The complaint alleges that Doreen Johnson informed Police Officer John Vitale that on or about December 12, 2009 between 10:00 p.m. and 10:55 p.m. inside of 146-04 Sutter Avenue, she observed the defendant Phillip Johnson grab her three-year-old son Zyhare Johnson by the arm and “[attempt] to pull him into the bathroom, causing substantial pain to [Zyhare Johnson’s] arm.” The complaint further alleges that thereafter Zyhare Johnson “was removed to a local Queens hospital for said injuries.”
The criminal defendant claims that these factual allegations are insufficient to demonstrate that he knowingly acted in a manner likely to be injurious to the child’s physical, mental or moral welfare. Moreover, the defendant asserts that the allegation that the child suffered “substantial pain” is uncorroborated hearsay and does not indicate that the child was injured as a result of his actions.
The People counter that the non-hearsay allegations of the complaint establish that the defendant “grab[bed] a three-year-old child by the arm, and drag[ed] him into a bathroom” and that “the child was then removed to a local hospital to be checked for injuries.” Further, the People contend that although they are not required to allege that the defendant caused physical injury to the child, the factual allegations establish that Zyhare Johnson “sustained physical injury’ as that term is defined in the Penal Law… in that the actions of the criminal defendant caused [Zyhare Johnson] substantial pain.” Accordingly, the People claim that “collectively [the factual allegations of the complaint] disclose facts and circumstances from which a reasonable person can conclude that force was used by the defendant against a three-year-old child, and whenever force is used against a young child, injury is likely to occur.”
Under Penal Law 260.10(1), “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 or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health.”
The aim of the statute is to protect “the physical health, morals and well-being of children….” (People v Bergerson, 17 NY2d 398, 401 ). The statute is broad in scope and is not limited to protection against the perpetration of sex crime offenses upon children but in fact extends “to other dangers as well” (id.; see also People v Cruz, 152 Misc 2d 436, 438-439 ).
A defendant need not commit an affirmative act directed at a child (see People v Hitchcock, 98 NY2d 586, 591 ; People v Johnson, 95 NY2d 368, 371-372 ) nor cause actual harm to a child (see Johnson, 95 NY2d at 371; see also People v Duenas, 190 Misc 2d 801 [App Term, 2d Dept 2002]) to be guilty of Endangering the Welfare of a Child. To incur criminal liability, a defendant must engage in conduct “which [he] knows will present a likelihood’ of harm to a child” (id. at 372). The defendant “must simply be aware that his conduct is likely to result in harm to a child, whether directed at the child or not” (id. at 371-372, citing PL 15.05; see also People v Simmons, 92 NY2d 829, 830 ). Nevertheless, the harm as a result of the defendant’s actions must be likely and not merely possible (see id. at 371; see also Duenas, 190 Misc 2d at 803).
To Be Cont…