Opinion
2005NY044001.
Decided October 24, 2005.
Defendant was represented by: Jess M. Berkowitz, Esq. New York, NY.
The People were represented by:A.D.A. Claudine Caracciolo New York County District Attorney's Office New York, NY.
Defendant, a bystander in the area in which a shooting had occurred, ceased cooperating with a police officer's investigation. When she refused to remain where the officer directed her, she was arrested for obstruction of governmental administration in the second degree (Penal Law § 195.05). Because the defendant reacted violently to the arrest, she was also charged with resisting arrest (Penal Law § 205.30) and disorderly conduct (Penal Law § 240.20).
Because a citizen is under no obligation to respond to police inquiries, and in New York there is neither statutory nor common law authority for law enforcement to detain a witness involuntarily under the circumstances alleged in this complaint, the defendant's motion to dismiss the obstruction of governmental administration and resisting arrest charges must be granted. In addition, the disorderly conduct charge is also dismissed as facially insufficient because the information fails to allege facts supporting the essential element of disorderly conduct that the defendant acted with intent to cause public inconvenience, annoyance or alarm or recklessly created a risk thereof.
The factual part of the accusatory instrument reads as follows:
Deponent [a police officer] states that: (i) at the above time, the deponent was investigating a shooting near the above location; (ii) defendants Ferreira and Grullon were witnesses to the above mentioned shooting; (iii) deponent informed both defendants that they were not to leave the above location as they were essential witness [sic] to deponent's investigation; and (iv) both defendants refused to comply with the officer's order in that both defendant's repeatedly attempted to leave the above location and both defendants began yelling and cursing the deponent.
Deponent further states that when deponent was placing defendant Grullon under arrest for the offense described above: (i) defendant Grullon raised her closed fist towards the deponent as if to strike the deponent, (ii) defendant Ferreira grabbed deponent's wrist and removed deponent's hand from defendant Grullon's wrist, preventing deponent from placing handcuffs on defendant Grullon's wrist; (iii) defendant Grullon flailed her arms; and (iv) defendant Ferreira physically turned the deponent away from defendant Grullon and, thereby, further prevented deponent from arresting defendant Grullon.
Deponent further states that while the deponent was placing defendant Ferreira under arrest for the above-described actions: (i) defendant Grullon jumped on the back of deponent; (ii) defendant Grullon repeatedly kicked the deponent; (iii) defendant Grullon dug her nails into the deponent's hands as deponent was placing handcuffs on defendant Ferreira; and (iv) defendant Grullon attempted to strike the deponent in the groin area with her knee.
In order to be facially sufficient, an information must contain an accusatory part designating the offense or offenses to be charged (CPL 100.15, [2]) and a factual part containing facts of an evidentiary nature supporting or tending to support the charges (CPL 100.15, [3]). The factual allegations, together with any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged (CPL 100.40 [b], [4] [b]; People v. Casey, 95 NY2d 354). In addition, a sufficient information must also contain non-hearsay allegations in the factual part and/or in any supporting depositions that, if true, establish every element of the offense and the defendant's commission of the offense (CPL 100.40 [c]; People v. Alejandro, 70 NY2d 133; People v. Hall, 48 NY2d 927). Conclusory allegations are insufficient ( People v. Dumas, 68 NY2d 729). "So long as the factual allegations of an information give an accused notice sufficient to prepare for a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v. Casey, 95 NY2d 354, 360; see also People v. Konieczny, 2 NY3d 569, 574).
Obstruction of Governmental Administration
Penal Law § 195.05 provides that "A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . ." An essential element of this offense is that the governmental function the defendant allegedly interfered with must have been authorized ( People v. Lupinacci, 191 AD2d 589 [2nd Dept. 1993], People v. Vogel, 116 Misc 2d 332 [App Term, 2nd Dept., 1982], People v. Joseph, 156 Misc 2d 192 [Crim Ct, Kings County, 1992], People v. Simon, 145 Misc 2d 518 [Crim Ct, New York County, 1989], People v. Stumpp, 129 Misc 2d 703 [Suffolk Dist Ct, 1985]).
