This motion to dismiss for facial insufficiency raises the issue of whether a factual assertion that an eight-year-old child left home alone—without more—is enough to support the charge of Endangering the Welfare of a Child, Penal Law § 260.10. Under this section, a person endangers the welfare of a child when "[h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." Id. § 260.10(1). Because the facts alleged in the Complaint fail to set forth circumstances that would allow this court to infer that defendant Regine Lopez-Pierre ("Defendant") acted in a manner "likely to be injurious to" the child, the factual allegations in the Complaint are legally insufficient to support the charge.^[FN1]

A little after 12 p.m., Police Officer Juan Martinez responded to a residential apartment in the Bronx. There, he observed Marcus Lopez-Pierre, a child weighing about sixty pounds and measuring about four feet, alone in the apartment. Defendant later confirmed that she had left [*2]Marcus, her eight-year-old son, in the apartment so he could sleep.

Defendant urges dismissal on two grounds: (1) the Complaint lacks non-hearsay allegations establishing Marcus's age; and (2) even if all allegations are taken as true, they fail to establish the charge.

Regarding the child's age, Defendant made statements to the Police that confirmed that Marcus was her son and that he was born on November 11, 2005, making him eight years old at the time of the alleged offense. These statements constitute admissions, an exception to the hearsay rule, and thus satisfy C.P.L. § 100.40(1)(c). See People v. Casey, 95 NY2d 354, 361 (2000) ("[A] non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception."); id. at 362 (citing Ryan T. Farrell, Prince, Richardson on Evidence §§ 8—202, 8—204, at 510—511 (Farrell 11th ed.)). Taken together, "[a]t the very least, the fair implication of these averments establish[]" that Marcus is eight years old. See id. at 360.

Sufficiency of the age requirement notwithstanding, a prima facie charge of Endangering the Welfare of a Child is not per se established in this case by the allegations that the child was left at home, for an unspecified amount of time, and that he is eight years old. "The injury to a child must be likely to occur and cannot be simply a possibility." People v. Medina, 25 Misc 3d 1209(A), 2009 NY Slip Op. 52012(U), at *2-3 (NY Co. Crim. Ct. 2009); see also Hitchcock, 98 NY2d at 591 ("The People also must establish that the harm was likely to occur, and not merely possible.").^[FN2] The allegations in the instant Complaint do not specify whether Defendant left the apartment for a minute, five minutes, or an hour. Nor is it alleged that there were dangerous devices or items left with Marcus, or that Marcus suffered from debilitating disabilities that would make his time alone inherently dangerous. Rather, the Complaint's bare allegations establish only that Officer Martinez discovered Marcus alone in an apartment at 12:24 p.m.

By its terms, the endangering statute does not specify an age or duration of time that would trigger criminal liability in so-called "home alone" cases. Compare People v. Seward, 173 Misc 2d 1020, 1021 (Mt. Vernon City Ct. 1997) (holding complaint insufficient where allegations were limited to a six-year-old having been left alone for an hour in the night); with People v. Watson, 182 Misc 2d 644, 648 (Bronx Co. Crim. Ct. 1999) (deeming complaint sufficient based on allegations that a scared seven-year-old child was left unattended for over [*3]two hours).^[FN3] Some courts have upheld the sufficiency of such complaints based on the notion that a "court reasonably can imagine a wide range of dangers that might befall a scared, seven-year-old child left unattended for 2 1/2 hours." Watson, 182 Misc 2d at 648. While the instant facts allow this court to imagine possible harm, they are insufficient to establish reasonable cause to believe that harm was likely.Perhaps there is an age at which harm is "overwhelming[ly] likely to befall an unattended child," see id., but the factual allegations in the instant Complaint do not permit such an inference.

Notably, cases in which courts have upheld the facial sufficiency of endangering charges under Penal Law § 260.10(1) tend to include allegations of circumstances beyond those that support merely that a child was left alone for an unspecified time. Such additional allegations help to establish likelihood of injury and include, for example, that a scared seven-year-old child was left alone for over two hours, see Watson, 182 Misc 2d at 648; that a seven-year-old child was left in charge of a five-month-old infant, see People v. Aquino, No. 570839/01, 2002 WL 1312674 (App. Term., 1st Dep't June 10, 2002); and that an intoxicated mother left her children "alone in squalid conditions," see Perez, 22 Misc 3d 1105(A), at *6.

"In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011). Even when construed liberally, a complaint must include some facts from which reasonable cause may be inferred. See C.P.L. § 100.40(1)(c). By failing to include allegations that Defendant knowingly placed Marcus in circumstances that would likely be injurious to him, the Complaint here falls short of this requirement.

Accordingly, Defendant's motion to dismiss is granted. In light of the foregoing, Defendant's motion to dismiss in furtherance of justice and applications for other relief are rendered moot.

Dated: May 13, 2014Bronx County, New York

SO ORDERED:

Jeanette Rodriguez-Morick

Judge of the Criminal Court