Defendant is charged with one count each of Resisting Arrest (PL Sec. 205.30), and Obstructing Governmental Administration in the Second Degree (PL Sec. 195.05), both Class A misdemeanors, as well as one count of Disorderly Conduct (PL Sec. 240.20), a violation.

By omnibus motion dated November 14, 2012, Defendant seeks the following: dismissal of all charges, asserting that the People's complaint is facially insufficient; discovery pursuant to CPL Sec. 240.20, including disclosure of all exculpatory materials; and suppression of all statements made to law enforcement personnel and identification testimony, as well as evidence of any prior bad acts.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated February 4, 2013.

For the reasons stated below, the motion to dismiss is granted to the extent of ordering the People to provide a superceding information to the Court and defense within 30 days of the date of this decision. [*2]

The motion for discovery is granted to the extent that the People are directed to provide pre-trial disclosure of all materials subject to CPL Sec. 240.20, as well as all exculpatory materials to the defense, and the People are reminded of their continuing obligations under People v. Rosario, 9 NY2d 286, 213 NYS2d 448 (1961) and Brady v. Maryland, 373 US 83, 83 S Ct 1194 (1963).

The motion for pre-trial hearings is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not statements were taken in violation of defendant's rights under the United States and New York Constitutions; whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.

Pursuant to the Criminal Court complaint, on or about July 6, 2012 at approximately 11:45 PM, the Defendant was observed by Police Officer Denisse Caceres(deponent) at the corner of Morrison Avenue and East 172nd Street, Bronx, New York to be standing "in the middle of the above location, a public sidewalk, impeding the flow of pedestrian traffic." See, Criminal Court complaint dated July 7, 2012, p 1.

"Deponent further states that defendant refused to move, despite multiple requests made by deponent to do so. Deponent...is a New York City police officer who was in uniform and engaged in her official duties as such." See, Criminal Court complaint dated July 7, 2012, p 1.

Further, when the officer "attempted to issue defendant a summons for the above-described conduct, defendant was unable to produce valid identification...when she attempted to place defendant under arrest, defendant flailed his arms and twisted his body." See, Criminal Court complaint dated July 7, 2012, p 1-2.

(A) Facial Sufficiency

Defendant asserts that the "People fail to make out a prima facie case for the offense of criminal Disorderly Conduct" since the complaint "merely alleges, in conclusory language that defendant was impeding the flow of traffic.'" See, Defendant's motion dated November 14, 2012, p 5-6 para 9 and 11. Further, Defendant asserts that "the complainant does not contain facts as to what pedestrians were forced to do as a result of the defendant's otherwise innocuous behavior." See, Defendant's motion dated November 14, 2012, p 6 para 12.

Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of [*3]the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).

On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).

Applying these principles to the instant matter, the factual allegations contained in the misdemeanor complaint before this Court are not sufficient. However, under the circumstances of this case, the People will be given 30 days to supercede the complaint regarding the allegations of Disorderly Conduct.

(B) CPL Sec. 240.20

Under CPL Sec. 240.20(5), defendant is guilty of Disorderly Conduct when he "obstructs vehicular or pedestrian traffic." "(T)he proscribed conduct must be accompanied by the stated culpable mental state of intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.'" See, Donnino, William, Practice Commentary, CPL Sec. 240.20, McKinney's Book 39 (2008), citing CPL Sec. 240.20. To establish intent, "the information must allege facts, either about the defendant's conduct or about the surrounding circumstances, to support an inference that defendant possessed the requisite intent." See, People v. MR, 12 Misc 3d 671, 677, 814 NYS2d 517 (Crim Ct, NY Cty, 2006).

Here, as to the allegations brought under subdivision (5), "something more than a mere inconvenience of pedestrians is required to support the charge." See, People v. Jones, 9 NY3d 259, 262, 848 NYS2d 600 (2007), citing People v. Cancel, 3 NY2d 327, 331, 165 NYS2d 113 (1957). "Otherwise, any person who happens to stop on a sidewalk - whether to greet another, to seek directions, or simply to regain one's bearings - would be subject to prosecution" for disorderly conduct. 9 NY3d at 262. See, also, People v. Reed, 19 Misc 3d 217, 219, 851 NYS2d 331 (Crim Ct, Kings Cty, 2008).

The temporary inconvenience of pedestrians being required to walk around defendant and the apprehended others, without more, is insufficient to sustain the charge. See, People v. Pearl, 66 Misc 2d 502, 502-503, 321 NYS2d 986 (App Term, 1st Dept, 1971). [*4]

In the instant complaint, the People have failed to indicate "what pedestrians were forced to do as a result of defendant's...behavior." See, Defendant's motion dated November 14, 2012, p 6 para 12. However, in this case, the People will be given the opportunity to supercede the Criminal Court complaint.

In People v. Camacho, 185 Misc 2d 31, 711 NYS2d 283 (Crim Ct, Kings Cty, 2000), the court ruled that where a complaint is found to be facially insufficient, curing the defect "is imperative, because...the court's jurisdiction is no longer assured. The People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect). " 185 Misc 2d at 36. (Citation omitted).

In many instances, "the lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible." See, People v. Gore, 143 Misc 2d 106, 109, 540 NYS2d 147 (Crim Ct, Kings Cty, 1989), citing Dumas.

Under the circumstances of this case, it should be a simple matter for the People to correct the defect, and state the necessary additional facts in their information. Therefore, the People will be given the opportunity to cure this error by "either filing a superceding information or prosecutor's information." See, People v. Evangelista, 1 Misc 3d 873, 874, 771 NYS2d 791(Crim Ct Bx Cty 2003).

Thus, the People have 30 days from the date of this decision to provide a superceding information, or a prosecutor's information, regarding the sole count of the Criminal Court complaint.^[FN1]

OTHER RELIEF REQUESTED

People are directed to provide pre-trial disclosure of all materials subject to CPL Sec. 240.20, as well as all exculpatory materials to the defense, and the People are reminded of their continuing obligations under People v. Rosario, 9 NY2d 286, 213 NYS2d 448 (1961) and Brady v. Maryland, 373 US 83, 83 S Ct 1194 (1963). [*5]

Defendant has moved for suppression of any statements he allegedly made to law enforcement personnel. This motion is granted to the extent of ordering a pre-trial hearing at which the issue of whether or not Defendant's statements are admissible, and whether or not there was probable cause for the Defendant's arrest will be considered.

Defendant seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendants will be conducted by the trial judge, prior to any trial of this matter.

All other arguments and requests for any additional hearings and relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Bronx, New YorkFebruary 8, 2013

_______________________________Hon. John H. Wilson, JCC