This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 94
The People &c.,
            Respondent,
        v.
Anthony Berry,
            Appellant.




          Barbara Zolot, for appellant.
          Grace Vee, for respondent.




FAHEY, J.:
          We hold that the evidence offered was legally
insufficient to support the conclusion that defendant
"permit[ted]" underage children to "enter or remain" in a place
of drug activity (Penal Law § 260.20 [1]).   To establish that a
defendant permitted a child to enter or remain in a particular

                              - 1 -
                               - 2 -                            No. 94

place, premises, or establishment, within the meaning of Penal
Law § 260.20 (1), the People must show that the defendant had a
relation either to the child or to the place, premises, or
establishment, such that he or she could control whether the
child entered or remained there.
                                  I.
          On the morning that defendant was arrested, police
officers executing a search warrant broke open the door of an
apartment in Brooklyn and found the target of the warrant, TH,
asleep in the living room with two of her children, a grandchild,
and defendant.   The children were nine years, five years, and six
months old respectively.   The police found loose crack cocaine on
a cabinet shelf in the kitchen.
          According to testimony given by one of the police
officers at defendant's trial, defendant was sleeping in the same
sofa bed as TH and the children.       The officer testified that
defendant said that his clothes were in one of the bedrooms, and
that defendant was permitted to get dressed with clothes found in
that room.   When the police searched a different pair of jeans
that was located next to the sofa bed, they found bags of crack
cocaine and a key; because the police had battered down the front
door, they could not tell whether the key matched the door.
          Significantly, defendant had no legal relationship to
TH's children or grandchild.   He was not the father or a guardian
of the children.   TH's name was on the lease agreement for the


                               - 2 -
                                - 3 -                            No. 94

apartment.    Defendant's name was not on the lease agreement, but
appeared on a cable television bill addressed to him at the
apartment.
            TH and defendant were arrested and jointly charged not
only with criminal possession of a controlled substance but also
with three counts each of unlawfully dealing with a child in the
first degree (Penal Law § 260.20 [1]).      TH pleaded guilty to one
count of criminal possession of a controlled substance in the
third degree and one count of unlawfully dealing with a child in
the first degree, and she was sentenced to five years' probation.
Defendant proceeded to a jury trial.
            With respect to the unlawfully dealing with a child
charges, the People's theory at trial was that defendant
permitted the children to remain in TH's apartment insofar as he
did not call the police or "anybody" to report that children
under 18 lived in the apartment.
            TH testified for the defense.   She described defendant
as a trusted friend, but testified that he had no "authority"
over the children and was never left alone with them.     This
testimony was uncontested by the People.     No proof was offered by
the People that defendant exercised any control over the
children.    TH also testified that defendant did not live in the
apartment, that he had stayed overnight only a few times, and
that he was sleeping on a mattress on the floor next to the sofa
bed, not in that bed with her and the children.


                                - 3 -
                                - 4 -                         No. 94

          The jury found defendant guilty of the three counts of
unlawfully dealing with a child in the first degree, but
acquitted him of the drug possession charges.   Defendant moved to
set aside the verdict under CPL 330.30 (1), contending that the
evidence is legally insufficient because he was not the parent or
guardian of the children and had no legal authority over them.
The trial court denied the motion, concluding that there is proof
that defendant permitted the children to remain on the premises,
and ultimately sentenced defendant to three concurrent one-year
jail terms.
          The Appellate Division affirmed the trial court's
judgment, noting that Penal Law § 260.20 (1) "does not require a
defendant to have a legal responsibility for the care or custody
of the child" (People v Berry, 122 AD3d 414, 415 [1st Dept
2014]).   A Judge of this Court granted defendant leave to appeal
(25 NY3d 987 [2015], and we now reverse.
                                 II.
          A person is guilty of the class A misdemeanor of
unlawfully dealing with a child in the first degree under Penal
Law § 260.20 (1) if he or she
          "knowingly permits a child less than eighteen
          years old to enter or remain in or upon a
          place, premises or establishment where sexual
          activity as defined by article one hundred
          thirty [Sex Offenses], two hundred thirty
          [Prostitution Offenses] or two hundred
          sixty-three of this chapter [Sexual
          Performance by a Child] or activity involving
          controlled substances as defined by article
          two hundred twenty of this chapter

