Defendant, charged with Unlawful Imprisonment in the Second Degree (Penal Law § 135.05) and Obstructing Government Administration in the Second Degree (Penal Law § 195.05), moves to dismiss the Information as facially insufficient. For the reasons set out below, the motion to dismiss is GRANTED.^[FN1] Sealing is stayed for 30 days.

On the night of March 13, 2014, Police Officer Thomas Sullivan arrived at a Manhattan apartment pursuant to a radio run. From outside the door he could hear the complainant, Evilla Roebuck, crying and the defendant yelling. Sullivan knocked loudly and announced, "Police Department." When Ms. Roebuck said,"What do you want," Sullivan replied that he needed to speak to her and ordered her to open the door.

Ms. Roebuck replied that she was "fine," but was still crying. Sullivan again demanded that she open the door so that he could "make sure that everyone in the apartment is okay." Defendant refused to open the door, confirming that everyone in the apartment was "okay." Sullivan persisted in demanding entry, without success.

He then overheard Ms. Roebuck say, "This isn't my fault. You have to take resopnsibility. Look at what you did to my face." Defendant told her to open the door after he went out on the fire escape, while Sullivan continued to demand entry. Defendant told Sullivan that they did not need the police and that everyone in the apartment was going to sleep. Ms. Roebuck was still crying.

Eventually, Ms. Roebuck opened the door. She had lacerations and abrasions on her face. Defendant was in a back room of the apartment; he and Ms. Roebuck were the only civilians present.

Defendant was arraigned on March 14, 2014, on a Misdemeanor Complaint charging him with two counts of Assault in the Second Degree (Penal Law §§ 120.00(1) and (2)), Unlawful Imprisonment in the Second Degree (Penal Law § 135.05), Attempted Assault in the Third Degree (Penal Law §§ 110/120.00(1)) and Harassment in the Second Degree (Penal Law § 240.26(1). The Court set bail and a motion schedule and Adjourned the case to March 19 for conversion.

On March 19, 2014, the People filed a Superseding Information charging the defendant with the same five counts, along with one count of Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05). The Court, however, concluded that the Information converted only Count 3, Unlawful Imprisonment in the Second Degree, and Count 4, Obstructing Governmental Administration in the Second Degree.

Defendant posted bail and filed the instant motion to dismiss in court on April 10, 2014. On May 20, the People filed a written response, and the Court Adjourned the case to July 22 for decision. The matter has been sub judice since May 20.

The Information alleges that both the defendant and the complainant to admit the police into an apartment, defying an officer's request that he be admitted so that he could ascertain that everyone in the apartment was "okay." The Court concludes these facts do not sufficiently make out a prima facie case of the "restraint" element of Unlawful Imprisonment in the Second Degree, under Penal Law § 135.05. Nor do they make out a prima facie case of Obstructing Governmental Administration in the Second Degree; there is no basis for concluding that defendant obstructed an "authorized" governmental action.

The prima facie case requirement does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information need only contain allegations of fact that "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." People v Casey, 95 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236. Under these standards, the Information here is facially insufficient as to both counts.

A person is guilty of Unlawful Imprisonment in the Second Degree, Penal Law § 135.05, when he "restrains another person." "Restrain" means:

1. Defendant Did Not "Restrain" the Police Officer

With respect to the officer, while it is true that the defendant - and the complainant too, although she apparently was not charged - refused to admit the officer, that is not an unlawful "restraint." This refusal did not "restrict" the officer's "movements" by either "moving him from one place to another" or by "confining him." While the officer would clearly have preferred to be inside the apartment, as opposed to outside of it, his movement was not restricted. He was free to go any place he wished, and was not in any way "confined" to the hallway outside the apartment door.

Nor is there any allegation that the officer was kept outside the apartment by "physical force, intimidation or deception." The Information merely indicates that defendant refused to open the door. This type of passive resistence does not constitute physical force. See, e.g., People v. Alston, 9 Misc 3d 1046, 805 N.Y.S.2d 258 (Crim Ct NY County 2005) (refusal to hand over license, registration and proof of insurance during a traffic stop was not "physical force"); People v. Simon, 145 Misc 2d 518, 547 N.Y.S.2d 19 (Crim Ct NY County 1989) (destruction of evidence is not "physical force").

Accordingly, the Information does not make out a prima facie case of restraint with respect to the officer.

2. Defendant Did Not "Restraint" the Complainant

The Information also fails to make out a prima facie case of restraint with respect to the complainant.

The facts alleged show merely that defendant refused to let the police into the apartment; there is no allegation that defendant kept the complainant there against her will. This is, of course, the gravamen of the offense. For example, in People v. Jordan, 43 Misc 3d 1210(A) at *4 (Crim Ct 2014), there was sufficient evidence of restraint where the defendant "locked and barricaded the door to the room containing her, [her] five children and two adults, command[ed]' some of the children to block the door, and pushed away the two adults when they tried to open it."

But here, absent any allegation from which it could be reasonably inferred that defendant used physical force, intimidation or deception to hold the complainant in the apartment against her will the Information is facially insufficient as to "restraint."

On the facts alleged, the Information does not make out a prima facie case of Obstructing [*5]Governmental Administration in the Second Degree. Defendant's refusal to admit the police into the apartment was not unlawful, since the Information does not allege either that the police had a warrant or that exigent circumstances justified a forcible entry.

