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

174
KA 11-01548
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                                     MEMORANDUM AND ORDER

JON P. ENGELSEN, DEFENDANT-RESPONDENT.


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

FIANDACH & FIANDACH, ROCHESTER (EDWARD L. FIANDACH OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered May 9, 2011. The order, among other things,
granted in part defendant’s motion to dismiss the indictment.

     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 indictment are
reinstated.

     Memorandum: The People appeal from an order granting those parts
of defendant’s omnibus motion seeking to dismiss counts two and four
of the indictment, charging defendant with endangering the welfare of
a child (Penal Law § 260.10 [1]). Upon our review of the sealed grand
jury minutes, we agree with the People 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]).

     Even assuming, arguendo, 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), does not
establish that defendant’s conduct was likely to be injurious to the
physical welfare of the subject children (see generally People v
Chase, 186 Misc 2d 487, 488-489, lv denied 95 NY2d 962; cf. People v
D’Ambrosia, 192 Misc 2d 560, 561-562), we conclude that the evidence
established that defendant’s conduct was likely to be injurious to
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                                                         KA 11-01548

their mental or moral welfare. We note that defendant’s alleged
conduct is not limited to operating a motor vehicle while intoxicated
and with the 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]). Although “evidence of
intoxication . . . may be offered by 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 intoxicated person may be capable of forming criminal intent (see
People v Scott, 111 AD2d 45). The question whether defendant’s
intoxication destroyed his ability to form the requisite intent is one
for the jury to resolve at trial (see id.; People v Leary, 64 AD2d
825).




Entered:   February 17, 2012                    Frances E. Cafarell
                                                Clerk of the Court
