Endangering the Welfare of a Child: Can any Custodian be Liable for and Guilty of NY PL 260.10 or Must Prosecutors Establish Control and Care

In New York, or any state for that matter, arrests involving children carry with them the worst stigma. Obviously, crimes that involve sexual or physical harm are by far and away the most serious, but the stain of an arrest can linger even if your conduct is nowhere near or similar to these offenses. While on its face Endangering the Welfare of a Child, New York Penal Law 260.10, is a “nasty” crime, your conduct need not be that significant to run afoul of the law. In fact, the New York criminal lawyers and New York Endangering the Welfare of a Child attorneys at Saland Law PC have represented more than one client over the years for leaving a child alone briefly to merely follow through with an every day activity such as running into a store for a couple of minutes. Smart? Maybe not. Worthy of a criminal conviction? No.

Well, beyond the crime of PL 260.10, even if the conduct itself is criminal, who is responsible for the child in question? What if, for example, a child was left unattended and you, as a cousin, neighbor, uncle, sibling or other party came to secure the child after the police had been called. Is your mere offer to take responsibility of the child also a reflection of your culpability for leaving the child alone? What must prosecutors do to establish the nature and extent of the defendant’s control and care? A recent decision from the Bronx Criminal Court answers this exact question.

Before addressing the Bronx County decision, let’s go to the actual statute. You are guilty of Endangering the Welfare of a Child (Penal Law 260.10(1)) if you “ knowingly act[] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” Forget the fact that the statute doesn’t provide much clarity or guidance, let’s next address the definition of “knowingly.” A person acts knowingly “when he is aware that his conduct is of such nature or that such circumstance exists” (Penal Law 15.05(2)). It is important to note that actual harm to a child is not a necessary element to prove this charge; instead prosecutors must prove that the defendant was simply aware that his/her conduct may likely result in harm to a child, whether directed at the child or not. People v. Johnson, 95 N.Y.2d 368, 372 (2000). With these definitions behind us, the case of People v. Ibrahim, 2014BX037216, NYLJ 1202722391080 (2015), illustrates the extent to which the prosecution must prove the victim was under the defendant’s care and control.

In People v. Ibrahim, the defendant was charged with one count of NY PL 260,10. Here, an informant told police that on the morning of July 12, 2014, at the rear of 1742 Fulton Avenue in the Bronx, there was a small male child sitting on the first floor fire escape unaccompanied by an adult. Police arrived at the scene, spent approximately one hour knocking on doors and then took the boy to the police station where at 10:45 AM the defendant entered the precinct and stated “I’m his [the child’s] uncle. I don’t know what happened. I was sleeping.” The Police arrested and charged the defendant with the crime of Endangering the Welfare of a Child (Penal Law 260.10(1)) while he was in the police station.

The defendant’s attorney filed a motion to have the charge of Endangering the Welfare of a Child dismissed. In his motion, the defendant’s attorney argued that the charge should be dismissed because the accusatory instrument was not facially sufficient. For an accusatory instrument to be facially sufficient it must contain non-hearsay allegations that establish if true, every element of the crimes charged.

The defendant argued that the accusatory instrument failed to allege that he had custody and control of the child. The defendant also argued that his act of appearing at the precinct did not establish that (1) he was the person with whom the child was with at the time of the incident or (2) he had custody and control of the child at the time of the incident. The Court considered both of these arguments and ultimately held that, while leaving a small child unattended creates a strong likelihood of harm to the child,  the arrival of the defendant at the police station claiming to be the victim’s uncle does not demonstrate the victim was under the defendant’s care at the time of the incident. The Court found for the defendant and dismissed the charge of Endangering the Welfare of a Child.

As this decision should make clear, care, custody and control are all important pieces of the Endangering the Welfare of a Child puzzle. If prosecutors cannot establish these “elements” irrespective of your relationship to the child, then they have failed to do their job.

To educate yourself further on the crime of Endangering the Welfare of a Child, NY PL 260.10, an examination of this blog will provide many entries on the topic. Further, following the links found within this entry will lead you to Saland Law PC’s Endangering the Welfare of a Child information page.

Established by former prosecutors serving in the New York County District Attorney’s Office, the criminal defense attorneys at Saland Law PC represent clients in all criminal matters throughout New York City and her surrounding suburban municipalities.

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