Defendant, charged with two counts of Endangering the Welfare of a Child (Penal Law §§ 260.20(1) & (2)), moves to dismiss, arguing that the Information is facially insufficient. There is conflicting case law relating to facial sufficiency in what might be called "home alone" cases, and this case requires this Court to choose a side. For the reasons that follow, defendant's motion to dismiss is DENIED.^[FN1]

Defendant also moves to suppress certain post-arrest statements; as to that, the Court GRANTS a Dunaway/Huntley hearing.

According to the accusatory instrument, at approximately 6:00 a.m. on October 12, 2014, a police officer discovered five children appearing to be between one and nine years old in an apartment with a door that was ajar. They were alone and unattended for the forty minutes that the officer remained in the apartment. The officer removed the children from the apartment and took them to the 25th Precinct, leaving behind a note with instructions. Three hours later, defendant and another individual arrived at the station house in response to the officer's note.

Defendant filed the instant motion on November 6, 2014, and the People responded on November 25. The matter has been sub judice since then.

The Information, sworn out by, Police Officer Fausto Gomez provides that

Defendant is charged with leaving four children, between one and nine years of age, alone in an unlocked apartment for at least 40 minutes. For the reasons that follow, the Court concludes that the Information is facially sufficient as to both the count charging Penal Law § 260.10(1) and that charging § 260.10(2).

First, this Court agrees with those courts that have held that the question whether leaving a child or children home alone makes out a violation of § 260.10(1) is generally best left to the finder of fact at trial. As to § 260.10(2), this Court is bound to follow People v. Aquino, 2002 WL 1312674 at *1 (App. Term. 1st Dept. 2002), which held that whether leaving a child home alone that section should likewise be decided at trial.

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 ( 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987) . Accordingly, a misdemeanor Information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain [*2]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, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

Under these principles, the Information is facially sufficient.

A person is guilty of Endangering the Welfare of a Child under Penal Law § 260.10(1) when she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child younger than seventeen years old. For a defendant to be liable under this section, she "must simply be aware that the conduct may likely result in harm to a child." People v. Johnson, 95 NY2d 368, 372, 718 N.Y.S.2d 1, 740 N.E.2d 1075 (2000). Actual harm to the child need not occur; nevertheless, harm must be likely, and not merely possible, as a result of the defendant's actions. Id. at 371. See also People v. Duenas, 190 Misc 2d 801, 742 N.Y.S.2d 468 (App. Term 2d Dept. 2002).

New York cases discussing the sufficiency of an instrument charging a violation of Penal Law § 260.10(1) for leaving a child or children unattended have covered a range of behavior, and there is no clear consensus among the courts as to how to handle them. See, generally, People v. Cenat, 176 Misc 2d 39, 671 N.Y.S.2d 578 (Crim. Ct. Kings County 1997) (discussing courts' differing approaches to "home alone" cases).

Thus, even the simple question of whether allegation that the defendant left a child or children alone for a time - without any aggravating circumstance - is sufficient has produced conflicting results.^[FN2] People v. Lopez-Pierre, 43 Misc 3d 1223(A), 992 N.Y.S.2d 160 (Crim. Ct. Bronx County 2014), held that the bare allegation that the defendant left an eight-year-old child alone for an unspecified period of time rendered an Information facially insufficient. Similarly, People v. Seward, 173 Misc 2d 1020, 662 N.Y.S.2d 731 (Mt. Vernon City Court 1997), held that an Information alleging that the defendant left a six-year-old child alone for one hour was facially insufficient. That court characterized the Information as alleging mere "bad parenting." Id. People v. Smith, 178 Misc 2d 350, 678 N.Y.S.2d 872 (Kings County 1998), held that the allegation that the defendant left four children at home alone for two hours with no food was insufficient.

On the other hand, People v. Reyes, 20 Misc 3d 1129(A), 872 N.Y.S.2d 692 (Crim. Ct. Kings County 2008), held that an Information was sufficient where it alleged that the defendant left a four-year-old child alone for fifteen minutes. Similarly, People v. Watson, 182 Misc 2d 644, 700 N.Y.S.2d 651 (Bronx County 1999), held that the allegation that defendant left a seven-year-old [*3]alone in a locked apartment for two and one-half hours was sufficient. See also, People v. Gulab, 23 Misc 3d 1123(A), 886 N.Y.S.2d 68 (Crim. Ct. Queens County 2009) ("Regarding the act of leaving the children home alone, this Court agrees with the line of cases where courts have found that leaving young children home alone is an act proscribed by the statute, and not solely an act of bad parenting.'")

Reyes noted that the question raised in this type of cases is particularly unsuited to resolution at the facial sufficiency stage: "[U]ultimately this issue is more appropriately determined at trial than on a facial insufficiency motion." 20 Misc 3d 1129(A), 872 N.Y.S.2d 692. This Court agrees because "[i]t is reasonable to imagine the wide range of harm that might befall a [young] child left alone in an apartment." Id. Thus, whether a particular case is merely one of non-criminal " bad parenting" or whether the circumstances give rise to a the necessary knowledge on the part of the defendant and likelihood of harm to the children is a question that is more appropriately left to the finder of fact at trial.

Accordingly, the Court here concludes that the Information is facially sufficient. It alleges that the defendant left four children, at least two of them so young they were still in diapers, alone in an unlocked apartment, for at least forty minutes. There are certainly reasonable inferences to be drawn from this that would support findings that these circumstances were likely to cause harm to the children and that the defendant knew this to be so. Whether this case ultimately involves actual criminal behavior or only "bad parenting," however, should be up to the finder of fact at trial.

Penal Law § 260.10(2) is violated when, as pertinent here, a parent or person legally responsible for the care of a child less than 18 years old "fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming ... a neglected child' " as that term is defined in the Family Court Act. Section 1012(f) of the Family Court Act defines a "neglected child" as, first, a child under eighteen years of age whose "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care." This can arise by a failure to provide adequate food, clothing, shelter or education when the parent has the means to do so, or by placing the child in physical danger due to excessive corporal punishment or due to the parent's intoxication. § 1012(f)(i)(A) & (B). Alternatively, a child is a "neglected child," when abandoned by his parent or other person legally responsible for his care. § 1012(f)(ii).

While the Family Court Act definitions would seem to require an Information to allege something more than an isolated instance of leaving a child without supervision, binding precedent dictates otherwise. In People v. Aquino, 2002 WL 1312674 at *1 (App. Term. 1st Dept. 2002), the Appellate Term, First Department, held that an Information alleging that the defendant left her five-year-old child and a seven-month-old infant alone in a Bronx apartment at night made out a prima facie case of a violation of § 260.20(2), even though it did not specify the length of the period during which the children were unattended. The court noted that "the complex' question of whether the children were neglected ... is a factual matter appropriately left for trial." Id., citations omitted.

The instant case is clearly governed by Aquino, and this Court is bound to follow it. The two cases are nearly identical factually, with the only apparent differences being that the apartment here was located in New York County and the apartment there was located in Bronx County. In addition, [*4]in Aquino the abandonment was discovered at night, while here, it was discovered early in the morning. Obviously, however, these inconsequential details are insufficient to distinguish this case from Aquino in any meaningful way.

Accordingly, based on Aquino, the Information is facially sufficient as to Penal Law § 260.10(2).IV. CONCLUSION

For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is denied. However, the Court grants a Huntley/Dunaway hearing.