The People, Respondent,v.Anthony Berry, Appellant.

Brief

N.Y.May 5, 2016

To be argued by BARBARA ZOLOT (15 minutes argument time requested) Court of appeats __ .,.,,. __ ~tate of Jiew !Jork __ .,.,,. __ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- APL-2015-00098 ANTHONY BERRY, Defendant-Appellant. DEFENDANT-APPELLANT'S BRIEF BARABARA ZOLOT Of Counsel June 19, 2015 Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 (212) 577-2523 Fax: (212) 577-2535 bzolot@cfal.org TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................ 111 PRELIMINARY STATEMENT ....................................... 1 JURISDICTIONAL STATEMENT .................................... 2 QUESTION PRESENTED .......................................... 2 PERTINENT STATUTES AND RULES ............................... 2 SUMMARY OF ARGUMENT ........................................ 3 STATEMENT OF FACTS ........................................... 6 The Trial ..................................................... 6 The People's Case ........................................ 6 First Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 The Defense Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 TH's Testimony ................................... 11 Appellant's Testimony .............................. 14 Second Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Summations ............................................ 17 The Court's Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Deliberations and Verdict ................................. 20 Motion to Set Aside the Verdict ................................. 21 Sentence .................................................... 23 1 Appellate Division Proceedings ................................. 23 ARGUMENT ..................................................... 24 THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE APPELLANT'S GUILT OF UNLAWFULLY DEALING WITH A CHILD IN THE FIRST DEGREE WHERE THE PROOF ESTABLISHED ONLY THAT APPELLANT WAS AN OCCASIONAL OVERNIGHT GUEST WHO THEREFORE LACKED AUTHORITY TO "PERMIT" THE CHILDREN EITHER TO ENTER OR REMAIN ON THE PREMISES, AND WHERE NO PROOF ESTABLISHED THAT HE STOOD IN LOCO PARENTIS TO THE CHILDREN SUCH THAT HIS FAILURE TO ACT VIOLATED A LEGAL DUTY HE OWED THEM. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I,§ 6 ....................................................... 24 A. Derivation of Penal Law § 265.20(1) ........................ 25 B. The evidence was insufficient to sustain appellant's conviction ... 28 1. The evidence did not establish that appellant had authority over the premises .................................. 28 2. The evidence was insufficient to establish that appellant owed a legal duty to the children. . . . . . . . . . . . . . . . . . . . . . . . . . . 31 CONCLUSION ................................................... 48 11 TABLE OF AUTHORITIES Federal Cases Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................. 25, 29 Minnesota v. Olson. 485 U.S. 91 (1990) ......................................................... 6, 29, 31 Roquest v. Kelly, 2013 WL 5570269 (M.D. Penn. 2013) ........................................ 32 State Cases Johnson v. Jamaica Hosp., 62 N.Y.2d 523 (1984) ................................................... 38 Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577 (1998) ........... 28 People v Delamota, 18 N.Y.3d 107 (2011) ............................................................... 29 People v. Carroll, 93 N.Y.2d 564 (1999) ............................................................. 43, 44 People v. Contes, 60 N.Y.2d 620 (1983) ................................................................... 29 People v. Dekle, 56 N .Y.2d 835 (1982) ...... .......... ....................... ..... ...... ................... 45 People v. Dombrowski, 87 A.D.3d 1267 (4th Dep't 2011) .................................... 29 People v. Erb, 70 A.D.3d 1380 (4th Dep't ), leave denied, 14 N.Y.3d (2010) ................................................................................................ 4, 36, 37 People v. Finch, 23 N.Y.3d 408 (2014) ..................................................................... 29 People v. Finkelstein, 9 N .Y.2d 342 (1961) . .. .............................. ...... ....... ... ............. 35 People v. Ford, 11 N.Y.3d 875 (2008) ....................................................................... 34 People v. Goddard, 206 A.D.2d 653 (3rd Dep't 1994) ........................... 4, 35, 40, 42 People v. Graves, 76 N.Y.2d 16 (1990) ..................................................................... 29 People v. Gray, 86 N .Y.2d 10 (199 5) ............................................................................ 2 People v. Heil, 28 Misc.3d 215 (Rye City Court 2010) ............................................ 32 People v. Hines, 97 N.Y.2d 56 (2001) ................................................................... 2, 30 111 People v. Jean- Baptiste, 11 N.Y.3d 539 (2009) ....................................................... 34 People v. Lilly. 71 A.D. 2d 393 (4th Dep't 1979) .............................................. 39, 41 People v. Martell, 16 N.Y.2d 245 (1965) ................................................................... 25 People v. Munck, 92 A.D.3d 63 (3rd Dep't 2011) ....................................... 35, 36, 43 People v. Myers, 201 A.D.2d 855 (3rd Dep't 1994) ......................................... passim People v. Spadaccini, 124 A.D.2d 859 (3rd Dep't 1986) ........................ 4, 35, 37, 42 People v. Steinberg, 79 N.Y.2d 673 (1992) ..................................................... 3, 33, 42 People v. Stephens, 3 A.D.3d 57 (1st Dep't 2003), leave denied, 2 N .Y.3d 7 46 (2004) .............................................................................................. passim People v. Watson, 182 Misc.2d 644 (1999) ............................................................... 21 People v. Wong, 81 N.Y.2d 600 (1993) ............................................................... 33, 34 People v. Yolanda D. 88 N.Y.2d 790 (1996) .............................................. 4, 5, 38, 41 Pulka v. Edelman, 40 N.Y.2d 781 (1976) ............................................................ 46, 47 Federal Statutes and Constitutions U.S. Const., amend. XIV ................................................................................... 2, 24, 25 State Statutes and Constitutions N.Y. Const., art. I, § 6 ........................................................................................ 2, 24, 25 C.P.L. § 450.90(1) ............................................................................................................ 2 Family Ct. Act§ 1012(g) .............................................................................................. 43 Penal Law§ 15.00(3) ................................................................................................ 3, 33 Penal Law§ 15.10 ............................................................................................... 3, 33, 42 Penal Law§ 125.20 ....................................................................................................... 33 Penal Law§ 220.06(5) .................................................................................................. 10 Penal Law§ 220.16(1) .................................................................................................. 10 Penal Law § 260.10(1) ..... .. ...... . . .. .................... ....... ..................... ......................... ..... . . . 35 Penal Law§ 260.10(2) ...................................................................................... 24, 43, 44 Penal Law § 260.20 (1) .......................................................................................... passim Penal Law§ 260.20 (2) ................................................................................................. 26 lV Penal Law§ 260.21 ........... · ............................................................................................ 26 Penal Law § 265.15 .................................... .............. .................................. ................... 26 Penal Law § 484 (2) . . . . . . .. . . . . . . . . . . . . . . . . . .. . .. . .. . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . . . . .. . . . . . . . 25 Other Materials Black's Law Dictionary (Sixth ed.) ............................................................................. 31 Commission Staff Notes on the Proposed Penal Law ............................................ 26 Donnino, Practice Commentary to Penal Law§ 260.20 (MdCinney's 2010) ...... 27 Memorandum, dated June 16, 1965 from County Judges Association to Counsel to the Governor . .. . . . . .. . . . . . . . . . . . . . . . . . ... . . . . . . . . ............................................................ .. . . . . . . . . . 26 Memorandum, dated June 29, 1992 , from Counsel to the Division of State Police to Counsel to the Governor . . . . . . . . . . . . . . . . ................... .. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . 27 New York State Assembly Memorandum in Support of Legislation, Assembly Bill No. 1025B .............................................................................................................. 27 Webster's Third New International Dictionary (1993) ........................................... 32 v STATE OF NEW YORK. COURT OF APPEALS ------------------------------------------------------------------){ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTHONY BERRY, Defendant-Appellant. ------------------------------------------------------------------){ PRELIMINARY STATEMENT By permission of the Honorable Jenny Rivera, Associate Judge of the Court of Appeals, granted April 2, 2015 (A1)1, this appeal is taken from an order and opinion of the Appellate Division, First Department, entered November 6, 2014 (A2), affirming a judgment of the Supreme Court, New York County, rendered March 10, 2010, convicting appellant, after a jury trial, of three counts of unlawfully dealing with a child in the first degree (Penal Law § 260.20[1 ]), and sentencing him to three concurrent jail terms of one year. On May 7, 2015, this Court granted appellant's motion for assignment of counsel and assigned Robert S. Dean, Center for Appellate Litigation, as counsel on appeal. 