People v Mitchell

[*1] People v Mitchell 2007 NY Slip Op 51805(U) [17 Misc 3d 1103(A)] Decided on July 30, 2007 Criminal Court Of The City Of New York, Kings County Gerstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 30, 2007
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Lori Mitchell, Defendant.



2006KN071871



Charles J. Hynes, District Attorney (Robert Geary, Esq. of counsel), for the People.

Brooklyn Defender Services, (Renee J. Pinto, Esq., of counsel), for the Defendant.

Michael J. Gerstein, J.

The central question in this case is whether an accusatory instrument alleging that a Defendant swallowed a bag of crack cocaine while being approached by a plain-clothed officer who failed to identify herself is sufficient to establish intent to interfere with an official proceeding.

The Defendant, Lori Mitchell, is charged with Obstructing Governmental Administration (PL § 195.05); and Attempted Tampering with Physical Evidence (PL § 110/215.40(2)), both class A misdemeanors. Defendant moves to dismiss the Complaint for facial insufficiency pursuant to PL § 170.30(1)(a), 170.35(1)(a)-(b), 100.15, and 100.40.

The Complaint, dated October 15, 2006, alleges that the Defendant purchased what appeared to be one Ziploc bag of crack cocaine, on or about October 14, 2006. Police Officer McGrath allegedly witnessed the sale and approached the Defendant for questioning. As Officer McGrath was walking toward the Defendant, she allegedly observed the Defendant swallow the bag of crack cocaine. While not alleged in the Complaint, the police report and the Defendant's motion allege that Officer McGrath observed the sale from an unmarked vehicle. The motion and report also allege that the Officer was not in uniform. These contentions are undisputed by the People, who maintain that the Officer is a member of the Brooklyn North Narcotic Field Team and was on duty, working undercover in a known drug-prone location.

I. Legal Standard for Facial Sufficiency

In order to be sufficient on its face, an accusatory instrument must contain non-hearsay factual allegations that provide reasonable cause to believe that the defendant committed the offenses charged, and must establish, if true, every element of the offense charged. CPL § 100.40(4)(b); CPL § 100.40(1)(c); People v. Alejandro, 70 NY2d 133, 511 NE2d 71, 517 NYS2d 927 (1987); People v. Dumas, 68 NY2d 729, 497 NE2d 686, 506 NYS2d 319 (1986). [*2]

The Complaint, signed by Police Officer Theresa McGrath, states:

Deponent states that, at the above time and place, Deponent did observe this Defendant hand Defendant Clarence Williams, arrest no. K066843327, a sum of United States Currency in exchange for what appeared to be one Ziplock [sic] bag of crack cocaine.

Deponent further states that as Deponent approached this Defendant in order to question this Defendant, this Defendant did swallow the above mentioned Ziplock [sic] bag.

II. Attempted Tampering with Physical Evidence (PL § 110/215.40(2))

A facially sufficient accusatory instrument charging a defendant with Attempted Tampering with Physical Evidence must allege that the defendant, with intent to commit a crime, engaged in conduct that tended to effect the commission of that crime. (PL § 110.00).

PL § 215.40(2) provides, in relevant part, that a person is guilty of tampering with physical evidence when:

Believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.

PL § 215.35(2) defines an "official proceeding" as: "[A]ny action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence may properly be received."

The Defendant contends that the accusatory instrument fails to allege the existence of an "official proceeding" or "prospective official proceeding," or that the Defendant believed an official proceeding was imminent, and is therefore insufficient.

The Defendant cites People v. Traynham, 95 Misc 2d 145, 407 NYS2d 408 (Crim. Ct. NY Co. 1978). In Traynham, the defendant was charged under PL § 240.30 for allegedly swallowing a glassine envelope containing narcotics after being approached by three police officers. In holding the accusatory instrument facially insufficient, the Court determined that an official or prospective official proceeding did not include "inquiry, investigation or arrest by the police." Id. at 147.

