Opinion
2017-825 Q CR
12-11-2020
The PEOPLE of the State of New York, Respondent, v. Kenji WEBB, Appellant.
New York City Legal Aid Society (Robin Richardson of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott and Mariana Zelig of counsel), for respondent.
New York City Legal Aid Society (Robin Richardson of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott and Mariana Zelig of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was convicted, following a jury trial, of obstructing governmental administration in the second degree ( Penal Law § 195.05 ), resisting arrest ( Penal Law § 205.30 ) and disorderly conduct ( Penal Law § 240.20 [1] ). On appeal, defendant argues that the count of the accusatory instrument charging him with disorderly conduct was facially insufficient and that he was entitled to a justification charge with respect to the charges of obstructing governmental administration in the second degree and resisting arrest.
Contrary to defendant's contention, the accusatory instrument contained factual allegations establishing all of the elements of the charge of disorderly conduct ( Penal Law § 240.20 [1] ), including the "public dimension" element, in that the information indicated that, on a "public roadway," defendant was "yelling, cursing and spitting" at police officers and head-butted one police officer in the mouth, "causing pedestrians to remove their cell phones and record video," and "caus[ing] public annoyance and alarm" (see People v. Weaver , 16 NY3d 123, 128 [2011] ; People v. Villegas , 54 Misc 3d 137[A], 2017 NY Slip Op 50134[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v. Rubackin , 49 Misc 3d 132[A], 2015 NY Slip Op 51437[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v. Cox , 44 Misc 3d 134[A], 2014 NY Slip Op 51162[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ). The information contained factual allegations from which defendant's intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, could "be readily inferred" ( People v. Baker , 20 NY3d 354, 360 [2013] ; see People v. Villegas , 54 Misc 3d 137[A], 2017 NY Slip Op 50134[U] ; People v. Rubackin , 49 Misc 3d 132[A], 2015 NY Slip Op 51437[U] ; People v. Cox , 44 Misc 3d 134[A], 2014 NY Slip Op 51162[U] ).
Although defendant's contention that the court erred in failing to instruct the jury on the defense of justification with respect to resisting arrest is preserved for appellate review, his argument in regard to obstructing governmental administration is unpreserved (see CPL 470.05 [2] ; People v. Smith , 54 AD3d 421, 422 [2008] ). In any event, the court properly refused to charge the defense of justification as to both charges, as no reasonable view of the evidence would support a finding of justification (see People v. Valery , 135 AD3d 975, 975 [2016] ; People v. Sowell , 25 AD3d 386, 387 [2006] ; see also Penal Law § 35.27 ; People v. Sanza , 37 AD2d 632 [1971] ).
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.