Opinion
15-000515
04-27-2015
The People of the State of New York, Plaintiff, v. Michael P. Wright, Defendant.
Appearances: Cassidy Crough, Esq., Assistant District Attorney Silvia Lopez, Esq., Attorney for the Defendant
Appearances:
Cassidy Crough, Esq., Assistant District Attorney
Silvia Lopez, Esq., Attorney for the Defendant
Thomas J. DiSalvo, J.
The defendant was charged with harassment in the second degree, Penal Law § 240.26 (1), menacing in the second degree, Penal Law § 120.14 (1) and resisting arrest, Penal Law § 205.30. Defense counsel filed omnibus motions which demanded that the accusatory instruments be dismissed as being insufficient on their face pursuant to C.P.L.§ § 170.30 (1) (a), 170.35 (1) (a), 100.40 (1) (b), 100.40 (4) (b) and 100.40 (1) (c) .
Facts of the Case .
[i] Harassment Second Degree, Penal Law § 240.26 (1) . The accusatory instruments consisted of a misdemeanor complaint executed by the arresting officer and a supporting deposition signed by the defendant's girlfriend. Thus the accusatory instruments constituted an information pursuant to C.P.L. § 100.10 (1). The complainant alleged in her supporting deposition that she came home and found defendant to be intoxicated. When she inquired about his drinking he allegedly objected to the question and moved close to her in a "threatening manner" while holding a grill fork in his hand toward her. She then indicated that he told her to get out of their apartment. He followed up that demand with profane language. She then stated that he began to throw her possessions around the apartment.The complaint executed by the arresting officer stated that the defendant "Did threaten Laurie A. Meskinmen by standing with a large grill fork in his hand, pointing it toward Laurie A. Meskinmen in an aggressive manner stating, what are you going to do about it?', causing fear and alarm to Laurie A. Meskinmen."
Harassment in the second degree, Penal Law § 240.26 (1) states that a person is guilty of said charge when "He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." The question becomes whether the allegations set out in the complaint and supporting deposition were so conclusory as to render the resulting information insufficient on its face.
[ii] Menacing in the Second Degree, Penal Law 120.14 [1]. The complaint executed by the officer alleges that the defendant " Did place Laurie A Messkinmen in reasonable fear for her life when he stood before her in a threatening way displayed a large grill fork in his hand."
Again the complaint was accompanied by the girlfriend's supporting deposition, which makes the accusatory instrument an information pursuant to C.P.L. § 100.10 (1). The same question as to whether or not the allegations therein are so conclusory as to render the respective information insufficient on its face is presented.
[iii] Resisting Arrest, Penal Law § 205.30 . In that accusatory Officer Engel alleges that the defendant "Intentionally and knowingly prevent [sic] a police officer from effecting an authorized arrest by hiding under the bed stating shoot me, kill me know.'
The defendant ignored multiple commands to move out from the bed area and to show his hands. The defendant continued to resist by curling his arms and legs into his body while stating kill me now'. Defendant was ultimately controlled and taken into custody after the use of an electronic control device."
Issues Presented.
Is the information charging the defendant with harassment second degree pursuant to P.L. § 240.26 (1) insufficient on its face?
Is the information charging the defendant with menacing in the second degree, pursuant to Penal Law § 120.14 (1) insufficient on its face?
Is the information charging the defendant with resisting arrest, pursuant to P.L. § 205.30 insufficient on its face"?
Legal Analysis .
The sufficiency of a local court information is governed by C.P.L. § 100.40 (1). That
section states as follows:
"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."
The charges of harassment in the second degree and the menacing in the second degree are based on the allegation that the defendant acted in an aggressive or threatening manner. This begs the question as to whether or not the allegations in the factual part of the information and/or supporting deposition establish, if true, every element of the offense charged or whether the allegations are simply conclusory in nature. This area of the law is a combination of conflicting concepts and principles.
