People v. Sumter

• Decision Date: 15 June 2017
• Citation: 151 A.D.3d 556,58 N.Y.S.3d 304
• Parties: The PEOPLE of the State of New York, Respondent, v. Yolanda SUMTER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 556

58 N.Y.S.3d 304

The PEOPLE of the State of New York, Respondent,

v.Yolanda SUMTER, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

June 15, 2017.

Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Cynthia A. Carlson of counsel), for respondent.

RICHTER, J.P., ANDRIAS, MOSKOWITZ, FEINMAN, KAPNICK, JJ.

Judgment, Supreme Court, Bronx County (Leonard Livote, J.), rendered June 4, 2012, convicting defendant, after a jury trial, of resisting arrest and obstructing governmental administration in the second degree, and sentencing her to a conditional discharge, reversed, on the law, and the misdemeanor complaint dismissed.

Defendant was charged with obstructing governmental administration and resisting arrest arising from an incident in which she allegedly interfered with the arrest of her brother, and then resisted her own arrest. On appeal, defendant maintains that the misdemeanor complaint is insufficient on its face. To be facially sufficient, a misdemeanor complaint and any accompanying depositions must set forth allegations providing "reasonable cause to believe that the defendant committed the offense charged," and nonhearsay factual allegations that "establish, if true, every element of the offense charged and the defendant's commission thereof" ( CPL 100.40[1] ; see People v. Alejandro, 70 N.Y.2d 133, 135–136, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). An information that is facially insufficient is jurisdictionally defective and must be dismissed ( People v. Jones, 9 N.Y.3d 259, 263, 848 N.Y.S.2d 600, 878 N.E.2d 1016 [2007] ).

As relevant here, "[a] person is guilty of obstructing governmental administration [in the second degree] when he [or she] intentionally ... prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference" ( Penal Law § 195.05 ). "[A] defendant may not be convicted of obstructing governmental administration or interfering with an officer in the performance of an official function unless it is established that the police were engaged in authorized conduct" ( People v. Lupinacci, 191 A.D.2d 589, 590, 595 N.Y.S.2d 76 [2d Dept.1993] ; see People v. Greene, 221 A.D.2d 559, 560, 634 N.Y.S.2d 144 [2d Dept.1995] ; CJI2d [N.Y] Penal Law § 195.05 ["the official function the defendant is charged with having prevented or attempted to prevent a public servant from performing must have been authorized"] ).

Where, as here, the official function performed by the officer is an arrest, an information is jurisdictionally defective if it fails to allege facts showing that the arrest was authorized (see e.g. Matter of Anthony B., 201 A.D.2d 725, 726, 608 N.Y.S.2d 302 [2d Dept.1994] ; Matter of Verna C., 143 A.D.2d 94, 95, 531 N.Y.S.2d 344 [2d Dept.1988] ; see also William C. Donnino, Practice Commentary, McKinney's Cons. Laws of N.Y., Penal Law § 195.05 ["An ‘official function’ in the context of an arrest requires that the arrest be lawful"] ).¹ In Verna C., "[t]he supporting affidavit, executed by the arresting officer, simply stated that ‘Deponent observed the Respondent with intent to prevent me from performing my lawful duty, to wit: placing her under arrest, respondent did attempt to cause physical injury to me by kicking me in the groin and did struggle and physically resist being placed in handcuffs' " ( 143 A.D.2d at 94, 531 N.Y.S.2d 344 ). The court dismissed the petition as jurisdictionally defective because it did not include facts establishing that the officer's arrest was legally authorized, and thus failed to allege facts sufficient to establish all the essential elements of obstructing governmental administration ( id. at 95, 531 N.Y.S.2d 344 ; accord

Matter of Anthony B., 201 A.D.2d at 726, 608 N.Y.S.2d 302 ; cf.

Matter of Jeremy B., 151 A.D.2d 314, 316, 542 N.Y.S.2d 582 [1st Dept.1989] [upholding charge of obstructing governmental administration because the supporting deposition contained factual allegations that the underlying arrest was authorized by law] ).

