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Criminal Procedure Law [“CPL”] 100.15..cont

A criminal defendant may commit the offense of Endangering the Welfare of a Child through a single act or through multiple acts over a period of time (see People v Keindl, 68 NY2d 410, 421 [1986]). Indeed, a defendant may be guilty of the crime by performing “a series of acts, none of which may be enough by itself to constitute the offense but each of which when combined make out the crime” (id.; see also Simmons, 92 NY2d at 831; Cowley v People, 83 NY 464, 472 [1881]). Thus, simultaneously coexisting events and circumstances, when taken as a whole, may constitute the crime even if each circumstance, when taken in isolation, might not (see Hitchcock, 98 NY2d at 592; see also People v Hogle, 18 Misc 3d 715, 718-719 [Crim Ct, NY County 2007]).

In reviewing the charge for legal sufficiency, “each case is fact specific” (Johnson, 95 NY2d at 373) and the allegations must be analyzed in the context of “the whole incident” (Hogle, 18 Misc 3d at 871, citing People v Tichenor, 89 NY2d 769, 776 [1997]). The court must look to the “confluence of events and circumstances” (Hitchcock, 98 NY2d at 591), including both the defendant’s acts and his omissions (see Cowley, 83 NY at 472). Possessing loaded and unloaded firearms and ammunition which were fully accessible to children (Hitchcock, 98 NY2d at 591); engaging in domestic violence in front of children against their mother (Johnson, 95 NY2d at 373); repeatedly directing vulgar remarks at a toddler (Simmons, 92 NY2d at 831); and providing beer to teenaged boys (Bergerson, 17 NY2d at 403) are examples of conduct which courts have held likely to be injurious to the physical, mental or moral welfare of children.

Where the criminal charge is predicated on the theory that a parent has engaged in excessive corporal punishment 1, courts have sustained convictions where the child has
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suffered physical injury (see People v Nelson, 2 Misc 3d 133[A] [App Term 1st Dept 2004] [“evidence that defendant repeatedly struck his 13-year-old daughter with a belt, causing injuries, supported the conclusion that defendant knowingly engaged in conduct that was likely to be injurious to his daughter”]; see also People v Fields, 134 AD2d 365 [2d Dept 1987] [conviction upheld where defendant beat his three-year-old son with a belt for approximately 30 minutes, resulting in swelling, bruises and soreness]; cf. People v Phelps, 268 AD2d 692, 692-693 [3rd Dept 2000] [where the defendant inflicted physical injuries upon his daughter by striking her with his hand and/or a belt as a form of corporal punishment, Endangering the Welfare of a Child was an appropriate charge]). Courts have recognized that under Penal Law ยง 35.10(1) a parent may use physical force against a child when he reasonably believes it to be necessary to promote discipline or the child’s welfare (see Fields, 134 AD2dat 365; see People v Prue, 219 AD2d 873 [4th Dept 1995]; People v Thompson, 9 Misc 3d 1123[A] [City Ct, Westchester County 2005]). The force used must be reasonable, however, and the statute does not permit parents to “cruelly beat their children” (Prue, 219 AD2d at 873; Thompson, 9 Misc 3d at 1123[A]). Moreover, where a parent knowingly acts in a manner injurious to a child’s welfare by engaging in excessive corporal punishment causing physical injury to achild, he cannot justify those acts because he believed them necessary to promote the child’s welfare (see Fields, 134 AD2d at 365). Indeed, the infliction of physical injury against a child “is incompatible with the promotion of his physical welfare” (id.).

In contrast, where a parent or other caretaker engages in corporal punishment which does not cause physical injury to a child, courts have found insufficient proof of Endangering the Welfare of a Child (see Malte v State of New York, 125 AD2d 958 [4th Dept 1986] [evidence that fourth grade teacher picked up ten-year-old girl, placed her on the floor, straddled her legs and hit her backside approximately 12 times in response to her misbehavior “was an insufficient factual predicate” to establish the charge]; see also Thompson, 9 Misc 3d at 1123[A] [defendant who disciplined her children for bad behavior by hitting them with a belt without causing physical injury was found not guilty of the offense]).

Here, the defendant is alleged merely to have grabbed his three-year-old son by the arm and attempted to pull him into the bathroom. Since the complaint does not detail further the surrounding circumstances, it is impossible to determine the reason for the defendant’s actions. Regardless, the complaint neglects to describe how, or with what force, the defendant acted. Grabbing a child by the arm and attempting to pull him into a room, while perhaps not a preferred parenting method, is not in and of itself conduct likely to be injurious to the child’s physical, mental or moral welfare. Nor is it an act that a defendant would be aware is likely to be injurious to a child’s welfare. In the ordinary course of child rearing, parents on occasion will grab and pull small children by the arm in an effort to control their behavior. While some might argue that grabbing and pulling a child’s arm is a less than desirable means of discipline, such commonplace conduct, by itself, hardly warrants condemnation as a criminal act.
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Moreover, contrary to the People’s contention, the complaint does not establish that the child was physically injured as a result of the defendant’s actions. The allegation that the child suffered substantial pain to his arm is wholly conclusory and unsupported by any objective indication of injury (see Matter of Phillip A, 49 NY2d 198 [1980] [while the question of substantial pain is generally one for the trier of fact, who may consider, among other factors, the subjective reaction of the alleged victim, “there is an objective level below which the question [of substantial pain] is one of law.” Accordingly, evidence that the complainant was hit, experienced pain and exhibited a red mark was insufficient to establish substantial pain beyond a reasonable doubt]). The complaint fails to state that the child sustained so much as a bruise, redness or swelling. It does not even allege that the child was crying. The fact that the child was removed to a local Queens hospital does not suffice to prove that he was injured; this fact simply supports the inference that the child was examined for possible injury 2. An examination for possible injury does not permit the inference that an injury occurred. Furthermore, the allegation that the child suffered substantial pain is rank hearsay; the informant mother, Doreen Johnson, cannot attest, as a matter of first party knowledge, to what her child felt 3. Thus, a supporting deposition from the child, in the form of a stenographically recorded voir dire establishing his competence to testify and verifying that he suffered substantial pain as a result of the defendant’s actions is necessary to corroborate this allegation (see People v Claxton, 160 Misc 2d 550, 553-554 [Crim Ct, Bronx County 1994]; see also People v Soler, 144 Misc 2d 524, 527-529 [Crim Ct, NY County 1989]). No such voir dire has ever been filed.

In sum, the non-hearsay factual allegations of the complaint do not make out a prima facie case for Endangering the Welfare of a Child. The defendant’s motion to dismiss for facial insufficiency therefore is granted. The defendant’s remaining motions are moot.

This constitutes the decision and order of the Court.
Dated: June 24, 2010
Queens, New York
Elisa S. Koenderman, JCC

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Notes:
1. Although the complaint identifies the informant Doreen Johnson as Zyhare Johnson’s mother, it does not identify the defendant as the child’s father. Given that the defendant bears the same last name as both the mother and child, and that the incident is alleged to have occurred at night in the bathroom of what may reasonably be inferred to be a private residence, it further is reasonable to infer that the defendant is the child’s father.
2. The court notes that such an examination is often protocol for the Administration for Children’s Services in cases of suspected child abuse or neglect by a parent or guardian. Indeed, in their response, the People concede that the child was brought to the hospital “to be checked for injuries” (People’s Affirmation in Opposition, p. 5).
3. A supporting deposition from Doreen Johnson was filed with the complaint at arraignment.

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