In reference to the content of a supporting deposition as set out in C.P.L. § 100.20 "The phrase actual allegations of an evidentiary character' means nonconclusory descriptions of what the deponent personally observed, heard or experienced." (People v. Concepcion, 36 Misc. 3d 551,553 945 S.2d 543 [2012]). Nevertheless, the Court of Appeals has consistently held "So long as the factual allegations of an information give an accused sufficient 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. Casey, 95 NY2d 354,360, 771 N.Y.S.2d 88,91 [2000]) Certainly in the instant case the defendant has been put on notice by the accusatory instruments that the alleged way in which he approached the complainant and the alleged way in which he held the grill fork toward said complainant were the respective bases' for the charges of harassment second degree and menacing second degree. That would certainly permit him to prepare a defense to both charges.
Based on that standard, the accusatory instruments, i.e. the complaints and supporting deposition, which when taken together constitute informations pursuant to C.P.L. § 100.10 (1), charging the defendant with harassment in the second degree, Penal Law § 240.26 (1) and menacing in the second degree, Penal Law § 120.14 (1) have established the prime facie case requirement of C.P.L. 100.40 (1) (c).
"The Criminal Procedure Law contains various mandated components for the different categories of accusatory instruments. As pertinent to the issue in this appeal, a complaint is one of the simplest forms of an accusatory instrument. It must contain facts of an evidentiary character' (CPL 100.15 [3]) that establish reasonable cause' to believe that the accused committed the charged offense (CPL 100.40 [4] [b]). That requirement also applies to an information (see CPL 100.40 [1] [a], [b]) but this type of instrument is subject to a more stringent test: the information and any supporting depositions must set forth [n]on-hearsay allegations' that establish, if true, every element of the offense charged and the defendant's commission thereof' (CPL 100.40 [1] [c]). This is referred to as the prima facie case' standard for informations (see e.g. People v Casey, 95 NY2d at 362). The reason for requiring the additional showing of a prima facie case . . . lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law'" (People v Jones, 9 NY3d 259, 262, 878 NE2d 1016, 848 NYS2d 600 [2007] [internal quotation marks omitted])." (People v. Suber, 19 NY3d 247, 250-251, 946 N.Y.S.2d 552 [2012]).
The accusatory instrument charging the defendant with resisting arrest in violation of P.L. § 205.30, alleges in the factual part of the information that the defendant prevented "a police officer from effecting an authorized arrest".As indicated above the information states that the police found the defendant hiding under a bed from where he told the officer to "shoot me, kill me now". Those words in and of themselves when stated to a police officer do not violate any statute. The information went on to describe how the defendant refused to come out from under a bed or show his hands as demanded by the officer. In addition the officer described the defendant as curling his arms and legs into his body.
Defense counsel argues in her motion that the information charging the defendant wth resisting arrest is insufficient on its face. She argues that the defendant cannot be guilty of resisting arrest because the information does not indicate that he was ever advised that he was under arrest nor does the information allege that the arresting officer advised the defendant of the charge and/or charges for which he was being arrested..
"Significantly, it was not necessary that the defendant be specifically informed that he was to be arrested in order for a resisting arrest conviction to stand; it is sufficient that such knowledge be inferable from the surrounding facts and circumstances (see, People v. Maturevitz, 149 AD2d 908). Here, even viewing the evidence in the light of the most favorable to the defendant (see, People v. SiMartin, 135 AD2d 591, lv denied 71 NY2d 1033, it is impossible to believe that the defendant did not know that the police would attempt an arrest (see, supra; see also, People v. Karim, 176 AD2d 670,671, lv denied 79 NY2d 859)." (People v. Gray, 189 AD2d 922,923, 92 N.Y.S.2d 814 [3rd Dept. 1993]). This case also involved a domestic dispute between a boyfriend and girlfriend and where police were dispatched to the apartment of the defendant.
The accusatory instrument charging the defendant with resisting arrest in violation of P.L. § 205.30, alleges in the factual part of the information that the defendant prevented "a police officer from effecting an authorized arrest".As indicated above the information states that the police found the defendant hiding under a bed from where he told the officer to "shoot me, kill me now". Those words in and of themselves when stated to a police officer do not violate any statute. The information went on to describe how the defendant refused to come out from under a bed or show his hands as demanded by the officer. In addition the officer described the defendant as curling his arms and legs into his body.
