People v Toure

[*1] People v Toure 2005 NY Slip Op 51961(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 This opinion is uncorrected and will not be published in the printed Official Reports.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

DJIBRIL M. TOURE, Defendant.



2005KN008253



Defendant Toure is represented by Robert J. Boyle, Esq.

John H. Wilson, J.

Defendant is charged with Assault in the Third Degree (PL Sec. 120.00) Obstructing Governmental Administration (PL Sec. 195.05), and Resisting Arrest (PL Sec. 205.30), all Class A misdemeanors, Menacing in the Third Degree (PL Sec. 120.15), a Class B misdemeanor, and Disorderly Conduct (PL Sec. 240.20), and Harassment in the Second Degree (PL Sec. 240.26), both violations.

By motion dated May 6, 2005, Defendant has 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, Defendant's 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," co-defendant's Lumumba A. Akinwole-Bandel and David C. Floyd allegedly attempted to prevent Officer Stevens from conducting his investigation "by refusing to comply with (the officer's) repeated [*2]instructions to move."[FN1]

The Criminal Court Complaint further alleges that as the Officer attempted to place co-defendant's Akinwole-Bandel and Floyd under arrest, Defendant jumped on the officer's back, causing the officer to fall, and did punch the officer in the back. No allegations of injury to the officer are stated in the Criminal Court Complaint.

Defendant is further stated to have resisted arrest by flailing his arms, kicking and struggling with the officer.

Defendant was 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 Assault, Menacing and Disorderly [*3]Conduct charges that have been brought against this Defendant. Thus, those charges are dismissed. The Obstructing, Harassment and Resisting Arrest charges are all facially sufficient, and the motion to dismiss these three charges is denied.

(A) Assault in the Third Degree

Under PL Sec. 120.00(1), an individual is guilty of Assault in the Third Degree when "with intent to cause physical injury to another person, he causes physical injury to such person or to a third person."

Defendant herein is accused of having jumped on the back of a Police Officer, causing the Officer to fall to the ground. The Defendant is also alleged to have punched the Officer in the back. While these allegations appear in the Criminal Court Complaint, said complaint is utterly devoid of any assertion that the actions of the Defendant described above caused any physical injury or pain to the officer, substantial or otherwise.

Generally, the question of whether physical injury or 'substantial pain' has been established sufficient for Assault in the Third Degree to be proven is a question for the trier of fact. However, the Court of Appeals has ruled that "there is an objective level...below which the question is one of law, and the charge should be dismissed." See, Matter of Philip A., 49 NY2d 198, 200, 424 NYS2d 48 (1980), citing People v. McDowell, 28 NY2d 373, 321 NYS2d 894 (1971) (incidental reference to blackened eye without any development or suggestion of pain is insufficient). See, also, Matter of Shane T., 115 Misc 2d 161, 453 NYS2d 590 (Fam. Ct., NY Cty, 1982) (Such things as petty slaps, shoves, kicks and the like are not within contemplation of assault as defined in Art. 120).

Although "the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial," absent any allegation whatsoever of physical injury or pain, substantial or otherwise, the assertions contained herein cannot be considered sufficient "to support a facially valid local criminal court information." See, People v. Henderson, 92 NY2d 677, 680, 685 NYS2d 409 (1999).

Thus, under these standards, the allegations contained in the instant complaint are insufficient to support the charge of Assault in the Third Degree. This charge is therefore dismissed.[FN2]

(B) Menacing in the Third Degree [*4]

As with the Assault charge, this accusation appears to be premised on the Defendant having jumped on the Officer's back, knocking the Officer to the ground, and having punched the Officer in the back.

Under PL Sec. 120.15, a person is guilty of Menacing in the Third Degree when "by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury."

While the actions ascribed to the Defendant herein would constitute "physical menace," these assertions fail to show that the Defendant either placed or attempted to place the officer in fear of death, imminent serious physical injury or physical injury. See, People v. Iovine, 193 Misc 2d 668, 671, 752 NYS2d 191 (App. Term, 2d Dept., 2002), lve app den, 99 NY2d 582, 755 NYS2d 718 (2003) (Defendant's actions, as described in the Criminal Court Complaint, exhibit an intent to injure the officer, not cause a fear of death, imminent serious physical injury, or physical injury.)

