People v Munoz

[*1] People v Munoz 2005 NY Slip Op 51916(U) [10 Misc 3d 1052(A)] Decided on March 22, 2005 Criminal Court, New York County Freed, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 22, 2005
Criminal Court, New York County

The People of the State of New York,

against

Cory Munoz, Defendant.



2004NY065044

Kathryn E. Freed, J.

The defendant is charged with two(2) counts of Disorderly Conduct, P.L§ 240.20(5)&(6) and one count of Parading Without a Permit, AC §10-110 stemming from his alleged participation in protest demonstrations associated with last summer's Republican National Convention in New York City. The defendant now moves for an order dismissing the instant accusatory instrument for facial insufficiency pursuant to C.P.L.§100.40 and C.P.L.§170.20, or in the alternative, dismissal of the accusatory instrument in the interest of justice.

The court has reviewed the defendant's moving papers, the People's response, all relevant caselaw and statutes and for the reasons discussed hereafter, grants the defendant's motion to dismiss the accusatory instrument based on facial insufficiency.

MOTION TO DISMISS FOR FACIAL INSUFFICIENCY:

It is well settled that an accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution. People v Case, 42 NY2d 98 (1977). In order to be considered facially sufficient, an accusatory instrument together with any supporting depositions, must allege facts of an evidentiary character supporting or tending to support the offenses charged, C.P.L.§100.15(3). It must also provide reasonable cause to believe that the defendant committed the offense(s) charged, C.P.L.§100.40(1)(b); and it must contain non-hearsay allegations which establish if true, every element of the offense(s) charged and the defendant's commission thereof. C.P.L.§100.40(1)(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, supra. Conclusory allegations will render the accusatory instrument defective. People v Dumas, supra.

Reasonable cause to believe that a person has committed an offense 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, judgement and experience that it is reasonably likely that such offense was committed and that such person committed it." C.P.L.§70.10(2).

In the instant case, the defendant argues that the accusatory instrument is devoid of any facts supporting or tending to support an accusation that he personally was either obstructing vehicle or [*2]pedestrian traffic or that he was given a lawful police order to disperse and disregarded it. He argues that the only factual allegation pertaining specifically to him or any conduct associated with him is merely the allegation that he was observed exiting the police vehicle.

The accusatory instrument names the deponent as Police Officer Carlos Felipe, is dated August 31, 2004 and names the time and location as "about 21:00 hours in front of 101 East 16th Street in the County and State of New York." It reads as follows:

"Deponent states that deponent observed hundreds of

individuals marching down the street at the above location without

a permit. Deponent further states that said group was obstructing

vehicular traffic from moving.

Deponent is informed by Deputy Inspector James Essig that

informant and other police officials warned said group that they were

blocking vehicular traffic, had to disperse, and would be arrested if

they did not disperse.

Deponent is further informed by informant that all individuals

were given an opportunity to disperse and numerous individuals did

disperse, and that approximately 300 other individuals who were a part

of the group parading without a permit and obstructing traffic, who did

not disperse were contained within a mesh net, arrested, and placed

into vehicles for transportation to 100 Centre Street.

Deponent states that he observed a number of said arrested

individuals placed on one of said transporting vehicles and followed the

vehicle to 100 Centre Street. Deponent further states that upon arrival at

100 Centre Street, he observed the above-named defendant exit said

vehicle to be further processed, during which processing the above

named defendant remained in police custody."

A person is guilty of Disorderly Conduct, P.L§240.20(5) when, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he obstructs vehicular or pedestrian traffic."

A person is guilty of Disorderly Conduct, P.L.§240.20(6) when, "with intent to cause public inconvenience, annoyance or alarm, or recklessly, creating a risk thereof, he congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse."

New York City Administrative Code§10-110 Procession and Parades states in pertinent part

that "a procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner." An accusatory instrument which alleges a violation of this statute must demonstrate that: (1) an individual was part of a parade, procession or race; (2) that such parade procession or race took place upon a public street or roadway, and (3) that the individual did not possess a permit issued by the police commissioner to participate in such parade, procession or race. See People v Charity James Slip OpinionNo. 2004NY065525.

