DECISION AND ORDER The defendant is charged with obstructing governmental administration in the second degree (PL §195.05) and endangering the welfare of a child (PL §§260.10[1]). He moves this court by Notice of Omnibus Motion and Affirmation filed March 11, 2019 to dismiss both charges as facially insufficient pursuant to CPL §§100.40 and 170.30. The defendant also moves for suppression of evidence and other relief. The People oppose by Affirmation dated March 27, 2019.The court has considered the parties’ submissions, the court file, and relevant law. For the reasons that follow, the motion to dismiss is granted as to obstructing governmental administration in the second degree and denied as to endangering the welfare of a child.The defendant’s motion to suppress is granted to the extent that a combined Huntley/Dunaway hearing is ordered. Sandoval/Ventimiglia issues are referred to the trial court. The People are reminded of their obligations under Brady and Rosario.THE MOTION TO DISMISS FOR FACIAL INSUFFICIENCYThe Parties’ ContentionsThe accusatory instrument in this case alleges, in relevant part:TPO#1Deponent [Police Officer Christian Martinez] states that [on or about December 19, 2018 at approximately 12:47 AM inside of 2 East 169th Street, Bronx County, New York], the defendant, after being handcuffed, did run away from officers, towards the precinct door.Deponent further states that when commanded to stop running, the defendant continued to flail his body until the defendant was brought down to the ground.TPO#2Deponent is informed by informant DET STEVEN A RAMUNNO of 44 PCT, Shield# 513, that [on or about December 19, 2018 at approximately 12:59 AM inside of 1410 Grand Concourse Apt# 2M, Bronx County, New York], informant observed four (4) children to be left inside the above location with no adult present.Deponent is further informed by informant that informant observed all four (4) children to be small in stature, be wearing child size clothing and have child like features.Deponent further states that the defendant stated in sum and substance YES. MY SON HE IS SEVEN YEARS OLD. NO ADULT AT HOME. THEY ARE IN THE HOUSE. I WENT TO THE STORE TO GET A COFFEE AND I WAS GOING RIGHT BACK. MY WIFES [sic] AT WORK. 1410 GRAND CONCOURSE. APT. 2. THERES [sic] MORE THAN ONE. 4 MONTHS, 2 AND 4.The People filed and served a supporting deposition signed by Detective Steven Ramunno on January 24, 2019. This deposition contains no additional factual allegations with respect to either charge.The defendant argues that the charge of obstructing governmental administration is facially insufficient because the complaint fails to establish that the defendant interfered with lawful police conduct; namely, that the police had a lawful basis upon which to detain the defendant. The defendant also contends that allegations of children left home alone, without particular facts establishing that harm was “likely,” are insufficient to make out the elements of endangering the welfare of a child.The People oppose. With respect to the obstructing charge, the People assert that the defendant was placed under arrest for an open warrant (though this information is not in the complaint), which should be sufficient to establish that the police were engaged in a lawful activity. As to the endangering charge, the People assert that the complaint need not specify some particular “likely” harm, but rather that the element is satisfied based on the allegations that the children were aged seven years, four years, two years, and four months. The People further claim that the charge is supported by the fact that the defendant did not mention the children to the arresting officer until well after being taken into custody (a fact also not alleged in the complaint).Facial Sufficiency GenerallyFacial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution (see People v. Alejandro, 70 NY2d 133, 139 [1987]; People v. Hall, 48 NY2d 927 [1979]). In order to be facially sufficient, an information, together with any supporting depositions, must: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL §100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged (see CPL §100.40[1][a] — [c]). Conclusory allegations are insufficient (see People v. Dumas, 68 NY2d 729 [1986]).A court reviewing an accusatory instrument for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them (CPL §§100.40 and 100.15; People v. Jackson, 18 NY3d 738, 747 [2012]; see also People v. Casey, 95 NY2d 354, 360 [2000]). However, “[f]acial sufficiency, by definition, limits the Court’s analysis to the four corners of the accusatory