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.

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.

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.