The People of
the State of New York,
against
Edward Falcone, Defendant.
|
2013KN080309
Appearances of Counsel:
For the People: Kenneth P. Thompson,
Kings County District Attorney, by ADA Amanda Cully, 350 Jay Street, Brooklyn, NY
11201
For the Defendant: Brooklyn Defender Services, by Amanda Hamann,
Esq., 177 Livingston Street, 7th Floor, Brooklyn, NY 11201
Laura R. Johnson, J.
Defendant is charged with two counts of Public Lewdness (Penal Law §
245.00[A]), eight counts of Endangering the Welfare of a Child (Penal Law §
260.10[1]), two counts of Reckless Driving (Vehicle and Traffic Law §1212), and
two counts of Exposure of a Person (Penal Law § 245.01). By Notice of Motion
dated December 8, 2014, defendant seeks dismissal of the charges of Endangering the
Welfare of a Child and Reckless Driving on the ground that they are facially insufficient.
In particular, defendant contends that the information fails to allege facts sufficient to
establish defendant's knowing creation of a risk to the welfare of a child, and also that, by
failing to allege any facts regarding his driving, it fails to establish that his driving was
reckless. The People oppose defendant's motion by Affirmation dated January 6, 2015.
For the following reasons, defendant's motion to dismiss is denied in part, as to the
counts of Endangering the Welfare of a Child, and granted in part, as to the counts of
Reckless Driving.
FACTS
Defendant was initially
arraigned on October 17, 2013. On October 25, 2013, the People served and filed a
Superseding Information (SSI) and the supporting depositions of four witnesses, together
with a Statement of Readiness. The SSI alleges two occurrences, the first on or about and
between October 10, 2013, at 4:00 p.m. and October 10, 2013 at 6:00 p.m., and the
second on or about and between October 16, 2013, at 4:00 p.m. and October 16, 2013 at
4:40 p.m. Both occurrences were at or near the corner of Nostrand Avenue and Quentin
Road in the County of Kings, State of New York.
With regard to the October
10, 2013 occurrence, the SSI sets forth factual allegations upon [*2]information provided by E.A., an 11-year-old girl, and states that, at that place,
...which is a
public street, informant observed defendant driving a small blue minivan-like vehicle
with a sun roof and a yellow sticker on the front window and observed that the
defendant's penis was open to public view and that informant was able to observe the
defendant's penis and that the defendant was manipulating defendant's penis with
defendant's hand.
The SSI further alleges that three other named individuals,
A.A., R.W., and R.S., were "also present at the first above
mentioned time and place," and states their dates of birth which made them, at the time of occurrence, 11, 9, and 10 years old
respectively.
The allegations with regard to the October 16, 2013 occurrence
are substantially the same, based on information provided this time by A.A.,
that:
At the second mentioned above time and place, which is a public street,
informant observed defendant driving a small blue vehicle with a sun roof and a yellow
sticker on the front window and observed that the defendant's male private part was open
to public view and that informant was able to observe the defendant's male private part
and that the defendant was manipulating defendant's male private part with defendant's
hand.
The SSI further alleges that the three other girls were "present at the
second above mentioned time and place."
DISCUSSION
Pursuant to sections 100.15 and 100.40(1) of the Criminal Procedure Law, an
information is sufficient on its face 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. In determining whether this "prima facie" requirement has been met,
the court must view the facts alleged in the light most favorable to the People (People
v. Contes, 60 NY2d 620, 621 [1983]); People v. Dreyden (James), 28 Misc 3d 5, 7 [App Term, 2d
Dept.], lv denied 15 NY3d 773 [2010]). The requirement of non-hearsay
allegations is a "much more demanding standard" than a showing of reasonable cause
alone (People v. Alejandro, 70 NY2d 133, 138 [1987], quoting 1966
Report of Temp Commn on Revision of Penal Law and Crim. Code, Staff Comments).
Nevertheless, the People's prima facie burden "is not the same as the burden of proof
beyond a reasonable doubt required at trial, nor does it rise to the level of legally
sufficient evidence that is necessary to survive a motion to dismiss based on the proof
presented at trial" (People v.
Kalin, 12 NY3d 225, 230 [2009], citing People v. Henderson, 92 NY2d
677, 680 [1999]; see also Preiser, Practice Commentary, McKinney's Cons. Law
of NY, Book 11A, CPL 100.40, at 388). So long as the factual allegations of an
information give the defendant sufficient notice to prepare a defense and prevent the
defendant from being twice tried 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]). Finally, while conclusory allegations are insufficient (see People v.
