When Sharing Cigarettes is a Crime: The Low Level Threshold for Prosecuting Endangering the Welfare of a Child (NY PL 260.10) in New York

Whether its the Administration of Children’s Services (also called “ACS”), the New York City Police Department or a prosecutor from Manhattan to Brooklyn or anywhere in the State, being accused of a crime that endangers or threatens a child’s well being is a serious matter. Arguably, even the mere allegation without an arrest for Endangering the Welfare of a Child (New York Penal Law 260.10) is enough to brand you in your community, neighborhood or building with a “scarlet letter.” Its is safe to say that at the first sign of any investigation or impending arrest, consulting with your Child Endangerment lawyer or criminal defense attorney may be one of the smartest moves you can make. After all, even your innocent and reasonable statement in your own defense can be construed as something more sinister.

Beyond discussing the allegations of child neglect or even a more serious criminal Assault against a child with your New York criminal defense attorney, educating yourself on the criminal statutes and how courts interpret the laws is also critical. What is the threshold for Endangering the Welfare of a Child? How far must you go and must your actions be intentional? The following recent case decision may not answer every question you have about this “A” misdemeanor, but certainly sheds light on how non-violent conduct can land you in jail for up to one year.

In a case from Bronx County Criminal Court, People v. Jacqueline Cardona, 2012BX071540, NYLJ 1202624992394 (Crim. Bx., Decided October 21, 2013), a court directly addressed whether giving a lit cigarette to a minor is punishable as Endangering the Welfare of a Child, under NY PL Sec. 260.10. In Cardona, the defendant sought to dismiss the charge of Endangering the Welfare of a Child after she, on “three separate occasions,” approached the minor child and handed him a lit cigarette, which the minor smoked. The court, however, upheld the charge.

In its decision to uphold the charge, the court, quoting NY PL 260.10, stated that a person is guilty of Endangering the Welfare of a Child when he or she “knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” In order for defendant to be guilty of this charge, the defendant must engage in conduct “knowing it will present a ‘likelihood’ of harm to a child (i.e. with an awareness of the potential for harm.)” See, People v. Doe, 137 Misc2d 582, 521 NYS2d 636 (Crim. Ct. NY City, 1987). The court, in substantiating its position, pointed out that the harmful effects of smoking tobacco are prevalent. The court, relying upon information disseminated by the American Cancer Society, noted that cigarette smoke is “made up of 7,000 chemicals, including over 60 known to cause cancer…Some of these substances cause heart and lung disease too, and all of them can be deadly… some of the chemicals found in tobacco smoke include cyanide, benzene, formaldehyde…ammonia…Tobacco smoke also contains tire in the poison gases carbon monoxide and nitrogen oxide.” Furthermore, the court added that “[t]oday, we’re more aware about how bad smoking is for our health…almost everyone knows that smoking causes cancer, emphysema, and heart disease; that it can shorten your life by 10 years or more.”

The court summed up its feelings when it wrote “for any person to think that it is somehow not injurious to the physical welfare of a [minor] child to give that child tobacco to smoke is beyond the ability of this Court to comprehend.”

Whether you or I agree on the court’s finding and analysis (wearing my “non-defense attorney hat” it is in my opinion the correct view), the decision is an important one. It is likely that Cardona did not have the intention to hurt this child or was malicious in her actions. Ignorant? Certainly, but, again, malicious? Likely not. Worthy of prosecution? Not our call. Regardless, the standard is not whether one is intentionally or maliciously trying to hurt a minor, but that the actor’s behavior is performed in such a way that he or she knows that there is a likelihood of harm. Unless this adult was living in the 1920s, he or she would be hard pressed to argue that there was no likelihood of harm when multiple addictive cigarettes were offered (putting on my “defense attorney cap” the argument could be that a few cigarettes would not cause addiction, the child didn’t fully smoke the cigarettes, the amount of cigarettes would not result in the medical problems listed above, this case is not worthy of criminal prosecution where no narcotic or more immediately dangerous substance was provided, etc.). Regardless, be warned. Not heroin or a narcotic, the court has made it clear that the threshold for violating the statute is quite low.

To educate yourself about Endangering the Welfare of a Child in the context of intentional and unintentional conduct, follow the links above. Further, a review of this blog has numerous entries examining legal decisions on this statute with varying fact patterns.

Established by two former Manhattan prosecutors, Crotty Saland PC is a New York City law firm dedicated to criminal defense in the New York metropolitan area.

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