[973 N.Y.S.2d 916] Robert T. Johnson, District Attorney, Bronx County, by Katherine Gregory, Esq., Assistant District Attorney, for the People.
Jacob Lemon-Strauss, Esq., the Bronx Defenders, for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with one count each of Endangering the Welfare of a Child (PL Sec. 260.10), and Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), both Class A misdemeanors, as well as one count of Unlawful Possession of Marijuana (PL Sec, 221.05), a violation.
By omnibus motion dated June 12, 2013, Defendant seeks the following: dismissal of the charge of Endangering the Welfare of a Child, asserting that the People's complaint is facially insufficient as to that count; suppression of all physical evidence seized and statements made to law enforcement personnel; and suppression of any evidence of any prior bad acts or immoral conduct.
The Court has reviewed the Court file, Defendant's motion, the People's Response dated July 3, 2013. For the reasons stated below, the motion to dismiss is denied.
The motion for pre-trial hearings is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not physical evidence was seized and statements were taken in violation of Defendant's rights under the United States and New York Constitutions.
A hearing regarding whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.
Pursuant to the Criminal Court complaint, between November 21, 2012 and December 3, 2012, at approximately 5:00 PM, while inside of 2264 Davidson Avenue, Bronx, New York, the Defendant " on three separate occasions" approached the informant, a 14 year old child, " handed informant a lit cigarette and informant smoked said cigarette." See Criminal Court complaint dated December 17, 2012, p. 1.
On December 17, 2012, at approximately 2:45 PM, while inside of 2264 Davidson Avenue, Bronx, New York, Defendant is alleged " to have on her person, in her left front pocket, one (1) ziplock bag containing a dry, leafy green substance with a distinctive odor, and one (1) foil wrapper containing a white powdery substance." See Criminal Court complaint dated December 17, 2012, p. 1-2. The arresting officer asserts that based upon his " training and experience ... the aforementioned substances are alleged and believed to be marijuana and cocaine respectively." See Criminal Court complaint dated December 17, 2012, p. 2.
(A) The People's Complaint is Facially Sufficient.
Defendant asserts that the charge of Endangering the Welfare of a Child is facially insufficient in the instant case because " The actions (Defendant) allegedly took were not likely to be injurious to a child." See, Defendant's motion dated June 12, 2013, p. 6 para. 7. The Defendant also contends that " (t)he complaint does not allege that (Defendant) gave (the child) a [973 N.Y.S.2d 917] large amount of cigarettes...smoking...three cigarettes is not likely to be injurious to the physical, mental or moral welfare of a child." See, Defendant's motion dated June 12, 2013, p. 7 para. 8.
Further, Defendant asserts that " (i)n this complaint, there is no fact alleged that would allow anyone to infer that (Defendant) knew that handing a fourteen year old three...cigarettes would likely be injurious to the physical, mental or moral welfare of (the ...