People v. Cross
| Decision Date | 31 March 2016 |
| Docket Number | 2015BX045943 |
| Citation | 2016 NY Slip Op 50531 (U) |
| Parties | The People of the State of New York, v. Anthony Cross, Defendant. |
| Court | New York Criminal Court |
The People — Darcel D. Clark, District Attorney, Bronx County by Christine McGrath, Assistant District Attorney
Defendant — The Bronx Defenders by Abigail Parr
Defendant is charged with Assault in the Third Degree (PL § 120.00[2]), Resisting Arrest (PL § 205.30), Disorderly Conduct (PL § 240.20[5]), and Harassment in the Second Degree (PL § 240.26[1]).
Defendant moves for an order 1) dismissing counts two, three, and four of the superseding information as facially insufficient; 2) suppressing any and all statements taken from defendant for which the People served proper notice pursuant to CPL § 710.30, or in the alternative, granting a hearing for findings of fact and conclusions of law (Huntley/Dunaway); 3) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts; and 4) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the superseding information, sworn to by PO Robert Lyon, read as follows:
Deponent states that, [on or about September 26, 2015 at approximately 2:20 PM at inside at Northeast Corner of Allerton Avenue and White Plains Road, County of the Bronx, State of New York], the number No.2 or #5 subway line, a Metro Transit Authority subway station, deponent observed the defendant moving between and standing directly in front of the turnstiles for approximately five (5) minutes. Deponent further states that defendant approached multiple passengers, asking said passengers for fare swipes and entry into the subway station. Deponent further states that he observed defendant obstructing pedestrian traffic in that defendant was standing directly in front of said turnstiles, causing multiple passengers to walk around defendant to use adjacent turnstiles to exit and enter the subway station.
Deponent further states that upon attempting to place defendant under arrest for defendant's aforementioned conduct, defendant flailed his arms and twisted his body, refusing to be handcuffed.
Deponent further states that defendant stated in sum and substance FUCK YOU PIG.
Deponent further states that after defendant was placed in handcuffs, defendant kicked his legs and twisted his body, refusing to be placed in the transport van. Deponent further states that when deponent attempted to place defendant in the transport van, defendant repeatedly kicked his legs, striking deponent in the right eye with his leg. Deponent further states that he suffered bruising, swelling, and substantial pain to his right eye as a result of the defendant's aforementioned conduct.
Deponent further states that as a result of defendant's aforementioned conduct, he experienced annoyance, alarm, and feared for his physical safety.
Defendant argues that counts two, three, and four, PL §§ 205.30, 240.20(5), and 240.26(1), respectively, must be dismissed because the factual allegations are insufficient to support the offenses charged.
Defendant asserts that the charge of PL § 240.20(5) is facially insufficient in that the superseding information fails to adequately allege that he caused more than a mere inconvenience or that he acted with the required intent. Defendant notes that courts have consistently found that a defendant's conduct which caused pedestrians or motorists to travel around the defendant or slow down behind the defendant was insufficient to establish the charge of Disorderly Conduct. Similar to People v. Jones, 9 NY3d 259 (2007), defendant contends that the superseding information describes nothing more than him standing in front of a turnstile and pedestrians having to use adjacent turnstiles to enter and exit the subway system. In addition, defendant avers that the superseding information fails to establish that he intentionally caused public inconvenience or recklessly created the risk thereof. At best, defendant contends that he inadvertently caused a minor interference to pedestrian traffic.
With respect to the charge of PL § 205.30, defendant notes that the accusatory instrument must demonstrate that he prevented a police officer from effectuating a lawful arrest, premised upon probable cause. Since the underlying charge of PL § 240.26(5) is facially insufficient, defendant submits that the superseding information fails to demonstrate that he engaged in any conduct which would have given rise to an authorized arrest. Therefore, defendant argues that the charge of PL § 205.30 must be dismissed.
Citing People v. Peacock, 68 NY2d 675 (1986) and People v. Traber, 35 Misc 3d 149(A) (App Term, 2d, 11th & 13th Jud Dists 2012), defendant avers that the charge of PL § 240.26(1) cannot stand because the deponent officer's conduct was unauthorized. Moreover, defendant asserts that the intent element of harassment is lacking where the initial police conduct was unauthorized. Rather than possessing an intent to harass or annoy the deponent officer, defendant maintains that he acted with the intent to resist an unauthorized arrest.
In opposition, the People argue that the superseding information is facially sufficient in that it provides 1) adequately detailed facts of an evidentiary nature to support each and every element of the offenses charged and 2) suitable notice to defendant to prepare a defense to the offenses charged.
The People assert that defendant's reliance on Jones is misplaced. Unlike Jones, where the defendant was only observed to be standing in the middle of the sidewalk causing pedestrians to walk around him, the People argue that defendant did more than simply stand on the sidewalk inconveniencing pedestrians. Instead, defendant stood between and in front of turnstiles at a subway station, causing multiple passengers to walk around him to use different turnstiles. As to the element of intent, the People assert that defendant's intent may be inferred from the "natural and necessary and probable consequences" of his actions, namely, the fact that defendant deliberately approached passengers asking for fare swipes as well as his actions of standing in between and in front of the turnstiles for five minutes. Furthermore, the People argue that defendant's actions did cause a public inconvenience as multiple passengers were forced to walk around him to use other turnstiles.
With respect to the Resisting Arrest charge, the People contend that the determination as to whether an arrest was authorized is left to the trier of fact and therefore, should not be addressed in the instant motion. Nonetheless, the People maintain that the deponent officer had the requisite probable cause and authority to arrest defendant for Disorderly Conduct. Additionally, the People aver that defendant's intentional actions of flailing his arms and twisting his body, and refusing to be handcuffed amply alleges the charge of Resisting Arrest.
Lastly, the People maintain that the Harassment charge is facially sufficient in that the superseding information contains specific facts and details which demonstrate that defendant acted with the intent to harass, annoy or alarm the deponent officer when he repeatedly and deliberately kicked his legs and struck the deponent officer in the right eye. In contrast to Traber, the case relied upon by defendant, the People argue that defendant's arrest was based upon probable cause and defendant was not grabbed from behind without warning. Rather, the People point out that defendant was already in handcuffs when he began kicking his feet repeatedly. Based upon a fair reading of the superseding information, the People submit that the elements of PL § 240.26(1) have been adequately pled.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10 (App Term, 2d Dept. 2005). As such, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the...
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