The charge of endangering the welfare of an incompetent person presents the court with a problem not previously addressed in the reported decisions, namely, the relationship of P.L. 260.25 to the various provisions of the Mental Hygiene Law.
The penal offense occurs when the defendant knowingly acts in a manner likely to be injury to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect (P.L. 260.25). As to this charge the investigator states in the complaint that she observed that at the aforementioned date, time and location the deft did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of complaining witness, who is unable to care for herself because of mental disease or defect, in that the deft did punch complaining witness in her face with closed fist. Of course, the portion of the allegation relating to the punch is based on personal observation but the portion relating to mental disease or defect is an unsupported conclusion. 1 The investigator, to set forth the basis for her assertion as to the complaining witness’ condition, added: Deponent further states that she is informed by LC, Director of Mental Retardation, that complaining personal injury witness have been adjudged to be mentally incompetent.
That statement being hearsay, the People filed a corroborating affidavit by Mr. LC in which he stated: 1. I, LC, Director of Mental Retardation at the Bronx Developmental Center, hereby assert that I have read the accusatory instrument relating to this matter. 2. That I have reviewed the medical records pertaining to complaining witness, the complainant in this case, and that the assertion, upon information and belief, of mental incompetency is true.
The issue here is whether this affidavit is sufficient to convert the complaint to an information.
An adjudication of mental incompetence is not an element of the crime of endangering the welfare of an incompetent person (P.L. 260.25). Under that section, a person commits the crime when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect. Contrast this with section 78.01 of the Mental Hygiene Law which provides that: The supreme court, and the county courts outside the city of New York, have exclusive jurisdiction over the custody of a person and his medical property if he is incompetent to manage himself or his affairs by reason of age, alcohol abuse, mental illness, or other cause.
It is apparent that a person can be adjudicated incompetent for reasons other than mental disease or defect. Also, an adjudication may be made due to the person’s inability to manage his affairs, as distinguished from himself. Thus, an allegation that the complaining witness had been adjudicated to be mentally incompetent is too broad to set forth an element of the crime. Since the allegation of adjudication in the complaint adds nothing relevent, the affidavit of the Director of Mental Retardation is equally superfluous.