The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a three-judge dissenting opinion, determined the evidence was not sufficient to support defendant's conviction for permitting children to enter or remain in a place of drug activity (unlawfully dealing with a child). Defendant was an occasional guest in the apartment where mother and her children resided. The Court of Appeals held that the People did not demonstrate a relationship between defendant and the children or the apartment such that defendant could control whether children were allowed to enter or remain:
… [W]e hold that to establish that a defendant permitted a child to enter or remain in a particular place, premises, or establishment, under Penal Law § 260.20 (1), the People must show that defendant's relation to the child or to the place, premises or establishment was of such a kind that defendant had some ability to control the child, so as to permit the child to enter or remain in the place in question. Moreover, a mere ability to notify authorities does not constitute such ability to control, or the statute might apply to anyone who comes into contact with a child entering or remaining in one of the proscribed places. People v Berry, 2016 NY Slip Op 04656, CtApp 6-14-16
CRIMINAL LAW (EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND)/EVIDENCE (CRIMINAL LAW, EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND)/UNLAWFULLY DEALING WITH A CHILD (EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND)/CONTROLLED SUBSTANCES (UNLAWFULLY DEALING WITH A CHILD, EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND)