People v. Gaissert

• Decision Date: 03 October 1973
• Citation: 348 N.Y.S.2d 82,75 Misc.2d 478
• Parties: PEOPLE of the State of New York, Plaintiff, v. Robert F. GAISSERT, Defendant.
• Court: New York County Court

Page 82

348 N.Y.S.2d 82

75 Misc.2d 478

PEOPLE of the State of New York, Plaintiff, v.Robert F. GAISSERT, Defendant.

Nassau County Court, Special Term, Part I.

Oct. 3, 1973.

William Cahn, Dist. Atty., Nassau County, Mineola, for appellant.

Bechtle & Probitsky, Mineola, for defendant by Eugene W. Bechtle Jr., Mineola.

JOHN S. LOCKMAN, Judge.

The defendant, by his attorney, moves this Court for an Order granting the following relief; (1) dismissal of the third count of the indictment which charges him with Obstructing Governmental Administration on the ground that said count is defective within the meaning of CPL § 210.25;(2)a Bill of Particulars; and (3) Discovery.

(1) The third count of the indictment alleges that:

'The defendant, ROBERT F. GAISSERT, on or about the 24th day of March, 1973, in the County of Nassau, State of New York, intentionally prevented and attempted to prevent Patrolman Arthur French, a public servant, from performing an official function by means of an independently unlawful act, to wit: said defendant did identify himself as Robert Coltrane, said name not being his true name.'

The defendant argues that the conduct recited in the third count does not constitute an 'independently unlawful act' and that the court is therefore defective.

To be guilty of Obstructing Governmental Administration by means of an 'independently unlawful act'(Penal Law 195.05) one must engage in conduct proscribed by an existing statute.(People v. Longo, 71 Misc.2d 385, 390, 336 N.Y.S.2d 85).Thus Denzer and McQuillan in their Practice Commentary to Penal Law 195.05(McKinney's Cons. Laws of N.Y., Book 39) offer as an example of an 'independently unlawful act' conduct violative of Penal Law 145.00 which, because of the intent to obstruct a governmental function, also violates Penal Law 195.05.Rightly or wrongly, falsely identifying oneself to a police officer is not, in and of itself, a violation of an existing statute.It does not amount to Criminal Impersonation unless the name given is that of a real person.(Penal Law 190.25).It does not constitute the Making of an Apparently Sworn False Statement unless the statement is both written or sworn to.(Penal Law 210.35).In short, it is not an 'independently unlawful act'.

Therefore, the first branch of the defendant's motion must be granted and the third count of the indictment is hereby dismissed.

(2)The defendant seeks a Bill of Particulars specifying various items.'The sole function of a bill of particulars is to define more specifically the crime or crimes charged in the indictment.'(Commission Staff Comments toCPL § 200.90).A defendant is not entitled under a Bill of Particulars to learn the precise nature of the People's evidence.(People v. Courtney, 40 Misc.2d 541, 243 N.Y.S.2d 457;People v. Spina, 14 A.D.2d 505, 217 N.Y.S.2d 247).Since the twenty items sought here are all evidentiary in nature and unnecessary to define more specifically the crimes alleged, the defendant is not entitled to the requested Bill of Particulars.

Therefore, the branch of the motion seeking a Bill of Particulars is denied.

(3)The defendant seeks discovery of the following items:

(a) Copies of all physical examination reports and tests made in connection with the treatment of the victim of the crimes charged.The People aver that these records are currently in the possession, custody and control of the Nassau County Medical Center rather than that...