John P. Cleary for plaintiff. Martin S. Cole for defendant.

JOHN S. LOCKMAN, J.

On October 9, 1970, shortly before 10:05 P.M., the defendant in the company of her boyfriend and two other youngsters proceeded by automobile to the vicinity of the St. Ignatius Retreat Home, Searingtown Road, Incorporated Village of North Hills, Nassau County, New York. The defendant was a passenger and understood that she was headed for the Christopher Morley Park which is located across the street from the St. Ignatius Retreat Home and has a large illuminated sign, with letters approximately 8 inches high, which identifies the park. As indicated, on the other side of the street the St. Ignatius Retreat Home has two pillars at its entrance with a bronze sign on each pillar with 4- to 5-inch letters. The sign is not illuminated. The vehicle in which the defendant was riding proceeded into the grounds of the retreat house and was stopped by a watchman, and the occupants including the defendant waited approximately 20 minutes for a policeman to arrive. The defendant never left the automobile.

The defendant is charged with violating section 1 of the ordinance prohibiting entry upon private property in the Incorporated Village of North Hills, which provides: "No person shall enter upon any privately owned piece, parcel or lot of real property in the Village of North Hills without the permission of the owner, lessee or occupant thereof. The failure of the person, so entering upon, or found to be on, such private property, to produce upon demand, the written permission of the owner, lessee or occupant to enter upon, or to be on, such real property, shall be and shall constitute presumptive evidence of the violation of this ordinance."

The defendant at the conclusion of the trial moves to dismiss on the grounds that the statute is unconstitutional. Since the ordinance is malum prohibtum, in all likelihood the ordinance is constitutional. (People v. Treen, 33 Misc 2d 571; People v. Attaldo, 44 Misc 2d 772; People v. Munoz, 9 N Y 2d 51; People v. Persce, 204 N.Y. 397; People v. Lewis, 186 Misc. 921, affd. 295 N.Y. 42; [20] People ex rel. Travis v. Thatcher, 190 Misc. 494.)

However, it is unnecessary to pass upon the constitutionality of the ordinance since there is another basis for dismissal.

The problem presented by the facts in this case brings up for review the primary elements that are required for criminal accountability and responsibility. It is only from an accused's voluntary overt acts that criminal responsibility can attach. An overt act or a specific omission to act must occur in order for the establishment of a criminal offense. (People v. Walrath, 279 App. Div. 56; Marks and Paperno, Criminal Law in New York, Under the Revised Penal Law, ch. 4, § 24, p. 44; Clark and Marshall Crimes, ch. 4, § 4.00.)

The physical element required has been designated as the actus reus. The mental element is of course better known as the mens rea. While the mental element may under certain circumstances not be required as in crimes that are designated as malum prohibitum, the actus reus is always necessary. It certainly cannot be held to be the intent of the Legislature to punish involuntary acts. (Hornstein v. Paramount Pictures, 22 Misc 2d 996, affd. 266 App. Div. 659, affd. 292 N.Y. 468; Louisville Ry. Co. v. Commonwealth, 130 Ky. 738, 742; 16 C. J. S., Constitutional Law, pp. 76-78; 22 C. J. S., Criminal Law, § 30.)

The principle which requires a voluntary act or omission to act had been codified in section 15.10 of the revised Penal Law, and reads as follows in part: "The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing" (italics supplied).

The Legislature may prescribe that an act is criminal without regard to the doer's intent or knowledge, but an involuntary act is not criminal (with certain exceptions such as involuntary acts resulting from voluntary intoxication).

In the case at bar, the People have failed to establish any act on the part of the defendant. She merely was a passenger in a vehicle. Any action taken by the vehicle was caused and guided by the driver thereof and not by the defendant. If the defendant were to be held guilty under these circumstances, it would dictate that she would be guilty if she had been unconscious or asleep at the time or even if she had been a prisoner in the automobile. There are many situations which can be envisioned and in which the trespass statute in question would be improperly applied to an involuntary act. One might conceive [21] of a driver losing control of a vehicle through mechanical failure and the vehicle proceeding onto private property which is the subject of a trespass.

Although the court need not pass on the question, it might very well be proper to hold the driver responsible for his act even though he was under the mistaken belief that he was on his way to Christopher Morley Park. The Legislature has provided statutes which make mistakes of fact or lack of knowledge no excuse in a criminal action. However, if the driver had been a defendant, the People could have established an act on the part of the defendant driver, to wit, turning his vehicle into the private property.

In the case of the defendant now before the court, however, the very first and essential element in criminal responsibility is missing, an overt voluntary act or omission to act and, accordingly, the defendant is found not guilty.

[824] Cardona, P.J., Carpinello, Rose and Lahtinen, JJ., concur.

Mercure, J.

In December 1994, defendant fatally shot his wife (hereinafter the victim) in the head with a .22 caliber rifle while she was in bed at their home in the Town of Altona, Clinton County. Defendant contacted emergency services and told police officers arriving at the scene that he shot the victim after an argument over her infidelity. Thereafter, defendant was charged in a two-count indictment with murder in the second degree and criminal possession of a weapon in the third degree. Following a jury trial, defendant was convicted as charged and sentenced to concurrent prison terms aggregating 25 years to life. Defendant appeals and we now affirm.

In support of his defense that he was sleepwalking when he shot the victim and, therefore, lacked the intent to kill her, defendant sought various evaluations, including a sleep evaluation. He asserts that County Court erred in denying his request pursuant to County Law § 722-c for the sleep evaluation, an expert to interpret the results of that evaluation and a neuropsychologist. In order to have prevailed on his motion for expert services, defendant was required to show that the services requested were necessary to the defense and, because the compensation for the services would exceed $300, extraordinary circumstances (see People v Dove, 287 AD2d 806, 807 [2001]; People v Lane, 195 AD2d 876, 878 [1993], lv denied 82 NY2d 850 [1993]).^[*] In connection with defendant's motion, one of two psychiatrists involved in the case on defendant's behalf indicated that defendant was in a state of psychological automatism at the time of the shooting, but that the requested additional services were necessary to clarify whether he was in that state due to a psychotic episode or a sleepwalking episode.

The People, however, did not dispute the type of unconscious automatism that defendant may have experienced at the time of the shooting or that he suffered from a sleep disorder; instead, the People sought to prove that defendant was entirely conscious and acting intentionally when he shot the victim and that he merely fabricated amnesia attributable to an unconscious [822] state. Given the testimony of another of his psychiatric experts, Stuart Kleinman, that defendant was in a state of automatism at the time of the attack, we conclude that defendant was fully able to challenge the People's assertions and that County Court's denial of his application for additional services did not constitute an abuse of discretion or in any way impair his right to present an adequate defense (see People v Dove, supra at 807). Moreover, County Court did not deprive defendant of the assistance of a psychiatrist or prevent him from confronting the witnesses against him by denying defendant's request for an additional adjournment when he had not received the formal reports of Kleinman or the People's rebuttal witness prior to the start of trial. Defendant received both reports prior to the close of the People's case and was able to thoroughly examine both witnesses regarding their opinions of defendant's state of mind at the time of the shooting (see Matter of Hasan R., 177 AD2d 817, 817 [1991]; cf. People v Rodriguez, 6 AD3d 814, 816-817 [2004]).

