Defendant is charged with one count of Obstructing Governmental Administration in the Second Degree (PL Sec. 195.05), a Class A misdemeanor.

By omnibus motion dated September 2, 2013, Defendant seeks the following: dismissal of the sole charge, 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 and identification procedures conducted by law enforcement personnel, as well as evidence of any prior bad acts or immoral conduct.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated October 17, 2013.

For the reasons stated below, the motion to dismiss is denied. [*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 motions for pre-trial hearings are 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 and an identification procedure was conducted in violation of his rights under the United States and New York State Constitutions.

A hearing regarding whether 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 May 29, 2013 at approximately 2:22 PM, at the intersection of Beach Avenue and Archer Street, Bronx, New York, an undercover officer "was engaged in a drug related conversation with an unapprehended individual pursuant to an undercover drug investigation." See, Criminal Court complaint dated May 30, 2013, p 1.

The defendant "then approached (the undercover officer) and the unapprehended individual and stated...'He is a Cop'...defendant then took a picture of (the undercover officer) on his IPhone." See, Criminal Court complaint dated May 30, 2013, p 1.

The defendant's actions "obstructed (the undercover officer) from performing an official function of conducting an undercover drug investigation... (the undercover officer) was forced to leave the above-mentioned location in fear for both his safety and the safety of his field team, and thus concluding his investigation of narcotics related activity at the above-mentioned location." See, Criminal Court complaint dated May 30, 2013, p 2.

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 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). [*3]

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 sufficient.

Under PL Sec. 195.05, "a person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or...prevents or attempts to prevent a public servant from performing a lawful function by means of intimidation, physical force or interference." (Emphasis added.)

The defendant is alleged to have approached an undercover officer while that officer "was engaged in a drug related conversation with an unapprehended individual pursuant to an undercover drug investigation." Defendant is then alleged to have told the unapprehended individual that the undercover officer "is a Cop,' and then to have taken "a picture of (the undercover officer) on his IPhone." See, Criminal Court complaint dated May 30, 2013, p 1.

As a result of these actions, the undercover officer "was forced to leave the above-mentioned location in fear for both his safety and the safety of his field team, and thus concluding his investigation of narcotics related activity at the above-mentioned location." See, Criminal Court complaint dated May 30, 2013, p 2.

These actions would constitute "a knowing, physical interference with and disruption of the official function...being performed by the officer." See, People v. Meath, 219 AD2d 838, 632 NYS2d 1014 (4th Dept, 1995), citing, People v. Tarver, 188 AD2d 938, 591 NYS2d 907 (3d Dept, 1992), lv to app den, 81 NY2d 893, 597 NYS2d 955 (1993).

"Physical interference" is not synonymous with "physical force." Defendant's actions, as described in the Criminal Court complaint, may be viewed as an effort to intimidate the undercover officer into concluding his investigation, and leave the area. Under such circumstances, the facts stated in the complaint comport with the statutory definition of the proscribed offense. See, Matter of Davan L., 91 NY2d 88, 91, 666 NY2d 1015 (1997) (Where "defendant intentionally intruded himself into the specific area of police activity and directed his warnings toward a known criminal activity...a rational fact finder could conclude that [*4]he...interfered with and obstructed law enforcement administration.") ; People v. Romeo, 9 AD3d 744, 745, 779 NYS2d 860 (3d Dept, 2004) ("we note that 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.'") (Citations omitted.)

Therefore, Defendant's motion to dismiss for facial insufficiency is denied.

(B) 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).

Defendant has moved for suppression of all statements made to and identification procedures conducted by law enforcement personnel at the time of his arrest. This motion is granted to the extent of ordering a pre-trial hearing to determine if there was probable cause for Defendant's arrest; and whether or not statements were taken or an identification procedure was conducted in violation of Defendant's rights under the United States and New York State Constitutions.

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 YorkNovember 27, 2013

_______________________________Hon. John H. Wilson, JCC