                                - 4 -
                               - 5 -                         No. 94

          [Controlled Substances Offenses] or involving
          marihuana as defined by article two hundred
          twenty-one of this chapter [Offenses
          Involving Marihuana] is maintained or
          conducted, and he knows or has reason to know
          that such activity is being maintained or
          conducted."
          The statute was added with the revision of the Penal
Law in New York in 1965.   Its predecessor was former Penal Law §
484 (2), which made it a misdemeanor to "admit[] to or allow[] to
remain in any reputed house of prostitution or assignation, or in
any place where opium or any preparation thereof is smoked, any
child actually or apparently under the age of sixteen years."
The 1965 statute provided that an individual is guilty of
unlawfully dealing with a child if he or she "knowingly permits a
child less than eighteen years old to enter or remain in a place
where illicit sexual activity or illegal narcotics activity is
maintained or conducted" (L 1965, ch 1030).
          The statute was amended in 1992.    Instead of referring
to "illicit sexual activity or illegal narcotics activity," the
1992 amendments provided cross-references to the statutes
defining such prohibited sexual or narcotics activity (see L
1992, ch 362).   At the same time, the Legislature modified the
statute to include a "premises" and an "establishment" among the
venues where a child cannot be allowed "to enter or remain" if
one of the proscribed types of activity occurs there (see id.).
          In support of the 1992 amendments, the Assembly wrote
that "[p]romoting the corruption of children is one of the most


                               - 5 -
                               - 6 -                            No. 94

abominable acts a person can commit.    The State has a
responsibility to protect our children from those who exploit
them for illicit purposes. . . .   This act would . . . clarify
the definitions of those offenses punished by the section, making
it easier to prosecute those individuals unlawfully dealing with
a child" (Assembly Mem in Support of Legislation, Bill Jacket, L
1992, ch. 362, at 10).
                               III.
          Defendant contends that the evidence is legally
insufficient to show that he possessed the "authority over either
the children or the apartment" required to permit the children to
remain in the apartment.   He does not contest that he knew or had
reason to know that offenses involving controlled substances took
place in the apartment.
          First, defendant argues that the evidence does not
establish that he had authority over the apartment.    To the
extent defendant suggests that he could not be convicted of
unlawfully dealing with a child in the absence of proof that he
had the legal authority to determine who may enter the premises
– a power that a house guest does not normally possess (see
generally Minnesota v Olson, 495 US 91, 99 [1990]) – his
contention relies on a false premise.    The People might
demonstrate that a defendant permitted children to enter or
remain in a place by showing that the defendant had legal
authority over that place, for example as owner or lessee, and


                               - 6 -
                                - 7 -                          No. 94

allowed children in, but the statute does not require such a
showing in every case.
          Penal Law § 260.20 (1) does not specify any particular
legal relation that a defendant must have to the premises.
Notably, when the Legislature amended the statute in 1992 to
cover any "premises" or "establishment" where prohibited sexual
or narcotics activity is conducted, it did not take the
opportunity to restrict the statute so as to apply only to
defendants with legal authority over premises or establishments.
Moreover, the statute may be read to apply to a parent who
knowingly permits his or her child to enter a premises or
establishment such as a crack house or brothel, regardless of
whether the parent has any property interest in, or employment
relation to, that premises or establishment.   Someone without
legal authority over a place may still permit a child to enter or
remain in it, within the meaning of the statute.   Defendant
points to no basis in legislative history or policy for
concluding that the statute is limited to defendants with legal
authority over the premises.    The plain language of the statute
is purposely broad in scope.    Consequently, we reject defendant's
argument that the People were required to show that he had legal
authority over the apartment.
          Defendant's second contention is that the evidence does
not establish that he had authority over the children, and
therefore the prosecution did not show that defendant was in a


