Opinion
2014BX037216
03-16-2015
The People of the State of New York, Plaintiff, v. Salim Ibrahim, Defendant.
The People — Robert T. Johnson, District Attorney, Bronx County, by Joelle P. Morabito, Assistant District Attorney Defendant — Law Office of Jon M. Silveri, by Jon M. Silveri
Appearances of Counsel
The People — Robert T. Johnson, District Attorney, Bronx County, by Joelle P. Morabito, Assistant District Attorney
Defendant — Law Office of Jon M. Silveri, by Jon M. Silveri
Armando Montano, J.
Defendant is charged with one count of Endangering the Welfare of a Child (PL § 260.10(1)).
Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) directing disclosure of all agreements between any witness(es) who will testify at trial and the People; 3) directing disclosure of all Brady material; 4) compelling the People to provide defendant with a list of any crimes, charged or uncharged, and any vicious or immoral acts which they intend to use at trial and requiring a hearing to determine the admissibility of any such testimony (Ventimiglia); 5) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts (Sandoval); and 6) granting defendant the right to make additional motions if made necessary or appropriate by the People's future disclosure.
The factual allegations in the superseding information read as follows:
Deponent is informed by EDWIN VARGAS, that [on July 12, 2014 at approximately 9:00 AM at the rear of 1743 Fulton Avenue, County of Bronx, State of New York], informant observed a small male child TAWFIQ ABDUL MUMIN seated on the first floor fire escape at the abovementioned location without any adult present.
Deponent is further informed by informant, that informant was unable to locate a parent or guardian for the above described child for approximately one hour before the police were notified.
Deponent states that he knocked on apartment doors and spoke with multiple individuals in the building for approximately one hour and was unable to locate a parent or guardian for the above mentioned child.
Deponent further states that child TAWFIQ ABDUL MUMIN appeared to be approximately three (3) feet tall, approximately fifty (50) pounds, and appeared to be approximately three (3) years old.
Deponent further states that defendant arrived at the police precinct at 830 Washington Avenue at approximately 10:45 AM, and defendant stated in sum and substance I'M HIS UNCLE. I DON'T KNOW WHAT HAPPENED. I WAS SLEEPING.
Facial Sufficiency
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15(3); People v. Dumas, 68 NY2d 729 (1986)) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40(1)(b)(c)). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. "Reasonable cause" to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the Court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, New York County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "So long as the factual allegations of an information 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, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000).
Endangering the Welfare of a Child
Defendant argues that the superseding information must be dismissed as facially insufficient as the facts alleged do not support the charge of Endangering the Welfare of a Child. Specifically, defendant asserts that the superseding information fails to allege that he had custody and control of the child at the time of the alleged incident. Defendant also contends that his act of appearing at the precinct after learning of what happened does not establish that 1) he was the person with whom the child was with at the time of the incident or 2) he had custody and control of the child at the time of the incident.
In opposition, the People first note that defendant is charged with Endangering the Welfare of a Child (PL § 260.10(1)) which does not require a custodial, parental or legally recognizable relationship between a defendant and the child in question. The People aver that the facts alleged in the superseding information are more than sufficient to make a prima facie showing for the offense charged. The People also note that "Criminal Justice Interview Report" indicates that defendant's residence and the location of the incident are one and the same. In addition, defendant presented himself at the police precinct and acknowledged himself as the child's uncle. Therefore, the People argue that it is reasonable to infer from the foregoing that 1) the child was found by the informant on the fire escape of defendant's residence and 2) defendant was responsible for caring for the child at the time of the incident. Leaving a small child unattended creates a strong likelihood of harm to the child's physical, mental, or moral welfare. Furthermore, the People argue that defendant should have been aware that harm would likely result by falling asleep and leaving a three year old unattended with the opportunity to leave the confines of his residence.
A person is guilty of Endangering the Welfare of a Child when "[h]e or she 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 or her life or health." PL § 260.10(1). A person acts knowingly with respect to conduct "when he is aware that his conduct is of such nature or that such circumstance exists." PL § 15.05(2). The offense of Endangering the Welfare of a Child can be committed by a single act or 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." People v. Simmons, 92 NY2d 829, 830 (1998); see also, People v. Keindl, 68 NY2d 410 (1986). Actual harm to a child is not an element of the offense of Endangering the Welfare of a Child. People v. Simmons, 92 NY2d 829, 830 (1988). "[A] defendant must simply be 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, 372 (2000).