As pertinent here, a person violates Penal Law § 195.05 when he "attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference." The "official function" element requires that the public servant's action be "authorized," which in turn requires that the action be lawful. For example, in People v. Graham, 54 AD3d 1056, 865 N.Y.S2d 259 (2d Dept 2008), the court upheld a conviction under § 195.05 where defendant's disruptive behavior interfered with an otherwise lawful traffic stop. However, interference with unauthorized police conduct, such as an illegal stop or detention, does not violate § 195.05. People v. Small, 109 AD3d 842, 971 N.Y.S2d 212 (2d Dept 2013); People v. Lupinacci, 191 A2d 589, 595 N.Y.S2d 76, 77 (2d Dept 1993).

1. Refusals to Admit the Police Generally

Ordinarily, a citizen's refusal to admit the police does not violate § 195.05. In People v. Offen, 96 Misc 2d 147, 148, 408 N.Y.S.2d 914, 915 (Crim Ct NY County 1978), defendant, a shopkeeper, cursed at a police officer who announced that he was going to issue the defendant a summons for littering. Defendant returned to his store, closed and locked the door and rebuffed police officers' numerous requests to open it. 96 Misc 2d at 149, 408 N.Y.S.2d at 915. The court concluded that this refusal did not violate § 195.05. "[I]t is no crime to refuse to open a door to police officers," although the defendant of course assumes the risk that such a refusal might result in additional rights, duties or actions by the officers. 96 Misc 2d at 150, 408 N.Y.S.2d at 915.

Subsequent cases have confirmed that, except in cases where there is a "legal obligation to open the door," a refusal to do so, without more, does not obstruct, impair or prevent the administration of any law or governmental function, nor does it prevent the police from performing an official function. People v. Martin, 35 Misc 3d 133(A), 951 N.Y.S.2d 88 (App Term 9th and 10th Dists 2012). Such a legal obligation will arise, however, where the police seek entry pursuant to a valid warrant . See People v. Paige, 77 AD3d 1193, 911 N.Y.S.2d 176 (3d Dept 2010) (evidence legally sufficient where officers reasonably believed that subject of an arrest warrant was present in residence, but defendant refused to admit them so that they could execute the warrant). Cf. People v. Rodriguez, 19 Misc 3d 302, 851 N.Y.S.2d 342 (Crim Ct NY County 2008) (where information alleged that defendant refused to admit police officer, it was insufficient absent facts showing that the warrant was being lawfully executed).

2. Refusals to Admit the Police Where Exigent Circumstances Are Present

Absent a warrant, however, a legal obligation to admit the police only arises where there exists an exception to the warrant requirement, such the presence of exigent circumstances. Rodriguez, 19 Misc 3d at 306, 851 N.Y.S.2d at 346 (without a valid warrant or exigent circumstances, officer "officer had no authority to demand entry"). See also Martin, 35 Misc 3d at 133(A), 951 N.Y.S.2d at 88 (information was insufficient; it pled neither a warrant nor exigent circumstances permitting a forcible entry); People v. Briggs, 24 Misc 3d 1217(A), 890 N.Y.S.2d 370 (Crim Ct NY County 2009) (same); People v. Williams, 16 Misc 3d 1109(A), 847 N.Y.S.2d 898 (Crim Ct Bronx County 2007) (bare allegation that police were investigating "gang activity" did not create an exigent circumstance; defendant's refusal to admit police if they lacked a warrant did not violate § 195.05). The instant case turns on this very question.

3. Exigent Circumstances Are Not Sufficiently Alleged

Here, the Information does not allege that defendant refused to admit officers who were attempting to execute a warrant. Rather, defendant is charged with violating § 195.05 for refusing a warrantless entry. However, since the facts set out in the Information do not permit a reasonable inference that exigent circumstances were present, the Information is facially insufficient.

The Court of Appeals has analyzed situations analogous to that at issue here under the general rubric of an "emergency exception" to the warrant requirement. People v. Molnar, 98 NY2d 328, 774 N.E.2d 738, 746 N.Y.S.2d 673 (2002). This exception arises where the police have "reasonable grounds to believe that there is an emergency at hand and [that there is] an immediate need for their assistance for the protection of life or property." Id. 98 NY2d at 332, 774 N.E.2d at 740, 746 N.Y.S.2d at 675 (citation and internal quotation marks omitted). For this exception to apply, the "protection of human life or property in imminent danger must be the motivation for the search."^[FN2] Id. Molnar identifies a spectrum of potential exigencies:

The Court concludes that the facts pled here are not sufficiently extreme to trigger an emergency exception. The Information alleges only that the police responded to the apartment due to a radio run, without describing the content of the run. On arrival, the officer heard the complainant crying and the defendant shouting, but there is no indication that the shouting suggested that anyone was in imminent danger. Nor, as discussed above, is there any allegation that the complainant was being held against her will. When the officer inquired, the complainant told him that she was "fine" and did not need police assistance. Although the officer continued to hear crying, defendant also confirmed that "everyone in the apartment is okay" and that "we don't need [the police.]" These facts are much closer to the "noise to the point where neighbors complain" end of the Molnar spectrum than they are to the "shooting in progress or a hostage held" end. And the police seem to have believed this as well, since they never attempted a forcible entry. This case is accordingly very much like Briggs. 24 Misc 3d at 1217(A), 890 N.Y.S.2d at 370. There, allegations of "fighting and shouting" inside an apartment did not give rise to exigent circumstances, and defendant's refusal to admit the police did not violate § 195.05. Id.

For these reasons, then, the Court concludes that the Information is facially insufficient; it [*6]does not make out a prima facie case of Obstructing Governmental Administration in the Second Degree.

The Information is facially insufficient as to both counts. The motion to dismiss is accordingly granted; sealing is stayed for 30 days.

For the foregoing reasons, defendant's motion to dismiss is granted. Sealing is stayed for 30 days.