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On 22 June 2008, at approximately 3:12 a.m., defendant

On 22 June 2008, at approximately 3:12 a.m., defendant, while in an intoxicated condition after having consumed three (3) bottles of Corona and two (2) forty (40) ounce bottles of Heineken, left her four children ranging in age from one to thirteen years, alone for ten minutes in an apartment where there was urine on the floor, cockroaches crawling on the floor of the apartment, in the kitchen, on the mattresses, and crawling over the sleeping children, dirty clothes and laundry all over the apartment, dirty pots and pans in the kitchen, and clorox bleach bottles in the tub of the dirty bathroom. There was no crib for the one-year-old.

Thereafter, defendant was arrested wandering in a street. Defendant is charged with four counts of Endangering the Welfare of a Child.

Defendant files an omnibus motion for dismissal for facial insufficiency and for discovery and a bill of particulars.

The Ruling:

On the issue of Endangering the Welfare of a Child:

Under the law, a person is guilty of endangering the welfare of a child when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child younger than seventeen years old. For a defendant to be found criminally liable, he must simply be aware that the conduct may likely result in harm to a child. Actual harm to the child need not occur; nevertheless, harm must be likely as a result of the defendant’s actions, not merely possible. Moreover, the defendant’s actions need not be directed at the child who is likely to be harmed.

As a rule, endangering the welfare of a child may be committed by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time. Hence, a defendant may be guilty of this offense by committing a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the crime. Similarly, simultaneously coexisting events and circumstances, when taken as a whole, may endanger the welfare of a child, even if each circumstance, when taken in isolation, might not.

Conduct which has been held likely to be injurious to the physical, mental or moral welfare of a child encompasses a wide range of behavior. The care of children is a sacred trust and that the overarching purpose of the child endangerment statute is to protect children who, because of their age, are unable to protect themselves. The role of the court as a protector of young children is a role as essential as protecting the rights of the accused because the courts have a compelling duty to protect the interests of children. A court cannot and should not await broken bone or shattered psyche before extending its protective cloak around a child.

Here, contrary to defendant’s contention, the defendant did more than just leave her children alone in an apartment for ten minutes, or drink five bottles of beer while responsible for the care of her children, or keep a dirty house. The defendant isolates each one of these actions from the other, and in so doing, attempts to characterize each action as non-criminal, if not wholly innocuous. But the defendant did not simply do one of these things separately and apart from the others; she did all of these things in conjunction, and the entirety of her alleged conduct, both her acts and omissions, provide reasonable cause to believe that she committed the offense of endangering the welfare of a child against each one of her children.

On the Likelihood of Physical Harm:

The complaint established that the defendant left her four children (a one-year-old, a six-year-old, an eight-year-old and a thirteen-year-old) alone in their apartment for ten minutes at 3:12 a.m. while she went out onto a New York City street in an intoxicated condition. At that time, the apartment contained unsanitary and unsafe conditions, which, when considered collectively, demonstrate that the defendant neglected her children to an extent that was likely to be injurious to their physical, mental or moral welfare. Although “dirty home” cases are most frequently brought to the attention of the courts by way of petitions under the Family Court Act, a charge of endangering the welfare of a child for such a case may be properly pled under the Penal Law as well. Moreover, proper sleeping arrangements are a basic necessity for infants and young children, and the risk of harm that is occasioned by the absence of such arrangements is substantial. Consequently, leaving the children alone and unsupervised in this environment created the likelihood that any one or more of them might be physically harmed as a result of contact with the unsanitary and unsafe conditions in the apartment.

This likelihood of physical harm is not diminished if, as defendant claims, she left the children alone for only ten minutes, or by the fact that the children may have been sleeping at the time. Any one or more of the children may have awakened and become active at any time while the defendant was gone, and, as is commonly known, household accidents resulting in injury to children including suffocation, falls, drowning, burns and poisoning occur suddenly and swiftly, often with fatal consequences. Besides, the actual length of time during which the defendant left the children unattended is but one of many factors relevant in determining whether or not they have been endangered and is, more importantly, an issue of fact appropriately reserved to the trial court and particularly unsuitable for determination on motion. Furthermore, leaving a young child unattended for any length of time, even in the absence of other factors has been found to constitute a facially sufficient charge, presumably because of the inarguable and overwhelming likelihood of harm attendant in such misconduct.

Here, the risk of an accident causing harm to the children was significant given the hazards present in the apartment. The likelihood of physical harm resulting from the defendant’s conduct in leaving the children unattended under these circumstances was real and substantial, not merely speculative.