In the present case, while the police were authorized to investigate the shooting and to question witnesses about it, the police did not have the authority to force the defendant to remain in that location to answer questions. The power of law enforcement to detain citizens involuntarily is subject to Constitutional limits. In accordance with the Fourth Amendment, New York courts and the legislature have set forth a hierarchy of the authority of law enforcement to stop and detain criminal suspects, based on levels of suspicion. The first and least intrusive form of police action is a request for information, which is permissible as long as the police have some objective reason for the intrusion and are not acting on a whim or hunch ( People v. DeBour, 40 NY2d 210, 223). The second level is the common law right to inquire, under which a police officer with a "founded suspicion that criminal activity is afoot" may "interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" ( Id. at 223). Next, New York Criminal Procedure Law § 140.50 gives the police the authority to stop a suspect and demand the suspect's name, address and an explanation of the suspect's conduct when the police officer reasonably suspects that the suspect is committing, has committed or is about to commit a felony or a misdemeanor. That statute also authorizes an officer who reasonably suspects that there is a danger of physical injury, to search the citizen for deadly weapons. The final and most intrusive level of police interaction with individual citizens, is an arrest, where the arresting officer has probable cause to believe the suspect has committed a crime or offense in the officer's presence ( DeBour, 40 NY2d at 223).
It is well settled under this hierarchy of authority to detain that, "[w]hen the police lack a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, which is necessary to justify a forcible stop, they cannot stop an individual who exercises his or her right to be let alone and to refuse to respond to police inquiry" ( People v. Adams, 194 AD2d 102, 106 [3rd Dept 1993] [internal quotation marks omitted]; see also People v. Howard, 50 NY2d 583, 586 ["An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away."], People v. Cantor, 36 NY2d 106, 112 ["Before a person may be stopped in a public place a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime."]).
In this case the police detained a witness, not a criminal suspect. The permissible intrusion upon a witness' freedom is not co-extensive with that of a suspect. The Court of Appeals has held that "the Fourth Amendment does not permit the stopping of potential witnesses to the same extent as those suspected of crime." ( People v. Spencer, 84 NY2d 749, 756).
Case law teaches that when dealing with citizens who may be witnesses to a crime the police have limited powers to detain, inquire and to freeze potentially dangerous situations in order to maintain the status quo. None of these circumstances are set forth in this information. In People v. Cortes, 86 Misc 2d 155 (Sup Ct, New York County, 1976), the Court detailed the police power to inquire and found that this "power to inquire also includes the power to detain, at least for a period of time sufficient to ascertain whether the person does have knowledge of the particular crime under investigation and whether he is willing to answer questions." ( Id. at 159). Here, a fair reading of the allegations in the information shows that the police had a reasonable time to ascertain whether the defendant had information about the crime and when she tried to leave, the police knew the defendant was no longer willing to cooperate with the investigation. At that point the police had exhausted whatever limited authority existed under Cortes to detain the defendant.
In addition to this limited authority to detain and question witnesses, the police have emergency power to freeze potentially dangerous situations to maintain the status quo while they gather additional information ( see People v. Chestnut, 51 NY2d 14, 22-23, People v. Gutierrez, 129 AD2d 463 [1st Dept, 1987], People v. Lenart, 91 AD2d 132, 135 [2nd Dept, 1983], People v. Djokaj, NYLJ, Oct. 6, 1989, at 21 [Sup Ct, Bronx County]). However, this emergency doctrine is inapplicable because the information fails to allege any facts establishing an immediate danger to the police or any others which would make detention of potential witnesses a reasonable response to the circumstances ( see Chestnut, 51 NY2d at 23, Gutierrezi, 129 AD2d at 467, Lenart, 91 AD2d at 134, Djokaj, NYLJ, Oct. 6, 1989, at 21).
