A bench trial was held in this proceeding where the defendant has been charged with endangering the welfare of a child (P.L. 260.10(1)) and harassment in the second degree (P.L. 240.26(1)).

The credible testimony at trial established that the defendant is the mother of two boys, 7 and 8 years old, both of whom were in attendance at Washington Elementary School at 121 South 6th Avenue in Mount Vernon on June 13, 2005. On that date, the defendant arrived at the school shortly before 2:35 p.m. in response to a telephone call from school officials informing her that both boys had been suspended from school and that she should come pick them up. The school officials who testified, which included the school principal, assistant principal and a security guard, confirmed that both boys were out of control at school and had been running wildly around the building.

At the school, the defendant first encountered her older son in the media center. She was clearly upset with her sons' behavior at school, and was yelling and screaming. She then took her leather belt off and began hitting the older son with it, three or four times on the lower legs. The school principal, who was present, told her that she could not hit her son. The defendant then saw her younger son emerge from a staircase in the vicinity. She began to hit him with the belt on his lower legs three or four times, and was again told by the principal that she could not hit her children. The defendant continued to yell and scream. The police arrived on the scene shortly thereafter, having been called by the school, and placed the defendant under arrest.

The defendant testified in her own behalf at the trial. She claimed that she had no intention of injuring the children by hitting them with the belt, and had only wanted to embarrass them for their bad behavior.

A person is guilty of endangering the welfare of a child when "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..." (P.L. 260.10(1)). The defense of justification, which provides that a parent, guardian, teacher or other person entrusted with care of a person under the age of twenty-one "may use physical force, but not deadly force, upon such person when and to the extent that he reasonably believes it necessary to [*2]maintain discipline or to promote the welfare of such person" (P.L. 35.10(1), is not applicable to the crime of endangering the welfare of a child. This is the case because if a parent acts in a manner injurious to the child's welfare, such acts cannot be justified simply because the parent believes them to be necessary to promote the welfare of that child (People v Fields, 134 AD2d 365 (2d Dept 1987)).

The Appellate Division has recognized that "a parent may use some physical force in disciplining their children, but it has to be reasonable and in no way gives them permission to cruelly beat their children" (People v Prue, 219 AD2d 873 (4th Dept 1995)). The conduct alleged in the information, hitting a child with a belt, has been deemed sufficient to support a conviction of endangering the welfare of a child where it resulted in injury to the child (see, People v Nelson, 2 Misc 3d 133A (App. Term 1st Dept 2004); People v Abraham, 2002 NY Misc. LEXIS 982 (City Ct, White Plains 2002); People v Fields, 134 AD2d 365 (2d Dept 1987)). For example, in People v Fields, supra, the defendant hit his three year old child with a belt for 30 minutes, causing swelling, bruises and soreness, requiring a 4 day hospitalization. Similarly, in People v Nelson, supra, the defendant hit his 13 year old daughter with a belt causing injuries, and in People v Abraham, supra, the defendant hit her 7 year old daughter with a belt causing welts, bruises and substantial pain.

Unlike the above noted cases, the defendant here was not alleged to have caused any physical injuries to her children. While this Court does not advocate hitting children with a belt as a means of discipline, similar conduct on the part of a parent or guardian seeking to impose discipline on a child for bad behavior, which causes no physical injury, has been found insufficient to result in a conviction for endangering the welfare of a child (see Malte v State of New York, 125 AD2d 958 (4th Dept 1986) (defendant teacher hit 10 year old student's backside 12 times - found not guilty of endangering charge). Thus, on the evidence presented in this case, this Court cannot find that the defendant knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of her children. Accordingly, the Court finds the defendant not guilty on the charge of endangering the welfare of a child.

The defendant is also charged with harassment in the second degree. A person is guilty of harassment in the second degree pursuant to P.L. 240.26(1), "when, with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same...." Based upon the credible evidence presented, the Court finds that the defendant engaged in the course of conduct complained of and acted with the requisite intent on the date and time alleged. Accordingly, the Court finds the defendant guilty of harassment in the second degree.

This constitutes the Decision and Order of this Court.

Dated:October 24, 2005

Mount Vernon, New York

_______________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon