People v Mayol
Annotate this CaseDecided on April 26, 2005
Criminal Court of the City of New York, New York County
THE PEOPLE OF THE STATE OF NEW YORK
against
Ulpiano Mayol, Defendant
2004NY086084
Melissa Jackson, J.
When a defendant is charged with an offense that arises from his interference with the arrest of a third party a facially sufficient information must draw a nexus between the defendant's conduct and his alleged disruption of the arrest. The defendant Ulipano Mayol charged with one count of PL § 195.05 (Obstruction of Governmental Administration in the second degree) and one count of PL § 205.30 (Resisting Arrest), moves to dismiss the accusatory instrument on grounds of facial insufficiency pursuant to CPL §§ 100.40 and 170.30. The charges stem from a car stop by the police in which the defendant is alleged to have shouted and refused to comply with an officer's orders to show his hands while the officer's partner was attempting to arrest a third person. At issue is the level of proof required to establish the requisite elements of intimidation, physical force or interference in a charge of Obstruction of Governmental Administration. We conclude that the defendant's alleged conduct, as described in the underlying accusatory instrument, only rose to the level of a distraction rather than an interference, and as such, is insufficient to establish a prima facie case as to this charge.
The defendant was arrested on November 20, 2004 after he allegedly interfered with the arrest of the intoxicated driver of the car in which the defendant was a backseat passenger. In sum and substance, the accusatory instrument alleges that the deponent (Police Officer Julie Morrill) and her partner observed the car go though two steady lights while being driven by an individual who exhibited the physical manifestations of intoxication. While her partner was attempting to place the "fighting" driver under arrest, Officer Morrill ordered the defendant/ passenger to show his hands. The defendant loudly refused and is alleged to have shouted: "I am not going to show you my hands. I don't have to show you my hands." The allegations further set forth that Officer Morrill "had to observe the defendant's actions while her partner was attempting to place the fighting drunk driver under arrest." The presumed inference is that the defendant's shouting and refusal to comply impeded Officer Morrill from assisting her partner in placing the intoxicated driver under arrest.
In pertinent part, PL § 195.05 sets forth that : "A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the [*2]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..." The defendant argues that the factual allegations in the instant accusatory instrument fail to establish a prima facie case of Obstruction of Governmental Administration in the second degree because (1) defendant's words did not encourage anyone to undertake any act and (2) the simple failure to comply with a police order is insufficient to support the charge. The People respond that where there is an obligation to comply with police instructions, the failure to comply is in fact a use of "physical force" and a "physical interference" with the law enforcement officer's performance of an official function.
PL 195.05 requires as an element of the crime that the accused act by one of three methods: (1)intimidation, (2) physical force or interference, or (3) any independently unlawful act. Furthermore, there must be an intent on the part of the person accused to obstruct or impair or prevent the administration of law or other governmental function. Case law has uniformly held that a verbal act alone does not constitute the "physical force" or "interference" elements of obstruction of justice. People v. Case, 42 NY2d 98 (1971); In the Matter of Davan L., 91 NY2d 88 (1997); People v. Longo, 71 Misc 2d 385 ( 1971). People v. Case, supra involved a CB (Citizens Band ) radio transmission warning motorists as to the highway location of a radar speed checkpoint. The Court of Appeals, in reversing the defendant's conviction for Obstruction of Governmental Administration, held that the plain wording of the statute evinced the legislature's intent that the interference must be physical interference. "The word "interference" is not cast in isolation, it is part of the phrase "physical force or interference"." People v. Case, 42 NY2d 98, at 101.
