        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

338
KA 11-02070
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

KYLA A. ROGALSKI, DEFENDANT-RESPONDENT.


FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR APPELLANT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), dated July 11, 2011. The order, insofar as appealed
from, dismissed count three of the indictment.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law, that part of defendant’s omnibus motion seeking
to dismiss count three of the indictment is denied and that count is
reinstated.

     Memorandum: The People appeal from an order insofar as it
granted that part of defendant’s omnibus motion seeking to dismiss
count three of the indictment, charging defendant with endangering the
welfare of a child (Penal Law § 260.10 [1]). Based on our review of
the sealed grand jury minutes, we conclude that the evidence before
the grand jury was legally sufficient to support a prima facie case of
endangering the welfare of a child. “A person is guilty of [that
crime] when . . . [h]e or she knowingly acts in a manner likely to be
injurious 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, quoting People v
Simmons, 92 NY2d 829, 830 [emphasis added]). We conclude that the
evidence presented to the grand jury, “viewed in the light most
favorable to the People, if unexplained and uncontradicted, [was]
sufficient to warrant conviction by a trial jury” of the count
charging defendant with endangering the welfare of a child (People v
Manini, 79 NY2d 561, 568-569; see People v Pelchat, 62 NY2d 97, 105),
based on a determination that defendant’s conduct was likely to be
injurious to the physical welfare of the subject child.

     All concur except CENTRA, J.P., and LINDLEY, J., who dissent and
vote to affirm in the following Memorandum: We respectfully dissent
and would affirm the order granting that part of defendant’s omnibus
                                 -2-                           338
                                                         KA 11-02070

motion seeking to dismiss count three of the indictment, charging her
with endangering the welfare of a child (Penal Law § 260.10 [1]). “A
person is guilty of [that crime] when . . . [h]e or she knowingly acts
in a manner likely to be injurious to the physical, mental or moral
welfare of a child less than [17] years old” (id.). We conclude, and
the majority apparently does not dispute, that the evidence before the
grand jury, viewed in the light most favorable to the People (see
People v Manini, 79 NY2d 561, 568-569; People v Pelchat, 62 NY2d 97,
105), did not establish that defendant’s conduct was likely to be
injurious to the mental or moral welfare of the infant child in
question (cf. People v Engelsen, 92 AD3d 1289, ___). Contrary to the
conclusion of the majority, we further conclude that the evidence
before the grand jury did not establish that defendant’s conduct was
likely to be injurious to the physical welfare of the child. “The
People . . . must establish that the harm was likely to occur, and not
merely possible” (People v Hitchcock, 98 NY2d 586, 591). Here, the
police approached defendant’s vehicle after she made a wide turn and
stopped in a parking lot, and she thereafter was charged with, inter
alia, aggravated felony driving while intoxicated (Vehicle and Traffic
Law § 1192 [2-a] [b]; § 1193 [1] [c] [i] [B]). We conclude that the
evidence before the grand jury was legally insufficient to establish
that “ ‘defendant act[ed] in a manner which is likely to result in
harm to the child’ ” (People v Johnson, 95 NY2d 368, 371, quoting
People v Simmons, 92 NY2d 829, 830 [emphasis added]). We reject the
People’s contention that a defendant’s conduct in driving while
intoxicated with a child in the vehicle, by itself, is enough to
support a charge of endangering the welfare of a child (see generally
People v Chase, 186 Misc 2d 487, 489, lv denied 95 NY2d 962).




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
