SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
CRIMINAL TERM, PART K-21, QUEENS COUNTY
125-01 QUEENS BOULEVARD, KEW GARDENS NEW YORK 11415

PRESENT :                                   HON. MARK H. SPIRES
                                                                JUSTICE

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THE PEOPLE OF THE STATE OF NEW YORK                        IND. NO.: N10619/99

              -AGAINST-                                                                   HEARING: CLAYTON                                                                                                     MOTION TO DISMISS
NORMA BARTON                                                                    CPL '210.40
                                                   Defendant(s)
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                                                                                                      For the motion
                                                                                                Godfrey G. Brown, Esq.

                                                                                                        Opposed
                                                                                                     Brian Stavrides, A.D.A.

A hearing was held before this Court on February 17, 2000 to determine whether this Court should dismiss the above-captioned indictment, pursuant to CPL '210.40, in the furtherance of justice.

In support of this application, the defendant presented four witnesses, Carline Barton, Danielle Barton, Pauline Williams, and the defendant: herself. The People called Detective James MacDonald in support of their position.

Accordingly, after a review of the motion papers, close scrutiny of the evidence adduced at this hearing and a careful analysis of the appropriate statutory authority, this Court makes the following findings of fact and conclusions of law:

Findings of Fact

The defendant was arrested on November 24, 1998 and charged, acting in concert with her husband, Harold Barton, with criminal possession of a controlled substance in the first degree, criminal possession of a weapon in the fourth degree, criminally using drug paraphernalia in the second degree - two counts, and endangering the welfare of a child. The defendant was arraigned the following day, with her husband Harold Barton, and held without bail. Subsequent to this date, a writ of habeas corpus was brought and argued. As a result, the defendant's bail was set at one million dollars. The defendant remained incarcerated until May 28, 1999, when she was released on her own recognizance.

On January 14, 1999, these charges were brought before a Queens County grand jury. After the People presented their case, the defendant testified in her own behalf. The defendant was not permitted to testify as to certain exculpatory evidence concerning her true residence on the date of the arrest; nor was she permitted to present documents in support of this. The defendant and her husband were indicted on the above-mentioned charges.

As a result of motion practice relating to the grand jury presentation, the indictment as against this defendant was dismissed. The People re-presented the same charges to a second Queens County grand jury on May 25, 1999. At this hearing, the defendant was permitted to testify as to the details of her residence, and other exculpatory matters. This second grand jury chose to indict this defendant only on the misdemeanor charge of endangering the welfare of a child; finding "no true bill" as to all felony drug and weapon counts. As a result of these changed circumstances, the defendant was released on her own recognizance. The defendant had been incarcerated in excess of six months by that time.

In a application made pursuant to CPL '210.40, it is the defendant's burden to make an initial showing that there is some compelling factor, consideration or circumstance that would require dismissal. see, People v. Schlessel, 104 AD2d 501 (2nd Dept. 1984). see, CPL '210.40, generally. To meet this burden, the defendant called three witnesses and testified herself.

Carline Barton, the daughter of the defendant, testified on her mother's behalf. Carline Barton stated that she is employed by a life insurance company, and has been so employed for several years. She works an 8:30 a.m. to 4:30 p.m. shift. Her mother, the defendant, takes care of her children while she works. She has two children; Darren (male), now age eight (8), and India (female), now age six (6). (At the time of her mother's arrest, her children were seven (7) and five (5) years old.) Carline Barton lives with her mother (the defendant), her children, and her sister. Her uncle, his wife, and her cousin live in the same house, but on the first floor. Her father, Harold Barton, does not reside with her, and did not on the date of her mother's arrest.

On November 24, 1998, Carline Barton planned to go to work late. She had a doctor's appointment from approximately 10:00 a.m. to 11:00 a.m. on that date, and had made this appointment several weeks earlier. She had planned to have her mother, the defendant, watch her daughter while she was at the doctor's office. She knew that her mother had planned to stop at her former residence, to pick up clothing, early that morning before her appointment, and return home. This former residence was still the home of Carline Barton's father, Harold Barton.

When the hour grew late, she realized she was running late. Without advising her mother, the defendant, she called a cab and took her daughter to her father's house, where she expected her mother to be. When she arrived at the house, the situs of the defendant's arrest, Carline Barton told her mother she would leave her daughter there, and return with a cab after her doctor's appointment, to retrieve her daughter, her mother and her mother's clothing. She then planned to return to their home. Carline Barton reiterated that there was no pre-arranged plan for her mother to babysit for her daughter at her father's home.

Carline Barton dropped her daughter off, and then proceeded to her appointment. When she returned to her father's home to pick up her mother and her child, there was a sign on the door. After reading the sign, she went home and then to the police precinct, where she picked up her daughter. By this time, it was approximately one o'clock in the afternoon. Carline Barton noticed that her daughter did not seem to be upset, or to later experience any nightmares or disturbing behavior.

Carline Barton indicated that the defendant currently babysits for her daughter. The defendant and India, the child, have a warm and caring relationship, replete with hugs and kisses typical of a grandmother-grandchild relationship.

Carline Barton testified that there has been a long history of domestic violence between her mother and father, with her father physically abusing her mother. She has been a witness to injuries caused by her father striking her mother. Many of these incidents required medical attention. One incident necessitated plastic surgery be performed on the defendant's eye. In spite of this violence towards the defendant, this witness emphatically stated that her relationship with her father was positive, and that he loved his grandchildren.

Danielle Chapman was also called as a witness for the defense. She testified that she is also the defendant's daughter. She has seen her mother bruised many times, all at the hand of her father. She testified that the defendant, her mother, had left her father repeatedly, but until a few months before her arrest, had always returned to him. She indicated it was easy to tell when her father was about to become violent and act accordingly. She testified she never saw either parent bring cocaine into the house. She observed the relationship between her father and the grandchildren to be a loving one.

Pauline Williams was also called as a witness for the defense. She testified that the defendant is her younger sister. She indicated that she saw the violent relationship between the defendant and Harold Barton, and persistently urged her sister to leave Harold Barton. She often observed bruises on her sister. She was, however, emphatic about the loving relationship that was obvious to her, between her sister and Harold Barton, and the children and grandchildren.

Ms. Norma Barton, the defendant, testified on her own behalf. She advised this Court that she was the mother of four, having had two children with Harold Barton. She is still married to him. She characterized her relationship with Harold Barton as sometimes loving, but often very violent.

Ms. Barton testified that because of the violence, she left Harold Barton on many occasions, with the children, intending not to return. On one such occasion, she moved to Florida, only to find that Harold Barton had followed her there. She testified that he tricked her into signing over her house to him, but that she no longer resided at her house; the situs of the arrest.

The defendant testified that in the early spring of 1998, she permanently relocated to 217-04 135th Avenue in Laurelton, Queens. Prior to that she resided at 131-65 222nd Street, Queens, where she was arrested. The defendant advised this Court that at the time of her move, she assumed her maiden name. She put her name on utility bills at this new residence. She began a new life which included a boyfriend. When the defendant moved out, she was unable to bring all her clothes and furniture. Up until the day of her arrest, Harold Barton had refused her entry to pick up the remainder of her property. She testified he had changed the locks on the house.

On November 24, 1998, at about 5:00 a.m., the defendant received a call from Harold Barton. He told her that he wanted to see her. The defendant agreed, intending to go to her former residence and quickly retrieve her belongings. She walked to the house, arriving at about 6:00 a.m.. She entered through the back door, which was open. Upon entry, she observed her clothing strewn about the house, some on the floor and some on the balcony. She saw some clothing on the lawn outside. She proceeded to collect her clothing.

While she was picking up her clothing, Harold Barton engaged her in conversation, trying to persuade her to come back to him. They spoke for several hours. The defendant advised her husband that she was not moving back, and continued to pack her clothes. She placed the items in suitcases and garbage bags.

At approximately 8:00 a.m., her daughter arrived at the house with her granddaughter, India. Though unplanned, the defendant agreed to watch her granddaughter at her former residence, while she continued packing. Her daughter was to return for her, the child and the clothing after her daughter's doctor's appointment, and transport them home.

The defendant continued to pack, while the child played with toys in another room. Harold Barton continued to speak with the defendant about moving back in with him, but she adamantly refused. At one point, he removed a gun, attempting to intimidate her with it. The gun was not in the presence of the child, who was still occupied; playing downstairs.

