Opinion
No. CR–011719–16.
05-24-2017
The PEOPLE of the State of New York, Plaintiff(s), v. Stephanie M. PANIAGUALAPARRA, Defendant(s).
Madeline Singas, District Attorney Mineola. Janis A. Parazzelli, Esq., Floral Park.
Madeline Singas, District Attorney Mineola.
Janis A. Parazzelli, Esq., Floral Park.
SUSAN T. KLUEWER, J.
Defendant's motion for an order dismissing the accusatory instrument, suppressing tangible property, suppressing statements, precluding the People from using prior bad acts for impeachment purposes, and authorizing the making of further motions is granted to the extent that the accusatory instrument is dismissed as facially defective (see CPL 170.30[1][a] ).
Defendant is accused by two verified (see CPL 130.[1][d] ) informations filed under this docket of obstructing governmental administration in the second degree and unlawful possession of marijuana (see Penal Law § 195.05, 221.05 ) on account of incidents that are alleged to have occurred on May 10, 2016, the first at 3:23 a.m. at Graham Avenue and Peninsula Boulevard, Hempstead, New York, the second at 4:50 a.m. at 1490 Franklin Avenue, Mineola, New York. By the factual part (see CPL 100.15[3] ) of what is designated count 1, the complainant (see CPL 100.15[1] ), Nassau County Police Officer John R. Hirschberger, attests that:
"[o]n the date, time and place of occurrence the defendant, Stephanie Paniagualaparra, did intentionally attempt to prevent Nassau County Police Officer Obrien, from performing an official function, by means of, physical force or interference. The defendant was told numerous times to exit the front passenger seat of a vehicle which was being impounded. The defendant was physically, and verbally not complying with lawful orders to exit said vehicle, preventing officer Obrien from conducting her investigation. The defendant Stephanie Paniagualaparra, had to be physically removed from the vehicle by your deponent and Officer Obrien to allow us to perform her lawful duty. While trying to remove the defendant from the vehicle, she began to violently flail her arms in an attempt to remain in the vehicle and interfere with an official investigation.
"The above is based on the information and belief the source of said information and belief being the direct observations of your deponent."
By the factual part of what is designated count 2, Officer Hirschberger attests that:
"[o]n Tuesday, May 10, 2016 at 0450 hours, while conducting an inventory search of defendant Stephanie Paniagualaparra's property at Central Testing Section located inside Nassau County Headquarters, 1490 Franklin Ave., Mineola NY, Officer Hirschberger Serial No.9440 did find a orange cylinder shaped container, containing a greenish leafy substance believed to be marijuana and a clear cylinder shaped container containing trace amounts of containing a[sic] greenish leafy substance believed to be marijuana. In addition to a green grinder, containing a greenish leafy substance believed to be marijuana. Located in the defendants [sic] black handbag.
"The above is based on information and belief, the source of said information and the basis of said belief being the direct observation of recovered invoiced evidence. Your deponent believes this substance to be marijuana based on his 2.5 years of police experience, the color, texture and odor of the recovered evidence, his involvement in numerous marijuana related arrests and investigations, and his training in marijuana identification by the New York City Police Academy and Nassau County Police Academy."
Defendant was arraigned on May 10, 2016. The People have served a "710.30" notice advising of their intention to use at trial specified statements they assert Defendant made at the scene of her arrest, and somewhat later at police headquarters. They have also served "VDFs." According to the markings on the court file, on October 31, 2016, present counsel was substituted for the Legal Aid Society, the court (O'Donnell, J.) "tolled" the time to make motions, and the court adjourned the case to December 5, 2016 in Part 3. Also according to those markings, on December 5, 2016, I adjourned the case to February 1, 2017 for "Mot." Defendant made (see CPLR 2211 ) the present motion on January 30, 2017. I directed that the People serve their opposition by March 1, 2016. The People did not serve that opposition until March 6, 2017.
In support of that prong of her motion which is for dismissal of the accusatory instrument, Defendant urges that count 1 is defective because the allegations do not demonstrate that the function—which she characterizes as the impounding of the vehicle—that she is alleged to have interfered or attempted to interfere with is an official authorized function, and that, in any event, her claimed interference was not physical because it is not alleged that she got physical until she was removed from the car. She urges that count 2 is defective because Officer Hirschberger's statements are not properly verified and do not set forth enough about his training and experience to establish the merit of his claim that the substance Defendant is alleged to have possessed is marijuana. She very briefly addresses her obviously alternative requests for suppression and other relief.
The People in opposition, interposed almost exclusively by way of memorandum, urge, first, that Defendant's motion should be denied in its entirety because not made within 45 days of arraignment. They next urge that the assertion that police were impounding a car constitutes the appropriate demonstration that they were performing an official function, that the reasons therefor need not be set forth, that her resistance to removal from the car constituted physical interference with the official function, and that, therefore, count 1 is sufficient. They further urge that Officer Hirschberger sets forth an adequate basis for his belief that the substance involved is marijuana, and that, therefore, count 2 is also sufficient. They oppose Defendant's requests for other, alternative relief.
