The defendant, Jason Malone, is charged with Disorderly Conduct (Penal Law [PL] §240.20[1]) and Resisting Arrest (PL §205.30). He moves for an order dismissing the accusatory instrument pursuant to Criminal Procedure Law (CPL) 170.30(1)(a) and 170.35(1) for lack of facial sufficiency as well as for other relief addressed below.

FACIAL INSUFFICIENCY

The self-authenticating complaint makes the following factual allegations:

Deponent [Police Officer Kolin Kaufmann] observed defendant [on April 4, 2010 at about 02:15 hours in front of 263 West 42d Street, New York County], fighting with a separately charged individual, Chance Leak (M10630155)[,] and behaving in a violent, tumultuous, and threatening manner, as follows, in that deponent observed separately charged defendant Leak swing Leak's closed fist at defendant, whereupon deponent further observed defendant swing defendant's closed fist at separately charged defendant Leak. Deponent further states that defendant's conduct created a public disturbance and inconvenience in that it caused people to leave and avoid the area.

Deponent further states that when deponent was placing the defendant under arrest for the offense(s) [sic] described above deponent observed defendant flail defendant's [*2]arms, refuse to place defendant's hands behind his back, thereby making handcuffing difficult.

It is axiomatic that facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution. People v Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must meet with three requirements: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v McDermott, 160 Misc 2d 769 (Dist Ct, Nassau County 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10[1]).

The defendant is charged with Disorderly Conductunder subsection one of PL §240.20, which provides in pertinent part that:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior . . . .

The defendant's alleged combative engagement with another person before the deponent police officer attempted to place him under arrest establishes that he engaged in "fighting or in violent, tumultuous or threatening behavior," the actus reus element of this offense. The factual allegations also establish reasonable cause to believe that the defendant harbored the "intent to cause public inconvenience, annoyance or alarm, or recklessly create[d] a risk thereof," the required mens rea element of this offense. CJI[NY]2d PL 240.20(1); see People v. Spiegel, 181 Misc 2d 48,52 (Crim Ct, NY County 1999). The statute in question "applies to words and conduct reinforced by a culpable mental state to create a public disturbance." People v. Tichenor, 89 NY2d 769, 755 (1997). Mens rea may, of course, be inferred circumstantially from the surrounding facts. See People v. Smith, 79 NY2d 309, 315 (1992); People v. Bracey, 41 NY2d 296, 301 (1977).The complaint charges that the defendant was allegedly involved in a fist flight with another man in front of a building at 263 West 42d Street, which the Court takes judicial notice to be between Seventh and Eighth avenues in the Times Square area in Manhattan, a major entertainment and transportation area drawing crowds night and day. The complaint alleges that the fighting "caused people to leave and avoid the area." Although the number of persons affected is not specifically stated, one reasonably may infer from the location that there were a significant number of persons nearby.^[FN1] Furthermore, when [*3]physical fights break out in an area as heavily populated as Times Square, it is not unreasonable to infer that people in the area would seek to avoid the altercation, perhaps quickening their step to get away from the disturbance, perhaps butting into other passersby in their efforts to do so, perhaps becoming alarmed if they are not able to ascertain the exact source and cause of the disturbance. Thus, there is reason to believe that, at the very least, the defendant was aware that such fighting risked causing those who were present at the time of the clash to be disturbed, alarmed or annoyed.^[FN2]The accusatory instrument in this case provides the defendant with notice sufficient to prepare a defense to the Disorderly Conduct (PL §240.20(1) count. "So long as the factual allegations of an information give an accused notice sufficient 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 (2000).Accordingly, the defendant's motion for an order dismissing that count of Disordering Conduct as facially insufficient is hereby denied.

The defendant allegedly flailed his arms and refused to put his hands behind his back when the deponent officer attempted to place him under arrest, thereby impeding

handcuffing. This assertion clearly tends to establish reasonable cause to believe that the defendant intended to prevent or attempted to prevent his arrest.

A person may not be convicted of Resisting Arrest, however, unless his or her arrest was authorized, that is, based upon reasonable cause that he or she has committed an offense. People v. Jensen, 86 NY2d 248, 253 (1995). As the Court has determined above, the accusatory instrument shows that the police had reasonable cause to arrest the defendant for violating the Disorderly Conduct statute.

Even had there not been grounds for the arrest for Disorderly Conduct, the pleaded factual allegations make out the commission of two other offenses that would have justified the arrest. The defendant's alleged swinging of his closed fist at the other man provided reasonable cause to arrest him for Attempted Assault in the Third Degree (PL §§110.00/120.00[1]), in that his conduct tends to show his intent to cause physical injury [*4]to that individual. The alleged facts also provided reasonable cause to believe that he committed the crime of Menacing in the Third Degree (PL § 120.15) because, from his throwing of a punch at the other man, one could reasonably infer an intent to place the man in fear of physical injury.

Accordingly, the defendant's motion for an order dismissing the Resisting Arrest count is denied.

The defendant's motion for an order suppressing statements that he allegedly made to law enforcement personnel and which the People intend to offer in evidence is granted to the extent that an evidentiary ("Huntley") hearing shall be conducted to resolve a factual issue, whether the statements were made involuntarily as defined in CPL 60.45.

If there are additional statements which the People obtained from the defendant and which they do not intend to offer in evidence in their own case, the People are directed to disclose the content of those statements to the defendant. Furthermore the "Huntley" hearing shall be expanded to consider the voluntariness of those statements in anticipation that the People will seek to use them to impeach the defendant's trial testimony.

The defendant's motion for an order suppressing statements that were obtained from him as the fruit of an unlawful seizure of his person is denied. The defendant has not laid a proper factual foundation for such an inquiry. See People v. Mendoza, 82 NY2d 415, 428-29 (1993). He contends that he struck the other man after the other man struck him. He does not contend, however, that he acted in self-defense. Retaliation or attempting to impose punishment for assaultive behavior against oneself is not justified. Only persons who have a duty of care to others may, under limited circumstances, use physical force to discipline. PL §35.10(1). Neither is combat by agreement recognized by the justification statute. See PL §35.15(1)(c); Matter of Kim H., 122 AD2d 160 (1985). The fact that the defendant, as he contends, was not doing anything unlawful at the time of his arrest is insufficient to comply with the requirements of Mendoza.

The defendant's motions (1) to preclude use of any other statements he allegedly made to law enforcement personnel and the introduction of any alleged out-of-court identification of him to law enforcement personnel, notice of which was not timely given, and (2) to preclude introduction of his prior bad acts in the People direct case and impeachment of him by alleged prior convictions or bad acts, are referred to the trial court for decision.

The defendant's motion to reserve the right to make further motions is denied. However, upon good cause shown, the Court will permit the defendant to make additional motions.

The People's motion to compel limited reciprocal discovery pursuant to CPL 250.20 is granted.

This opinion shall constitute the decision and order of this court.

Dated:August 25, 2010

New York, New York

_______________________

Hon. Felicia A. Mennin, JCC