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The New York Court of Appeals held for the first time last week that a man can be charged with endangering the welfare of a child when he assaults a mother in the presence of her children. The unanimous Court differed with an Appellate Division, 2nd Department Panel and said the endangerment statute can be applied to a defendant even though his actions were not directed specifically at children. The court found that the crime is defined not by the outcome, but by the risk of injury resulting from the defendant’s behavior. Last week’s ruling in People v. Johnson, was a major victory for advocates for women and for domestic violence prosecutors, and a major disappointment for defense advocates concerned that an expansive reading of the statute would greatly increase prosecutions of parents for conduct that might be characterized as poor parenting. People v. Johnson stems from a series of incidents in March 1997, when Theodore Johnson beat and threatened his girlfriend while her three children were nearby. Johnson was convicted after a nonjury trial of various felonies, including two counts of endangering the welfare of a child. The 2nd Department reversed the child endangerment convictions. The Court of Appeals was called upon to determine whether the endangering statute is sufficiently broad to support a conviction where the prohibited conduct is directed at someone other than the alleged child victims, but in a manner where it is likely to cause harm to children. Unanimously, the court found that it is. Judge Richard C. Wesley, writing for the court, observed that Penal Law Section 260.10 (1) declares that the crime of endangering the welfare of a child is committed when someone “knowingly acts in a matter likely to be injurious to the physical, mental or moral welfare of a child.” Wesley said nothing in the statute requires actual harm to the child for criminal liability to attach. Rather, he said, it requires only that the defendant be aware that his conduct may likely harm a child. In this case, the court noted, the children saw Johnson strike their mother and threaten to kill her and then spent more than 10 hours hiding in their bedroom while the defendant physically and verbally abused their screaming mother. “The adverse effects of domestic violence on children have been well documented over the past two decades and have been recognized by all branches of our government in New York,” Wesley wrote, citing social science and psychological studies. Rachel Altstein of Appellate Advocates in Manhattan, which represented Johnson on the appeal, said the ruling will open the floodgates to all manner of prosecutions not intended by the Legislature. “There is nothing that distinguishes the facts in this case from situations like garden-variety domestic quarrels between mom and dad, fights between other people, violent movies or really anything that harms children,” Altstein said. The New York State Association of Criminal Defense Lawyers, in an amici curiae brief, suggested that the statute is already being applied in an overly broad manner. It points to an Ontario County, N.Y., case where a man was convicted on endangering counts for taking his children to R-rated monster movies. Wesley, however, saw little danger in the statute being abused, and said that if the Legislature has not seen fit to narrow a law that has been in place for 30 years, the Court of Appeals is not going to do so. “The Legislature’s response to conduct that could cause harm to children has not produced a clarion call for legislative reform of the statute; we will not supplant that function by judicial stitchery,” Wesley wrote. Pace Women’s Justice Center filed as amici in favor of a broad reading of the statute. Queens County Assistant District Attorney John M. Castellano argued for the prosecution. District Attorney Richard A. Brown said that the case “represents a significant victory for children trapped in abusive families,” and makes New York the second state, after Georgia, whose highest court has recognized “that children who witness domestic violence in the home are also victims.”

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