Criminal Court of the City of New York, Bronx County
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 ...