People v Higginson

[*1] People v Higginson 2009 NY Slip Op 51478(U) [24 Misc 3d 1217(A)] Decided on July 8, 2009 Criminal Court Of The City Of New York, New York County Simpson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Terrence Higginson, Defendant.



2009NY016769



FOR THE PEOPLE

ROBERT M. MORGENTHAU, ESQ.

DISTRICT ATTORNEY

ONE HOGAN PLACE

NEW YORK, NEW YORK 10013

BY: ADA DANIEL BRODY, ESQ.

FOR THE DEFENDANT

SAM ROBERTS, ESQ.

OF COUNSEL TO THE

THE LEGAL AID SOCIETY OF NY

49 THOMAS STREET

NEW YORK, NEW YORK 10013-3821

(212) 298-5241

ShawnDya L. Simpson, J.

The defendant is charged with one count each of Obstruction of Governmental Administration in the Second Degree (Penal Law § 195.05), Resisting Arrest (Penal Law § 205.30) and Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 (1)). The defendant has brought a motion to dismiss each charge pursuant to Criminal Procedure Law (CPL) § 100.40, § 170.30 and § 170.35 for facial insufficiency, in addition to other relief sought. Given the foregoing reasons, the defendant's motion to dismiss is denied.

To be sufficient on its face, an information, together with any supporting depositions, must contain evidence of an evidentiary character which provides reasonable cause to believe [*2]that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged (People v. McNamara, 78 NY2d 626, 629 [1991], citing CPL §100.40 (1) (b), (c); People v. Alejandro, 70 NY2d 133, 136-137 [1987]). The allegations must give the defendant sufficient notice to prepare a defense and prevent him from being tried twice for the same offense (People v. Casey, 95 NY2d 354, 360 [2000]). Further, conclusory allegations alone are insufficient (People v. Dumas, 68 NY2d 729 [1986]). The proceeding is fatally defective if the accusatory instrument fails to meet these requirements (People v. Alejandro, supra , at 139).

Obstruction of Governmental Administration in the Second Degree requires a showing that the defendant intentionally obstructed, impaired or perverted the administration of law or other governmental function or that he prevented or attempted 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 (Penal Law § 195.05, see also, People v. Case, 42 NY2d 98, 101 [1977]). Penal Law § 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."

New York Penal Law §265.01 (1) provides that a person is guilty of the charge

when:

He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star".

Penal Law §265.00 (5) defines a "gravity knife" as "any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device." The charge requires a showing that the defendant possessed one of the weapons listed under the statute (Id.).

The factual part of the accusatory instrument upon which the defendant is charged reads as follows:

Deponent states that deponent observed defendant double parked at the above location. Deponent further states that when deponent instructed defendant to move said vehicle, defendant refused, stating in substance: YOU FUCKING PIGS. YOU DON'T HAVE ANYTHING BETTER TO DO. Deponent further states that when deponent instructed defendant to present identification, defendant refused and pushed deponent, stating in substance: YOU FUCKING LOSER GET A FUCKING LIFE.

Deponent further states that when he was placing the defendant under arrest for the offense(s) described above defendant failed his arms, refused to put his hands behind his back, and kicked his legs at deponent. [*3]

Deponent further states that deponent recovered one gravity knife from defendant's rear right pants pocket. Deponent further states that deponent determined that said knife was a gravity knife because deponent opened the knife with centrifugal force by flicking his wrist while holding the knife and the blade locked in the open position. Deponent further states that said knife does not require manual locking.

The accusatory instrument is signed and dated by the deponent, a police officer.

The charge of Obstruction of Governmental Administration requires a showing that the defendant prevented a public servant from performing an official function (Penal Law § 195.05). Where a public servant's performance is at issue, the "official function" must be authorized (People v. Lupinacci, 191 AD2d 589, 595 NYS2d 76 [App. Div. 2nd Dept. 1993]; Matter of Anthony B., 201 AD2d 725, 608 NYS2d 302 [App. Div. 2nd Dept. 1994]; People v. Greene, 221 AD2d 559, 634 NYS2d 144 [App. Div. 2nd Dept. 1995]; People v. Vogel, 116 Misc 2d 332, 457 NYS2d 666 [App. Tm. 2nd Dept. 1994]; People v. Cacsere, 185 Misc 2d 92, 712 NYS2d 298 [App. Tm. 2nd Dept. 2000]; People v. Simon, 145 Misc 2d 518, 547 NYS2d 199 [NY Co. Crim. Ct.1999]; People v. Feliciano, 2004 NY Slip Op 50193(U), 2 Misc 3d 1008[A] [NY Co. Crim. Ct.]). The allegations in this case sufficiently show that the officer's actions were authorized.

Allegations that the defendant was double parked, refused to present identification when instructed, pushed and directed obscenities at the officer, provides a sufficient showing that the defendant's arrest was authorized. The actions alleged provide a prima facie showing of probable cause for an arrest. Specifically, the allegations provide facts which show a violation of both the Penal Law and the Vehicle and Traffic Law since the defendant failed to move the vehicle allegedly double parked when directed by the police and failed to produce identification. The allegations describe the defendant's conduct in sufficient detail and provide a lawful cause for the officer's actions. These allegations demonstrate that the officer had a lawful basis to arrest the defendant. Therefore, a prima facie showing of the "authorized" element is provided therein (C.P.L. § 100.40 (c)).

