Opinion
2018NY024965
12-18-2018
The PEOPLE of the State of New York v. George MEJIA, Defendant.
Justine Luongo, The Legal Aid Society, 49 Thomas Street, New York, NY 10013, By: Lindsey Rubinstein, Counsel for the Defendant Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013, By: Paul Park, (212)-335-3503, Counsel for the People
Justine Luongo, The Legal Aid Society, 49 Thomas Street, New York, NY 10013, By: Lindsey Rubinstein, Counsel for the Defendant
Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013, By: Paul Park, (212)-335-3503, Counsel for the People
Sandra E. Roper, J.
INTRODUCTION
Defendant moves This Honorable Court to dismiss against defendant Count 3 of Misdemeanor Information, to wit, Penal Law § 195.05 Obstructing Governmental Administration in the Second Degree as facially insufficient pursuant to CPL 170.30. For the reasons set forth below, defendant's motion to dismiss is DENIED.
PROCEDURAL HISTORY
On or about June 2, 2018 defendant was arrested and charged in a felony accusatory instrument with two counts of Assault in the Second Degree ( Penal Law § 120.05 [2 ] and Penal Law § 120.05 [3 ] ), specifically as to a police officer as victim of assault. On August 4, 2018, defendant was arraigned, People served Grand Jury notice and defense served Cross Grand Jury notice. The court set bail at $10,000 bond over $10,000 cash and adjourned to Felony Part on June 8, 2018 for Grand Jury Action.
With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument;
With intent to prevent a peace officer, a police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, public health sanitarian, New York city public health sanitarian, sanitation enforcement agent, New York city sanitation worker, a firefighter, including a firefighter acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such firefighter, an emergency medical service paramedic or emergency medical service technician, or medical or related personnel in a hospital emergency department, a city marshal, a school crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, a traffic enforcement officer, traffic enforcement agent or employee of any entity governed by the public service law in the course of performing an essential service, from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evincing the actor's intent that the animal obstruct the lawful activity of such peace officer, police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, public health sanitarian, New York city public health sanitarian, sanitation enforcement agent, New York city sanitation worker, firefighter, paramedic, technician, city marshal, school crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, traffic enforcement officer, traffic enforcement agent or employee of an entity governed by the public service law, he or she causes physical injury to such peace officer, police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, public health sanitarian, New York city public health sanitarian, sanitation enforcement agent, New York city sanitation worker, firefighter, paramedic, technician or medical or related personnel in a hospital emergency department, city marshal, school crossing guard, traffic enforcement officer, traffic enforcement agent or employee of an entity governed by the public service law;
On June 8, 2018, the People served and filed a Superseding Information (SSI), which court deemed an information and felony complaint was stricken. Defendant was arraigned on the SSI, for the charges of Assault in the Third Degree ( Penal Law § 120.00 [2 ] ), Reckless Endangerment in the Second Degree ( Penal Law § 120.20 ), Obstructing Governmental Administration in the Second Degree ( Penal Law § 195.05 ), and Reckless Driving ( Vehicle and Traffic Law § 1212 ). People served and filed statement notice and served and filed body camera video and Miranda Warnings. Court set Dollar Bail and adjourned to All Purpose Part C on August 2, 2018.
At the appearance of all parties on August 2, 2018, defense served and filed omnibus motion and Dollar Bail was exonerated. People served body camera video and radio run. Court was adjourned to September 4, 2018 for response and decision and to join open case in Part C. At appearances of all parties on September 4, 2018 and October 2, 2018 People did not serve nor file response to omnibus motion and the court granted final adjournment for People's response on November 7, 2018. On November 7, 2018, court granted Dunaway/Huntley/Mapp hearings without People having served and filed response to omnibus motion.
However, on same date Court ordered People to respond by November 27, 2018 to defense's motion served off calendar on October 31, 2018 for dismissal of Count 3 of Misdemeanor Information, to wit, Penal Law § 195.05 Obstructing Governmental Administration in the Second Degree as facially insufficient pursuant to CPL 170.30 and further relief as to This Honorable Court may deem just and proper.
Although untimely, People responded on December 6, 2018.