Also unpersuasive is defendant's argument that statements he made to police officers about the circumstances of the shooting should have been suppressed. Prior to giving defendant Miranda warnings, a police officer, arriving on the scene with his gun drawn, immediately asked defendant, "What happened?" When defendant responded that he had been in an argument with the victim and he hoped that she was alright, the officer asked where the victim and children were in the house. The officer indicated that he knew one person in the residence was injured and that he was proceeding with caution to prevent further injury to anyone else. Because the officer's investigatory questions were made to clarify the nature of the volatile and dangerous situation confronted, as well as to locate the victim so that medical help could be rendered, defendant's statements were not the product of a custodial interrogation designed to coerce a statement and County Court properly declined to suppress them (see People v Huffman, 41 NY2d 29, 33-34 [1976]; People v Prue, 8 AD3d 894, 897 [2004], lv denied 3 NY3d 680 [2004]; see generally People v Warren, 300 AD2d 692, 693-694 [2002], lv denied 99 NY2d 621 [2003]). Similarly, defendant's brief silence and head nods after being read Miranda rights several times, coupled with his failure to request counsel when prompted by police officers and readily answering the questions posed by the officers at the crime scene and police station, cannot be said to have signaled an invocation of his right to remain silent (see People v Nunez, 176 AD2d 70, 72 [1992], affd 80 NY2d 858 [1992]; see also People v Carrion, 277 AD2d 480, 481 [2000], lv denied 96 NY2d 757 [2001]). Thus, County Court [823] properly admitted his statements, made after receiving Miranda warnings, that he grabbed his rifle from behind the bedroom door, retrieved ammunition from the medicine cabinet, loaded the weapon with one round and shot the victim in the head after she revealed that she had been unfaithful.

Finally, we reject defendant's assertion that he was denied the effective assistance of counsel when County Court denied defense counsel's motion to withdraw from representation after counsel was required to testify at a pretrial Huntley hearing. At the Huntley hearing, police officer Francis Peryea testified that he did not hear any other officers give defendant Miranda warnings, noting that he was not wearing his hearing aid on the night of the incident. Significantly, Peryea also stated that he never told defense counsel that he heard another officer administer Miranda warnings. Because this testimony contradicted defense counsel's handwritten notes, the People called counsel to testify regarding the accuracy of the notes, over counsel's objection. After testifying that his notes were inaccurate due to a misunderstanding and that Peryea told him at a later date that he never heard defendant receive Miranda warnings, defense counsel moved to withdraw from representation, which motion was denied. Defendant asserts that this determination denied him of his right to conflict-free assistance. We disagree.

After undertaking employment, an attorney must withdraw from representation upon learning that he or she "may be called as a witness on a significant issue other than on behalf of the client . . . [and] it is apparent that the testimony is or may be prejudicial to the client" (Code of Professional Responsibility DR 5-102 [d] [22 NYCRR 1200.21 (d)] [emphasis added]; see People v Berroa, 99 NY2d 134, 139-140 [2002]). Here, the People's purpose in calling defense counsel to testify evidently was to impeach Peryea's credibility. Defense counsel's testimony, however, only confirmed Peryea's statement that he did not hear the other officers give defendant his Miranda warnings, thereby strengthening defendant's argument that his statements should be suppressed. Counsel's testimony was not prejudicial to defendant or against defendant's interest (cf. People v Lewis, 2 NY3d 224, 228-229 [2004]; People v Berroa, supra at 142). Accordingly, under the particular circumstances of this case, it cannot be said that defendant did not receive either meaningful representation or conflict-free assistance of counsel or that County Court erred in denying counsel's motion to withdraw from representation.

We have considered defendant's remaining arguments and conclude that they are either unpreserved or lacking in merit.

Ordered that the judgment is affirmed.

[*] We note that County Law § 722-c has since been amended, effective January 1, 2004, to provide that a defendant need demonstrate extraordinary circumstances only when the compensation will exceed $1,000 (see L 2003, ch 62, part J, § 3).

Present—Smith, J.P., Carni, Pine and Gorski, JJ.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, the indictment is dismissed, and the matter is remitted to Ontario County Court for proceedings pursuant to CPL 470.45.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminally negligent homicide (Penal Law § 125.10), defendant contends that the evidence is legally insufficient to support the conviction. We agree. The evidence establishes that defendant and the victim, whom he first met on the day she died, used cocaine throughout that day. While defendant was driving the victim to her mother's home in a trailer park, he observed her inject herself with heroin, which she had obtained without his assistance. Upon arriving at the trailer park, defendant was unable to wake the victim in order to ascertain her mother's address within the trailer park, at which time he removed her from his vehicle and left her on a lawn inside the trailer park. Although the victim was breathing and making noises at the time defendant left her there, she was found unconscious several hours later and died within a short time after being hospitalized.

Defendant was acquitted of manslaughter in the second degree (Penal Law § 125.15 [1]) but convicted of the lesser included offense of criminally negligent homicide. "The question on this appeal is therefore whether, when viewed in the light most favorable to the People, the evidence adduced at trial showed that [defendant's] conduct constituted `not only a failure [1381] to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it' . . . Measured by this standard, the evidence falls short" (People v Cabrera, 10 NY3d 370, 378 [2008], quoting People v Boutin, 75 NY2d 692, 696 [1990]). We agree with defendant that the evidence failed to establish that his acts in any way caused the death of the victim. Defendant did not procure or inject the drugs that caused the death of the victim, nor did he place her in a location that made her less likely to obtain medical assistance. There is no evidence that removing the victim from the vehicle or leaving her outside contributed to her death. Consequently, "defendant's actions were not a `sufficiently direct cause' of [the victim's] death to warrant the imposition of criminal liability" (People v Bianco, 67 AD3d 1417, 1419 [2009], quoting People v Kibbe, 35 NY2d 407, 413 [1974]).

Further, although "[t]he Penal Law provides that criminal liability may be based on an omission . . . , which is defined as the failure to perform a legally imposed duty" (People v Steinberg, 79 NY2d 673, 680 [1992]; see Penal Law § 15.00 [3]; § 15.05), no such omission occurred here. "Criminal liability cannot be premised on a failure to act . . . , unless the party so charged has a legal duty to act" (People v Myers, 201 AD2d 855, 856 [1994]; see People v Carroll, 244 AD2d 104, 106 [1998], affd 93 NY2d 564 [1999]). Inasmuch as the People do not contend that defendant had any duty to provide care for the victim and, indeed, they presented no evidence of such a duty (see Myers, 201 AD2d 855, 856-857 [1994]; cf. People v Manon, 226 AD2d 774, 776 [1996], lv denied 88 NY2d 1022 [1996]), there is no basis upon which to find defendant liable for a failure to act. We therefore reverse the judgment of conviction, dismiss the indictment, and remit the matter to County Court for proceedings pursuant to CPL 470.45.

We need not review defendant's remaining contentions in light of our determination.

[645] Don F. Rowley, Verplanck, for defendant.

Robert T. Johnson, District Attorney of Bronx County (Gina Aiello of counsel), for plaintiff.

OPINION OF THE COURT

DIANE KIESEL, J.

