People v. Chang, 2009 NY Slip Op 52047(U) (N.Y. Crim. Ct. 10/13/2009)

• Decision Date: 13 October 2009
• Docket Number: 2009QN019069
• Citation: 2009 NY Slip Op 52047
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, v. MICHAEL CHANG, Defendant.
• Court: New York Criminal Court

Page 1

2009 NY Slip Op 52047(U)

THE PEOPLE OF THE STATE OF NEW YORK, v. MICHAEL CHANG, Defendant.

2009QN019069

Criminal Court of the City of New York, Queens County.

Decided October 13, 2009.

Laurie Peterson, Queens Law Associates, Forest Hills, NY, for defendant.

Katherine Dmochowski, Assistant District Attorney, Queens County, Kew Gardens, New York, for People.

ELISA S. KOENDERMAN, J.

The defendant, Michael Chang, is charged with Endangering the Welfare of a Child, Penal Law ["PL"] § 260.10(1) and Obstructing Governmental Administration in the Second Degree, PL § 195.05. The defendant has moved in an omnibus motion for dismissal of the charges for facial insufficiency and for disclosure of the defendant's prior uncharged criminal, vicious or immoral conduct pursuant to Criminal Procedure Law ["CPL"] § 240.43. The defendant's motion is decided as follows.

FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL § 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL § 100.15[3] & 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). The complete failure to plead an element of a crime is a nonwaivable jurisdictional defect (see Casey, 95 NY2d at 356; Alejandro, 70 NY2d at 137-138).

The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (Alejandro, 70 NY2d at 138, quoting 1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Thus, "[t]he 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" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). 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" (People v Casey, 95 NY2d 354, 360 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428, 429 [2005]). 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" (People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).

The instant information alleges that on April 3, 2009, Pedro Rivera's 16 year old daughter Jennifer Rivera failed to return home from school and that his wife, Eileen Seenaught, reported her as a missing person to the police. Thereafter Pedro Rivera spoke several times with the defendant on the phone, who told Mr. Rivera that Ms. Rivera was not at his residence. After 10:40 pm that night, the defendant did not return Mr. Rivera's phone calls. The next day, on April 4, 2009, at approximately 5:00 p.m., Detective Rob McCormick went to the defendant's apartment at 80-59 Lefferts Boulevard in Queens County and banged on the front door. Although he heard "shuffling" from inside the premises, there was no response. Later that day, at approximately 9:45 p.m., Sergeant Mike Gargant went to the apartment and banged on the front door, announcing "police, open up" but there was no answer. Sergeant Gargant then called the defendant on the telephone and again there was no answer. Upon hearing voices and seeing a flicker of light inside the premises, Sergeant Gargant entered the apartment and observed the defendant seated on a couch in a room off the front door. Ms. Rivera was found in the same room as the defendant, lying on the top of a bunk bed, covered with blankets. Ms. Rivera told Police Officer Richard Waters that she had been in the apartment with the defendant from the evening of April 3, 2009 until 9:45 p.m. on April 4, 2009.

The defendant argues that "there are no allegations which justify that the defendant would be aware that his conduct might likely result in harm to a child." Specifically, he asserts that Jennifer Rivera is a friend of his children and that she was seeking refuge at his residence. Additionally, the defendant claims that he was not alone with Ms. Rivera and that she was not exposed to exposed to drugs, alcohol or pornography in his apartment. Thus he contends that the charge of Endangering the Welfare of a Child is unsupported. Additionally, he posits that "the mere refusal to give information or even lying to the police is insufficient" to satisfy the elements of Obstructing Governmental Administration. Accordingly, he seeks dismissal of the information for facial insufficiency.

Endangering the Welfare of a Child

Under Penal Law § 260.10(1), "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 less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health."

The aim of the statute is to protect "the physical health, morals and well-being of children . . . ." (People v Bergerson, 17 NY2d 398, 401 [1966]). The statute is broad in scope and is not limited to protection against the perpetration of sexual offenses upon children but in fact extends "to other dangers as well" (id.; see also People v Cruz, 152 Misc 2d 436, 438-439 [1991]). Indeed, it is the policy of the law to protect infants¹ because "it is conclusively presumed that infants do not have the mental capacity and discretion to protect themselves from the artful designs of adults" (City of New York v Stringfellow's, 253 AD2d 110, 120 [1st Dept 1999] [". . . an infant . . . is universally considered to be lacking in judgment . . . [and] to lack the adult's knowledge of the probable consequences of his or her acts or omissions and the capacity to make effective use of such knowledge . . . . It is the policy of the law to look after the interests of infants . . . to protect them from their own folly and improvidence, and to prevent adults from taking advantage of them"]).

Moreover, as "the care of children is a sacred trust" (New York v Ferber, 458 US 747, 757 [1982]), a court cannot and should not "await broken bone or shattered psyche before extending its protective cloak around [a] child" (In the Matter of Priscilla Cruz, 121 AD2d 901, 903 [1st Dept 1986]). The role of the court as the protector of 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" (People v Doe, 137 Misc 2d 582, 585 [Crim Ct, NY County 1987]).

In order to sustain a conviction for Endangering the Welfare of a Child, the People need not prove that the defendant committed an affirmative act directed at a child (see People v Hitchcock, 98 NY2d 586, 591 [2002]; People v Johnson, 95 NY2d 368, 371-372 [2000]). Furthermore, actual harm to the child need not result from the defendant's actions for criminal liability to attach (see Johnson, 95 NY2d at 371; see also People v Duenas, 190 Misc 2d 801 [App Term, 2d Dept 2002]). The statute proscribes conduct "which a defendant knows will present a likelihood' of harm to a child (i.e., with an awareness of the potential for harm" (id. at 372) (emphasis added). Therefore, "a defendant must simply be aware that the conduct may likely result in harm to a child, whether directed at the child or not" (id., citing PL § 15.05[2]; see also People v Simmons, 92 NY2d 829, 830 [1998]). Regardless, the harm as a result of the defendant's actions must be likely and not merely possible (see id. at 371; Duenas, 190 Misc 2d at 803).

The offense of Endangering the Welfare of a Child may be committed by one act or by multiple acts and may be characterized as a continuing offense over a period of time (People v Keindl, 68 NY2d 410, 421 [1986]). 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" (id.; see also Simmons, 92 NY2d at 831; Cowley v People, 83 NY 464, 472 [1881]). Similarly, simultaneously coexisting events and circumstances, when taken as a whole, may constitute Endangering the Welfare of a Child, even if each circumstance, when taken in isolation, might not (see Hitchcock, 98 NY2d at 592; see also People v Hogle, 18 Misc 3d 715, 718-719 [Crim Ct NY County 2007]).

In reviewing a charge of Endangering the Welfare of a Child for legal sufficiency, "each case is fact specific" (Johnson, 95 NY2d at 373) and the allegations must be analyzed in the context of "the whole incident" (Hogle, 18 Misc 3d at 871, citing People v Tichenor, 89 NY2d 769, 776 [1997]). The court must look to the "confluence of events and circumstances" (Hitchcock,98 NY2d at 591), including both the defendant's acts and his omissions (see Cowley, 83 NY at 472). Appropriate considerations include the age and maturity of the child (see People v Reyes, 20 Misc 3d 1129[A], ...