The People, Respondent,v.Joseph Dumay, Appellant.BriefN.Y.May 1, 2014 To be argued by: ADAM M. KOELSCH (10 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH DUMAY, Defendant-Appellant. Kings County Docket Number 2009KN063712 APL-2013-00147 RESPONDENT’S BRIEF AND SUPPLEMENTARY APPENDIX LEONARD JOBLOVE ADAM M. KOELSCH Assistant District Attorneys of Counsel October 31, 2013 Telephone: 718-250-3823 Facsimile: 718-250-1262 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ........................................... ii QUESTIONS PRESENTED ............................................. v PRELIMINARY STATEMENT ........................................... 1 SUMMARY OF FACTS AND ARGUMENT ................................... 2 STATEMENT OF FACTS .............................................. 4 Introduction ............................................... 4 The Accusatory Instrument .................................. 5 The Guilty Plea and the Sentence ........................... 7 The Appeal ................................................. 8 ARGUMENT – THE COUNT OF OBSTRUCTING GOVERNMENTAL ADMINISTRATION IN THE SECOND DEGREE WAS FACIALLY SUFFICIENT ................. 10 A. The Facial Sufficiency of the Count of Obstructing Governmental Administration in the Second Degree Should Be Evaluated Under the Standards Applicable to a Misdemeanor Complaint ........................... 12 B. The Factual Allegations in the Accusatory Instrument Satisfy, with Respect to the Count of Obstructing Governmental Administration in the Second Degree, the Standards of Facial Sufficiency Applicable to a Misdemeanor Complaint ................ 17 CONCLUSION – FOR THE FOREGOING REASONS, THE ORDER OF THE APPELLATE TERM AFFIRMING DEFENDANT’S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED ............................................... 35 SUPPLEMENTARY APPENDIX - Transcript of Arraignment ................................ SA1 Certification Pursuant to C.P.L.R. § 2105 ................ SA6 ii TABLE OF AUTHORITIES Pages CASES In re Davan L., 91 N.Y.2d 88 (1997)............................21 People v. Alejandro, 70 N.Y.2d 133 (1987)......................12 People v. Allen, 39 N.Y.2d 916 (1976)..........................33 People v. Baltes, 75 A.D.3d 656 (3d Dep’t 2010)................21 People v. Barrett, 179 Misc. 2d 261 (Crim. Ct. Bronx Cnty. 1998)...............................................22 People v. Beam, 22 Misc. 3d 306 (Crim. Ct. N.Y. Cnty. 2008).....................................................21 People v. Bello, 92 N.Y.2d 523 (1998)..........................27 People v. Berdini, 18 Misc. 3d 221 (Crim. Ct. N.Y. Cnty. 2007)............................................29-30 People v. Bracey, 41 N.Y.2d 296 (1977).........................23 People v. Bula, 22 Misc. 3d 1121A, 2009 N.Y. Slip Op. 50210U (Crim. Ct. N.Y. Cnty. Feb. 10, 2009)...............21 People v. Casey, 95 N.Y.2d 354 (2000)....................9, 18-19 People v. Connor, 63 N.Y.2d 11 (1984)..........................14 People v. Covington, 18 A.D.3d 65 (1st Dep’t 2005).........21, 25 People v. Deegan, 69 N.Y.2d 976 (1987)......................28-29 People v. Dumay, 36 Misc. 3d 159(A), 2012 N.Y. Slip Op. 51809(U) (App. Term, 2d, 11th, & 13th Jud. Dists. Sept. 13, 2012), leave granted, 21 N.Y.3d 1004 (2013)...........................................1, 8-9 People v. Fernandez, 20 N.Y.3d 44 (2012).............3, 13, 15-16 People v. Hamilton, 3 Misc. 3d 1104A, 2004 N.Y. Slip Op. 50412U (Crim. Ct. N.Y. Cnty. May 14, 2004)........21, 23 iii TABLE OF AUTHORITIES (cont’d) Pages People v. Hamm, 9 N.Y.2d 5 (1961)..............................19 People v. Henderson, 92 N.Y.2d 677 (1999)......................27 People v. Herbert, 31 Misc. 3d 131A, 2011 N.Y. Slip Op. 50588U (App. Term, 2d, 11th, & 13th Jud. Dists. Apr. 1, 2011)......................................13 People v. Jackson, 18 N.Y.3d 738 (2012)....................17, 28 People v. Jennings, 69 N.Y.2d 103 (1986).......................27 People v. Kalin, 12 N.Y.3d 225 (2009)......................14, 18 People v. Keizer, 100 N.Y.2d 114 (2003)........................12 People v. Knight, 30 Misc. 3d 235 (Crim. Ct. N.Y. Cnty. 2010)...............................................26 People v. Konieczny, 2 N.Y.3d 569 (2004)....................9, 18 People v. Maldonado, 86 N.Y.2d 631 (1995)......................11 People v. Marte, 30 Misc. 3d 1205A, 2010 N.Y Slip Op. 52305U (Crim. Ct. N.Y. Cnty. Dec. 2, 2010)................26 People v. McRay, 51 N.Y.2d 594 (1980)..........................11 People v. Mercado, 68 N.Y.2d 874 (1986)........................11 People v. Mitchell, 17 Misc. 3d 1103A, 2007 N.Y. Slip Op. 51805U (Crim. Ct. Kings Cnty. July 30, 2007)..........21 People v. Nuccio, 78 N.Y.2d 102 (1991).........................34 People v. Ravizee, 146 Misc. 2d 679 (Crim. Ct. N.Y. Cnty. 1990)...............................................21 People v. Romeo, 9 A.D.3d 744 (3d Dep’t 2004)..................21 People v. Salter, 167 Misc. 2d 877 (Dist. Ct. Nassau Cnty. 1996)...............................................22 iv TABLE OF AUTHORITIES (cont’d) Pages People v. Schmidt, 76 Misc. 2d 976 (Crim. Ct Bronx Cnty. 1974)...............................................20 People v. Suber, 19 N.Y.3d 247 (2012) ......................11, 31 People v. Thomas, 4 N.Y.3d 143 (2005)..........................16 People v. Tyrell, 30 Misc. 3d 128A, 2010 N.Y. Slip Op. 52279U (App. Term, 1st Dep’t Dec. 30, 2010)...............14 People v. Weinberg, 34 N.Y.2d 429 (1974).......................13 People v. Wilson, 30 Misc. 3d 138A, 2011 N.Y. Slip Op. 50221U (App. Term, 2d, 11th, & 13th Jud. Dists. Feb. 16, 2011)............................................13 People v. Zambounis, 251 N.Y. 94 (1929)........................19 Willinger v. City of New Rochelle, 212 A.D.2d 526 (2d Dep’t 1995)...............................................21 STATUTES C.P.L. § 70.10.................................................11 C.P.L. § 100.10................................................13 C.P.L. § 100.15................................................10 C.P.L. § 100.40.....................................10-11, 16, 31 C.P.L. § 170.65................................................13 P.L. § 195.05......................................1, 4-5, 18, 20 P.L. § 205.30...................................................5 P.L. § 240.20...................................................5 P.L. § 245.00...................................................5 v QUESTIONS PRESENTED 1. Whether, in light of defendant’s waiver of his right to prosecution by information, the accusatory instrument is required to satisfy only the facial sufficiency standards applicable to misdemeanor complaints, and therefore need not satisfy the prima facie case standard applicable to informations. 