Endangering the Welfare of a Child: NY PL 260.10 Crimes and “Home Alone” Theories of Prosecution in New York

Endangering the Welfare of a Child, New York Penal Law 260.10, is not only an embarrassing  crime to face, but one that by its nature gets the attention of judges, prosecutors and child protection agencies such as Child Protective Services (CPS) and the Administration for Child Services (ACS). Domestic in nature when the child is your own or related to you, criminal courts and family courts can both get involved in the process where exposure on this misdemeanor is as great as one year in jail and other bodies can find that you were negligent with or maltreated the child. It is one thing for a neighbor or friend to question your parenting style or claim you are bad parent, but its another when a court finds you legally responsible or, better termed, irresponsible. With these concerns in mind, this blog entry will briefly assess PL 260.10(1) arrests involving Endangering the Welfare of a Child where the child in question is left “home alone.”

While some courts adhere to the proposition that a violation of the Endangering the Welfare of Child statute is a best determined by the fact finder at trial, such a position does not allow courts to merely ignore their responsibility to ascertain the sufficiency of such a charge at an earlier stage. Simply, to do so would cavalierly allow prosecutors to allege the most insignificant violations of Penal Law 260.10 and require an accused to vindicate him or herself solely at trial without any other recourse. Taking this approach further, such a view would not only provide prosecutors a sword to force pleas, but a shield from a court’s review to ensure the District Attorney presented the nominal necessary evidence to sufficiently provide notice of Endangering the Welfare of a Child and the elements of that offense so that an accused could prepare a defense.

Many of the so called “home alone” cases charging Endangering the Welfare of a Child involve multiple factors beyond a child being left by him or herself. These factors can include the age of the children, the proximity of the children to dangerous elements including weapons or drugs, the potential for a child to hurt him or herself and the duration the child was left alone. See, People v. Aquino, 2002 N.Y. Slip Op. 50223(U) (1st Dept. 2003) (At the pleading stage it was sufficient to merely allege that children were left home alone where they were five years and seven months old respectively, the mother lied about the children’s supervision and the seven month old fell out of bed); People v. Perez, 49 Misc.3d 1211(A) (NYC Crim. Ct. 2015) (Mother found intoxicated and passed out in back of cab with two children aged one and two respectively. Mother did not recall having kids with her); People v. Fielden, 48 Misc.3d 1212(A) (NYC Crim. Ct. 2015) (Mother left infant unattended in hotel room for more than one hour where child could have fallen, choked or suffocated).

In fact, in Fielden, the Court identified the means by which an unattended and “home alone” child could be endangered beyond merely being left alone:

“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.”

Again, while many courts will punt cases to the fact finder at trial, they still maintain an obligation in a criminal cases to ascertain the sufficiency of a charge.  ‘Home alone”, whether for thirty minutes or much longer, should not merely default to legal sufficiency without more. As noted in People v. Comerford, 51 Misc.3d 149(A) (2nd Dept. 2016), asserting that there was a hole in the apartment floor, a bathtub filled with black water and a broken window that allowed wind to enter, was insufficient to establish Endangering the Welfare of a Child because the “information did not allege that defendant acted in a manner by which the five-day-old infant could have been affected by the dangerous conditions in the apartment” when left home alone.

Due the severity of Endangering the Welfare of a Child case and the magnitude of direct and collateral exposure even before a conviction, its is critically important to examine the evidence and allegations with your criminal defense attorney to determine whether there are legal grounds to challenge the sufficiency of the complaint against you or whether your defense is best used at trial. By no means is this very short blog entry an answer to the questions you may have in your particular case, but a starting block to gather more information through what may be a marathon prosecution and defense that winds through the criminal justice system.

To better comprehend the crime of New York Penal Law 260.10(1) or 260.10(2), review the links found embedded in this article and the materials on the websites below and in earlier entries on this blog.

The former Manhattan prosecutors and New York criminal defense attorneys at Saland Law PC represent clients accused of criminal wrongdoing prior to and after arrests throughout the New York City and suburban region.


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