People v Alcantara
Annotate this CaseDecided on September 26, 2016
Criminal Court of the City of New York, Queens County
The People of the State of New York,
against
Gianpaul Alcantara, Defendant
2016QN021167
For the People:
Queens County District Attorney's Office
by ADA Luis Felix, Esq.
For the defendant Alcantara:
Queens Law Associates
by Brendan Rigby, Esq.
Althea E. Drysdale, J.
The defendant, Gianpaul Alcantara is charged with resisting arrest (Penal Law [PL] § 205.30), littering prohibited (New York City Health Code [HC] § 139.05), and disorderly conduct (PL § 240.20 [1]) based on Police Officer Andrew Scampoli's allegation that on May 7, 2016, between 1:20 am and 1:30am, in front of 18-13 Mott Avenue, in Queens County,
"he observed the defendant, Gianpaul Alcantara, spitting on the street and when he noticed the deponent [sic] the defendant pointed at him and started to scream multiple times stating in sum and substance, fuck you pussies you are bunch of faggots' [sic] which caused a crowd to gather. [And], when he and Officer Aquilino were attempting to place handcuffs on the defendant, the defendant flailed his arms, twisted his body and pushed [them] in an attempt to avoid being handcuffed and placed under arrest."The defendant, Gianpaul Alcantara, moves pursuant to Criminal Procedure Law (CPL) §§ 100.40, 170.30 (1) (a), and 170.35 (1) (a) for an order dismissing the accusatory instrument as facially insufficient. The People oppose, and cross-move to add one count of NYC Administrative Code § 16-118 [6], littering prohibited, as well as a demand for notice of alibi pursuant to CPL § 250.20.
Based on the parties' motion and my review of the record, the defendant's motion to dismiss as facially insufficient is granted, the People's cross-motion to add one count of NYC Administrative Code § 16-118 [6] is granted, as is their demand for notice of alibi.
In assessing the facial sufficiency of an information, the court must consider whether both [*2]the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, "establish every element of the offense charged and the defendant's commission thereof" (CPL § 100.15 [3]; CPL § 100.40 [1] [c]; and People v Barona, 19 Misc 3d 1122(A) [Crim Ct, New York County 2008]). The court's review is limited to the four corners of the instrument itself, including any annexed supporting deposition (People v Thomas, 4 NY3d 143, 146 [2005]; see also People v Bottari, 31 Misc 3d 90, 92 [App Term, 9th & 10th Jud Dists 2011]). People v Casey advises that "so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]). The facts alleged in the accusatory instrument need not rise to the level of establishing guilt beyond a reasonable doubt (People v Kalin, 12 NY3d 225, 230 [2009]). At the pleading stage, all that is necessary is that the non-hearsay factual allegations be evidentiary in character and tend to support the charges (People v Allen, 92 NY2d 378, 385 [1998])
Littering Prohibited
A person is in violation of littering prohibited (HC § 139.05) when he "litter[s] or otherwise create[s] a nuisance or insanitary condition in or on a public transportation facility." Further, "public transportation facility" is defined as "any vehicle, airplane, carrier, platform, station, terminal or other structure or premises used for or in connection with the transportation of the public" (HC § 139.01).
The defendant argues that the People have failed to allege that (1) the defendant spat in or on a public transportation facility and (2) the act of spitting is littering or a nuisance.
Here, the court may infer that the act of spitting onto a public street creates an insanitary [FN1] condition. But, the court finds that the accusatory instrument is facially insufficient as to this charge because the People have failed to allege that the location to which the defendant is alleged to have spat is a public transportation facility. A fair reading of the accusatory instrument, even if true, only establishes that the defendant spat on the floor in front of 18-13 Mott Avenue in Queens County.
As such, the count of littering prohibited is dismissed as facially insufficient.
