People v. Hitchcock

• Decision Date: 24 October 2002
• Citation: 98 N.Y.2d 586,750 N.Y.S.2d 580,780 N.E.2d 181
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TERRY HITCHCOCK, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ALEX DUENAS, Respondent.
• Court: New York Court of Appeals Court of Appeals

98 N.Y.2d 586

780 N.E.2d 181

750 N.Y.S.2d 580

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TERRY HITCHCOCK, Appellant.

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ALEX DUENAS, Respondent.

Court of Appeals of the State of New York.

Argued September 12, 2002.

Decided October 24, 2002.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo (Roger W. Wilcox, Jr., and Paul J. Cambria, Jr., of counsel), for appellant in the first above-entitled action.

Edward M. Sharkey, District Attorney, Little Valley (Lori Pettit Rieman of counsel), for respondent in the first above-entitled action.

William L. Murphy, District Attorney, Staten Island (Paul A. Capofari and Karen F. McGee of counsel), for appellant in the second above-entitled action. Legal Aid Society Criminal Appeals Bureau, New York City (David Crow and Andrew C. Fine of counsel), for respondent in the second above-entitled action.

Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

LEVINE, J.

These appeals involve the charge of endangering the welfare of a child as applied in the context of shooting accidents in which a child in the household of a gun owner obtained unauthorized possession of a weapon and inadvertently discharged it, resulting in another child's injury or death. Under Penal Law § 260.10 (1), a person endangers the welfare of a child when "[h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." The common issue in both appeals is whether the evidence was legally sufficient to establish the basic elements of endangering the welfare of a child: namely, whether defendants "knowingly" acted in a manner "likely to be injurious" to a minor. We hold that the evidence was legally sufficient in Hitchcock, but insufficient in Duenas.

Defendant Terry Hitchcock resided with his fiancée, her 14-year-old son Billy, and two younger children, ages 4 and 13. One day, when the children were unsupervised, Billy and his friend Dustin, a neighbor and regular visitor to the household, took one of defendant's five handguns located on an open tool tray in a doorless second-floor room, and loaded it. The two boys then went outside to practice target shooting. When Billy attempted to dislodge a bullet that was stuck in the chamber, the gun went off and a bullet struck Dustin, injuring him.

Law enforcement authorities, who arrived after the shooting, inspected the residence and ultimately seized 23 firearms, none under lock and key. Defendant was charged with and convicted by a jury of endangering the welfare of a child. County Court, sitting as an intermediate appellate court, affirmed defendant's conviction, rejecting defendant's argument that the evidence was legally insufficient to support the endangering charge. A Judge of this Court granted defendant leave to appeal, and we now affirm.

Defendant Alex Duenas and his girlfriend lived at his family's home, along with his 11-year-old brother, Daniel. Duenas purchased a gun illegally and secreted it in his bedroom. Unknown to defendant, his brother peered through a crack in the bedroom door one night and saw defendant cleaning what appeared to be a gun. Daniel did not tell anyone what he had observed. Several months later, while defendant was away, Daniel entered defendant's bedroom, searched for it for "about an hour," and discovered the gun, which had been loaded and wrapped in rags, inside a stereo speaker hidden in a closet behind various items of clothing and bags. Daniel returned to his own bedroom where he and a visiting friend played with the gun. The gun accidentally discharged, killing the friend.

After a bench trial at Criminal Court of the City of New York, defendant was convicted of criminal possession of a weapon in the fourth degree and endangering the welfare of a child. The Appellate Term modified by vacating defendant's conviction for child endangerment, and affirmed the illegal weapons conviction. A Judge of this Court granted the People leave to appeal, and we likewise affirm.

Criminal liability for endangering the welfare of a child is imposed when a defendant engages in conduct knowing it will present a "`likelihood' of harm to a child (i.e., with an awareness of the potential for harm)" (People v Johnson, 95 NY2d 368, 372 [2000]; see also Penal Law § 15.05 [2] ["A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists"]). In short, "a defendant must simply be aware that the conduct may likely result in harm to a child" (People v Johnson, 95 NY2d at 372 [emphasis in original]). The People also must establish that the harm was likely to occur, and not merely possible. The statute does not require proof, however, that a defendant directed the relevant conduct at the child (Johnson, at 371-372).

People v Simmons (92 NY2d 829 [1998]) and People v Johnson (95 NY2d 368) are particularly instructive here. In People v Simmons, where a day care center teacher was found to have "repeatedly direct[ed] vulgar remarks of a sexual nature to a child aged 23 months," we concluded that such evidence was legally sufficient to support the jury finding of endangering the welfare of a child (92 NY2d...