Opinion
No. 2012KN040833.
2012-11-13
The PEOPLE of the State of New York, v. Terrence COX, Defendant.
Jeff Lee, Legal Aid Society, for Defense. ADA Eric Kang, for Kings County District Attorney.
Jeff Lee, Legal Aid Society, for Defense. ADA Eric Kang, for Kings County District Attorney.
JOHN T. HECHT, J.
This case presents a pleading issue that arises fairly frequently when the People seek to charge someone with resisting arrest, despite clear, uniform guidance from appellate courts. The People have failed to charge this offense properly because they failed to plead that the arrest with which defendant interfered was supported by probable cause. Their effort to charge resisting arrest by another name—obstructing governmental administration—does not change this conclusion. To paraphrase Juliet, a rose by any other name smells the same.
The facts alleged here are that defendant yelled, screamed, cursed and swung his arms at a police officer to prevent the officer from placing another individual under arrest, thereby attracting a crowd and creating public alarm. These allegations form the basis of charges of obstructing governmental administration in the second degree (PL § 195.05) and disorderly conduct (PL § 240.20[1] ). Defendant is additionally charged with resisting arrest (PL § 205.30) based on his having allegedly flailed and swung his arms and yelled and screamed at the police officer when the latter attempted to handcuff him for his own arrest. Defendant moves to dismiss all charges as facially insufficient.
In pertinent part, a person “is guilty of obstructing governmental administration when he intentionally ... 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” (PL § 195.05).
“A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he engages in fighting or in violent, tumultuous or threatening behavior” (PL § 240.20[1] ).
“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” (PL § 205.30).
A basic pleading requirement of any accusatory instrument is that it allege evidentiary facts that support, or tend to support, every element of each offense ( see People v. Case, 42 N.Y.2d 98 [1977] [“The factual part of an accusatory instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges' (CPL 100.15, subd 3)”] ). Twenty-five years ago, the Court of Appeals specifically addressed what the People must allege to satisfy this standard with regard to the resisting arrest statute. In People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987), the Court held that
It is an essential element of the crime of resisting arrest that the arrest be authorized and, absent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand. Thus, to comply with the statute, the factual part of the information for resisting arrest must contain [n]on-hearsay allegations [which would] establish, if true' (CPL 100.40[1][c] ) that the underlying arrest was authorized. These essential allegations are omitted from the information here. The factual portion pertains only to defendant's actions in resisting the arrest (People v. Alejandro, 70 N.Y.2d 133, 135 [1987] ).
Interestingly, the People conceded the facial insufficiency of the accusatory instrument in Alejandro. Here, despite the same error—the failure to allege any facts that would establish that the arrest with which defendant interfered was authorized—they do not make a like concession.
The rationale for the rule underlying the decision in Alejandro is plain, as the Court of Appeals articulated more than fifty years ago. The resisting arrest statute gives an individual a legal privilege to avoid an illegal arrest ( see People v. Cherry, 307 N.Y. 308, 310 [1954] [“If force is necessary to prevent an unlawful arrest, then force may be employed.”] ). Accordingly, the People must assert the legality of the arrest the officer was attempting to make or, put differently, must allege that the defendant lacked a privilege to resist that arrest.
Perhaps the People believe that by charging defendant with resisting the arrest of a third party, rather than himself, they avoid the strictures of Alejandro and Cherry. But if so, they are mistaken. The resisting arrest statute applies to a defendant's alleged resisting of his own arrest as well as that of another (PL § 205.30 [“A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer ... from effecting an authorized arrest of himself or another”] ).
Justice Ralph A. Fabrizio recently characterized the People's burden in a resisting arrest case as “painfully obvious,” observing that “there is a mountain of binding authority” requiring that the People plead the lawfulness of the underlying arrest (People v. Goshorn, 2012 WL 2207274 [Sup Ct, Bronx County 2012] ). Here, by failing to allege that the arrest of the third party was lawful, they fail to allege that defendant's attempt to stop it was not.
The People's use of the obstructing governmental administration statute, rather than the resisting arrest statute, does not cure the error. Some courts, indeed, are loathe to allow the People to charge obstructing governmental administration when the “official function” allegedly obstructed is an arrest, and for good reason. Doing so allows the People to use the vaguer obstructing statute to charge the more specifically applicable offense ( see, e.g., Matter of Tammy M., 108 Misc.2d 376, 437 N.Y.S.2d 565 [Fam Ct, Monroe County 1981] ).
