People v. Gibble, 2003 NY Slip Op 23894 (NY 4/7/2004)
| Decision Date | 07 April 2004 |
| Citation | 2003 NY Slip Op 23894 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. STUART GIBBLE, Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Pariser & Vogelman, P.C., New York City (Donald Vogelman of counsel), for defendant.
Robert M. Morgenthau, District Attorney (Paula Barnes of counsel), for plaintiff.
Defendant, charged with one count of endangering the welfare of a child (Penal Law § 260.10 [1]) and one count of public lewdness (Penal Law § 245.00), moves to dismiss those charges pursuant to Criminal Procedure Law § 170.30 (1) (a) on the ground that the accusatory instrument is facially insufficient. The question presented is whether an allegation that defendant was massaging his genitals with his pants down and behind a desk in a public school during school hours is sufficient, for pleading purposes, to establish the charged crimes. On October 1, 2003, the court denied defendant's motion for the following reasons.
In the complaint, it is alleged that on February 13, 2003 at 12:00 p.m., inside 103 West 107th Street, a public school, J.H. observed defendant seated behind a desk, with his pants down, and with one hand on top of the desk and the other hand on his genitals. She also saw defendant's arm moving in a "massaging" motion. The deponent officer alleges that children under the age of 17 attend the school. On May 27, 2003, the People filed and served a supporting deposition executed by Ms. H. on May 24, 2003.
A facially sufficient information is a nonwaivable, jurisdictional prerequisite to a criminal prosecution. (People v. Alejandro, 70 NY2d 133 [1987].) To be sufficient on its face, an information must not only substantially conform to the requirements set forth in Criminal Procedure Law § 100.15 (1), but must also contain nonhearsay allegations of fact that, together with those of any supporting depositions accompanying it, provide reasonable cause to believe that the defendant committed the offense charged. (CPL 100.40 [1] [b].) " 'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." (CPL 70.10 [2].)
Additionally, the nonhearsay allegations of fact must establish a prima facie case in that they must support every element of the offense charged and the defendant's commission of it. (CPL 100.40 [1] [c]; Alejandro, 70 NY2d at 137-138.) The facts may establish a prima facie case, for purposes of pleading an offense, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. (People v. Jennings, 69 NY2d 103, 115 [1986].)
In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. (See People v. Gonzalez, 184 Misc 2d 262, 264 [App Term, 1st Dept 2000], lv denied 95 NY2d 835 [2000] []; People v. Livio, 187 Misc 2d 302, 310 [Nassau Dist Ct 2000] [facts and circumstances on motion to dismiss information viewed in light most favorable to People].) Moreover, " 'the court is not required to ignore common sense or the significance of the conduct alleged.' " (Gonzalez, 184 Misc 2d 262, 264 [2000] [citation omitted].)
A person is guilty of endangering the welfare of a child when, in pertinent part, he or she "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old." (Penal Law § 260.10 [1].) "Criminal liability for endangering the welfare of a child is imposed when a defendant engages in conduct knowing that it will present a likelihood of harm to a child (i.e., with an awareness of the potential for harm)." (People v. Hitchcock, 98 NY2d 586, 590 [2002] [internal quotation marks omitted], quoting People v. Johnson, 95 NY2d 368, 372 [2000].) A violation of the statute does not require proof that the defendant's conduct be specifically directed at a child. (Hitchcock, 98 NY2d 586, 591 [2002].) Rather, the defendant "must simply be aware that the conduct may likely result in harm to a child." (Id.) The harm must have been likely to occur, not merely possible. (Id.)
Defendant argues that the complaint is facially insufficient as the facts alleged therein fail to demonstrate that his conduct was observed by a child less than 17 years of age.
The People contend that the complaint contains an allegation that the complaining witness attends the school with students under the age of 17. However, they have also asked that should the court require corroboration, they will file an affidavit establishing the complaining witness' date of birth.
