By superseding information defendant is charged with two counts of Operating a Motor Vehicle While Intoxicated (in violation of Vehicle and Traffic Law §1192, subds. 2 and 3), Obstruction of Governmental Administration in the Second Degree (in violation of Penal Law §195.05) and Operating a Motor Vehicle While Impaired (in violation of Vehicle and Traffic Law §1192(1)). He moves this Court for an order dismissing the Penal Law charge. The People oppose the motion.

CPL §§100.15 and 100.40 require that factual allegations of an evidentiary character provide reasonable cause to believe that defendant committed the offense charged in the information and that non-hearsay factual allegations provide a prima facie case that defendant is guilty. While those allegations should be given a fair and not overly restrictive or technical reading, they must, nevertheless, establish defendant's commission of every element of the charged offenses. People v Casey, 95 NY2d 354 (2000).

To the extent relevant to the Obstruction charge, the complaint alleges, inter alia, that Remon Samir Yousef observed defendant drive his vehicle against a traffic light into Yousef's lane and collide with Yousef's vehicle. It further alleges that after the collision defendant and co-defendant Joseph Farley switched seats so that Farley was behind the wheel and defendant was in the passenger seat. The complaint alleges that defendant was intoxicated and that the deponent police officer observed two open Bud Light bottles of beer on the floor of the front passenger [*2]area of defendant's vehicle. It alleges that defendant's blood alcohol content was .13 of one per centum by weight of alcohol in his blood. The complaint alleges that defendant stated, in substance, "I had six beers. This is my fifth dwi arrest." In addition, it alleges that co-defendant Farley stated, in substance, "The other guy wasn't driving. I was driving."

The People contend that in switching seats with co-defendant Farley, defendant attempted to prevent the police from discovering his culpability in a drunk-driving collision. However, the complaint does not allege that the police were anywhere in the vicinity of defendant or of the vehicle at the time that defendant and his companion re-seated themselves. While it is not unlikely that police would appear following an accident, there are no facts alleged which support the inference that defendant's change of position in the vehicle was effected with the requisite criminal intent to interfere with the performance of an official function. The Court of Appeals, in explaining the result in People v Case,42 NY2d 98 (1977), noted that in Case, "[t]he alleged interference with the police activity was attenuated by distance, time and technology." Matter of Davan L., 91 NY2d 88 (1997); see also People v Covington, 18 AD3d 65, 70-1 (1st Dept.), lv denied, 5 NY3d 787 (2005). In the instant case there are no facts alleged which link defendant's change of seat with any police action or investigation. Accordingly, the instant motion is granted, and the charge of Obstruction of Governmental Administration in the Second Degree is dismissed.

This is the decision and order of the Court.

DATED: NEW YORK, NEW YORK

JANUARY 15, 2008————————————-

JCC