The defendant recalls that sometime between 10:00 a.m. and 11:00 a.m., she heard banging on the front door. She heard people yell "police." The defendant observed Harold Barton throw the gun in the closet, and run out through the back door. The defendant ran to her granddaughter, and brought her upstairs to the bedroom. She was holding her in her arms when the police came in.

The defendant stated she never saw or knew that there was any cocaine in the house. The defendant, herself, has never used cocaine or possessed it.

The defendant added that she is a nurse, by profession, licensed by the State of New York. She is a permanent resident of this country.

The People called as a witness Detective James MacDonald, a fifteen (15) year veteran of the New York City Police Department. He is currently assigned to the Southeast Queens Initiative, and was so on November 24, 1998. On that date, he was working, and was the arresting officer assigned to search warrant 878. On the morning of November 24, 1998, the team assigned to execute the search warrant met outside 131-65 222nd Street. The team approached the house, and proceeded to "ram" the front door. Detective MacDonald was the first person to enter the house. Upon entry, he found himself in a large room with a spiral staircase. The house was in disarray. He observed furniture, clothing and food all over the house. He and the other detectives heard noises from upstairs, so he proceeded to the second floor. There, in an upstairs bedroom, he ultimately found the defendant, holding her grandchild. The detective advised the defendant not to move, and she complied. The defendant was detained, while the other members of the team continued to execute the search.

During the course of this search, fifteen thousand three hundred and ten dollars ($15,310) was recovered from an entertainment center. An electronic scale was recovered from the same location. This unit was approximately fifteen (15) to twenty (20) feet away from the defendant. In a closet in the same room, under a pile of clothing, the detective recovered a 9mm handgun. The weapon was approximately ten (10) feet away from where the defendant was standing. The detective retrieved the weapon and safeguarded it. He also discovered ammunition, and vouchered that, as well.

In a hallway, the detective searched a television on a television stand. Behind the television, on top of the stand, the detective recovered a quantity of crack-cocaine. The television stand stood three feet off the ground. In another closet in a different part of the house, the detective discovered a large ziplock bag, with smaller ziplock bags, allegedly containing cocaine. In another part of the house, the detective recovered another small, electronic scale.

The defendant was placed under arrest. She was allowed to retrieve shoes and socks from an upstairs bedroom. The defendant was taken to the 105th precinct, as was her granddaughter. While obtaining pedigree information, the detective testified that the defendant stated she lived at 131-65 222nd Street.

The detective added that the search warrant was the culmination of an open investigation. Information provided to the detective included a tip that a female known as "freckles" was selling cocaine out of the just searched house. The individual was described as a female, black, in her forties.

The defendant introduced into evidence gas and electric bills, and pay stubs to reflect that she had changed her residence. She also had pictures taken of the inside of the house introduced into evidence to show the disarray.

Conclusions of Law

CPL '210.40 permits a court to dismiss an indictment in furtherance of justice. Specifically, "An indictment ... may be dismissed in the furtherance of justice ... when, even though there may be no basis for dismissal as a matter of law ... such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment ... would constitute or result in injustice. In determining whether such compelling factor, consideration or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:

a) the seriousness and circumstances of the offense;

b) the extent of harm caused by the offense;

c) the evidence of guilt, whether admissible or inadmissible at trial;

d) the history, character and condition of the defendants;

e) any exceptionally serious misconduct of law enforcement personnel in the

investigation, arrest and prosecution of the defendant;

f) the purpose and effect of imposing upon the defendant a sentence authorized

by the offense;

g) the impact of a dismissal upon the confidence of the public in the criminal

justice system;

h) the impact of a dismissal on the safety or welfare of the community;

i) where the court deems it appropriate, the attitude of the complainant or

victim with respect to the motion;

j) any other relevant fact indicating that a judgement of conviction would serve no

other purpose." CPL '210.40.

