People v. Smith

CourtNew York City Court
Citation491 N.Y.S.2d 236,128 Misc.2d 733
PartiesThe PEOPLE of the State of New York v. Josephine SMITH, Defendant.
Decision Date30 May 1985

Mario Merola, Bronx Dist. Atty. by Jerry Iannece, Asst. Dist. Atty., for the People.

Norman Corenthal, New York City, for defendant.

STEVEN L. BARRETT, Judge:

Defendant Smith was charged in a misdemeanor complaint, drawn October 11, 1984, then amended October 22, 1984, and subsequently deemed an information, with the crime of obstructing governmental administration, P.L. Sec. 195.05. The factual allegations absent from the October 11 complaint but contained in the October 22 complaint assert that, while U.S. Marshall Richard Hollander was arresting another, defendant used physical force or interference to attempt to prevent the arrest. The portion of P.L. Sec. 195.05 upon which the People have proceeded requires that a "public servant" be prevented from performing an official function.

The defense contends that the amendment of the October 11 instrument was barred under C.P.L. 200.70(2)(b), which proscribes the amendment of an instrument for the purpose of curing the "legal insufficiency of the factual allegations." The defense thereupon contends that the charges must be dismissed pursuant to C.P.L. 100.40(1)(a) due to the facial insufficiency of the October 11 instrument. Alternatively, the defense contends that the charges must be dismissed on the ground that no crime is charged upon the facts asserted. Counsel argues that the "public servant" requirement of P.L. Sec. 195.05 is not applicable to federal officers such as the U.S. Marshall involved here.

For the reasons that are set forth below, both claims of the defense are rejected and the motion to dismiss is denied.

On October 11, 1984, the original accusatory instrument in this matter was filed in Part AR-3. The misdemeanor complaint set out factual information only as to the place and officer involved, along with the allegation "defendant did interfere with the arrest of another." On October 22, 1984, the People offered an amended affidavit setting forth additional facts to correct deficiencies in the original accusatory instrument. At the time, defendant objected to the filing of the superseding affidavit. However, Judge Stanley Katz permitted the amendment and converted the instrument to an information, inviting appropriate contrary authority for further consideration. This Court deems defendant's motion herein to be the further argument on point contemplated by Judge Katz.

The Court finds that it was legally permissible for the People to amend the original complaint, and therefore denies this branch of defendant's motion. The purpose behind the filing of the amended affidavit by the People was to cure the defective complaint. A complaint as defined by the C.P.L. 100.10 serves as a basis for the commencement of a criminal action. As noted by the Practice Commentaries, the misdemeanor complaint was designed as a procedural mechanism for "arraigning and holding the defendant upon a misdemeanor when reasonable cause is present but facts constituting a prima facie case are lacking.... The instrument may be used to commence an action but a defendant has a right to its replacement by Information for trial purposes." (Bellacosa, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, C.P.L. 100.10).

Consequently, the misdemeanor complaint falls within the category of a provisional pleading serving the exclusive purpose of providing a court with temporary jurisdiction over the defendant (see People v. Arturo, 122 Misc.2d 1058, 1061, 472 N.Y.S.2d 998, Crim.Ct.N.Y.Co.1984). Here, the People moved to amend the defective instrument on a timely basis, ten days subsequent to the original filing of the complaint. The amendment was filed for the purpose of curing a defectively-drafted complaint; it supplied factual allegations necessary for prosecution under section 195.05 of the Penal Law, and did not alter the theory of prosecution. See People v. Pacifico, 105 Misc.2d 396, 398, 432 N.Y.S.2d 588 (N.Y.Crim.Ct., Queens Co., 1980).

We now turn to the second branch of defendant's motion concerning the definition of "public servant" under P.L. Sec. 195.05 and its application to Federal Officers 1.

The defendant has appropriately cited authority holding that P.L. Sec. 195.05 does not encompass Federal employees' acting as "public servants" within the state (see People v. Garfield, 63 Misc.2d 79, 312 N.Y.S.2d 830 (City Ct. Utica, 1970); People v. Arvio, 66 Misc.2d 474, 321 N.Y.S.2d 382 (Justice Ct., Spring Valley, 1971)). Although the authorities relied upon by the defendant are instructive, I find that the rationale of other cases extending the scope of public servants beyond official New York State employees is more persuasive. I find further support by analogy for this conclusion from legislative extension of peace officer status to federal law enforcement officials. 2

Penal Law Sec. 10.00(15) defines "Public Servant" as:

"any public officer or employee of the state or any political subdivision thereof or of any governmental instrumentality within the state or (B) any person exercising the functions of any public officer or employee. The term, public servant, includes a person who has been elected or designated to become a public servant."

The statutory commentaries to Penal Law Sec. 10.00 inform us that subsection 15 was enacted to provide a comprehensive definition of the various categories established under the former Penal Law for "public servants," e.g., public officers, executive officers, and a number of other titles. As indicated by Commentator Arnold Hechtman, the revised penal law broadly defined "public servant" as "not only every category of government or public officer," but every "employee" of every such officer or agency, every "person specially retained to perform some government service." Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, P.L. Sec. 10.00, at p. 23).

Unfortunately, the statutory commentaries fail to set forth whether the comprehensive scope of P.L. Sec. 10.00 was intended to embrace Federal officers under the clause "any governmental instrumentality within the state" or to restrict the statute's reach to state instrumentalities.

This question was addressed in People v. Ebuzome, 107 Misc.2d 464, 435 N.Y.S.2d 243 (Sup.Ct.Queens Co, 1981), where the defendant sought to dismiss a count of bribery under P.L. Sec. 200.00, on the grounds that a Federal customs inspector was not a "public servant" within the definition of P.L. Sec. 10.00(15). The court focused on the question of whether the United States customs inspector involved in the case fell within the ambit of the statute as an "individual specially retained to perform some government service," or whether subdivision 15 required a specific relation to the...

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2 cases
  • People v. Campbell
    • United States
    • New York City Court
    • 7 Octubre 1988
    ...315 N.E.2d 434 (see also; Bellacosa, Practice Commentaries, McKinney's Cons. Laws of N.Y., Vol. 11A, CPL 100.10; People v. Smith, 128 Misc.2d 733, 734-735, 491 N.Y.S.2d 236; People v. Arturo, 122 Misc.2d 1058, 1061, 472 N.Y.S.2d 998; and People v. Pinto, 88 Misc.2d 303, 304, 387 N.Y.S.2d 38......
  • People v. Bilus
    • United States
    • New York District Court
    • 22 Noviembre 2005
    ...63 Misc 2d 79 [Utica City Ct 1970]). The cases relied on by the People in their opposition papers are either distinguishable (People v Smith, 128 Misc 2d 733 [Crim Ct, Bronx County 1985] [defendant properly charged with obstruction where it was alleged that he interfered with a United State......

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