Opinion
2009NA013032.
Decided October 1, 2009.
Hon. Kathleen Rice, Nassau County District Attorney.
Attorney for Defendent: Steven F. Christiansen, Esq.,(McAndrews Christiansen, LLP).
The Defendant is charged with Endangering the Welfare of a Child, in violation of Penal Law § 260.20(1), and with violating the Social Host Law, pursuant to Local Law 13-2007, Section 64-4(a). The Defendant now moves for an order dismissing the accusatory instruments pursuant to CPL §§ 140.45, 100.15 and 100.40. The People oppose the motion.
An information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offence charged, People v. Moore , 5 NY3d 725 , 800 NYS2d 49 (2005); People v. Thomas , 4 NY3d 143 , 791 NYS2d 68 (2005) "provid[ing] reasonable cause to believe that the defendant committed the offense[.]" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b) "Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.20
The factual allegations in the accusatory instrument and supporting depositions should be viewed in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111 (A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco , 16 Misc 3d 526 , 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson , 15 Misc 3d 925 , 834 NYS2d 445 (Dist.Ct. Nassau Co. 2007) and should not be given an overly restrictive or technical reading, People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Baumann Sons Buses, Inc. , 6 NY3d 404 , 813 NYS2d 27 (2006). They must be sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959) "Paragraphs (b) and (c) of CPL 100.40(1), read in conjunction, place the burden on the People to make out their prima facie case for the offense charged in the text of the information." People v. Jones , 9 NY3d 259 , 848 NYS2d 600 (2007); See also: People v. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999); People v. Alejandro, supra .; Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980)
SOCIAL HOST LAW
Count Two charges the Defendant with violating the Social Host Law, found at Local Law 13-2007, Section 64-4(a) which provides, in pertinent part:
It shall be unlawful for any person over the age of eighteen who owns, rents, or otherwise controls a private residence, to knowingly allow the consumption of alcohol or alcoholic beverages by any minor on such premises or to fail to take reasonable corrective action upon learning of the consumption of alcohol or alcoholic beverages by any minor on such premises. Reasonable corrective action shall include, but not be limited to: 1) making a prompt demand that such minor either forfeit and refrain from further consumption of the alcoholic beverages or depart from the premises; and 2) if such minor does not comply with such request, either promptly reporting such underage consumption of alcohol i) to the local law enforcement agency or ii) to any other person having a greater degree of authority over the conduct of such minor.
As can be seen, to be sustained as facially sufficient, the information, along with the accompanying supporting depositions, must contain non-hearsay allegations which, if true, establish each of the following elements: (1) that the Defendant is over the age of eighteen years; (2) that the Defendant either owned, rented or otherwise controlled a private residence; (3) knowingly allowed the consumption of alcohol or alcoholic beverages by minors on the subject premises; or, (4) failed to take reasonable corrective action upon learning of such consumption.
The information charging the Defendant with violating the Social Host Law is sworn to by P.O. Glynis Bevin Humphries and alleges:
At the aforementioned time and place, [May 17, 2009, at about 2:00 a.m., at 163 Marcus Avenue, Garden City Park] the defendant Nicole A. Anderson, being nineteen years old, and resident in charge of place of occurrence, did fail to prevent juveniles ages 14-17 years old, in her presence from consuming alcoholic beverages and she failed to request juveniles to terminate the consumption of alcohol and she failed to properly contact authorities/parental figures for assistance in the termination of said alcohol consumption.
The allegations of Officer Humphries are made solely upon information and belief, based upon statements allegedly made in the supporting deposition of one Juana Reyna, which is annexed to the information and alleges, in pertinent part, that at 6:00 a.m., "[o]n the 17 day of Sunday ( sic), 2009" she "saw 2 teenage males leaving 163 Marcus Ave in Garden City Park[;] that she looked into the basement of the premises and observed "3 teenagers talking . . . a bar and beer bottles and cans everywhere." She further avers that she observed her son sitting on a couch, "smelled beer on his breath and he was staggering when he tried to walk . . . saw several teenagers around and smelled beer . . . saw beer bottles and cans inside the house and outside in the backyard."
The information is also accompanied by the supporting deposition of Ms. Reyna's son, Kevin Ramirez and one Nicholas Andali. Mr. Ramirez's supporting deposition alleges the following:
On the 16th day of May 2009 at about 8:00 PM I was walking around New Hyde Park, NY with my friends. At about 10:30 p.m. we went to 163 Marcus Ave, in Garden City Park, NY. Its my friend's house (Kyle Anderson). We were supposed to take a party bus to New York City, but the bus was too small. ( sic) so we took the train from Merillion Ave. There were about 15 of us. We were drinking Bud light cans on the train. I had about 4 of them. We decided to take the subway to Astoria. When we got there some of us got separated. I was with 2 friends and I had another 5 Bud light cans. After walking around in Astoria, we took a yellow cab back to 163 Marcus Ave in Garden City Park, NY. We got there at about 5:00 on Sunday morning. I went into the back den and saw some friends sleeping on the coaches. ( sic) I sat down and was half asleep. My mother came in and took me home.
