Opinion
2015BX045943
03-31-2016
The People of the State of New York, v. Anthony Cross, Defendant.
The People — Darcel D. Clark, District Attorney, Bronx County by Christine McGrath, Assistant District Attorney Defendant — The Bronx Defenders by Abigail Parr
The People — Darcel D. Clark, District Attorney, Bronx County by Christine McGrath, Assistant District Attorney Defendant — The Bronx Defenders by Abigail Parr Armando Montano, J.
Defendant is charged with Assault in the Third Degree (PL § 120.00[2]), Resisting Arrest (PL § 205.30), Disorderly Conduct (PL § 240.20[5]), and Harassment in the Second Degree (PL § 240.26[1]).
Defendant moves for an order 1) dismissing counts two, three, and four of the superseding information as facially insufficient; 2) suppressing any and all statements taken from defendant for which the People served proper notice pursuant to CPL § 710.30, or in the alternative, granting a hearing for findings of fact and conclusions of law (Huntley/Dunaway); 3) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts; and 4) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the superseding information, sworn to by PO Robert Lyon, read as follows:
Deponent states that, [on or about September 26, 2015 at approximately 2:20 PM at inside at Northeast Corner of Allerton Avenue and White Plains Road, County of the Bronx, State of New York], the number No.2 or #5 subway line, a Metro Transit Authority subway station, deponent observed the defendant moving between and standing directly in front of the turnstiles for approximately five (5) minutes. Deponent further states that defendant approached multiple passengers, asking said passengers for fare swipes and entry into the subway station. Deponent further states that he observed defendant obstructing pedestrian traffic in that defendant was standing directly in front of said turnstiles, causing multiple passengers to walk around defendant to use adjacent turnstiles to exit and enter the subway station.
Deponent further states that upon attempting to place defendant under arrest for defendant's aforementioned conduct, defendant flailed his arms and twisted his body, refusing to be handcuffed.
Deponent further states that defendant stated in sum and substance FUCK YOU PIG.
Deponent further states that after defendant was placed in handcuffs, defendant kicked his legs and twisted his body, refusing to be placed in the transport van. Deponent further states that when deponent attempted to place defendant in the transport van, defendant repeatedly kicked his legs, striking deponent in the right eye with his leg. Deponent further states that he suffered bruising, swelling, and substantial pain to his right eye as a result of the defendant's aforementioned conduct.
Deponent further states that as a result of defendant's aforementioned conduct, he experienced annoyance, alarm, and feared for his physical safety.
Motion to Dismiss
Defendant argues that counts two, three, and four, PL §§ 205.30, 240.20(5), and 240.26(1), respectively, must be dismissed because the factual allegations are insufficient to support the offenses charged.
Defendant asserts that the charge of PL § 240.20(5) is facially insufficient in that the superseding information fails to adequately allege that he caused more than a mere inconvenience or that he acted with the required intent. Defendant notes that courts have consistently found that a defendant's conduct which caused pedestrians or motorists to travel around the defendant or slow down behind the defendant was insufficient to establish the charge of Disorderly Conduct. Similar to People v. Jones, 9 NY3d 259 (2007), defendant contends that the superseding information describes nothing more than him standing in front of a turnstile and pedestrians having to use adjacent turnstiles to enter and exit the subway system. In addition, defendant avers that the superseding information fails to establish that he intentionally caused public inconvenience or recklessly created the risk thereof. At best, defendant contends that he inadvertently caused a minor interference to pedestrian traffic.
With respect to the charge of PL § 205.30, defendant notes that the accusatory instrument must demonstrate that he prevented a police officer from effectuating a lawful arrest, premised upon probable cause. Since the underlying charge of PL § 240.26(5) is facially insufficient, defendant submits that the superseding information fails to demonstrate that he engaged in any conduct which would have given rise to an authorized arrest. Therefore, defendant argues that the charge of PL § 205.30 must be dismissed.
Citing People v. Peacock, 68 NY2d 675 (1986) and People v. Traber, 35 Misc 3d 149(A) (App Term, 2d, 11th & 13th Jud Dists 2012), defendant avers that the charge of PL § 240.26(1) cannot stand because the deponent officer's conduct was unauthorized. Moreover, defendant asserts that the intent element of harassment is lacking where the initial police conduct was unauthorized. Rather than possessing an intent to harass or annoy the deponent officer, defendant maintains that he acted with the intent to resist an unauthorized arrest. In opposition, the People argue that the superseding information is facially sufficient in that it provides 1) adequately detailed facts of an evidentiary nature to support each and every element of the offenses charged and 2) suitable notice to defendant to prepare a defense to the offenses charged.
