Criminal Court of the City of New York, Kings County, January 31, 2018

Brooklyn Defender Services (Asif Hossain of counsel) for defendant.

Eric Gonzalez, District Attorney (Lewis Schwartz of counsel), for plaintiff.

The defendant is charged with obstructing governmental administration in the second degree in violation of Penal Law{**59 Misc 3d at 217} § 195.05, disorderly conduct in violation of Penal Law § 240.20 (1), (2) and (7), and harassment in the second degree in violation of Penal Law § 240.26 (1). By motion filed on November 14, 2017, the defendant moves to dismiss all charges for facial insufficiency. On or about December 10, 2017, the People filed a response, and on December 14, 2017, the defendant filed a reply. For the following reasons, defendant's motion to dismiss the Penal Law §§ 195.05 and 240.26 (1) charges is denied. The motion to dismiss the Penal Law § 240.20 (1), (2) and (7) charges is granted.

A. Legal Sufficiency Standard

An information is facially sufficient if it alleges nonhearsay factual allegations of an evidentiary nature which, if true, provide reasonable cause for every element of the offense(s) charged and the defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133, 137 [1987]; People v Kalin, 12 NY3d 225, 229 [2009]). The "reasonable cause" burden is met where "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 [*2]intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2] [emphasis added]). Failure to establish a prima facie case according to these standards creates a jurisdictional defect to the criminal action, thus warranting dismissal of the accusatory instrument (see Alejandro, 70 NY2d at 137; Kalin, 12 NY3d at 229).

When reviewing an accusatory instrument for facial sufficiency, the court must give the factual allegations a "fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]; Kalin, 12 NY3d at 225). The instrument must "factually describe the elements of the crime and the particular acts of the defendant constituting its commission" in sufficient detail to satisfy the requirements of due process and double jeopardy, that is, to afford the accused a fair opportunity to prepare a defense and avoid being charged twice with the same offense (Casey, 95 NY2d at 360, 363; Kalin, 12 NY3d at 225).

B. Factual Allegations

The information alleges that on June 10, 2017, at 10:15 p.m. at 436 East 51st Street in Kings County, an officer was issuing{**59 Misc 3d at 218} a summons to another person when the defendant stated, "don't give them your name," stepped between that individual and the officer, pulled out his phone and recorded the officer's face and shield. Subsequently, the defendant slapped the officer's raised hand down and refused to produce identification when asked to do so. The defendant's actions are alleged to have caused a large crowd to gather around the officer, and also caused the officer to fear physical injury and to become alarmed and annoyed.

C. Penal Law § 195.05

"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" (Penal Law § 195.05).

An officer's performance of an "official function" is an essential element of the offense, and an information charging this offense is facially sufficient "so long as the factual allegations contained therein delineate what the obstruction and official function consist of" (People v Cacsere, 185 Misc 2d 92, 93 [App Term, 2d Dept 2000]; People v Ballard, 28 Misc 3d 129[A], 2010 NY Slip Op 51221[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; see also People v Joseph, 156 Misc 2d 192, 193 [Crim Ct, Kings County 1992] ["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"]). "Ordinarily, the issuance of a summons is an 'official function' with which a defendant may not lawfully interfere" (People v Thomas, 51 Misc 3d 341, 351 [Crim Ct, Kings County 2016]).

[1] Defendant argues that the information is facially insufficient because there are no allegations of wrongdoing by the individual to whom the officer issued a summons to suggest the issuance of the summons was authorized (see defendant's mot at 4-6). Certainly, in order to sustain a conviction for obstructing governmental administration, it must be "established that the police were engaged in authorized conduct" (People v Small, 109 AD3d 842, 843 [2d Dept 2013]; see also People v Lupinacci, 191 AD2d 589, 590 [2d Dept 1993]). However, at the pleading stage, there is no requirement that an information detail the basis for the issuance of a summons{**59 Misc 3d at 219} or that [*3]the summons was authorized (see Ballard, 28 Misc 3d 129[A], 2010 NY Slip Op 51221[U], *2 [2010]). In Ballard, the Appellate Term, Second Department upheld the sufficiency of an information that alleged that the defendant backed his vehicle into the officer while she was attempting to write a summons "even though reference to the specific underlying vehicular Village Code violation was omitted and there was no allegation indicating that the official function was authorized" (Ballard, 2010 NY Slip Op 51221[U], *2; accord People v Pappalardo, 180 Misc 2d 707, 708 [App Term, 1st Dept 1999] [where the alleged "official function" is the issuance of a summons, there is no requirement that the accusatory instrument detail that the issuance of the summons was authorized]). To do so would be an "unacceptably hypertechnical interpretation of the pleading requirements" (Pappalardo, 180 Misc 2d at 708; People v Stewart, 32 Misc 3d 133[A], 2011 NY Slip Op 51445[U], *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).^[FN*]

