| People v Bray |
| 2007 NY Slip Op 10418 [46 AD3d 1232] |
| December 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dennis F.Bray, Appellant. |
—[*1] Deidre A. Chuckrow, New York State Prosecutor's Training Institute, Albany, forrespondent.
Mugglin, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered March 19,2007 in Clinton County, convicting defendant following a nonjury trial of three counts of thecrime of endangering the welfare of a child.
Defendant and his estranged wife, Allyson Bray, engaged in an incident of domestic violencein the presence of their three children, the eldest of whom was nine years of age. As a result, fourmisdemeanor complaints were issued against defendant. The first charged him with attemptedassault in the third degree, the pertinent language being that "[t]he defendant was involved in adomestic dispute with Allyson Bray. During said dispute the defendant did intentionally headbutt Allyson in the face. The actions of the defendant caused Allyson to sustain a bloody nose aswell as swelling around the nose. These actions were an intentional attempt to cause physicalinjury to the victim." The other three misdemeanor complaints charge defendant withendangering the welfare of a child and each is identical with the exception of the name of thechild. The relevant language of each is that "the defendant, during a domestic dispute didintentionally head butt Allyson Bray in the face causing her to sustain a bloody nose. The abovementioned action of the defendant took place in the presence of [names and birth dates ofchildren]. The defendant knowingly acted in a manner likely to be injurious to the [*2]physical, mental and moral welfare of said child."
Following a nonjury trial, defendant was found not guilty of the attempted assault charge, butguilty of endangering the welfare of each of his three children. Defendant's motion pursuant toCPL 330.30 was denied without explanation. Sentenced, among otherthings, to three years of probation, defendant appeals, arguing that the People were impermissiblyallowed to amend the criminal informations during trial, Supreme Court issued a repugnantverdict, and the evidence is legally insufficient to support the guilty verdicts. We disagree andaffirm.
Defendant's first argument is that Supreme Court impermissibly permitted the prosecutor, inher closing statement, to "in effect" amend the criminal informations charging him withendangering the welfare of his children. This argument, in turn, is premised on his observationthat since the court found him not guilty of the attempted assault of "head butting" his wife andbecause the endangering the welfare of the children complaints were premised on the same "headbutting" incident, his convictions must necessarily rest on uncharged criminal conduct. The flawin this argument is that it too narrowly focuses on the complaints and ignores the supportingdepositions. Pursuant to the provisions of CPL 170.65, a misdemeanor complaint does notsupport a prosecution. However, if a misdemeanor complaint supplemented by supportingdepositions, taken together, satisfy the requirements for a valid information, the complaint isdeemed to have been converted to and constitutes a replacing information. Attached to thecomplaints were domestic incident reports signed by Bray and a statement that she made to thepolice which, when read with the complaint, alleged that defendant started a confrontation at theresidence which escalated from a verbal dispute to a physical dispute in the presence of thechildren, and defendant refused to leave the premises and blocked the way so that the victim'ssister could not leave with the children. Simply put, defendant was charged with conduct inaddition to the head butting incident, and the prosecution's reference to such conduct, insummation, did not amend the informations. In short, the informations were sufficient to informdefendant of the nature of the charge and the acts constituting it so that he could prepare for trialand protect himself from being tried again for the same offense (see People v Miles, 64NY2d 731, 732 [1984]).
Defendant's second argument, that the verdicts are repugnant, is also without merit. A verdictis repugnant only when a defendant is found not guilty of one crime which contains a necessaryelement of another crime for which a guilty verdict was rendered (see People v Tucker,55 NY2d 1, 7 [1981]; People vCole, 35 AD3d 911, 912 [2006], lv denied 8 NY3d 944 [2007]). The elementsof endangering the welfare of a child are that the defendant acted in a manner likely to beinjurious to a child, that he or she did so knowingly (i.e., that he or she was aware that his or heracts were likely to cause harm) and that the child was less than 17 years old. Clearly, even ifdefendant's assumption that Supreme Court found that he did not "head butt" his wife is correct,that conduct is only a fraction of the conduct with which defendant was charged and no elementof attempted assault is a necessary element of endangering the welfare of a child. Moreover,defendant's assumption may be incorrect in that it is not possible to tell from this record whetherthe not guilty verdict was based on a lack of evidence of intent to cause physical injury ratherthan on a lack of evidence that he actually "head butted" his wife.
Lastly, viewing the evidence in the light most favorable to the People (see People v Albanese, 38 AD3d1015, 1016-1017 [2007], lv denied 8 NY3d 981 [2007]; People v Jiminez, 36 AD3d 962,963-964 [2007], lv denied 8 NY3d 947 [2007]), there is a valid line of reasoning [*3]and permissible inferences which could lead a rational person to theconclusion reached by Supreme Court. To convict a defendant of child endangerment, theevidence must demonstrate that the defendant knowingly acted "in a manner likely" to injure the"physical, mental or moral welfare of a child" under 17 years of age (Penal Law § 260.10[1]). Actual harm need not result; it is sufficient that a defendant act in a manner that he or sheknows is likely to result in potential harm to a child (see People v Johnson, 95 NY2d368, 371-372 [2000]; People v Simmons, 92 NY2d 829, 830 [1998]). Here, there wasevidence that the verbal and physical confrontation terrified the children, who were crying andscreaming hysterically. Moreover, defendant admitted that he refused to leave the premises, hecould have ended the confrontation simply by leaving and he refused to permit the children to beremoved from the premises and physically blocked their exit.
Crew III, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment isaffirmed.