PEOPLE v. BROUGHTON (2019)

Defendant is charged with resisting arrest (Penal Law § 205.30 - a class A misdemeanor); obstructing governmental administration in the second degree (Penal Law § 195.05 - a class A misdemeanor); unlawful possession of marijuana (Penal Law § 221.05 - a violation); and, disorderly conduct (Penal Law § 240.20 [1] - a violation). Defendant now moves for an order, pursuant Criminal Procedure Law §§ 170.30 (1) (a), 170.35 (1) (a) and § 100.40 (1), to dismiss the accusatory instrument on the grounds that it is facially insufficient.

For the reasons set forth below, the defendant's motion to dismiss the accusatory instrument on the grounds of facial insufficiency is denied with respect to all charges, except for disorderly conduct which the dismissal thereof this Court grants.

The accusatory instrument reads in pertinent part as follows:

Deponent states that at the above time and place, defendant was instructed to move out of the way of the building entrance so that deponent and his partner could enter the location to investigate a crime in progress.

Deponent further states that after numerous commands, defendant remained at the entrance way of the door, preventing deponent from entering said location, and stating in sum and substance: Y'ALL NEED A WARRANT TO GET IN HERE, NOBODY CALLED 911.

Deponent further states that he is a New York City Police Officer and was dressed in his official police uniform during the aforementioned interation (SIC) with defendant, was performing his official police duties, and that the defendant interfered with his duties.

Deponent further states that upon attempting to arrest defendant for the aforementioned conduct, defendant flailed his arms, shoved officers, and kicked his legs, refusing to be handcuffed.

Deponent further states that, at the above time and place, deponent observed defendant to have on his person, in his front left pants pocket, one (1) clear plastic bag containing a dried green leafy substance with a distinctive odor.

Deponent further states that he is a New York City police officer and based on his training and experience, which includes the recognition of marijuana, a dried green leafy substance with a distinctive odor, and controlled substances and their packaging, the aforementioned substance is alleged and believed to be marijuana.

Defendant argues that the accusatory instrument is facially insufficient with respect to the charge of obstructing governmental administration in the second degree, in that it fails to state that the police officer was intentionally prevented or attempted to be prevented from performance of an official function, by the defendant. In support of this contention, the defendant relies on People v. Williams, 16 Misc. 3d 1109 (A), 2007 WL 2012601 (Crim. Ct. Bronx County 2007), People v. Briggs, 24 Misc. 3d 1217(A), 2009 WL 2022712 (Crim. Ct. N.Y. County 2009), People v. Holmes, 44 Misc. 3d 1212(A), 2014 WL 3583867 (Crim. Ct. N.Y. County 2014), inter alia. Defendant contends that based on the defendant's alleged statement that, “y'all need a warrant to get in here, nobody called 911”, it is inferred that the police did not have a warrant to enter the building and that the was no exigent circumstances that justified a warrantless entry. Based thereon, the defendant asserts that the charge of obstructing governmental administration in the second degree must be dismissed.

The defendant also argues that the charge of disorderly conduct is facially insufficient as the complaint fails to allege that the required elements of “threatening” or “fighting words,” which are necessary to bring the defendant's conduct within the ambit of the statute's language. Thus, the defendant concludes that as neither the charge of obstructing governmental administration in the second degree, nor the charge of disorderly conduct is facially sufficient as the defendant's arrest was not authorized. As such, a requisite element of resisting arrest, namely, an authorized arrest, has not been sustained and these offenses must also be dismissed.

It is the defendant's position, with respect to the charge of unlawful possession of marijuana, that the physical evidence seized was based on a post-arrest search incident to an unlawful arrest and should be dismissed along with all the other aforementioned charges for the reasons stated.

The People argue that the information clearly alleges that the officer was attempting to gain entry into the building for the official function of investigating a crime in progress. The People purport that to read the information beyond the clear language of the instrument is to require an “hyper technical interpretation of the pleading requirements.” People's Affirmation, P. 3. The People request that the defendant's motion to dismiss be denied in its entirety.

DISCUSSION

In order for an information to be facially sufficient, the factual part of the information and/or any supporting depositions must contain nonhearsay allegations that establish “every element of the offense charged and the defendant's commission thereof.” CPL § 100.15 (3); CPL § 100.40 (1)(c).

“ ‘[S]o long as the factual allegations of an information give an accused notice 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. Konieczny, 2 N.Y.3d 569, 575 [780 N.Y.S.2d 546, 813 N.E.2d 626] [2004], quoting People v. Casey, 95 N.Y.2d at 360 [717 N.Y.S.2d 88, 740 N.E.2d 233] ․).” People v. Kalin, 12 N.Y.3d 225, 230, 878 N.Y.S.2d 653, 906 N.E.2d 381 (2009).

“The test is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy (see Kalin, 12 N.Y.3d at 231-232 [878 N.Y.S.2d 653, 906 N.E.2d 381]; see also People v. Casey, 95 N.Y.2d 354, 366 [717 N.Y.S.2d 88, 740 N.E.2d 233] [2000] ).” People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 (2010).

