SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
August 1, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
MARSHALL TUCKER, APPELLANT.
Appeal from a judgment of the District Court of Nassau County, First District (Christopher G. Quinn, J., at hearings; Lea Ruskin, J., at trial; Andrew M. Engel, J., at sentencing), rendered February 19, 2009. The judgment convicted defendant, after a non-jury trial, of obstructing governmental administration in the second degree.
People v Tucker (Marshall)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 1, 2011
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
The People charged defendant, in separate accusatory instruments, with resisting arrest (Penal Law § 205.30) and obstructing governmental administration in the second degree (Penal Law § 195.05). After a non-jury trial, defendant was convicted of obstructing governmental administration in the second degree. Defendant contends, as he did at trial, that the information was facially insufficient to plead the offense. We agree.
"A valid and sufficient accusatory instrument is a non-waivable
prerequisite to a criminal prosecution" (People v Dryden, 15 NY3d 100,
103 ). An information must contain non-hearsay allegations of an
evidentiary nature sufficient to establish, if true, every element of
the offense charged and defendant's commission thereof (CPL 100.40 
[b], [c]; see also CPL 100.15  ["The factual part of such
instrument must contain . . . facts of an evidentiary character
supporting or tending to support the charges"]). An information "must
set forth the required non-hearsay evidentiary allegations within the
four corners of the instrument itself or in annexed supporting
depositions" (People v Thomas, 4 NY3d 143, 146  [internal
quotation marks and citation omitted]; e.g. People v Bottari, 31 Misc
3d 90 [App Term, 9th
& 10th Jud Dists 2011]). The factual allegations set forth in the accusatory
instrument charging resisting arrest may not be considered in assessing the
sufficiency of the information charging obstructing government
administration in the second degree (see People v Davis, 31 Misc
3d 142[A], 2011 NY Slip Op 50844[U] [App Term, 9th & 10th Jud
Dists 2011]). Here, although the non-hearsay requirement was
waived (People v Casey, 95 NY2d 354 ), the acts alleged
to constitute defendant's commission of the offense essentially
tracked the statutory elements of the crime, in conclusory terms
and without any factual specifics from which an actual obstruction
of an official function may be inferred (see Matter of Kendell R., 71
AD3d 553 ). In light of the foregoing, we need not address defendant's remaining contentions.
Accordingly, the judgment of conviction is reversed, the accusatory instrument dismissed, and the fine, if paid, remitted.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date:August 01, 2011
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