| People v Engelsen |
| 2012 NY Slip Op 01306 [92 AD3d 1289] |
| February 17, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Jon P. Engelsen,Respondent. |
—[*1] Fiandach & Fiandach, Rochester (Edward L. Fiandach of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredMay 9, 2011. The order, among other things, granted in part defendant's motion to dismiss theindictment.
It is hereby ordered that the order so appealed from is unanimously reversed on the law,defendant's omnibus motion is denied in its entirety and counts two and four of the indictmentare reinstated.
Memorandum: The People appeal from an order granting those parts of defendant's omnibusmotion seeking to dismiss counts two and four of the indictment, charging defendant withendangering the welfare of a child (Penal Law § 260.10 [1]). Upon our review of thesealed grand jury minutes, we agree with the People that the evidence before the grand jury waslegally sufficient to support a prima facie case of endangering the welfare of a child. "A person isguilty of [that crime] when . . . [h]e or she knowingly acts in a manner likely to beinjurious to the physical, mental or moral welfare of a child less than [17] years old" (id.)."Actual harm to the child need not result for criminal liability [to be imposed. Rather,] it is'sufficient that the defendant act in a manner which is likely to result in harm to the child,knowing of the likelihood of such harm coming to the child' " (People v Johnson,95 NY2d 368, 371 [2000], quoting People v Simmons, 92 NY2d 829, 830 [1998]).
Even assuming, arguendo, that the evidence before the grand jury, viewed in the light mostfavorable to the People (see People v Manini, 79 NY2d 561, 568-569 [1992]; Peoplev Pelchat, 62 NY2d 97, 105 [1984]), does not establish that defendant's conduct was likely tobe injurious to the physical welfare of the subject children (see generally People v Chase,186 Misc 2d 487, 488-489 [2000], lv denied 95 NY2d 962 [2000]; cf. People vD'Ambrosia, 192 Misc 2d 560, 561-562 [2002]), we conclude that the evidence establishedthat defendant's conduct was likely to be injurious to their mental or moral welfare. We note thatdefendant's alleged conduct is not limited to operating a motor vehicle while intoxicated and withthe children in the vehicle as passengers.
We reject defendant's contention that his intoxication rendered him incapable of "knowingly"acting in a manner that would place the children at risk (Penal Law § 260.10 [1]). [*2]Although "evidence of intoxication . . . may be offeredby the defendant whenever it is relevant to negat[e] an element of the crime charged,"intoxication "is not, [in itself], a defense to a criminal charge" (§ 15.25), and an intoxicatedperson may be capable of forming criminal intent (see People v Scott, 111 AD2d 45[1985]). The question whether defendant's intoxication destroyed his ability to form the requisiteintent is one for the jury to resolve at trial (see id.; People v Leary, 64 AD2d 825[1978]). Present—Centra, J.P., Fahey, Peradotto, Carni and Lindley, JJ.