2. Whether the factual allegations in the accusatory instrument provided reasonable cause to believe that defendant committed Obstructing Governmental Administration in the Second Degree, and whether the accusatory instrument therefore is facially sufficient with respect to the count charging that offense. COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH DUMAY, Defendant-Appellant. Kings County Docket Number 2009KN063712 RESPONDENT’S BRIEF PRELIMINARY STATEMENT Defendant Joseph Dumay appeals from a September 13, 2012 order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts. People v. Dumay, 36 Misc. 3d 159(A), 2012 N.Y. Slip Op. 51809(U) (App. Term, 2d, 11th, & 13th Jud. Dists. Sept. 13, 2012). That order affirmed a judgment of the Criminal Court of the City of New York, Kings County, rendered August 19, 2009, convicting defendant, upon a plea of guilty, of Obstructing Governmental Administration in the Second Degree (P.L. § 195.05), and sentencing him to a term of fifteen days in jail (Michels, J., at plea and sentence). By certificate dated June 6, 2013, the Honorable Susan Phillips Read granted defendant leave to appeal to this Court. People v. Dumay, 21 N.Y.3d 1004 (2013). Defendant has completed his sentence. There were no co- defendants. 2 SUMMARY OF FACTS AND ARGUMENT On August 10, 2009, defendant Joseph Dumay was arraigned in Criminal Court, Kings County, on a misdemeanor accusatory instrument that charged him with, among other offenses, Obstructing Governmental Administration in the Second Degree. On August 19, 2009, defendant waived his right to prosecution by information, pleaded guilty to that charge in satisfaction of the accusatory instrument, and was sentenced to fifteen days in jail. On defendant’s appeal to the Appellate Term, he argued that the count of Obstructing Governmental Administration in the Second Degree was facially insufficient because, according to defendant, the factual allegations failed to provide reasonable cause to believe that defendant, by means of physical interference, prevented a public servant from performing an official function, and that defendant intended to prevent a public servant from performing an official function. In addition, defendant claimed that the facial sufficiency of the accusatory instrument must be evaluated under the standards applicable to informations, because, according to defendant, defense counsel’s waiver of the right to prosecution by information on defendant’s behalf was invalid. The Appellate Term rejected those arguments on the merits and affirmed the judgment of conviction. 3 On appeal to this Court, defendant again argues that the count of Obstructing Governmental Administration in the Second Degree was facially insufficient for the same reasons that he argued on his appeal to the Appellate Term. Defendant also argues that his waiver of the right to prosecution by information was invalid in light of this Court’s decision in People v. Fernandez, 20 N.Y.3d 44 (2012). Defendant’s arguments are meritless. The facial sufficiency of the count of Obstructing Governmental Administration in the Second Degree should be judged under the standards that apply to a misdemeanor complaint rather than the standards that apply to an information, because defendant’s attorney expressly waived defendant’s right to prosecution by information. Furthermore, the obstructing governmental administration count was facially sufficient because the factual allegations provided reasonable cause to believe that defendant, by means of physical interference, prevented or attempted to prevent a public servant from performing an official function, and that defendant intended to prevent a public servant from performing an official function. Accordingly, for these reasons, the order of the Appellate Term and the judgment of conviction should be affirmed. 4 STATEMENT OF FACTS Introduction On August 9, 2009, at about 11:55 p.m., at the corner of Parade Place and Parkside Avenue in Brooklyn, defendant Joseph Dumay slammed with an open hand the trunk of Police Officer Christopher Deats’s patrol vehicle and stood behind the vehicle, preventing Officer Deats from moving the vehicle and patrolling the neighborhood. When Officer Deats attempted to place handcuffs on defendant, defendant attempted to prevent Officer Deats from arresting him by flailing his arms. Shortly thereafter, on August 10, 2009, at about 1:15 a.m., while the police were holding defendant in a precinct stationhouse located at 154 Lawrence Avenue in Brooklyn, defendant removed his clothes and masturbated by manipulating his exposed penis with his hand in front of several other people.1 As a result of these events, defendant was charged, by an accusatory instrument filed under Kings County Docket Number 2009KN063712, with one count each of Obstructing Governmental Administration in the Second Degree (P.L. § 195.05), Resisting 1 The facts set forth in this introduction regarding the events underlying the charges are drawn from the factual allegations in the accusatory instrument. 5 Arrest (P.L. § 205.30), Disorderly Conduct (P.L. § 240.20[1]), and Public Lewdness (P.L. § 245.00[a]). The Accusatory Instrument On August 10, 2009, defendant was arraigned on the accusatory instrument in the Criminal Court of the City of New York, Kings County (SA1-SA5).2 In the accusatory instrument, Police Officer Christopher Deats stated that on or about August 9, 2009, at approximately 11:55 p.m., at the corner of Parade Place and Parkside Avenue, Kings County, defendant committed the offenses of Obstructing Governmental Administration in the Second Degree (P.L. § 195.05), Resisting Arrest (P.L. § 205.30), and Disorderly Conduct (P.L. § 240.20[1]), and that on or about August 10, 2009, at approximately 1:15 a.m., at 154 Lawrence Avenue, Kings County, defendant committed the offense of Public Lewdness (P.L. § 245.00[a]), in that defendant did: Intentionally obstruct, impair or pervert the administration of law or other governmental function or prevent or attempt 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 2 The transcript of defendant’s arraignment is included in the supplementary appendix attached to this brief. Numbers in parentheses preceded by “SA” refer to pages of the supplementary appendix. Numbers preceded by “A” refer to pages of the appendix attached to defendant’s brief. 