People v Jones

[*1] People v Jones 2009 NY Slip Op 52560(U) [25 Misc 3d 1243(A)] Decided on December 18, 2009 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2009
District Court of Nassau County, First District

The People of the State of New York,

against

Anthony Jones, Defendant.



2009NA006782



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Frank A. Doddato, P.C.

Andrew M. Engel, J.

The Defendant is charged, with Obstructing Governmental Administration in the Second Degree and Disorderly Conduct, pursuant to Penal Law §§ 195.05 and 240.20(1), respectively.

The Defendant now moves for an order permitting discovery and inspection, precluding the use of any evidence obtained as the result of allegedly unreasonable and illegal searches and seizures, suppressing any statements made by the Defendant to law enforcement authorities, suppressing the identification of the Defendant at trial, directing a hearing pursuant to People v. Sandoval, 34 NY2d 371, 357 NYS2d 849 (1974), dismissing the information charging Obstructing Governmental Administration in the Second Degree as facially insufficient, pursuant to CPL § 170.30, and granting the Defendant leave to make further motions. Although given two opportunities to do so, the People have failed to submit any opposition to the Defendant's motion.

FACIAL SUFFICIENCY

The information will be found facially sufficient if it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." CPL § 100.15(3) The factual part must contain non-hearsay allegations which, if true, establish every element of the offence charged, People v. Moore, 5 NY3d 725, 800 NYS2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005) "provid[ing] reasonable cause to believe that the defendant committed the offense[.]" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b)

Penal Law § 195.05 provides, in pertinent part: [*2]

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 pervert a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act ...

Clearly, to be facially sufficient, the information charging the Defendant with Obstructing Governmental Administration in the Second Degree must establish, through non-conclusory allegations, that the Defendant "act[ed] by one of three methods: (1) Intimidation,' (2) physical force or interference,' or (3) any independently unlawful act.'" Bishop v. Golden, 302 F. Supp. 502 (E.D.NY 1969); See also: People v. Case, 42 NY2d 98, 396 NYS2d 841 (1977); People v. Offen, 96 Misc 2d 147, 408 NYS2d 914 (Crim.Ct. NY Co.1978) "[D]efendant must be accused of committing a specific act in order to be charged with obstructing governmental administration." People v. Cameron, 3 Misc 3d 1105(A), 787 NYS2d 679 (Crim.Ct. Kings Co. 2004) If the act alleged is one of interference, then it must be one of physical interference, People v. Case, supra ., People v. Barrett, 179 Misc 2d 261, 684 NYS2d 818 (Crim.Ct. Bronx Co. 1998), which may include inappropriate or disruptive conduct at the scene of the performance of an official function, even though no physical force is involved. Matter of Davan L., 91 NY2d 88, 666 NY S.2d 1015 (1997); People v. Graham, 54 AD3d 1056, 865 NYS2d 259 (2nd Dept. 2008) Additionally, the charge will not properly be lodged for "interfering with an officer in the performance of an official function unless it is established that the police were engaged in authorized conduct (citations omitted)." People v. Lupinacci, 191 AD2d 589, 595 NYS2d 76 (2nd Dept.1993); See also: People v. Greene, 221 AD2d 559, 634 NYS2d 144 (2nd Dept.1995) More particularly, where a defendant is alleged to have obstructed the police from effectuating an arrest, the information must "allege facts which, if true, would establish that the underlying arrest, ..., was authorized by law." Matter of Verna C., 143 AD2d 94, 531 NYS2d 344 (2nd Dept. 1988); See also: Matter of Anthony B., 201 AD2d 725, 608 NYS2d 302 (2nd Dept.1994); People v. Vogel, 116 AD2d 332, 457 NYS2d 666 ( App. Term 9th and 10th Jud. Dists. 1982)

The information herein, based upon the alleged personal observations of Police Officer Thomas R. Sullivan, states:

