BERNARDO, ANNE, PEOPLE v ( 2011 )


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  •          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
    

Document Info

Docket Number: KA 10-02313

Filed Date: 5/6/2011

Precedential Status: Precedential

Modified Date: 10/8/2016