To leave your child unattended or not. That is the question. Whether the child is three months, three years or thirteen years old, does it matter? If the child is left alone for five minutes, fifteen minutes or two hours, is it relevant? Does it make a difference if the child is left in a car, a home or public location? What if drugs, alcohol or dangerous instruments are nearby? While not specified in the Endangering The Welfare of a Child statute statute, New York Penal Law 260.10 is the crime that encapsulates these types of actions and behaviors involving and toward children. A serious crime, Endangering the Welfare of a Child is an “A” misdemeanor with a punishment that can be as great as one year in jail. Compounding matters, the Administration for Children Service (ACS) or Children Protective Services (CPS) may conduct their own investigation, the child could be removed from the home and a criminal court will likely issue an order of protection either limiting or preventing certain contact with your child.
Although each of the questions addressed above will not be reviewed in this particular blog entry as they have been discussed in numerous other entries found throughout the NewYorkCriminalLawyerBlog.Com (you can search this blog or follow the links), this entry will confront the issue of length of time a child is left unattended and when it rises to criminal conduct.
In People v. Fielden, 2015NY022889, NYLJ 1202734057544, at *1 (Crim., NY, Decided July 22, 2015), the relevant facts alleged in a complaint against the defendant mother of a six month old child was that the mother left the child alone in the lobby of a hotel for approximately one hour and again in a hotel room for in excess of an hour. Not directly pertinent, when arrested for her conduct, it is claimed that the mother resisted arrest and had a controlled substance in her purse. The relevant part of the complaint (an information) stated as follows:
“Mr. Duran observed the defendant in the lobby of the hotel with the infant child and that he observed the defendant place the child on the ground and walk away and leave the child unattended for period of time exceeding one hour without checking on the child. I am further informed that Mr. Duran observed the defendant in the lobby without the child for period exceeding one hour, and that the defendant was not staying with anyone else at the hotel, and that there were no other guests in the defendant’s room other than the infant child.”
In ultimately finding the complaint facially and legally sufficient, the Court noted that there is case law permitting such findings of endangerment where children are left alone in public places. The court further analyzed “home alone” type offenses of Endangering the Welfare of a Child and noted that one court found that leaving a four year old home alone for fifteen minutes was sufficient at a pleading level to establish Endangering the Welfare of a Child. See People v. Reyes, 20 Misc 3d 1129(A), 872 N.Y.S.2d 692 (Crim. Ct. Kings County 2008). On a more general level, one court went as far as opining that “[r]egarding the act of leaving the children home alone, this Court agrees with the line of cases where courts have found that leaving young children home alone is an act proscribed by the statute, and not solely an act of bad parenting.'” See People v. Gulab, 23 Misc 3d 1123(A), 886 N.Y.S.2d 68 (Crim. Ct. Queens County 2009).
In determining that NY PL 260.10 was legally sufficient, the Court argued that the fact finding stage, not the pleading stage, is where this case should be resolved. Meaning, the legal sufficiency exists for the prosecutors to move forward, but whether or not proof beyond a reasonable doubt can be achieved is an issue of fact for a later judge or jury. Certainly, a infant child could fall, choke, suffocate, etc.. Further, as noted by the Court, “While the child was almost certainly too young to crawl away, he was completely incapable of preventing a stranger from abducting him. In addition, because the child is alleged to have been left on the floor of a hotel lobby a busy place through which hotel guests and staff move frequently, often transporting heavy items, such as luggage the risk of physical injury to the child was enormous. And, of course, there is a reasonable inference that the defendant knew of these risks when she decided to leave her infant child unattended on the floor of a hotel lobby.”
At bottom, leaving your child unattended can form the basis of or probable cause for an arrest. Relevant to the conversation is the age of the child, location of where the child is left and duration of time. While an accused may ultimately be able to successfully challenge such a case at trial or the prosecution may not be able to prove the case beyond a reasonable doubt, it appears that courts are hesitant to dismiss these cases at the initial pleading stage. There are numerous decisions that are on point. Leave a child alone, risk an arrest. Leave a child alone, do not expect a court to swoop in and differentiate bad parenting from criminal conduct during the pleading stage. You may be able to mitigate your conduct to avoid a criminal conviction or achieve an acquittal at trial, but the cited cases show that courts can hang their hats on nominal evidence to support legal sufficiency. If there are allegations in your complaint that can be used in your favor, argue them and do so vigorously.
To read more about NY PL 260.10, Endangering the Welfare if a Child, review the numerous blog entries and website content drafted by Crotty Saland PC. Educate yourself and identify your defense to limit your criminal and collateral exposure involving orders of protection, CPS and ACS.
Crotty Saland PC is a New York criminal defense firm. The founding New York criminal lawyers and Endangering the Welfare of a Child defense attorneys at Crotty Saland PC served as Manhattan prosecutors before establishing the law firm.