The defendant moves by written motion to dismiss an accusatory instrument that charges the defendant with one count of Endangering the welfare of a child in violation of section 260.10 of the Penal Law.

The accusatory instrument in question is an "information" that consists of two pages one page signed by Officer Haines of the Hunter Police department and the second page affirmed under penalty of perjury is a supporting deposition signed by Jane Smith Date of Birth 10/07/1990.

Officer Haines swears in the information that on Sunday October 1, 2006 ( which is one week prior to Ms Smith's sixteenth Birthday) in the Town of Hunter he observed the defendant (whose age is not mentioned in the information) in his vehicle , in the back seat with Ms. Smith who was fifteen years old. He goes on to say that the vehicle was in an isolated rural area and that the defendant admitted to having kissed Ms. Smith prior to the patrols arrival.

Ms Smith in her supporting deposition states: That after being picked up by "John Doe" they drove to his Grandmothers house and after leaving there went to the Gravel Bank.When we got there we both went into the back seat. John had his shirt off. We began kissing. The radar detector went off. He Jumped into the front of his truck and the State Trooper went to

the Drivers side window.

The Assistant District attorney concedes in his affirmation that the alleged "kissing" was consensual.

Nowhere in the information is there any fact or allegation of the defendants age. However the defendant is not charged with any sexual contact with Ms. Smith and therefore the age of the defendant is not part of a prima facie allegation of endangering the welfare of a child less than seventeen. [*2]

However in the interest of a final determination of this matter the court will note from the arrest records in the court file that the defendants birthday is March 23 1987.

The defendant is approximately 3 years and 6 1/2 months older than Ms. Smith.

In reviewing all of the Penal law statues concerning consensual sexual contact with minors , though not determinative of the issues in this case it is nonetheless more than interesting to note that the legislature does not prohibit consensual sexual intercourse among teenagers in the age range of the defendant and the alleged victim. see section 130.30 of the penal law which prohibits sexual intercourse between a male over eighteen and a female less than fifteen.

Other statutes such as penal law 130.45 likewise prohibit various sexual acts with males or female when one party is over the age of eighteen and the other person is under fifteen. Sexual acts between individuals wherein one of them is over the age of twenty one and the other is less than seventeen are likewise prohibited in penal law section 130.40.

The District attorney urges that the fact that the defendants shirt was off is a compelling factor and makes the case more compelling then in People V. Comacho 209 AD2d 534, a case which this court finds is determinative of this case.

To follow the District attorneys arguments would mean that it is not illegal for two teenagers to consent to have sexual intercourse but it would be illegal for them to consent to kiss each other.

In Comacho the facts were far more egregious than in this case and the court still reversed and dismissed: The facts were A 12 year old girls step father, went into her bedroom where she was sleeping and while she was in Bed kissed her many times on her neck and back. He did this many times . She did not consent and told him to stop, sometimes he did sometimes he did not stop. He told her not to tell anyone or he would go to jail. The appellate Division second Department reversed the conviction and dismissed the case citing that even proof of the above facts was legally insufficient to support a charge of endangering the welfare of a child.

In this courts opinion and in every case that this court can find it is clear that no teenager has ever been convicted of a crime for consensual kissing another teenager in this state. Nor has The legislature ever intended to make it a crime for two teenagers to consent to Kiss in a car .

It is clear that the state will step in to regulate harmful conduct with children below a certain age such as under 15 , however there is an age range between fifteen and eighteen that the state has decided that teenagers can consent to certain conduct such as kissing, which the state will not interfere in. This court now finds that two teenagers may agree to kiss each other without fear of being arrested and charged with a crime.

Therefore the court does find that the information presented to the court even if every element alleged is true and even if the defendants age was properly alleged, would still not rise to the [*3]level of accusing the defendant of a crime recognized under the laws of the State of New York.

The case is dismissed .

The motion to vacate the order of protection is moot since it already expired.

This case is ordered sealed.

Dated: February 8, 2007__________________________________

HON: William M. Simon, Town Justice