[On February 23, 2009, at about 4:27 p.m., at Monaco Avenue and Keegan Street, Elmont, New York] your deponent while responding to a 911 call to investigate a disturbance did observe the defendant, Anthony E Jones, at the above location yelling and cursing loudly causing public alarm and annoyance. Your deponent observed several residents on the block look out of their windows to look at the defendants (sic) behavior. One resident Jeffrey Guarini even walked out of his house to see what was causing the disturbance. Your deponent also observed the defendant ignore numerous lawful orders to leave the area. The defendant's conduct directly interfered with the investigation your deponent was conducting in regards to a traffic stop. Your deponent observed P.O. Diaz approach the subject Anthony Jones and tell him You are under arrest', (sic) when P.O. Diaz grabbed his arm to effect the arrest Anthony Jones pulled his arm away and fled on foot. P.O. Martucci gave chase but was unable to catch Anthony Jones after pursuing him for several blocks.In moving to dismiss Count One, the Defendant argues that "the herein information fails to allege much less detail how the Defendant's behavior of allegedly yelling and cursing loudly' interfered with the police investigation." [bold in original] (Doddato Affirmation 10/27/09, ¶ 26) While the Defendant correctly cites People v. Case, supra . for the proposition that "[w]ords [*3]alone do not suffice" (Doddato Affirmation 10/27/09, ¶ 27) to establish the charge of Obstructing Governmental Administration in the Second Degree, that is not the only conduct alleged in the information. Nevertheless, as will be discussed at length hereinafter, the information actually contains a hodgepodge of factual allegations rendering it impossible to determine what conduct the Defendant is alleged to have committed and with which governmental or official function such conduct allegedly interfered.

As can be seen, Officer Sullivan avers that he came to the scene in question to investigate "a disturbance." There are no allegations as to the nature of the disturbance or that the Defendant was in any way involved. In fact, Officer Sullivan does not provide any information at to what the Defendant was doing before his arrival.

Officer Sullivan does allege that upon his arrival at the scene, at 4:27 in the afternoon, he observed the Defendant "yelling a cursing loudly." There are, however, no allegations indicating where the Defendant was observed, what he was saying, to who, if anyone, he was directing his remarks or any of the other circumstances surrounding the Defendant's alleged conduct, other than the officer's conclusory statement that the Defendant was "causing public alarm and annoyance."

There are no allegations that the Defendant's alleged yelling was "of a type or volume that a reasonable person, under the circumstances, would not tolerate (citations omitted)." People v. Bakolas, 59 NY2d 51, 462 NYS2d 844 (1983) Officer Sullivan simply concludes that the Defendant's alleged yelling caused public alarm and annoyance, apparently based upon his observation of some people looking out of their windows and one individual exiting his home. Officer Sullivan's representation that the people "look[ed] out of their windows to look at the defendants (sic) behavior[,]"and that the individual "walked out of his house to see what was causing the disturbance[,]" is entirely conclusory and unsupported by any non-hearsay evidentiary details. Officer Sullivan did not see these other individuals before he arrived on the scene and does not know at what these people were looking. In fact, the information fails to demonstrate that there was anyone present or paying any attention to the Defendant until the police arrived. While, as indicated, there are allegations that people in nearby homes took notice after the police arrived, "the mere investigation of the occurrence of a possible offense which causes a public disturbance in and of itself should not be imputed to the conduct of the accused (citation omitted)." People v. Blair, 185 Misc 2d 398, 713 NYS2d 657 (Co.Ct. Montgomery Co. 2000) lv. den. 95 NY2d 904, 716 NYS2d 644 (2000)

Similarly absent from the information are any allegations from which the Defendant's intent or recklessness can be discerned. See: People v. Tarka, 75 NY2d 996, 557 N.Y.S2d 266 (1990); People v. Jones, 9 NY3d 259, 848 NYS2d 600 (2007) Nor are there any allegations that the Defendant's alleged act of yelling and cursing was intended to, or in any way did, obstruct, impair, pervert, prevent or attempt to prevent the police from performing an official function. Moreover, it does not appear from the information that it was this conduct of the Defendant's which lead to his arrest, as Officer Sullivan alleges that upon his arrival he observed the Defendant being told to leave the area.

