People v Jimenez

[*1] People v Jimenez 2017 NY Slip Op 50742(U) Decided on June 2, 2017 Criminal Court Of The City Of New York, New York County Cesare, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2017
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Nathaniel Jimenez, Defendant.



2017NY002036



For the Defendant:The Legal Aid Society

(Jennvine Wong, Esq., of Counsel)

For the People:Cyrus R. Vance, Jr., District Attorney, New York County

(Roy Chon, Esq., of Counsel)
Heidi C. Cesare, J.

Defendant, Nathaniel Jimenez, charged in a three count information with obstructing governmental administration in the second degree (Penal Law § 195.05) (count one), resisting arrest (Penal Law § 205.30) (count two), and disorderly conduct (Penal Law § 240.20 [1]) (count three), moves by omnibus motion to dismiss all three counts on the ground of facial insufficiency (Criminal Procedure Law §§ 100.40, 170.30 and 170.35) and for other relief. For the reasons stated below, defendant's motion to dismiss counts one and two is denied, and [*2]defendant's motion to dismiss count three is granted.[FN1]

The Allegations

According to the accusatory instrument sworn out by Police Officer Fernando Rodriguez, on or about January 1, 2017, at about 4:08 a.m., near Audubon Avenue in the County and State of New York, the following occurred:

"[Officer Rodriguez] received a radio run for a stabbing that took place in a nightclub located at the above location. [Officer Rodriguez] attempted to secure the location and asked the crowd outside, which included the defendant to step back. The defendant refused to step back multiple times and the defendant stated in substance to [Officer Rodriguez]: I don't have to fucking move who do you think you fucking are. A group of people standing near the defendant engaged in a fight and [Officer Rodriguez] once again asked the defendant to move so that [Officer Rodriguez] could safely address the situation. The defendant stated in substance to [Officer Rodriguez]: I am not fucking moving.

After asking the defendant to move in excess of 20 times while in police uniform so that [Officer Rodriguez] could secure the area, [Officer Rodriguez] informed the defendant that he was under arrest for the above conduct. When [Officer Rodriguez] informed the defendant that he was under arrest he began swinging his arms, kicking his legs, and twisting his body. It required 15-20 police officers to surround the defendant in order to get handcuffs on the defendant."

Facial Sufficiency

A facially sufficient information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1988]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[s]o long as the factual [*3]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 pertinent allegations are as follows. On January 1, 2017, at about 4:08 a.m., on information concerning a reported stabbing, Officer Rodriguez responded to a nightclub. There he found a crowd of people, including defendant, standing outside the night club. In order to secure the location Officer Rodriguez asked the crowd to step back. Defendant refused, telling Officer Rodriguez, "I don't have to fucking move who do you think you fucking are [?]" Defendant took his stand while in close proximity to a fight involving other people. Concerned about safety, Officer Rodriguez asked the defendant, again, to move. Defendant, again, refused telling Officer Rodriguez, "I am not fucking moving." Officer Rodriguez asked defendant to move more than twenty times, but defendant persisted in his refusal to move. When Officer Rodriguez attempted to arrest defendant, defendant swung his arms, kicked his legs, and twisted his body making it difficult for officers to arrest him.

Obstructing Governmental Administration in the Second Degree

A person is guilty of obstructing governmental administration in the second degree "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 any means of any independently unlawful act" (Penal Law § 195.05). "Mere words alone" will not constitute interference. An alleged interference must be "in part at least, physical in nature." (People v Case, 42 NY2d 98, 102 [1977]). Criminal responsibility, however, will attach to "minimal interference set in motion to frustrate police activity" (Matter of Davan L., 91 NY2d 88, 91 [1977]).

Defendant contends that count one is facially insufficient because words alone will not satisfy the element of physical interference. The People counter that defendant's refusal to move away from an area of police activity was a physical interference designed to frustrate police activity.

Here, the allegations permit an inference that defendant was present in a specific area of police activity, that the defendant was put on specific, direct notice that he should leave the same area and that defendant deliberately remained in the same area. Defendant's behavior of intentionally remaining in the way of police [*4]activity in a specified area of police activity is sufficient to establish the required element of physical interference. On this basis the court finds that count one, obstructing governmental administration in the second degree (Penal Law § 195.05), is facially sufficient. Defendant's motion to dismiss count one is denied.

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 or another person" (Penal Law § 205.30). An essential element of resisting arrest is that the arrest was authorized by warrant or by probable cause (People v Alejandro, 70 NY2d 133, 135 [1987]). An information charging resisting arrest need not include a charge for the underlying offense so long as the accusatory instrument contains nonhearsay allegations establishing that the that the arresting officer had probable cause to believe that some offense was committed (see People v Thomas, 239 AD2d 246, 247 [1st Dept 1997], lv. denied 90 NY2d 911 [1997]). Having found above that count one, obstructing governmental administration in the second degree (Penal Law § 195.05), is facially sufficient the court finds that count two, resisting arrest (Penal Law § 205.30), is also well plead. Defendant's motion to dismiss count two is denied.

Disorderly Conduct

A person is guilty of disorderly conduct when "with intent to cause a public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [h]e engages in fighting or in violent, tumultuous or threatening behavior" (Penal Law § 240.20 [1]). Essential to a charge of disorderly conduct is a finding that "defendant's disruptive statements and behavior were of a public rather than an individual dimension" (People v Baker, 20 NY3d 354, 359 [2013]). "[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" (Id at 363).

Defendant contends that the charge of disorderly conduct is facially insufficient because the information fails to sufficiently allege the public harm element. The People have submitted no response to this argument.

The court agrees with the defendant that the present allegations are insufficient to establish the public harm element. While the allegations establish that defendant was part of a crowd gathered outside the nightclub, the court finds no basis to infer that any of the bystanders expressed any inclination, verbally or otherwise, to involve themselves in the [*5]dispute between defendant and Officer Rodriguez. Nor does the court find any basis to infer that defendant's statements, "I don't have to fucking move who do you think you fucking are" and "I am not fucking moving" would disrupt peace and order in the vicinity. Finally, both at its inception and conclusion, the verbal exchange was between defendant and Officer Rodriguez. The fact that defendant's statements were directed exclusively at Officer Rodriguez, a party trained to defuse situations involving angry or emotionally distraught persons, further undermines any inference that defendant's behavior risked public harm. (See Baker at 363). For the foregoing reasons the court finds that count three, disorderly conduct (Penal Law § 240.20 [1]), is facially insufficient and must be dismissed.

Conclusions

Defendant's motions to dismiss counts one and two are denied. Defendant's motion to dismiss count three is granted.

Remaining motions

Defendant's motion for a combined Huntley/Dunaway hearing is granted.

Defendant's motion to preclude unnoticed statement and identification evidence is granted pursuant to CPL 710.30.

With respect to defendant's motions for pretrial discovery and a bill of particulars, the People are directed to serve and file a voluntary disclosure form within two weeks of this order.

The People are reminded of their continuing obligations under Brady v Maryland (373 US 83 [1963]).

A Sandoval hearing is reserved to the trial court.

The right to make further motions is granted to the extent indicated in CPL 255.20 (3).

This constitutes the decision and order of the court.

June 2, 2017

New York, New York

Heidi C. Cesare, J.C.C. Footnotes

Footnote 1:In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.