ALLEGATIONS
Defendant, a 24-year-old male, was arrested under the circumstances stated in the NYPD Court Verification/Arraignment Card:
AT TPO DEFT WAS OBSERVED ON A GAS POWERED ILLEGAL AND UNREGISTERED DIRT BIKE TRAVELLING N/B ON MADISON AVE ON A PUBLIC SIDEWALK AT A HIGH RATE OF SPEED CAUSING PEDESTRIANS TO RUN OUT OF THE WAY. DEFT THEN WAS OBSERVED DISMOUNTING THEDIRT BIKE ON EAST 105 STREET BETWEEN PARK AVENUE AND MADISON AVENUE. WHEN A/O DROVE UP THE BLOCK AND EXITED THE RMP TO STOP THE DEFT, THE DEFT JUMPED BACKON THE DIRTBIKE WHILE RIDING ON THE SIDEWALK ATTEMPTING TO FLEE OFFICERS WHERE HE STRUCK SGT. HO WHO WAS WALKING ON FOOT.
The accusatory instrument deemed an information herein, sworn by the Deponent Police Officer (hereinafter "DPO") sets forth the following:
On or about June 2, 2018 at about 11:10 P.M., at 14 East 105 Street in the County and State of New York, the defendant recklessly caused physical injury to another person; the defendant intentionally prevented and attempted to prevent a public servant from performing an official function by intimidation, physical force and interference and by means of an independently unlawful act; the defendant drove and used a motor vehicle, motorcycle and a vehicle propelled by power other than muscular power and any appliance and accessory thereof in a manner which unreasonably interfered with the free and proper use of the public highway and unreasonably endangered users of the public highway.
The factual basis for the charges are as follows:
I observed the defendant operating an unregistered, gas-powered, motorized dirtbike in violation of the Vehicle and Traffic Law. I observed the defendant look at me and the other officers with me, and then drive onto the sidewalk to get away from us. I observed the defendant driving on the sidewalk for several blocks, causing approximately 15 to 20 pedestrians to have to move out of the way to avoid being hit by the defendant's motorized dirtbike. While attempting to apprehend the defendant for this conduct, I observed the defendant drive the motorized dirtbike into my person, causing swelling and a contusion on my left leg and substantial pain.
FACIAL SUFFICIENCY
This Honorable Court finds that Count 3 of this information is facially sufficient. Defendant's motion to dismiss Count 3 of Misdemeanor Information, to wit, Penal Law § 195.05 Obstructing Governmental Administration in the Second Degree as facially insufficient pursuant to CPL 170.30 is DENIED.
Discussion
An information is facially sufficient when it comports with the requirements as set forth in CPL 100.40[1] :
1. An information, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.
(See People v. Kalin , 12 NY3d 225 [2009] ; see also People v. Dumas , 68 NY2d 729 [1986] ; see also People v. Alejandro , 70 NY2d 133 [1987] ). "Reasonable cause to believe that a person has committed an offense 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 is reasonably likely that such offense was committed and that such person committed the offense" ( CPL 70.10 [2 ] ). The measure of "reasonable cause" is the same as that of the well-established constitutional standard of "probable cause" ( People v. Johnson , 66 NY2d 398, 402, n. 2, 488 [1985] ).
The "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" ( People v. Kalin , 12 NY3d 225, 230 [2009], citing People v. Henderson , 92 NY2d 677, 680 [1999] ). The misdemeanor information need only set forth "non-hearsay allegations, which if true establish reasonable cause to believe that defendant committed every element of offense charged." ( People v. Kalin , 12 NY3d 225, 229 [2009] ; see People v. Henderson , 92 NY2d 677 [1999] ; see also CPL 100.40 ). The factual allegations contained within the Information must be strong enough to support a reasonable belief by a person of ordinary intelligence, judgment and experience that it is more likely or probable than not that the accused defendant did indeed commit the criminal offense being accused of (see People v. Mercado , 68 NY2d 874, 877 [1986] ; see also People v. Carrasquillo , 54 NY2d 248, 254 [1981] ["conduct equally compatible with guilt or innocence will not suffice"] ). Mere conclusory allegations will render the instrument defective (see People v. Dumas , 68 NY2d 729 [1986] ). The court's standard of review for facial sufficiency must accept as true all the factual allegations contained within the information and must consider all reasonable inferences that may be drawn from them (see People v. Jackson , 18 NY3d 738, 741 [2012] ; see also CPL 100.40 [1 ] [c] ). Further, "[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 and technical reading" ( People v. Casey , 95 NY2d 354, 360 [2000] ).
