People v. Shea

• Decision Date: 15 November 1971
• Citation: 68 Misc.2d 271,326 N.Y.S.2d 70
• Parties: The PEOPLE of the State of New York, Complainant, v. Richard SHEA et al., Defendants.
• Court: New York Court of Special Sessions

Page 70

326 N.Y.S.2d 70

68 Misc.2d 271

The PEOPLE of the State of New York, Complainant, v.Richard SHEA et al., Defendants.

Court of Special Sessions of City of Yonkers.

Nov. 15. 1971.

Carl A. Vergari, Dist. Atty., for plaintiff.

John N. Romano, Yonkers, for defendants.

ROBERT W. CACACE, Judge.

This is a motion to dismiss an information alleging a deficiency of specific allegations upon which the complaint is founded.

The specifics of the charge read as follows:

"Deponent states that at Odell Ave. and Nepperhan Ave. Yonkers, N.Y., the deponent placed one Gary Leonard aged 18 of 119 DeHaven Drive, Yonkers, N.Y. under lawful arrest for violating Section 195.05 of the Penal Law of the State of New York, and defendants encircling the deponent and the said Leonard, allowed and permitted the said Leonard to flee from the deponent's custody, thereby obstructing him, and preventing him from performing a function of his office."

The Statute reads 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."

The gravamen of the Defendants' motion is that no allegations of violence were made in the information, and that, as violence is a necessary corollary to the crime, the specific acts of violence must be set forth in the complaint (People v. Maddaus, 4 N.Y.2d 1003, 177 N.Y.S.2d 517;District of Columbia v. Little, 1950, 70 S.Ct. 468, 339 U.S. 1, 94 L.Ed. 599.)The information, in essence says: "* * * the deponent placed one Gary Leonard * * * under lawful arrest * * * and the Defendants encircling the deponent and the said Leonard, allowed and permitted the said Leonard to flee from the deponent's custody * * *."

Webster's New International Dictionary, Second Edition, Unabridged, 1943 defines "encirclement" as follows: "1.To form a circle about; to enclose within a circle or ring; to surround, as to encircle one in the arms."Under this definition, an encirclement of a Police Officer who has just arrested the friend of eleven people, by those eleven people, could very well be the physical interference contemplated by the Maddauscase (Supra) and the Statute.In fact, an encirclement by eleven people could be one is such a way as...