Opinion
1946-19
03-19-2019
The PEOPLE of the State of New York, Plaintiff, v. Darren PITTS, Defendant.
Westchester County District Attorney, Mount Vernon Branch, David H. Hawkins, Esq., Attorney for Defendant, 116 Haven Avenue, Mount Vernon, New York 10553
Westchester County District Attorney, Mount Vernon Branch, David H. Hawkins, Esq., Attorney for Defendant, 116 Haven Avenue, Mount Vernon, New York 10553
The defendant is charged with one (1) count of Resisting Arrest in violation of PL § 205.30, and one (1) count of Obstructing Governmental Administration in the Second Degree in violation of PL § 195.05.
Defendant now moves for an order 1) dismissing the accusatory instrument on the ground of facial insufficiency; 2) compelling the People to provide defendant with any and all Rosario and Brady material; 3) precluding the People from introducing at trial evidence of his prior criminal convictions, any underlying bad acts, and all prior uncharged criminal, or wrongful conduct; 4) compelling the People to provide defendant with discovery and a bill of particulars; and 5) granting him the right to make additional pretrial motions.
The misdemeanor information alleges, in pertinent part, that on January 15, 2019, at approximately 1:33 p.m., inside 14 Adams Street, in the City of Mount Vernon, in the County of Westchester, State of New York, the deponent, a Mount Vernon police officer, observed defendant, after being told several times to place his hands behind his back because he was going to be placed under arrest for Assault in the Third Degree, flail his arms, and refuse to be handcuffed, preventing the deponent from affecting a lawful arrest.
Defendant argues that the accusatory instrument must be dismissed because it fails to allege adequate facts of an evidentiary character which support all of the elements of the offenses charged. In opposition, the People assert that the information is facially sufficient in that it provides detailed facts which support the offenses charged and provides suitable notice to defendant to prepare a defense. When given a fair reading, the People argue that all of the elements of the offenses charged are supported by nonhearsay allegations of fact which provide reasonable cause to believe that defendant committed the offenses charged.
In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3] ; 100.40 [1] [c]; People v. Dumas , 68 NY2d 729, 731 [1986] ). These requirements are jurisdictional (see People v. Kalin , 12 NY3d 225 [2009] ; People v. Casey , 95 NY2d 354 [2000] ; People v. Alejandro , 70 NY2d 133 [1987] ; People v. Dumas , 68 NY2d at 731 ), and the failure to meet these requirements may be asserted at any time, with the exception of the requirement of nonhearsay allegations, which is waived if it is not timely raised by motion in the trial court (see People v. Casey , 95 NY2d 354 ). The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, but only that the crime be sufficiently alleged so that the defendant can prepare himself for trial, and so that he will not be tried again for the same offense (see People v. Dreyden , 15 NY3d 100, 103 [2010] ; People v. Konieczny , 2 NY3d 569, 575 [2004] ; People v. Casey , 95 NY2d at 360 ).
Penal Law § 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." In order to be facially sufficient under Criminal Procedure Law § 100.40 (1) (c), an accusatory instrument charging resisting arrest must allege facts that would establish, if true, every element of resisting arrest. However, the accusatory instrument does not have to allege facts that would establish, if true, every element of the offense giving rise to the arrest (see People v. Clergeot , 20 Misc 3d 87, 89 [App Term, 2d Dept, 9th & 10th Jud Dists 2008] ). Rather, the accusatory instrument need only allege that the arrest was authorized, by setting forth facts establishing that the arresting officer had probable cause to believe that the defendant committed an offense in his presence (see CPL 140.10 [1] [a] ; People v. Alejandro , 70 NY2d 133, 135 [1987] ).
The information specifically notes that the deponent officer attempted to place defendant under arrest for Assault in the Third Degree. An information charging resisting arrest need not actually charge the underlying offense, so long as the accusatory instrument contains nonhearsay allegations establishing that the arresting officer had probable cause to believe that some offense was committed. People v. Square , 20 Misc 3d 1126(A) (Crim. Ct. NY County 2008) ; see also People v. Richardson , 30 Misc 3d 1204(A) (Crim. Ct. NY County 2010). This Court finds that the information fails to adequately allege facts supporting any other offense for which defendant may have been arrested. As such, the information fails to establish a prima facie case of P.L. § 205.30.
A person is guilty of obstructing governmental administration in the second degree ( Penal Law § 195.05 ) 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."
One element of the crime is that a defendant prevents, or attempts to prevent, a police officer from performing an "official function." Where, as here, the People allege that defendant attempted to interfere with his arrest, the lawfulness of the arrest must be demonstrated. As discussed above, the information herein, failed to allege that the arrest of the defendant was authorized, because it lacks any allegations that the arrest of the defendant was based on probable cause. The conclusory allegation that the defendant was being arrested for Assault in the Third Degree is not sufficient to establish that this arrest was lawful.
Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is granted. This Court directs sealing to be stayed for thirty (30) days from the return date of this motion. The People are granted leave to move to amend or otherwise cure the defects in the information consistent with CPL §§ 30.30 and 170.30. Should the People file a facially sufficient information, defendant may renew the remaining branches of the instant motion.
This constitutes the Decision and Order of this Court.