6 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; intentionally prevent or attempt to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person; with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, engage in fighting or in violent, tumultuous or threatening behavior; intentionally expose the private or intimate parts of his body in a lewd manner or commit any other lewd act in a public place. (A6) (original all in capitals). The factual part of the accusatory instrument stated, in its entirety, as follows: Deponent states that, at the first above time and place, which was public, defendant slammed the trunk of deponent’s radio mounted patrol vehicle with an open hand and prevented said vehicle from moving by standing behind it and preventing deponent from patrolling the neighborhood. Deponent further states that, defendant flailed defendant’s arms in order to prevent deponent from placing handcuffs on defendant’s wrists and conducting a lawful arrest of defendant. Deponent states that, at the second above time and place, defendant removed defendant’s clothes and masterbated [sic] by manipulating defendant’s exposed penis with defendant’s hand in front of several other individuals while being held in the precinct. (A6) (original all in capitals). 7 At the arraignment, defense counsel argued that the accusatory instrument was facially insufficient (SA4-SA5). The court told defense counsel to put in writing his motion to dismiss for facial insufficiency, and the court adjourned the case to August 19, 2009, for discovery by stipulation (SA5). The Guilty Plea and the Sentence On August 19, 2009, defendant appeared with counsel in Criminal Court (A8). Defense counsel stated that defendant had authorized her to enter a guilty plea on defendant’s behalf to Obstructing Governmental Administration in the Second Degree in full satisfaction of the docket, in exchange for the court’s promise to sentence defendant to fifteen days in jail (A8). Defense counsel waived prosecution by information (A8). Defendant stated that he was pleading guilty voluntarily after speaking with his attorney (A9). Defendant acknowledged that he did not have to plead guilty and that he was giving up the rights to remain silent and to have a trial and “other valuable rights” (A9). Defendant admitted that on August 9, 2009, at about 11:55 p.m., at Parade Place, in Kings County, he slammed the trunk of a radio patrol car, prevented the vehicle from moving, and stood behind it, while the police were involved in official duties (A9). 8 The court then sentenced defendant to fifteen days in jail (A10). The Appeal Defendant appealed from his judgment of conviction to the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts. In his brief, defendant claimed that the accusatory instrument was jurisdictionally defective because, according to defendant, the factual portion of the instrument did not include any non-conclusory allegations establishing reasonable cause to believe, or a prima facie case, that defendant committed the crime of Obstructing Governmental Administration in the Second Degree. In particular, defendant claimed that the factual allegations failed to establish that defendant, by means of physical interference, prevented a public servant from performing an official function, and that defendant intended to prevent a public servant from performing an official function. In a decision and order dated September 13, 2012, the Appellate Term unanimously affirmed defendant’s judgment of conviction (A2-A5). People v. Dumay, 36 Misc. 3d 159(A), 2012 N.Y. Slip Op. 51809(U) (App. Term, 2d, 11th, & 13th Jud. Dists. Sept. 13, 2012). The Appellate Term concluded that, because defendant’s arguments concerning the facial sufficiency of the accusatory instrument were jurisdictional, defendant’s claim was 9 not forfeited by his guilty plea and must be reviewed in spite of his failure to raise it in the Criminal Court (A4). The Appellate Term noted that the accusatory instrument was denominated neither a misdemeanor complaint nor an information, and held that defendant had expressly waived his right to prosecution by information (A4). The Appellate Term held that the accusatory instrument therefore should be evaluated as a misdemeanor complaint (A4). The Appellate Term held that when the accusatory instrument is given a “reasonable, not overly technical reading,” the “fair implication” of its allegations supports, or tends to support, the charge of Obstructing Governmental Administration in the Second Degree (A4-A5) (quoting People v. Konieczny, 2 N.Y.3d 569, 576 [2004]; People v. Casey, 95 N.Y.2d 354, 360 [2000]). By order dated June 6, 2013, defendant was granted leave to appeal to this Court from the order of the Appellate Term (A1). People v. Dumay, 21 N.Y.3d 1004 (2013) (Read, J.). 10 ARGUMENT THE COUNT OF OBSTRUCTING GOVERNMENTAL ADMINISTRATION IN THE SECOND DEGREE WAS FACIALLY SUFFICIENT. Defendant’s challenge to the facial sufficiency of the count of Obstructing Governmental Administration in the Second Degree, to which he pleaded guilty, is meritless. As the Appellate Term correctly concluded, defendant expressly waived his right to prosecution by information, and the factual allegations in the accusatory instrument provided reasonable cause to believe that defendant committed the crime of Obstructing Governmental Administration in the Second Degree. Therefore, the accusatory instrument was not jurisdictionally defective with respect to that count, and defendant’s judgment of conviction should be affirmed. Pursuant to Criminal Procedure Law § 100.15(3), the factual part of a misdemeanor complaint “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” Criminal Procedure Law § 100.40(4) states that a misdemeanor complaint, or a count thereof, is facially sufficient when: (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the 11 offense charged in the accusatory part of such instrument. “‘Reasonable cause to believe that a person has committed an offense’ 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.” C.P.L. § 70.10(2). “Reasonable cause means probable cause.” People v. Maldonado, 86 N.Y.2d 631, 635 (1995). “Probable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt.” People v. Mercado, 68 N.Y.2d 874, 877 (1986); accord People v. McRay, 51 N.Y.2d 594, 602 (1980). Unlike a misdemeanor complaint, an information, or a count thereof, is facially sufficient only if it satisfies both the “reasonable cause” requirement, see C.P.L. § 100.40(1)(b), (4)(b), and the requirement that it contain non-hearsay allegations that “establish, if true, every element of the offense charged and the defendant’s commission thereof.” See C.P.L. § 100.40(1)(c); People v. Suber, 19 N.Y.3d 247, 251 (2012). This additional requirement -- referred to as the “prima facie case” requirement -- is “a much more demanding standard” than the standard applicable to misdemeanor 12 complaints. People v. Alejandro, 70 N.Y.2d 133, 139 (1987) (citation, quotation marks, and emphasis omitted). In this case, defendant waived the right to prosecution by information, and consequently the facial sufficiency of the count of Obstructing Governmental Administration in the Second Degree in the accusatory instrument must be evaluated under the standards that apply to a misdemeanor complaint rather than the standards that apply to an information. But, irrespective of whether the accusatory instrument is evaluated under the standards applicable to a misdemeanor complaint or to an information, the count of Obstructing Governmental Administration in the Second Degree was facially sufficient. A. The Facial Sufficiency of the Count of Obstructing Governmental Administration in the Second Degree Should Be Evaluated Under the Standards Applicable to a Misdemeanor Complaint. The facial sufficiency of the count of Obstructing Governmental Administration in the Second Degree should be evaluated under the standards applicable to a misdemeanor complaint, because defendant waived the right to prosecution by information. “A trial court’s jurisdiction to commence a criminal action is obtained in the case of a misdemeanor offense by means of a complaint.” People v. Keizer, 100 N.Y.2d 114, 117 (2003). A misdemeanor complaint “serves merely as the basis for 13 commencement of a criminal action, permitting court arraignment and temporary control over the defendant’s person where there is as yet no prima facie case.” People v. Weinberg, 34 N.Y.2d 429, 431 (1974); see C.P.L. § 100.10(4). However, a misdemeanor complaint may not serve as a basis for prosecution, and it must be replaced by an information, unless the defendant waives prosecution by information. See C.P.L. §§ 100.10(1), (4), 170.65(1), (3); People v. Fernandez, 20 N.Y.3d 44, 47 (2012). Here, defense counsel waived defendant’s right to prosecution by information when, in the presence of defendant, and after the court asked defense counsel whether she was waiving prosecution by information, defense counsel replied, “So waive” (A8). Accordingly, the counts charged in the accusatory instrument need not satisfy the requirements applicable to an information, and instead need only satisfy the less demanding requirements applicable to a misdemeanor complaint. See People v. Herbert, 31 Misc. 3d 131A, 2011 N.Y. Slip Op. 50588U (App. Term, 2d, 11th, & 13th Jud. Dists. Apr. 1, 2011) (“As defendant does not dispute that he validly waived prosecution by information, the accusatory instrument is evaluated as a misdemeanor complaint for the purpose of analyzing its jurisdictional sufficiency”); People v. Wilson, 30 Misc. 3d 138A, 2011 N.Y. Slip Op. 50221U (App. Term, 2d, 11th, & 13th Jud. Dists. Feb. 16, 2011) (“Since defendant waived prosecution 14 by information, we treat the accusatory instrument as a misdemeanor complaint”); People v. Tyrell, 30 Misc. 3d 128A, 2010 N.Y. Slip Op. 52279U (App. Term, 1st Dep’t Dec. 30, 2010) (“In light of defendant’s express waiver during the plea colloquy of the right to be prosecuted upon an information, his present challenge to the facial sufficiency of the accusatory instrument must be gauged by the standards applicable to a complaint”); see also People v. Connor, 63 N.Y.2d 11, 14 (1984) (right to prosecution by information waived where, when court asked if defendant waived the reading of his rights and charges -- which necessarily included the mandated reading of the right to prosecution by information -– defense counsel stated, “So waived,” and defendant proceeded to trial without objection); cf. People v. Kalin, 12 N.Y.3d 225, 228 (2009) (in absence of waiver of right to prosecution by information, sufficiency of accusatory instrument must be evaluated under standards that apply to an information). Nevertheless, defendant argues that defense counsel did not waive defendant’s right to prosecution by information because -- according to defendant -- the People had already begun to prosecute him by information and therefore counsel’s waiver of that right on defendant’s behalf was a “nullity” (Def. Brief at 28). Defendant’s argument is meritless. 15 In support of that argument, defendant relies primarily upon the decision of this Court in People v. Fernandez, 20 N.Y.3d 44 (2012), citing that decision for the proposition that the substance of an accusatory instrument determines the standard under which a court must evaluate the facial sufficiency of that accusatory instrument (Def. Brief at 29) (citing Fernandez, 20 N.Y.3d at 50-51). In Fernandez, the People filed an accusatory instrument charging the defendant with aggravated unlicensed operation of a motor vehicle. 20 N.Y.3d at 46-47. This Court held that, although the accusatory instrument was denominated a “COMPLAINT/INFORMATION,” it would be illogical to find that the title of the form governed over its substance. Id. at 49-51. This Court further held that it was inconsequential that the accusatory instrument included factual allegations supporting the traffic offense charged, which were not required by the statute setting forth the requirements of simplified traffic informations. Id. at 51. Therefore, this Court concluded that the accusatory instrument was a facially sufficient simplified traffic information, rather than a facially insufficient misdemeanor complaint. Id. at 49- 51. Contrary to defendant’s contention, Fernandez does not stand for the proposition that, irrespective of whether a defendant waives his right to prosecution by information, an 16 accusatory instrument containing only non-hearsay allegations of fact must be evaluated under the standards applicable to informations. Indeed, in light