The People of
the State of New York, Plaintiff,
against
Rihanna Chung, Defendant.
|
2013KN87566
For the People:
Kenneth P. Thompson
Kings County District Attorney
by Assistant District Attorney Daniel Costello
350 Jay Street
Brooklyn, New York 11201
Tel: 718-250-4935
For the Defendant:
The Legal Aid Society
by Nora Carroll
111 Livingston Street
Brooklyn, New York 11201
Tel: 718-243-6397
Laura R. Johnson, J.
Defendant Rihanna Chung is charged in Kings County Docket Number
2013KN87566 with two misdemeanors and a violation: Obstructing Governmental
Administration in the Second Degree (PL §195.05), Resisting Arrest (PL
§205.30) and Harassment in the Second Degree (PL §240.26[1]). By Notice of
Motion filed March 24, 2014, defendant seeks dismissal of the count charging her with
Obstructing Governmental Administration on the ground that it is facially insufficient.
The People oppose defendant's Motion by Affirmation dated March 31, 2014. For the
reasons that follow, defendant's motion to dismiss is denied.
Facts
The accusatory instrument, which has been deemed an information, is sworn
to by Police Office James St. Louis, shield number 14132, of the 88th Precinct. It alleges
that on or about November 14, 2013 at approximately 2:20 pm at 420 Carlton Avenue,
County of Kings, New York:
Deponent observed the defendant slap a plastic cup containing alcohol out of
the hand of Sergeant Bowe, shield number 1720 of the 88 command, spilling alcohol
onto Sergeant Bowe's face and uniform, and that defendant ripped Sergeant Bowe's arm
and was screaming and cursing.
Deponent further states that deponent observed the defendant resist a lawful
arrest by shoving and twisting away from Sergeant Bowe while deponent attempted to
place defendant in handcuffs as defendant continued to yell and cursing."Analysis
Facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid
prosecution and "may be challenged on appeal even though a defendant never raised the
alleged insufficiency prior to entering a guilty plea." People v. Kalin, 12 NY3d 225, 229 (2009). In order to be
facially sufficient, an information must substantially conform to the formal requirements
of Criminal Procedure Law ["CPL"] § 100.15. The factual portion and any
accompanying depositions must provide reasonable cause to believe the defendant
committed the offense charged, as well as non-hearsay factual allegations of an
evidentiary character which, if true, establish every element of the offense charged and
defendant's commission thereof. CPL § 100.15(3) & 100.40(1); see People
v. Dumas, 68 NY2d 729 (1986); see also People v. Alejandro, 70 NY2d 133
(1987). Where the factual allegations contained in an information "give an accused
sufficient notice 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).
The People contend that defendant has waived her claim of facial
insufficiency because she failed to file her motion to dismiss within the forty-five days of
arraignment mandated by CPL §255.20. The People are mistaken. While it is true
that a claim that an information is defective because it contains hearsay is waived if not
raised within the time allotted for motion practice, see People v. Casey, 95 NY2d
at 362-367, defendant's claim is not that the accusatory instrument contains hearsay.
Instead, she argues that it failed to contain any facts of an evidentiary nature from which
it could be determined that Sergeant Bowe was performing an "official function," an
element of the obstructing charge. The Court of Appeals has held that "[a]n information
that does not satisfy this standard by failing to allege a complete element of the charged
offense is jurisdictionally defective and may be challenged on appeal even though a
defendant never raised the alleged insufficiency prior to entering a guilty plea." People v. Kalin, 12 NY3d
225, 229 (2009). Defendant is not barred by CPL § 255.20 from making the
instant motion.
In relevant part, under PL § 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 . . . ." Defendant
argues that the information is fatally defective because it does not state that Sergeant
Bowe was performing an official function or duty when defendant allegedly slapped the
cup out of his hand, spilled alcohol on him, screamed and cursed and "ripped" [*2]at his arm.
"Without the inclusion of evidentiary facts specifying an official activity, an
information [charging Obstructing Governmental Administration] is legally insufficient."
People v. Joseph, 156 Misc 2d 192, 196 (Crim Ct, Kings County 1992). This
element of the charge is not made out by the mere allegation that a police officer was on
duty. People v. Joseph 156 Misc 2d at 196; People v. Vargas, 179 Misc
2d 236, 238 (Crim Ct, NY County 1998).
Were the only basis for the obstruction charge defendant's interference with
whatever action Sergeant Bowe was attempting to perform immediately before defendant
slapped the cup out of his hand, defendant would be right — the charge would
have to be dismissed. Although the Court might make an educated guess that the
Sergeant was in the process of issuing a summons for public consumption of alcohol at
that point, it would only be a guess. Such speculation could not substitute for the
"evidentiary facts" needed to establish the "official function" element of the charge.
Sergeant Bowe's purpose in holding the plastic cup of alcohol is never described. The
flaw in defendant's argument is that it assumes that the obstructing charge can only be
predicated on her having interfered with whatever activity Sergeant Bowes was carrying
out when she slapped the cup out of his hand. However, the accusatory instrument also
alleges that defendant physically interfered with the efforts of Sergeant Bowe and the
deponent to arrest her. A lawful arrest is an official governmental function. Indeed,
defendants are not infrequently charged with both Resisting Arrest and Obstructing
Governmental Administration for forcibly repelling police efforts to place them under
arrest. See, e.g. Matter of Verna C., 143 AD2d 94 (2d Dept 1988) (recognizing
that a interference with a lawful arrest constituted obstruction of governmental
administration but finding petition defective because the arrest was not authorized);
People v. Cacsere, 185 Misc 2d 92, 93-94 (App Term, 2d Dept 2000) (upholding
facial validity of accusatory instrument charging defendant with obstructing
governmental administration based on resisting her own arrest, while noting that factual
allegations must establish that the arrest was in fact authorized).
As noted, where the obstruction charge is based on resisting arrest, the
accusatory instrument must also set out facts sufficient to establish that the underlying
arrest was a lawful one. In this case, the information alleges that defendant slapped a cup
of liquid out of Sergeant Bowe's hand, spilling it on him and "ripped" his arm.
Regardless of the reason that Sergeant Bowe was holding the cup in the first instance,
this conduct was an adequate basis to arrest defendant for the violation of Harassment in
the Second Degree (with which she is also charged). It is irrelevant whether Sergeant
Bowe was about to issue a summons or take a drink, because that offense is committed
when an individual "strikes, shoves, kicks or otherwise subjects [an]other person to
physical contact or attempts or threatens to do the same." PL § 240.26(1). Once
defendant committed the acts alleged, the officers were lawfully entitled to arrest her for
harassment, and her physical interference with their attempt to do so establishes both the
resisting and the obstruction charge.Conclusion
For the reasons set forth above, defendant's motion to dismiss the charge of
obstructing governmental administration in the second degree (PL § 195.05) from
the accusatory instrument is denied.
This constitutes the Decision and Order of the Court.
DATED:May 2, 2014
Brooklyn, New York
Laura R. Johnson, J.C.C.