a) The Seriousness and circumstances of the offenses

The defendant argues that her actions do not constitute the (criminal) offense of endangering the welfare of a child. The defendant is alleged to have arranged to have had her granddaughter dropped off at the home of her estranged husband, the child's grandfather, while the child's mother, the defendant's daughter, visited a doctor. The defendant was at this location to retrieve personal belongings, and was delayed in her return. The defendant was to have watched the child at her own residence, where she had lived for six (6) months prior to the time of the arrest. The People argue that the defendant knowingly brought her granddaughter into a dangerous and violent environment. However, this Court notes that the grand jury did not find, when considering the defendant's explanation, that she knew that drugs and a gun were present in the house. In addition, the testimony adduced at this hearing indicates that it was not the defendant's intention to bring the child into this environment but a decision made by her daughter, the child's mother. Appellate courts frown on dismissal for this reason only in serious cases where there is actual harm, i.e., murder or kidnapping. see, People v. Serrano, 163 AD2d 497 (2nd Dept. 1990). see, also, People v. Lance, P., 163 AD2d 333 (2nd Dept. 1990). see, also, People v. Finley, 104 AD2d 450 (2nd Dept. 1984).

b) the extent of harm caused by the offense

No physical injury occurred as a result of the execution of the search warrant of November 24, 1998. The testimony at this hearing reflected that the child was playing in a separate room while her grandmother packed her clothes. There is no evidence that the child was exposed to the gun or any cocaine. In fact, the defendant tried to protect the child from the violent disruption caused by police breaking down the door and swarming through the house. In addition, there is no evidence that the child was removed from the parental home by any government agency. The defendant still babysits at this location.

c) the evidence of guilt, whether admissible
or inadmissible at trial

The evidence of the defendant's guilt is that she permitted her granddaughter to remain in an environment where her husband was present, while she was packing her clothing.

In examining the remaining charge against this defendant and reflecting upon the testimony of the prosecution and defense witnesses it is not clear to the Court that the People will be able to prove this charge beyond a reasonable doubt.

'260.10 of the Penal Law of this state provides that "A person is guilty of endangering the welfare of a child when: (1) 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..."

The People must prove at a trial that the defendant's conduct was "likely to be injurious." The degree of culpability required by statute .... is actual knowledge. People v. Simmons, 221 AD2d 994 (4th Dept. 1995). The mere presence of contraband (i.e., alcohol in the presence of minors, see, People v. Weyrick, 55 Misc2d 1063 (Ithaca Cty. 1968), or marijuana in the presence of children People v. Grajales, 179 Misc2d 793 (Bronx County 1999)) is insufficient to sustain a charge of endangering the welfare of a child.

'260.10 defines crimes which generally assure that the physical, emotional and moral well-being of children will be protected. However, the law mandates that the person engaging in such conduct must be aware that it will be detrimental to the child's welfare. People v. Suarez, 133 Misc2d 762 (Bronx Cty. Sup. Ct. 1986). '260.10 is traditionally applied where there are sexual or moral offenses. see, e.g., People v. Rice, 17 NY2d 881 (1966). see, also, People v. Egan, 103 AD2d 940 (3d Dept. 1984). The statute has also been applied where the adult directly engages in conduct harmful to the children. see, e.g., People v. Bergerson, 17 NY2d 398 (1966).

In cases involving potential neglect or harm to a child, New York courts have consistently held that this charge should only be brought "... where there is a direct nexus between the adult's conduct and the potential harm to the child's welfare - that is: where the adult's misconduct is focused directly upon the child or his welfare. The statute cannot be used to protect children from general harms resulting from behavior directed towards others, no matter how detrimental the ultimate effect on children of their witnessing violence, dishonesty or other societal ills might be..." Suarez, supra at 764.

The testimony repeatedly adduced at this hearing indicated that the defendant did not bring the child to the potentially dangerous environment. Upon her unexpected arrival, the defendant planned to remove the child in a matter of hours. It is not clear to this Court how the People intended to meet their burden of proof at trial. This Court concludes that the evidence of the defendant's guilt was weak.

d) the history and character of the defendant

The defendant, a forty five (45) year old grandmother and mother of four (4), was employed as a licensed professional nurse until the time of her arrest. The defendant has no prior criminal history. She suffered a history of violence with the co-defendant, and terminated that relationship by eventually relocating from her own home, six (6) months before her arrest. Her employment and residential records are supported by documents inspected by this Court, admitted in evidence.

The People's attempt to label her as "freckles," the drug seller is unsupported by any evidence, other than a statement allegedly made to a police officer from a confidential informant. It is significant to note that the defendant's older sister Pauline Williams, who resembles the defendant, also has freckles on her face.

e) any exceptionally serious misconduct by
law enforcement personnel in the arrest or
prosecution of the defendant

The defendant alleges, in her motion papers that generated this hearing, that there was serious misconduct by the prosecutors who conducted the first grand jury hearing; resulting in the defendant's first indictment. Court records reflect that this indictment was dismissed, with leave to re-present, for failure of the People to allow the defendant to present exculpatory evidence. This evidence consisted of various utility bills, as well as other documents, supporting the claim that the defendant had permanently abandoned her home on 222nd Street.

A second grand jury presentation was conducted, with permission of a justice of coordinate jurisdiction, in which defendant was allowed to present this exculpatory material. As a result, the defendant was only indicted on the misdemeanor; endangering the welfare of a child.

The People maintain they have always behaved in a professional manner. The People submit that as an example of their professionalism, they consented to the release of the defendant on her own recognizance when the second grand jury returned a finding of only a misdemeanor; having voted against the felony drug and weapon counts. This took place after the defendant testified on her own behalf. At the time of this consent, the defendant had already been incarcerated for an excess of six (6) months. However, this Court notes from official Court records that the Office of the District Attorney waited until the defendant's arraignment in Supreme Court to "consent" to the defendant's release.

f) the purpose and effect of imposing sentence
on the defendant

The defendant currently stands charged with PL '260.10, an A misdemeanor. The maximum penalty for this offense is one (1) year incarceration and/or one thousand dollar ($1000) fine. (Realistically speaking, the defendant is only required to serve a total of eight (8) months, if the maximum penalty is imposed.)

The People concede they do not seek additional jail time for this defendant. They only request that this forty five (45) year old grandmother, with no prior convictions, plead guilty to the charge and take responsibility for her actions.

At this point, this Court finds it difficult to see any merit in an additional jail sentence or a fine for the defendant.

g) impact of dismissal upon the public confidence
in the Criminal Justice System

The defendant contends that there will be no negative impact if this charge is dismissed on the public confidence in the justice system. The People counter that if the case was dismissed, there would be public outrage. This Court does not predict public uproar if this case is dismissed.

h) the impact of the dismissal on the safety
and welfare of the community

The defendant argues that a dismissal would not adversely impact the safety and welfare of the community. There has been no proof that there was any harm to the mind, body or spirit of the child. The People argue that the community suffers when a negligent guardian is not punished. The People argue that testimony of the child, at a trial, may show such harm, and that the community would agree. While the Court recognizes the necessity of infants appearing as witnesses, it is not certain that a child of this age would be deemed a competent witness. This Court cannot perceive a widespread impact on the safety and welfare of the community if this charge is dismissed.

i) the attitude of the victim or complainant

It is quite clear from the testimony at this hearing, that the absence of the defendant from this child's life due to her incarceration has had a greater impact than the potential dismissal of this charge.

j) any other relevant facts

This Court had an opportunity to observe the defendant's demeanor, and through witnesses and documents, acquire extensive information about her background. The defendant is a mother, grandmother and nurse. She is forty five (45) years of age. The defendant's only flaw seems to be permitting herself to remain in a violent environment. Her nurse's license would most probably be suspended, if convicted. She has had no prior arrests. The defendant is a permanent resident of this country. A conviction of this nature would most likely have a negative impact on her immigration status. The People ask this Court to ignore the possible ramifications of the defendant's deportation. This the Court will not do.

In summary, the Court has considered the parties' motion papers, observed witnesses called by the People and defendant and has reviewed the record of this hearing extensively. This Court has also conducted a comprehensive review of the law on dismissals pursuant to CPL '210.40 and the burden of proof on the People if they choose to try the defendant pursuant to a violation of CPL '260.10.

After a consideration of all the facts and circumstances of this case, this Court finds that justice would best be served, both to the defendant, and the citizens of this county, if this charge was dismissed. This Court has serious doubts about the potential of a conviction, should such a charge be permitted to stand.

Accordingly, this indictment, People v. Norma Barton N10619/99 is hereby dismissed pursuant to CPL '210.40.

This is the decision and order of this Court.

Kew Gardens, New York

Dated

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MARK H. SPIRES, J.S.C.