of the Court’s holding in Fernandez -- that the fact “[t]hat [the accusatory instrument] included more factual detail than was required by the statute is inconsequential,” id. at 51 -- a court is not required to evaluate an accusatory instrument under the standards applicable to informations simply because the accusatory instrument contains non-hearsay allegations of fact, which are required for informations, but which are not required for misdemeanor complaints. See C.P.L. § 100.40(1)(c), (4). Moreover, although a facially sufficient information must contain non-hearsay factual allegations, see C.P.L. § 100.40(1)(c), there is no requirement that a misdemeanor complaint must contain hearsay factual allegations in order to be facially sufficient. See C.P.L. § 100.40(4); People v. Thomas, 4 N.Y.3d 143, 146 (2005) (“[i]n contrast to a misdemeanor complaint, which may contain hearsay allegations, an information . . . must be supported by nonhearsay allegations” [emphasis added]). Therefore, an accusatory instrument containing only non-hearsay factual allegations may satisfy the facial sufficiency standards applicable to misdemeanor complaints. 17 Accordingly, the accusatory instrument in this case was not required, pursuant to C.P.L. § 100.40(1)(c), to contain non- hearsay factual allegations that “establish, if true,” every element of Obstructing Governmental Administration in the Second Degree and defendant’s commission of that crime. Rather, because defendant waived prosecution by information, the facial sufficiency of that count should be evaluated under the standards that apply to a misdemeanor complaint rather than the standards that apply to an information. B. The Factual Allegations in the Accusatory Instrument Satisfy, with Respect to the Count of Obstructing Governmental Administration in the Second Degree, the Standards of Facial Sufficiency Applicable to a Misdemeanor Complaint. When the accusatory instrument is evaluated under the standards applicable to a misdemeanor complaint, the count of Obstructing Governmental Administration in the Second Degree was facially sufficient, because the factual allegations in the accusatory instrument provided reasonable cause to believe that defendant committed that crime. So long as the factual allegations give the defendant sufficient notice to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense, they should be given “‘a fair and not overly restrictive or technical reading.’” People v. Jackson, 18 18 N.Y.3d 738, 746 (2012) (quoting Kalin, 12 N.Y.3d at 230 [quoting People v. Konieczny, 2 N.Y.3d 569, 575 (2004)]); accord People v. Casey, 95 N.Y.2d 354, 360 (2000). The accusatory instrument charged defendant, in relevant part, with Obstructing Governmental Administration in the Second Degree. The statute defining that offense provides, in relevant part, that a person is guilty of Obstructing Governmental Administration in the Second Degree when he or she “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.” P.L. § 195.05. The factual part of the accusatory instrument alleged, in relevant part, that on or about August 9, 2009, at approximately 11:55 p.m., at a specified street corner in Kings County, defendant slammed the trunk of Police Officer Christopher Deats’s patrol vehicle with an open hand (A6). The accusatory instrument also alleged that defendant prevented the vehicle from moving by standing behind it and prevented Officer Deats from patrolling the neighborhood (A6). These factual allegations provided defendant with notice of the particular offense that he was accused of committing and were sufficient to allow defendant to prepare a defense and to 19 invoke the prohibition against double jeopardy in a potential future prosecution. See Casey, 95 N.Y.2d at 360 (information must provide the accused with “notice sufficient to prepare a defense” and “to prevent a defendant from being tried twice for the same offense”); People v. Hamm, 9 N.Y.2d 5, 11 (1961); People v. Zambounis, 251 N.Y. 94, 96-97 (1929). Furthermore, the factual allegations in the accusatory instrument provided reasonable cause to believe that defendant committed the offense of Obstructing Governmental Administration in the Second Degree. Thus, the count of Obstructing Governmental Administration in the Second Degree was facially sufficient. Nevertheless, defendant claims that the count of Obstructing Governmental Administration in the Second Degree was facially insufficient because, according to defendant, the factual allegations failed to provide reasonable cause to believe that defendant, by means of physical interference, prevented a public servant from performing an official function, and that defendant intended to prevent a public servant from performing an official function (Def. Brief at 7-27). That claim is without merit. First, contrary to defendant’s argument (Def. Brief at 7-8, 21-25), the accusatory instrument was not required to allege that defendant prevented a public servant from performing an official function in order for the count of Obstructing 20 Governmental Administration in the Second Degree to be facially sufficient. Rather, the accusatory instrument was required to allege that defendant either prevented or attempted to prevent a public servant from performing an official function. See P.L. § 195.05; People v. Schmidt, 76 Misc. 2d 976, 978 (Crim. Ct. Bronx Cnty. 1974) (charge of Obstructing Governmental Administration cannot be reduced to an attempt because the statutory language includes acts that are attempts). Second, the factual allegations were sufficient to provide reasonable cause to believe that defendant, by means of physical interference, prevented or attempted to prevent a public servant from performing an official function. The allegations that defendant stood behind Officer Deats’s “radio mounted [sic] patrol vehicle,” and that defendant “prevented said vehicle from moving by standing behind it and preventing [Officer Deats] from patrolling the neighborhood” (A6), established that, because of defendant’s actions, Officer Deats was unable to use his official police vehicle to perform one of his duties -- patrolling the neighborhood. Furthermore, the factual allegations provided reasonable cause to believe that defendant’s actions constituted physical interference. The term “physical interference,” as it is used in P.L. § 195.05, “require[s] neither the use by a defendant of direct physical force against