Opinion
2008NY030769.
Decided July 30, 2008.
For the Defendant: For the Defendant: Steven Banks, Esq., The Legal Aid Society (Erin Darcy of counsel).
For the People: Robert M. Morgenthau, District Attorney, New York County (Jeremy Pfetsch of counsel).
Charged with two counts of disorderly conduct and one of resisting arrest, defendant moves to dismiss for facial insufficiency. The information alleges that on March 22, 2008, a named narcotics detective "received a description over the radio of a possible drug seller and that the description fit the defendant." At approximately 3:43 p.m., in front of 132 West 139th Street in Manhattan, the detective "approached defendant" and "asked defendant if defendant had any weapons." Defendant "refused to answer, and . . . when [the detective] attempted to frisk the defendant for weapons, the defendant flailed his arms[,] . . . yelled (in substance)[,]You have no right to touch me[,'] and refused to allow [the detective] to frisk him." The detective then "placed defendant under arrest," but "defendant refused to put his arms behind his back and flailed his arms, thereby making handcuffing difficult."
In order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant ( see CPL 100.40 [1] [b], [c]). 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 it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).
The first count of disorderly conduct alleges a violation of Penal Law § 240.20 (3), which makes it unlawful for a person, with the requisite mental state, to "use abusive or obscene language, or make an obscene gesture," in a public place. Defendant's sole statement — "You have no right to touch me" — is neither abusive or obscene, and its utterance does not support a charge of disorderly conduct under the subdivision charged. This count is patently insufficient, and must therefore be dismissed.
The second disorderly-conduct count, added by the People at defendant's arraignment, is charged under Penal Law § 240.20 (1). Under that provision, a person commits disorderly conduct when, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," he or she "engages in fighting or in violent, tumultuous or threatening behavior."
The mere expression that one feels aggrieved by the police — even when uttered in a loud voice — cannot constitute an offense. After all, "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state" ( City of Houston v Hill, 482 US 451, 462-463). Here, however, in addition to "yell[ing]" that the detective "ha[d] no right to touch me," defendant also flailed his arms.
Assuming that the flailing of arms while yelling can, for pleading purposes, establish tumultuous behavior under the statute, the charge must nevertheless fail for want of evidence that defendant's disruptive behavior was "of public rather than individual dimension" ( People v Munafo, 50 NY2d 326, 331; but cf. People v Pritchard, 27 NY2d 246, 248 [defendant was one of two teenage boys "on the floor rolling around and striking at each other . . . (t)heir arms and legs . . . flying"; despite the gathering of a crowd, disorderly-conduct conviction could not be sustained in the absence of evidence that the "short-lived . . . scuffle" was more than the "instant and perhaps reflexive reaction of defendant" to provocation by the person with whom he was fighting (internal quotation marks omitted)]).
The gravamen of disorderly conduct is conduct that provokes, or risks provoking, a "breach of the peace" ( Munafo, 50 NY2d at 331) or a "public disturbance" ( People v Bakolas, 59 NY2d 51, 54) — concepts codified in the Penal Law as "public inconvenience, annoyance or alarm" ( see Munafo, 50 NY2d at 331; Pritchard, 27 NY2d at 248; see also Penal Law § 240.20). Thus, the disorderly-conduct statute applies only to "situations that carr[y] beyond the concern of individual disputants to a point where they ha[ve] become a potential or immediate public problem. In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny" ( Munafo, 50 NY2d at 331 [citations omitted]). Here, the information does not allege that anyone other than defendant and the detective was present during the incident. Since the confrontation between defendant and the police was "confined to these two disputants rather than spread to the public" ( id. at 332), defendant's actions posed no risk of public inconvenience, annoyance, or alarm ( cf. People v Jackson, 18 Misc 3d 134[A], 2008 NY Slip Op 50169[U], *1-*2 [App Term, 1st Dept 2008] ["Notably absent was any allegation or proof that a crowd gathered at the scene or that any passersby witnessed the altercation"], lv denied 10 NY3d 841).
Defendant is also charged with resisting arrest, an essential element of which is that the arrest be authorized ( see Penal Law § 205.30 [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"]; People v Alejandro, 70 NY2d 133). Accordingly, an information charging resisting arrest must contain factual allegations establishing that the arresting officer had either "a warrant or probable cause to arrest defendant for commission of some offense" ( People v Alejandro, 70 NY2d at 135; see also People v Jensen, 86 NY2d 248, 253; People v Peacock, 68 NY2d 675, 677).
