More than most crimes in New York, Endangering the Welfare of a Child, New York Penal Law 260.10, is a nebulous and vague charge that leaves a great deal of discretion and interpretation in the hands of the prosecutor and the judge. The most commonly invoked section of the Endangering statute in New York is the allegation that the accused person knowingly acted “in a manner likely to be injurious to the physical, mental or moral welfare of a child.” Not only is this standard difficult to pin down, but it is seemingly subject to the disparate and constantly changing landscape of cultural norms, even between different areas of New York State. Modern psychology leaves no doubt that aggressive and repeated arguments between parents in the presence of a young child can lead to long-lasting psychological trauma, but is a District Attorney going to prosecute two parents criminally for fighting a lot? What about a parent who keeps marijuana for personal use in a desk drawer of their home office? What is enough to rise to level of acts that are likely to harm a child psychologically or “morally?”
The appellate Court in People v. Aikey, 2017 NY Slip Op 06766 (4th Dept. 2017), recently grappled with that question in its review of a bench trial in which the defendant was convicted of Endangering the Welfare of a Child and other charges. In Aikey, the victim testified that the defendant pushed her while she was holding one child and while both parties were in close proximity to another child. Without any detailed analysis, the appellate court held that that evidence was legally sufficient to establish that defendant knowingly acted in a manner that would likely be injurious to the physical, mental or moral welfare of the two children. It’s safe to assume that the Court was relying on the possible physical harm that the child in the victim’s arms could have suffered by the defendant pushing the victim forcefully. However, this clearly leaves a lot of gray area between the hypothetical scenarios mentioned above and pushing a mother holding a small child. However, the Court upheld a second count of Endangering the Welfare of a Child as to the other child who was “in proximity” to the victim at the time of the push. It’s not clear whether that was viewed by the Court as potentially causing physical harm to the nearby child, say if the victim fell into the child, or if the Court viewed this act as being likely to harm the nearby child psychologically. What is clear is that, under Aikey, one parent pushing another parent in the presence of a nearby child is enough to sustain a conviction for PL 260.10.
What this does is potentially turn many otherwise non-criminal acts, such as a push that would normally only amount to a non-criminal violation charge of Harassment in the Second Degree, into an A misdemeanor crime punishable by up to a year in jail if a child is in the room. There is still a fair amount of gray area left between a push in the presence of a child and an intense verbal argument, but the decision in Aikey does narrow that gray area significantly. As already mentioned, prosecutors will no doubt continue to exercise a great deal of discretion with regard to charges of this nature, both in a positive and negative way. Regardless, if you are charged with Endangering the Welfare of a Child, it is critical to not only understand the constantly shifting law relating to this criminal charge, but also understand the practical, common-sense, real-world factors and considerations that go into the decision by a prosecutor to bring or not bring these kinds of charges, and the decision by a jury to convict or acquit a defendant.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in Endangering the Welfare of a Child cases throughout the New York City and Hudson Valley region.