1Parenthetical references preceded by "A" are to Defendant-Appellant's Appendix. Both the brief and Appendix have been redacted to refer to the minors by their initials and to their mother and grandmother, who shares their surname, as TH. The exact street address of the children's home has also been redacted. 1 Appellant has fully satisfied his sentence. TURISDICTIONAL STATEMENT - This Court has jurisdiction to entertain this appeal pursuant to C.P.L. § 450.90(1). The issue herein, the sufficiency of the evidence, presents a question of law as defense counsel made specific motions to dismiss at the close of the People's case and after the defense rested. See People v. Gray, 86 N.Y.2d 10 (1995); People v. Hines, 97 N.Y.2d 56 (2001). QUESTION PRESENTED Whether the evidence was legally insufficient to prove appellant's guilt of unlawfully dealing with a child in the first degree where the proof established only that appellant was an occasional overnight guest who therefore lacked authority to "permit" the children to enter or remain on the premises, and where no proof established that he stood in loco parentis to the children such that his failure to act violated a legal duty he owed them. U.S. Const., amend. XIV; N.Y. Const., art. I,§ 6. PERTINENT STATUTES AND RULES Penal Law§ 260.20 (1) provides: A person is guilty of unlawfully dealing with a child in the first degree when: 1. He knowingly permits a child less than eighteen years old to enter or remain in or upon a place, premises or establishment where sexual activity as defined by article one hundred thirty, two hundred third or two hundred sixty-three of this chapter or this activity involving 2 controlled substances as defined by article two hundred twenty of this chapter or involving marihuana as defined by article two hundred twenty-one of this chapter is maintained of conducted, and he knows or has reason to know that such activity is being maintained or conducted. SUMMARY OF ARGUMENT Appellant Anthony Berry was arrested for, and convicted of, three counts of unlawfully dealing with a child in the first degree under Penal Law § 260.20(1) after the police executed a search warrant and found evidence of drug dealing in TH's apartment where appellant, who was not named or described in the warrant, was found sleeping with TH and three of her children. Lacking any evidence that the slumbering appellant affirmatively "permit[ted] a child less than eighteen years old to enter or remain in or upon a place premises or establishment" where unlawful drug activities were "being maintained or conducted " in violation of the statute, the People premised appellant's guilt solely on his alleged acts of "omission" with respect to the children - that, as the prosecutor argued in summation, he did not call 911 or ACS, thereby permitting them to remain on the premises. Under such circumstances, appellant's convictions cannot stand, as the evidence of unlawful dealing with a child was legally insufficient. It is bedrock law that omissions or failures to act cannot provide a basis for criminal liability unless 3 the defendant has a duty to act. See Penal Law§§ 15.00(3); 15.10; People v. Steinberg, 79 N.Y.2d 673, 680 (1992). Relying on that fundamental principle of criminal liability, courts have dismissed convictions for criminally negligent homicide, manslaughter, and endangering the welfare of a child, where the People's evidence failed to establish the predicate duty necessary to support the failure-to-act theory of guilt See People v. Erb, 70 A.D.3d 1380 (4th Dep't ), leave denied, 14 N.Y.3d 840 (2010); People v. Myers, 201 A.D.2d 855 (3rd Dep't 1994); People v. Goddard, 206 A.D.2d 653 (3rd Dep't 1994); People v. Spadaccini, 124 A.D.2d 859 (3rd Dep't 1986). Neither the statutes in those cases, nor Penal Law§ 260.20(1) here, needed explicitly to reference the duty, as it is a proof element through judicial decision, see,~ Steinberg, 79 N.Y.2d at 680. Here, appellant, who was not the children's parent or guardian, owed no legal duty to them unless he stood in loco parentis to them, a demanding standard requiring him to have assumed the responsibility to support and care for the children on a permanent basis. See People v. Yolanda D. 88 N.Y.2d 790, 795 (1996). Plainly that was not the case. The evidence failed to demonstrate that he assumed any responsibility for them at all, let alone the breadth and scope of parental obligations. In summation, the People made no claim that appellant acted as the children's guardian or caretaker, arguing only that TH trusted appellant to be in the apartment when her children were there - a claim that 4 could apply equally to a teenage babysitter and does not establish a relationship of permanent support and care. Calling the police or ACS when one is aware of illicit activity on premises where children are present may be morally laudable, but criminally prosecuting people when they do not would radically expand criminal liability and effectively impose an unprecedented legal duty on non-parents to act with respect to other people's children. The evidence here was also insufficient because it failed to demonstrate that appellant occupied a position in relation to the premises as to authorize him to "permit" the children to enter or remain in the apartment. As he lacked such authority over the premises, he could not have violated the statute. TH was the sole lessee, and the evidence, taken in the light most favorable to the People, showed only that appellant was an occasional visitor and overnight guest. Except for some clothes he retrieved from a dresser, there was no evidence that he kept his personal possessions or belongings in the apartment. There was no evidence that his name was on the mailbox or that he had a room in the apartment. Aside from his name appearing on a single cable bill, there was no evidence that he contributed to the household's operation or to its expenses. Despite the police's six-week long surveillance of the apartment, TH was the only person named in the warrant. As an overnight guest, appellant may well have possessed an expectation of privacy in the premises, but he "ha(d] no legal interest in the premises and d[id] 5 not have the legal authority to determine who may or may not enter the household." Minnesota v. Olson, 48S U.S. 91, 99 (1990). Lacking that legal authority, he could not have permitted the children - or anyone - to enter or remain, nor barred their entry, the conduct required for a violation of the statute to occur. STATEMENT OF FACTS The Trial The People's Case At 6:1S a.m. on October 9, 2008, Detective Charles Martello executed a warrant authorizing him to search the premises of [xxxx] Brooklyn Avenue, Apartment 4A in Kings County, and to search the named target TH (A3S-46). The warrant's execution followed six weeks of surveillance (A3S-6, A108-09). Appellant Anthony Berry was not named in the warrant or in the application for the warrant (Al 10). After one of the field team officers opened the apartment door using a battering ram, Detective Martello entered the apartment and saw appellant and TH, with three children in between them, asleep on a pullout sofabed in the middle of the living room (A46, A48, AS3, ASS, AS6). Those children were identified as nine-year-old FH, five-year-old NH, and six-month-old RH (AS6). Appellant, who appeared to be S'6" tall and 130 pounds, was wearing at-shirt and 6 boxer shorts (AS7). TH wore at-shirt and shorts or underwear (ASS). To the detective's knowledge, appellant was not the father of or in any way related to the children (A136). The field team handcuffed appellant while Detective Martello searched the rest of the apartment (AS8), which opened up from the main entrance into the living room and a kitchen to the right (A47). Behind the living room was a doorway leading to three rooms: to the left, a bedroom; in the middle to the right of that first bedroom, a second bedroom; and to the right of that second bedroom, a bathroom (A47). In the left bedroom, Detective Martello saw bunk beds, children's toys, and a television, but no contraband (A61, A126-27). In the right bedroom, Detective Martello observed a dresser, a box spring and a bicycle but no contraband (A61, A62, A69). The bathroom also had no contraband (A62). In the kitchen, Detective Martello observed, to the right of the kitchen entryway, crack cocaine on a plate on a cabinet shelf (A63). That shelf was either S feet and 8 inches or 6 feet off the ground (A80, A121) and the plate was in plain view to the detective who was S'10" tall (A84). Above the plate, Detective Martello found a shoebox containing $161 (A6S). On the kitchen table, Detective Martello found a cable bill addressed to Anthony Berry at that apartment (A8S; see People's 17). The bill's due date was September 22, 2008, which was about 7 two weeks before the search (A88). On a table in the living room, Detective Martello found the apartment's lease agreement under TH's name (ASS). When Detective Martello obtained pedigree information from appellant and TH (A67), TH identified the apartment as her address (A68), but Detective Martello was not sure whether appellant provided an address (A68). TH provided all the information for the children (A68). Appellant signaled, in a way Detective Martello could not remember exactly, that his clothes were in the right bedroom (A68, A130). After being escorted into that bedroom, appellant said his pants were in the dresser (A107). The detective removed