People v Hawkins

[*1] People v Hawkins 2014 NY Slip Op 51273(U) Decided on August 15, 2014 City Court Of Dunkirk Drag, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 15, 2014
City Court of Dunkirk

People of the State of New York, Plaintiff,

against

Rodney Hawkins, Jr., Defendant.



2014-28180



David W. Foley, District Attorney

Patrick Swanson, of counsel

Mayville, New York

For the People

Nathaniel Barone, Public Defender

John P. Gullo, II, of counsel

Fredonia, New York

For the Defendant
Walter F. Drag, J.

Defendant Rodney Hawkins, Jr., charged with obstructing governmental administration in the second degree (Penal Law § 195.05), a class A misdemeanor, and harassment in the second degree (Penal Law § 240.26[1]), a violation, has moved inter alia for an order dismissing the information upon the ground that it is insufficient on its face; compelling discovery; directing the People to furnish defendant with all exculpatory evidence, pursuant to Brady v. Maryland, 373 US 83 (1963); and suppressing the use at trial of any statements made by defendant to a public servant.For the convenience of the parties, this Decision and Order has been organized by subheading to correspond to the relief sought in the subheadings of defendant's motion papers.

Dismissal of Information

It is well settled that "[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v. Dreyden, 15 NY3d 100, 103 [2010] quoting People v. Case, 42 NY2d 98, 99 [1977]).

The facial sufficiency requirements for a local criminal court information come in three parts (see People v. Casey, 95 NY2d 354, 360 [2000]). First, the information must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15[3]; CPL 100.40[1][a] ). Second, the "allegations of the factual part . . . together with those of any supporting depositions . . . [must] provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40[1][b]). Third, "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions [must] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40[1][c]; CPL 100.15[3]).

"[F]ailure to comply with the prima facie case' requirement for facial sufficiency in CPL 100.40 (1) (c) and 100.15 (3) is a jurisdictional defect" (People v. Alejandro, 70 NY2d 133, 139 [1987] [total absence of pleading of one of the requirements of the crime of Resisting Arrest]) which is "not waived by defendant's failure to raise the issue until after the completion of trial" (id. at 135) or by defendant's entry of a guilty plea (People v. Kalin, 12 NY3d 225 [2009] [complaint was not defective, despite the police officer's failure to describe the appearance of the substance seized and failure to attach a laboratory report, where the officer relied on his training and experience as the basis for drawing the conclusion that he had

discovered illegal drugs]).[FN1]

Another jurisdictional sine qua non is the reasonable cause requirement (see People v. Hightower, 18 NY3d 249 [2011]; People v. Dreyden, 15 NY3d 100 [2010]), and to comply with that requirement, "the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged" (Hightower at 254).

The " prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial' nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v. Kalin, 12 NY3d 225, 230 [internal citations omitted]). As Casey observed, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (95 NY2d at 360). Thus, to the extent defendant argues that the information is defective because it states the "least of the facts of the matter herein," the Court finds no merit to that contention.

Because of the existence of issues unique to the obstructing charge, the Court analyzes the facial sufficiency of each information separately, with headings corresponding to each separate accusatory instrument.

Obstructing Governmental Administration in the Second Degree

The misdemeanor information succinctly alleges that defendant "did during a domestic dispute, slam the front door and locked it after officers identified themselves as police officers preventing officers from gaining entry to the apartment to help a female that was screaming for help."[FN2] Neither the alleged female victim nor either of the two complaining officers provided a supporting deposition, and the information states that its factual allegations are based upon personal knowledge and direct observations of the two officers, thereby rendering the allegations contained therein non-hearsay.

Defendant challenges not the nonhearsay requirement, but the prima facie requirement, arguing that even if all of the allegations are true, they do not support every element of the offense charged. Specifically, defendant contends that he could not have committed the offenses because the information fails to allege that defendant interfered with an official function, i.e., fails to allege that law enforcement had either a warrant or probable cause to arrest defendant without a warrant. Putting aside the question of whether law enforcement had probable cause to arrest defendant without a warrant based upon the factual allegations contained in the harassment [*2]information, which arguably could suffice as a supporting deposition for the obstructing charge,[FN3] the Court focuses its attention on the second point made by defendant, that is, defendant did not have any obligation to let the officers into the residence.

