People v Akinwole-Bandel

[*1] People v Akinwole-Bandel 2005 NY Slip Op 51960(U) [10 Misc 3d 1054(A)] Decided on November 21, 2005 Criminal Court Of The City Of New York, Kings County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2005
Criminal Court of the City of New York, Kings County

THE PEOPLE OF THE STATE OF NEW YORK,

against

LUMUMBA AKINWOLE-BANDEL, and DAVID FLOYD, Defendants.



2005KN008254



Defendant's Akinwole-Bandel and Floyd are represented by Joan P. Gibbs, Esq.

John H. Wilson, J.

Defendants are each charged with Obstructing Governmental Administration (PL Sec. 195.05), and Resisting Arrest (PL Sec. 205.30), both Class A misdemeanors, as well as Disorderly Conduct (PL Sec. 240.20), and Harassment in the Second Degree (PL Sec. 240.26), both violations.

By motion dated May 8, 2005, Defendants have moved to dismiss all charges, asserting that the People's complaint is facially insufficient.

In opposition to Defendant's motion, the People filed a response dated June 30, 2005 asserting that all charges are sufficiently plead.

For the reasons stated below, Defendants' motion is granted in part and denied in part.

FACTUAL STATEMENT

Pursuant to the Criminal Court Complaint, on February 9, 2005, at approximately 12:18 AM, Police Officer Thomas Stevens responded to the intersection of Throop and Greene Avenues, County of Kings, City and State of New York, "to investigate a report of an individual menacing another individual with a knife."

Reportedly, as the officer was "searching for evidence of said incident," Defendants allegedly attempted to prevent Officer Stevens from conducting his investigation "by refusing to comply with (the officer's) repeated instructions to move." [*2]

Defendants are further stated to have resisted arrest by flailing their arms, kicking and struggling with the officer, and refusing to be hand-cuffed.[FN1]

Defendants were arraigned in this matter on February 9, 2005. A supporting deposition signed by the complainant was provided to the Court with a Statement of Readiness on March 17, 2005.

LEGAL ANALYSIS

CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).

On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).

Applying these principles to the instant matter, the factual allegations contained in the misdemeanor information before this Court do not support the Harassment charge that has been brought against these Defendants. Thus, this charge is dismissed. The Obstructing, Disorderly Conduct and Resisting Arrest charges are all facially sufficient, and the motion to dismiss these three charges is denied.

(A) Harassment in the Second Degree [*3]

As noted above, the Defendants stand accused of attempting to prevent Officer Stevens from conducting his investigation of an individual reportedly menacing another individual with a knife by refusing to comply with the officer's repeated instructions to move aside as the officer was "searching for evidence of said incident."

CPL Sec. 240.26(1) states that "a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: (1) He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact..."

Harassment encompasses "petty forms of offensive touching, such as striking, shoving, and kicking ...when they are committed with the intent to annoy, harass, or alarm the victim." People v. Bartkow, 96 NY2d 770, 772, 725 NYS2d 589 (2001).

The allegations described above do not exhibit any intention on the part of the Defendants to "annoy and harass" Officer Stevens while he was attempting to investigate the stabbing report he had received. No physical contact is alleged to have occurred between the officer and the Defendants until after Officer Stevens decided to effectuate the arrest of the Defendants.

Therefore, the charge of Harassment in the Second Degree is clearly facially insufficient, and is hereby dismissed.

(B) Obstructing Governmental Administration in the Second Degree

In pertinent part, PL Sec. 195.05 states that a defendant is guilty of Obstructing Governmental Administration in the Second Degree when he "prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference."

Here, the Defendants are alleged to have refused to comply with Officer Stevens repeated instructions to move aside as the officer was attempting to conduct an investigation of an individual reportedly menacing another individual with a knife.

In their motion to dismiss, Defendant's contend that Officer Stevens' order to move was not "lawful." This is an issue best left to the trier of fact. On its face, if the Officer was conducting an investigation of a crime, and the Defendants were asked to move in furtherance of that investigation, than any such order to step aside would be presumptively valid and lawful.