The allegations also sufficiently show that the defendant acted with the intent to obstruct the officer's performance of an official function. If an officer is attempting to investigate a violation of the law, asks that a double parked car be moved, and request identification and the person refuses all of these and in turn directs obscenities to and pushes the officer, it can be reasonably said that that person has acted with the intent to interfere with the officer's performance of his official duty. Also, the allegations sufficiently establish that the interference was both intentional and physical in nature (see, In the Matter of Davan L., 91 NY2d 88 [1997]; In the Matter of Carlos G, 215 AD2d 165, 626 NYS2d 137 [App. Div., 1st Dept. 1995]; People v. Williams, 186 Misc 2d 705, 721 NYS2d 456 [App. Tm., 1st Dept. 2000]; see also, People v. Vargas, 179 Misc 2d 236, 684 NYS2d 848 [Crim. Ct., NY Co. 1998]). Each element of the charge of Obstruction of Governmental Administration is provided by the instant allegations. The instant allegations adequately show that the defendant prevented [FN1]or attempted to interfere [*4]with an officer's performance of his duty. Consequently, a prima facie showing of each element of the charge is sufficiently established.

While an information must state the crime with which the defendant is charged and allegations constituting that crime (People v. Hall, 48 NY2d 927 [1979]), the prima facie requirement is not the same as the burden of proof required at trial (People v. Henderson, 92 NY2d 677 [1999]). The People's burden is not to prove all elements of the charge (id.). The People need only state in the accusatory instrument facts based on non-hearsay allegations to make a prima facie showing of the charge (People v. Casey, 95 NY2d 354 [2000]). These allegations give the accused notice sufficient to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense (Id. at 360). The allegations also give reasonable cause to believe the defendant's commission of the offense (C.P.L. § 100.40 (1) (b)). Therefore, the defendant's motion to dismiss the charge under Penal Law § 195.05 on sufficiency grounds is denied.

The charge of Criminal Possession of a Weapon is also sufficiently alleged. The allegations in this case sufficiently demonstrate that the knife allegedly possessed was a gravity knife. The allegations provide that a "gravity knife" was recovered from the defendant. The knife is described as having a blade that opens automatically when flicked by the wrist. The first prong of the definition of a "gravity knife" is met since the allegations provide that the knife opened with centrifugal force when the deponent flicked his wrist while holding the knife. The second prong of the definition is also met because it is alleged that the blade locked into place automatically when released. When it is released, a "gravity knife" is locked in place by means of a button, spring, level or other device (Penal Law §265.00 (5)). The definition of a "gravity knife" requires a showing that the blade lock in place automatically upon its release and without further action by the user (Penal Law §265.00 (5); see also, People v. Zuniga, 303 AD2d 773, 759 NYS2d 86 [App. Div., 2nd Dept. 2003]). It is essential to the charge that the knife lock into place automatically (see, People v. Zuniga, 303 AD2d 773, 759 NYS2d 86 [App. Div., 2nd Dept. 2003]; People v. Dolson, supra ; People v. Mott, 137 Misc 2d 757 [1987]; People v. Mashaw, 66 AD2d 955, 411 NYS2d 455 [App. Div., 3rd Dept. 1978]). Such a showing is provided in this case. Therefore, a sufficient showing for the charge of Criminal Possession of a Weapon in the Fourth Degree is provided by these allegations (CPL §100.40 (1) (c)).

The definition of a gravity knife is provided by the statute and the allegations sufficiently show that the knife at issue meets that definition. The officer observed, described and tested the operability of the knife. The allegations are based on first hand observation as it is alleged that the officer tested the knife himself, saw that it open when he applied centrifugal force and that the blade locked into place automatically. The officer alleges from his first hand observation and experience that the knife does not require manual locking. Therefore, the allegations provide a sufficient showing for the charge of Criminal Possession of a Weapon in the Fourth Degree.

Finally, Penal Law § 205.30 requires that the arrest be authorized (People v. Alejandro, [*5]supra at 135; People v. Peacock, 68 NY2d 675, 678 [1986]). Since the allegations provide a sufficient showing that the defendant violated both the Penal Law and the Vehicle and Traffic Law, as well as his commission of Criminal Possession of a Weapon, and there is sufficient showing that probable cause existed for his arrest, there is a basis to conclude that the defendant's arrest was authorized (People v. Peacock, supra ). The facts concerning the defendant's resistance of his arrest are fully set forth in the information. Therefore, the defendant's motion to dismiss this charge must also be denied.

Accordingly, the defendant's motion to dismiss on facial sufficiency grounds is denied in its entirety.

The defendant's motion to suppress evidence is granted to the extent that both Mapp/Dunaway and Huntley/Dunaway hearings are ordered.

The defendant's motion to preclude improperly noticed statements and/or identification testimony pursuant to CPL §§ 710.30 (3) is denied with a right to renew in the event the People attempt to offer improperly noticed statements or identification testimony.

The defendant's Sandoval motion is referred to the trial court.

The defendant's reservation of the right to bring additional motions is permitted to the extent that any additional motions must be made upon a showing of good cause.

This constitutes the decision, opinion and order of the Court.

Dated:New York, New York

July 8, 2009

______________________________

The Honorable ShawnDya L. Simpson

Judge of the Criminal Court Footnotes

Footnote 1: The Court of Appeals has held that in addition to enforcing the criminal law "the police in a democratic society are charged with the protection of constitutional rights, the maintenance of order, the control of pedestrian and vehicular traffic, the mediation of domestic and other noncriminal conflicts, and supplying emergency help and assistance." (In the Matter of Shannon B., 70 NY2d 458, 462 [1987]).