
    The People of the State of New York, Appellant, v Jon P. Engelsen, Respondent.
    [938 NYS2d 488]
   Memorandum: The People appeal from an order granting those parts of defendant’s omnibus motion seeking to dismiss counts two and four of the indictment, charging defendant with endangering the welfare of a child (Penal Law § 260.10 [1]). Upon our review of the sealed grand jury minutes, we agree with the People that the evidence before the grand jury was legally sufficient to support a prima facie case of endangering the welfare of a child. “A person is guilty of [that crime] when . . . [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old” (id.). “Actual harm to the child need not result for criminal liability [to be imposed. Rather,] it is ‘sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child’ ” (People v Johnson, 95 NY2d 368, 371 [2000], quoting People v Simmons, 92 NY2d 829, 830 [1998]).

Even assuming, arguendo, that the evidence before the grand jury, viewed in the light most favorable to the People (see People v Manini, 79 NY2d 561, 568-569 [1992]; People v Pelchat, 62 NY2d 97, 105 [1984]), does not establish that defendant’s conduct was likely to be injurious to the physical welfare of the subject children (see generally People v Chase, 186 Misc 2d 487, 488-489 [2000], lv denied 95 NY2d 962 [2000]; cf. People v D’Ambrosia, 192 Mise 2d 560, 561-562 [2002]), we conclude that the evidence established that defendant’s conduct was likely to be injurious to their mental or moral welfare. We note that defendant’s alleged conduct is not limited to operating a motor vehicle while intoxicated and with the children in the vehicle as passengers.

We reject defendant’s contention that his intoxication rendered him incapable of “knowingly” acting in a manner that would place the children at risk (Penal Law § 260.10 [1]). Although “evidence of intoxication . . . may be offered by the defendant whenever it is relevant to negat[e] an element of the crime charged,” intoxication “is not, [in itself], a defense to a criminal charge” (§ 15.25), and an intoxicated person may be capable of forming criminal intent (see People v Scott, 111 AD2d 45 [1985]). The question whether defendant’s intoxication destroyed his ability to form the requisite intent is one for the jury to resolve at trial (see id.; People v Leary, 64 AD2d 825 [1978]). Present — Centra, J.P., Fahey, Peradotto, Garni and Lindley, JJ.  