         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
490
KA 10-02313
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

ANNE BERNARDO, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR APPELLANT.

MARRIS & BARTHOLOMAE, P.C., SYRACUSE (WILLIAM R. BARTHOLOMAE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
J. Brunetti, A.J.), dated March 23, 2010. The order granted the
motion of defendant to dismiss the indictment pursuant to CPL 210.20
(1) (f) and 30.10.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the motion seeking to dismiss the
indictment is denied, the indictment is reinstated, and the matter is
remitted to Supreme Court, Onondaga County, for further proceedings on
the indictment.

     Memorandum: The People appeal from an order granting defendant’s
motion to dismiss the indictment. We reverse. Defendant was indicted
on October 9, 2009 for endangering the welfare of a child (Penal Law §
260.10 [1]) based on evidence that she suffered from Munchausen
syndrome by proxy and had subjected her son to unnecessary medical
treatments from 2000 through 2009. Although most of the allegedly
unnecessary medical intervention occurred in New York, the child was
also hospitalized in Massachusetts for blood poisoning in 2007. The
child’s medical records indicate that the hospital staff in
Massachusetts suspected defendant of intentionally sickening the
child. Also, while the child was still hospitalized in Massachusetts
in December 2007, the hospital staff suspected defendant of
intentionally sickening the child again when a tube of black acrylic
paint was found in his stool, and defendant was banned from the
hospital. Indeed, a physician at the hospital testified before the
grand jury that he believed defendant, who was a nurse, had used the
paint in an attempt to make the child’s stool appear bloody and
thereby generate further medical tests on the child.

     We agree with the People that Supreme Court erred in determining
that it did not have geographical jurisdiction over the offense. CPL
                                 -2-                           490
                                                         KA 10-02313

20.20 codifies the rule that, “for [New York] to have criminal
jurisdiction, either the alleged conduct or some consequence of it
must have occurred within the State” (People v McLaughlin, 80 NY2d
466, 471). Pursuant to CPL 20.20 (1) (a), a person may be prosecuted
in New York when an element of the offense occurred in the State.
Endangering the welfare of a child is considered a continuing offense
because it “does not necessarily contemplate a single act . . .
[Rather], a defendant may be guilty of [that offense] by virtue of a
series of acts, none of which may be enough by itself to constitute
the offense, but each of which when combined make out the crime”
(People v Keindl, 68 NY2d 410, 421, rearg denied 69 NY2d 823; see
People v Hutzler, 270 AD2d 934, 935-936, lv denied 94 NY2d 948).

     Here, defendant began abusing her son in New York and continued
in that course of conduct in Massachusetts. The record establishes
that several tubes were unnecessarily surgically implanted in the
child and that at least one of those tubes was implanted in New York
before the child ever received any treatment in Massachusetts.
Furthermore, the record of the grand jury proceeding establishes that
unnecessary biopsies and X rays were conducted on the child in New
York. We thus conclude that an element of endangering the welfare of
a child occurred in New York and that the court had geographical
jurisdiction over the offense pursuant to CPL 20.20 (1) (a) (see
People v Muhammad, 13 AD3d 120, 121, lv denied 4 NY3d 801, 828; People
v Quackenbush, 98 AD2d 875; People v Hogle, 18 Misc 3d 715, 720).

     We also agree with the People that the indictment is not time-
barred. The offense of endangering the welfare of a child, a class A
misdemeanor, is subject to a two-year statute of limitations (see CPL
30.10 [2] [c]). The limitations period does not commence until after
the last act of abuse occurs (see People v DeLong, 206 AD2d 914, 916),
which was in December 2007. Thus, the indictment filed in October
2009 is timely.




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
