This case is about whether Defendant, a high school physical education teacher, may be charged with Endangering the Welfare of a Child (PL § 260.10) for allegedly kissing on the mouth the then 15 year old Complaining Witness, a member of the baseball team the Defendant coached.

Defendant, in a motion to dismiss the Complaint for facial insufficiency pursuant to CPL §§ 170.30(1)(a), 170.35(1)(a)-(b), 100.15, and 100.40, argues that mere kissing, without other conduct, is not unmistakably sexual so as to create a likely risk of injury to the child under the statute. In the alternative, the Defendant argues that the Statute is unconstitutionally vague as applied to her. The People oppose the motion to dismiss.

In order to be sufficient on its face, an accusatory instrument must allege facts sufficient to provide reasonable cause to believe that the defendant committed the offenses charged. CPL § 100.40(4)(b); People v. Dumas, 68 NY2d 729, 497 NE2d 686, 506 NYS2d 319 (1986).The allegations must be non-hearsay. People v. Alejandro, 70 NY2d 133, 511 NE2d 71, 517 NYS2d 927 (1987), CPL § 100.40(1)(c).

PL § 260.10, Endangering the Welfare of a Child, requires allegations that the Defendant [*2]"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 [her] life or health." The statute does not require the allegation of actual harm to the child, only the knowing likelihood of such harm. People v. Simmons, 92 NY2d 829, 699 NE2d 417, 677 NYS2d 58 (1998). Exposing a child to sexual contact is considered prima facie evidence of Endangering the Welfare of a Child (see People v. Dunavin, 173 AD2d 1032, 570 NYS2d 369 (3rd Dept. 1991); People v. Ahlers, 98 AD2d 821, 470 NYS2d 483 (3rd Dept. 1983).

Defendant argues that kissing does not amount to sexual contact because the mouth is not an intimate part of the body, relying on People v. Kittles, 102 Misc 2d 224, 423 NYS2d 107 (Suffolk Co. Ct. 1979). She further argues that the fact that the lips can be used for intimate purposes does not render the mouth an intimate part of the body, distinguishing the facts before us from those in People v. Correa, 2002 WL 31885906, 2002 NY Slip Op. 50495(U) (App. Term 1st Dept.), in which the Defendant kissed the Complaining Witness in her mouth, using his tongue.

It is well settled that the mouth is an intimate part of the body, particularly when used in kissing. People v. Rivera, 138 Misc 2d 570, 525 NYS2d 118 (Sup. Ct. Bronx Co. 1988) (finding, in a case where Defendant inserted his tongue into the victim's mouth, that the mouth is a sexual part of the body, and kissing, sexual contact); People v. Correa, supra .; People v. Sumpter, 190 Misc 2d 115, 737 NYS2d 219 (1st Dept. 2001) (had Defendant been able to kiss the complainant in her mouth, that conduct alone would have constituted sexual contact); Matter of David V., 226 AD2d 319, 642 NYS2d 224 (1st Dept. 1996) (kissing using tongue was legally sufficient to establish sexual contact); In Re Michael J., 267 AD2d 126, 699 NYS2d 284 (1st Dept. 1999) (forcible kissing of the complaining witness in the mouth constituted sexual abuse).

While many of the cases finding sexual abuse occurred where the Defendant kissed the Complainant using his or her tongue, we decline to dismiss the Complaint merely because the People alleged that Defendant kissed the Complainant on, rather than in, her mouth. Kissing, whether or not the tongue is inserted, constitutes sexual contact. People v. Rondon, 152 Misc 2d 1018, 579 NYS2d 319 (Crim. Ct. Queens Co. 1992) (finding that a kiss on the mouth without the insertion of a tongue is sexual contact so as to constitute Sexual Abuse in the Second Degree); People v. M.T., 2 Misc 3d 980, 773 NYS2d 247 (Crim. Ct. NY Co. 2004) (finding that the Defendant's acts of kissing and sending explicit notes to his 14 year old piano student "were not equivocal or open to innocent interpretation" under PL � 260.10).

