Opinion
2008NY094860.
Decided on July 8, 2009.
ROBERT M. MORGENTHAU, ESQ., DISTRICT ATTORNEY, ONE HOGAN PLACE, NEW YORK, NEW YORK, BY: ADA MICHAEL FORD, ESQ., FOR THE PEOPLE.
KATE R. HUBER, ESQ., OF COUNSEL TO THE, NEW YORK, NEW YORK, FOR THE DEFENDANT.
The defendant is charged with one count each of Obstruction of Governmental Administration in the Second Degree (Penal Law § 195.05), Disorderly Conduct (Penal Law § 240.20 (1)) and Resisting Arrest (Penal Law § 205.30). The defendant has brought a motion to dismiss pursuant to Criminal Procedure Law (CPL) § 170.30 (1) (a) and § 170.35 for facial insufficiency. Although scheduled, a response was not filed by the People. For the foregoing reasons, the defendant's motion to dismiss for facial insufficiency is granted.
To be sufficient on its face, an information, together with any supporting depositions, must contain evidence of an evidentiary character which provides reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged ( People v. McNamara, 78 NY2d 626, 629, citing CPL § 100.40 (1) (b), (c); People v. Alejandro, 70 NY2d 133, 136-137; People v. Casey, 95 NY2d 354, 360). The allegations must give the defendant sufficient notice to prepare a defense and prevent him from being tried twice for the same offense ( People v Casey, supra at 360). Further, conclusory allegations alone are insufficient ( People v. Dumas, 68 NY2d 729). The proceeding is fatally defective if the accusatory instrument fails to meet these requirements ( People v. Casey, supra).
Obstruction of Governmental Administration in the Second Degree requires a showing that the defendant intentionally obstructed, impaired or perverted the administration of law or other governmental function or that he prevented or attempted 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 (Penal Law § 195.05; see also, People v. Case, 42 NY2d 98, 101). New York Penal Law § 240.20 (1) 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: [h]e engages in fighting or in violent, tumultuous or threatening behavior." Penal Law § 205.30 states 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."
The factual part of the accusatory instrument upon which the defendant is charged reads as follows:
Deponent states that deponent observed fighting and shouting in the defendant's apartment. Deponent further states that deponent questioned the defendant about the occurrences in defendant's apartment and that defendant shut the apartment door and said in substance WE DON'T NEED THE POLICE. WE CAN HANDLE THIS.
Deponent then observed Officer Helmer, Shield 04053 of the Housing PSA 5 Unit question the defendant about the occurrences in defendant's apartment and the defendant shut the apartment door and said in substance YOUR NOT COMING IN. Deponent then observed the defendant place defendant's hands against Officer Helmer's chest and push with substantial force causing the Officer to step backwards.
Deponent further states that when deponent was placing the defendant under arrest for the offense(s) described above, the defendant: (i) twisted away from the officer, (ii) refused to put his hands behind his back, (iii) threw his arms up and down thereby making handcuffing difficult, (iv) kicked his legs, (v) and screamed, in substance, YOU COPS ARE A PUSSY. FIGHT ME FAIR. YOU COPS ARE PUNKS. YOU ARE A BUNCH OF FAGS. Defendant's conduct created a public disturbance/inconvenience in that it caused people to exit their apartments and stand in hallway, a crowd to gather and people to express alarm.
The charge of Obstruction of Governmental Administration requires a showing that the defendant prevented a public servant from performing an official function (Penal Law § 195.05). Further, the official function must be authorized ( People v. Lupinacci, 191 AD2d 589, 595 N.Y.S.2d 76 [App. Div. 2nd Dept. 1993]; Matter of Anthony B., 201 AD2d 725,
608 N.Y.S.2d 302 [App. Div. 2nd Dept. 1994]; People v. Greene, 221 AD2d 559, 634 N.Y.S.2d 144 [App. Div. 2nd Dept. 1995]; People v. Vogel, 116 Misc 2d 332, 457 N.Y.S.2d 666 [App. Tm. 2nd Dept. 1994]; People v. Cacsere, 185 Misc 2d 92, 712 N.Y.S.2d 298 [App. Tm. 2nd Dept. 2000]; People v. Simon, 145 Misc 2d 518, 547 N.Y.S.2d 199 [NY Co. Crim. Ct.1999]; People v. Feliciano, 2004 NY Slip Op 50193U [NY Co. Crim. Ct.]). The allegations in the instant case fail to show that the defendant interfered with a lawful arrest, as there are no facts which establish this element of the charge ( see CPL § 100.15 (3); People v. Allen, 10/28/96 N.Y.L.J. p. 34, col. 3., [Crim. Ct,. Kings Co], holding complaint must contain facts establishing arrest allegedly interfered with was authorized where Obstruction of Governmental Administration is charged). Facts must be alleged to establish through non-conclusory allegations that the defendant interfered with a lawful arrest ( see Matter of Anthony B., 201 AD2d 725, 726 [App. Div., 2nd Dept 1994] holding that the complaint must allege facts to establish that the underlying arrest allegedly obstructed was authorized by law). The facts alleged do not establish that the defendant's arrest was authorized.
