People v. Lowe
| Decision Date | 13 January 2015 |
| Docket Number | 2014NY051011 |
| Court | New York Criminal Court |
| Parties | The People of the State of New York, Plaintiff, v. Sean Lowe, Defendant. |
Appearances of Counsel:
For the defendant: Lewis F. Gladston, Esq.For the People: Cyrus R. Vance, Jr., New York County District Attorney, by ADA Jessica Peck
Defendant, charged with endangering the welfare of a child, moves to dismiss, arguing that the Information is facially insufficient. As a matter of apparent first impression, the Court concludes that an Information alleging that the defendant was highly intoxicated at a time that he was supposed to be caring for two small children, makes out a prima facie case of Endangering the Welfare of a Child under Penal Law § 260.10(1). Accordingly, defendant's motion is DENIED.1
Defendant also moves to suppress certain post-arrest statements; as to that, the Court GRANTS a Dunaway/Huntley hearing.
According to the accusatory instrument, on the afternoon of June 28, 2014, a New York City firefighter responded to a radio call about an unconscious individual. He came upon the defendant on a street corner in Upper Manhattan. Defendant was hanging off of a bench, and appeared to be intoxicated. The firefighter could not awaken the defendant and had to put him on a stretcher and into an ambulance.
An EMT officer responded to that same radio call. She also observed that defendant was unconscious and reeked of alcohol, and that a four-year-old child was standing nearby being supervised by a stranger on the street.
Before he was taken away in the ambulance, defendant regained consciousness and told a police officer,
Defendant was arraigned on June 29, 2014, on a Misdemeanor Complaint charging him with one count of Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1). The Courtset bail and adjourned the case for conversion. Defendant eventually posted bond and the People filed the necessary Supporting Depositions, converting the Misdemeanor Complaint into an Information.
Defendant filed the instant motion on October 20, 2014, and the People responded on November 12. The matter has been sub judice since then.
The Information, sworn out by Police Officer Carlos Castillo, provides that
I am informed by [a New York City firefighter] that [he] responded to a call for an unconscious male at [4:00 p.m. on June 28, 2014], at [the northwest corner of West 139th Street and Saint Nicholas Avenue.] [He] observed the defendant hanging half on and half off a bench. He smelled a strong odor of alcohol coming from the defendan[t]. He tried to wake the defendant up, but the defendant would not move. [He] had to place the defendant on a stretcher and put him in an ambulance.
I am informed by [an EMT technician] that [she] responded to the same call for an unconscious male. [She] also observed the defendant unconscious and smelled a strong odor of an alcoholic beverage em[a]nating from the defendant. She also observed that a four (4) year old was standing in the vicinity and was being supervised by a passerby on the street.
When I arrived at the scene, I observed the defendant state to me, in substance:
The People corroborated the Misdemeanor Complaint by filing Supporting Depositions of both the firefighter and the EMT technician. The Supporting Deposition of the firefighter contains a handwritten emendation, in which he explained that he did not smell alcohol on the defendant as reported in the Misdemeanor Complaint, but rather, observed other physical signs - "fixed pupils and an altered mental status" - suggesting that the defendant was under the influence of a controlled substance.
Defendant argues primarily that the Misdemeanor Complaint was never converted to an Information, because the Misdemeanor Complaint attributed to the firefighter a report that the defendant appeared intoxicated by alcohol, but the firefighter's Supporting Deposition alleged that the defendant was under the influence of a controlled substance, and not of alcohol. The Court rejects this argument, and concludes that Misdemeanor Complaint was converted to an Information by the Supporting Depositions of the firefighter and the EMT technician.
In addition, the Court also concludes that the allegation that the defendant was highly intoxicated while he was supposed to be supervising his two young children sufficiently pleads Endangering the Welfare of a Child under § 260.10(1).
The Court rejects defendant's argument that the Supporting Deposition of the firefighter, which alleged that the defendant was under the influence of a controlled substance and not, as reported in the Misdemeanor Complaint, under the influence of alcohol, failed to convert theMisdemeanor Complaint.
The Misdemeanor Complaint is converted because the two Supporting Depositions - that of the firefighter and the EMT technician - when read in conjunction with the Misdemeanor Complaint - contain "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009). The conversion requirement is intended simply to ensure that the case can only move forward to trial based on first-party allegations. That requirement is satisfied here.
Nor is there any merit to defendant's complaint that the firefighter's Supporting Deposition changed the People's theory of prosecution in a way that requires a new charging instrument. Rather, an 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 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). That standard is clearly satisfied here. The Information alleges that the defendant was highly intoxicated when he was supposed to be supervising two small children. Whether he was specifically under the influence of a controlled substance or of alcohol, or both, is immaterial.
Finally, the Court notes that, in any event, even if the Court agreed with defendant's argument, dismissal would not be the appropriate remedy. Rather, the case would simply be adjourned for conversion. Thus, for example, in People v. Rivera, 45 Misc 3d 386, 987 N.Y.S.2d 570 (Crim. Ct. NY County 2014) (Statsinger, J.), this Court concluded that a trademark affidavit did not convert a Misdemeanor Complaint to an Information because the affidavit itself was based on hearsay. But the Court did not dismiss the case; rather it "adjourned [the case] for conversion, subject to the usual CPL § 30.30 time parameters." Id. See also People v. Picado, 34 Misc 3d 660, 933 N .Y.S.2d 533 (Crim. Ct. Queens County 2011). Thus, even if there were any merit to defendant's claim, the motion to dismiss would still be denied.
The Information alleges that the defendant was highly intoxicated - to such a degree that a firefighter could not immediately revive him - on a public street while, if the defendant's own account is to be believed, his two small children were supposed to be in his care. One of those children was ultimately found being minded by a stranger on the street, while the other was, to quote the defendant, "missing." These facts sufficiently plead Endangering the Welfare of a Child under Penal Law § 260.10(1).
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 NY2d 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, 92NY2d 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 the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 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 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236. 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 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236. Under these principles, the Information is facially sufficient.
The combination of small children, adults and drugs or alcohol is a dangerous one, indeed. New York courts have consistently recognized that the potentially disastrous consequences that are likely to arise in such situations make out the...
To continue reading
Request your trial