People v. Offen
| Decision Date | 06 September 1978 |
| Citation | 408 N.Y.S.2d 914,96 Misc.2d 147 |
| Parties | The PEOPLE of the State of New York v. Elliot OFFEN, Defendant. |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County, by Debra Schmall, New York City, for the People.
Kassner & Detsky, P. C., by Herbert S. Kassner, New York City, for defendant.
After a jury trial, this defendant was convicted of violating section 195.05 of the Penal Law, obstructing governmental administration, a Class A misdemeanor, punishable by a fine not to exceed $1,000 and/or imprisonment for a term of up to one year. The jury also convicted him of violating section 153.01 of the Health Code of the City of New York, littering, a misdemeanor, punishable by a fine of not more than $1,000 and/or up to one year in jail.
It seems appropriate to include references to certain facts which may serve to assuage criticism along the lines that the matter before the court is de minimis and does not warrant the expensive prosecutorial and judicial time devoted to it.
The jury has found the defendant did litter the sidewalk in front of the premises at 261 West 42nd Street, on April 25, 1977, at about 4:30 a. m., by placing two bags of refuse at the curb. The refuse consisted of trash paper enclosed in the two bags. He did this while being observed by two police officers watching him from their marked police vehicle, which was patrolling the sector. The patrol car drew up to defendant and, as it did so, at least one of the officers realized that the name and identity of defendant were known to him. He was, by his own admission, an employee of the store located at 265 West 42nd Street.
While not an issue before the court, it is pertinent to explain that there are pending against the defendant in this court a substantial number of unrelated and unresolved matters. These are sufficient in number to indicate to the court that, at the very least, in the eyes of various police officers who have proceeded against him, this defendant is creating a considerable nuisance, and, indeed, his conduct has compelled the District Attorney to prosecute the pending charges to the point of this jury trial and other trials which are to follow. It should be added that efforts have failed to make an adjustment (of considerable liberality in the defendant's favor) of these pending cases. In the light of the convictions resulting from this trial, that failure must be attributed to the defendant and should not be thought the product of any degree of intransigence on the part of the District Attorney (at least as to those negotiations carried on before this judge).
According to the proof at trial, the defendant was addressed by the recorder seated in the passenger seat of the police vehicle, which had drawn up immediately next to where the defendant had littered. Police Officer Quinn informed the defendant that he was to receive a summons, to which the defendant replied, "Go f yourself." This linguistic gem could, of course, hardly pacify. But to add fuel, the defendant ignored the demand for identification (a prerequisite to the summons process), and he proceeded to walk away across the sidewalk and re-entered his store. He closed and locked the door.
The officers then exited their vehicle and sought admission to the store. They knocked on the glass door, calling on the then visible defendant to open the door. This was accompanied by further reference to the intent to issue process. When the door was not opened, a call was made and answered by a patrol supervisor, a sergeant, now Lieutenant Sullivan.
Attempts to gain admission continued for a considerable number of minutes, culminating in a warning from the sergeant that failure to comply with the order to open the door would be followed by forcible entry and arrest. That followed when defendant failed to yield. First charged at the scene with littering and resisting arrest, defendant was later formerly charged with the aforementioned two charges.
After the close of the People's case, the defendant moved to dismiss both charges. The court reserved decision on that motion and now proceeds to dispose of it.
Reference to the complaint discloses the defendant is charged with obstructing governmental administration in the following language:
"Deponent further states that in effecting his authorized duty, defendant did obstruct said duty in that the defendant did flee in attempt to avoid being summoned."
A criminal court accusatory instrument, to be sufficient on its face, must establish, if true, every element of the offense charged and the defendant's commission thereof (CPL 100.40).
Section 195.05 of the Penal Law states as follows:
"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."
It is plain that the alleged act of flight has been further defined by the evidence in this case. Viewed in a light most favorable to the People, the evidence indicates that the defendant walked away from the officers and did not heed their request for identification. Additionally, the evidence at trial disclosed other acts, such as closing and locking the door of the store. These acts were not charged in the information and were only adduced at trial. An essential element of the crime of obstructing governmental administration, to be charged in an information, must be an act of either (1) intimidation or (2) physical force or interference or (3) an independently unlawful act.
Plainly, ignoring an officer's request for identification is not a crime, nor does that act supply any such element. Though it is clear that such conduct risks pursuit and arrest, no crime has been charged here.
"The requirement that an indictment and an information must state the crime with which a defendant is charged, and the particular acts constituting that crime is more than a technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a rule of law." (People v. Zambounis, 251 N.Y. 94, 167 N.E. 183.)
The Court of Appeals also said in People v. Harper, 37 N.Y.2d 96 at 99, 371 N.Y.S.2d 467 at 469, 332 N.E.2d 336 at 337:
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (People v. McGuire, 5 N.Y.2d 523, 527, 186 N.Y.S.2d 250, 254, 158 N.E.2d 830, 833; People v. Scott, 3 N.Y.2d 148, 152, 164 N.Y.S.2d 707, 710, 143 N.E.2d 901, 903)."
In Harper, supra, the court held that even a stipulation agreed to by both the People and the defendant is not sufficient to amend an accusatory instrument if not done in strict compliance with CPL 100.45. In this case there was no amendment at any time. The defendant has not been charged with a crime, since this court recognizes as a matter of law that "fleeing" from an officer prior to arrest is not a crime. Consequently, the motion to dismiss the charge of obstructing governmental administration (Penal Law § 195.05), upon which the court reserved decision, is now granted and the charge is dismissed.
Similarly, and although not an issue before the court, it is observed that it is no crime to refuse to open a door to police officers. Such a refusal may create rights and/or duties for law enforcement officials, i. e., to proceed to obtain a warrant to enter and search; or to remove the obstacle by force, as done in this case.
Were the law otherwise, it would follow that whenever any barrier is placed in the path of process and/or arrest, this class "A" misdemeanor (obstructing) could be added. The effect of that added charge in this case, as is often true, is to divert attention from the initial alleged criminality or transgression. Thus, the issue before the jury in this case should have been limited to whether or not the defendant litte...
To continue reading
Request your trial
-
American Fork City v. Pena-Flores
...is placed in the path of process and/or arrest," the police simply fall back upon an interference charge. State v. Offen, 96 Misc.2d 147, 408 N.Y.S.2d 914, 916 (N.Y. 1978). The effect of this statute may be "to divert attention from the initial alleged criminality or transgression" and redi......
-
Shaheed v. City of N.Y.
...it is observed that it is no crime to refuse to open a door to police officers." Pl. Opp. at 6 (quoting People v. Offen , 96 Misc.2d 147, 408 N.Y.S.2d 914, 916 (Crim. Ct. 1978) ). In Offen , however, the police had not secured a warrant. See Offen , 408 N.Y.S.2d at 916 (adding that officers......
-
Uzoukwu v. City of N.Y.
...of that added charge ... is to divert attention from the initial alleged criminality or transgression.” People v. Offen, 96 Misc.2d 147, 408 N.Y.S.2d 914, 916 (Crim.Ct.1978) (holding defendant, whom officer desired to cite for littering, did not obstruct governmental administration by ignor......
-
People v. Brown
...at 1193, 851 N.Y.S.2d 747, citing People v. May, 81 N.Y.2d 725, 728, 593 N.Y.S.2d 760, 609 N.E.2d 113 (1992). See People v. Offen, 96 Misc.2d 147, 150, 408 N.Y.S.2d 914 (N.Y. City Criminal Ct.1978), cited favorably in Matter of Davan L., 91 N.Y.2d at 91, 666 N.Y.S.2d 1015, 689 N.E.2d 909 (n......