The supporting deposition of Nicholas Andali similarly alleges the following: On the 16th day of May 2009 at about 8:00 PM I arrived at my friend's house Dean Anderson (7/9/94) located at 163 Marcus ave ( sic) in Garden City Park. When I arrived the house was full of teenagers who were drinking. I drank 5 Budweiser bottled beers during the night. The beers were in the refridgerator ( sic) and I got one whenever I wanted one. I went to sleep around 4 AM.
The Defendant argues that the information and supporting depositions "are insufficient on their face and consequently jurisdictionally defective as a matter of law as the factual part of the allegations are supported only by the hearsay allegations of the arresting police officer." ( Christiansen Affirmation 8/27/09, ¶ 19) The Defendant further argues that, based upon this alleged facial insufficiency, the information must be dismissed pursuant to CPL § 140.45.
In opposing the Defendant's motion, the People argue that the "specific structure of the accusatory instruments is not in dispute . . . provide reasonable cause to believe that the defendant committed the offenses charged . . . [and] makes out each element of the crime charged through non-hearsay allegations through the supporting depositions annexed and affixed as well as the defendant's statement of admission." ( Lutinger Affirmation 9/11/09, ¶¶ 8, 9 and 16)
The court finds that the information charging the Defendant with a violation of the Social Host Law suffer from a myriad of problems rendering it facially insufficient. The relevant allegations contained therein are based almost exclusively on the hearsay statements of Officer Humphries; and, the hearsay and non-hearsay allegations contained in the supporting depositions omit one (1) or more necessary elements of the crime charged.
It is first noted that, while Officer Humphries alleges that the Defendant is nineteen (19) years old, there is no evidentiary support for this conclusory statement. Such a statement is uncorroborated hearsay and, without evidentiary corroboration, cannot sustain the facial sufficiency of the information. See: People v. Perez, 22 Misc 3d 1105 (A), 880 NYS2d 226 (Crim.Ct. NY Co. 2009); People v. Taylor , 23 Misc 3d 361 , 877 NYS2d 837 (Dist.Ct. Nassau Co. 2009); People v. Mercado, 184 Misc 2d 40, 705 NYS2d 889 (Crim.Ct. Bronx Co. 2000)
Similarly, there is no evidentiary support for Officer Humphries' bald statements that the Defendant owned, rented or otherwise controlled the premises; nor is there any allegation, evidentiary or otherwise, that the subject premises was a private residence, necessary to support a charge of violating the Social Host Law.
Likewise, there are no non-hearsay allegations that anyone underage drank any alcohol or alcoholic beverages at the subject premises. While Nicholas Andali states in his supporting deposition that he drank five (5) bottles of beer at the subject premises, nowhere does he state his age, nor do the information or supporting depositions contain any evidentiary proof of his age. Similarly, while Mr. Andali states that he observed "teenagers" in the house drinking, this too is wholly uncorroborated hearsay, insufficient to sustain the information. Additionally, while Kevin Ramirez acknowledges in his supporting deposition that his date of birth is February 2, 1992, making him seventeen (17) years old, Mr. Ramirez merely alleges that he drank four (4) cans of beer on the train riding into New York City and five (5) cans of beer somewhere in Astoria, in Queens County. Nowhere does Mr. Ramirez, the only confirmed minor, ever allege that he consumed any alcohol or alcoholic beverage at the subject premises or in the Defendant's presence.
The above notwithstanding, the information charging the Defendant with a violation of the Social Host Law fails to contain any allegation that the Defendant knowingly allowed the consumption of alcohol or alcoholic beverages on the subject premises. This information, in pertinent part, actually alleges that the Defendant "failed to prevent juveniles ages 14-17 years old, in her presence from consuming alcoholic beverages. . . ." "Allowing" and "preventing," however are two (2) very different things. The former involves permitting the underage consumption of alcohol, and is an element of the crime charged; the latter involves taking steps to keep an underage individual from consuming alcohol, and is not an element of the crime charged. While Officer Humphries' alleges that the Defendant failed to take reasonable corrective action to terminate the unlawful consumption of alcohol on the premises, there are no statements of an evidentiary character supporting this hearsay allegation. Moreover, not one of the supporting depositions even places the Defendant in the residence, or anywhere else for that matter, while alcohol is allegedly being consumed. In fact, the supporting depositions do not mention the Defendant at all.
