Summary
finding "maintaining order" would suffice as a police officer's official function while "performing a tour" would not
Summary of this case from Reen v. City of N.Y.Opinion
07-11-2016
The PEOPLE of the State of New York, v. Eryk FORD, Defendant.
Darcel D. Clark, District Attorney, Bronx County by Scott G. McDonald, Assistant District Attorney, for the People. The Law Offices of Emil F. Piedra by Emil F. Piedra, Esq., for defendant.
Darcel D. Clark, District Attorney, Bronx County by Scott G. McDonald, Assistant District Attorney, for the People.
The Law Offices of Emil F. Piedra by Emil F. Piedra, Esq., for defendant.
ARMANDO MONTANO, J. Defendant is charged with one count of Obstructing Governmental Administration in the Second Degree (PL § 195.05) and one count of Harassment in the Second Degree (PL § 240.26[1] ).
Defendant moves for an order: 1) dismissing count one, PL § 195.05, as facially insufficient; 2) suppressing any and all admissions, confessions, or statements allegedly made by defendant, or in the alternative, granting a Huntley/Dunaway hearing; 3) suppressing any in-court or out-of-court identifications of defendant, or in the alternative, granting a Wade/Dunaway hearing; 4) precluding the introduction of any unnoticed identification evidence; 5) directing the People to furnish defendant with a bill of particulars and a response to his demand to produce; 6) precluding the People from introducing at trial any evidence of defendant's prior convictions of bad acts; 7) directing the People to disclose all Brady material; and 8) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the accusatory instrument sworn to by the deponent, PO J Jones, read as follows:
Deponent is informed by CO JENNIFER DECICEO of Department of Corrections, Shield No. 13723 that [on or about December 29, 2015 at approximately 6:45 AM inside of 1 Halleck Street, County of the Bronx, State of New York], Rikers Island Correctional Facility, George R. Vierno Center (GRVC), Housing Area 13A, informant was dressed in her official correction officer uniform while performing a tour, informant walked past defendant's cell, defendant
stated in sum and substance I'M GOING TO SPLASH YOU at which time defendant threw an unknown liquid substance in the direction of informant and said liquid substance struck informant's torso area and right arm.
Deponent is further informed by informant that informant was unable to perform her scheduled duties due to leaving said location and receiving medical treatment at a local clinic.
Motion to Dismiss
Defendant argues that count one must be dismissed because the accusatory instrument fails to allege adequate facts of an evidentiary character which support all of the elements of the charge, to wit: the performance of an official function by a public servant and the intent on his part to frustrate a public servant in performing a specific function. Defendant asserts that the allegation that CO Deciceo was performing a tour while in uniform is akin to an allegation that a police officer was on duty, which has been held to be insufficient to establish the element of an official function. Defendant further avers that his purported intent to frustrate the performance of an official function is supported by nothing more than impermissible conclusory allegations.
In opposition, the People assert that the information is facially sufficient in that it provides detailed facts which support the charge of PL § 195.05 and provides suitable notice to defendant to prepare a defense to the offense charged. When given a fair reading, the People argue that all elements of the offense charged is supported by nonhearsay allegations of fact which provide reasonable cause to believe that defendant committed the offense charged. The People point out that the accusatory instrument adequately alleges that defendant deliberately threw an unknown liquid onto CO Deciceo. As a result of defendant's actions, CO Deciceo was prevented from completing the official function of maintaining order, in that she had to leave her post in order to receive medical attention.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3] ; People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1] [c] ). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b) ; Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686. Reasonable cause to believe that a defendant committed the crimes charged “exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL § 70.10. “In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged.” People v. Hightower, 18 N.Y.3d 249, 254, 938 N.Y.S.2d 500, 961 N.E.2d 1111 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15 ; People v. Mellish, 4 Misc.3d 1013(A), 2004 WL 1797568 (Crim.Ct., N.Y. County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986). “The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged.” People v. Sylla, 7 Misc.3d 8, 10, 792 N.Y.S.2d 764 (App.Term, 2d Dept.2005). As such, “[s]o 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 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).
“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.” PL § 195.05.
