Opinion
2011KN007585 718-250-3203718-243-6248
07-20-2011
The People of the State of New York v. Aneb Senkitael, Defendant.
For the People: ADA Paul Mysliwiec King's County District Attorney's Office. For the Defendant: Brian D. Crow, Esq. The Legal Aid Society .
For the People: ADA Paul Mysliwiec King's County District Attorney's Office.
For the Defendant: Brian D. Crow, Esq. The Legal Aid Society .
George A. Grasso, J.
Defendant is charged with obedience to police officers and flagpersons (Vehicle and Trafffic Law [VTL] § 1102 - a traffic infraction); equipment (VTL § 375 [2] [a] [1] - a traffic infraction) ; obstructing governmental administration in the second degree (Penal Law § 195.05 - a class A misdemeanor); and, unlawful fleeing a police officer in a motor vehicle in the third degree Penal Law § 270.25 - a class A misdemeanor). Defendant now moves, pursuant to CPL 100.40 (1), 170.30 (1) (a) and 170.35 (1) (a), for an order dismissing the accusatory instrument for facial insufficiency .
In the accusatory instrument, the People refer to the charge under VTL § 375 (2) (a) (1) as being titled "improper or no headlights". This statute appears under VTL § 375 which bears the title "Equipment".
Defendant asserts in his moving papers that on April 20, 2011, after discussion with the People, the assigned assistant district attorney "agreed to dismiss that count [Penal Law § 270.25] on the next adjourn date. There is no indication that this count was dismissed and the People do not address the agreement to dismiss this charge in their response.
Defendant moves to dismiss the accusatory instrument, yet, defendant only sets forth an argument to dismiss the charge of obstructing governmental administration in the second degree. This court will limit its consideration to the count that defendant sets forth its argument to dismiss, to wit, obstructing governmental administration in the second degree.
Defendant's motion to dismiss the charge of obstructing governmental administration in the second degree is denied for the following reasons.
The accusatory instrument reads in pertinent part as follows:
Deponent states that, at the above time and place, deponent observed defendant driving a 1996 Green Mazda MVP Suburban Florida License Plate Number H668AX with one headlight extinguished.
Deponent further states that deponent in full uniform and driving a marked RMP put on deponent's lights and sirens to indicate to defendant to pull the vehicle over and that the defendant failed to comply, and continued driving in excess of twenty five miles an hour requiring the deponent to give chase for approximately three blocks.
Deponent further states that upon approach deponent ordered defendant to lower defendant's window on defendant's driver side of the vehicle and that defendant refused to do so.
Deponent further states that deponent's supervisor Sgt. Davis a member of the New York City Police Department 88th Command Shield Number 867 arrived on scene and ordered the defendant to lower said window and defendant refused.
Deponent further states Lt. Faizon a member of the New York City Police Department 88th Command arrived on scene instructing defendant to lower the window, defendant refused requiring Lt. Faizon to break defendant's window.
Deponent further states that deponent ordered defendant to step out of defendant's vehicle and defendant requiring deponent and deponent's parter [sic] Police Officer Morrison Shield Number 13078 a member of the New York City Police Department to pull defendant from defendant's vehicle.
In reliance on People v Case, 42 NY2d 98, 102 (1977), defendant argues that the Court of Appeals has held that to satisfy the elements of an obstructing charge the action of defendant must be "in part, at least, physical in nature." Defendant asserts that his non action was tantamount to "passive resistance which constitutes neither intimidation, physical force or interference. Defendant avers that his refusal to cooperate with police does not constitute an "independent unlawful act." Defendant cites People v Offen, 96 Misc 2d 147 (Crim Ct NY County) as standing for the propositions that neither ignoring a police officer's request for identification or refusing to open a door for police officers who wish to make an arrest are crimes. It is defendant's positon that his passive refusal to roll down the window did not constitute an independently unlawful act, and as such, the elements of obstructing governmental administration in the second degree have not been satisfied to sustain the charge.