In fact, the information next alleges that it was the Defendant's failure to leave the area which "directly interfered with the investigation [Officer Sullivan] was conducting in regards to a traffic stop." This too, however, is nothing more than a conclusory statement. The information is completely devoid of any fact demonstrating how the Defendant's remaining in the area interfered [*4]with the officer's investigation. The information does not suggest that the Defendant inserted himself into the immediate area of the alleged traffic investigation, was involved in any way in this alleged traffic stop, approached the officer, harangued the officer, continued to yell and curse, or in any way became involved with the officer; he merely did not leave the area. This, without more, cannot possibly constitute intimidation, physical force or interference; nor can ignoring the officer's direction, in an of itself, constitute "an independently unlawful act." See: People v. Wharton, 11 Misc 3d 1085(A), 819 NYS2d 850 (Dist.Ct. Nassau Co. 2006); People v. Offen, supra .

Finally, and seemingly disconnected from the allegations which preceded, Officer Sullivan alleges that he observed an Office Diaz tell the Defendant that he was under arrest and grab the Defendant's arm, at which point the Defendant pulled his arm away and fled. Nowhere is there an indication in the information, which must rise or fall on the allegations from within its own four corners, See: People v. Jones, 9 NY3d 259, 848 NYS2d 600 (2007); People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Allen, 92 NY2d 378, 681 NYS2d 216 (1998), why Officer Diaz was placing the Defendant under arrest. As discussed above, Office Sullivan's allegations make clear that it was not for allegedly yelling and cursing, since after observing this conduct the Defendant was not arrested, but was told to leave the area; nor is there an allegation that the Defendant engaged in any other conduct which could reasonably be interpreted as being unlawful. "The acts attributed to the defendant without more, fail to establish that he obstructed or interfered with an officer's performance of an official function since it is not sufficiently established that he was violating the law." People v. Briggs, 24 Misc 3d 1217(A), 2009 WL 2022712 (Crim Ct. NY Co. 2009)

Based upon all of the foregoing, even while viewing the allegations in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111(A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco, 16 Misc 3d 526, 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson, 15 Misc 3d 925, 834 NYS2d 445 (Dist.Ct. Nassau Co. 2007), this information simply does not establish every necessary element of the crime of Obstructing Governmental Administration in the Second Degree. Moreover, given the vague, conclusory and seemingly alternative theories of the alleged acts of obstruction and the alleged governmental or official function being obstructed, it can hardly be said that this information serves the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959)

Accordingly, that branch of the Defendant's motion seeking an order dismissing the charge of Obstructing Governmental Administration in the Second Degree is granted; and, it is hereby

ORDERED, that Count One is dismissed.

DISCOVERY AND INSPECTION

CPL § 240.80 provides that a demand to produce must be served within thirty (30) days of arraignment, or within thirty (30) days of the appearance of counsel. The Defendant's demand herein was not served until the Defendant served the instant motion, on or about November 19, 2009, 2009. Clearly the Defendant's discovery demand is untimely. Additionally, the Defendant's incorporation of his discovery demand into his prayer for relief in the instant motion is contrary to the procedure contemplated by the Criminal Procedure Law and inappropriate. Accordingly, this [*5]branch of the Defendant's motion is denied.

PRECLUDING THE USE OF TANGIBLE EVIDENCE, SUPPRESSING DEFENDANT'S STATEMENTS AND SUPPRESSING THE DEFENDANT'S IDENTIFICATION

Although having moved for such relief, the Defendant's motion papers indicate that these prayers for relief are now moot. Accordingly, these branches of the Defendant's motion are denied.

SANDOVAL

That branch of the Defendant's motion which seeks the disclosure of the Defendant's past criminal history and/or prior bad or immoral acts which the People intend to use at trial should the Defendant chose to testify and a pre-trial Sandoval hearing is granted to the extent of ordering that such hearing shall be held immediately before the commencement of trial.

FUTURE MOTIONS

That branch of the Defendant's motion which seeks leave to serve and file additional motions, based upon a blanket request, unsupported by the proper papers and grounds, is denied as unauthorized. See: CPL § 255.20(3) Any future motions will be determined on an individual basis, based upon the timeliness and merits thereof.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

December 18, 2009

__________________________

ANDREW M. ENGEL

J.D.C.