Defendant, charged with five counts of Endangering the Welfare of a Child(Counts One through Five), seven counts of Unlawful Imprisonment in the Second Degree (Counts Six through Twelve)^[FN1], two counts of Attempted Assault in the Third Degree (Counts Thirteen and Fourteen), seven counts of Attempted Unlawful Imprisonment in the Second Degree (Counts Fifteen through Twenty-One)^[FN2], and Seven Counts of Harassment in the Second Degree (Counts Twenty-Two through Twenty-Eight)^[FN3], moves to dismiss the certain counts of Information as facially insufficient.

Specifically, defendant seeks dismissal of Counts One through Five (Endangering the Welfare of a Child), Counts Eight Through Twelve (Unlawful Imprisonment in the Second Degree as to her children only), Counts Seventeen through Twenty-One (Attempted Unlawful Imprisonment in the Second Degree as to her children only), Counts Thirteen and Fourteen (Attempted Assault in the Third Degree), and Counts Twenty-Four through Twenty-Eight (Harassment in the Second Degree as to her children only).

Defendant's motion, in part, raises important questions about the difficult line beyond which [*2]legitimate parental decisions become criminal, a line that was explored by the Court of Appeals in People v. Leonard, 19 NY3d 323, 326, 947 NYS2d 821, 823, 970 NE2d 856, 858 (2012). In this, the first lower court decision to apply this aspect of Leonard, the Court concludes, in Sections II(C) and II(D) below, that the behavior identified in the Information is on the criminal side of that line. Accordingly, the Court DENIES defendant's motion to dismiss Counts One through Five, Eight through Twelve, and Seventeen through Twenty-One. However, defendant also challenges certain other counts that do not implicate Leonard; as discussed in Sections II(E) and II(F) below those counts are indeed facially insufficient. The Court accordingly and GRANTS the motion as to Counts Thirteen, Fourteen, and Twenty-Four through Twenty-Eight.

Defendant also moves for discovery. As to that motion, the Court directs the People to file a Voluntary Disclosure Form no later than fourteen days before trial.

I. FACTUAL BACKGROUND

A. The Allegations

According to the Superseding Information, on October 3, 2013, defendant was present, along with two other adults - Sandra Mendez and Hilda Gonzalez - and defendant's five children, inside a room within 78 Catherine Street, in New York County, a women's shelter. Defendant locked the door and placed a chair under the doorknob so as to prevent the door from opening. She also instructed some of her children to stand in front of the door and block it, and they complied.

When Mendez and Gonzalez tried to leave the room, defendant pushed them both away, thereby keeping them and the five children locked inside the room, against their will, for some 80 minutes.

All five of the children were under the age of seventeen at that time; the eldest was born in 2000 and the youngest in 2009.

B. Legal Proceedings

Defendant was arraigned on October 4, 2013, on a Misdemeanor Complaint charging her with five counts of Endangering the Welfare of a Child (Penal Law § 260.10(1)) (Counts One through Five), seven counts of Unlawful Imprisonment in the Second Degree (Penal Law § 135.05) (Counts Six through Twelve), two counts of Attempted Assault in the Third Degree (Penal Law §§ 110/120.00(1)) (Counts Thirteen and Fourteen), seven counts of Attempted Unlawful Imprisonment in the Second Degree (Penal Law §§ 110/135.05) (Counts Fifteen through Twenty-One), and Seven Counts of Harassment in the Second Degree (Penal Law § 240.26(1)) (Counts Twenty-Two through Twenty-Eight). The Court set bail and adjourned the case to October 9, 2013, for conversion.

On October 9, 2013, the People filed a first-party SSI charging defendant with the same twenty-eight counts. The Court ordered a competency examination pursuant to CPL § 730.30, remanded the defendant, and adjourned the case for the result of that examination. On November 7, 2013, defendant was found fit, and the case was adjourned to December 11, 2013, while the defendant received additional psychiatric treatment.

On December 11, 2013, the Court re-set bail, which defendant posted, and set a motion schedule. Defendant filed an omnibus motion, which included the instant motion to dismiss, on January 9, 2014. The People filed their response on February 20, 2014, and the matter has been sub judice since then.

