The defendant, SARA HIDAD, is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. '220.03) and Endangering the Welfare of a Child (P.L. § 260.10 [1]). The defendant moves to dismiss the second count of the complaint, Endangering the Welfare of a Child (P.L. § 260.10 [1]) for facial insufficiency pursuant to C.P.L. §§ 100.10, 100.15 and 100.40 (1). Defendant also seeks preclusion of any statement or identification evidence and preclusion of the use at trial of defendant's prior criminal history or misconduct. Additionally, defendant seeks a Mapp/Dunaway hearing, discovery, a Bill of Particulars, any exculpatory evidence, and reservation of the right to make additional motions as necessary.

FACIAL SUFFICIENCY

The information alleges, in pertinent part:

Deponent states the deponent observed the defendant give a sum of united states (sic) currency to the front seat occupants of a white van in exchange for which the front seat occupants of said van gave the defendant a quantity of heroin. Deponent further states that deponent recovered a quantity of heroin from the defendant's pocket.

Deponent further states that the above-described substances are in fact what they are alleged to be based upon her professional training as a police officer in the identification of drugs, her prior experience as a police officer in drug arrests, observation of the packaging which is characteristic of the type of drug and a field test of the substance which confirmed that the substance is in fact what it is alleged to be.

Deponent further states that during the above described transaction, defendant's infant child, Ruth Allen, was in the defendant's custody. Deponent further states that Ruth Allen's date of birth [*2]is April 20, 2006.

The accusatory instrument is accompanied by a positive field test for heroin.

At the pleading stage of a criminal prosecution, the People must allege facts that would establish reasonable cause to believe that the defendant committed the offense charged. See C.P.L. § 100.40 (1) (b). This does not require that the accusatory instrument state facts that would prove the defendant's guilt beyond a reasonable doubt, but rather that it contains 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 (2000); People v Konieczny, 2 NY3d 569, 575 (2004). The law requires that in determining facial sufficiency, the court view the accusatory instrument in the light most favorable to the People. People v. Gonzalez, 184 Misc 2d 262 (App. Term. 1st Dept. 2000) lv denied 95 NY2d 835.

Defendant argues that the information is facially insufficient as to the charge of Endangering the Welfare of a Child because it fails to allege facts that would establish that the defendant "intentionally committed an act that was likely to be injurious to a child under the age of seventeen."

MOTION TO DISMISS THE COUNT OF

ENDANGERING THE WELFARE OF A CHILD

Penal Law § 260.10 (1) defines the crime of Endangering the Welfare of a Child as follows: "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." A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such a nature or that such circumstances exist. P.L. § 15.05 (2).

The defendant relies on People v. Grajales, 179 Misc 2d 793 (1999), to support his position that the complaint fails to allege facts that would establish that the defendant placed the child at risk to her danger or health. In Grajales, a case where drugs were found in various places around a home during a time when a child was present, the court found that the mere presence of drugs in the household alone is not enough to sustain the charge of Endangering the Welfare of a Child. The court held that, "[w]hile the People need not show actual harm to the children to sustain an endangering charge, there must be some facts in the complaint to show a nexus between the presence of the marihuana in the apartment and potential or likely harm to the children." (Citing, People v. Simmons, 92 NY2d 829, 830 (1998)).

The People make the argument that the defendant's act of "bringing her daughter to the site of a drug transaction, and into the presence of drug dealers clearly, a potentially dangerous environment" was sufficient to show a nexus between the environment and harm to the child.

In the instant case, it is alleged that the "defendant's infant child, Ruth Allen, was in the defendant's custody" during the above described transaction. While the court is left assume that the phrase "in the defendant's custody" refers to the actual presence of the child as opposed to a [*3]legal ruling regarding guardianship, there is no further information regarding the child's placement at the scene of the alleged buy, nor is there any information within the complaint alleging a threat of violence or some other act of malfeasance to the child or the defendant.

In People v. Jose Cruz, NYLJ 11/15/91 NYLJ 22, (col. 3) the court interpreted the statute, noting that "the language of PL 260.10(1) reveals that the potential impact of the injury anticipated by the statute need not be direct, rather it must be "likely." That is, "[a] defendant must act in a manner, no matter who the action is directed at, which is likely to result in harm to a minor and he must do so knowing of the potential that such harm will come to the minor." (Citing, People v. Grillo, Kings County, NYLJ, February 22, 1990, p. 27 (col. 2).

Similarly, in People v. Dailey, (67 Misc 2d 107), in construing subdivision two of P.L. § 160.10, the court found the evidence underlying the information insufficient where the proof of endangerment rested upon "speculation." (supra at p. 109).

In People v. Weyrick, 55 Misc 2d 1063 (1968), a case involving minors who were present as "contraband" was being consumed the court illustrated the need for evidence of more than "mere presence" of contraband in the vicinity of a child. The court stated, "[n]owhere in the information does it allege that the defendant even as much as offered beer to the two minors protected by the law or that they partook of it. To hold that the mere presence of minors where alcoholic beverages are being served or where a "beer party" is taking place would, by its normal extension, outlaw and prohibit every backyard wiener roast, firemen's carnival or even the mere keeping of such in a parent's refrigerator. I know of no law which prohibits such an act."

This is not compare a backyard cook-out to the purchase of narcotics, but the court's point is clear: there must be some action against the child which would thereby subject that child to danger. Courts have broadened this view in the cases of domestic violence perpetrated in front of a child (see, People v. Suarez, 133 Misc 2d 762 (1986); People v. Malone, NYLJ 5/3/99, p. 30, col. 2) or where a gun is pulled out and pointed in the general direction of a child who is physically present with an adult target (see, People v. Smith, NYLJ, 2/6/1995, p. 30, Col. 5). But these cases involve actual acts of violence, not the potential violence speculated upon by the prosecution in this matter. The court does not extend this broadened view of the statute to instances of drugs or alcohol being in the presence of minors, or even in the case of minors being brought into violence-prone neighborhoods or known drug-sale locations.

Based on the factual allegations presented in the instant complaint, it would be pure conjecture to find that there was a likelihood of violence or other harm injurious to the physical, mental or moral welfare of the child who accompanied the defendant.

For the foregoing reasons, Defendant's motion to dismiss the charges of Endangering the Welfare of a Child for facial insufficiency is granted.

OTHER MOTIONS

Defendant's motion for a Bill of Particulars and discovery is granted to the extent provided in the People's response, information, and Voluntary Disclosure Form.

Defendant's motions to suppress identification and statement evidence are denied as moot, in view of the fact that the People have stated that they do not intend to offer at trial testimony regarding an identification of the defendant or evidence of any statements given by the defendant to law enforcement officials.

The branch of the defendant=s motion seeking to suppress physical evidence is granted to the extent that a Mapp/Dunaway hearing is to be held prior to trial. [*4]

Defendant's motion seeking a Sandoval hearing is granted to the extent that the defendant has leave to re-submit this portion of the motion to the trial judge.

Defendant's motion seeking to reserve the right to make further motions is granted to the extent provided for by C.P.L. § 255.20.

The People's request for reciprocal discovery is granted to the extent that the defense is directed to comply with the provisions of C.P.L. § 240.30; § 250.20. In addition, the People are reminded of their continuing obligations under Brady v. Maryland, 373 US 83 (1963).

This constitutes the decision and order of the court.

Dated: April 5, 2007_________________________________

New York, New YorkEVELYN J. LAPORTE

Judge of the Criminal Court