Traditionally, the crime of “Unlawfully Dealing with a Child” has been employed in cases involving the sale of alcohol to a minor, as subsection two of Penal Law Statute 260.20 makes it a class “A” misdemeanor to give or sell an alcoholic beverage to a person under the age of 21. Prosecutors and police are increasingly utilizing subsection 1 of that same statute, which deals with cases where people knowingly permit children to enter or remain in locations where certain illegal sexual activity is being conducted, or where “activity involving controlled substances” or marijuana is “maintained and conducted.” This blog entry deals with the portion of the section which pertains to the utilization of the charge in the context of drug cases. The applicable language of the statute is as follows:
S 260.20 Unlawfully dealing with a child in the first degree.
A person is guilty of unlawfully dealing with a child in the first
1. He knowingly permits a child less than eighteen years old to enter
or remain in or upon a place, premises or establishment where sexual
activity as defined by article one hundred thirty, two hundred thirty or
two hundred sixty-three of this chapter or activity involving controlled
substances as defined by article two hundred twenty of this chapter or
involving marihuana as defined by article two hundred twenty-one of this
chapter is maintained or conducted, and he knows or has reason to know
that such activity is being maintained or conducted.
(Unlawfully dealing with a child in the first degree is a class A misdemeanor)
Unlawfully Dealing with a Child in the First Degree is increasingly being charged by law enforcement in any case where narcotics are recovered in the vicinity of children, regardless of whether the elements of the charge are actually met. The most common fact pattern lately is as follows: the police department executes a search warrant at the home of a family, they “boom” the door in the middle of the night and arrest everyone inside and remove any children from the apartment. They search the entire apartment and recover a quantity of drugs from a container in the apartment and then charge one or more individuals with drug possession. For law enforcement, the mere fact that children were observed in an apartment where drugs were recovered is sufficient to levy this serious charge, however this is too broad an application of the crime. While police may believe that a child’s presence in a location where drugs are found (regardless of whether or not those drugs are in closed containers or packaged and hidden) is sufficient to make out this crime, a closer reading of the statue indicates otherwise. Indeed, the statute was enacted to punish people who permit children to witness harmful drug activity for obvious reasons. The law does not, however, have any applicability where drugs are secreted somewhere in an apartment and children happen to be present while they are there. Yet, law enforcement continues to levy this serious charge in situations they shouldn’t, and some prosecutors are going along with the idea that the charge should be pursued.
It should also be noted that a person has to “permit” a child to enter or remain in the place where the drug activity is being carried out. We have handled cases where individuals were charged with possessing drugs and unlawfully dealing with children where drugs were recovered from an apartment owned or rented by a third person, and where that third person’s children were present at the time police made the recoveries. It is hard to imagine how someone could rightfully be accused of permitting a child to remain in premises where drug activity was being carried out if they stashed drugs in a closed container and had no authority to permit the children of another to enter or leave the location. Yet, law enforcement continues to charge the crime in any case where drugs and children happen to be under one roof, regardless of whether the elements of the statute are met.
Unlawfully Dealing with a Child is a serious crime with serious consequences, including significant jail time. If you or someone you know has been accused of committing this crime, contact an experienced criminal defense attorney immediately.
“NY Attorneys Explain the Crime of “Unlawfully Dealing with a Child”