The issue under consideration in this case is whether the defendant's alleged conduct as pleaded constituted physical force or interference within the scope of the Obstructing Governmental Administration statute. The defendant, Gregoria [sic] Mateo Marte, is charged with Obstructing Governmental Administration in the Second Degree (Penal Law [PL] §195.05]). He moves for an order (1) dismissing the accusatory instrument as facially insufficient pursuant to Criminal Procedure Law (CPL) 170.30(1)(a), 100.15(3), and 100.40(1)(c), and for other relief. The People have not served and filed a response to these motions.

Deponent [Detective Richard Doherty] states that deponent is informed by Detective Edward Tierney, shield No.01359 of the Narcotics Boro Manhattan North, that [on May 21, 2010 at about 09:15 hours informant and Undercover 0080 were inside an unmarked police car, red in color, at the location listed above [corner of Amsterdam Avenue and West 167th Street, New York County]. Deponent is further informed that informant and Undercover 0080 were on duty at said location in said car in order to investigate narcotics-related activity. Deponent is further informed by informant that at the time listed above, informant observed the defendant approach the unmarked red car, look inside said car toward the informant and Undercover 0080, and then observed the defendant make a phone call and heard the defendant state in substance over the phone: YES THEY'RE HERE IN A RED CAR. TWO GUYS. THEY'RE COPS. BE CAREFUL. SHUT DOWN. MOVE AWAY FROM THE BUILDING. [*2]

Deponent is further informed by informant that as a result of the defendant's actions, informant and Undercover 0080 were forced to stop their investigation and leave the area, and that the defendant's actions prevented informant and Undercover 0080 from performing their official functions as narcotics law enforcement officers. Deponent is further informed that the defendant's actions caused informant to fear for informant's safety and for the safety of the other undercover officers in the area, thereby interfering with informant's ability to investigate the narcotics related activity in the area.

It is axiomatic that facial sufficiency is a non-waivable jurisdictional prerequisite to a valid prosecution. People v Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must meet with three requirements: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v McDermott, 160 Misc 2d 769 (Dist Ct, Nassau County 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10[1]).

PL §195.05 provides in relevant part the following:

A person is guilty of obstructing governmental administration 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, or by means of any independently unlawful act . . . .

In characterizing the purpose in enacting this statute's predecessor, PL §1851, the Appellate Term, First Department, held in People v. Crayton, 55 Misc 2d 213, 216 (1967) that "[the] obvious intent . . . is that the police go about their business without any obstacles put in their way . . . ." A police officer is engaged in an official function pursuant to PL §195.05 when his or her activity is authorized by law. See Matter of Jeremy B., 151 AD2d 314, 316 (1st Dept 1989); Matter of Verna C., 143 AD2d 94 (2d Dept 1988). These cases hold that an accusatory instrument charging Obstructing Governmental Administration is facially insufficient if it fails to substantiate that the police officer was engaged in authorized activity at the time the defendant allegedly interfered with that activity.

The defendant does not dispute that Detective Tierney and Undercover 0080 were engaged in an official function, investigation of narcotics-related activity, or that the defendant intended to prevent the detectives from doing their jobs. He only contends that the accusatory instrument fails to establish reasonable cause to believe that he prevented or attempted to prevent these detectives from engaging in an official function by means of intimidation, physical force or interference. The Court disagrees.

Words alone, certainly, are not enough to make out the actus reus of this crime. Matter of Davan L., 91 NY2d 88,91 (1997). " [T]he interference would have to be, in part at least, physical in nature.'" Id, quoting from People v. Case, 42 NY2d 98, 102 (1977). In Case, the defendant's only conduct was broadcasting on his CB radio the location of a police radar speed checkpoint. The Case court reversed the defendant's conviction because it concluded that his conduct did not show that [*3]defendant had attempted to thwart an arrest for on-going illegal activity. Case likened the defendant's conduct to a person telling a another traveler at a highway rest stop the location of a police radar checkpoint.

In Davan L., however, the juvenile respondent was alleged to have ridden his bicycle back into a police buy-and-bust "set," yelling "cops, cops," after a police officer had identified himself as such to the boy and had instructed him to leave the area. The juvenile's riding into the area near the target location of the police activity satisfied the requirement of some physical interference. The Court of Appeals, Matter of Davan L., 91 NY2d at 91, distinguished the situation from that in Case:

The police activity area was confined and defined, and the juvenile was put on specific, direct notice. There was evidence that he intentionally intruded himself into the specific area of police activity and directed his warnings toward a known criminal activity and assembly at the location identified to the juvenile by the police officer.

Davan L. also noted that "[t]he Legislature intended and enacted that criminal responsibility should attach to minimal interference set in motion to frustrate police activity." Id.

In People v. Covington, 18 AD3d 65 (1st Dept 2005), the evidence showed that

the defendant had called toward a building that "the police were coming" as the police approached. There was no evidence that the defendant had been forewarned by the police to avoided interfering with their efforts. Nevertheless, the Covington court affirmed his conviction of Obstructing Governmental Administration in the Second Degree. Relying on Covington, the court in People v. Knight, 2010 WL 4540338 (Crim Ct, NY County 2010), denied a motion to dismiss for facial insufficiency where the accusatory instrument alleged that the defendant yelled to the apparent accomplice to a drug sale to "go into the building" as police officers approached to arrest another person and that the accomplice was not arrested. As in Covington, defendant Knight had not been warned off the scene by the police. In the instant case, the defendant's alleged use of a telephone, to confirm that there were two men in a red car whom he (and obviously the recipient of the call) believed to be "cops" was the electronic equivalent of a shout or yell. Such allegations sufficiently make out reasonable cause to believe that the defendant interfered with a specific police investigation.

Furthermore, the defendant's alleged words on the phone demonstrate that he was aware that specific criminal activity was going on in a building close to the red car and reasonably suggest that he had been sent out to confirm that the red car, with two "guys" inside, believed to be "cops," were in fact at that location. As a direct result of the call, the detective and his partner, their cover blown, and fearing for their safety, left the location since they no longer had the ability to pursue their investigation. The absence of a factual allegation that the defendant's call caused the recipients to flee the scene is insignificant. Under the circumstances, the defendant's alleged efforts were just as frustrating to the police investigation as Davan L.'s ride into the "set" shouting his warnings.

Accordingly, the defendant's motion for an order dismissing the count of Obstructing Governmental Administration in the Second Degree is hereby denied.

The defendant's motion for an order compelling the People to provide him with a bill of particulars is granted. The People shall comply with this request within 15 days of the date of this order.

As to discovery sought by demand pursuant to CPL 240.20, the People shall comply with the demand as it applies to those items enumerated in CPL 240.20 within 15 days of the date of this order. As to those items sought by the defendant but not enumerated in CPL 240.20, the defendant's motion has failed to set forth with any degree of specificity that the demanded items constitute property which the People intend to introduce at trial. Also, the defendant has failed to show that such property is material to the preparation of a defense and that his request is reasonable. CPL 240.40. Therefore, this branch of the motion for discovery is denied.

The defendant's motion for an order suppressing identification evidence is granted to the extent that a Wade/Dunaway hearing shall be conducted to resolve two factual issues, whether the identification procedure was unduly suggestive and whether the identification that resulted was the fruit of an unlawful seizure of his person. The defendant has laid a proper factual foundation for the Dunaway inquiry. See People v. Mendoza, 82 NY2d 415, 428-29 (1993).

The defendant's motion to reserve the right to make further motions is denied. However, upon good cause shown, the Court will permit the defendant to make additional motions.

This opinion shall constitute the decision and order of this court.

Dated:December 2, 2010

New York, New York

_________________________

Hon. Felicia A. Mennin, JCC