Dumas, 68 NY2d 729 [1986]), inferences may rationally be drawn (see People v.
Bello, 92 NY2d 523, 526 [1998]), and a court "is not required to ignore common
sense or the significance of the conduct alleged" (People v. Gonzalez, 184 Misc
2d 262, 264 [App Term, 1st Dept. 2000], lv denied 95 NY2d 835 [2000]).
[*3]The Timeliness of Defendant's
Motion
As a threshold matter, the People contend that defendant's
motion should be denied as untimely, since it was not made within 45 days of
arraignment. The time limitations of CPL § 255.20, relied upon by the People, do
not apply to claims that an accusatory instrument is facially insufficient in that it fails to
allege facts of an evidentiary nature supporting every element of the offense charged
(see CPL § 100.40[1][c]). Because "[a] valid and sufficient accusatory
instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution"
(People v Case, 42 NY2d 98, 99 [1977]), an objection to facial sufficiency
cannot be waived, and may be raised at any time (People v. Casey, 95 NY2d 354
[2000]). Indeed, the defense may enter a plea of guilty on a favorable offer of disposition
and still raise such a claim on appeal. People v. Dreyden, 15 NY3d 100, 103 (2010). Defendant's
motion is timely.
Conversely, and contrary to defendant's contention, a
facially insufficient information may be cured by filing a superseding information that
alleges new or additional facts, at any time before the opening of trial. CPL §
100.50; People v. Thomas,
4 Misc 3d 57 (App. Term 2d Dept. 2004). Here, although defendant suggests that
more than 90 days of chargeable time have passed since the filing of the SSI, he does not
move to dismiss the case on speedy trial grounds. In any event, the People have been
ready for trial since October 25, 2013 on the charges of Public Lewdness and Exposure
of a Person, which defendant does not challenge.
Endangering the
Welfare of a Child
As applicable here, under Penal Law §
260.10(1), a person is guilty of Endangering the Welfare of a Child when he or she
"knowingly acts in a manner likely to be injurious to the physical, mental or moral
welfare of a child less than seventeen years old." Criminal liability for endangering the
welfare of a child does not require that the defendant intend specifically to endanger a
child's welfare. Instead, the Court of Appeals has held that "the statute is broadly written
and imposes a criminal sanction for the mere likelihood' of harm." People v.
Johnson, 95 NY2d 368, 372 (2000); see also PL § 15.05(2) ("a person
acts knowingly with respect to conduct or to a circumstance described by a statute in
defining an offense when he is aware that his conduct is of such nature or that such
circumstance exists"). It is also not required that the alleged conduct be directed at a
particular child under the age of seventeen years old; rather, "a defendant must simply be
aware that that the conduct may likely result in harm to a child, whether directed
at the child or not." Id. (emphasis in original). Furthermore, actual harm to the
child need not occur for a finding of criminal liability. Id. at 372; see also
People v. Simmons, 92 NY2d 829, 830 (1998).
Allegations that a
defendant masturbated in view of a child are sufficient to support a charge of
Endangering the Welfare of a Child. See People v. Martz, 28 Misc 3d 1215(A) (Nassau Dist Ct
2010); People v. Griffith, 6
Misc 3d 1027(A) (Crim Ct. Kings County. 2005); People v. Gibble, 2 Misc 3d
510 (Crim. Ct. NY County 2003).
Defendant's challenge to the facial
sufficiency of the SSI, then, comes down to whether the information sufficiently alleges
facts from which it may fairly be concluded that defendant was aware that his conduct
would likely be observed by a person under the age of 17.
In People ex.
rel. Tanis v. Benedict, 28 N.Y.S.2d 202 (NY Sup. Ct. 1941), the court assessed the
facial sufficiency of an information alleging remarkably similar facts. In that case, the
defendant was masturbating in a parked car, where he was observed by a 10-year-old girl
passing along the [*4]adjacent sidewalk.[FN1]
The information charged that "defendant did willfully cause a child 10 years of age to
be placed in such a situation that her morals were likely to be impaired," in violation of a
predecessor statute, Penal Law § 483(2). The court rejected the defendant's
argument that he could not fairly be charged with "causing" or "permitting" a child over
whom he had no "control" to be placed in a situation likely to be injurious to her morals,
noting that, since defendant had positioned himself in a public place where he was
visible, "it would do violence both to the letter and spirit of this section of the Penal Law
to hold that this defendant did not wilfully cause this child to be placed in such a position
that her morals were likely to be impaired" (id. at 205). As for whether the
conduct itself was of a nature likely to be injurious to a child, the court concluded that
"the act in which the defendant was publicly engaged in was such as to shock and even
demoralize any child of adolescent years" (id.).