The defendant, Alfred Watson, is charged in a criminal court information with endangering the welfare of a child in violation of Penal Law § 260.10 (1). It is alleged that the defendant left a seven-year-old child alone in a locked apartment for approximately 2½ hours. The defendant now moves this court for an order (1) dismissing the information as facially insufficient or (2) dismissing the information in the interest of justice or (3) dismissing the information on the ground he has been denied his right to a speedy trial, (4) directing the People to provide a bill of particulars and discovery, and (5) granting hearings for the purpose of determining whether to suppress statements he allegedly made to law enforcement officers and to suppress evidence recovered from him.

FACIAL INSUFFICIENCY

An accusatory instrument upon which the defendant may be held for trial "must allege `facts of an evidentiary character' (CPL 100.15 [3]) demonstrating `reasonable cause' to believe the defendant committed the crime charged (CPL 100.40 [4] [b])." (People v Dumas, 68 NY2d 729, 731 [1986].) Further, a valid criminal court information must contain nonhearsay factual allegations which, if true, "establish * * * every element of the offense charged and the defendant's commission thereof." (CPL 100.40 [1] [c].) This is a nonwaivable jurisdictional requirement. (People v Case, 42 NY2d 98, 99 [1977].)

The accusatory instrument was converted to an information by the filing and serving of a corroborating affidavit signed by the complaining witness, a seven-year-old child, and a voir dire conducted by the prosecutor with the same child. It states that on or about January 20, 1999, at approximately 6:30 P.M. in Bronx County:

"[the child complainant] was left alone in a locked apartment by defendant for approximately two and one-half hours, from 4:00 p.m. until deponent [a police officer] arrived at the apartment at approximately 6:30 p.m.

"Deponent states that defendant stated in sum and substance: I LEFT HER ALONE AT ABOUT FOUR O'CLOCK; I THOUGHT HER BROTHER WOULD BE THERE.

[646] "Deponent is informed by informant [the child] that informant was scared while alone in the apartment."

Endangering the welfare of a child occurs when a person "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." (Penal Law § 260.10 [1].) No injury or actual harm need result from the accused's actions for criminal liability to be imposed. (People v Simmons, 92 NY2d 829 [1998]; People v Cenat, 176 Misc 2d 39, 42-43 [Crim Ct, Kings County 1997]; People v Cruz, 152 Misc 2d 436 [Crim Ct, NY County 1991].)

The defendant asserts he cannot be held criminally liable for allegedly leaving the complainant child home alone because he had no parental duty to the child. Instead, the defendant argues that he merely agreed to provide transportation to and from school for the child and, therefore, had no other responsibilities to her. Further, the defendant contends the information is factually incorrect because, according to his version of events, the child was left unsupervised for only 16 minutes.

The defendant's argument falls short of its intended mark for several reasons. First, the defendant is not charged with subdivision (2) of the child endangering statute, which specifically requires a parental, custodial or legally recognizable relationship between a defendant and a child complainant. (See, Penal Law § 260.10 [2].) Subdivision (1) requires no such relationship. (See, Penal Law § 260.10 [1].) Therefore, under the subdivision with which the defendant is charged, his argument is valid only if leaving a child home alone is considered an act of omission, rather than an affirmative act.

In essence, what the defendant asserts is that the endangering charge is based on his alleged failure to exercise proper supervision over the complainant by leaving her home alone. Failure to act may give rise to criminal liability if a defendant has a legal duty to his victim. (Penal Law § 15.00 [3]; People v Lilly, 71 AD2d 393 [4th Dept 1979].) Courts have determined a duty of care extends from biological parent to child (Matter of Lynn, NYLJ, Sept. 2, 1999, at 34, col 3 [Sur Ct, Westchester County]), stepparent to child (People v Carroll, 93 NY2d 564 [1999]), and paid daycare worker to child (People v Wong, 81 NY2d 600 [1993]).

The defendant asserts no such duty existed between himself and the complainant because he is unrelated to the child and had agreed to do no more than transport her from school. "Defendant had agreed to provide transportation for the complainant to and from her school and specifically advised the parent [647] charged with the legal care and custody of the complainant. In effect, his duty and responsibilities were that of a school bus driver." (Defendant's motion, at 3.)

This court is of the opinion, however, that leaving a child alone is an act, not an omission. Therefore, no duty need exist on the part of the actor to the victim to impose criminal liability for behavior that rises to the level of endangering. In cases where courts have required some relationship or duty on the part of the defendant towards the complainant to sustain a charge of endangering under Penal Law § 260.10 (1), the behavior at issue constituted acts of omission. Thus, in People v Goddard (206 AD2d 653, 655 [3d Dept 1994]), the Court found no criminal liability where a "casual babysitter" was unaware a chronically ill child had not received his medication and was suffering from dehydration, and thus failed to adequately care for him. Similarly, in People v Myers (201 AD2d 855, 856 [3d Dept 1994]), the Court held that absent assuming "all of the responsibilities incident to parenthood" a defendant could not be found criminally liable under Penal Law § 260.10 (1) for failure to provide adequate food, medical care or assistance for a child who ultimately died.

In a subsequent civil action for false arrest brought by the Myers defendant (the boyfriend of the deceased child's mother) following the dismissal of the criminal charges against him, Myers asserted the police knew he was not the child's natural father. Therefore, he argued, they could not have assumed he was acting in loco parentis and was in any way responsible for the neglect that led to the child's death. (Myers v State of New York, 175 Misc 2d 90 [Ct Cl 1997].) Accordingly, he contended there was no probable cause for his arrest. (Supra.)

The Court of Claims, in addressing that argument under Penal Law § 260.10 (1), disagreed. Because the death resulted from acts of omission, the court looked beyond the mere fact of biological fatherhood to outward indicia of a duty from Myers to the child. It determined that such duty existed because, inter alia, Myers lived with the mother and the child as a family and contributed financially to the household. Accordingly, the court held that sufficient probable cause existed to support Myers' arrest. (Myers v State of New York, 175 Misc 2d, supra, at 96-97.) And, in further addressing the duty argument, the court noted, in dicta, that signs of affirmative physical abuse were also observed on the child which provided further probable cause for arrest even in the absence of any parental duty [648] on the part of Myers. "[T]he arresting officers had information indicating that the deceased child had also been physically injured * * * No explanation of these injuries was provided either by the mother or by claimant. Certainly, reasonable cause is heightened by these facts * * * 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])." (Myers v State of New York, 175 Misc 2d, at 96.)

The allegation here is that a young child was left home alone. The extent to which such conduct is covered by the endangering statute has been the subject of considerable discussion by the criminal courts. (See, People v Cenat, 176 Misc 2d 39, supra, and discussion therein.) Some courts have been reluctant to impose liability when a young child is left alone for a brief time, disparaging the conduct as "bad parenting," but stopping short of finding it criminal. (See, People v Seward, 173 Misc 2d 1020, 1021 [Mt. Vernon City Ct 1997].) Despite the divergence in judicial views on the matter this court reasonably can imagine a wide range of dangers that might befall a scared, seven-year-old child left unattended for 2½ hours. Accordingly, the information here is legally sufficient.

Although this information is legally sufficient, it is not inconceivable that a trier of fact might be unwilling to find the defendant criminally responsible for leaving a child unsupervised in a seemingly safe home for this period of time. But the defendant's assertions that he thought the complainant's brother would be there, or that he left the child alone a mere 16 minutes rather than 2½ hours, are factual assertions that are best left for trial. They are not relevant in a legal sufficiency motion. (People v Mantley, NYLJ, June 2, 1994, at 30, col 4 [Crim Ct, Richmond County].) Accordingly, the defendant's motion to dismiss for facial insufficiency is denied.