In the Matter of Davan L., 91 NY2d 88 (1997), the Court of Appeals reached a different result. In that case, while the police were conducting an undercover narcotics buy and bust, a police office observed the juvenile /respondent, a fifteen year old boy, repeatedly circling the subject area on his bicycle. A member of the undercover team approached the youngster, identified himself as a police officer, displayed his badge and urged the youngster to leave the area and not get involved. Nonetheless, the youngster bicycled into the area, yelling "Cops, cops, watch out !" The Court of Appeals found that the juvenile's actions did amount to obstruction of governmental justice in that the police activity area was both confined and defined and that the juvenile was put on specific direct notice. The court stated "There was evidence that he ( the juvenile/respondent) intentionally intruded himself into the specific area of police activity and directed his warnings toward a known criminal activity and assembly at the location identified to the juvenile by the police officer. There was also evidence that the juvenile caused a physical reaction and dispersal." Id, at 91. The Court of Appeals went on to distinguish their finding in Davan L. from that in People v. Case, 42 NY2d 98, noting that in Case "the alleged interference with the police activity was attenuated by distance, time and technology". Id at 91
In the instant case, while the defendant had an immediate presence at the scene of the third party's arrest, the allegations fail to set forth the nature of defendant's interference. One can speculate that because of the defendant's refusal and outburst, Officer Morrill was prevented [*3]from aiding her partner with the third party's arrest. The allegations, however, merely state that as result of the defendant's conduct, Officer Morrill had to observe defendant's actions while deponent's partner was attempting to arrest (the third party intoxicated driver) who was fighting with deponent's partner. There is no amplification as to how or why Officer Morrill's observation of the defendant interfered with the third party arrest. Nor are there any facts which would give rise to an inference that the defendant's refusal to show his hands was an intentional interference with the third-party arrest. In order to establish a prima facie case of Obstruction of Governmental Administration, the People must set forth facts to support the nature of the interference. At best, the instant allegations establish that defendant's conduct caused Officer Morrill to divert her attention from the third party arrest to the defendant.
The People also argue that when there is an order to comply with police instructions, a defendant's refusal to obey amounts to a per se use of "physical force" and a "physical interference with the law enforcement officer's performance of an official function". In sum, they argue that pleading the mere refusal to comply without further embellishment is sufficient to establish a prima facie case. While the lawfulness of Officer Morrill's order is not appropriately addressed within the context of a facial sufficiency motion, this court notes that a police officer's right to order a backseat passenger to show his hands, under the particular facts and circumstances of the instant case, is far from clear. "The Court of Appeals has recognized that the risks to a police officer in encounters with a vehicle are the same whether the individual is a driver or a passenger. Thus, as in dealing with a driver, a police officer can open the passenger door after stopping a vehicle for a traffic violation (citing People v. David L., 56 NY2d 698) or after making an investigative stop (citing People v. Rosario, 94 AD2d 329). The officer can also order the passenger to keep his hands within the officer's view while the driver's paper work is investigated ". (citing People v. Sass, 217 Ad2d 428 (1st Dep't. 1995); People v. Tyler, 262 AD2d 136 (1st Dep't. 1999) Kamins, New York Search and Seizure, Chapter V, Search and Seizure of Automobiles, p. 438-439 [2005 edition]. In People v. Sass, 217 AD2d 428, the First Department held the officer's direction to the defendant to keep his hands within the officer's view was proper to maintain security after the defendant was observed attempting to hide a bag under the front passenger seat of the car. In People v. Tyler, 262 AD2d 136, the passengers were observed kicking a case beneath the car seat. These cases appear to support a requirement in the First Department that there must be some display of covert or suspicious activity on the passenger's part before an order to show his hands may be deemed lawful. In the instant case, there is no allegation that the defendant was attempting to hide an object or acting in a suspicious manner. Moreover, the accusatory instrument is devoid of any descriptive language as to whether the defendant was located inside or outside the vehicle when given the order to show his hands.
The defendant has also been charged with Resisting Arrest. PL § 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". For the same reasons contained in our analysis of the Obstruction of Governmental Administration charge, the accusatory instrument fails to establish that the defendant [*4]intentionally prevented or impeded the arrest of the third party intoxicated driver.
In summary, the instant accusatory instrument fails to establish a nexus between the defendant's conduct and the disruption of the intoxicated driver's arrest. As such, it fails to make out a prima facie case of either Obstruction Of Governmental Administration in the second degree or Resisting Arrest. Accordingly, the defendant's motion to dismiss the accusatory instrument is granted.
This shall constitute the final decision and order of this court.
Dated: April 26, 2005 -
New York, New York
Hon. Melissa Jackson
Judge of the Criminal Court
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