Opinion
11-03-2017
The PEOPLE of the State of New York, Respondent, v. Clinton COLLINS, Appellant.
Alan Ross, Esq., for appellant. Kings County District Attorney (Leonard Joblove, Shalom J. Twersky, Arieh Schulman of counsel), for respondent.
Alan Ross, Esq., for appellant.
Kings County District Attorney (Leonard Joblove, Shalom J. Twersky, Arieh Schulman of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander Calabrese, J.), rendered January 10, 2015. The judgment convicted defendant, upon his plea of guilty, of obstructing governmental administration in the second degree. ORDERED that the judgment of conviction is reversed, on the law, defendant's guilty plea is vacated, the count of the accusatory instrument charging defendant with obstructing governmental administration in the second degree is dismissed, the remaining counts of the accusatory instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.
Defendant was charged in an accusatory instrument, executed by a New York City police officer, with petit larceny ( Penal Law § 155.25 ), seven counts of criminal possession of a forged instrument in the third degree ( Penal Law § 170.20 ), obstructing governmental administration in the second degree ( Penal Law § 195.05 ), and unlawful receipt of fare for providing access to transit authority facilities ( 21 NYCRR § 1050.4 [c] ), alleging that, on or about January 9, 2015 at approximately 1:49 p.m. at the subway station located at Nostrand Avenue and Fulton Street in Kings County, the officer had observed defendant deprive the New York City Transit Authority (NYCTA) of a quantity of United States currency by wrongfully taking a sum of currency from an unapprehended individual which would otherwise have been paid to the NYCTA as a lawful fare for that unapprehended individual, in exchange for which defendant had swiped a metrocard through the subway turnstile, thereby allowing the unapprehended individual to enter the transit system beyond the turnstiles. The instrument further alleged that the officer is the custodian of the transit system; that defendant did not have permission or authority to sell fares or to collect, accept or retain currency from individuals entering the NYCTA system; and that, by allowing the unapprehended individual to enter the transit system in exchange for a sum of currency, defendant had intentionally obstructed, impaired and perverted the administration of the governmental function of the NYCTA of operating the transit facilities on a self-sustaining basis. Additionally, the instrument alleged that the officer had recovered seven metrocards from defendant and discovered that they were all bent down the middle.
In the presence of counsel, defendant pleaded guilty to obstructing governmental administration in the second degree, in satisfaction of the entire accusatory instrument, and was sentenced to a one-year conditional discharge and to perform seven days of community service. On appeal, defendant challenges, among other things, the facial sufficiency of the accusatory instrument pertaining to the count of obstructing governmental administration in the second degree, to which he pleaded guilty.
At the outset, we note that the arguments raised concerning the facial sufficiency of the accusatory instrument pertaining to the count of obstructing governmental administration in the second degree in question are jurisdictional (see People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). Thus, defendant's claims were not forfeited upon his plea of guilty (see People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ; People v. Konieczny, 2 N.Y.3d 569, 573, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ) and must be reviewed despite his failure to raise them in the Criminal Court (see Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 ). However, "a purported hearsay defect in an accusatory instrument is nonjurisdictional and, thus, forfeited by a guilty plea" ( People v. Keizer, 100 N.Y.2d 114, 121, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] ). While defendant does not challenge the facial sufficiency of the entire accusatory instrument, we nevertheless must review the facial sufficiency of the only count challenged, to which he pleaded guilty (see People v. Dumay, 23 N.Y.3d 518, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ; People v. Washington, 50 Misc.3d 89, 25 N.Y.S.3d 523 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2015]; People v. Chan, 36 Misc.3d 44, 950 N.Y.S.2d 223 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2012]; but see People v. Lineberger, 46 Misc.3d 152 [A], 2015 N.Y. Slip Op. 50335[U], 2015 WL 1257770 [App.Term, 1st Dept.2015], lv. denied 27 N.Y.3d 1001, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ; People v. Acevedo, 46 Misc.3d 150[A], 2015 N.Y. Slip Op. 50288[U], 2015 WL 1015829 [App.Term, 1st Dept.2015], lv. denied 26 N.Y.3d 1142, 32 N.Y.S.3d 56, 51 N.E.3d 567 [2016] ). As defendant did not waive prosecution by information, the facial sufficiency of the count of the accusatory instrument in question must be reviewed according to the requirements of an information as set forth in CPL 100.40(1) (see CPL 100.10[1] ; 170.65[1], [3]; People v. Hatton, 26 N.Y.3d 364, 368, 23 N.Y.S.3d 113, 44 N.E.3d 188 [2015] ; People v. Kalin, 12 N.Y.3d 225, 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ). Where the information fails to meet these requirements, it is jurisdictionally defective (see Hatton, 26 N.Y.3d at 368, 23 N.Y.S.3d 113, 44 N.E.3d 188 ). While the law does not require that the information contain precise words or phrases most clearly expressing the charge, the crime and the factual basis therefor must be sufficiently alleged (see Konieczny, 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 ). Consequently, while the factual allegations in support thereof "should be given a fair and not overly restrictive or technical reading" ( People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ), they must also suffice to "give an accused notice sufficient to prepare a defense and ... [be] adequately detailed to prevent a defendant from being tried twice for the same offense" ( Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ; see also Konieczny, 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 ).