But even those courts that allow the People to charge both resisting arrest and obstructing governmental administration based on the same alleged conduct—resisting an arrest—interpret the statutes so that they harmonize. The People must allege, and later prove, that the officer's “official function” was an authorized, or lawful, arrest ( see, e.g., Matter of Verna C., 143 A.D.2d 94, 531 N.Y.S.2d 344 [2nd Dept 1998]; People v. Greene, 221 A.D.2d 559, 634 N.Y.S.2d 144 [2nd Dept 1995]; Matter of Anthony B., 201 A.D.2d 725, 608 N.Y.S.2d 302 [2nd Dept 1994]; People v. Lupinacci 191 A.D.2d 589, 595 N.Y.S.2d 76 [2nd Dept 1993]; see also Donnino, Practice Commentaries, McKinney's Cons Law of NY, Penal Law 195.05 [“An official function' in the context of an arrest requires that the arrest be lawful.”] ).
Thus, in People v. Cacsere, 185 Misc.2d 92, 712 N.Y.S.2d 298 (App Term, 2nd Dept 2000), the court held that “when an arrest forms the basis of an official function interfered with in a charge of obstructing governmental administration, the arrest must be authorized.” To the same effect is People v. Vogel, 116 Misc.2d 332, 457 N.Y.S.2d 666 (App Term, 2nd Dept 1982): “Just as a defendant cannot be convicted of resisting arrest unless the People show that the arrest was lawful, .... [w]hen the official function involved is an arrest, it must be shown that the arrest was authorized” ( [internal citations omitted]; see also People v. Clarke, 34 Misc.3d 159[A] [App Term, 2nd, 11th and 13th Jud Dists 2012] [People must allege “that the arrest was authorized, by setting forth facts establishing that the arresting officer had probable cause to believe that defendant had committed an offense in his presence”] [internal citations omitted] ).
Where a charge of obstructing governmental administration is based on something other than resisting arrest, the accusatory instrument does not need to allege evidentiary facts regarding the source of the officer's authority. For example, where a defendant allegedly ran his car over the foot of an officer who was writing him a ticket for a Village Code violation, the failure to specify the Village Code section and the basis of the officer's authority to write the ticket (“that the official function was authorized”) was not fatal to the pleading ( see People v. Ballard, 28 Misc.3d 129[A] [App Term, 9th and 10th Jud Dists 2010] ). Similarly, where a defendant allegedly refused to vacate a courtroom that had been cleared at the close of business, and shoved and kicked the officer who repeatedly told her to leave, the failure to establish that the officer's orders were authorized was not a pleading defect ( People v. Stewart, 32 Misc.3d 133[A] [App Term, 2nd, 11th and 13th Jud Dists 2011] [“accusatory instrument is sufficient so long as the factual allegations contained therein delineate what the obstruction and official function consist of”] ). ( See also People v. Pappalardo, 180 Misc.2d 707, 693 N.Y.S.2d 835 [App Term, 1st Dep't 1999] [People do not need to allege that service of a summons by police officer was an authorized act] ).
The charges in this case are all premised on the legality of the underlying arrest of the third party. If that arrest were unauthorized, defendant's conduct in resisting it, no matter whether the People call it obstructing governmental administration or the lesser, non-criminal offense of disorderly conduct, was not illegal. Concomitantly, if the defendant committed no offense when he resisted the arrest of the third party, his resisting his own arrest was not illegal. Because the accusatory instrument fails to allege that the arrest of the third party with which defendant interfered was lawful, all charges here are insufficiently pleaded.
If defendant were privileged to resist the third party's arrest, he could not have formed a criminal intent to commit disorderly conduct, and his privilege to use force extended to the “violent” behavior proscribed by the disorderly conduct statute ( see People v. Cherry, 307 N.Y. 308, 310 [1954],supra [“Defendant had the privilege ... of resisting and using force or violence' against his assailants, even though they were police officers”] ).
It is worth noting that the People do not need to establish that the third party actually committed the offense for which he was arrested; they need merely allege that the arresting officer had probable cause to believe that the third party had committed such offense ( see People v. Williams, 25 N.Y.2d 86 [1969] ). But that necessary foundational allegation is missing from the present accusatory instrument.
For these reasons, the motion to dismiss for facial insufficiency is granted. Sealing is stayed to allow the People time to refile a timely, facially sufficient information ( see People v. Nuccio, 78 N.Y.2d 102 [1991] ).
The foregoing constitutes the decision and order of the court.