The legal interpretation of "official proceeding" has changed considerably since Traynham. See People v. Simon, 145 Misc 2d 518, 523, 547 NYS2d 199, 203 (Crim. Ct. NY Co. 1989) (holding that the phrase "official proceeding" was not restricted to those proceedings which are actually pending at the "moment the evidence is allegedly tampered with, since the [statute] refers to both an existing or a prospective official proceeding").

The People argue that the Defendant's alleged swallowing of the Ziploc bag as Officer McGrath [*3]approached can be considered rational conduct only if the Defendant feared arrest and arraignment on potential drug charges, and therefore the Defendant had reason to believe that Officer McGrath was engaged in an official proceeding as a member of law enforcement. The People rely on People v. Palmer, 176 Misc 2d 813, 674 NYS2d 566 (Crim. Ct. NY Co. 1998) (motion to dismiss charge of attempted tampering with physical evidence denied where fleeing defendant swallowed bag of Marijuana after being ordered to stop by officer) and People v. Nicholas, 70 AD2d 804, 417 NYS2d 495 (1st Dept. 1979) (prospective official proceeding could be readily contemplated under the circumstances of the case when defendant moved the body of a person he had killed).

This Court agrees with the People that the accusatory instrument sufficiently alleges that Officer McGrath was engaged in an official proceeding when, having observed the Defendant purchase crack cocaine, she subsequently approached the Defendant. Nevertheless, the charge must be dismissed because the accusatory instrument fails to allege that the Defendant had knowledge of the official proceeding, sufficient to form the intent to suppress its evidence.

An essential element of PL § 215.40(2) is that the defendant believed the physical evidence was about to be produced or used in an official or prospective official proceeding and that the defendant intended to prevent such production or use. People v. Simon, supra .

The People maintain that the Defendant possessed an "unequivocal intent" to suppress evidence because she must have been aware that purchasing and/or possessing illegal narcotics could result in a prospective official criminal proceeding (People's Aff. Pg. 4). The People rely on People v. Vargas, 179 Misc 2d 236, 684 NYS2d 848 (Crim. Ct. NY Co. 1998), contending that the act of swallowing a bag of narcotics upon the approach of a police officer is an unequivocal manifestation of intent to destroy physical evidence.

The People's reliance on Vargas is misplaced. There, the Court dismissed a Complaint alleging that the defendant had dropped a Marijuana cigarette into a sewer after being approached by a Police Detective. The Court held that although disposing of the Marijuana in the sewer was a physical action under PL § 195.05, the Complaint therein was defective because it did not allege that the defendant knew the detective was engaged in an official function, or that he intended to obstruct this official function; he may have simply intended to dispose of his finished cigarette. The Vargas court distinguished that case from People v. Palmer, 176 Misc 2d 813, 674 NYS2d 566 (Crim. Ct. NY Co. 1998), in which the defendant allegedly chewed and swallowed a bag containing Marijuana, ignoring repeated commands from a police officer.

In the instant case, the accusatory instrument fails to allege that Officer McGrath ordered the Defendant to do anything. The Complaint fails to allege that the Defendant saw Officer McGrath approach, that Officer McGrath spoke or motioned towards the Defendant, that Officer McGrath announced herself or her official function to the Defendant, or that Officer McGrath displayed her shield upon approaching the Defendant. The Complaint is totally silent as to how or why the Defendant had reason to know that the person approaching her was a police officer or engaged in official business.

The cases relied upon by the People are similarly distinguishable on this point. See, e.g., People v. Mercedes, 194 Misc 2d 731, 756 NYS2d 735 (Crim. Ct. NY Co. 2003) (defendant's act of destroying a Marijuana cigar while being approached by a uniformed officer enough to establish that defendant believed arrest and criminal prosecution were imminent); People v. Palmer, supra [*4], at 817 (defendant could be aware that evidence would be produced at an official proceeding because police officer was in uniform and verbally ordered defendant to spit out bag of Marijuana).