[*3]II. DISCUSSION

Defendant held two adults and her five children captive in a room for some 80 minutes, and pushed the adults away from the door when they tried to open in. She moves to dismiss twenty-two of the twenty-eight counts against her as facially insufficient. The Court agrees that some of those counts are indeed facially insufficient; specifically Counts Thirteen and Fourteen, which charge the defendant with Attempted Assault in the Third degree as to the two adults, and Counts Twenty-Four through Twenty-Eight, which charge the defendant with Harassment in the Second Degree with respect to the children. Those counts are accordingly dismissed.

The remainder of the counts that defendant challenges are facially sufficient; the motion is denied as to those.

A. The Information

Because this motion requires a detailed examination of the content of the Information, the complete text of its factual recitation, as sworn out by Sandra Mendez, is set out below:

I observed the defendant lock the door to a room in the women's shelter at [78 Catherine Street], while I, Ms. Hilda Gonzalez, the defendant and the defendant's five children were inside of that room. I further observed the defendant place a chair under the door's knob in such a way that the chair prevented the door from opening. I also observed the defendant command some of the children to stand in front of the door, also in such a way to prevent the door from opening, which I then observed the children do.

When I and Ms. Gonzalez both tried to leave the room, I observed the defendant grab us both and push us both away from the door. I further observed the defendant thereby keep us, including the five children, locked in the room for approximately 80 minutes against our will.

As a New York City Department of Education case worker at the shelter, I have personally known the defendant and the above children for more than two years and know that the oldest of the five children was born in the year 2000 and that the youngest of the five children was born in the year 2009. Moreover, I know that the above children are all less than seventeen years old because the defendant, herself, told me their ages and birthdates and that she is their mother.

To be facially sufficient, an Information must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729, 506 NYS2d 319, 497 NE2d 686 (1986); People v Alejandro, 70 NY2d 133, 517 NYS2d 927, 511 NE2d 71 (1988); People v McDermott, 69 NY2d 889, 515 NYS2d 225, 507 NE2d 1071 (1987); People v Case, 42 NY2d 98, 396 NYS2d 841, 365 NE2d 872 (1977). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such [*4]person committed it." CPL §70.10 (2).

This standard does not require that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652, 657, 504 NE2d 1079, 1084 (1986). Rather, it need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360, 717 NYS2d 88, 91, 740 NE2d 233, 236 (2000). A court reviewing for facial insufficiency must assume that the factual allegations contained in the Information are true and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 NYS2d 715, 721-22, 967 NE2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 NYS2d at 91, 740 NE2d at 236. Under these standards, the accusatory instrument here is facially insufficient as to Counts Thirteen and Fourteen and as to Counts Twenty-Four through Twenty-Eight. The remainder of the counts that defendant challenges, however, are facially sufficient.

C. The Unlawful Imprisonment and Attempted Unlawful Imprisonment Counts are Facially Sufficient.

Defendant argues that the five counts charging her with Unlawful Imprisonment in the Second Degree(Counts Eight through Twelve) and Attempted Unlawful Imprisonment in the Second Degree (Counts Seventeen through Twenty-One) with respect to her children are facially insufficient, arguing that her efforts to prevent the children from leaving the room were within the scope of her lawful authority as a parent. To the defendant, upholding these charges here would mean that "anytime a custodial parent prevented a very young child from leaving their residence, the parent would be guilty of" unlawful imprisonment. The Court disagrees, as the facts alleged here are too extreme to be seen as describing legitimate parental decisions.

Penal Law § 135.05 provides that a person is guilty of Unlawful Imprisonment in the Second Degree when he "restrains another person." An attempt to commit this offense occurs when "with intent to commit [this] crime, [the defendant] engages in conduct which tends to effect [its] commission ... ." Penal Law § 110.00. Conduct that "tends to effect" the commission of a crime means conduct that comes "dangerously close," or very near to the completion of, the intended crime. People v. Mahoubian, 74 NY2d 174, 191, 544 NYS2d 769, 778, 543 NE2d 34, 43 (1989). This case turns on the definition of "restrain" — according to Penal Law § 135.00 "restrain" means

to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined "without consent" when such is accomplished by ... physical force, intimidation or deception.

The Information, on its face, pleads facts that meet this definition. It alleges that defendant locked and barricaded the door to the room containing her, the five children and two adults, "command[ed]"some of the children to block the door, and pushed away the two adults when they tried to open it. It also alleges that defendant's actions kept the children captive in the room, "against their will," for some 80 minutes. These actions sufficiently make out the "restraint" element so as [*5]to render the Information facially sufficient as to both the completed offense and the attempt.

