People v. Simon
| Decision Date | 26 October 1989 |
| Citation | 145 Misc.2d 518,547 N.Y.S.2d 199 |
| Parties | The PEOPLE of the State of New York v. Capulo SIMON, Defendant. |
| Court | New York City Court |
The defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220.03), Obstructing Governmental Administration in the Second Degree (P.L. § 195.05), and Attempted Tampering with Physical Evidence (P.L. §§ 110/215.40[2], all class A misdemeanors. The defendant now moves pursuant to CPL §§ 170.30(1)(a) and 170.35(1)(a) to dismiss the counts of Attempted Tampering with Physical Evidence and Obstructing Governmental Administration on the ground that the accusatory instrument is facially insufficient.
The factual part of the accusatory instrument reads as follows:
Deponent observed the defendant smoking a glass pipe containing a quantity Deponent further states that the above-described substances are in fact what they are alleged to be based upon the following factors: professional training as a police officer in the recognition and identification of drugs, prior experience as a police officer and involvement in numerous drug related arrests and observation of the packaging used to contain the substance which is characteristic of this type of drug.
of cocaine and states that when deponent approached defendant the defendant saw deponent and threw said glass pipe to the ground causing said pipe to break.
The defendant alleges that the information is facially insufficient to support the charge of Obstructing Governmental Administration. Specifically, the defendant contends that the language in the information is merely conclusory and contains no evidentiary facts establishing the essential elements of the crime.
A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution. People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). To be facially sufficient the factual portion of an information must allege "facts of an evidentiary character" (CPL § 100.15[3] demonstrating "reasonable cause" to believe the defendant committed the crime charged. (CPL § 100.40[4][b]; People v. Dumas, 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986). The Court of Appeals in People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927-928, 511 N.E.2d 71 (1987) held that an information which fails to allege sufficient non-hearsay facts establishing every element of the offense is facially defective.
The purpose of requiring that a prima facie case be alleged in an information is based upon its unique function as the sole instrument upon which the defendant may be prosecuted. People v. Alejandro, supra. In circumstances where the defendant is charged with a felony, the filing of the felony complaint is followed by either Grand Jury presentment or a preliminary hearing. In contrast, once the People file an information, they are not required to present any actual evidence demonstrating a prima facie case prior to trial. Therefore, the requirements for a facially sufficient information are more demanding.
P.L. § 195.05 provides:
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, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service. (emphasis added)
In People v. Alejandro, supra, the Court of Appeals upheld the dismissal of a resisting arrest charge as it failed to allege any facts establishing that the underlying arrest was authorized, an essential element of the offense. Similarly, an essential element of the crime of Obstructing Governmental Administration is that the alleged conduct of the defendant prevented a public servant from performing an "official function." It is therefore necessary that the information allege that the official function was authorized. People v. Vogel, 116 Misc.2d 332, 457 N.Y.S.2d 666 (App.Term, 2nd Dept., 1982).
A police officer's job encompasses many different facets. "On the one hand the police are mandated to enforce the law; yet the extent to which this authorizes the police to investigate or to prevent a crime in ambiguous at best." People v. De Bour, 40 N.Y.2d 210, 218, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976). Among their functions are protection of constitutional rights, maintenance of order, control of traffic, mediation of domestic and noncriminal conflicts and supplying emergency help and assistance. Id. The present information fails to allege any evidentiary facts as to the nature of the officer's "official function." Absent such facts, the information cannot withstand the jurisdictional requirements as set forth in the CPL.
An information charging Obstructing Governmental Administration also requires that the defendant's alleged actions in preventing a public servant from performing an official function be by one of three methods: (1) intimidation, (2) physical force or interference, or (3) an independently unlawful act. People v. Jimenez, 138 Misc.2d 867, 525 N.Y.S.2d 482 (Criminal Court, Bronx Cnty., 1988); People v. Stumpp, 129 Misc.2d 703, 704, 493 N.Y.S.2d 679 (District Court, Suffolk Cnty., 1985) aff'd, 132 Misc.2d 3, 505 N.Y.S.2d 758 (App.Term, 2nd Dept., 1986).
It is well established that mere words alone do not establish "physical force or interference" necessary to support the charge of Obstructing Governmental Administration. People v. Clough, 43 A.D.2d 451, 454, 353 N.Y.S.2d 260 (3rd Dept., 1974); People v. Ketter, 76 Misc.2d 698, 351 N.Y.S.2d 579 (Criminal Court, Bronx Cnty., 1974). It is apparent from the clear language of the statute, as well as case law, that the claimed interference must be accompanied by some physical act. In the Matter of Tammy M., 108 Misc.2d 376, 437 N.Y.S.2d 565 (Family Court, Monroe Cnty., 1981). The issue this court must address is whether the alleged conduct in destroying the crack pipe constitutes physical force or interference within the meaning of the statute.
The court finds that the statute contemplates direct physical force or interference. While the infliction of physical injury is...
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