People v. Fielden
| Decision Date | 22 July 2015 |
| Docket Number | No. 2015NY022889.,2015NY022889. |
| Citation | 18 N.Y.S.3d 581 (Table) |
| Parties | The PEOPLE of the State of New York v. Louise FIELDEN, Defendant. |
| Court | New York Criminal Court |
Tacopina & Seigel, P.C., by Chad D. Seigel, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Joshuah Lisk, for the People.
Defendant, while a guest at a Manhattan hotel, left her infant son unattended in the lobby, and alone in her hotel room, for periods exceeding one hour. She now stands charged with two counts of endangering the welfare of a child, Penal Law § 260.10(1) and (2), and one count of resisting arrest. A post-arrest search of defendant's luggage revealed a bottle of codeine pills in defendant's luggage. For this, defendant is charged with criminal possession of a controlled substance in the seventh degree, Penal Law § 220.03.
Defendant moves to dismiss all counts She argues that her actions did not place the child in danger and that, given this, there was no lawful basis for her arrest. With respect to the § 220.03 charge, defendant asserts that the information fails to allege that she lacked a prescription for the codeine. For the reasons that follow, the motion to dismiss is DENIED as to all counts. Defendant also moves to suppress the codeine, statement evidence and identification evidence; as to that, the Court GRANTS a Dunaway/Mapp/Huntley/Wade hearing.
According to the accusatory instrument, on April 10, 2015, defendant was a guest at the Chelsea Highline Hotel, in Manhattan. She was staying with her infant son, who was less than six months old. A witness saw the defendant leave the child on the ground in the hotel lobby, then walk away and leave the child alone and unattended for more than one hour without checking on the child. In addition, defendant left the child alone in her hotel room for periods exceeding one hour.
When a police officer went to defendant's room and attempted to arrest her for this, she resisted, in the child's presence. After the arrest, the police officer found a bottle of codeine tables in the defendant's luggage.
Defendant was arraigned April 11, 2015, on a misdemeanor complaint charging her with violating Penal Law §§ 260.10(1) and (2), 220.03 and 205.30. The Court released the defendant on her own recognizance and adjourned the case for conversion.
On April 17, 2015, the People converted the misdemeanor complaint into an information by filing a supporting deposition. Defendant filed the instant motion on June 6. The People responded on July 2, defendant filed a reply on July 15, and the matter has been sub judice since then.
The misdemeanor complaint, sworn to by Police Officer Gregory Kosarek, provides that I am informed by Roque Duran ... that [on April 10, 2015] he observed the defendant as a guest of the Chelsea Highline Hotel, with an infant child in her care. The child's name is [“S.F.”] and his date of birth is [less than six months prior to April 10, 2015].
I am further informed that Mr. Duran observed the defendant in the lobby of the hotel with the infant child and that he observed the defendant place the child on the ground and walk away and leave the child unattended for period of time exceeding one hour without checking on the child. I am further informed that Mr. Duran observed the defendant in the lobby without the child for period exceeding one hour, and that the defendant was not staying with anyone else at the hotel, and that there were no other guests in the defendant's room other than the infant child.
When I attempted to arrest the defendant for the above conduct, the defendant twisted away from me, clenched her arms against her chest and lay on her stomach and refused to place her hands behind her back, making it difficult to place the defendant in handcuffs without the assistance of two other police officers.
While I was attempting to arrest the defendant, the defendant's child was present in the room.
I recovered a bottle of Codeine tablets from the defendant's luggage. I believe the substance is what it is alleged to be based upon: my professional training as a police officer in the identification fo drugs, my prior experience as a police officer making drug arrests and the label on the pill bottle.
The filing of a supporting deposition from Roque Duran converted the misdemeanor complaint into an information.
All of the counts in the information are facially sufficient. The allegations that defendant left her infant child unattended on the floor of a hotel lobby and alone in her hotel room for prolonged periods make out a prima facie violation of both Penal Law § 260 .10(1) and 260.10(2). People v. Lowe, 47 Misc.3d 843, 1 N.Y.S.3d 756 (Crim Ct N.Y. County 2015) ; People v. Eury, 46 Misc.3d 1208(A), 7 N.Y.S.3d 244 (Crim Ct N.Y. County 2015). Given this, the resisting arrest charge is also facially sufficient.
With respect to the Penal Law § 220.03 charge, the Court holds that, when a defendant is charged with violating this section by possessing a prescription drug, the information does not need to allege the absence of a prescription.
Finally, however, the Court agrees that a Dunaway/Mapp hearing is necessary to test the legality of the warrantless search of the defendant's luggage, as are Huntley and Wade hearings.
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” Kalin, 12 NY3d at 228–29, 906 N.E.2d at 383, 878 N.Y .S.2d at 655 (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N .Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as “the prima facie case requirement.” Kalin, 12N.Y .3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N .Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that “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.” People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a “fair and not overly restrictive or technical reading,” id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.
This Court has previously found sufficient accusatory instruments charging defendants with child endangerment by leaving children alone at home, Eury, 46 Misc.3d at 1208(A), 7 N.Y.S.3d at 244, and by leaving them unattended in a public place, Lowe, 47 Misc.3dat 843, 1 N.Y.S.3d at 756. The information here, which alleges both such circumstances, is likewise facially sufficient.
A person is guilty of endangering the welfare of a child under Penal Law § 260.10(1) when she 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 liable under this section, she “must simply be aware that the conduct may likely result in harm to a child.” People v. Johnson, 95 N.Y.2d 368, 372, 718 N.Y.S.2d 1, 740 N.E.2d 1075 (2000). Actual harm to the child need not occur; nevertheless, harm must be likely, and not merely possible, as a result of the defendant's actions. Id. at 371. See also People v. Duenas, 190 Misc.2d 801, 742 N.Y.S.2d 468 (App. Term 2d Dept.2002).
One of the acts alleged in this case is that defendant violated § 260.10(1) by leaving her child alone in a hotel room for more than one hour. In Eury, this Court recognized that New York courts have reached “no clear consensus” as to handle “home alone” cases. Eury points out, however, that several courts have upheld an information charging child endangerment for leaving a child home alone, even where there were no specific aggravating facts pled. For example, People v. Reyes, 20 Misc.3d 1129(A), 872 N.Y.S.2d 692 (Crim. Ct. Kings County 2008), held that an information was sufficient where it alleged that the defendant left a four-year-old child alone for fifteen minutes. Similarly, People v. Watson, 182 Misc.2d 644, 700 N.Y.S.2d 651 (Crim Ct Bronx County 1999), held that the allegation that defendant left a seven-year-old alone in a locked apartment for two and one-half hours was sufficient. See also, People v. Gulab, 23 Misc.3d 1123(A), 886 N.Y.S.2d 68 (Crim. Ct. Queens County 2009) (“ ‘Regarding the act of leaving the children home alone, this Court agrees with the line of cases where courts have found that leaving young children home alone is an act proscribed by the statute, and not solely an act of bad parenting.” ’)
In Eury, this Court followed these cases, agreeing with the conclusion in Reyes that “the question raised in this type of cases is particularly unsuited to resolution at the facial sufficiency stage.” 46 Misc.3d at 1208(A), 7 N.Y.S.3d at 244. “[W]hether a particular case is merely one of non-criminal bad parenting' or whether the circumstances...
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