Opinion
2013-03-19
The PEOPLE of the State of New York, Respondent, v. Lakhram OMWATHATH, Appellant.
Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Matthew J. Sweet and Sharon Y. Brodt of counsel), for respondent. Mitchell Dranow, Sea Cliff, for appellant.
Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Matthew J. Sweet and Sharon Y. Brodt of counsel), for respondent. Mitchell Dranow, Sea Cliff, for appellant.
PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (John F. Zoll, J.), rendered May 2, 2011. The judgment convicted defendant, after a nonjury trial, of attempted endangering the welfare of a child.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
On September 24, 2009, the People charged defendant with attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10[1] ). According to the People's witnesses at a nonjury trial, defendant, a school bus driver, had entered the school building to report for work in what, school officials suspected, was a state of intoxication. Defendant was escorted to a principal's office. His eyes were red and watery, there was an odor of an alcoholic beverage on his breath, his speech was “slightly” slurred, and he appeared “fidgety.” The police were called, and defendant was arrested. Defendant admitted having taken Nyquil ( cf.Vehicle and Traffic Law § 509–l), apparently for a cold. One hour and forty-five minutes after his arrest, defendant performed a series of physical sobriety tests, and a chemical test of his blood alcohol content produced a reading of .037 of one per centum by weight. However, the testing instrument indicated that the breath sample was inadequate for an accurate reading, and there was testimony that defendant had intentionally provided an inadequate breath sample. After reviewing the videotape of the sobriety tests, the Criminal Court concluded that defendant appeared in control of his cognitive faculties and motor coordination but, crediting the testimony as to defendant's appearance at the school and accepting the chemical test results, convicted defendant of the offense.
On appeal, as was the case at trial, defendant challenges the legal sufficiency of the proof that he attempted to endanger the welfare of a child. We agree that the trial evidence was legally insufficient to support the conviction.
If the evidence of defendant's appearance and conduct merited a finding beyond a reasonable doubt that his ability to operate a vehicle was impaired ( see Vehicle and Traffic Law § 1192[1] ), proof of his operation of a vehicle in such a condition, with a child passenger, standing alone, would not be legally sufficient to establish the offense of endangering the welfare of a child ( People v. Chase, 186 Misc.2d 487, 488, 720 N.Y.S.2d 707 [App. Term, 9th & 10th Jud. Dists. 2000] ). Thus, by extension, defendant could not, under those circumstances, be found guilty of attempting to commit the offense of endangering the welfare of a child ( People v. Grennon, 36 Misc.3d 33, 35, 949 N.Y.S.2d 566 [App. Term, 9th & 10th Jud. Dists. 2011] ).
Even if the facts support a finding that defendant was intoxicated ( seeVehicle and Traffic Law § 1192[3]; People v. Rogalski, 93 A.D.3d 1322, 1323, 941 N.Y.S.2d 825 [2012] ), reversal would nevertheless be mandated because the facts do not establish that defendant attempted to endanger the welfare of a child. An attempt to commit an offense ( seePenal Law § 110.00) “requires a showing that [the] defendant committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained” ( People v. Warren, 66 N.Y.2d 831, 832, 498 N.Y.S.2d 353, 489 N.E.2d 240 [1985];see also People v. Gajadhar, 38 A.D.3d 127, 135, 828 N.Y.S.2d 346 [2007] [while the final act necessary to commit the offense may not have occurred, this “does not require the conclusion that steps taken in furtherance of this objective cannot constitute an attempt”] ). The point at which a person's conduct crosses the “ boundary where preparation ripens into punishable conduct” ( People v. Naradzay, 11 N.Y.3d 460, 467, 872 N.Y.S.2d 373, 900 N.E.2d 924 [2008] [internal quotation marks omitted] ), that is, when the person is in dangerous proximity to the commission of an offense, is not easily defined. In People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989], the Court of Appeals, noting that the boundary “differs with different crimes” ( id. at 191, 544 N.Y.S.2d 769, 543 N.E.2d 34), ruled that an attempt may be found where the defendant's acts proceed “to the extent of placing it in [the defendant's] power to commit the offense unless interrupted” ( id. [internal quotation mark omitted] ).
In the case at bar, defendant was arrested inside the school building and there was evidence that no child had yet boarded the school bus. Thus, it cannot be said that defendant was at a stage beyond merely preparing to commit the offense. Whatever his ultimate intent, defendant was not yet in a dangerous proximity to endangering the welfare of a child and, therefore, could not be found guilty of an attempt to commit the offense ( see People v. Rizzo, 246 N.Y. 334, 158 N.E. 888 [1927];People v. Acevedo, 140 A.D.2d 846, 528 N.Y.S.2d 234 [1988];People v. Ciardullo, 106 A.D.2d 14, 483 N.Y.S.2d 352 [1984];People v. DeJesus, 34 Misc.3d 141[A], 2012 N.Y. Slip Op. 50083[U], 2012 WL 231259 [App. Term, 2d, 11th & 13th Jud. Dists. 2012] ).
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.