In re Armell N.

• Citation: 905 N.Y.S.2d 471,28 Misc.3d 528
• Parties: In the Matter of ARMELL N., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Decision Date: 24 May 2010
• Court: New York Family Court

905 N.Y.S.2d 471 28 Misc.3d 528 In the Matter of ARMELL N., A Person Alleged to be a Juvenile Delinquent, Respondent. Family Court, Kings County, New York. May 24, 2010.

Michael A. Cardozo, Corporation Counsel (Carrie Eicholtz of counsel), for presentment agency.

Legal Aid Society (Todd Smith of counsel), for respondent.

LEE HAND ELKINS, J.

This matter is before the court for decision following fact finding. The respondent is charged with Obstructing Governmental Administration (Penal Law § 195.05), Resisting Arrest (Penal Law § 205.30) and Menacing in the third degree (Penal Law § 120.15)

Evidence at fact finding established that on June 11, 2009, at about 11 a.m. New York City Transit Police officers Santi and Cruz evicted the fifteen year old respondent Armell N. first from the A train, and then from the transit system. The officers testified that as they entered the A train at the Borough Hall subway station, they observed the respondent and another young man with their feet on the seat, occupying more than one seat in violation of transit authority rules. Officer Cruz testified that he told the respondent twice to put his feet down. The respondent "stomped and cursed," but complied with the order. Officer Santi testified that a few stops later, the respondent was staring at the officers and they "looked back at him." The respondent said to the officers: "What the f--- are you looking at?" Officer Cruz testified that he asked the respondent "what was (his) problem," and asked the respondent in turn what he was looking at. The officers conferred and decided that at the next stop they would remove the respondent from the train. According to officer Cruz, he was to be removed "for being disorderly and disrespectful." According to officer Santi, the respondent was being removed "because he was creating a public alarm and scaring the other passengers." The train stopped at the Euclid Avenue station in Brooklyn.Officer Santi approachedthe respondent as officer Cruz held the train doors. Officer Santi told the respondent three times to "get off the train." The respondent did not leave the train. The respondent declared that he was not getting off of the train and to the officers to "go f---." Officer Cruz then informed the respondent that if he did not get off of the train, the police officers "were going to forcibly remove him." Officer Cruz held the train door with his leg, while officer Santi grabbed the respondent's forearm and forcibly escorted the respondent from the train. Officer Cruz told the respondent that he was being removed from the train "for being disorderly, occupying more than one seat, and people seemed alarmed." After being removed from the train the respondent was "irate," "still cursing and flailing his arms, being disorderly." Officers Cruz and Santi then decided to eject the respondent from the transit system. They informed the respondent that he was being ejected. Officer Santi grabbed one forearm as officer Cruz grabbed the other forearm, and they escorted the respondent out of the subway station through the exit gate. Officer Santi testified that he informed the respondent that if he came back into the transit system, he would "be arrested for trespass." When the respondent arrived on the mezzanine, outside of the station entrance, he took his Metrocard out of his pocket and re-entered the station through the turnstile. Officer Santi testified that as he re-entered the respondent came running in, charging toward the officer, arms swinging "like out of rage." Officer Cruz testified that as he re-entered, the respondent "flailed his arms and hit officer Santi on the right side of the forehead." Officer Santi did not recall being hit. Both officer Santi and the respondent fell to the station floor. Officer Cruz got behind the respondent and tried to handcuff him for "not following a lawful order," and "not allowing us to perform our duties as NYC police officers." The respondent kept his arms under his chest to avoid being handcuffed. Ultimately, the officers were able to place handcuffs on the respondent.

The Presentment Agency variously argues that the respondent obstructed governmental administration when he refused to leave the train, and when he ran back into the station flailing his arms. The Presentment Agency argues that the respondent was subject to eviction from the train because he had his feet on the seat, and because he cursed at the police officers. According to the Presentment Agency, the former is specifically prohibited by Transit Authority regulations. As for cursing at the officers,the Presentment Agency asserts that the regulations are "not exhaustive, but merely illustrative." The Presentment Agency asserts that "it is implausible to create guidelines which anticipate every single scenario in which an individual police officer is authorized to eject someone from the system." In any event, the Presentment Agency argues, the respondent "created a dangerous situation for the other passengers riding the train and created public alarm when he began cursing at (the) officers." The Presentment Agency argues further that "once on the platform the respondent impeded the safe flow of traffic when he continued to curse at police and began flailing his arms at police while refusing to leave the station." Eventually, the petitioner argues, he resisted arrest for obstructing governmental administration when he lay on his arms and refused to be handcuffed. The petitioner also argues that the respondent intentionally placed officer Santi in fear of physical injury when he ran toward him flailing his arms, upon reentering the station.

