DECISION AND ORDER The defendant, Slawomir Nicalek, is charged in a superceding information with one count of endangering the welfare of a child (Penal Law §260.10[1]), one count of public lewdness (Penal Law §245.00[a]) and one count of exposure of a person (Penal Law §245.01). Defendant moved to dismiss the original count of endangering the welfare of a child as facially insufficient on the ground that the age of the victim was never sufficiently established. The People responded to the defense motion with a superceding information and a response.For the reasons set forth below, defendant’s motion to dismiss the count of endangering the welfare of a child in the original complaint, not made facially sufficient by the superceding information, is granted and that count is dismissed in the superceding information.The factual portion of the superceding information states in relevant part that on or about March 7, 2018 at about 7:40 a.m., in the subway car at Centre Street and Chambers Street in the County and State of New York,I [Emill Comrie] observed the defendant on the subway at the above location with his exposed penis. I saw the defendant rapidly rubbing his exposed penis in an up and down motion.I observed the defendant engage in the above described conduct while sitting next to a female less than 17 years of age. I believed the female to be less than 17…based on her appearance as compared to my 12 year old daughter and my 15 year old niece: she was approximately five feet tall, wearing jeans and a jacket, her hair was pulled back in a braid, and I noticed that she wasn’t wearing any make-up. I also saw that the female was carrying a book bag with buttons and key chains on it. I recognized one of the key chains as one that I’ve seen my 12 year old daughter and her friends have on their book bags.A person is guilty of endangering the welfare of a child [in relevant part] when he or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. (Penal Law §260.10[1]). Defendant argues that the People did not establish the age of the victim as less than seventeen in the original complaint. The People did not state how Emill Comrie learned the age of the victim nor did the People allege that Emill Comrie had any other personal relationship with the victim. Had the People filed a copy of the victim’s birth certificate that would have been sufficient. People v. Gomez, 30 Misc3d 643, 647 (Crim Ct, Bx Cty 2010)(one of the victims observed in an alleyway wearing a sleeveless dress without socks or shoes was not sufficient to establish that she was under seventeen and another without a diaper was also not sufficient) Id. at 649. “The Court begins by noting that case law, while scant, fully supports the notion that some fact or combination of facts other than a date of birth can lead to a reasonable inference that a child is under the age of seventeen…[T]he allegation that a police officer observed a child ‘inside a crib’ wearing a ‘heavily soiled diaper’ supported the ‘logical inference that [the child] was younger than 17 years old.’ [citing Gomez, id]” People v. Abney, 49 Misc3d 1212[A](Crim Ct, NY Cty 2015)(the language in the DIR lead to the inference that the very small person referred to as a baby was an infant child and less than seventeen); People v. Bahadur, 41 AD3d 239 (1st Dept 2007), lv denied 9 NY3d 920 (2007)(a forensic dentist testified that the estimate of the victim’s age as less than seventeen was a ‘dental certainty’ based on the development of victim’s wisdom teeth).In the superceding information, the People attempt to establish that the victim was less than seventeen as Emill Comrie lists similarities to his 12 year old daughter and her friends and his 15 year old niece. The Court finds, however, that the People did not sufficiently establish the age of the victim as less than seventeen in the superceding information.Accordingly, defendant’s motion to dismiss the count of endangering the welfare of a child for facial insufficiency in the original complaint, not made facially sufficient by the superceding information, is granted and the count is dismissed in the superceding information.Defendant’s motion to suppress evidence of statements is granted to the extent of ordering a Huntley/Dunaway hearing. A Wade hearing is also granted.The People are reminded of their Brady obligations.The Sandoval application is reserved to the trial court.The foregoing constitutes the decision and order of the court.Dated: New York, New YorkMay 25, 2018