instrument” (People v. Williams, 21 Misc 3d 678, 684 [City Ct. Albany City 2008] citing People v. Thomas, 4 NY3d 143, 146 [2005]).While the burden is on the People to provide a prima facie case for the offenses charged in the accusatory instrument, this requirement “is not the same as the burden of proof beyond a reasonable doubt required at trial” (People v. Kalin, 12 NY3d 225, 230 [2009]). Rather, the accusatory instrument must “give an accused notice sufficient to prepare a defense” and be “adequately detailed to prevent a defendant from being tried twice for the same offense” (see id. at 230, internal citations and quotations omitted).When the factual portion of the information, together with any accompanying supporting deposition and viewed in the light most favorable to the People, fails to establish every element of the offense charged, the information is jurisdictionally defective and must be dismissed (see People v. Casey, 95 NY2d 354 [2000]; People v. Alejandro, 70 NY2d 133 [1987]).Obstructing Governmental AdministrationA person is guilty of obstructing governmental administration when he “intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act…” (PL §195.05). An essential element of this charge is that the “official function” with which the defendant allegedly interfered was lawfully authorized conduct (see People v. O’Connor, 257 NY 473 [1931]; People v. Richter, 265 AD 767 [1st Dept 1943]). Where the alleged official function is an arrest, it must be established that the arrest was authorized (People v. Vogel, 116 Misc 2d 332 [App Term, 9th & 10th Jud Dists 1982]).The People assert that as the defendant was placed under arrest for an outstanding warrant, the complaint need not allege further facts in order to meet their prima facie obligation. However, in reviewing an information for facial sufficiency, the court is limited to the factual allegations contained within the “four corners” of the instrument as well as any supporting depositions filed with the court (People v. Thomas, 4 NY3d 143, 146 [2005]). Accordingly, any additional information provided in the People’s opposition papers must be disregarded. Here, the instant complaint contains no reference to the defendant’s outstanding warrant; indeed, it contains no allegation that the defendant was under arrest at all. While the fact that the defendant was handcuffed may lead to a reasonable inference that he was in fact under arrest at the time, the complaint must still contain factual allegations showing that the arrest was lawful. As the complaint is devoid of any such allegations, the People have thus failed to establish this element element and therefore the complaint is facially insufficient as to count one.Based on the foregoing, the defendant’s motion to dismiss the charge of obstructing governmental administration in the second degree is granted.Endangering the Welfare of a ChildA person is guilty of endangering the welfare of a child under the charged subsection 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…” (PL §260.10[1]). Although the child need not suffer actual harm, harm must be likely to occur and not simply possible (People v. Johnson, 95 NY2d 368, 371 [2000] quoting People v. Simmons, 92 NY2d 829, 830 [1998]).The issue of whether leaving a child unattended is sufficient to make out endangering the welfare of a child has been discussed by a number of New York courts, who have taken varying approaches (see generally People v. Eury, 46 Misc 3d 1208(A) [Crim Ct, New York County 2015] [discussing different examples]). This conflict is evident from the case law cited by the parties in the instant matter. The People argue that a complaint is not required to specify that some particular harm is likely, and in doing so rely on People v. Eury (46 Misc 3d 1208[A] [Crim Ct, New York County 2015][leaving four young children alone for at least forty minutes was sufficient]), People v. Reyes (20 Misc 3d 1129[A] [Crim Ct, Kings County 2008][leaving a four-year-old alone for fifteen minutes was sufficient]), and People v. Watson (182 Misc 2d 644 [Crim Ct, Bronx County 1999][leaving a seven-year-old alone for an hour an a half was sufficient]).The defendant takes the position that the complaint must contain additional aggravating factors to establish a particular likely harm, relying on People v. Seward (173 Misc 2d 1020 [Mount Vernon City Ct 1997][leaving a six-year-old alone for an hour during the night, without more, was insufficient]) and People v. Lopez-Pierre (43 Misc 3d 1223[A] [Crim Ct, Bronx County 2014][leaving an eight-year-old alone for an unspecified amount of time was