Raymond L. Durand, Bronx, for defendant.
Robert T. Johnson, District Attorney of Bronx County (
Lisa A. Bracht of counsel), for plaintiff.
OPINION OF THE COURT
ROSALYN RICHTER, J. This case presents a question of apparent first impression— whether it is legally possible to commit the crime of attempted endangering the welfare of a child. Defendant was charged in language does not specifically mention the word "attempt," it is impossible to commit attempted jostling since the completed crime is "in the nature of" an attempt].) Here, however, the language of the endangering statute does not, either expressly or impliedly, include the attempt to commit the crime within its purview. Finally, the crime of attempted endangering the welfare of a child is expressly contemplated and acknowledged in Penal Law § 260.11. That section states, in relevant part: "A person shall not be convicted of endangering the welfare of a child, or of an attempt to commit the same, upon the testimony of a victim who is incapable of consent because of mental defect or mental incapacity as to conduct that constitutes an offense or an attempt to commit an offense referred to in section 130.16." (Penal Law § 260.11 [emphasis added].) Although the requirements outlined in this section are not applicable to the instant case, the statute is persuasive authority for the proposition that the Legislature intended that a defendant could properly be convicted of attempted endangering the welfare of a child. No reason exists for this court to question this legislative judgment. This court can conceive of numerous types of conduct which could be the subject of an attempted endangering the welfare of a child charge, but would not also establish the completed crime. Such examples are: a defendant who exposes himself to an undercover police officer posing as a child, but who is, in fact, over 16 years of age; a defendant who is thwarted in an attempt to throw her infant into a tub of scalding water; and an intoxicated defendant who starts the engine of a car containing children in the back seat, but does not drive away. Because there are numerous examples of conduct that could be prosecuted as an attempt to endanger the welfare of a child, the instant charge is neither fictional nor impossible to commit. Therefore, for the reasons stated, defendant's conviction for attempted endangering the welfare of a child stands, and his motion to set aside the verdict is denied.[3] [1] Defendant was acquitted of the remaining charges. [2] Defendant never alerted the court to this claim either at the time the People applied to reduce the endangering charges to attempts, or at any point during the trial. Defendant's failure to object, however, does not end the inquiry since the claim is not waivable. (See, People v Martinez, 81 NY2d 810 [1993].) [3] Defendant also contends that the evidence at trial was deficient in that it failed to establish his specific intent to cause injury to the physical, mental or moral welfare of the victim. Because defendant was tried without a jury, this court lacks the authority to reweigh the factual evidence and reconsider its verdict. (See, People v Maharaj, 89 NY2d 997, 999 [1997].) In any event, as noted above, the crime does not require that a defendant intend to cause injury to a child's physical, mental or moral welfare; it merely proscribes knowingly engaging in conduct likely to cause such injury.