The defendant, Rita Gunter, is charged with endangering the welfare of a child (P.L. §260.10(1) and criminal possession of a controlled substance in the seventh degree (P.L. §220.03). She now moves the Court for an order dismissing the charge of endangering the welfare of a child for facial insufficiency.

An accusatory instrument upon which the defendant may be held for trial "must allege facts of an evidentiary character' (CPL §100.15[3]) demonstrating reasonable cause to believe that the defendant committed the crime charged (CPL §100.40[4][b])." People v. Dumas, 68 NY2d 729, 731 (1986). Further, a valid criminal court information must contain non-hearsay factual allegations which, if true, "establish . . . every element of the offense charged and the defendant's commission thereof." CPL §100.40(1)(c).

In determining the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. People v. Contes, 60 NY2d 620, 621 (1983). "That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry. . . ." People v. Deegan, 69 NY2d 976, 979 (1987). "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 (citations omitted)." People v. Casey, 95 NY2d at 360.

The within accusatory instrument states that on November 25, 2010, at about 7:20 p.m. inside of 242 West 63rd Street, apartment No.1E in the County and State of New York:

. . . deponent recovered cocaine from on top of the refrigerator in the above apartment.

Deponent further states that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: deponent's prior experience as a [*2]police officer in drug arrests and defendant's statements that the substance is in fact what it is alleged to be in that the defendant stated in substance that it was cocaine and she uses a little.

Deponent further states that deponent observed a girl sitting on the couch in the above apartment and that said girl is between two and three feet tall and approximately 40 pounds and, in regards to said girl, the defendant stated in substance that the girl is defendant's granddaughter.

A violation of P.L. §260.10(1) occurs when a person "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. . . ." "Actual harm to the child need not result for criminal liability. . . ." People v. Johnson, 95 NY2d 368, 371 (2000). "The statute is broadly written and imposes a criminal sanction for the mere likelihood' of harm." People v. Johnson, 95 NY2d 368, 372 (2000). ". . . a court cannot and should not await broken bone or shattered psyche before extending its protective cloak around [a] child. . . .'" People v. Portorreal, 25 Misc 3d 1238(A) (Crim.Ct. Queens County [2009], citing Matter of Priscilla Cruz, 121 AD2d 901, 903 (1st Dept. 1986).

In the instant case, the cocaine was accessible to anyone in the apartment because it was on top of the refrigerator. Although the cocaine may have been recovered from an area above the height of the child,^[FN1] the cocaine was not "secured or locked. . . . " People v. Portorreal, 25 Misc 3d 1238(A) (Crim. Ct. Queens County 2009). "It is fair to assume that . . . the defendant's [granddaughter] could walk and climb and that therefore she could put herself within reach of the [cocaine]." Id. Also, the cocaine could simply fall off the refrigerator. Ingestion of cocaine by the child would certainly be injurious to her physical, mental and moral welfare.

Guidance in reaching this conclusion can be found in People v. Hitchcock, 98 NY2d 586 (2002) and its companion case People v. Duenas, 98 NY2d 586 (2002). See People v. Noce, 24 Misc 3d 1202(A) (Dist. Ct. Nassau County 2009). "In People v. Hitchcock, supra., the court affirmed the defendant's conviction for Endangering the Welfare of a Child where the defendant left firearms openly accessible, while residing with his fiancee and her 14 year-old son. The child took one of the guns and loaded it. The gun accidentally discharged and the child's friend was injured. The Court of Appeals affirmed the defendant's conviction for endangering the welfare of a child.

In People v. Duenas, supra, the defendant lived with his 11 year-old brother. The defendant purchased a gun illegally, and wrapped it in rags, put it "inside a stereo speaker hidden in a closet behind various items of clothing and bags." Id. at 590. The defendant was unaware that his brother had looked through a crack in the bedroom door, and had seen the defendant "cleaning what appeared to be a gun." Id. Several months later,defendant's brother, searched for "about an hour" and found the gun. The defendant's brother and a friend then played with the gun. It accidentally discharged and killed the friend. The Court of Appeals reversed the defendant's conviction for endangering the welfare of a child. [*3]

The distinguishing factor between the two (2) cases was that in the former case, where the gun was left out in the open, the evidence supported a finding that the defendant was aware that his conduct would likely be injurious to a child, whereas in the latter case, where the gun was secreted, the defendant did not know that his conduct would likely be injurious to a child.

People v. Noce, 24 Misc 3d 1202(A) (Dist. Ct. Nassau County 2009).

Based on this rationale, the factual allegations, as set forth in the within accusatory instrument, are sufficient, at the pleading stage, to support the charge of endangering the welfare of a child. The allegations that the cocaine was left on top of a refrigerator, and not concealed in any manner, are similar to the factual allegations set forth in Hitchcock where the drugs were openly accessible, and the Court affirmed the conviction for endangering the welfare of a child. Unlike the defendant in Duenas, Ms. Gunter did not make a "significant effort to conceal" the cocaine. People v. Duenas, 98 NY2d at 592.

Furthermore, when a child, "who is capable of absorbing all of his or her surroundings," observes illegal drugs in the home, "there is a real likelihood that he or she will come to view such illegal substances as common household items." People v. Jones, 25 Misc 3d 995, 998-999 (Crim. Ct. NY County 2009). ". . . the prospect of moral harm in such circumstances, as well as potential physical and mental harm, is neither remote nor speculative." Id. at 999.

Accordingly, the defendant's motion to dismiss the charge of endangering the welfare of a child for facial insufficiency is denied.

This opinion shall constitute the decision and order of the Court.

Dated: May 19, 2011______________________

New York, New YorkMatthew A. Sciarrino, Jr.

Judge of the Criminal Court