Mere Presence of a Child in a Physical Dispute: When Conduct Not Aimed at a Child is the Basis for a New York Endangering the Welfare of a Child Arrest

People are arrested for Endangering the Welfare of a Child (New York Penal Law 260.10) based on a variety of allegations. While some are clear and obvious, other crimes in New York and arrests for Endangering the Welfare of a Child are not so blatant.

In People v. Nadine Brown, 2012QN029277, NYLJ 1202572202951, at *1 (Crim., QU, Decided September 5, 2012), the complainant in an arrest that charged, among other crimes, Endangering the Welfare of a Child, stated that the defendant spat on her, pulled her hair and stopped her from calling 911. Further, the defendant allegedly slapped a cell phone from the complainant’s hand and threw a glass picture frame at her causing the picture frame to break. Compounding matters, and the factual allegations that formed the basis of the motion to dismiss, the above incident was alleged to have transpired in the presence of the complainant’s six year old child.

The reasoning behind the motion to dismiss was that the complaint was facially insufficient for its failure to establish how the defendant’s behavior caused any impact on the six year old child or caused the child to suffer “physical, mental or moral harm.” Further, the complaint against the defendant accusing him of Endangering the Welfare of the Child did not allege actions directed at the six year old. Finally, the defendant’s motion argued that the assertion of “present,” as drafted in the complaint, is vastly different and not sufficient to establish any observation by the child. Without observation, the charge of Endangering the Welfare of a Child cannot stand.

As a preliminary matter, the Court of Appeals, New York’s highest court, has previously addressed and ruled on the issue of whether actions must be expressly oriented towards a child or that harm be actually sustained. See People v. Johnson, 95 N.Y.2d 368, 371, 718 N.Y.S.2d 1, 2 (2000). In fact, to sustain a charge of New York Penal Law 260.10, a defendant must only behave in a way that is likely to result in harm where there is knowledge of the likelihood that harm may result. As such, as the Court noted in Brown, “[t]he statute is broadly written and imposes criminal sanction for the mere ‘likelihood’ of harm.” It is this awareness by the defendant that is key as opposed to actual and real harm being inflicted upon a child.

Applying the legal standards for facial sufficiency along with the decisions that guide the analysis of Endangering the Welfare of a Child crimes in New York, if proved true, the fact that the defendant slapped the cell phone from the complainant while also pulling her hair, throwing a picture frame and spitting at her in the presence of a child, is sufficient at this stage in the criminal process. Again, if true, these allegations establish the defendant’s actions were likely to cause harm to the child’s mental, moral or physical well being. The fact that this all occurred in front of the child is enough to infer that the defendant knew that these actions would likely cause the child harm. Finally, “present,” when taken in the context of the complaint, is also legally sufficient.

Brown is one of a litany of cases littered throughout the New York Penal Law (as well as throughout this blog) that establishes the broad way in which New York courts interpret the crime of Endangering the Welfare of a Child. In short, your actions need not be directed at a child and they need not cause bruising, bleeding or some horrific laceration. In fact, there are numerous cases that address the mere presence of weapons or narcotics in rooms where children are present. Consult with your criminal lawyer to understand the spectrum of conduct that can constitute Endangering the Welfare of a Child. Conduct you may believe is insignificant or non criminal may be the basis of a permanent criminal record that also lands you in jail for weeks, months or even a year.

To learn more about New York Penal Law 260.10, New York Domestic Violence crimes or the general arrest process in New York, follow the highlighted links found throughout this entry and in the websites listed below.

Crotty Saland PC is a New York criminal defense firm established by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in arrests for Endangering the Welfare of a Child throughout the New York City region.

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