Defendant in reply notes that the court has discretion to allow that a motion be made more than 45 days after arraignment, that the court here "did just that," and that the People, having served their opposition late, should not be heard to complain about lateness. She reiterates that demonstrating that police conduct is lawful is required to make out a proper case of obstructing governmental administration, reiterates that her conduct was not physical, and refers to her previous arguments regarding count 2. She with some elaboration responds to the People's opposition to her requests for alternative relief.
Turning first to the People's potentially dispositive claim that this motion is untimely, that claim is here without merit. Not only did the court toll Defendant's time to make motions, apparently including pre-trial applications for suppression (cf. CPL 255.20[1] ), the People are once again advised that a jurisdictional attack on an accusatory instrument may be raised at any time, even for the first time on appeal (see People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 [1987] ). And as set out below, each count is jurisdictionally wanting.
It is well-settled that an information is sufficient only if it both provides reasonable cause to believe that the person named in it committed the offense charged, and contains sworn, non-hearsay allegations of fact supporting every element of the offense, and that person's commission thereof (see CPL 100.15, 100.40[1] ). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 N.Y.2d 677, 685 N.Y.S.2d 409 [1999] ; People v. McGee, 204 A.D.2d 353, 611 N.Y.S.2d 261 [2d Dept 1994] ; People v. Li, 192 Misc.2d 380, 745 N.Y.S.2d 683 [Nassau Dist Ct, 2002] ; People v. Coyle, 186 Misc.2d 772; 719 N.Y.S.2d 818 [Nassau Dist Ct 2000] ), but conclusory statements, unsupported by facts, are inadequate (cf. People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319 [1986] ). An information thus must demonstrate the existence of a prima facie case (People v. Henderson, supra ), but the prima-facie -case requirement is not the same as the burden of proof beyond a reasonable doubt ( id. at 680, 685 N.Y.S.2d at 411 ). When ruling on the sufficiency of an information, a court need not give an overly restrictive or technical reading to the allegations, and it must accept the factual allegations as true (cf. People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 [2000] ; People v. Henderson, supra ), but it is limited to reviewing the facts as they are set forth in the four corners of the accusatory documents (see People v. Grabinski, 189 Misc.2d 307, 731 N.Y.S.2d 583 [App Term 2d Dept 2001] ; People v. Voelker, 172 Misc.2d 564, 658 N.Y.S.2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1] ). Moreover, separate documents must be read separately (cf. People v. Grabinski, supra; People v. Davis, nor, 2011 NYSlipOp 50844U [App Term 2d Dept 2011]; People v. Kass, nor, 2008 NYSlipOp 51431U [App Term 2d Dept 2008]; People v. Christiansen, nor, 2008 NYSlipOp 50693U [App Term 2d Dept 2008] ).
Insofar as is pertinent to this case, a person commits the crime of obstructing governmental administration in the second degree by intentionally preventing or attempting to prevent a public servant from performing an official function by means of intimidation, physical force or interference, or by committing an independently unlawful act (see Penal Law 195.05 ). Words alone do not constitute commission of this crime (see People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841 [1977] ), but direct physical contact is not required where the obstruction is effectuated by intimidation, physical force or interference (see People v. Tarver, 188 A.D.2d 938, 591 N.Y.S.2d 907 [3d Dept.1992] ; see also People v. Garnett, 235 A.D.2d 492, 652 N.Y.S.2d 1001 [2d Dept 1997] ; Willinger v. City of New Rochelle, 212 A.D.2d 526, 622 N.Y.S.2d 321 [2d Dept 1995] ; and see Matter of Davan L, 91 N.Y.2d 88, 666 N.Y.S.2d1015 [1997] ). Inappropriate and disruptive conduct at the scene of the performance of an official function can constitute physical interference within the meaning of Penal Law § 195.05 (id.; see also People v. Romeo, 9 AD3d 744, 779 N.Y.S.2d 860 [3d Dept.2004] ). So, too, can a refusal to move or leave (see Matter of Clive W., 109 Misc.2d 788, 441 N.Y.S.2d 188 [Fam Ct, 1981, Schwartz, J.] ; People v. Williams, nor, 2017 NYSlipOp 50478U [AppTerm, 2d Dept April 12, 2017] ); People v. Hamilton, nor, 2004 NYSlipOp 50412U [CrimCt, New York County, 2004, Coin, J.] ). But because it is an element of the offense that the official function obstructed be an authorized one, facts demonstrating the legality of the official function must be set forth in the accusatory instrument (see Matter of B., 201 A.D.2d 725, 608 N.Y.S.2d 302 [2d Dept 1994] ; Matter of Verna C., 143 A.D.2d 94, 531 N.Y.S.2d 344 [2d Dept 1988] ; see also People v. Vogel, 116 Misc.2d 332, 457 N.Y.S.2d 666 [App Term, 2d Dept 1982] ; and see People v. Greene, 221 A.D.2d 559, 634 N.Y.S.2d 144 [2d Dept 1995] ; People v. Lupinacci, 191 A.D.2d 589, 595 N.Y.S.2d 76 [2d Dept 1993] ).
