Opinion
2013-677 W CR
01-08-2016
The People of the State of New York, Respondent, v. James Smith, Appellant.
PRESENT: :
Appeal from a judgment of the City Court of Peekskill, Westchester County (Thomas R. Langan, J.), rendered March 21, 2013. The judgment convicted defendant, upon a jury verdict, of obstructing governmental administration in the second degree and resisting arrest.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
According to the information, at approximately 8:10 p.m. on January 24, 2012, two police officers observed defendant on the street drinking from a 24-ounce can of beer. The officers asked defendant for identification, but he stared blankly. When one of the officers asked defendant if he wanted medical attention, defendant replied that he did. That officer suspected that defendant was under the influence of PCP. Defendant admitted that he had smoked PCP. The officer called for an ambulance. Defendant continued to be unresponsive. An officer removed a wallet from defendant's jacket pocket in an attempt to locate an identification card. At that point, a bag fell to the ground, containing a substance, which a laboratory test established consisted of PCP. After the ambulance arrived, emergency medical technicians (EMTs) attempted to render aid to defendant. In response, defendant violently flailed his arms, and pushed one of the EMTs. The police told defendant that he was under arrest "as his physical interference and force was impairing the official duties of police and EMS" (Emergency Medical Service). Defendant continued to resist, struggle, and flail his arms, until he was ultimately handcuffed.
Defendant was charged with obstructing governmental administration in the second degree (Penal Law § 195.05), resisting arrest (Penal Law § 205.30), criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), and criminal mischief in the fourth degree (Penal Law § 145.00). After a jury trial, defendant was found not guilty of criminal possession of a controlled substance in the seventh degree and criminal mischief in the fourth degree. He was found guilty of obstructing governmental administration in the second degree and resisting arrest.
"A valid and sufficient accusatory instrument is a nonwaivable prerequisite to a criminal prosecution" (People v Dreyden, 15 NY3d 100, 103 [2010]). For an information to be facially sufficient, it must contain, among other things, factual allegations of an evidentiary character that establish, if true, every element of the offense charged. These requirements are jurisdictional, and whether the requirements have been met may be raised for the first time on appeal (see CPL 100.15 [3]; 100.40 [1] [c]; People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d 354, 364 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729, 731 [1986]; People v Tucker, 32 Misc 3d 135[A], 2011 NY Slip Op 51467[U] [App Term, 9th & 10th Jud Dists 2011]).
Penal Law § 195.05 provides, in pertinent part, that a person is guilty of obstructing governmental administration in the second degree "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." The elements of obstructing governmental administration include (1) prevention or an attempt to prevent (2) a public servant from performing (3) an official function (4) by means of intimidation, physical force or interference (see Cameron v City of New York, 598 F3d 50, 68-69 [2d Cir 2010]; see also People v Beam, 22 Misc 3d 306, 310 [Crim Ct, NY County 2008]; People v Stumpp, 129 Misc 2d 703, 704 [Suffolk Dist Ct 1985], affd 132 Misc 2d 3 [App Term, 9th & 10th Jud Dists 1986]).
An individual has a significant liberty interest in being free from unwanted medical treatment (see Washington v Harper, 494 US 210, 221-222 [1990]; Miller v O'Bryan, 498 F Supp 2d 548, 555-556 [ND NY 2007]). In the case at bar, defendant asked for medical assistance, but after the ambulance arrived, he had a nonverbal change of heart.
Defendant was not charged with resisting an arrest for possession of an open container of beer or for criminal possession of a controlled substance in the seventh degree. Rather, the information alleged that defendant was being arrested for obstructing governmental administration in the second degree because "his physical interference and force was impairing the official duties of police and EMS." The information further alleged that defendant resisted the officers as they "were arresting him by applying resistive tension to his arms and by struggling against us and flailing his arms." Under these circumstances, we find that the information contained insufficient factual allegations that defendant prevented or attempted to prevent a public servant from performing an official function, as defendant had a right to change his mind and refuse medical treatment (see Matter of Karen B., 35 Misc 3d 1221[A], 2012 NY Slip Op 50809[U] [Family Ct, Kings County 2012]; People v Chang, 25 Misc 3d 1213[A], 2009 NY Slip Op 52047[U] [Crim Ct, Queens County 2009]; People v Akinwole-Bandel, 10 Misc 3d 1054[A], 2005 NY Slip Op 51960[U] [Crim Ct, Kings County 2005]; Lennon v Miller, 66 F3d 416, 419-420 [2d Cir 1995]; cf. Miller v O'Bryan, 498 F Supp 2d at 556; Decker v Campus, 981 F Supp 851 [SD NY 1997]). Moreover, under the circumstances of this case, in which the underlying offense that prompted defendant's arrest for resisting arrest in the first place—obstructing governmental administration in the second degree—was not authorized, the allegations supporting the charge of resisting arrest were jurisdictionally insufficient (see People v Lepard, 83 AD3d 1214, 1216 [2011]; cf. People v Thomas, 239 AD2d 246, 247 [1997]; People v Martin, 222 AD2d 528 [1995]; People v Fishman, 44 Misc 3d 1208[A], 2014 NY Slip Op 51059[U] [Crim Ct, Kings County 2014]; People v Frederique, 31 Misc 3d 1215[A], 2011 NY Slip Op 50680[U] [Nassau Dist Ct 2011]; People v Mohamadou, 182 Misc 2d 77, 78-82 [Crim Ct, NY County 1999]).
Alternatively, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally insufficient to support the conviction of obstructing governmental administration in the second degree. Although the issue of the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Eastwood, 48 AD3d 591, 592 [2008]), under the circumstances of this case, the conviction of that offense should be reversed in the interest of justice. Furthermore, as the trial evidence did not establish that defendant was resisting an arrest for possession of an open container of an alcoholic beverage or for criminal possession of a controlled substance in the seventh degree, the resisting arrest charge should be dismissed as well, as the arrest was not proven to be authorized (see People v Perez, 47 AD3d 1192, 1193-1194 [2008]).
In light of our determination, defendant's ineffective assistance of trial counsel claim need not be addressed.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
Marano, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: January 08, 2016