In the instant matter herein, within the four corners of the Information, there are detailed facts or allegations pled with specificity, including date, time and place of occurrence that this defendant obstructed governmental administration (see People v. Dumay , 23 NY3d 518 [2014] ). "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 independently unlawful act" ( Penal Law § 195.05 ). The interference must be "in part at least, physical in nature" ( People v. Case , 42 NY2d 98, 102 [1977] ), but "criminal responsibility should attach to minimal interference set in motion to frustrate police activity" ( Matter of Davan L. , 91 NY2d 88, 91 [1997] ).
Misdemeanor Information herein properly alleges that defendant obstructed DPO's exercise of his official function as an officer of the law by intimidation, by physical force, by interference and by independently unlawful acts. Defendant's original Vehicle and Traffic Law violation of operating the illegal gas-powered dirt bike on a public street, Count 4 ( Vehicle and Traffic Law § 1212, Reckless Driving) was the probable cause for DPO's official stop of defendant establishing the lawfulness of the stop and subsequent arrest (see People v. Greene , 221 AD2d 559 [2nd Dept 1995] ). However, when defendant looked at DPO and the other police officers with him, defendant's physical act of continued violation of Reckless Driving constituted and represented an independently unlawful act element of obstruction. Further, DPO states, defendant drove "onto the sidewalk to get away from us for several blocks, causing approximately 15 to 20 pedestrians to have to move out of the way to avoid being hit by the defendant's motorized dirtbike ," which then constituted and represented another independently unlawful act element of obstruction, to wit, Count 2 ( Penal Law § 120.20, Reckless Endangerment in the Second Degree) by an act of defendant's physical force. With each physical act of linear measure of acceleration of the dirtbike by defendant to evade apprehension of a fleeing suspect, to wit himself, is an act of physical force to frustrate and interfere with the official governmental administration duties of DPO and fellow law enforcement officers to apprehend a fleeing suspect. Moreover, it is an unambiguous unquestionable unequivocal act of intimidation by defendant to "drive the motorized dirtbike into " the "person ", the corpus of DPO, by physical force of defendant as well as an additional independently unlawful act element of obstruction, to wit, Count 1 ( Penal Law § 120.00 [2 ], Assault in the Third Degree) causing injury to DPO. DPO further states that he suffered resulting "swelling and a contusion on my left leg and substantial pain ." All of defendant's actions were done to evade and avoid apprehension by DPO and his fellow officers, which aptly makes out the charge of Obstructing Governmental Administration in the Second Degree (see People v. Dumay , 23 NY3d 518 [2014] )
Misdemeanor Information must allege that defendant's conduct prevented a public servant from performing an "authorized official function" ( People v. Mitchell, 17 Misc 3d 1103(A), NY Slip Op. 51805, *3 [Crim Ct, NY County 2007] [defendant swallowed evidence of crime, ziplock of crack cocaine, as undercover officer in unmarked car approached after observing drug purchase] ). In this instant matter, after apprehension and subsequent arrest, defendant claims that he was unaware that his pursuers were indeed law enforcement officers acting within their authorized official function. This claim by defendant strains credulity pursuant to his actions alleged by non-hearsay statements of first-hand observations by DPO. The information need not construe every conceivable contingency that may negate obstruction. Rather, the Criminal Procedure Law only requires People to show reasonable cause to believe defendant committed the crime charged (see People v. Kalin , 12 NY3d 225, 229 [2009] ; see also People v. Dumas , 68 NY2d 729 [1986] ). Nevertheless, this defendant's contention is a purported defense as a controverted matter of fact to be determined at trial by the trier of fact and not at this pleading stage of the case to determine the sufficiency of the information.
