Attempted Endangering the Welfare of a Child: When Does Your Conduct Cross the Criminal Line for a NY Arrest

An arrest in New York for Endangering the Welfare of a Child is one of the more serious misdemeanor crimes in the New York Penal Law. Generally speaking, its not that one “A” misdemeanor is more serious than another (all “A” misdemeanor crimes are punishable by as much as one year in jail), but when an crime, charge or arrest involves children, both courts and prosecutors pay much closer attention. Add this practical reality to Endangering the Welfare of a Child prosecutions and you will quickly realize that the police (NYPD and others), may be inclined to make an arrest for New York Penal Law 260.10 first and then ask the deeper and more relevant questions later. Whether this is the situation for your NY PL 260.10 arrest, a New York criminal lawyer is likely a necessity not only to get you limited bail or released from custody, but to ascertain whether the allegations against you form a legally sound complaint of a Child Endangerment crime.

In terms of your own New York Child Endangerment lawyer or NYC criminal defense attorney implementing the best defense, he or she must have a firm grasp on the law. Certainly, it would help if you, the accused, had the same comprehension. Boiled down to its basic elements, Endangering the Welfare of a Child occurs under the first subsection (NY PL 260.10(1)) when you act knowingly in a way that is likely to be injurious to a child (who is less than 16 years old) in terms of their physical, mental or moral welfare. Alternatively, you direct or authorize that child to engage in an occupation where a substantial risk or danger to that child’s life or health is exists.

Now having read the general language of Endangering the Welfare of a Child in New York, to better understand NY PL 260.10 one should also examine how far must one’s actions go before one has crossed the line from a non-criminal to a criminal act. At what point is one’s actions not merely criminal, but do those actions legally form the basis of an Attempted Endangering the Welfare of a Child (if not the entire crime)? Fortunately for all of us, People v. Lakhram Omwathath, 2011-2874 Q CR, NYLJ 1202594053272, at *1 (App. Div. 2nd, 11th and 13th, Decided March 19, 2013), answers that and more.

Omwathath, a school bus driver, arrived at school and reported to work in what appeared to be an intoxicated state. Upon going to the principal’s office, the testimony at trial established that he had the tell-tale signs of drunkenness including the watery and blood shot eyes, alcohol on his breath and some slurred speech. Upon police arriving, the defendant took field sobriety tests and blew a .037 when he submitted to a chemical test. Despite this reading, the machine indicated that the breath sample was inadequate for an accurate finding. Ultimately, a judge found the defendant guilty of Attempted Endangering the Welfare of a Child. The defendant appealed the conviction.

On appeal, as was the case at trial, defendant challenges the legal sufficiency of the proof that he attempted to endanger the welfare of a child. We agree that the trial evidence was legally insufficient to support the conviction.

Even assuming the defendant had been driving the bus while he was guilty of Driving While Ability Impaired (Vehicle and Traffic Law 1192.1), guilt beyond a reasonable doubt of DWAI alone, even with kids in the vehicle, would not be enough to establish the crime of NY PL 260.10. (People v. Chase, 186 Misc 2d 487, 488 [App Term, 9th & 10th Jud Dists 2000]). Therefore, if having some level of impairment (not intoxication as defined by the more serious Driving While Intoxicated – Vehicle and Traffic Law 1192.2 or 1192.3) alone is not enough to establish the endangerment conduct, then logically, the defendant could not be found guilty of an attempt to commit Endangering the Welfare of a Child. (People v. Grennon, 36 Misc 3d 33, 35 [App Term, 9th & 10th Jud Dists 2011]).

In examining how far the defendant need to proceed in his potential criminal conduct to satisfy the element of “Attempt,” New York Penal Law 110.00), the court recognized that there must be a showing “that [the] defendant committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained” (People v. Warren, 66 NY2d 831, 832 [1985]; see also People v. Gajadhar, 38 AD3d 127, 135 [2007].

Here, while the defendant did show up to work to drive a bus that would ultimately be filled with children, the defendant never entered that bus. Further, the children did not enter the bus. At no point did the defendant start the engine, put the key in the ignition or engage these children. Simply, he was not close enough for even an attempt to commit a crime. Bad judgement? No doubt. Criminal? That’s another matter.

To read the numerous blog entries dissecting Endangering the Welfare of a Child pursuant to New York Penal Law 260.10, search for this statute in the NewYorkCriminalLawyerBlog.Com. Further, the website has additional analysis of this misdemeanor offense.

Saland Law PC is a New York criminal defense firm. The two founding New York Criminal lawyers at Saland Law PC bother worked as prosecutors in the Manhattan District Attorney’s Office before starting the criminal practice. Saland Law PC represents clients in criminal matter throughout New York City and the surrounding municipalities.

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