People v Durand

[*1] People v Durand 2020 NY Slip Op 51195(U) Decided on October 13, 2020 City Court Of Cohoes, Albany County Galarneau, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2020
City Court of Cohoes, Albany County

The People of the State of New York, Plaintiff,

against

Donna M. Durand, Defendant.



00681-20



HON. P. DAVID SOARES.

Albany County District Attorney

(Cheryl Fowler, Esq., of Counsel)

Attorney for the People

HON. STEPHEN W. HERRICK

Albany County Public Defender

(Jessica Gorman, Esq, of Counsel)

Attorney for the Defendant
Eric M. Galarneau, J.

The defendant stands charged with one count of Resisting Arrest in violation of Section 205.30 of the Penal Law of the State of New York, a Class A Misdemeanor; one count of Obstructing Governmental Administration in the Second Degree in violation in violation of section 195.05 of the Penal Law of the State of New York, a Class A Misdemeanor; one count of Disorderly Conduct in violation of section 240.20 of the Penal Law of the State of New York, a violation; and one count for a violation of the noise ordinance in violation of Section 189-2 of the City Code for the City of Cohoes. The charges relate to an incident alleged to have occurred on May 4, 2020 in the City of Cohoes. The defendant, by his attorney, Jessica Gorman, Esq., now brings a motion for omnibus relief seeking, among other things, dismissal of the first two [*2]counts of the accusatory instrument (Resisting Arrest and Obstructing Governmental Administration) as facially insufficient and jurisdictionally defective, and other relief. The People have responded by Affirmation in Opposition of Assistant Albany County District Attorney Cheryl K. Fowler dated September 3, 2020. The following constitutes the Decision and Order of the Court.

MOTION TO DISMISS

The defendant seeks dismissal of the counts charging Resisting Arrest and Obstructing Governmental Administration in the Second Degree on the grounds that the accusatory instrument as it relates to those counts is insufficient as a matter of law. There are also two additional counts in the Information —one for Disorderly Conduct (PL §240.20) and one for a violation of the City's noise ordinance—which are not the subject of the defendant's motion.

With respect to Resisting Arrest, there may be merit to the defendant's argument. As relevant here, CPL §100.40 requires that an Information contain non-hearsay allegations which establish every element of the offense charged and the defendant's commission of it (CPL §100.40[1]). For Resisting Arrest, that means that the accusatory instrument must include allegations related to an authorized arrest (see PL §205.30; People v. Alejandro, 70 NY2d 133 [1987]). There are no such allegations on the face of the count before the Court. To the contrary, the language of the factual part of the accusatory instrument of the Resisting Arrest count nearly replicates verbatim the language of the accusatory instrument invalidated by the Court of Appeals in People v. Alejandro, including the use of the same unelaborated stock phrases like the conclusory "authorized arrest" (People v. Alejandro, 70 NY2d 133 [1987]). Further, while the Court of Appeals has limited the scope of Alejandro (see People v. Casey, 95 NY2d 354 [2000]), it has consistently re-affirmed its central premise — that the failure to sufficiently allege every element of an offense constitutes a jurisdictional defect (See People v. Suber, 19 NY3d 247, 254 [2012]).

The Obstructing Governmental Administration charge has similar defects. Penal Law§195.05 provides that:

A person is guilty of obstructing governmental administration when he 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, or by means of interfering, whether or not physical force is involved [FN1]

As the statute makes clear, Obstructing Governmental Administration is not as strictly aligned with the element of an authorized arrest as the Resisting Arrest charge is; unlike [*3]Resisting Arrest, the gravamen of Obstructing Governmental Administration is the interference with an "official function", which may or may not be an arrest. However, if the "official function" is based on an arrest, then that arrest must be authorized (see People v. Lupinacci, 191 AD2d 589 [2nd Dep't 1993](defendant cannot be convicted of obstructing governmental administration unless it is established that the police were engaged in authorized conduct); People v. Edwards, 65 AD3d 829 [4th Dep't 2009], rev'd. on other grounds 14 NY3d 741 [2010]; People v. Vogel, 116 Misc 2d 332 [App. Term. 2nd Dep't 1982]; CJI2d[NY] Penal Law §195.05). Accordingly, if there is no factual specification as to an authorized official function —which, in this case, is an arrest— then the charge of Obstructing Governmental Administration may also be subject to dismissal.

