People v. Longo

• Decision Date: 24 August 1971
• Citation: 336 N.Y.S.2d 85,71 Misc.2d 385
• Parties: The PEOPLE of the State of New York v. James LONGO.
• Court: New York County Court

Page 85

336 N.Y.S.2d 85

71 Misc.2d 385

The PEOPLE of the State of New York v.James LONGO.

Onondaga County Court.

Aug. 24, 1971.

Leo F. Hayes, Dist. Atty. of Onondaga County, Robert J. Rossi, Syracuse, of counsel, for the People.

John E. Shaffer, Syracuse, for defendant.

MEMORANDUM

THOMAS ALOI, Judge.

The above-named defendant has brought a motion by way of an order to show cause why the defendant should not be permitted to inspect the Grand Jury minutes of the proceedings which resulted in his being indicted, on February 26, 1971, charged with a violation of Sec. 195.05 of the Penal Law, Obstructing Governmental Administration.The charge was based on an incident which allegedly occurred at the Casa di Nappi restaurant and bar on the 23rd and 24th of June, 1970, when the defendant was said intentionally to have obstructed, impaired and perverted the administration of law and prevented police officers who were working undercover for investigatory purposes, from completing their investigation by reason of his actions and words, which were alleged to have revealed their identities as police officers to others in a public place.

The Court agreed after argument on the motion to read the Grand Jury minutes to determine whether or not there was, in fact, a prima facie case proved to the Grand Jury in order to support the indictment.

Stated in terms of the statute, the Court must find, to sustain an indictment returned by a Grand Jury: (Sec. 251, Code of Criminal Procedure) that '* * * all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.'

The New York State Penal Law at Sec. 195.05 states the criteria which would establish the prima facie case of Obstructing Governmental Administration:

'A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.'

The gravamen of the charge is the obstruction, impairment and perversion of the administration of law and preventing the police officers from conducting an undercover investigation.The law further requires on the facts of this case that such actions must be 'by means of * * * physical * * * interference, or * * * any independently unlawful act,' as stated in the indictment.The indictment goes on to state that the defendant'by the aforsaid (sic) means through his actions and words intentionally revealed and exposed their true identity as police officers to others in a public place when they, the police officers, were then and there lawfully concealing their true identity for lawful and necessary investigatory purposes, thereby rendering them ineffective as police investigators and unable to complete their investigation.'

The Assistant District Attorney who presented the case examined every facet of the incident in an effort to get at the truth.The testimony before the Grand Jury covered a period of eight days, and resulted in hundreds of pages of testimony, replete with witnesses contradicting each other and themselves.The following facts were established:

1.The defendant was present at the Casa di Nappi while undercover police agents were working on a narcotics investigation;

2.The defendant had some conversation with Mrs. Nappi, the operator of the Casa di Nappi;

3.The subject of the investigation, an alleged drug pusher, at some point became suspicious and left the Casa di Nappi;

4.Thereafter, according to the testimony, the defendant went up to the bar and stood between two girls, one of whom was the police woman.The other girl was a person aiding her in the investigation.

The evidence is contradictory as to which spoke first, the defendant or the policewoman, but some conversation ensued which has been variously interpreted by those who heard it as having caused the undercover police officer to be recognized as such.It is the latter act which is apparently alleged to have been the 'physical interference' by which the defendant intentionally obstructed, impaired and perverted the administration of law.

The uncontradicted testimony establishes the fact that the person to whom the identity was alleged to have been revealed (Mrs. Nappi) had previously reported a suspicion that drug activity was being carried on at her restaurant and bar and had requested police help.

A patron of the restaurant testified (at p. 301) that the defendant on an occasion several days before the incident in question, had said to Mrs. Nappi:

'You're going to have to watch yourself, they're really hitting this area, assuming the North Side, for prostitution and drugs.'

This statement was estimated by the witness to have been made 'near' the 12th of June, twelve days prior to the actual incident charged in the indictment.

Other witnesses stated that Mrs. Nappi had told them on the night of the incident that she thought the undercover policewoman was 'a cop woman'; (p. 678) and at p. 689, another witness stated that Mrs Nappi said to her '* * * be careful because the woman that was with Kelly was a policewoman.'This apparently occurred prior to the arrival of the defendant, although the testimony is contradictory as to the time he actually entered the Casa di Nappi.At p. 711 another witness testified that Mrs. Nappi had told him the woman was a police officer.

There is further evidence of conversation between Mrs. Nappi and the defendant, but nothing which furnishes the vital link which would establish that he was the one who informed her of the officer's identity.There is, in fact, some testimony in the record which would indicate there were other ways the suspect might have been alerted to the presence of the police.

The minutes indicate that a male police officer working as an undercover agent with the female police officer, was himself recognized in an incident totally removed from any involvement with the defendant.This officer testified that he himself pointed out the deputy police chief to the one who had recognized him.This person was one who had been arrested on a previous occasion by the undercover agent himself, and the testimony stated that this person questioned the officer as to whether or not he was working.Although he testified that he replied in the negative, there is nothing to indicate whether or not the other person believed him.

Evidence as to whether or not the policewoman was intoxicated or was only pretending to be; whether or not she indicated to the Deputy Chief that she needed help; or the effectiveness of the 'cover'she chose to use on this case: that of a lesbian (which might have accounted for some of the hostility she reported on the part of the other customers in the bar) or any of a dozen additional points of information that were introduced into the testimony heard by the Grand Jury, are extraneous.

The testimony does definitely establish that for some reason the suspect under investigation did become suspicious.There is no evidence that directly connects the defendant with this.A tortuous route of circumstantial evidence...