Decided December 5, 2005.
Charles J. Hynes, District Attorney, Kings County, by Natalie C. Pagano, Esq., Assistant District Attorney, for the People.
Judith O. Karpatkin, Esq., Office of Steven A. Banks, Esq., For the Defendant.
Defendant is charged with Assault in the Third Degree (PL Sec. 120.00), Obstructing Governmental Administration (PL Sec. 195.05), and Resisting Arrest (PL Sec. 205.30), all Class A misdemeanors, as well as Disorderly Conduct (PL Sec. 240.20), a violation.
By motion dated October 27, 2005, Defendant has moved to dismiss all charges pursuant to CPL Sec. 170.30(1)(a), asserting that the People's complaint is facially insufficient.
Though the Preliminary Statement of Defendant's motion requests the dismissal of "all charges," Defendant only actually presents arguments for the dismissal of the charges of Obstructing Governmental Administration and Resisting Arrest.
In opposition to Defendant's motion, the People filed a response dated November 15, 2005 asserting that all charges are sufficiently plead.
For the reasons stated below, Defendants' motion is granted in part and denied in part.
Pursuant to the Criminal Court Complaint, on August 27, 2005, Defendant was allegedly operating sound equipment at 330 Hudson Walk, County of Kings, City and State of New York pursuant to a permit granted for a block party. The Complaint indicates that the permit stated that "all sound equipment must be shut off at 8:00 PM."
Reportedly, at 10:02 PM, Defendant was reportedly asked to turn the sound equipment off. When the Defendant allegedly refused to do so, Police Officer Antonio Meyers asked the Defendant for "pedigree" information for the purpose of writing the Defendant a summons. Defendant allegedly refused to provide the officer with the requested information, and did state to a crowd of bystanders "don't let them do this to me."
Defendant did then allegedly resist arrest by struggling with the officer, and a Police Officer Mindy Grennan. Officer Grennan were reportedly injured in the struggle with the Defendant, sustaining a broken wrist and substantial pain as a result of the Defendant's actions.
Initially, Defendant was also charged with assaulting a Sgt. Edward Saller, however, this charge was dropped when Officer Grennan's supporting deposition was filed and served.
CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).
Applying these principles to the instant matter, the factual allegations contained in the misdemeanor information before this Court do not support the Obstructing charge that has been brought against this Defendant. Thus, this charge is dismissed. The Assault, Resisting Arrest and Disorderly Conduct charges are all facially sufficient, and the motion to dismiss these three charges is denied.
(A) Obstructing Governmental Administration in the Second Degree
In pertinent part, PL Sec. 195.05 states that a defendant is guilty of Obstructing Governmental Administration in the Second Degree when he "prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference."
Here, the Defendant is alleged to have refused to comply with Police Officer Antonio Meyers request for "pedigree" information, and to have stated to a crowd of bystanders "don't let them do this to me."
In People v. Verastegul, NYLJ, 8/22/05, p. 20 col. 1-2, Judge Sciarrino recently conducted an extensive review of the Obstructing statute, and found that "the legislative history clearly shows that Obstruction of Governmental Administration involves violence or physical interference."
Further, in People v. Case, 42 NY2d 98, 396 NYS2d 841 (1977), a CB radio operator was charged with Obstructing for warning another motorist that a radar speed checkpoint was ahead of him. The Court of Appeals dismissed the charge, stating that mere words do not constitute obstruction. "The interference would have to be, in part at least, physical in nature." 42 NY2d at 102. See, also, People v. Tillman, 184 Misc 2d 20, 706 NYS2d 819 (City Ct., Auburn, 2000); People v. Offen, 96 Misc 2d 147, 408 NYS2d 914 (Crim.Ct., NY Cty, 1978).
The mere failure to provide pedigree information, and asking assistance from a gathered crowd does not constitute "intimidation, physical force or interference." Thus, under the facts alleged herein, the charge of Obstructing Governmental Administration in the Second Degree is facially insufficient, and Defendant's motion to dismiss his charge is hereby granted.
(B) Disorderly Conduct
CPL Sec. 240.20(2) states that a person is guilty of disorderly conduct when, "with intent to cause public inconvenience, annoyance or alarm . . . he makes unreasonable noise."
