PEOPLE v. ALSTON (2005)

The defendant is charged with one count of resisting arrest (PL § 205.30) and one count of obstruction of governmental administration in the second degree (PL § 195.05).   The information alleges that Police Officer Kevin McGimpsey observed the defendant operating a bus on 41st street in Manhattan.   Officer McGimpsey observed the defendant make a left turn at a red light and “try to change lanes in a one-way lane which caused a delay in traffic for other vehicles.” When Officer McGimpsey asked the defendant to turn over his driver's license, registration and proof of insurance the defendant refused.   Officer McGimpsey asked for these items at least five more times and informed the defendant that he would be arrested if he continued to refuse to comply.   As Officer McGimpsey and his fellow officers were placing the defendant under arrest he refused to get off the bus, flailed his arms, twisted his body, and had to be physically removed from the bus.

By Notice of Omnibus Motion dated July 27, 2005, defendant has moved (1) to dismiss the information for facially insufficiency, (2) for a Bill of Particulars and additional discovery, (3) to suppress evidence of defendant's statements, and (4) to preclude cross-examination of defendant as to prior bad acts.

Motion to Dismiss for Facial Insufficiency

 In order to be facially sufficient, an information must contain an accusatory part designating the offense or offenses to be charged (CPL 100.15 [1], [2] ) and a factual part containing facts of an evidentiary nature supporting or tending to support the charges (CPL 100.15[1], [3] ).   The factual allegations, together with any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged (CPL 100.40[1][b], [4][b];  People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ).   In addition, a sufficient information must contain non-hearsay allegations in the factual part and/or in any supporting depositions that, if true, establish every element of the offense and the defendant's commission of the offense (CPL 100.40[1][c];  People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987];  People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 [1979] ).   Conclusory allegations are insufficient (People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ).

 Penal Law § 195.05 provides that “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 ․” To fall within this statute the alleged obstruction of governmental administration must have been accomplished either (1) by intimidation or physical force or interference, or (2) by an independently unlawful act (see People v. Ketter, 76 Misc.2d 698, 699, 351 N.Y.S.2d 579, 581 [Crim. Ct., Bronx County, 1974];  People v. Stumpp, 129 Misc.2d 703, 704, 493 N.Y.S.2d 679, 680 [Suffolk Dist. Ct., 1985];  People v. Longo, 71 Misc.2d 385, 386, 336 N.Y.S.2d 85, 88 [Onondaga County Ct., 1971] ).

 The defendant's mere verbal refusal to give Officer McGimpsey his license, registration and proof of insurance cannot itself be considered intimidation or physical force or interference (see Matter of Davan L., 91 N.Y.2d 88, 91, 666 N.Y.S.2d 1015, 1016, 689 N.E.2d 909 [1997];  People v. Brito, N.Y.L.J., July 6, 2004, at 18, col. 3 [Crim. Ct., New York County];  Ketter, 76 Misc.2d at 700, 351 N.Y.S.2d 579;  Longo, 71 Misc.2d at 390, 336 N.Y.S.2d 85).   Thus, the issue presented here is whether the defendant's refusal to supply his license, registration and insurance card, when Officer McGimpsey requested them, was an independently unlawful act.   The Court holds that it was not.

 In order to commit an independently unlawful act one must violate an existing statute (see Longo, 71 Misc.2d at 390, 336 N.Y.S.2d 85;  People v. Gaissert, 75 Misc.2d 478, 479, 348 N.Y.S.2d 82, 84 [County Ct., Nassau County, 1973] ).   While various provisions of the Vehicle and Traffic Law address a driver's responsibility to provide a valid driver's license, registration and proof of insurance when a police officer requests them, none of these statutes make it a violation or a crime to refuse to supply such documentation (see e.g., VTL §§ 312(1)(b), 319(3), 401(4), and 507(2)).   Rather these provisions are part of a statutory scheme by which a driver who fails to produce the requested document is presumed to be driving without it (see People v. Branigan, 67 N.Y.2d 860, 862, 501 N.Y.S.2d 655, 656, 492 N.E.2d 783 [1986] ).   For example, Vehicle and Traffic Law § 507(2) states “Failure by a licensee to exhibit a license valid for operation under this chapter to any magistrate, motor vehicle license examiner, motor vehicle investigator, peace officer, acting pursuant to his special duties, or police officer shall be presumptive evidence that he is not duly licensed.”

In People v. Bohn, 91 Misc.2d 132, 397 N.Y.S.2d 514 [App. Term 2nd Dept., 1977], the Appellate Term noted that under this statutory scheme failure to provide the required documentation is presumptive evidence of the unlawful acts of driving without an license, registration, or proof of insurance and justifies summary arrest of the motorist.   The Bohn decision implicitly finds that this refusal is not a violation which, in and of itself, justifies a separate independent charge (Id.).   It necessarily follows that refusal to comply with a request for documentation is not an independently unlawful act that amounts to obstruction of governmental administration.   Therefore, the second count of the information (PL § 195.05) is dismissed for facial insufficiency due to the People's failure to make out an allegation that the defendant obstructed governmental administration through means of intimidation, physical force or interference, or an independently unlawful act.

 The defendant's motion to dismiss the resisting arrest count (PL § 205.30) for facial insufficiency is denied.   It is well settled in New York that although it is preferable to issue a summons for a traffic infraction rather than arresting the offender, when the suspect is unable or unwilling to provide identification, making it impossible for a police officer to issue a summons, arrest is warranted (Branigan, 67 N.Y.2d at 862, 501 N.Y.S.2d 655, 492 N.E.2d 783;  People v. Ellis, 62 N.Y.2d 393, 396, 477 N.Y.S.2d 106, 108, 465 N.E.2d 826 [1984];  People v. Copeland, 39 N.Y.2d 986, 387 N.Y.S.2d 234, 355 N.E.2d 288 [1976] ).   In addition, the Supreme Court has confirmed that it is constitutionally permissible to take a defendant into custody after a traffic infraction (Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 [2001] ).   Here the complaint alleges facts sufficient to show that the police were authorized to arrest for a traffic infraction because the defendant refused to provide identification.

Motion for Bill of Particulars and Discovery

Defendant's motion for a Bill of Particulars and additional discovery is denied.   The VDF provided by the People is sufficient.

Motion to Suppress Statements

Defendant's motion to suppress defendant's statements is granted to the extent that a Huntley/Dunaway hearing is ordered.

Sandoval Motion

Defendant's Sandoval motion is referred to the trial court.

To the extent not addressed herein, the remainder of the motions are denied.

This opinion constitutes the decision and order of the Court.

ANTHONY J. FERRARA, J.