the same thing and he read the accusatory and was swearable at that time."

Shortly after Defendant's counsel received the transcript, he reiterated his contention that the Accusatory was defective and should be dismissed. Counsel for Defendant also indicated that he intended to raise the issue of whether Defendant's conduct as set forth in the Accusatory, even if true, amounted to the crime of Endangering the Welfare of a Child. Counsel argued that Defendant's alleged conduct did not cause sufficient physical injury to fall within the statutory prohibition, and in any event represented permissible disciplinary treatment of children by a parent. A motion schedule was then set by the Court, and Defendant interposed a motion to dismiss "the accusatory instrument as defective and/or legally insufficient pursuant to C.P.L. 60.20(2), 170.30, 170.35, 10.15 and 100.40." Defendant also moved on grounds resembling an Omnibus Motion for certain discovery and for pretrial hearings. The People opposed Defendant's motion. After reviewing all motion papers, the Court decides as follows.

Defendant's Motion to Dismiss the Accusatory Instrument on the Ground of Allegedly Deficient Supporting Deposition

Defendant's argument that the Supporting Deposition signed by Defendant's son TT , is deficient requires the Court to resolve two central issues:

(1) At the nascent stage of a criminal proceeding the execution of a supporting deposition should the Court or the District Attorney make the initial determination of whether a minor such as TT has the capacity to understand an oath or is otherwise capable of executing a verified supporting deposition pursuant to  100.20 and 60.20(2) of the Criminal Procedure Law; and,

(2) Under the facts thus far adduced and in light of the preliminary posture of the instant case, did the prosecutor abuse her discretion by filing an accusatory verified by a seven year old, or, on the other hand, does it appear likely that the Defendant's son had the capacity to sign the supporting deposition, under oath, pursuant to CPL  100.20 and 60.20 (2).

With respect to the first question, the Court concludes that the People's position that the prosecutor should make this initial determination is not only consistent with applicable statutory and case law, but is both practical and comports with the traditional role of the Court and [*3]prosecutor respectively. The provisions of the Penal Law and Criminal Procedure Law that address issues pertaining to accusatory instruments, supporting depositions and verifications do not make any distinctions based upon age. (CPL  100.10, et. seq.) As the People emphasize, CPL  100.30 prescribes several methods of verification, none of which are specifically tailored for child witnesses.

Moreover, neither these provisions nor, for that matter, Penal Law  60.20, directs the Court to take a role in determining a witness' competence at the accusatory phase of the prosecution, and for good reason: at this preliminary stage, it is quintessentially the role of the prosecutor, not the Court, to decide whether charges should be brought at all. Judicial action before as an accusatory instrument is perfected and charges are fully brought would constitute an intrusion into the prosecutor's discretion and impair the principle of separation between the judicial and prosecutional functions which is a hallmark of our criminal justice system. This logic no doubt underlies the Grand Jury practice to which the People analogize herein, where the People rather than the Court make the initial determination of whether a child is competent to testify before a Grand Jury. See People v. Groff, 71 NY2d 101, 104 (1987) ("At the Grand Jury stage of a criminal proceeding, determinations of witness competency must be made by the District Attorney . . . Because the prosecutor stated on the record that he would have to determine whether the [4 year old] victim was sufficiently intelligent to give unsworn testimony, conducted voir dire which revealed that she had the capacity to perceive and recall events, and only questioned her after explicitly stating his finding that the oath could not be administered to her, the record, by clear implication, establishes the District Attorney complied with CPL 60.20."); People v. King, 137 Misc 2d 1087 (Crim. Ct., N.Y.Co. 1988).

This is not to say that the Court ultimately has no role at any time in determining the competency of a child witness; Penal Law  60.20(2) plainly so provides. But that role should be exercised only after charges are fully brought and the accusatory allegedly perfected. As long as the People act in good faith, take appropriate steps to assure themselves that the witness understands what he or she is signing and the implications of that execution, and preserve for eventual judicial review a record of the basis for the child witness' competence, the Court should, at this stage, defer to the People's judgment and prosecutional discretion. The case law is not to the contrary. Indeed, several courts that have confronted the issue of verification by children have, in effect, deferred to the considered professional judgment of the district attorney with the caveat that a record of any voir dire of the child conducted by the district attorney be maintained for potential judicial review.