The Complaint's failure to allege that the Defendant knew or should have known that Officer McGrath was a police officer invites this Court to assume or infer from her actions that the Defendant had knowledge of Officer McGrath's status - despite the fact that the Defendant was allegedly approached at night time (8:20 p.m. during the month of October), by a person wearing civilian clothes. Such an assumption or inference falls short of the legal standard, in that even if every factual allegation contained in the Complaint is proven to be true, it does not establish that the Defendant knew, or should have known, that the person approaching her was a police officer engaged in official business. People v. Alejandro, supra ; People v. Dumas, supra .This Court will not speculate as to what the Defendant here may or may not have comprehended as the undercover officer approached her, nor do we intend to set forth any rule governing future cases where a complaint may allege that a defendant knew or had reason to know that an approaching individual was a police officer. We merely note that mistrust is not an unreasonable response to the sudden approach of an unidentified individual, at night time, in a "drug prone location." (People's Aff. Pg. 6). See, e.g., People v. Howard, 50 NY2d 583, 430 NYS2d 578, 408 NE2d 908 (1980) (defendant's quickened pace, repeated glances and changing directions was at best ambiguous given that suspect was being trailed by undercover police in unmarked car); People v. Towers, 49 AD2d 839, 373 NYS2d 593 (1st Dept. 1975) (defendant's quickened pace after being trailed by two unidentified police officers in plainclothes did not amount to reasonable suspicion).

This ruling is further supported by public policy reasons. Recent studies and casualties of both undercover police and civilians highlight the inherent dangers and uncertainties of undercover police work, and the need for undercover officers to identify themselves prior to exercising their police powers.[FN1] An undercover officer's failure to identify himself or herself when approaching a suspect to effectuate an arrest puts at risk not only the suspect and innocent bystanders, but ultimately the officer as well.

The Defendant's motion to dismiss the count of PL § 110/215.40 is therefore granted.

III. Obstruction of Governmental Administration in the Second Degree.

The Defendant further contends that the accusatory instrument does not provide a factual basis to [*5]support the charge of Obstructing Governmental Administration in the Second Degree. PL § 195.05 provides, in relevant part:

A person is guilty of obstructing governmental administration 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

The accusatory instrument must allege that the Defendant's conduct prevented a public servant from performing an "official function" and that the official function was authorized. People v. Simon, supra at 521; People v. Vogel, 116 Misc 2d 332, 457 NYS2d 666 (App. Term 2d Dept. 1982) (defendant cannot be convicted of obstructing governmental administration for interfering with an official function unless the function was authorized). Moreover, a public servant must be engaged in a specific action at the time of the physical interference, and not just on duty. People v. Morisseau, 2006 WL 2785659, 2006 NY Slip Op. 51826 (U) (Crim. Ct. NY Co.) (PL § 195.05 requires that police be engaged in authorized conduct at time of arrest); People v. Joseph, 156 Misc 2d 192, 194, 592 NYS2d 238 (Crim. Ct. Kings Co. 1992) (an information is facially insufficient in absence of any factual allegations specifying an official function which was allegedly interfered with).

While the Defendant maintains that the instrument fails to establish the "official function" in which Officer McGrath was engaged or that any such function was authorized, this Court agrees with the People's assertion that an official function can be inferred from Officer McGrath's observation of the Defendant's alleged narcotics purchase. As the Court indicated in Jospeh, "the barest factual allegations of a police function would suffice to satisfy this element of the statute." People v. Joseph, supra , at 197.

Here, the accusatory instrument states that: "at the above time and place, Deponent did observe this Defendant hand Defendant Clarence Williams a sum of United States Currency in exchange for what appeared to be one Ziplock [sic] bag of crack cocaine." Similar to Mercedes, where an accusatory instrument was sustained for alleging the officer approached the defendant after observing the defendant holding a burning marijuana cigar in public view, the instrument here alleges that Officer McGrath approached the Defendant after observing an illegal drug sale. People v. Mercedes, 194 Misc 2d at 733, 756 NYS2d 735.

