67 Misc. 2d 107 | New York County Courts | 1971
Defendant appeals from Ms conviction of endangering the welfare of a child (Penal Law, § 260.10) after his plea of guilty thereto in the Village Police Court of Penn Yan, New York, on January 16,1971. He contends, inter alia, that the
In pertinent part the information reads as follows: ‘ ‘ That [defendant] did commit the crime of Endangering the Welfare of a Child in violation of Art. 260 Sec. 260.10 Sub. 2 of the Penal Law of the State of New York by wrongfully, unlawfully, willfully and knowingly Did commit the Crime of Endangering the Welfare of a Child: Defendant failed to properly supervise his child, in that one Raymond Dailey, age 14 years, was wandering about the Village of Penn Yan, New York on January 1, 1971, and in dang-er of becoming a juvenile delinquent. To Wit: This deponent observed the child Raymond Dailey loitering on the street at 3:45 on the morning of January 1, 1971, and when questioned by this deponent could give no reason for being out and away from home. Date of birth of said child 7-15-56. ’ ’
The requirement that a criminal information must state the crime charged and particular acts constituting that crime (Code Grim. Pro., § 145) is more than a technicality; it is a fundamental and basic principle of justice and fair dealing, as well as a rule of law. (People v. Grogan, 260 N. Y. 138; People v. Zambounis, 251 N. Y. 94.)
This well-settled rule of law illuminates the issue raised on this appeal.
Under subdivision 2 of section 260.10 of the Penal Law, 1 ‘ A person is guilty of endangering the welfare of a child when: * * * 2. Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an ‘ abused child, ’ a ‘ neglected child, ’ a ‘ juvenile delinquent ’ or a 1 person in need of supervision,’ as those terms are defined in articles ten and seven of the family court act.”
The criminal information here is singularly bare of any factual description from which one could conclude, or infer, that the subject child was ‘ ‘ endangered ’ ’ within the specified definitions of the Family Court Act. The information speaks of the ‘ ‘ danger of becoming a juvenile delinquent ’ ’ and in support thereof recites that the child was “wandering about ” and “loitering” in the early morning hours. Since the Family Court Act (§ 712) defines a “ juvenile delinquent ” as a person over seven and less than sixteen years of age who commits “ a crime ’ ’ it becomes apparent that an allegation of either a criminal act, an attempt to commit a criminal act, or at least some involvement in criminal misconduct on the part of the child would be a minimal requirement for an information which seeks
Inferences based upon inferences have always been suspect under our rules of evidence and can hardly satisfy the precision required to accuse one of criminal misconduct. The information here, resting as it does on speculation, is clearly insufficient. In passing, it may be noted that the instant information also fails to allege facts from which the child could be found to be a ‘1 person in need of supervision ’ ’ as defined by section 712 of the Family Court Act. The test mandated by the statute requires factual showing that the boy is a habitual truant or ‘ ‘ who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority ”. (Family Ct. Act, § 712, subd. [b].) The mere allegation of ‘ ‘ wandering ” or “ loitering ’ ’ is wholly insufficient to satisfy the statutory definition. In any event there would have to be more than a single isolated incident to support a determination of a “ need of supervision ”. (Cf. Matter of David W., 34 A D 2d 1100, affd. 28 N Y 2d 589; Matter of Bordone v. Allen F., 33 A D 2d 890; Matter of Richard W., 29 A D 2d 873.)
In this case the information fails to inform the accused, or the court, for that matter, in what specific way or manner the /accused parent failed to exercise reasonable supervisory diligence or control of the child. The information is conclusory and speculative. The omission of descriptive acts or conduct which would satisfy the clear definitions of the statutes involved is fatal and dictates that the judgment of conviction be set aside and information dismissed.
It should be noted that the appeal herein follows a plea of guilty. Ordinarily, a plea of guilty to a lesser degree of crime, or even to a hypothecated or nonexistent crime will foreclose defendant’s objections upon appeal as to the sufficiency of the criminal indictment or information (People v. Foster, 19 N Y 2d 150 [1967]; People v. Griffin, 7 N Y 2d 511). But this rule is applicable only where the defendant’s plea of guilty is knowingly and intelligently made (People v. Foster, supra) when
For the foregoing reasons, the information should be dismissed and the judgment of conviction set aside.