Opinion
2016- 2041 N CR
04-11-2019
The PEOPLE of the State of New York, Respondent, v. Shahidah HAGANS, Appellant.
Nassau County Legal Aid Society (Tammy Feman and Gianpaolo Ciocco of counsel), for appellant. Nassau County District Attorney (Andrea M. DiGregorio, Brian Witthuhn, Laurie Gibbons and Barbara Kornblau of counsel), for respondent.
Nassau County Legal Aid Society (Tammy Feman and Gianpaolo Ciocco of counsel), for appellant.
Nassau County District Attorney (Andrea M. DiGregorio, Brian Witthuhn, Laurie Gibbons and Barbara Kornblau of counsel), for respondent.
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fees and surcharge, if paid, are remitted.
On October 6, 2014, defendant was arraigned on two separate accusatory instruments charging her with criminal mischief in the fourth degree ( Penal Law § 145.00 [4] ) and resisting arrest ( Penal Law § 205.30 ), respectively. The instrument charging criminal mischief in the fourth degree was dismissed prior to trial. The instrument charging resisting arrest states, in part, as follows:
"Shahidah Hagans, while being placed under arrest for Criminal Mischief, did refuse to get into the back of the police car, did refuse to allow your deponent to close the door of the car by keeping her legs outside of the car, and did kick your deponent in his arms and chest to stop him from putting the defendant into the car. The defendant stated to your deponent ‘Fuck you I'm not getting in the car.’ The Defendant had to be physically placed into the car for transport. Once inside of the car, the defendant proceeded to repeatedly kick the door and seats of the car."
Following a jury trial, defendant was convicted of resisting arrest.
On appeal, defendant contends, among other things, that the information charging her with resisting arrest is jurisdictionally defective because it contains no factual allegations that the arrest was authorized. In response, the People concede that the information is jurisdictionally defective and state that they did not file a supporting deposition in connection therewith.
It is well settled that in order to be facially sufficient, the factual portion of an information charging resisting arrest must set forth allegations sufficient to establish, if true, that the arrest was lawful in that it was "premised on probable cause" ( People v. Jensen , 86 NY2d 248, 253 [1995] ; see also People v. Sumter , 151 AD3d 556, 557 [2017] ; People v. Cuthbert , 56 Misc 3d 140[A], 2017 NY Slip Op 51095[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ). The information at bar contains no factual allegations which establish, if true (see CPL 100.40 [1] [c] ; 100.15 [3] ), that defendant's arrest for criminal mischief was authorized (see People v. Jensen , 86 NY2d at 253 ; People v. Sumter , 151 AD3d at 557 ; People v. Cuthbert , 56 Misc 3d 140[A], 2017 NY Slip Op 51095[U], *2). The fact that the information states that the arrest was made for criminal mischief, without more, does not cure this defect (see People v. Davis , 31 Misc 3d 142[A], 2011 NY Slip Op 50844[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011] ). We note that even if the dismissed separate accusatory instrument charging defendant with criminal mischief sufficiently set forth factual allegations establishing the lawfulness of the arrest for criminal mischief, the sufficiency of the information charging resisting arrest is determined based only on the allegations set forth "within the four corners of the instrument itself or in annexed supporting depositions" ( People v. Thomas , 4 NY3d 143, 146 [2005] ).
We pass on no other issue.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.