A person acts intentionally with respect to a result or conduct “when his conscious objective is to cause such result or to engage in such conduct.” PL § 15.05. “Because ‘intent’ ... cannot be the subject of a nonhearsay evidentiary allegation, it is necessary only that there be alleged evidentiary facts from which intent may be inferred.” People v. Spiegel, 181 Misc.2d 48, 52, 693 N.Y.S.2d 393 (Crim.Ct., N.Y. County 1999) quoting People v. Leiner, NYLJ, Oct. 15, 1997, at 34, col. 5 (App.Term, 2d & 11th Jud.Dists.) lv. denied 91 N.Y.2d 894, 669 N.Y.S.2d 8, 691 N.E.2d 1034 (1998). Intent can be inferred from the defendant's conduct and/or the surrounding circumstances. See, People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094 (1977) ; People v. Collins, 178 A.D.2d 789, 578 N.Y.S.2d 273 (3d Dept.1991) ; People v. Hawkins, 1 Misc.3d 905(A), 2003 WL 23100899 (Crim.Ct., N.Y. County 2003).
Penal Law § 195.05 was “intended to make criminal conduct designed to interrupt or shut down administrative governmental operations.” People v. Offen, 96 Misc.2d 147, 151, 408 N.Y.S.2d 914 (Crim.Ct., N.Y. County 1978). Since “[t]he plain meaning of the statute and the accompanying Commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function” (People v. Joseph, 156 Misc.2d 192, 193, 592 N.Y.S.2d 238 [Crim.Ct., Kings County 1992] ), a facially sufficient information must set forth adequate factual allegations to establish that the public servant was “engaged in a specific action at the time of the physical interference, and not just on duty. ” Id. at 194, 592 N.Y.S.2d 238 (emphasis added). “The requirement that the People plead a specific function is not an onerous burden. [T]he barest allegation of a[n official] function would suffice to satisfy this element of the statute.” Id. at 196, 592 N.Y.S.2d 238.
Based on Joseph, this court finds that the People have failed to adequately allege the element of the performance of an official function. The instant information alleges that CO Deciceo was in uniform and performing a tour. Although the phrase “performing a tour” is not further defined in the accusatory instrument, the Administrative Code of the City of New York § 9–116(c) provides in pertinent part that for the Department of Correction, “tours of duty shall commence at midnight, eight o'clock ante meridian and four o'clock post meridian of each consecutive twenty-four hours. Such tours of duty shall be designated as normal tours of duty.” By use of the phrase “performing a tour”, this court can infer that CO Deciceo was merely on duty at the time of the alleged interference. Had the People alleged, as they do in their papers in opposition, that CO Deciceo was prevented from performing the official function of maintaining order, then this court would readily find that the element of an official function had been adequately pled. However, the information contains nothing more than an allegation indicating that CO Deciceo was on duty. The absence of any factual allegations identifying an official function necessitates dismissal of the charge of PL § 195.05. Additionally, since the element of an official function has not been alleged, the information fails to establish that defendant, by throwing an unknown liquid at CO Deciceo, acted with the intent to prevent a public servant in the performance of that official function.
Motion to Suppress Statement Evidence
Defendant's motion to suppress statement evidence is granted solely to the extent that a combined Huntley/Dunaway hearing shall be held.
Motion to Suppress Identification Evidence
By letter dated July 6, 2016, this court was informed by ADA Scott McDonald that identification notice pursuant to CPL § 710.30(1) was not served because there was no identification procedure performed in this case. Therefore, defendant's motion to suppress identification evidence is denied.
Motion to Preclude Identification Evidence
Defendant's motion to preclude the introduction of identification evidence for which proper notice was not given is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial.
Discovery
Defendant's motion for an order compelling the People to provide a response to his demand to produce and a bill of particulars is hereby denied as moot as the People served their response and a bill of particulars on April 11, 2016.
The People are reminded of their continuing obligation to supply all Brady material.
Prior Convictions and/or Bad Acts
Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge. Future Motions
Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss count one, PL § 195.05, as facially insufficient is granted. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30. Defendant's motion to suppress statement evidence is granted to the extent that a Huntley/Dunaway hearing shall be held. Defendant's motion to suppress identification evidence is denied. Defendant's motion to preclude the introduction of identification evidence for which proper notice was not given is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial. Defendant's motion for an order compelling the People to provide a response to his demand to produce and a bill of particulars is hereby denied as moot. Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.