Defense counsel argues in her motion that the information charging the defendant wth resisting arrest is insufficient on its face. She argues that the defendant cannot be guilty of resisting arrest because the information does not indicate that he was ever advised that he was under arrest nor does the information allege that the arresting officer advised the defendant of the charge and/or charges for which he was being arrested..
"Significantly, it was not necessary that the defendant be specifically informed that he was to be arrested in order for a resisting arrest conviction to stand; it is sufficient that such knowledge be inferable from the surrounding facts and circumstances (see, People v. Maturevitz, 149 AD2d 908). Here, even viewing the evidence in the light of the most favorable to the defendant (see, People v. SiMartin, 135 AD2d 591, lv denied 71 NY2d 1033, it is impossible to believe that the defendant did not know that the police would attempt an arrest (see, supra; see also, People v. Karim, 176 AD2d 670,671, lv denied 79 NY2d 859)." (People v. Gray, 189 AD2d 922,923, 92 N.Y.S.2d 814 [3rd Dept. 1993]).
This case also involved a domestic dispute between a boyfriend and girlfriend and where police were dispatched to the apartment of the defendant.
Thus it is clear that the defendant did not have to be advised by the police that he was about to be arrested. C.P.L.§ 140.15 (2) requires that when an arrest without a warrant is made by a police officer, "The arresting police officer must inform such person of his authority and purpose and of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical." However, the statute provides no remedy for failure of the police to comply with this provision. C.P.L. § 140.20 (1) provides in pertinent part "Upon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, fingerprinting and other preliminary police duties required in the particular case, must unless otherwise provided in this section, without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question."
C.P.L. § 140.20 (1) provides in pertinent part "Upon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, fingerprinting and other preliminary police duties required in the particular case, must unless otherwise provided in this section, without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question."
Nevertheless, the question remains as to the basic sufficiency of the resisting arrest information. The supporting deposition signed by the defendant's girlfriend is only relevant to the charges of harassment second degree and the menacing second degree. It is not a supporting deposition relative to the information charging the defendant with resisting arrest. There is no supporting deposition specific to that charge. Thus the court is bound by the four corners of the information.
"It is an essential element of the crime of resisting arrest that the arrest be authorized and absent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand. (People v. Peacock, 68 NY2d 675; People v. Carneglia, 63 AD2d 734; People v. Harwood, 63 AD2d 876).
Thus to comply with the statute, the factual part of the information for resisting arrest must contain [non-hearsay] allegations [which would] establish, if true' (CPL 100.40 [1] [c]) that the underlying arrest was authorized." (People v. Alejandro, 70 NY2d 133,135, 517 N.Y.S.2d 927, 928-929 [1987]).
The information states in pertinent part that the defendant "Intentionally and knowingly prevent [sic] a police officer from effecting an authorized arrest...." However, it does not even specifically state what was the underlying authorized arrest. One can presume that the arrest was for the charges of harassment second degree and menacing second degree. In fact C.P.L. 140.10 (4) ( c) requires an arrest of a person where the officer has reasonable cause to believe a that "a misdemeanor constituting a family offense, as described in subdivision one of section 530.11 ... has been committed by such person against such family member or household member, unless the victim requests otherwise." C.P.L. § 530.11 (1) lists harassment in the second degree and menacing in the second degree which qualifies them as family offenses.
Nevertheless, the question remains as to the basic sufficiency of the resisting arrest information. The supporting deposition signed by the defendant's girlfriend is only relevant to the charges of harassment second degree and the menacing second degree. It is not a supporting deposition relative to the information charging the defendant with resisting arrest. There is no supporting deposition specific to that charge. Thus the court is bound by the four corners of the information.
"It is an essential element of the crime of resisting arrest that the arrest be authorized and absent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand. (People v. Peacock, 68 NY2d 675; People v. Carneglia, 63 AD2d 734; People v. Harwood, 63 AD2d 876).
