People v. Simmons

• Decision Date: 09 June 1998
• Citation: 677 N.Y.S.2d 58,699 N.E.2d 417,92 N.Y.2d 829
• Parties: , 699 N.E.2d 417, 1998 N.Y. Slip Op. 5436 The PEOPLE of the State of New York, Respondent, v. Colleen SIMMONS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 58

677 N.Y.S.2d 58

92 N.Y.2d 829, 699 N.E.2d 417, 1998

N.Y. Slip Op. 5436

The PEOPLE of the State of New York, Respondent, v. Colleen SIMMONS, Appellant.

Court of Appeals of New York.

June 9, 1998.

Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn and Michael P. Ravalli, of counsel), for appellant.

Sol Greenberg, District Attorney of Albany County, Albany (Christopher D. Horn, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the County Court should be affirmed.

Defendant was employed as a teacher at an Albany day care center and charged with 15 counts of endangering the welfare of a child. Count one charged defendant with, over a course of weeks from approximately March 1 to April 12, 1995, repeatedly directing vulgar remarks of a sexual nature to a child aged 23 months, the remaining counts charging inappropriate, forceful and rough treatment of this child and other children in her care. After a jury trial in City Court, defendant was convicted of four counts of endangering the welfare of a child and was sentenced to three years' probation and 30 days in jail. The County Court affirmed defendant's conviction and sentence.

Defendant contends, among other things, that the evidence adduced at trial was legally insufficient to support a conviction under Penal Law § 260.10(1) as it related to the use of vulgar and inappropriate language under count one.

Penal Law § 260.10(1) provides, in pertinent part, that

"A person is guilty of endangering the welfare of a child when:

1. 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."

Actual harm to the child need not result for liability under the statute to attach, it being sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child (see, People v. Bergerson, 17 N.Y.2d 398, 403, 271 N.Y.S.2d 236, 218 N.E.2d 288 [distinguishing between subdivisions (1) and (2) of predecessor statute to Penal Law § 260.10] ).

Here the defendant, a trained teacher, repeated her mocking and vulgar remarks to the child over a period of nearly six weeks. This child was in the formative stages of speech and learning, had some verbal cognitive abilities and in fact reacted to defendant's vulgar queries, by answering "yes."

Endangering the welfare of a child is a crime which may be characterized as a continuing offense over time, and does not necessarily contemplate a single act (People v. Keindl, 68 N.Y.2d 410, 421, 509 N.Y.S.2d 790, 502 N.E.2d 577). The jury therefore may reasonably have concluded that the totality of defendant's remarks, repeated to the child over a six-week period at a crucial stage in her intellectual and social development, would have combined to create a likelihood of harm, regardless of the child's current level of understanding. This conclusion is supported by the evidence adduced at trial, is not speculative and is sufficient to sustain the jury's finding of guilt.

Thus, viewing the evidence as a whole and the inferences which may be drawn in the light most favorable to the People (see, People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the jurors, drawing upon their common human experience and commonsense understanding of the nature of children, could reasonably conclude that defendant uttered the inappropriate remarks, that the remarks were likely to have caused the child harm, and that defendant knew that her remarks were likely to cause the child to suffer harm (see, People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288; People v. Wachowicz, 22 N.Y.2d 369, 372, 292 N.Y.S.2d 867, 239 N.E.2d 620).

We have reviewed defendant's remaining contentions and find them to be without merit.

TITONE, Judge (dissenting).

The People had to prove beyond a reasonable doubt that appellant's lewd questions directed at a 23-month-old girl were likely to be injurious to her (see, Penal Law § 260.10[1] ). Because the People did not present any proof on this issue, they failed to present a legally sufficient case, and I respectfully dissent. There is simply nothing in the record from which the jury could have concluded that this very young girl was likely to be harmed. The evidence was clear that this 23-month old did not understand the questions, and the People substantiated no other likely harm to this child's well-being. Although the People might have presented such proof, they plainly failed to do so.

Harm in proving endangerment of the welfare of a child cannot be merely speculative, it must be likely (see, People v. Cruz, 152 Misc.2d 436, 439, 576 N.Y.S.2d 978 [harm likely, not merely speculative where young children were in car with drunk driver] ). Although this Court and the lower courts have recognized that mere speech of a sexual nature to children can support a conviction for endangering the welfare of a child, in those cases an inference of the likelihood of harm could be made because the child was of such an age and cognitive ability that he or she could have understood the speech or the speech requested...