the officer, nor even any direct 21 physical contact between the two.” People v. Ravizee, 146 Misc. 2d 679, 682 (Crim. Ct. N.Y. Cnty. 1990), quoted in People v. Bula, 22 Misc. 3d 1121A, 2009 N.Y. Slip Op. 50210U (Crim. Ct. N.Y. Cnty. Feb. 10, 2009), and in People v. Mitchell, 17 Misc. 3d 1103A, 2007 N.Y. Slip Op. 51805U (Crim. Ct. Kings Cnty. July 30, 2007); see also People v. Romeo, 9 A.D.3d 744, 745 (3d Dep’t 2004) (interference sufficient to establish crime of obstructing governmental administration in the second degree “‘even if there is no physical force involved’” [quoting Willinger v. City of New Rochelle, 212 A.D.2d 526, 527 [2d Dep’t 1995]); People v. Baltes, 75 A.D.3d 656 (3d Dep’t 2010); People v. Covington, 18 A.D.3d 65, 71 (1st Dep’t 2005). “The obvious and well-settled intent of [P.L. § 195.05] is to allow police officers to go about their business without any obstacles put in their way.” People v. Beam, 22 Misc. 3d 306, 310 (Crim. Ct. N.Y. Cnty. 2008). “The Legislature intended and enacted that criminal responsibility [under P.L. § 195.05] should attach to minimal interference set in motion to frustrate police activity.” In re Davan L., 91 N.Y.2d 88, 91 (1997). Thus, a defendant physically interferes with a public servant’s performance of an official function if the defendant situates himself in a manner that prevents the public servant from performing that function. See People v. Hamilton, 3 Misc. 3d 1104A, 2004 N.Y. Slip Op. 50412U (Crim. Ct. N.Y. Cnty. 22 May 14, 2004) (oil-tank trailer operated by defendant was blocking traffic and blocking path of police officer, who was in a police vehicle and responding to a call several blocks away); People v. Barrett, 179 Misc. 2d 261 (Crim. Ct. Bronx Cnty. 1998) (defendant blocked a courthouse magnetometer, preventing others from entering); People v. Salter, 167 Misc. 2d 877 (Dist. Ct. Nassau Cnty. 1996) (defendant locked himself inside his vehicle, preventing police investigation of auto accident). Here, the allegation that defendant “prevented [Officer Deats’s] vehicle from moving by standing behind it and preventing [Officer Deats] from patrolling the neighborhood” (A6) established that, by situating himself behind Officer Deats’s vehicle, defendant physically interfered with the ability of Officer Deats to use his vehicle to patrol the neighborhood. Defendant argues that accusatory instrument did not sufficiently establish that defendant prevented Officer Deats from patrolling the neighborhood because -- according to defendant -- there were no allegations that Officer Deats’s vehicle was unable to move in any direction except the direction blocked by defendant (Def. Brief at 23-24). However, the allegation that defendant “prevented [Officer Deats’s] vehicle from moving by standing behind it and preventing [Officer Deats] from patrolling the neighborhood” (A6) constitutes an allegation that the vehicle was unable to move in any direction except 23 reverse because movement in other directions was obstructed, and that defendant’s position behind the vehicle prevented it from moving entirely. Therefore, contrary to defendant’s argument, the accusatory instrument did not need to allege specifically that the vehicle was unable to move in any direction except the direction blocked by defendant in order to allege sufficiently that defendant prevented Officer Deats from patrolling the neighborhood. See Hamilton, 3 Misc. 3d 1104A, 2004 N.Y. Slip Op. 50412U (accusatory instrument was facially sufficient with respect to charge of Obstructing Governmental Administration in the Second Degree where accusatory instrument alleged that oil- tank trailer operated by defendant was blocking traffic and blocking path of police officer, who was in a police vehicle and responding to a call several blocks away; no allegation that officer was unable to take a different route). Third, the factual allegations were sufficient to provide reasonable cause to believe that defendant intended to prevent a public servant from performing an official function. An intent to prevent a public servant from performing an official function may be inferred from the defendant’s alleged acts and the surrounding circumstances. See People v. Bracey, 41 N.Y.2d 296, 301 (1977) (defendant’s intent may be inferred “from the act itself,” or “from the defendant’s conduct and the surrounding circumstances” [quotation marks and citation omitted]). Here, 24 the allegations that defendant “slammed the trunk of [Officer Deats’s] radio mounted [sic] patrol vehicle with an open hand,” that defendant prevented the vehicle from moving by standing behind it, and that he prevented Officer Deats from patrolling the neighborhood (A6), supported the conclusion that defendant intended to prevent Officer Deats from patrolling the neighborhood. Defendant argues that the allegations failed to establish that defendant intended to prevent Officer Deats from patrolling the neighborhood, because, according to defendant, the allegations fail to demonstrate that defendant knew that his actions interfered with Officer Deats’s ability to patrol (Def. Brief at 17-19). In particular, defendant argues that the accusatory instrument does not allege that anyone communicated to defendant that Officer Deats wanted to move the vehicle and that defendant was preventing the vehicle from moving by standing behind it (Def. Brief at 17-18). However, the accusatory instrument was not required to allege that someone communicated these facts to defendant, because the allegations support the inference that defendant knew that his actions were interfering with Officer Deats’s ability to patrol the neighborhood. The allegation that Officer Deats’s vehicle was a “radio mounted [sic; motor?] patrol vehicle” (A6) established that the vehicle was readily 25 identifiable as an official police vehicle, and therefore supports the inference that defendant knew that, by preventing the vehicle from moving, he was preventing Officer Deats from performing his patrol duties. Moreover, the allegation that Officer Deats’s patrol vehicle was prevented from moving because defendant was standing behind it (A6) supports the conclusion that the vehicle was unable to move in any direction except in the direction where defendant was standing, because movement in other directions was obstructed. Additionally, these allegations support the inference that defendant would have been able to see that the vehicle’s movement