In an accusatory instrument filed on May 29, 2012, the defendant, Nadine Brown, is charged with violating NY Penal Law §§120.00(1), 145.00(1) and (4), 260.10(1) and 240.26(1), Assault in the Third Degree, two counts of Criminal Mischief in the Fourth Degree, Endangering the Welfare of a Child, and Harassment in the Second Degree, respectively. Defendant Nadine Brown now moves for dismissal of the Endangering the Welfare of a Child charged filed against her on the grounds that the complaint is not facially sufficient as to that charge, and for other relief. In response, the People move for an Order demanding alibi notice from the Defendant.

In determining the instant motion, this Court has considered the Defendant's moving papers dated August 10, 2012, the People's opposition papers dated September 4, 2012 and papers on file with the Court.

The following is the decision and order of the Court.

I.Statement of facts

A review of the Court's file indicates that defendant was arrested on May 27, 2012, by a

New York City Police Officer in Queens County, New York after the complaining witness informed the Officer that the defendant had spat on her, pulled her hair, prevented her from calling 911 by slapping her cell phone out of her hand, and broke a picture frame by throwing it at the complainant, causing glass to hit the complainant. The complainant further stated that her [*2]6 year old son was present at the time the alleged actions took place. See Complaint. Defendant Nadine Brown was arraigned on May 29, 2012, in Part AR-1 of Queens County Criminal Court, and charged with violating NY Penal Law §§120.00(1), 145.00(1) and (4), 260.10(1) and 240.26(1), Assault in the Third Degree, two counts of Criminal Mischief in the Fourth Degree, Endangering the Welfare of a Child, and Harassment in the Second Degree, respectively. The People announced ready at the defendant's arraignment, and the case was adjourned for open file discovery. On June 11, 2012 the case was adjourned until September 10, 2012 for trial. In the interim, the defendant filed the instant motion on August 10, 2012.

II.Motion to Dismiss the Accusatory Instrument for Facial Insufficiency

The defendant moves for dismissal of count four of the accusatory instrument, Endangering the Welfare of a Child (NY Penal Law §260.10(1)), on the grounds that it is not facially sufficient, pursuant to NY C.P.L. §§100.40, 170.30, and 170.35. Specifically, the defendant contends that the complaint, as written, is facially insufficient because the complaint does not articulate how the alleged actions of the defendant impacted the child or caused the child to suffer "physical, mental or moral harm," nor does the complaint allege that defendant threatened or directed such conduct at the child. See Defendant's Notice of Motion dated August 10, 2012 at page 5-6. Further, the defendant alleges that the term "present" is not sufficient to establish that the child observed the incidents referenced above, and therefore the charge cannot be sustained. Id. at page 5.

With respect to the defendant's contention that the complaint is facially insufficient because it does not specifically address the harm done to the child, the Court of Appeals has expressly held that such a requirement was not intended by the legislatures. See People v. Johnson, 95 NY2d 368, 371, 718 N.Y.S.2d 1, 2 (2000). Specifically, the Court held that under NY Penal Law §260.10:

Actual harm to the child need not result for criminal liability; it is sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child.

Nothing in the statute restricts its application solely to harmful conduct directed at children. The statute is broadly written and imposes criminal sanction for the mere "likelihood" of harm.

Applying the standard set forth in Johnson, and in accordance with the well-settled caselaw pertaining to facial sufficiency determinations at the pleading stages, it is clear that the defendant's motion must be denied. See e.g. People v. Kalin, 12 NY3d 225, 230, 878 N.Y.S.2d 653, 656 (2009) (citations omitted)("a prima facie case requirement 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. Allen, 92 [*3]NY2d 378, 385, 681 N.Y.S.2d 216, 220-22 (1998); see also People v. Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88, 91 (2000)(courts should review accusatory instruments in a "fair and not overly restrictive or technical reading"); People v. Barona, 19 Misc 3d 1122(A), 862 N.Y.S.2d 816, 2008 NY Slip Op. 50814 (U) (Crim Ct NY Co 2008) (a court must "consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged").

Here, it is alleged that the defendant, in the presence of a six year old child, spat at the child's mother, pulled her hair, slapped a cell phone out of her hand and broke a picture frame by throwing it at the child's mother. See Complaint. As such, when viewed in the light most favorable to the people, such conduct, if proved true, clearly was likely to cause harm to the child's physical, mental or moral well-being. Johnson, 95 NY2d at 371-72, 718 N.Y.S.2d at 2-3. It can also be reasonably inferred that the defendant, when acting in such a manner towards the child's mother in front of the child, knew that such conduct could likely cause harm to that child. Barona, 19 Misc 3d 1122(A), 862 N.Y.S.2d 816.

Lastly, to the extent that the defendant contends the wording used in the complaint, specifically the use of the word "present," is not sufficient to establish where the child was while the above-referenced actions are alleged to have occurred, this court adopts the plain meaning of the word "present" and finds that its use in the complaint, when viewed in the light most favorable to the people, and applying all reasonable inferences therein, is sufficient. Id.

Accordingly, the defendant's motion to dismiss count four of the Complaint on the grounds of facial insufficiency is denied.

III.Reservation of Rights

Defendant's motion to make any and all further motions as may be necessary, is granted

to the extent that if the People fail to disclose information or if information disclosed does not satisfy defendant's request for information required by law to be disclosed, then the defendant may make the appropriate motion to compel disclosure. In that motion, the defendant must specify (1) the item(s) of information which the District Attorney has not disclosed, (2) why such information is relevant and applicable to this case, and (3) the provision of law or authority requiring disclosure of such information.

IV.People's Demand for Alibi Notice

The People's demand for notice of alibi pursuant to NY C.P.L. §250.20 is granted.

This constitutes the Decision and Order of the Court.

Dated: September 5, 2012

SO ORDERED: [*4]

_________________________

HON. GIA L. MORRIS

Judge of the Criminal Court