People v. Joseph

• Decision Date: 02 December 1992
• Parties: The PEOPLE of the State of New York v. Calvin JOSEPH, Defendant. : AP4
• Court: New York City Court

Page 238

592 N.Y.S.2d 238

156 Misc.2d 192

The PEOPLE of the State of New York v. Calvin JOSEPH, Defendant.

Criminal Court of the City of New York,

Kings County, Part: AP4.

Dec. 2, 1992.

Office of Robert M. Baum, Brooklyn (Angeli Rasbury, of counsel), for defendant.

Charles J. Hynes, Dist. Atty. by Asst. Dist. Atty., James Hackett, for the People.

WILLIAM GARNETT, Judge.

Is a police officer engaged in an "official function" as contemplated by Penal Law § 195.05, entitled "Obstructing Governmental Administration in the Second Degree", when he or she is merely in uniform and on patrol?

By this information, the defendant is charged with Assault in the Third Degree, Criminal Possession of a Weapon in the Fourth Degree and Obstructing Governmental Administration in the Second Degree.

As part of his omnibus motion and pursuant to C.P.L. §§ 170.30 and 170.35, the defendant has moved to dismiss the count charging Obstructing Governmental Administration for facial insufficiency.

In essence, the information alleges that the defendant assaulted a police officer who "was in uniform and on patrol performing lawful police duties".

The defendant asserts that § 195.05 of the Penal Law requires that the People plead a specific official function which the defendant allegedly prevented or attempted to prevent by means of physical force or interference.

The People necessarily argue that any physical force or interference exerted against a police officer on routine patrol is per se an obstruction of an official police function. Thus, the argument continues any physical interference with a police officer while he or she is on duty, and not necessarily engaged in a specific activity, is proscribed by Penal Law § 195.05.

It is axiomatic that an information, to be legally sufficient and to therefore confer jurisdiction, must contain factual allegations which, in addition to establishing "reasonable cause" to believe the defendant committed the offense charged, "establish, if true, every element of the offense charged...." C.P.L. §§ 100.40(1)(b), (1)(c), 100.15(3); People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).

Penal Law § 195.05 provides, in pertinent part, that: "A person is guilty of obstructing governmental administration when he intentionally ... prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference...." The Practice Commentary observes: "Section 195.05 ... is applicable to a person who intentionally impedes or defeats a governmental function." (Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 195.05, p. 395, 1975).

The plain meaning of the statute and the accompanying Commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function. The essence of the statute is the physical interference with the execution of an official activity rather than the nature of the physical act or its possible manifest consequences, i.e. physical injury. A person may or may not commit an assault on a public servant depending on the effects of the unjustified application of physical force. Likewise, an assault on a public servant may not entail the obstruction of a governmental function if the public servant was not engaged in the performance of an official function at the time of the assault. The words of the statute clearly indicate that an essential element of this crime is the prevention or attempted prevention of a specific official function by a public servant.

This conclusion is buttressed by the fact that the current statute was designed to encompass various provisions of the former Penal Law which had proscribed interference with specific governmental functions. See §§ 196, 490, 1320, 1322, 1824, 1825 and 1851 of the former Penal Law; see Matter of Walter S. 71 Misc.2d 1032, 337 N.Y.S.2d 774 (Family Ct., Queens Co., 1972). Thus, the inclusion of these precise prohibitions in § 195.05 show that this new broad statute was fashioned to consolidate the scattered provisions of the former Penal Law into a comprehensive statute whose ambit includes all attempts to prevent the performance of official functions by physical force or interference.

The expansive scope of this statute has evoked concern that this law not become a "broad catchall". (Hechtman, Practice Commentaries, supra at 396; People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). There has been additional anxiety that this statute would have "no outer boundaries" to its application. People v. Simon, 145 Misc.2d 518, 522, 547 N.Y.S.2d 199 (N.Y.C.Crim.Ct.1989). An example of this potential overreaching was a charge brought against a student who had become unruly during the dismissal of a class by a public school teacher. The Court rejected the application of § 195.05 to this isolated incident as too severe. Matter of Walter S., supra. Thus, a narrow application of the plain and unambiguous language of the statute would heed the admonition that the statute not be transformed into a "catchall" for any physical contact with a public servant. This warning, in conjunction with the words of the statute, supports the contention that a public servant must be engaged in a specific action at the time of the physical interference, and not just on duty, in order to invoke § 195.05.

Section 195.05 is analogous to § 120.05(3) of the Penal Law, Assault in the Second Degree, in that this felony statute imposes strict liability on a person who causes physical injury to a police officer where that person acted with intent to prevent the performance of lawful duties. This Penal Law section requires that the assailant intend to prevent the performance of a lawful duty. People v. Kent, 143 A.D.2d 278, 532 N.Y.S.2d 152 (2d Dept.1988). "Generally, intentionally preventing a public servant from performing an official function constitutes the class A misdemeanor of Obstructing Governmental Administration in the Second Degree ... However, if certain public servants ... suffer physical injury as a result, the crime of Assault in the Second Degree, a class D felony, may be charged." (Donnino, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law Art. 120, p. 451). "[U]nder both section 195.05 and subdivision 3 of section 120.05 [of the Penal Law] a police officer or peace officer is protected in the performance of an official function of whatever kind." People v. Coffaro, 52 N.Y.2d 932, 934, 437 N.Y.S.2d 666, 419 N.E.2d 344 (1981). Thus, the Court of Appeals has equated "an official function" with a "lawful duty". Therefore, the requirement that an officer be engaged in a lawful duty at the time of an assault to invoke the felony assault statute appears to be the same element contained in Section 195.05 which prohibits the prevention of an official function.

Further support for the conclusion that a specific official function must be alleged in the factual portion of an information is derived from the requirement that the public servant's action, i.e. official function, must have been lawful or authorized. People v. O'Connor, 257 N.Y. 473, 178 N.E. 762 (1931); People v. Vogel, 116 Misc.2d 332, 457 N.Y.S.2d 666 (App. Term 2d Dept. 9th & 10th Jud.Dist.1982); People v. Stumpp, 129 Misc.2d 703, 704, 493 N.Y.S.2d 679 (Dist.Ct. Suffolk County 1985); People v. Ailey, 76 Misc.2d 589, 350 N.Y.S.2d 981 (City Court of Buffalo 1974). The trier of fact must be alerted to the official function which is alleged to have been prevented. Thus, facts must be pleaded which indicate that the activity was authorized or lawful under the circumstances. Absent such factual allegations, an essential element will have been omitted.

The vast majority of the reported cases which have interpreted § 195.05 of the Penal Law have dealt with the physical interference element of the statute. Despite this focus, the cases address the sweep of the statute and demonstrate its factual applications. In all of the cases where the invocation of the statute was sustained, there was some evidence of official activity at the time of the alleged physical interference or force. E.g. People v. Coffaro, supra, [officer was executing a search warrant]; People v. O'Connor, supra, [interference with an arrest]; People v. Vogel, supra, [defendant attempted to free his brother from a police car]; People v. Ravizee, 146 Misc.2d 679, 552 N.Y.S.2d 503 (Crim.Ct. New York County 1990) [officer attempted to prevent a defendant from swallowing a crack vial]; People v. Jimenez, 138 Misc.2d 867, 525 N.Y.S.2d 482 (N.Y.C. Criminal Ct., Bronx Co.1988) [defendant placed himself between police officer and another whom the police officer sought to question]; People v. Stumpp, supra, [inspection of premises...