in the other directions was obstructed, and therefore defendant knew that he was preventing the vehicle from moving by standing behind it. Furthermore, the allegation that defendant “slammed the trunk of” the vehicle “with an open hand” (A6) supports the inference that, having seen that the vehicle was unable to move in any other direction, defendant made a forceful gesture that emphatically expressed anger or defiance and he stood behind the vehicle for the purpose of preventing the vehicle from moving. Thus, in light of these allegations and the reasonable inferences that can be drawn from them, the accusatory instrument was not required to allege that someone communicated to defendant that, by standing behind the patrol car, he was preventing Officer Deats from moving it. See Covington, 18 26 A.D.3d at 66, 71 (legally sufficient evidence of Obstructing Government Administration in the Second Degree where evidence showed that, as police officers entered a building to execute a warrant, defendant yelled toward the building, “the police are coming”; evidence that specific warning was directed to defendant to avoid interfering with police efforts was unnecessary because there was no “bright-line rule which would preclude criminal liability under Penal Law § 195.05 for lack of such notice”); see also People v. Knight, 30 Misc. 3d 235, 236 (Crim. Ct. N.Y. Cnty. 2010) (count of Obstructing Governmental Administration in the Second Degree facially sufficient where accusatory instrument alleged that, as officer approached defendant and unapprehended other after officer saw them sell marihuana to third person, defendant “yell[ed] in[] substance to the unapprehended other: GO IN THE BUILDING, thereby preventing the arrest of said unapprehended other”); People v. Marte, 30 Misc. 3d 1205A, 2010 N.Y Slip Op. 52305U (Crim. Ct. N.Y. Cnty. Dec. 2, 2010) (count of Obstructing Governmental Administration in the Second Degree facially sufficient where accusatory instrument alleged that defendant approached and looked into car containing two police officers investigating narcotics activity in nearby building and made telephone call in which defendant confirmed that the two men were police officers; noting that, in 27 Knight, defendant “had not been warned off the scene by the police”). Defendant argues that the factual allegations in the accusatory instrument failed to establish that he intended to prevent Officer Deats from moving his patrol car, because, according to defendant, his act of standing behind the police car “could indicate a variety of intents,” and his act of slamming the trunk of the vehicle with an open hand merely indicates that defendant “may have been angry at the police generally” (Def. Brief at 18, 19). That argument is meritless. The factual allegations in an accusatory instrument may be sufficient to satisfy the prima facie case requirement applicable to informations -- and thus necessarily may also be sufficient to satisfy the lesser requirement of reasonable cause applicable to misdemeanor complaints -- even if those allegations would not be legally sufficient to prove guilt beyond a reasonable doubt at trial. People v. Henderson, 92 N.Y.2d 677, 680 (1999); People v. Jennings, 69 N.Y.2d 103, 115 (1986). In reviewing the legal sufficiency of the evidence before a grand jury, a court’s inquiry is limited to determining “‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the Grand Jury could rationally have drawn the guilty inference.’” People v. Bello, 28 92 N.Y.2d 523, 526 (1998) (quoting People v. Deegan, 69 N.Y.2d 976, 979 [1987]). “That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference.” Deegan, 69 N.Y.2d at 979. Similarly, regardless of whether the factual allegations in an accusatory instrument could rationally support an inference that the defendant did not commit the offense charged, the prima facie case requirement applicable to informations -- and the lesser reasonable cause requirement applicable to misdemeanor complaints -- is satisfied so long as the factual allegations also support a rational inference that the defendant did commit the offense charged. See Jackson, 18 N.Y.3d at 747 (sufficiency of factual allegations to provide reasonable cause to believe that defendant committed offense charged is determined “by drawing reasonable inferences from all of the facts set forth in the accusatory instrument”). Here, as argued above (see supra at 23-25), the allegations that defendant slammed the trunk of the vehicle with his open hand, and that he prevented the vehicle from moving by standing behind it, support the rational inference that defendant intended to prevent Officer Deats from moving his patrol car. Because the factual allegations support a rational inference that defendant intended to prevent Officer Deats from moving his patrol car, it is inconsequential that 29 “other, innocent inferences could possibly be drawn from the facts.” See Deegan, 69 N.Y.2d at 979. Defendant relies on the decision in People v. Berdini, 18 Misc. 3d 221 (Crim. Ct. N.Y. Cnty. 2007), in support of his contention that the accusatory instrument is required to allege that a police officer ordered a defendant to do or not to do something in order to demonstrate that the defendant intended to prevent the officer from performing an official function (see Def. Brief at 16-17). That reliance is misplaced. In Berdini, the accusatory instrument, which charged the defendant, in relevant part, with Obstructing Governmental Administration in the Second Degree, stated: Deponent states that deponent observed defendant at the above location exchange United States currency for one small object with an unapprehended individual. Deponent is informed by Officer Kelly Wheeler, . . . that when informant approached defendant and identified herself as a police officer, informant observed defendant put a small object containing a white substance in defendant’s mouth and swallow. 