Rather than address the apparent factual deficiencies in the Obstructing count, the People have argued that the count was not required to allege an "authorized arrest", reasoning that while the arrest must be authorized in order to convict a defendant for Obstructing Governmental Administration, it does not have be alleged in the underlying accusatory instrument. In effect, the People are suggesting that there is a distinction between what must be alleged in an accusatory instrument and what must be proven at trial. To support their position, the People have cited People v. Cacsere (185 Misc 2d 92 [App. Term., 2nd Dep't 2000]). However, in Cacsere, the defendant interfered with a third party's arrest rather than, as here, the defendant's own arrest —a fact which arguably tends to lessen the materiality of the issue of the officer's authority to make the arrest. In any event, the People's broad reading of Cacsere's holding —that the term "authorized arrest" need not be established in the accusatory instrument in any Obtructing case involving an arrest— flies in the face of the well settled principal, conceded in Cacsere, that an authorized official function must be proven in order to convict a defendant of Obstructing Governmental Administration (Cacsere, at 94). Both the People and the Cacsere court seem to note this incongruity without resolving the logical tension it creates. Instead, the People go so far as to dismiss the "authorized arrest" as an issue for the trier of fact —as if a factual issue essential to an element of an offense need not have originated as an allegation in the accusatory instrument charging that offense. To the extent that Cacsere also supports that proposition, the Court disagrees. An authorized arrest cannot be required to establish an element for conviction purposes but not for pleading purposes. What must be proven must be pled.

Basic rules of pleading require this. In order to proceed to trial on a misdemeanor, the People must have a triable information with allegations of fact addressed to the elements that must be established at trial (see CPL 100.40[1][c]; People v. Kalin, 12 NY3d 225 [2009]; People v. Jones, 9 NY3d 259 [2007]). The facts supporting the elements of a crime are what must be alleged, because that is what will be submitted to the trier of fact unless conceded by the defendant (see People v. Flynn, 79 NY2d 879 [2002]; People v. Lewis, 64 NY2d 1031, 1032 [1985]; People v. Walker, 198 NY 329, 334 [1910]).While this does not mean that a triable Information requires "legally sufficient evidence" that is necessary to survive a motion to dismiss at trial (see Kalin, at 230), it does require a "prima facie case" — the difference between the two being that "legally sufficient evidence" requires competent proof, while "prima facie" proof requires only one kind of competent proof, "non-hearsay allegations of fact" (see Suber, at 252). This distinction notwithstanding, the "non-hearsay" allegations of fact must nevertheless establish "every element of the offense charged and the defendant's commission of it" (CPL 100.40[1][c]). For Obstructing Governmental Administration, that includes an authorized "official function", and where that official function is, as here, an arrest, that means factual allegations as to the authorized arrest (see Lupinacci, id., Vogel, id.; see also CJI2d[NY] Penal Law [*4]§195.05).

The reason for the specification required in an Information further exposes the flaw in the People's reasoning. An Information does not just allege facts addressed to the elements of the offense; it also contains the only proof of the crime until the case is tried. Unlike an Indictment, it is not predicated on proof before a grand jury; nor, as with a felony complaint, are its allegations assessed in a preliminary hearing. Instead, the Information embodies the sole proof of culpability until its allegations can be tested at trial. For that reason, it must contain non-hearsay allegations of fact which establish every element of the crime (see CPL §100.40[1][c]). As the Court of Appeals has observed (People v. Jones, 9 NY3d 259, 262 [2007]):

"The reason for requiring the additional showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law" (People v Alejandro, 70 NY2d 133, 137 [1987]). A defendant charged by information does not have the same safeguards as a defendant charged by a complaint (see id. at 138). For instance, a felony complaint will generally be followed by a grand jury proceeding where the People must present evidence demonstrating a prima facie case in order to obtain an indictment (see CPL art 190). Likewise, a misdemeanor complaint must be followed by a supporting deposition (see CPL 100.40 [4] [b]). Here, the prosecution used an information to bring the case to trial, and thus this instrument must set forth nonhearsay allegations that, if proven to be true, make out every element of the offense charged (see CPL 100.40 [1] [c]; 100.15 [3]).

The rules of pleading also show why the People's reliance on Cacsere is misplaced. In Cacsere, the Court suggested that the issue of "authorized arrest" is a species of the element of "official function", meaning that, to the extent that an arrest constituted the official function in a particular case, the authorization to make the arrest is a factual issue for the trier of fact rather than an element that had to be recited in the accusatory instrument. As noted above, the Court believes that Cacsere is factually distinct from this case. Even if it were not, Jones and CPL §100.40 make it clear that, in order for an element to be proven at trial, it must also be alleged in the Information and supported by "non hearsay allegations of fact" that, if true, establish "every element of the offense charged" (see Jones, id.; CPL §100.40[1][c]). In other words, an Information must establish the same elements as a conviction would, just with a lesser standard of proof. Hence, if an authorized offense is needed to establish legally sufficient proof to convict a defendant —as Lupinacci rightly concluded that that it does (see Lupinacci, at 589)—then there is simply no logical reason why the same element is not required to satisfy the prima facie requirement for an Information.

