People v Chang

[*1] People v Chang 2009 NY Slip Op 52047(U) [25 Misc 3d 1213(A)] Decided on October 13, 2009 Criminal Court Of The City Of New York, Queens 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2009
Criminal Court of the City of New York, Queens County

The People of the State of New York,

against

Michael Chang, Defendant.



2009QN019069



For defendant:

Laurie Peterson

Queens Law Associates

118-21 Queens Blvd.

Forest Hills, NY 11375

For People:

Katherine Dmochowski

Assistant District Attorney

Queens County

125-01 Queens Blvd.

Kew Gardens, New York 11415

Elisa S. Koenderman, J.

The defendant, Michael Chang, is charged with Endangering the Welfare of a Child, Penal Law ["PL"] § 260.10(1) and Obstructing Governmental Administration in the Second Degree, PL § 195.05. The defendant has moved in an omnibus motion for dismissal of the charges for facial insufficiency and for disclosure of the defendant's prior uncharged criminal, vicious or immoral conduct pursuant to Criminal Procedure Law ["CPL"] § 240.43. 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] & 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). The complete failure to plead an element of a crime is a nonwaivable jurisdictional defect (see Casey, [*2]95 NY2d at 356; Alejandro, 70 NY2d at 137-138).

The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (Alejandro, 70 NY2d at 138,quoting1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff 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 [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, 429 [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]).

The instant information alleges that on April 3, 2009, Pedro Rivera's 16 year old daughter Jennifer Rivera failed to return home from school and that his wife, Eileen Seenaught, reported her as a missing person to the police. Thereafter Pedro Rivera spoke several times with the defendant on the phone, who told Mr. Rivera that Ms. Rivera was not at his residence. After 10:40 pm that night, the defendant did not return Mr. Rivera's phone calls. The next day, on April 4, 2009, at approximately 5:00 p.m., Detective Rob McCormick went to the defendant's apartment at 80-59 Lefferts Boulevard in Queens County and banged on the front door. Although he heard "shuffling" from inside the premises, there was no response. Later that day, at approximately 9:45 p.m., Sergeant Mike Gargant went to the apartment and banged on the front door, announcing "police, open up" but there was no answer. Sergeant Gargant then called the defendant on the telephone and again there was no answer. Upon hearing voices and seeing a flicker of light inside the premises, Sergeant Gargant entered the apartment and observed the defendant seated on a couch in a room off the front door. Ms. Rivera was found in the same room as the defendant, lying on the top of a bunk bed, covered with blankets. Ms. Rivera told Police Officer Richard Waters that she had been in the apartment with the defendant from the evening of April 3, 2009 until 9:45 p.m. on April 4, 2009.

The defendant argues that "there are no allegations which justify that the defendant would be aware that his conduct might likely result in harm to a child." Specifically, he asserts that Jennifer Rivera is a friend of his children and that she was seeking refuge at his residence. Additionally, the defendant claims that he was not alone with Ms. Rivera and that she was not exposed to exposed to drugs, alcohol or pornography in his apartment. Thus he contends that the charge of Endangering the [*3]Welfare of a Child is unsupported. Additionally, he posits that "the mere refusal to give information or even lying to the police is insufficient" to satisfy the elements of Obstructing Governmental Administration. Accordingly, he seeks dismissal of the information for facial insufficiency.

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 knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health."

The aim of the statute is to protect "the physical health, morals and well-being of children . . . ." (People v Bergerson, 17 NY2d 398, 401 [1966]). The statute is broad in scope and is not limited to protection against the perpetration of sexual offenses upon children but in fact extends "to other dangers as well" (id.; see also People v Cruz, 152 Misc 2d 436, 438-439 [1991]). Indeed, it is the policy of the law to protect infants [FN1] because "it is conclusively presumed that infants do not have the mental capacity and discretion to protect themselves from the artful designs of adults" (City of New York v Stringfellow's, 253 AD2d 110, 120 [1st Dept 1999] [". . . an infant . . . is universally considered to be lacking in judgment . . . [and] to lack the adult's knowledge of the probable consequences of his or her acts or omissions and the capacity to make effective use of such knowledge . . . . It is the policy of the law to look after the interests of infants . . . to protect them from their own folly and improvidence, and to prevent adults from taking advantage of them"]).

Moreover, as "the care of children is a sacred trust" (New York v Ferber, 458 US 747, 757 [1982]), a court cannot and should not "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]). The role of the court as the protector of 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]).

