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The People of the State of New York v. Gillian Stewart

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 28, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
GILLIAN STEWART,
APPELLANT.

Appeal from three judgments of the Criminal Court of the City of New York, Queens County (William Harrington, J.), rendered April 24, 2007.

People v Stewart (Gillian)

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2011

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The judgments convicted defendant, upon jury verdicts, of disorderly conduct, obstructing governmental administration in the second degree and resisting arrest, respectively.

ORDERED that the judgment convicting defendant of disorderly conduct is reversed, on the law, and the accusatory instrument is dismissed; and it is further, ORDERED that the judgment convicting defendant of obstructing governmental administration in the second degree is reversed, on the facts, and the accusatory instrument is dismissed; and it is further, ORDERED that the judgment convicting defendant of resisting arrest is affirmed.

As is relevant to this appeal, in October 2005, a single information was filed charging defendant with disorderly conduct (Penal Law § 240.20 [1]), obstructing governmental administration in the second degree (Penal Law § 195.05), and resisting arrest (Penal Law § 205.30). Subsequently, separate prosecutor's informations were filed for each charge. Following a jury trial, defendant was convicted of all three charges. On appeal, defendant contends, among other things, that all of the accusatory instruments are jurisdictionally defective, that the evidence was legally insufficient to establish her guilt of disorderly conduct, and that the verdicts finding her guilty of disorderly conduct and obstructing governmental administration in the second degree are against the weight of the evidence.

A superseding prosecutor's information is jurisdictionally defective if the original information it supersedes, and any supporting depositions accompanying it, do not contain adequate factual allegations (see People v Inserra, 4 NY3d 30, 32 [2004]; see also CPL 100.50 [2]; 100.40 [1] [c]). For the factual part of the original information to be adequate, it must contain non-hearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof (CPL 100.40 [1]; see also People v Casey, 95 NY2d 354, 360 [2000]). The law does not require that the most precise words or phrases which most clearly express the thought be provided in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense (see People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d at 360). The pertinent factual allegations of the original information state that "at about 3:45 P.M. at 125-01 Queens Boulevard" defendant "refused to leave the court building after the court session had ended and after deponent [court officer] repeatedly asked the defendant to do so . . . the defendant then became irate and began screaming and kicked and shoved the deponent . . . [and] defendant then struggled with the deponent in an effort to avoid being put in handcuffs."

Penal Law § 240.20 (1) states that a person is guilty of disorderly conduct: "when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [h]e engages in fighting or in violent, tumultuous or threatening behavior." With respect to the disorderly conduct charge, the original information fails to provide factual allegations that establish, if true, every element of the offense charged (see CPL 100.40 [1] [c]) since it does not allege any facts describing a "situation[] that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public concern" (People v Munafo, 50 NY2d 326, 331 [1980]). The facts do not indicate that defendant's conduct had a "public . . . dimension" (People v Munafo, 50 NY2d at 331), which is a necessary component of the offense of disorderly conduct (see Penal Law § 240.20; People v Munafo, 50 NY2d at 331; People v Badue, 22 Misc 3d 137[A], 2009 NY Slip Op 50339[U] [App Term, 9th & 10th Jud Dists 2009]; People v Council, 19 Misc 3d 145[A], 2008 NY Slip Op 51132[U] [App Term, 2d & 11th Jud Dists 2008]; People v Dennis, 13 Misc 3d 41 [App Term, 9th & 10th Jud Dists 2006]; see e.g. People v Jones, 9 NY3d 259 [2007]). The factual allegations do not state that any civilian bystanders were present or nearby, and, in our view, the mere presence of a court officer did not give the incident a public dimension (see People v Badue, 22 Misc 3d 137[A], 2009 NY Slip Op 50339[U]; cf. People v Tichenor, 89 NY2d 769 [1997]). Consequently, the accusatory instrument charging defendant with disorderly conduct is jurisdictionally defective.