The elements of Obstructing Governmental Administration are preventing or attempting to prevent a public servant from performing an official function by means of force, physical interference or an independently unlawful act. (Penal Law § 195.05). By judicial construction, the official function must be proven to have been a lawful exercise of public duty. Matter of Shannon B., 70 N.Y.2d 458, 522 N.Y.S.2d 488, 517 N.E.2d 203 [1987]; People v. Greene, 221 A.D.2d 559, 634 N.Y.S.2d 144 [2nd Dept.1995]; and see, People v. Perez, 47 A.D.3d 1192, 851 N.Y.S.2d 747 [4th Dept.2008]. The respondent's intent must have been to prevent the public servant from engaging in a specific official function. People v. Joseph, 156 Misc.2d 192, 592 N.Y.S.2d 238 [Crim. Ct. 1992] ("being on duty" was not an official function); cf., e.g., People v. Coffaro, 52 N.Y.2d 932, 437 N.Y.S.2d 666, 419 N.E.2d 344 [1981] (interfering with execution of a search warrant); Matter of Joshua C., 289 A.D.2d 1095, 735 N.Y.S.2d 324 [4th Dept.2001] (interfering with investigation into a domestic dispute) ]. The means of obstruction or impairment must include physical interference. People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977]. General refusal to cooperate with the police does not violate the statute. People v. Ferreira, 10 Misc.3d 441, 807 N.Y.S.2d 832 [Crim. Ct. 2005]; and see, People v. Perez, supra. The statute has been so construed to prevent its application from being without limit. People v. Case, supra at 103, 396 N.Y.S.2d 841, 365 N.E.2d 872.

Consequently, it is necessary for the Presentment Agency to prove that the officers were lawfully engaged in a specific official function, which the respondent intended to impede.Similarly, the Presentment Agency must prove that the police were lawfully arresting the respondent, in order to establish all of the elements of Resisting Arrest. People v. Perez, supra, at 1193, 851 N.Y.S.2d 747; see, Matter of Shannon B., 70 N.Y.2d 458, 522 N.Y.S.2d 488, 517 N.E.2d 203 [1987].

In essence the Presentment Agency's sole contention is that the respondent intentionally impeded the officers from engaging in the official function of ejecting him from the train and from the transit system. The authority of a transit police officer to eject a person from the transit system is established by the "Rules Governing the Conduct and Safety of the Public in the Use of the Facilities of New York City Transit Authority, etc." (21 NYCRR 1050.1, et. seq. [Rules] )

These rules are promulgated pursuant to Public Authorities Law 203[a], 1204[a] and 1209[a]. Under 21 NYCRR § 1050.11: "Any person who is observed by a transit police officer to be violating any of these rules and who may receive or has received a notice of violation therefore is subject to ejection from the facilities." Under 21 NYCRR § 1050.7, entitled "Disorderly Conduct," no person in any facility shall: "(i) conduct himself or herself in any manner which may cause or tend to cause annoyance, alarm or inconvenience to a reasonable person or create a breach of the peace; (j) occupy more than one seat on a station, platform or conveyance ..." The Presentment Agency also cites § 1050.6(d)(1): "All persons on or in any facility or conveyance of the authority shall: (1) comply with the lawful orders and directives of any transit police officer or other authority employee acting within the scope of his or her employment."

The evidence shows that the respondent upon being told to desist from occupying more than one seat on the train did so, however reluctantly. The Rules specifically require that the person who is observed to be in violation of their provisions, "havereceived notice of (such) violation" prior to ejection. (21 NYCRR 1050.11). It follows that a person who has received notice of the violation and thereafter complies is not subject to ejection. Consequently, the court does not find that the officers were justified in ejecting the respondent from the train for occupying more than one seat. Nor does the court find that the respondent violated § 1050.6[d][1], by failing to comply with the lawful directive of the police officers to remove his feet from the seat. The only arguable basis for the officers to eject the respondent from the train, therefore, was his statement to them.

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