Contrary to the People's contention, the complaint contains no allegation that the complaining witness attends the school with students under the age of 17. Although the People are willing to file a corroborating affidavit establishing the witness' date of birth, a question arises as to whether, in the absence of such an affidavit, allegations that an accused engaged in the conduct as alleged in the complaint, during school hours and on school premises attended by students under the age of 17, are alone sufficient to establish, for pleading purposes, that a child under the age of 17 was likely to be harmed. Research fails to disclose any cases in New York addressing this precise question.
Courts assessing the sufficiency of evidence frequently draw inferences from evidence which they deem sufficient for pleading purposes or even to establish guilt. For example, in Matter of Benjamin S.A. (302 AD2d 979 [4th Dept 2003], lv denied 100 NY2d 505 [2003]), the Court upheld the respondent's conviction, finding it reasonable to infer that he was aware of a risk that a child would find a loaded pellet pistol from evidence that he left the pistol in a boys' bathroom during a dance at a middle school attended by hundreds of children.
Similarly, in People ex rel. Tanis v. Benedict (28 NYS2d 202, 205 [Sup Ct, Monroe County 1941]), the court upheld a complaint in which the relator was alleged to have wilfully caused a child "to be placed in . . . a position [where] her morals were likely to be impaired [by] station[ing] himself" inside a car parked on a city street by a sidewalk where a passing 10-year-old girl could plainly see his "unconcealed and unnatural acts." The court specifically addressed the relator's argument that the alleged facts failed to establish that he had any "control" over the child such as to have "caused" her to see him, and rejected his argument as arising from a "strained" construction of the statute. The court thus held that given the public nature of the relator's conduct, a violation of the statute was adequately pleaded with facts from which it was reasonably inferred that the relator had placed the child in a position where she would likely observe his conduct, thus wilfully causing her harm.
Although neither court in Benjamin S.A. nor Tanis addressed the sufficiency of evidence establishing the victim's age, both decisions stand for the proposition that inferences reasonably drawn from alleged facts may be sufficient to establish child endangerment. Here, as defendant is alleged to have engaged in what reasonably appeared to be masturbation, at noon and on the premises of a school attended by children under the age of 17, it is reasonable to infer that he knew that it was likely that one or more students would see him.
That defendant stationed himself behind a desk makes it no less likely that he would be observed by a child, given his state of partial undress and the unpredictability of schoolchildren. If the complaining witness was able to observe him, so too would a child. In Hitchcock, by contrast, the Court reversed the defendant's conviction for endangering the welfare of a child after finding that he made a "significant effort" to conceal a firearm in his home as the victim, his 14-year-old brother, who had surreptitiously observed the defendant hide the firearm, found it and used it after spending an hour searching for it. (98 NY2d at 592.)
To be distinguished are those cases where the defendant is alleged to have committed an act on premises where children under the age of 17 are not necessarily expected to be present, such as a residence. In such cases, courts have dismissed complaints containing insufficient factual allegations as to the age of the victims. (See e.g. People v. Mercado, 184 Misc 2d 40 [Crim Ct, Bronx County 2000] [fact that soiled diapers found in defendant's garbage-strewn, roach- and rodent-infested apartment held insufficient to establish age of victims as diapers not connected to abused children named in complaint]; cf. People v. Seward, 173 Misc 2d 1020, 1021 [Mount Vernon City Ct 1997] [police officer's allegation that child who was left by defendant home alone for half an hour and who "appeared to be 6 years of age" found to constitute uncorroborated hearsay].)
Here, by contrast, it was likely that, under the circumstances alleged in the complaint and viewed in the light most favorable to the People, any student at the school could have been in the complaining witness' position to observe defendant engaged in the proscribed conduct. Consequently, the age of the complaining witness is immaterial.
Defendant also claims that absent an allegation of repetitive conduct or one clear unequivocal act, the complaint fails to establish child endangerment. The People maintain that the complaint contains sufficient factual allegations...
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