In this case, the accusatory instrument makes mention of two discrete acts—impounding a vehicle and conducting an investigation—that can constitute official police functions (see People v. Tardi, 28 NY3d 1077, 44 NYS3d 366 [2016] ; People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375 [1976] ; see also People v. Lupinacci, supra ), thus potentially rendering the accusatory instrument defective because it is duplicitous (see People v. Bauman, 12 NY3d 152, 878 N.Y.S.2d 235 [2009] ; People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790 [1986] ; People v. Burnett, 306 A.D.2d 947, 760 N.Y.S.2d 800 [4th Dept 2003] ; cf. People v. Barrett, 166 A.D.2d 657, 561 N.Y.S.2d 465 [2d Dept 1990] ; and see People v. Alonzo, 16 NY3d 267, 920 N.Y.S.2d 302 [2011] ). Although the parties are apparently of the view that the only official function at issue is impounding a vehicle, even if that were the case, since a refusal to move can constitute physical interference within the meaning of Penal Law § 195.05 (see Matter of Clive W., supra; People v. Williams, supra; People v. Hamilton, supra ), I cannot agree with Defendant that because she is not alleged to have flailed her arms until after police began removing her from the car, there is no demonstration of "physical interference." But while, as noted above, impounding vehicles and conducting investigations are—like arresting people—police functions, they are not authorized ones unless there is a lawful basis for performing them (see People v. Alejandro, supra; People v. DeBour, supra; People v. Lupinacci, supra ). And since there are absolutely no facts demonstrating why police were impounding the vehicle and conducting an investigation, there are also no facts demonstrating that these functions were lawful and therefore authorized (see Matter of B., supra ]; Matter of Verna C., supra; see also People v. Vogel, supra; and see People v. Greene, supra; People v. Lupinacci, supra ). This lack of factual support constitutes a jurisdictional defect that requires dismissal of count 1 (cf. id.; see also People v. Alejandro, supra; and see People v. Jackson, nor, 2011 NYSlipOp 51550U [AppTerm, 2d Dept, 2011] ).
Because the document—a separate information—that constitutes count 2 bears the notice that "any false statement made herein is punishable as a class A misdemeanor," and because Officer Hirschberger has signed the document, Defendant's claim that count 2 is defective because it is not verified is without merit (see CPL 100.20[1][d] ). Her claim that count 2 is defective because Officer Hirschberger's attestations about his training and experience fail to demonstrate that he is competent to attest that a particular substance is marijuana is a much closer question. Putting aside the inartful sentence structure of the factual part of count 2, how a "trace" of something, or how something in a grinder, can be identified as "leafy" is somewhat of a mystery, and the attestation about 2½ years of general police experience and the apparently pro forma attestations about training, about color, texture, and odor, and about vaguely alluded-to participation in arrests and investigations, are far from overwhelming (cf. People v. Smalls, 26 NY3d 1064, 23 N.Y.S.2d 134 [2015] ; People v. Kalin, 12 NY3d 225, 878 N.Y.S.2d 653 [2009] ). But assuming without deciding that these attestations are minimally sufficient to establish that what is at issue is marijuana (see People v. Smalls, supra ), in order to make a prima facie case of unlawful possession thereof, a person must knowingly and unlawfully possesses it (see Penal Law § 221.05 ). To possess something "means to have physical possession or otherwise exercise dominion or control over tangible property" (see Penal Law § 10 .00[8] ). A person acts "knowingly" with respect to conduct or to a circumstance when he or she "is aware that his [or her] conduct is of such a nature or that such a circumstance exists" (see Penal Law § 15.05[2] ). Possession "suffices to permit the inference that the possessor knows what he [or she] possesses, especially but not exclusively, if it is in his [or her] hands, on his [or her] person, in his [or her] vehicle, or on his [or her] premises" (see People v. Reisman, 29 N.Y.2d 278, 285, 327 N.Y.S.2d 342 [1971] ). Since the only observation Officer Hirschberger attests to directly making at 1495 Franklin Avenue in Mineola is of "recovered invoiced evidence," there is no demonstration that Defendant actually or even constructively possessed what is believed to be marijuana, and there is no fact alleged to support the mere conclusion that what Officer Hirschberger was looking at belongs to Defendant. Indeed, the assumption—inference is too strong a term—one is asked to make to conclude the property being looked at is Defendant's arises not from the four corners of count 2, but rather from the indication that Defendant was arrested for committing the acts set forth in count 1. There is thus no fact alleged that demonstrates that Defendant knowingly possessed anything. Although Defendant does not raise this issue, the defect is such that the People cannot proceed to trial on this jurisdictionally defective accusation (cf. People v. Jackson, supra ). Count 2 must also be dismissed.
In light of the foregoing, I do not reach Defendant's remaining requests for relief.
So Ordered