SPEEDY TRIAL

Turning then to the defendant's contention that his right to a speedy trial has been violated, it is without dispute that the People must answer ready for trial within the time prescribed by CPL 30.30 (1), which runs from the commencement of the criminal action. This commencement refers to the filing of the first accusatory instrument (see, CPL 1.20 [17]; People v Lomax, 50 NY2d 351 [1980]).

Here, the action commenced for speedy trial purposes on January 21, 1999, when the defendant was arraigned. As the [649] charge faced by the defendant carries the potential of imprisonment of more than three months, the People have 90 chargeable days within which to communicate their readiness for trial under CPL 30.30 (1) (b).

The court will address each adjournment from the commencement of the action on January 21, 1999 through July 7, 1999, the last adjournment period challenged by the defense. (See, People v Vidal, 180 AD2d 447, 449 [1st Dept 1992], lv denied 80 NY2d 839 [1992]; People v Cepeda, NYLJ, May 21, 1997, at 25, col 1 [App Term, 1st Dept].)

January 21, 1999 through February 2, 1999

As indicated above, the defendant appeared at the arraignment on January 21, 1999. The matter was adjourned to February 2, 1999 for the People to provide a corroborating affidavit signed by the child, and a voir dire of the child. The People concede that this 12-day period is chargeable to them.

February 2, 1999 through March 2, 1999

The People were not ready on February 2, 1999, and requested a two-week adjournment in order to file the voir dire. The matter was adjourned to March 2, 1999. The People are charged "with the time beyond the date to which they had requested an adjournment, absent defense counsel's express consent or the People's statement of readiness." (People v David, 253 AD2d 642, 644 [1st Dept 1998].) The People concede that 28 days are chargeable to them for this adjournment period.

March 2, 1999 through April 29, 1999

On March 2, 1999, the voir dire was filed and served, the accusatory instrument was deemed an information, and the People declared their readiness for trial. A motion schedule was set requiring the defendant to file any motions by April 5, 1999. The matter was adjourned to April 29, 1999 for the People's response and for the decision of the court. Discovery was to be provided by March 15, 1999. The period is not chargeable to the People pursuant to CPL 30.30 (4) (a).

April 29, 1999 through May 14, 1999

The matter was adjourned from April 29, 1999 to May 14, 1999 for a Huntley hearing and for discovery. The period is not chargeable to the People as they are entitled to a reasonable time to prepare for the hearing. (People v David, supra, at 645; [650] People ex rel. Mayfield v McGrane, 234 AD2d 88, 89 [1st Dept 1996], lv denied 89 NY2d 814 [1997]; People v Green, 90 AD2d 705 [1st Dept 1982], lv denied 58 NY2d 784 [1982].)

May 14, 1999 through July 7, 1999

On May 14, 1999, the People were not ready for the hearing, and had not provided the discovery. The defendant, however, requested a motion schedule, which was set on this date, requiring the defense to file any additional motions by June 11, 1999. The matter was adjourned to July 7, 1999 for the People's response and the court's decision. The People concede that because they requested a one-week adjournment, seven days are chargeable to them for this period. It is the finding of this court, however, that the entire period is excludable pursuant to CPL 30.30 (4) (a) notwithstanding the fact that the People were not ready (cf., People v Brown, 195 AD2d 310 [1st Dept 1993], lv denied 82 NY2d 891 [1993]). The period is excludable even though the People incorrectly conceded that seven days are chargeable. (See, People v Ali, 209 AD2d 227 [1st Dept 1994], lv denied 85 NY2d 905 [1995].)

Conclusion

Accordingly, as only 40 chargeable days have elapsed since the commencement of the instant action, the defendant has not been denied his right to a speedy trial pursuant to CPL 30.30, and his motion to dismiss is denied.

CLAYTON

Even where there is no legal basis for dismissal of a criminal action, as there is not in this case, the court in its discretion may dismiss the action in the furtherance of justice and fairness (CPL 170.40 [1]; People v Clayton, 41 AD2d 204, 207-208 [2d Dept 1973]). The use of this remedy depends solely upon the justice to be served by dismissal, rather than the legal or factual merits of the case or the guilt or innocence of the defendant (People v Clayton, supra, at 206; People v Cohen, 112 Misc 2d 377, 380 [Crim Ct, Kings County 1981]). A Clayton motion should be granted only where a defendant has demonstrated by a preponderance of the credible evidence that a compelling reason exists to warrant dismissal in the interest of justice. Where the defendant does not meet this burden, the court may summarily deny the motion (People v Schlessel, 104 AD2d 501, 502 [2d Dept 1984]). The court, to the extent applicable, must examine and consider the merits of the defendant's application [651] in light of the factors enumerated in CPL 170.40 (1) (a) through (j), and balance the interests of the defendant, the complainant and the community (People v Rickert, 58 NY2d 122, 127 [1983]; People v Belkota, 50 AD2d 118, 120 [4th Dept 1975]).

In support of his motion to dismiss, the defendant discusses the factors set forth in CPL 170.40. It is the defendant's contention that for the past two years he has brought the child complainant to her home after school. Once at the child's home, her brother would assume responsibility for her supervision until the child's mother returned from work. The defendant alleges that on the day in question he only agreed to pick the child up from school and to bring her home. Upon discovering that the child's brother was not at home, he remained with the child until approximately 6:50 P.M. or 7:00 P.M., when he had to leave due to other obligations. The People contend that the defendant has failed to demonstrate the existence of any compelling factor, consideration or circumstance that would justify the dismissal of the action in the furtherance of justice.

The court's application of the factors set forth in CPL 170.40 (1) (a) through (j) is as follows:

(a) Seriousness of the offense

It is obvious that the offense charged is inherently serious.

(b) Extent of harm caused by the defendant

Although the extent of harm caused by the defendant's actions consisted, in this instance, of an allegation that the child was merely scared, it is reasonably foreseeable that extreme harm could come to a young child who is left alone at home (e.g., accidents, fires, intruders).

(c) Evidence of guilt

Sufficient evidence exists to form a strong case against the defendant. The defendant has admitted that he left the child alone at home.

(d) History, character and condition of the defendant

Although the various personal background factors enumerated by the defendant may be considered in mitigation upon imposition of sentence, they do not rise to the level of requiring the court to act favorably on the defendant's request to dismiss. Moreover, the fact that the defendant does not have a prior criminal record, standing alone, does not warrant the relief sought. (See, People v Crespo, 244 AD2d 563, 564 [2d Dept 1997], lv denied 91 NY2d 925 [1998].)

[652] (e) Exceptionally serious misconduct of law enforcement personnel

The defense alleges that the charge is partially based on the false allegation, by the child's father, that the defendant is the boyfriend of the child's mother. The defendant also asserts that the time frame alleged in the information is inaccurate. Such allegations do not constitute exceptionally serious misconduct of law enforcement personnel warranting the relief sought by the defendant.