a pair of jeans from the bottom drawer, took a sweatshirt that was hanging from the back of the door, and gave those clothes to appellant (A107). The police uncuffed appellant so that he could dress himself in that bedroom and then handcuffed him again (A69). Appellant announced that he needed his belt, and stated that it was in the living room (A70). Detective Martello and another officer escorted appellant into the living room, where a pair of belted jeans lay next to the sofabed (A70-1). Detective Martello asked appellant if that was his belt, he answered affirmatively (A70), and the detective gave the belt to appellant (A75). However, appellant was not allowed to wear the belt (A134) because it was only a short ride to the precinct 8 and his belt and shoelaces would have to be taken away (A134-5). The police did not keep the belt (A134), and Detective Martello never ascertained whether the size of the jeans from which he removed the belt was the same size as the jeans that appellant was wearing (A135). In the pair of belted jeans that appeared to be men's (A81, A107), Detective Martello found fifty dimebag-sized zips (A88-9) of crack cocaine inside a cigarette box, two cellphones and a key that appeared to be for the apartment (A81). Because the officers' entry with the battering ram had damaged the apartment door (A82, A87), when Detective Martello fit the key through the keyhole (A83), it turned only partially (A86). Underneath the jeans was a laundry bag, from which Detective Martello pulled out another pair of jeans which contained $1,222 (A81). Detective Martello didn't know whether those were women's jeans (A138), and when asked whether he told the Assistant District Attorney that they were women's jeans, the detective answered, "If [the ADA] wrote that, that's what I told him" (A139). Detective Martello did not find any scales or drug packaging material in the apartment (A124, A148). Finally, when appellant and TH were about to be taken to the precinct for processing, the officers spoke with TH, who authorized the release of her children to a friend or family member (A 7 5-6). 9 Indictment Number 5002N/2008 charged appellant and TH jointly with two counts of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16[1]); two counts of criminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06[5]); and three counts of unlawfully dealing with a child in the first degree, one count for each of the three children (Penal Law§ 260.20[1])(A4). TH pleaded guilty before trial in exchange for a sentence of probation (A295). The substance in the kitchen plate tested positive for cocaine, weighing 574 milligrams (A219, A236). The substance in the fifty zips also tested positive for cocaine, cumulatively weighing 2,323 milligrams (A219, A234). First Motion to Dismiss At the close of the People's case, appellant argued that all counts, including the three charges for unlawfully dealing with a child, should be dismissed (A253). Because no evidence showed that appellant was the children's parent or guardian, he was not in a position to "permit" them to be in the apartment (A253). Appellant had no authority over either the children or the apartment (A253). The evidence showed that only TH was a parent of the two older children and the grandparent of the youngest, and only TH had authority over the apartment (A253). The court reserved decision (A253). 10 The Defense Case TH's Testimony On the day the police executed the warrant, October 9, 2008, thirty-seven-year-old TH was residing at [xxxx] Brooklyn Avenue, Apartment 4A (A263). As the head of household and the only person on the lease agreement, she had lived there since 2000 (A263, A264). One bedroom contained bunkbeds for two of her children and her six-year-old's bicycle (A292, A293); the other bedroom had a queen bed for two of her daughters (A296). TH's two "babies" always slept with her (A296). TH's nine children ranged in age from five months to twenty years old (A264, A296), a.nd the older children came and went from the apartment as they pleased (A297, A314). Prior to trial, TH had known appellant for about three years (A266); he was a family friend (A309) whom "everyone" knew was homeless (A316). Appellant was not TH's lover (A315), nor the father or guardian of any ofTH's children (A293), nor did he have any authority over those children (A295). TH first met appellant through her thirty-one-year-old nephew Pappy (A294, A266, A325), who lived a few buildings away with his great grandmother (A310, A312). TH's nephews, nieces and children would regularly come and go as they pleased in her apartment (A314), and Pappy would sometimes bring appellant with him (A294). 11 The unemployed TH supported herself by selling drugs, including nickle bags of cocaine (A265, A300-02). The cocaine found in her apartment was for sale, not her personal use (A301). TH did not sell drugs directly from her apartment; instead, she hand-delivered drugs to buyers after they called her (A302). TH never showed appellant or told him about the drugs in her apartment (A293). She was arrested in this case and pleaded guilty in exchange for probation (A295). At the time of her arrest, TH had drugs in the kitchen (A278) and living room (A287), in her jeans (A279) and her bra (A293). TH kept the cocaine in the kitchen on a plate in a top shelf high enough that she had to climb up on the counter to reach it (A304, A280); the door covering that shelf had been ripped off by her children (A31 7). TH also owned the fifty zips of cocaine, the cigarette box in which they were encased, and the jeans in which they were found (A289, A292); she was wearing those jeans the night before her arrest (A287). Before TH went to sleep, she threw those jeans on the floor by the bed (A288). In those same jeans, TH had money, her key, her phone and her son's phone (A288). TH also had cash hidden all over the apartment, including in a bunkbed mattress, her kids' socks (A290), and the shoebox in the kitchen containing approximately $160 (A285); the shoebox was not in plain view and was in a 12 different shelf from the plate of cocaine (A285). TH also estimated that she had more than $1,222 in her jeans found in the laundry bag (A305, A292, A291). TH never told Pappy or the rest of her family about the drugs or her drug-dealing (A329-30). She also never showed the drugs from the kitchen or the shoebox money to appellant (A286). Starting in August 2008 (A314), appellant occasionally would sleep in TH's apartment (A267). TH never left him alone with her children (A299) and he had no authority over them (A29 5). She did not give him authority to look around her apartment (A293) or go into any room (A295), and trusted him not to "snoop around" her apartment and not to hurt her children while she was asleep (A329). Appellant did not have his own room (A269), did not sleep in the children's bedrooms (A298) or the sofabed (A299), and was only allowed to sleep on a mattress on the floor (A298). Appellant kept no clothes there (A299), and did not pay anything in return for sleeping there (A268). TH's daughter had used appellant's name, without his permission, for their cable bill because TH had bad credit (A31 7, A268). Appellant was upset when he first learned about the bill, but acquiesced to leaving the bill in his name (A326). No other bill was in appellant's name (A326). On the night before her arrest, appellant arrived unannounced at her apartment around 2:30 a.m. with Pappy (A268, A294). Pappy went home around 3:30 a.m. (A295, A310). Appellant 13 could not stay with Pappy because that apartment was crowded and non-family members were not permitted to stay over (A326). Appellant asked TH if he could spend the night, so TH laid a mattress for him on the floor of the living room (A268), where TH and the children slept on the pullout sofabed because only that room's television was functioning (A269-70). Appellant asked if he could fall asleep on the mattress (A270), and went to bed wearing his pants and tanktop (A330). At around 6:15 a.m., the police broke open the apartment door (A273). TH was on the pullout sofabed with her grandchild and two children (A273), and appellant was on the mattress below them (A27 4). He was escorted out of the apartment, without the police having given him clothes (A321), and in the same pants that he was wearing when he arrived that night (A322). Appellant's Testimony Thirty-three-year-old Anthony Berry (A333) was not the father, relative or guardian of any ofTH's children (A348), and he had no knowledge about the drugs in TH's apartment (A347, A358). Appellant never lived in that apartment, and was not living there when he was arrested (A359, A360). Rather, appellant had been homeless since 2003, when his father, with whom appellant had lived, passed away (A336). Appellant did not have a permanent address, but would stay where he could (A339): usually at different friends' houses, sometimes at his 14 mother's house (A336, A337), and sometimes the train (A339). Appellant had been acquainted with TH for three years through her family (A367). Her cousin Black and her nephew Pappy were good friends with appellant (A339, A340), and TH did not mind appellant's visits because he was always with Pappy (A368). Appellant and TH were friends and saw each other about every other day beginning in August, a few months before his October arrest (A339); he slept over about five times total (A341). He slept for the first time in TH's apartment that August (A340, A341) - after passing the time talking that night, appellant asked if he could sleep there (A340-41). TH pulled out the mattress for him; the two never slept in the same bed (A341). Appellant would never stay for long because he would wake up early the next morning to do "scrap work" (A372) (collecting rubbish and delivering it to the scrap yard), which he had been doing on and off the books for the past four to five years to earn money (A333-34). Appellant could only spend the night at TH's if she allowed him (A341). He did not have her permission to walk anywhere in the apartment (A343), and although TH did not articulate specific rules in that regard, appellant considered it inappropriate to just wander through her, or anyone else's, house (A343). When he stayed over, appellant confined himself to the living room (A370). Although he could see the kitchen from the living room since they were adjacent (A374), 15 appellant did not know where things were in the kitchen (A374), and he was not aware that a door of a kitchen cabinet had been ripped off (A375). Appellant came to view TH's use of his name on her cable bill as an "exchange" for his sleeping there (A383), even though he was initially upset when he first found out about it (A390). Appellant, however, never paid that bill, never told TH he would pay it, and had no agreement with her that he would pay it (A390). On the night before his arrest, appellant arrived at TH's apartment with nowhere to go (A342). He had asked if he could stay with Pappy, but Pappy's grandmother did not allow guests (A342). So instead of trying to sneak appellant into his grandmother's unit, Pappy brought him to TH's apartment (A342), where her children and grandson were (A343-44). TH let appellant spend the night (A342). Appellant removed his hoodie, and, still in the tank top and blue jeans he was wearing (A344, A345), went to sleep on the mattress on the floor next to the pullout bed where the children were (A344, A342, A357). At around 6:15 a.m., the police entered the apartment (A345). After finding drugs in TH' s kitchen, the police arrested appellant and TH (A346). The police did not escort appellant to another room to get dressed, and appellant did not ask them for a belt (A347, A381). Appellant explained, "I mean I'm not a dummy. 16 I'm not going to ask for something that I know there's drugs inside of it" (A380). After his arrest, appellant was interviewed by the Criminal Justice Agency (A360). He told them he was homeless and he did not provide a home address (A363, A364) or report TH's apartment as his address (A349). Appellant used TH's address once, after he was arrested regarding marijuana in August or September before the instant arrest (A365, A366). Appellant had stated that he was homeless, but was told he had to provide an address (A365). Appellant then reported TH's address as his own because that was the last place where he remembered sleeping (A349). Second Motion to Dismiss At the close of the defense case, appellant renewed his earlier motion to dismiss (A399, A400), adding that the defense testimony explained why appellant was in the apartment and what he was doing there (A399). Appellant was only in the apartment for a matter of hours; he had no meaningful control over the apartment and no knowledge of what was inside (A399). The court reserved decision (A400). Summations Defense counsel spent the bulk of his summation attacking the People's proof with respect to the drug charges. Defense counsel assailed the police investigation as sloppy and detailed the absence of evidence and photographs to 17 corroborate Martello's testimony, as well as the absence of proof that appellant lived in the apartment as to impart dominion and control over the drugs or knowledge of the drug activity (A402-35). In particular, he assailed the detective's testimony that appellant retrieved the belt from the jeans on the floor, questioning why appellant would seek a pair of pants that he knew to contain drugs, and why the detective would let him get a belt that he wasn't permitted to wear (A429-30). As for appellant's relationship to the children, defense counsel stated that appellant was "not the father ... not the guardian," had "no relationship" to them and had "no authority." (A407). The prosecutor did not contend that appellant was the parent or guardian of the children, or allege that he provided sustained care for them. He noted only that TH "trusted [appellant] to spend the night next to her children" (A438). His "strong relationship" with TH, evinced in part by the trust she reposed in him with respect to the children, granted him "access to the apartment" (A452). His relationship with TH, his access to and prior contacts with the apartment, and his name on the cable bill, all gave him dominion and control over the area (A452- 54). With respect to the unlawful dealing counts, the prosecutor argued: We got [RH,] [NH] and [FH] in there; a nine-year old, a five year old, a child less than one year old in that apartment unlawfully dealing with a child in the first degree ... on that charge there's no question that 18 (A463). Anthony Berry permitted or allowed [RH], [NH] and [FH], three children under the age of eighteen in the premises. Did he call 911; did he call ACS; did he call anybody so they were allowed in the premises where cocaine activity is being conducted. The Court's Charge The court charged the jury on two counts of third-degree possession of a controlled substance (possession with intent to sell)(A479), two counts of fifth degree possession of a controlled substance (possession of 500 or more milligrams)(A480-81), and three counts of unlawfully dealing with a child (A481- 82). With respect to the unlawfully dealing counts (counts 5, 6, and 7), the court instructed the jury that each of the three counts involved a different one of the three children found in the apartment, and defined the crime: Under our law, a person is guilty of unlawfully dealing with a child when that [person] knowingly permitted a child less than 18 years old to enter or remain in a place where activity involving controlled substances is maintained; and said person knew or had reason to know that such activity was being maintained or conducted. I previously told you what 'knowingly' means, and the meaning of that phrase is the same here. (A481). The court had previously charged that "a person 'knowingly' possesses cocaine when a person is aware that he is in possession of cocaine" (A478). Finally, the court instructed the jury that it could only find appellant guilty of unlawfully dealing with a child if the People proved each of three elements: (1) that on or about October 9, 2008, appellant permitted a child less than 18 years 19 old to enter or remain in a place where activity involving controlled substances was maintained; (2) that appellant did so knowingly and unlawfully; and (3) that appellant knew or had reason to know that such activity was being maintained or conducted (A482). The court did not provide any instruction on accomplice liability nor did it read the indictment to the jury. Each of the counts submitted to the jury was couched solely in terms of appellant's liability (~, "the defendant, Anthony Berry ... ," A479, A480, A482). Deliberations and Verdict The jury's first request, which the court granted, was to open and review the entirety of the cable bill (A491, A492). Second, the jury asked to "hear the specifics regarding the laws as they pertain to counts 5, 6 & 7" (A491-92). In response, the court re-read its charge on unlawfully dealing with a child (A492-94), and explained again that "a person knowingly does something when a person is aware that he or she is doing so" (A493). In its third note, the jury requested a readback of Detective Martello's testimony about the jeans in which he found the cigarette pack and the $1,200 (A492). That testimony was read back to the jury (A495). The jury acquitted appellant of the top four counts: both counts of third-degree criminal possession of a narcotic drug with intent to sell, and both 20 counts of fifth-degree criminal possession of a controlled substance (A497). It convicted appellant of counts 5, 6 and 7 for unlawfully dealing with a child (A497- 501 ). Motion to Set Aside the Verdict Appellant moved to set aside the verdict, arguing, inter alia, that the verdict was insufficient to prove unlawfully dealing with a child (A508). Appellant was neither the parent nor guardian of the children, and no evidence showed that appellant had any authority within the apartment itself (AS 19). Viewing the evidence in the light most favorable to the People, the cable bill was the only basis on which the jury could have concluded that appellant had any authority in the apartment, either as a subtenant in the apartment or a roommate of the primary tenant (A519). Appellant further argued that no evidence showed that he had made any overt act that could be construed as "permitting" the children to enter or remain in the apartment (A519). Relying on People v. Stephens, 3 A.D.3d 57 (1st Dep't 2003); People v. Myers, 201 A.D.2d 855 (3d Dep't 1994); and People v. Watson, 182 Misc.2d 644 (1999), appellant argued that criminal liability could not be premised on a failure to act unless the defendant had a legal duty to act (A519-20). There was no evidence that appellant had any legal duty requiring him to actively prevent the children from entering or remaining in the apartment, even if he knew 21 that there was drug activity being conducted on the premises (AS 19). Because he had no legal duty toward the children and had no control over the apartment, appellant was in no position to "permit" the children to be there (AS 19). Although the court found appellant's argument "interesting" (A510), the court denied both appellant's motion to set aside the verdict and his previous motion for a trial order of dismissal (A511). The court reasoned that it was making an "essentially factual" determination (A510), and that there was ample proof from which the jury could reasonably find that appellant permitted the children to remain in a place where he knew or had reason to know that activity involving controlled substances was being maintained: the plate of cocaine in open view, the cable bill in appellant's name, appellant's sleeping in the same bed with the children and their