insufficient]).On its face, PL §260.10 does not specify an age or duration of time that would automatically trigger criminal liability. As a result, the facial sufficiency analysis for this offense must be fact-specific, taking into account not only the age of the children and the period during which they were left alone, but also any other circumstances pled in the information. Here, the court can rationally infer a rough timeline based on the factual allegations in the complaint: first, at some point prior to being taken into police custody, the defendant (by his own admission) left his residence to get coffee. In doing so, he left four children (aged seven years, four years, two years, and four months) unsupervised as his wife was at work. An unspecified amount of time after that, at approximately 12:47 AM, the defendant was handcuffed in police custody at the 44th precinct. Finally, ten minutes later at approximately 12: 59 AM, Detective Ramunno was present at 1410 Grand Concourse, Apt. # 2M, where he observed four children inside without adult supervision. Detective Ramunno identified the four as children based on their appearance, size, and dress.The defendant asserts that the reason he could not be at home supervising his four children is because he was in police custody at the time. It is undisputed that the defendant was in police custody at the time Detective Ramunno observed the children home alone; however, the defendant’s statement that he “went to the store to get coffee” is sufficient to establish that he left his residence of his own volition and not as the result of an arrest. The defendant’s statements constitute admissions, an exception to the hearsay rule, and thus satisfy the requirements of CPL §100.40(1)(c) (see People v. Casey, 9 NY2d 354 [2000]). Further, while the specific length of time the defendant was out may be a significant issue at trial, its absence from the complaint is not fatal to sufficiency of the charge at the pleading stage.In the instant matter, the most determinative factors are the children’s respective ages. None of the cases relied upon by either party involved a child as young as the four-month-old in this case. At this early time in an infant’s life, during which adult supervision and availability is crucial, it is easy to envision a scenario in which an infant could likely come to harm. This is even more so given that one other child is still a toddler, another only slightly older, and the eldest only seven, so even the older children are still of ages where they could not be held capable or responsible enough to attend to the needs of an infant.Based on the factual allegations in the complaint, this court finds that the People have made out a prima facie case for endangering the welfare of a child. Accordingly, the defendant’s motion to dismiss that charge is denied.THE DEFENDANT’S OMNIBUS MOTIONThe defendant’s motion to suppress statements is granted to the extent that a pre-trial Huntley/Dunaway hearing is ordered.The People are directed to notify the defendant of any and all specific instances of any prior uncharged criminal, vicious, or immoral conduct of which the People have knowledge and that they intend to use as impeachment evidence at trial within a period of three days, excluding Saturdays, Sundays, and holidays, prior to the commencement of jury selection (CPL §240.43). All issues concerning the extent of cross-examination of the defendant on any prior criminal convictions or bad acts, should he choose to testify at trial, are referred to the trial court (CPL §240.43; People v. Sandoval, 34 NY2d 371 [1974]). All issues concerning the People’s use in their direct case of any prior criminal convictions or bad acts are also referred to the trial court (People v. Ventimiglia, 2 NY2d 30 [1981]; People v. Molineux, 168 NY 264 [1901]).The People are reminded of their continuing obligation pursuant to Brady v. Maryland, (373 US 83 [1963]), and are directed to disclose such material to the defendant (see also People v. Vilardi, 76 NY2d 67 [1990]).The People are also reminded of their affirmative duty to preserve Rosario and discoverable material and to disclose such materials within the time period required by statute and by decisional law (see CPL §240.44 and CPL §240.45; see also People v. Handy, 20 NY3d 663 [2013]); People v. Rosario, 9 NY2d 286 [1961]).The defendant’s application for leave to file additional motions is denied subject to the provisions of CPL §25.20(3) regarding due diligence and good cause.This opinion constitutes the decision and order of this court.Dated: May 13, 2019Bronx, New York