For example, in People v. Claxton, 160 Misc 2d 550 (Crim. Ct., Bronx Co. 1994), the Court addressed the issue of the sufficiency of a supporting deposition signed by a seven year old. There, as here, the prosecutor conducted a recorded voir dire of the child, and concluded that the child was competent. The Court deferred to the district attorney's judgment particularly since the basis for it had been preserved subject to ultimate judicial review of the voir dire, which the Court found sufficient. As the Court reasoned:

"The court is mindful that proper verification by a witness under 12 years of agerequires an ultimate determination by the court that the child was capable of understandingthe nature of an oath at the time of verification. . . . This court agrees that a bare affidavitfrom the prosecutor attesting to a child's competency, without setting forth the basis for [*4]herfindings . . . would be insufficient, and an improper delegation of judicial responsibility.

However, the court need not itself conduct the child's voir dire in order to effectuateproper verification. . . The examination of the child may be done in conjunction with anyof the methods enumerated in CPL 100.30 (1)(b) to (e), provided that the voir dire isrecorded and made available to the court for review as to the propriety of the prosecutor'sassessment of the child's competence. . . . Permitting the prosecutor to make the initialdetermination of competence comports with the trend towards the expanded use ofnonjudicial methods of verification."

Id. at 552-553 (emphasis in original; citations omitted). See also, e.g., People v. Wiggans, 140 Misc 2d 1011, 1014 (Crim. Ct., Kings Co. 1988) (Assessment of minor witness' competence by district attorney's office sufficient to permit minor's verification of the misdemeanor information); cf. People v. Groff, 71 NY2d 101, 104-105 (1987) (Prosecutor's voir dire of four year old held sufficient to call child as Grand Jury witness); People v. Soler, 144 Misc 2d 524, 528 (Crim. Ct., N.Y.Co. 1989) ("[P]ermitting the prosecuting attorney to make the initial determination as to a verifying witness' ability to understand the nature of an oath (see, CPL 60.20 [2]) comports with this marked trend toward the expanded use of non-judicial' methods of verification . . . [and] provides a reliable means for implementing, at the accusatory stage of a criminal prosecution, the protections be afforded by CPL 60.20(2)").

Here, as in Claxton and Wiggans, the prosecutor, ADA Hatfield, interviewed the child witnesses TT, assured herself that the child understood that he must be truthful, and maintained a record of that interview. Absent evident coercion or overreaching by the People, the District Attorney's considered judgment is entitled to significant deference. Indeed, the availability of a recorded voir dire of a child witness by the prosecutor for judicial review strikes an appropriate balance in these types of cases between the latitude that should be accorded the district attorney's office in deciding whether to prosecute or not, and the Court's duty to assure that such discretion is not unbridled. The mere fact that in the instant case, the voir dire was apparently repeated initially off and then on the record should not affect this balance as long as the record that was made does not appear staged or coerced, and is ultimately found to support the People's conclusion of the child's truthful awareness. Accordingly, the Court now must turn to the second stage of the inquiry and determine if the voir dire as conducted by the People adequately supports their conclusion that TT understood the importance of being truthful and otherwise appeared competent to sign the Supporting Deposition.

Turning to this second issue, the Court finds that for purposes of Defendant's motion, the People have demonstrated the requisite good faith belief in the child witness' competence to support the propriety of the verification. When the verified Supporting Deposition was filed, ADA Hatfield submitted with it her own affirmation to the effect that she had met with the child complainant and was satisfied that he understood "the nature and quality of an oath and [had] the capacity to verify the accusatory as required by law." Subsequently, ADA Hatfield went further and submitted to the Court a transcript of her interview with TT in which she states that she asked him virtually the same questions that she had asked him during her earlier interview to ascertain that he understood the nature of an oath, and the importance of telling the truth. While, [*5]as Defendant's counsel points out, not perfect, the transcript adequately buttresses the People's conclusion that TT had the capacity to meet the standards for understanding the nature of an oath sufficient to sign and verify the supporting deposition at issue here. In similar circumstances other courts have so held. See, e.g. People v. Cordero, 257 AD2d 372, 375-376 (1st Dept. 1999); People v. Nisoff 36 NY2d 560 (1975). Moreover, as the transcript reflects, no element of coercion or overreaching appears to have been present during the interview.

