People v. Schmidt

• Decision Date: 07 February 1974
• Citation: 352 N.Y.S.2d 399,76 Misc.2d 976
• Parties: The PEOPLE of the State of New York v. Mary Ann SCHMIDT, Defendant.
• Court: New York City Court

Page 399

352 N.Y.S.2d 399

76 Misc.2d 976

The PEOPLE of the State of New York v. Mary Ann SCHMIDT, Defendant.

Criminal Court of the City of New York, Bronx County.

Feb. 7, 1974.

Mario Merola, Dist. Atty. Bronx County, New York City, for the People; by Lester Adler, Asst. Dist. Atty., of counsel.

William T. Gallagher, The Legal Aid Society, New York City, for defendant; by William J. Stampur, Yonkers, of counsel.

DECISION

LOUIS SCHIFRIN, Judge.

On June 28, 1973, at 1:30 A.M., the defendant was arrested in her home, charged with obstructing governmental administration (section 195.05 P.L.); resisting arrest (205.30 P.L.) and harassment (240.25 P.L.). In due course, a preliminary hearing was had and the defendant was held for trial and upon her demand a trial by jury was ordered. In the jury part, on November 23rd, 1973, and prior to trial on the Assistant District Attorney's motion, the misdemeanor charges were reduced to attempted obstruction of governmental administration (sections 110.00, 195.05) and attempted resisting arrest (sections 110.00, 205.30), the original charge of harassment (240.25) was retained, and no charge being in higher grade than a class B misdemeanor, the case was referred to me for trial without a jury.

The facts are not in substantial dispute. The police had in custody Donald, the twelve year old son of the defendant, on suspicion of an offense which, if committed by an adult, would constitute burglary. In accordance with proper police procedure, Sergeant Carpino telephoned the defendant about 10:30 P.M. and told her that the boy would be released to her custody if she would sign a personal recognizance undertaking to produce the boy at the Family Court at a place and time specified. He also told her that another son, Anthony, aged nine years, had been implicated in the charge and that the police would have to take him into custody, unless she signed a personal recognizance as to him as well. To accommodate her, so that she would not have to leave her home at that early hour, Patrolman Cooper accompanied the twelve year old to the defendant's home, where she received him.

At this point, she refused to sign the personal recognizance for the twelve year old (although ultimately she did) and not only refused to sign the personal recognizance for the nine year old but refused to permit the police officer to take the boy into custody.

A telephone call brought Sergeant Carpino to the home, where at about 1:30 A.M. the events, which are the subject of the complaint, took place.

The defendant refused to sign the recognizances for either child, put her hand across the door of the bedroom and refused to let them in to get Anthony. The police officer evidently attempted to arrest her and when he put his hand on her arm (she said he twisted her arm) she complained of 'police brutality' and he removed his hand.

Then ensued the following testimony of Sergeant Carpino:

'A. (By A.D.A.) Did there come a time that you attempted to arrest the defendant?

'A. I then, after deliberating some more, I began walking to the bedroom where I knew Anthony was. She barred the door with her body and said you can't come in here; you can't arrest him; you're not getting in here. I took her by the arm. She began to struggle. I held her arms and ordered her handcuffed. I then ordered one of my Police Officers to take her out, she was under arrest.

'Q. Did you have any difficulty placing her under arrest?

'A. She was struggling when I held her.

'Q. When you say 'struggling', what are you saying?

'A. Trying to break loose.'

A bargained plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed, and a plea of guilty is, therefore, permitted to a 'hypothetical' crime. People v. Lynn, 28 N.Y.2d 196, 321 N.Y.S.2d 74, 269 N.E.2d 794; People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.20 200; People v. Griffin, 7 N.Y.2d 511, 199 N.Y.S.2d 674, 166 N.E.2d 684. Except for plea purposes, the court cannot countenance hypothetical crimes under any circumstances and particularly where they are created by the District Attorney to deprive a defendant of her right to a trial by jury in violation of due process of law.

] A person is guilty of an attempt to commit a crime when, with Intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.' (Penal Law section 110.00, italics supplied; People v. Moran, 123 N.Y. 254, 25 N.E. 412; People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200; People v. Falu, 37 A.D.2d 1025, 325 N.Y.S.2d 798; People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922).

The statutory definitions of the crimes of resisting arrest (205.30) and obstructing governmental administration (195.05) include acts which are, in their very nature, attempts. Therefore there cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result. People v. Jelke, 1 N.Y.2d 321, 152 N.Y.S.2d 479, 135 N.E.2d 213; Commonwealth v. Willard, 179 Pa.Super. 368, 116 A.2d 751; 22 C.J.S. Crim. Law § 74; State v. Hewett, 158 N.C. 627, 74 S.E. 356.

In the case of People v. Jelke (supra, p. 330, 152 N.Y.S.2d p. 486, 135 N.E.2d p. 218--219) the court held:

'If . . . the statutory definition of the essence of a crime is the attempt to do a certain act, the crime is committed regardless of whether or not the act is performed . . . So long as the statute defines the crime as consisting...