People v. Morabito

• Decision Date: 29 January 1992
• Citation: 580 N.Y.S.2d 843,151 Misc.2d 259
• Parties: The PEOPLE of the State of New York v. Melissa A. MORABITO, Defendant.
• Court: New York City Court

Page 843

580 N.Y.S.2d 843

151 Misc.2d 259

The PEOPLE of the State of New York v. Melissa A. MORABITO, Defendant.

City Court of Geneva Ontario County.

Jan. 29, 1992.

R. Michael Tantillo, Dist. Atty., County of Ontario by Timothy J. Buckley, Asst. Dist. Atty., for People.

Christine M. Cook, Geneva (Sara L. Mandelbaum, New York City, of counsel and on brief), for defendant.

DAVID H. BRIND, City Court Judge.

The Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, a class A misdemeanor in violation of Section 220.03 of the Penal Law and Endangering the Welfare of a Child, a class A misdemeanor in violation of Section 260.10 of the Penal Law. Defendant moves to dismiss both charges on the following grounds:

1. There exists a jurisdictional and a legal impediment to conviction of this Defendant for the offense charged.

2. This is the first time that the Ontario County District Attorney's Office has prosecuted a woman under Penal Law Section 260.10(1) on the basis of alleged acts committed while the alleged victim was in utero.

3. That prosecution of this Defendant under Penal Law Section 260.10(1) contravenes the plain language of the Statute and the legislative intent of the Statute.

4. That this prosecution violates the Defendant's fundamental right to due process of law under the Federal and State constitutions and statutory rights under the New York Penal Law.

5. That this prosecution violates the Defendant's fundamental rights to privacy and to equal protection of the law.

6. That this prosecution violates the Federal and State prohibitions against cruel and unusual punishment in that it seeks to punish Defendant for her alleged status as a drug addict.

7. That dismissal is required in the furtherance of justice.

Upon examination of the Information/Complaint filed with the Court on the charge of Criminal Possession of a Controlled Substance in the Seventh Degree, hearing the arguments of counsel and reading and filing the memoranda, the Court determines that the accusatory instrument meets the requirements of Criminal Procedure Law sections 100.15 and 100.40 and that the motion to dismiss is without merit and must be denied.

As to the dismissal of the charge of Endangering the Welfare of a Child, the Court notes at the outset that this is an issue of first impression in New York even though this statute has ancient roots of over 100 years. (L.1876 Chapter 122, Section 4.)

The accusatory instrument alleges:

"that on or about March 4, 1991, in the City of Geneva, Ontario County, New York, the Defendant did possess and did smoke a controlled substance known as cocaine, and by the Defendant's actions, she did place her newborn child in a manner that was likely to be injurious to the physical welfare of Lacreesha Morabito, who is the child of the Defendant; by the Defendant's actions of smoking cocaine, she did induce labor causing Lacreesha to be born premature and with cocaine in the blood system of the newborn."

Section 260.10(1) of the New York State Penal Law under which the Defendant is charged states:

"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."

CASE LAW

Our several sister states, however, have had occasion to examine similar statutes. In Commonwealth v. Pelligrini, the Superior Court of Plymouth, Massachusetts (October 15, 1990), examined a case where after the Defendant gave birth to a child, tests performed on the infant revealed the presence of cocaine. The Commonwealth alleged that the presence of cocaine in the infant was due to the ingestion of cocaine by the mother while she was pregnant and that the cocaine was transferred to the fetus through the placenta. The Court dismissed the Indictment for distributing cocaine to a person under eighteen, and further found that even if the drafter of the Penal statute intended that it apply to the ingestion of cocaine by a pregnant woman, such application is unconstitutional. The Court made this determination on the basis of the right to privacy guaranteed by the United States Constitution and the Massachusetts Declaration of Rights.

In the case of Ohio v. Tammy Gray, Court of Common Pleas (Lucas County, Ohio, July 13, 1989), the Court stated:

"This Court finds, however, that the interpretation of (the statute) to include the inutero transfer of cocaine from the mother to her fetus is an inappropriate exercise of judicial power and second, that due process principles prevent this Court from applying (the statute) to the circumstances of this case."

The Court thereupon dismissed the case. The Defendant had been indicted by the Grand Jury on Child Endangering under the Ohio revised code. The Defendant was charged with violating the duty of care, protection and support of her child by ingestion of cocaine during the third trimester of her pregnancy. The prosecution argued that the case involved not a redefinition of the term child to include fetus but rather conduct which affects the child after it is born. The Court first noted that all ambiguities and reasonable doubts in interpreting criminal statutes are to be resolved in favor of the accused. The Court refused to interpret the word "child" in the statute to include "fetus" and found that the duty under the criminal statute does not arise until a live child is born of the pregnancy.

The California Court of Appeals in People v. Reyes, 75 Cal.App.3d 214, 218, 141 Cal.Rptr. 912, 913 (1977) held that the word "child", as used in that statute, did not include "fetus" and that when the Legislature has intended to include a fetus or an unborn child within the provisions of a Penal statute, it is done so expressly, "that the Defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute."

The Court then unanimously ordered the dismissal of the case in which a pregnant woman continued using heroin during the final two months of pregnancy despite warnings of a public health nurse that such conduct could endanger her unborn child.

The Family Court of Stark County, Ohio, in the Matter of State v. Tina Andrews (June 19, 1989), similarly dismissed a case based upon an allegation that a pregnant woman ingested cocaine during the time period in which the fetus had reached viability and even though such activity created a substantial risk to the health or safety of the child after it is born. The Court stated that the group of people who are the target for criminal liabilities under that child endangering statute are people who are either parents of a child or who have been delegated parental type responsibility. The Court stated that the Child Endangering statute had been amended three times, and the legislature did not address the issue of prenatal negligence or future endangerment.

Judge Edwards summed her ruling as follows:

"Society's legitimate concern over the increasing cocaine problem in this community and its eventual effects on a future generation is supported by a growing body of medical information. But the question of whether or not the State should intervene on the activities of a pregnant woman, when it should intervene (under what circumstances and what point in the pregnancy), how it should intervene, what penalty should apply, what defenses should be available to a pregnant woman (i.e., seeking treatment) and who should be responsible for reporting such activity and when, are complex legal and social questions that can only be debated and fully considered by the legislature . The Court's function is to interpret and apply the statutory law and the legislature's function is to enact legislation that responds to the changing problems and knowledge of a society."

The Court also made the following observation:

"Certainly if the statute, in its present form, were to be applied to cases in which a pregnant woman carrying a viable fetus does some act that results in harm to that fetus or to a child born alive, it could include prosecution for failure to get prenatal care and excessive ingestion of alcohol as well as illegal drug use."

The Court concluded:

"Courts have no authority to create crimes. It is therefore, up to the (Legislature) to criminalize the ingestion of cocaine during pregnancy when such ingestion results in harm to the subsequently born child."

The Supreme Court of Wyoming in State v. Osmus, 1954, 73 Wyo. 183, 276 P.2d 469, dismissed a similar charge on the ground that that State's child abuse statute was not intended to apply to unborn children.

STATUTORY CONSTRUCTION

Section 5.00 of the New York State Penal Law states,

"The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law." (See People v. Ditta, 52 N.Y.2d 657, 439 N.Y.S.2d 855, 422 N.E.2d 515).

The Appellate Division in State v. J.S. Garlick Parkside Memorial Chapels, Inc., 30 A.D.2d 143, 148, 290 N.Y.S.2d 829, aff...