People v Williams

[*1] People v Williams 2007 NY Slip Op 51362(U) [16 Misc 3d 1109(A)] Decided on July 12, 2007 Criminal Court Of The City Of New York, Bronx County Gesmer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 17, 2008; it will not be published in the printed Official Reports.

Decided on July 12, 2007
Criminal Court of the City of New York, Bronx County

People of the State of New York

against

Janet Williams aka Jenny Williams, Defendant.



2007BX036388



Appearances:

Robert T. Johnson, District Attorney, Bronx County (Katherin Slimak of counsel), for the People.

The Bronx Defenders (Alice Fontier of counsel) for defendant.

Ellen Frances Gesmer, J.

Defendant Jenny Williams, a small, thirty-five year old woman with no criminal record, was charged with one count of Obstruction of Governmental Administration in the Second Degree (PL § 195.05), one count of Disorderly Conduct (PL § 240.20[1]), and one count of Resisting Arrest (PL § 205.30). At arraignment, defense counsel moved to dismiss the information for facial insufficiency, arguing that Ms. Williams was being prosecuted only for attempting to prevent a police officer without a warrant from entering her home. The People orally opposed defendant's motion, but ultimately conceded that the information failed to allege that defendant had committed any crime. Accordingly, I dismissed the information. I write now to explain my reasons for having done so.

In order to be facially sufficient, the factual portion of a misdemeanor information must allege facts of an evidentiary character supporting or tending to support the charges (CPL 100.15[3]; 100.40[1][b], [c]; People v Casey, 95 NY2d 354, 360 [2000]; People v Dumas, 68 NY2d 729, 731 [1986]). In addition, the allegations of the factual part, together with any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged (CPL 100.40([1][b]). Finally, non-hearsay allegations must establish, if true, a prima facie case; that is, they must show every element of the offense charged and the defendant's commission of it (CPL 100.40 [1][c]; People v Alejandro, 70 NY2d 133, 139 [1987]; People v Hall, 48 NY2d 927 [1979]; People v Case, 42 NY2d 98 [1977]).

In this case, the first person accusatory instrument provides, in pertinent part, as follows: "PO Christop Beckett ... states that on or about June 9, 2007 at approximately 1:40 AM at inside of 926 Southern Boulevard . . .[*2]". . . deponent was conducting an investigation of a gang assault. Deponent further states that defendant would not permit deponent to enter above location to effectuate an arrest by placing her elbows in the door frame of above location and stating in sum and substance IF YOU DON'T HAVE A WARRANT, YOU CAN'T COME IN."Deponent further states that upon attempting to arrest defendant for the aforementioned conduct, defendant flailed her arms and twisted her body refusing to be handcuffed."

Obstructing Governmental Administration

Penal Law § 195.05 provides that a person is guilty of obstructing governmental administration in the second degree when that person "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 . . ." Obstructing governmental administration in the second degree is a class A misdemeanor.

The charge of obstructing governmental administration requires interference with an officer engaged in an authorized official function (People v O'Connor, 257 NY 473 [1931]; People v Richter, 265 AD 767, 773 [1st Dept 1943]; People v Vogel, 116 Misc 2d 332, 333 [App Term, 9th & 10th Jud Dists 1982]). The charge in this case is premised on defendant's alleged interference with the attempt by Officer Beckett to enter a building to effectuate an arrest. Generally, a police officer is entitled to enter a person's home to effectuate an arrest only when in possession of a warrant authorizing the officer to enter (Payton v New York, 445 US 573, 576 [1980]; People v Gonzalez, 39 NY2d 122 [1976]; People v Richardson, 229 AD2d 316, [1st Dept 1996] app dism,89 NY2d 933 [1997]; US Const Amdts IV, XIV). As the Supreme Court explained in Payton, "searches and seizures inside a home without a warrant are presumptively unreasonable" (445 US at 508).

In this case, the complaint does not allege, and there is no basis for inferring, that the officer possessed a warrant. Indeed, Officer Beckett's allegation that defendant stated, "if you don't have a warrant, you can't come in," supports an inference that the officer did not have one. Since this case involved the unusual posture of a motion to dismiss at the arraignments stage, I asked the Assistant District Attorney if she had any additional information. She said that she did not, but she suggested that the officer might have had a warrant. That statement certainly did not establish that Officer Beckett had a right to enter the building.

There are, of course, exceptions to the warrant requirements, but the "police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests" (Welsh v Wisconsin, 466 US 740, 749-750 [1984]). In the absence of a warrant or consent (Georgia v Randolph, 547 US 103 [2006]), the police may enter a home where they have probable cause to effectuate a felony arrest and there are exigent circumstances (Kirk v [*3]Lousiana, 536 US 635, 638 [2002]; Payton v New York, 445 US at 583-590; Loria v Gorman, 306 F3d 1271, 1283 [2d Cir 2002]). "The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an urgent need' to render aid or take action" (United States v MacDonald, 916 F2d 766, 769 [2d Cir 1990]). Consistent with that, the Courts have found exigent circumstances, for example, where the police are in hot pursuit of a fleeing felon (United States v Santana, 427 US 38, 42-43 [1976]; Warden v Hayden, 387 US 294, 298-299 [1967]), or where they are seeking to prevent the destruction of evidence (Schmerber v California, 384 US 757, 770-771 [1966]), to put out an ongoing fire (Michigan v Tyler, 436 US 499, 509 [1978]) or to assist a person who is seriously injured or threatened with serious injury (Brigham City v Stuart, 126 S Ct 1943, 1947 [ 2006]) .