                                - 7 -
                               - 8 -                          No. 94

position to permit the children to remain upon the premises.
Defendant suggests that he could be found guilty of unlawful
dealing with a child in the first degree only if he had a legal
duty to the children as their parent or guardian or under a
doctrine of in loco parentis whereby he had assumed all the
responsibilities incident to parenthood (see generally People v
Munck, 92 AD3d 63, 70-71 [3d Dept 2011]).
          It is clear from the plain language of the unlawfully
dealing with a child statute, however, that Penal Law § 260.20
(1) is not limited in scope so as to apply only to a defendant
who has a preexisting legal relation to the child in question.
This is illustrated by a comparison between Penal Law § 260.20
(1) and Penal Law § 260.10 (2), one of the subdivisions of the
endangering the welfare of a child statute, which specifies that
the defendant must be "a parent, guardian or other person legally
charged with the care or custody of a child less than eighteen
years old," in order to be guilty under that statute (Penal Law §
260.10 [2]; see generally People v Carroll, 93 NY2d 564 [1999];
cf. Penal Law § 260.10 [1]).   No similar, restrictive language
appears in the unlawfully dealing with a child statute.
          Moreover, the statute may be read to apply to a
babysitter or other childcare provider who knowingly permits a
child to enter a premises or establishment such as a crack house
or brothel, even if that person has not undertaken all of the
"responsibilities incident to parenthood" (Munck, 92 AD3d at 71


                               - 8 -
                              - 9 -                           No. 94

[internal quotation marks and citations omitted]).   For these
reasons, defendant's in loco parentis theory does not harmonize
with the statute under analysis here.1
          Instead, we hold that to establish that a defendant
permitted a child to enter or remain in a particular place,
premises, or establishment, under Penal Law § 260.20 (1), the
People must show that defendant's relation to the child or to the
place, premises or establishment was of such a kind that
defendant had some ability to control the child, so as to permit
the child to enter or remain in the place in question.   Moreover,
a mere ability to notify authorities does not constitute such

     1
          Defendant supports his in loco parentis theory with the
following argument. Defendant observes that the prosecution's
theory was that his failure to act constituted unlawfully dealing
with a child, and he points out that an "omission" is defined by
the Penal Law as "a failure to perform an act as to which a duty
of performance is imposed by law" (Penal Law § 15.00 [3]). Penal
Law § 15.00 (3) recognizes the well-established principle that
"[f]or criminal liability to be based upon a failure to act it
must first be found that there is a duty to act — a legal duty
and not simply a moral duty" (1 Wayne R. LaFave, Substantive
Criminal Law § 6.2 [2d ed 2008]; see generally Jones v United
States, 308 F2d 307, 310 [DC Cir 1962]).
     The People have no quarrel with defendant thus far, but
insist that the statute iself expressly imposes the described
legal duty (see LaFave at § 6.2). By contrast, defendant
suggests that he could be found guilty of unlawful dealing with a
child in the first degree only if he had a legal duty to the
children as their parent or guardian or under the doctrine of in
loco parentis (see id. at § 6.2 [a] [1]).
     We need not decide in this appeal what theory of duty would
underlie the successful prosecution of a defendant under Penal
Law § 260.20 (1) for a failure to act. We note only that, to the
extent that the underlying duty to act is based upon a "personal
relationship[]" (LaFave at § 6.2 [a] [1]) between a defendant and
a child, there is no evidence of any such relationship here.

                              - 9 -
                             - 10 -                          No. 94

ability to control, or the statute might apply to anyone who
comes into contact with a child entering or remaining in one of
the proscribed places.
          We reach this conclusion primarily on the basis of the
conceptual relation between permission and control.   One who
lacks the power to control another person cannot be charged with
permitting him to act (see generally People v Bergerson, 17 NY2d
398, 403 [1966] [interpreting former Penal Law § 483 (2)
(endangering the life or health of a child), which used the word
"permits", to mean that defendant must have some degree of
"control" over the child in order "to comply with and be subject
to the statute"]).
          The legislative history supports this analysis.    That
history demonstrates that the statute was intended "to protect .
. . children from those who exploit them for illicit purposes"
(Assembly Mem in Support of Legislation, Bill Jacket, L 1992, ch.
362, at 10 [emphasis added]), indicating that the law targets
those who are in a position to exert influence and control over
children, as opposed to one who has knowledge that a child is
remaining in a place where illegal narcotics or sexual activity
is conducted but no authority to control the child.
                               IV.
          Here, the People offered no evidence that supports the
conclusion that defendant could prevent the children from
remaining on the premises or, conversely, allow them to remain.


