People v Cox (Terrence)

[*1] People v Cox (Terrence) 2014 NY Slip Op 51162(U) Decided on July 24, 2014 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-199 K CR

The People of the State of New York, Appellant,

against

Terrence Cox, Respondent.

Appeal from an order of the Criminal Court of the City of New York, Kings County (John T. Hecht, J.; op 37 Misc 3d 121[A], 2012 NY Slip Op 52092[U]), dated November 13, 2012. The order granted defendant's motion to dismiss the information on the ground of facial insufficiency.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the information on the ground of facial insufficiency is denied, the information is reinstated, and the matter is remitted to the Criminal Court for all further proceedings thereon.

Defendant was charged in an information with obstructing governmental administration in the second degree (Penal Law § 195.05), resisting arrest (Penal Law § 205.30), and disorderly conduct (Penal Law § 240.20 [1]). The factual part of the information alleged that, at approximately 12:55 a.m. on May 18, 2012, at a New York City Housing Authority apartment building in Brooklyn, defendant yelled, screamed, cursed, engaged in a verbal dispute with, and swung his arms at, a police officer in an effort to prevent the officer from arresting a third party, "causing a crowd of passerbys [sic] to form and observe defendant's actions, creating public alarm and annoyance." The factual portion of the information further alleged that, as the officer "attempted to place handcuffs on defendant's wrists, defendant did flail and swing arms, curse, yell and scream" at the officer in an effort to prevent the officer "from placing defendant under arrest."

Defendant moved to dismiss the charges of resisting arrest and obstructing governmental administration in the second degree, on the ground that the information did not allege that the arrest of the third party was authorized. He further argued that the disorderly conduct charge should be dismissed as well, as the information did not allege that he had been "fighting" with the police, and that the allegations that he had flailed and swung his arms at a police officer did not "establish tumultuous behavior" (Penal Law § 240.20 [1]). The People argued in opposition to the motion, essentially, that the allegations of the factual part of the information were facially sufficient.

The Criminal Court granted the motion and dismissed the information. The court determined that the charges of resisting arrest and obstructing governmental administration in the second degree were facially insufficient because the information lacked any allegations that the arrest of the third party was based on probable cause. Thus, the information failed to allege that the arrest of the third party was authorized. The court also dismissed the disorderly conduct charge, on the ground that if defendant was resisting an unauthorized arrest of the third party, his acts were lawful. Furthermore, it indicated that if defendant were privileged to use force to resist the third party's unauthorized and unlawful arrest, defendant could not have formed the criminal intent to commit the offense of disorderly conduct, relying on People v Cherry (307 NY 308 [1954]).

The People contend, among other things, that the factual part of the information contains [*2]allegations sufficient to support the charge of disorderly conduct, and the charges of resisting arrest and obstructing governmental administration in the second degree with respect to his own arrest. We agree and reverse the order.

The Criminal Court's reliance, in part, on People v Cherry (307 NY 308) was misplaced, as it was overruled by the enactment of Penal Law § 35.27 (see Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.00), which prohibits the "use [of] physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer." Furthermore, the court, in dismissing the disorderly conduct charge, determined, in effect, that the People had failed to allege in the information that defendant's acts were not justified. However, there is no requirement that an accusatory instrument contain allegations tending to disprove potential defenses (see People v Lepore, 27 Misc 3d 1214[A], 2010 NY Slip Op 50736[U] [Crim Ct, Kings County 2010]; People v Chang, 25 Misc 3d 1213[A], 2009 NY Slip Op 52047[U] [Crim Ct, Queens County 2009]; People v Branch, 19 Misc 3d 255, 257 [Crim Ct, Queens County 2007]).

Considering all reasonable inferences that may be drawn from the allegations of the information (see People v Jackson, 18 NY3d 738, 747 [2012]), which must be accorded a fair and not overly restrictive reading, and construed in the light most favorable to the People (see People v Vonancken, 27 Misc 3d 132[A], 2010 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2010]), the allegations provide defendant with "notice sufficient to prepare a defense" (People v Casey, 95 NY2d 354, 360 [2000]), and are sufficiently detailed "to prevent a subsequent retrial for the same offense" (People v Bishop, 41 Misc 3d 144[A], 2013 NY Slip Op 52063[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2013]; see People v Dreyden, 15 NY3d 100, 103 [2010]). The allegations constitute "facts of an evidentiary character" (CPL 100.15 [3]), that "establish, if true, every element of the offense[s] charged" (CPL 100.40 [1] [c]; see People v Dumas, 68 NY2d 729, 731 [1986]).

The allegations sufficiently support the charge of disorderly conduct. The factual part of the information states that defendant yelled, screamed, cursed, engaged in a verbal dispute with, and swung his arms at, a police officer in an effort to prevent the officer from arresting the third party, which caused a crowd to form and observe his actions, thereby creating public alarm and annoyance. These allegations, if true, establish that defendant engaged in violent, tumultuous or threatening behavior (see Penal Law § 240.20 [1]; People v Morales, 38 Misc 3d 464, 467 [Crim Ct, Richmond County 2012]; People v Diaz, 22 Misc 3d 624, 625 [Crim Ct, NY County 2008]). The allegations also established the "public dimension" element of disorderly conduct, in that the information indicated that defendant had intentionally created "public inconvenience, annoyance or alarm," or recklessly created "a risk of such public disruption" (People v Weaver, 16 NY3d 123, 128 [2011]). Whether the arrest was authorized is not an element of the offense of disorderly conduct.

The allegations also sufficiently support the charges of resisting arrest and obstructing governmental administration in the second degree, in connection with defendant's own arrest (see Penal Law §§ 195.05, 205.30; People v Smith, 42 Misc 3d 145[A], 2014 NY Slip Op 50306[U] [App Term, 1st Dept 2014]; People v Gilpin, 36 Misc 3d 160[A], 2012 NY Slip Op 51822[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; People v Warmbrand, 4 Misc 3d 132[A], 2004 NY Slip Op 50728[U] [App Term, 9th & 10th Jud Dists 2004]; People v Mims, 42 Misc 3d 1213[A], 2014 NY Slip Op 50030[U] [Crim Ct, NY County 2014]).

To the extent that defendant contends that this court lacks the power to reverse the order on grounds not ruled on by the Criminal Court (see CPL 470.15 [1]; People v LaFontaine, 92 NY2d 470, 474 [1998]; People v Goodfriend, 64 NY2d 695, 697-698 [1984]), his claim is without merit. The issue in this case—whether the information is facially sufficient—is jurisdictional, and thus involves a "mode of proceedings" error (People v Kelly, 5 NY3d 116, 119 [2005]; see People v Hanley, 20 NY3d 601, 604-605 n 2 [2013]; People v Fernandez, 20 NY3d 44, 58 [2012] [Pigott, J., dissenting]; People v Jackson, 18 NY3d at 741-742; People v [*3]Concepcion, 17 NY3d 192, 199 [2011]; People v Dreyden, 15 NY3d at 103; cf. People v Keizer, 100 NY2d 114, 121 [2003]; People v Casey, 95 NY2d at 367). Consequently, this court may reverse the order notwithstanding that the Criminal Court did not rule on the grounds asserted by the People on appeal.

Accordingly, the order is reversed and defendant's motion to dismiss the information is denied.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: July 24, 2014