The Criminal Court complaint alleges that Defendant did continue to operate sound equipment at an "unreasonably loud volume" two hours after the permit "shut off" time of 8:00 PM, even after the Defendant was asked to shut off his equipment.
In People v. Bakolas, 59 NY2d 51, 53, 462 NYS2d 844 (1983), the Court of Appeals found that "unreasonable noise" meant noise of a type or volume that a reasonable person would not tolerate. See, also, Provost v. City of Newburgh, 262 F3d 146, 159 (2d Circ., 2001). Clearly, the operation of sound equipment at 10:00 PM, 2 hours after the permit allowing the operation of said equipment had expired, is per se unreasonable.
Therefore, the allegations described above are clearly sufficient to support the charge of Disorderly Conduct.
(C) Resisting Arrest
Defendant is alleged to have struggled with Officer Meyers, Officer Grennan, and Sgt. Saller as these officers attempted to place the Defendant under arrest.
CPL Sec. 205.30 states that "a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person."
"A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause." People v. Jensen, 86 NY2d 248, 253, 630 NYS2d 989 (1995). In the instant case, the probable cause for the Defendants arrest is clear; Officer Meyers was placing the Defendant under arrest for the above-described disorderly conduct.
In his motion to dismiss, Defendant asserts that he was being placed under arrest solely for Obstructing Governmental Administration. This is incorrect. Though the officer may have believed that the Defendant's conduct constituted Obstructing, said conduct also fit the definition of disorderly conduct/unreasonable noise.
Further, the actions of the Defendant as he was being placed under arrest, that is, struggling with the officers, clearly indicates an intention to resist an arrest based upon probable cause. See, People v. Bauer, 161 Misc 2d 588, 614 NYS2d 871 (City Court, Watertown, 1994) (Resisting arrest statute broadly proscribes resistance by any means; thus, where officer was required to use physical force to overcome defendant's failure to cooperate with normal arrest procedure, defendant was guilty of resisting arrest.)
Thus, the charge of Resisting Arrest is facially sufficient.
(D) Assault in the Third Degree
Under PL Sec. 120.00(2), an individual is guilty of Assault in the Third Degree when "he recklessly causes physical injury to another person."
Defendant herein is accused of having struggled with Officer Meyers, Officer Grennan, and Sgt. Saller as these officers attempted to place the Defendant under arrest, causing Officer Grennan to sustain a fractured wrist, and other injuries.
In People v. Kolinsky, 111 Misc 2d 633, 637-638, 444 NYS2d 845 (Crim.Ct., Queens Cty, 1981), a motorist was found guilty of reckless assault when he accelerated his motorcycle as the officer attempted to grab the motorist, dragging the officer approximately 100 feet. The court held that such conduct was reckless within the meaning of Art. 120.
The Kolinsky court also ruled that a Defendant could not be charged with both Resisting Arrest and Assault of a Police Officer in the same complaint, relying upon the holding in People v. Lett, 67 AD2d 1077, 415 NYS2d 136 (4th Dept., 1979), however, the Appellate Division specifically abrogated the Lett decision in People v. Ranieri, 144 AD2d 1006, 534 NYS2d 287 (4th Dept., 1988). See, also, People v. Roberts, 99 AD2d 761, 471 NYS2d 680 (2nd Dept., 1984).
Here, if the struggles of the Defendant were of sufficient force to cause an officer to fracture her wrist, then such allegations are clearly sufficient to sustain a charge of reckless assault.
Further, though the question of what constitutes "physical injury" within the meaning of PL Sec. 120.00 is largely subjective, and "is generally a question for the trier of fact," See, Matter of Philip A., 49 NY2d 198, 200, 424 NYS2d 48 (1980), "the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial," See, People v. Henderson, 92 NY2d 677, 680, 685 NYS2d 409 (1999).
Here, it is alleged that the Defendant caused Officer Grennan to sustain a fractured wrist. Such an allegation is more than sufficient to support the physical injury requirement for the charge of Assault in the Third Degree.
Therefore, Defendant's motion to dismiss the charges of Disorderly Conduct, Resisting Arrest and Assault in the Third Degree is denied.
All other arguments advanced by Defendant in his motion to dismiss dated October 27, 2005 have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.