People v Jones

[*1] People v Jones 2017 NY Slip Op 50162(U) Decided on January 25, 2017 City Court Of Gloversville, Fulton County DiMezza, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2017
City Court of Gloversville, Fulton County

The People of the State of New York

against

Jerome A. Jones, Defendant.



2016-0575



CHAD BROWN, ESQ.

Acting Fulton County District Attorney

AMANDA NELLIS, ESQ. OF COUNSEL:

Assistant District Attorney

County Office Building

223 West Main Street

Johnstown, NY 12095

MICHAEL SUTTON, ESQ.

P.O. Box 2057

Albany, New York 12220
Traci DiMezza, J.

On June 4, 2016, Defendant, Jerome A. Jones was charged with one count of Harassment in the Second Degree, in violation of Penal Law § 240.26-(1); and one count of Resisting Arrest, in violation of Penal Law §205.30.

After a probable cause hearing held on December 14, 2016, the Court makes the following findings of fact and conclusions of Law:

Findings of Fact:

In the early morning hours of June 20, 2016, police responded to 105 North Arlington Avenue, Gloversville, after a 911 call complaining of a disturbance described as "domestic violence... sounds like it's getting physical." Police arrived at the home of the Defendant and Ms. Jamie Jones, Defendant's mother, who spoke with Officer Palmer of the Gloversville Police Department. Ms. Jones reported that the Defendant [*2]had fled the scene before the police arrived. When asked about the disturbance, Ms. Jones reported that the Defendant had been arguing with family members, throwing things inside the home, and that she suspected the Defendant of being under the influence of drugs.

After the initial interview, police cleared the scene but were called back to the residence, for an identical complaint, a short time later. Once again, Defendant fled the scene before police arrived. After leaving the residence for a second time, Officer Palmer observed a young man, matching the description of the Defendant, walking west on Spring Street and heading towards the North Arlington Avenue residence. It was Officer Palmer's testimony that the individual "looked like he had been fighting" and appeared angered and upset. Suspecting the individual to be the Defendant, Officer Palmer called out to him, exited her vehicle, and approached the Defendant.

It is undisputed that from the onset of the encounter, Defendant did not wish to speak with police. Officer Palmer testified candidly that the Defendant told her to "fuck off..." "I don't have to speak with you..." "I'm going home..."

Rightfully suspecting that the Defendant was still upset, and admittedly returning to the residence, Officer Palmer was, nevertheless, determined to speak with him. Defendant, however, refused to answer questions posed by the officer and continued on his intended path.

In an attempt to stop the Defendant from walking away, Officer Palmer stepped in front of him to block his path. In what Officer Palmer described as an effort to "console" the Defendant, she "brushed her hand against his arm" so that he would turn around and face her. Once she touched him, however, it is the Officer's testimony that the Defendant "jerked away" and "shoved" her, at which point, the Defendant was placed under arrest for Harassment in the Second Degree, and subsequently, Resisting Arrest.

Conclusions of Law

The Fourth Amendment

Cantor, DeBour, Hollman

In People v. DeBour, the New York State Court of Appeals set out a four-tiered method for evaluating the propriety of police initiated encounters with private citizens.First, if a police officer seeks to request basic information from an individual, that request must be supported by an "objective, credible reason, not necessarily indicative of criminal activity." DeBour, 40 NY2d 210 at 223 [1976]. Second, the common-law right of inquiry, considered an entirely different level of contact, is "activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion." See People v. Cantor, 36 NY2d 106, at 111 [1975]. Third, when police possess a "reasonable suspicion that a person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person." See People v. Hollman, 79 NY2d 181, at 185 [1992]. Finally, where police have probable cause to believe that a person has committed a crime, an arrest is authorized. Hollman, supra at 185.

Level I

Request for Information

Without question, Officer Palmer was authorized to approach the Defendant and request basic information.

When Officer Palmer called out to the Defendant, stopped her patrol car and approached him, she possessed an objective, credible reason for that minimal interference. Officers had responded not once, but twice, to the same home, for the same domestic violence complaint. Each time, Defendant fled the scene, making it impossible for police to interview him.