To be sure,
the likelihood that defendant would be observed by a child may not be as great in this
case as it was in People v.
Gibble, 2 Misc 3d 510 (NY City Crim. Ct. 2003), in which the defendant was
alleged to have been masturbating behind a desk in a school during school hours. Here,
however, a reasonable inference of defendant's awareness of the likely presence of
children is to be drawn from the fact of his return to the same location to repeat the same
conduct on two weekday afternoons within six days, in view of the same group of
girls.[FN2]
As for the presence of the other girls who, as to each incident, are named as
victims although not specifically alleged to have observed defendant's conduct, the
allegations of the information are sufficient for the pleading stage. The fact that one child
observed defendant's conduct on each of the two occasions is sufficient to establish that
his conduct was visible to the public. Therefore, although bare-boned, the allegations in
the SSI regarding the presence of the other named children provide defendant with
sufficient notice to prepare a defense and to prevent him from being twice tried for the
same offense. See People v. Allen, 92 NY2d 378, 385 (1998). Defendant's
questions regarding the precise location of each of the girls and the likelihood that they
might be harmed by his conduct are matters to be resolved at trial.[FN3]
Viewing all the evidence and the inferences which may be drawn in the light
most favorable to the People and refusing to ignore common sense or the significance of
the conduct alleged, this Court finds that the charges of Endangering the Welfare of a
Child are facially sufficient.
Reckless Driving
Under
Vehicle and Traffic Law § 1212, "[r]eckless driving shall mean driving or using any
motor vehicle . . . in a manner which unreasonably interferes with the free and proper use
of the public highway, or unreasonably endangers users of the public highway."
Furthermore, under Penal Law § 15.05(3), a person acts recklessly when "he is
aware of and consciously disregards a substantial and unjustifiable risk that such result
will occur or that such circumstance exists" and that risk must be "of such nature and
degree that disregard thereof constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation."
Here, the sole
explicit relevant factual allegation in the information is that defendant was "driving." It
may also be fairly inferred from the other allegations that defendant had, at most, one
hand on the steering wheel. However, the accusatory instrument is devoid of any
allegation that defendant's motor vehicle, as it was being driven, "unreasonably
interfere[d] with the free and proper use of the public highway, or unreasonably
endanger[ed] users of the public highway." VTL § 1212. The SSI contains no facts
whatsoever to support a conclusion that the manner in which the defendant was driving
"created an actual and apparent, as opposed to a theoretical, danger to the person or
property of another." People v. Dipoumbi, 23 Misc 3d 1127(A) (NY City Crim.
Ct. 2009). The charge of Reckless Driving is facially insufficient.
CONCLUSIONFor the reasons set forth above, defendant's motion to
dismiss the accusatory instrument is denied in part, as to the counts of Endangering the
Welfare of a Child, and granted in part, as to the counts of Reckless Driving.
This constitutes the Decision and Order of the Court.
DATED:January 26, 2015
Brooklyn, New York
Laura R. Johnson, J.C.C.
Footnotes
Footnote 1:The 1941 decision does
not quote in full the language of the information in that case, nor does it state specifically
that defendant was masturbating; instead, it refers to the defendant's "unconcealed and
unnatural acts" which were "more than an exposure of person." 28 N.Y.S.2d at 205.
Footnote 2:Furthermore, the Court
takes judicial notice that the location of occurrence is in the residential neighborhood of
Midwood, Brooklyn, in the vicinity of several public schools and yeshivas. People v.
Jones, 73 NY2d 427 (1989) (A court may take judicial notice of facts "which are
capable of immediate and accurate determination by resort to easily accessible sources of
indisputable accuracy.") (citing Richardson, Evidence § 9 [Prince 10th ed.]); see also Cobble Hillbillies, LLC v.
Interior Design, 4 Misc 3d 987, 990 (2004) (judicial notice may be taken of facts
that are common knowledge, notorious, or indisputable).
Footnote 3:Indeed, it is not
dispositive whether the other girls actually saw defendant's conduct. In People v. Neville, 31 Misc 3d
1245(A) (Crim. Ct. Kings County 2011), the court assessed the sufficiency of a
complaint charging Endangering the Welfare of an Incompetent Person (PL §
265.25), and concluded that where defendant masturbated next to 82-year-old sleeping
Alzheimer's patient, the issue is "not whether the victim was aware of the Defendant's
conduct but whether Defendant knew his conduct may be harmful to the victim."