Contrary to the argument of the People, the Defendant's alleged statement, as disclosed in the People's notice pursuant to CPL § 710.30, to the effect that she "was aware of the juveniles drinking and playing games and that they would be staying the night[,]" does not cure the aforesaid defects. The People's 710.30 notice is not sworn to by either the Defendant or the individual who allegedly heard this admission; and, it is not in evidentiary form. This problem notwithstanding, the 710.30 notice is not annexed to the information, which must be judged by the "allegations within the four corners of the instrument itself' or in annexed supporting depositions[.]" People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005) Moreover, at best, giving the People every reasonable interpretation of this statement, it does nothing more than establish that the Defendant knew alcohol was being consumed on the subject premises. It does nothing to place the Defendant in the subject premises, establish her ownership, rental or control of the premises, establish that she allowed such alcohol consumption or failed to take reasonable corrective action.
Based upon all of the foregoing, the Defendant's motion to dismiss Count Two, charging a violation of the social host law, is granted; and, it is hereby
ORDERED, that Count Two is dismissed.
ENDANGERING THE WELFARE OF A CHILD
The information charging the Defendant with Endangering the Welfare of a Child is also sworn to by P.O. Glynis Bevin Humphries and alleges:
At the aforementioned time and place, [May 17, 2009, at about 2:00 a.m., at 163 Marcus Avenue, Garden City Park] defendant Nicole A. Anderson, being nineteen years old, did act in a manner likely to be injurious to the physical and moral welfare of a child less than seventeen years old by observing numerous juveniles ages 14-16 years old at her residence consuming budwieser beer in her presence. The defendant allowed this conduct to continue without any attempts to terminate said consumption. The defendant did make oral admissions to arresting officers. Sixteen year old witness, Nicholas Andali signed statement stating that he did consume five budwieser beers while inside the premises.
This information is also accompanied by the supporting depositions of Juana Reyna, Nicholas Andali and Kevin Ramirez, referred to hereinabove.
In addition to suffering from the same hearsay deficiencies identified above regarding Count Two, including the absence of any non-hearsay proof of age and any allegation by someone with personal knowledge that the Defendant was present in the residence during the alleged consumption of beer by individuals between the ages of fourteen (14) and sixteen (16) years, this information fails to set forth any allegations, hearsay or non-hearsay, which could possibly support the charge of Endangering the Welfare of a Child.
Count One charges the Defendant with Endangering the Welfare of a Child, in violation of Penal Law § 260.20(1), which provides, in pertinent part:
A person is guilty of endangering the welfare of a child when: (1) 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 . . .
Unlike subdivision two (2) of this section, which addresses the failure or refusal to act by "a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old," See: People v. Phelps, 268 AD2d 692, 701 NYS2d 494 (3rd Dept. 2000) lv. den. 94 NY2d 924, 708 NYS2d 363 (2000), in the absence of a legal duty, the subdivision under which the Defendant is charged requires the commission of some overt or affirmative act which is likely to be injurious to a child less than seventeen (17) years old. See: People v. Phelps, id.; People v. Luchsinger, 46 AD2d 728, 359 NYS2d 937 (4th Dept. 1974) [frequent presence of fourteen (14) year old in apartment of thirty-three (33) year old defendant insufficient to support charge without proof of some conduct by the defendant detrimental to the welfare of the minor]; People v. Spadaccini, 124 AD2d 859, 508 NYS2d 628 (3rd Dept. 1986) [defendants' conviction for failing to prevent two (2) year old from touching dog inappropriately was reversed due to the absence of any proof that the defendants affirmatively acted to induce such conduct]
As noted, the information sub judice does not allege that the Defendant either served or provided beer to individuals under the age of seventeen (17) years of age; it merely alleges that she failed to take steps to terminate such consumption. In the absence of an allegation, and an evidentiary demonstration, of a legal duty to do so, however, the Defendant cannot be guilty of the crime charged. See: People v. Spadaccini, id; People v. Myers, 201 AD2d 855, 608 NYS2d 544 (3rd Dept. 1994)
Accordingly, the Defendant's motion to dismiss Count One, charging the Defendant with Endangering the Welfare of a Child, is granted; and, it is hereby
ORDERED, that Count One is dismissed.
This constitutes the decision and order of the court.
The court granted the Defendant's motion to dismiss the informations charging her with Endangering the Welfare of a Child and a violation of the Social Host Law as insufficient due to the absence of various necessary elements of the crimes charged and any non-hearsay allegations establishing the Defendant's presence at the premises or any other location where minors were consuming alcohol, the age of the Defendant or the alleged minors, that the Defendant owned, rented or controlled the premises in question, that the residence in question was a private residence and that the Defendant had any legal duty to take steps to prevent or terminate such alleged alcohol consumption.