It is clear that the conduct attributed to the Defendants herein would support a charge of Obstructing Governmental Administration. In Decker v. Campus, 981 F. Supp. 851, 858 (SDNY, 1997), the Federal Court found that where an accident victim failed to comply with a deputy sheriff's order that the victim step back while rescue workers attempted to help the victim's wife, the deputy sheriff had probable cause to arrest the accident victim for Obstructing Governmental Administration. See, also, People v. Hodge, 290 AD2d 582, 735 NYS2d 261 (3d [*4]Dept., 2002), lve app den, 97 NY2d 755, 742 NYS2d 615 (2002) (Sufficient evidence existed to support conviction for Obstructing Governmental Administration where defendant refused to comply with orders of corrections officers).

It is not necessary that the "physical interference" consist of physical contact with the officer. See, People v. Vargas, 179 Misc 2d 236, 239, 684 NYS2d 848 (Crim. Ct., NY Cty, 1998). Further, even the barest factual allegations of a specific police function is sufficient to apply the Obstructing statute. See, People v. Tillman, 184 Misc 2d 20, 21, 706 NYS2d 819 (City Ct., Auburn, 2000).

Thus, under the facts alleged herein, the charge of Obstructing Governmental Administration in the Second Degree is facially sufficient.

( C) Disorderly Conduct

CPL Sec. 240.20(6) states that a person is guilty of disorderly conduct when, "with intent to cause public inconvenience, annoyance or alarm...he congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse."

The Criminal Court complaint alleges that Defendants did prevent Officer Stevens from conducting a police investigation by refusing to comply with the office's repeated instructions to these two defendants to move. As noted above, a request by a police officer for the Defendants to move aside while the officer is conducting a criminal investigation is presumed to be a valid and lawful order.

Defendants admit in their memorandum of law that they were together on the street for the purpose of "monitor(ing) the police." In the course of the officer's investigation into an allegation involving a man menacing another with a knife, the officer issued an order to the Defendants to move aside. Such an order does not interfere with the Defendants' right to be present on the street, or to conduct their monitoring activities. The failure to comply with the officer's apparently lawful and reasonable request, however, would support a view of the People's evidence that the conduct of the Defendants was disorderly. See, People v. Kern, 51 Misc 2d 209, 211, 273 NYS2d 181 (Police Court, Rockville Centre, 1966), aff, 56 Misc 2d 557, 289 NYS2d 71 (NY Police Court, 1968); People v. Galamison, 43 Misc 2d 72, 76-77, 250 NYS2d 325 (App. Term, 2d Dept., 1964).

Therefore, the allegations described above are clearly sufficient to support the charge of Disorderly Conduct.

(D) Resisting Arrest

Defendants are alleged to have flailed their arms and kicked and struggled with Officer Stevens as the officer attempted to place the Defendants under arrest. [*5]

CPL Sec. 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."

"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, 630 NYS2d 989 (1995). In the instant case, the probable cause for the Defendants arrest is clear; as Officer Stevens was conducting his investigation into an allegation involving a man menacing another with a knife, Defendants allegedly refused to comply with the officer's repeated instructions to the Defendants to move aside.

The actions of the Defendants as they were being placed under arrest, that is, the flailing of their arms, kicking and struggling with the officer, clearly indicates an intention to resist an arrest based upon probable cause. See, People v. Bauer, 161 Misc 2d 588, 614 NYS2d 871 (City Court, Watertown, 1994) (Resisting arrest statute broadly proscribes resistance by any means; thus, where officer was required to use physical force to overcome defendant's failure to cooperate with normal arrest procedure, defendant was guilty of resisting arrest.)

Thus, the charge of Resisting Arrest is facially sufficient.

All other arguments advanced by Defendant in his motion to dismiss dated May 8, 2005 have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New York November 21, 2005

_______________________________ Hon. John H. Wilson, JCC Footnotes

Footnote 1: Mr. Djibril Toure is alleged to have jumped on Officer Steven's back as the officer attempted to place Mr. Akinwole-Bandel and Mr. Floyd under arrest, causing the officer to fall to the ground, and of having punched the officer in the back. Mr. Toure is charged under Docket # 2005KN008253 with the same offenses as Defendants Akinwole-Bandel and Floyd , except Mr. Toure is also charged with Assault in the Third Degree, and Menacing in the Third Degree. A motion to dismiss for facial insufficiency has been filed on behalf of Mr. Toure, and will be decided separately from this matter.