Criminal Court of the City of New York, Bronx County
November 1, 2013
The People of the State of New York,
Jose Cruz, Defendant.
For the People, Robert T. Johnson, District Attorney, Bronx County, by Lori Ann Farrington, Esq., Assistant District Attorney.
For the Defendant, Michael J Barsky, Esq.
John H. Wilson, J.
By a superceding information dated May 22, 2013, Defendant is charged with one count each of Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01), Resisting Arrest (PL Sec. 205.30), Obstructing Governmental Administration in the Second Degree (PL Sec. 195.05), and Possession of Pistol Ammunition (AC 10-131(i)(3)), all Class A misdemeanors.
By motion dated April 16, 2013, Defendant seeks dismissal of the docket, asserting that the People's complaint is facially insufficient. Subsequent to the filing of the superceding information, Defendant renewed his application with a supplemental motion dated June 24, 2013.
The Court has reviewed the Court file, Defendant's motions, and the People's Responses dated May 22, 2013 and July 25, 2013.
For the reasons stated below, the motion to dismiss the charge of Obstructing Governmental Administration in the Second Degree, on the ground of facial insufficiency, is denied.
As to Defendant's motion to dismiss all other charges, this Court orders a hearing pursuant to Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80
L.Ed.2d 732 (1984) and In re Stark v. NYS Dept of Motor Vehicles, 104 A.D.2d 194, 483 N.Y.S.2d 824 (3d Dept, 1984) to determine if there was any exigent circumstance or strong state interest which would justify the warrantless entry into defendant's home to effectuate an arrest on a misdemeanor charge.
Pursuant to the superceding information, on or about May 11, 2013 at approximately 10:20 PM, at 1531 Taylor Avenue, Bronx, New York, Defendant approached Police Officer Edwin Espinal while the officer was "investigating and securing a crime scene." Defendant is alleged to have made derogatory statements to the officer, and "then threw a piece of metal towards (the officer's) partner, and that said piece of metal almost struck his partner." See, superceding information dated May 22, 2013, p 1.
Officer Espinal asserts that "the defendant's aforementioned conduct prevented (the officer) from performing his official duties in securing an active crime scene during an ongoing investigation." When the officer attempted to place Defendant under arrest for this conduct, "defendant ran away from the police officers and into his apartment." See, superceding information dated May 22, 2013, p 2.
The defendant then "flailed his arms, kicked his legs, and twisted his body, refusing to be handcuffed." The officer then "observed the defendant to have in his custody and control one (1) Smith and Wesson caliber.357 Revolver fully loaded with six (6) live.357 caliber rounds...the revolver was located in between his mattress in the above-location." See, superceding information dated May 22, 2013, p 2.
(A) Defendant's Motion to Dismiss the Charge of Obstructing Governmental Administration in the Second Degree is Denied.
In his supplemental motion dated June 24, 2013, Defendant asserts that his "words and actions of throwing a metal object near an officer who is securing a crime scene still do not rise to the level of Obstructing Governmental Administration." See, Defendant's motion to dismiss dated June 24, 2012, p 5, para 10. He also asserts that "if the underlying arrest was unlawful and there was no probable cause to initially arrest the defendant, the defense contends the charge of Resisting Arrest must also fail." See, Defendant's motion to dismiss dated June 24, 2012, p 5, para 11.
Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652 (1986).
Applying these principles to the instant matter, regarding the charge of Obstructing Governmental Administration in the Second Degree, the factual allegations contained in the superceding information before this Court are sufficient.
Under PL Sec. 195.05, "a person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or...prevents or attempts to prevent a public servant from performing a lawful function by means of...physical force or interference."
Defendant is alleged to have approached Police Officer Edwin Espinal while that officer was "investigating and securing a crime scene." Defendant is then alleged to have made derogatory statements to the officer, and "threw a piece of metal towards (the officer's) partner, and that said piece of metal almost struck his partner." See, superceding information dated May 22, 2013, p 1.
These actions would constitute "a knowing, physical interference with and disruption of the official function...being performed by the officer." See, People v. Meath, 219 A.D.2d 838, 632 N.Y.S.2d 1014 (4th Dept, 1995), citing, People v. Tarver, 188 A.D.2d 938, 591 N.Y.S.2d 907 (3d Dept, 1992), lv to app den, 81 N.Y.2d 893, 597 N.Y.S.2d 955 (1993).