In order to sustain a conviction for Endangering the Welfare of a Child, the People need not prove that the defendant committed an affirmative act directed at a child (see People v Hitchcock, 98 NY2d 586, 591 [2002]; People v Johnson, 95 NY2d 368, 371-372 [2000]). Furthermore, actual harm to the child need not result from the defendant's actions for criminal liability to attach (see Johnson, 95 NY2d at 371; see also People v Duenas, 190 Misc 2d 801 [App Term, 2d Dept 2002]). The statute proscribes conduct "which a defendant knows will present a likelihood' of harm to a child (i.e., with an awareness of the potential for harm" (id. at 372) (emphasis added). Therefore, "a defendant must simply be aware that the conduct may likely result in harm to a child, whether directed at the child or not" (id., citing PL § 15.05[2]; see also People v Simmons, 92 NY2d 829, 830 [1998]). Regardless, the harm as a result of the defendant's actions must be likely and not merely possible (see id. at 371; Duenas, 190 Misc 2d at 803). [*4]

The offense of Endangering the Welfare of a Child may be committed by one act or by multiple acts and may be characterized as a continuing offense over a period of time (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 Simmons, 92 NY2d at 831; Cowley v People, 83 NY 464, 472 [1881]). Similarly, simultaneously coexisting events and circumstances, when taken as a whole, may constitute Endangering the Welfare of a Child, even if each circumstance, when taken in isolation, might not (see Hitchcock, 98 NY2d at 592; see also People v Hogle, 18 Misc 3d 715, 718-719 [Crim Ct NY County 2007]).

In reviewing a charge of Endangering the Welfare of a Child for legal sufficiency, "each case is fact specific" (Johnson, 95 NY2d at 373) and the allegations must be analyzed in the context of "the whole incident" (Hogle, 18 Misc 3d at 871, citing People v Tichenor, 89 NY2d 769, 776 [1997]). The court must look to the "confluence of events and circumstances" (Hitchcock,98 NY2d at 591), including both the defendant's acts and his omissions (see Cowley, 83 NY at 472). Appropriate considerations include the age and maturity of the child (see People v Reyes, 20 Misc 3d 1129[A], 2008 NY Slip Op 51665[U] [Crim Ct, NY County 2008]). The age of the defendant in relation to the child is also relevant to place the allegations in their proper context (see People v Buscemi, 89 Misc 2d 174, 177 [Dist Ct, Suffolk County 1977] [although the court upheld dismissal of the charge of Endangering the Welfare of a Child against a 16 year old boy who allegedly helped a 14 year old runaway girl remain away from home for two nights, it noted that "if this conduct were alleged against a thirty-five year old involved in aiding and abetting a runaway child, such conduct would be deserving of condemnation"]).

Possessing loaded and unloaded firearms and ammunition which were fully accessible to children (see Hitchcock, 98 NY2d at 591); engaging in domestic violence in front of children against their mother (see Johnson, 95 NY2d at 373); repeatedly directing vulgar remarks at a toddler (see Simmons, 92 NY2d at 831); and providing beer to teenaged boys (see Bergerson, 17 NY2d at 403) are examples of conduct which has been held likely to be injurious to the physical, mental or moral welfare of children. Additionally, factual allegations that a twenty-five year old defendant abetted a sixteen year old girl in running away from home in Virginia to New York City, where she was found with the defendant sleeping in squalor in the Port Authority Bus Terminal, were sufficient to plead the charge of Endangering the Welfare of a Child (see Hogle, 18 Misc 3d at 719). In that case, the defendant's actions were likely to endanger the complainant's physical, mental and moral welfare since running away from home "severed [the complainant] from the guardian legally charged with her welfare" (id. at 720).

Obstructing Governmental Administration in the Second Degree

Under Penal Law § 195.05, "[a] person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . . ." The statute "is applicable to a person who intentionally impedes or defeats a governmental function by means of physical force or interference or by means of some independently unlawful [*5]act" (People v Case, 42 NY2d 98, 102 [1977]; see also In the Matter of Davan L., 91 NY2d 88, 91 [1997]; People v Offen, 96 Misc 2d 147, 150 [Crim Ct, NY County 1978]). Thus, in order to be facially sufficient, an information which charges Obstructing Governmental Administration must allege an act of either (1) intimidation; (2) physical force or interference; or (3) an independently unlawful act (see People v Stumpp, 129 Misc 2d 703, 704 [Dist Ct, Suffolk County 1985], affd 132 Misc 2d 3 [App Term, 2d Dept 1986]; see also Case, 42 NY2d at 102).

In order to sustain a charge of obstructing governmental administration for preventing or attempting to prevent a public servant from performing an official function, the official function must be authorized or lawful (see People v Lupinacci, 191 AD2d 588, 589 [2d Dept 1993] [where police had no reasonable suspicion that defendant was involved in criminal activity, attempt to detain him was unauthorized; therefore, evidence that defendant struggled with police to avoid being handcuffed, walked away from the arresting officer and ignored orders to stop was insufficient to establish his guilt of Obstructing Governmental Administration]; People v Vogel, 116 Misc 2d 332, 333 [App Term, 9th & 10th Jud Dists 1982]); People v Square, 2008 NY Slip Op 51632[U]); People v Rodriguez, 19 Misc 3d 302, 306 [Crim Ct, NY County 2008]; People v Joseph, 156 Misc 2d 192, 195 [Crim Ct, Kings County 1992]). Moreover, where the public servant is a public officer,it must be alleged that a defendant interfered with a specific authorized official function; it is insufficient to allege simply that the police officer was "in uniform and on duty" (Joseph, 156 Misc 2d at 196; People v Tillman, 184 Misc 2d 20, 21 [City Ct, Auburn 2000]). Nevertheless, "the barest factual allegation of a specific police function" will suffice (Tillman, 184 Misc 2d at 21; Joseph, 156 Misc 2d at 197). Finally, the evidentiary facts must support a finding that it was the defendant's intent to interfere with an official police function (see People v Roman, 23 Misc 3d 56 [App Term, 1st Dept 2009]; Rodriguez, 19 Misc 3d at 307).

Furthermore, the alleged act of interference with a governmental or official function must be at least in part physical in nature (see Case, 42 NY2d at 99 [information charging obstructing governmental administration which alleged that defendant verbally warned other drivers of a radar speed checkpoint via CB radio held to be jurisdictionally defective]). While mere words alone do not constitute physical force or interference, words coupled with actions are sufficient (see Davan L., 91 NY2d at 91 [defendant's actions in repeatedly circling the block on his bicycle where an undercover narcotics buy operation was being conducted and yelling "cops, cops" after being warned by police not to get involved and to leave the area was sufficient to sustain a juvenile delinquency adjudication for Obstructing Governmental Administration]).

A defendant's failure to respond to or obey an official order or directive under certain circumstances has been held to constitute Obstructing Governmental Administration. For example, corrections officers had reason to believe that an inmate who repeatedly refused to move from a particular area in defiance of a direct command was trying to prevent the officers from carrying out their official function of maintaining institutional order and had probable cause to arrest him for Obstructing Governmental Administration (see Allen v City of New York, 480 F Supp 2d 689, 711 [2007]). Similarly a deputy sheriff had probable cause to arrest a defendant for Obstructing Governmental Administration where the defendant refused to obey the sheriff's order to [*6]"step back" from the scene of an accident where a rescue attempt was underway and physically broke away from the sheriff as he attempted to lead defendant away from the scene (Decker v Campus, 981 F Supp 851, 858 [1997]).

Conclusions of Law

Here, the sixteen year old female complainant was reported missing to police after she did not return home from school. Thereafter, the complainant's father called the defendant several times to see if she was with him. The information does not specify why the complainant's father believed that the complainant might be with the defendant. Nevertheless, this belief is implicit in the complainant's father's actions. In fact, the complainant was with the defendant in his home when her father called. Regardless, the defendant lied to the complainant's father about her being there. The next day, the police went twice to the defendant's home and banged on the door as well as called the defendant on the phone. The second time the police banged on the door, the officer announced himself and ordered the defendant to open up. Although both times there was an indication that the defendant was home, the defendant failed to respond. Neither did he answer the phone when the officer called. Ultimately, when the police gained entry to the defendant's apartment, they found the complainant in the same room as the defendant, hidden under blankets on a bunk bed. The complainant admitted to police that she had been there with the defendant the entire time.

The fact that the defendant is not alleged to have engaged in sexual relations with the complainant or to have exposed her to drugs, alcohol or pornography, or that the defendant is not alleged to have abducted or imprisoned the complainant, does not render the information deficient. The complainant, although a sixteen year old girl rather than a small child, nonetheless is considered by law to be an "infant" and thus incapable of protecting herself "from [her] own folly and improvidence" and "the artful designs of adults" (Stringfellow's, 253 AD2d at 120). Additionally, even if she had run away from home to the defendant's apartment, public policy discourages runaways and encourages their return to their parents (see Hogle, 18 Misc 3d at 719, citing Family Ct Act § 712 [a] [person in need of supervision]; § 718 [return of runaways]). Indeed, the defendant's actions betray his understanding that the complainant, a minor female child, could not consent to remain with him - a forty-six year old adult male with no alleged legally cognizable relationship to her - in his apartment without the permission of her legal guardian, especially under circumstances where she was missing from home and where her legal guardian was actively searching for her. By hiding the complainant from her father and the police, the defendant prevented the complainant from being reunited with the legal guardian charged with her care and well-being, which was likely to be injurious to her physical, mental and moral welfare (see id.). Moreover, the defendant's behavior in lying to the complainant's father and evading both him and the police evinces both his consciousness of guilt that by hiding the complainant from them he was engaging at minimum in an immoral act, if not an illegal one, as well as his awareness of the likelihood of harm resulting from his actions. That the defendant may have had some other, purportedly innocent motivation for his conduct is an issue for trial. For pleading purposes the People are not required to disprove every conceivable defense (see People v Deegan, 69 NY2d 976, 979 [1987]; Barona, 19 Misc 3d at 3).

