People v. Sumter ( 2017 )

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] [b], [c]; see People v Alejandro, 70 NY2d 133, 135-136 [1987]). An information that is facially insufficient is jurisdictionally defective and must be dismissed (People v Jones, 9 NY3d 259, 263 [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 AD2d 589, 590 [2d Dept 1993]; see People v Greene, 221 AD2d 559, 560 [2d Dept 1995]; CJI2d[NY] 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 AD2d 725, 726 [2d Dept 1994]; Matter of Verna C., 143 AD2d 94, 95 [2d Dept 1988]; see also William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, 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 AD2d at 94). The court dismissed the petition as jurisdiction-ally 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; accord Matter of Anthony B., 201 AD2d at 726; cf. Matter of Jeremy B., 151 AD2d 314, 316 [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 NY3d 259, 263 [2007]; People v Matthews, 115 AD3d 625, 625 [1st Dept 2014], lv denied 23 NY3d 1022 [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 “[n] on-hearsay 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 NY2d at 138), which emphasizes that “an information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case.”

People v Casey (95 NY2d 354 [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). 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

Concur — Richter, J.R, Moskowitz, Feinman and Kapnick, JJ.

1 . Although Anthony B. and Verna C. are Family Court proceedings, the requirements for a sufficient Family Court petition and a sufficient Criminal Court information are essentially the same (see CPL 100.40; Family Ct Act § 311.2; see also Matter of Jeremy B., 151 AD2d 314, 316 n 2 [1989]).

2 . We also note that no arrest report or other documents pertaining to the brother’s arrest were annexed to the complaint.

3 . Matter of Carlos G. (215 AD2d 165 [1st Dept 1995]), cited by the dissent, does not change the result. The brief decision in that case does not quote all of the language contained in the petition and supporting deposition. Thus, it is unknown if those documents provided the requisite factual allegations about the underlying arrest. It is likewise unknown if that appeal raised the precise appellate question presented here.