The People assert that defendant's reliance on Jones is misplaced. Unlike Jones, where the defendant was only observed to be standing in the middle of the sidewalk causing pedestrians to walk around him, the People argue that defendant did more than simply stand on the sidewalk inconveniencing pedestrians. Instead, defendant stood between and in front of turnstiles at a subway station, causing multiple passengers to walk around him to use different turnstiles. As to the element of intent, the People assert that defendant's intent may be inferred from the "natural and necessary and probable consequences" of his actions, namely, the fact that defendant deliberately approached passengers asking for fare swipes as well as his actions of standing in between and in front of the turnstiles for five minutes. Furthermore, the People argue that defendant's actions did cause a public inconvenience as multiple passengers were forced to walk around him to use other turnstiles.
With respect to the Resisting Arrest charge, the People contend that the determination as to whether an arrest was authorized is left to the trier of fact and therefore, should not be addressed in the instant motion. Nonetheless, the People maintain that the deponent officer had the requisite probable cause and authority to arrest defendant for Disorderly Conduct. Additionally, the People aver that defendant's intentional actions of flailing his arms and twisting his body, and refusing to be handcuffed amply alleges the charge of Resisting Arrest. Lastly, the People maintain that the Harassment charge is facially sufficient in that the superseding information contains specific facts and details which demonstrate that defendant acted with the intent to harass, annoy or alarm the deponent officer when he repeatedly and deliberately kicked his legs and struck the deponent officer in the right eye. In contrast to Traber, the case relied upon by defendant, the People argue that defendant's arrest was based upon probable cause and defendant was not grabbed from behind without warning. Rather, the People point out that defendant was already in handcuffs when he began kicking his feet repeatedly. Based upon a fair reading of the superseding information, the People submit that the elements of PL § 240.26(1) have been adequately pled.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "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." CPL § 70.10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10 (App Term, 2d Dept. 2005). As such, "[s]o long as the factual allegations of an information give an accused notice sufficient 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. Casey, 95 NY2d 354, 360 (2000). Disorderly Conduct (PL § 240.20[5])
Penal Law § 240.20(5) provides that "[a] person is guilty of disorderly conduct when, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he obstructs vehicular or pedestrian traffic." "A person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct." PL § 15.05(1). "A person acts recklessly with respect to a result when he is aware of and consciously disregards a substantial or unjustifiable risk that such result will occur ." PL 15.05(3). "Because intent' .cannot be the subject of a nonhearsay evidentiary allegation, it is necessary only that there be alleged evidentiary facts from which intent may be inferred." People v. Spiegel, 181 Misc 2d 48, 52 (Crim Ct, NY County 1999) quoting People v. Leiner, NYLJ, Oct. 15, 1997, at 34, col 5 (App Term, 2d & 11th Jud Dists) lv denied 91 NY2d 894 (1998). Intent can be inferred from the defendant's conduct and/or the surrounding circumstances. See, People v. Bracey, 41 NY2d 296 (1977); People v. Collins, 178 AD2d 789 (3d Dept. 1991); People v. Hawkins, 1 Misc 3d 905(A) (Crim Ct, NY County 2003). "[C]ritical to a charge of disorderly conduct is a finding that [a] defendant's disruptive behavior [was] of a public rather than an individual dimension, which requires proof of an intent to threaten public safety, peace or order (or the reckless creation of such a risk)." People v. Baker, 20 NY3d 354, 359 (2013). Therefore, "a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem.'" People v. Weaver, 16 NY3d 123, 128 (2011), quoting People v. Munafo, 50 NY2d 326, 331 (1980). When determining whether an act satisfies the public harm element, the court must consider "the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance, and, if so, the nature and number of those attracted; and any other relevant circumstances." Weaver, 16 NY3d at 128.
A finding of guilt under this section requires a showing that a defendant's conduct caused "more than a temporary inconvenience." The defendant's conduct must create a serious interference with vehicular or pedestrian traffic. People v. Pearl, 66 Misc 2d 502, 502-503 (App Term, 1st Dept. 1971); see also, People v. Bezjak, 11 Misc 3d 424 (Crim Ct, NY County 2006).