Furthermore, the factual allegations and the reasonable inferences to be drawn from them establish that when the police banged on the defendant's door and ordered [*7]him to open it, they were engaged in the authorized, official function of attempting to locating a missing child. After the complainant failed to return home from school, her father's wife filed a missing persons report and her father repeatedly called the defendant in an effort to find her. The defendant denied that the complainant was with him in his home and then did not return her father's phone calls. Although the accusatory instrument does not specifically state that the complainant's father communicated this information to the police, this inference is implicit in the officers' actions in responding to the defendant's home the following day.

Twice that day police officers banged on the defendant's front door. The second time, at approximately 9:45 p.m., the officer announced himself and ordered the defendant to open the door. That officer also called the defendant on the phone. Although the defendant was home, and the complainant was with him, the defendant persistently failed to answer the door or the phone. The defendant certainly knew that the complainant was missing from home and that her father was looking for her since he had spoken to her father several times on the phone. Indeed, although the complainant was with the defendant in his home when her father called, the defendant lied to her father about the complainant's presence there. Because the defendant deliberately hid the complainant's whereabouts from her father when he was trying to find her, and in fact was secreting the complainant in his home when the police banged on the defendant's door and ordered him to open it, the defendant surely suspected that the police were looking for the complainant. The defendant's failure to open the door under the circumstances compels the inference that the defendant not only knew the police were looking for the complainant but that he did not want the police to find the complainant there with him.

Thus, the facts alleged are sufficient to demonstrate that in failing to open the door for the police when they banged on it and ordered him to open it, the defendant possessed the requisite intent to prevent the police from engaging in the authorized official function of locating a missing child [FN2] (cf. Rodriguez, 19 Misc 3d at 309 [where police executing an arrest warrant failed to announce their purpose and authority for entry into a dwelling where defendant was present, factual allegations were insufficient to establish that defendant intended to obstruct governmental administration by not opening the door for the police]).

Moreover, the defendant did not simply disobey a police order to open his door. Rather, he engaged in the physical act of hiding the complainant in his home. Indeed, not only did the defendant conceal the complainant's whereabouts from her father and refuse to respond to the police, but when the police finally entered the defendant's apartment, they found the complainant in the same room as the defendant, covered with blankets on top of a bunk bed. These facts vividly depict the defendant's complicity in attempting to camouflage the complainant's presence even when confronted with the inevitability of her discovery in his home. The defendant's conduct in defying a police order to open his door while secreting the complainant in his home therefore constitutes an intentional attempt, by physical interference, to prevent the police from performing the authorized official function of locating a missing child (see [*8]Allen, 480 F Supp 2d at 711; Decker, 981 F Supp at 858).

Accordingly, the factual allegations of the information, when given a "fair and not overly restrictive reading" and accepted as true, are adequate to inform the defendant as to the nature of the charges against him and sufficiently establish the elements of Endangering the Welfare of a Child and Obstructing Governmental Administration in the Second Degree (see Casey, 95 NY2d at 360; People v Kalin, 12 NY3d 225, 231 [2009]). The defendant's motion to dismiss for facial insufficiency therefore is denied.

REMAINING MOTIONS

Pursuant to CPL § 240.43, the People are directed to notify the defendant of any prior uncharged criminal, vicious or immoral conduct which the People intend to use at trial to impeach the defendant's credibility immediately prior to the commencement of jury selection and a Sandoval ruling is reserved to the trial court.

This constitutes the decision and order of the Court.

Dated:October 13, 2009

Queens, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1: A "minor" or "infant" is defined by statute as a person under the age of 18 years (CPLR § 105[j]; Domestic Relations Law § 2).

Footnote 2: The legality of the ensuing police entry into the defendant's apartment, and whether it was justified by exigent circumstances, is an issue for the suppression court.