In addition, the defendant also created a likelihood of harm by being with them in the apartment while she was intoxicated. At the time the defendant was apprehended on the street, an asserted ten minutes after she had left her children alone in their apartment, the defendant allegedly was so intoxicated that her breath had the odor of alcohol, her eyes were watery and bloodshot, her face was flushed and her speech was slurred. If the defendant was intoxicated to the extent of exhibiting these physical symptoms ten minutes after leaving her children alone in the apartment, it is reasonable to infer that the defendant was similarly intoxicated ten minutes earlier while she was with her children in the apartment. Intoxication to this extent negatively impacts an individual’s judgment, cognition, perception and coordination.

Intoxication is not an unfamiliar concept. It is intelligible to the average person. It is familiar to the law and has long been held to mean: incapacity to perform various mental and physical acts which an average person would be able to do. Furthermore, a defendant’s watery, bloodshot eyes, slurred speech and breath smelling of alcohol are indices of common-law intoxication that not only support an inference of intoxication, but have been found to support proof of intoxication beyond a reasonable doubt; and when a defendant exhibits these same physical symptoms while driving with children in a motor vehicle, such conduct has been found to constitute endangering the welfare of a child. Accordingly, if a defendant’s physical symptoms are such that the defendant would be incapable of giving that attention and care to the operation of an automobile that a person of prudence and reasonable intelligence would give, it is clearly reasonable to infer that such an intoxicated defendant would be likewise incapable of giving that same degree of attention and care to the supervision and protection of minor children.

Therefore, it is reasonable to conclude that the defendant’s ability to effectively supervise the children and protect them from harm was significantly compromised as a result of being so intoxicated. Defendant’s impaired ability to supervise and protect her children who, by virtue of their age and immaturity, were unable to fully protect themselves, increased the risk that they would suffer injury or illness due to the unsafe and unsanitary conditions in the apartment. Finally, the likelihood of physical harm from leaving the children alone, as well as from being with them while intoxicated, in an apartment containing unsafe and unsanitary conditions is so obvious that it may reasonably be inferred that the defendant was aware of it.

On the Likelihood of Mental or Moral Harm:

Here, defendant’s conduct in exposing her children both to the squalid conditions in the apartment and her own state of intoxication also created a likelihood of harm to their mental or moral welfare.

While the term moral is not defined by statute and the case law is similarly silent, it is clear that, though previous prosecutions have dealt almost exclusively with sexual offenses or morals cases, it is evident from an examination of the statute that it is intended to be broader in scope. The intent is to protect the physical health, morals and well-being of children and this solicitude relates not only to sexual offenses but to other dangers as well.

On the issue of Facial Insufficiency:

In order to be facially sufficient, an information must substantially conform to the formal requirements of the law. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe that the defendant committed the offense charged, as well as non-hearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant’s commission thereof. The requirement of non-hearsay allegations has been described as a much more demanding standard than a showing of reasonable cause alone; however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt. Thus, the law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged. Where the factual allegations contained in an information give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. Ultimately, the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged.

Clearly, the confluence of events and circumstances in the complaint provide reasonable cause to believe that the defendant knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of her minor children. However, the complaint fails to contain sufficient non-hearsay allegations to establish every element of the crime.

Although the complaint alleges the dates of birth of each of the four complainants, implicitly establishing their ages as one, six, eight and thirteen years, this allegation remains uncorroborated hearsay. While the complaint does contain admissions from the defendant that she is the children’s mother and is responsible for their care, because of the way in which the complaint is drafted, the allegations as to the dates of birth of the complainants cannot be attributed to her. The defendant’s admissions concerning her relationship and responsibility toward the complainants were made by the deponent officer as informed by the defendant. The allegations regarding the complainants’ dates of birth were made directly by the deponent officer. Had the complaint been drafted such that the allegations as to the complainants’ dates of birth were made by the deponent officer as informed by the defendant, their admitted mother, they would not be hearsay. Since, however, these allegations are made by the deponent officer, who was not present at the complainants’ birth, they are rank hearsay. Moreover, no birth certificate, or other supporting deposition, has been filed to convert these allegations to non-hearsay.

Henceforth, the complaint may not be deemed as “facially sufficient” information.

The People are given leave to supersede the instant complaint with an accusatory instrument which contains non-hearsay allegations as to the complainants’ age, or to file an appropriate supporting deposition to convert the hearsay allegations as to their age. Defendant’s remaining requests are premature. Should the People file a facially sufficient information, the defendant may renew her motions for discovery and a bill of particulars.

Kings County Family Attorneys at Stephen Bilkis & Associates are at your service. We provide free consultations with our Kings County Child Custody Attorneys, among others, to help you and assist you with your legal concerns. Be advised by the best legal professional there is and see to it that justice is served.

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