This court finds that the charge of PL § 240.20(5) has not been adequately pled and therefore, the Disorderly Conduct charge must be dismissed. This court agrees with defendant that at best, the information only alleges that defendant caused a mere inconvenience to pedestrians. In Jones, 9 NY3d 259 the defendant was charged with PL § 240.20(5) for standing on a public sidewalk with a number of other individuals. Due to their conduct, numerous pedestrians had to walk around the defendant. When directed to the leave the area by the arresting officer, the defendant refused to do so. Thereafter, as the arresting officer attempted to stop the defendant, he fled the scene. In finding the factual allegations to be facially insufficient, the Court of Appeals held as follows:
Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 A.M. had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." The conduct sought to be deterred under the statute is "considerably more serious than the apparently innocent" conduct of defendant here. Something more than a mere inconvenience of pedestrians is required to support the charge. Otherwise, any person who happens to stop on a sidewalk—whether to greet another, to seek directions or simply to regain one's bearings—would be subject to prosecutions under this statute. Jones at 262-263 (internal citations omitted).
Taking into account the sheer number of passengers who utilize the New York City Subway on a daily basis , it is inevitable that at some point, a passenger entering or exiting the subway system will be stopped momentarily by others for a variety of reasons. For instance, a passenger may need to walk around someone who is walking at much slower pace. A passenger may be forced to use an adjacent turnstile because the passenger directly in front of them is fumbling with their MetroCard. More often than not, the realities of living in this city require pedestrians to maneuver around various obstacles to reach their intended destination.
According to the Metropolitan Transportation Authority, in 2014, on an average Saturday, 3,233,114 passengers used the subway system. mta.info, Facts and Figures, http://web.mta.info/nyct/facts/ridership/index.htm#atGlance_s [accessed Mar. 22, 2016].
Here, the superseding information alleges that for five minutes, defendant was observed walking back and forth and standing directly in front of the turnstiles at the subway station while asking passengers for fare swipes. As a result of defendant's actions, multiple passengers had to walk around him to use adjacent turnstiles. However, there are no allegations indicating that defendant followed the passengers and repeatedly asked them for fare swipes or that defendant stepped in front of an adjacent turnstile to block a passenger's way when that passenger moved to use that turnstile. It cannot be said that having to use an adjacent turnstile is anything more than a temporary inconvenience. See, e.g., People v. Carcel, 3 NY2d 327 (1957); People v. Nixon, 248 NY 182 (1928); People v. Pesola, 37 Misc 3d 569 (Crim Ct, NY County 2012).
As to the element of defendant possessing the requisite intent or recklessness, the following four factors should be considered by the court: "(1) the extent to which defendant's conduct annoyed others; (2) whether defendant persisted in the conduct after warnings by other or the police; (3) whether defendant's conduct created at least a risk that disorder might result; and (4) whether defendant's conduct occurred in a public place." People v. Barrett, 13 Misc 3d 929, 944-945 (Crim Ct, NY County 2006), quoting People v. Maher, 137 Misc 2d 462, 168 (Crim Ct, NY County 1987). Only the last factor has been adequately alleged since defendant's conduct occurred in a public place . The superseding information is devoid of any other facts from which to infer that defendant acted with the intent to cause public inconvenience, annoyance or alarm or that he disregarded the substantial risk that his actions would cause such a result.
The term "public place" is defined as "a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence." PL § 240.00. --------
Resisting Arrest
"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." PL § 205.30. "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 (1995). If the arrest is not authorized, the predicate for the resisting arrest charge falls, rendering the resisting arrest charge invalid." Matter of Charles M., 143 AD2d 96, 96 (2d Dept. 1988); see also, Peacock, 68 NY2d 675. Contrary to the People's assertions, "a pleading charging a defendant with resisting arrest is facially sufficient only where facts in the pleading itself allow the Court to independently determine that reasonable cause existed for the arrest which the defendant is accused of resisting." People v. Goshorn, 35 Misc 3d 1244(A), *4 (Sup Ct, Bronx County 2012).
The superseding information specifically notes that the deponent officer attempted to place defendant under arrest for "defendant's aforementioned conduct", i.e., Disorderly Conduct. As discussed above, since the superseding information fails to allege sufficient facts to support the underlying charge of Disorderly Conduct, those facts are insufficient to establish that defendant's arrest based upon this charge was authorized.