mother, appellant's prior use of that address, and the fifty zips of cocaine and a key to the apartment in a pair of jeans that the jury could have reasonably concluded were appellant's (AS 11). The court concluded that sufficient evidence tied appellant to both the apartment and the children (A512). The court rejected appellant's claim that the in loco parentis doctrine was required to support a conviction under Penal Law§ 260.20 (A512). The court reasoned that "no such requirement appears in [the statute]" so it declined to "infer" the in loco parentis doctrine or "read into" the statute as proposed by 22 appellant (A512). The court added that it was unnecessary to find that appellant exercised dominion over the apartment; rather, it was sufficient that "he knew of the narcotic activity and permitted the children to remain therein" (A512). But "even if more were required, there certainly was sufficient evidence tying [appellant] both to the apartment and the children in question" (A512). Sentence Appellant was sentenced to one year city time on each of the three counts, to run concurrently (AS 14). Appellate Division Proceedings On appeal to the Appellate Division, First Department, appellant challenged the sufficiency of the evidence with respect to the counts of unlawfully dealing with a child, arguing that no proof established that appellant either committed a voluntary act "permitting" the children to enter or remain, or that he assumed a parental role such that his failure to act violated a legal duty owed them. The Appellate Division affirmed appellant's convictions (A2). With respect to appellant's sufficiency claim, the court held: The evidence supports a reasonable inference that defendant "permit[ted]" several underage children to "enter or remain" in a place of drug activity (Penal Law § 260.20[1]), even though, in permitting the children to enter or remain defendant may be viewed as having acted jointly with his codefendant. The statute does not 23 (A2-3). require a defendant to have a legal responsibility for the care or custody of the child (compare Penal Law§ 260.10[2]), and defendant's guilt was not negated by the fact that the codefendant may have been even more blameworthy, by virtue of her relationship with the children. A Judge of this Court granted appellant leave to appeal (Al). ARGUMENT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE APPELLANT'S GUILT OF UNLAWFULLY DEALING WITH A CHILD IN THE FIRST DEGREE WHERE THE PROOF ESTABLISHED ONLY THAT APPELLANT WAS AN OCCASIONAL OVERNIGHT GUEST WHO THEREFORE LACKED AUTHORITY TO "PERMIT" THE CHILDREN EITHER TO ENTER OR REMAIN ON THE PREMISES, AND WHERE NO PROOF ESTABLISHED THAT HE STOOD IN LOCO PARENTIS TO THE CHILDREN SUCH THAT HIS FAILURE TO ACT VIOLATED A LEGAL DUTY HE OWED THEM. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I,§ 6. Appellant Anthony Berry's three convictions for unlawfully dealing with a child in the first degree cannot stand. He did not have control over the apartment necessary to commit the required statutory act of "permit[ ting]" the children to enter or remain on the premises, nor did he have the legal duty that the law requires to impose criminal liability for his failure to act to remove them from their home. Accordingly, the evidence was insufficient to sustain his convictions, 24 in violation of due process. See U.S. Const., amend. XIV; N.Y. Const., art. I,§ 6; Jackson v. Virginia, 443 U.S. 307 (1979). In affirming appellant's convictions, the Appellate Division effectively imposed an unprecedented duty on non-parents to take action with respect to other people's children whenever they are aware of certain illicit activities or face criminal prosecution themselves. A. Derivation of Penal Law§ 260.20 (1) Present Penal Law§ 260.20 (1) has its origins in former Penal Law§ 484 (2), which made it a misdemeanor for "[a] person" to "admitO or to allowO to remain" "any child actually or apparently under the age of sixteen years" "in any rep..:ited place of prostitution or assignation, or in any place where opium or any preparation thereof is smoked." See 89 McKinney's Laws (1938). Penal Law§ 484(2) was one of six subsections, "each of which forbidO certain commercial activities with children which are thought to be harmful to children." See People v. Martell, 16 N.Y.2d 245, 247 (1965). With the Penal Law's overhaul in 1965, the Legislature added a new B misdemeanor, Penal Law§ 260.20, entitled "Unlawfully dealing with a child." See L. 1965, ch. 1030, § 1, eff. Sept. 1, 1967. The statute contained five subsections. Subsection (2) provided that "[a] person is guilty of unlawfully dealing with a child when ... [h]e knowingly permits a child less than eighteen years old to enter or remain in a place where illicit sexual activity or illegal narcotics activity is 25 maintained or conducted .... "Penal Law§ 260.20 (2). The Commission Staff Notes on the proposed legislation note only that subdivision two was derived from Penal Law § 484 (2) and that it increased the age of the child to 18 years. See Commission Staff Notes on the Proposed Penal Law, at 395 (then denominating the new crime as Penal Law§ 265.15). A memorandum to the Governor's Counsel from the County Judges Association expressed a specific concern that such re-defined crimes as Unlawfully Dealing with a Child would require "many years of appellate review before these principles are as well understood as are the definitions in the old Penal Law." See Memorandum, dated June 16, 1965 from County Judges Association to Counsel to the Governor. In 1992, the Legislature significantly amended Penal Law § 260.20. It divided the crime into two separately graded offenses, the A-misdemeanor of first-degree unlawfully dealing with a child [Penal Law§ 260.20], and the B- misdemeanor second-degree crime [Penal Law § 260.21]. See L. 1992, Ch. 362. Former Penal Law§ 260.20 (2) essentially became subsection (1) of the new first- degree crime, see Penal Law§ 260.20(1), with certain changes. Instead of referring to the prohibited activity as "illicit sexual activity or illegal narcotics activity," as the former statute had, the 1992 amendments "defined the prohibited activity by a cross-reference to the statutes defining such prohibited activity." See 26 Penal Law§ 260.20(1); Donnino, Practice Commentary to Penal Law§ 260.20 (McKinney's 2010). The Legislature also broadened the statute to include "premises" and "establishments" as among the venues where a child could not be permitted "to enter or remain." See L. 1992, Ch. 362; eff. November 1, 1992. stated: Commenting in support of the legislation, the New York State Assembly Promoting the corruption of children is one of the most abominable acts a person can commit. The State has a responsibility to protect our children from those who exploit them for illicit purposes. The increased penalties imposed by this act more appropriately reflect the seriousness of the crime. This act would also clarify the definitions of those offenses punishable by this section, making it easier to prosecute those individuals unlawfully dealing with a child. See New York State Assembly Memorandum in Support of Legislation, Assembly Bill No. 1025B.2 Present Penal Law§ 260.20 (1) thus provides: A person is guilty of unlawfully dealing with a child in the first degree when: 2 The Division of State Police registered their opposition to the legislation, identifying potential unintended consequences from the statute's incorporation of specific Penal Law Articles, such as prohibiting "the police from permitting children less than 18 from entering police stations (since controlled substance activity occurs there), as well as prohibiting a pharmacy, hospital or even a doctor's office from permitting a child less than 18 years to old to enter." See Memorandum., dated June 29, 1992 , from Counsel to the Division of State Police to Counsel to the Governor. 27 1. He knowingly permits a child less than eighteen years old to enter or remain in or upon a place, premises or establishment where sexual activity as defined by article one hundred thirty, two hundred third or two hundred sixty-three of this chapter or this activity involving controlled substances as defined by article two hundred twenty of this chapter or involving marihuana as defined by article two hundred twenty-one of this chapter is maintained of conducted, and he knows or has reason to know that such activity is being maintained or conducted. B. The evidence was insufficient to sustain appellant's conviction. 1. The evidence did not establish that appellant had authority over the prermses. "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." Majewski v. Broadalbin-Perth Cent. School Dist., 91N.Y.2d577 (1998). Under its plain terms, a person violates Penal Law § 260.20(1) when he or she "permits" a child either "to enter" or "remain" in a place or on premises where certain illegal activities are taking place, of which the person either "knows or has reason to know." As the evidence did not sufficiently establish that appellant had authority over the apartment either to permit or exclude TH's children from it, his conviction for unlawfully dealing with a child cannot stand. An owner is entitled to give consent for another to enter private premises, as can one "whose relationship to the premises" imparts "authority to issue such 28 consent," such as a tenant. See People v. Graves, 7 6 N .Y.2d 16, 20 (1990); People v. Dombrowski, 87 A.D.3d 1267, 1268 (4th Dep't 2011)("In general, a person is 'licensed or privileged' to enter private premises when he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] authority to issue such consent."); People v. Finch, 23 N.Y.3d 408, 417 (2014) (it is "generally correct" that "[o]ne who has been invited by a tenant cannot be a trespasser"). Overnight guests, however, "have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household." Minnesota v. Olson, 485 U.S. 91, 99 (1990). Although, as Olson found, they may have an expectation of privacy,"[i]t is the host "who has ultimate control of the house," even though the guest may not be "confined to a restricted area of the house," and may have a "measure of control over the premises" when the "host is away or asleep." Id. The standard for reviewing the legal sufficiency of evidence in a criminal case is whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Contes, 60 N.Y.2d 620, 621 (1983), quotingJackson v. Virginia, 443 U.S. 307, 319 (1979); People v Delamota, 18 N.Y.3d 107, 113 (2011). Here, as defense counsel moved to dismiss after both the People and defense cases, the entirety of the evidence is subject to review. See 29 People v. Hines, 97 N.Y.2d 56, 61-62 (2001). No valid line of reasonable and permissible inferences could lead a rational person to conclude that appellant occupied a position in relation to the premises such that he could have permitted or barred TH's children from entering the premises, or excluded them from remaining on the premises once they were inside. 