You had a few beers. A couple of glasses of wine. A shot or two of whiskey. OK, maybe it was that and a couple of more. Buzzed? Intoxicated? Flat out drunk? Wherever you are on that spectrum, you are watching your kids. At least that’s what you’re supposed to be doing. You are their caretaker and guardian, but your more than a few sheets to the wind. Maybe you had a good time, but that is quickly turning to regret. After all, how can you watch children if you can’t stand straight or speak properly? If you have left your children unattended as a result of your intoxication, have you committed a crime? More specifically, if you are in New York City or anywhere else in the Empire State, can the police arrest you for and prosecutors prove beyond a reasonable doubt the offense of Endangering the Welfare of a Child pursuant to New York Penal Law 260.10? You didn’t strike, injure or intentionally put a child in harms way, so clearly you can’t be guilty of PL 260.10. Right? Speak with your criminal defense attorney and you may be surprised.
New York Penal Law 260.10, Endangering the Welfare of a Child is an extremely serious offense. While it may “only” be a misdemeanor, its not merely the one year in jail you face that should give you pause, its the stigma and danger of an investigation by Children Protective Services (CPS) or Administration for Children Services (ACS) that can have additional collateral consequences that will follow you in perpetuity. Because nobody needs or wants that, let’s examine the crime so we can see whether or not the above hypothetical violates this offense.
In pertinent part, you are guilty of NY PL 260.10(1) when you knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. Somewhat different, you are guilty of NY PL 260.10(2)https://www.new-york-lawyers.org/endangering-the-welfare-of-a-child-new-york-penal-law-260-10.html when being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, you fail or refuse to exercise reasonable diligence in the control of such child to prevent him or her from becoming an “abused child,” a “neglected child,” a “juvenile delinquent” or a “person in need of supervision.”
With our scenario and the law firmly in place, let’s now address People v. Perez, 2015NY014893, NYLJ 1202741779471, at *1 (Crim., NY, Decided October 30, 2015). In Perez, the defendant was observed by the arresting office slumped over and passed out in the back of a cab with two small children. When the officer awoke the defendant she had watery blood shot eyes, slurred speech, smelled from alcohol and said in substance, “What kids? I dont have any kids with me.” The two children were unattended clearly and between one and two years old.
In finding that the allegations of PL 260.10(1) and PL 260.10(2) were legally sufficient, the court first recognized prior decisions stating that leaving a child unattended can give grounds or legal sufficiency for an Endangering the Welfare of a Child complaint. Here, unlike those cases, the court argued that although the defendant was present she constructively left her children unattended as she was not capable of taking care of them. As stated by the court:
“For a defendant to be liable under this section [PL 260.10(1)], she ‘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. See also People v. Duenas, 190 Misc 2d 801, 742 N.Y.S.2d 468 (App. Term 2d Dept. 2002).