In addition, the Court concludes that, despite defendant's argument to the contrary, her conduct, as described in the Information, is outside the bounds of a custodial parent's lawful right to restrict her child's movement. In People v. Leonard, 19 NY3d 323, 326, 947 NYS2d 821, 823, 970 NE2d 856, 858 (2012), the Court of Appeals held that a custodial parent "restrained" his six-week-old child when he carried the child from outside the child's home to the inside, so as to evade the police, and threatened to kill her if the police tried to take her away. While the court noted that, as a custodial parent, defendant had a "general" right to "control his child's movements," it nevertheless held that "there comes a point where even a custodial parent's control over a child's movements is unlawful, and indeed obviously so." Id. at 328. Responding to defendant's reliance on Leonard, the People correctly note that Leonard establishes that there is no "categorical immunity of a parent" against a criminal charge involving unlawful restraint.

Leonard was the first New York case to identify this particular behavioral spectrum, although the court there noted that courts of last resort in three other states had held similarly. Id. In connection with this motion, the Court has been unable to find a single post-Leonard New York case applying this aspect of its holding. Nevertheless, the facts here suggest that, at least at the pleading stage, the conduct ascribed to the defendant is comfortably on the "obviously" unlawful end of the spectrum, even though she was the custodial parent of the children involved, and even though the Court recognizes that the facts of Leonard and the out-of-state cases it relied on are considerably more extreme than those present here.^[FN4]

For the following reasons, the Court concludes that the necessary element of unlawfulness to the restraint element is sufficiently pled here. While Leonard does not specifically prescribe any particular means of analysis, the spectrum of behavior it identifies suggests a number of factors a court should consider in determining whether an instance of parental restraint is lawful.

The first is whether the restriction on the child's movement appears to be motivated by a legitimate parental need to discipline or protect the child. Sending a child to her room or restricting her movements in some other manner, such as grounding her as a disciplinary measure, would not ordinarily constitute an unlawful "restraint." Similar restrictions on a child's movement reasonably calculated to protect her from harm - ordering her to remain indoors during a blizzard or thunderstorm, for example - would likewise almost always fall on the lawful end of the Leonard spectrum. But here, the actions ascribed to the defendant in the Information appear to be bizarre and [*6]irrational, and unconnected to any legitimate parental goal. Defendant, after all, is accused of taking extreme steps to lock not just her children, but herself and two unrelated adults in a room for some 80 minutes, for no apparent reason. The restraint was obviously not disciplinary, as it included the defendant herself and two unrelated strangers. And there is no basis for finding that the defendant acted to protect the children from any sort of threat that might have lurked on the other side of the locked door.

If this first factor is not present, a second factor in assessing the lawfulness of the restraint would be whether, in the alternative, the parental restraint was reasonably necessary to protect a third party, or a third party's property, from the child. A parent who restricts the movement of an angry or unruly child, under the reasonable belief that such is necessary to prevent the child from harming another person or damaging property, would also likely be acting on the lawful end of the Leonard spectrum. Similarly, a parent who restricts the movement of a sick child so that the child will not infect others is also likely behaving lawfully. But again, the Court can here discern no such goal in defendant's behavior. There is nothing in the complaint to suggest that the children were misbehaving at all - indeed, the Information suggests the contrary, since when defendant ordered some of them to barricade the door they complied.

Finally, even assuming that a legitimate parental goal such as one of the two discussed above can be identified, a court should consider whether the place, means and duration of the restraint were reasonably related to that goal, and not so extreme or dangerous as to render the restraint unlawful. In doing so, a court should give the parent the benefit of every doubt, and should recognize the legitimacy of a wide range of parenting styles. Here, the Court notes that defendant in her motion to dismiss asserts no legitimate parental goal in support of her behavior; even if there were one, however, it would be hard to fathom how the irrational behavior described in the Information - defendant barricaded the door, demanded that her children assist in keeping it shut and locked, used physical force to keep the other adults present from opening it, and held them captive for 80 minutes - could be reasonably related to any such goal.

Accordingly, the Court concludes that the Information is facially sufficient as to the "restraint" element of Unlawful Imprisonment in the Second Degree and Attempted Unlawful Imprisonment in the Second Degree.That said, if the finder of fact at trial concludes that the People have failed to prove actions that go beyond a parent's "general right" to "control [her] child's movements," Leonard, 19 NY3d at 328, it will acquit the defendant. But there are reasonable inferences to the contrary that can be drawn from the facts alleged in the Information such that the pleading is facially sufficient. The motion to dismiss Counts Eight through Twelve and Seventeen through Twenty-One is accordingly denied.

