People v Bowie
Annotate this CaseDecided on October 15, 2013
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Shadale Bowie, Defendant
2013BX035323
For the People, Robert T. Johnson, District Attorney, Bronx County, by Melissa Weiner, Esq., Assistant District Attorney.
For the Defendant, Steven Banks, Esq., Legal Aid Society, by Jeremy Robert Davidson, Esq.
John H. Wilson, J.
By a superceding information dated August 21, 2013, Defendant is charged with one count of Resisting Arrest (PL Sec. 205.30), a Class A misdemeanor.[FN1]
By omnibus motion dated July 15, 2013, Defendant seeks suppression of all statements made to law enforcement personnel, as well as evidence of any prior bad acts or immoral conduct. [*2]
By a supplemental motion dated July 23, 2013, Defendant also seeks dismissal of the sole charge on the docket, asserting that the People's complaint is facially insufficient.
The Court has reviewed the Court file, Defendant's motions, and the People's Response dated August 9, 2013.
For the reasons stated below, the motion to dismiss is denied.
The motion for a pre-trial hearing is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not statements were taken in violation of Defendant's rights under the United States and New York Constitutions.
Whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.
FACTUAL STATEMENT
Pursuant to the superceding information, on or about June 16, 2013 at approximately 2:06 AM, the Defendant was observed by Police Officer Michael Masci (deponent) at the intersection of Quimby Avenue and Olmstead Avenue, Bronx, New York to be "riding a bicycle down a public sidewalk around a group of people." See, superceding information dated August 21, 2013, p 1.
When the officer "asked defendant for identification in order to issue a summons for the above-mentioned conduct, defendant was unable to produce any form of identification." See, superceding information dated August 21, 2013, p 1.
The officer then attempted to arrest defendant for the actions described above. "(D)efendant flailed his arms, kicked his legs, and pushed his body back and forth, refusing to be handcuffed." See, superceding information dated August 21, 2013, p 2.
LEGAL ANALYSIS
Under CPL Sec. 100.15, 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 [*3]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 of 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 information 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 complaint before this Court are sufficient.
Under PL Sec. 205. 30, "a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer...from effecting an authorized arrest of himself."
Pursuant to the superceding information, Officer Masci observed the Defendant riding a bicycle on a public sidewalk. The Defendant did not have identification sufficient to allow the officer to issue Defendant a summons. As the officer attempted to take defendant into custody, "defendant flailed his arms, kicked his legs, and pushed his body back and forth, refusing to be handcuffed." See, superceding information dated August 21, 2013, p 2.
These allegations are sufficient to sustain the charge of Resisting Arrest. See, People v. Yarborough, 19 Misc 3d 520, 526, 852 NYS2d 751 (S Ct, Bronx Cty, 2008) (Information sufficient which alleged that defendant "flailed his hands and twisted his body" in effort to avoid being handcuffed.)
Defendant asserts that the Resisting Arrest charge must be dismissed "because the information fails to establish that the arrest was authorized." See, Defendant's Memorandum of Law attached to his supplemental motion dated July 23, 2013, p 7.
It is true that "an unauthorized arrest will bar a charge of Penal Law Sec. 205.30." See, People v. Mohamadou, 182 Misc 2d 77, 79, 698 NYS2d 445 (Crim Ct, NY Cty, 1999). However, "if the police officer had reasonable cause to believe that an offense was being committed at the time of the original confrontation then he has a right to arrest." 182 Misc 2d at 81. Thus, "a resisting arrest charge is valid even if the defendant was acquitted of the underlying offense provided the arrest is authorized." 182 Misc 2d at 81, citing People v. Williams, 25 NY2d 86, 302 NYS2d 780 (1969). See, also, People v. Martin, 222 AD2d 528, 635 NYS2d 246 (2d Dept, 1995); Matter of Christopher B., 122 Misc 2d 377, 471 NYS2d 228 (Fam. Ct, NY Cty, 1984).
In fact, a defendant can be convicted of Resisting Arrest even if he "was never charged with the particular offenses for which he was being arrested at the time he resisted arrest." See, [*4]People v. Thomas, 239 AD2d 246, 247, 657 NYS2d 184 (1st Dept, 1997), citing, Matter of James T., 189 AD2d 580, 592 NYS2d 36.
The superceding information states that the Defendant was riding a bicycle on a sidewalk. This would constitute a violation of AC Sec. 19-176(b), which states "No person shall ride a bicycle upon any sidewalk unless permitted by an official sign." The violation of this subsection is a civil penalty "of not more than one hundred dollars."
The superceding information indicates that the officer intended to issue a summons to the Defendant for this violation, however, Defendant did not have any identification. At that point, the officer attempted to take the Defendant into custody, presumably so he might ascertain Defendant's identity at the police precinct.
"(A) police officer's authority to effect a custodial arrest for a violation...remains valid even where the officer has the option of issuing a summons instead." See, People v. Rodriguez, 84 AD3d 500, 501, 922 NYS2d 384 (1st Dept, 2011), citing People v. Lewis, 50 AD3d 595, 857 NYS2d 88 (1st Dept, 2008), lv app den, 11 NY3d 790, 866 NYS2d 616 (2008). See, also, People v. Hagood, 93 AD3d 533, 534, 940 NYS2d 261 (1st Dept, 2012).
Therefore, since the detention of the Defendant was authorized, the Resisting Arrest charge is facially sufficient. Defendant's motion to dismiss is denied.
OTHER RELIEF REQUESTED
Defendant has moved for suppression of any statements he allegedly made to law enforcement personnel. This motion is granted to the extent of ordering a pre-trial hearing at which the issue of whether or not Defendant's statements are admissible, and whether or not there was probable cause for the Defendant's arrest will be considered.
Defendant seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendants will be conducted by the trial judge, prior to any trial of this matter.
All other arguments and requests for any additional hearings and relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit.
This shall constitute the opinion, decision, and order of the Court.
Dated: Bronx, New YorkOctober 15, [*5]2013
_______________________________Hon. John H. Wilson, JCC
Footnotes
Footnote 1: The initial Criminal Court complaint dated June 16, 2013 charged Defendant with one count of Obstructing Governmental Administration in the Second Degree (PL Sec. 195.05), a Class A misdemeanor, and one count of Disorderly Conduct (PL Sec. 240.20), a violation, however, these charges do not appear in the superceding information.
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