(f) The purpose and effect of imposing a sentence authorized for the offense upon the defendant

Among the purposes of imposing a sentence upon a defendant who is convicted of a crime is deterrence. The deterrence is aimed at the defendant and at the public at large. In the event that a dismissal is granted, the defendant, or any other person, may think it acceptable to leave small children at home without proper supervision. The effect of imposing a sentence is to inform the public that the conduct engaged in by the defendant will not be tolerated.

(g) The impact of dismissal on the safety or welfare of the community

The safety and welfare of young children in the community will be affected by a dismissal of the charges. As noted above, without punishment others may disregard the importance of providing proper supervision for children.

(h) The impact of dismissal upon the confidence of the public in the criminal justice system

A dismissal of these charges would cause the public to lose confidence in the criminal justice system. The public would view the system as unconcerned or cavalier about the welfare of children.

(i) Attitude of the victim with respect to the motion

The victim in this case is a small child and the assertion in the complaint is that the alleged conduct of the defendant left her scared.

[653] (j) Any other relevant factor which demonstrates that a conviction would serve no useful purpose

None.

After full consideration of all of the arguments offered by the defendant in his moving papers, the letters submitted on the defendant's behalf, and the relevant criteria, the court does not find any compelling factor, consideration or circumstance that clearly demonstrates that conviction or prosecution of the defendant would result in an injustice. It would, therefore, be an inappropriate exercise of the court's discretion to dismiss the accusatory instrument in the furtherance of justice. Moreover, the issues raised by the defendant in his moving papers present multiple factual questions requiring resolution at trial (People v Litman, 99 AD2d 573, 574 [3d Dept 1984]; People v Prunty, 101 Misc 2d 163, 167 [Crim Ct, Queens County 1979]).

The defendant's motion to dismiss in the furtherance of justice is, therefore, denied.

BILL OF PARTICULARS DISCOVERY AND INSPECTION STATEMENTS

The defendant's motion for a court-ordered bill of particulars and discovery and inspection is denied. The People have sufficiently responded to the defendant's request for a bill of particulars and demand to produce. On consent of the People, the court has already granted a Huntley hearing.

PHYSICAL EVIDENCE

The defendant's motion for the suppression of physical evidence is denied in that the defendant has failed to set forth any factual allegations in support of the application. (People v Mendoza, 82 NY2d 415 [1993].) "Defendant had the burden of describing the circumstances surrounding his arrest and the details of the supposedly improper police conduct. He failed to meet that burden [citations omitted]." (People v Seda, 198 AD2d 98 [1st Dept 1993], lv denied 82 NY2d 930 [1994]; see also, People v Graham, 258 AD2d 387 [1st Dept 1999], lv denied 93 NY2d 899 [1999].)

Accordingly, the defendant's motion is denied in all respects.

Lemole, McCarthy, Murphy & Associates, Staten Island (Paul A. Lemole of counsel), for appellants.

Robert M. Morgenthau, District Attorney of New York County, New York City (Mary C. Farrington and James M. McGuire of counsel), for respondent.

Chief Judge KAYE and Judges SIMONS, HANCOCK, JR., and SMITH concur with Judge TITONE; Judge BELLACOSA dissents and votes to affirm in another opinion.

[603] TITONE, J.

Defendants Eugene Wong and Mary Wong were charged [604] with homicide and endangering the welfare of a child as a result of the death of a three-month-old infant who had been entrusted to their care. There was evidence at trial that both defendants were continuously present in the couple's apartment and that one of them had shaken the infant violently enough to produce fatal injuries. However, because neither defendant gave a complete account of what had occurred and, apart from the Wongs' three-year-old son, there were no other witnesses, the People were unable to prove which defendant had administered the fatal shaking. The issue before us on this appeal from the judgment convicting both defendants of second degree manslaughter and endangering the welfare of a child is whether the People's case, as submitted to the jury, provided a sufficient factual basis for holding the defendant who had not shaken the infant as culpable for the infant's death as was the defendant who had actually committed the abusive acts. Under the circumstances of this case, we hold that the evidence offered against these defendants was legally insufficient to support the sole theory the People now advance to justify their conviction.

According to the evidence offered at trial, defendants had been retained to care for the three-month-old infant, Kwok-Wei, as a result of an advertisement they had placed in a local Chinese-language newspaper. The infant's parents, the Jiangs, both worked some 12 hours a day from Monday through Saturday and for that reason felt that they needed the 24-hour care that defendants were offering. The Jiangs were told that defendant Mary Wong would be providing much of their baby's care but that her husband, defendant Eugene Wong, would also be tending to Kwok-Wei's needs. Kwok-Wei was to sleep in a crib that was placed directly next to defendants' bed, which was located in the bedroom of their one-bedroom apartment. The Jiangs planned to visit their child on Sundays, their one day off from work.

The Jiangs' first visit with Kwok-Wei on July 3, 1988 was uneventful. Four days later, however, defendant Mary Wong called the baby's father at about 6:30 A.M. and informed him that Kwok-Wei was dead. Ms. Wong told Jiang that the baby had cried continually from about midnight to about 2:00 A.M. on the previous night, that he had been given some "gripe water" obtained from a Chinese pharmacy, that everyone in the household had subsequently gone to sleep and, finally, that when defendants awoke they found that the baby had "turned black." According to police department records, defendant [605] Eugene Wong placed a "911" call at approximately the same time, requesting an ambulance for an "unconscious" child.

The police officers who responded to this call immediately noticed that defendants were fully dressed and appeared calm. Upon looking around the room, they saw the already dead infant lying in a baby carrier. The child's face was discolored and his limbs were stiff and flexed in conformance to the shape of the carrier.

After the police's arrival, defendants made additional, somewhat inconsistent statements about the events of the preceding night. Defendant Eugene Wong told the paramedics at the hospital that the baby had not been sick and had quieted down after he and his wife had fed him at 1:00 or 2:00 A.M. Wong also told the attending physician that the baby had awakened at about midnight and cried for about 2½ hours, during which time both he and his wife "attended the baby to see what was wrong." According to Wong, Kwok-Wei eventually went to sleep and nothing else occurred until he was checked the next morning, at which point one of the Wongs observed that he was not breathing and had no heartbeat.

While she was at the hospital, Mary Wong asked a police officer whether the child had died and was informed that he had. Nonetheless, she then called Kwok-Wei's father at the officer's request and, in response to Jiang's expressions of disbelief, told him she did not know whether his child was really dead. Several hours later, she spoke to Kwok-Wei's mother, telling her that the child had fallen asleep at about 2:00 or 2:30 A.M. after having cried for two hours and having refused milk and water. Although Wong initially told the infant's mother that Kwok-Wei had not appeared to be ill, she stated in a subsequent conversation that the child had had "cramps" and had been "shaking involuntarily." Wong attributed these symptoms to the mother's prior use of birth control pills or Chinese herbal medicine.

An autopsy performed on the child revealed that he had died as a result of internal brain injuries, including ruptured blood vessels, that could only be attributed to "shaken baby syndrome." That condition occurs when an infant under the age of one is subjected to violent shaking causing his or her head to snap back and forth. Under those conditions, the infant's brain, which is very soft, will move around inside the head, leading to ruptured blood vessels, hemorrhaging and swelling.