Penal Law § 195.05 provides, in relevant part, that "[a] person is guilty of obstructing governmental administration in the second degree when he intentionally obstructs, impairs or perverts the 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 . . .""[M]ere words alone do not constitute physical force or interference' such as to support the charge of obstructing governmental administration" (People v. Case, 42 NY2d 98, 102 [CB radio transmission warning motorists as to the highway location of a radar speed checkpoint]). On the other hand, the physical element is satisfied if the defendant's conduct causes a "physical reaction" (Matter of Davan L., 91 NY2d 88, 91 [after being told by officers to leave an area of undercover police activity, the juvenile intentionally rode his bicycle into the area yelling "cops, cops . . .watch out, five-o") or if "[a] rational factfinder could conclude that [the defendant] placed his own safety, as well as the safety of the officers and others in the public, at risk" (id.).

Even deceitful or misleading verbal statements are insufficient to support a charge of obstructing governmental administration (see People v. Perez, 47 AD3d 1192 [4th Dept 2008]). In Perez, the defendant lied to two officers about his name and date of birth. Since the officers were aware of defendant's true name and lacked reasonable cause to believe that the defendant had committed the crime of criminal impersonation, the court found the arrest to be unauthorized (an essential element of the crime of resisting arrest), and reversed the defendant's conviction for assault in the second degree, resisting arrest and obstructing governmental administration. It is instructive that the court viewed defendant's verbal and physical conduct (his attempt to shut his door) as "manifestations of [his] exercise of the right to be let alone" (id. at 1193 [internal quotations omitted]).

In People v. Offen, 96 Misc 2d 147 (New York City Crim Ct 1978),[FN4] the defendant was informed by a police officer that he was about to receive a summons for littering. In addition to ignoring the officer's demand for identification and uttering an expletive, the defendant proceeded to walk away across the sidewalk, reenter his store and lock the door. The court determined "as a matter of law that fleeing' from an officer prior to arrest is not [obstructing governmental administration]" (Offen at 150). Moreover, the court concluded that refusing to open a door to police officers does not support such charge. "Were the law otherwise, it would follow that whenever any barrier is placed in the path of process and/or arrest, this class A misdemeanor (obstructing) could be added" (id.).

In People v. Bryan, 190 Misc 2d 818 (Poughkeepsie City Ct 2002, the defendant, after being informed that he was being charged with possessing an alcoholic beverage being less than twenty-one years old, ran away leading the arresting officer and multiple other officers on an extensive foot chase. Citing Offen as well as Davan, the court held that the accusatory instrument was insufficient on its face. Focusing on the intent element, the court reasoned that one who runs from the police to avoid arrest does not necessarily intentionally cause an obstruction:

"Rather, if the true intent of the defendant was to allude capture, then it cannot also have been the intent of the defendant to cause an obstruction by having the police give chase. While such a defendant who runs from the police would likely realize that the police might well react by [*3]physically giving chase, it is not the defendant's intent that they do so. Indeed, the defendant would just as soon that they give up and go home. The only genuine intent of such a defendant is to avoid arrest. Of course, a defendant who runs from the police to avoid an authorized arrest can be charged with the crime of Resisting Arrest, as the criminal intent for that crime would have been met. But such a defendant should not also be charged with Obstructing Governmental Administration in the 2nd Degree unless there is alleged some obstructive intent. The nature of the criminal intent necessary for Resisting Arrest is separate and distinct from that necessary for Obstructing Governmental Administration in the 2nd Degree" (Bryan, 190 Misc 2d at 823).

Arguably, "[the defendant's] actions caused a physical reaction' in that the police chased him, but it cannot be said that being chased was his intent" (id.).

In the case at hand, the alleged act of slamming the door and then locking the deadbolt crossed the line between mere words which do not support the charge and physical conduct which does. Moreover, the official function element is readily discernable. The information alleges that the officers were investigating a domestic dispute, saw the female victim pushed to the ground multiple times and pulled away from the door and heard the victim screaming for help.[FN5] Because a domestic dispute was involved, the police officers had a legal duty to investigate, prepare and file a domestic incident report, obtain statements from the victim and any witnesses and, under certain circumstances, make an arrest (see Criminal Procedure Law § 140.15).

As to the lack of a warrant to arrest defendant, to the extent the officers observed conduct which rose to the level of exigent circumstances, a warrantless entry into the home would have been justified (see People v. McBride, 14 NY3d 440 [2010]).

The final issue is the right to be let alone' doctrine. Although the Appellate Division, Fourth Department relied upon the doctrine to justify the reversal of the obstructing conviction in Perez, this Court concludes that the facts of this case are clearly distinguishable based upon the presence of the female victim. Here, defendant did more than erect a barrier in the path of process or arrest, he erected a barrier in the path of the police officers's duty to investigate an alleged domestic incident and in the path of the female victim's right not to let alone. Accordingly, Perez is clearly distinguishable from the facts presented here.

Based upon the foregoing, the Court denies defendant's motion for an order dismissing the information pursuant to CPL § 170.30(1)(a).

Harassment in the Second Degree

Despite the lack of a supporting deposition from the female victim, the information is sufficient on its face since it is based upon the personal knowledge. The subscribing officer made it clear that he personally observed defendant push his wife down to the ground multiple times and pull her away from the door.

As to the intent element, it is well established that intent may "be inferred from the act itself ... [or] from the defendant's conduct and the surrounding circumstances" (People v. Bracey, 41 NY2d 296, 301 [1977] [internal quotation marks and citations omitted]; see also People v. Booden, 69 NY2d 185 [1987]).

That branch of defendant's motion which seeks an order dismissing the harassment information upon the ground that it is fatally defective is denied.

Dismissal of Information - Interest of Justice

Criminal Procedure Law § 170.40 (as amended by L 1979, ch 216) provides that "an information . . . may be dismissed in the interest of justice . . . as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant on such accusatory instrument would constitute or result in injustice." In determining whether such compelling factor, consideration or circumstance exists, "the court must, to the extent applicable, examine and consider, individually [*4]and collectively" the following factors:

the extent of harm caused by the offense;

the evidence of guilt, whether admissible or inadmissible at trial;

the history, character and condition of the defendant;

any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

the purpose and effect of imposing upon the defendant a sentence authorized for the offence;

the impact of a dismissal on the safety or welfare of the community;

the impact of dismissal upon the confidence of the public in the criminal justice system;

where the Court deems appropriate, the attitude of the complainant or victim with respect to the Motion;

any other relevant fact indicating that a judgment of conviction would serve no useful purpose." CPL § 170.40 (1)

In deciding a motion to dismiss in the interest of justice, a court must examine and consider the merits of the application in light of the factors enumerated in the statute, and balance the interests of the defendant, the complainant and the community (People v. Watson, 182 Misc 2d 644). However, a "court need not pursue a ritual adherence to the criteria "formula" set forth" in CPL § 170.40 and "may give any element of said criteria, i.e., (a) through (j), greatereven controllingweight over any other element or factor" (People v. Pius, 157 Misc 2d 805, 809).

Moreover, "[t]he trial court's discretion to dismiss in the interest of justice, should be "exercised sparingly" and only in that "rare" and "unusual" case where it "cries out for fundamental justice beyond the confines of conventional considerations" (People v. Insignares, 109 AD2d 221, 234 [internal citations omitted]). Having examined and considered, individually and collectively, each of the statutory factors, the Court concludes that this is not that rare case.

Suppression of Evidence

The District Attorney has represented that defendant made no statements to a public servant. Accordingly, defendant's motion for preclusion of such statements or for a hearing to suppress such statements is denied as moot.

It appearing that defendant was not subjected to an identification procedure within the meaning of CPL 710.30(1)(b), defendant's motion to preclude [or suppress] the identification testimony is denied. In the absence of a police arranged identification procedure, the District Attorney was not required to serve the defendant with CPL 710.30(1)(b) notice (see People v. Dixon, 85 NY2d 218 (1995); see also People v. Whisby, 48 NY2d 834 [1979]) and thus no hearing or suppression is required.Discovery and Bill of Particulars

The prosecutor responded to defendant's discovery demand and request for bill of particulars. If the disclosed information does not satisfy defendant's request for information required by law to be disclosed, then defendant may make the appropriate motion to compel disclosure and/or motion for a bill of particulars. In that motion, defendant must (1) specify the item(s) of information which the District Attorney has not disclosed, (2) affirm that such information is relevant and applicable to this case, and (3) specify the provision of law or authority requiring disclosure of such information.

On a motion to compel, defendant is minimally required to specify to the Court exactly what information defendant requested and the District Attorney refused to disclose, and under what provision of law the District Attorney was required to disclose the information. The Court is not required to expend an inordinate period of time comparing and deciphering extensive demands and the response to determine what was requested, whether the item is relevant to the case, whether the request was denied, and which statute or case law defendant relies upon to [*5]warrant court ordered disclosure. Such a procedure is also fraught with the potential of inadvertent error on the Court's part in recognizing defendant's entitlement to certain information or property. It is a simple matter for defendant to specify for the Court in defendant's motion papers the items of information or property sought to be compelled, making sure they are relevant to the case and have not been supplied by the District Attorney, and specifying the applicable law. Defendant has twenty-one (21) days from the date of this decision and order to renew the motion upon proper papers.

Sandoval & CPL § 240.43

Pursuant to CPL § 240.43 and People v. Sandoval, 34 NY2d 371 (1974), immediately prior to the commencement of jury selection, the prosecutor shall, upon request of defendant, notify defendant of all prior criminal convictions and specific instances of defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of defendant. Thereafter, upon defendant's request of the trial court, a Sandoval hearing shall be conducted by the trial court prior to the commencement of trial.

Brady

The District Attorney is reminded of the continuing obligation to provide exculpatory information to the defendant (see Brady v. Maryland, 373 U.S. 83 [1963]). Exculpatory information includes any information that would be "favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses," irrespective of whether the District Attorney credits such information (People v Baxley, 84 NY2d 208, 213 [1994]). The District Attorney is directed to disclose any such information to the defense.

Ventimiglia

That branch of defendant's motion which seeks the disclosure of defendant's prior charged or uncharged bad acts which the prosecutor intends to use at trial in his case in chief and a pre-trial Ventimiglia hearing is granted to the extent of ordering that such hearing shall be held immediately before the commencement of trial.

Subsequent Motions

That branch of defendant's motion which seeks leave to serve and file additional motions, based upon a blanket request, unsupported by the proper papers and grounds, is denied as unauthorized (see CPL § 255.20 [3]). Any future motions will be determined on an individual basis, based upon the timeliness and merits thereof.

The foregoing constitutes the decision and order of the court.

Dated this 15th day of August 2014.

__/s/____________________________Hon. Walter F. Drag

City Court Judge Footnotes

Footnote 1:As stated in Casey, "first, there must be factual allegations establishing every element of the offense and second, those allegations must be non-hearsay'" (95 NY2d at 362 [internal citations omitted]). The prima facie case' requirement is jurisdictional and can be raised at any time, even for the first time on appeal (see id.). On the other hand, a violation of the non-hearsay requirement is waived if not raised prior to the completion of the trial or prior to the entry of a guilty plea (see id.).

Footnote 2:Interestingly, defendant was not charged with unlawful imprisonment in the second degree.

Footnote 3:It alleges that one of the officers observed defendant intentionally push his wife to the ground multiple times, pull her away from the entrance door and close and secure the door behind him.

Footnote 4:Cited favorably by the Fourth Department in Perez and by the New York Court of Appeals in Matter of Davan L., 91 NY2d 88, 91 (1997).

Footnote 5:A portion of these factual allegations is contained in the harassment information.