                             - 10 -
                              - 11 -                            No. 94

Viewed in the light most favorable to the prosecution, the
evidence establishes at most that defendant had access to TH's
apartment, and spent the night there regularly.    There is no
evidence, however, that defendant ever fed, babysat, or otherwise
cared for the children in any manner or had any authority over
them.   Indeed, there is no evidence that defendant was ever alone
with the children.   Moreover, the People do not deny that the
apartment was the children's home – where they were present with
TH, an adult who was responsible for their care – and the People
propose no theory as to how, short of kidnapping, defendant might
have directly prevented them from remaining there.
           The sleeping arrangements at the time defendant was
arrested are insufficient evidence of control.    They may be
evidence of possible intimacy between TH and defendant, but they
are not evidence of control over the children.    Nor can ability
to control the children be deduced from the evidence suggesting
that defendant may have left clothes at TH's apartment, had use
of a key to the apartment, and given permission for his name to
be used for cable television billing purposes.    Such factors may
support the inference that defendant spent leisure time at TH's
apartment, or even that, in some sense of the word, he
temporarily "lived" there (dissenting op at 2), but they do not
ground the conclusion that he had any ability to control the
children's movements.
           For these reasons, the evidence is legally insufficient


                              - 11 -
                             - 12 -                        No. 94

to establish that defendant permitted TH's children and
grandchild to remain in the apartment within the meaning of Penal
Law § 260.20 (1).
                               V.
          Accordingly, the order of the Appellate Division should
be reversed, the judgment vacated, and the indictment dismissed.




                             - 12 -
People v Anthony Berry
No. 94




PIGOTT, J. (dissenting):
          Penal Law § 260.20 (1) is designed to protect children
from being exposed to illicit drug and sexual activity in
whatever setting such harmful activity may be taking place.    The
statute's language is quite broad.     It makes it a misdemeanor for
"any person" who "knowingly permits a child" to "enter or remain"
in "a place, premises or establishment" where the illegal
activities are taking place, and the person "knows or has reason
to know" that such activity is being "maintained or conducted."
          There is no dispute that defendant knew or had reason
to know of the illegal drug activity happening in the apartment.
Police found in plain view in the kitchen, on the second shelf of
a cabinet which had no door, a plate with powdered cocaine.    They
also discovered crack cocaine packaged for sale in "dime bags" in
a pair of jeans, as well as a significant amount of cash in a
laundry bag.   The mother, the lessee of the apartment, admitted
at trial that she had been selling drugs out of the apartment.
          The majority concludes, however, that the evidence was
insufficient to support the conviction because the People
presented "no evidence that defendant had control over the
apartment" (maj. op. at 10 [emphasis added]). I disagree with


                               - 1 -
                              - 2 -                            No. 94

that conclusion.
          The standard for reviewing the legal sufficiency of the
evidence is whether "after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt" (People v Contes, 60 NY2d 620, 621 [1983]).
          Here, the People proffered testimony that when police
entered the apartment, they found defendant in bed in the living
room with the mother and her three children.   Defendant was
wearing only a tee-shirt and boxer shorts.   He told police that
his clothes were in a drawer of a dresser in the bedroom.    An
officer found a key to the apartment in defendant's jeans.     A
cable bill for the apartment was in defendant's name.
          Viewing this evidence in the light most favorable to
the People1, the jury could have reasonably rejected defendant's
claim that he was homeless and concluded that defendant lived, or
otherwise had control over, the apartment.   Thus, in my view, the
evidence established that defendant knowingly permitted three
underage children to remain in an apartment where he knew, or had
reason to know, that unlawful drug activity was being maintained.


     1
      The majority takes issue with the fact that the People
presented no evidence that defendant ever "fed, babysat or
otherwise cared for the children" or that he was ever alone with
them (maj. op. at 10). None of these factors, however, are
necessary to the inquiry. Indeed, the majority recognizes that
the People need only prove a relation to the child or to the
premises (see id. at 9). Here, the People established the
requisite relationship to the premises.

                              - 2 -
                                - 3 -                           No. 94

*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order reversed, judgment vacated, and indictment dismissed.
Opinion by Judge Fahey. Judges Rivera, Abdus-Salaam and Stein
concur. Judge Pigott dissents in an opinion in which Chief Judge
DiFiore and Judge Garcia concur.

Decided June 14, 2016




                                - 3 -