[606] "Shaken baby syndrome" is not necessarily accompanied by external injuries. A baby suffering from the effects of a violent shaking would initially cry sharply and then, within about 30 minutes, lapse into a coma that would resemble ordinary sleep to a person who was not watching for the movements that naturally occur during sleep. According to the People's experts, prompt medical attention can prevent fatality in cases such as Kwok-Wei's, although serious permanent injuries, including blindness and intellectual impairment, are almost inevitable.

On the basis of the foregoing evidence, both defendants were indicted and tried on charges of first and second degree manslaughter (Penal Law § 125.15 [1]; § 125.20 [1]) and endangering the welfare of a child (Penal Law § 260.10 [1]). After the People's direct case was presented to the jury, counsel for both defendants moved to dismiss on the ground that the proof had not established that either Eugene Wong or Mary Wong was the person who had caused the infant's fatal injuries. The prosecutor argued, in response, that the People's case rested on the theory that each defendant was independently liable for Kwok-Wei's death because one of them had shaken the baby while the other had stood by and failed to intervene. According to the People's theory, the defendant who had not actually shaken the infant, the "passive" defendant, was equally culpable because of his or her omission in failing to fulfill a duty that was imposed by law.

The trial court adopted the People's argument and declined to dismiss the indictment. The court subsequently charged the jury that it could find the "passive" defendant guilty for failing to act if it determined that that defendant "had a duty to prevent another from harming the infant" or to obtain "proper and prompt medical care" and, having had the requisite mental state, had failed in the performance of that duty despite having had the ability to act. The jury returned a guilty verdict on all counts against each defendant.

On defendants' appeal, the Appellate Division modified by dismissing the convictions for first degree manslaughter on the ground that the finding that defendants had acted, or failed to act, with the "intent to cause serious physical injury" (see, Penal Law § 125.20 [1]) was against the weight of the evidence. The Court, however, rejected the contention that the People's failure to adduce evidence identifying the person who had actually shaken the baby vitiated the entire prosecution. [607] Instead, over a vigorous dissent, the Court ruled that the convictions for second degree manslaughter and endangering the welfare of a child were sustainable because there was sufficient evidence to support a finding that the "passive" defendant had failed to perform a duty imposed by law under any one of a number of diverse theories.

On this appeal, the People have limited their case to a single theory. Eschewing several of the theories advanced by the Appellate Division majority, the People now argue only that the convictions of both defendants should be upheld because there was sufficient evidence for the jury to infer that "one of them shook the baby violently while the other, aware of the harm being done, failed to seek medical assistance." We agree that the People's formula could theoretically support convictions in a proper case. We conclude, however, that in this case the evidence adduced at trial simply does not provide a sufficient factual basis for finding the "passive" defendant guilty of committing second degree manslaughter by an act of omission. Accordingly, although one of the defendants could properly have been found guilty of second degree manslaughter by shaking Kwok-Wei to death, the convictions of both defendants must now be reversed because there was no evidence tending to show which of the two accused individuals was the abusive actor.

Initially, we note that the People's theory against the "passive" defendant is legally sound. Under the Penal Law § 15.10, an individual's criminal liability may be predicated on an "omission." The "minimal" statutory requirement for criminal liability is "conduct which includes a voluntary act or the omission to perform an act which [the accused] is physically capable of performing" (id.). An "omission" is defined as "a failure to perform an act as to which a duty of performance is imposed by law" (id., § 15.00 [3]).

In People v Steinberg (79 N.Y.2d 673, 680), this Court held that parents have an affirmative duty to provide their children with adequate medical care and that, under certain circumstances, the failure to perform that duty can form the basis of a homicide charge (see also, People v Flayhart, 72 N.Y.2d 737). Defendants do not dispute that the same principle may fairly be applied to situations such as this, where adults other than the parents have undertaken by contract to provide 24-hour custodial care for a very young and helpless child and those adults have the physical capacity to take the [608] necessary steps to secure any required medical care. Thus, where the requisite proof is present, a person in the position of the "passive" defendant here may be held criminally liable for failing to seek emergency medical aid for a seriously injured child, and the only remaining question is whether the People produced the necessary proof in this case.

Before discussing the merits of that issue, we must make brief mention of the proper standard for review in a case such as this, where the evidence against the accuseds is wholly circumstantial. In that situation, the People are obliged to prove the accused's guilt to "a moral certainty" and the defendant is entitled to a jury instruction, in words or substance, to that effect (People v Daddona, 81 N.Y.2d 992). On an appeal to the Court of Appeals, however, the proper standard of review is whether the evidence before the jury was legally sufficient to support a finding of guilt beyond a reasonable doubt. The phrase "proof to a moral certainty" is simply "a description of the standard to be applied by the fact finder * * * in the more complex and problematical reasoning process necessarily undertaken in cases of purely circumstantial evidence" (People v Barnes, 50 N.Y.2d 375, 380-381; see also, People v Deegan, 69 N.Y.2d 976, 979 ["the standard that every hypothesis but guilt be excluded to a `moral certainty' is to be applied only by the trier of fact"]; but cf., People v Cleague, 22 N.Y.2d 363). Once the fact finder has made its determination, the "question of law" within this Court's limited power to review the validity of a guilty verdict is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to find the elements of the crime to have been proven beyond a reasonable doubt (People v Foster, 64 N.Y.2d 1144, 1146; see, People v Bleakley, 69 N.Y.2d 490, 495; see also, Jackson v Virginia, 443 US 307, 319). With that standard in mind, we turn to the evidence adduced at defendants' trial.

Manifestly, the "passive" defendant's "mere presence" in the Wongs' apartment at the time of the crime is insufficient to support a finding of criminal liability (see, e.g., People v Sanchez, 61 N.Y.2d 1022). The People's contention that the "passive" defendant is criminally liable for failing to seek medical help for Kwok-Wei after he was violently shaken requires, at the very least, a showing both that the "passive" defendant was personally aware that the shaking had occurred and that such abusive conduct created a risk that the infant would die without prompt medical treatment.

The second prong of this required showing is plainly problematic [609] in this case. In People v Steinberg (supra, at 681), we observed that, even where the accused has no medical training, "there are situations where the need for prompt medical attention would be obvious to anyone — a child bleeding profusely, for example." Whether that was the case here presents a close question, particularly since the shaking to which Kwok-Wei was subjected produced no external bruises and the symptoms of the internal injuries he sustained could be mistaken for indicia of ordinary sleep.

Even if we were to resolve this question by holding that a rational fact finder could have determined the issue in the People's favor, the People could not prevail because of the absence of proof from which the jury could infer that the "passive" defendant was even aware that the infant had been violently shaken. As to this critical element of their theory, the People rely almost exclusively on defendants' own statements that they had been awake and tending to the child together during the 2½-hour period when the shaking probably occurred. However, this evidence is simply too tenuous a thread to support the weight of the all-important inference of knowledge on the part of the "passive" defendant.

Neither defendant affirmatively indicated in his or her pretrial statements that the two adults had been continuously together during the entire 2½-hour interval. Moreover, it seems more likely than not that at least one of them would have left the room in which the baby was located at some point during the relevant period, if only to use the bathroom or the kitchen. Contrary to the People's argument, it would not have been a "remarkable coincidence" if the shaking just happened to occur when the "passive" defendant left the room. Indeed, it is hardly a remarkable notion that a person inclined to abuse a child would wait until another adult who might interfere had left the room before acting.