Thus, there being no facial insufficiency as to the charge of Obstructing Governmental Administration in the Second Degree, the motion to dismiss this charge on this ground is denied.
(B) Defendant is Granted a Hearing regarding his Motion to Dismiss All Other Charges.
In support of his motion to dismiss all other charges, Defendant asserts that "the police had no right to run after the defendant into his own home and recover a weapon within the defendant's home." See, Defendant's supplemental motion to dismiss dated June 24, 2012, p 5, para 12.
As stated above, the allegations supporting the charge of Obstructing Governmental Administration, which form the predicate for the officer chasing Defendant into his apartment, are facially sufficient. However, reading Defendant's allegations and arguments broadly, Defendant is, in fact, asserting a Fourth Amendment violation that can only be resolved at a pre trial hearing. See, People v. Maksymenko, 109 Misc.2d 171, 442 N.Y.S.2d 699 (App Term, 2d Dept, 1981). (In the context of a motion to dismiss, "a court is without authority to hold a pretrial hearing to test the validity of defendant's arrest...in the interest of justice, we construe the subject motion and the hearing thereon as one to dismiss the information.") 
Generally, under the Fourth Amendment of the United States Constitution, the police are prohibited from entering a private residence to make an arrest without a warrant. The arrest of a person in their residence is only reasonable under specific circumstances - the police possess a valid arrest warrant; the suspect consents to the entry, or; there are exigent circumstances present to justify an exception to the general warrant requirement. See, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63
L.Ed.2d 639 (1980).
"Exigent circumstance" is defined as an immediate danger of a suspect escaping or evidencebeing destroyed. This concept applies when "urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction.'" See, People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689 (1980); People v. Knapp, 52 N.Y.2d 698, 439 N.Y.S.2d 871 (1981).
In New York, several factors have been identified to determine whether or not an exigent circumstance exists, allowing the warrantless entry of the police into an individual's home. These are as follows: 1) The serious or violent nature of the offense; 2) there is reason to believe that the suspect is armed; 3) the police have probable cause; 4) there is a strong reason to believe the suspect is in location to be entered; 5) there is a likelihood of the suspect escaping; and 6) whether or not the police entry is peaceful. See, People v. Burr, 70 N.Y.2d 354, 520 N.Y.S.2d 739 (1987).
One example of an exigent circumstance is "hot pursuit" - that is, the police are actively pursuing a suspect who is in the process of fleeing from a recently committed crime. See, Warden, Md Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18
L.Ed.2d 787 (1967). For there to be a "hot pursuit, " the police must have probable cause of criminal activity. See, Webster v. City of New York, 333
F.Supp.2d 184 (SDNY 2004). Further, a suspect's entry into their home during a hot pursuit does not halt the pursuit. The police may enter the location where a suspect has taken refuge, even if it is their own home. See, US v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49
L.Ed.2d 300 (1976); People v. Hunter, 92 A.D.3d 1277, 938 N.Y.S.2d 719 (4th Dept, 2012). See, also, People v. Gonzales, 2013 WL 451350 (2d Dept, 2013).
There is an extremely important caveat to foregoing precedent; this exception to the warrant requirement applies to police pursuit into a residence for felony charges. See, Payton, 445 U.S. at 576 ("the Fourth Amendment... (prohibits) the police... (from) making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." (Citations omitted, emphasis added). Thus, when a suspect retreats into his or her house, and the suspected crime is only a violation or a misdemeanor, the "hot pursuit" exception does not apply. See, also, United States v. Reed, 572 F.2d 412, 423 (2d Cir, 1978); Breitbart v. Mitchell, 390
F.Supp.2d 237 (EDNY 2005).
The rationale for this rule is explained in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80
L.Ed.2d 732 (1984). There, the defendant was observed driving erratically, swerving off the road, and coming to a stop in a field. Rather than wait at the scene, the driver left on foot and returned home. "When the petitioner's stepdaughter answered the door, the police gained entry into the house. Proceeding upstairs to the Petitioner's bedroom, they found him lying naked in bed." 466 U.S. at 743.
