In this case the defendant denies charges of child endangerment despite being found drunk and unconscious with two young children she was supposed to be caring for.
Early one morning a police sergeant found defendant Perez in the back seat of a cab with two infant children next to her. Perez was unconscious and appeared to be intoxicated. She was arrested and charged with two misdemeanor counts of endangering a child under N.Y. Pen. Law § 260.10(1) and (2). Despite the observation of the police sergeant who found her, Perez filed a motion to dismiss the changes, arguing that the prosecution did not establish a prima facie case of child endangerment.
The charges against Perez are based largely on the observations of the police sergeant who found Perez slumped over in the back seat of a cab. When the sergeant called out to her, she eventually woke up. Her eyes were watery and bloodshot, she smelled of alcohol, she was unsteady on her feet, and she slurred when she spoke. When the sergeant asked about the two children she seemed to have forgotten that they were with her. She responded, “What kids? I don’t have any kids with me.” The children appeared to be between 1 and 2 years old.
In addressing the defendant’s claim that the prosecution had not set forth a prima facie case for child endangerment, the court responded that the allegation that the defendant was passed out drunk in the presence of two small children did indeed a prima facie violation of both N.Y. Pen. Law § 260.10(1) and 260.10(2). The court noted that the prima facie required does not mean that the information must allege facts that are true beyond a reasonable doubt but must allege facts that give the accused sufficient notice to be able to prepare a defense.
Subsection 1 of New York’s Penal Law § 260.10, Endangering the welfare of a child, provides that any person who intentionally acts in a way likely to cause injury to the physical or mental welfare of a child, or who intentionally acts in a way that could injure the moral welfare of a child 16 years old or younger is guilty of the crime of Endangering the Welfare of a Child.
The court found that the information provided describing a prima facie violation of Penal Law §§ 260.10(1) was facially sufficient in that it describes conduct that is likely to result in the harm of a child. It was not necessary to show that actual harm did occur. The defendant was supposed to be caring for the children. Instead she was unconscious, essentially leaving them unattended and completely vulnerable in a public place. They could have been abducted or harmed in some way. Furthermore, when asked about the children, she did not recall that the children were even with her.
Subsection 2 applies to the child’s parent, guardian, or the person charged with the care of a child, and provides that the failure to exercise “reasonable diligence” in the control of such child under 17 to prevent the child from becoming abused or neglected is guilty of child endangerment. The information provided by the prosecution is also sufficient to make out a prima facie violation of subsection 2. While failing to exercise reasonable control over a child so as to prevent neglect is often shown by the parent, guardian, or other responsible person failing to provide food, clothing, shelter, or education for the child, it can also be shown by abandoning a child in other ways. One can conclude that being unconscious from drinking excessive alcohol while caring for a child is a way of abandoning of a child.
Note that the issue in this case is not whether the defendant did in fact commit the crime of child endangerment. The issue is whether the prosecution presented sufficient facts that if determined to be true, amounted to the crime of child endangerment. It is ultimately up to the finder of fact to determine if the actions of the defendant did indeed rise to the level of child neglect.