NY Criminal Defense Attorney Obtains Dismissal of Endangering the Welfare of Child

I have mentioned in previous entries how significant and serious a charge Endangering the Welfare of a Child is to any defendant and his or her criminal defense attorney. While “only” a misdemeanor, it is understandable that there is a zero tolerance policy when it comes to protecting children.

In People v. Maribel Perez, 2008NY046914, a decision published in the last few weeks, a NY County (Manhattan) Criminal Court Judge dismissed the charges of Endangering the Welfare of Child against a mother of young children. This dismissal, however, was not due to the factual allegations in the complaint, but due to a technical legal mistake.

The complaint against the defendant alleged that “while in an intoxicated condition after having consumed ‘three (3) bottles of Corona and two (2) forty (40) ounce bottles of Heineken,’ the defendant left her four children ranging in age from one to thirteen years, alone for ten minutes in an apartment where there was ‘urine on the floor.. cockroaches crawling on the floor of the apartment, in the kitchen, on the mattresses, and crawling over the sleeping children . . . dirty clothes and laundry all over the apartment . . . dirty pots and pans in the kitchen . . . [and] clorox bleach bottles in the tub of the dirty bathroom.'”

The criminal defense attorney alleged that the “‘mere leaving of minor children for a period of ten minutes in the presence of a thirteen year old’ is insufficient to create the ‘likelihood of harm’ required to plead a facially sufficient charge of Endangering the Welfare of a Child. Further, defendant additionally asserts that the ‘allegations that the defendant consumed 5 bottles of beer and that the apartment was unclean’ do not present a likelihood of harm to the children and do not rise to the level of criminal conduct encompassed by Endangering the Welfare of a Child. Thus she seeks dismissal of the complaint for facial insufficiency.”

In disagreeing with the defendant, the court stated that ten minutes was ample enough time for children to be harmed and further noted that:

“Contrary to defendant’s contention, the defendant did more than just leave her children alone in an apartment for ten minutes, or drink five bottles of beer while responsible for the care of her children, or keep a dirty house. The defendant isolates each one of these actions from the other, and in so doing, attempts to characterize each action in and of itself as noncriminal, if not wholly innocuous. But the defendant did not simply do one of these things separately and apart from the others; she did all of these things in conjunction, and the entirety of her alleged conduct, both her acts and omissions, provide reasonable cause to believe that she committed the offense of Endangering the Welfare of a Child against each one of her children.”

Despite the court disagreeing with the defendant and firmly denying the motion for facial insufficiency on the grounds set forth by the defendant, the court still dismissed the complaint on a technical ground. The accusatory instrument in this matter contained hearsay allegations. Specifically, the officer stated that the children were minors and indicated their ages. Because the mother did not state the ages, there was no birth certificate establishing the ages or a description of the children as to make it clear they were minors, the complaint failed to legally set forth this element of the crime.

Two important lessons can be taken from this case. The first, which is clear, is that the courts are very open and liberal in their viewing of what activities or actions constitutes Endangering the Welfare of a Child even if that activity lasts for only a few minutes. However, the second lesson is equally important from a legal perspective and applies to all criminal allegations. That is, the prosecution has certain responsibilities and requirements. Even if a complaint is sufficient based on the facts set forth in it, the prosecution must make sure each and every legal element is satisfied. Here, the prosecution failed to set forth non-hearsay allegations. This failure, whatever the charge and whatever the facts, often takes a trained and experienced eye to identify. The criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC have those trained eyes and will use their experience to fight for your rights and hold the prosecution to their burden.

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