3 He was not on the lease, nor named or described in the warrant, even after a six-week long surveillance of the location. It stands to reason that the police did not consider him an occupant of the targeted premises, if they even saw him at all during that period. Other than the pants and sweatshirt he retrieved from a bedroom that TH identified as her daughters' and which did not appear to be occupied, there was no evidence that he kept his personal possessions or belongings in the apartment, and TH testified that he kept no clothes there. Other than his name on a single cable bill (which TH explained in her testimony), there was no evidence that he contributed to the rent or to any other household expenses. The People presented no evidence that his name was on the mailbox, and, even assuming the belted jeans were his, the People failed to prove that the key recovered from them actually opened the door, or that he had any other keys necessary for entering the building or opening the mailbox. TH testified that appellant was only an occasional overnight guest, had no 3 As a practical matter, it is unclear how appellant could have barred the children from entering their own home. 30 authority to look around her apartment, and did not have his own room. Even if he were free to roam the apartment and had a "measure of control" over the apartment as an occasional visitor, that would not have given him the right to permit or bar others from entering or remaining. See Olson, 485 U.S. at 99. Notably, too, the jury acquitted appellant of all the drug possession counts, indicating its disbelief that appellant had dominion and control over the apartment. Accordingly, as the evidence proved only that appellant was an occasional social visitor, appellant could not have "permit[ted]" the children to enter or remain on the premises as he lacked the authority to do so. As defense counsel argued below, the evidence was therefore insufficient to establish his guilt of the crime, requiring vacatur of his convictions and dismissal of the charges. 2. The evidence was insufficient to establish that appellant owed a legal duty to the children. Even if the proof allowed that appellant had sufficient ties to the premises to give him authority over who entered and remained, the evidence was insufficient to establish that he owed a legal duty to the children such that his failure to act - the only "conduct" the People proved - constituted a crime. Again beginning with plain meaning, Black's Law Dictionary defines "permit" as "to suffer, allow, consent, let; to give leave or license; to acquiesce by failing to prevent, or to expressly assent or agree to the doing of an act." Black's 31 Law Dictionary at 1160 (Sixth ed.). The primary definition in Webster's Third New International Dictionary is "to consent to expressly or formally," and to "allow" and "tolerate." Webster's Third New International Dictionary (1993). These definitions encompass both affirmative action and assent through inaction. "Express [] assent" suggests affirmative action, such as formally inviting a child into one's home. "Allowing" or "acquiesc[ing] by failing to prevent," on the other hand, contemplates inaction, or, in the words of one court, "passive acquiescence." Cf. People v. Heil, 28 Misc.3d 215, 220-21 (Rye City Court 2010)(finding that the use of "permit" in the Alcoholic Beverage Control Law "indicates that the Legislature when it wanted to ban knowing passive acquiescence in the face of alcohol consumption by minors, could and did do so"). In particular, permitting a child to "remain" points to inaction or failing to act, ~' taking no steps to disrupt the status quo by excluding a child who is already on the premises. See,~' Roquest v. Kelly, 2013 WL 5570269 (M.D. Penn. 2013)(in declining to use its authority to expel a bully, school engages in "passive inaction" not an affirmative act). In the instant case, the prosecutor made that exact argument in summation, rhetorically asking the jury, "Did he call 911; did he call ACS; did he call anybody so they were allowed in the premises where cocaine is being conducted." (A463). 32 It is bedrock law that the State can only predicate criminal liability on an individual's omission or failure to act when the individual has a legal duty to perform. See People v. Steinberg, 79 N.Y.2d 673, 680 (1992); People v. Wong, 81 N.Y.2d 600, 607 (1993); Penal Law§ 15.lO("The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act of the omission to perform an act. ... ");Penal Law§ 15.00 (3)('"0mission' means a failure to perform an act as to which a duty of performance is imposed by law."). That is true regardless of whether the relevant criminal statute expressly imposes a duty, as the duty is based on judicial interpretation as set forth in decisional law. In Steinberg, for example, where the prosecution alleged the defendant's guilt of first-degree manslaughter based on his acts of commission (striking his child) and omission (failing to obtain medical care), this Court cited the above Penal Law definition of an omission, along with a parent's "nondelegable affirmative duty to provide their children with adequate medical care." Id. at 680. This Court then went on to find the evidence sufficient to sustain the defendant's conviction because the evidence established that the child's death was "a consequence of ... a failure" - by a parent having a legal duty- "to obtain prompt medical attention." Id. at 680-82. This Court's analysis thus directly incorporated the concept of legal duty in a failure-to act case, 33 notwithstanding that Penal Law§ 125.20 does not explicitly mention the legal duty requirement. In Wong, this Court again cited the pertinent definitions in the Penal Law in denominating the People's theory of guilt, predicated on a failure by the "passive" defendant to seek medical assistance for the abused infant, as "sound," and further noted that contractual custodial caretakers may owe the child a legal duty. 81 N.Y.2d at 607. Assessing the sufficiency of the evidence of second- degree manslaughter pursuant to that theory of guilt, the Court in Wong found the evidence insufficient to establish the "passive" defendant's awareness of the abusive shaking so as to trigger the duty to act. Id. at 608. This Court never questioned, however, that the People's theory, resting as it did on an alleged failure to act, required a legal duty. Accord People v. Ford, 11 N.Y.3d 875, 878 (2008)(agreeing with defendant that "actual" possession" of the weapon is an element of first-degree robbery notwithstanding that such requirement is not explicit in the statute as it is "based on judicial interpretation in decisional law");4 4 In Ford, this Court, applying the rule that the sufficiency of the evidence must be viewed in light of the court's charge as given without exception, found the evidence sufficient because defendant lodged no objection to the court's charge omitting the actual possession requirement. However, this Court specifically distinguished that situation from where the defendant's motion to dismiss for legal sufficiency so addresses the elements of the crime as to apprise the judge of any potential error in the charge, and the judge "in responding ma[k]e[s] a clear disposition on the law." Under such circumstances, any objection to the charge would be "futile and "superfluous." See Ford, 11 N.Y.3d at 878-79; People v. Jean- Baptiste, 11 N.Y.3d 539 (2009)(holding objection unnecessary given defense counsel's specific motion to dismiss). Such was the case here, where defense counsel based his motion to dismiss and his subsequent motion to set aside the verdict on a specific interpretation of the elements and the requirement 34 cf. People v. Finkelstein, 9 N.Y.2d 342, 344 (1961)(inferring scienter into former section 1141 of the Penal Law proscribing the possession with intent to sell of any obscene book, even though the statutory language did not "expressly" require scienter). The Appellate Division has applied the duty requirement when assessing the evidence's legal sufficiency with respect to charges of endangering the welfare of a child under Penal Law§ 260.10(1), see People v. Spadaccini, 124 A.D.2d 859 (3rd Dep't 1986); criminally negligent homicide, see People v. Goddard, 206 A.D.2d 653, 655-56 (3rd Dep't 1994); manslaughter in the second degree, see People v. Myers, 201 A.D.2d 855, 856-57 (3rd Dep't 1994); and depraved indifference murder, see People v. Stephens, 3 A.D.3d 57, 61 (1st Dep't 2003). In each case, the Appellate Division imposed the legal-duty requirement to allegations that the defendant had criminally failed to act, notwithstanding that the statute at issue contained no explicit language imposing a duty. In People v. Munck, 92 A.D.3d 63 (3rd Dep't 2011), where the victim's brother was convicted of criminally negligent homicide on the theory that he failed to obtain medical care for him after seeing him in distress, the Third Department reversed because the court failed to provide an instruction to the jury regarding how to ascertain of a legal duty, and the court made it clear that it was denying counsel's motions because it did not consider the statute to require proof of a legal duty. Accordingly, no objection to the charge was necessary, and the sufficiency of the evidence must be assessed with reference to the legal duty requirement. 