Similarly, the fact that the Wongs attempted to exculpate themselves by offering various, patently false explanations for Kwok-Wei's condition did not add materially to the People's case against the "passive" defendant. At most, their clumsy and transparent exculpatory efforts reflected their guilty knowledge that a horrible crime had occurred in their apartment on the preceding night. Because these statements bore no relationship to the events that actually led to the infant's death, they did not shed any light on the "passive" defendant's actual role in that death.

[610] Finally, although the People argue otherwise, the size of defendants' apartment also provides no basis for inferring the "passive" defendant's awareness of the abusive acts. To be sure, the apartment had only one bedroom and the baby's crib was placed directly against defendants' own bed. It is also true, however, that the small apartment had at least three other rooms — a living room, a kitchen and a bathroom — where the "passive" defendant could go. In the absence of any evidence to show how, or at least where, the abusive acts had occurred and which room or rooms the two defendants had been in, there was no basis for the jury to infer that the "passive" defendant had actually witnessed the shaking — a form of abuse that would leave no visible exterior marks. It follows that any conclusion by the jurors that the "passive" defendant actually knew of the abuse would have to have been based on impermissible speculation.

In light of the foregoing, there is no sound factual basis on which to hold the person who did not actually shake the infant criminally responsible for the infant's death. Similarly, the count charging both defendants with endangering the welfare of a child cannot be sustained because, with regard to the "passive" defendant, it too necessarily rests on the unproven premise that that individual was aware of the life-threatening situation in which the infant had been placed as a result of the violent shaking. Apart from the People's medical-omission theory, the only other argument for holding the "passive" defendant guilty of the endangering count is the theory suggested by the Appellate Division majority, i.e., that the "passive" defendant was criminally culpable for knowingly permitting his or her spouse to tend to a crying child in a late-night situation that was likely to provoke abuse. The theory is premised on the evidence admitted at trial to demonstrate that other children entrusted to the Wongs' care had also been abused.

The problem with relying on this theory is, quite simply, that it was not among the theories of liability that were submitted to the jury. Indeed, under the trial court's charge, the evidence of prior incidents of abuse was admitted only for the limited purpose of rebutting a defense of accident or mistake.

Accordingly, we conclude that the convictions of both defendants must be reversed even though that conclusion means that one clearly guilty party will go free. The result in this [611] case is an especially difficult one because of the heinousness of the crime as well as the evident culpability of one of the two appealing parties. Nonetheless, we are duty bound to reverse these two defendants' convictions because the alternative — incarcerating both individuals for a crime of which only one is demonstrably culpable — is an unacceptable option in a system that is based on personal accountability and presumes each accused to be innocent until proven otherwise.

Accordingly, the order of the Appellate Division should be reversed and the indictment against defendants dismissed.

BELLACOSA, J. (dissenting).

I respectfully dissent and vote to affirm the order of the Appellate Division upholding the convictions of the defendants.

This Court reverses defendants' convictions for manslaughter in the second degree and endangering the welfare of a child and dismisses all criminal charges, despite the "evident culpability of one of the two appealing parties" (majority opn, at 611). This incongruous result in a complicated infanticide prosecution is most unfortunate and results, in my view, from misapplication of governing reviewability standards and appellate speculation.

The dispositive question on this appeal is whether the evidence presented to the jury by the People was sufficient to prove that both defendants were present when the so-called "active defendant" shook three-month-young Kwok-Wei to death, and that the "passive defendant" perceived and disregarded the risk of death. I agree that the test is "whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to find the elements of the crime to have been proven beyond a reasonable doubt" (majority opn, at 608; see also, People v Contes, 60 N.Y.2d 620, 621). Where, as here, the evidence is circumstantial, the "conclusion of guilt must be consistent with and flow naturally from the proven facts" (People v Kennedy, 47 N.Y.2d 196, 202). My point of departure from the majority's analysis is whether the People are required to affirmatively and conclusively prove that the passive defendant was present at the precise moment of the fatal shaking (majority opn, at 609). Under this Court's established rubrics of evidence and appellate review, it should be sufficient that the People presented evidence from which the critical conclusions could be rationally inferred beyond a reasonable doubt.

Since the People "prevailed at trial * * * we are required to [612] assume that the jury credited [their] witnesses" (People v Kennedy, supra, at 203). The People established that in order to cause death the shaking had to be prolonged, repeated and violent. While this testimony was contradicted by the defendants' experts, who contended that a single shake could result in death, the acceptance or rejection of expert testimony in these circumstances is exclusively within the province of the jury. The People also established that following a violent, repeated shaking, an infant could suffer seizures or respiratory collapse, and would cry in a shrill, high-pitched tone, before lapsing into a coma. The victim's crib was alongside the bed of the defendants "caretakers". Thus, the inference that the relevant symptoms, in particular the shrill cry, must have been sensed by both defendants is not only reasonable, in this case it is virtually inescapable. At the very least, it is enough to pass appellate review, upon the affirmed portion of a verdict of guilt on a reduced homicide charge, as to the sufficiency of the evidence presented. All of the experts agreed that Kwok-Wei died prior to being placed in the baby carrier and that rigor mortis, which would have taken at least four hours to occur, had set in by 6:30 A.M. Again, the only reasonable inference was that Kwok-Wei died before 2:30 A.M. when, by defendants' own admissions, they were both awake and "tending" to the infant. I conclude that no reasonable, innocent scenario is legally sustainable without resorting to appellate speculation.

The Court's statement that the defendants' statements are "simply too tenuous a thread to support the weight of the all-important inference of knowledge on the part of the `passive' defendant" (majority opn, at 609) is puzzling. The defendants made consistent statements to Kwok-Wei's parents, the Emergency Medical Services personnel and hospital personnel, that they both tended to Kwok-Wei in the living room during the entire 2½ hours that he was crying and they both put him to bed when he stopped crying. The jury could justifiably have inferred from their own joint activity statements that they were "continuously together" (majority opn, at 609) during any or all of the critical events and time periods. Indeed, such an inference of joint conduct is less speculative than the Court's rumination that "it seems more likely than not that at least one of them would have left the room * * * at some point during the relevant period" (majority opn, at 609). This speculation contradicts the unequivocal import of the defendants' consistent admissions.

[613] "`[I]n the end, it is a question whether common human experience would lead'" reasonable persons, putting their minds to it, "`to reject or accept the inferences asserted for the established facts'" (People v Kennedy, 47 NY2d, at 203, supra, quoting People v Wachowicz, 22 N.Y.2d 369, 372). The conclusion reached by the jury that the shaking had to be violent and prolonged and, thus, did not occur while the "passive" defendant was absent, distracted or unaware within the contemplation of the penal statutes, falls within the "common human experience" of reasonable persons and, therefore, should not be disturbed by this Court of last resort.

I believe that the lesser included homicide and the endangerment crimes for which these defendants stand convicted should be sustained.

Order reversed, etc.

Renfroe & Quinn, Forest Hills (Christopher Renfroe of counsel), for defendant.

Charles J. Hynes, District Attorney, Brooklyn (Arlene Markarian of counsel), for plaintiff.

OPINION OF THE COURT

MATTHEW D'EMIC, J.