"This does not end the inquiry, however. An information charging resisting arrest need not actually charge the underlying offense, so long as the accusatory instrument contains nonhearsay allegations establishing that the arresting officer had probable cause to believe that some offense was committed." People v. Square, 20 Misc 3d 1126(A), *2 (Crim Ct, NY County 2008); see also, People v. Richardson, 30 Misc 3d 1204(A) (Crim Ct, NY County 2010). This court finds that the superseding information fails to adequately allege facts supporting any other offense for which defendant may have been arrested. As such, the superseding information fails to establish a prima facie case of PL § 205.30.
Harassment in the Second Degree
A person is guilty of harassment in the second degree "when, with intent to harass, annoy or alarm another person[,] [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." The required intent to establish a violation of PL § 240.26(1), can be inferred from the defendant's conduct and/or the surrounding circumstances. See, People v. Bracey, 41 NY2d 296 (1977); People v. Collins, 178 AD2d 789 (3d Dept. 1991); People v. Strong, 179 Misc 2d 809 (App Term, 2d Dept. 1999); People v. Hawkins, 1 Misc 3d 905(A) (Crim Ct, NY County 2003).
This court finds that defendant's reliance on Peacock and Traber is misplaced for two reasons. First, both cases involve the sufficiency of evidence at trial rather than the adequacy of factual allegations at the pleading stage. And second, in both cases, each defendant's actions of either striking or struggling with the arresting officer occurred while the arresting officer were attempting to place the defendant under arrest.
In contrast to Peacock and Traber, in the case at bar, defendant was already in handcuffs and inside the transport van when he repeatedly kicked his legs and struck the deponent officer in the right eye. Normal arrest procedure "involves a series of steps which include advising the person the reason for arrest, a pat-down for weapons, handcuffing the defendant and escorting the defendant to the police car to be transported." People v. Bauer, 161 Misc 2d 588, 596 (Watertown City Ct, Jefferson County 1994). An arrest is complete when a defendant is taken into custody (People v. Hasenflue, 169 Misc 2d 766 [Sup Ct, Ulster County 1996]) and "[e]vents that occur after the arrest are not part of the arrest itself." People v. Elliott, 41 Misc 3d 1228(A), *5 (Crim Ct, NY County 2013). Therefore, there is a distinction between defendant's actions of flailing his arms and twisting his body while the deponent officer was attempting arrest him versus defendant's actions of kicking his legs after he was already placed under arrest in the transport van. Once defendant's arrest was complete, his actions of kicking the deponent officer in the eye constituted a separate offense. Additionally, this court can reasonably infer from defendant's deliberate and repeated actions of kicking his legs that defendant intended to harass, annoy, or alarm the deponent officer. The superseding information adequately alleges each and every element of PL § 240.26(1).
Motion to Suppress Statement Evidence
Defendant moves to suppress the statements he allegedly made because such evidence was illegally obtained. Defendant argues that 1) the statements were involuntary within the meaning of CPL § 60.45; 2) he was not advised of his Miranda rights; and 3) the statements are the tainted fruit of an unlawful arrest. In the alternative, defendant requests a Huntley/Dunaway hearing in order to determine whether the statements should be suppressed.
Although the People consent to a Huntley hearing solely to determine the voluntariness of defendant's statements, they oppose his request for a Dunaway hearing as defendant has failed to set forth sufficient allegations in support of suppression. The People assert that defendant has failed to raise any issues of fact related to probable cause that must be resolved at a hearing. A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b). "[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information." People v. Mendoza, 82 NY2d 415, 426 (1993).
However, even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:
The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient .If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.
This court finds that defendant's moving papers are "minimally sufficient" to warrant a hearing on the issue of suppression. See, People v. Harris, 160 AD2d 515, 515 (1st Dept. 1990). "When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause." People v. Chaney, 253 AD2d 562, 564 (3d Dept. 1998). As such, defendant's motion to suppress statement evidence is granted to the extent that a Huntley/Dunaway hearing shall be held to determine the admissibility of such evidence.
Prior Convictions and/or Bad Acts
Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge.
Future Motions
Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss counts two, three, and four, PL §§ 205.30, 240.20(5), and 240.26(1), respectively, is granted to the extent that counts two and three are hereby dismissed as facially insufficient. The People are granted leave to move to amend or otherwise cure the defects in the information consistent with CPL §§ 30.30 and 170.30. Defendant's motion to suppress statement evidence is granted to the extent that a Huntley/Dunaway hearing shall be held. Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge. Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3).
This constitutes the decision and order of this court. Dated:March 31, 2016
Bronx, New York
_______________________________ Hon. Armando Montano