Any crime that involves a child is often given extra scrutiny by prosecutors, judges and even New York criminal lawyers. Compounding matters, if that crime also includes allegations of Assault and Criminal Possession of a Weapon, there is a real concern for the accused whether or not the complaint is baseless or completely accurate in its totality. Not only are Endangering the Welfare of a Child (New York Penal Law 260.10), Third Degree Assault (New York Penal Law 120.00) and Fourth Degree Criminal Possession of a Weapon (New York Penal Law 265.01) misdemeanors punishable by up to one year in jail (Rikers Island or the Westchester County Jail, for example), but where the crime involves a family member, Orders of Protection can bar you from your home and from any contact with your family.
In People v. Jose Barreiro, 2012KN013315, NYLJ 1202576305750, at *1 (Crim., KI, Decided October 18, 2012), the defendant was charged with multiple crimes including those listed above. Whether the purpose of Barreiro’s alleged actions was to ultimately discipline his child or merely to just hurt him, is of potentially little consequence. It was alleged that the defendant struck his twelve year old son with a belt. More specifically, Barreiro struck his son in the legs causing brusing and swelling. The complaint further claimed that these actions caused substantial pain to the child and that the child feared future physical injury.
Despite the allegations contained in the complaint (actually called an information), Barreiro move to dismiss the charges.
Motion to Dismiss Endangering the Welfare of a Child: NY PL 260.10
In denying the defendant’s motion to dismiss for facial insufficiency, the Court first examined the statute defining Endangering the Welfare of a Child (New York Penal Law 260.10. One is guilty of this crime if one knowingly acts in a way that is likely to cause injury to the mental, moral or physical condition of a child who is under the age of seventeen.
As noted in numerous Saland Law PC blog entries, and more importantly recognized by the Court, prosecutors must only allege in a complaint that a defendant acted in a manner that he or she knew would present a likelihood of harm to a minor. There need not necessarily be actual harm, but this awareness instead. (The Court referenced People v. Hitchcock, 98 NY2d 586, 590, (2002) and People v. Cruz, 10 Misc3d 838, 839 (Crim Ct, NY Cty, 2005) (“a defendant must simply be aware that the conduct may likely result in harm to the child.”).
Clearly, the court ruled correctly. Not only did the allegations at this stage sufficiently establish an actual injury to the child, but that the defendant should have known the likelihood that striking the minor with a belt multiple times could have caused this type of injury.
Motion to Dismiss Third Degree Assault: NY PL 120.00
Assault in the Third Degree is committed or established by law when a person causes physical injury to another. An injury that rises to this level is one that causes “substantial pain.”
Again, as the Court correctly determined with the Endangering the Welfare of a Child charge, the court denied the motion to dismiss the Third Degree Assault. Ultimately the trier of fact will determine the level or actual degree of the pain and injury, but at this stage the allegation of multiple strikes with a belt that caused substantial pain as well as bruising and swelling was certainly sufficient.
Motion to Dismiss Fourth Degree Criminal Possession of a Weapon: NY PL 265.01
Likely the most interesting of the charges in terms of analysis, the Court went “three for three” in correctly analyzing the allegations agains the defendant. While most lawyers, especially those with limited criminal experience, believe that misdemeanor weapon crimes in New York , such as Criminal Possession of a Weapon in the Fourth Degree, involve only knives, unloaded firearms and similar objects, that simply is not the case. In fact, one is guilty of New York Penal Law 265.01(2) when one possess “any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.”
Identifying a case directly on point, the Court reviewed People v. Prue, 219 AD2d 873 (4th Dept. 1995). There, the Appellate Court found that a belt is a dangerous instrument if used in such a manner. Similar to this case, the defendant “struck his 12 year old son…with the leather belt he usually wore with his police uniform.” Similarly, the Court compared the case to People v. Rozanski, 209 AD2d 1018 (4th Dept, 1994) where the defendant used an otherwise non-dangerous or criminal object (an extension cord or belt) and struck the complainant multiple times.
Ultimately, the Court correctly analyzed and denied the defendant’s motion to dismiss in its entirety. Whether the trial court or a jury would find otherwise, was not the issue before the Court. At a minimum, the People’s complaint sufficiently gave notice to and established the charges against the defendant.
To learn more about the cases and statutes involving Endangering the Welfare of a Child, Assault in the Third Degree and Criminal Possession of a Weapon in the Fourth Degree, either review the links above or search other entries in the NewYorkCriminalLawyerBlog.Com.
Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Saland Law PC’s two founding New York criminal lawyers represent clients in criminal matters throughout the New York City and suburban area.