D. The Five Counts of Endangering the Welfare of a Child Are Facially Sufficient

The Court also concludes that Counts One through Five, which charge the defendant with Endangering the Welfare of a Child with respect to this same episode, are facially sufficient. Penal Law § 260.20(1) provides that a person commits this offense when "she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." Pointing out that this section is satisfied when harm to the child is "likely" — but not when harm is merely possible — as a result of the defendant's actions, defendant argues that these counts are facially insufficient. [*7]

While defendant states the law accurately, People v. Johnson, 95 NY2d 368, 371, 718 NYS2d 1, 740 N.E.2d 1075 (2000); People v. Duenas, 190 Misc 2d 801, 742 NYS2d 468 (App Term 2d Dept 2002), she applies it incorrectly. Here, there are reasonable inferences, sufficient at least at the pleading stage, that defendant's behavior was likely to be injurious to her children's mental health. Defendant's claim to the contrary greatly underestimates the traumatic effect that witnessing a parent behave in an erratic and violent manner can have on the emotional well-being of a child.

Determining the sufficiency of a charge of Endangering the Welfare of a child is a highly fact-specific inquiry. Johnson, 95 NY2d at 373, 718 NYS2d at 1, 740 NE2d at 1075, and the defendant's actions must be considered in the context of the entire episode. People v. Hogle, 18 Misc 3d 715, 718-19, 848 NYS2d 868, 871(Crim Ct NY County 2007). Some of the circumstances that have been found to make out this offense include violence towards another in the presence of the child, Johnson, 95 NY2d at 373, 718 NYS2d at 1, 740 NE2d at 1075, placing the child in a physically dangerous environment, People v. Hitchcock, 98 NY2d 586, 750 NYS2d 580, 780 NE2d 181(2002), exposing a young child repeatedly to vulgar or abusive language, People v. Simmons, 92 NY2d 829, 677 NYS2d 58, 699 N.E.2d 417 (1998), and prolonged periods of abandonment. People v. Cenat, 176 Misc 2d 39, 671 NYS2d 578 (Crim Ct Kings County 1997). Merely "irresponsible" behavior, however, is not enough. People v. Cruz, 10 Misc 3d 838, 840, 809 NYS2d 850, 852 (Crim Ct NY County 2005).

Accordingly, as with the "restraint" element discussed above in the context of unlawful imprisonment, the cases exploring Endangering the Welfare of a Child identify a range of behavior, from the merely "irresponsible," which is not criminal, to the obviously dangerous, which is. Here, the Court concludes that the facts alleged in the Information are close enough to the "obviously dangerous" end of the spectrum, and far enough from the "merely irresponsible"end, to make out a prima facie case of endangerment. Defendant's behavior was violent, erratic, involved some of the children directly, endured for a prolonged period and furthered no obvious or legitimate parental goal. And that, simply put, is enough to sustain the child endangerment charges. Accordingly, the motion to dismiss Counts One through Five as facially insufficient is denied.

E. Counts Thirteen and Fourteen, which Charge the Defendant with Attempted Assault in the Third Degree, are Facially Insufficient.

Attempted Assault in the Third Degree, in violation of Penal Law §§ 110/120.00(1), requires that the defendant act with the "intent to cause physical injury to another person." " Physical injury' means impairment of physical condition or substantial pain." Penal Law § 10.00(9). Here, the Information alleges that the defendant "grabb[ed]" the two adult complainants and "push[ed]" them "away from the door" as they tried to leave the room. The Court agrees with the defendant that these facts do not make out a prima facie case of Attempted Assault in the Third Degree.

A person attempts to commit a crime when "with intent to commit [that] crime, he engages in conduct which tends to effect the commission of such crime." Penal Law § 110.00. Conduct that "tends to effect" the commission of a crime means conduct that comes "dangerously close," or very near to the completion of, the intended crime. Mahoubian, 74 NY2d at 191, 544 NYS2d at 778, 543 NE2d at 43. That standard is simply not met here.