Penal Law § 195.05 states that a person is guilty of obstructing governmental administration in the second degree: "when he intentionally obstructs, impairs or perverts the administration of law or other governmental function, or prevents or attempts to prevent a public servant from performing an official function by means of intimidation, physical force or interference." An essential element of obstructing governmental administration in the second degree is that a public servant was performing an "official function" at the time of the offense (see Penal Law § 195.05; People v Ballard, 28 Misc 3d 129[A], 2010 NY Slip Op 51221[U] [App Term, 9th & 10th Jud Dists 2010]; People v Christiansen, 19 Misc 3d 134[A], 2008 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2008]; People v Cacsere, 185 Misc 2d 92 [App Term, 9th & 10th Jud Dists 2000]). The "accusatory instrument is sufficient so long as the factual allegations contained therein delineate what the obstruction and official function consist of. Therefore, whether or not the arrest, which constitutes the official function alleged to have been obstructed, was authorized need not be made part of the pleadings" (People v Cacsere, 185 Misc 2d at 93; see also People v Ballard, 28 Misc 3d 129[A], 2010 NY Slip Op 51221[U]). To require more for pleading purposes would be an unacceptable hyper-technical interpretation of the pleading requirements (see People v Ballard, 28 Misc 3d 129[A], 2010 NY Slip Op 51221[U]). Contrary to defendant's contention, the accusatory instrument charging her with obstructing governmental administration in the second degree is facially sufficient since the factual allegations of the original information delineate the official function and defendant's obstruction thereof, to wit, that defendant repeatedly refused to obey the court officer's order to leave the court building and, rather, shoved and kicked the officer.

A defendant, however, cannot be convicted of obstructing governmental administration in the second degree for interfering with a public servant in the performance of an official function unless it is established that the official function was an authorized one (see People v Lupinacci, 191 AD2d 589 [1993]; People v Vogel, 116 Misc 2d 332 [App Term, 9th & 10th Jud Dists 1982]). Since defendant's failure to leave the court building after she was repeatedly ordered to do so by the court officer formed the basis of the official function allegedly obstructed, defendant could only be convicted of obstructing governmental administration in the second degree if the officer's order was authorized.

The evidence adduced at trial established that, on October 10, 2005, a holiday, the Queens County Criminal Court Building was open and its doors would not be locked until 1:00 A.M. on October 11, 2005. The arraignment courtroom allegedly was closed at 3:45 P.M. because there were no ready cases and the judge had left the bench. However, no testimony was provided as to why the court building was to close at 3:45 P.M. (especially given the testimony that the doors were to remain unlocked until 1:00 A.M.), and whether the court officer had the authority to close the building at that time and deny the public access to the building. Thus, no facts established that the court officer was engaged in an authorized official function (see People v Lupinacci, 191 AD2d 589) when he told defendant to leave the court building because the court session had ended and the court building was closed. Consequently, we find that there was no valid line of reasoning and permissible inferences which could lead a rational person to find defendant guilty of obstructing governmental administration in the second degree - - the conclusion reached by the factfinder on the basis of the evidence at trial (see People v Romero, 7 NY3d 633 [2006]; People v Cahill, 2 NY3d 14, 57-58 [2003]; People v Williams, 84 NY2d 926 [1994]; People v Bleakley, 69 NY2d 490, 495 [1987]).

Penal Law § 205.30 states that a person is guilty of resisting arrest when: "he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person." Herein, the accusatory instrument charging defendant with resisting arrest was facially sufficient since the original information - - which alleged that defendant "refused to leave the court building after the court session had ended and after deponent [court officer] repeatedly asked the defendant to do so . . . the defendant then became irate and began screaming and kicked and shoved the deponent . . . [and] defendant then struggled with the deponent in an effort to avoid being put in handcuffs" - - contained adequate non-hearsay factual allegations that establish, if true, every element of resisting arrest and defendant's commission thereof (see CPL 100.40 [1] [c]; 100.50 [2]; People v Inserra, 4 NY3d at 32; People v Casey, 95 NY2d at 360). We note that, on appeal, defendant did not contend that the evidence was legally insufficient to establish her guilt of resisting arrest.

Defendant's remaining contentions lack merit and/or are unpreserved for appellate review.

Accordingly, the judgments convicting defendant of disorderly conduct and obstructing governmental administration in the second degree are reversed, and these accusatory instruments are dismissed, and the judgment convicting defendant of resisting arrest is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.

Decision Date: July 28,2011

20110728

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