Defendant argues that even the most non-intrusive "request for information" was unjustified in this case, since the Defendant's identity and intended destination were reasonably known to the officer at the time she initiated her approach. This Court does not agree. Suspecting the identity of an individual is very different then confirming it, and that argument ignores the various roles that police serve, including public safety.

The hearing record revealed that Defendant's mother had expressed concerns to police regarding the health and welfare of her son. Officer Palmer's approach was non-threatening and initiated for an articulable reason - to determine the Defendant's identity, destination and to ensure his health and welfare.

Based upon the totality of circumstances, this Court finds that Officer Palmer's initial approach of Defendant was justified at it's inception.

Level II

The Common Law Right of Inquiry

Under DeBour's second level of inquiry, police are entitled to "...interfere with a citizen to the extent necessary to gain explanatory information, but short of forcible seizure." DeBour, supra, citing People v. Cantor, 36 NY2d at 114.

While arguing with family members is certainly not a crime, acts or conduct that place other members of a household in fear of harm or injury; the act of throwing or damaging personal property of another; the possession or consumption of illegal drugs, and; creating a disturbance that causes public alarm or inconvenience, are all behaviors prohibited by law. The argument that no one at the scene had demanded Defendant's arrest or "swore out a complaint" does not compel this Court to rule otherwise.

During the course of the investigation into two domestic disturbance reports, it is reasonable to conclude that Officer Palmer left the Defendant's residence with a "founded suspicion"of criminal activity, grounded in the factual allegations of a witness, as well as the Officer's direct observations and interaction with the Defendant. Similar to the factual scenarios presented in Hollman and Moore, 47 NY2d 911 [1979], the Defendant's response to the Officer's initial inquiries had aroused her further suspicion [*3]and concern.

Under these set of facts, this Court finds that the activation of a greater level of intrusion upon the Defendant was justified, and permitted the Officer to interfere with the Defendant's liberty to the extent necessary to gain explanatory information.

Level II

Scope of interference

After establishing that Officer Palmer's approach permitted her to make a common law inquiry, the Court must still determine whether police conduct exceeded the scope of that permissible interference.

In the case at bar, the Defendant takes the position that when Officer Palmer stepped in front of him, blocked his way, and touched his arm, the Defendant was "seized" within the meaning of the Fourth Amendment. This interference, Defendant argues, was more akin to a level three forcible seizure under DeBour, and unjustified under the facts of this case.

The New York State Court of Appeals has defined the "seizure" of a person for constitutional purposes to be a "significant interruption with an individual's liberty of movement" People v. DeBour, supra, citing People v. Cantor, supra at 111.

In People v. Cantor, the actions of three plain-clothes officers, in surrounding the defendant, with revolvers drawn, and blocking his vehicle with their own, was considered an unconstitutional seizure. Similarly, in People v. Ingle, 36 NY2d 413, where a motorist was 'accosted' and 'restrained' for a 'routine traffic check' the Court held that this constituted a 'limited seizure within the meaning of constitutional limitations. Ingle, supra at 418. In People v. Rosa, 30 AD3d 905 [2006], the Court determined that the Defendant was forcibly seized after he was surrounded by three patrol cars, one of which drove up on a public sidewalk to impede his travel. Defendant was then followed by an officer who "accompanied" him on a nearby errand.

In the case at bar, the following testimony is relevant:

Q: You denied grabbing him, correct?A: Yes.Q: And you next testified that you pushed against his arm to physically turn him around to speak with you, is that what you testified to?A: Yes.Q: Can you elaborate on how you would push against someone's arm to physically turn them around without grabbing them?A: I brushed my hand against him....he was walking towards me and he was trying to go around, so I brushed my hand to try to get him to face me and talk to meQ: So you put one hand on him or two?A: Just one.Q: And it was an open hand correct?A: Correct.Q: How did you attempt to turn him with that one hand?A: Brushing my hand against him, to try to get him to make eye contact with me.Q: And it's your testimony that at no point you grabbed him to try and turn him around?A: Correct.Q. Did Mr. Jones stop because you touched his arm?A. Yes.

This Court does not accept the premise that all forms of physical contact between an officer and a private citizen amount to a "seizure" under the Fourth Amendment, and the facts of this case represent a sharp contrast to the conduct of officers in Cantor, Ingle and Rosa. In the case at bar, Officer Palmer's singular approach of Defendant bespoke of no violence, intimidation or forcible restraint. Even though Defendant's attempt to return home without interference was briefly denied, his "right to be free from official interference is not absolute." Debour supra at 217.