In fact, the Officer's later actions in making the arrest of the Defendant indicate that the officer was not in fear of either death, imminent serious physical injury or physical injury. See, People v. Peterkin, 245 AD2d 1050, 667 NYS2d 559, (4th Dept., 1997), app den, 91 NY2d 1011, 676 NYS2d 139 (1998) (Grabbing defendant and wrestling him to ground after defendant threatened to stab complainant with a pen indicated complainant was not in fear of death or injury);

Therefore, since the allegations contained in the instant complaint are insufficient to support the charge of Menacing in the Third Degree, this charge is dismissed.

( 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 states that co-defendant's Akinwole-Bandel and Floyd 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. The Complaint goes on to state that as the Officer was placing co-defendant's Akinwole-Bandel and Floyd under arrest, Defendant did then jump on the officer's back.

For a defendant to be guilty of disorderly conduct under subsection 6 of CPL Sec. 240.20, it must first be established that said defendant was a part of the group asked to disperse. See, People v. Sharky, 57 Misc 2d 558, 293 NYS2d 262 (Dist. Ct., Nassau Cty, 1968).

There is nothing in the Criminal Court Complaint to indicate that Defendant was part of [*5]the group that the officer had asked to move. Even if Defendant could be construed to be part of said group, the Complaint does not indicate that Defendant was one of the individuals asked to move.

Thus, since the allegations contained in the instant complaint are insufficient to support the charge of Disorderly Conduct, this charge is dismissed.

(D) 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 Defendant is alleged to have jumped on Officer Steven's back, causing the officer to fall to the ground, and of having punched the officer in the back as the officer attempted to place co-defendants Akinwole-Bandel and Floyd under arrest.

It is clear that the charge of Obstructing Governmental Administration was codified for the express purpose of addressing an instance such as is presented here, wherein an individual physically interferes in the arrest of another. See, Matter of Samuel V, 217 AD2d 863 (3d Dept., 1995); People v. Cacsere, 185 Misc 2d 92, 712 NYS2d 298 (App. Term, 2d Dept., 2000). In fact, "the legislative history clearly shows that Obstruction of Governmental Administration involves violence or physical interference." See, People v. Verastegul, NYLJ, 8/22/05, p.20, col. 1-2.

Thus, the charge of Obstructing Governmental Administration in the Second Degree is facially sufficient.

(E) Harassment in the Second Degree

CPL Sec. 240.26(1) reads as follows; "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..."

As noted above, the Defendant stands accused of having jumped on the officer's back, causing the officer to fall to the ground, and of having punched the officer in the back, all while the officer was in the process of arresting co-defendants Akinwole-Bandel and Floyd.

Established precedent is clear in delineating the difference between Assault and Harassment. "Although not rising to the level of an assault causing physical injury, petty forms of offensive touching, such as striking, shoving, and kicking are prohibited by statute establishing offense of harassment in the second degree 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). [*6]

The allegations described above tend to exhibit an intention on the part of the Defendant to annoy and harass Officer Stevens while he was attempting to effectuate the arrest of co-defendants Akinwole-Bandel and Floyd. Therefore, the charge of Harassment in the Second Degree is clearly facially sufficient.

(F) Resisting Arrest

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."

Defendant is alleged to have flailed his arms and kicked and struggled with Officer Stevens as the officer attempted to place the Defendant under arrest.

Further, as noted above, as the officer attempted to place co-defendants Akinwole-Bandel and Floyd under arrest, the Defendant is alleged to have jumped on Officer Steven's back, causing the officer to fall to the ground, and of having punched the officer in the back.

"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 Defendant's arrest is clear; as the officer was effectuating the arrest of co-defendants Akinwole-Bandel and Floyd, the Defendant did interfere in that arrest by jumping on the officer's back, causing the officer to fall to the ground, and punching the officer in the back. See, also, Cacsere, supra.

Further, the actions of the Defendant, as he was being placed under arrest, that is, the flailing of his 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 6, 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 [*7] Footnotes

Footnote 1: Mr. Akinwole-Bandel is charged under Docket # 2005KN008254 with the same offenses as is Mr. Toure, except for Assault in the Third Degree, and Menacing in the Third Degree. Under Docket # 2005KN008255, Mr. Floyd is charged with the same offenses as Mr. Akinwole-Bandel. A motion to dismiss for facial insufficiency has been filed on behalf of these two defendants, and will be decided separately from this matter.

Footnote 2: In their Response, the People ask the Court to maintain a charge of Attempted Assault in the Third Degree (PL Sec. 110/120.00) were the Court to dismiss the Assault charge. However, since no such charge appears on the docket, this Court will not add that count. See, People v. Eboli, 34 NY2d 281, 289, 357 NYS2d 435 (1974) (It is within the discretion of the People to add or dismiss a charge.)