Defendant, charged with endangering the welfare of a child, in violation of Penal Law § 260.10(1), and three counts of criminal contempt in the second degree, in violation of Penal Law § 215.50(3), moves to dismiss the child endangerment count, arguing that the information is facially insufficient as to that charge. The case poses an interesting question: People v. Johnson, 95 NY2d 368, 372, 718 N.Y.S.2d 1, 740 N.E.2d 1075 (2000), holds that a "significant act of domestic violence" committed against a parent in the presence of a child can constitute endangering the welfare of a child. But what makes an act of domestic violence "significant"?

This Court concludes that the term "significant" refers to more than just the level of violence; other considerations can include whether the violence was directed at the complainant or her property, the proximity of the child, the number of incidents, their duration, and whether the available information suggests a history of violence between the parties. Considering the facts pled in the information here under these standards, it is facially sufficient. Defendant's motion is accordingly DENIED .^[FN1]

According to the accusatory instrument, on August 20, 2014, defendant grabbed the hand of Michelle Heinrich, his wife. On September 6, 2014, defendant grabbed Ms. Heinrich's cellphone while it was in her hand. And, on September 28, 2014, defendant again grabbed her cellphone from her hand. On each occasion, Ms. Heinrich's four-year-old son was present.

In addition, each of these episodes occurred in violation of a temporary order of protection in which Ms. Heinrich was a protected party.

On October 21, 2014, by which date defendant had posted bail, the People filed the underlying order of protection and a superseding information charging the defendant with one count of endangering the welfare of a child, in violation of Penal Law § 260.10(1), and three counts of criminal contempt in the second degree, in violation of Penal Law § 215.50(3).

Defendant filed the instant motion to dismiss on November17, 2014, and the People responded on December 4. The motion has been sub judice since then.

A temporary order of protection was entered against the defendant in Kings County Criminal Court on June 16, 2014, in favor of Ms. Heinrich and one other party. The basis for the order was an arrest on a felony complaint, under docket number 2014 KN031443, charging the defendant with strangulation in the second degree, in violation of Penal Law § 121.12. The order directed defendant to have no contact at all with Ms. Heinrich.

The information, sworn out by Michelle Heinrich, provides, in relevant part, that:

The information goes on to explain that thisconduct was "in violation of an order of protection issued against the defendant an on my behalf," which was served personally on the defendant in court.

Defendant moves to dismiss the count charging him with endangering the welfare of a child, alleging that the information fails to sufficiently allege facts from which the Court can draw a reasonable inference that defendant's actions placed the child at risk of harm. The Court disagrees. The conduct itself, the number of episodes, and the fact that the conduct occurred in violation of an order of protection, taken in combination, sufficiently make out a prima facie case of child endangerment.

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, 16 N.E.3d 1150, 992 N.Y.S.2d 672 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 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.

By grabbing, on three occasions, the complainant or her phone while her child was present, each time in violation of an order of protection, defendant created a situation that was so likely to erupt in violence or otherwise traumatize the child, that the degree of harm required by Penal Law § 260.(1) is sufficiently pled.

A person is guilty of endangering the welfare of a child under Penal Law § 260.10(1) when he 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, he "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. Id. See also People v. Duenas, 190 Misc 2d 801, 742 N.Y.S.2d 468 (App. Term 2d Dept.2002). Defendant's conduct need not be directed [*2]specifically at the child for § 260.10(1) to apply, as long as harm to the child is a likely result of the defendant's behavior. Johnson, 95 NY2d at 372, 718 N.Y.S.2d at 1, 740 N.E.2d at 1075.

Johnson involved a defendant who committed acts of domestic violence against the complainant in the presence of her children, but did not physically harm the children. The Court held that this conduct violated § 260.10(1) because that section does not "restrict[] its application solely to harmful conduct directed at children." Id. The Court also noted that construing the statute in this manner would not result in a "wild proliferation of prosecutions based on bad parenting or the exposure of children to inappropriate behavior." 95 NY2d at 372, 718 N.Y.S.2d at 2, 740 N.E.2d at 1076.

Under Johnson, as defendant correctly observes, a "significant" act of domestic violence committed against a parent in the child's presence can constitute endangering the welfare of a child under § 260.10(1). Accordingly, relying on People v. Ventura, 7 Misc 3d 1002(A), 801 N.Y.S.2d 241 (Crim Ct NY County 2005), defendant argues that the information here is facially insufficient. The Court disagrees.

