The defendant is charged with one count each of Menacing in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree, and two counts of Endangering the Welfare of a Child.

Defendant, in an omnibus motion, seeks: (1) Dismissal of the Information for Facial Insufficiency, (2) a Mapp Hearing, (3) A Wade/Dunaway Hearing, (4) a Dunaway/Huntley Hearing, (5) an Order Precluding Statement and Identification Testimony, (6) a Sandoval Hearing, and (7) Reservation of Rights.

The defendant's omnibus motion is decided as follows:

The defendant moves to dismiss both counts of Endangering the Welfare of a Child for facial insufficiency pursuant to Criminal Procedure Law §§ 170.30 (1)(a) and 170.35. For the reasons stated herein, the defendant's motion is denied.

Section 100.40(1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v Casey, 95 NY2d 354, 360 (2000); People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 (2006). While this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial," see People v Henderson, 92 NY2d 677, 680 (1999), the failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action. People v Alejandro, 70 NY2d 133, 137 (1987); People v Jones, 9 NY3d 259, 262 (2007).

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 . . . " PL § 260.10(1).

The factual portion of the instant accusatory instrument provides, in relevant part: [*2]

Deponent states that deponent is informed by Sharleen Hiciano, of an address known to the District Attorney's Office, that defendant did pull a gun from his waistband while informant and defendant were inside defendant's motor vehicle at the above location, cock the weapon and place said gun to informant's head while threatening, "You're gonna get it, you're on my next list," thereby placing the informant in fear of serious physical injury.

Deponent is further informed that informant's two children, approximately eight months old years [sic] and approximately four years old, were present inside the motor vehicle during the above stated conduct by the defendant.

The defendant first claims that the allegations are not sufficient to provide reasonable cause to believe that the defendant endangered the welfare of the two children because, while the information does allege that the defendant displayed hostility toward Sharleen Hiciano, it does not allege that the defendant directed any such hostility toward the children. Citing People v Thermidor, NYLJ, 2/25/99, p29, col 1 (App Term 1st Dept February 25, 1999), People v Carr, 208 AD2d 855 (2d Dept 1994), and People v Suarez, 133 Misc 2d 762 (Sup Ct Bronx County 1986), the defendant argues that the mere presence of the children during what is alleged to be a criminal act perpetrated against their mother is not likely to be injurious. The court does not agree.

Almost two years after the Appellate Term's decision in Thermidor, the Court of Appeals decided People v Johnson, 95 NY2d 368 (2000). In Johnson, the defendant was charged with Endangering the Welfare of a Child after he attacked his ex-girlfriend while she was walking with her three young children. Id at 370. During the ten-hour "reign of terror," the children were isolated in their bedroom while they listened to the defendant yelling at their mother, glass breaking, and the complainant screaming. Id. The Court, noting that "[n]othing in the [Endangering the Welfare of a Child] statute restricts its application solely to harmful conduct directed at children," (Id at 371) held that the commission of acts of domestic violence in the presence of children is sufficient to establish that the defendant knowingly acted in a manner likely to be injurious to the children. Id at 372-73. The Court further instructed that judicial opinions requiring that the defendant actually direct violence against children in Endangering the Welfare of a Child were no longer controlling, and explicitly listed Carr and Suarez as examples of the types of cases which should not be followed. Id at 373.

In heeding the Court of Appeals' directive, this court finds that the act of threatening Sharleen Hiciano, in front of her young children, that she was "gonna get it" and would be "next on [the defendant's] list" while brandishing what appeared to be a firearm, would be sufficient to sustain a conviction for Endangering the Welfare of a Child. Similarly, the allegation that the defendant had committed such conduct provides reasonable cause to believe that the defendant endangered the welfare of the two children that were present. See also People v Reyes, 284 AD2d 119, lv denied 96 NY2d 923 (2001); People v Brooks, 270 AD2d 206 (1st Dept 2000), lv denied 95 NY2d 794 (2000).

Nothing more is required at the pleading stage. The People have alleged sufficient facts upon which the defendant may both prepare a defense and avoid being tried twice for the same offense. The allegations should, therefore, be given a fair and not overly restrictive or technical reading. As such, the facts in this information provide reasonable cause to believe that the defendant committed the offense charged, and they support, if true, each essential element of Endangering the Welfare of a Child. Therefore, the People have satisfied their pleading requirements under CPL § 100.40(1)(c). [*3]

In addition, the defendant argues that the information must be dismissed because it fails to allege that the defendant was the parent or guardian of either of the children as is required by PL § 260.10(2). This contention is without merit since the defendant is not charged with violating that subsection.

Accordingly, the defendant's motion to dismiss both counts of Endangering the Welfare of a Child is denied.

The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3).

This opinion constitutes the decision and order of the Court. [*4]

Dated:March 26, 2009

New York, New York

__________________________

Michael J. Yavinsky

Judge of the Criminal Court