In this case, the information does not allege any facts supporting the presence of exigent circumstances. The only facts alleged are that Officer Beckett was conducting an investigation of a gang assault, and that he was seeking to enter the building to make an arrest. There is no allegation that Officer Becket was in hot pursuit of the person he wanted to arrest or that anyone was in danger. The mere allegation that a gang activity was being investigated does not provide a basis for abridging citizens' constitutional rights (cf. City of Chicago v Morales, 527 US 41 [1999] [striking down Gang Congregation Ordinance as unconstitutional]). Consequently, the information fails to allege any facts sufficient to justify permitting the police to bypass the constitutionally mandated procedure of obtaining a warrant.

Absent an allegation that Officer Beckett had a warrant or some other constitutionally recognized justification for entering the building, there is no basis for inferring that Officer Beckett was justified in entering the building. Absent a constitutionally permissible basis for entering the building, the Court cannot find that Officer Beckett was engaged in an authorized official function. Without facts tending to show that Officer Beckett was engaged in an authorized official function, defendant may not be prosecuted for obstruction of governmental administration.[FN1] Indeed, the Assistant District Attorney conceded at arraignments that the information did not provide a basis for concluding that defendant had committed any crime when she refused to let the officer enter the building. Therefore, this count of the information had to be dismissed.

Indeed, rather than criminal, defendant's act in barring the door could be viewed as protective of an important constitutional right. "The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or [*4]government enforcement agent" (Johnson v United States, 333 US 10, 14 [1948]). This important principle is protected by the dismissal of the prosecution of Ms. Williams.

Disorderly Conduct

Under PL §240.20[1], "a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: [1] He engages in fighting or in violent, tumultuous or threatening behavior."

I find that the information is deficient in several respects in stating that defendant committed disorderly conduct.

First, there is no allegation that the defendant engaged in "fighting or in violent, tumultuous or threatening behavior." Rather, the information states only that she barred the officer from entering by blocking the door frame and made a correct statement of her constitutional rights. Far from being violent, her behavior, as alleged, appears to have been civil and restrained.

Second, speech and conduct may only constitute disorderly conduct when accompanied by the culpable mental state of "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" (PL § 240.20). The statute applies where the offending conduct is "reinforced by a culpable mental state to create a public disturbance" (People v Tichenor, 89 NY2d 769, 775 [1997]; see also People v Munafo, 50 NY2d 327, 331 [1980]; People v Pritchard, 27 NY2d 246 [1970]). In the absence of an allegation of intent or recklessness, the information must be dismissed (People v Tarka, 75 NY2d 996, 997 [1990]). The intent requirement must be met so that "no inadvertently disturbing act may be punished" (People v Bakolas, 59 NY2d 51, 54 [1983]; see also Tichenor, 89 NY2d at 776). In order to accomplish this, the information must allege facts, either about the defendant's conduct or about the surrounding circumstances, to support an inference that defendant possessed the requisite intent (see People v Leiner, NYLJ, Oct. 15, 1997, at 34, col 5 [App Term, 2d & 11th Jud Dists], lv denied 91 NY2d 894 [1998]).

Here, the facts alleged do not provide a basis for inferring that defendant had the intent to cause, or to recklessly create a risk of, public inconvenience, annoyance, or alarm. The only reasonable inference which can be drawn from the facts alleged is that defendant intended to prevent Officer Beckett from entering the building without a warrant (cf. People v Benjamin, 185 Misc 2d 466, 468 [Crim Ct, New York County 2000 [finding information charging disorderly conduct facially insufficient where the defendant refused to comply with an order that was found [*5]not to be lawful]). There is not even an allegation that defendant used crude language, much less the "threatening" or "fighting words" necessary to bring her conduct within the statute (see People v Stephen, 153 Misc 2d 382 [Crim Ct, New York County 1992]; People v Walker, NYLJ, Nov. 14, 1996, at 31, col 2 [Crim Ct, Kings County]). Consequently, the complaint does not support an inference that defendant had the intent necessary to support a charge of disorderly conduct under either of the subdivisions alleged.

Finally, there is no indication that defendant created a risk that public disturbance would ensue. A defendant cannot be guilty of breach of the peace if he "annoyed no one, disturbed no one, interfered with no one" (People v Perry, 265 NY 362, 365 [1934]). In this case, there is noallegation that defendant was in a public place, and there are no allegations that anyone was present, other than defendant and the arresting officer. Therefore, there is no allegation that defendant annoyed, disturbed or interfered with any member of the public. For this reason alone, the information was deficient.

Resisting Arrest

Under PL § 205.30, "a person commits the crime of resisting arrest when such person intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person." Just as a charge of obstruction of governmental administration charge requires a valid governmental function, a key element of the "resisting arrest" statute is the requirement that there be an "authorized" arrest (see People v Alejandro, 70 NY2d 133, 135 [1987]; see also People v Stephen, 153 Misc 2d 282, 390-391 [Crim Ct, NY County 1992]). Since I find that the factual allegations in the complaint fail to establish that defendant committed the offenses of disorderly conduct and obstruction of governmental administration, I conclude that her arrest was not authorized. Accordingly, the charge of resisting arrest fails as well.

Accordingly, all counts of the information were properly dismissed.

Dated: July 12, 2007

_____________________

Ellen Gesmer, J.S.C

Footnotes

Footnote 1:Whether or not defendant would have had standing to challenge a search had Officer Beckett succeeded in entering the building is thus not at issue (see Minnesota v Carter, 525 US 83, 87 [1998]).