People v. Walker

• Decision Date: 27 September 1960
• Citation: 212 N.Y.S.2d 936,25 Misc.2d 942
• Parties: PEOPLE of the State of New York v. David L. WALKER, Defendant.
• Court: New York District Court

Page 936

212 N.Y.S.2d 936

25 Misc.2d 942

PEOPLE of the State of New York v. David L. WALKER, Defendant.

District Court, Nassau County, First District.

Sept. 27, 1960.

Joseph Heneghan, Asst. Dist. Atty., Nassau County, Mineola, Warren Doolittle, Asst. Dist. Atty., Nassau County, Mineola, for the People.

Jawn A. Sandifer and Edward W. Jacko, Jr., New York City, for defendant.

FRANCIS J. DONOVAN, Judge.

The information charges defendant with the violation of section 1851 of the Penal Law in that he obstructed a public officer in the discharge of his duties.

Defendant had been previously convicted of violating section 722 of the Penal Law but the conviction was reversed on appeal and the information dismissed. While there are some differences between the facts alleged in the present information and the facts litigated on the prior trial, nevertheless they involve the same general incident and are in great measure overlapping.

All of the grounds now urged by defendant in support of his motion to dismiss the information were previously urged on a similar motion which was denied by another judge of this court. There is some question as to the binding effect of the prior determination. However, upon the argument counsel and the court proceeded on the assumption that the prior determination of the legal sufficiency of the information does not preclude the trial judge from again considering that question when presented--as it is here at the opening of the trial.

The opinion rendered on the prior determination adequately disposes of all grounds in objection save two:

1. Whether or not there is sufficient particularity of factual statements;

2. Whether the reversal of the prior conviction for disorderly conduct is res judicata of factual issues sought to be raised anew in the present prosecution.

The essential elements of a violation of section 1851 of the Penal Law are two:

1. That the public officer was engaged in performing a duty.

2. That the defendant acted in a manner that interfered with the officer.

Facts must be alleged to establish each element of the charge (People v. Zambounis, 251 N.Y. 94, 167 N.E. 183). The information states that the officer was attempting to arrest defendant on the ground that the officer had reasonable cause to believe that a felony had been committed and reasonable cause to believe that defendant had committed the felony. The only factual statement set forth in the information is to the effect that a named individual had informed the officer that he had observed 'the commission of a felony' and gave the officer a description of the perpetrator and the locality where the crime was committed.

A reasonable degree of particularity would require something more than the officer's conclusion that 'the commission of a felony' was reported. The least that should be done is to set forth the substance of the information that was furnished to the officer. No conclusion as to whether the officer had reasonable cause for his belief can be drawn unless the information supplies the basic facts upon which the officer...