Must the NYPD and Prosecutors Allege the Specific Age of a Child in an Endangering Arrest: Examining NY PL 260.10

There are many elements to an Endangering the Welfare of a Child crime in New York. In fact, the crime of New York Penal Law 260.10 has been addressed, examined and analyzed with regularity on this blog. Sometimes the issue revolves around the intentional conduct of the accused or how long it is acceptable to leave a child alone. Other times the issue involves criminal conduct in the presence of a child even if the child is not fully aware or aware of the criminal actions. This particular blog will examine a less exciting issue (if that term is appropriate) and address from a legal perspective whether the failure of the prosecution to identify the age of a child on the face of an accusatory instrument will doom the charging document and ultimately require its dismissal.

In People v. Fibble, 2015KN041405, NYLJ 1202745708040, at *1 (Crim., KI, Decided December 14, 2015), the defendant was arrested for and accused of some fairly ugly conduct. That is, he was accused of violating the Endangering the Welfare of a Child statute, NY PL 260.10, after he exposed his penis in their presence. This exposure also violated New York Penal Law 245.00 and New York Penal Law 245.01, Public Lewdness and Exposure of a Person respectively. All of these crimes are misdemeanors, but as to what is relevant here, Endangering the Welfare of a Child has a maximum one year sentence upon conviction.

According to the complaint, the accusatory instrument, the defendant was arrested after he was observed at a playground with his pants below his hips and his penis exposed to the public. In close proximity to the defendant, it was alleged there were seven children between three to four feet tall. Based on these sizes and verbal abilities of these people, the conclusion was that the children were aged five to ten.

For the purpose of this blog entry, the pertinent part of PL 240.30(1) is that a person is guilty of Endangering the Welfare of a Child “when he knowingly acts in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old….”. What the defendant contested was the assumption and conclusion that these children were less than seventeen years old. In other words, was the deponent’s observation enough without more direct evidence of age?

In rendering a decision against the defendant and finding that the accusatory instrument was legally sufficient, the court stated:

“The defendant seems to rely on the decisions of some courts which have dismissed certain accusatory instruments as facially insufficient because those instruments merely stated the child’s date of birth (without identifying the source of that information or the basis upon which the informant police officer knew such information) or stated that the child appeared to be under the age of 17 without describing the person in more specific particularity to support the conclusion that the person appeared to be under the age of 17. See People v. Gomez, 30 Misc 3d 643 (Sup Ct, Bronx County 2010); People v. Mercado, 184 Misc2d 40 (Crim Ct, Bronx County 2000); People v. Seward, 173 Misc2d 1020, 1021 (Mt. Vernon County Court, 1997). These cases however do not suggest that where, as here, the officer can describe the children sufficiently so as to clearly identify them as children both based on their location (i.e., in a playground) and based upon their height (i.e., between 3 and 4 feet tall) and verbal abilities, as being between the ages of five and ten, that the court must dismiss the accusatory instrument as facially insufficient.”

It is fair to say that if the courts required an overly strict analysis when ascertaining the age of a child, it would at times give a defendant the ability to get away with criminal conduct. Certainly the prosecution must provide a reasonable and informed basis for their conclusion on an accusatory instrument as to the age of a child and it might be more difficult in the event that the children appeared to be teenagers, but proof beyond a reasonable doubt is not the standard for a challenge of facial sufficiency. Each case may result in a different decision by a judge, but this ruling provides some guidance and insight for you and your criminal lawyer.

For further reading on New York Penal Law 260.10, Endangering the Welfare of a Child, decisions, please search this blog or go to Saland Law PC’s Endangering the Welfare of a Child page linked above.

Saland Law PC is a criminal defense practice located in lower Manhattan. The New York criminal defense attorneys and former Manhattan prosecutors at Saland Law PC represent clients accused of and arrested for criminal conduct throughout the New York City region.



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