35 defendant's duty, if any, to obtain medical care for his brother. That requirement, the Appellate Division noted, was "not explicit in the statute but, rather based upon case law," id. at 69, and considered the conclusion "inescapable" that the court's failure to provide this "material legal principleD applicable to this case" deprived the defendant of a fair trial. Id. As Steinberg, Wong, and these Appellate Division cases confirm, the absence of express language in Penal Law § 260.20(1) imposing a legal duty to a child does not dispense with the well-settled rule that criminal liability for a failure to act arises only when the defendant has a legal duty to act. That analysis does not offend any reasonable understanding of criminal liability and is consistent with its operation in other contexts. A parent has a non-delegable duty of care to his or her child, but a person who has no familial relationship to a child ordinarily has no such legal duty. See Munck, 92 A.D.3d at 70; People v. Stephens, 3 A.D. 3d 57, 61 (1st Dep't 2003); People v. Erb, 70 A.D.3d 1380 (4th Dep't ), leave denied, 14 N.Y.3d 840 (2010). In Erb, the court reversed and dismissed the defendant's conviction of criminally negligent homicide where the defendant had observed the victim inject herself with heroin, but left her on the trailer park lawn after he failed in his attempt to wake her to ascertain her mother's home address within the trailer park. The court held that since the defendant's alleged wrongdoing involved an omission, 36 and since the People presented no evidence that the defendant owed the victim a duty to provide care, "there is no basis upon which to find defendant liable for a failure to act." Id. at 1381. In People v. Myers, 201 A.D.2d 855 (3rd Dep't 1994), the court affirmed the lower court's dismissal of the indictment charging manslaughter and endangering the welfare of a child, where the defendant allegedly failed to provide adequate food, care, and medical assistance for his girlfriend's child, with whom he lived. The court stated that criminal liability could not be premised on a failure to act unless the accused had a legal duty to act, and as the evidence failed to show that defendant stood "in loco parentis" to the child who died, no such duty existed. Id. at 856-57. The court in Myers cited People v. Spadaccini, 124 A.D.2d 859 (3rd Dep't 1986), where the court reversed and dismissed the defendants' conviction for endangering the welfare of a child emanating from their alleged failure to prevent a toddler from engaging in sexual conduct with a dog. Noting that the record failed to demonstrate "any affirmative act of inducement on defendants' part," the court explained that liability premised on an omission to act is conditioned on the existence of legal duty flowing from the accused to the victim, and nothing in the record indicated that "either defendant had assumed any parental duties of supervision over the child." Id. at 861. As the above cases demonstrate, a non-parent cannot be convicted for 37 failing to take action to protect a child unless he or she has assumed a parental role and stands in loco parentis to the child. As set forth in the seminal case of Rutkowski v. Wasko, the in loco parentis doctrine describes a person who has "fully put himself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who actually discharges those obligations," 286 A.D. 327, 331 (3d Dep't 1955), a standard this Court has followed, see Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 529 (1984)(in loco parentis "requires more than mere temporary care and custody; an intent to support and care for the child on a permanent basis must be shown"); accord People v. Yolanda D. 88 N.Y.2d 790 795 (1996)("A person acting in loco parentis intends to assume the responsibility to support and care for the child on a permanent basis."). The assumption that someone has assumed a parental relationship with a child "is largely a question of intention" and "should not lightly or hastily be inferred[.]" Rutkowski, 286 A.D. at 331. An individual's intention to assume a parental role is illustrated by his acts and declarations. Id. at 331. A parental relationship should only be inferred where an individual "means to take the place of the lawful [parent] not only in providing support but also with reference to the natural [parent]'s office of educating and instructing and caring for the general welfare of the child." Id. (emphasis added); Yolanda D., 88 N.Y.2d at 795. Similarly, it would be an "oversimplification" of the in loco parentis 38 doctrine to infer a defendant's legal duty to a child solely because that defendant, the child and the child's mother lived together as a family unit. See People v. Lilly, 71 A.D. 2d 393, 394 (4th Dep't 1979). Compare Myers, 201 A.D.2d at 856-57 (insufficient evidence that defendant stood in loco parentis to child where facts showed only that defendant was a contributing member of the household for financial purposes and not that he had assumed responsibility for, or control over, the children) with People v. Stephens, 3 A.D.3d 57, 61 (1st Dep't 2003)(evidence supported application of the doctrine where defendant was "far more than a live- in boyfriend who took no part in the raising of the child," but "assumed all of the responsibilities incident to parenthood," including housing, clothing, feeding, supervising, and disciplining all 11 children in the household). Here, liability could only be premised on appellant's failure to act, as there was a complete absence of proof that appellant committed any overt act "permitting" the children to enter or remain. The People's own proof established that appellant was sleeping in bed when the police entered at 6:15 in the morning. The children were already present in the apartment, and not a shred of evidence was presented that appellant did anything to induce them to be there or stay there. Any claim suggesting otherwise would rest on pure speculation. The People's own theory of the case hinged on appellant's inaction - that by not calling 911, not calling ACS, he permitted the children to be there. Semantics, however, 39 cannot convert a failure to act into an affirmative act. As established above, allowing someone to remain by failing to exclude them constitutes passive inaction, not affirmative conduct. Accordingly, any liability would have to stem from appellant's failure to act to protect the children, as the People themselves maintained. The evidence, however, taken in the light most favorable to the People, was entirely insufficient to establish appellant's guilt on that theory because he owed the children no legal duty. The evidence was utterly insufficient to prove otherwise. The undisputed evidence demonstrated that appellant was not the parent or legal guardian of any of the three children found in the apartment, or that he had any authority over them. There was no evidence that he provided any care for them at all. Even if the jury could rationally infer that appellant was connected to the apartment based on the cable bill in his name, that he had reported that address as his home once before, and that he retrieved clothes from a bedroom dresser, appellant's shared residence with TH's children would not create a legal duty toward them. Myers, 201 A.D.2d at 856. That TH may have "trusted" appellant to be in the apartment with her children does not provide sufficient evidence that he stood in loco parentis to them. See People v. Goddard, 206 A.D.2d 653 (3rd Dep't 1994)(babysitter not in loco parentis). Moreover, even if the jury could further infer that appellant was TH's live- 40 in boyfriend based on Detective Martello's testimony that the two were sleeping in the same bed, the mere coincidence of appellant's relationship to TH would not at all indicate that appellant had intended and assumed a parental role toward those children such that he owed them a duty to act under the law. See Lilly, 71 A.D. 2d at 394; Myers, 201 A.D.2d at 857. The People presented no evidence of "acts" or "declarations" by appellant that would reasonably permit an inference that he intended to assume a parental role, Rutkowski, 286 A.D. at 331, or "to assume to responsibility to support and care for the child on a permanent basis," Yolanda D., 88 N.Y.2d at 795. In fact, still viewing the evidence in the light most favorable to the People, appellant had barely a semblance of any association, let alone a parent-child bond, with the children of the household, particularly the two children (FH and NH) and grandchild (RH) found sleeping in the apartment. Appellant was observed, only once, sleeping on the same pullout sofa bed as the children. Appellant was trusted by TH not to hurt her children or snoop around their rooms while he was over and she was asleep, but appellant was never left alone with the children. When appellant and TH were to be taken to the precinct for processing, it was TH, not appellant, who authorized police to release the children to a friend or family member. Finally, the only other evidence that appellant had any remote association 41 to the children was the detective's testimony suggesting that appellant stored clothes in the right bedroom that TH identified as her daughters' and where her six-year-old son kept his bicycle; and the evidence that TH's daughter knew appellant's first and last name such that she could use that