Opinion
No. 2017BX014899V.
08-24-2017
The PEOPLE of the State of New York v. Rashid BRIMMAGE, Defendant.
The defendant's omnibus motion for pre-trial relief is decided as follows:
MOTION TO DISMISS—FACIAL INSUFFICIENCY:
Defendant is charged in the misdemeanor information with committing the crime of resisting arrest (PL 205.30) and the violation of disorderly conduct (PL 240.20). The misdemeanor information reads, in pertinent part, that on or about April 10, 2017 at approximately 7:55 a.m. inside of 234 East 149th Street in the county of the Bronx deponent, P.O. Orlando Badillo of HHCPD observed:
"defendant seated inside of the waiting area of Lincoln Hospital without speaking to hospital staff or personnel that he gave defendant several lawful orders to exit the premises that defendant refused and when he attempted to place defendant under arrest for the aforementioned conduct, deponent flailed his arms, then locked his arms in place in an effort to avoid being handcuffed ."
Defendant moves to dismiss the accusatory instrument pursuant to CPL 170.35, CPL 100.25 and CPL 100.40 claiming that it fails to contain factual allegations sufficient to provide reasonable cause that defendant committed the offenses charged.
The People, in opposition to defendant's motion, contend that the information is facially sufficient in that it provides adequately detailed facts that support the charges and suitable notice for defendant to prepare a defense to the charges alleged in the information.
Defendant's motion to dismiss the accusatory instrument for facial insufficiency is decided as follows:
In order for a misdemeanor information to be sufficient on its face it must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged ( CPL section 100.15[3] ; CPL 100.40(1)[b] ; CPL 70.10 ). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses charged (see CPL 100.40(1)[c] ; People v. Henderson, 92 N.Y.2d 677 ). Reasonable cause exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" ( CPL § 70.10[2] ). An information which fails to satisfy these requirements is jurisdictionally defective (see CPL 170.35 ); People v. Alejandro, 70 N.Y.2d 133 ; People v. Dumas, 68 N.Y.2d 729 ).
The People bear the burden of satisfying the facial sufficiency requirements by doing so within the "four corners" of the accusatory instrument [see People v. Jones, 9 NY3d 259 ; People v. Thomas, 4 NY3d 143 ; People v. Liranzo, 46 Misc.3d 140(A) ]. In reviewing and evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the People (see People v. Williams, 84 N.Y.2d 925 ; People v. Contes, 60 N.Y.2d 620 ; People v. Barona, 19 Misc.3d 1122[A] ). Although, mere conclusory allegations are insufficient, (see People v. Dumas, supra.), an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v. Mills, 1 NY3d 268; People v. Bello, 92 N.Y.2d 523 ; People v. Mayo, 36 N.Y.2d 1002 ). Rather, they need only provide an accused with adequately detailed factual allegations of an evidentiary nature sufficient for a defendant to prepare a defense and prevent him from being tried twice for the same offense (see People v. Kasse, 22 NY3d 1142 ).
Disorderly Conduct
Penal Law section 240.20 provides that:
"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior."
"The ‘disorderly conduct’ statute was ‘designed to proscribe only that type of conduct which has a real tendency to provoke public disorder’, Staff Notes of the Commission on Revision of the Penal Law ...", (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, PL 240.20, at 347, 2008). In assessing whether an act carries public ramifications, relevant factors to consider are the nature and character of the conduct; the time and place of the episode under scrutiny; whether defendant's conduct occurred in a public location; the number of other people in the vicinity; whether other people were drawn to the disturbance and, if so, the number attracted; the extent to which defendant's conduct annoyed others; whether defendant's conduct created, at least, the risk that disorder might result and any other relevant circumstances (see People v. Weaver, 16 NY3d 123 ; People v. Munafo, 50 N.Y.2d 326 ; People v. Pritchard, 27 N.Y.2d 246 ; People v. Dennis, 13 Misc.3d 41 supra).
Here, as an initial matter, the information fails to contain any allegation demonstrating reasonable cause that defendant was "engaged in fighting or in violent, tumultuous or threatening behavior" [PL 240.20(1) ]. The allegation that defendant was "... seated inside of the waiting area of Lincoln Hospital without speaking to hospital staff or personnel", even when viewing it in the light most favorable to the People, does not indicate that he was acting in a disruptive manner. Rather, it appears that his behavior was quite the opposite and innocuous in nature. Clearly, the conduct sought to be deterred under the PL 240.20 statute is " ‘considerably more serious than the apparently innocent’ conduct of defendant here' ", People v. Jones, supra. quoting People v. Carrel, 3 N.Y.2d 327.
Additionally, the information fails to set forth sufficient facts to establish a prima facie showing that defendant's conduct was accompanied by the required statutory mental state of "intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof" (PL 240.20); (see People v. Jones, supra; People v. Perkins, 150 Misc.2d 543 ). There are no allegations in the information that any person was annoyed or alarmed by defendant's behavior inside of the hospital waiting area. Moreover, the information fails to allege that any members of the public were even present inside of it at the time. Thus, there are no factual allegations indicating that defendant's conduct had a "public dimension", which is a necessary component of the disorderly conduct offense (see People v. Jones, supra; People v. Munafo, supra; People v. Sulker, 52 Misc.3d 141(A) ; People v. Canjura, 2014 WL 6980429 ; People v. Dennis, supra).
Based on the foregoing, the charge of disorderly conduct is dismissed for facial insufficiency.
Resisting Arrest
Penal Law section 205.30 provides that:
"A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person".
"A key element of resisting arrest is the requirement that the arrest be authorized, i.e. that the arrest be premised on probable cause ( People v. Jensen, 86 N.Y.2d 248, 253 [1995] ; People v. Alejandro. 70 N.Y.2d 133 [1987] ; People v. Peacock, 68 N.Y.2d 675, 676–677 [1986] ; People v. Parker, 33 N.Y.2d 669 [1973] )", People v. Dennis, supra; (see also, William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, CPL 205.30, 1999).
Here, although the information alleges that defendant struggled with the officer at the time of his arrest, inasmuch as the officer did not have probable cause to believe that defendant had committed the offense of disorderly conduct, the officer's arrest was not authorized. Thus, an essential element of the resisting arrest charge was not established (see People v. Jensen, supra; People v. Alejandro, supra; People v. Peacock, 68 N.Y.2d 675 ; People v. Parker, 33 N.Y.2d 669 ; People v. Dennis, supra).
The Court further notes that inasmuch as defendant is not charged in the information with any trespass related offense, it appears that there was no legal basis for the officer to have ordered defendant to exit the premises.
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Based on the foregoing, the charge of resisting arrest is dismissed for facial insufficiency.
Accordingly, defendant's motion to dismiss the information pursuant to CPL 170.35 is granted.
The remaining branches of defendant's omnibus motion are rendered moot.
Order entered accordingly.
The Clerk of the Court is directed to forward a copy of this memorandum and order to the attorney for the defendant and the District Attorney.