Probable Cause for Arrest

Harassment 2nd

This Court, finding the Officer's initial approach, inquiry, and subsequent interference lawful under the Fourth Amendment, the Court must address the facts attendant upon Defendant's arrest for Harassment in the Second Degree.

The violation of Harassment requires that the People present evidence proving that a Defendant "with intent to harass, annoy or alarm another person....strikes, shoves, kicks" or otherwise subjects said person to physical contact (PL §240.26-1); see also People v. Bracey, 41 NY2d 296 [1977]. The mens rea issue is not whether the complainant has been harassed, annoyed or alarmed - but rather whether the actor intended to harass, annoy or alarm the complainant. See People v. Concannon, 28 NY2d 854 [1971]; see also People v. Jemzura, 29 NY2d 590 [1971].

Even in instances where there is proof of physical contact between the Defendant and the complainant, more is required. See generally 6A NY Prac., Criminal Law. For example, in People v. Caulkins, 82 AD3d 1506 [2011], the Appellate Division reversed a Harassment conviction after the evidence showed that the Defendant shoved the complainant in the shoulder, with an open hand, during an argument. In the view of the Appellate Division, the Defendant's "fleeting and innocuous" physical contact with the complainant, did not, by itself, establish that Defendant intended to harass, annoy or alarm. Id., at 1507.

There is further support for the premise that behavior which is spontaneous or motivated by something other than the desire to harass, will not sustain a charge for Harassment. See People v. Straci, (1997) 174 Misc 2d 926 [motion to dismiss Harassment charge granted against Defendant who grabbed the wrist of a subordinate employee and led her to another room in the course of an argument because the Court found the conduct to be spontaneous and motivated by a desire to preserve office decorum]; see [*4]also People v. Schmidt, (1974) 76 Misc 2d 976 [conviction for Harassment overturned in favor of Defendant who engaged in a physical confrontation with police which included pushing and shoving]; see also People v. Smolen, (1972) 69 Misc 2d 920 [Harassment charge dismissed against Defendant who encountered estranged grandson in a public place and tried to touch him]; see also S.G. v. L.B.M. (2000) 184 Misc 2d 89 [Defendant's action in barring doorway to bedroom, in which minor child of whom officer intended to take custody, and Defendant's action in struggling when officer placed her under arrest, did not constitute Harassment].

The following testimony is relevant to this Court's determination of probable cause:

Q: and when you touched him, he stepped back?A: and something elseQ: he jerked away from you?A: yesQ: Isn't it possible officer, that his reaction to you touching him, was that he wanted you to not touch him?A: YesQ: So after you touched his arm what happened next?A: Once I tried to get his attention by touching his arm, he immediately just became defensive and picked up his arm to throw mine....to get me off...he picked up his arm to basically get me out of his way and when he did he shoved me".

Based upon the Officer's own testimony, this Court is inclined to rule that the Defendant's act of lifting his arm and jerking away from Officer Palmer was fleeting, innocuous, and a spontaneous reaction to unwanted physical contact, not indicative of any intent to harass, annoy or alarm.

The hearing record being insufficient to establish a prima facie case against the Defendant for Harassment in the Second Degree, this Court is confined to rule that the police lacked probable cause for the arrest [FN1] . Absent probable cause to arrest the Defendant for Harassment, there is insufficient evidence to prove that the police were effectuating a "lawful" arrest, and therefore, the charge of Resisting Arrest will similarly not stand.

The accusatory instruments charging the Defendant with Harassment in the Second [*5]Degree and Resisting Arrest are hereby DISMISSED with prejudice.

The foregoing constitutes the Decision and Order of this Court.

Entered: Gloversville New York

Dated: January 25, 2017

_________________________________

Hon. Traci DiMezza

J.C.C. Footnotes

Footnote 1:This Court further finds insufficient cause to arrest the Defendant on a charge of Disorderly Conduct, for the act of yelling profanities towards the officer, on a public street, as she approached him. Even though these acts were committed in the presence of the police officer, the hearing record failed to prove that this disturbance extended beyond the hearing of individual disputants, or that the acts caused "public inconvenience or alarm".