175 Misc. 2d 90 | New York Court of Claims | 1997
OPINION OF THE COURT
Claimant, Christopher Myers, a 28-year-old male, lived with Cindy Manon, an 18-year-old female, and her three children in a rented one-room cabin in Phoenicia, New York. On August 13,1992, Kenneth Manon, Cindy’s youngest child, a two-month-old boy, was found dead in his bassinet. An autopsy performed on Kenneth on August 14, 1992 made a finding of severe malnutrition, severe dehydration, healing injuries of the left humerus and of the 4th and 5th left ribs, and pulmonary edema (exhibit B). Kenneth weighed 6 pounds 141/2 ounces at birth, June 9, 1992 (see, exhibit 5). By July 28, 1992 his weight had increased to 9 pounds 1 ounce (see, exhibit 5; exhibit B, supporting deposition of physician’s assistant Alice Lewis), and on the date of his death, he weighed 6 pounds 8 ounces (see, exhibit B, autopsy report.)
At trial, on cross-examination, claimant testified that after being told that Kenneth died because he was underfed, he refused to answer any of the investigating officers’ questions for fear of incriminating himself. Claimant testified, "I pleaded the Fifth Amendment to protect myself.” A police officer may arrest a person for a crime "when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise” (CPL 140.10 [1] [b]).
It should also be noted that "evidence of a subsequent arraignment or indictment [constitutes] some proof of the presence of probable cause” (Broughton v State of New York, 37 NY2d 451, 458, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). As hereinabove stated, claimant was indicted by the Ulster County Grand Jury on September 29, 1992 on two felonies: violation of Penal Law § 125.15 (1), manslaughter in the second degree, and violation of Penal Law § 260.10 (1), endangering the welfare of a child, and, as a result of that indictment, claimant was again arrested on September 30, 1992, arraigned on that same date, and released on bail. It was the charges constituting that indictment that were dismissed by County Court on motion by claimant after inspection of the Grand Jury minutes on the grounds that the evidence before the Grand Jury was insufficient "as a matter of law to establish a[n in] loco parentis relationship between the defendant and the infant victim” (exhibit 4, at 3). The Appellate Division, Third Department, affirmed, stating as follows: "We affirm. The People seek to prove that defendant failed to provide adequate food, care and medical assistance for the child. Criminal liability cannot be premised on a failure to act, however, unless the party so charged has a legal duty to act (see, People v Spadaccini, 124 AD2d 859, 861). A person who has no familial relationship to a child ordinarily has no legal duty to provide for it, unless it can be shown that he or she has assumed all of the responsibilities incident to parenthood. That a party has taken some part in meeting the child’s daily needs is not enough; a 'full and complete * * * interest in the well-being and general welfare’ of the child is necessary, as is the intent to fully assume a parental role, with the concommitant [szc] obligations to support, educate, and care for the child on an ongoing basis [citation omitted]” (People v Myers, 201 AD2d, supra, at 856).
After reviewing the facts, the Appellate Division further stated: "County Court rightly found that the evidence presented to the Grand Jury fell far short of the showing necessary to support a conclusion that defendant stood in loco parentis to Kenneth” (People v Myers, supra, at 856).
When the arresting officers arrived at the scene they found a two-month-old child dead in his bassinet. An examination of the child’s surroundings revealed a filthy, smelly cabin strewn with rotten food, cat feces, dirty clothes, garbage, unwashed pots and pans and dishes. The body was found in a soiled bassinet located next to the bed used by his mother and claimant. The mother was 18 years old and had two other children, who were also found to be unclean and in dirty clothes, and who, on August 13, 1992, were removed from the home, as endangered children, by the Ulster County Child Protective Agency. A visual examination of the dead child clearly revealed, without the necessity of a medical opinion, an emaciated, undernourished physical appearance. Further investigation revealed that at the time of his death, Kenneth weighed 6
The police officers knew that claimant, who was 10 years older than his live-in girlfriend, the mother of the deceased child, had been living with her at the rented cabin since before Kenneth’s birth. The officers were also aware that claimant was not the child’s father but had contributed $105 per month to the household and had fed and cared for the children since moving in with their mother. Certainly, the officers had obtained enough information to deduce that although claimant had not taken on an official imprimatur of fatherhood, his past activities, which were closely connected to the deceased child’s welfare, constituted a reasonable basis for them to conclude
Unquestionably, to a reasonable person, allowing a two-month-old child to die of starvation and standing by and doing nothing sounds in criminal negligence (Penal Law § 125.10). In his testimony, Investigator Kovac stated that in addition to having considered Dr. Hubbard’s autopsy findings, based on his own investigation and discussions of these findings with the District Attorney before the arrest, he believed he had reasonable cause to arrest claimant even though claimant was not the child’s father. In determining probable cause, it should also be noted that criminally negligent homicide does not require that the perpetrator be consciously aware of the risk of his actions, an element necessary for a finding of manslaugh
Based on their investigation and review of these findings with the District Attorney, the arresting officers could not be said to have acted without reasonable cause simply because the legal requirement of a finding of in loco parentis was required to support a conviction for the crime charged. In analyzing the facts on this issue, we must remember, based on the autopsy report, that the arresting officers had information indicating that the deceased child had also been physically injured. The report stated that "[r]eactive new bone of left humerus and 4th and 5th left ribs signifies response to previous bony injury” (see, exhibit B). No explanation of these injuries was provided either by the mother or by claimant. Certainly, reasonable cause is heightened by these facts especially when claimant refused to answer questions in order to protect himself. If these injuries were caused by claimant, it follows that in loco parentis would not be a necessary element in establishing the crime of child abuse (see, People v Stanley, 135 AD2d 910, 911; Penal Law § 260.10 [1]). There is no question but that claimant held himself out as the deceased child’s mother’s "significant other”, which could also lead a reasonable person to believe that such commitment also caused to exist some duty to the mother’s children who shared with claimant a common household, at least for being aware of the starving child’s plight and take some action to avoid the inevitable consequences from nonaction. In analyzing reasonable cause, can we not, as reasonable people, say that nonaction, under the present circumstances, arises to a finding of behavior which would likely be injurious "to the physical * * * welfare of a child” (Penal Law § 260.10 [1]). In loco parentis need not be established for a conviction based on violation of said provision (see, People v Stanley, 135 AD2d, supra, at 911).
It is the finding of this court that the arresting officers acted in good faith when they arrested claimant, believing he had committed a felony, and that the evidence in the case established that probable cause existed for the officers to
. The autopsy report (at unnumbered page 2) lists Kenneth’s weight at the time of his death as 2,980 grams, which equates to 6 pounds 8 ounces.