Marlon G. Kirton, New York City, for Sandra English, defendant.
Marvin K. Pettus, New York City, for Thomas English, defendant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Michael Dougherty of counsel), for plaintiff.
Ruth Pickholz, J.
On February 28, 2000, the defendants were arraigned on a felony complaint charging defendant Sandra English with assault in the second degree (Penal Law § 120.05 ) and resisting arrest (Penal Law § 205.30), and defendant Thomas English with obstructing governmental administration in the second degree (Penal Law § 195.05). After being adjourned several times for Grand Jury action, it appears that the court attempted to reduce the top charge pursuant to CPL 180.50. The notations in the court file for December 12, 2000, indicate that the assault charge was reduced from a class D felony to two counts of misdemeanor assault (Penal Law § 120.00 , ). The other charges remained the same.
Each defendant is currently charged by prosecutor's information with one count of harassment in the second degree in violation of Penal Law § 240.26 (1).  It is not clear, however, if this prosecutor's information was filed at the direction of the court following a reduction pursuant to CPL 180.50, or at the People's own instance pursuant to CPL 100.50 (2).  Defendants have filed the instant motions to dismiss for facial insufficiency
on the grounds that the harassment count does not comply with CPL 100.40 (1) and 100.50. Defendant Thomas English also argues that the harassment count is unsupported by the facts of the original accusatory instrument because the original charge alleged a different intent.F or the following reasons, defendants' motions to dismiss are denied.
The original accusatory instrument provides:
" Police Officer Roger Campbell ... deposes and says as follows ...
" Deponent states that he is informed by Police Officer Brian Gargulio ... that informant observed ... defendant Sandra English kick the police car in which [Officer Gargulio] was sitting and yell 'Why don't you shoot me forty-one times?' ...
" Deponent is further informed by [Officer Gargulio] that when [Officer Gargulio] requested identification from defendant Sandra English, she refused. When [Officer Gargulio] attempted to place handcuffs on defendant Sandra English, she resisted in that she flailed her arms and twisted her body in an attempt to avoid being handcuffed. Defendant then scratches [sic] [Officer Gargulio's] face causing ...