With respect to the charge of obstructing governmental administration in the second degree, this Court finds that the information is facially sufficient. In the progeny of cases cited by the defendant, to wit, Williams, Briggs, and Holmes, et al, none of these cited cases are persuasive authority. This Court declines to follow the rationale in any of the aforementioned cases, which is, in essence, that, absent a factual allegation that the police officer had a warrant or some other constitutionally recognized justification for entering the building, there is no basis for inferring that the officer's entry was justified. To conclude otherwise would engender a serious ambiguity with respect to a police officer's authority to respond in a timely fashion to an asserted “crime in progress” and therefore jeopardize public safety.

Penal Law § 195.05 states 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 a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.

In this Court's view, the information unambiguously states that the officer and his partner repeatedly instructed the defendant to move from in front of the building entrance to permit their entry to the location to investigate a “crime in progress.” The defendant refused numerous commands and chose to remain blocking the entrance to the building allegedly stating, “Y'ALL NEED A WARRANT TO GET IN HERE, NOBODY CALLED 911.

“An essential element of obstructing governmental administration in the second degree is that a public servant was performing an ‘official function’ at the time of the offense (see Penal Law § 195.05; People v. Ballard, 28 Misc. 3d 129 [A], 2010 N.Y. Slip Op. 51221 [U] [2010 WL 2774661] [App. Term, 9th & 10th Jud. Dists. 2010]; People v. Christiansen, 19 Misc. 3d 134 [A], 2008 N.Y. Slip Op. 50693 [U] [2008 WL 905899] [App. Term, 9th & 10th Jud. Dists. 2008]; People v. Cacsere, 185 Misc. 2d 92 [712 N.Y.S.2d 298] [App. Term, 9th & 10th Jud. Dists. 2000] ). The ‘accusatory instrument is sufficient so long as the factual allegations contained delineate what the obstruction and official function consist of. Therefore, ․ whether or not ․ the official function alleged to have been obstructed, was authorized need not be made part of the pleadings’ (People v. Cacsere, 185 Misc. 2d at 93 [712 N.Y.S.2d 298]; see People v. Ballard, 28 Misc. 3d 129[A], 2010 N.Y. Slip Op. 51221 [U]. To require more for pleading purposes would be an unacceptable hyper-technical interpretation of the pleading requirements (see People v. Ballard, 28 Misc. 3d 129[A], 2010 N.Y. Slip Op. 51221 [U] ).” People v. Stewart, 32 Misc. 3d 133(A), 2011 WL 3370576, 2 (App. Term 2nd, 11th & 13th Jud. Dists. 2011), lv denied 18 N.Y.3d 861, 938 N.Y.S.2d 869, 962 N.E.2d 294 (2011).

This Court finds that the instant information has sufficiently alleged the official function, to wit, the investigation of a crime in progress and the defendant's obstruction thereof, and as such need not be dismissed. Id.

Penal Law § 240.20 (1), states that a person is guilty under the statute when, “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior.”

The clear aim of the disorderly conduct statute is to apply it to behavior that carries beyond the concern of individual disputants to a point where there becomes a potential or immediate public problem. “In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny (citations omitted). People v. Munafo, 50 N.Y.2d 326, 331, 428 N.Y.S.2d 924, 406 N.E.2d 780 (1980).

Here, the information alleges that the defendant was instructed on several occasions to move out of the building's entrance by the officer and he remained at the entrance preventing the officer from entering the location. These are factual allegations that set forth that the defendant was acting in a threatening manner. However, based on the factual allegations the defendant's conduct did not pose public ramifications, but were limited between the officer and the defendant. The information is absent any facts that indicate any members of the public were even present.

It must be alleged that the defendant's conduct and/or speech supported the inference that the defendant intended to cause public inconvenience, annoyance or alarm or recklessly create a risk thereof. Based on the factual allegations here, no such inference can drawn. In this case, the defendant's disruptive behavior is directed to the officer. Members of the public are not factually alleged to be present. Without the “public harm” element being established, the charge of disorderly conduct is facially insufficient and must be dismissed.

As for the charge of resisting arrest, Penal Law § 205.30 states: “A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or a peace officer from effecting an authorized arrest of himself or another person.” As the clear language of the statute states, a necessary element of the offense is that there must be an “authorized arrest”. As this Court finds that the criminal court information sufficiently sustained the charge of obstructing of governmental administration in the second degree, it follows that this Court must conclude that the defendant's arrest was authorized. Thus, the charge of resisting arrest is facial sufficient and need not be dismissed.

Lastly, this Court finds that the arrest of the defendant was valid and reasonably concludes that the marijuana was seized incident to a lawful arrest. Therefore, the charge of unlawful possession of marijuana is facially sufficient and need not be dismissed. People v. Wylie, 244 A.D.2d 247, 666 N.Y.S.2d 1 (1st Dept. 1997).

Accordingly, the charges of obstructing governmental administration in the second degree, resisting arrest and unlawful possession of marijuana are sustained as facially sufficient. Thus, defendant's motion to dismiss said charges are denied for the reasons stated.

However, the charge of disorderly conduct (Penal Law § 240.20 [1] ) is dismissed for facial insufficiency.

This opinion constitutes the decision and order of the court.

George A. Grasso, J.