DECISION AND ORDER Defendant Yury Abrams is charged by superseding information with three counts of Unlawful Imprisonment in the Second Degree, Penal Law ["PL"] §135.05, two counts of Endangering the Welfare of a Child, PL §240.60(1) and one count of Attempted Assault in the Third Degree, PL §110/120.00(1). Defendant moves to dismiss for facial insufficiency as well as in the interests of justice. The People oppose. Since Defendant has not demonstrated the existence of a compelling reason warranting dismissal, the court summarily denies his motion to dismiss in the interests of justice (see People v. Schlessel, 104 AD2d 501, 502 [2d Dept 1984]). Nevertheless, because the information fails to provide reasonable cause to believe that Defendant restrained his daughter, L.I.; or that he attempted to intentionally cause physical injury to his son, A.A.; or that he knowingly acted in a manner likely to be injurious to A.A.’s physical, mental or moral welfare, the court dismisses the three counts of unlawful imprisonment, the attempted assault count and one count of endangering as jurisdictionally defective. Conversely, because the nonhearsay facts alleged, accepted as true and viewed in the light most favorable to the People (see CPL §100.40[1][c]; People v. Barona, 19 Misc 3d 1122[A] 1, 3 [Crim Ct, NY County 2008]), establish that Defendant knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of L.I., the court sustains the other endangering count as facially sufficient. Interests of JusticeDismissal in the interest of justice is not intended to be a substitute for trial (see People v. Prunty, 101 Misc 2d 163, 167 [Crim Ct, Queens County 1979]) and “should be exercised sparingly,” “only in those rare cases where there is a ‘compelling factor’ which clearly demonstrates that conviction or prosecution of defendant would result in injustice” (People v. Betances, 193 Misc 2d 445, 446 [1st Dept 2002]; see also People v. Kelley, 141 AD2d 764 [2d Dept 1988]). Defendant has failed to demonstrate that his case is so “rare and unusual” that it “cries out for fundamental justice beyond the confines of conventional considerations” (Kelley, 141 AD2d at 765 [internal citations omitted]). Accordingly, the court denies Defendant’s motion to dismiss in the interest of justice.Facial SufficiencyTo be sufficient, an information must allege “facts of an evidentiary character” (CPL §100.15[3]) which provide reasonable cause to believe that the defendant committed the offense charged (see CPL §100.40[1][b]; see also People v. Suber, 19 NY3d 247, 251 [2012]). Further, the nonhearsay factual allegations of the information and any supporting depositions, if accepted as true, must establish the defendant’s commission of every element of the offense charged (see CPL §100.40[1][c]; see also People v. Dumas, 68 NY2d 729 [1986]; People v. Alejandro, 70 NY2d 133 [1987]). A pleading error which omits the elements of a charged crime impairs a defendant’s fundamental right to sufficient notice to prepare a defense and prevent double jeopardy (see People v. Casey, 95 NY2d 354, 366 [2000]). An information which fails to allege sufficient evidentiary facts to support an element of the crime charged violates the reasonable cause requirement and therefore is jurisdictionally defective (see People v. Fernandez, 20 NY3d 44, 47 [2012]; People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Kalin, 12 NY3d 225, 229 [2009]; Casey, 95 NY2d at 366-367; People v. Jones, 9 NY3d 259, 263 [2007]; Alejandro, 70 NY2d at 139).Unlawful Imprisonment in the Second DegreeA person is guilty of Unlawful Imprisonment in The Second Degree when he restrains another person (see PL §135.05). Restrain means to “restrict a person’s movements intentionally and unlawfully” so as to interfere with his liberty either by moving him from one place to another or confining him in either place “without consent” (PL §135.00[1]). “Without consent” means by “physical force, intimidation or deception” (PL §135.00[1][a]), or by “any means whatsoever” if the victim is a child less than sixteen and a “parent, guardian or other person…having lawful custody and control of him has not acquiesced in the movement or confinement” (id.).A custodial parent has a general right to control his child’s movements (see People v. Leonard, 19 NY3d 323, 328 [2012]). Indeed, under the statute, “consent” exists when a “parent, guardian or other person…having lawful control or custody” has “acquiesced in the movement or confinement” of a child (id., citing PL §135.00[1][b]). Nevertheless, in cases where “a defendant’s conduct is so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody,” it is legally possible for a custodial parent to kidnap his own child (id. at 328-329)1. Because the element of abduction for kidnapping encompasses the statutory definition of restraint (see PL §135.00[2]), it follows logically that a custodial parent likewise may unlawfully imprison his own child. Regardless, “not every parent who disciplines a child inappropriately-not even every parent who commits child abuse-becomes a kidnapper [when he] causes the child to move from place to place, or to remain stationary” (Leonard, 19 NY3d at 329). Neither does such parent become an unlawful imprisoner under such circumstances.Here, the information alleges that Defendant restrained his eight-year-old daughter on three occasions by locking her in a bedroom overnight and refusing to let her out to use the bathroom so that on one occasion she “was forced to go to the bathroom inside of the bedroom.” Notwithstanding whether Defendant’s alleged conduct may have been neglectful or even abusive, it is not “so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody” (id.). Because the facts alleged therefore do not establish that Defendant unlawfully restricted his daughter’s movements, the court dismisses the three counts of Unlawful Imprisonment in the Second Degree as jurisdictionally defective.Attempted Assault in the Third DegreeA person is guilty of Assault in the Third Degree when he intentionally causes physical injury to another person (see PL §120.00[1]). A person is guilty of an attempt to commit a crime when he engages in conduct which tends to effect the commission of such crime (see PL §110.00). To commit Attempted Assault in the Third Degree, a person must engage in conduct which comes “dangerously near” to an act which would constitute the crime (In re Wanji W, 277 AD2d 243 [2d Dept 2000]).The information alleges that “on September 23, 2017 at approximately 8:00 p.m., [L.I.] heard what sounded like a slapping noise and subsequently observed her brother, A.A., who is two years old, fall to the ground and cry. [L.I.] further states that she then observed [Defendant] walking towards his room away from her brother.” While for pleading purposes the People need not disprove every conceivable defense (see People v. Deegan, 69 NY2d 976, 979 [1987]; Barona, 19 Misc 3d at 3), conduct which is equally compatible with guilt or innocence will not supply reasonable cause (see People v. Carrasquillo, 54 NY2d 248, 254 [1981]; Barona, 19 Misc 3d at 3). Without more, the scant circumstantial facts alleged, even when viewed in the light most favorable to the People (see Barona, 19 Misc 3d at 3), do not prove that Defendant slapped A.A. That L.I. heard what sounded like a slap does not establish that a slap occurred, let alone that Defendant was the source of the sound. Many acts can produce a “slapping noise,” including clapping hands together. To conclude that the noise arose from Defendant making physical contact with A.A. is sheer speculation. That A.A. fell down and cried after L.I. heard the noise does not indicate that Defendant had physical contact with him since a two-year-old child may fall down and cry for many reasons, including being startled. Neither does Defendant’s walking away afterwards imply that he had physical contact with A.A.But even if the court could infer from the facts alleged that Defendant slapped A.A., attempted assault does not encompass “petty slaps, shoves [and] kicks…delivered out of hostility, meanness and similar motives” (People v. Henderson, 92 NY2d 677, 680 [1999], citing In the Matter of Philip A, 49 NY2d 198, 200 [1980] [internal citations omitted]). Here, there is no motive whatsoever for the alleged slap of A.A., much less any evidence of hostility or meanness. Notably, a parent may use physical force upon a child to the extent necessary to maintain discipline or promote welfare (see PL §35.10[1]). Further, a “petty slap” does not transform into something more serious simply because an adult inflicts it upon a child. Because the facts alleged do not support that Defendant intended to cause physical injury to A.A. (see In re Wanji W, 277 AD2d at 243), the court dismisses the charge of Attempted Assault in the Third Degree as jurisdictionally defective.Endangering the Welfare of a ChildAlthough Defendant did not move to dismiss the charge of Endangering the Welfare of a Child, the court reviews both counts for facial sufficiency pursuant to its independent obligation to ensure that it retains subject matter jurisdiction (see People v. Barber, 42 Misc 3d 1225[A], 2014 NY Slip Op 50193[U], 4 [Crim Ct, NY County 2014], citing People v. Martini, 36 Misc 3d 729, 731 [Crim Ct, Queens County 2012]).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 (see PL §260.10[1]).Since “each case is fact specific” (People v. Johnson, 95 NY2d 368, 373 [2000]), to determine the facial sufficiency of Endangering the Welfare of a Child, the court must analyze the allegations in the context of the whole incident (see People v. Hogle, 18 Misc 3d 715, 718-719 [Crim Ct, NY County 2007], citing People v. Tichenor, 89 NY2d 769, 776 [1997]). The court must examine the “confluence of events and circumstances” (People v. Hitchcock, 98 NY2d 586, 591 [2002]), including both a defendant’s acts and omissions (see Cowley v. People, 83 NY 464, 472 [1881]). Although to commit the offense a defendant need not perpetrate an affirmative act directed at a child (see Hitchcock, 98 NY2d at 591; Johnson, 95 NY2d at 371-372) or cause actual harm to a child (see Johnson, 95 NY2d at 371; see also People v. Duenas, 190 Misc 2d 801 [App Term, 2d Dept 2002]), his actions must be likely to cause harm to a child (see id.; Duenas, 190 Misc 2d at 803).Because the information does not allege facts which demonstrate that Defendant engaged in conduct likely to be injurious to A.A., the court dismisses one count of Endangering the Welfare of a Child as jurisdictionally defective. Conversely, the facts alleged that on three occasions Defendant locked eight-year-old L.I. in a bedroom overnight and refused to let her out to use the bathroom so that on one occasion she “was forced to go to the bathroom inside the bedroom,” when viewed in the light most favorable to the People (see Barona, 19 Misc 3d at 3), suffice to establish that Defendant knowingly acted in a manner likely to be injurious to her physical, mental or moral welfare (see In re JL, 41 Misc 3d 1223[A], 2013 NY Slip Op 51816[U], 2 [Fam Ct, Onondaga County 2013]). Accordingly, the court sustains the other count of Endangering the Welfare of a Child as facially sufficient.The foregoing constitutes the decision and order of this Court.Dated: April 26, 2018Kew Gardens, New York