Thus to comply with the statute, the factual part of the information for resisting arrest must contain [nonhearsay] allegations [which would] establish, if true' (CPL 100.40 [1] [c]) that the underlying arrest was authorized." (People v. Alejandro, 70 NY2d 133,135, 517 N.Y.S.2d 927, 928929 [1987]).
The information states in pertinent part that the defendant "Intentionally and knowingly prevent [sic] a police officer from effecting an authorized arrest...." However, it does not even specifically state what was the underlying authorized arrest. One can presume that the arrest was for the charges of harassment second degree and menacing second degree. In fact C.P.L. 140.10 (4) ( c) requires an arrest of a person where the officer has reasonable cause to believe a that "a misdemeanor constituting a family offense, as described in subdivision one of section 530.11 ... has been committed by such person against such family member or household member, unless the victim requests otherwise."
C.P.L. § 530.11 (1) lists harassment in the second degree and menacing in the second degree which qualifies them as family offenses.
One might even presume that the actions of the defendant could subject him to a charge of obstructing governmental administration pursuant to P.L. 195.05 in the second degree.
However, C.P.L. § 100.40 (1) ( c) does not allow for presumption or supposition. Even an accusatory charging a defendant with resisting arrest, which may be based on a mandatory arrest, must set out the non-hearsay allegations that establish the arrest as an authorized arrest.
As a result the accusatory herein seems to fly in the face of the Alejandro ruling, since there are no non-hearsay allegations, which would establish, if true, that the underlying arrest was authorized. As previously stated, the information does not even identify an offense allegedly committed by the defendant. The information simply set out a conclusory allegation that the defendant "Intentionally and knowingly prevent [sic] a police officer from effecting an authorized arrest...."
Conclusion.
For the reasons set forth above the motions to dismiss the charges of harassment in the second degree, Penal Law § 240.26 (1), menacing in the second degree, Penal Law § 120.14 (1) as being insufficient on their face pursuant to C.P.L. § 170.35 (1) (a) is hereby denied. However, defendant's motion to dismiss the charge of resisting arrest pursuant to C.P.L. 170.35. (1) (a) is hereby granted. This constitutes the decision and order of this court.
Dated: April 27, 2015
Webster, New York
________________________________________
Hon. Thomas J. DiSalvo
Webster Town Justice.
Thus it is clear that the defendant did not have to be advised by the police that he was about to be arrested. C.P.L.§ 140.15 (2) requires that when an arrest without a warrant is made by a police officer, "The arresting police officer must inform such person of his authority and purpose and of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical." However, the statute provides no remedy for failure of the police to comply with this provision.3
One might even presume that the actions of the defendant could subject him to a charge of obstructing governmental administration pursuant to P.L. 195.05 in the second degree.
However, C.P.L. § 100.40 (1) ( c) does not allow for presumption or supposition. Even an accusatory charging a defendant with resisting arrest, which may be based on a mandatory arrest, must set out the non-hearsay allegations that establish the arrest as an authorized arrest.
As a result the accusatory herein seems to fly in the face of the Alejandro ruling, since there are no non-hearsay allegations, which would establish, if true, that the underlying arrest was authorized. As previously stated, the information does not even identify an offense allegedly committed by the defendant. The information simply set out a conclusory allegation that the defendant "Intentionally and knowingly prevent [sic] a police officer from effecting an authorized arrest...."
Conclusion.
For the reasons set forth above the motions to dismiss the charges of harassment in the second degree, Penal Law § 240.26 (1), menacing in the second degree, Penal Law § 120.14 (1) as being insufficient on their face pursuant to C.P.L. § 170.35 (1) (a) is hereby denied. However, defendant's motion to dismiss the charge of resisting arrest pursuant to C.P.L. 170.35. (1) (a) is hereby granted. This constitutes the decision and order of this court.
Dated: April 27, 2015
Webster, New York
________________________________________
Hon. Thomas J. DiSalvo
Webster Town Justice.