Disorderly Conduct
A person is guilty of disorderly conduct when
"[he], with the intent to cause public inconvenience, annoyance or alarm, or recklessly creates a risk there of, [] engages in violent, tumultuous or threatening behavior" (PL § 240.20 [1])The defendant argues that the accusatory instrument is facially insufficient because it fails to allege the defendant's intent to cause public inconvenience, annoyance, alarm or recklessly creating the risk thereof.
An arrest for disorderly conduct can only stand if there is clear evidence that an actual public harm or a threat to public harm occurs (People v Johnson, 22 NY3d 1162 [2014]) but "there is no per se requirement that members of the public must be involved or react to the [*3]incident" (People v Weaver, 16 NY3d 123, 128 [2011]). " [A] person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem'" (People v Gonzalez, 25 NY3d 1100, 1101 [2015] quoting People v Baker, 20 NY3d 354, 359-360 [2013]).
Whether the public was inconvenienced by the defendant's act requires the court to consider (1) the time and place of the incident, (2) the nature and character of the conduct, (3) the number of bystanders in the vicinity, (4) whether those bystanders were drawn to the disturbance, (5) the nature and number of those attracted, and (6) any other relevant circumstances (Weaver, supra at 128).
Here, the People allege that the defendant pointed a finger at Officer Scampoli and expressed crude words. But, the words, while unsavory, were not fighting words and did not issue any threats to Officers Scampoli and Aquilino. This incident occurred at about 1:20 am, and it is alleged that a crowd gathered. These allegations do not sufficiently warrant an inference that there was imminent or threatened public harm and disorder. The court simply cannot infer that the people who were gathered were a threat to the police officers or were threatened by the defendant's conduct. For example, in People v Weaver, 16 NY3d 123 (2011), the court found that the defendant's statements and conduct evidenced an intent to create a risk of public harm given the late hour, the quiet nature of the surrounding community and the protracted, increasingly aggressive nature of defendant's vocalizations (360-61). And, in People v Tichenor, 89 NY2d 769 (1997), the defendant's conduct, shouting obscenities at a lone police officer, spitting at him, and then shoving him, created a risk of public disorder in light of the fact that other bar patrons gathered and started to yell at the police officer while he was trying to place the defendant under arrest.
As the Court of Appeals has held, "[i]solated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances will rarely afford a sufficient basis to infer the presence of the public harm' mens rea necessary to support a disorderly conduct charge" (People v Baker, 20 NY3d 354, 363 [2013]).
As such, the count of disorderly conduct must be dismissed as facially insufficient.
Resisting Arrest
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 []."
In order to be facially sufficient, the People must show that the police were authorized to make an arrest (see People v Jones, 9 NY3d 259, 263 [2007]). Since, the information fails to set forth a prima facie case of disorderly conduct (Penal Law § 240.20 [1]) and littering prohibited (Health Code § 139.05), the accusatory instrument is jurisdictionally defective and must be dismissed. As the information fails to allege sufficient facts to support the underlying charges, then those facts cannot be deemed sufficient to allege that the arrest was authorized as required by Penal Law § 205.30 (Jones, supra at 263).
As such, the count of resisting arrest must be dismissed as facially insufficient.
People's Request to Add One Count of NYC Administrative Code § 16-118 [6]
The People's cross-motion to add an additional count of NYC Administrative Code § 16-118 [6] is granted to the extent that they are directed to serve and file a superseding information [*4]or prosecutor's information pursuant to CPL §§ 100.50 and 170.65.
People's Demand for Notice of Alibi
The defendant is directed to comply with the Demand for Notice of Alibi to the extent required by Criminal Procedure Law § 250.20.
For these reasons, the defendant's motion to dismiss the accusatory instrument is granted, and the People's cross motion to add one count of NYC Administrative Code § 16-118 [6] and demand for notice of alibi is granted.
The foregoing constitutes the decision and order of the Court.
Dated: September 26, 2016
Queens, New York
Althea E. Drysdale, J.C.C. Footnotes
Footnote 1:Insanitary is defined as (1) dirty and likely to cause disease, or (2) unclean enough to endanger health (http://www.merriam-webster.com/dictionary/insanitary)
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