In this instance, the official function may be the enforcement of the Penal Law, however, the allegations do not establish that the function was authorized. The allegations are that the defendant was in his home fighting and shouting, that he pushed an officer out and did not allow officers to enter his apartment. However, these facts do not provide a violation of the Penal Law, to establish that the defendant interfered with an authorized arrest. The allegations do not show that the defendant violated the law or engaged in an illegal act. Further, there must be exigent circumstances for the police to enter a home without a warrant ( Payton v. New York, 445 U.S 573, 586, 100 S. Ct. 1371). Although the allegations state that there was fighting and shouting they do not establish the existence of an emergency circumstance or physical violence ( see People v. Lawler, 140 Misc 2d 661 [Albany Co. Ct. 1988], holding that range of authorized police activity is broad, but not unlimited and the police are authorized to act in both criminal and civil matters where specifically provided by statute, where a breach of the peace is involved or in an emergency situation). The allegations also do not establish that the defendant's actions caused a breach of the peace as the allegations fail to provide that people exited their apartments and stood in the hallway prior to the police's arrival. Consequently, a lawful arrest is not shown.
Although the defendant is charged with Disorderly Conduct, the allegations do not support such a charge. The allegations do not support a charge of Disorderly Conduct or demonstrate an otherwise independently unlawful act on which to base the charge of Obstruction of Governmental Administration ( see Penal Law § 195.05). A charge of Disorderly Conduct under subsection one may be maintained where the defendant engages in violent or threatening, tumultuous behavior, with the intent to cause public inconvenience, annoyance or alarm (Penal Law § 240.20 (1)). Although the defendant is alleged to have been fighting and shouting in his apartment, there is no indication, as stated above, that members of the public were present or at risk of being inconvenienced by the defendant's actions. The information does not establish that the defendant violated the Disorderly Conduct law. The acts attributed to the defendant without more, fail to establish that he obstructed or interfered with an officer's performance of an official function since it is not sufficiently established that he was violating the law. The allegations do not present sufficient facts for a charge of Disorderly Conduct, Harassment or any other crime or violation. Therefore, the official function allegedly obstructed is not sufficiently alleged.
There is also no indication that the defendant committed an independently unlawful act that could be the basis for a charge of Obstruction of Governmental Administration (Penal Law § 195.05). The defendant is charged with Obstruction of Governmental Administration, Disorderly Conduct, and Resisting Arrest. As stated, the Disorderly Conduct is not sufficiently alleged. There appears to have been no other official function that the defendant could have interfered with, other than the defendant's own arrest. However, the defendant's arrest must have also been authorized and the facts herein fail to establish a lawful arrest. A showing of a lawful arrest is absent given the insufficient allegations for a charge of Disorderly Conduct or the violation of another law. Therefore, the charge of Obstruction of Governmental Administration may not be based on the defendant's alleged obstruction of his own arrest.
Penal Law § 205.30 requires that an arrest be authorized ( People v. Alejandro, 70 NY2d 133, 135; People v. Peacock, 68 NY2d 675, 678; People v. Jones, supra, 263). Since the defendant's commission of Disorderly Conduct and Obstruction of Governmental Administration is not established by the allegations of the information, there is no basis to hold that his arrest was authorized, and the Resisting Arrest charge must also be dismissed. The charges are insufficient and must be dismissed as the information fails to establish a necessary element of the offenses charged and fails to provide reasonable cause to believe the defendant's commission thereof (CPL § 100.40 (1) (b) and (c)).
Accordingly, the defendant's motion to dismiss is granted and the proceeding is dismissed in its entirety.
In light of dismissal, the remaining issues raised in the defendant's motion are deemed moot.
The People are granted leave to file a facially sufficient instrument with additional facts to cure the defect identified in this case ( People v. Nuccio, 78 NY2d 102).
The Court directs that sealing be stayed for thirty (30) days from the date of this decision.
This constitutes the decision, opinion and order of the Court.