Defendant relies on People v. Kittles, supra , which we decline to follow. The Court in that case found that kissing was not sexual contact under PL � 130.00 because "the mouth is not kept concealed and is generally not touched or fondled with the hands for the purpose of sexual gratification." As the Second Department has since held in People v. Johnson, 102 AD2d 895, 477 NYS2d 67 (2d Dept. 1984), "sexual contact does not require touching with hands." See also People v. Rivera, (declining to follow Kittles and finding that the mouth is a sexual part of the body, often used in a sexual context).

In this case, moreover, Defendant is not charged with a crime under PL � 130 (sex offenses), but with Endangering the Welfare of a Child under PL � 260.10, which may be inferred from sexual contact, but merely requires a likelihood of harm. People v. Cruz, 10 Misc [*3]3d 838, 809 NYS2d (2005).

We note that the Defendant is alleged to have been the Complainant's baseball coach at the time of the incident, a position that brings with it authority, admiration and the trust of the adolescent members of her team. A baseball coach and physical education instructor who enters into an intimate relationship with a 15 year old student on her team, repeatedly kissing her on the mouth, may well abuse his or her responsibilities as an instructor and is likely to endanger the welfare of that child. See People v. Simmons, 92 NY2d 829, 699 NE2d 417, 677 NYS2d 58 (1998) (Defendant, the Complaining Witness' teacher, was properly convicted of Endangering the Welfare of a Child upon evidence that over a period of six weeks, she repeated mocking and sexual remarks to a child aged 23 months); People v. M.T., supra .^[FN1]

The question of whether the Defendant used her tongue, like the extent of the Complainant's exposure to harm, will be reserved for the trier of fact, and we express no opinion as to the guilt or innocence of Defendant, should the evidence support the charges alleged. A Complaint need only establish the existence of a prima facie case, even if those facts would be insufficient to prove guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 504 NE2d 1079, 512 NYS2d 652 (1986). At this stage of the proceedings, we therefore find the allegations legally sufficient to establish Endangering the Welfare of a Child. See People v. Cenat, 176 Misc 2d 39, 671 NYS2d 578 (Crim. Ct. Kings Co. 1997) (upholding a Complaint alleging that the defendant left her children unattended for two hours, and finding that the People need not show actual harm, but merely allege the likelihood of such harm).

Defendant further argues that the statute as applied to her is unconstitutional because in this case, it may proscribe conduct condemned by "some members of the community" rather than that proscribed by society as a whole. Again, we disagree. The likelihood of harm alleged here does not stem from the gender of Defendant and Complaining witness, but from the fact that [*4]the Defendant, an adult, was 9 years older than the minor Complainant, and coached the Complainant's baseball team, thereby placing Defendant in a position of responsibility with regard to the Complainant. The imbalance of age and power between the Defendant and Complainant, as well as the intimate nature of Defendant's contact with a Complainant under the age of sexual consent, sufficiently establishes a likelihood of harm. Compare People v. Doe, 2007 NY Slip Op. 50217(U), 14 Misc 3d 1229(A), 2007 WL 431111 (Greene Co. Ct. 2007) (dismissing a Complaint alleging that Defendant, who was then 19, was kissing the Complaining Witness, then a week shy of her 16th birthday, and holding that "two teenagers may agree to kiss each other without fear of being arrested and charged with a crime."), with People v. Ostrin, 2005 NY Slip Op. 51201(U), 8 Misc 3d 1020(A), 2005 WL 1792596 (Crim. Ct. Kings Co. 2005) (a complaint alleging that the Defendant, a teacher at Brooklyn Tech High School, had made several statements of a sexual nature to the teenage Complainant and kissed her, sufficiently alleged endangering the welfare of a child). We therefore decline to find the statute, PL � 260.10, unconstitutional as applied.

Accordingly, Defendant's motion to dismiss the Complaint for facial insufficiency, and because of the alleged unconstitutionality of PL � 260.10 as applied here, is denied.

This constitutes the decision and order of this Court.

Dated:November 9, 2007

Brooklyn, New York

______________________________

Michael Gerstein, J.C.C.