Defendant also argues that his statement to the other individual not to give the officer his name cannot be the basis of the offense, as the statute requires obstruction by "intimidation, physical force or interference, or by means of any independently unlawful act" (see defendant's mot at 7-8). The court agrees with the defendant that these words alone cannot be the basis of an obstructing charge based on "interference" (see People v Case, 42 NY2d 98, 101-102 [1977]). The court also agrees with the defendant that it is not a crime to refuse police's request for identification and thus his refusal cannot constitute an "independently unlawful act" (see People v Cameron, 3 Misc 3d 1105[A], 2004 NY Slip Op 50430[U], *2-3 [Crim Ct, Kings County 2004] ["ignoring an officer's request for identification is not a crime, nor does that act supply any such element"]; People v Alston, 9 Misc 3d 1046, 1049 [Crim Ct, NY County 2005]). However, "actions coupled with words" may sufficiently establish a defendant's interference with the performance of an{**59 Misc 3d at 220} official function (see Matter of Davan L., 91 NY2d 88, 92 [1997]). In Davan L., the Court of Appeals held that the actions of a juvenile circling the block where an undercover buy operation was operating and continuing to yell out "cops, cops . . . watch out, Five-0, police are coming" despite repeated warnings by the officers to desist and leave together met the standard of "minimal interference set in motion to frustrate police activity" that has been criminalized in section 195.05 (id. at 90-91).

Here, the defendant allegedly placed himself between an officer and the intended recipient of a summons and told the individual not to identify himself to the officer. The defendant also refused to identify himself to the officer and "slapped" the officer's hand down. At the pleading stage, these allegations, "given a fair and not overly restrictive or technical reading" (Casey, 95 NY2d at 360), sufficiently allege that the defendant interfered with the officer's official function of handing out a summons (see People v Christiansen, 19 Misc 3d 134[A], 2008 NY Slip Op 50693[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2008] ["interference sufficient to establish this crime includes inappropriate and disruptive conduct at the scene of the performance of an official function . . . even if there is no physical force involved"], quoting People v Romeo, 9 AD3d 744, 745 [3d Dept 2004]; People v Contino, 26 Misc 3d 141[A], 2010 NY Slip Op 50343[U], *1 [App Term, 1st Dept 2010] [allegation that the defendant "placed himself" between his sister and police officers and EMS technicians who were attempting to take sister into custody for psychiatric treatment and that the defendant became "combative" when officer tried to remove the defendant sufficient for pleading purposes that the defendant obstructed governmental administration]).

The court notes that the defendant's recording of the officer's shield and face as alleged here is not deemed to be "interference" as the act of bearing witness alone cannot be characterized as such under our law. However, whether the defendant was acting solely with the intent to record the officer's interaction with the individual and not to obstruct the same, as the defendant argues, is an issue for trial, not a motion to dismiss. At the pleading stage, the requisite intent to frustrate a police function can reasonably be inferred from the defendant's bodily interference in the police activity, his direction not to provide the names, and his slapping of the officer's hand.

Accordingly, the defendant's motion to dismiss the Penal Law § 195.05 charge for facial insufficiency is denied.{**59 Misc 3d at 221}

D. Penal Law § 240.20 (1), (2) and (7)

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he "engages in fighting or in violent, tumultuous or threatening behavior" (Penal Law § 240.20 [1]), "makes unreasonable noise" (Penal Law § 240.20 [2]), or "creates a hazardous or physically offensive condition by any act which serves no legitimate purpose" (Penal Law § 240.20 [7]).

[2] Here, the allegations do not suggest that the defendant engaged in fighting or in violent, tumultuous or threatening behavior, made unreasonable noise, or created a hazardous or offensive condition. Moreover, although the complaint alleges that the defendant's conduct "caused a crowd to gather," there is nothing about the defendant's alleged conduct or statements to suggest that he intended to turn the officer's issuance of a summons to the other individual into a public concern (see People v Baker, 20 NY3d 354, 359-360 [2013] ["critical to a charge of disorderly conduct is a finding that defendant's disruptive statements and behavior were of a public rather than an individual dimension" and "(t)he significance of the public harm element in disorderly conduct cases cannot be overstated"]; People v Munafo, 50 NY2d 326, 331 [1980] ["The clear aim (of the legislature) was to reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem"]; People v Bakolas, 59 NY2d 51, 54 [1983] ["no inadvertently disturbing act may be punished"]). As there are no allegations from which to reasonably infer that the defendant's actions were intended to cause public inconvenience, annoyance or alarm, the defendant's motion to dismiss the Penal Law § 240.20 (1), (2) and (7) charges for facial insufficiency is granted.

E. Penal Law § 240.26 (1)

[3] "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person," he "strikes, shoves, kicks or otherwise subjects such other person to physical contact . . . or threatens to do the same" (Penal Law § 240.26 [1]). "The crux of section 240.26 (1) is the element of physical contact: actual, attempted or threatened" (People v Bartkow, 96 NY2d [*4]770, 772 [2001]). As discussed, the allegations against the defendant, at a minimum, involve physical contact with the officer and an intent to annoy can be reasonably inferred from the defendant's comments and his{**59 Misc 3d at 222} behavior (see People v Shehabeldin, 39 Misc 3d 149[A], 2013 NY Slip Op 50942[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [allegations that defendant flailed arms and swung punches toward officer during police investigation sufficiently pleaded harassment charge]; People v English, 189 Misc 2d 230, 235-236 [Crim Ct, NY County 2001] [allegation that defendant stepped in front of officer and shoved him as the officer was attempting to arrest another individual adequately pleaded harassment charge]; People v Chung, 44 Misc 3d 1211[A], 2014 NY Slip Op 51091[U] [Crim Ct, Kings County 2014] [allegation that defendant slapped a cup of liquid out of officer's hand, spilling it on him and "ripping" his arm established harassment charge]).

Accordingly, defendant's motion to dismiss the Penal Law § 240.26 (1) charge is denied.