It goes without saying that at the time of trial Defendant is free to challenge TT's then bona fides as a witness under CPL  60.20 and, if TT should testify, to test through cross-examination the voluntariness and veracity of TT's accusations. However, at this stage of the case, the People have sufficiently demonstrated that TT had the requisite capacity to sign the Supporting Deposition and assist in perfecting the Accusatory. Accordingly, Defendant's motion to dismiss the Information on the ground that the Supporting Deposition and therefore the Accusatory are fatally defective is denied.

Defendant's Motion to Dismiss the Misdemeanor Charges of Endangering the Welfare of a Child (Penal Law  260.10) as Insufficient as a Matter of Fact.

Defendant's motion to dismiss the misdemeanor charges of Endangering the Welfare of a Child on the ground that insufficient physical injury to TT and IT is alleged is also without merit. Defendant argues that in order to sustain a prosecution for Endangering the Welfare of a Child, the conduct of Defendant must allegedly cause "physical injury" as defined by Penal Law  10.10. However, as the Endangering statute makes plain, actual physical injury to a child as defined in Penal Law  10.00 is not a requisite element of a charge of Endangering the Welfare of a Child. As the pertinent subdivision of Penal Law  260.10 provides:

" 260.10 Endangering the Welfare of a Child.

A person is guilty of endangering the welfare of a child when:

1. He knowingly acts in a manner likely to be injurious to the physical, mentalor moral welfare of a child less than seventeen years old or directs or authorizessuch child to engage in an occupation involving a substantial risk of danger tohis life or health" (Emphasis supplied).

Thus, as Penal Law  260.10(1) expressly states, conduct which creates the likelihood of injury to a child, not necessarily actual physical injury, falls within the prohibitive ambit of the statute. Accordingly, contrary to Defendant's contention herein, courts have consistently held that physical injury rising to the level of an "impairment of a physical condition or substantial pain", as defined in Penal Law 10.10 need not be alleged in order to support a charge of Endangering the Welfare of a Child. Instead, as the case law shows, conduct that does not cause such "physical injury" but does or may likely adversely affect the "physical, mental and moral welfare" of a child may still be held to violate the statute.

For example, in the Court of Appeals case of People v. Simmons, 92 NY2d 829 (1998), the Court addressed the issue of whether conduct by defendant that consisted of verbal abuse of a 23 month old was sufficient to support a jury verdict convicting defendant of Endangering the Welfare of a Child under Penal Law 260.10(1) the precise statute at issue in the instant case. Defendant in Simmons was accused of "repeatedly directing vulgar remarks of a sexual nature to [*6]a child aged 23 months." (Id. at 830) Holding that the likelihood of harm not actual harm to the physical, mental or moral welfare of a child is the guiding principle, and that a reasonable jury could conclude that such harm might likely result from defendant's conduct, the Court upheld the jury's verdict. As the Court reasoned:

"Actual harm to the child need not result for liability under the statute to attach, it beingsufficient that the defendant act in a manner which is likely to result in harm to the childknowing of the likelihood of such harm coming to the child (see, People v. Bergerson, 17NY2d 398, 403 [distinguishing between subdivisions (1) and (2) of predecessor statute toPenal Law  260.10].

Here the defendant, a trained teacher, repeated her mocking and vulgar remarks to thechild over a period of nearly six weeks. This child was in the formative stages of speechand learning, had some verbal cognitive abilities and in fact reacted to defendant's vulgarqueries, by answering "yes".

* * * *

The jury therefore may reasonably have concluded that the totality of defendant's remarks,repeated to the child over a six-week period at a crucial stage in her intellectual andsocial development, would have combined to create a likelihood of harm, regardless ofthe child's current level of understanding. This conclusion is supported by the evidenceadduced at trial, is not speculative and is sufficient to sustain the jury's finding of guilt."

Id. at 831. See also, e.g., People v. Bergerson, 17 NY2d 398 (1966).

The conduct of Defendant in the instant case as alleged in the Accusatory can certainly be considered potentially "injurious to the physical, mental or moral" welfare of her children, and, what is more, may well rise to the level of "physical injury" as defined in Penal Law 10.00. In Count One of the Information, Defendant is alleged to have punched a seven year old boy in the mouth with a closed fist, causing bleeding and bruising and inducing him to urinate on himself. As far as Counts 2 and 3 of the accusatory are concerned, Defendant is alleged to have banged four year old IT's head against a bathtub or bathroom wall, causing the child's head to bleed, in the presence of the seven year old TT. Taking the allegations of the Accusatory as true, which the Court must do for purposes of this motion, Defendant would be hard pressed to deny that her conduct did not amount to actions at least "likely to be injurious" to her children's welfare.