The People contend that the police officers were investigating an alleged headlight violation of the car that defendant was driving. The People assert that the defendant intentionally refused to pull over his vehicle while being chased for three blocks by a marked patrol car with lights and sirens. The People submit that when the defendant's vehicle was stopped, he refused to speak with uniformed police officers who were investigating defendant's driving without a headlight. The People aver that all that happened on the scene, commencing with defendant refusing to pull his vehicle over up to his arrest, cannot be characterized as passive conduct. The People argue that this is a case of "inappropriate or disruptive conduct at the scene of the performance of an official function and therefore violates Penal Law § 195.05." People's affirmation.
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 NY3d 569, 575 ..., [2004], quoting People v Casey, 95 NY2d at 360, ...)." People v Kalin, 12 NY2d 225, 230 (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 NY3d at 231-232; see also People v Casey, 95 NY2d 354, 366 [2000])." People v Dreyden, 15 NY3d 100, 103 (2010).
Penal Law § 195.05, obstructing governmental administration in the second degree, reads in pertinent part as follows:
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... .
In this court's view, the People's argument, that the totality of defendant's conduct constituted "inappropriate and disruptive" conduct that sustains a charge of obstructing governmental administration in the second degree, is viable.
Based on the facts asserted in the accusatory instrument, the elements of the offense are sufficiently set forth. It is alleged therein that defendant was chased by uniformed police officers in a marked patrol car with lights and sirens for three blocks before defendant's car stopped. Thereafter, deponent Police Officer Jerry Thompson called deponent's supervisor, Sgt. Davis and Lt. Faizon of the 88th Command to the scene in an effort to have the defendant roll down his car window. Repeated directives were given to the defendant to lower the window. Ultimately, it is alleged that Lt. Faizon broke defendant's window.
In People v Dolan, 172 AD2d 68 (3rd Dept 1991), appeal denied, 79 NY2d 946 (1992), defendant was charged with obstructing governmental administration in the second degree, which involved the intentional disruption of controlled drug purchases. Defendant had personally appeared at the scene of an undercover drug purchase in progress in uniform. Additionally, defendant dispatched two marked police cars containing officers to the same scene. The Court disagreed with defendant's contention that he had not obstructed governmental administration since there was no proof that he sent the marked police cars or he used intimidation or physical force. Notwithstanding defendant's argument, the Appellate Division held that, "[p]hysical force or (physical) interference (Penal Law § 195.05) can consist of inappropriate and disruptive conduct at the scene of the performance of an official function (see, People v Case, 42 NY2d 98, 102). The arrival of the two police cars which had not been sent to the scene by the dispatcher, coinciding with defendant's personal arrival, sufficiently linked him to disruptive conduct. These acts constituted a knowing, physical interference and disruption with an undercover police operation. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that defendant's guilt had been proven beyond a reasonable doubt (citation omitted)." Id. at 75.
Here, viewing the sequence of events from the point in time that the defendant refused to stop for the marked police vehicle with lights and sirens continuing in operation for three blocks, it is reasonably inferred that the defendant had knowledge that the officers were engaged in an official function. These factual allegations taken together with the alleged facts that, once stopped, defendant's refused to cooperate with the repeated request of three uniformed members of the police department to open his window to permit investigation, compelling a police supervisor to direct the breaking of the vehicle's window, constituted the "inappropriate and disruptive" on the scene conduct contemplated in Dolan.
Viewing these factual allegations in the light most favorable to the People, a rational trier of fact could find that the crime of obstructing governmental administration in the second degree had been committed and that such disruptive conduct constituted (physical) interference.
Based thereon, this court finds, that the defendant's alleged conduct established the elements of and defendant's commission of the crime of obstructing governmental administration in the second degree.
Accordingly, for the reasons stated, defendant's motion to dismiss the charge of obstructing governmental administration in the second degree is denied.
This opinion constitutes the decision and order of the court.
Brooklyn, New York
_______________________
GEORGE A. GRASSO
Judge of the Criminal Court
City of New York