First, the physical acts alleged, a "grab" and a "push," do not themselves describe a degree of force sufficient to make out the intent to cause physical injury. "In assault cases, the necessary [*8]intent is sufficiently pled if an inference of intent to injure can rationally be drawn' from the acts the defendant is alleged to have committed." People v. Kersch, 41 Misc 3d 1217(A) at *4, 980 NYS2d 277 (Crim Ct NY County 2013). That inference simply cannot be drawn here. In fact, this case is very much like People v. Chavez, 41 Misc 3d 526, 972 NYS2d 858 (Crim Ct Bronx County 2013), in which the defendant was alleged to have pushed a police officer away from him. The court found the information to be facially insufficient because the act of pushing the officer away did not "demonstrate an intent to injure." Id. Here, similarly, defendant's conduct - grabbing and pushing two women away from a door that defendant for some reason she wished to keep closed - does not demonstrate the requisite intent. This case is accordingly distinguishable from Kersch, 41 Misc 3d at1217(A), 908 NYS2d at 277, where this Court found sufficient an attempted assault Information that alleged that the defendant pushed the complainant against the mirrored wall of an elevator with such force that it shattered.

For similar reasons, the facts pled in the Information do not sufficiently allege that defendant's actions came "dangerously close" to the commission of a completed assault. See In re Wanji W., 277 AD2d 243, 244 , 716 NYS2d 676(2d Dept 2000) (defendant slapped complainant in back of head and followed him into a laundromat; this did not come "dangerously near" a completed assault). As described in the Information, the physical contact with the victims was neither forceful nor painful, and was followed by some 80 minutes in which the defendant did not have any physical contact with the complainants at all.

To be sure, there is no requirement that an assault victim swear to what was in the defendant's mind in order to make out a sufficient pleading as to intent; that would be an impossible burden for the People to bear. See, e.g., People v. Dryden, 28 Misc 3d 5, 8, 903 NYS2d 657, 658-59 (App Term 2d Dept 2010); Kersch, 41 Misc 3d at 1217(A), 980 NYS2d at 277. But nevertheless, the acts described in the pleading must support a reasonable inference that the defendant intended to cause injury. Here, the actions ascribed to the defendant fail to meet this test. To the contrary, the facts reasonably suggest an intent other than the intent to cause physical injury - the defendant's desire to keep the two complainants from opening the door and leaving the room. See, e.g., People v. A.S., 28 Misc 3d 381, 386, 900 NYS2d 634, 638 (Crim Ct NY County 2010) (attempted assault count insufficient where court could not infer whether defendant's motive was "mere hostility or meanness or [the] intent to cause the complaining witness pain"). Counts Thirteen and Fourteen are accordingly facially insufficient.

F. Counts Twenty-Four through Twenty-Eight, which Charge Harassment in the Second Dgree with Respect to the Child Victims, Are Facially Insufficient.

The Court also agrees with the defendant that those counts that charge her with Harassment in the Second Degree (Penal Law § 240.26(1)) with respect to her five children are facially insufficient. That section applies when the defendant "with intent to harass, annoy or alarm another person ... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same."

The "crux of section 240.26(1) is the element of physical contact: actual, attempted or threatened." People v. Bartkow, 96 NY2d 770, 772, 725 NYS2d 589, 749 NE2d 158 (2001). Here, the Information lacks any allegation that defendant subjected any of the children to physical contact, nor does it allege that she attempted or threatened to do so. The Court disagrees with the People that [*9]the defendant's physical contact with the adults in the room could, without more, lead to a reasonable inference that defendant might also have illegal physical contact with her children.

Since all the Information alleges is that defendant "command[ed]" some of the children to barricade the door to prevent it from opening, and that she thereby kept all five of them in the room against their will, the Information fails allege facts from which the "crux" of the offense of Harassment in the Second Degree can be reasonably inferred. The Information is accordingly facially insufficient as to Counts Twenty-Four through Twenty-Eight.

G. Conclusion

In light of the above analysis, the Court grants defendant's motion to dismiss Counts Thirteen and Fourteen and Twenty-One through Twenty-Eight, and denies her motion to dismiss Counts One through Five, Eight through Twelve, and Seventeen through Twenty One.

III. Conclusion

For the foregoing reasons, the Court grants defendant's motion to dismiss Counts Thirteen and Fourteen and Twenty-One through Twenty-Eight. Defendant's motion is denied as to the remainder of the challenged counts. As for her motion for discovery, the Court directs the People to file a Voluntary Disclosure Form no later than fourteen days before trial.

This constitutes the Decision and Order of the Court.

Dated: April 9, 2014_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court