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Defendant mother has been indicted for the crimes of assault in the first degree under

Defendant mother has been indicted for the crimes of assault in the first degree under the circumstances evincing a depraved indifference of human life, assault in the second degree which is intent to cause serious physical injury and endangering the welfare of a child by reason of not feeding her child. The defendant moves to dismiss the indictment on the grounds that the evidence presented to the grand jury is legally insufficient, and that the charge to the grand jury was improper.

A source said that in determining the motion, the Court has reviewed the grand jury minutes, the charge, the defendant’s motion papers and the reply thereto. In this type of motion the Lawyer said that the Court must view the evidence in the light most favorable to the People. In a grand jury proceeding sufficient evidence is, “the equivalent of a prima facie proof that the crime charged has been committed by the defendant”. Even if the evidence does not make out the crime charged but makes out a lesser included offense thereof, the motion to dismiss must be denied. The Court said that the case will be discuss in terms of assault in the third degree which refers to recklessly causing physical injury, which is a lesser offense included of both assault counts.

The issue in this case is whether the respondent mother who fails to feed her child is guilty of assault.

The Court, in deciding the case said that few New York cases have discussed the issue of whether the failure to feed a child can be considered an assault or a homicide. In determining whether such failure can be considered an assault the Court finds guidance in cases involving homicide (a homicide is an assault resulting to death). It is universally accepted that under the proper circumstances parental failure to feed an infant can constitute a homicide.

The Court held that in order for an omission or a failure to act to constitute criminal conduct, and in this case an assault, the People must show four criteria.

First, is a duty in law to perform a certain act, the duty of the parents to provide medical care for their child. The omission of a duty is in law the equivalent of an act. Thus, the failure to perform a legal duty is considered an act. The Court said that the people proved that defendant was the mother of the victim and that she had custody and control over the child. This set of circumstances imposed upon her the duty of providing support for the child. The requirements of support include providing food. However, this duty is limited to the “means or ability to earn such means” of the defendant. The Court said that the district attorney barely made out facts to prove that defendant had the means to support or provide food for the infant. However, she totally failed to instruct the jury that they must find that the defendant had the means or ability to provide her children with food.

Second, is the ability to perform the duty imposed by law. The Court held that not only must the People show that defendant had a duty to feed her infant child they must also show that she had the ability to perform that duty. In this case, the People barely made out sufficient evidence with regard to the ability to feed her children. Nevertheless, the district attorney failed to instruct the grand jury as to this requirement. This was especially egregious in light of the exculpatory evidence presented to the grand jury. Evidence was presented that defendant attempted to receive welfare, but the payments were being delayed for unknown reasons. Testimony also indicated that defendant received, at best, $25 a week from the father of the child. She also received on intermittent occasions some food for herself and for her two children from the purported father. There was further evidence that there was no food in the house, $25 a week, if that, and the bare minimum of food brought to the mother can hardly be said to give her the ability to perform the duty of feeding her children. The Court notes that, at best, there was four to five months after the birth of the child, which is hardly sufficient time for defendant, if she could, to find employment if she were physically able.

Thus, the Court said that without informing the grand jury of the necessity of finding that defendant had the ability to supply her children with food, they could not evaluate this exculpatory evidence.

Third, is the requisite mens rea. The People must show that the defendant acted recklessly. A person acts recklessly with regard to a result when she is aware of and consciously disregards a substantial and unjustifiable risk. The Court said that the People must show that defendant was aware that her failure to feed the child would cause physical injury. This fact was proven because most people are assumed to be aware that the failure to feed a child causes physical injury.

However, in this case one of the grand jurors requested the district attorney a proof or evidence of defendant’s age. The district attorney informed the juror that defendant’s age was irrelevant. The Court held that the defendant’s age is in fact relevant on the issue of her maturity and her awareness of the consequences of her actions.

Lastly, is the causal connection between defendant’s reckless conduct and injury. The Court held that the people must prove that defendant’s failure to feed her child caused physical injury. The expert testimony produced in this matter was sufficient to prove causation. However, no instruction was given regarding the evaluation of the expert testimony. There would ordinarily be no necessity for such a charge to the grand jury. In this case, there was eyewitness testimony that the defendant, in fact, several times was seen by eyewitnesses feeding the child. There was thus a conflict between the eyewitness testimony and the expert testimony. Without an instruction as to the proper manner of evaluation of expert testimony, the grand jury could not properly evaluate this contradictory evidence.

In view of the forgoing, the Court held that while the people presented sufficient evidence to sustain the lesser included offense of assault in the third degree which is reckless assault, the improprieties in the failure to charge the grand jury properly, and the withholding of evidence requested by the grand jury resulted in the impairment of the grand jury proceedings. While the Court has discussed the errors with relation to the two assault charges they are equally applicable to the count of endangering the welfare of a child. Hence, the Court granted the motion to dismiss the indictment, with leave to the district attorney to represent the matter to another grand jury, on condition that the exculpatory evidence previously submitted must be resubmitted to the grand jury, and on the condition that proper instructions in accordance with this decision be given.

Are you facing charges of assault or a victim of improper grand jury proceedings? Then you need a Kings Injury Attorney to represent you in Court. Here in Stephen Bilkis and Associates our Kings Spinal Injury Attorneys can help you protect your rights and afford you with proper representation.

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