Relatedly, Defendant further contends that since certain courts have held that parents have some latitude in administering corporal punishment to their children as a form of discipline, her actions as alleged herein should not be deemed "endangering" under the statute as a matter of law. Defendant's argument is at once inapposite and premature. A determination of whether Defendant's alleged conduct and such conduct's effect on the alleged victims amounts to endangering the welfare of her children under the circumstances set forth in the Accusatory is best left for the finder of fact to review in its full factual context and determine. As the record [*7]now stands, the People have set forth sufficient facts to permit a jury to make such a decision. Even assuming arguendo that some manner of corporal punishment administered as discipline by a parent is acceptable under the statute, a reasonable jury might well conclude that a punch in the mouth with a closed fist, or the slam of a child's head against a wall is different in degree, if not in kind, from a random slap on the backside.

Indeed, Courts have not hesitated to sustain a charge under Penal Law  260.10(1) even when the defendant's professed aim appears to be discipline rather than malice if injury results or would likely result from defendant's actions. See, e.g. People v. Nelson, 2 Misc 3d 133A (App. Term 1st Dept. 2004) (Defendant hit 13 year old daughter with belt causing injuries); People v. Fields, 134 AD2d 365 (2d Dept. 1987); (Charge of endangering sustained when parent hit 3 year old for 30 minutes with a belt, resulting in hospitalization); People v. Abraham, 2002 NY Misc. Lexis 982 (City Ct., White Plains 2002) (Accusatory alleging that foster parent hit 7 year old child with a belt causing welts, bruising and substantial pain properly stated an endangering charge).

The case upon which Defendant principally relies in support of his argument, People v. Thompson, 9 Misc 3d 1123A, 2005 NY Misc. Lexis 2413 (City Court, Mt. Vernon 2005), is readily distinguishable from the instant case. In Thompson, the misdemeanor charge against a mother for endangering the welfare of her minor sons was not sustained at trial. The Court held that although the child was hit with a belt, no distinguishable marks or injury at all was alleged to have resulted from defendant's conduct. In the instant case, unlike Thompson and more similar to the factual situations that obtained in Nelson and Abraham, Defendant's alleged conduct caused her son's mouth and daughter's head to bleed. Moreover, the Thompson court recognized that a parent may not, under the guise of discipline, "cruelly beat" his or her children.Accordingly the issue of whether Defendant's conduct herein, characterized as disciplinary behavior or not, amounted to actions that were "likely to be injurious to the physical, mental or moral welfare" of TT and IT is best left for the finder of fact to decide, and Defendant's motion to dismiss is denied.

Defendant's "Omnibus Motion".

As to the remaining motions interposed by Defendant, the Court will consider them despite the fact that they may have been made after the 45 day post-arraignment period prescribed by CPL  255.20. Since the Court did set a motion schedule that called for Defendant to submit its initial papers after the statutory deadline had expired, Defendant may have assumed that such a timetable applied to all pretrial motions, even though Defendant's counsel did not indicate at the time such schedule was established that he wished to make any motion other than to dismiss the Accusatory. Nevertheless, the Court has considered Defendant's remaining motions and decides as follows.

The motion to preclude statements made by Defendant and identification testimony are denied since the People served neither a CPL  710.30 statement notice nor an identification notice. Similarly, Defendant's request for a Ventimiglia hearing is denied without prejudice unless and until the People advise the Court and Defendant that they seek to introduce Molineux evidence against Defendant in their direct case.

The People have consented to a Sandoval hearing, which will be held immediately before trial. The People have also consented to and recognize their continuing obligation to disclose [*8]exculpatory evidence to Defendant pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The People have further agreed to provide Defendant with a Bill of Particulars, and to provide Defendant with open file discovery pursuant to CPL  240.20. Finally, the Court rejects Defendant's purported reservation of a right to make further or additional motions; any further motions will not be entertained by the Court absent a showing of "good cause" as required under CPL  255.20.

The parties are directed to appear on December 1, 2006 at 9:30 a.m. for further proceedings.

The foregoing constitutes the Decision and Order of this Court.

DATED: New Rochelle, New York

November 30, 2006

John P. Colangelo

City Judge

Footnotes

Footnote 1: Due to the nature of this case, the defendant's name has been changed to the fictitious name of Jane T .