[181] Procedure

Defendant is charged with manslaughter in the second degree, criminally negligent homicide, reckless endangerment in the first degree, reckless endangerment in the second degree, and assault in the third degree. The charges stem from the death of defendant's mother, Clarise Gray, on September 16, 2003. Defendant moves to dismiss the indictment pursuant to Criminal Procedure Law § 210.20 (1) (b) in that the evidence presented to the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense.

Evidence Before Grand Jury

In this case, the evidence before the grand jury consisted of the medical examiner's testimony that Ms. Gray died of blunt impact injuries to the torso consistent with a fall down a flight of stairs and the testimony of the investigating detective as to a statement made to him by Ms. Sanford.

Ms. Sanford initially told the detective she arrived home to find her mother unconscious. Several days later she changed her account, stating that her mother began arguing and cursing at her as she fed her mother's cat. Ms. Gray was wagging her finger at the defendant, who grabbed at it. Ms. Gray pulled her hand away causing her to lose her balance and fall down a flight of stairs. Defendant went down to help her mother, but her mother, in a kneeling position, as if to get up, told her daughter to leave her alone and get out. Defendant left to run errands at about 3:00 p.m., returning five hours later to find her mother dead at the bottom of the stairs. The time of death was estimated at 4:00-5:00 p.m. Based on this evidence, the grand jury returned a true bill on all counts.

Defendant's motion to dismiss this indictment must be denied if the evidence presented to the grand jury, viewed most favorably to the People, without benefit of explanation, contradiction or clarification, would warrant conviction by a jury (People v Galatro, 84 NY2d 160 [1994]; People v Jennings, 69 NY2d 103 [1986]). Put another way, if the evidence on its face establishes every element of the charged offenses, the indictment must survive (People v Smith, 213 AD2d 1073 [1995]).

Legal Analysis

In this case, both sides agree on the facts and that the only evidence against the defendant is her statement to the police. The People contend that by grabbing at her mother's finger at [182] the top of a staircase she committed a criminally reckless act which was compounded by her failure to render assistance. The defense contends that no criminal liability can attach to the daughter's actions.

Under the definition of both recklessness and criminal negligence, essential elements of the crimes charged in this indictment, there must exist prima facie proof that Ms. Sanford perceived and ignored, or just did not perceive "a substantial and unjustifiable risk" that death or injury would ensue from her conduct, and that such ignorance or short-sightedness was grossly deviant (see Penal Law § 15.05 [3], [4]).

In order for criminality to attach to the defendant's conduct in grabbing her mother's finger and failing to get her help, it must be found so transparently and substantially risky as to be utterly abnormal when compared to ordinary behavior. For criminality cannot be imposed unless the risk created and disregarded would be apparent to anyone who shares the community's general sense of right and wrong (People v Ricardo B., 73 NY2d 228 [1989]).

In deciding whether a crime was committed, case law is instructive. The Court of Appeals has narrowed the inquiry in cases of reckless manslaughter and criminally negligent homicide, stating that some culpable "risk creation" is essential. That is, unless a defendant engages in blameworthy conduct creating a substantial risk of death, no crime has occurred (People v Boutin, 75 NY2d 692 [1990]). Other appellate courts have utilized this standard in making a legal determination on the peculiar facts of each case. For example, in People v Graham (122 AD2d 345 [1986]), forcefully throwing an intoxicated victim out of a bar in close proximity to a flight of stairs was found sufficient to create a substantial and unjustifiable risk of death sustaining a finding of criminal negligence. On the other hand, in People v Erby (97 AD2d 380 [1983]), the Court found that punching a victim causing him to fall, hit his head and die was insufficient. Likewise, in People v Johnson (131 AD2d 697 [1987]), where roughhousing involving choking resulted in death. As the Court stated in People v Erby (supra): "That there was a risk is obvious from the fact that a death occurred, but it was not `of such a nature and degree' that a reasonable person would be under a duty to perceive it."

Using these cases as a guide, the court finds even less culpability in the case before it. There was no act of violence, nor was there an act of patent indifference. Rather, this case involves a [183] not uncommon dispute between relatives that escalated into a split-second expression of frustration. It is clear that neither Ms. Sanford nor Ms. Gray knew nor could be expected to know that their actions would cause Ms. Gray to fall down the stairs. It is equally clear that both of their actions contributed to the fall. Because of this, the court finds that no criminality can attach to defendant's act of grabbing at her mother's finger. The court also determines that no criminal liability flows from her failure to seek medical assistance for her mother.

Again, the only evidence presented is defendant's statement that she went down the stairs to help her mother and that she left her mother getting up and yelling at her to get out. Defendant complied with her mother's request, left to do chores and on her return discovered her mother's body.

The defense argues that failing to aid is an omission which cannot trigger criminal liability because a child owes no duty to a parent (see generally Penal Law § 15.00 [3]). The People concede that a child owes no duty to a parent, but contend that, having placed her mother in peril, defendant then had a duty to aid.

It is true that there is generally no legal duty of care on the part of an adult child to her infirm parents, and without a legal duty an omission to act may not give rise to criminal liability (People v Myers, 201 AD2d 855 [1994]; People v Spadaccini, 124 AD2d 859 [1986]). It is equally true, however, that creation of the peril imposes a duty to seek assistance. However, before such a duty is imposed, some finding of deplorable behavior must precede the failure to act, such as shooting the victim and leaving him to die (People v Woodruff, 4 AD3d 770 [2004]); supplying the cocaine that caused an overdose (State v Morgan, 86 Wash App 74, 936 P2d 20 [1997]); leaving a robbery victim in a cold and remote location (United States v Hatatley, 130 F3d 1399 [1997]); and causing a fire and failing to report it (Commonwealth v Levesque, 436 Mass 443, 766 NE2d 50 [2002]). In this case, the initial affirmative act was neither intentional nor reckless. In addition, defendant did attempt to assist her mother but was pointedly turned away, concealing Ms. Gray's true level of distress.

In hindsight, it is clear that defendant should have persisted in her effort to assist her mother. Ms. Sanford's leaving for five hours was a mistake, causing the direst consequence. Yet, it was not criminal. For behavior prescribed by humane considerations is not the subject of the court's inquiry. It is the law and not [184] disapprobation that governs. Every accident does not impose a legal duty to assist. As was stated in State ex rel. Kuntz v Montana Thirteenth Jud. Dist. Ct. (298 Mont 146, 151, 995 P2d 951, 955 [2000]):

"For criminal liability to be based upon a failure to act, there must be a duty imposed by the law to act . . . This rule imposes no legal duty on a person to rescue or summon aid for another person who is at risk or is in danger, even though society recognizes that a moral obligation might exist. . . Thus, an Olympic swimmer may be deemed by the community as a shameful coward, or worse, for not rescuing a drowning child in the neighbor's pool, but she is not a criminal." (Citations omitted.)

Although no legal duty to act existed under the law, it is clear that both the act and omission in this case constitute one event. Parsing the unfortunate event into sequences of act and omission does nothing to advance the legal analysis. Since no recklessness or criminal negligence was involved in the act, the omission following immediately on its heels cannot elevate it. Leaving her mother was unthinking, but not so grossly apathetic as to rise to a criminal offense.

In the court's opinion, this event was a freak accident followed by a most unfortunate lapse in judgment. It was not, however, a crime.

For the reasons stated, the indictment is dismissed.