The "prima facie"case requirement for pleading purposes is a lower threshold or standard than the burden of proof beyond a reasonable doubt standard required at trial. See People v [*3]Henderson, 92 NY2d 677 (1999). An accusatory instrument simply must allege the elements of the offenses charged and acts or conduct which would reasonably indicate the defendant's commission of such offenses. Therefore, as long as these basic requirements are met, accusatory instruments containing a recitation of factual allegations that appear to be "awkwardly" drawn may still suffice for pleading purposes. See People v Allen, 92 NY2d 378 (1998); People v Love, 306 NY 18 (1953); People v Polianskaia, 189 Misc 2d 237 (NY City Crim. Ct. 2001); People v Armfield, 189 Misc 2d 556 (NY Crim. Ct. 2001).

The most liberal reading of this accusatory instrument still fails to meet the most basic test. No factual allegations establishing the elements of the offenses charged exist, let alone reasonable cause to believe that the defendant actually committed them. There is no conceivable way of knowing if this particular defendant actually engaged in the march, interfered with pedestrian and/or vehicular traffic, refused any order to disperse and failed to possess the necessary permit.

In this county, the numerous protests associated with the Republican National Convention have prompted two published decisions addressing a motion to dismiss based on facial sufficiency that this court is aware of. See People v Charity James, supra; People v Cohen, NYLJ February 17, 2005, pg. 12, col.1 (J. Jackson). While these decisions are extremely instructive, the facts of both instruments are clearly distinguishable from the instant one before this court.

In People v James, supra, the defendant was charged with one count of Disorderly Conduct, P.L.§ 240.20(5) and one count of violating Administrative Code §10-110, Parading Without a Permit. The accusatory instrument stated that: (i) the deponent observed over 100 other individuals, walking on the street and sidewalk, from17th towards Fifth Avenue; (ii) deponent observed said group stop at police barricades at Fifth Avenue; (iii) deponent observed the defendant behind said police barricade; (iv) the defendant's conduct caused a public inconvenience by obstructed vehicular and pedestrian traffic and (v) the defendant and deponent did not have a written permit from the police commissioner authorizing the defendant and others to parade at the above named location.

The court in James denied the motion to dismiss based on facial insufficiency, finding that the factual allegations contained in that accusatory instrument sufficiently set forth the elements of the offenses charged and provided reasonable cause to believe that the defendant committed those offenses. The court further found that the non-hearsay element was established by the personal observations of the defendant's behavior by the deponent officer who then signed his name to the accusatory instrument.

In People v Cohen, supra, the defendant was charged with Disorderly Conduct, P.L.§ 240.20(5); P.L.§240.20(6) and violating New York City Administrative Code §10-110, Parading Without a Permit. The factual allegations in that accusatory instrument read as follows"

"Deponent states that he observed defendant on a bicycle in the street amongst numerous other people also on bicycles in the street at the above location and observed pedestrians and vehicles attempt to pass her and observed them unable to pass because of defendant's location in the street. Deponent further states that defendant was told to move out of the street and defendant refused to move."

That court dismissed the count of Disorderly Conduct, P.L§ 240.20(6) for facial insufficiency but retained the remaining charges. The court found that the factual allegations did not make out the elements of the charge because they failed to specifically state the identity of the person who allegedly issued the directive for the defendant to move off the street. The court reasoned that the [*4]term "lawful order" implied that in order for such order to be legitimate, it would have to be issued by either a police officer or peace officer. This was never clearly established.

In these two previous cases, the respective defendants were personally observed actively engaging in prohibited activity, thus establishing the elements of the offenses charged. This is obviously not the case here. This accusatory instrument does not even state at the very minimum that this defendant was personally observed along with the other "approximately 300 individuals" present at that time and place, assuming it is even feasible to carefully observe 300 individuals at once. There are absolutely no allegations connecting this defendant to any illegal activity or conduct.

It is also interesting to note that in these two previous cases, the defendants conceded their presence at the respective locations. In the instant case, the defendant alleges that when he was taken into custody with hundreds of others, he was not involved in any protest and was in fact, en route to Virgin Records.

The only time this defendant is mentioned in the accusatory instrument is in the very last paragraph which states, "Deponent states that he observed a number of arrested individuals placed on one of said transporting vehicles and followed the vehicle to 100 Centre Street. Deponent further states that upon arrival at 100 Centre Street, he observed the above named defendant exit said vehicle to be further processed, during which processing the above named defendant remained in police custody." This is tantamount to asking this court to hold that because an individual is in police custody,he is guilty of the offenses charged. For the court to take this position would be to undermine andeviscerate the criminal justice system as we know it. This court is not willing to so. Accordingly, the motion to dismiss based on facial insufficiency is granted. It is not

necessary to address the remaining motion.

This constitutes the decision and order of the court.

DATED: March 22, 2005

New York County, New York Kathryn E. Freed

Judge of the Criminal Court