Inasmuch as both counts of disorderly conduct at issue here are facially insufficient, the information cannot establish that the detective had probable cause to arrest defendant for that violation. 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 ( see People v Thomas, 239 AD2d 246 [1st Dept 1997]; Matter of James T., 189 AD2d 580 [1st Dept 1993]; cf. People v Martin, 222 AD2d 528, 529 [2d Dept 1995] [defendant properly convicted of resisting arrest notwithstanding his acquittal of all other charges]; People v Mayi, 198 AD2d 444 [2d Dept 1993] [same]).
Thus, despite the insufficiency of the disorderly-conduct charges here, the resisting-arrest charge will nevertheless withstand dismissal if the factual allegations establish that the detective had probable cause to arrest defendant for obstructing governmental administration, premised on defendant's earlier resistance to the detective's attempt to frisk him.
Of course, a defendant cannot be properly charged with resisting an arrest for obstructing governmental administration when the latter charge is itself premised on the defendant's interference with the officer's efforts to effectuate the same arrest. For in that circular circumstance, the allegations would not establish, as they must, that the arrest was already authorized at the time it was resisted. But when an obstructing charge is based on interference with an earlier and distinct police action, the defendant's refusal to be arrested for obstruction may then support a valid resisting-arrest charge. (And, of course, when an arrest for an unrelated offense is independently authorized, resistance of that arrest may sufficiently support charges of both resisting arrest and obstructing governmental administration [ see e.g. People v McDermott, 279 AD2d 361 (1st Dept 2001)]).
A person is guilty of obstructing governmental administration in the second degree when "he intentionally . . . prevents or attempts to prevent a public servant from performing an official function, by means of . . . physical force or interference, or by means of any independently unlawful act" (Penal Law § 195.05).
To be sure, the conduct of a frisk is, in the abstract, an "official function" of the police. But a defendant may not be convicted of obstructing governmental administration for interfering with a police officer in the performance of an official function "unless it is established that the police were engaged in authorized conduct" ( People v Lupinacci, 191 AD2d 589, 589 [2d Dept 1993]; see also People v Vogel, 116 Misc 2d 332, 333 [App Term, 2d Dept 1982]). Thus, when, as here, a charge of obstructing is premised on an attempt to prevent a police officer from conducting a frisk, the underlying frisk must itself be lawful ( cf. People v Rodriguez, 19 Misc 3d 302 [Crim Ct, NY County 2008] [allegation that defendant prevented the execution in an apartment of an arrest warrant for a third party held insufficient in the absence of an allegation that the police also possessed a search warrant, as required to authorize the arrest of a third party in a person's home]).
Also essential to an obstructing charge is evidence that the effort to prevent the police action be by physical, and not merely verbal, interference ( see Matter of Davan L., 91 NY2d 88, 91 [1997]). Here, the information alleges that when the detective attempted to frisk defendant for weapons, defendant flailed his arms and refused to allow the frisk, thus satisfying the requirement that the interference "be, in part at least, physical in nature" ( People v Case, 42 NY2d 98, 102 [1977]).
The police may forcibly stop and detain a citizen in a public place based on reasonable suspicion that the person is committing, has committed, or is about to commit a crime ( see Terry v Ohio, 392 US 1). Not every lawful stop, however, will justify a frisk ( see People v Moore, 32 NY2d 67, 70). Rather, a frisk is permissible only when the police have independent and reasonable suspicion to believe that the suspect is armed and may be dangerous ( see People v Russ, 61 NY2d 693, 695; People v Carney, 58 NY2d 51).
Reasonable suspicion is that "quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" ( People v Cantor, 36 NY2d 106, 112-113 [1975]).
The right to frisk is codified at CPL 140.50 (3), which provides that when, upon lawfully stopping a person, a police officer "reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons." Although the statutory text contains the word "search," the police action contemplated by CPL 140.50 (3) is more commonly referred to as a "frisk" ( see Barry Kamins, New York Search and Seizure § 2.05 [1], at 2-76 [2008 ed]). A frisk is a limited touching of the suspect for the purpose of feeling any dangerous weapons ( see People v Francis, 108 AD2d 322, 325-326 [1st Dept 1985]), and the right to frisk, premised on reasonable suspicion, cannot constitutionally permit an officer to conduct a full-blown search for evidence ( see People v DeJesus, 169 AD2d 521, 522 [1st Dept 1991]).
