People v. Mercado

DiLorenzo & Rush, Bronx (Christopher M. DiLorenzo of counsel), for defendant. Robert T. Johnson, District Attorney of Bronx County (Rachel Singer of counsel), for plaintiff.

OPINION OF THE COURT

DIANE KIESEL, J. The question before this court is whether the People have effectively corroborated the ages of child informants in a criminal complaint alleging two counts of endangering the welfare of a child where the only evidence of the children's ages is a blanket assertion of their dates of birth. The answer is no. The defendant, Maria Mercado, is currently charged with two counts of endangering the welfare of a child in violation of Penal Law § 260.10 (1). It is alleged that on October 14, 1999, the defendant was raising two children in a filthy apartment, the supporting deposition of someone who observed the child complainant and could describe in detail the height, size, wearing apparel or other pertinent descriptive commentary that would clearly peg the subject child as a person under 17 years of age. And, of course, there is no prohibition against a child providing his or her own date of birth, as long as the child is capable of doing so. In the alternative, the People contend that the complaint, as written, includes a recitation of the deponent police officer describing the children in a manner making it clear that they are less than 17. This court does not agree. The complaint merely states that the deponent, Police Officer Sandy Garcia, observed "soiled diapers." It fails to state who, if anyone, is wearing those diapers. For all the reader knows, they could be in a heap on the floor. One cannot reach the conclusion that because there were soiled diapers somewhere within the officer's line of vision that the children named in the complaint were of an age to be wearing them. Without the hearsay statement listing their dates of birth, there is simply no way to determine the ages of the children from reading this complaint. Accordingly, this complaint has not yet been converted into an information. The People are hereby granted leave to file a superceding information, or to corroborate the existing complaint in a manner that eliminates the hearsay from the factual allegations.