Here, the Obstructing Governmental Administration count of the complaint does not allege that the arrest was authorized. Instead, it states that the defendant refused to put her hands behind her back when told she was under arrest. Clearly, being told that one is under arrest is not the same as establishing authorization for that arrest. Thus, like the Resisting count, Obstructing charge may violate the "prima facie" requirement of CPL §100.40(1)(c).

That does not end the inquiry, however. In assessing the issue of legal sufficiency, a court is not confined to what the police or the People arbitrarily denominate as the "Information" (see People v. Fernandez 20 NY3d 44, 46 [2012]). Specifically, in this county, Informations are not single instruments with multiple counts supported by a common set of facts (see CPL §100.10[1]). Instead, each offense gets its own accusatory instrument with its own set of facts, as if each charge is thereby insulated from the other. Notably, this practice deviates from the method recommended in the Criminal Procedure Law, which is to have the multiple counts of an Information supported by a "single factual account" (see CPL §100.15[3]). If a "single factual account" had been used here, of course, there would have been a sufficient non-hearsay basis for concluding that the arrest was prima facie authorized because the [*5]allegations underlying the Disorderly Conduct and City Code charges would have provided the basis for the arrest. The counts charging Resisting Arrest and Obstructing Governmental Administration, in other words, would have been legally sufficient. The issue is whether the form that the People and the police have arbitrarily selected for an Information in this county should affect a court's assessment of legal sufficiency.

It should not. Artificially dividing counts of an Information into separate accusatory instruments does not render the factual allegations recited therein inviolable and discrete. The allegations can, and should, be read as applying to all counts of the Information, as if set forth in the single factual narrative described by CPL §100.15(3). Other courts have condoned this (see, e.g., People v. Richardson, 30 Misc 3d 1204[a] [NY Crim. Ct. 2010]). Moreover, given that the allegations in this case are from the same "criminal transaction", this would also be permitted under the rules of joinder (see CPL 200.20[2][a]).

Of course, there is also a second basis for considering the underlying offenses of Disorderly Conduct and the Noise Ordinance violation in determining the sufficiency of the Resisting and Obstructing counts. But for the fact that the Information charging these underlying offenses is signed by the complaint rather than a third party, it fulfills all of the material requirements of a "supporting deposition" (see CPL §100.40([1][c]; CPL §100.20). The disorderly conduct and noise ordinance charges are each based on the personal knowledge of the signatory and are appropriately subscribed pursuant to the form notice regarding false statements (see CPL §100.20). Further, in verifying the underlying charges, the subscribing officer effectively vouches for the facts as if operating under a testimonial oath (see Matter of Neftali D., 85 NY2d 631, 635-636 [1995]). In light of such substantial compliance, it seems hyper technical to insist on a diversity of subscribers in strict accordance with the letter of CPL §100.20 (cf. CPL §100.25).

In this regard, the Court notes that complainant police officers are permitted to submit supporting depositions to supplement simplified traffic informations without any concern that the complainant on the traffic ticket is also the deponent on the supporting deposition (see CPL §100.25[2]). While this may be a case of simple legislative oversight that pertains only to traffic tickets, it also underscores the relative immateriality of the requirement that the supporting deposition be executed by a person other than the "complainant" — a dichotomy, it should be noted, that has been called an "anomaly" (see William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL § 100.20, at 477-478 [2019 ed]). What matters is not who signs the document, but what facts they attest to, and whether those facts make for a legally sufficient accusatory instrument. Here, they do.

The Court is also mindful of the Court of Appeals oft-repeated admonishments against overly restrictive or technical readings of Informations (see People v. Berrezueta , 31 NY3d 1091, 1092 [2018] ("so long as the factual allegations give the defendant "sufficient notice of the charged conduct to prepare a defense and avoid double jeopardy", a hyper technical reading should be avoided); see also Casey, at 360 (the allegations should be given "a fair and not overly restrictive or technical reading"; see Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL § 100.40, at 21 [2019 ed]).[FN2] This is especially true in jurisdictions like this one, where police officers, rather than trained lawyers, draft the accusatory instruments (see e.g., People v. Hanlon, 36 NY2d 549, 559 [1975]; People v. Murray, 136 [*6]AD3d 714 [2nd Dep't 2016]). As such, so long as the crime is sufficiently alleged so that the defendant can prepare for trial and not be subject to double jeopardy, the Court will not require the most precise words, forms or phrases in an Information (see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Konieczny, 2 NY3d 569, 575 [2004]; Casey, at 360).