It is questionable whether the facts alleged here provide reasonable suspicion to justify even a stop. The information is silent as to the source of the detective's report, received over the radio, of a "possible drug seller." Nor are any details provided of the description obtained, other than that it allegedly "fit the defendant." An anonymous tip furnishing a general description of a suspect cannot provide reasonable suspicion ( see People v Vick, 209 AD2d 295 [1st Dept 1994]). Further, even an anonymous tip containing a specific description matching the suspect will not provide reasonable suspicion unless the tip also reliably predicts the criminality of the suspect's conduct ( see Florida v J.L., 529 US 266; People v William II, 98 NY2d 93; People v Moore , 6 NY3d 496 [anonymous report that an African-American male, described as 18 years of age and wearing a gray jacket and red hat, was involved in a dispute with a gun held insufficient to justify a forcible stop]).
Even assuming, however, that the source of the information possessed by the detective was not anonymous, the frisk was unlawful. Although a call from an identified citizen describing a person who has committed or is committing a crime can provide reasonable suspicion justifying the forcible stop of a person matching that description ( see e.g. People v White, 293 AD2d 327 [1st Dept 2002]), the police may not go on to conduct a frisk in the absence of articulable reason to suspect that the person is armed or dangerous ( see Russ, 61 NY2d at 695; Carney, 58 NY2d at 52; CPL 140.50). Here, the information is devoid of facts that might support a contention that the detective had reason to fear for his safety ( cf. People v Watson, 96 AD2d 1066, 1067 [2d Dept 1983] ["police officer's reasonable suspicion that his safety or that of others is in danger must be based upon clear and articulable facts . . . which, in light of his experience, would cause a reasonably prudent man in such circumstances to harbor a rational belief of danger" (citations and internal quotation marks omitted)]).
Among the factors that may provide reasonable suspicion that a lawfully stopped suspect is armed is the presence of a suspicious bulge ( see People v De Bour, 40 NY2d 210, 221 [1976]); dangerous or furtive movement ( see e.g. People v Minaya, 245 AD2d 238 [1st Dept 1997]); or information that the person has committed a violent crime ( see e.g. People v Mack, 26 NY2d 311, 317 [1970]). None is present here. Nor may the suspicion that defendant was involved in drug activity by itself supply reasonable suspicion that he was armed ( see People v Gonzalez, 295 AD2d 183 [1st Dept 2002]).
To be sure, the report of a possible drug seller matching defendant's description provided the detective with a founded suspicion that criminal activity was afoot ( see People v Stewart, 41 NY2d 65, 69; People v Erazo, 203 AD2d 82 [1st Dept 1994]), thereby authorizing a common-law inquiry. And pursuant to such inquiry, the detective was entitled to ask defendant "pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation" ( People v Hollman, 79 NY2d 181, 185) — including whether defendant had any weapons ( see People v Ward , 22 AD3d 368 [1st Dept 2005]).
But defendant's refusal to answer the detective's legitimate question could not establish reasonable suspicion that defendant was armed and dangerous ( see People v Brown, 204 AD2d 994 [4th Dept 1994]). Were it otherwise, the police would be authorized to conduct a frisk during almost every lawful stop — even without independent and articulable reason to fear physical injury — merely by asking the suspect whether he or she had a weapon. But that is not the law. "An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk . . . away. His refusal to answer is not a crime" ( People v Howard, 50 NY2d 583, 586; see also Moore, 6 NY3d 496).
Thus, even assuming that the detective had reasonable suspicion to stop defendant, defendant's refusal to say whether he had a weapon did not provide reasonable suspicion to frisk. And since the frisk of defendant was unauthorized, defendant's conduct in refusing to comply with it did not constitute obstructing governmental administration ( cf. People v Flow , 37 AD3d 303 , 304 [1st Dept 2007] [physical refusal to submit to lawful frisk may provide probable cause to arrest], lv denied 9 NY3d 843). Therefore, inasmuch as the factual allegations of the information fail to establish that the police had probable cause to arrest defendant for either disorderly conduct or obstructing governmental administration, the charge of resisting arrest is facially insufficient.
Accordingly, the information must be dismissed in its entirety.
This opinion shall constitute the decision and order of the court.