Consistent with his claim that he did not know that pursuers were law enforcement officers acting within their authorized official function, defendant states that he did not nor could not have had the statutory requisite intent to obstruct governmental administration for that reason. Intent may be inferred from defendant's actions themselves and/or the surrounding circumstances (see People v. Dumay , 23 NY3d 518 [2014] ; see also People v. Bracey , 41 NY2d 296 [1977] ; People v. Collins , 178 AD2d 789 [3d Dept. 1991] ; People v. Hawkins , 1 Misc 3d 905[A], 2003 NY Slip Op 51516[U] [Crim Ct, NY County 2003] ). "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct" ( Penal Law § 15.05 [1 ] ). In The Jiminy Cricket Case concerning obstruction of governmental administration, it was held: "[b]ecause 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. Spiegal, 181 Misc 2d 48, 52 [Crim Ct, NY County 1999], quoting People v. Leiner , 1997 NY Misc LEXIS 758, NYLJ, Oct. 15, 1997, at 34, col 5 (App Term, 2d & 11th Jud Dists), lv denied 91 NY2d 894, [1998] ). "The plain meaning of the statute and the accompanying Commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function" ( People v. Joseph , 156 Misc 2d 192 [Crim Ct, Kings County 1992] ). Intent does not have to be proven beyond a reasonable doubt, which is the standard for trial. But rather, within the four corners of the information, intent is sufficiently evinced where the facts or allegations are so specifically stated by first-hand non-hearsay of an observant deponent.
"Defendant asserts that he is a member of ‘Jiminy Cricket,’ one of several organizations and community groups that oppose the City's selling of so-called "vacant lots." He argues that his actions were a protest and, as such, an act of constitutionally protected speech, not an "independent unlawful act" within the meaning of Penal Law § 195.05 (affirmation, at unnumbered 4, para 7). The court notes that the People do not seek to punish defendant for his viewpoint on the community garden issue. Rather, they seek to hold him accountable for his conduct in making that viewpoint known. Nothing alleged in the accusatory instrument pertains to defendant's speech qua speech." (People v. Spiegal, 181 Misc 2d 48, 50-51 [Crim Ct, NY County 1999] ).
"In the case at bar, the accusatory instrument alleges that defendant's actions in releasing live crickets into a room in which an auction was being conducted obstructed and impaired the "administration of law or other governmental function," namely an auction conducted by the City of New York. The People argue that defendant's action was an "independent unlawful act" (response, at 3), in that the release of the crickets "created a public disturbance" and "disrupted and suspended the auction." Defendant has also been charged with disorderly conduct (Penal Law § 240.20 [4 ] ) in this regard. The People cite People v. Offen (supra, 96 Misc 2d, at 151 ) for the proposition that Penal Law § 195.05 was "intended to make criminal conduct designed to interrupt or shut down administrative governmental [functions]." Similarly, People v. Case (42 NY2d 98, 102 [1977] ) gives as one example of conduct prohibited by the statute the engaging in disorderly conduct in the chamber of a legislative body with the intent to obstruct the legislative session. The People analogize defendant's conduct to that discussed in Case " (id. at 50 ).
Herein, DPO and fellow law enforcement officers were in hot pursuit of defendant, who with each centimeter of movement away from governmental authority evinced his intent to obstruct governmental administration. A reasonable person of ordinary intelligence, judgment and experience could infer from the facts alleged within the accusatory instrument that defendant knew full-well that pursuers were in fact law enforcement based upon his unlawful acts after looking at DPO and his fellow officers. It may be inferred that defendant knew his driving of the dirtbike on the public street was ab initio illegal. Therefore, it's for that reason that he sped away so very recklessly. More so telling, the fact that upon looking at DPO and his fellow officers it was then that defendant drove upon the pedestrian sidewalk imperiling innocent bystanders and pedestrians in obvious attempt to evade his apprehension by DPO and fellow officers who were acting within their authority to perform their official function to arrest suspects engaging in illegal criminal conduct, especially where such conduct imperils the innocent public at large. More so egregious and telling of defendant's intent to obstruct governmental administration is the non-hearsay firsthand account by injured DPO as victim, detailing how defendant drove the dirtbike into corpus of DPO causing him bodily injury, contusion, and swelling of his left leg and attendant substantial pain.
For the foregoing reasons, this Court finds the information to be facially sufficient. Motion to dismiss for facial insufficiency is DENIED.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.