The term "significant" clearly refers to something more than merely the level of violence; other factors can render an act of domestic violence "significant." These would include the duration of the incident, Johnson, 95 NY2d at 370, 718 N.Y.S.2d at 1, 740 N.E.2d at 1075, whether the violence was a singular act or occurred as a course of conduct, the proximity of the child to the violence, People v. Villatoro, 44 Misc 3d 133(A), 997 N.Y.S.2d 100 (App. Term. 9th and 10th Dists 2014) (complainant was pushing baby stroller at time defendant grabbed her), whether the violence was directed at a person or property, and whether the available information suggests a history of domestic violence between the parties. These additional factors, if present to a sufficient degree, can render an act of domestic violence "significant" even if the conduct itself is not seriously violent.

Here, those factors are present to a sufficient degree.

1. Level of Violence

To be sure, defendant's conduct, viewed in isolation, is considerably less extreme than that discussed in Johnson or its progeny. In Johnson, for example, the defendant struck the complainant in the head, screamed at her, dragged her by the neck to her apartment and ordered her to open the door, and the abuse continued for hours once they were inside. 95 NY2d at 370, 718 N.Y.S.2d at 1, 740 N.E.2d at 1075. In Villatoro, 44 Misc 3d at 133(A), 997 N.Y.S.2d at 100, defendant attacked the complainant, grabbing her by breast and buttocks, while she was pushing a baby stroller, with sufficient force to cause the stroller to tip over. And, in People v. Torres, 46 Misc 3d 1205(A), 2014 WL 7466585 (Crim Ct Bronx County 2014), defendant slapped and pulled the hair of the complainant and broke things in her apartment. See also People v. Brown, 36 Misc 3d 1242(A), 960 N.Y.S.2d 51 (Crim Ct Queens County 2012) (defendant spat at the complainant, pulled her hair, [*3]slapped the phone out of her hand and broke items in the apartment); People v. LaMotte, 285 AD2d 814 (3d Dept.2001) (defendant, in the presence of one year-old child, struck his girlfriend in the head, then took a rifle and threatened to kill her); People v. West, 271 AD2d 806 (3d Dept. 2000) (while a woman was holding her four year-old daughter, defendant continually punched her arm and head, choked her, dragged her by the hair and threatened to kill her); People v. Malone, 180 Misc 2d 744 (Crim. Ct. NY Co.1999) (defendant, in the presence of four-year-old child, repeatedly punched his wife in the head).

Indeed, defendant is correct that the level of violence here is more like that described in Ventura, in which the court found the information to be facially insufficient. There, the defendant threw the complainant's cell phone against the wall while her two children were present in the room. 7 Misc 3d at 1002(A), 801 N.Y.S.2d at 241. But the similarities pretty much end there. This case is far more serious than Ventura.

3. Violence Against a Person

This case is also more serious than Ventura, and the acts of violence more "significant," because defendant acted violently toward the complainant herself, and not just her property. As compared to the mere destruction of property, it is much more likely that a physical invasion will erupt into a violent confrontation. See, e.g., United States v. Thrower, 584 F.3d 70, 74 (2d Cir. 2009) (larceny from the person, "as opposed to larceny generally, creates a risk of violent confrontation" - "the risk of violence and struggle" is "ubiquitous").

4. Violation of Order of Protection

Finally, the Court notes that, while the defendant was not charged with criminal contempt in Ventura, his actions there, as here, occurred in violation of an order of protection. In Ventura, the accusatory revealed that defendant admitted that knew he was subject to an order of protection in favor of the complainant, and was not supposed to be anywhere near her. 7 Misc 3d at 1002(A), 801 N.Y.S.2d at 241. The Ventura court did not attach any significance to this fact, but on this point, the Court respectfully disagrees.

While the Court is limited at the facial sufficiency stage to a review of the face of the relevant documents, the face of the temporary order of protection reveals that it was issued [*4]in connection with a criminal case in Kings County in which defendant was charged with violating Penal Law § 121.12, and that Ms. Heinrich was named as one of the protected parties. Section 121.12 is violated when a person strangles another with sufficient force to "cause[] stupor, loss of consciousness for any period of time, or any other physical injury or impairment." And the issuance of the temporary order of protection means that the Kings County judge found reasonable cause to believe that defendant had done exactly that. CPL §§ 170.10(7), 530.12, 530.20.

That the defendant's conduct occurred against a background of another allegation of violence directed at this same complainant is an additional factor that makes his actions "significant." Courts issue orders of protection in domestic violence cases due to the real and recognized risk that a defendant who has been violent towards a family member on one occasion is likely to recidivate. Accordingly, that defendant's conduct here occurred in violation of an order of protection further suggests an increased risk of violence that could harm, either physically or emotionally, the child who was present.

For all of the above reasons, the information here is facially sufficient. By attacking the complainant three times in the presence of her child, all in violation of an order of protection in favor of that same complainant, defendant committed "significant" acts of domestic violence, and created a genuine risk of harm to the child.

For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is denied.

Judge of the Criminal Court