18 Misc. 3d at 222 (ellipsis in original). The court stated that “[t]he case law clearly establishes that, in similar cases as the one at bar, legal sufficiency lies in the allegation that either contraband is involved, or an officer orders defendant to do or refrain from doing something.” Id. at 223-24 (emphasis 30 added). The court held that the count of Obstructing Governmental Administration in the Second Degree was facially insufficient because there were no allegations that either the small object or the white substance was contraband, that the small object exchanged was the same object as the white substance which was consumed, or that the police officer directed the defendant to do, or to abstain from doing, anything with the small object or the white substance. Id. at 224-25. Thus, the decision in Berdini supports the conclusion that if the accusatory instrument in that case had adequately alleged that “contraband was involved,” id. at 224, then the count of Obstructing Governmental Administration in the Second Degree in that case would have been facially sufficient, regardless of whether the accusatory instrument alleged that the police officer had ordered the defendant to do or to refrain from doing something. Consequently, Berdini does not stand for the proposition that an accusatory instrument must allege that a police officer ordered a defendant to do or to refrain from doing something in order to demonstrate that the defendant intended to prevent the officer from performing an official function. Rather, Berdini holds that the factual allegations must demonstrate that the defendant had reason to believe that his actions prevented a police officer from performing an official function. In this case, as previously discussed (see 31 supra at 23-25), the factual allegations support the inference that defendant had the intent to prevent Officer Deats from performing his patrol duties. Consequently, the factual allegations in the accusatory instrument provided reasonable cause to believe that defendant, by means of physical interference, prevented or attempted to prevent a public servant from performing an official function, and that defendant intended to prevent a public servant from performing an official function. Accordingly, in light of defendant’s waiver of the right to prosecution by information, the count of Obstructing Governmental Administration in the Second Degree was facially sufficient. In any event, even if defendant had not waived his right to prosecution by information, the count of Obstructing Governmental Administration in the Second Degree would be facially sufficient because it satisfied the facial sufficiency requirements applicable to an information. To constitute a facially sufficient information, an accusatory instrument must, in addition to satisfying the requirements of a facially sufficient misdemeanor complaint, also set forth “[n]on-hearsay allegations” that “establish, if true, every element of the offense charged and the defendant’s commission thereof.” C.P.L. § 100.40(1)(c); Suber, 19 N.Y.3d at 251. All of the factual allegations in the accusatory instrument were non-hearsay, and, 32 for the reasons stated above (see supra at 17-31), those allegations established, if true, every element of the offense of Obstructing Governmental Administration in the Second Degree and defendant’s commission of that offense, because the allegations established that defendant, by means of physical interference, prevented or attempted to prevent a public servant from performing an official function, and that defendant intended to prevent a public servant from performing an official function. Thus, defendant waived his right to prosecution by information, and the count of the accusatory instrument charging Obstructing Governmental Administration in the Second Degree satisfied the requirements of facial sufficiency of a misdemeanor complaint. In any event, that count of the accusatory instrument satisfied the requirements of facial sufficiency of an information. Accordingly, the order of the Appellate Term and the judgment of conviction should be affirmed. * * * For the reasons stated above, defendant’s challenge to the facial sufficiency of the count of obstructing governmental administration should be rejected and his conviction should be affirmed. However, if defendant were to prevail on his claim, then the appropriate remedy would be a remittal to the Criminal 33 Court for further proceedings on the accusatory instrument, and not, as defendant contends (Def. Brief at 30-31), dismissal of the accusatory instrument. In some cases in which this Court has reversed a conviction for a “relatively minor crime[]” and the defendant had already served his sentence, this Court has ordered a dismissal, even though, in light of the basis for the reversal, the appropriate remedy would ordinarily be a remittal for further proceedings rather than a dismissal. People v. Allen, 39 N.Y.2d 916, 917-18 (1976). However, the remedy of dismissal is “the unusual result” (id. at 918), because, generally, even if the defendant has served his sentence, the People have a legitimate interest in pursuing a prosecution so that the defendant’s conduct will be reflected in a conviction. Here, although defendant has completed his sentence on the conviction of Obstructing Governmental Administration in the Second Degree, if defendant prevails on his claim, then the case should be remitted for further proceedings on the count of Public Lewdness, and for the purpose of allowing the People, if so advised, to file a superseding accusatory instrument that would include counts of obstructing governmental administration 34 and Resisting Arrest based on additional factual allegations.3 See People v. Nuccio, 78 N.Y.2d 102, 105-06 (1991) (after dismissal of information for legal insufficiency, reprosecution for same charges is permitted). The appropriate remedy would be a remittal for further proceedings, because: (1) defendant was charged with offenses arising from two separate incidents -- first, preventing a police officer from moving his patrol car, and then, exposing his penis and masturbating in the presence of other individuals in a police station -- and neither offense was insubstantial; and (2) the Criminal Court concluded that the circumstances of the case were sufficiently serious to warrant, on a guilty plea, a sentence of fifteen days in jail. Under these circumstances, even if the count of obstructing governmental administration were held to be facially insufficient, dismissal of the accusatory instrument would be unwarranted. 3 If this Court holds that the count of Obstructing Governmental Administration in the Second Degree is facially insufficient, then the People would not dispute the facial insufficiency of the counts of Resisting Arrest and Disorderly Conduct, which arise from the same criminal transaction as the obstructing governmental administration count.