Finally, when this defendant refused further cooperation with the police, she did not obstruct governmental administration within the meaning of PL § 195.05. Because case law establishes that a citizen's act of leaving, or even running from, the police does not violate the statute, it follows that this defendant's attempt to leave the scene did not violate the statute. For example, in People v. Offen ( 96 Misc 2d 147 [Crim Ct, NY County 1978]), cited with approval by the Court of Appeals in In re Davan L. ( 91 NY2d 88), police officers observed the defendant littering on the sidewalk. When an officer informed the defendant that he would receive a summons, the defendant ignored the officer's demand for identification, a prerequisite to the summons process, and replied "go f**k yourself" ( Offen, 96 Misc 2d at 148, 149). The defendant then fled into a store, locked the door, and refused to allow the officers to enter ( id. at 149). The court dismissed the obstructing governmental administration charge, holding that the defendant's refusal to provide identification and his subsequent refusal to open the door to the officers was not a crime ( id. at 150; see also People v. Tillman, 184 Misc 2d 20 [Auburn City Ct, 2000] [dismissing a charge of obstructing governmental administration against a suspect in a narcotics investigation, who, after he was stopped for questioning, ran from the police], People v. Bryan, 190 Misc 2d 818, 823 [Poughkeepsie City Ct, 2002] [holding that running from the police to avoid an arrest is not an independently unlawful act]). If a person the police suspect of a crime or who the police see commit an offense can not be guilty of obstructing governmental administration for running from the police, then a potential witness cannot be guilty of that offense for discontinuing cooperation and trying to walk away.
The holding of this case does not leave the police without recourse when they need to secure the cooperation of a witness. New York Criminal Procedure Law Articles 610 and 620 set forth the proper procedures for securing a witness' presence at criminal proceedings either by a subpoena or, if a witness is particularly recalcitrant, with a material witness order. Both of these mechanisms are available in a grand jury proceeding, and thus can be used as investigative tools ( see NY CPL § 610.20 620.20). In this case, the defendant asserts, and the People have not disputed in their opposition papers, that she gave the police her contact information. If the police believed defendant possessed any needed information, the police or the prosecutor could have employed either of these methods to secure her assistance.
As, under the circumstances set forth in the information, the police did not have the authority to detain the defendant, her refusal to remain at the location where the police instructed her to wait did not amount to obstruction of governmental administration and that charge is dismissed.
Resisting Arrest
Penal Law § 205.30 states: "[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." The statute requires that the arrest be authorized ( People v. Alejandro, 70 NY2d 133, 135; People v. Peacock, 68 NY2d 675, 676). Here, the allegations do not give reasonable cause to believe that the defendant's arrest was authorized. The allegations in the information indicate that the instant arrest was for obstruction of governmental administration. As the allegations in the information do not support that charge, the arrest was not authorized and the resisting arrest charge is dismissed as well.
Disorderly Conduct
Penal Law § 240.20(1) states, "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk therof: (1) He engages in fighting or in violent, tumultuous or threatening behavior." Here, the accusations do not provide reasonable cause to believe that the defendant "intend[ed] to cause public inconvenience, annoyance or alarm, or recklessly creat[ed] a risk thereof" (PL 240.20; CPL 100.15; CPL 100.40 [b]; People v. Mufano, 50 NY2d 326; People v. Gonzalez-Muniz, 2001 NY Slip Op 40182U [Crim Ct, NY County, August 9, 2001]; People v. Palmer, 176 Misc 2d 813 [Crim Ct, NY County 1998]). Assuming the defendant's conduct actually occurred in public (the information is silent as to the location), there are no allegations as to how the public was inconvenienced, the number of people gathered, or the nature of the public alarm ( see also the opinion in the companion case People v. Ferreira, NYLJ, Oct. 24, 2005, at 19, col 1 [Crim Ct, New York County, Harris, J.]). Accordingly, the disorderly conduct charge is dismissed.
As the information is dismissed in its entirety, the remainder of the defendant's omnibus motion need not be decided.
The People have leave to refile a timely, facially sufficient information ( see People v. Thomas, 4 NY3d 143, People v. Nuccio, 78 NY2d 102).
A copy of this decision is being mailed to both parties on October 24, 2005. The defendant is excused from her next court appearance on November 10, 2005 and the Court directs that sealing be stayed until 30 days from that date.
This opinion constitutes the decision and order of the Court.