Opinion
2004NY018504.
Decided May 14, 2004.
Defendant is charged with Obstructing Governmental Administration in the Second Degree in violation of Penal Law Section 195.05. He moves this Court for an order dismissing the complaint for facial insufficiency and in the interests of justice.
The complaint alleges that the affiant police officer was approached by a woman who informed him that a man was harassing pedestrians a few blocks away; that the officer was in a police car; that an oil-tank trailer operated by defendant was blocking traffic and blocking the officer's path; that the officer told defendant that he was attempting to respond to a call and ordered defendant to move the oil-tank trailer out of the way; that defendant repeatedly refused to move the oil tanker out of the way, stating, "Leave me alone, I'm trying to do my job, leave me alone, I'll deal with you later"; and that defendant's actions prevented the officer from responding to the reported incident.
An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges. Criminal Procedure Law § 100.15(3); People v. Dumas, 68 NY2d 729 (1986). Furthermore, the information must contain non-hearsay allegations which, if true, establish every element of the offense charged and defendant's commission thereof. CPL § 100.40(1)(b), (c). An information which fails to satisfy these requirements is fatally defective. People v. Alejandro, 70 NY2d 133, 139 (1987).
Penal Law Section 195.05 provides, in pertinent part, as follows: "A person is guilty of obstruction of 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. . . ."
Contrary to defendant's argument, the complaint adequately alleges that he intentionally obstructed, impaired or perverted the administration of law or other governmental function. His intent is inferrable from the allegations that he told the police officer to leave him alone and let him do his job, and that he would deal with the officer "later."
Defendant also contends that the complaint fails to allege the intimidation, physical force or interference or independently unlawful act required by the statute. Thus, he argues that his mere words to the officer are insufficient to support the charge.
It is well settled that "interference," as contained in the statute, must be physical interference. People v. Case, 42 NY2d 98, 101 (1977). However, it is not defendant's words alone that are the subject of the instant charge, but his words coupled with his refusal to move his truck so as to allow the police vehicle to respond to the citizen's complaint. A refusal to move can constitute physical interference. People v. Barrett, 179 Misc2d 261 (Crim.Ct. 1998) (refusal to walk through courthouse magnetometer, preventing others from entering); Matter of Clive W., 109 Misc2d 788 (Family Ct. 1981) (refusal to leave area in front of security office doors during processing of an arrest). Cf. People v. Salter, 167 Misc2d 877 (Dist.Ct. 1996) (defendant locking himself inside his vehicle, thereby preventing police investigation of auto accident).
Assuming, arguendo, that defendant's refusal to move his truck were insufficient to constitute physical interference, the allegations in the complaint nevertheless are adequate to support the charge of Obstructing Governmental Administration. The failure to obey the direction of a police officer is a traffic infraction under the New York City Traffic Rules. Vehicle Traffic Law §§ 155, 1800(a); 34 RCNY § 4-12(a). Thus, the complaint alleges an "independently unlawful act" prohibited by Penal Law Section 195.05. See, e.g., People v. Cronk, 2002 WL 992156 (App. Term 1st Dep't May 10, 2002) (reversing dismissal of information charging violations of P.L. §§ 195.05 and 140.10(a), which alleged that defendants were observed inside barricaded area without permission or authority to be there and refused to leave when requested to do so by police); People v. Stumpp, 132 Misc2d 3 (App. Term 9th 10th Jud. Dists. 1986) (affirming conviction for obstructing governmental administration where defendant refused access to police to books and records of his pub in derogation of Alcoholic Beverage Control Law).
Accordingly, the motion to dismiss the complaint for facial insufficiency is denied.
To the extent that the instant motion seeks dismissal in the interests of justice, it alleges one basis only: that this prosecution could lead to the overcrowding of the courts with commercial drivers who are only doing their jobs "in this city of very limited parking."
Defendant argues that the Court should take judicial notice that an oil deliveryman cannot quickly gather his hoses in the midst of a delivery and move his truck. This is not the proper subject of judicial notice, but is a matter of defense to be raised at trial. To the extent that it would negate his guilty intent (CPL § 170.40(1)(c)), it is contradicted by the allegations of the sworn complaint.
Criminal Procedure Law Section 170.40 governs the disposition of motions such as the instant. It provides that the Court may dismiss an information in the interests of justice where dismissal is required by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice. CPL § 170.40(1). In determining such a motion, the statute lists ten factors to be considered by the Court individually and collectively.
The instant motion addresses only one of those factors: the impact of a dismissal on the safety or welfare of the community. In seeking dismissal, defendant would place the need of truck drivers in Manhattan to double-park their vehicles above the safety of the community in having police officers respond to citizen complaints. This hardly constitutes the sort of compelling factor sufficient to demonstrate that this prosecution would result in injustice. Accordingly, the motion to dismiss in the interests of justice is denied. CPL §§ 210.45(5)(a), 170.45.
This is the decision and order of the Court.