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March 11, 2014

Recent New York Decision On Endangering The Welfare Of A Minor

By Michael H. Joseph

Our Westchester County criminal defense lawyers keep up to date on the development of laws which are of interest to New York criminal defense attorneys. A charge of Endangering the Welfare of a Child is one of the most overcharged crimes in the State of New York. All too often overly aggressive police and prosecutors charge this crime without fully understanding what is required to violate the law. A recent decision from New York Supreme Court’s Appellate Term provides some guidance on the subject.

New York’s Penal Law §260.10 states that a person is guilty of endangering the welfare of a child when they knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. Under New York’s Penal Law §15.05 (2) a person acts knowingly with respect to conduct or a circumstance when they are aware that their conduct is of such nature or that such circumstance exists. These laws when read together mean that to be guilty of Endangering the Welfare of a Minor, a person who is accused on this crime must be aware that his conduct is likely to result in harm to a child, and that such harm was likely to occur, not that it was merely possible. This likely to occur standard is intended to preven prosecutions where possible harm is tenuous at best. The Court has recognized that conduct which merely has some risk of injury to a minor does not necessarily make it likely that an injury will occur. In the case before the Court, a football coach ran towards and knocked down an 11 year old from the other team who assaulted one of his players. The Court held that simply running towards the child and knocking him down was not likely to cause an injury. All too often conduct that is not criminal and exposes a child to some tangential risk is charged as criminal. Common examples of cases which our White Plains criminal defense lawyers have gotten dismissed include mere traffic violations with minors in the car.

An additional element of Endangering the Welfare of a child which must be proved is that the accused had actual knowledge that the consequences of their action would result injury. Even where actions are careless or a defendant should have known of the consequences of their actions is not enough to impose criminal liability.

Also common charges include where a parent uses corporeal punishment. Fortunately New York’s Penal Law §35.10 (1) provides an affirmative defense and states that a ” parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person may use physical force, but not deadly physical force when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person. We have gotten dismissals, including a recent one in Mount Vernon where the parent admitted to hitting a teenage child in the face, where the child was defiant and refused to do his school work and insisted on going out at an unsafe hour.

 
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