Opinion
2016BX008368
09-06-2016
The People of the State of New York, v. Michael Estime, Defendant.
The People — Darcel D. Clark, District Attorney, Bronx County by Matthew Horowitz, Assistant District Attorney Defendant — Law Office of Abdula R. Greene, P.C. by Abdula R. Greene, Esq.
The People — Darcel D. Clark, District Attorney, Bronx County by Matthew Horowitz, Assistant District Attorney Defendant — Law Office of Abdula R. Greene, P.C. by Abdula R. Greene, Esq. Armando Montano, J.
Defendant is charged with Resisting Arrest (PL § 205.30) and Obstructing Governmental Administration in the Second Degree (PL § 195.05).
Defendant moves for an order: 1) dismissing the accusatory instrument s facially insufficient; 2) suppressing any and all evidence seized as a result of unlawful police conduct, or in the alternative, granting a Mapp/Dunaway hearing; 2) suppressing any and all testimony regarding identifications of defendant, or in the alternative, granting a Wade/Dunaway hearing; 3) precluding the introduction of any unnoticed statement evidence; 4) precluding the People from introducing at trial any evidence of defendant's prior convictions and/or bad acts; and 5) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the accusatory instrument sworn to by the deponent, PO Michelle Ghonz, read as follows:
Deponent states that [on or about February 23, 2016 at approximately 9:45 AM inside of 2899 Kingsbridge Terrace, County of the Bronx, State of New York], she was responding to a radio run of a trespass. Deponent further states that upon arrival, in the lobby, she met with a tenant and was investigating the trespass when defendant arrived in the lobby and stated, in sum and substance, WHAT THE FUCK ARE YOU GUYS DOING HERE? Deponent further states that upon asking defendant for identification, defendant stated, in sum and substance, I'M NOT GIVING YOU SHIT, I DON'T HAVE TO DO SHIT. Deponent further states that upon informing defendant he would need to come to the precinct if he could not produce identification, defendant stated in a loud voice, in sum and substance, I'M NOT FUCKING GOING ANYWHERE! NO FUCK THAT!
Deponent further states that upon attempting to arrest defendant for the aforementioned conduct, defendant flailed his arms and flexed his body in an attempt to avoid being handcuffed.
Deponent further states that the defendant's aforementioned conduct prevented her from performing her official duties in that she could not further investigate the radio run for a trespass.
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. Defendant notes that the information explicitly alleges that the deponent officer arrested him for refusing to provide identification. Since a charge of Resisting Arrest must be premised upon a lawful arrest and his refusal to provide identification does not constitute a crime, defendant asserts that the charge of PL § 205.30 must be dismissed. With respect to the charge of Obstructing Governmental Administration in the Second Degree, defendant avers that the information fails to establish that he prevented the performance of an official function by way of physical force or interference. At best, defendant contends that the information demonstrates that his actions temporarily distracted the deponent officer.
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.
It is well settled that an information must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an information must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10 (App Term, 2d Dept. 2005). As such, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000).
Obstructing Governmental Administration in the Second Degree
"A person is guilty of obstructing 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 ." PL § 195.05.
Penal Law § 195.05 was "intended to make criminal conduct designed to interrupt or shut down administrative governmental operations." People v. Offen, 96 Misc 2d 147, 151 (Crim Ct, NY County 1978. Since "[t]he plain meaning of the statute and the accompanying Commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function" (People v. Joseph, 156 Misc 2d 192, 193 [Crim Ct, Kings County 1992]), a facially sufficient information must set forth adequate factual allegations to establish that the public servant was "engaged in a specific action at the time of the physical interference, and not just on duty ." Id. at 194. "The requirement that the People plead a specific function is not an onerous burden .[T]he barest allegation of a[n official] function would suffice to satisfy this element of the statute." Id. at 196.
This court finds that the element of an official function has been sufficiently pled since the instant information alleges that defendant's conduct prevented her from further investigating a trespass. It is undisputed that investigating a trespass in response to a radio run is an official function.
However, the information only alleges that defendant verbally interfered with the deponent officer's investigation by screaming obscenities at her as she was speaking to a tenant and refusing to provide identification when asked. "An essential element of the crime of obstructing governmental administration, to be charged in an information, must be an act of either (1) intimidation or (2) physical force or interference or (3) an independently unlawful act." People v. Offen, 96 Misc 2d 147, 150 (Crim Ct, NY County 1978). Penal Law § 195.05 "has been uniformly interpreted to the effect that mere words alone do not constitute physical force or interference' such as to support the charge of obstructing governmental administration." People v. Case, 42 NY2d 98, 102 (1977); see also, Matter of Davan L., 91 NY2d 88 (1997).
Moreover, the failure to comply with an officer's request for identification does not constitute an independently unlawful act. See, People v. Thomas, 51 Misc 3d 341 (Crim Ct, Kings County 2016); People v. Alston, 9 Misc 3d 1046 (Crim Ct, NY County 2005); People v. Brito, 4 Misc 3d 1004(A) (Crim Ct, NY County 2004); People v. Cameron, 3 Misc 3d 1105(A)(Crim Ct, Kings County 2004); Offen, 96 Misc 2d 147. While it could be argued that defendant's conduct intimidated the deponent officer, "[t]here is no subjective allegation here that the officer was intimidated by defendant's conduct, and defendant's mere utterance of an obscenity, absent any physical act or other words to create a credible threat, was not objectively intimidating." Thomas, 51 Misc 3d at 352.
Resisting Arrest
"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." PL § 205.30. "A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause." People v. Jensen, 86 NY2d 248, 253 (1995). If the arrest is not authorized, the predicate for the resisting arrest charge falls, rendering the resisting arrest charge invalid." Matter of Charles M., 143 AD2d 96, 96 (2d Dept. 1988); see also, People v. Peacock, 68 NY2d 675 (1986). "[A] pleading charging a defendant with resisting arrest is facially sufficient only where facts in the pleading itself allow the Court to independently determine that reasonable cause existed for the arrest which the defendant is accused of resisting." People v. Goshorn, 35 Misc 3d 1244(A), *4 (Sup Ct, Bronx County 2012).
The information specifically notes that the deponent officer attempted to place defendant under arrest for preventing her from further investigating a radio run for a trespass. As discussed above, since the information fails to allege sufficient facts to support the underlying charge of Obstructing of Governmental Administration in the Second Degree, those facts are insufficient to establish that defendant's arrest based upon this charge was authorized.
"This does not end the inquiry, however. 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), *2 (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 PL § 205.30.
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 receipt of this decision and order. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument 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. Dated: September 6, 2016 Bronx, New York _______________________________ Hon. Armando Montano