With that in mind, there is no reason why the factual averments set forth in the Disorderly Conduct and Noise Ordinance charges cannot support the Resisting or Obstruction charges —whether as a part of a single factual account (CPL §100.15[3]), or a supporting deposition (CPL §100.20). Thus understood, it is clear that the Resisting Arrest and Obstructing Governmental Administration satisfy the requirements of legal sufficiency as it relates to the issue of authorized arrest. Further, although not raised by the defense, the Court determines that the Disorderly Conduct and Noise Ordinance charges meet the requirements of legal sufficiency (see CPL §100.40[1]). Accordingly, for all of the foregoing reasons, the defendant's motion is denied.

MOTION FOR MAPP/DUNAWAY HEARING

The defendant has moved for a Dunaway/Mapp hearing (Mapp v. Ohio, 367 US 643 [1961]) to determine whether a probable cause hearing or the suppression of evidence allegedly recovered by the police was a product of an impermissible arrest (CPL §710.60[3][b]; People v. Mendoza, 82 NY2d 415 [1993]). In order to avoid a summary denial of the suppression motion, the defendant must allege a legal basis for suppression and "[t]he sworn allegations of fact [must] as a matter of law support the ground alleged" (CPL _710.60(3)(b)). In evaluating the sufficiency of the sworn allegations of fact, the court will apply the three-part test delineated under People v. Mendoza, supra.

Under Mendoza's first prong, the defendant must allege facts as opposed to conclusions (People v. Wright, 54 AD3d 695, 696 [2d Dept 2008]). Next, the court will evaluate the defendant's factual allegation in context of the People's theory of the case (Mendoza, at 422). Therefore, the defendant's moving papers should address the information provided by the prosecution so as to present a factual issue as to probable cause (see People v. Bozeman, 40 AD3d 228 [1st Dept 2007]; Kamins, Search and Seizure §7.02[4] , at 7-8 [2011 ed]). Lastly, the factual allegation will be evaluated based on the information available to the defendant at the time of his motion in order to support suppression (People v. McNair, 28 AD3d 800 [3d Dept 2006]).

Applying the foregoing principals, the Court concludes that the defendant's moving papers have set forth sufficient factual allegations. The defendant has alleged facts in connection with the arrest, and its aftermath. As such, the request for a Dunaway hearing is granted.

PRECLUSION - STATEMENTS / REQUEST FOR A Huntley HEARING

The People are precluded from using all statements that are subject to CPL 710.30 that were not disclosed as required by CPL §710.30. The Court will hold a Huntley hearing to determine the admissibility of any statements made by the Defendant to a public servant engaged in law enforcement that are subject to CPL 710.30 and that were properly noticed.

PRECLUSION OF IDENTIFICATION EVIDENCE NOT DISCLOSED PURSUANT TO CPL §710.30

The People are precluded from using all identifications that are subject to CPL §710.30 that were not disclosed within the time frame prescribed in the Criminal Procedure Law.

DISCLOSURE OF BRADY MATERIAL, AND MATERIAL REQUIRED TO BE DISCLOSED UNDER ARTICLE 245 OF THE CRIMINAL PROCEDURE LAW

The Court directs the People to comply with the directives set forth in Brady v. Maryland, 373 U.S. 83 (1963) and Article 245 of the Criminal Procedure Law.

SANDOVAL AND VENTIMIGLIA HEARINGS

The Court will hold Sandoval and Ventimiglia hearings immediately prior to the trial.

RENEWAL OF MOTIONS

Defendant's request to make any further motions will be decided by the Court if and when any further motions are made by the defendant. All other motions and requests contained in the defendant's moving papers not specifically addressed herein are denied with leave to renew upon citation to specific legal authority which directly supports the request.

This shall constitute the Decision and Order of the Court.

So ordered.

Dated: October 13, 2020

Cohoes, New York

_____________________________________________

Hon. Eric M. Galarneau

Cohoes City Court Judge Footnotes

Footnote 1:The full text of Penal Law §195.05 provides as follows: "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, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor's intent that the animal obstruct governmental administration."

Footnote 2:The only thing disqualifying the Disorderly Conduct charge form being considered a "supporting" deposition is that it is signed by the same complainant as on the other charges. Otherwise, it clearly satisfies the requirements of a supporting deposition. Moreover, it should be noted that the statute defining supporting depositions (CPL §100.20) is more descriptive than prescriptive —it describes what a supporting deposition is, not what it must be. As such, CPL §100.20 should not prohibit the Court from considering the Disorderly Conduct charge in evaluating the sufficiency of the other counts in the Information.