OPINION OF THE COURT
On February 16, 2007, Isaiah M., a “special needs” child who was then seven years old, was placed on the school minibus by his mother. The minibus had a seating capacity of 12 people, including the defendant, a school bus attendant responsible for ensuring the children’s safety. During the trip, Isaiah fell aslеep, did not get off the bus when it arrived at his school, and woke up some time later, alone, in the unfamiliar location where the bus was parked.
Legal and Factual Background
The People called six witnesses in support of their case. First, the People callеd Doreen Foy and Joseph Van Aken, both instructors with Pupil Transportation Professionals, a training center for school bus drivers and attendants, associated with the New York City Department of Education. Ms. Foy and Mr. Van Aken testified that each bus attеndant is trained to sit at the back of the bus, behind all of the children; to note the presence or absence of each child on a “trip sheet” given to them for that purpose;
Ms. Foy testified that she herself had trained the defendant. A copy of a certificate labeled “School Bus Escort Basic Training Program” issued to the defendant on August 1, 2004 was admitted into evidence as People’s exhibit 2.
The People then called Isaiah’s mother, Shirley M., who testified that, on the morning in question, she placed her child on the school minibus, a vehicle with a seating capacity of 12 people, in front of their residence in East Flatbush, to be driven to school in Canarsie, more than a mile away. She identified the defendant as having been Isaiah’s bus attendant on that date and for the entire school year. Later that day, Ms. M. received a call from the school informing her that her child had been left on the school bus, and retrieved Isaiah from the hospital where he had been taken for examination following the incident.
The People also called Agatha Salato, a paraprofessional specialist at Isaiah M.’s school, responsible for counting the children who leave the school bus, and for seeing that the younger children are escorted to the school cafeteria for breakfast. Ms. Sаlato testified that, on the date of the incident, Isaiah did not get off the bus, and that he was absent from his regular class where she assisted the classroom teacher.
Defendant did not call any witnesses, but, at the conclusion of the trial, defensе counsel argued that the People had failed to prove the crime of attempted endangering the welfare of a child beyond a reasonable doubt because the People failed to show
The Evidence is Sufficient to Establish Attempted Endangering the Welfare of a Child (Penal Law §§ 110.00, 260.10 [1]) Beyond a Reasonable Doubt
Penal Law § 260.10 (1), endangering the welfare of child, provides:
“A person is guilty of endangering the welfare of a child when:
“1. 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.”
Defendant is charged with attempting to endanger the welfare of a child, pursuant to Penal Law § 110.00, which requires an intent to commit a crime and conduct which tends to effect the commission of such crime. The term “knowingly” is further defined in Penal Law § 15.05 (2) as follows: “A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.”
Penal Law § 260.10 requires proof “that a person knowingly act. . . in a manner likely to be injurious to the physical, mental or moral welfare of a child.” (People v Cenat,
Defendant’s argument relies оn the theory that in order to prove knowledge, the People were required to show that the defendant committed an affirmative and intentional act directed at Isaiah M., knowing that this act would result in harm. As the Court of Appeals has held, hоwever, “Criminal liability for endangering the welfare of a child is imposed when a defendant engages in conduct knowing it will present a ‘ “likelihood” of harm to a child (i.e., with an awareness of the potential for
Thus, in People v Hitchcock (supra), the Court distinguished between two cases in which the defendants’ omissions — their failure to рrotect their children from the weapons they possessed in their respective homes — caused injury to a child in their care. Defendant Hitchcock, who kept several handguns at home, none under lock and key, and who had taught his 13-yeаr-old son to load a handgun, was charged with endangering the welfare of a child after his son accidentally shot and injured a friend. The Court of Appeals affirmed the conviction, holding that the defendant “knowingly possessed and stored his guns in a mannеr likely to be injurious to the welfare of. . . children.” (
Other courts have similarly upheld convictions under Penal Law § 260.10 where a defendant failed to provide adequate food, clothing and shelter to a child in his care (People v Scutt,
In this case, the undisputed evidence at trial established that Isaiah M. was one of at most 12 “special needs” children who had been in the defendant’s care every school day morning on the minibus since the beginning of that school year; that he boarded the minibus that morning, with the defendant’s help; and that he did not get off the minibus at his school.
The cases cited by defendant’s counsel are unavailing to his аrgument. In People v Simmons (supra), the Fourth Department held that the element of knowledge could not be proven where the defendant merely “should have known and been aware that [defendant’s] conduct would have been injurious.” (
Similarly, in People v Williams (supra), the defendant was accused of assaulting his wife in the presence of his children, and charged with assault and endangering the welfare of a child. There, the People could not prove the underlying assault charges, and therefore could not prove that, by this assault, the “Defendant . . . create[d] a likelihood of physical, mental or morаl injury to his child.” (
In People v Chase (supra), the court declined to find that a defendant who was driving while intoxicated had endangered the welfare of a child where the record failed to show that the defendant was driving in a dangerous manner, or endangered the child in any way. People v Vargas (supra), the last case cited by the defendant, merely restates the knowledge requirement under the statute, which we do not dispute.
We are aware that the court in People v Dalmage (NYLJ, May 1, 2001, at 20, col 3 [Crim Ct, Kings County]) dismissed a complaint alleging circumstances similar to those in our case. However, that court did nоt have the guidance of the subsequent Court of Appeals decision in People v Hitchcock (supra), which we believe to be controlling. Our case is easily distinguished from People v Dalmage by the testimony of Ms. Foy and Mr. Van Aken, who testified as to the training given to defendant. Indeed, Mr. Van Aken testified that he sрecifically advised defendant that her failure to awaken and remove a sleeping child would result in criminal liability. While his views, of course, are
We hold that a defendant who is entrusted with the temporary care of a seven-year-old child with special needs and who, being responsible for еnsuring that the child gets off the bus when the bus arrives at school, and being trained for that responsibility, nevertheless consciously fails to check the seats, knowingly acts in a manner likely to be injurious to the welfare of that child left asleep on the bus. While a mistake may sometimes just be a mistake, as argued by the defendant, this is not one of those times.
We therefore find the defendant guilty of attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10).
Notes
. A blank trip sheet was introduced into evidence as People’s exhibit 1.
. Since Isaiah testified as an unsworn witness, corroboration was necessary both to show that a crime had been committed, and that the defendant was linked to the crime. (CPL 60.20; People v Groff,
. The court suppressed the statement in view of Officer Vuckovic’s testimony that prior to giving the statement, defendant was neither free to leave, nor had she been given Miranda warnings. (People v Huntley,