In finding that the police did not have the authority to enter the defendant's home, the United States Supreme Court noted that "(o)ur decision in Payton, allowing warrantless home arrests upon a showing of probable cause and exigent circumstances, was also expressly limited to felony arrests." 466 U.S. at 750, FN 11, citing Payton, 445 U.S. at 574, 602. The Court stated "we note that it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor." 466 U.S. at 753. 
Nonetheless, the SupremeCourt did not entirely preclude the possibility of entry into a home for crimes other than felonies. "(W)e have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses." 466 U.S. at 750, FN 11.
New York, has generally followed the rule prohibiting police entry into premises where the charge is only a misdemeanor. See, People v. Stockman, 159 Misc.2d 730, 606 N.Y.S.2d 864 (Co Ct, Erie Cty, 1993) (police not allowed to follow defendant into his garage to make an arrest for misdemeanor DWI). There is support for an exception which would allow the police to enter a private residence for a misdemeanor charge, however, to date, this exception has been applied in an extremely limited circumstance.
In re Stark v. NYS Dept of Motor Vehicles. 104 A.D.2d 194, 483 N.Y.S.2d 824 (3d Dept, 1984) aff, 65 N.Y.2d 720, 492 N.Y.S.2d 8 (1985) , the defendant was observed driving erratically, and then turning into his driveway, into his garage, and closing the garage door. The Appellate Division held that this constituted a permissible, uninterrupted pursuit of the motorist "(g)iven this State's strong interest in protecting the public and in preventing the tragic consequences of drunk driving." 104 A.D.2d at 196.
The Stark Court distinguished their findings from Welch by citing the difference between the penalty the motorist faced in Welch from that facing the driver in their case. In Welch, "the Supreme Court noted that the penalty imposed by a State for a particular offense was the best indicator of the state's interest in precipitating an arrest.' New York classifies a first offense for driving while intoxicated as a misdemeanor, punishable by imprisonment for not more than one year... (t)his classification is reflective of the State's profound and grave concern to remove the incapacitated driver from the State's highways." See, 104 A.D.2d at 196, citing Welch, 104 S.Ct. at 2100.
In contrast, Welch stated that "the State of Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible." See, Welch, 466 U.S. 754. Thus, the Stark Court found that "the arrest was justified as a continuation of the uninterrupted pursuit of petitioner and a measure designed to prevent the destruction of evidence by timely ascertaining petitioner's blood alcohol level." 104 A.D.2d at 197 (citations omitted).
Yet, the dissent in Stark points out the limited application of the majority's ruling. "(T)he finding of exigent circumstances must be based on the facts of each case...exigent circumstances justifying a warrantless home arrest for driving while intoxicated may exist in an appropriate case." 104 A.D.2d at 198 (Mahoney, J, dissenting) (emphasis added).
Defendant here is alleged to have run "away from the police officers and into his apartment." When the officers followed, Defendant then "flail(ed) his arms, kicked his legs, and twisted his body, refusing to be handcuffed." After the arrest of the Defendant, the officer then "observed the defendant to have in his custody and control one (1) Smith and Wesson caliber.357 Revolver fully loaded with six (6) live.357 caliber rounds...the revolver was located in between his mattress in the above-location." See, superceding information dated May 22, 2013, p 2.
These are the facts stated by the People in their superceding information in support of the charges of Resisting Arrest, Criminal Possession of a Weapon in the Fourth Degree, and Possession of Pistol Ammunition. Yet, without any exigent circumstance or a strong state interest to justify their warrantless entry, the police are without authority to effectuate an arrest of the Defendant for the misdemeanor charge of Obstructing Governmental Administration in the Second Degree in the Defendant's home. The failure to support the superceding information with such necessary facts would render the information facially insufficient as to these charges.
In People v. Camacho, 185 Misc.2d 31, 36, 711 N.Y.S.2d 283 (Crim Ct, Kings Cty, 2000), the court ruled that where a complaint is found to be facially insufficient, "the People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect). " (Citation omitted). See, also, People v. Gore, 143 Misc.2d 106, 109, 540 N.Y.S.2d 147 (Crim Ct, Kings Cty, 1989) ("the lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible.")
Before the Court can determine whether or not the People can supercede the complaint, following the authority of Maksymenko, and in the interest of justice, this Court orders a hearing pursuant to Welch and Stark.
This shall constitute the opinion, decision, and order of the Court.