Guided by these principles, we conclude that the misdemeanor complaint here is jurisdictionally defective. The factual part of the complaint merely states that the officer was "attempting to effectuate the arrest of [defendant's brother]." However, the complaint contains no factual allegations that would establish, if true, that the underlying arrest of defendant's brother was authorized. Thus, the complaint fails to allege facts sufficient to establish all the essential elements of the crime of obstructing governmental administration in the second degree. Because the information fails to allege sufficient facts supporting the underlying obstructing governmental administration charge, it is also insufficient to allege that defendant's arrest on that charge was "authorized," as required by Penal Law § 205.30. Therefore, defendant is also entitled to dismissal of the resisting arrest charge (see People v. Jones, 9 N.Y.3d 259, 263, 848 N.Y.S.2d 600, 878 N.E.2d 1016 [2007] ; People v. Matthews, 115 A.D.3d 625, 625, 982 N.Y.S.2d 753 [1st Dept.2014], lv. denied 23 N.Y.3d 1022, 992 N.Y.S.2d 805, 16 N.E.3d 1285 [2014] ).

The dissent acknowledges that an element of the crime of obstructing governmental administration is that the underlying arrest was authorized, but nevertheless concludes that this essential element need not be alleged in the factual part of an information. This position, however, cannot be reconciled with the statutory requirement that an information contain "nonhearsay allegations [that] establish, if true, every element of the offense charged" ( CPL 100.40[1][c] ). It also contravenes the Court of Appeals's decision in People v. Alejandro , 70 N.Y.2d at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71, which emphasizes that "an information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case."

People v. Casey , 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000), a case cited by the dissent, states that the factual allegations of an information "should be given a fair and not overly restrictive or technical reading" "[s]o long as [they] give an accused notice sufficient to prepare a defense" ( id. at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). Here, the allegations do not give any notice whatsoever that would allow defendant to mount a defense that her brother's arrest was not authorized. The complaint does not identify the crime for which defendant's brother was arrested, or the circumstances that led to the arrest. We disagree with the dissent's view that the complaint's deficiency is remedied by a brief reference to the arrest number of defendant's brother. As noted, the statute and case law require that facts establishing all of the elements of an offense charged be contained in the complaint and any supporting depositions. Merely referencing an arrest number does not cure the deficiency and does not provide defendant with the requisite "notice sufficient" to defend against the charges (id. ).²

In finding the misdemeanor complaint sufficient, the dissent relies on a number of cases from the Appellate Term of the Second Department. Those cases, however, are contrary to the express language of CPL 100.40(1)(c), the Court of Appeals' decision in Alejandro, and the Second Department's decisions in Anthony B. and Verna C., and we are not obligated to follow them.³

All concur except ANDRIAS, J. who dissents in a memorandum as follows:

ANDRIAS, J. (dissenting).

I disagree with the majority's holding that the misdemeanor complaint was jurisdictionally defective, with respect to both the obstructing governmental administration in the second degree and resisting arrest charges, because it did not contain sufficient factual allegations showing that the underlying arrest of defendant's brother, Richard Sumter, was authorized.¹ The information charged defendant with preventing an officer from effectuating an authorized arrest, and expressly identified her brother by name and provided his arrest number. Defendant's own offending acts were described in great detail. She "approached and attempted to pull deponent's partners away from separately apprehended RICHARD SUMTER, and swung fists at officers involved in the arrest of separately apprehended RICHARD SUMTER preventing them from timely effectuating his arrest." No additional evidentiary details were required for the People's pleading to provide "adequate notice to enable defendant to prepare a defense and invoke [her] protection against double jeopardy" ( People v. Kasse, 22 N.Y.3d 1142, 1143, 984 N.Y.S.2d 287, 7 N.E.3d 500 [2014] ). Therefore, I dissent.

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution"

( People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ). Under CPL § 100.15, every accusatory instrument must contain an accusatory portion designating the offense charged and a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion.

A misdemeanor information is facially sufficient if the non-hearsay allegations provide reasonable cause to believe that the People can prove every element of the crime charged and defendant's commission of the crime ( CPL 100.40(1)(a)-(c) ; see People v. Alejandro, 70 N.Y.2d 133, 136–137, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). Conversely, "[u]nder Alejandro ..., an information is facially deficient if it entirely fails to address an element of the offense charged" ( People v. Konieczny, 2 N.Y.3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] [emphasis added] ).

A court reviewing for facial insufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable...