People v. Santos

LAURA A. WARD, J. On August 7, 1999, the defendant's employment at a dental office was terminated. On August 13, 1999, the defendant returned to the office. The defendant sat in a chair and refused to leave the premises after repeatedly being told to leave by the office manager, Marcia Luria. The defendant was arrested and taken to the 17th Precinct. At the precinct, Police Officer Michael Drew attempted to take the defendant to the fingerprint station. The defendant repeatedly pulled away from Officer Drew and finally sat in a chair and refused to get up. As a result of the defendant's actions, Officer Drew was unable to fingerprint her. The defendant was charged with criminal trespass in the third degree (Penal Law § 140.10 [a]) and obstruction of governmental administration in the second degree (Penal Law § 195.05). The defendant has moved, among other things, to dismiss both charges on the ground that the accusatory instrument is facially insufficient and to dismiss the charge of obstruction of governmental administration in the second degree on the ground that the statute defining the crime is unconstitutionally vague. For the reasons set forth below, the defendant's motion to dismiss count two, trespass in the third degree, is granted and the defendant's motion to dismiss count one, obstruction of governmental administration, is denied.

CPL 100.40 sets forth the standards governing the facial sufficiency of misdemeanor complaints and misdemeanor informations. The factual part of a misdemeanor complaint, along with any supporting depositions which accompany it, must establish reasonable cause to believe that the defendant committed the offenses charged in the accusatory part. The standard for a misdemeanor information is the same as for a complaint except that the information must contain nonhearsay allegations, which if true, establish every element of the offenses charged and the defendant's commission of those offenses.

A person is guilty of violating Penal Law § 140.10 (a) "when he knowingly enters or remains unlawfully in a building or upon real property "(a) which is fenced or otherwise enclosed in a manner designed to exclude intruders." According to Penal Law § 140.00 (5),"[a] person `enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so." This section also states that "[a] person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person." The defendant argues that the accusatory instrument in this case fails to meet the requirements for a facial sufficiency set forth in CPL 100.40 since it fails to set forth that the office was enclosed in a manner to exclude intruders. In People v MacMahon (NYLJ, July 10, 1995, at 30, col 3 [Crim Ct, NY County]), the court was presented with the identical issue presented here, whether an accusatory instrument charging a violation of Penal Law § 140.10 (a) is sufficient if it fails to state that a building is "fenced or otherwise enclosed in a manner designed to exclude intruders." The court, in finding that such an accusatory instrument would be sufficient, stated that "the Court rejects the defendants' argument or otherwise enclosed in a manner designed to exclude intruders." The accusatory instrument does not set forth any facts establishing that the office was "fenced or otherwise enclosed in a manner designed to exclude intruders" and therefore fails to establish every element of the crime of trespass in the third degree and the defendant's commission of that crime, nor does it even establish reasonable cause to believe that the defendant committed the crime of trespass in the third degree. The motion to dismiss the count charging trespass in the third degree is granted.

Penal Law § 195.05 provides, in pertinent part, that "[a] person is guilty of obstructing governmental administration when he intentionally * * * prevents or attempts to prevent a public servant from performing an official function, by means of * * * physical force or interference." The defendant asserts that the accusatory instrument is facially insufficient since it fails to allege the performance of an official function by a public servant and that the acts committed by her do not constitute physical force or interference. The defendant argues that fingerprinting a newly arrested defendant is not an official function until the issuance of a fingerprint order by the court. In support of this argument, the defendant cites a comment made by the court in People v Batista (128 Misc 2d 1054 [Crim Ct, NY County 1985]). In Batista (supra), the defendant was arrested for violating several sections of the Vehicle and Traffic Law including Vehicle and Traffic Law § 1192 (2), driving while intoxicated. While the police refused the defendant's request for a blood test, she consented to a breathalyzer examination. When the defendant refused to be fingerprinted, instead of being issued a desk appearance ticket, she was held for arraignment. As a result of the defendant being held, she was unable to arrange for her own physician to perform a blood test within two hours of her arrest. In ruling upon the defendant's motion to suppress the breathalyzer examination, the court felt that it was necessary to "determine if the defendant's refusal to be fingerprinted released the police from their obligation to protect the defendant's right to an independent blood test" (at 1056). In resolving this issue the court stated that "[c]learly, under CPL 160.10 the police are required to fingerprint the defendant either voluntarily after the arrest or upon court order after arraignment. and therefore, logistically, there is a need for delaying fingerprinting until arraignment, when the person comes within the jurisdiction of the court. Finally, in People v Johnson (168 AD2d 700 [3d Dept 1990]), the Court, citing CPL 160.10, stated "that police officers have a statutory obligation to take fingerprints and to submit them to the proper agency." In view of the fact that the police were required by statute to fingerprint the defendant following her arrest and not delay the fingerprinting until a court order was issued at the defendant's arraignment, Officer Drew was attempting to perform an official function when he sought to fingerprint the defendant. The defendant's claim that the acts committed by her do not constitute physical force or interference is also without merit. At the time that Officer Drew attempted to fingerprint the defendant, she repeatedly pulled away from Officer Drew and finally sat in a chair and refused to get up. By pulling away from Officer Drew and sitting in a chair, the defendant affirmatively resisted the officer's attempt to fingerprint her and these actions on her part clearly constitute physical force as well as physically interfering with the officer's attempt to perform an official function (cf., People v Stumpp, 132 Misc 2d 3 [App Term, 2d Dept 1986]; People v Barrett, 179 Misc 2d 261 [Crim Ct, Bronx County 1998]; People v Ravizee, 146 Misc 2d 679 [Crim Ct, NY County 1990]). In view of the fact that the accusatory instrument establishes, by nonhearsay allegations, every element of the crime of obstruction of governmental administration in the second degree and the defendant's commission of that crime, the defendant's motion to dismiss the charge of obstruction of governmental administration in the second degree on the ground that the accusatory instrument is facially insufficient is denied.

The defendant also argues that Penal Law § 195.05 is void for vagueness since it fails to provide sufficient notice as to the conduct that is forbidden and engenders arrests and prosecutions that are arbitrary, discriminatory, and erratic. The defendant specifically challenges the part of Penal Law § 195.05 which prohibits a person from intentionally obstructing, impairing, or perverting the administration of law or other governmental function or preventing or attempting "to prevent a public servant from performing an official function, by means performance of official functions by public servants is necessary to maintenance of a well-ordered society. As to what specifically is an official function, it is incumbent upon the members of a civilized society to assume that actions taken by public servants are authorized either by statute or regulation and that abiding by the direction of a public servant that is neither physically, mentally, or sexually abusive is what is required to maintain a lawful society. The remainder of the sentence, which sets forth what constitutes preventing or attempting to prevent the performance of an official function by a public servant, is also clear, unambiguous and not subject to interpretation. It prohibits an individual from intentionally and affirmatively engaging in conduct which is designed to prevent the orderly administration of government. Penal Law § 195.05 is therefore not unconstitutionally vague and the defendant's motion for an order declaring the statute void for vagueness is denied.

The motion to suppress the observations of Police Officer Michael Drew and any other individual of the defendant's actions in attempting to prevent Officer Drew from fingerprinting her on the ground that such observations were the fruit of an unlawful arrest is denied. In People v Abruzzi (52 AD2d 499 [2d Dept 1976], affd 42 NY2d 813 [1977]), the Court held that the observations of criminality made by police officers conducting an unlawful search must be suppressed unless otherwise attenuated. Additionally, the Court stated that "It should be noted that our decision today has neither the intention nor the practical effect of insulating defendants from evidence of criminal activity directed toward a trespassing police officer. In all cases cited by the dissent in support of its independent crime theory, the independent crime was directed toward the police officer himself. As to those kinds of crimes, the testimony of the police officer is undoubtedly admissible, for the Fourth Amendment is not a vehicle for license to commit crimes against or through the police, regardless of where such crimes occur" (at 504). In this case the observations the defendant seeks to suppress are acts committed by her against Officer Drew and therefore suppression of these observations would not be warranted. The motion to suppress physical evidence is denied. The defendant has not set forth what items of physical evidence she seeks to suppress. A hearing on the motion to preclude the People from cross-examining the defendant as to prior convictions and/or bad acts is reserved for the Trial Judge. The defendant has moved to preclude statements made by her as well as identification testimony on the ground that the People failed to comply with the notice requirements of CPL 710.30. The court file does not indicate the serving of either statement notice or notice of identification testimony at arraignments or within 15 days as required by CPL 710.30 (2) nor have the People alleged that such notices were served as required. The motion to preclude statements and identification testimony is granted. [*] The court in Matter of Kevin G. (supra) was dealing with the same statute.