Pursuant to Penal Law § 195.05 :
"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, or by means of 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 or by means of releasing a dangerous animal under circumstances evincing the actor's intent that the animal obstruct governmental administration."
The legislative history of the statute clearly does not support the application of this law to the selling of metrocard swipes, as alleged herein, since defendant's alleged actions were not "physical in nature" in any way ( People v. Case, 42 N.Y.2d 98, 102, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977] ) nor can they be considered "minimal interference set in motion to frustrate police activity" ( Matter of Davan L., 91 N.Y.2d 88, 91, 666 N.Y.S.2d 1015, 689 N.E.2d 909 [1997] ). Furthermore, although the New York State Legislature promulgated Penal Law § 165.16, entitled "Unauthorized sale of certain transportation services," to adequately charge a defendant with the act of selling swipes of a metrocard, a violation of Penal Law § 165.16 cannot be considered an "independently unlawful act," as contemplated in Penal Law § 195.05, since Penal Law § 165.16 encompasses the same conduct as that which was considered to have obstructed the NYCTA's function. Consequently, the information here was facially insufficient as to the count charging defendant with obstructing governmental administration in the second degree, to which he pleaded guilty (see People v. Griffin, 10 Misc.3d 1057[A], 2005 N.Y. Slip Op. 52006[U], 2005 WL 3369345 [Crim.Ct., Kings County 2005] ; People v. Walters, 9 Misc.3d 1121 [A], 2005 N.Y. Slip Op. 51720[U], 2005 WL 2764235 [Crim.Ct., Kings County 2005] ; People v. Verastegui, 8 Misc.3d 1026[A], 2005 N.Y. Slip Op. 51298 [U], 2005 WL 1962266 [Crim.Ct., Kings County 2005] ; People v. Zayas, 8 Misc.3d 879, 797 N.Y.S.2d 897 [Crim.Ct., Kings County 2005] ; but see People v. Dixson, 9 Misc.3d 358, 798 N.Y.S.2d 659 [Crim.Ct., Kings County 2005] ). Thus, the count of the accusatory instrument charging defendant with obstructing governmental administration in the second degree must be dismissed. In light of the foregoing, this court need not reach the merits of defendant's argument that the plea allocution was insufficient.
Penal Law § 165.16(1) provides the following:
"A person is guilty of unauthorized sale of certain transportation services when, with intent to avoid payment by another person to the metropolitan transportation authority, New York city transit authority or a subsidiary or affiliate of either such authority of the lawful charge for transportation services on a railroad, subway, bus or mass transit service operated by either such authority or a subsidiary or affiliate thereof, he or she, in exchange for value, sells access to such transportation services to such person, without authorization, through the use of an unlimited farecard or doctored farecard."
However, in view of the numerous counts set forth in the accusatory instrument and defendant's extensive criminal history, we decline to dismiss the remaining counts in the accusatory instrument in the interest of justice, since it cannot be said that no penological purpose would be served by reinstating the proceedings (see People v. Allen, 39 N.Y.2d 916, 917–918, 386 N.Y.S.2d 404, 352 N.E.2d 591 [1976] ; Washington, 50 Misc.3d at 93, 25 N.Y.S.3d 523 ). Thus, the remainder of the accusatory instrument is reinstated to its prepleading status (see CPL 470.55[2] ).
Accordingly, the judgment of conviction is reversed, defendant's guilty plea is vacated, the count of the accusatory instrument charging defendant with obstructing governmental administration in the second degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.