It is also necessary that the accusatory instrument establishes that the defendant's alleged actions in preventing a public servant from performing an official function involved either 1) intimidation, 2) physical force or interference, or 3) an independently unlawful act. People v. Simon, supra at 521; People v. Jimenez, 138 Misc 2d 867, 525 NYS2d 482 (Crim. Ct. Bronx Co. 1988) (accusatory instrument alleging that defendant jumped on the back of a police officer sufficient to establish physical interference). The Defendant asserts that the alleged act of swallowing a bag of crack cocaine does not constitute physical interference, as required by the statute. The People insist that the intentional swallowing of contraband to prevent its confiscation is a manifestly physical act, and therefore amounts to physical interference.

A review of the cases interpreting PL § 195.05 illustrates the fact that the Court has yet to establish a bright line definition for "physical interference." In People v. Vargas, physical interference was construed by the Court to "require neither the use by a defendant of direct [*6]physical force against the officer, nor even any direct physical contact between the two." People v. Vargas, supra , at 239; citing People v. Ravizee, 146 Misc 2d 679, 552 NYS2d 503 (Crim. Ct. NY Co. 1990) (defendant's swallowing of a single vial of crack cocaine to prevent or impede its recovery constituted "physical interference" with a public servant). In Vargas, the Court held the accusatory instrument insufficient, noting its failure to allege that the defendant ignored a direct police order. The Court deemed the allegations inconclusive as to whether the defendant acted with the requisite intent. People v. Vargas, supra .

The Defendant references People v. Simon, where the defendant 's act of throwing a crack pipe to the ground, causing it to break, was not enough to establish "physical interference " within the meaning of the statute because such action did not interfere with the official function of the arresting officer. People v. Simon, supra , at 522. Similarly, in People v. McDonald, 2002 WL 704463, 2002 NY Slip Op. 50134(U) (Crim. Ct. NY Co. 2002), the Court found that the element of physical interference could not be established on allegations that the defendant broke a crack pipe after tossing it and a bag of crack cocaine on the ground when approached by an identifying police officer. The Court determined that the actions of the defendant were more consistent with an attempt to abandon the property, not an intent to conceal the contraband or prevent its recovery. See also People v. Mercedes, supra , at 737.

While this Court agrees with the holdings in Ravizee and Vargas in that the physical interference need not consist of physical contact with the arresting officer, the accusatory instrument here fails to allege that the Defendant acted with intent to obstruct the officer. People v. Vargas, supra , at 240 (obstruction of governmental administration also requires an intent to prevent the officer from performing an official function). Although the People contend that the act of swallowing a bag of crack cocaine is evidence of the Defendant's belief that an official proceeding was imminent, this Court again focuses on the accusatory instrument's failure to allege that the Defendant was aware of the presence of Officer McGrath, or that the Defendant knew or had reason to know that Officer McGrath was a police officer.

Therefore, because the accusatory instrument fails to indicate that the Defendant's alleged act of swallowing a Ziploc bag containing crack cocaine was done in response to any action or order of Officer McGrath, the allegations are insufficient to establish intent, a crucial element of the crime.

Accordingly, the Defendant's motion to dismiss the count of PL § 195.05 is granted, and the Complaint is therefore dismissed in its entirety.

This constitutes the decision and order of this Court.

Dated:July 30, 2007

Brooklyn, New York______________________________

MICHAEL GERSTEIN, J.C.C.

Footnotes

Footnote 1:See, e.g.,Press Release, New York Police Department, Commissioner Kelly Announces Undercover Panel Recommendations: Mandatory Alcohol Testing in Shooting Fatalities or Injuries (May 18, 2007); Jack Ryan, Always Armed/ Always on Duty, Police Link (May 31, 2007), http://policelink.com/training/articles/1839-always-armedalways-on-duty- (noting that the NYPD has protocols that encourage on-duty officers to announce their status when approaching suspects); Briefing Paper of the Governmental Affairs Division, Hon. Larry B. Seabrook, Chair; Committee on Civil Rights; Hon. Peter F. Vallone Jr., Chair, Commmittee on Public Safety, Undercover and Specialized Operations Training in the New York City Police Department (January 24, 2007), available at http://webdocs.nyccouncil.info/attachments/75961.htm?CFID=172604&CFTOKEN=94888344 (last visited July 23, 2007).