At the outset, this Court notes that in determining a motion for facial insufficiency, its analysis is limited to the four corners of the accusatory instrument and in annexed supporting depositions . People v. Thomas, 4 NY3d 143 (2005). As such, any information contained in the Criminal Justice Interview Report will be disregarded by this Court.
A supporting deposition is "a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein." CPL § 100.20.
Here, the superseding information alleges that a child, who appeared to be approximately three years of age, was found without an adult present, seated on a first floor fire escape of an apartment building. It is further alleged that defendant appeared at the police precinct approximately one hour and forty-five minutes after the informant observed the child on the fire escape. Upon arrival at the police precinct, defendant claimed the child as his nephew. He also indicated that he was sleeping and had no knowledge of what had transpired.
Some courts have held that the factual allegation of leaving a child unattended for a period of time constitutes a facially sufficient charge under PL § 260.10(1). See, People v. Watson, 182 Misc 2d 644 (Crim Ct, Bronx County 1999); People v. Gulab, 23 Misc 3d 1123(A) (Crim Ct, Queens County 2009); People v. Reyes, 20 Misc 3d 1129(A) (Crim Ct, Kings County 2008). However, in cases where the courts have upheld the facial sufficiency of the charge of PL § 260.10(1), the accusatory instrument alleged facts indicating that the respective defendants left the child alone while the child was under their care.
Clearly, leaving a child unattended constitutes the crime of Endangering the Welfare of a Child. This Court is cognizant of the many dangers that could befall a young child who has been left unattended, especially when that child is left unattended on a fire escape. Were it not for the informant who happened upon the child, it is unclear how long the child would have continued to remain unattended on a fire escape. Should the child have fallen from the fire escape to the ground, the child would in all likelihood have sustained serious physical injuries, permanent disabilities, or even death.
Despite the foregoing, the question remains whether reasonable cause exists to believe that defendant committed the crime charged. This Court agrees with defendant that the superseding information is facially insufficient to the extent that there are no facts alleged demonstrating that the child was under defendant's care at the time of the incident. Parents have a fundamental liberty interest in the care, custody, and control of their children. See, Troxel v. Granville, 530 U.S. 57 (2000); Santosky v. Kramer, 455 U.S. 745 (1982); Stanley v. Illinois, 405 U.S.645 (1972). There is no indication of defendant having been asked by the child's parent or that he agreed to watch over the child. Unless it can be established that defendant was in charge of watching his nephew, his act of falling asleep at an unspecified location is of no consequence. Assuming arguendo that defendant was sleeping at his residence at the time of the incident, if defendant was not in charge of watching his nephew, he cannot be held criminally liable for endangering his nephew's welfare. It is entirely plausible that some other individual, such as the child's parent, was supposed to be watching the child.
Contrary to the People's assertions, the accusatory instrument fails to allege sufficient facts to place defendant at or near the location of the incident. There is no indication from the four corners of the accusatory instrument that defendant's residence and the location of the incident are one and the same.
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The People essentially ask this Court to assume that defendant had custody and control of his nephew and then by falling asleep, he allowed his nephew to wander onto the fire escape. Based upon these assumptions, this Court could infer that defendant acted in a manner likely to be injurious to the physical, mental, or moral welfare of his nephew. However, as noted above, there are no factual allegations from which this Court could make any such inference. The superseding information, as currently drafted, fails to connect defendant's act of falling
asleep at an unspecified location with his nephew's physical, mental, or moral welfare. Without more, this Court cannot reasonably infer from the fact that defendant went to the police precinct to retrieve his nephew that he knowingly placed the child in circumstances that would likely be injurious to him. Holding otherwise would amount to nothing more than rank speculation. When viewed in the light most favorable to the People, this Court finds that the allegations set forth in the superseding information fail to provide reasonable cause to believe that defendant committed the crime of Endangering the Welfare of a Child.
Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is granted and the accusatory instrument is hereby dismissed without prejudice. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30. In light of the dismissal of this action, the remaining branches of defendant's motion are hereby deemed moot. Should the People file a facially sufficient information, defendant may renew the remaining branches of the instant motion.
This constitutes the decision and order of this Court.
Dated:March 16, 2015
Bronx, New York
_______________________________
Hon. Armando Montano