information for the cable bill. But these facts hardly establish a parental relationship between appellant and those children, who were not even the three children observed in the sofa bed. The evidence at trial in no way indicated that appellant had any kind of a relationship, let alone one of a parental nature, to FH, NH, and RH, such that he owed them any legal duty; the evidence, therefore, was legally insufficient to support appellant's conviction based on a theory that he failed to act to prevent the children from remaining in the apartment. The Appellate Division's conclusion that "[t]he statute does not require a defendant to have a legal responsibility for the care and custody of the child" - reasoning that echoed the trial court's refusal to "read [a legal duty] into" Penal Law § 260.20(1) - contravenes the fundamental principle of criminal liability set forth in Penal Law§ 15.10 holding that an omission can only qualify as an actus reus when such omission violates a legal duty to act. As discussed above, the requirement of a legal duty in a failure-to-act case has been judicially recognized and does not depend on the statute expressly referencing it. See. ~' People v. Steinberg, 79 N.Y.2d 673, 680 (1992); People v. Spadaccini, 124 A.D.2d 859 (3rd 42 Dep't 1986); People v. Goddard, 206 A.D.2d 653, 655-56 (3rd Dep't 1994); People v. Myers, 201 A.D.2d 855, 856-57 (3rd Dep't 1994); People v. Stephens, 3 A.D.3d 57, 61 (1st Dep't 2003); cf. People v. Munck, 92 A.D.3d 63, 69 (3rd Dep't 201 l)(reversal for court's failure to provide an instruction to the jury "regarding how to ascertain defendant's duty, if any to obtain medical care for his brother"). That is not to say that a non-parent can never by liable for failing to act to protect a child on less than proof satisfying the demanding in loco parentis doctrine, or that Penal Law § 260.20(1) could not have been drafted to hold a non- parent liable for failing to act to remove a child from the premises. But to achieve that end, the Legislative would have needed to expressly include a broader duty that explicitly extended to nonrelatives, as it did in Penal Law§ 260.10(2), endangering the welfare of a child through neglect, which applies to any "parent, guardian or other person legal!J charged with the care or custocfy of a child." (Emphasis added). This Court in People v. Carroll, 93 N.Y.2d 564 (1999), interpreted the highlighted language by reference to the Family Court Act, which uses similar terms, and explained that it is "specifically meant to include 'paramours,"' or anyone "'continually or at regular intervals found in the same household as the child,"' whose conduct contributes to the child's abuse or neglect. Id. at 568(quoting Family Ct. Act§ 1012(g) and Besharov, Practice Commentaries, 43 McKinney's Cons. Laws of N.Y., Book 29A at 373). This Court specifically noted that whether a person stands in loco parentis is "a separate inquiry" from whether the person "acts as the functional equivalent of a parent" so as to be liable under § 260.10(2). Id. at 569-70. In particular, one need only be the "functional equivalent" of a parent "at the relevant time," and even only on a temporary basis to meet the latter standard, while in loco parentis requires the assumption of parental duties on a full-time basis. Id. at 570. The evidence here would have been insufficient to find a breach of legal duty even under that lesser standard, but the larger point is that the Legislature could have drafted Penal Law § 260.20(1) to hold non-parents and/ or those who have only temporary care of the children liable for failing to act to protect them from illicit activities occurring on the premises. It is not, as the Appellate Division believed, that no legal duty exists unless expressly written into the statute; it is that a legal duty consistent with the in loco parentis doctrine applies in a failure-to-act case, unless the Legislature expressly provides for a broader duty. Having not done so, the traditional, common-law in loco parentis standard, incorporated into the statute through decisional law, applied to appellant's prosecution under Penal Law § 260.20(1) for his alleged failure to act. The Appellate Division's further suggestion that appellant's conviction could be sustained on a theory of joint liability also fails to withstand scrutiny. 44 Although the original charging instrument charged appellant and TH together, appellant was tried alone. TH, by that time, had pleaded guilty and testified for the defense. The court did not charge the jury on accomplice liability nor even read the indictment to them. As the evidence's sufficiency must be assessed by reference to the charge as given to the jury without exception, see People v. Dekle, 56 N.Y.2d 835, 836 (1982), its sufficiency cannot rest on accomplice liability. It bears noting, however, that in relying on a theory of joint liability, the Appellate Division implicitly conceded that appellant's independent actions would not be sufficient. This Court's sole decision dealing with Penal Law§ 260.20(1), People v. Diaz, 24 N.Y.3d 1187 (2015), does not mandate affirmance. In that case, the children's mother was convicted of unlawfully dealing after the police executed a search warrant of the apartment in which she, the children, and the children's father lived, finding evidence of commercial drug activity. This Court found the evidence sufficient to establish the defendant's knowledge of this drug activity, notwithstanding her acquittal of the paraphernalia count. As the defendant was the children's parent and resided in the apartment with them, there was no question that she had access over the premises and a legal duty to the children. The defendant did not argue otherwise. Prosecuting individuals who have not themselves engaged in the prohibited 45 activity, who are present on the premises as guests or invitees, and who have no demonstrated relationship to the children other than proximity, does not further the legislative goal of protecting children from exploitation. It simply saddles people who are little more than bystanders themselves with criminal convictions and their devastating collateral consequences. Back in 1992, one group expressed concern with the statute's unintended consequences, and this prosecution clearly illustrates the point. Although the Appellate Division stated that the statute did not require a legal duty, the effect of its decision is quite the opposite - to impose on non-parents a legal duty to act to protect other people's children, even when they have no demonstrable responsibility for, or even relationship to, the children. Such a duty does not comport with the in loco parentis doctrine that the court should have applied, has never existed before, and carries with it far- reaching and serious implications. Contacting ACS or calling 911 may well be morally laudable when one is aware that drug activity is occurring in someone else's home, but it would radically expand the limits of criminal liability to require such action for a person to avoid criminal sanction. This Court's cautionary words in Pulka v. Edelman, 40 N.Y.2d 781, 786 (1976), where the Court declined to find a garage operator civilly liable for not controlling the conduct of its patrons toward off-premises pedestrians, are equally apt here: 46 [I]t must be stressed that not all relationships give rise to a duty .... In this respect, a moral duty should be ... distinguished from a legal duty. The former is defined by the limits of conscience; the latter by the limits of law. A person may have a moral duty to prevent injury to another, but no legal duty. While a court might impose a legal duty where none existed before ... such an imposition must be exercised with extreme care, for legal duty imposes legal liability. 40 N.Y.2d at 785. Should this Court uphold appellant's convictions, criminal liability - a conviction and all that follows in its wake - could potentially attach in this State to anybody who ventures into the home or onto the premises of another where children reside or are present, who "has reason to know" that "activity" in violation of the designated Penal Law sections is taking place. That could include: • • • • a family friend who stops by for a visit, who knows that the child's parents possess a quantity of marijuana for recreational smoking; a house cleaner who finds a stash of marijuana in the teenage daughter's room, in a home where younger children also reside; a neighbor who smells pot through the walls, knowing young children live next door; Every resident of a housing project where children live and where drug activity is known to occur in common areas, as well as NYCHA's Chairperson and its Board Members, who have "reason to know" of drug activity in NYCHA housing 47 and yet permit children to remain on such premises. 5 Nothing stops New York State from encouraging friends and neighbors to intervene to protect children from exposure to dangerous conditions as a matter of public policy(~, "See Something, Say Something"), but it should not take the unprecedented step of imposing criminal liability on individuals for not affirmatively acting with respect to children not their own. Appellant's convictions should be reversed and the indictment dismissed. CONCLUSION FOR THE ABOVE REASONS, APPELLANT'S CONVICTIONS SHOULD BE REVERSED AND THE INDICTMENT DISMISSED. Barbara Zolot Of Counsel June 19, 2015 Respectfully submitted, ROBERTS. DEAN, ESQ. Center for Appellate Litigation Attorney for Defendant-Appellant 5 As troublesome as the potentially limitless reach of the statute is its equal potential for arbitrary and selective enforcement. While, as suggested above, many people could fall under its rubric, appellant was one of only five people arrested in Kings County in 2010 for the crime, and one of only 16 convicted statewide. See DCJS, Computerized Criminal History system (as of 4/21/15)(A539, A541). 48